Mok Swee Kok v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 29 July 1994
• Date: 29 July 1994
• Docket Number: Criminal Appeal No 19 of 1991
• Court: Court of Appeal (Singapore)

Mok Swee Kok

Plaintiff

and

Public Prosecutor

Defendant

[1994] SGCA 146

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

,

Lai Kew Chai J

and

Warren L H Khoo J

Criminal Appeal No 19 of 1991

Court of Appeal

Courts and Jurisdiction–Court of Appeal–Whether Court of Appeal had power to inquire into legality of conviction where accused had pleaded guilty and appealed only against sentence–Section 54 (1) Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)–Criminal Procedure and Sentencing–Appeal–Plea of guilty–Whether courts had duty to record statement of facts–Whether courts had duty to consider statement of facts and ensure all elements of charge had been made out

The appellant Mok Swee Kok pleaded guilty to a charge of abetting a robbery with hurt. On appeal against the sentence, the Court of Appeal became concerned with the legality of the conviction itself, as there was a question of whether the statements of facts presented to the trial judge supported the ingredients of the offence Mok was charged with. The Court of Appeal was also faced with the issue of whether it could reopen a conviction in a case where the accused had pleaded guilty and appealed only against his sentence. Judgment was reserved on 16 January 1992 and on 10 August 1993, a five-judge Court of Appeal was convened to hear further arguments on the two issues outlined above.

Held, allowing the appeal:

(1) The recording of a statement of facts by the court following an accused's plea of guilt, which had begun as a matter of practice which evolved primarily as a means of assisting judges to determine the appropriate sentence, had evolved into a legal duty on the court to record a statement of facts and to scrutinise the statement of facts for the explicit purpose of ensuring that all the elements of the charge are made out therein: at [14].

(2) The Court of Appeal was empowered under s 54 (1) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) to inquire into the propriety of a conviction even in a case where the appellant pleaded guilty in the court below and where the appeal was brought against sentence. It was a corollary of these powers that the court was entitled to examine such material as the statement of facts and the verbatim notes of proceedings to ascertain for itself the legality of the conviction: at [17] and [25].

(3) Although s 54 (1) gave the Court of Appeal wide powers to make such orders as it may think just in hearing an appeal, it was not tantamount to granting the court the sort of wide-ranging “revisionary jurisdiction” which the High Court exercised over the Subordinate Courts. Furthermore, s 54 (1) did not in any way alter the rule laid down in s 44 (2) as regards appeals against conviction by accused persons who pleaded guilty. Such persons did not gain by some “back-door” fashion a right to appeal against their conviction simply by virtue of s 54 (1): at [24].

(4) On the facts, the appellant's conviction in the court below for the offence of abetment of robbery with hurt could not be sustained. The original conviction was quashed and substituted with a conviction for the offence of abetment of housebreaking in order to commit theft. The sentence of seven years' imprisonment and 12 strokes of the cane was accordingly altered to a sentence of five years' imprisonment (with effect from the date of his conviction in the High Court): at [31].

Attorney-General for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 (refd)

Chan Wing-Siu v R [1985] AC 168 (refd)

Chota bin Abdul Razak v PP [1991] 1 SLR (R) 501; [1991] SLR 675 (folld)

Groux's Improved Soap Company, Limited v Cooper (1861) 8 CB NS 800; 141 ER 1380 (refd)

John Carter Colquhoun v Henry Brooks (1889) 14 App Cas 493 (refd)

PP v Munusamy [1979] 2 MLJ 286 (refd)

Queen-Empress v Mathuras Das (1884) VI ILR 491 (refd)

R v Khoo Kee Thye (1936) SSLR 243 (refd)

Supramaniam v Kanthasamy [1956] MLJ 18 (refd)

Wong Hong Toy v PP [1985-1986] SLR (R) 371; [1984-1985] SLR 298 (refd)

Yap Ee Kong v PP [1981] 1 MLJ 144 (refd)

Yoong Hock Pin v PP [1977] 1 MLJ 178 (refd)

Yue Sang Cheong Sdn Bhd v PP [1973] 2 MLJ 77 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)ss 180 (b),266, 268

Penal Code (Cap 224,1985 Rev Ed)ss 109, 111,304 (b),394, 454

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)s 54 (1) (consd);ss 44 (2),60 (1),60 (4)

Administration of Justice Act1960 (c 65) (UK)s 1 (4)

Palakrishnan (Palakrishnan & Partners) and Gurdip Singh (George Sandosham Gurdip & Partners) for the appellant

Bala Reddy, Wong Keen Onn and Foo Cheow Ming (Deputy Public Prosecutors) for the respondent

Jeffrey Pinsler (amicus curiae).

Judgment reserved.

Yong Pung How CJ

(delivering the judgment of the court):

1 The appellant was charged in the High Court on 23 September 1991 with having abetted the act of robbery with hurt by virtue of s 111 of the Penal Code (Cap 224), an offence punishable under s 394 read with s 109 of the Penal Code. He pleaded guilty to the charge. The statement of facts tendered by the Prosecution to the court below following the appellant's guilty plea alleged that on 20 September 1989, the appellant (then a 17-year-old student) had acted as lookout for one Tan Chee Hwee (“Tan”) and one Soon Kian Liang (“Soon”) who in the course of committing robbery at 10 Happy Avenue Central had voluntarily caused hurt to one Evangeline M Disco (“the deceased”).

Background to the appeal

2 The house at 10 Happy Avenue Central was in fact the family home of one Tang Wei Ping (“Tang”), a friend of Tan, Soon and the appellant. The deceased had been the Filipina maid employed by the Tang family. It was Tang who, on 19 September 1989, had suggested to his three friends the plan of stealing money from his parents in order to solve the financial problems faced by Tan and Soon. The arrangement was that Tang would give the other three his house keys and that they would gain entry to the house the following day at a time when the deceased would have left the house to send Tang's younger brother to a kindergarten.

3 On the afternoon of 20 September 1989 the appellant, together with Tan and Soon, waited outside Tang's house until they saw the deceased leaving the house with Tang's younger brother. They then entered the house using Tang's keys. Tan and Soon proceeded to search for valuables in the master bedroom on the upper floor of the house while the appellant stationed himself as lookout at the window of an adjoining room on the upper floor.

4 In the midst of this the appellant saw the deceased returning home. He alerted the other two who went to the kitchen on the ground floor. Tan took a knife and the deceased, upon entering the house, was accosted by Tan and Soon, who warned her not to raise an alarm. She resisted and ran into her room with Tan and Soon in pursuit. A violent struggle ensued between them. The appellant saw Tan and Soon forcing their way into the deceased's room and also heard screams and shouts from the deceased. These sounds subsided, whereupon the appellant went into the room and found the deceased lying motionless on the floor. She had been strangled with the wire of an electric iron. The three of them quickly fled the scene. They were finally arrested on 9 March 1990, together with Tang.

5 In the court below Tang was convicted of abetment of housebreaking in order to commit theft and sentenced to...