Lim Hong Liang v PP

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 04 May 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9111 of 2019/01

Lim Hong Liang

and

Public Prosecutor

[2021] SGHC 106

Aedit Abdullah J

Magistrate's Appeal No 9111 of 2019/01

General Division of the High Court

Criminal Procedure and Sentencing — Disclosure — Prosecution failing to disclose witness statement in breach of its disclosure obligations —Whether conviction ought to be overturned as result of Prosecution's breach of its disclosure obligations

Held, ordering a retrial before a different district judge:

(1) The breach of the various disclosure obligations laid down and applied in the trilogy of cases in Kadar, Nabill and PP v Wee Teong Boo[2020] 2 SLR 533 were compendiously referred to as the “Kadar breach”. While there might be Kadar breaches that should lead to an acquittal, a Kadar breach on its own was not a “poison pill” that automatically caused a conviction to be overturned; there had to be material irregularity that occasioned a failure of justice to justify an acquittal: at [17] and [21].

(2) In determining the consequences of a Kadar breach, the first inquiry was whether the Kadar breach should lead to an acquittal or other outcomes such as a retrial. Upon determining the outcome that ought to have flowed from the Kadar breach, the second inquiry concentrated on whether the court had the power to bring about that outcome: at [24].

(3) In deciding whether a Kadar breach should lead to an acquittal or other outcomes such as a retrial, the court should assess a number of factors including, but probably not limited to: (a) the effect of the breach on the evidence against the accused; (b) how the breach prejudiced the accused; (c) whether steps could be, or had been, taken to remedy the prejudice caused; and (d) the causes of the breach, including the conduct of the Prosecution. A balancing exercise weighing these specific factors as well as the broader objectives of the administration of justice, including certainty and fairness, had to be undertaken. There had to be fairness not only to the accused, but also to the victims, especially when the charge was serious. The examination of the various factors under the first inquiry would not generally include any punitive or disciplinary element as against the Prosecution: at [22] and [36].

(4) An important consideration was how the non-disclosure affected the rest of the evidence, and consequently, whether the verdict below was supported. Where the non-disclosure was of an important piece of evidence that clearly or even strongly pointed towards an acquittal, then it was clear that the conviction was unsafe, provided that the evidence was clearly admissible as well. But in many instances, it might be unclear whether the non-disclosed evidence would have such an effect. In such cases, the conviction could not be said to be unsafe on the surface, and further deliberation was called for, rather than an immediate acquittal. That said, in seeking a reversal of conviction, it was not necessary to demonstrate that the disclosure would have led to an acquittal in the court proceedings below: at [28] and [31].

(5) Edwin's Statement plainly contradicted Ron Lim's evidence. The Kadar breach affected the finding of whether the appellant did speak to the primary prosecution witness, Ron Lim, on a specific occasion. The Prosecution pointed to other evidence that they contended supported the conviction, even if this specific occasion was disregarded. However, the strength of a large part of the other evidence relied on by the Prosecution, as well as the District Judge in his findings, centred on Ron Lim. His credit and credibility would thus be the centre of focus. The Kadar breach involving the non-disclosure of Edwin's Statement raised questions about the strength of Ron Lim's testimony and inferences from it. There were, aside from the Kadar breach, some concerns about Ron Lim's evidence. Ron Lim's credibility had to be re-assessed holistically in light of Edwin's Statement along with other evidence: at [39] to [42] and [44].

(6) Edwin's Statement should be put into evidence, or at least the relevant party would have to be put to the test of bringing it into evidence. If the party who ought to adduce it decided against doing so, the court would have to weigh what the outcome should be, and whether any adverse inference should be drawn against that party. If Edwin's Statement was adduced, then its truth would have to be tested. Ron Lim should be given the opportunity to respond to it. All of these considerations pointed to the need for a retrial or remittal: at [51].

(7) The appellant was prejudiced by the non-disclosure of Edwin's Statement as he was hampered in his decision on whether to call Edwin as a witness. This prejudice could be remedied by a retrial, which would afford the appellant a chance to consider how its case ought to be shaped and whether it ought to call Edwin as a witness, with the benefit of assessing Edwin's Statement along with all the other pieces of evidence. A retrial would not inflict further undue or unfair prejudice on the appellant: at [54] and [56].

(8) On the issue of whether the court could exercise its powers under s 390(1)(b)(i) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) to order a retrial, the applicable principles could be found in Beh Chai Hock v PP[1996] 3 SLR(R) 112 and AOF v PP[2012] 3 SLR 34. Applying these principles, it could not be said that the evidence at the original trial was insufficient or sufficient to justify a conviction. Various factors ought to be weighed to ascertain whether a retrial was warranted. In this regard, cost considerations could not override the other factors pointing to the desirability for a retrial, including the seriousness of the charge and the availability of evidence. While the matter would take additional time, there was no unfair or undue prejudice that would prevent the appellant from making out his case on a retrial. Rather, a retrial would restore to the Defence the opportunity to properly consider Edwin's Statement. Hence, a retrial was the most appropriate outcome: at [62] to [68].

(9) There ought to be a retrial of the entire case by a new district judge. As the original District Judge had already come to a conclusion about Edwin's Statement without any justification on the evidence, there would be issues about the fairness of sending this case back to the same District Judge for a retrial or a remittal. A remittal before a different district judge only on the narrow issue of Edwin's Statement alone would pose substantial difficulties as it went to the credibility of Ron Lim, requiring a holistic assessment of his statements and testimony: at [69] and [70].

Case(s) referred to

AOF v PP [2012] 3 SLR 34 (folld)

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

Dennis Reid v R [1980] AC 343 (folld)

Lim Hong Liang v PP [2020] 5 SLR 1015 (folld)

Mia Mukles v PP [2017] SGHC 252 (folld)

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)

R v Anne Rita Maguire [1992] QB 936; [1992] 94 Cr App R 133 (refd)

R v Garland [2017] 4 WLR 117 (refd)

R v Judith Theresa Ward [1993] 1 WLR 619 (refd)

R v Knaggs [2018] EWCA Crim 1863 (refd)

Sulaiman bin Jumari v PP [2021] 1 SLR 557 (refd)

Yeo Tse Soon v PP [1995] 3 MLJ 255 (refd)

Facts

The accused, Lim Hong Liang (“the appellant”), was charged with engaging in a conspiracy with several others to cause grievous hurt to Mr Joshua Koh Kian Yong (the “victim”) by means of an instrument for stabbing or cutting, pursuant to s 326 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). At the District Court, the district judge (“District Judge”) refused to order the disclosure of a police statement made by Mr Edwin Cheong Jia Fong (“Edwin”) on 13 May 2016 (“Edwin's Statement”). After a trial, the District Judge found that the appellant had enlisted the help of Mr Ong Hock Chye (“Ong”) and his thugs to slash the victim's face. The District Judge convicted the appellant and sentenced him to six years' imprisonment. The appellant's conviction was primarily founded on the testimony of Mr Lim De Mai Ron (“Ron Lim”), who had implicated the appellant in the conspiracy.

During the Magistrate's Appeal, the Prosecution indicated that Edwin's Statement was disclosable pursuant to Muhammad Nabill bin Mohd Fuad v PP[2020] 1 SLR 984 (“Nabill”) and that it had breached its disclosure obligations under Muhammad bin Kadar v PP[2011] 3 SLR 1205 (“Kadar”). The Prosecution proceeded to disclose Edwin's Statement to the appellant. The appellant then filed a criminal motion (the “Criminal Motion”) on the issue of whether Edwin's Statement could be shown to the court in the Magistrate's Appeal. This court's decision on the Criminal Motion was rendered in Lim Hong Liang v PP[2020] 5 SLR 1015. Thereafter, parties filed further submissions on the appropriate consequences of the Prosecution's breach of its disclosure obligations. The appellant sought a reversal of his conviction, while the Prosecution contended that the appellant's conviction should be upheld.

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 283(1), 356, 390(1)(b)(i)

Penal Code (Cap 224, 2008 Rev Ed) ss 109, 326

Criminal Procedure and Investigations Act 1996 (c 25) (UK)

Narayanan Sreenivasan SC and Partheban s/o Pandiyan (K&L Gates Straits Law LLC) for the appellant;

Lee Lit Cheng and Li Yihong (Attorney-General's Chambers) for the respondent.

4 May 2021

Aedit Abdullah J:

Introduction

1 These grounds address issues pertaining to the motion for criminal reference which has been filed by the appellant against my decision in MA 9111/2019/01 (the “Magistrate's Appeal”), which was to send the case for a retrial before another district judge. The focus will be on my decision as to the...