Jimina Jacee d/o CD Athananasius v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 02 November 1999
• Date: 02 November 1999
• Docket Number: Magistrate's Appeal No 120 of 1999
• Court: High Court (Singapore)

Jimina Jacee d/o C D Athananasius

Plaintiff

and

Public Prosecutor

Defendant

[1999] SGHC 290

Yong Pung How CJ

Magistrate's Appeal No 120 of 1999

High Court

Criminal Law–Abetment–Abetment by instigation–Whether trial judge erred in finding established on facts–Section 107 (a) Penal Code (Cap 224, 1985 Rev Ed)–Criminal Law–Abetment–Abetment by intentionally aiding–Whether accused helped to commit offence–Trial judge's findings of fact–Whether that supported charge–Section 107 (c)Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Appeal–Power of High Court in appellate capacity to amend charges–Relevant considerations in exercise of power–Section 256 (b) (ii) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Criminal Procedure and Sentencing–Charge–Amendment of charges–Conviction on those charges–No prejudice to appellant–Section 256 (b) (ii)Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Abetment of cheating–Whether sentences manifestly excessive–Whether sentence went against one-transaction rule–Relevance of degree of involvement by accused–Sections 109 and 420 Penal Code (Cap 224, 1985 Rev Ed)–Evidence–Witnesses–Inconsistencies in testimonies–Whether that entitled court to accept one part of testimony and reject another part–Test of credibility against objective facts and evidence–Due weight given to trial judge's assessment of veracity or credibility of witness–Evidence–Witnesses–Evidence of accomplices–Whether statutory presumption of accomplices being unworthy of credit mandatory–Accomplices already convicted and sentenced–Reliability of accomplices' evidence questioned–Whether caution should be taken on evidence–Section 116 illus (b) Evidence Act (Cap 97, 1997 Rev Ed)

The appellant (“Jimina”) was involved in a scam where she procured and distributed air tickets for certain persons (“the principal offenders”), who then used them to obtain boarding passes which were then passed to others to enable them to board the flight. Jimina then paid the principal offenders for their role. She was charged with four counts of abetment by instigation of cheating, which was punishable under s 420 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed).

Jimina denied involvement in the scam and alleged that one Norman had booked the tickets through her and had asked her to deliver them to him at the airport.

The district judge convicted her and sentenced her to nine months' imprisonment for each of the four charges, with two of the sentences running consecutively. On appeal, she contended that there were inconsistencies in the prosecution witnesses' evidence and that the district judge had erred in rejecting her evidence.

Held, amending the respective charges and dismissing the appeal:

(1) Even if the prosecution witnesses' evidence as to how they first learned of the scam was inconsistent and unreliable, it did not follow that their evidence on the events occurring at the airport must be rejected as well. There was no rule of law requiring a witness' testimony to be either entirely believed or not at all, and the court was fully competent to accept one part of the testimony and reject the other. The district judge had considered the inconsistencies and had factored this in assessing the witnesses' veracity in respect of their evidence: at [22].

(2) The presumption that an accomplice was unworthy of credit in illus (b) to s 116 of the Evidence Act (Cap 97, 1997 Rev Ed) was not mandatory. Whether the accomplice's evidence was reliable depended on all the circumstances of the case, and the court's duty was to scrutinise such evidence carefully. In this respect, there was no basis to conclude that the prosecution witnesses had lied to protect Norman: at [23].

(3) The district judge did not err in relying on the prosecution witnesses' evidence in convicting Jimina, and had clearly considered both the Prosecution's and her evidence before making his findings of fact. As all the principal offenders were already convicted and sentenced by the time they testified, there was as such no incentive for them to exaggerate Jimina's culpability and involvement in the scam. It was also significant that there was no satisfactory proof of Norman's existence apart from her bare assertion, and no evidence to substantiate her claim of having regular previous dealings with him: at [24] and [27].

(4) The High Court in the exercise of its appellate capacity has the power to amend charges under s 256 (b) (ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”). The court must be certain that the amendment would not affect the substance of the evidence given at the trial, and that no prejudice would be caused to the appellant's defence or the Prosecution before the power was exercised: at [36].

(5) The original charges of abetment by instigation were amended to that of abetment by intentional aid as, by merely delivering the tickets to and collecting the boarding passes from the principal offenders at the airport, Jimina had not actively stimulated or encouraged them to commit the offence. No prejudice would be caused as the particulars relied on to establish the offences remained unchanged and her defence would be no different as that during the trial: at [32], [33] and [37].

(6) Jimina's sentence was not manifestly excessive in view of the seriousness of the offences and the degree of her involvement in the scam. While it was not proved that she had initiated it, she played a crucial role by, inter alia, booking and distributing the tickets to the principal offenders. Further, the district judge was compelled by s 18 of the CPC to order consecutive sentences for two of the charges: at [40] and [41].

Chai Chien Wei Kelvin v PP [1998] 3 SLR (R) 619; [1999] 1 SLR 25 (folld)

Garmaz s/o Pakhar v PP [1995] 3 SLR (R) 453; [1995] 3 SLR 701, HC (folld)

Garmaz s/o Pakhar v PP [1996] 1 SLR (R) 95; [1996] 1 SLR 401, CA (folld)

Haji Abdul Ghani bin Ishak v PP [1981] 2 MLJ 230 (refd)

Kanagasuntharam v PP [1991] 2 SLR (R) 874; [1992] 1 SLR 81 (refd)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (folld)

Lim Ah Poh v PP [1992] 1 SLR (R) 192; [1992] 1 SLR 713 (folld)

Maideen Pillai v PP [1995] 3 SLR (R) 706; [1996] 1 SLR 161 (refd)

PP v Lim Tee Hian [1991] 2 SLR (R) 393; [1992] 1 SLR 45 (refd)

PP v Victor Rajoo [1995] 3 SLR (R) 189; [1995] 3 SLR 417 (refd)

PP v Yeo Choon Poh [1993] 3 SLR (R) 302; [1994] 2 SLR 867 (refd)

Simon Joseph v PP [1997] 1 SLR (R) 983; [1997] 3 SLR 196 (refd)

Sundara Moorthy Lankatharan v PP [1997] 2 SLR (R) 253; [1997] 3 SLR 464 (folld)

Tan Khee Koon v PP [1995] 3 SLR (R) 404; [1995] 3 SLR 724 (folld)

Tara Singh v PP [1949] MLJ 88 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 256 (b) (ii) (consd);s 18

Evidence Act (Cap 97,1997 Rev Ed)s 116illus (b) (consd)

Penal Code (Cap 224,1985 Rev Ed)ss 107 (a), 107 (c),109, 420 (consd)

Subhas Anandan (MPD Nair & Co) for the appellant

Amarjit Singh (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

Introduction

1 The appellant was convicted of four charges of abetment by instigation of cheating, an offence punishable under s 420 read with s 109 of the Penal Code (Cap 224). At the conclusion of the trial, the appellant was sentenced to nine months' imprisonment on each charge. The district judge ordered the sentence on the fourth charge to run consecutively. The appellant was thus faced with an 18-month term of imprisonment. She appealed against both her conviction and sentence. After hearing the arguments on both sides, I amended the charges from one of abetment by instigation to one of abetment by intentional aid and ordered the appellant to stand convicted of the amended charges. I also ordered the sentences to remain. I now set out my reasons for dismissing the appeal.

The charges

2 Each of the charges stated that the appellant had instigated S Karnan (“Karnan”), Tamil Selvam s/o Varadarajoo (“Tamil”), Subramaniam Rajendran (“Rajendran”) and K Rajasagaran (“Rajasagaran”) (collectively known as “the principal offenders”) respectively to cheat the counter staff of the Singapore Airport Terminal Service (“SATS”). The particulars of the four charges were similar and it is sufficient to set out only the first charge in full:

You, Jimina Jacee d/o CD Athananasius, female, 26 years old (NRIC No S 7330701/E) are charged that you, on 15 April 1997, at about 7.30pm at or around McDonalds restaurant, Changi Airport, Singapore, did abet by instigation, one S Karnan in cheating Lim Siew Jen Jennie, a counter staff of Singapore Airport Terminal Services Passenger Services, by deceiving her into believing that he was travelling from Singapore to Sydney and thereby dishonestly inducing her into delivering a boarding pass to him, which she would not have done if she had not been so deceived, to wit, you delivered an air ticket for a flight to Sydney from Singapore to him and collected his boarding pass after he had obtained the same when you knew that he would not be so travelling, and you have thereby committed an offence punishable under s 109 read with s 420 of the Penal Code (Cap 224).

3 In the court below, the appellant also faced a fifth charge of abetment by instigating one Kerubanathan Sinathurai (“Eddy”) to do the same. On the application of the Prosecution, the appellant was granted a discharge not amounting to an acquittal for this charge as Eddy could not be located for the purposes of the trial.

Background facts

4 This offence arose out of a fraudulent scheme to enable some Sri Lankans to get on board an aircraft bound for Sydney even though they did not possess the requisite visas to enter Australia. The plan was for the principal offenders, who had the necessary visas, to check-in for Egypt Air flight number MS 860 which was scheduled to depart for Sydney from Singapore at 9.20pm on 15 April...