Ng Kim Han and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 March 2001
• Neutral Citation: [2001] SGHC 42
• Docket Number: Criminal Revision No 23 of 2000
• Date: 08 March 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Jimmy Yim SC and Suresh Divyanathan (Drew & Napier)
• Citation: [2001] SGHC 42
• Defendant Counsel: Hay Hung Chun (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Effect of petitioners' plea of guilty,Serious injustice warranting exercise of powers of revision,Effect of three-month delay in filing petition,Revision of proceedings,Effect of petitioners' failure to engage legal representation,Criminal Procedure and Sentencing,Conviction despite absence of essential element of offence

: The facts

On 13 November 1999, at about 8.20pm, officers from the Gambling Suppression Branch of the Criminal Investigation Department conducted a raid on a factory at 31 Sungei Kadut Street 4 (`the Premises`). Inside, they found eight persons gathering around a table, engaged in a game of pai kow . The raiding party arrested all eight persons in the office.

One of the eight persons arrested was one Chua Seong Soi (`Chua`), who was the tenant of the Premises. He was charged, under s 4(1)(b) of the Common Gaming Houses Act (Cap 49) (`the Act`), with having permitted the Premises to be used as a common gaming house. The seven other persons who were arrested on the Premises were jointly charged, under s 7 of the Act, with gaming in a common gaming house. The charge against the seven persons read as follows:

You ...

are charged that you on the 13th of November 1999, at about 8.20pm, at No: 31 Sungei Kadut Street 4, office at the ground floor, Singapore, which is used as a common gaming house, did play a game of chance, to wit, "Pai Kow" by using domino tiles and cash as stakes, and you have thereby committed an offence punishable under Section 7 of the Common Gaming Houses Act, Cap 49.

These seven persons were the petitioners in the present proceedings.

On 15 November 1999, the petitioners pleaded guilty to the charge. Each of them was accordingly convicted and sentenced to a fine of $1,000, in default two weeks` imprisonment. Chua, on the other hand, claimed trial.

Chua was found guilty by the magistrate`s court on 15 May 2000, and sentenced to two months` imprisonment and a $20,000 fine. He appealed to the High Court. The appeal was allowed by me on 19 September 2000. In reversing Chua`s conviction, I found that the Premises were not used primarily for gaming, and so did not fall within the definition of the term `common gaming house` as defined by the Act (see Chua Seong Soi v PP [2000] 4 SLR 313 at pp 325-326):

39[emsp ]The law is clear. In order for premises to be `habitually` used for gaming within the meaning of the second limb of the definition of the term `common gaming house`, they must be used primarily for gaming ... In the present case, it seemed that the trial judge below did not fully appreciate the purport and extent of the limitation. The evidence showed that the premises were primarily used for the businesses of two live and substantial companies. The gaming that occurred on the premises, if it could even be deemed to have been frequent at all, was only incidental (see R v Li Kim Poat & Anor [1933] MLJ 164 [1933] SSLR 129 ) to the business conducted on the premises. The premises could not have been said to be used primarily for gaming. [Emphasis is added.]

As a result of Chua`s acquittal, the petitioners filed a petition for criminal revision on 23 December 2000. By it, they sought a reversal of their convictions, a removal of the criminal record against each of them and the return of the fines that they had paid.

The appeal

(a)[emsp ]When criminal revision is generally allowed

The principles to be borne in mind in the exercise of this power have been reiterated several times by the authorities. Oft quoted is the following passage from the case of Ang Poh Chuan v PP [1996] 1 SLR 326 at p 330:

Thus various phrases may be used to identify the circumstances which would attract the exercise of the revisionary jurisdiction, but they all share the common denominator that there must be some serious injustice. Of course there cannot be a precise definition of what would constitute such serious injustice for that would in any event unduly circumscribe what must be a wide discretion vested in the court, the exercise of which would depend largely on the particular facts. But generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below.

An example of when the power of revision was exercised is the case of Abdul Aziz bin Ahtam v PP [1997] 2 SLR 96 . In that case, the petitioner was tried in the District Court, together with one Goh and one Teo, on a charge of having cannabis in his possession for the purpose of trafficking, in furtherance of the common intention of all three of them. It was the defence of both Goh and the petitioner that Teo was the culpable party, and that they had no connection with Teo`s activities. Both Goh and the petitioner were convicted after a trial. Goh proceeded with an appeal to the High Court, but the petitioner withdrew his own appeal. Subsequently, Goh`s appeal was allowed, as it was found that the prosecution`s evidence did not support the charge against him. The petitioner in that case thereupon filed a petition for criminal revision, wherein he relied upon the same grounds on which Goh`s appeal had been allowed. In dealing with the petition, I held (at 102D):

For present purposes, it would suffice to note that the petitioner would have reasonably and justifiably expected that the legal reasoning adopted in Goh`s case would also apply to him as regards the question whether he was in possession of drugs.

Pausing here for a moment and reverting to the facts of the instant petition, I would like to re-iterate that the same approach applies here. The legal reasoning used in Chua `s case (supra) for ascertaining whether the Premises were a common gaming house must necessarily apply equally in the case of the petitioners.

I further held in Aziz bin Ahtam (supra at 102E):

I concurred with the DPP that Goh`s acquittal did not necessarily mean that the petitioner would also have to be acquitted. The question was whether there would be serious injustice if his conviction on the charge of drug trafficking were to remain, in the light of the outcome of Goh`s appeal.

The petition in Aziz bin Ahtam was allowed, on the ground that the evidence adduced did not establish that the petitioner had the requisite mens rea for the offence.

While there is no clear-cut test of what constitutes `serious injustice`, I believe that it cannot really be disputed, as seen from Aziz bin Ahtam (supra), that such injustice should be held to exist when a person has been convicted despite the obvious absence of an essential constituent of the offence concerned. Thus,...