Public Prosecutor v Chua Liew Hin

• Jurisdiction: Singapore
• Judge: Paul Quan
• Judgment Date: 03 May 2011
• Neutral Citation: [2011] SGDC 79
• Court: District Court (Singapore)
• Docket Number: District Arrest Case 933 of 2010 & anor
• Published date: 11 May 2011
• Year: 2011
• Hearing Date: 19 August 2010,20 August 2010,22 December 2010
• Plaintiff Counsel: Ms N K Anitha (Assistant Public Prosecutor)
• Defendant Counsel: Mr Joseph Chen Kok Siang (Joseph Chen & Co)
• Citation: [2011] SGDC 79

District Judge Paul Quan:

The Accused, a 48-year-old Singaporean male Chinese, faced an amended charge of voluntarily causing grievous hurt under Section 325 of the Penal Code, Cap 224 (“first charge”),¹ as well as another amended charge of wilfully contravening a personal protection order (“PPO”) under Section 65(8) of the Women’s Charter, Cap 353 (“second charge”).² On the first day of trial, the Defence indicated that the Accused wished to plead guilty to both charges on the understanding that: first, the first charge would be reduced to one under Section 323 of the Penal Code; and second, a Newton hearing would be convened to resolve disputed facts pertaining to the circumstances leading to the commission of the offence in the first charge. After the Prosecution subsequently confirmed that the first charge would not be reduced in any event, the Accused elected to claim trial to the charges as they stood.

At the conclusion of a two-day trial, time was given for parties to prepare written closing submissions, with the last set of submissions being tendered to court on 18 October 2010.³ Having also had the benefit of time to consider those submissions in conjunction with reviewing the evidence that was adduced during the trial, I was satisfied that the Accused had voluntarily caused grievous hurt to the Complainant, his wife, at the material time, but he had acted under grave and sudden provocation given by her. As for the second charge, I was satisfied that the Prosecution had proven its case beyond reasonable doubt against the Accused for wilfully contravening a PPO in force against him, when he used family violence against the Complainant by causing hurt to her on the same occasion.

I consequently pronounced that I was ‘amending’ the first charge to one under Section 335 of the Penal Code. In effect, I was, as the Prosecution’s petition of appeal rightly stated, framing a new charge under Section 335 of the Penal Code in substitution of the first charge, which reads as follows:⁴

You,

CHUA LIEW HIN, Male 48 years old

...

are charged that you, on 8 September 2009, at or about 6.30pm, at Blk 469 Choa Chu Kang Ave 3 #13-95, Singapore, did voluntarily cause grievous hurt to one Low Gek Chu Helen, female 44 years, to wit, by punching her once on her face thereby causing a fracture of her right inferior orbital wall, on grave and sudden provocation given to you by the said Low Gek Chu Helen, and you have thereby committed an offence punishable under Section 335 of the Penal Code, Chapter 224.

After the new charge was read to the Accused, both the Prosecution and the Defence responded that they had nothing further to add to their respective cases. I noted that from the outset, the Defence had conducted its case on the basis that the Accused had acted under grave and sudden provocation. The Prosecution was also aware of the thrust of the Defence case. As such, I was satisfied that the trial could proceed on the basis of the new charge framed under Section 335 of the Penal Code. I then convicted the Accused on this new charge, as well as the second charge of wilfully contravening a PPO.

After hearing the mitigation and the reply by the Prosecution, I imposed a fine of $3,000, in default three weeks’ imprisonment, on the Accused for the new charge, as well as one day’s imprisonment and the maximum fine of $2,000, in default two weeks’ imprisonment, for the second charge. I also ordered the Accused to compensate the Complainant an agreed sum of $2,661.60, in default three weeks’ imprisonment, for her medical expenses. The Accused duly paid the fines and served the nominal imprisonment term on 22 December 2010. He was given till the end of December 2010 to effect compensation and he has since done so.

Subsequently, on 30 December 2010, the Accused filed a notice of appeal against his conviction for the second charge. On 31 December 2010, the Prosecution cross-appealed against my decision to substitute the first charge with a new one under Section 335 of the Penal Code, as well as the sentences that I have imposed on that new charge and the second charge. I now set out in full the reasons for my decision.

Main issues

It was not disputed that the Accused had assaulted the Complainant. As a result of the assault, the Complainant suffered in the main a fracture of her right inferior orbital wall,⁵ for which she had to undergo surgery.⁶

Essentially, two main issues feature in this case. The first is a factual issue that was live and therefore clearly discernible throughout the proceedings, viz whether the Accused had acted under grave and sudden provocation given by the Complainant. The second is a legal issue that was only seriously raised subsequently in the Defence closing submissions, viz whether the second charge could be preferred against the Accused when it is premised on the same episode of assault as the first charge that has also been preferred. These two issues eventually form the crux of the appeals by the parties. I will discuss them in turn, beginning with the second issue.

Whether the second charge could be preferred

The Defence has appealed against conviction in respect of only the second charge. In its closing submissions, the Defence argued that the second charge should not have been preferred as it “violates the constitutional law against double jeopardy”.⁷ According to the Defence, this was because the second charge is “based on the same actus reus and in respect of the same complainant and the same incident” as the first charge.⁸ In other words, both charges are “predicated on the same/ substantially the same facts – same date, same time, same location, same complainant and same actus reus”.⁹

The Prosecution’s reply was that the first and second charges are distinct and have been properly preferred.¹⁰ Moreover, the offences in respect of the two charges address different mischief.¹¹ The Prosecution therefore submitted that the “the question of infringement of the rule against double jeopardy does not arise at all”.¹²

In effect, the Defence was invoking Article 11(2) of the Constitution of the Republic of Singapore (1999 Rev Ed), which states that:

A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.

However, I was unable to appreciate how this constitutional prohibition against repeated trials could apply in the present case. To my mind the crux of the matter is not so much whether preferring both the first and second charges based on the same set of facts contravened Article 11(2) of the Constitution, which is a statutory embodiment of the common law doctrine of autrefois convict/acquit, as it is whether distinct offences have been committed on the facts of the present case, so as to justify preferring separate charges against the Accused, upon which his conviction for both the first and second charges can then be said to be legally correct.

In PP v Fernandez Joseph Ferdinent [2007] 4 SLR(R) 1, the Singapore Court of Appeal gave guidance as to what constitutes a distinct offence in the context of Sections 84(1) and 84(4) of the Road Traffic Act, Cap 276 (2004 Rev Ed), which would be useful to set out in full: 21 What should be the meaning accorded to the term “distinct”? It should be apparent that the term “distinct offence” envisages an additional requirement over and above just being offences under law itself, for if so, the word “distinct” would be rendered but mere surplusage. In our view, the appropriate starting point would be F A Chua J’s astute observation in the Singapore High Court decision of Tham Wing Fai Peter v PP [1988] 1 SLR(R) 349 at [63], where he observed as follows:

... ‘Distinct’ means ‘not identical’. Two offences would be distinct if they are not in any way interrelated but if there is some interrelation it would depend on the circumstances of the case in which the offences were committed whether there is only one transaction and only one offence was committed. [Emphasis in original]

22 In considering whether the circumstances warrant the view that distinct offences had been committed, it would be important to ascertain how one offence can be distinguished from another. In doing so, a leading local commentator posits the following approach (see Bashir A Mallal, Mallal’s Criminal Procedure (Malayan Law Journal Sdn Bhd, 6th Ed, 2001) at para 6051):

The categories of distinct offences are ... many. A distinct offence may be distinguished from another offence by one or more of the following characteristics:

(i) difference in time ie, commission on different occasions; (ii) place; (iii) persons aggrieved or injured; (iv) nature of acts constituting offences under different sections. 23 Applying the principles just stated to the facts before us, in our view, ss 84(1) and 84(4) of the [Road Traffic] Act clearly constitute distinct offences. This was, after all, not a situation in which one offence was merely a more limited version of the other. Instead, it should be readily apparent that each, in law, comprises separate elements and entails separate considerations: s 84(1) of the Act is premised upon a failure to stop and furnish particulars (where necessary) whilst s 84(4) of the Act is premised upon the moving of a vehicle without authority (in an accident that has resulted in a serious injury) so as to result in the destruction or alteration of the evidence of the accident. On the assumption that the facts of the particular case warrant it, we see no conceptual difficulties in the Prosecution preferring a charge under s 84(1) as well as a charge under s 84(4) since they each constitute separate provisions capturing separate acts that...