Lim Hong Liang v PP

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 26 August 2020
• Court: High Court (Singapore)
• Docket Number: Criminal Motion No 26 of 2020
• Date: 26 August 2020

Lim Hong Liang

and

Public Prosecutor

[2020] SGHC 175

Aedit Abdullah J

Criminal Motion No 26 of 2020

High Court

Criminal Procedure and Sentencing — Appeal — Adducing fresh evidence — Disclosable material not disclosed by Prosecution until after appeal against conviction filed — Applicability of Ladd v Marshall requirements

Criminal Procedure and Sentencing — Disclosure — Prosecution failing to disclose material — Consequences of Prosecution's non-disclosure — Ambit of Prosecution's common law duty to disclose — Whether statement which Prosecution failed to disclose needed to satisfy statutory requirements for admissibility before being placed before court — Section 259(1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Held, allowing the criminal motion:

(1) In so far as a statement which the Prosecution had previously failed to disclose was to be used for indicating a possible breach of disclosure obligations and the consequences that should flow from such a breach, it should be placed before the court. However, the statement could not be used as evidence of the truth of its contents or in any other way as part of the substantive defence to rebut the Prosecution's case without first being properly admitted into evidence by the Defence: at [16].

(2) Breach of a party's disclosure obligations would give rise to a number of potential consequences. The first potential consequence of non-disclosure was a finding that there had been non-disclosure of such a degree that the conviction was rendered unsafe. In order to support such a finding, the Defence could rely on the circumstances surrounding the non-disclosure to indicate misconduct or suppression such as to cast doubt on the integrity of the prosecution process and on the evidence presented at trial which led to the challenged conviction. Where the Defence was merely relying on the fact of non-disclosure to show misconduct by the Prosecution, the inadmissibility or otherwise of the undisclosed evidence was not material and did not need to be addressed. However, if the Defence was relying on inferences from the undisclosed evidence to show that the offence was not committed by the accused, that would be relying on the undisclosed evidence as evidence as to the commission of the offence, and the requirements governing the admissibility of evidence had to be satisfied: at [24].

(3) The second possible consequence was that the non-disclosed evidence, upon being admitted, showed that the Prosecution's case was not in fact made out beyond a reasonable doubt. It was in respect of this that the requirements in Ladd v Marshall[1954] 1 WLR 1489 would apply. In so far as the Defence sought to use the undisclosed evidence as evidence showing that the Prosecution's case was not made out beyond a reasonable doubt, that would once again require admissibility to be established: at [25] and [26].

(4) The third potential consequence of the non-disclosure of material evidence was the drawing of an adverse inference against the non-disclosing party. In determining whether an adverse inference was warranted, it might be appropriate to look at the non-disclosed document without treating it as evidence of its contents. This was so because the inquiry was as to whether the maker of the document should have been called to give evidence, and the reasons which might explain his not having been thus called. As the role of the contents of the statement would vary from case to case, whether an inference should be drawn would also vary: at [28].

(5) The motion was allowed given that the Applicant sought to convince the court that the non-disclosure was of such a degree or nature that it rendered the conviction unsafe, and/or that an adverse inference should be drawn for the non-disclosure. However, the statement could not be relied on for the truth of its contents, as it could not be admitted at present without the appropriate application: at [29].

[Observation: If there was any doubt about the potential relevance or impact of material, it should be disclosed. This had been consistently reiterated by the courts. There might be various reasons why a statement was held back, some of which might be thought to go to legitimate litigation strategy. But, as had previously been observed, prosecutors were ministers of justice, meaning that wider considerations were paramount even at the expense of obtaining a conviction. Litigation strategy had to give way to those considerations: at [30] and [31].]

Case(s) referred to

Beh Chai Hock v PP [1996] 3 SLR(R) 112; [1996] 3 SLR 495 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (folld)

Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984 (folld)

PP v Wee Teong Boo [2020] 2 SLR 533 (folld)

Facts

The applicant was charged with conspiracy to voluntarily cause grievous hurt by means of an instrument for stabbing or cutting, contrary to s 326 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) and was convicted after trial in the State Courts. He was sentenced to six years' imprisonment. The applicant appealed against both his conviction and sentence (“the Appeal”). This criminal motion was an application by the applicant to have a statement placed before the court for its consideration in the Appeal.

This application related to a statement which had been given by one Edwin or “San Mao”, who was not called as a witness at trial. One of the applicant's alleged conspirators, Lim De Mai Ron, had said in his statement that Edwin would support his testimony that the applicant was involved in the conspiracy. The trial court had declined to order that the statement be given to the Defence.

At the hearing of the Appeal on 20 January 2020, the Prosecution resisted the adducing of Edwin's statement. It argued that the statement was likely to have implicated the applicant, and in any event would not have led to a real line of inquiry for the Defence to pursue. In short, the Prosecution's position was that the statement did not meet the criteria for disclosure established in Muhammad bin Kadar v PP[2011] 3 SLR 1205 (“Kadar”).

In April 2020, before judgment in the Appeal was given, the applicant sought to make further arguments in light of the decision of the Court of Appeal in Muhammad Nabill bin Mohd Fuad v PP[2020] 1 SLR 984 (“Nabill”).

In the meantime, the Prosecution concluded and communicated that the statement was in fact disclosable under the disclosure regime in Nabill, and ought to have been disclosed under the Kadar disclosure obligations. However, the Prosecution argued that the statement could not be shown to the court until after the requirements set out at s 259(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) had been complied with. The applicant disagreed, and filed this criminal motion.

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