Mohammad Ali bin Mohd Noor v Public Prosecutor

Judgment Date12 August 1996
Date12 August 1996
Docket NumberMagistrate's Appeal No 301 of 1995
CourtHigh Court (Singapore)
Mohammad Ali bin Mohd Noor
Public Prosecutor

[1996] SGHC 163

Yong Pung How CJ

Magistrate's Appeal No 301 of 1995

High Court

Criminal Law–Statutory offences–Road Traffic Act (Cap 276, 1994 Rev Ed)–Competition of speed–Elements of offence–Section 116 Road Traffic Act (Cap 276, 1994 Rev Ed)–Criminal Procedure and Sentencing–Trials–Witnesses–Whether adverse inference to be drawn against Prosecution for not calling further witnesses–Criminal Procedure and Sentencing–Trials–Witnesses–Whether trial judge erred in failing to call further witnesses–Whether conviction of accused unsafe–Section 399 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant was convicted of an offence of participating in a competition of speed under s 116 (1) and punishable under s 116 (3) of the Road Traffic Act (Cap 276, 1994 Rev Ed). The Prosecution's evidence was that three police officers had observed the appellant and two other riders (“Cubinar” and “Mohd Bustami” respectively) racing against one another. The appellant alleged that he had not participated in any race and had been arrested without reason. Cubinar and Mohd Bustami, who were called as defence witnesses, made similar allegations and claimed that they had earlier pleaded guilty unwillingly. The magistrate accepted the evidence of the prosecution witnesses, while rejecting that of the defence witnesses.

On appeal, the appellant contended that (a) the conviction was against the weight of evidence, as there was insufficient identification of him, as well as material inconsistencies in the prosecution evidence; (b) the magistrate had convicted the appellant on the basis of the earlier convictions of the defence witnesses; (c) adverse inferences ought to be drawn against the Prosecution for failing to produce independent witnesses as well as the statements of two friends of Mohd Bustami; and (d) the magistrate erred in not calling Mohd Bustami's friends as further witnesses.

Held, dismissing the appeal:

(1) In the circumstances, there was no misidentification of the appellant by the prosecution witnesses, nor any material inconsistency in the prosecution evidence. In contrast, the evidence of the appellant and the defence witnesses were not satisfactory. The magistrate was entitled to find that the appellant's evidence did not raise a reasonable doubt: at [28], [29], [31], [32] and [38].

(2) The magistrate had made it clear that he had convicted the appellant after rejecting the evidence of the defence witnesses, and not because they had earlier pleaded guilty. He could not have then gone on to consider their convictions as the basis for convicting the appellant: at [41] and [42].

(3) The only obligation for the Prosecution as regards witnesses was to ensure that the witnesses called to give evidence were able to show that the elements of the offence had been made out. Whether further witnesses ought to be called was strictly a matter for the Prosecution: at [44].

(4) No presumption against the Prosecution should operate for failing to admit the statement of Mohd Bustami's friends. These persons ought to have been called as defence witnesses. The Prosecution could not have adduced their statements as evidence for they were hearsay and no exceptions applied: at [48].

(5) Generally no attack may be made on the failure of a court to call a witness notwithstanding that the judge may not have actually considered s 399 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) in his decision. For any failure to consider the exercise of the discretion would only be material where it is shown that the discretion ought to have been exercised in favour of the calling of such witnesses. But in that case, given the contention that the calling of that witness is obliged, what was really in question was the mandatory exercise of the power, under the second limb of s 399, that was that the evidence appeared to the court to be essential for the just determination of the case. What was essential to the just decision of the case cannot be defined categorically and had been said to be really a question of the particular facts of a case. Nothing further could be added, but the question may be clarified by asking whether a conviction in the absence of such evidence would be safe, or that an acquittal in such circumstances would amount to an injustice. Here there was ample evidence before the magistrate to support the appellant's conviction and it was not shown that the conviction was unsafe for the absence of the evidence of Mohd Bustami's friends: at [56] and [57].

(6) The offence under s 116 of the Road Traffic Act required some form of rivalry or contention between the drivers or riders alleged to be involved in it. On the evidence, the elements of the charge were fulfilled: at [62] and [63].

Adam Aman, Re; Hoesin bin Ghani v PP [1958] MLJ 229 (refd)

Balfour v PP [1949] MLJ Supp 8 (refd)

Chua Keem Long v PP [1996] 1 SLR (R) 239; [1996] 1 SLR 510 (folld)

Mary Ng v R [1958] AC 173 (folld)

Phon Nam v PP [1991] 2 MLJ 550 (refd)

PP v Lim Kwai Thean [1959] MLJ 179 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 399 (consd);s 122 (6)

Evidence Act (Cap 97,1990 Rev Ed)s 108

Road Traffic Act (Cap 276, 1994 Rev Ed)s 116 (consd)

J B Jeyaretnam (J B Jeyaretnam & Co) for the appellant

Jaswant Singh (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 The appellant was convicted in the trial court of a charge in the following terms:

You, Mohammad Ali bin Mohd Noor, male, 23 years, NRIC No 7202135E are charged that you, on 11 July 1993 at or about 4am, along Nicoll Drive, Singapore, did ride motor cycle No FK 3529T, did take part in a competition of speed with two other motor cycles Nos FG 9668G and FK 7644S, without the written approval of the Minister, and you have thereby committed an offence under s 116 (1) and punishable under s 116 (3) of the Road Traffic Act Singapore.

2 He was sentenced to ten weeks' imprisonment, fined $1,500 with one month's imprisonment in default and disqualified from holding or obtaining licences for all vehicle classes for a period of four years. He appealed against his conviction. That appeal was dismissed and reasons are now given.

The Prosecution's case below

3 The evidence of the prosecution witnesses was that the appellant had been seen racing along Nicoll Drive in the company of two other motorists. He was apprehended just after the race while he was still on his motorcycle.

4 One Sgt Aziz bin Osman, a corporal at the material time, testified that together with two other officers, VSSS Idris Yatim, at the time also a corporal, and VCPL Ishak Jalil, he had gone in plainclothes in an unmarked car to Nicoll Drive at about 2.50am. Nothing happened till about 4am, when three motorcycles came out of a car park, number 3, heading towards Telok Paku. Near car park 4, the riders made a U-turn and lined up abreast. The police officers split up observation of the riders amongst the three of them. Sgt Aziz chose to keep an eye on a rider near the kerb who was wearing a black jacket, grey pants and a full faced tinted visor helmet. One of the other riders was wearing a t-shirt emblazoned with the number “88”.

5 The riders revved their engines, and then sped off, crouched forward on their patrol tanks. Each of the motorcyclists attempted to get ahead of the others. The riders then U-turned, and rode back to Telok Paku. There they once again lined up abreast, and started off again. The rider Sgt Aziz chose to observe was now in the middle. In the course of this lap, the riders came upon a van, and overtook it - Sgt Aziz's rider doing so against the flow of traffic. The van itself had to brake when one of the riders swerved in front of it.

6 The riders then came into car park 3. There the officers identified themselves and arrested them while the riders were still on their motorcycles. Throughout all this...

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  • Criminal Procedure, Evidence and Sentencing
    • Singapore
    • Singapore Academy of Law Annual Review No. 2004, December 2004
    • 1 December 2004
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