Kreetharan s/o Kathireson v Public Prosecutor and other matters

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 21 September 2020
• Neutral Citation: [2020] SGCA 91
• Plaintiff Counsel: The applicants in person
• Date: 21 September 2020
• Docket Number: Criminal Motions Nos 15 to 17 of 2020
• Hearing Date: 07 September 2020
• Subject Matter: Offences,Criminal Procedure and Sentencing,Criminal Law,Property,Criminal references,Criminal conspiracy,Complicity,Cheating
• Published date: 24 September 2020
• Defendant Counsel: Grace Lim (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 91
• Year: 2020

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

The applicants, Kreetharan s/o Kathireson (“B1”), Madavakhandam s/o Panjanathan (“B3”) and Sivakumar s/o Israve (“B4”), were each convicted of four charges for engaging in a conspiracy to cheat punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) read with s 109 of the same Act. B3 also faced an additional charge of voluntarily causing hurt, punishable under s 323 of the Penal Code (“the s 323 charge”). After being convicted of these charges in the District Court (see Public Prosecutor v Kreetharan s/o Kathireson and others [2019] SGDC 232 (“the GD”)), they filed appeals against the convictions and sentences imposed. These appeals were dismissed by the High Court judge.

The applicants then sought, by way of the present criminal motions, CA/CM 15/2020, CA/CM 16/2020 and CA/CM 17/2020 (“the applications”), orders that the “[c]onviction on the charges be overturned or in the alternative, the sentences be reduced”. They confirmed at a Case Management Conference on 25 June 2020 (“the CMC”) that the applications sought, first, to “reopen” their appeals in the High Court. We understood this to mean that they sought to review the decision of the High Court on their appeals pursuant to Division 1B of Part XX of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). Second, they indicated that the applications were made to refer questions of law of public interest to the Court of Appeal under s 397 of the CPC.

Having carefully considered the evidence and the applicants’ submissions, including those tendered by B1 and B3 just prior to the hearing, it was apparent to us that the applications were wholly without basis and were instead thinly veiled attempts to challenge the findings of fact made by the courts below. This was nothing short of an abuse of process of the court and we accordingly dismissed the applications. We now provide the detailed grounds for our decision.

Background facts

The applicants were tried along with another co-accused person, Narenthiran s/o Kathireson (“B2”), who faced four similar conspiracy to cheat charges, but was acquitted of the said charges following the trial. References to B2 were thereafter deleted from the cheating charges against the applicants, who were then convicted of the amended charges (see the GD at [7]).

The amended charges alleged that on 30 April 2017, the applicants had engaged in a conspiracy to cheat four individuals (collectively, “the victims”) and that pursuant to this conspiracy, Miah Sohel (“V1”) and Afsari Mohammad Malek (“V2”) had been deceived into believing that the applicants were police officers, and Hossain Mohommad Amir (“V3”) and Hossain Jalal (“V4”) had been deceived into believing that the applicants were personnel from the Criminal Investigation Department (“CID”). It was alleged that the applicants had known this to be false, and, that by such “manner of deception”, B1 and B4 had dishonestly induced the victims to deliver to B1 a total of S$18,115 in cash and six mobile phones. B3 was also charged with having voluntarily caused hurt to V3 by punching him on the face and the abdomen.

The applicants claimed that they had approached the victims because B1 had been told that V1 and V3 had been selling false safety certificates allegedly issued by A Star Safety Centre Pte Ltd (“A Star”), a company which B1 operated. In this regard, the applicants’ position was that B1 had previously reported other individuals, including one “Sufon” to the police for selling fake safety certificates. The applicants denied having told the victims they were police officers or CID personnel and argued instead that the victims had followed them back to B1’s office (“the Office”) because they knew that they were “in the wrong”. They denied taking money from the victims and claimed that V1, V2 and V3 had handed over their phones as it had been agreed that the applicants would delete their business contacts from the victims’ phones, in exchange for not reporting the victims to the police.

In convicting the applicants of the cheating charges, the trial judge found the victims to be internally consistent in their evidence and to have corroborated each other on material matters (see the GD at [115]). In particular, the trial judge observed that the victims had consistently rejected the applicants’ accounts that they had been asked and had agreed to leave their phones behind so that the contacts and contents of their phones could be deleted, and had denied having been involved in the selling of fake safety certificates (see the GD at [119]). While the applicants took issue with the fact that the money which they had allegedly received from the victims as a result of cheating them was not recovered, which their counsel argued cast doubt on the victims’ accounts, the trial judge noted that the Office was not searched immediately after the incident, and that a mini-mart, which was owned by B1’s family and situated a short distance away from the Office, was not searched. The accused persons had travelled between the Office and the mini-mart on the date of the incident. While B1 and B2 were arrested on 30 April 2017, B3 and B4 were not arrested until after 30 April 2017 (see the GD at [128]).

The trial judge observed that the victims’ evidence was also corroborated by other witnesses as well as by external evidence. For instance, the prosecution adduced a statement from Jahangir, an employee of B1, which stated that one of the victims had told him that B1 had taken S$10,000 from him, and that Jahangir had told B1 to return the money, albeit to no avail. The trial judge considered that Jahangir’s statement should be given full weight despite the fact that he did not give evidence since he would only have known about S$10,000 being taken from V3 if this had been told to him by the latter (see the GD at [131]).

In contrast, the trial judge held that the applicants’ evidence was largely illogical, unsubstantiated and quite incredible (see the GD at [148]). B1’s story about having received a tip-off that V1 and V3 were selling fake certificates on the date of the incident was unbelievable. Further, B1’s explanation as to why he had asked the victims to go to the Office, their willingness to do so, and B1’s account as to why he had “retained” the victims’ handphones made no sense (see the GD at [149]–[151]). The applicants’ assertions were also uncorroborated and contradicted by objective evidence (see the GD at [155]). Finally, the trial judge held that there were material discrepancies in the applicants’ evidence in court, the account given in their statements, and their Case for the Defence, some of which related to material matters (see the GD at [160]). For the above reasons, the trial judge convicted the applicants on all the cheating charges.

On the charge of voluntarily causing hurt against B3, the trial judge found V3’s evidence to be credible, convincing, clear and internally consistent. V3 was also found to be a forthcoming witness whose testimony was supported by that of Mr Victor Kuah (“Mr Kuah”), who was an independent eyewitness to the assault (see the GD at [165]–[170]). B1’s claim that V3 had grabbed his arm and his pouch when they were outside the Office made no sense if, as B1 claimed, V3 had amicably surrendered his phone to him in exchange for B1’s agreement to not file a police report (see the GD at [172]). B1’s and B3’s evidence were also contradictory. The trial judge therefore convicted B3 on the charge for voluntarily causing hurt (see the GD at [176]).

The applicants were each sentenced to a global term of 14 months’ imprisonment for the four cheating charges. B3 was sentenced to an additional 2 weeks’ imprisonment for the s 323 charge, making a total of 14 months and 2 weeks’ imprisonment (see the GD at [200]). The Judge also made compensation orders, which are summarised at [9] of the GD.

The applicants then filed an appeal against the convictions and sentences imposed. Before the High Court, they sought to challenge the findings of fact made by the trial judge. They argued that the victims should not be believed as (a) their evidence was internally and externally inconsistent; (b) they had been evasive and/or lied and/or embellished their evidence and had reason to collude against the applicants; and (c) there was no corroborative evidence to plug the weaknesses in the victims’ testimonies. They argued that, in contrast, the applicants’ testimonies were consistent and amply supported by external evidence, and that they had therefore adduced enough evidence to raise a reasonable doubt. In an oral judgment, the High Court dismissed the appeals against both conviction and sentence.

Our decision

We turn now to set out our decision with respect to the applications, considering them both as applications for the High Court’s decision to be reviewed and as applications for leave to refer questions of law of public interest to this court, respectively.

Review application

It is apparent that in so far as the applications were brought to review the High Court’s decision, they fail in limine. Under s 394H(1) of the CPC, an applicant must first obtain leave from the appellate court before making a review application. Pertinently, the court which exercised its appellate jurisdiction in the present case, and whose decision is to be reviewed, was the High Court (see s 373 of the CPC). Any application for leave to bring a review application should therefore have been made to the High Court and not the Court of Appeal. To be clear, while s 394I(7)(a) of the CPC permits the Court of Appeal to hear a review application made to the High Court in respect of an earlier decision of the High Court, this does not detract from the fact that the application, both for leave and for review, must first be made to the relevant...