Ng Chee Tiong Tony v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 12 December 2007
• Date: 12 December 2007
• Docket Number: Magistrate's Appeal No 35 of 2007
• Court: High Court (Singapore)

Ng Chee Tiong Tony

Plaintiff

and

Public Prosecutor

Defendant

[2007] SGHC 217

Lee Seiu Kin J

Magistrate's Appeal No 35 of 2007

High Court

Administrative Law–Natural justice–Trial judge descending into arena and questioning accused using cross-examination-like questions–Trial judge relying on evidence from own line of questioning in justifying finding of fact in grounds of decision–Prohibition against assuming inquisitorial role–Whether trial judge's judgment and ability to properly evaluate and weigh evidence impaired–Whether trial rendered unfair and conviction ought to be quashed–Criminal Procedure and Sentencing–Appeal–Acquittal–Applicable principles in deciding whether to acquit or to order retrial

The appellant, Ng Chee Tiong Tony (“Ng”), was convicted of the charge of voluntarily causing hurt to one Serene Neo (“Neo”) by punching her in her left eye. The alleged offence took place after Ng, Neo and Neo's husband, Yanto Budiman Nur (“Yanto”), were involved in a heated argument at a traffic junction. Vulgarities were exchanged, Ng allegedly punched Neo and Yanto also allegedly threw six to eight punches on Ng's head. Both Ng and Yanto were charged for the same offence.

The trial judge found Ng to be the dominant aggressor throughout the incident and sentenced him to six weeks' imprisonment. Ng appealed against both his conviction and sentence, mainly on the ground that the trial judge had unreasonably and unfairly entered the arena of conflict by excessively questioning Ng, through a total of 76 continuous questions covering 12 pages of the notes of evidence, thereby rendering the conviction unsafe.

Held, allowing the appeal by setting aside the conviction and acquitting the appellant of the charge:

(1) A trial judge had a wide power under s 167 of the Evidence Act (Cap 97, 1997 Rev Ed) to ask questions of any witness before him, but that power was not without limit. A trial judge must bear in mind that ours was an adversarial system in which the role of a judge was that of a detached adjudicator and it was for the Prosecution to prove its case: at [12] and [13].

(2) The “prohibition against assuming an inquisitorial role” was separate from the test of “reasonable suspicion of bias” as it did not concern the issue of apparent bias but dealt with the question of whether the tribunal had so descended into the arena as to impair its judgment and ability to properly evaluate and weigh the evidence as to render the trial unfair. If a judge entered the arena, the judge would be ill-suited to dispense dispassionate justice as he would, in the process, slip into the perils of self-persuasion: at [16] and [17].

(3) While it was entirely proper for a trial judge to ask questions to clarify an unclear answer, or even to establish a crucial point (which must be carried out with circumspection and in a neutral manner), what was done in the present case went past that. A considerable number of questions were in the nature of cross-examination. It was the duty of the Prosecution to bring out the evidence to prove its case; it was not the judge's duty to do so, and certainly not to take over the cross-examination to make up for any shortfall in the conduct of the case by the prosecutor. It was certainly not for a trial judge to test the credibility of a witness by sustained questioning. Quite apart from the problem of giving a perception of bias to a reasonable observer, it was well known that witnesses often responded differently to a judge as compared with cross-examining counsel: at [22].

(4) More importantly, in the grounds of decision the trial judge had relied on evidence obtained from her own line of questioning in justifying her disbelief of Ng's version of events, a finding that was crucial in her decision to convict. A person who had attended the trial and read the grounds of decision would entertain a reasonable suspicion of bias on the part of the trial judge: at [23].

(5) The High Court accordingly quashed the conviction. In deciding whether to acquit the accused or to order a retrial the court considered the following factors: (a) the gravity of the charge and the facts; (b) the likelihood of a successful prosecution in a retrial; and (c) the prejudice suffered by the accused if a retrial were ordered. There was greater public interest in ensuring that a person who had committed a serious offence was brought to justice as opposed to a less serious one. There was also greater public interest in remitting a strong case for retrial than a weak one. Ng had been put through a six-day trial, incurred expenses for defending the charge and suffered uncertainty over a long period. Further, had the trial judge not interfered, there might not have been sufficient evidence to disbelieve Ng's version and a retrial would mean that the Prosecution would have a second bite of the cherry. In these circumstances, it would not conduce to justice to order a retrial: at [29] to [34].

Beh Chai Hock v PP [1996] 3 SLR (R) 112; [1996] 3 SLR 495 (folld)

Chee Chiew Heong v Public Prosecutor [1981] 2 MLJ 287 (refd)

Dennis Reid v The Queen [1980] AC 343 (refd)

Galea v Galea (1990) 19 NSWLR 263 (refd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR (R) 791; [1992] 2 SLR 310 (refd)

Jones v National Coal Board [1957] 2 QB 55 (refd)

King, The v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 (refd)

Mayor and Burgesses of the London Borough of Southwark, The v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 (refd)

Roseli bin Amat v PP [1989] 1 SLR (R) 346; [1989] SLR 55 (refd)

Shankar Alan s/o Anant Kulkarni, Re [2007] 1 SLR (R) 85; [2007] 1 SLR 85 (folld)

Singapore Amateur Athletics Association v Haron bin Mundir [1993] 3 SLR (R) 407; [1994] 1 SLR 47 (refd)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR (R) 576; [1998] 1 SLR 97 (refd)

Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR (R) 633; [1989] SLR 1129 (refd)

Yap Chwee Khim v American Home Assurance Co [2001] 1 SLR (R) 638; [2001] 2 SLR 421 (folld)

Yuill v Yuill [1945] P 15 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)ss 199, 256 (b) (i)

Evidence Act (Cap 97,1997 Rev Ed)s 167

Penal Code (Cap 224,1985 Rev Ed)s 323

Peter Keith Fernando (Leo Fernando) for the appellant

April Phang (Attorney-General's Chambers) for the respondent.

Lee Seiu Kin J

1 On 28 February 2007, the appellant, Ng Chee Tiong Tony (“Ng”), was convicted of the charge of voluntarily causing hurt to one Serene Neo (“Neo”) by punching her in her left eye, and sentenced to six weeks' imprisonment by the learned trial judge. Being dissatisfied with the learned trial judge's decision, he appealed against both his conviction and sentence. He had two grounds of appeal:

(a) The learned trial judge had unreasonably and unfairly entered the arena of conflict by excessively questioning Ng, through a series of about 70 continuous questions, thereby rendering the conviction unsafe.

(b) The evidence of the two key prosecution witnesses was unreliable because the undisputed relative end positions of the parties' vehicles were inconsistent with Neo's and her husband's account of the incident, and, instead, supported Ng's assertion that Neo's husband was indeed the dominant aggressor throughout the incident.

2 At the end of the hearing on 12 October 2007, I allowed the appeal by setting aside the conviction and acquitting Ng of the charge. I now give the reasons for my decision.

Background facts

3 On 22 December 2005 at about 10.00pm, Neo was on the passenger seat of a van driven by her husband Yanto Budiman Nur (“Yanto”) along Penang Road. At the same time, Ng was driving his car on the lane to the left of Yanto's van. Both drivers were intending to turn right into Buyong Road when the unfortunate events began. According to Yanto, Ng had suddenly cut into his lane causing him to swerve to the right to avoid a collision with Ng's car. On the other hand, Ng asserted that he had signalled his intention to filter to the next lane to his right before changing lane. Ng said that as he was doing so, he heard a slight honk but ignored it. Ng further stated that Yanto then headed directly towards the right side of his car, almost hitting it. Ng then swerved to his left to avoid colliding with Yanto's van, and by the time he stopped his car at the junction of Buyong Road with Orchard Road, he had ended up on the leftmost lane of Buyong Road. Yanto's van was on the next lane to the right of Ng's car.

4 What happened subsequently is set out in the grounds of decision (“the GD”) of the learned trial judge: seePP v Ng Chee Tiong Tony [2007] SGMC 13. I will therefore not repeat them, except when required in the course of this decision. Ng on the one hand, and Yanto and Neo on the other, gave differing versions of what transpired. The learned trial judge found Ng to be the dominant aggressor throughout the incident, although Ng claimed that Yanto was drunk at the material time and had acted aggressively by purposely trying to crash into Ng's car when the latter filtered into his lane. Suffice it to say that vulgarities were exchanged and there was a heated argument between the parties. Neo claimed that this culminated in Ng punching her in her left eye. Ng claimed that all he did was to make a gesture at her as if to punch her, but he did not touch her at all. What is undisputed is that both Ng and Yanto ended up being charged for voluntarily causing hurt; Ng for punching Neo in her left eye and Yanto for throwing six to eight punches on Ng's head thereafter.

The conduct of the trial

5 Ng was the sole defence witness. On the first day of his testimony, the morning was spent on evidence-in-chief. His cross-examination started after the lunch break and lasted the entire afternoon. The following day, the learned trial judge asked Ng three questions concerning his failure to subpoena his travelling companion to support his defence...