Public Prosecutor v Heah Lian Khin

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 August 2000
• Neutral Citation: [2000] SGHC 154
• Docket Number: Magistrate's Appeal No 354 of 1999
• Date: 01 August 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Chan Wang Ho (Deputy Public Prosecutor)
• Citation: [2000] SGHC 154
• Defendant Counsel: Subhas Anandan (MPD Nair & Co)
• Court: High Court (Singapore)
• Subject Matter: Witnesses,Purposive approach,s 9A Interpretation Act (Cap 1, 1999 Ed),s 45A Evidence Act (Cap 97, 1997 Rev Ed),Statutory Interpretation,Whether phrase encompasses witness who deliberately and falsely claimed inability to recall material facts,Evidence,Statements by witness,Refreshing memory,Witness pleaded guilty to related offences,ss 147(4) Evidence Act (Cap 97, 1997 Rev Ed),Flexible interpretation preferred,"'Previous inconsistent or contradictory statement",Whether previous statement used to refresh witness's memory,Whether previous statement admissible as substantive evidence,Construction of statute,s 147(3) Evidence Act (Cap 97, 1997 Rev Ed),Whether prior criminal record of proceedings admissible as substantive evidence,Whether admissibility of statements subject to test of voluntariness,Prior criminal proceedings against witness,Interpretation of phrase,Impeaching witnesses’ credibility

: This was an appeal by the Public Prosecutor against the decision of District Judge Hoo Sheau Peng acquitting and discharging the respondent on three charges of receiving information communicated in contravention of s 5(2) of the Official Secrets Act (Cap 213) (`OSA`) for want of a prima facie case. After hearing the submissions of both the DPP and counsel for the respondent, I allowed the appeals earlier this morning and remitted the case to the district judge for further inquiry. I now give my reasons for my decision.

The charges

The respondent was tried on the following three charges:

First charge - DAC 36389/99

You, Heah Lian Khin (Male/42 years/NRIC No S1004602E) are charged that you, on or about 17 October 1998, in Singapore, received from one Tay Boon Hian, a Corporal of the Singapore Police Force and attached to the Secret Society Branch, information relating to raids to be conducted on the 17 October 1998 by the said Secret Society Branch, having reasonable ground to believe that, at the time you received it, such information was communicated to you in contravention of the Official Secrets Act, and you have thereby committed an offence under s 5(2) and punishable under s 17(2) of the Official Secrets Act (Cap 213).

Second charge - DAC 36391/99

You, Heah Lian Khin (Male/42 years/NRIC No S1004602E) are charged that you, on or about 21 November 1998, in Singapore, received from one Tay Boon Hian, a Corporal of the Singapore Police Force and attached to the Secret Society Branch, information relating to raids to be conducted on the 21 November 1998 by the said Secret Society Branch, having reasonable ground to believe that, at the time you received it, such information was communicated to you in contravention of the Official Secrets Act, and you have thereby committed an offence under s 5(2) and punishable under s 17(2) of the Official Secrets Act (Cap 213).

Third charge - DAC 36393/99

You, Heah Lian Khin (Male/42 years/NRIC No S1004602E) are charged that you, on or about 29 November 1998, in Singapore, received from one Tay Boon Hian, a Corporal of the Singapore Police Force and attached to the Secret Society Branch, information relating to raids to be conducted on the 29 November 1998 by the said Secret Society Branch, having reasonable ground to believe that, at the time you received it, such information was communicated to you in contravention of the Official Secrets Act, and you have thereby committed an offence under s 5(2) and punishable under s 17(2) of the Official Secrets Act (Cap 213).

The prosecution`s case

The prosecution adduced undisputed evidence showing that Cpl Tay Boon Hian (`Cpl Tay`), who was named in the charges in question, was posted to the Secret Society Branch, (`SSB`) at the material time. Since October 1998, SSB had been actively conducting police operations involving raids in Geylang and had been investigating the activities of a loan shark, Chua Tiong Tiong, also known as `Ah San` or `Ah Long San` (`Ah San`).

The prosecution adduced evidence showing that a confidential order would generally be put up by SSB before each operation. The confidential order contained information pertaining to, inter alia, the date and timing, and the objective of the operation. A confidential pre-operation briefing would also be conducted for officers, touching on the contents of the confidential order and the places to be covered during the operation. SSB officers who were not involved in the operation, and members of the public, were not allowed to attend the briefings or to receive information revealed at such briefings. By the same token, officers attending the briefings were not allowed to disclose to any members of the public the contents of the briefings.

On 17 October 1998 and 21 and 29 November 1998, SSB conducted operations in the Geylang area. Cpl Tay participated in the operations on 17 October 1998 and 29 November 1998 and attended the relevant pre-operation briefings. Cpl Tay was not involved in the operation held on 21 November 1998; hence he was not authorised to attend or to receive the information revealed during the pre-operation briefing.

Evidence of Cpl Tay

Cpl Tay was the principal witness for the prosecution. Cpl Tay testified that the respondent was known to him as `Ah Boy` and was one of his sources. He got to know the respondent in 1996 and 1997 and they subsequently became close friends. At the material time, Cpl Tay was aware that the respondent knew Ah San and that Ah San had business dealings in Geylang.

Cpl Tay testified that he was involved in a night operation conducted by SSB on 17 October 1998 and had attended a pre-operation briefing at about 8.30pm. During the briefing, he was informed of the general area which his team would be covering but he could not recall whether precise locations were mentioned. While travelling in a van after they moved out for the operation at about 8.45pm to 9pm, his team leader informed them of the rough areas which would be covered, including Geylang and Aljunied.

According to Cpl Tay`s testimony, he called the respondent at about 9pm, in response to the latter`s page, after he had moved out of the van. The respondent asked him where he was and enquired if he was free for coffee. He informed the respondent that he could not as he was `having operations`; he also told the respondent that he was `somewhere in Geylang`.

Cpl Tay was not involved in the operation conducted on 21 November 1998. At about noon on that day, he came to know from his colleagues that an operation was to be conducted that night. He could not recall: whether he spoke to or informed the respondent on 21 November 1998 about the operation which was to be conducted that night; and whether Chua or the respondent paged for him that day.

Cpl Tay agreed that he was involved in an SSB operation on 29 November 1998 and attended a pre-operation briefing. He could not recall whether the areas targeted for operation were mentioned at the briefing. His team leader informed them that they were heading for Geylang only after they had moved out for the operation at about 9.15pm. Specifically, Cpl Tay claimed that he could not recall: whether he spoke with the accused after he moved out for the operation; whether he called the respondent before 9.15pm; whether he told the respondent that SSB was conducting a raid that evening; and whether he told the respondent that SSB would be conducting a raid with the anti-vice and Gambling Suppression Branch in the Geylang area that evening.

In addition, Cpl Tay claimed not to be able to recall: whether Ah San called him in October 1998 to find out why there were so many raids by SSB in Geylang; whether he said that SSB was targeting Ah San; whether the respondent asked him if he could provide tip-offs of raids to Ah San; whether he promised to try to do so. Cpl Tay agreed however that it would undermine SSB operations if he informed the respondent of pending operations in the Geylang area.

Prosecution`s attempts to admit Cpl Tay`s previous statement in writing

Cpl Tay had given a statement to CPIB Senior Special Investigator Tin Yeow Cheng on 25 May 1999 and 26 May 1999 which had been recorded pursuant to s 27 of the Prevention of Corruption Act (Cap 241) (`PCA`). In it, Cpl Tay related a detailed account of the surrounding circumstances and the events of 17 October, and 21 and 29 November 1998. These included conversations between Cpl Tay and Ah San and the respondent at the end of October 1998 during which the respondent asked Cpl Tay to provide tip-offs of impending raids in the Geylang area as well as Cpl Tay`s promise to try and provide such tip-offs. The statement also related how Cpl Tay contacted and conveyed information on impending raids to the respondent on the material dates in question. Finally, the statement explained that Cpl Tay provided tip-offs to the respondent because of their friendship.

In light of Cpl Tay`s oral testimony, the prosecution sought to impeach his credit with his previous statement in writing (marked for identification as exh P7I); and to admit it as substantive evidence pursuant to s 147(3) Evidence Act (Cap 97) (`EA`). The DPP later abandoned this application when he was not able to locate authorities supporting his submission that a witness`s inability to recall the material events fell within s 147 EA.

The DPP next sought to refresh Cpl Tay`s memory by referring to this statement pursuant to s 161 EA. Cpl Tay admitted that he gave a statement to the CPIB and confirmed that his signature appeared at the end of the statement exh P7I. Nonetheless, he maintained that he could not recall the events described therein; neither did he affirm that exh P7I was an accurate record of his statement to the CPIB. Subsequently, Cpl Tay claimed that he could not remember giving the statement to the CPIB. In the course of the DPP`s cross-examination, the district judge disallowed questions which sought explanations for the contents of the statement. She held that proceedings under s 161 EA were confined to refreshing the witness`s memory and confirming the matters contained in the statement; these questions were thus a backdoor and improper way of cross-examining Cpl Tay on the statement .

The DPP next applied to admit exh P7I pursuant to s 147(3) EA. The defence objected, arguing that s 147(1) envisaged a situation where the testimony of a witness was clearly opposite to the contents of his previous statement in writing, and not where the witness simply stated that he was unable to recall the material events. As regards Cpl Tay`s oral evidence of the events of 17 October 1998, the defence submitted that this only contained minor differences in phraseology and did not amount to material contradictions. In the event, the district judge disallowed the prosecution`s application.

At this juncture, the DPP resorted to s 45A EA. On 18 November 1998,...