Quek Hock Lye v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 April 2012
• Neutral Citation: [2012] SGCA 25
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 20/2010
• Year: 2012
• Published date: 16 October 2015
• Hearing Date: 18 August 2011,13 September 2011,08 November 2011
• Plaintiff Counsel: Eugene Thuraisingam and Daniel Chia (Stamford Law Corporation)
• Defendant Counsel: Lee Lit Cheng with Dennis Tan and Darryl Soh (Deputy Public Prosecutor)
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Plea of Guilt,Constitutional Law,Attorney-General,Prosecutorial Discretion,Equality before the law,Judicial Power
• Citation: [2012] SGCA 25

Chao Hick Tin JA (delivering the judgment of the court): Introduction

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 62.14 g 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 120B of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”) read with s 33 of the Act (see Public Prosecutor v Phuthita Somchit and another [2011] 3 SLR 719).

This is Quek’s appeal against his conviction and sentence.

Background Original and amended charge

The charge on which Quek was convicted pertained to his participation in a criminal conspiracy with Winai to traffic in not less than 62.14 g of diamorphine (“the amended charge”). However, it should be noted that at the commencement of the trial at the High Court, Quek was in fact jointly charged with one Phuthita Somchit (“Somchit”), a 37-year-old female Thai national who, in addition to Winai, was identified as a party to the criminal conspiracy to traffic the seized drugs (“the original charge”). The amended charge preferred against Quek by the Judge was distinct from the original charge in only two respects: Somchit was no longer a named co-conspirator; and Quek, rather than Somchit, was stated to have been in possession of the seized drugs.

At this juncture, we should point out that Winai was a named party to the criminal conspiracy alleged in the original charge preferred against Quek and Somchit as well as in the amended charge forming the subject matter of this appeal. However, prior to the commencement of Quek’s trial before the Judge, Winai pleaded guilty to a wholly separate charge of possession of not less than 14.99 g of diamorphine in furtherance of a criminal conspiracy with Somchit and Quek to traffic in the stated quantity of the drugs (“Winai’s charge”).¹ Winai’s testimony was used by the Prosecution in the trial against Quek and Somchit.

By way of background, we ought to state that Somchit was distantly related to Winai and was also Quek’s girlfriend. As per the original charge, Quek and Somchit were jointly tried in a 17 day hearing before the Judge. Although Quek claimed trial, he elected to remain silent when called upon to enter his defence. On the 17th day of trial, having conducted a thorough assessment of the evidence adduced before the court, the Judge made a number of findings which resulted in the charges preferred against Quek and Somchit being amended. In particular, the Judge made the following findings of fact and law: From her demeanour in the witness box and the consistency of her evidence, Somchit was a witness of truth.² Somchit did not have actual knowledge and was not wilfully blind as to the nature of the drug.³ Somchit had proved on a balance of probabilities that she did not know the nature of the drug. Somchit had rebutted the presumption of knowledge raised by s 18(2) of the Act.⁴

Accordingly, the Judge acquitted Somchit of the original charge. However, exercising his power under s 175(2) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), the Judge amended the charge against Somchit and convicted her of attempting to traffic in a controlled drug under Class C of the First Schedule of the Act (“the separate charge”). On 2 September 2010, Somchit was sentenced to 9 years’ imprisonment.

Having convicted and sentenced Somchit under the separate charge, the Judge further exercised his powers under s 163(1) of the CPC, and preferred the amended charge against Quek (see [3] above). The following exchange took place when the amended charge was read out to Quek:⁵

Court:	How do you plead?
Interpreter Ang:	He pleads guilty.
Court:	Wow! Technically, I’m not supposed---anyway, I’ll---I’ll not accept the plea, all right. Are you ready to be tried on the altered charge?
[Quek]:	I don’t want to be tried on this charge.
Court:	Don’t want to be tried? No, are you ready to be tried?
[Quek]:	I wish to plead guilty, I want to plead guilty, Sir.
Court:	Yes, are you ready to be tried? Is there any reason why the trial should not continue---proceed?
[Quek]:	I hope that this case can continue---continue.
[emphasis added]

Notwithstanding the Judge’s reluctance to accept Quek’s plea of guilt, upon being called to enter his defence, Quek 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, having assessed the evidence already adduced, that the evidence overwhelmingly supported it. As noted above (see [3]), the elements of the amended charge were identical to the original charge with the exception of the removal of any reference to Somchit in relation to the alleged criminal conspiracy as well as the amendment to state that Quek, instead of Somchit, was in possession of the seized drugs. As will be shown later, these changes did not affect the sufficiency of the weight of the evidence adduced in support of the amended charge (below at [9]-[13]; [32]-[40]).

Material facts in support of the amended charge

The facts supporting both the original and amended charges can be found in the statement of agreed facts (“SAF”) which was signed by Quek and tendered before the Judge pursuant to s 376(1) of the CPC.⁶ In accordance with s 376(3) of the CPC, the SAF could be treated as an admission of facts for the purposes of the present appeal.

The following facts were undisputed before the Judge as well as before this Court. At the material time, Quek, Winai and Somchit resided at Block 21 Bedok Reservoir View #01-02, Aquarius by the Park, Singapore (“the Aquarius apartment”). Quek had, using his forged driving licence, entered into a lease agreement dated 6 September 2008 with the owner of the Aquarius apartment to rent it. On 3 October 2008, Quek was arrested by a team of officers from the Central Narcotics Bureau (“CNB”) and was led to the Aquarius apartment where he was searched. Amongst other things, the following were recovered from his person: One bunch of four keys attached to a key tag with the words “21 Aquarius #01-02” written on it; and Cash amounting to a total of S$ 5948.00.

The CNB officers thereafter conducted a search of the Aquarius apartment and seized 124 packets of granular substances which were later established to contain not less than 62.14 g of diamorphine. Drug paraphernalia was also found in the apartment which formed the objective evidence before the Judge to show that the drugs in the apartment were intended for repacking for sale rather than for personal consumption.

Quek made a contemporaneous statement on 3 October 2008 and a cautioned statement under s 122(6) of the CPC on 4 October 2008. Later, five long statements were recorded from him under s 121 of the CPC on 7, 8 and 9 October 2008 and 22 January 2009 (hereinafter all 7 statements taken by the police will be referred to as “statements”). In his statements, 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. At the trial, Quek’s statements were admitted into evidence without any challenge being made by him as to their voluntariness.⁷ Before us, Quek also did not dispute any of the above-mentioned facts or the Judge’s findings in relation to his possession of the seized drugs, his knowledge of their specific nature or his intention to sell them.

Somchit’s unchallenged evidence corroborated the evidence against Quek when she testified that it was Quek who procured the seized drugs and had directed her to repack them for sale to customers.⁸ Furthermore, Winai had also testified that Quek had instructed him to deliver the seized “white substances” to Quek’s customers.⁹

First ground of appeal

Two separate grounds of appeal are raised by Quek before this Court. First, in the petition of appeal filed by Quek’s counsel (“Counsel”), he contended that the Judge had erred in law in proceeding to hear the charge against Quek after he had pleaded guilty to the amended charge. Quek’s specific complaint was that the Judge had failed to follow the procedural safeguards set out in ss 139 and 187 of the CPC in relation to the recording of his plea of guilt (“the plea of guilt ground”).¹⁰

The applicable law

The relevant sections of the CPC which Counsel has relied upon are reproduced below for ease of reference: Committal for trial when accused wishes to plead guilty 139. Where an accused who is brought before an examining Magistrate states that he wishes to plead guilty to the charge preferred against him, the Magistrate shall record the facts of the case presented by the prosecution and if the facts disclose sufficient grounds for committing the accused, he shall satisfy himself that the accused understands the nature of the charge and intends to admit without qualification the offence alleged against him and, on being so satisfied, shall commit the accused for trial for the offence. Commencement of trial 187. (1) When the court is ready to commence the trial, the accused shall appear or be brought before it and the charge shall be read and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried. (2) If the accused pleads guilty the plea shall be recorded, or if he claims to be tried the court...