Loh Siang Piow and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 February 1998
• Neutral Citation: [1998] SGHC 34
• Docket Number: Magistrate's Appeal No 214 of 1997
• Date: 02 February 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Yang Ing Loong and Raphael Lee (Lee & Lee)
• Citation: [1998] SGHC 34
• Defendant Counsel: Peter Fernando (Leo Fernando),Malcolm BH Tan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Effect on public interest of discharge amounting to acquittal,Criminal Procedure and Sentencing,Information to be given by the prosecution in invoking s 184 Criminal Procedure Code (Cap 68),Appeal,Discharge and discharge not amounting to acquittal,s 184 Criminal Procedure Code (Cap 68),Whether order prejudicial to first appellant,Discharge not amounting to acquittal,Whether order for such discharge is appropriate

Judgment:

YONG PUNG HOW CJ

The first appellant was a Deputy Superintendent of Prisons. He was charged under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed) for obtaining a loan of $10,000 for a colleague, from a prisoner Peter Tham Wing Fai (Tham), by showing the prisoner favour. The first appellant had posted Tham to the kitchen and had appointed him as an assistant librarian in the prison. He had also allowed Tham four visits from an ex-prisoner against prisons rules. The second appellant was charged with intentionally aiding the first appellant in the offence, in that the loan was obtained from Tham through the second appellant.

2.The alleged offences happened sometime between July and August 1992, but investigations were not commenced until October 1995 and the appellants were not charged until 6 November 1996. The case was adjourned for a further mention on 6 January 1997. Thereafter, pre-trial conferences were held on 29 January and 28 February. At the second pre-trial conference, the matter was fixed for trial from 14 to 25 April 1997.

3.On 4 April, ten days before the trial was due to commence, the deputy public prosecutor requested that the trial dates be vacated on the basis that Tham, who was the prosecution`s key witness, had a serious medical problem and was unable to attend court. Tham had undergone an operation to implant a permanent heart pacemaker and was not then physically fit to testify. The prosecution`s request was supported by a medical report of one Dr Choo dated 1 April 1997 documenting Tham`s condition.

4.The original hearing dates were thus vacated and another pre-trial conference was fixed on 10 April 1997. There were further pre-trial conferences on 8 May, 19 June and 9 July 1997. On all of those occasions, the deputy public prosecutor informed the court that Tham was still unwell and unable to attend court. The court adjourned the matter for a further pre-trail conference on 14 August 1997.

5.Meanwhile, by a letter dated 17 June 1997, counsel for the appellants made representations to the public prosecutor for the withdrawal of the charge. On 14 August, the deputy public prosecutor informed the court that he had rejected the representations made by the appellants` counsel and that it intended to apply for a discharge not amounting to an acquittal, pursuant to s 184 of the Criminal Procedure Code (Cap 68). The hearing of this application took place on 22 and 27 August. On 28 August, the trial judge ordered that both appellants be discharged, such discharge not amounting to an acquittal. The appellants thus appealed against the trial judge`s decision.

6.In the meantime, since 23 November 1996, the first appellant has been interdicted on quarter pay and has not been allowed to go back to work.

7. Reasons for the prosecution`s application

The prosecution gave the following reasons for their application. First, the medical condition of Tham rendered him unable to testify in court. Second, they alleged that one of their material witnesses, Philip Soh (Soh) was not available as the Corrupt Practices Investigation Bureau (CPIB) had lost contact with him around March 1997, and that they were still trying to locate his whereabouts.

8. The appellants` contentions

As a preliminary issue, counsel for the first appellant argued that the court had no jurisdiction to make any order under s 184 of the Criminal Procedure Code as the summary trial had not commenced. At the time the prosecution made the application, no hearing dates had been fixed and none of the prosecution`s witnesses had given evidence.

9.The first appellant further submitted that if the court granted a discharge not amounting to an acquittal, this would be prejudicial to him as he could be interdicted indefinitely. This is because under reg 8(a) of the Public Service (Disciplinary Proceedings) Regulations, no disciplinary proceedings can be taken against the first appellant until the criminal proceedings have been determined. A discharge not amounting to an acquittal is not a determination of the criminal proceedings.

10. The trial judge`s decision

The trial judge dealt firstly with the issue of jurisdiction and held that the court had jurisdiction to make an order under s 184 of the Criminal Procedure Code. An application can be made under s 184 `at any stage of any summary trial before judgment has been delivered`. The trial judge held that under s 180 of the Criminal Procedure Code, a summary trial commences when the charge is first read and explained to the accused. In this case the summary trial began on 6 November 1996. The prosecution`s application was thus made after the summary trial had begun.

11.The trial judge then proceeded to deal with the prosecution`s reasons for the application. First, with regard to the unavailability of Tham due to his medical condition, the prosecution had subsequently abandoned their stand on this. The position was thus that Tham was available and was able to give evidence. As such, the prosecution`s application on this ground would have failed.

12.Next, the trial judge agreed with counsel for the first appellant that a discharge not amounting to an acquittal would not determine the criminal proceedings, within the meaning of reg 8 of the Public Service (Disciplinary Proceedings) Regulations, as the first appellant could still be charged subsequently on the same charge. As such, this reason could not be used to support the prosecution`s application.

13.Lastly, the deputy public prosecutor informed the court that the CPIB had lost contact with a material witness, Philip Soh, since March 1997 and that they were still trying to locate his whereabouts. The trial judge held that the non-availability of Soh was, in this case, not a factor that militated in favour of the court granting a discharge amounting to an acquittal. Soh was a Singapore citizen, the CPIB had indicated that the assistance of the police had been sought in tracing him and a check with the Singapore Immigration Department did not indicate that he had left the state.

14.In addition, arrangements had been made for the investigator to be informed if the Singapore Immigration Department came across the witness should he attempt to leave the state. This was not a case where the witness could not be found even after much effort and time had been expended. The trial judge stressed that the loss of contact was only recent. Moreover, both appellants faced serious charges and the prosecution did not intend to leave matters suspended indefinitely. On the other hand, should the appellants be granted a discharge amounting to an acquittal, they could not be charged again for the same offence. Thus, the trial judge ordered that both appellants be discharged, such discharge not amounting to an acquittal.

15. The appeal

At the appeal before me, counsel for the appellants gave two reasons why the court should have made an order for a discharge amounting to an acquittal. First, counsel submitted that the unavailability of Philip Soh was not a good ground to exercise the discretion in favour of the prosecution. This ground was never raised by the prosecution before 22 August 1997 and it had not been demonstrated that Soh is a material witness for the prosecution.

16.Second, by virtue of reg 8 of the Public Service (Disciplinary Proceedings) Regulations, disciplinary action cannot be taken against the first appellant upon any grounds involved in the criminal charge until the determination of the criminal proceedings. Since 23 November 1996, the appellant has been interdicted on quarter pay and has not been allowed to go back to work. At the same time, he is not permitted to get another job. As such, there was a great deal of prejudice to the first appellant.

17.Turning then to s 184 of the Criminal Procedure Code (CPC) which states as follows:

(1) At any stage of any summary trial before judgment has been delivered, the Public Prosecutor may, if he thinks fit, inform the court that he will not further prosecute the defendant upon the charge and thereupon all proceedings on the charge against the defendant shall be stayed and he shall be discharged from and of the same.

(2) Such discharge...