Public Prosecutor v Ong Gim Hoo

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 04 April 2014
• Neutral Citation: [2014] SGHC 60
• Court: High Court (Singapore)
• Hearing Date: 14 March 2014
• Docket Number: Criminal Revision No 3 of 2014
• Plaintiff Counsel: Tan Yanying (Attorney-General's Chambers)
• Defendant Counsel: Patrick Chin (Chin Patrick & Co)
• Subject Matter: Criminal Law,Statutory offences,Customs Act,Criminal Procedure and Sentencing,Revision of proceedings
• Published date: 19 June 2014

Choo Han Teck J:

The respondent in this Criminal Revision was charged with four charges (DAC 31609 of 2013 to DAC 31612 of 2013) for offences under the Customs Act (Cap 70, 2004 Rev Ed) (“CA”). Proceedings with respect to these four charges are currently underway before the State Courts. The respondent is currently on bail, and his matter is scheduled for a Pre-Trial Conference on 28 March 2014.

The applicant brings this Criminal Revision, however, to “amend two convictions” recorded against the respondent in 2012. For the purpose of this judgment, when I use the term “amend convictions” I refer to the process of setting aside a recorded conviction, framing an altered charge, and subsequently convicting the individual on the altered charge. I will discuss the complexities inherent in such a process below at [4]. In 2012, the respondent pleaded guilty to two charges of “[o]ffences in relation to possession, storage, conveying and harbouring of goods” under s 128I of the CA. These were charges DAC 33656/2012 and DAC 33689/2012. I set out the charges below to show the exact amendment sought. The first charge, DAC 33656/2012, read:

You, ONG GIM HOO, [xxx], Male, 61 Years Old, DOB: 02/10/1950, SINGAPOREAN,

are charged that you, on or about the 14th day of September 2012, at about 2.20pm, at Motorcycle Lot 28, Infront of Block 124 Ang Mo Kio Ave 6, Singapore, were concerned in dealing with uncustomed goods, to wit, 1packet x 1 stick, 15 packets x 20 sticks of Malboro Brand and 4 packets x 16 sticks of Gudang Garam Surya Kretek duty unpaid cigarettes, weighing 0.429 kilogrammes, on which excise duty of $151.01 was not paid, with intent to defraud the Government of the excise duty thereon, and you have thereby committed an offence under section 128I(b) of the Customs Act, Cap 70, punishable under Section 128(L)(2) of the same Act. [sic]

The second charge, DAC 33689/2012, read:

You, ONG GIM HOO, [xxx], Male, 61 Years Old, DOB: 02/10/1950, SINGAPOREAN,

are charged that you, on or about the 14th day of September 2012, at about 2.20pm, at Motorcycle Lot 28, Infront of Block 124 Ang Mo Kio Ave 6, Singapore, were concerned in dealing with uncustomed goods, to wit, 1packet x 1 stick, 15 packets x 20 sticks of Malboro Brand and 4 packets x 16 sticks of Gudang Garam Surya Kretek duty unpaid cigarettes, weighing 0.429 kilogrammes, valued at S$197.91, on which the Goods And Services Tax of $13.85, was not paid, with intent to defraud the Government of the tax thereon, and you have thereby, by virtue of section 27 and 77 of the Goods and Services Tax Act (Cap 117A), paragraph 3 of Goods and Services Tax (Application of Legislation Relating to Customs & Excise Duties) Order (Cap 117A, Order 4) and paragraph 2 of the Goods and Services (Application of Customs Act) (Provisions on Trials, Proceedings, Offences and Penalties ) Order (Cap 117A, Order 5), committed an offence under section 128I(b) of the Customs Act punishable under section 128L(2) of the same Act. [sic]

The respondent should have been charged under s 128I(1)(b), but the offence in the charge was framed instead as s 128I(b). The Customs Act that was in force at the time the offence was committed, 14 September 2012, labelled the offence as s 128I(1)(b). The applicant seeks to amend these previous convictions so that the respondent will be liable for the enhanced punishment prescribed in s 128L(5) if convicted on any of the present four charges which he faces. I dismiss the application for the reasons which I shall subsequently elaborate on. I first highlight the procedure behind Criminal Revision before discussing relevant cases on “amending convictions”.

The relevant statutory provision for Criminal Revision is found in s 401 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). As the convictions sought to be revised in this case involved charges that were laid after 31 August 2012, the 2012 Revised Edition is the relevant edition of the Criminal Procedure Code that the court should be concerned with. Section 401 reads:

Powers of High Court on revision 401.—(1) On examining a record under revision in this Division, the High Court may direct the lower court to make further inquiry into a complaint which has been dismissed under section 152 or into the case of an accused who has been discharged.

(2) The High Court may in any case, the record of proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers given by sections 383, 389, 390 and 392. (3) The High Court may not proceed under subsection (1) or (2) without first giving the parties adversely affected by the High Court so proceeding an opportunity of being heard either personally or by advocate. (4) This section does not authorise the High Court to convert an acquittal into a conviction. By s 401(2), the High Court may exercise the powers given by s 390 of the CPC during Criminal Revision. Of relevance to this application, the applicant asks this court to invoke three of its powers under s 390. These are first, to set aside the respondent’s two 2012...