Quek Hock Lye v PP

• Jurisdiction: Singapore
• Judgment Date: 09 April 2012
• Date: 09 April 2012
• Docket Number: Criminal Appeal No 20 of 2010
• Court: High Court (Singapore)

Quek Hock Lye

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGCA 25

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Criminal Appeal No 20 of 2010

Court of Appeal

Constitutional Law—Attorney-General—Prosecutorial discretion—Whether Art 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’) was violated by Public Prosecutor's exercise of prosecutorial discretion in preferring different charges against two parties to same criminal conspiracy—Article 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Equality before the law—Whether selection of punishment for members of a ‘class’ of offenders was for the Judiciary by virtue of Art 93 of the Constitution—Whether Public Prosecutor's actions in formulating drug trafficking charge against co-conspirator, which was just under amount necessary to trigger mandatory death penalty, contravened doctrine of separation of powers and breached Art 93 of the Constitution by usurping judicial function of sentencing—Article 93 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Criminal Law—Criminal conspiracy—Propriety of amended charge on which appellant was convicted—Whether there was indeed agreement between co-conspirators to traffic in 62.14g of diamorphine found—Whether incongruity in charges faced by both conspirators impacted their underlying agreement to traffic in 62.14g of diamorphine

Criminal Procedure and Sentencing—Appeal—Plea of guilt—Appellant alleged trial judge erred in law by failing to follow procedural safeguards set out in ss 139 and 187 Criminal Procedure Code (Cap 68, 1985 Rev Ed) in relation to recording of his plea of guilt—Sections 139 and 187 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant, Quek Hock Lye (‘Quek’), a 48-year-old male Singapore citizen, was convicted by the judge (‘the Judge’) in the High Court of possession of not less than 62.14g of diamorphine (‘the seized drugs’), a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the Act’) in furtherance of a criminal conspiracy with one Winai Phutthaphan (‘Winai’), a 25-year-old male Thai national, to traffic the seized drugs, an offence under s 5 (1) (a) read with s 5 (2) of the Act. Quek was sentenced to the mandatory death penalty under s 120 B of the Penal Code (Cap 224, 2008 Rev Ed) (‘the PC’) read with s 33 of the Act. By way of background, the original charge of criminal conspiracy to traffic the seized drugs, upon which Quek was tried at the High Court over a 17-day period involved not only Winai and Quek but also one Phuthita Somchit (‘Somchit’), a 37-year-old female Thai National (‘the original charge’). For a number of reasons, the Judge acquitted Somchit of the original charge. Then, exercising his powers under s 163 (1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’), the Judge preferred an amended charge against Quek which was distinct from the original charge as Somchit was no longer a named co-conspirator and Quek, rather than Somchit, was stated to have been in possession of the seized drugs. Further, while Winai was a named party in the original and amended charge, prior to the commencement of Quek's trial before the Judge, Winai pleaded guilty to a wholly separate charge of possession with the intent to traffic a smaller quantity of ‘not less than 14.99 g’ of the seized drugs in furtherance of a criminal conspiracy with Somchit and Quek (‘Winai's charge’). When the Judge preferred the amended charge against Quek, he said, ‘I wish to plead guilty, I want to plead guilty, Sir’. As this was a capital charge, the Judge did not accept Quek's plea. Quek, on his part, chose not to call any witnesses or tender any documents in his defence to the amended charge. In the result, the Judge convicted Quek of the amended charge, after he was satisfied, that the evidence already adduced overwhelmingly supported it. Suffice it to say that the facts supporting both the original and amended charges were found in the statement of agreed facts (‘SAF’) wherein Quek unequivocally admitted to having possession of the seized drugs, the intent to traffic in them as well as the requisite knowledge of their specific nature. Quek appealed against his conviction and sentence. Constitutional questions relating to Arts 12 (1), 35 (8) and 93 were also raised.

Held, dismissing the appeal:

(1) While the Judge rejected Quek's plea of guilt, the Judge assessed the evidence already adduced against Quek on the amended charge and having determined that such evidence had established a prima facie case against him on the amended charge, called on Quek to enter his defence by calling such witnesses as he might wish to do. Quek declined to call any evidence in his defence. Therefore, Quek had received a fair trial on the amended charge: [16].

(2) There was no requirement at law that a judge should refer to the accused's plea of guilt in his grounds of decision: at [16].

(3) The guiding purpose of the requirements in ss 139 and 187 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’) was the avoidance of any prejudice to the accused. It was for this reason that the court was required to comply with a number of safeguards when recording any plea of guilt (seeRajeevan Edakalavan v PP[1998] 1 SLR (R) 10 at [24] and [25]): at [17].

(4) The Privy Council decision in Ong Ah Chuan v PP [1979-1980] SLR (R) 710 (‘Ong Ah Chuan’) was irrelevant to the question of constitutionality of the Attorney-General's exercise of prosecutorial discretion as Ong Ah Chuan dealt with a different question, ie, the application of Art 12 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’) to legislation (see Ramalingam Ravinthran v AG[2012] 2 SLR 49 (‘Ramalingam v AG’) at [19]- [20] and [40]). The appellant's dogged reliance on Ong Ah Chuan as a basis for contending that the exercise of the Public Prosecutor's discretion should be restricted to the sole question of the legal guilt of an offender was both ill-founded and patently incorrect: at [22] and [23].

(5) Divergent consequences, and in turn punishments, faced by accused persons in the same criminal enterprise (whether mandatory or not), flowing from their respective charges preferred by the Public Prosecutor, were not per se sufficient to found a successful Art 12 (1) challenge. To the contrary, this divergence in sentence meted out to the different accused persons was but a consequence of the broader constitutional discretion vested in the Public Prosecutor. The issue was not whether the Public Prosecutor could exercise his discretion to prefer a lower quantum of the same seized drugs between co-offenders but rather whether this decision was made for legitimate reasons which, inter alia, included the considerations outlined in Ramalingam v AG at [63]: at [24].

(6) Quek did not discharge his burden of establishing a prima facie case that the Public Prosecutor had infringed Art 12 (1) of the Constitution in charging him with a capital charge while sparing Winai of the same. In any event, on the evidence, Quek was really the brain behind the criminal enterprise and thus the main culprit. In addition, Winai's willingness to testify against Quek and Somchit was a relevant consideration which could have operated on the mind of the Public Prosecutor in preferring separate charges against Quek and Winai: at [25].

(7) Article 35 (8) of the Constitution conferred upon the Attorney-General, as the Public Prosecutor, a constitutional power to exercise his discretion in individual cases, which had to necessarily impact the sentencing range available to the court in relation to the particular charge preferred. It was not the function of the court to prefer charges against an accused brought before it. The court exercised its judicial power in relation to the charge or charges brought by the Public Prosecutor against an accused person. The limitation of the sentencing range or sentence (in a mandatory penalty scenario) available to the court was a necessary consequence following the charge preferred: at [28] and [29].

(8) The powers and jurisdiction of the courts as set out in Art 93 of the Constitution were distinct and separate from the powers of the Public Prosecutor under Art 35 (8) of the Constitution. Articles 93 and 35 (8) of the Constitution should be construed harmoniously, with neither being subordinate to the other: at [28] and [29].

(9) On the evidence before this court, there was indeed an agreement between Winai and Quek to traffic in 62.14g of the diamorphine found: at [35] and [36].

(10) The incongruity in the charges faced by Quek and Winai (ie, the difference in the specific quantity of the seized drugs stated in their respective charges) merely reflected the Public Prosecutor's discretion in preferring a less serious charge against Winai and it could have no impact on the overwhelming evidence adduced in support of their underlying agreement to traffic in the 62.14g of diamorphine: at [37].

(11) Where sufficient evidence was adduced to prove the underlying agreement between the co-conspirators beyond a reasonable doubt, the outcome per se of the proceedings against a co-conspirator, or the death or disappearance of the co-conspirator, was not ipso facto a reason to set aside the conviction or to amend the charge preferred against another co-conspirator: at [40].

DPP v Shannon [1975] AC 717 (refd)

Mohammed Muktar Ali v R [1992] 2 AC 93 (distd)

Nomura Taiji v PP [1998] 1 SLR (R) 259; [1998] 2 SLR 173 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (distd)

Pradumna Shriniwas Auradkar v State of Maharashtra 1981 Cri LJ 1873 (refd)

Rajeevan Edakalavan v PP [1998] 1 SLR (R) 10; [1998] 1 SLR 815 (refd)

Ramalingam Ravinthran v AG [2012] 2...