Goh Chin Soon v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] SGHC 162
• Published date: 07 August 2020
• Docket Number: Magistrate’s Appeal No 9055 of 2018
• Year: 2020
• Hearing Date: 08 July 2020,03 April 2020,18 April 2019,08 February 2019,28 November 2019,03 June 2020
• Plaintiff Counsel: Davinder Singh SC, Navin S Thevar, David Fong and Rajvinder Singh Chahal (Davinder Singh Chambers LLC) (instructed counsel until 3 June 2020), Quek Mong Hua and Yik Shu Ying (Lee & Lee)
• Citation: [2020] SGHC 162
• Defendant Counsel: Mohamed Faizal SC, Shahla Iqbal, Jane Lim, Jarret Huang, Rebecca Wong and Chong Kee En (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Passports Act,Statutory offences,Criminal Procedure and Sentencing,Trials,Charge,Alteration,Appeals,Sentencing,Criminal Law

Hoo Sheau Peng J: Introduction

Mr Goh Chin Soon (“the appellant”) is a 65-year-old Singapore citizen who travelled into and out of Singapore on a total of 46 occasions between 20 March 2011 and 7 September 2012 using a Philippine passport (“the Passport”). It transpired that this was a false passport. On the 46th occasion, the appellant was arrested while passing through the departure immigration checkpoint at Changi Airport.

The appellant claimed trial to 23 charges for making false statements in disembarkation forms under s 57(1)(k) of the Immigration Act (Cap 133, 2008 Rev Ed) (“the Immigration Act charges”) and 46 charges for using a foreign travel document not issued to him under s 47(3) of the Passports Act (Cap 220, 2008 Rev Ed) (“the s 47(3) charges”). As I shall set out below, and as narrated in the grounds of decision of the District Judge in Public Prosecutor v Goh Chin Soon [2018] SGDC 129 (“GD”), the trial was fairly eventful.

To summarise, after considering the closing submissions of the parties, the District Judge convicted the appellant on all the Immigration Act charges: GD at [3]. However, pursuant to s 128(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the District Judge amended the s 47(3) charges to 46 charges of possession of a false foreign travel document under s 47(6) of the Passports Act (“the s 47(6) charges”): GD at [53]. This was because the charges under s 47(3) related to the use of a “foreign travel document” not issued to the appellant, but the Passport was in fact a “false foreign travel document”. In doing so, the District Judge disagreed with the Prosecution that the amended charges should be framed under s 47(1) of the Passports Act.

Thereafter, the District Judge allowed the Defence to recall a number of Prosecution witnesses for further cross-examination. However, the District Judge refused to allow the Defence to call further witnesses who had not previously taken the stand: GD at [87]. At the end of the proceedings, the District Judge found the appellant guilty of the s 47(6) charges: GD at [98].

Then, the District Judge sentenced the appellant to two months’ imprisonment for each of the Immigration Act charges (with two of these sentences to run consecutively), and 12 months’ imprisonment for each of the s 47(6) charges (with a further two of these sentences to run consecutively): GD at [119]–[120]. Thus, the appellant was sentenced to a total of 28 months’ imprisonment.

The appellant appealed against his conviction on the s 47(6) charges, and against his sentence in relation to all the charges.¹

In relation to his appeal against conviction, the appellant argued that the District Judge had descended into the arena and prejudged his guilt by her conduct leading up to her decision to amend the s 47(3) charges, that the s 47(3) charges should not have been amended to the s 47(6) charges, that his application to call further witnesses was wrongly rejected, and that he was not guilty of the s 47(6) charges.

Having considered these arguments and the Prosecution’s submissions, I was of the view that there should only be one charge (not 46 charges) under s 47(6) of the Passports Act. Accordingly, I further amended the first of the s 47(6) charges to reflect the entire period the appellant was in possession of the Passport, and set aside the conviction on the remaining s 47(6) charges. I did not agree with the other issues raised by the appellant, and convicted him on the further amended s 47(6) charge.

As for his appeal against sentence, the appellant argued that his ill-health warranted the exercise of judicial mercy, and that in any event, his culpability for the offences was such that only fines were warranted. I rejected these arguments. However, I allowed the appellant’s appeal against sentence. I sentenced him to 18 months’ imprisonment for the further amended s 47(6) charge and six weeks’ imprisonment for each of the Immigration Act charges (with two of these sentences to run consecutively with the sentence for the s 47(6) charge), for a total of 18 months and 12 weeks’ imprisonment.

These are the full reasons for my decision.

Background The parties’ cases at trial

The appellant, a Singaporean, was born on 19 July 1955 in Singapore. The Passport with which he travelled on the 46 occasions reflected the bearer’s name as “Ngo Boris Jacinto”, a Philippine national born on 27 August 1967 in San Juan, Rizal.² However, the Passport bore the appellant’s photograph. On each of the 23 occasions when the appellant entered Singapore using the Passport, he produced a disembarkation form which reflected the particulars stated in the Passport, and contained the declaration that he had never “used a passport under [a] different name to enter Singapore”.³

The appellant did not dispute the facts above: GD at [34]–[37]. According to him, in 2004, his passport was detained by the Chinese authorities while he was in China on business. As a result, he could not leave China. In 2009, one “Mr Tsai” from the Huashin Group, the company the appellant worked for, asked him to go to Taiwan to attend to some business matters. Eventually, in March 2010, “Mr Tsai”, who was anxious for the appellant to go to Taiwan, introduced him to one “Mr Huang”. The latter told the appellant that he could obtain an investment passport from the Philippines for the appellant. The appellant claimed that at this time, his mother was also very sick, and he wanted to visit her in Singapore. Therefore, the appellant agreed to pay US$250,000 to “Mr Huang” to buy a company in the Philippines. Subsequently, in March 2011, the appellant received the Passport.

The appellant’s defence was that he believed the Passport to be a genuine Philippine passport although the date and place of birth were wrong: GD at [38]–[41]. He asserted that the information stated in the disembarkation forms accordingly was also not false. According to the appellant, he had given “Mr Huang” his personal particulars, photograph, and fingerprints for the purposes of the passport application.⁴ Furthermore, the appellant said that he had successfully used the Passport on 188 occasions without encountering any problems.

The appellant claimed that he was also known as “Boris”, that “Ngo” was the Filipino equivalent of his surname, ie, Goh, and that “Jacinto” was the middle name which “Mr Huang” provided for the purposes of the passport application. This was because the Philippines was a matrilineal society which required the appellant’s mother’s name to be reflected in the passport, and “Jacinto” was the Filipino equivalent of the appellant’s mother’s name.

As for the incorrect particulars in the Passport, such as the date and place of birth, the appellant said that he had pointed these problems out to “Mr Huang”, but “Mr Huang” said that the appellant would need to go to the Philippines to reapply for the passport to get them rectified. As the appellant urgently needed to travel, he did not do so.

According to the Prosecution, the appellant was made a bankrupt in Singapore sometime in 2001, and was discharged from bankruptcy in June 2015.⁵ During this period, the appellant required the permission of the Official Assignee to travel out of Singapore. However, the appellant had no such permission until 7 September 2012, which was the day of his arrest: GD at [30].

Based on the records of the Immigration and Checkpoints Authority (“ICA”), on 28 April 2010, the appellant had submitted an application for a Singapore passport at the Consulate-General of Singapore in Xiamen, China. This application was rejected due to “outstanding issues” with the Insolvency and Public Trustee’s Office and ICA’s Identification Card Unit.⁶ At this time, the appellant was in possession of a Singapore passport expiring in November 2010. Subsequently, in January 2012, the appellant submitted another application for a Singapore passport. This time, the application was approved. ICA’s records showed that the appellant collected this Singapore passport on 17 February 2012 in person at the Consulate-General of Singapore in Xiamen.⁷ However, the appellant disputed this, and claimed that his Singapore passport was collected by his agent. He only received this passport sometime in December 2012: GD at [45].

The Prosecution called the Consul-General of the Philippine Embassy in Singapore, Mr Victorio Mario M Dimagiba Jr (“Mr Dimagiba”), as a witness. Mr Dimagiba testified that the Philippine authorities had no record of any passport being issued to a “Boris Jacinto Ngo” under the passport number stated in the Passport.⁸ In other words, the Passport was false.

As such, on the Prosecution’s case, the appellant travelled in and out of Singapore using the Passport because he did not have the Official Assignee’s permission to travel until 7 September 2012, and wished to avoid detection: GD at [30]–[31]. However, despite the evidence of Mr Dimagiba, the trial proceeded on the basis that the Passport was a genuine foreign travel document which was not issued to the appellant.

The amendment of the charges

In the Defence’s closing submissions, it was pointed out for the first time that the actus reus of the s 47(3) charges was not made out: GD at [44]. This was because s 47(3) of the Passports Act did not apply to the use of a false foreign travel document, which is what the Passport was (an issue I discuss in detail at [40]–[42] below). In response, the Prosecution argued that the District Judge ought to amend each of the s 47(6) charges to a charge under s 47(1) of the Passports Act, and convict the appellant accordingly: GD at [47].

Sections 47(1), (3) and (6) provide: (1) If — (a) a person makes a false foreign travel document in Singapore, or furnishes a false foreign travel document to another person in Singapore; (b) the person does so with the intention of dishonestly inducing...