Public Prosecutor v Yap Heng Chye

• Jurisdiction: Singapore
• Judge: Ngoh Siew Yen
• Judgment Date: 29 September 2003
• Neutral Citation: [2003] SGMC 34
• Citation: [2003] SGMC 34
• Court: Magistrates' Court (Singapore)
• Plaintiff Counsel: ASP Lam Peng Choy
• Defendant Counsel: Mr Gurdip Singh (Gurdip and Gill)
• Published date: 18 November 2003

1 The Accused, Yap Heng Chye (‘Yap’) was charged under s 5(a) Common Gaming House Act (Cap 49) (‘the Act’) for assisting in the carrying on of a public lottery and s 5(1) Betting Act (Cap 21) for loitering in a public place for the purposes of horse betting. At the commencement of the trial, the Accused elected to claim trial to the first charge under s 5(a) Common Gaming House Act and agreed to the second charge under s 5(1) of the Betting Act to be stood down pending the determination of the first charge. Only the first charge is relevant for the purposes of this appeal. This charge reads:

You, Yap Heng Chye, M/43 years, are charged that you, on the 18^th day of January 2003, at about 2.40 pm, at Block 137 Tampines Street 11, Singapore, did assist in the carrying on of a public lottery, to wit, ‘Toto Lottery’, and you have thereby committed an offence punishable under section 5(a) of the Common Gaming Houses Act (Cap. 49)

At the end of the trial, I convicted Yap of this charge and sentenced him to one month imprisonment and a fine of $20,000, in default two months’ imprisonment. Being dissatisfied with my decision, Yap has appealed against his conviction.

The Case for the Prosecution

2 The prosecution called a total of four witnesses to the stand in support of their case. Their evidence as adduced in the trial is set out below.

Testimony of PW1 – Station Inspector Yap Pek Lan (‘Inspector Yap’)

3 On 18 January 2003 at about 2.40 pm, Inspector Yap arrived at the wet–market in the vicinity of Block 137 Tampines Street 11 on mini anti–turf club duties. She was patrolling the area with one Staff Sergeant Jessie Lim Geok Hwee when she saw Yap, who was talking on a handphone, walking in their direction. Inspector Yap then decided to stop Yap for a routine check because the area around the wet market in Tampines Street 11 was a place known for horse betting. Both police officers identified themselves to Yap and led him to an area near some dry stalls where they asked him to declare his items. Several items were removed by Yap, including one piece of folded up paper containing multiple rows of numerical figures written in black ink (‘P2’), one black pen (‘P3’) and his wallet. In order to confirm that Yap had declared all his personal items on him, Inspector Yap did a ‘tap’ on the Accused. This search yielded no further items. The items recovered, save for the wallet, were seized and admitted as case exhibits.

4 Inspector Yap testified that upon recovering P2, she had asked Yap what the numerical figures in P2 meant. At first, Yap refused to tell her anything. After repeated questioning, Yap then admitted that those numerical figures represented Toto bets which he had collected. The conversation was in Hokkien. On hearing this, Inspector Yap placed the Accused under arrest. At the Bedok police station, she also lodged an arrest report against the Accused (‘P4’).

Testimony of PW2 – Mr. Wee Kia Paik (‘Mr. Wee’)

5 Mr. Wee Kia Paik works as the Administration Manager of Singapore Pools (Pte) Ltd. In addition to his administrative duties, Mr. Wee is responsible for all lottery draws that are conducted by his company. These include Toto, the ‘Wednesday Big Sweep’ and the ‘4–D’ draws. He testified that Toto draws are conducted on the Monday and Thursday of every week. There was hence no Toto draw in operation on 18 January 2003 – the day of Yap’s arrest. Mr. Wee also confirmed that a Toto draw was conducted on Monday, 20 January 2003. In support of this, Mr. Wee tendered a certified true copy of the certificate of draw results for the draw that was held on 20 January 2003 at 5.30 pm. (‘P5’).

Testimony of PW3 – Sergeant Aw Kok Leong (‘Sgt Aw’)

6 Sergeant Aw’s testimony was largely formal in nature. He was the investigation officer in charge of this case. In the course of his duties, Sgt Aw had referred P2, P4 and a statement from Inspector Yap to the Gambling Suppression Branch of the Central Investigation Department for examination and analysis. On 14 February 2003, Sgt Aw recorded a cautioned statement (‘s 122(6) statement’) from Yap (‘D1A’).

Testimony of PW4 – Senior Staff Sergeant Kuek Hock Soon (‘SSSgt Kuek’)

7 Senior Staff Sergeant Kuek gave evidence as a gaming expert attached to the Gambling Suppression Branch (‘GSB’) of the Central Investigation Department.

Preliminary Objections to the admissibility of the expert report (‘P6’):

8 After viewing the exhibits seized at the scene and the report of the arresting officer, SSSgt Kuek prepared a written report. During the trial, defence counsel raised a preliminary objection as to the admissibility of this written report. There were two main grounds. Firstly, the defence took issue with the expertise of the expert. Secondly, it was argued that even if it was conceded that SSSgt Kuek is a gaming expert, s 369 Criminal Procedure Code (Cap 68) (‘CPC’) which allows for the admission of a written report has expressly excluded the admission of SSSgt Kuek’s written report, because a gaming expert is not within that class of persons identified in s 369(2) CPC. I considered both arguments to be unmeritorious.

9 In PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, it was made clear that a person can be considered an expert if he has sufficient practical experience enabling him to have acquired the necessary skills or expertise in that particular field. In Leong Wing Kong v Public Prosecutor [1994] 2 SLR 54, the Court of Appeal reaffirmed the applicability of this principle in Singapore when it held that a long serving officer with the enforcement division of the Central Narcotics Bureau would have sufficient work experience to be considered as an expert in matters relating to the drug scene in Singapore.

10 SSSgt Kuek was appointed as a GSB expert in October 2001 and is one of only four gaming experts in GSB. As at the time of the trial, SSSgt Kuek had been serving in the GSB as a gaming expert for close to two years. During these years, SSSgt Kuek had examined the methodology of illegal gaming activities as well as the behavioural patterns of those who indulged in such activities through the study of similar cases and exhibits seized. Prior to joining the GSB, he was an investigation officer for 10 years doing ground work, including illegal gambling cases. I was of the opinion that SSSgt Kuek had sufficient working experience and exposure to be considered as an expert on the illegal gambling scene in Singapore in. Finally, I also noted that SSSgt Kuek had previously testified in court on several occasions where his evidence had been accepted. On these facts, I therefore found little basis for rejecting SSSgt Kuek as an expert witness. The expert evidence of SSSgt Kuek was hence admitted by the court under s 51(a) Evidence Act (Cap. 97).

11 The second objection centred upon the ambit of s 369 CPC. s 369 is within Chapter XXXVII of the CPC containing special provisions relating to evidence. It is clear that s 369 is intended to circumvent the hearsay principle, by allowing reports made by that class of experts as specified in s 369(2) to be admissible as evidence of the facts therein even in the absence of the oral testimonies of these experts (see s 369(4) CPC), so long if the safeguards in s 369(1) are satisfied, and the Accused person or the court does not require these experts to be called as witnesses for the trial. Although the defence was correct in pointing out that a gaming expert was not within that class of experts in s 369(2) CPC, it was in error when it submitted that s 369 CPC applied to the facts of our present case. This was because SSSgt Kuek was called by the prosecution as a witness and would give (and indeed gave) oral testimony during the trial. This was not a situation when the prosecution was attempting to admit the expert report in his absence. Neither does s 369 CPC go so far as to say that no other expert reports, other than those prepared by the experts as specified in s 369(2) CPC, can ever be admitted by the court. The situation must be different when the expert witness complies with s 62(1)(d) Evidence Act, gives direct oral evidence in addition to his expert report and is available to the opposing side for cross–examination.

12 With these reasons in mind, I was of the view that the written report prepared by SSSgt Kuek could and should be admitted as evidence. The report was hence admitted and marked as ‘P6’.

The expert report (‘P6’)

13 In this report, SSSgt Kuek opined that P2 was a record of stakes in connection with illegal Toto lottery and that anyone found in the possession of P2 could be charged with the offence of assisting in the carrying on of a public lottery. He was also of the view that the stakes were recorded so as to forecast the results of the Singapore Pools Toto Draw that would have been held on 20 January 2003. The total value of the stakes recorded was $1,615.

14 During the trial, SSSgt Kuek aided the court by explaining the modus operandi of illegal Toto and the differences between legal and illegal Toto betting. According to SSSgt Kuek, in illegal Toto betting, the punter had the option of either betting on a single digit bet, a double–digits bet, a three–digits bet or a four–digits bet. SSSgt Kuek explained that in illegal Toto, when punters placed bets on their numbers, they were in essence trying to predict the six digits that would be drawn by Singapore Pools. The odds of wining were therefore considerably higher in the illegal Toto context as compared to legalized betting, since punters need only predict some but not all of the six winning digits. In addition, the punter could also place bets on whether the last seventh number or the ‘additional number’ drawn by Singapore Pools would be a ‘small’, ‘medium’, ‘large’, ‘even’ or ‘odd’ number. There were also two main ways in which a punter of illegal Toto could fashion their bets. The first was simply to place a ‘straight’ bet. This meant that the punter...