Public Prosecutor v Hardave Singh s/o Gurcharan Singh

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 October 2003
• Neutral Citation: [2003] SGHC 237
• Court: High Court (Singapore)
• Published date: 22 October 2003
• Year: 2003
• Plaintiff Counsel: Christopher Ong Siu Jin (Deputy Public Prosecutor)
• Defendant Counsel: Vasantha Kumar (Vas Kumar and Co)
• Subject Matter: Criminal Procedure and Sentencing,Revision of proceedings,Governing principles,Requirement of some form of serious injustice caused,Conviction and sentence based upon the wrong charge,Whether there was serious injustice as a result,s 268 Criminal Procedure Code (Cap 68),Power to alter the finding of trial judge,Power to amend material errors in charge to reflect the offence,Power to convict on amended charge and pronounce fresh sentence,Whether such powers to be exercised,ss 162, 256, 268 & 396 Criminal Procedure Code (Cap 68)
• Citation: [2003] SGHC 237

1 The respondent pleaded guilty in the subordinate courts to a total of three offences, which comprised two counts of trafficking in controlled drugs pursuant to s 5 of the Misuse of Drugs Act (Cap 185) (‘MDA’) and one count of consumption of a controlled drug pursuant to s 8 of the MDA. He was convicted and sentenced by District Judge Emily Wilfred (‘the district judge’) to a total of 15 years’ imprisonment and 15 strokes of the cane. The respondent appealed against his sentence but this was superseded by an application for criminal revision (CR 11/2003) filed by the district judge pursuant to s 268 of the Criminal Procedure Code (Cap 68) (‘CPC’). The application for criminal revision related to the conviction of the respondent upon a wrong charge. I granted the application for criminal revision and set aside the conviction and sentence on the wrong charge. I amended the charge accordingly, then convicted and sentenced the respondent on the charge as amended. I now give my reasons.

Background

2 The first charge dated 27 February 2003 (‘the unamended first charge’) upon which the respondent was convicted and sentenced was the subject matter of the application for criminal revision brought by the district judge. The charge concerned s 5 of the MDA. It charged that the respondent:

…did jointly traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Cap 185, to wit, by having in your possession for the purpose of trafficking, four (04) blocks of vegetable matters weighing approximately 300 grams, believed to contain cannabis, without authorization under the said Act or the Regulations made thereunder, … thereby committed an offence under Section 5(1)(a) read with Section 5(2) of the Misuse of Drugs Act, Cap 185 and Section 34 of the Penal Code, Cap 224 and punishable under Section 33 of the aforsaid Act. [Emphasis added]

The district judge convicted the respondent on the unamended first charge and sentenced him to 14 years’ imprisonment and 10 strokes of the cane. She also convicted him on a second charge for the possession and consumption of controlled drugs pursuant to s 8 of the MDA and a third charge for trafficking in controlled drugs pursuant to s 5 of the MDA. The sentences imposed for the second and third charges were one year’s imprisonment and five years’ imprisonment with five strokes of the cane respectively. Four other charges for offences under the MDA were taken into consideration with the consent of the respondent by the district judge for the purposes of sentencing. The district judge ordered the terms of imprisonment in respect of the first and second charges to run consecutively, and the term of imprisonment in respect of the third charge to run concurrently for a total of 15 years’ imprisonment and 15 strokes of the cane.

3 The respondent had earlier tendered to this Court an amended first charge dated 2 May 2003 (‘the amended first charge’) in support of the now superseded appeal against sentence, which charged that the respondent:

…did jointly traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Cap 185, to wit, by having in your possession for the purpose of trafficking, two (02) blocks containing 50.29 grams of vegetable matter which was analysed and found to be cannabis, without authorization under the said Act or the Regulations made thereunder, …thereby committed an offence under Section 5(1)(a) read with Section 5(2) of the Misuse of Drugs Act, Cap 185 and Section 34 of the Penal Code, Cap 224 and punishable under Section 33 of the aforsaid Act. [Emphasis added]

This amended first charge dated 2 May 2003 was the charge given to the interpreter to be read to the respondent by the Deputy Public Prosecutor (‘the DPP’) on the first day of the hearing below on 23 June 2003. The respondent proceeded to plead guilty to the amended first charge as it was read to him.

4 The DPP, however, did not tender the amended first charge to the district judge. The amended first charge was at no time in the court file before the district judge. As a result, the district judge wrongly understood the respondent to have pleaded guilty to the unamended first charge and convicted and sentenced him on it accordingly. The conviction of the respondent therefore related to a wrong charge.

5 The first simple but material difference between the unamended first charge and the amended first charge related to the quantity of controlled drugs reflected in the charge to be in the possession of the respondent for the purpose of trafficking. The other difference related to the quality of the controlled drugs said to be in the possession of the respondent for the purpose of trafficking. The first charge was for the possession for the purpose of trafficking of ‘four (04) blocks of vegetable matters weighing approximately 300 grams, believed to contain cannabis’, whereas the amended first charge was for the possession for the purpose of trafficking of ‘two (02) blocks containing 50.29 grams of vegetable matter which was analysed and found to be cannabis’ [Emphases added]. The unamended first charge was obviously very vaguely worded.

6 It was undisputed before me that at the time of the respondent’s guilty plea on 23 June 2003, it was the understanding of both the prosecution and the respondent that the respondent’s guilty plea was to the amended first charge that referred to 50.29 grams of cannabis. It was also clear to me that the charge which the prosecution proceeded with against the respondent was the amended first charge, since it was the charge given to the interpreter by the DPP to be read out to the respondent on the first day of the trial.

7 Importantly, the evidence did not support the unamended first charge. The amalgamated statement of facts and the Health Sciences Authority’s reports (‘HSA reports’) of the substances found in the possession of the respondent made reference to a quantity of 50.29 grams of cannabis in support the first charge proceeded against the respondent. There was no reference anywhere to four blocks of vegetable matters weighing 300 grams believed to be cannabis.

8 Counsel for the respondent subsequently discovered that the district judge had convicted the respondent on the unamended first charge and wrote in for clarification. The district judge duly called for a meeting with counsel in chambers. It was ascertained in chambers on 28 August 2003 that the unamended first charge was in fact a ‘holding charge’ preferred against the respondent upon his arrest pending the completion of investigations. Such charges are invariably amended upon the completion of investigations to reflect accurately the evidence that supports the charge to be actually proceeded with against the accused. This was in fact done in the present case on 2 May 2003. Unfortunately, the amended first charge did not find its way into the trial court file as the DPP did not tender it to the district judge on the first day of trial.

9 Following this meeting, the district judge made an application for criminal revision pursuant to s 268 of the CPC on 2 September 2003 to this Court. This application was supported by the Public Prosecutor, the petitioner here.

Criminal Revision

10 Following from the above, it was patently clear to me that the district judge convicted and sentenced the respondent on the wrong charge. The respondent should not have been convicted and sentenced on the unamended first charge for the following reasons:

(i) The conviction and sentence below were founded upon a wrong charge. The respondent had pleaded guilty to the amended first charge as read to him by...