Public Prosecutor v Ng Chye Huay

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 14 August 2017
• Neutral Citation: [2017] SGMC 42
• Court: Magistrates' Court (Singapore)
• Docket Number: MAC-900807-2015, MAC-900808-2015 MAC-900809-2015 and MAC-900810-2015
• Year: 2017
• Published date: 12 January 2018
• Hearing Date: 10 April 2017,03 July 2017,17 July 2017,11 April 2017
• Plaintiff Counsel: Mr Kumaresan (DPP)
• Defendant Counsel: Ms Diana Foo
• Citation: [2017] SGMC 42

District Judge Luke Tan: Introduction

The Accused, Ng Chye Huay, is a 53-year-old female Singaporean. Before me, she faced four similar charges of refusing to sign a statement made by her, when required by a public servant legally competent to require her to do so. The offences were allegedly committed on four separate occasions. Each refusal constituted a contravention of s 180 of the Penal Code (Chapter 224, 2008 Rev. Ed.).

At the commencement of the trial, the Defence Counsel raised two preliminary objection. The first related to an alleged contravention by the Prosecution of Article 11(2) of the Constitution. The second, in essence, alleged malicious prosecution on the part of the Prosecution over its failure to have the present charges dealt with at an earlier trial when the Accused was tried for vandalism offences. After considering arguments put up by both the Prosecution and the Defence, I dismissed both preliminary objections of the Defence.

Thereafter, with the consent of the Defence, the Prosecution proceeded on a joinder of the four Penal Code charges, and called the four statement recorders and the investigation officer to testify. After evaluating their evidence, I called for the defence of the Accused on the four charges. The Accused elected to testify in her own defence.

At the end of the trial, I found that the evidence adduced showed, beyond a reasonable doubt, that the Accused was guilty of the charges, and I convicted her accordingly. Thereafter, following the Prosecution’s submissions on sentence and the Defence’s mitigation plea, I imposed a global fine of $4,800 (in default 32 days’ imprisonment).

The Accused has appealed against both her conviction and sentence. I now set out my detailed grounds of decision.

Preliminary Objections

For the trial before me, it was alleged that the Accused had refused to sign four statements that she had made to four different police officers when they were conducting investigations against her. These investigations subsequently led to charges being tendered against the Accused for committing offences of vandalism under section 3 of the Vandalism Act. The Vandalism Act charges were dealt with at a trial that concluded in 2016 (“the 2016 trial”). It was not disputed that the Accused was convicted of the Vandalism Act charges at the 2016 trial.

At the commencement of the present trial before me for the Penal Code charges, the Defence Counsel raised two preliminary objections:

First, Counsel raised what I would term as the “Art 11(2) objection”. In essence, Counsel argued that the offences set out in the present four charges under section 180 of the Penal Code (the Penal Code charges), were “substantially the same” as those alleged in the earlier set of Vandalism Act charges which were dealt with at the 2016 trial. In Counsel’s words: “….the [present] charges…are substantially the same or form part of the previous charges in a previous trial. The statements were referred to even in the Statement of Agreed Facts and the statements were relied on basically, Your Honour, to convict my clients for the vandalism charges.” ¹ Counsel argued that since Article 11(2) of the Constitution of the Republic of Singapore entrenches the principle of autrefois convict, and offers protection against repeat trials, the Accused could not be charged again for substantially the same offence, which Counsel alleged was the case here. Counsel also cited the case of PP v Chua Liew Hin [2011] SGDC 79 which she claimed supported her argument that the current Penal Code offences, and their corresponding Vandalism Act offences, were the “same offences”. This was allegedly because two of the statements (which are the subject matter of two of the four Penal Code charges) were taken from the Accused at the same time and place as the commission of the corresponding vandalism offences. Further, the four statements, that are the subject matter of the four Penal Code offences, were also used at the Accused’s 2016 trial for the Vandalism Act offences².

Second, Counsel raised an alternative argument that the Prosecution should have proceeded with both sets of charges (the Penal Code charges and the Vandalism Act charges) at the same time (i.e. at a joint trial) when they prosecuted the Accused for the Vandalism Act offences in 2016. She further argued that the Prosecution should not be going on with the Penal Code charges now that the Vandalism Act offences have already been dealt with at the 2016 trial. She thus alleged that the current proceedings amounted to malicious prosecution. I will term this the “Joinder and Malicious Prosecution objection”. The essence of Counsel’s submission can be summarised as follows³: First, Counsel argued that the Prosecution could have proceeded with a joint trial earlier, since section 133 of the Criminal Procedure Code (CPC) allows for an accused person to be tried at the same trial “…. if the offences form or are a part of a series of offences of the same or a similar character”. Alternatively, section 134 of the CPC also allows for a joint trial “(i)f, in one series of acts connected to so as to form the same transaction, two or more offences are committed by the same person….”. Counsel further submitted that the Prosecution could have easily questioned the Accused about her reasons for not signing the statements (which are the substance of the present Penal Code charges), during the 2016 trial for the Vandalism Act offences. Instead “no questions was asked on the unsigned statements and, instead, the prosecution opted to have a separate 3-day trial for the alleged unsigned statements”, resulting in the Accused having to undergo the expense and cost of a second trial. By the Prosecution deliberately opting to proceed with a second trial for the Penal Code charges, Counsel argued that this “is an abuse of the Court system”, and has also prejudiced the Accused who “loses the chance, not right, to have the charges being run concurrently with last year’s vandalism charges”. Thus, Counsel alleged that “this is prima facie a case of malicious prosecution and the action taken by the prosecution for two separate trials is in bad faith.” Counsel also argued that each Penal Code charge was “…an inconsequential offence and it should have been quickly referred to in last year’s trial.”⁴ Subsequently, in response to a query from the court, Counsel agreed that while it was the prerogative of the Prosecution as to whether the Penal Code charges should be withdrawn, rather than a decision to be made by the court, she was nevertheless asking the court to “withdraw the charges”, as this was the Accused’s instructions.⁵

In response, to the two preliminary objections raised by Counsel, the Prosecution submitted that⁶: The present offences are not substantially similar to the earlier set of charges for which she was tried, since the earlier charges were for committing offences of vandalism, which involve very different actus reus from the Penal Code charges that the Accused currently faces. Specially, the actus reus for each Vandalism Act charge was for displaying and hanging of banners and placards, whereas the actus reus for each Penal Code charge was for failing to sign a statement when required to do so by a police officer. Moreover, the Penal Code offences also either involved different dates, times and/or places of commission, or were, generally speaking, very distinct offences from those alleged in the Vandalism Act charges, even if the Penal Code offences flowed from the commission of the Vandalism Act offences. Further, Article 11(2) of the Constitution does not apply to prevent two separate sets of charges from being tried at different trials. In any event, the reason why the Prosecution had proceeded on different trials for the two separate sets of charges (under the Penal Code and the Vandalism Act respectively) was to avoid prejudicing the defence of the Accused by having different types of offences heard at the same trial. Thus, rather than being a case of malicious prosecution, having different trials for the separate types of offences was done “in the interest of fairness to the accused”. There was also no issue of “sentencing prejudice” by having separate trials, since the Accused was sentenced to fines for the earlier set of offences.

The DPP also stated that Counsel has not made representations to the Prosecution for a withdrawal of the Penal Code charges.

After considering the arguments of both parties, as well as having given both parties the opportunity to clarify their respective positions, I dismissed the preliminary objections raised by the Defence. My reasons are as follows:

Article 11(2) Objection

Article 11(2) of the Constitution reads:

“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.”

From the above, it is clear that the purpose of Art 11(2) of the Constitution is to prevent a situation of double jeopardy – i.e. to avoid a situation where a person who has been convicted or acquitted at one trial, is retried for the “same offence” at a subsequent trial, unless the retrial is ordered by a superior court.

However, this provision of the Constitution has not been breached, since the Penal Code charges that the Accused was being tried before me in 2017, were quite different from the Vandalism Act charges that she was tried (and convicted of) at the 2016 trial. To elaborate, the two sets of charges involve: Different ingredients and nature: The Penal Code charges arose out of the Accused’s refusal to sign her statements, while the Vandalism Act charges arose out of her acts of vandalism by her displaying and hanging of banners and placards. In other words, the two...