Ng Ai Tiong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 15 March 2000
• Neutral Citation: [2000] SGHC 39
• Date: 15 March 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: SK Kumar (SK Kumar & Associates)
• Citation: [2000] SGHC 39
• Defendant Counsel: Wong Keen Onn and Lim Jit Hee David (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Whether Court duty bound to invite accused to present mitigating plea,Requirements to be satisfied,Whether failure a critical procedural error,Applicant applying for criminal motion,Plea in mitigation,Criminal references,s 60 Supreme Court of Judicature Act (Cap 322),Power of High Court in such situation,Burden on defence at close of criminal matter,Applicant failing to state exact order sought,Application for criminal motion by party other than Public Prosecutor,Whether court duty bound to defend or assist accused,Criminal Procedure and Sentencing

: This was a motion by the applicant, Ng Ai Tiong, purportedly made under s 60 of the Supreme Court of Judicature Act (Cap 322) (`SCJA`). The motion arose from my decision in MA 113/99 PP v Ng Ai Tiong [2000] 1 SLR 454 in which I allowed the prosecution`s appeal against the acquittal of the applicant by the trial judge. The applicant was convicted of an offence punishable under s 116 read with s 193 of the Penal Code (Cap 224) and was sentenced to a term of one year`s imprisonment.

The detailed facts of the case, and my determination thereon, are set out in my judgment in MA 113/99 and I do not propose to repeat them in full here. Briefly, the applicant was charged with the offence of abetting one Roger Ong Soon Chye (`Roger Ong`), by instigating him to commit an offence of giving false evidence in a stage of a judicial proceeding. The charge was brought against the applicant as a result of the statements made and questions asked by the applicant to Roger Ong during a short encounter that took place between them on the evening of 24 March 1999. At the district court level, the trial judge acquitted the applicant, having found that the element of `instigation` had not been established on the facts. The appeal by the Public Prosecutor came before me on 18 November 1999 and I allowed the appeal after hearing the arguments from both sides.

Procedural error in application

At the outset, I am compelled to point out a critical procedural error made by counsel for the applicant in bringing this motion. In the title of the motion paper filed, counsel for the applicant had stated that this motion was `in the matter of s 60 of the Supreme Court of Judicature Act (Cap 322)`. However, counsel failed to elaborate in his prayer what exactly was the court order that was being sought. What was stated in the prayer was merely the following: `... counsel for the applicant moves this Honourable Court for the following order`, which was then followed by four questions. But what is the court to order with respect to the four stated questions?

I was of course able to deduce that an application made pursuant to s 60 of the SCJA would be one seeking a reference to the Court of Appeal on certain questions of law arising from a criminal appeal heard in the High Court. However, the request of the applicant for a specific order that the questions framed be reserved for determination by the Court of Appeal must still be clearly articulated in the prayer sought. It is a fundamental requirement in applications made to the court that the court receives proper notice of what exactly is being asked from it. This necessitates that counsel enunciates clearly in the relevant court papers, such as in the motion paper in this case, the precise order that is being requested.

In the present case, this basic requirement was evidently not satisfied. A careful perusal of both the motion paper as well as the notice of motion filed showed that nowhere in either of the documents was it stated that the applicant was seeking to refer the four questions to the Court of Appeal for consideration. This blatant oversight by counsel for the applicant would have been sufficient reason for me to dismiss this application. However, as no objections were raised by the prosecution on this matter, I decided to allow counsel the opportunity to canvass his arguments before me with respect to the motion brought.

Questions posed by the applicant

The following four questions were stated in the motion paper:

(1)	(a)	Whether the word `instigates` in s 107(a) of the Penal Code (Cap 224) requires the prosecution to show that `there had been active suggestion, support, stimulation or encouragement ...` [as pronounced in PP v Lim Tee Hian [1992] 1 SLR 45 ] or a `mere intention`.
	(b)	Whether the words `... thing ...` in s 107 and `... that thing ...` in s 107(a) of the Penal Code require the prosecution to show that at the time of the `instigation` the abetted knew or can be said to have reasonably known what `thing` the abettor was referring to at that point of time as opposed to what the abettor subsequently discerns.
	(c)	Whether, when the word `thing` in s 107 of the Penal Code as spoken or uttered or done by the abettor is capable in law of two interpretations, one legal and the other illegal, must the prosecution prove that the abettor was only referring to the `thing` illegal or is it sufficient for the prosecution to prove that the abetted understood or thought that it is an illegal thing. Additionally, whether the courts can or should scrutinise by an objective or subjective test the `thing` done, uttered or said by the abettor to determine its legality.
(2)		Whether the appellate court hearing an appeal from a district court can be said to have passed a sentence `... according to law ...` [as laid down in s 108(n)(ii) of the Criminal Procedure Code (Cap 68)] or `... save in accordance with law ...` [as required under art 9(1) of the Singapore Constitution] when it reverses the order of acquittal, and imposes a jail term of one year without hearing or affording an opportunity for counsel for the applicant or the applicant to tender the plea in mitigation.

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