Public Prosecutor v Banphanuk and Another

• Jurisdiction: Singapore
• Judgment Date: 25 April 1995
• Docket Number: Criminal Appeal No 50 of 1994
• Date: 25 April 1995
• Court: Court of Three Judges (Singapore)

Public Prosecutor

Plaintiff

and

Ketmuang Banphanuk and another

Defendant

[1995] SGCA 40

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 50 of 1994

Court of Appeal

Criminal Procedure and Sentencing–Charge–Alteration–Discretion of court–Admission to statement of facts supporting original charge without qualification–Preliminary inquiry records casting doubt on whether elements of charge made out–Trial judge amending charge to lesser one–Whether discretion wrongly exercised–Criminal Procedure and Sentencing–Preliminary inquiries–Admissibility–Court ought to convict unless exceptional circumstances existed–Admission to statement of facts supporting original charge without qualification–Preliminary inquiry records casting doubt on whether elements of charge made out–Trial judge amending charge to lesser one–Whether preliminary inquiry records admissible to contradict admitted statement of facts

The two accused pleaded guilty to committing culpable homicide not amounting to murder in furtherance of a common intention with two other persons, under s 304 (a) read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). They also admitted to the statement of facts, which on its face supported all the elements of the charge. The trial judge rejected their pleas of guilt on the ground that the facts as recorded in the preliminary inquiry did not support the charge, in that it raised the possibility that the fatal injury inflicted by the accused could have been inflicted after his death, and this possibility could not be excluded by the forensic pathologist when he gave evidence at the trial. The trial judge amended the charge to one of furthering a common intention to commit attempted murder under s 307 read with s 34 of the Penal Code and convicted them on this amended charge. The Prosecution appealed.

Held, allowing the appeal:

(1) In a case in which the statement of facts could also support the amended charge, the discretion of the court to alter the charge at any time before judgment as provided under s 163 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) did not necessarily permit the judge to amend the charge. While the court retained a discretion under s 187 of the CPC to convict the accused on his guilty plea, if the court found that the statement of facts disclosed that the offence for which the accused had been charged was made out, and the accused admitted to the statement of facts without qualification and did not qualify the plea of guilt or the statement of facts at any stage of the proceedings, the court ought not to amend the charge and, unless there were exceptional circumstances otherwise, the court ought to convict the accused on that charge: at [9].

(2) The records of the preliminary inquiry were not evidence before the court. They were only admissible in a trial in very limited situations, and it was only exceptionally that the court would treat as evidence the contents of the records which were not testified to at trial. In this case, the trial judge should not have taken cognisance of the records of the preliminary inquiry. Without such records, there was no evidence to contradict the statement of facts which disclosed all the elements of the offence, and the trial judge ought to have convicted the two accused under the original charge: at [10] to [13].

Ismail v PP [1965-1967] SLR (R) 485; [1965-1968] SLR 181 (folld)

Mok Swee Kok v PP [1994] 3 SLR (R) 134; [1994] 3 SLR 140 (folld)

PP v Mary Shim [1961] MLJ 314 (folld)

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 163, 187,368

Penal Code (Cap 224,1985 Rev Ed)ss 34, 304 (a), 307

Supreme Court of Judicature Act (Cap 322, 1993 Rev Ed)ss 54, 55

Christine Lee (Deputy Public Prosecutor) for the appellant

Selva Naidu (Palakrishnan & Pnrs) for the first respondent

Sivaratnam (S Ratnam & Associates) for the second respondent.

M Karthigesu JA

(delivering the grounds of judgment of the court):

1 This is an appeal by the Public Prosecutor. The respondents referred to hereafter as “the two accused” were originally charged that they, in furtherance of the common intention of themselves and two other persons, had committed the...