Simon Joseph v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 May 1997
• Neutral Citation: [1997] SGHC 127
• Citation: [1997] SGHC 127
• Defendant Counsel: Muhd Hidhir Majid (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: R Kalamohan and Kirpal Singh (Kalamohan & Kirpal)
• Date: 16 May 1997
• Docket Number: Magistrate's Appeal No 337 of 1996
• Court: High Court (Singapore)
• Subject Matter: ss 34 & 457 Penal Code (Cap 224),Whether conviction safe,Power of appellate court to reverse finding of fact based on impressions of witnesses' credibility,Appeal,Reluctance of appellate court to disturb finding,Housebreaking and theft by night,Abetment,Duty of trial judge to test impressions against whole of evidence,Criminal Law,Conviction solely on evidence of accomplice,Trial judge's findings,Criminal Procedure and Sentencing

The appellant was convicted on a charge of abetting by instigation the commission of housebreaking and theft by night, contrary to s 457 of the Penal Code (Cap 224) read with s 34. The persons the appellant were alleged to have abetted were Narendran s/o Govindaraj (PW5), Ramesh s/o Ramachandra (Ramesh), Suraj Babu s/o Mndraju (DW2), Selvam s/o Munusamy (also known as Veera) and one Subramaniam (Steven). The theft took place on 7 September 1992 at about 1am at the British Club. I will refer to this incident as the `British Club break-in`.

The prosecution`s evidence

The prosecution relied solely on PW5`s testimony. PW5 is currently serving six years` corrective training for a series of offences. On 19 December 1992, he pleaded guilty to the British Club break-in, together with some other offences. He was, on that occasion, sentenced to a total of four years and four months` imprisonment. There was no mention of the appellant in the statement of facts which he admitted to on that occasion. In that statement of facts, he had agreed that the burglary was planned by Steven. PW5 said that he implicated the appellant in 1996 because he had `a guilty conscience` and that it `was not fair` that the appellant had escaped unpunished.

On 3 June 1996, PW5 was arrested by the police on suspicion of a housebreaking at a building known as the Leksun Industrial Building which occurred the previous day. He also implicated the appellant in that break-in, which I will refer to as the `Leksun break-in`. It was common ground that the appellant had nothing to do with that offence. The appellant was arrested on the same day as a result of PW5`s accusation. The only explanation PW5 proferred for implicating the appellant in the Leksun break-in was that he was confused because he faced seven other charges at the time.

PW5 first met the appellant sometime in the middle of 1992. The appellant was a security guard at BP Singapore Pte Ltd when PW5 started work there. A few days later, the appellant was transferred to another location. They kept in touch with each other over the phone.

According to PW5, the appellant telephoned him and asked him if he was interested in breaking into the British Club. The appellant gave him the details concerning the location of the British Club and what items could be found there. The appellant told PW5 that Steven would give him the details of how it was to be done. One or two days later, Steven went alone to PW5`s workplace. PW5 said that this was not the first time that he met Steven. They discussed the break-in in a taxi when they left. Steven suggested a date but said that he wanted to discuss with the appellant first. Steven also said that he would check with the appellant concerning other details.

The next day, PW5 talked to Ramesh and DW2 about the planned burglary. They were initially reluctant but eventually agreed to participate. Ramesh and DW2 were good friends of PW5. PW5`s evidence was that he told them that the appellant provided the information about the British Club.

A few days later, PW5 went to the appellant`s office. Steven was also present. The appellant told PW5 that there were no close-circuit television cameras inside the British Club. The appellant told him that the burglary would take place on 7 September 1992. Only the three of them were present at this meeting. I noted, however, that PW5 said in cross-examination at one stage that this was the first time he discussed the break-in at the British Club with Steven, though he subsequently reverted to his original position.

After this meeting, PW5 kept in constant touch with Steven, who supplied implements such as false number plates for a van, a crow-bar, a cutter and a few screwdrivers. Steven told PW5 to meet him between 7pm and 8pm at Lorong Ampas. PW5 obtained the vehicle used in the burglary because Steven was unable to do so. However, Steven backed out at the last minute and told them that his cousin, Veera, would take his place. PW5 telephoned the appellant to ask about this, and was told that all would go on as planned, just as Steven had said.

PW5 described in detail the break-in. In a nutshell, PW5, Ramesh, DW2 and Veera made off with a large quantity of coins from the British Club`s jackpot machines. They drove to Jalan Ampas, where DW2`s father worked, and deposited the stolen coins in a small room at the back of the building. Their intention was to wait for Steven`s instructions.

PW5 contacted Steven the next day. Steven said that he would call the appellant and let PW5 know what to do. Later, Steven called and said that he would be there in the evening to help them count the coins. PW5 telephoned the appellant and told him what Steven said. The appellant said that he knew about this and that he would be there as well.

Ramesh and DW2 arrived at about 5pm that evening. The appellant came later in a taxi. However, Steven did not turn up. The four of them started to count the coins but gave up because there were too many. Instead, they packed them in `Ziploc` bags and divided the bags. The appellant took two bags of one dollar coins and told them that Steven would be coming later to collect his and Veera`s share.

The next day, PW5 telephoned the appellant and asked why Steven had not collected the money. The appellant reassured PW5 that nothing would go wrong. The appellant also asked PW5 not to implicate him if something was to go wrong. PW5 agreed. He related this to Ramesh and DW2. They too agreed not to implicate the appellant.

Steven did not collect his money, so PW5 told DW2 and Ramesh that they would set aside Steven`s and Veera`s share, and that they could take theirs. Ramesh was later arrested, apparently because he got into an argument with a taxi-driver. The next day, PW5 was arrested.

The investigating officer gave evidence that Steven is deceased. Steven had been arrested in 1992 but had not been charged for the British Club break-in. It was not possible to ascertain the reason for this, because the investigating officer for that case had also passed away. All that could be said was that Steven had been charged with and was convicted of another offence. A British Club representative testified that the British Club did not have any close-circuit television cameras in September 1992.

The defence

The appellant`s defence was a denial. His evidence was that there was one occasion before 7 September 1992 when Steven met PW5 at the appellant`s workplace. Steven`s father worked nearby and PW5 used to go to the appellant`s workplace for drinks. The appellant introduced Steven to PW5. The appellant said that he overheard the two of them talking about the British Club when he returned from his rounds. He did not know what the discussion was about.

Sometime around 7 September 1992, the appellant received a call from Steven. Steven asked him to go to a coffee shop at Balestier Road. Steven said that he wanted to talk to the appellant. The appellant asked him what it was about, but Steven said that he could not talk about it over the phone.

The appellant took a taxi to the coffee-shop. Steven and PW5 were there, together with another man whom he could not recall. They had some food and beer. Then the appellant asked Steven why he asked him to go there. Steven and PW5 took him to a small room in a building opposite the coffee-shop. There were coins heaped on the floor. Steven asked the appellant if he could help to change the coins to notes. The appellant replied that they could be changed at the bank and told him not to call the appellant again at his workplace.

The appellant denied instigating PW5 to commit the housebreaking. He denied providing information about the British Club, planning the housebreaking or taking any of the money. He also did not know Ramesh, DW2 or Veera. He did not know why PW5 implicated him.

DW2 had served his sentence for the British Club break-in. He testified that he was never told by PW5 of the appellant`s involvement in the break-in. PW5 had merely told him that PW5, Steven, Ramesh and himself were involved. DW2 did not know Steven until PW5 introduced him to DW2. DW2 did not speak to Steven. PW5 only told him that Steven planned the break-in. PW5 never said anything about the appellant.

DW2 had only seen the appellant once at Lorong Ampas. This was after the break-in. He did not notice whether the appellant took any money when he left. He did not know what was discussed as they were speaking in Tamil. DW2 had not seen the appellant again.

During cross-examination, DW2 confirmed that the agreement was that they would share the money from the break-in equally. He was not sure whether the appellant was involved in counting the coins. The appellant merely volunteered to change the coins. DW2 also explained that he might have said to the investigating officer on 10 June 1996 that the appellant was present and gave information on how to execute the plan for the break-in because it was not clear in his mind who Steven and the appellant were at the time. He had thought that the appellant was Steven and vice versa....