Public Prosecutor v Dinesh s/o Rajantheran

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 23 April 2019
• Neutral Citation: [2019] SGCA 27
• Plaintiff Counsel: Kow Keng Siong, Kelvin Kow and Senthilkumaran Sabapathy (Attorney-General's Chambers)
• Docket Number: Criminal Reference No 5 of 2018
• Date: 23 April 2019
• Hearing Date: 05 March 2019
• Subject Matter: Criminal references,Qualification of plea,Criminal Procedure and Sentencing,Plead guilty procedure
• Year: 2019
• Defendant Counsel: Peter Keith Fernando, Renuga Devi & Kavita Pandey (Leo Fernando)
• Court: Court of Appeal (Singapore)
• Citation: [2019] SGCA 27
• Published date: 27 April 2019

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

This was a criminal reference brought by the Public Prosecutor (“the Prosecution”) to refer two questions concerning the interpretation of s 228(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to the Court of Appeal. Section 228(4) of the CPC, which was enacted as part of a suite of changes to the CPC in 2010, provides as follows:

Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.

The Prosecution contended that s 228(4) of the CPC did not apply to an accused person who, having pleaded guilty to an offence, then wished to change his mind. According to the Prosecution, such a person would be obliged to apply to the court to be allowed to retract his guilty plea and to set aside his conviction. If the court declined to allow the application, then the accused person would not be permitted to advance anything in his mitigation plea that would be inconsistent with his guilty plea. Were it otherwise, an accused person would be able, in effect, to circumvent the need to make an application for leave to retract his guilty plea by simply asserting facts in mitigation which were inconsistent with his earlier plea of guilt. The Prosecution contended that this should only be permitted if the accused person had valid and sufficient reasons for retracting his guilty plea. The High Court Judge (“the Judge”) who heard the respondent’s petition for criminal revision in this case disagreed with this position, and held that the unambiguous language of s 228(4) of the CPC made it clear that the court was compelled to reject a guilty plea as long as matters raised in the mitigation plea materially qualified the earlier plea of guilt.

After hearing the submissions of the parties, we reformulated and answered the two questions referred in the manner set out below at [71]–[72]. We agreed with the Judge that the respondent’s conviction should be set aside and the matter remitted to the State Courts for trial. We now give the reasons for our decision.

Background facts

The respondent in this case faced 63 charges under s 22A(1)(a) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed), for having received from foreign employees a sum of $2,000 (per employee) as a condition for their employment by two marine companies, of which the respondent was a senior executive. The respondent initially claimed trial to these charges, and the trial commenced in the State Courts before the District Judge.

On the second day of the trial, the respondent’s counsel at that time, Mr Kalidass Murugaiyan, sought an adjournment to consider a plea offer communicated by the Prosecution. The respondent subsequently pleaded guilty to 20 proceeded charges, and admitted to the statement of facts without qualification after some clarifications were made at the request of Mr Kalidass. The respondent was accordingly convicted on his plea.

The Prosecution then made its submissions on sentence before the District Judge, following which Mr Kalidass sought a further adjournment for the respondent’s mitigation and sentencing submissions to be made on another date. This was done notwithstanding the fact that Mr Kalidass had already prepared a written mitigation plea highlighting the respondent’s personal mitigating circumstances, such as the fact that he had a pregnant wife and aging parents to support. This first mitigation plea did not contain any assertions that in any way qualified the original guilty plea.

The District Judge adjourned the sentencing hearing to be heard on another date. Following the respondent’s conviction, the Prosecution allowed several foreign witnesses who had been scheduled to testify at the trial to return to Myanmar.

Before the adjourned sentencing hearing took place, Mr Peter Fernando took over conduct of the defence from Mr Kalidass, and he informed the court that he had been instructed by the respondent to make an application at the next hearing for permission to retract his guilty plea. On the District Judge’s directions, the parties furnished written submissions in connection with the intended application.

The respondent’s submissions for retraction stated that he “disputes the following material allegations against him”: I. that he received directly from each of the foreign employees named in Table A of the Statement of Facts a sum of SGD$2,000 each, as a condition for their employment as reclamation workers by the respective companies as stated in Column E; II. that the accused knew that each of the named 20 foreign employees had each paid a sum of about 4 million kyat (equivalent to about SGD$4,000) as agent fees to an employment agent in Myanmar known as “Soe Hla” in order to get their jobs as seaman in Singapore; III. that the accused had any knowledge that Soe Hla passed envelopes to the said foreign employees stating that there were sums of monies in the envelopes and that they were to pass the envelopes to the accused upon their arrival in Singapore; IV. that the accused knew that the said envelopes contained money that were from the foreign employees’ agent fees which were paid to Soe Hla; V. that the accused knew that each of the said foreign employees had contributed SGD$2,000 out of the SGD$4,000 in agency fees to be paid to the accused in order for them to secure their jobs with the companies and to come over to Singapore to work; and VI. that the accused had collected the sums of money as a condition for the employment of the said foreign employees and that he (the accused) was aware that he was not to do so. According to the submissions, these assertions “materially affect the legal conditions of the alleged offences”, and hence the court was “obliged under law to reject the [respondent’s] guilty plea” pursuant to s 228(4) of the CPC. There was evidently some confusion in the position taken by Mr Fernando who cited s 228(4) even though he did not appear to be making any mitigation submissions.

The Prosecution’s written submissions on the other hand referred exclusively to the principles governing an application to retract a guilty plea as laid down in Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR(R) 125 (“Ganesun”). The Prosecution argued that the application should be disallowed because the respondent’s plea had been validly taken, entirely in compliance with the three procedural safeguards: the respondent had pleaded guilty in his own voice and words; he had understood the nature and consequences of his plea; and he had done so intending to admit the commission of the offences without qualification. No mention of s 228(4) was made in the Prosecution’s written submissions.

When the parties returned to court, the District Judge sought clarification from Mr Fernando as to whether he was putting forth an application to retract the guilty plea, or whether the respondent was in fact putting forward matters in mitigation that would qualify his guilty plea. The District Judge indicated that he would not be minded to allow the application if Mr Fernando was pursuing the former course but that he might be compelled to reject the guilty plea in the event the position was the latter. Mr Fernando informed the District Judge that even though the application was termed as one to retract the guilty plea, in fact, his intention was indeed to raise matters in mitigation that would effectively qualify the respondent’s guilty plea. The matter was then adjourned for Mr Fernando to prepare a written mitigation.

A written mitigation plea was subsequently tendered on the respondent’s behalf, in which the respondent once again disputed the six material allegations against him that had been mentioned in the submissions for retraction of plea (see [9] above).

The District Judge refused to reject the respondent’s guilty plea, noting that the procedural safeguards relating to his plea had been observed. The District Judge opined that the mitigation plea in reproducing the six grounds of dispute “was not done in good faith and was done with the view to compelling [the] Court to reject the plea of guilty” pursuant to s 228(4) of the CPC, and as such this was an abuse of process on the respondent’s part and a “backdoor way to turn back the clock” and resile from his guilty plea. The District Judge sentenced the respondent to a fine of $12,000 (in default one month’s imprisonment) for each of the 20 proceeded charges, for a total fine of $240,000 (in default 20 months’ imprisonment). He also made an order requiring the respondent to disgorge the sum of $40,000 (in default 40 days’ imprisonment), which was the aggregate amount he was found to have received in respect of the 20 charges.

Dissatisfied with the District Judge’s decision, the respondent filed a petition for criminal revision (HC/CR 8/2018) to the High Court on the basis that the District Judge had erred in law “in rejecting [the] application for retraction of plea of guilt and/or the qualification of [the] plea of guilt”.

Decision of the Judge

At the hearing of CR 8/2018, the respondent confirmed that he was no longer pursuing the application to retract the guilty plea. The focus of the hearing was thus on the qualification of the guilty plea by reason of matters advanced in the respondent’s mitigation and sentencing submissions.

The Judge set aside the conviction and in his written grounds of decision in Dinesh s/o Rajantheran v Public Prosecutor [2018] SGHC 255 noted that while the language in s 228(4) of the CPC appeared unambiguous, the controversy in this case had arisen out of a line of cases holding that an accused person could not retract his plea of guilty except where valid and sufficient grounds were advanced to satisfy the...