Lee Teck Wah and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 16 March 1998
• Date: 16 March 1998
• Docket Number: Criminal Appeal No 18 of 1997
• Court: Court of Appeal (Singapore)

Lee Teck Wah and another

Plaintiff

and

Public Prosecutor

Defendant

[1998] SGCA 19

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 18 of 1997

Court of Appeal

Criminal Procedure and Sentencing–Appeal–Plea of guilty–Trial judge rejected accused's plea of guilty on ground that it was equivocal despite accused admitting to facts material to charge against him–Whether trial judge right to reject plea of guilty–Criminal Procedure and Sentencing–Joint trial–Co-accused electing to plead guilty–Whether any prejudice to appellants if jointly tried with another co-accused pleading guilty–Whether necessary to order separate trials if such co-accused elected to give no testimony–Sections 122 (3) and 176 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Criminal Procedure and Sentencing–Joint trial–Election by one accused not to give evidence–Whether election related to his own defence or to giving evidence for co-accused–Whether appellants deprived of evidence of silent co-accused

The first and second appellants (“Lee” and “Rahim”) were jointly charged with abetting one Hassan by each engaging with him in a conspiracy to traffic in diamorphine. Hassan was charged with trafficking in the diamorphine by transportation. The Prosecution's case was that Hassan conspired with Rahim for Rahim to finance the drug deal; and conspired with Lee for Lee to supply the drugs. In furtherance of such conspiracy Rahim gave certain $10,000 notes to Hassan who in turn used them to pay Lee for the drugs, in whose possession those notes were found upon his arrest.

Hassan pleaded guilty to the charge against him at the commencement of the trial, but the plea was rejected. Hassan maintained his plea of guilty at the close of the Prosecution's case, but only accepted the evidence relating to him while seeking to exculpate the appellants. The trial judge rejected his plea and called for his defence, but Hassan elected to remain silent and did not adduce any evidence in his defence.

Lee and Rahim claimed trial. Without success, their counsel applied at the outset for their trials to be severed from that of Hassan and again at the close of the Prosecution's case, arguing that the appellants were prejudiced as they could not call Hassan to testify on their behalf.

All three accused were convicted. Lee and Rahim appealed.

Held, dismissing the appeals:

(1) It was clear that the appellants and Hassan had been charged with offences which were proximate in time, unified in purpose and continuous in action. Thus, they could be jointly tried under s 176 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). But the question arose whether the appeallants were prejudiced by their trial being heard jointly with Hassan's given that an accused person could not be compelled to give evidence for his co-accused in the same joint trial under s 122 (3) of the Evidence Act (Cap 97, 1997 Rev Ed): at [26] to [28].

(2) Hassan elected not to give evidence with reference to his own defence. Such an election did not amount to an election not to give evidence for one's co-accused. Although not compellable to do so, Hassan's statements from the dock seeking to exculpate the appellants indicated he would have been prepared to give evidence as their witness, if called. But he was not. Thus, the appellants were not actually deprived of Hassan's evidence: at [33], [39] and [40].

(3) Hassan's qualified plea of guilty was rightfully rejected by the trial judge as it was somewhat equivocal: at [41].

DPP v Ping Lin [1976] AC 574 (folld)

Goh Ah San v R [1938] MLJ 95 (distd)

Liew Sang v PP [1948] MLJ 83 (distd)

Loh Shak Mow v PP [1985-1986] SLR (R) 875; [1986] SLR 358 (folld)

Panya Martmontree v PP [1995] 2 SLR (R) 806; [1995] 3 SLR 341 (folld)

PP v Loh Ang Sing [1965] 2 MLJ 129 (folld)

Rv Harbach (1973) 6 SASR 427 (distd)

R v Payne (1872) LR 1 CCR 349 (refd)

R v Richardson (1967) 51 Cr App R 381 (distd)

Tan Boon Tat v PP [1992] 1 SLR (R) 698; [1992] 2 SLR 1 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 122 (3), 176 (consd);s 121, 122 (6)

Evidence (Amendment) Act 1976 (No 11 of 1976)

Evidence Act (Cap 97, 1997 Rev Ed) s 122 (3)

Evidence Ordinance (Cap 13, 1936 Ed) s 121 (3)

Misuse of Drugs Act (Cap 185, 1997 Rev Ed) ss 5, 12, 33

Criminal Procedure Code (Cap 6, 1935 Ed) (FMS) s 191

Evidence Enactment (Cap 10, 1935 Ed) (FMS) s 120 (3)

Selva K Naidu and Goh Lam Chuan ( Palakrishnan and Partners) for the first appellant

Ramesh Tiwary and Ranjit Singh (Leo Fernando) for the second appellant

Anandan Bala (Deputy Public Prosecutor) for the respondent.

L P Thean JA

(delivering the grounds of judgment of the court):

1 The appellants, Lee Teck Wah (“Lee”) and Abdul Rahim bin Ibrahim (“Rahim”), together with one Mohamed Hassan bin Abdul Kader (“Hassan”), were jointly tried before the High Court on charges under the Misuse of Drugs Act (Cap 185, 1997 Ed) (“the Act”). Hassan was charged with trafficking in a quantity of not less than 585.1g of diamorphine on 11 March 1997 by transporting it from River View Hotel at Havelock Road to the junction of Tampines Avenue 2 and Tampines Street 23, an offence under s 5 (1) (a) and punishable under s 33 of the Act. Lee and Rahim were jointly charged with abetting Hassan by each engaging with Hassan in a conspiracy to traffic in that quantity of diamorphine, such conspiracy being alleged to have been committed between 6 March 1997 and 11 March 1997, an offence under s 5 (1) (a) read with s 12 and punishable under s 33 of the Act.

2 At the commencement of the trial, Hassan pleaded guilty to the charge against him but the High Court rejected his plea and directed the Prosecution to prove its case against him. At the close of the case for the Prosecution, Hassan was asked by the trial judge whether he still wished to maintain his plea of guilty and he replied in the affirmative. He was then reminded of the consequence of his plea and was asked whether he accepted the evidence that had been adduced. He said he accepted the evidence relating to him only, but that there was some evidence which was not true, and he went on to make statements which sought to exculpate Lee and Rahim. The learned judge in the end did not accept his plea of guilty on the ground that it was equivocal and called upon him to enter on his defence. He elected to remain silent and did not adduce any evidence in his defence. Lee and Rahim claimed trial, and when their defence was called, they gave evidence in their defence. At the conclusion of the trial, all the three accused were found guilty and were convicted of the charges against them and were sentenced to death. Only Lee and Rahim appealed against their convictions and sentences. We dismissed their appeals and now give our reasons.

The prosecution case

3 The evidence adduced by the Prosecution was as follows. On 11 March 1997, a team of officers from the Central Narcotics Bureau (“CNB”) under the direction of Insp Paul Ang kept a surveillance on Hassan. After trailing him from his residence at Block 90, Pipit Road, #07-137, SSgt Lek Siang Heng, NO Ler Puay Soon, Sgt Lim Puay Boon, NO David Ng and NO Wee Thiam Poh observed Hassan walking towards the driveway of River View Hotel at Havelock Road. He was not carrying anything. That was about 8.30am. Staff Sergeant Lek and NO Ler Puay Soon also observed that Lee appeared at the driveway of the hotel and tapped Hassan on the shoulder. The two of them engaged in a conversation and they walked into the hotel. NO Ler then saw Hassan and Lee entering the exit at the hotel lobby leading to the basement carpark. About five minutes later, they were seen leaving the hotel in a motorcar bearing the number WEM 6609 with Lee as the driver. But at the driveway, Hassan alighted from the car with a black travelling bag and walked towards the taxi stand at the hotel entrance.

4 At the taxi stand, Hassan approached the taxi bearing the number SHA 7587 C. He knocked on the boot of the taxi and when it was opened, he placed the black travelling bag into the boot. He then boarded the taxi and directed the taxi driver to drive to Tampines. The taxi was trailed by CNB officers. At the junction of Tampines Avenue 2 and Tampines Street 23, the taxi was intercepted by the CNB officers. Hassan was arrested and the bag was recovered from the boot. He initially resisted the arrest but was eventually subdued and handcuffed. The bag was found to contain 20 wrapped packages. The contents of these packages were subsequently analysed and found to contain not less than 581.5g of diamorphine, the subject matter of the charge against him.

5 After his arrest, Hassan led the CNB officers to a flat rented by him at Block 486B Tampines Avenue 9 #05-56, where eight sachets of vegetable matter and drug trafficking paraphernalia were recovered. Three digital weighing scales, four stacks of new plastic bags, empty plastic sachets, a stack of white envelopes and candles, and a box of iron weights were seized. The digital scales were stained with diamorphine. His residence at Block 90, Pipit Road, #07-137 was also searched by CNB officers and they recovered a POSB account book bearing the account number 183-09655-9 in the name of Rahim (the second appellant). The Prosecution led evidence to show that the plastic sachet of vegetable matter contained 38.4g of cannabis and 28.5g of cannabis mixture.

Lee's arrest

6 Lee was arrested in the same morning at about 11.05am at the hotel's basement carpark. A search was conducted on him and, among other things, four $10,000 notes bearing serial numbers AA 166598, AA 179522, AA 071836 and AA 216237 were found on him. When Lee was arrested, he was questioned by Insp Chow Toong Chee regarding the large sum of money, and he replied that he had come to Singapore to collect the money. The Defence did not challenge the making of this statement.

7 Lee after his arrest...