Loh Kim Chiang v Public Prosecutor

• Judge: Karthigesu J
• Judgment Date: 04 May 1992
• Neutral Citation: [1992] SGHC 116
• Citation: [1992] SGHC 116
• Defendant Counsel: Tan Chee Meng (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Thangavelu (Muru Rajah & Partners)
• Date: 04 May 1992
• Docket Number: Magistrates Appeal No 277/91/01
• Court: High Court (Singapore)
• Subject Matter: Whether appellant culpable for failure of accused to attend court,Forfeiture,Criminal Procedure and Sentencing,Principles governing forfeiture,s 361 Criminal Procedure Code (Cap 68),Court's discretion to remit any portion of bail

The appellant stood bail in the sum of $20,000 as the one and only surety for one Ong Kim Ay who was charged with two offences under the Misuse of Drugs Act (Cap 185). Ong Kim Ay did not appear in court on 22 July 1991, the date of the trial. On 26 July 1991, after a show cause hearing, the $20,000 was forfeited.

It is worthy of note that the first offence with which Ong Kim Ay was charged was under s 5(a), that is the offence of trafficking in 4.77g of heroin which carries, I am told, a minimum sentence of five years and I believe, also some strokes of the cane. The second charge with which she was charged was under s 8(a), that is possession, in this case, of 9.64g of heroin which carries a maximum sentence, I believe, of ten years or fine of $20,000. or both. One wonders whether the prosecution in this case was serious about proceeding on the trafficking charge. I make this comment because although a custodial sentence is mandatory for a conviction on a charge of trafficking, bail was set in the sum $20,000 in one surety. Further, I note that Ong Kim Ay is a Malaysian who lives in Johore Bahru. Learned counsel has drawn my attention to it and I also note from the bond and the bail bond which is in the court file signed by Ong Kim Ay and the appellant on 16 February 1990, that she undertook to the court not to proceed beyond the limits of Singapore without the permission of the court. However, and this has been stated by the learned counsel for the appellant, she was granted leave by the court to leave Singapore for a period between 16 February 1990 and 15 March 1990, and with the consent of the appellant, her passport, which was impounded by the Central Narcotics Bureau (`the CNB`) on her arrest, was released to her. I am told that subsequently she may have surrendered her passport to the CNB but there is nothing in the file to that effect and the learned DPP is unable to assist me because there is nothing in his file as well.

Ong Kim Ay was required to attend court on 16 March 1990 which she duly did together with the appellant. There were also a number of further attendances in court before the date of trial was fixed. The date of trial originally fixed for this case was 9 May 1991 and there was in fact a period of one year between the last mention and the date fixed for trial, namely, 9 May 1991. The trial did not proceed on that day because learned counsel who was representing her asked for the date to be vacated because he was taken ill, but what is important to note is that Ong Kim Ay did attend court for her trial on 9 May 1991. A further date was then given which was 22 July 1991, and it was on that date that she did not present herself at the trial court. The appellant, however, was present and he was asked to show cause and a warrant of arrest was duly issued for the arrest of Ong Kim Ay.

At the show cause hearing on 26 July 1991, the appellant, who was then unrepresented, gave evidence on affirmation and stated that he was a renovation contractor who did casual work. He had known Ong Kim Ay`s husband for about a year before he stood bail. They were colleagues. He knew that Ong Kim Ay and her husband lived in Johore Bahru. He knew their address in Johore Bahru and I am told by learned counsel this morning that he had in fact visited them once at their home in Johore Bahru. It was also pointed out to me that the appellant is a Chinese national or a national of the Republic of China. He holds a blue Singapore identity card and requires a visa to enter Malaysia.

On 16 or 17 July 1991 he was reminded by Ong Kim Ay`s lawyer that the trial was due to commence on 22 July 1991. He was asked to attend court and to make sure that Ong Kim Ay would be present. Since he could not himself go to Johore Bahru because of the difficulties or problems in getting a visa to travel, he sent his friend, Chye Chye, to Johore Bahru and asked him to remind Ong Kim Ay to attend court on 22 July 1991. Chye Chye could not find Ong Kim Ay when he went in search of her in Johore Bahru.

The appellant also gave evidence of his means. He said he earned $500 to $600 per month as a renovation contractor; that seven or eight years ago he purchased an HDB flat at Block 336 Hougang Avenue 7 for $50,000, for which he pays $300 per month, and that the flat has not yet been fully paid up. He said he does not own a motor car. He has a wife, four sons and a daughter, and he was at the date of the show cause hearing 56 years old.

By way of security, he deposited with the court two fixed deposit receipts totalling $20,000. He maintained, and it was again mentioned to me this morning by his counsel, that he had to borrow the money to place it on fixed deposit so as to be able to produce the fixed deposit receipts as security for the bail. He also said that he stood bail because of his relationship with Ong Kim Ay`s husband who was his colleague, and as learned counsel stated this morning, since Ong Kim Ay and her husband were Malaysians, the husband could not stand bail for her and had to get a Singaporean or a resident of Singapore to stand bail. But the appellant did also say or gave as one of his reasons for standing bail that he believed that Ong Kim Ay would not play him out.

The learned district judge in his judgment quoted extracts from the judgment of Donaldson LJ in R v Waltham Forest Justices, ex p Parfrey, [1980] Crim LR 571 where Donaldson LJ spoke of the seriousness of the obligation when someone entered into a recognizance as a surety, that is in our language, a person who stood as a bailor or stood bail for an accused person, and the risks the bailor ran which were real risks and not a theoretical possibility when the accused failed to surrender to his bail when required to do so. He quoted another extract from the judgment of Donaldson LJ in the case of R v Knightsbridge Crown Court, ex p Newton [1980] Crim LR 715 much to the same tenor as from the earlier case which cautioned that if an accused failed to surrender to his bail, it was only in the most exceptional cases that the court would be prepared to modify the prima facie position, which was that the amount for which the person concerned had stood surety, that is stood bail, would be forfeited in full.

He then referred to a few magistrate`s appeals where the appellate court had not interfered with the forfeiture of the full amount of the bail, and then proceeded to conclude his judgment with these words:

The bailor would be the best person to know the extent to which he could rely on the accused to turn up in court as and when required. This the court will never be in a position to know. When an accused is a foreigner the possibility of the accused leaving the jurisdiction of Singapore is another factor which the bailor has to weigh before entering into the bond. The accused had absconded and may possibly never be arrested and brought to justice. The bailor in giving his explanation for the non-appearance of the accused in court and all that he said when showing cause why the $20,000 bail should not be forfeited had not in my view shown sufficient cause against forfeiture. Were the circumstances such that the whole sum ought not to be enforced? In my view the circumstances were such that the whole sum ought to be forfeited.

That is the end of the judgment.

With all due respect to the learned district judge, he has failed to ascertain and apply the correct principles by which he ought to have been guided: firstly, in dealing with the question of whether or not the bail ought to be forfeited, and secondly, if sufficient cause is not shown, whether in the exercise of his discretion the full amount or only a part ought to be forfeited.

Both sides have cited a number of English cases to me. I consider it necessary only to refer to one, namely, R v Uxbridge Justices, ex p Heward-Mills [1983] 1 All ER 530 in which McCullough J considered all the relevant cases on this point starting with the...