Selvarajan James v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 21 August 2000
• Neutral Citation: [2000] SGHC 171
• Docket Number: Magistrate's Appeal No 328 of 1999
• Date: 21 August 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: SK Kumar (SK Kumar and Associates) and Gurdaib Singh (Gurdaib Cheong & Partners)
• Citation: [2000] SGHC 171
• Defendant Counsel: Jennifer Marie and Aedit Abdullah (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Whether accused has requisite guilty knowledge,Abetment,Adducing fresh evidence,Pre-conditions to grant of leave by court to adduce fresh evidence,Abetment of theft by aiding,Whether court may direct Prosecution to disclose,s 147(6) Evidence Act (Cap 97, 1997 Rev Ed),Weight of evidence,Criminal Procedure and Sentencing,Appeal,Whether pre-conditions satisfied,Whether sentence of 15 months excessive,Weight to be attached to admissible statements compared to that on testimony in court,Whether Prosecution under duty to disclose witnesses' statements to Defence,Evidence,Criminal Law

: This was an appeal against the decision of district judge Suriakumari Sidambaram where she convicted the appellant of an offence under s 381 read with s 109 of the Penal Code (Cap 224) for abetting one Muthusamy Kanan (`Kanan`) in the commission of theft as a servant, in that he intentionally aided Kanan by arranging for a vehicle to transport stolen goods and assisting in getting a place to store such stolen goods until a buyer could be found. The appellant was sentenced to 15 months` imprisonment. The appellant appealed against his conviction and sentence. I dismissed the appeal and now give my reasons.

The charge

The re-amended charge against the appellant read as follows:

DAC 10988/99

You, Selvarajan James, Male/40 years, NRIC No 1292197G, are charged that you, on 22 January 1998, at or about 7.30pm, at Thyssen Haniel Logistics Centre located at No 10 Changi South Street 2, Singapore, did abet one Muthusamy Kanan, employed in the capacity of a warehouse assistant with M/s Thyssen Haniel Logistics (S) Pte Ltd, in the commission of the offence of theft as a servant, in that you intentionally aided the said Muthusamy Kanan, to wit, by arranging for a vehicle to transport the stolen goods, to wit, three hundred pieces of Sanyo CL7-X6 cordless telephones valued at $97 each, amounting to a total value of $29,100, from the warehouse at the said Thyssen Haniel Logistics Centre and assisting in getting a place to keep the said goods in the interim until a buyer was found for the stolen goods, which offence was committed in consequence of your abetment and you have thereby committed an offence under s 381 read with s 109 of the Penal Code (Cap 224).

The facts

Some time during the day on 22 January 1998, Kanan contacted the appellant and asked the appellant to assist in obtaining transport for some goods and in looking for a place to store the goods. The appellant managed to procure one `Singh` to provide the transport for Kanan. At about 7pm on 22 January 1998, the appellant and Singh arrived at Thyssen Haniel Logistics Centre (`THLC`), where Kanan was a warehouse assistant, in a white lorry.

The appellant introduced Singh to Kanan and Kanan then gave instructions for 60 cartons containing cordless telephones worth $29,100 to be loaded onto the lorry. Although the appellant claimed that he was sitting in the passenger seat during the loading process, the trial judge found on the evidence that it was the appellant and Singh who loaded the goods onto the lorry.

Singh asked Kanan for the delivery order or any other documents relating to the goods to be taken out of the warehouse but seemed to accept Kanan`s explanation that they were not required. The appellant never asked for any documents.

After the loading of the 60 cartons had been completed, Singh and the appellant tried to leave the premises in the lorry but the gate to the warehouse was closed. The security guard had been ordered not to let anybody leave the premises without the authorisation of the warehouse executive, one Lee Chen Seng Michael, who had been tipped off that Kanan was `up to something`. However, Kanan told the security guard that the people in the lorry were his friends who only came to `chit-chat` with him. The guard subsequently allowed the lorry to leave the premises.

The goods were brought to a shophouse in the Newton area and unloaded. In the meantime, the police were informed of the theft. Kanan then paged the appellant and told him that the police had arrived at THLC and to return the goods immediately. The appellant testified that, on being informed that the goods needed to be returned, Singh became very upset and refused to do so. Two taxis were therefore hired to transport the goods back to THLC.

The appellant rode in one of the taxis but alighted at Bedok, allegedly to attend to his son who was sick. However, the trial judge found from the evidence that he alighted in Bedok merely to return to his residence there. The 60 cartons of goods were returned in their entirety to THLC in the two taxis, unaccompanied by any passenger, at about 11.20pm on 22 January 1998.

Kanan gave the appellant`s pager number to the investigating officer, Insp Brian Stampe (the `IO`), who tried to contact the appellant but to no avail. The trial judge dismissed the appellant`s claims that he spoke to the IO and had made himself `contactable and available to go to the station any time` and instead accepted the IO`s evidence that the appellant never contacted him at all. The appellant remained at large until almost a year later, when he was arrested on 10 January 1999.

Kanan was charged under s 381 of the Penal Code (Cap 224) on 24 January 1998. He pleaded guilty to that charge and was sentenced to 24 months` imprisonment.

Decision of the trial judge

The only issue in question was whether the appellant had the requisite intention to aid Kanan in the commission of the offence. The appellant`s contention was that he had no knowledge that the goods in question were stolen and that his role was merely to provide transport for Kanan.

The trial judge tested the appellant`s contention against the evidence adduced. Firstly, Kanan made two statements to the police (marked `P9` and `P10`) - one on 23 January 1998, the day after the offence was committed and another on 24 March 1999, after his conviction under s 381 of the Penal Code - stating categorically that the appellant knew that the goods in question were stolen goods. The voluntariness of these statements was not questioned. Although Kanan testified in court that the appellant did not know that the goods were stolen, the trial judge found Kanan`s two earlier statements, one of which was contemporaneous with the offence, to contain the truth and accepted that the appellant knew that the goods were stolen.

Further, even if Kanan had not expressly told the appellant that the goods were stolen, the trial judge felt that the appellant had at the very least wilfully shut his eyes to the theft. The lack of requisite documents, the large volume of goods and the fact that it was after office hours when the goods were loaded should have put the appellant on notice that all was not innocent. The appellant, however, did not make any enquiries at all.

The trial judge also scrutinised all the circumstantial evidence - (a) the fact that the appellant travelled with the transport to the warehouse and then to the place of storage and helped to load and unload the goods; (b) the fact that the appellant did not come forward and remained at large for almost a year, although he knew that the police were looking for him; and (c) the fact that the appellant felt the need to lie that he did not help to load the goods onto the lorry and about having to rush back to his sick son on the evening of 22 January 1998 - and came to the inevitable and inexorable conclusion that the appellant was an active participant and abetted in the offence he was charged with.

The trial judge noted that the sentence generally passed on a first offender who has stolen items worth about $10,000 is 12 months` imprisonment. The goods that were stolen in the present case were worth $29,100. The trial judge also took into account that the offence was committed deliberately and involved an element of abuse of trust. She was also informed that the accomplice, Kanan, had been sentenced to 24 months` imprisonment. As such, the trial judge felt that a sentence of 15 months` imprisonment would be appropriate in this present case to reflect the gravity of the offence and to serve as a deterrent both for the appellant and the public.

The appeal

The appellant appealed against his conviction and sentence. As against his conviction, the main grounds stated by the appellant in his petition of appeal were that, firstly, the trial judge erred by choosing to accept Kanan`s version of the facts as stated in his two statements to the police as opposed to his testimony in court; secondly, that the trial judge erred by placing too much emphasis on the fact that Kanan had pleaded guilty to the charge against him under s 381 of the Penal Code (Cap 224) and the fact that he admitted to the statement of facts with respect to that charge without any qualification; and finally, that the trial judge failed to consider all the evidence before her. As against his sentence, the appellant argued that the trial judge failed to take into account the mitigating factors and imposed an excessive sentence.

The motion to adduce additional evidence

In the course of preparing for the appeal, the appellant discovered that Kanan had in fact made a total of three statements to the police. Only the two statements marked `P9` and `P10` were adduced during the trial in the lower court and the appellant was not aware of the existence of a third statement (the `third statement`) during the trial. This third statement was apparently exculpatory in nature. The appellant therefore applied by way of criminal motion for the court to order that the prosecution be...