Lim Daryl v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Terence Chua Seng Leng
• Judgment Date: 26 November 2002
• Neutral Citation: [2002] SGMC 22
• Year: 2002
• Published date: 19 September 2003
• Citation: [2002] SGMC 22
• Court: Magistrates' Court (Singapore)

Judgment

GROUNDS OF DECISION

The Appellant faced four charges, one under Section 292(a) read with Section 34 of the Penal Code and three charges under the Films Act, Chapter 107. The Prosecution proceeded with all charges. The 1st charge read as follows:

You, Daryl Lim, M/26 yrs NRIC No: S7504575-A are charged that you, on or about the 23^rd day of December 2001 at about 1.30 pm, at Katong Shopping Centre unit #02-21 located at 765 Mountbatten Rd, Singapore together with one Tan Kah Hoe, male 24 years and in the furtherance of the common intention of you both, did publicly exhibit 4048 video compnat discs inlays with obscene pictures and you have thereby committed an offence punishable under section 292(a) read with Section 34 of the Penal Code, Chapter 224.

2. The 2^nd charge read as follows:

You, Daryl Lim, Male 26 years, NRIC no: S7504575-A are charged that you on or about the 23^rd day of December 2001, at about 1.30 pm, at Katong Shopping Centre unit #02-21, located at 765 Mountbatten, Singapore together with one Tan Kah Hoe and in the furtherance of the common intention of you both, did contravene the provisions of Section 21(1)(b) of the Films Act, Chapter 107, to wit by attempting to distribute 9925 video compact discs and digital video discs containing 5137 uncensored films without valid certificates approving the exhibition of said video CDs and DVDs and you have thereby committed an offence punishable under Section 21(1)(b) of the said Act, read with Section 34 & Section 511 of the Penal Code, Chapter 224.

3. The 3^rd charge read as follows:

You, Daryl Lim, Male 26 Years, NRIC No: S7504575-A, are charged that you on or about the 23^rd day of December 2001, at about 1.30pm, at Katong Shopping Centre unit #02-21, located at 765 Mountbatten Rd, Singapore, together with one Tan Kah Hoe, male 24 years, in the furtherance of the common intention of you both did have in your possession 5174 video compact discs and digital video discs 4978 obscene films and having reasonable cause to believe such films to be obscene for the purpose of distribution and you have thereby committed an offence punishable under Section 29(3)(b) of the said Act read with Section 34 of the Penal Code, Chapter 224

4. The 4^th charge read as follows:

You, Daryl Lim, Male 26 Years, NRIC No: 7504575-A, are charged that you, on or about the 23^rd day of December 2001 at about 1.30pm, at Katong Shopping Centre unit #02-21, located at 765 Mountbatten Rd, Singapore, together with one Tan Kah Hoe male 24 years and in the furtherance of the common intention of you both, did carry on the business of distributing video compact discs and digital video discs containing films without a license which is a contravention of Section 6(1)(a) of the Films Act, Chapter 107, and punishable under Section 6(2) of the same Act read with Section 34 of the Penal Code, Chapter 224.

5. The Appellant claimed trial to the charges. At the end of trial, and upon hearing submissions from the Prosecution and Defence, the Appellant was convicted on all the charges.

The Prosecution Case

6. Three witnesses were called for the Prosecution. They were:

PW1 – SSgt Sheik Faisal

PW2 – Sgt Zulfikri Aman

PW3 – Ms Lee Ching

7. All witnesses gave evidence from the witness stand.

PW1’s evidence

8. On 23^rd December 2001, SSgt Sheik Faisal reported for duty with three other officer, all in plain clothes at about 12.00 pm at Marine Parade NPC. They were then instructed to perform an anti-illegal VCD selling operation at units #02-21 and #02-26 of Katong Shopping Centre. They arrived at the said location at about 1.00 pm.

9. Upon arriving at Katong Shopping Centre, they divided into two groups. SSgt Faisal, together with Sgt Zulfikri Aman, proceeded to unit #02-21. There, two commenced observation on the said unit. SSgt Faisal testified that from outside the unit he observed about 11 persons browsing through VCD jackets that were on display in the shop, which was named "G&G Service". He believed the 11 were customers.

10. SSgt Faisal also observed 2 persons communicating at the cash counter. One was sitting on a chair facing the cash register, which was on a table in front of him. SSgt Faisal identified this person as Daryl Lim as the accused in the dock. He was observed chatting with the other person, who was subsequently identified as the accomplice Tan Kah Hoe. He could not hear the subject of their conversation, nor did he see either of them browsing the displays.

11. During cross-examination, SSgt Faisal testified that the observation period was about five minutes. He said the accused was managing the cash register in the shop and Tan was looking at the other people browsing the VCDs. Although during the observation he did not observe any money changing hands nor see the accused touch the register, he distinguished the accused from the rest of the crowd because Tan was treating the accused very casually, and the accused was not browsing. According to SSgt Faisal, the accused did not leave the unit at any time.

12. Subsequently, he and Sgt Zulfikri entered the shop in order to browse through the VCD jackets on display. He noted that half of the jackets displayed pornographic material. SSgt Faisal then contacted Ms Lee Ching of the Films & Publications Department on his cellular phone. She was already on stand-by in the shopping centre itself. According to SSgt Faisal, she arrived in a minute's time.

13. While awaiting Ms Lee Ching, SSgt Faisal noticed the accused and a male Chinese person conducting an exchange - the accused handing over a VCD to the male Chinese upon receiving a $10 note. The accused then opened the drawer of the cash register and the note was placed inside. The male Chinese left the unit with the VCD. SSgt Faisal was about one or two metres away when the transaction occurred. He did not attempt to detain the male Chinese because he was still waiting for Ms Lee Ching and he was instructed not to take action against buyers. In the six-to-seven minutes the operation was concluded, SSgt Faisal said he did not notice any other transactions taking place, nor did he notice any one leave. It must be noted that although SSgt Faisal was cross-examined on this point, it was not put to him that this transaction did not take place.

14. When Ms Lee finally arrived, all three of them approached the accused and Tan. SSgt Faisal told both of them that he and Sgt Zulfikri were conducting a raid. After this announcement, the rest of the people in the shop left hurriedly. The accused looked stunned and asked SSgt Faisal to "give him a chance" in English.

15. According to SSgt Faisal, Ms Lee and himself then pulled down the roller shutters to the shop. Once securing the accused and Tan in the corner of the shop, they then checked and counted the VCDs. There were about 10,115 VCD jackets seized. SSgt Faisal also seized 3 film posters, a poster indicating the price of the VCDs, the cash register, cash amounting to about $1,200, a Canon caluclator and a blue pen,

16. The accused and Tan and the seized items were brought back to the station where a police report (Exhibit P5) was made by SSgt Faisal. The VCDs and DVDs were handed over to Ms Lee and the rest to the station Sergeant. The accused and Tan were handed over to the station Sergeant in the lockup.

PW2’s evidence

17. Sgt Zulfikiri Aman testified that on 23^rd December, he was with SSgt Faisal when they were supposed to raid unit #02-21. He observed the unit from a different position from SSgt Faisal. Sgt Zulfikri stated that the observation outside the shop was about five minutes, and during his observation he noticed the accused sitting behind the cash register which was placed near the entrance of the shop.

18. Sgt Zulfikri also testified that he saw Tan walking inside the shop talking to about 10-15 customers and once in a while Tan would approach the cash register and talk to the accused. He also observed a male Chinese approaching the cash register and converse with the accused but he did not observe any transaction. Sgt Zulkifri said that he was walking up and do, trying to cover any possible escape routes and trying not to spotted. He could not recall if the accused stepped out of the shop at any time.

19. Sgt Zufikri and Sgt Faisal then entered the shop to browse through the VCDs on display and found pornographic material. He did not notice what the accused was doing at that point in time nor did he notice if any customers left the unit. According to Sgt Zulfikri, the browsing took about 2 minutes. Following this, SSgt Faisal called up Ms Lee and told her that they were about to affect the arrest and she should come.

20. Sgt Zulfikri stated that then SSgt Faisal told him to affect the arrest. Both the officers approached both the accused and Tan together. The accused was told to stand up and move to the side and he complied. The accused pleaded to SSgt Faisal to give him a chance - the words being on the lines of, "One more chance, lah, Sir," or "One chance lah."

21. After the arrest, Ms Lee Ching arrived. When told in cross-examination that SSgt Faisal had testified that the arrest took place only after Ms Lee arrived, Sgt Zulkifri said that to him, "this is how the thing happened" and he could not really remember.

22. Sgt Zulfikiri said that he then made sure everyone was out of the shop and they closed the roller shutters. Following this, the VCDs were counted and then handed over to Ms Lee. The accused and Tan were brought back to the station.

PW3’s evidence

23. On 23^rd December, Ms Lee was asked to stand by at Katong Shopping Centre for a VCD raid. She was then subsequently called by SSgt Faisal to go to unit #02-21. VCDs were found in the shop unit and then brought back to her office at the Board of Film Censors for classification. She then made a report (Exhibit P6).

24. Ms Lee testified that when she went to #02-21 she asked Tan Kah Hoe...