Quak Siew Hock David v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 November 1998
• Neutral Citation: [1998] SGHC 363
• Docket Number: Magistrate’s Appeal No 122 of 1998
• Date: 05 November 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: S Asogan (S Asogan & Co)
• Citation: [1998] SGHC 363
• Defendant Counsel: RD Gangatharan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether presence can amount to participation in distributing prohibited publications,Actus reus,Whether s 34 of Penal Code can be invoked for a 'single act' offence under s 4(2) of the UPA,Whether prima facie case of common intention to distribute prohibited publications established,Distribution of prohibited publications,Elements of crime,Act of possession in furtherance of common intention,Whether co-offender must have specific knowledge of quantity and contents of prohibited publications in actual offender's possession,s 34 Penal Code (Cap 224),Whether necessary for prosecution to prove actual possession in co-offender,Common intention,Complicity,Criminal Law

Judgment:

YONG PUNG HOW CJ

This is an appeal from the learned magistrate who convicted the appellant, Quak Siew Hock David (`Quak`) on two amended joint charges in MAC 13086/97 (P1C) and MAC 13088/97 (P2C) for the offences of possession of prohibited publications in furtherance of a common intention punishable under s 4(2) of the Undesirable Publications Act (`UPA`) read with s 34 of the Penal Code (`s 34`).

2. The charges

The joint charges against Quak and another, one Lee Sor Hong (`Lee`) read as follows:

That you,

B1 - Name: Quak Siew Hock, David, m/41 years old NRIC: S1195894Z

B2 - Name: Lee Sor Hong, F/24 years old NRIC S7312796C

are charged that you on or about 26 October 1997, at or about 12:30pm, at Blk 109, Aljunied Crescent, 6th floor, Singapore, in furtherance of the common intention of you both did have in your possession prohibited publications under s 3 of the Undesirable Publications Act, to wit, [a list of 17 titles in various languages of publications in P1C or a list of 12 titles in various languages of publications in P2C] published by the [Watch Tower Bible and Tract Society or International Bible Students Association] and you have thereby committed an offence punishable under s 4(2) of the Undesirable Publications Act (Cap 338), read with s 34 of the Penal Code (Cap 224).

3.Lee was also charged for distributing a publication prohibited under s 3 of the UPA, being an offence punishable under s 4(1) of the UPA, but this related to a different set of circumstances. Both accused claimed trial to all the charges.

4. The facts

The evidence from Corporal Desmond Soh (PW1) and Choo Liling (PW2) revealed that on 28 September 1997, while PW2 was on the telephone with PW1, two women knocked on the front door of PW2`s flat at Blk 109, [num ]06-52, Aljunied Crescent. PW2 informed the two women that she was busy. They asked her when she would be free and PW2 told them that she was having her examinations until 23 October 1997. The women then said that they would visit her again either on 25 or 26 October 1997. They also left a pamphlet at the gate of the flat and told PW2 to take a look at it when she was free. The women then left. PW2 identified Lee as one of the women.

5.PW2 took the pamphlet and returned to the telephone to tell PW1 what had transpired, including the fact that a pamphlet published by `Watch Tower` was left with her. PW1 recalled being briefed by his superiors that such publications were `banned` in Singapore. He then made an appointment to see PW2 the next day and was handed the pamphlet by PW2.

6.On 25 October 1997, two women came to PW2`s flat again. One of them was Lee. They were very friendly with PW2 and gave her a pamphlet. They also asked PW2 to choose another pamphlet from a photo-album. When Lee and the other woman left PW2 threw both of these pamphlets away.

7.On 26 October 1997, while PW1 was on his way to visit PW2, he spotted a male and female Chinese having a discussion along the sixth floor corridor of PW2`s block, though he could not tell what it was about. The two of them were seen looking towards PW2`s flat. PW1`s suspicions were aroused and he proceeded to identify and check on them. PW1 identified these two persons as Quak and Lee respectively.

8.PW1 brought them down to the void-deck and contacted Bedok Police Division for assistance. When a police car came, he conducted a search on both the subjects. PW1 found a checked plastic carrier (D1) on Lee. It contained all the prohibited publications forming the subject matter of the joint charges. The defence did not dispute the exhibits seized from Lee and their quantity. The evidence from PW3, PW5, PW6 and PW7 (either interpreters or MITA officials), together with an agreed statement of facts concerning publications with Chinese titles, collectively established that these were publications by the Watch Tower Bible and Tract Society and the International Bible Students Association. They were prohibited under the Minister`s Orders in Gazette Notifications No 123 dated 14 January 1972 and No 405 dated 4 February 1994 made pursuant to s 3(1) of the UPA. In addition, PW1 found one English Bible, one Chinese Bible and four notebooks on Lee.

9.However, PW1 only seized one English Bible and three notebooks found in a blue coloured bag carried by Quak. In cross-examination, PW1 said that there were other items in the bag but he could not recall what they were.

10.Eliza Soon (PW4), the investigating officer, testified that she recorded two statements each from Quak and Lee. The defence had no objection to the admission of these statements and they consisted of a statement recorded on 27 October 1997 at about 12.25am from Quak (P34), a statement recorded on 27 October 1997 at about 12.59am from Lee (P35), a s 122(6) statement recorded on 21 November 1997 at about 2.49pm from Quak (P36) and a s 122(6) statement recorded on 21 November 1997 at about 3.51pm from Lee (P37). In P36, Quak simply stated that he was not guilty.

11.During the cross-examination of PW4 on the parts of P34, reproduced below at [para ] 24, in which Quak expressly admitted that he was in possession of prohibited publications, she stated that these admissions were in response to the specific question whether Quak had any of the publications when he met Lee Sor Hong at Blk 108, Aljunied Crescent on 26 October 1997. She also claimed that she asked Quak how many tracts and magazines he had and that Quak said that he had a few. She admitted however that neither of these questions were expressly stated in P34. It also emerged that PW4 had placed the whole stack of seized publications in front of her and referred to them as she questioned Quak, although he did not refer to anything specific when he admitted to the possession of prohibited publications.

12. The decision below

At the close of the prosecution`s case, counsel for both accused submitted that the prosecution had failed to establish a prima facie case against Quak on P1C and P2C. The magistrate held that, on a charge of possession with common intention, Quak did not have to be in actual possession of the prohibited publications so long as Lee`s acts of possession were committed in furtherance of their common intention. Five admissions made by Quak in P34 were principally considered, namely, that (1) he knew that Lee was going to a unit in Blk 109 Aljunied Crescent to teach others the bible, (2) his intention was to accompany her to do so, (3) he also knew that Lee was carrying some publications which were `banned` in Singapore, (4) he knew that Lee would give those publications to people who wanted them and (5) normally, when he had such publications, he would also distribute them to those who wanted them. Together with the fact that both accused were seen having a discussion on the sixth floor corridor of Blk 109 and looking in the direction of PW2`s flat, the magistrate found that the entirety of the prosecution`s evidence clearly showed that Quak and Lee were going together to PW2`s home to evangelise, and they shared a common intention to possess prohibited publications with them so that the publications could be handed out. Further, it was not necessary for Quak to have known the exact titles and quantities of the publications found in Lee`s possession. Accordingly, the magistrate found that the prosecution had established a prima facie case against Quak on the joint charges and called for his defence.

13.Quak elected to remain silent and did not call any witnesses. The magistrate reviewed the evidence above and held that it constituted strong evidence of a common intention between Quak and Lee to possess prohibited publications. This called for Quak to give evidence to displace the natural inferences on his mental attitude that could be drawn. His election to remain silent therefore warranted the further drawing of an adverse inference. This coupled with the rest of the evidence established Quak`s guilt on both joint charges beyond a reasonable doubt. Taking into consideration a previous similar conviction under s 4(2) of the UPA, Quak was sentenced to one week`s imprisonment each for P1C and P2C and the sentences were ordered to run concurrently.

14. The issues arising in the appeal

Although the petition of appeal canvassed numerous issues of fact and law, at the hearing of the appeal, counsel for Quak`s arguments narrowed these to two main grounds. These related solely to the trial at the close of the prosecution`s case, namely: (a) whether s 34 could be invoked for an offence under s 4(2) of the UPA and (b) if so, whether the requirements for the application of s 34 were satisfied to establish a prima facie case against Quak on the joint charges. In respect of the latter issue, three sub-issues arose: (a) whether there was a common intention between Quak and Lee to possess prohibited publications, (b) whether there was participation by Quak in the criminal act, and (c) whether Lee`s possession of the prohibited publications was in furtherance of their common intention.

15. Applicability of s 34 to an offence under s 4(2) of the UPA

Counsel for Quak`s argument appeared to proceed on the following basis: the actus reus of the offence under s 4(2) of the UPA is actual possession of the undesirable publications. This relates to a single act and not a series of acts that is part of or contributes to the criminal act. Therefore, only the actual doer may be liable for this offence and joint liability envisaged by s 34 is not possible. Secondly, the magistrate was wrong to rely on Foong Seow Ngui & Ors v PP [1995] 3 SLR 785 , a case that applied s 34 in the context of the offence of possession of controlled drugs for the purpose of trafficking under s 5(1) read with s 5(2) of the Misuse of Drugs Act (`MDA`), in holding that Quak did not have to be in possession of the prohibited publications when s 34 was invoked. Possession under the MDA and possession under the UPA...