Krishna Jayaram v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 27 June 1989
• Neutral Citation: [1989] SGHC 60
• Docket Number: Magistrate's Appeal No 228 of 1984
• Date: 27 June 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Sherrard QC, R Pala Krishnan and Amarjit Singh (Pala Krishnan & Partners)
• Citation: [1989] SGHC 60
• Defendant Counsel: Sowaran Singh and Ahmad Zakaria
• Court: High Court (Singapore)
• Subject Matter: Corruption,Grounds of decision of trial judge not dealing with raised at trial,Factors to be considered,Whether sentence manifestly excessive,Sentencing,Criminal Procedure and Sentencing,Appeal,Whether judgment affected,What appellate court entitled to do

Cur Adv Vult

The appellant was charged with 24 counts of the offence of corruption under s 6(a) of the Prevention of Corruption Act (Cap 241) (the Act). At the end of a trial which lasted 26 days, the appellant was convicted. He was sentenced to varying periods of imprisonment (from two months to 12 months), with three sentences of 12 months each ordered to run consecutively and the others concurrently with the said three sentences. In other words, he was sentenced to serve a total of three years` imprisonment.

The charges fall into four groups. The first group, consisting of 16 charges, involved one Ling Tian Song of Asiaweld Shipbuilding (Pte) Ltd (Asiaweld Shipbuilding). The second group consisting of five charges involved one Firoz Khan of Aisha (Pte) Ltd. The third group consisting of two charges involved one Cheo Boon Teong. The last charge involved one Haji Moosa. At the material times the appellant was an assistant manager at the Banque Nationale de Paris, Singapore (BNP).

This appeal is against both conviction and sentence on all the 24 charges. Section 261 of the Criminal Procedure Code (Cap 68) provides that a conviction shall not be reversed or set aside unless it is shown to be wrong in law or is against the weight of the evidence and in the case of a sentence shall not be disturbed unless it is manifestly excessive or inadequate in the circumstances of the case.

Mr Sherrard, counsel for the appellant, has argued the appeal on the basis of the four groupings identified above. But there is one charge in the first and second groups which requires some special consideration because it involved the receipt by the appellant of a commission on account of the sale of a life policy. One general criticism of Mr Sherrard`s in relation to the decision of the learned district judge on all the charges is that the district judge has failed to carefully weigh the evidence presented to the court. He complained that the grounds of decision are too brief and wholly inadequate and do not address the issues raised by the defence, let alone adequately. He said it is not known which of the evidence of the witnesses the district judge accepted or rejected in whole or in part or why. He argued that the evidence of the prosecution witnesses, who had been discredited, was accepted without any good reasons being offered. Even the documentary evidence was far from satisfactory or consistent. Accordingly, he contended that the convictions are against the weight of the evidence. I do not wish at this stage to make any comments on these general remarks of counsel except to say that the fact that the grounds of decision are not as elaborate as the appellant`s counsel would like them to be (22 pages in double spacing in all) does not necessarily mean that the district judge did not carefully consider the evidence presented at the trial. Even Mr Sherrard conceded that a district judge need not and is not expected to deal with every issue or matter raised at the trial. But he argued that the grounds of decision must be able to withstand fair scrutiny and not be deficient as to matters of significance in relation to the issues of fact and/or law arising.

The second general criticism of Mr Sherrard`s is that the district judge has failed to consider the evidence of each charge separately and has allowed cross-infection to take place. He relied on two paragraphs on p 19 of the grounds of decision (p 738 of the record) to say that. But I think the two paragraphs must be viewed in the context. All that the district judge really tried to say there was to disagree with counsel on the value of the documentary evidence. Further, the way in which the district judge went about dealing with all the charges was in line with the manner in which counsel for the appellant made his submission in the court below, ie on the basis of the four groups. The district judge dealt with each group separately. In my opinion there was no question of cross-infection.

The third general point raised by counsel is that this case involved accomplice evidence, and that ordinarily an accomplice is presumed to be unworthy of credit. This point is expressly covered by s 116, illus (b) of the Evidence Act which provides that `the court may presume - (b) that an accomplice is unworthy of credit and his evidence needs to be treated with caution`. Further, s 24 of the Act provides that notwithstanding any rule of law or written law to the contrary, no witness shall be presumed to be unworthy of credit by reason only of any payment by him of any gratification to an agent. The application of both these two provisions is for the court to decide on the facts of each case.

Case law has clearly established that on a question of fact the circumstances under which an appellate court may disturb a finding of fact is limited. The Privy Council in the case Caldeira v Gray [1936] MLJ 137 said at p 541:

... their Lordships recognize that they cannot, merely because the question is one of fact, and because it has been decided in one way by the learned district judge, abdicate their duty to review his decision and to reverse it, if they deem it to be wrong. Nonetheless, the functions of a court of appeal, when dealing with a question of fact and a question of fact, moreover, in which, as here, questions of credibility are involved, are limited in their character and scope.

In the later case of Watt v Thomas [1941] AC 484 Lord Thankerton declared the principles thus at pp 487-488:

I do not find it necessary to review the many decisions of this House ... the principle ... may be stated thus:

1 Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court, which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the district judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the district judge`s conclusion.

2 The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

3 The appellate court, either because the reasons given by the district judge are not satisfactory, or because it unmistakeably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.

First group of charges

Under this group there are 16 charges. Fifteen of them involved sums of money allegedly given by Ling Tian Song, managing director of Asiaweld Shipbuilding (Ling), to the appellant between 23 May 1980 and 5 October 1982, as a reward for his granting overdraft facilities to Asiaweld Shipbuilding in excess of the authorized limit under its account with BNP. The sums given were all by cash cheques, of which on 12 occasions were for the sum of $2,000 and one occasion each for the sums of $2,800, $1,500 and $1,000.

The evidence led by the prosecution consisted mainly of the oral evidence of Ling and certain documentary evidence including the 15 cash cheques and the cheque stubs. Ling said that he gave the moneys to the appellant because of the help which the latter had given his company in relation to the overdraft facilities granted by BNP.

The main points raised by counsel for the appellant against his conviction on the 15 charges are broadly the following:

(i) The overdraft which the appellant allowed Ling to draw was in each instance within the discretionary limit granted to the appellant under the general direction given by BNP to its commercial officers. The appellant had not granted overdraft which was beyond his general authority.

(ii) Ling was not able to explain satisfactorily why most often the sum given was for $2,000 and why on three occasions the sums were different.

(iii) Ling`s evidence was that he made monthly payments to the appellant. If so why was it that within a short period in July 1981, and also in June 1982, three sums of $2,000 were given and why on the same day on 12 June 1982 two identical sums of $2,000 were paid.

(iv) The district judge failed to attach significance to the fact that two of the cheques were in fact paid into the account of a limited company, Grand Classics (Pte) Ltd.

(v) The documentary evidence by way of the payment vouchers and the cheque stubs, when viewed together with the cash book and the oral evidence of Yeo Eng Hoon (PW 14), who provided management services to Asiaweld Shipbuilding, was clearly of doubtful veracity.

(vi) Not all the payment vouchers/cheque stubs referred to the appellant. In some instances, there were inconsistencies between the payment vouchers and cheque stubs as to what those payments were for.

(vii) One payment voucher (exh P82) which was for a sum of $2,000 indicated that the sum was paid to `Choo Ling Engineering Works`.

(viii) Ling said that he did not think it was wrong to give money to the appellant; if so, why did he make so many attempts in the cheque stubs and payment vouchers to hide that fact.

(ix) Ling said that through the introduction of the appellant he came to know one Ramesh from whom he got a loan of $200,000 (at 3% interest) in order to reduce Asiaweld Shipbuilding`s overdraft at BNP and, as part of the arrangement to repay Ramesh, he gave ten post-dated cheques each of $26,000 to Ramesh. The evidence showed that only three cheques had been debited against Asiaweld Shipbuilding`s account. Counsel asked what happened to the other seven cheques? Counsel submitted that Ling`s evidence on this loan of $200,000 from...