Mia Mukles v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 13 October 2017
• Neutral Citation: [2017] SGHC 252
• Court: High Court (Singapore)
• Hearing Date: 31 August 2017
• Docket Number: Magistrate’s Appeal No 9110 of 2017
• Plaintiff Counsel: Anil Narain Balchandani and Mato Kotwani (IRB Law LLP)
• Defendant Counsel: Crystal Tan (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Criminal Law,Statutory offences,Work Injury Compensation Act (Cap 354, 2009 Rev Ed)
• Published date: 17 October 2017

Steven Chong JA: Introduction

The Appellant, Mia Mukles, is a Bangladeshi who worked for Wee Seng Marine and Engineering Pte Ltd (“Wee Seng”). At the material time, he was working on a modular section of a hull under construction (“the Block”) at Keppel Fels Shipyard (“the Shipyard”). He is appealing against his conviction on two charges in the court below. The first charge was for making a fraudulent claim for compensation under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”), an offence under s 35(2)(f) and punishable under s 35(2)(iv) of the WICA. The second charge was for making a false statement to an investigation officer (“IO”) during the investigation in respect of his compensation claim, which is an offence under s 35(2)(c) of the WICA.

It is not disputed that the Appellant submitted a claim for compensation under the WICA.¹ It is also not disputed that he made a statement to the IO that he sustained injury to his back when he fell while climbing up a ladder in the course of his work on the Block.² The only dispute in the court below and on appeal is whether the claim and consequently the statement were false. The District Judge (“the Judge”) found against the Appellant on both scores. The convictions therefore turn entirely on one factual issue – is there any reasonable doubt that the Appellant fell from the ladder thereby injuring his back while working on the Block on 17 May 2015?

The Judge convicted the Appellant of both charges and sentenced him to two terms of imprisonment of six weeks and four weeks for the first and second charges respectively and ordered both sentences to run concurrently. The Judge preferred the evidence of the prosecution witnesses and found the Appellant’s evidence to be “inconsistent, incoherent or incredible” (see the Grounds of Decision (“the GD”) at [71]). In particular, the Judge accepted the eye witness account of a fellow Bangladeshi worker who saw the Appellant walk up to the ladder area and sit down before lying down on the floor (see the GD at [41]–[45]). This is diametrically contrary to the Appellant’s claim that he fell off a ladder while working on the Block.

For this appeal, counsel for the Appellant, Mr Anil Narain Balchandani, raises many arguments to challenge the Judge’s findings. I find two of the arguments particularly troubling not just because they were not raised during the trial below but also because they allege serious impropriety against the prosecution witnesses, their two employers, and the Shipyard without having put these allegations to them and without any evidential foundation.

First, in his zeal to advance the Appellant’s best case, Mr Balchandani alleges that the prosecution witnesses had colluded with each other to provide false testimony to wrongly implicate the Appellant, an innocent man. His submission went so far as to suggest that the collusion involved the Shipyard, Wee Seng, and another sub-contractor, OUS Pte Ltd (“OUS”). Not only was this collusion theory not formally put to the witnesses during the trial, there is simply no evidential basis for such serious allegations to be made in the first place. The second argument which troubles me concerns some videos and photographs (Exhibits D3 to D8 – collectively, “the Exhibits”) which the IO received from the Shipyard³ and which were brought to the attention of the Judge just before the close of the Prosecution’s case. Their existence emerged in the course of the IO’s cross-examination. The Prosecution explained that it was not relying on the Exhibits as it took the position that the Exhibits were at best neutral to the two charges. The Judge nevertheless gave the Appellant sufficient time to consider the Exhibits and thereafter allowed him to recall several witnesses following an interval of some four months. Despite Mr Balchandani’s submission that the Exhibits, in particular the videos, were exculpatory of the Appellant, the Judge found that the Exhibits did not assist the Appellant but instead undermined the Appellant’s defence (see the GD at [83]). What is especially disturbing is that for this appeal, without any factual or expert evidence, Mr Balchandani maintains the same submission he made before the court below that it is “plausible” that the videos had been tampered with or at least edited by the Shipyard.⁴ The very nature of such an allegation cries out for substantiation. Yet this was not even put to any witness in the court below. Mr Balchandani claims on appeal, as he did below, that he only realised the possibility of the videos having been edited while he was preparing his closing submissions for the trial.⁵ His belated personal assessment of the videos offers no excuse for his misconceived pursuit of such a serious allegation without any independent factual foundation.

While it is the duty of every counsel to put forward all available arguments in the best interest of his client, it is equally important for counsel to recognise his overarching duty as an officer of the court (see Public Trustee and another v By Products Traders Pte Ltd and others [2005] 3 SLR(R) 449 at [26] and [35]). The balancing of these twin duties requires counsel to make submissions in a responsible manner. This is especially so if the submission suggests either impropriety (such as evidence-tampering) or the commission of a crime (which in this case would be perjury alleged against the prosecution witnesses with the connivance of the Shipyard, Wee Seng, and OUS). In my view, submissions of such gravity should never be made by counsel without any legitimate evidential basis and without putting the serious charges to the relevant witnesses to afford them an opportunity to respond. To do otherwise would not only be reckless but would also be a breach of counsel’s ethical duties.

I think it is timely to remind counsel of two important provisions in the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (“the PCR”), namely rr 12(3) and 12(4) which bear on such conduct:

12.— …

(3) A legal practitioner must not, by asserting in a statement to a court or tribunal, make any allegation against a witness whom the legal practitioner cross-examined or was given an opportunity to cross-examine, unless the legal practitioner has given the witness an opportunity to answer the allegation during cross-examination. (4) A legal practitioner must not suggest that a witness or any other person is guilty of any offence or conduct, or attribute to a witness or any other person any offence or conduct of which the legal practitioner’s client is accused, unless the suggestion or attribution relates to a matter in issue (including the credibility of the witness) which is material to the client’s case and which appears to the legal practitioner to be supported by reasonable grounds.

[emphasis added]

By failing to put serious allegations to the witnesses, counsel run the risk of breaching these two provisions. No reason to disturb the Judge’s assessment of the witnesses

It is common ground between the parties that an appellate court has a limited scope of review over a trial judge’s findings of fact (Public Prosecutor v Wang Ziyi Able [2008] 2 SLR(R) 61 at [91]) and an “extremely heavy burden” is cast on an appellant to displace such findings of fact (Syed Jafaralsadeg bin Abdul Kadir Alhadad v Public Prosecutor [1998] 3 SLR(R) 352 at [57]). When a trial judge makes finding of fact based on the credibility of witnesses whom he has had the opportunity to see and assess, an appellate court will generally defer to the conclusion which the trial judge has formed unless the appellate court is “convinced” that the trial judge’s decision was wrong (Public Prosecutor v Poh Oh Sim [1990] 2 SLR(R) 408 at [8]). The decision of the Judge was largely based on his assessment of the witnesses whom he heard over a nine-day trial. His findings (which were painstakingly set out in a 51-page GD) must be examined against the conspicuous absence of any bruising or swelling to the Appellant’s back. Given the Appellant’s description of the severity of the pain he endured, one would have expected there to be bruising or swelling or some form of physical appearance of the injury.

Having considered the parties’ submissions and the evidence, I find that there is plainly no reason for me to disturb the Judge’s assessment of the witnesses. I begin by examining the evidence of the prosecution witnesses, specifically that of Md Safikul Islam (Safik) Md Sukkur Ali (“Safikul”), Ali Hasmot (“Hasmot”), Ashek Abdul Hashem (“Ashek”), and Sujon Moniruzzaman (“Sujon”).⁶

Eye witness account – Safikul

The most crucial witness was Safikul. He witnessed the Appellant feigning the fall. Safikul testified that he saw the Appellant bend down and move towards the ladder.⁷ After that, the Appellant sat down, laid down on the floor next to the ladder and then shouted that he had fallen from the ladder.⁸ It follows from Safikul’s evidence that the Appellant did not fall while climbing up the ladder. Safikul testified that he was observing the Appellant because he was concerned that the Appellant might enter the area where lifting operations were taking place under his supervision.⁹

I note that Safikul was in close proximity to the Appellant throughout the entire incident. He was only approximately three to four and a half metres away from the Appellant.¹⁰ He had a clear line of vision to the Appellant as the Appellant walked to the location of the ladder with his body bent,¹¹ and subsequently sat and laid down on the floor. Referring to Exhibit D8,¹² Mr Balchandani argues that Safikul’s line of sight was obstructed by objects and materials standing between Safikul’s position and the Appellant’s position at the time of the incident.¹³ In my view, Exhibit D8 does not assist the Appellant. On the contrary, it confirms Safikul’s evidence that the Appellant had to...