Lee Cheong Ngan alias Lee Cheong Yuen v Public Prosecutor and Other Applications

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 May 2004
• Neutral Citation: [2004] SGHC 91
• Court: High Court (Singapore)
• Year: 2004
• Published date: 11 May 2004
• Plaintiff Counsel: Paul Fitzgerald (Stamford Law Corporation)
• Defendant Counsel: James Lee (Deputy Public Prosecutor)
• Subject Matter: Criminal Law,Statutory offences,Whether failure to comply with notice issued by the Building and Construction Authority is a strict liability offence,Whether defence of reasonable care available,Buildings and Common Property (Maintenance and Management) Act (Cap 30, 2000 Rev Ed) ss 4(1), (3),Criminal Procedure and Sentencing,Revision of proceedings,Adducing fresh evidence,Plea of guilt,Evidence of proceedings in the court below,Whether conditions of non-availability, relevance and reliability satisfied,Allegations against defence counsel and interpreter,Whether accused understood nature and consequences of plea
• Citation: [2004] SGHC 91

5 May 2004

Yong Pung How CJ:

1 These were four related applications arising from the same facts. In Criminal Revisions Nos 11 and 12 of 2004, Lee Cheong Ngan alias Lee Cheong Yuen (“Lee”) and Chiong Yen Bao (“Chiong”) sought to have their respective convictions set aside. In support of their applications for criminal revision, Lee and Chiong also requested for leave to introduce additional evidence, in Criminal Motions Nos 7 and 8 respectively. I allowed the criminal motions, but rejected the applications for criminal revision. I now give my reasons.

Background

2 Lee and Chiong are husband and wife, and joint owners of the premises at No 69 Toh Tuck Road (“the premises”). The property adjoining the rear of the premises is No 37 Toh Tuck Place. A brick retaining wall with an attached chain-link meshed fence lies near the boundary between the premises and No 37 Toh Tuck Place.

3 Between January and March 2001, officers from the Building and Construction Authority (“BCA”) visited the premises to inspect the retaining wall and fence. As they found the fence in a state of disrepair, the BCA wrote to Lee and Chiong on 24 March 2001, directing them to repair the fence by 14 April 2001.

4 On 6 July 2001, Phua Chee Sim (“Phua”), an officer attached to the Building Management Section of the BCA, carried out another inspection of the retaining wall and fence. As he was refused entry onto the premises, Phua had to examine the retaining wall and fence from No 37 Toh Tuck Place. He found a portion of the fence collapsed, with the remaining section in a state of dilapidation.

5 Phua then obtained a survey plan from the Singapore Land Registry, which confirmed that the retaining wall and fence were within the boundaries of the premises. The BCA accordingly issued a notice to Lee and Chiong on 20 July 2001 (“the notice”), under s 4(1) of the Buildings and Common Property (Maintenance and Management) Act (Cap 30, 2000 Rev Ed) (“the Act”). Section 4(1) provides that:

Where in the opinion of the Commissioner [of Buildings] any building or common property has not been kept or maintained in a state of good and serviceable repair or in a proper and clean condition, the Commissioner may, by notice in writing, require the owner within such period as may be specified in the notice to take such steps or carry out such repairs and maintenance as the Commissioner thinks fit.

6 The notice was served by registered post as prescribed under s 20(1)(b) of the Act, and directed both Lee and Chiong to repair the damaged fence at the back of the premises by 19 August 2001. The notice also stated that a failure to comply would constitute an offence under s 4(3) pf the Act, which is punishable with a fine not exceeding $5,000 and a further fine not exceeding $25 for every day that the offence is continued after conviction.

7 Lee Min Kwang (“Min Kwang”), a son of Lee and Chiong, subsequently wrote to the BCA on 15 August 2001, asking for more time to repair the fence. He explained that their neighbours at No 37 Toh Tuck Place had built a bird cage next to the fence, rendering it impossible to carry out the necessary rectification works. Crucially, he also acknowledged that a survey plan from the Singapore Land Registry showed that the retaining wall and fence were within the boundaries of the premises.

8 On 29 December 2001, Phua conducted another inspection of the retaining wall and fence, again from No 37 Toh Tuck Place. He discovered that Lee and Chiong had still not carried out any rectification work. As a result, two summonses were issued against Lee and Chiong respectively on 27 February 2002. Both charges in them read as follows:

You … are charged that you did fail to comply with the Notice … issued by the Commissioner of Buildings on 20 July 2001 under section 4(1) of the Buildings and Common Property (Maintenance and Management) Act, Chapter 30, requiring you to repair the damaged chain link fence at the rear of the premises at No. 69 Toh Tuck Road, Singapore by 19 August 2001 and you have thereby committed an offence punishable under section 4(3) of the said Act.

The proceedings below

9 Lee and Chiong appeared before the magistrate on 8 October 2002, but the hearing was adjourned for the parties to produce an agreed statement of facts (“Agreed SOF”). On 9 October 2002, the magistrate was informed that Lee and Chiong intended to plead guilty. The magistrate then stood down the hearing to allow their counsel, Mr Tan Cheng Yew (“Tan”), to explain the Agreed SOF and charges to them.

10 When the hearing resumed, the charge was read in Mandarin to Chiong, and in English to Lee. The interpreter informed the court that both were pleading guilty, and understood the nature and consequences of their pleas. The Agreed SOF was then read, and the interpreter notified the court that Lee and Chiong admitted to the facts contained therein. The magistrate accordingly convicted Lee and Chiong on the respective charges.

11 In mitigation, Lee and Chiong submitted, through Mr Tan, that the damage to the fence was caused by their neighbours at No 37 Toh Tuck Place. Also, they were both in their seventies, and had been confused when they first received the BCA’s notice, as they did not know if the retaining wall and fence fell within their premises.

12 After hearing the facts and taking into account every relevant mitigating factor, the magistrate sentenced Lee and Chiong to pay a fine of $900 each (in default nine days’ imprisonment). The fines were duly paid, yet Lee and Chiong still failed to carry out the required repairs. They were then charged on 17 October 2003 with a continuing offence under s 4(3) of the Act. On 15 March 2004, they filed these four applications to challenge their convictions on the earlier February 2002 charges. The later charges in October 2003 were not in issue before me.

The applications

13 Lee and Chiong both filed petitions for criminal revision, asking the High Court to exercise its revisionary powers pursuant to s 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) to set aside their convictions. They submitted that they had never intended to admit without qualification to the offences alleged against them, and had suffered serious injustice at the hearing before the magistrate.

14 To substantiate their cases for revision, Lee and Chiong also applied for leave to introduce new evidence. In Criminal Motion No 7 of 2004, Lee sought to admit his own affidavit, as well as that of his other son, Lee Wei Kwang (“Wei Kwang”). In Criminal Motion No 8 of 2004, Chiong sought to admit her own affidavit to assist her case.

The criminal motions

15 The revisionary powers of the High Court are governed by s 23 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and s 268(1) of the CPC. According to s 268(1) of the CPC, the High Court, in the exercise of its revisionary powers, may also take additional evidence in accordance with s 257(1) of the CPC, which provides that:

In dealing with any appeal under this Chapter the High Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a District Court or Magistrate’s Court. [emphasis added]

16 In deciding if the evidence sought to be adduced is “necessary”, the three conditions set out in Ladd v Marshall [1954] 1 WLR 1489 must be fulfilled:

(a) non-availability – it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial;

(b) relevance – the evidence must be such that, if given, it would probably have an important influence on the result of the case; and

(c) reliability – it must be apparently credible, although it need not be incontrovertible.

17 I adopted this framework in Juma’at bin Samad v PP [1993] 3 SLR 338, and have repeatedly affirmed its authority in cases such as Chan Chun Yee v PP [1998] 3 SLR 638, Tan Sai Tiang v PP [2000] 1 SLR 439 and most recently, in Annis bin Abdullah v PP [2004] 2 SLR 93.

18 In this case, the affidavits that the petitioners sought to adduce described their version of what transpired in the court below on 8 and 9 October 2002. It was apparent that, by the very nature of the evidence, the first condition was fulfilled, since this evidence obviously could not have been obtained at the proceedings below. The second condition was also clearly satisfied, as the evidence was highly relevant. Lee and Chiong based their cases for criminal revision on the main ground that their pleas of guilt below were invalid. In order to ascertain the legality of their pleas of guilt, and consequently, the soundness of their convictions, I had to consider evidence of the circumstances in which the pleas were taken.

19 The only real issue here was the apparent credibility of the additional evidence. Although untested assertions of events would generally not be admitted at this stage, I noted that the affidavits of Lee, Chiong and Wei Kwang were broadly consistent in the most material particulars. Bearing in mind that the evidence must only be apparently credible, and need not be incontrovertible, I found that the final condition was satisfied, but only by the barest of margins.

20 The deciding factor in this case was the high degree of relevance that this additional evidence had on Lee’s and Chiong’s petitions for criminal revision. They had to be allowed to put forward their version of events for me to ascertain the soundness of their convictions in the court below. Given the circumstances, the Deputy Public Prosecutor had no objection to the admission of the affidavits.

21 Of course, the fact that I agreed to admit the affidavits did not mean that I accepted their entire contents as the truth. The veracity of the allegations still had to be tested against the rest of the evidence. As all three affidavits came from interested parties, I was especially chary of accepting their evidence at face value. With this in...