Public Prosecutor v Pakirisamy Rajoo
| Jurisdiction | Singapore |
| Judge | Bala Reddy |
| Judgment Date | 25 April 2008 |
| Neutral Citation | [2008] SGDC 91 |
| Court | District Court (Singapore) |
| Year | 2008 |
| Published date | 15 July 2008 |
| Plaintiff Counsel | DPP John Lu |
| Defendant Counsel | Peter Ezekiel (Peter Ezekiel & Co),Surian Sidambaram (Counsel watching brief |
| Citation | [2008] SGDC 91 |
| 25 April 2008 |
|
District Judge Bala Reddy
This is an appeal against an order to forfeit the bail sum of $50,000 posted by the bailor one Pakirisamy Rajoo (“the bailor”). The Accused is one Ganesh s/o Pakirisamy, who had been charged with 26 offences which are as follows:
(a) 1 count of Housebreaking and Theft by Night under Section 457 of the Penal Code (Cap. 224);
(b) 1 count of Theft-in-Dwelling under Section 380 of the Penal Code;
(c) 20 counts of Using as genuine a forged document under Section 471 of the Penal Code; and
(d) 4 counts of Dishonestly disposing of stolen property under Section 414 of the Penal Code.
Chronology of events prior to the show cause proceedings
2. The accused was first charged on 16 October 2006 and was ordered to be remanded at the Clementi Police Division for further investigations, after his release from the Changi General Hospital. Subsequently on 23 October 2006 bail was granted in the sum of $80,000 in one surety or $40,000 in two. He was not bailed out. There was an application to review the bail amount on 30 October 2006 and the learned District Judge in Court 26, after hearing arguments fixed bail at $50,000 with one surety or $25,000 in two. The bailor posted cash bail of $50,000 on 31 October 2006.
3. The accused was initially represented by Mr K Mathialahan ( “Mr Mathi”), and the matter went through several pre-trial conferences (“PTCs”) in Court 3 on 6 November 2006, 11 December 2006, 5 January 2007, 23 January 2007, 7 February 2007, 22 February 2007 and 14 March 2007.
4. At the PTC on 6 January 2006, the Prosecution informed the court that further investigations were still being conducted with some of the exhibits being examined by the Health Sciences Authority. At this PTC, Mr Mathi applied for the accused to leave jurisdiction from 10 to 15 November 2006 to attend to work in Johore and also to sort out ancillary matters that arose as a result of his divorce. The court granted his application and ordered that the accused was to surrender his passport upon his return. A similar application was made at the PTC on 5 January 2007 to leave jurisdiction from 12 to 18 January to attend to property matters in Malacca and Kuala Lumpur. Permission to leave jurisdiction was granted on the same terms as previously.
5. During the PTC on 22 February 2007[note: 1], Mr Mathi again applied for the accused to leave jurisdiction to go to Malaysia to attend to some matrimonial property matters. The learned District Judge Mr Roy Neighbour granted the application and gave the accused permission to leave jurisdiction from 26 February to 6 March 2007. The accused was required to surrender his passport to the Investigation Officer (“IO”) upon his return on 7 March 2007.
6. At the next PTC on 14 March 2007[note: 2], Mr Mathi informed me that the accused could not be located and was missing. The Prosecution informed me that immigration screening showed that the accused had left Singapore on 1 March 2007 and had yet to return. As the accused was clearly in breach of the terms of the bail, I issued a Warrant of Arrest for the accused. As the bailor was present in court on the PTC date, he was asked about the accused. In response, the bailor feigned ignorance of the fact that the court had given permission for the accused to leave jurisdiction:
DPP: Accused left Singapore on 1 March 2007 and had not returned since.
Bailor seen –
I didn’t know that permission was granted for accused to leave jurisdiction on 26 February 2007.
DC: Before the bailor left for China on 7 February 2007 he informed me that the bailor will be leaving for China and that the accused will be leaving to Malaysia to attend to property matter in Malacca and to take care of the matter.
….
Court to
Bailor: Did you know if the accused was granted permission to leave jurisdiction from 26 February 2007 to 6 March 2007?
Bailor: I did not know.
Court: Did you see the accused after 22 February 2007 till 1 March 2007?
A: Yes.
Court: Did you speak to him about this case?
A: I did ask him if he had attended his case and he said yes. I did not ask him when his next court appearance will be.
Court: Were you not concerned about his case?
A: Yes. I am concerned. I am the bailor.
Court: Why didn’t you ask when his court attendance is?
A: Accused took shower and left home on 26 February 2007.
Court: Did you see him after 26 February 2007?
A: I saw him probably on 28 February 2007.
Court: Did you ask him when his next court attendance is when you saw him on 28 February 2007?
A: I could not ask him. I had some guests in the house. He took his shower and left. He did not respond to my calls.
Court: As of 28 February 2007 – you didn’t know when he was required to attend court?
A: Yes. Between 25 February 2007 and 1 March 2007 – never made any attempt to find out when the accused’s next court attendance is.
Following the above, a hearing date to show cause was set.
Summary of facts
7. The bailor is the father of the accused and he did not attend the PTC on 22 February 2007 as he was away in China with his wife. The bailor was informed of the accused having been given permission to leave jurisdiction on 28 February 2007, by Mr Mathi. The bailor did not raise any objections nor express reservations to Mr Mathi. The bailor saw the accused at home on 28 February 2007 and told him that he wished to speak with him. The accused agreed but apparently left the house before the bailor could speak with him.
8. The next morning on 1 March 2007, the bailor spoke to the accused regarding the accused’s application to leave jurisdiction. The bailor and the accused then left for Malaysia together, before returning together later that day. The bailor claimed that on his return, he took the accused’s passport and placed it in a drawer in the bailor’s bedroom, as per his usual practice. He further stated that he locked the drawer and placed the key in an adjacent drawer. Later the same day, the accused left home stating that he was going out to attend a function. That was the last occasion that the bailor had seen him.
9. As set out earlier, the bailor had maintained before me at the PTC on 14 March 2007 that he was unaware that the accused had been granted permission to leave jurisdiction during the PTC on 22 February 2007. Mr Mathi informed the court that the bailor was not present during the PTC on 22 February 2007 and it was the accused who had told him that the bailor had agreed to his application to leave jurisdiction.
Show Cause Proceedings
10. At the show cause hearing on 1 November 2007 counsel for the bailor, Mr Peter Ezekiel informed the court that the bailor “does not wish to show cause but only mitigate”[note: 3]. The bailor then took the stand and was examined on the steps he took to fulfil his duties as a bailor.
Submission by Bailor’s Counsel
11. Mr Peter Ezekiel submitted in his first set of written submissions that the bailor had applied more than reasonable diligence to secure the attendance of the accused in the past. He further submitted that,
However due to the fact that the accused’s counsel had sought and obtained consent for the accused to leave jurisdiction on the 22.02.07 without the bailor’s consent or knowledge resulted in the bailor not having the opportunity to exercise the normal supervisory diligence that he had shown in the past.
He also submitted that,
We humbly submit that had the accused not been granted permission to leave the jurisdiction on the 22.2.07, without the knowledge and consent of the bailor, his disappearance would have been avoided.
…
We further submit that the manner in which permission was granted on the 22.02.07, for the accused to leave jurisdiction had placed the bailor in a highly disadvantageous position.
Law Relating to Forfeiture of Bail Bonds
12. Section 361 of the Criminal Procedure Code (Cap. 68) which is the relevant statutory provision that deals with forfeiture for bail bond forfeiture, provides:
(1) Whenever it is proved to the satisfaction of a court that any bond taken under this Code has been forfeited, the court shall record the grounds of such proof and may summon before it any person bound by the bond and call upon him to pay the penalty thereof or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the penalty by issuing a warrant for the attachment and sale of the property belonging to that person.
(3) If the penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term which may extend to 6 months.
(4) The court may, in its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(5) Nothing in this section shall be deemed to prevent the penalty or any portion thereof of any bond under this Code being recovered under the Government Proceedings Act.
13. The principles relating to forfeiture of bail bonds was extensively discussed by Karthigesu J (as he then was), in Loh Kim Chiang v Public Prosecutor
“…(1) When a defendant, for whose attendance a person stood surety, fails to appear, the full recognizance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited or none at all. (2) The burden of satisfying the court that the full sum should not be forfeited rest on the surety and is a heavy one. It is for him to lay before the court the evidence of want of culpability and of means on which he relies.”
14. The bailor in fact takes on an onerous burden to ensure the attendance of the accused at each court appearance. In R v Uxbridge Justices, ex parte Heward-Mills [1983] 1 All ER 530 at 534, McCullough J relied on dicta of...
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