Mui Jia Jun v Public Prosecutor

• Judge: Sundaresh Menon CJ,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 03 October 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 17 of 2017
• Date: 03 October 2018

Mui Jia Jun

and

Public Prosecutor

[2018] SGCA 59

Sundaresh Menon CJ, Tay Yong Kwang JA and Steven Chong JA

Criminal Appeal No 17 of 2017

Court of Appeal

Criminal Procedure and Sentencing — Appeal — Prosecution's case at trial comprising single narrative with two intertwined facets — Prosecution not advancing two facets of case as independent bases for conviction — Prosecution accepting reasonable doubt as to first facet but seeking to uphold conviction based on second facet on appeal — Whether appellate court should examine evidence to determine whether to uphold conviction based on second facet — Whether retrial would be ordered

Evidence — Proof of evidence — Co-accused's DNA being found on adhesive side of tape covering drug bundles — Prosecution not advancing explanation of DNA evidence — Judge reconciling DNA evidence with co-accused's evidence — Whether evidential basis for judge's reasoning — Whether judge entitled to reconcile DNA evidence with co-accused's evidence even if evidentiary basis to do so

Held, allowing the appeal to the extent of ordering a retrial of the matter before another High Court judge, where the Prosecution would be confined to mounting its case against the Appellant on the basis that he had sent Tan the Delivery Messages:

(1) One who merely handled the Ten Bundles in the course of separating them for their intended recipients would not and, on the basis of the evidence before the court, could not have touched Area 3. However, Tan's DNA was found on Area 3 on five of the Ten Bundles. In the absence of some reasonable explanation of this, that DNA evidence strongly suggested that Tan had been more intimately involved in the preparation of the Ten Bundles than he claimed at the trial. It seemed that Tan had been involved in preparing some or all of the Ten Bundles prior to his arrest, and might even have had some or all of these bundles in his possession before that. This was a real possibility that could not be discounted. Hence, the presence of Tan's DNA on Area 3 on five of the Ten Bundles created a reasonable doubt over his account that on the morning of his arrest, the Appellant had given him the Jorano bag of drugs, which drugs he had not previously handled or packed: at [59] to [61] and [63].

(2) The Judge had reasoned that Tan might have left his DNA on the adhesive side of edges of tape sticking out of the ends of two of the Ten Bundles while he was handling those two bundles for delivery. There was no adequate evidential basis for this reasoning. The Judge's approach implicitly gave the benefit of the doubt to the Prosecution for the purposes of its case against the Appellant, which could not be accepted: at [64] and [67].

(3) During the trial, the Prosecution did not seek to advance any explanation as to why Tan's DNA was found on Area 3 on five of the Ten Bundles. In these circumstances, the Judge was not entitled to fill in this significant lacuna in the Prosecution's case even assuming there was some evidential basis for him to do so. In the context of a criminal trial, a trial court should generally not make a finding that resolved against the accused what would otherwise amount to a vital weakness in the Prosecution's case when the Prosecution itself had not sought to address that weakness by leading evidence and making submissions to support such a finding. First, the principle that the Prosecution had to prove the guilt of the accused beyond reasonable doubt implied that it was incumbent on the Prosecution, and not the court, to address any weakness in the evidence that the Prosecution adduced, failing which the Prosecution had to accept the consequences that followed for its case against the accused. Second, fairness to the accused demanded that he should have the opportunity to address every vital aspect of the factual basis on which he was convicted. Adopting a case theory that the accused did not have the chance to rebut would be fundamentally unfair to him: at [71], [72], [76] and [77].

(4) The Prosecution did not clearly advance the Alternative Case at the trial, and the evidence might have emerged differently if the Prosecution had done so. In the premises, it would have been wrong in principle for the court to turn to the evidence, which was gathered in a trial where the Alternative Case was not clearly advanced, to determine whether the Appellant's conviction could be upheld on the basis of the Alternative Case. It was a fundamental principle of our criminal law that an accused person should know with certainty, and thus be prepared to meet, the Prosecution's case against him. An accused person was not liable to be convicted based on a case that was not clearly mounted against him at the trial in circumstances where the evidence – especially the defence – might well have unfolded differently if the Prosecution had clearly advanced that case: at [87] to [89] and [92].

(5) In the circumstances, the appropriate order in respect of the appeal was a retrial of the matter before another High Court judge, where the Prosecution would be confined to mounting its case against the Appellant on the basis that he had sent Tan the Delivery Messages: at [94] and [97].

[Observation: In joint trials, especially those involving accused persons charged with capital offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), findings in favour of one accused person might implicitly amount to findings in favour of the Prosecution where its case against the other accused person(s) was concerned. Trial courts had to exercise great care in making such findings. It should always be borne in mind that the Prosecution bore the burden of proving the guilt of each accused person beyond reasonable doubt: at [70].

Where the Prosecution advanced a composite case comprising several factual bases, any one of which might in law found a conviction of the accused, it might be that it would be sufficiently clear to the accused in some, possibly many, cases that the Prosecution was also seeking a conviction on any one of those factual bases even if the Prosecution did not expressly state this. However, each and every case turned on its facts: at [85] and [86].

In cases such as the present where the Prosecution advanced a composite case comprising several facets and it would not be reasonably clear to the accused, absent an express statement to this effect, that the Prosecution was seeking a conviction based on any individual facet of its case, it might be prudent for the Prosecution to make this explicit. First, the charge should, if practicable, clearly state the various facets of the Prosecution's case against the accused. Second, the Prosecution should make clear that it was seeking a conviction based on any individual facet of its case. If this could not be done in the charge, the Prosecution could make this clear in its opening address at the trial, or by any other written means: at [95].]

Case(s) referred to

Garmaz s/o Pakhar v PP [1996] 1 SLR(R) 95; [1996] 1 SLR 401 (refd)

Gopu Jaya Raman v PP [2018] 1 SLR 499 (refd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45; [2006] 4 SLR 45 (folld)

Lim Beh v Opium Farmer (1842) 3 Ky 10 (folld)

Low Chai Ling v Singapore Medical Council [2013] 1 SLR 83 (refd)

Muhammad Ridzuan bin Md Ali v PP [2014] 3 SLR 721 (refd)

PP v Koon Seng Construction Pte Ltd [1996] 1 SLR(R) 112; [1996] 1 SLR 573 (folld)

Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983; [2007] 2 SLR 983 (folld)

Viswanathan Ramachandran v PP [2003] 3 SLR(R) 435; [2003] 3 SLR 435 (refd)

Facts

The appellant (“the Appellant”) was tried with one Tan Kah Ho (“Tan”) in the High Court on two counts of trafficking in controlled drugs in furtherance of their common intention.

Tan was arrested by officers from the Central Narcotics Bureau after he had delivered three bundles of drugs to a third party. Seven other bundles of drugs were found in his possession. Each of these ten bundles of drugs (“the Ten Bundles”) had been covered with cling wrap, with several layers of black tape applied over the whole of the cling wrap. Tan's DNA was found on the adhesive side of the tape (“Area 3”) covering five of the Ten Bundles.

The Prosecution's case against the Appellant at the trial comprised a single narrative with two intertwined facets. The first was that on the morning of Tan's arrest, the Appellant had handed Tan a “Jorano” bag (“the Jorano bag of drugs”) with the Ten Bundles already inside and pre-packed. On this narrative, Tan had not previously packed any of the Ten Bundles before receiving them from the Appellant, and had handled these bundles only to the extent of separating them for their intended recipients. The second facet was that the Appellant had allegedly sent Tan text messages which contained instructions regarding the delivery of the drugs (“the Delivery Messages”). The Prosecution did not advance the two individual facets of its case as independent bases for a conviction at the trial.

After the first hearing of the appeal, the Prosecution accepted that there was a reasonable doubt as to whether the Appellant had given Tan the Jorano bag of drugs. However, the Prosecution contended that even if the Appellant had not given Tan the Jorano bag of drugs, he should be convicted on the sole basis that he had sent Tan the Delivery Messages (“the Alternative Case”).

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 390(4), 390(7)(b)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 17, 18, 18(2), 33B(2)(a)(i)

Chua Eng Hui (RHTLaw Taylor Wessing LLP), Ho Thiam Huat (T H Ho Law Chambers), Tan Jeh Yaw (Tan Peng Chin LLC) and Wong Li-Yen Dew (Dew Chambers) for the appellant;

Mark Tay, Marcus Foo and Chan Yi Cheng (Attorney-General's Chambers) for the respondent.

3 October 2018

Sundaresh Menon CJ (delivering the grounds of decision of the court):

Introductio...