Juma'at bin Samad v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 30 June 1993
• Date: 30 June 1993
• Docket Number: Magistrate's Appeal No 467/92/01
• Court: High Court (Singapore)

Juma'at bin Samad

Plaintiff

and

Public Prosecutor

Defendant

[1993] SGHC 145

Yong Pung How CJ

Magistrate's Appeal No 467/92/01 (Criminal Motion No 16 of 1993)

High Court

Criminal Law–General exceptions–Intoxication–Complete defence or mitigating circumstance–Burden of proof on accused to prove on balance of probabilities that he was so intoxicated that he did not form the necessary intention–Whether defence applicable to housebreaking offences–Sections 86 (2), 441 and 442 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Probation order–Power of court to make probation order for “an offence the sentence for which is fixed by law”–Effect of provision of mandatory minimum sentence–Section 5 (1) Probation of Offenders Act (Cap 252, 1985 Rev Ed)–Criminal Procedure and Sentencing–Trials–Adducing additional evidence–Whether adducing additional evidence “necessary”–Non-availability, relevance and credibility of additional evidence–Whether conditions for taking of additional evidence satisfied–Section 257 (1) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Proof of evidence–Burden of proof of exception–Section 107 Evidence Act (Cap 97, 1990 Rev Ed)–Words and Phrases–“An offence the sentence for which is fixed by law”–Section 5 (1) Probation of Offenders Act (Cap 252, 1985 Rev Ed)–Words and Phrases–“Necessary”–Section 257 (1) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant was convicted on his guilty plea of housebreaking in order to commit theft under s 454 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). His counsel urged the trial judge to make a probation order instead of ordering a custodial sentence, as the appellant had a stable and promising career, was a prominent and highly-respected young Malay entrepreneur, and had committed the offence while under the influence of alcohol. The trial judge was of the view that probation was inappropriate and imposed the mandatory minimum punishment of 18 months' imprisonment. The appellant filed a criminal motion asking the High Court to exercise its revisionary powers under s 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) to inquire into the conviction. In order to show that the conviction was unsatisfactory, he also applied for leave to introduce additional evidence to show that he was in fact entitled to the defence of intoxication under s 86 (2) of the Penal Code. This additional evidence was in the form of affidavits which purportedly showed that he was addicted to alcohol; that he was so heavily intoxicated at the time he committed the offence as to lack the requisite mens rea;and that he could not have intended to steal the items as he would have known that they were almost worthless. Alternatively, the appellant appealed against the sentence of 18 months' imprisonment.

Held, dismissing the criminal motion, application to introduce fresh evidence and the appeal:

(1) Section 86 (2) of the Penal Code applied only where the mens rea for an offence was intention, in contradistinction to offences requiring other forms of mens rea specified in the Penal Code, such as knowledge or rashness. The mens rea of housebreaking in order to commit theft was an intent to commit theft and accordingly, the defence of intoxication in s 86 (2) was potentially applicable: at [22] and [23].

(2) Section 86 was found in Cap 4 of the Penal Code which dealt with general exceptions, for which the burden of proof fell on the appellant by virtue of s 107 of the Evidence Act (Cap 97, 1990 Rev Ed). The appellant would have a complete defence if he could show on a balance of probabilities that he was so intoxicated he did not housebreak with the intention to commit any offence or to intimidate, insult or annoy; his conviction could be reduced to one for a lesser form of housebreaking if he could show that he did not housebreak with the intention to commit the specific offence of theft: at [23].

(3) The revisionary powers of this court included the power to order the taking of additional evidence if it was necessary. Ordinarily, such evidence would not be necessary unless the evidence could not have been obtained with reasonable diligence for use at the trial; is such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; and is apparently credible, although it need not be incontrovertible. The additional evidence was not apparently credible and did not establish on a balance of probabilities that the appellant was so intoxicated at the time of the commission of the offence that he did not form the requisite intention for the offence for which he was convicted, and was hence irrelevant and not credible. Further, the additional evidence was available at the time of the trial: at [13], [31] and [32].

(4) In very extraordinary circumstances, the court would allow additional evidence to be called even though it could not be strictly said that the evidence was not available at the time of the trial, if it could be shown that a miscarriage of justice had resulted. The circumstances in the present case fell far short of that mark: at [34] and [37].

(5) The court had no power to make a probation order pursuant to s 5 (1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) if the offence carried a minimum mandatory sentence, as such an offence would be one the sentence for which was fixed by law. The appeal against the sentence was entirely misconceived: at [43] and [44].

[Observation: The holding in Khamis v PP [1971] 2 MLJ 267 that the necessity for additional evidence should be apparent from the record itself and should not be sought from outside information, was not the law in Singapore. Such a rule was hard to justify and would impose an unwarranted restriction on the already very narrow scope of s 257 of the CPC. It was not inconceivable that there could be a situation where wholly unexpected evidence would be unearthed after the trial which brought into contention a new aspect which was not addressed at all in the trial: at [18].]

Che Din bin Ahmad v PP [1976] 1 MLJ 289 (refd)

Dol bin Lasim v PP [1987] 1 MLJ 116 (refd)

Khamis v PP [1971] 2 MLJ 267 (not folld)

Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745 (folld)

Lo Fat Thjan v PP [1968] 1 MLJ 274 (refd)

Mohamed bin Jamal v PP [1964] MLJ 254 (refd)

PP v Teo Heng Chye [1989] 1 SLR (R) 680; [1989] SLR 659 (refd)

R v Ahluwalia [1992] 4 All ER 889 (refd)

R v Gatt [1963] Crim L R 426 (refd)

R v Goh Boon Kwan [1955] MLJ 120 (distd)

R v Gray (1908) 1 Cr App R 154 (refd)

R v Jordan (1956) 40 Cr App R 152 (refd)

R v Knox (1927) 20 Cr App R 96 (refd)

R v Lattimore (1975) 62 Cr App R 53 (refd)

R v Lee [1984] 1 WLR 578 (refd)

R v Parks [1961] 1 WLR 1484; [1961] 3 All ER 633 (refd)

R v Perry and Harvey (1909) 2 Cr App R 89 (refd)

R v Stafford (1969) 53 Cr App R 1 (refd)

R v Warren (1919) 14 Cr App R 4 (refd)

Rajendra Prasad v PP [1991] 1 SLR (R) 402; [1991] 2 MLJ 1 (folld)

Rodolfo de los Santos v R [1992] 2 HKLR 136 (refd)

Suba Singh v PP [1962] MLJ 122 (refd)

Tan Hung Song v PP [1951] MLJ 181 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 257 (1) (consd);ss 266, 268

Evidence Act (Cap 97, 1990 Rev Ed) s 107 (consd)

Penal Code (Cap 224, 1985 Rev Ed) ss 86 (2), 441 and 442 (consd);ss 34, 85, 86, 300, 420, 454, 457

Probation of Offenders Act (Cap 252, 1985 Rev Ed) s 5 (1) (consd)

Probation of Offenders Ordinance 1951 (No 27 of 1951)

Criminal Appeal Act 1968 (c 19) (UK) s 23

Sant Singh (Sant Singh & Partners) for the appellant

Hamidul Haq (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 The appellant, Juma'at bin Samad, was convicted on his plea of guilty to a charge of housebreaking in order to commit theft under s 454 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) and was sentenced to the mandatory minimum of 18 months' imprisonment.

2 The appellant admitted that on 1 May 1990 at about 9.00pm he was in the house of one Zulkifli bin Jantan (“Zulkifli”) and he agreed to accompany Zulkifli to break into the nearby Jagoh Primary School (“the school”) and commit theft. At about 10.15pm they proceeded to the school. Upon reaching the school, they cut a hole in the fence surrounding the school's perimeter with a pair of pliers which Zulkifli had brought along and they entered the school's premises through this hole. They then forced open the offices of the principal, vice-principal and staff and stole various items including a computer, a printer, diskettes, printer ribbons, a vacuum cleaner, six cassette recorders and six wrist watches. The total value of the items came up to $5,660.

3 The appellant and Zulkifli were spotted on the school compound by a passer-by who informed the police. The police arrived at the school and arrested the appellant and Zulkifli inside the school building at 12.44 am. The stolen items were recovered at the scene.

4 Before the Senior District Judge, counsel for the appellant in mitigation urged the court to make a probation order instead of ordering a custodial sentence...