Rajeevan Edakalavan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 January 1998
• Neutral Citation: [1998] SGHC 2
• Docket Number: Criminal Revision No 17 of 1997
• Date: 03 January 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: SK Kumar (SK Kumar & Associates)
• Citation: [1998] SGHC 2
• Defendant Counsel: Lee Sing Lit (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Defences,art 9(3) Constitution of the Republic of Singapore (1992 Ed),Use of criminal force with intent to outrage modesty,Right of arrested person to counsel under art 9(3) of Constitution,Criminal force and assault,Whether plea of defence of intoxication made out,Further constitutional right to counsel of one's choice,Fundamental liberties,Whether there was additional constitutional right to be informed of right to counsel,Criminal Law,Right to legal counsel,Plea of intoxication,ss 85(2)(b), 354 Penal Code (Cap 224),Constitutional Law

Judgment:

YONG PUNG HOW CJ

This was a petition for a criminal revision arising out of a conviction under s 354 Penal Code (Cap 224) for the use of criminal force on a victim by pressing her left breast twice with an intent to outrage her modesty. The petitioner pleaded guilty to the charge and was sentenced to six months` imprisonment and three strokes of the cane by the magistrate below. The petition was brought on the basis that the proceedings in the court below were flawed, culminating in a miscarriage of justice.

2.The petition came up for hearing before me on 14 October 1997. After hearing the submissions made by the petitioner`s counsel, I felt it unnecessary to call on the Deputy Public Prosecutor to reply and dismissed the petition. I now set out the grounds of my decision.

3. The charge

The petitioner faced the following charge:

MAC 7160/97

You, Rajeevan Edakalavan, M/27 years old

FIN No F2495837-W

are charged that you on or about the 26 June 1997 at or about 11.35pm, inside TIBS bus service 851, travelling along Ang Mo Kio Ave 6, Singapore, did use criminal force on one Murthy Ally, to wit, by pressing her left breast twice, intending to outrage her modesty, and you have thereby committed an offence punishable under s 354 of the Penal Code (Cap 224).

4. The facts

The facts were straightforward and largely undisputed. At the trial below, the petitioner admitted to all the facts set out in the statement of facts without qualification.

5.The petitioner is a 27 year old Indian national and held an employment pass in Singapore. He was working as a technical specialist at National Semi-Conductor prior to the alleged commission of the offence. The victim was a 24 year old Indian lady named Murthy Ally.

6.On 26 June 1997, at about 11.15pm, the victim boarded TIBS bus service number 851 along Shunfu Road, which was heading towards the direction of Yishun. She took the aisle seat on the left side of the bus, second row from the rear exit. A Chinese lady occupied the window seat beside her. The petitioner was seated directly behind the Chinese lady. A while later, the Chinese lady alighted the bus. The victim then moved to the window seat which was previously occupied by the Chinese lady. As the victim was tired, she took a nap, with her head leaning against the window.

7.At about 11.35pm, as the bus was passing along Ang Mo Kio Avenue 6, the petitioner slipped his left hand through the gap between the window and the victim`s seat. He pressed against the victim`s blouse twice at her left breast region. This act alerted the victim. She turned around and shouted at the petitioner who apologised immediately. At the same time, a male passenger was alerted by the victim`s screams and saw the petitioner pulling his fingers away from the gap between the window and the victim`s seat. He kept watch over the petitioner. The driver was informed of the incident and drove the bus to Yishun Bus Interchange.

8.At about 11.40pm, the informant, one Mr Zainal, called the police and reported that a male subject had been detained for molest on board TIBS bus service number 851. The petitioner was arrested and brought to Ang Mo Kio Police Division.

9.The petitioner was charged under s 354 Penal Code on 27 June 1997. At the trial before the magistrate on 28 June 1997, the petitioner appeared in person without begin represented by counsel. He pleaded guilty to the charge and was convicted accordingly.

10. The petition for criminal revision

The fundamental ground on which the petitioner based the application to urge this court to exercise its discretionary powers of revision was that the proceedings of the trial below was such that it contravened art 9(1) of the Constitution of the Republic of Singapore. Article 9(1) provides:

No person shall be deprived of his life or personal liberty save in accordance with law.

11.There were two main submissions in support of the petition: (i). upon his arrest, the petitioner was immediately taken to Tan Tock Seng Hospital to undergo a test to determine his blood alcohol content. Blood samples were taken from him for analysis. However, the statement of facts failed to address his medical condition and blood alcohol level at the time of his arrest. No mention was made as to the examination at the hospital;

(ii). the petitioner was not represented and was not advised of his legal right to counsel. Thus, his plea could not be considered unequivocal. He was in a state of confusion when he pleaded guilty. He was under the mistaken belief that he had no defence to the charge. In reality, at the time of the commission of the offence, he was so drunk that he was incapable of forming any intention and/or did not realise what he was doing. It was submitted that had the court been informed of the petitioner`s state of mind and his blood alcohol level, it would have sought further clarification before being satisfied that the plea of guilt was unequivocal. Also, being unrepresented, the petitioner was unaware that a charge under s 354 was compoundable under s 199 Criminal Procedure Code (Cap 68) (CPC). In light of the above, the petitioner had pleaded guilty in total ignorance of the law, in particular, the defences which were open to him.

12.At this juncture it is pertinent to take note that on 13 October 1997, the eve of the hearing, the petitioner`s solicitors filed an affidavit and enclosed a medical report on the petitioner dated 3 October 1997. The report stated that the petitioner was examined at the Accident and Emergency department at Tan Tock Seng Hospital on 27 June 1997 at about 4.35am. Upon examination, it was found that he was rational and that his heart and lungs were clear. There was no evidence of any external injury. His blood sample contained 43mg of ethanol per 100ml of blood.

13.In determining whether the allegations put forth by the petitioner merited the use of the discretionary powers of revision by the High Court under s 268 CPC, a few crucial issues required further scrutiny: (i). scope of art 9(3) of the Constitution;

(ii). whether the petitioner should have been advised of the defences, if any, available to him;

(iii). validity and unequivocability of the petitioner`s plea of guilt;

(iv). availability of a plea of defence of intoxication.

They were considered in turn.

14. Scope of art 9(3) of the Constitution

The petitioner submitted that, as he was not informed of his right to legal representation, his plea of guilt could not be said to be unequivocal. The issue which presented itself before this court was whether a person under arrest has a right to be informed of his constitutional right to counsel under art 9(3). To put it in another way, is there an obligation imposed on the police or other relevant authorities to inform the person under arrest of his right to counsel? Article 9(3) reads as follows:

Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

In order to resolve this question, a few cases from other jurisdictions on this issue were reviewed to see how similar provisions on the right to counsel were interpreted.

15.The first case was A-G of Trinidad and Tobago & Anor v Whiteman [1991] 2 WLR 1200, a decision of the Privy Council on an appeal from the Court of Appeal of Trinidad and Tobago. There, the applicant was arrested and detained in a police cell for a period. He claimed that at no time during his detention was he informed of his right to communicate with a lawyer. He brought an originating motion for relief. The primary issue before the Privy Council was whether a person upon arrest and detention by the police had a constitutional right to be informed of his constitutional right to retain and instruct a legal adviser of his choice and to hold communication with him. The Privy Council answered this question in the positive. However, this case must be viewed with caution as the decision was based on the interpretation of the wording of the Constitution of Trinidad and Tobago, which is markedly different from that in Singapore. The relevant provisions should first be set out:

5(2) Without prejudice to subsection (1), Parliament may not -

(c) deprive a person who has been arrested or detained -

(ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him

(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms

Section 5(2)(c)(ii) is worded in a similar fashion to art 9(3). However, there is no equivalent to s 5(2)(h) in our Constitution. This distinction is significant. From a reading of the leading judgment of Lord Keith of Kinkel, it is clear that s 5(2)(h) was the pivotal factor in their Lordships` coming to the decision that there was a constitutional right to be so informed of the right to counsel. According to their Lordships, s 5(2)(h) was specifically enacted to confer upon the person arrested a right to be informed of his right set out in s 5(2)(c)(ii). As stated at p 1204 on the interpretation of s 5(2)(h):

Section 5(2)(h) is properly to be regarded as intended to deal with that kind of situation as well as other kinds of situation where some different constitutional rights might otherwise be at risk of not being given effect and protection. There are no grounds for giving a restricted meaning to the words `procedural provisions`. A procedure is a way of going about things, and a provision is something which lays down what that way is to be. Given that there are some situations where the right to communicate with a legal adviser will not be effective if no provision exists for some procedure to be followed with a view to dealing with these situation, there is a clear necessity that such provision should be made. So s 5(2)(h)

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