Public Prosecutor v Sng Siew Ngoh

• Judge: Yong Pung How CJ
• Judgment Date: 08 November 1995
• Neutral Citation: [1995] SGHC 266
• Citation: [1995] SGHC 266
• Defendant Counsel: Peter Low and Brenda D'Cruz (Peter Low Seong Tang & Pnrs)
• Published date: 19 September 2003
• Plaintiff Counsel: Lim Yew Jin (Deputy Public Prosecutor)
• Date: 08 November 1995
• Docket Number: Magistrate's Appeal No 208 of 1995
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Evidence,Statements,Offences,s 122 Criminal Procedure Code (Cap 68),Purpose of prohibition,Grievous hurt,Exceptions to prohibition to use,Test to be applied,s 147(3) Evidence Act (Cap 97, 1990 Ed),Victim's evidence,ss 122(1) & (2) Criminal Procedure Code (Cap 68),Trials,Statements made in the course of police investigation,Whether corroboration required,Criminal Procedure and Sentencing,Witnesses,Previous inconsistent statement,Establishment of prima facie case,s 189(1) Criminal Procedure Code (Cap 68),Whether allowed,Elements of offence

This was an appeal against the decision of a district judge acquitting and discharging the respondent on the first of three charges for want of a prima facie case. I allowed the appeal and now give my reasons for my decision.

The first charge read:

You, Sng Siew Ngoh, f/35 years, NRIC No 1367230Z, are charged that you, sometime in December 1992, at No 111-A Koon Seng Road, Singapore, did voluntarily cause grievous hurt to one Lea Credo, to wit, by poking her eyes with your fingers which resulted in the permanent privation of the sight in the said Lea Credo`s right eye, and you have thereby committed an offence punishable under s 325 of the Penal Code (Cap 224).

The respondent was also charged with voluntarily causing hurt by biting and kicking the victim, as well as by spraying insecticide into her eyes. The judge found that a prima facie case was made out in respect of these two charges.

The prosecution`s case

The relevant facts may be stated briefly. The complainant, the sister-in-law of the respondent, received on 8 December 1992 a request from her brother, the respondent`s husband, to examine the victim, who was the respondent`s maid. The victim was found to have a number of injuries, particularly swollen eyes. The next day, 9 December, the complainant took the victim to a specialist, Dr Ang, who found that there was swelling, visual impairment and abrasion of the cornea. On 14 December, Dr Ang again examined the victim, and it appeared that her condition was improving. Unfortunately, two weeks later, on 28 December, a retinal tear was found in the victim`s right eye. After an operation, the tear appeared to have been mended, but scarring of the retina occurred, leading eventually to blindness of the right eye. The left eye had by then been cured of a cataract. In March 1994, the complainant once again found that the victim had been bitten. When the victim declined to make a report to the police, the complainant made one herself.

The victim

The victim was called as a prosecution witness. She testified that she had stayed with the complainant`s mother for a couple of months after she was first brought to the complainant. Subsequently, she returned to the respondent but was brought back to the complainant`s mother after the operation. Then she returned to the respondent on her own. After the police report was made, the victim was offered alternative accommodation by the Philippine embassy but declined to accept it. In the meantime, she had also renewed her contract with the respondent and her husband.

The victim gave evidence in court that the swelling was caused accidentally when some insecticide got into her eyes while she was attempting to get rid of insects. The respondent had attempted to show the victim, who was holding a can of insecticide, the proper method of spraying. However, in doing so, some insecticide got sprayed into the victim`s eyes. The victim denied that she was assaulted by the respondent in any other way. She gave a statutory declaration to the effect that she did not wish to proceed against the respondent.

In view of the evidence given by the victim, who was ostensibly a prosecution witness, the prosecution applied to impeach her credit on the basis of a statement made by her to the investigating officer on 27 March 1994 at the complainant`s mother`s home. That statement revealed that the respondent had assaulted her several times, with the most serious being an incident in December 1992 in which the respondent had intentionally inserted her finger into both the victim`s eyes.

The decision

The trial judge accepted that the victim`s credit should be impeached. However, he held, after reviewing the authorities and the legislative materials, that he was precluded from applying s 147(3) of the Evidence Act (Cap 97, 1990 Ed). This would have allowed the impeaching statement to be relied upon for the truth of the facts stated: PP v Sagar s/o Suppiah Retnam (CC 6 /94) (unreported), in which it was held that s 147(3) could not apply to a statement governed by s 122 of the Criminal Procedure Code (Cap 68).

As the statement by the victim was the only evidence of voluntarily causing hurt, it was held that the elements of voluntariness and the causing of hurt required under s 325 were not met. The trial judge was also of the opinion that the prosecution`s evidence did not disclose that the poking of the respondent`s eye had caused the blindness. In his view, the evidence of the eye specialist was that the injury to the eye was more likely to have been caused by a blunt object, rather than a jab by a finger. Hence, the conclusion reached was that, even if the statement was admitted for the truth of the facts stated, the prosecution would still not have been able to establish causation; no prima facie case had been made out.

An application was then made by the prosecution for a stay of the proceedings, under s 198(1) CPC, on the other charges while this appeal was brought. The trial judge granted it on the basis that the outcome of this appeal on the question of law, namely, the application of s 147(3), would be relevant as well to the other charges.

The appeal

The prosecution`s appeal was on the basis that the trial judge erred in not admitting the statement for the truth of the facts stated, once the credit of the victim had been impeached. He had also failed, the contention went, to consider that the evidence of the eye specialist did not rule out the jabbing of the eye, or that the complainant had testified that she had been told by the victim that she was so hit, or that a reasonable inference could be drawn from the evidence that it was the respondent who had caused the blindness. The prosecution argued that there was a failure to apply the proper test to determine whether there was a prima facie case.

The respondent`s case

The respondent argued that s 122(1) of the Criminal Procedure Code prohibited the use of statements made to the police unless they fell within the exceptions in s 122(3). That being so, there was no evidence that the respondent had poked the eyes of the victim. Neither was there sufficient evidence that the poking of the eyes could cause the loss of sight suffered by the victim; there was no case to answer.

The issues

The issues which arose were as follows:

(1) whether the operation of s 147(3) Evidence Act is precluded by s 122 CPC; and

(2) whether the appropriate test for determining a prima facie case was applied by the judge.

The operation of s 147(3)

Section 147(3) states:

Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

There was no controversy as to the effect of s 147(3). Rather the issue was how it was to operate alongside s 122 of the CPC. Section 122(1) reads:

Except as provided in this section, no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence other than a statement that is a written statement admissible under section 141.

Section 141, which deals with conditioned statements adduced in preliminary inquiries, is not relevant here. Section 122(2) continues:

When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to a police officer in the course of a police investigation under this Chapter and may then, if the court thinks it expedient in the interests of justice, direct the accused to be furnished with a copy of it; and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act.

In Tan Khee Koon v PP [1995] 3 SLR 724 and also as argued by the prosecution below, the reference by s 122(2) to impeachment proceedings under the Evidence Act must be read as one to s 157, which states:

The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

While no explicit reference is made, para (c) must point to s 147 which deals with cross-examination on previous statements made by a witness. The whole of that section reads:

(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement.

(3) Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this subsection be admissible of any fact stated therein of which direct oral evidence would be admissible.

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