Public Prosecutor v Ho Chye Shin & anor

• Jurisdiction: Singapore
• Judge: Eric Tin Keng Seng
• Judgment Date: 03 January 2001
• Neutral Citation: [2001] SGMC 1
• Year: 2001
• Published date: 19 September 2003
• Citation: [2001] SGMC 1
• Court: Magistrates' Court (Singapore)

JUDGMENT:

Grounds of Decision

1. This is the Prosecutions appeal against acquittal.

2. Mr Ho Chye Shin and Mr Lim Kwee Chye claimed trial before me to three counts each (charges marked as Exhibits P1 to P6) under the Films Act (Cap. 107) for:

a. carrying on business of distributing films without a valid license;

b. in furtherance of their common intention, attempting to distribute uncensored and uncertificated films;

c. in furtherance of their common intention, being in possession of obscene films for the purpose of distribution with knowledge that they were obscene.

Prosecutions case

3. The Prosecution called four witnesses. A deputy censor Mr Kwok Ah Tee from the Board of Film Censors gave evidence on the contents of the films. Two police sergeants Mr Brian Ong Lay Hian and Mr Dave Chia Lip Hong, the arresting officers, testified on the circumstances surrounding the arrest. Woman senior staff sergeant Ms Ang Lay Tin, the investigating officer, testified on the accounting of the case exhibits.

Deputy censor Mr Kwok Ah Tees evidence

4. Mr Kwok confirmed that on 25 May 2000, Ms Ang handed 109 jackets containing 111 pieces of VCDs (collectively marked as Exhibit P8) to him for examination. Of these, he found 107 pieces contained 107 obscene films, and four pieces contained two uncensored and uncertificated films. Details of the obscenity are given in his statement dated 29 May 2000 (marked as Exhibit P15). He said Ms Ang did not ask him whether both accused had a license to operate the business of distribution and exhibition of films, and he also did not check. It was from the police report lodged by the arresting officer that he concluded that all the VCDs belonged to both accused.

Investigating officer Ms Ang Lay Tins evidence

5. Ms Ang testified that the VCDs and other exhibits of this case were handed to her as duty investigating officer on 21 May 2000. She sent the VCDs to the Board of Film Censors on 25 May 2000. The exhibits seized were a make-shift table, a chair, one black sling bag (Exhibit P9), one table cloth (Exhibit P10), some plastic pegs (Exhibits P11A to P11D), and some black plastic bags (Exhibits P12A and P12B).

6. She said the make-shift table and chair were disposed of before this trial pursuant to an order of court. It was apparently the practice of her police division to have such case exhibits disposed of before trial. She produced a photocopied order of court which listed a series of exhibits apparently ordered to be disposed. She had neither the original nor a certified true copy of the order. She did not even know who was the judicial officer who authorised the disposal. There was also no identification of the signatory on the order. I refused to have the photocopied order admitted in evidence as it was not even secondary evidence.

Arresting officer Mr Brian Ongs evidence

7. Mr Brian Ong testified that on 21 May 2000 at about 4.20 pm, he was on duty with Mr Dave Chia and they arrived at the vicinity of Blk 710A, Ang Mo Kio Avenue 8 (also known as Ang Mo Kio Central). They spotted a make-shift table manned by two male Chinese. They then positioned themselves for further observation. At 4.25 pm, Mr Ong observed Mr Ho standing behind the make-shift table arranging the VCDs on the table. Mr Lim was seen sitting on a red plastic chair behind the table constantly looking left and right.

8. At this juncture, four passer-bys came all at once and stopped at the table and began looking at the VCDs. Mr Ho was seen talking to them while Mr Lim stood up and began looking left and right constantly. The four passer-bys remained at the table for about 30 seconds. They left without buying any VCDs.

9. At 4.30 pm, Mr Ho was seen saying something to Mr Lim who then proceeded to a staircase directly in front of them, about five metres from the table, and went underneath. There was nobody else at the staircase then. Five seconds later, Mr Lim emerged from there with some VCDs in his hand and passed them to Mr Ho. Mr Ho then began to arrange the VCDs on the table while standing, and Mr Lim went to sit on the red chair and again looked left and right.

10. At 4.35 pm, Mr Ong and Mr Chia moved in. Mr Ong identified himself as a police officer and detained them. Mr Chia began to question Mr Ho while Mr Ong brought Mr Lim to the staircase. Mr Ong recovered a black sling bag from underneath the staircase and found some VCDs therein in Mr Lims presence. Both accused were then arrested for the present alleged offences. A search was conducted on them but nothing was recovered from them. Mr Ong could not recall if they had cash with them.

11. From the time Mr Ho kept observation to the time he moved in and arrested both accused, he did not see any transaction between them and the passer-bys. Both were seen to be in close proximity, about one metre away from each other. During the observation, Mr Ho was mobile.

Arresting officer Mr Dave Chias evidence

12. Mr Chia was offered for cross-examination. His evidence was that upon arrival at the scene at 4.20 pm with Mr Ong, he saw both accused manning a make-shift stall with about six customers there. He saw both of them respectively handing over VCDs to two of the customers in exchange for cash. He clarified that each of the accused was seen handing over VCDs and accepting cash individually. However, his view was partially blocked and the exact amount of cash he could not see. He said he did not move in straightaway as he required stronger evidence and further observation, to see whether both accused were known to each other or whether they had any assistants.

13. He then saw the two customers who made purchases left with the VCDs. Four other customers remained at the stall and left randomly in a span of five to ten minutes. They were not seen leaving with VCDs. He and Mr Ong did not detain the two customers after they moved away from the stall as they had insufficient manpower, their priority being the apprehension of the operators of the stall. Furthermore, they did not have the luxury of time as it is a common practice for VCD sellers to set up their stall and leave in 10 to 15 minutes. Their observation, he said, was to gather stronger supporting evidence.

14. At about 4.25 pm, he saw Mr Ho and Mr Lim talking discreetly to each other. Mr Lim was sitting by the side of the table on a chair. At about 4.30 pm, he saw Mr Lim walked over to underneath the stairway some five to ten metres away from the make-shift table and emerged with some VCDs. The VCDs were then placed on the makeshift table. A couple of minutes later, Mr Ho and Mr Lim moved in and placed both accused under arrest. Mr Ong then brought Mr Lim to the stairway to retrieve the VCDs while Mr Chia looked after Mr Ho.

15. Mr Chia explained they did not move in (1) when they saw both accused handing over VCDs to customers, or (2) when Mr Lim was going to retrieve the VCDs from under the staircase, or (3) when Mr Ho was displaying or arranging the VCDs, because they wanted to make sure both accused were arrested together. It was after Mr Lim took some VCDs from under the staircase and placed them on the table that they deemed it an appropriate time to move in.

16. Mr Chia confirmed that in the 15 minute observation, he arrived with Mr Ong and was all the time with Mr Ong. They were moving around in the vicinity at different angles to keep observation.

Prima facie case

17. At the close of the Prosecutions case, the charges were amended to reflect the correct the place of offence from "Blk 710" to "Blk 710A". Both accused maintained their plea of not guilty after the amended charges were read and explained to them. They also declined to recall witnesses on the amended charges. They made a short but unremarkable submission of no case to answer and the prosecutor replied. Applying the well-established Haw Tua Taw test, there was clearly a prima facie case on the foregoing evidence which warranted calling for the defence. The standard allocution was accordingly administered to both accused. They elected to testify from the witness box.

The Defence

18. The nub of the defence is that both accused were potential customers who happened to be at the make-shift stall, and that the actual seller of the VCDs was one "Ah Kiat" who had just fled the scene before they were arrested.

Accused Mr Ho Chye Shins evidence

19. Mr Ho testified that on 21 May 2000, he arranged to meet Mr Lim for an outing. They met at a hawker centre above Bishan bus interchange for lunch and proceeded to Bishan Junction 8 for a walk. They then went to Ang Mo Kio Central for shopping. They arrived there about 3 to 4 pm but Mr Ho could not be certain as he was not wearing a watch and did not pay attention to the time.

20. At Blk 710A, Mr Lim saw a friend one Ah Kiat selling VCDs there. Mr Ho was introduced to Ah Kiat who chatted with Mr Lim. Mr Ho then walked to a stall which sells watches opposite the VCD stall and chatted up the salesgirl there. After a while, Mr Lim brought a chair and sat in front of the watch stall. He told Mr Ho that he had no money with him and wanted to borrow some money to purchase some VCDs from his friend. Mr Ho did not tell him if he would lend him money but proceeded to the VCD stall. He looked at the VCDs for a while and the police arrived. The police officers arm locked their necks and identified themselves. Mr Ho said Mr Chia asked both of them who was the boss. He and Mr Lim told Mr Chia that they were there to buy the VCDs which did not belong to them.

21. According to Mr Ho, Mr Chia asked any one of them to take the responsibility and if Mr Lim admitted, he would release Mr Ho. Mr Lim denied the VCDs belonged to him, and said the real boss had ran away. Mr Ho himself did not see how Ah Kiat disappeared suddenly. Mr Chia then asked if the VCDs belonged to Mr Ho, and whether Mr Ho was the seller while Mr Lim acted as a lookout. Mr Ho also denied. He explained to Mr...