Public Prosecutor v Mangalagiri Dhruva Kumar

• Judge: Foo Chee Hock JC
• Judgment Date: 21 March 2018
• Neutral Citation: [2018] SGHC 62
• Citation: [2018] SGHC 62
• Court: High Court (Singapore)
• Published date: 28 March 2019
• Docket Number: Criminal Case No 49 of 2017
• Plaintiff Counsel: April Phang, Carene Poh, Rajiv Rai and Desmond Chong (Attorney-General's Chambers)
• Defendant Counsel: Edmond Pereira (Edmond Pereira Law Corporation) and Prasad s/o Karunakarn (Prasad & Co),Ramesh Tiwary (M/s Ramesh Tiwary) was appointed in his place.]
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Drug Trafficking,Guilty Plea,Criminal Procedure and Sentencing,Retraction of Plea of Guilt,Sentencing,Benchmark Sentences
• Hearing Date: 28 July 2017,02 March 2018,26 July 2017,27 July 2017,11 September 2017,12 February 2018,25 July 2017

Foo Chee Hock JC: Retraction of the plea of guilt

The accused had on 25 July 2017 claimed trial to a capital charge (marked “A”) of trafficking in not less than 22.73 grams (“g”) of diamorphine pursuant to s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The first witness, Mr Khu Nguan Hin (PW1) from the Immigration & Checkpoints Authority, had finished his testimony and the Prosecution had concluded the examination-in-chief of a material witness, Shanti Krishnan (PW2) (“Shanti”), when the Defence applied for a brief adjournment of the proceedings. This was on 26 July 2017. When the court resumed in the afternoon of 27 July 2017, I understood that the Defence had just made representations to the Attorney-General’s Chambers.¹ The matter was adjourned to 28 July 2017 and only after 4.00pm did the accused officially confirm in open court that he would plead guilty to the reduced charge (marked “D”)² of trafficking in “not less than 14.99 grams of diamorphine”, which did not attract the mandatory death penalty. The plea of guilt was taken, the Statement of Facts (marked “E”) (“SOF”) admitted to by the accused without qualification and the court found the accused guilty of and recorded a conviction on the reduced charge.³ The proceedings were then adjourned to a date to be fixed for submissions on sentence.⁴

The proceedings resumed on 11 September 2017 and submissions on sentence by both parties were filed earlier on 6 September 2017. Parties had a preliminary discussion in chambers and were about to proceed for oral submissions in open court when Defence Counsel, Mr Edmond Pereira, indicated that there might be another development. The matter was stood down to the afternoon. Then in open court, the accused applied for the plea of guilt recorded on 28 July 2017 (about 6½ weeks earlier) to be retracted.

Mr Pereira applied to be and was discharged from further acting for the accused. The intervening time was taken up for the accused to obtain new counsel. Mr Ramesh Tiwary now appeared for the accused and maintained the application for the retraction of the plea. On the court’s direction, the accused had put forward his grounds for doing so in an affidavit (“accused’s first affidavit”) filed on the 12 February 2018. I quote from paras 3, 4 and 9: 3. On the day that [Shanti] concluded her evidence in chief my lawyer at that time Mr. Edmond Pereira spoke to me in the court. He advised me that the evidence against me was strong in view of Shanti’s evidence. If I lost the case I could be sentenced to death. He asked me if he could make representations to the DPP to reduce the capital charge to one that did not attract the death sentence. I would have to plead guilty to this amended charge. I think we spoke for about 45 minutes. At the conclusion of that meeting I said I would not plead guilty. He told me to think again and to inform him the next day. He gave me a piece of paper to write what I intended to do. 4. The next morning he met me again. He asked for my decision. At first I said that I would not plead guilty. He advised me again that the evidence against me was strong. He advised me to think of my family, my son and wife. That day was my son’s birthday. I was very emotional. I felt no one believed me. Everyone believed Shanti. I felt alone as if no one was helping me. I was feeling very depressed. I was also missing my son more than ever because it was his birthday. So I agreed to plead guilt. 9. The next time my lawyer saw me at Changi prison I told him I did not want to plead guilty. He said he would then have withdraw from the case. I said okay.

The accused added, “I was very emotional and I had been crying. I was thinking about my son more than ever. In those circumstances I broke down. I agreed to plead guilty. I simply gave up. I am not guilty of the offence or the reduced charge to which I pleaded guilty. I did not give Shanti anything. Therefore I cannot plead guilty.”⁵

The affidavit was served on Mr Pereira who made the following comments in his affidavit (“Mr Pereira’s affidavit”): 8. Save for the fact that I advised the Accused that the evidence against him was strong in view of Shanti’s evidence, paragraphs 3 and 4 of the Accused’s affidavit is untrue. 9. I spoke with the Accused at length after the adjourned hearing. I advised the Accused that the evidence against him was strong. There were circumstances in which if he were questioned following Shanti’s evidence, he would not be able to answer as he had difficulty explaining when I questioned him. I informed him that he was dealing with his life. I told him that I had spoken with the Prosecution earlier that day and the Prosecution had indicated that in the event he elects to plead guilty, the Prosecution will consider proceeding on a non-capital charge and offer him a sentence between 26-30 years’ imprisonment. However, that determination will have to be considered by the Prosecution after they have considered our Representations. Without a moment of hesitation, the Accused immediately agreed to plead guilty to the charge. I told the Accused not to make a rash decision. I provided the Accused with a piece of paper to confirm his instructions to me that he wish to plead guilty to the charge. The Accused asked me what he should write. I told him that if he wishes to plead guilty, he can write to me his instructions. He then wrote on the piece of paper I provided. After he finished writing, I told him to keep the paper with him and to take some time to think about his decision and to inform me on the following day what he intends to do and if he still wishes to plead guilty to the charge, he can than hand his written instructions to me. …

Mr Pereira further added that he received the signed note from the accused on the morning of 27 July 2017. Thereafter, representations were made to the Prosecution. On 28 July 2017, Mr Pereira went through the SOF with the accused. Mr Pereira informed the accused that pleading guilty was “a choice that he has to make freely to which he responded that he understood”.⁶ Throughout the discussion, the accused maintained his decision to plead guilty.

When Mr Pereira visited the accused on 19 August 2017 in Changi Prison, the accused was told that the Prosecution would be seeking a sentence of at least 28 years’ imprisonment. The accused asked if Mr Pereira could request the court to impose a sentence of 20 years’ imprisonment. Mr Pereira said he would try for 24 years’ to 26 years’ imprisonment. Instructions were taken to prepare for a written mitigation on his behalf. The accused did not ask to retract his plea on 19 August 2017. The first time Mr Pereira was told that the accused wanted to retract his plea was on 11 September 2017.⁷

In his affidavit of 26 February 2018 (“accused’s second affidavit”), the accused responded to Mr Pereira’s affidavit. The accused conceded that he had agreed to plead guilty on 26 July 2017 and not on 27 July 2017.

The accused also claimed that he had no difficulty explaining to Mr Pereira the facts of his case. He maintained that during Mr Pereira’s visit to Changi Prison on 19 August 2017, he had told Mr Pereira he wished to retract his plea.

On analysis, it should be plain what the accused was not saying. He was not challenging the procedure for or that he had entered the plea of guilt. He had sufficient time for consideration and was granted such time as was requested to reach his decision. The accused was not alleging that he had misunderstood the situation. Further, the accused was not criticizing Mr Pereira’s advice and conduct as counsel.

I found that in the circumstances, the accused’s plea of guilt was voluntarily made, with full presence of mind as to the nature of the plea, the offence and the facts he was admitting to. His present allegations were a belated afterthought, and in any event, they were insufficient in law to enable him to retract his plea.

To begin, I noted that the accused’s initial account was that after 45 minutes of discussion on 26 July 2017, he refused to plead guilty. Conversely, Mr Pereira claimed the accused wished to plead guilty after the discussion “[w]ithout a moment of hesitation”.⁸ The accused was asked to, and did, write out his instructions on 26 July 2017. He was asked to think through his plea until the next day.

When faced with Mr Pereira’s affidavit, the accused eventually conceded he had agreed to plead guilty by 26 July 2017 after all. Objectively, it was hard for the accused to deny this as his note containing his instructions was signed twice and dated twice on 26 July 2017, with a correction that indicated the accused’s mind was directed to the date. It was fairly obvious that the accused indicated he wanted to plead guilty by 26 July 2017.

What also could not be controverted was that the sentencing consequences of pleading guilty were explained to him. The accused’s vacillating accounts aside, it was clear that Mr Pereira was aware that the situation was delicate and gave him time to ponder over the plea before it was formally entered in court.

Next, as to the accused’s claim that he had told Mr Pereira he wished to retract his plea on 19 August 2017, I found this most unlikely. In representing the accused, having had 14 interviews with him, ⁹ Mr Pereira had shown himself to be careful and conscientious. On 6 September 2017, Mr Pereira had filed a detailed mitigation and submissions on sentence. If Mr Pereira had been informed of the accused’s wish to retract his plea by 19 August 2017, he would have immediately informed the Prosecution and the court. There would be no reason to do all that work and to persist in filing the papers.

I also noted that the mitigation plea and submissions could only have been prepared under the accused’s instructions.¹⁰ It was apparent that Mr Pereira attended the chambers discussion on 11 September 2017 on...