Rajendran s/o Nagarethinam v PP

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 25 August 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeals Nos 9426 and 9427 of 2020

Rajendran s/o Nagarethinam

and

Public Prosecutor and another appeal

[2021] SGHC 200

Tay Yong Kwang JCA

Magistrate's Appeals Nos 9426 and 9427 of 2020

General Division of the High Court

Criminal Law — Statutory offences — Penal Code — Obstructing course of justice — Arranging for accomplice to leave Singapore to evade arrest — Whether accused obstructed course of justice — Section 204A Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law — Statutory offences — Prevention of Human Trafficking Act 2014 — Recruiting victim for purpose of exploitation — Definition of “recruit” — Whether accused recruited victim — Whether accused attempted to recruit victim — Section 4(1)(a) Prevention of Human Trafficking Act 2014 (Act 45 of 2014)

Criminal Law — Statutory offences — Women's Charter — Knowingly living on earnings of prostitution of victim — Whether accused knowingly lived on earnings of prostitution of victim on two occasions — Section 146(1) Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Law — Statutory offences — Women's Charter — Procuring victim for prostitution — Whether accused was involved in procuring instance of prostitution — Section 140(1)(b) Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Procedure and Sentencing — Charge — Alteration — Sufficient evidence to constitute case which accused had to answer — Alteration to charge not causing injustice — Alteration to charge not affecting presentation of evidence — Whether charge under s 4(1)(a) Prevention of Human Trafficking Act 2014 (Act 45 of 2014) should be altered — Whether charge under s 140(1)(b) Women's Charter (Cap 353, 2009 Rev Ed) should be altered — Section 390(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed) — Section 4(1)(a) Prevention of Human Trafficking Act 2014 (Act 45 of 2014) — Section 140(1)(b) Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Procedure and Sentencing — Irregularities in proceedings — Defective consent of Public Prosecutor — Curative powers of court — Whether defective consent affected validity of conviction — Test of failure of justice — Whether defective consent caused failure of justice — Section 423(b) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing — Public Prosecutor — Consent of Public Prosecutor — Consent of Public Prosecutor required for charge under s 22 Prevention of Human Trafficking Act 2014 (Act 45 of 2014) — Section 22 Prevention of Human Trafficking Act 2014 (Act 45 of 2014)

Held, allowing the appeals in part:

(1) There was no basis to interfere with the DJ's factual findings. The factual findings were not against the weight of the evidence and were based on the DJ's assessment of the witnesses' credibility at the trial. The DJ, having heard V1's and V2's testimony and having observed their demeanour, found them to be unusually convincing witnesses. As the Prosecution highlighted, their evidence was “highly textured” and contained very specific details which suggested that it was not fabricated. V1, V2 and Roky (in his statement admitted into evidence) stood to gain nothing from implicating Rajendran and Sasikumar: at [54] and [55].

(2) The Prosecution accepted that the consent issued by the deputy public prosecutor (the “Deputy Public Prosecutor”) on 1 December 2016 was partially defective. The defect lay in the portion of the consent that concerned Charge 3. Section 22 of the PHTA required the consent of the Public Prosecutor before a prosecution under the PHTA could be instituted. In contrast, prosecution under ss 140 and 146 of the Women's Charter, being offences under Pt XI of the Women's Charter, required the consent of the Public Prosecutor “or his deputy”: s 154(2) of the Women's Charter. The Prosecution had obtained the consent of a deputy public prosecutor for all the charges that required consent, including Charge 3. When this mistake was discovered in the course of the trial, the Public Prosecutor issued a fresh consent on 11 September 2018 for Charge 3: at [56] and [57].

(3) While there was a defect in the consent issued by the Deputy Public Prosecutor, this defect was not fatal to the DJ's verdict on Charge 3. The issue was whether the partially defective consent issued by the Deputy Public Prosecutor resulted in a “failure of justice” within the meaning of s 423 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The key question was whether, looking at all the circumstances in totality, the irregularity rendered the judgment, sentence or order unsafe or unfair such that it should not be allowed to stand at all or should be allowed to stand only with rectifications. Rajendran did not suffer any prejudice suffered as a result of the irregularity: at [60] and [61].

(4) Under s 3(1) of the PHTA, it was not necessary for actual exploitation to have taken place in order to constitute an offence under that provision. As long as the actions (recruited, transported, transfered, harboured or received) and the means (which included threat, abduction and fraud) were to achieve the purpose (“exploitation”), an offence under s 3(1) PHTA was made out. If actual exploitation took place, that would aggravate the offence: at [69].

(5) The word “recruits” was more nuanced than the other verbs listed in s 3(1) PHTA. When a person or organisation was in the process of engaging candidates with a view to bringing them in as new members or employees, that person or organisation could be said to be “recruiting”. However, one could only say that a candidate was “recruited” when that candidate was brought into the recruiter's control or into the group or organisation, willingly or unwillingly. The candidate did not need to be detained or confined physically but had to be considered to have come under the recruiter's control or to have become a part of the group or organisation that the recruiter represented. If the candidate turned down or rebuffed the offer and was at liberty to walk away from the situation, it would seem contrary to common sense and the ordinary use of language to say that the candidate had been recruited or had become a recruit: at [70].

(6) In this case, V2 rebuffed Rajendran's recruitment efforts repeatedly and was free to leave the Club in spite of the threats and violence. It would be more in keeping with the ordinary sense of “recruits” to say that Rajendran attempted to recruit her by the relevant unlawful means but did not succeed. V2 had to return to the apartment because she was housed there and not because she was restrained or kept there against her will. It followed that it could not be said that Rajendran “did recruit” V2 for the purpose of exploitation. Charge 3, as framed by the Prosecution, was not made out: at [71] and [72].

(7) Nevertheless, there was clearly sufficient evidence that Rajendran attempted to recruit V2 for the purpose of exploitation. Rajendran would not be prejudiced by an alteration of Charge 3 to a charge for attempted recruitment. Accordingly, the court exercised its powers under s 390(4) of the CPC to alter Charge 3: at [73] to [76].

(8) A fresh consent from the Public Prosecutor was not required for the amended Charge 3. Section 390(5) of the CPC provided that “[I]f the offence stated in the altered charge is one that requires the Public Prosecutor's consent under section 10, then the appeal must not proceed before such consent is obtained, unless the consent has already been obtained for a prosecution on the same facts as those on which the altered charge is based”. Here, no new evidence had been adduced and none was needed. The facts supporting the amended Charge 3 were exactly the same as those on which the appellant had been convicted on the original Charge 3 at the trial: at [78].

(9) Under s 204A of the Penal Code, if an accused person was aware or had reason to believe that some wrongdoing had been or might have been committed, whether by himself or by some other person(s), and consequently took steps to somehow thwart or prevent the investigation into or the prosecution of the wrongdoing, he was guilty of an offence. He did not need to know what specific offence might have been committed. He only needed to be aware of facts that might amount to wrongdoing, not the charges that might be preferred or the legal consequences that could flow from those facts. Section 204A of the Penal Code, as it stood before the amendments that came into effect on 1 January 2020, did not state that an accused person had to know about the particular charge(s) that might be brought against him or anyone else before he could be guilty under the section: at [83] and [84].

(10) If a person accused of a s 204A Penal Code offence was proved to have been aware of the predicate offence at the time of his actions that intentionally obstructed the course of justice, this could be an aggravating factor in sentencing if the predicate offence was a very serious one: at [88].

(11) In the present case, Rajendran and Sasikumar knew exactly what they were doing when they asked Roky to leave Singapore at short notice. Rajendran and Sasikumar's motivation for Roky to leave Singapore quickly was due to the sudden disappearance of the performing artistes from the apartment on 11 February 2016. The performing artistes had been asked by the appellants recently to provide sex to the Club's customers. The appellants were obviously concerned that their involvement in asking the performing artistes to provide sex would be revealed by Roky if he were called up for questioning or arrested by the police. There could be no other explanation for what Rajendran and Sasikumar did, in view of the confluence in timing between the performing artistes' departure from the apartment and the instructions to Roky to leave Singapore. There was no need for the specific predicate offences to be on their minds when they took steps to obstruct the course of justice: at [90] and [92].

(12) On Rajendran's conviction under Charge 2, the evidence adduced did not show...