Natarajan S/O Chinnaiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chay Yuen Fatt
• Judgment Date: 14 February 2019
• Neutral Citation: [2019] SGMC 10
• Court: District Court (Singapore)
• Docket Number: NS-900535-2018
• Published date: 11 July 2019
• Year: 2019
• Hearing Date: 24 January 2019
• Plaintiff Counsel: Erdiana Hazlina
• Defendant Counsel: Surety in person
• Citation: [2019] SGMC 10

District Judge Chay Yuen Fatt: Introduction

On 16 October 2017, Mr Natarajan s/o Chinnaiah (“the surety”) stood as surety for one S Vijaya Raj (“the accused”) in respect of the accused’s $25,000 bail pending the appeal against conviction and imprisonment sentence. The accused had been convicted after a trial before me. The appeal was subsequently dismissed and the accused was ordered by the High Court to surrender before me to start serving his sentence.

The accused failed to surrender to this court and a warrant was issued for his arrest. The surety was then summoned to show cause why the bond should not be forfeited. After hearing the surety, I found that cause was not shown and I order that $20,000 be forfeited from the monetary security furnished by the surety. The surety is appealing against that order. The remaining monetary security of $5,000 has been returned to him.

Events leading up to forfeiture

The learned prosecutors from the Ministry of Manpower (‘MOM’) has very helpfully set out the sequence of court events by way of a ‘timeline’ which I have annexed to these grounds of decision. I propose only to summarise and highlight the material events and dates.

The accused was convicted in the lower court before me after a trial of six charges under s 22B(1) of the Employment of Foreign Manpower Act (Cap. 91A). The charges relate to offences of obtaining work passes for foreign workers when there was in fact no work for these foreign workers. In essence, the accused had deceived both MOM and the foreign workers. He was sentenced on 5 September 2017 to an aggregate of 30 months’ imprisonment and a fine. He then filed an appeal against both conviction and sentence and was released on bail pending his appeal. The surety provided the monetary security in respect of the bail. Thirty-eight (38) similar charges had been stood down (“stood down charges”) before the trial and remain outstanding.

The accused’s appeal was first scheduled to be heard in the High Court almost a year ago on 9 March 2018. By then, the accused had changed four different counsels. He instructed his fifth counsel to seek an adjournment of the appeal so as to file a criminal motion to adduce fresh evidence. The appeal was rescheduled to 29 March 2018. After numerous directions and successive extensions of time to file a criminal motion, the motion was heard and dismissed on 24 August 2018. His counsel again tried to seek a further adjournment of the appeal on various grounds but was turned down. The appeal was re-scheduled to be heard on 5 October 2018.

On the date of the appeal on 5 October 2018, the accused did not turn up because he was admitted to hospital for a procedure. The appeal was adjourned yet again to 16 November 2018. Counsel wrote to the High Court to seek a further adjournment of the appeal but was rejected.

Two days before the next scheduled appeal date, the accused admitted himself to hospital again. On the day of the appeal on 16 November 2018, Tay Yong Kwang JA dismissed the appeal in the absence of the accused pursuant to s 387(3) of the Criminal Procedure Code 2010 (‘CPC’). Thereafter, counsel wrote to the High Court to reinstate the appeal but his request was rejected, notwithstanding that the accused was hospitalised on the day of the appeal. Needless to say, the High Court was less than impressed with the accused’s hospitalisation excuse. The accused was directed by the High Court to surrender himself at the State Courts on 27 November 2018 to commence his sentence.

On 27 November 2018, the accused did not surrender himself before me. Counsel provided a medical certificate (‘mc’) for one day which did not specifically excuse the accused from court attendance. I issued a warrant to arrest the accused. However, counsel had also gotten a further direction from the High Court to defer his surrender till 3 December 2018. The warrant to arrest was therefore cancelled.

On 3 December 2018, the accused again failed to surrender before me. I issued a fresh warrant for the arrest of the accused. Counsel subsequently wrote to both the lower court and the High Court to defer the accused’s sentence. These requests were all turned down.

I then scheduled a date for the surety to show cause as why the bail sum should not be forfeited entirely.

The accused did finally make an appearance in the mentions court on 18 December 2018 in respect of the stood down charges. He was promptly arrested pursuant to the warrant to arrest that I had issued. He is presently serving his sentence.

Surety’s explanation

The surety attempted to show cause as to why the bail sum ought not to be forfeited. I provide a brief history of the accused’s case to the surety. He said he was not aware that the accused had to surrender himself. He said the accused may have an mc to excuse him from attending court on 3 December 2018 but that he did not have the mc. In short, the surety said he was not aware of what was going on regarding the accused’s case.

Statutory provisions

Sections 104(1) and (2) of the CPC provide for the duties of a surety and the consequences of breach as follows:

Duties of surety

104. - (1) A surety must — (a) ensure that the released person surrenders to custody, or makes himself available for investigations or attends court on the day and at the time and place appointed for him to do so; (b) keep in daily communication with the released person and lodge a police report within 24 hours of losing contact with him; and (c) ensure that the released person is within Singapore unless the released person has been permitted by the police officer referred to in section 92 or 93 (as the case may be) or the court to leave Singapore.

(2) If the surety is in breach of any of his duties, the court may, having regard to all the circumstances of the case, forfeit the whole or any part of the amount of the bond. Principles governing forfeiture of bail

The High Court recently restated the principles governing the forfeiture of bail in Cher Ting Ting v PP [2017] SGHC 13 (“Cher Ting Ting”). In that case, Chan Seng Onn J dismissed the surety’s appeal and forfeited the entire bail sum of $60,000 put up by the surety. Chan J observed at [19] that “[c]ourts in Singapore and England have taken pains to underscore the cardinal importance of sureties’ obligations”. After reviewing the case-law in relation to bail forfeiture, Chan J laid down at [24] a two-stage analytical framework to determine the question of forfeiture of bail:

First, the court will consider whether the surety has shown sufficient cause for the non-forfeiture of the bond amount. Second, if the court finds that the surety has failed to show sufficient cause, the court will determine, in the exercise of its discretion, the extent to which the bond is to be forfeited.

I applied the two-stage analysis in the present case.

First stage - Cause not shown

The prima facie or default position as restated in Cher Ting Ting is that the full amount of the bond shall be forfeited unless there are exceptional circumstances. The onus is on the surety to convince the court to modify this default position because it is the primary duty of the surety to ensure that the accused attend court. In the first stage of the two-stage analysis, the court has to decide whether the surety is able to show that he had exercised reasonable...