Sun Hongyu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 April 2005
• Neutral Citation: [2005] SGHC 72
• Docket Number: Criminal Revision No 4 of 2005
• Date: 13 April 2005
• Published date: 14 April 2005
• Year: 2005
• Plaintiff Counsel: Lim Kim Hong (Kim and Co)
• Citation: [2005] SGHC 72
• Defendant Counsel: April Phang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Accused person,Rights,Whether petitioner allowed to challenge unequivocal admission of statement of facts at trial by disputing facts contained therein at application for criminal revision,Immigration,Whether appropriate to charge petitioner under s 36 of Act,Section 36 Immigration Act (Cap 133, 1997 Rev Ed),Petitioner obtaining visa and visit pass and returning to Singapore using new passport,Meaning of "written permission" under s 36 of Act,Whether petitioner failing to get "written permission" of Controller under s 36 Immigration Act,Whether accused's right to legal counsel extending to right to contact third parties to enquire into right to counsel or legal consequences of arrest,Constitutional Law,Whether circumstances warranting criminal revision,Revision of proceedings,Control of admission,Whether petitioner understanding nature and consequences of plea of guilt,Petitioner prohibited from entering Singapore without obtaining prior written permission from Controller of Immigration

13 April 2005

Yong Pung How CJ:

1 The petitioner filed a petition for criminal revision to quash her conviction and set aside the sentence imposed on her on 7 February 2005 by the District Judge (the “judge”) on one charge of unlawful return to Singapore under s 36 of the Immigration Act (Cap 133, 1997 Rev Ed) (“the Act”). I dismissed the application and now set out my reasons.

The facts

2 The petitioner was arrested on 11 January 2005. Investigations revealed that she had been previously arrested on 20 June 2003 for vice activities whilst on a valid social visit pass, and referred to the Immigration and Checkpoints Authority (“ICA”) for repatriation. At that time, she was in possession of a People’s Republic of China passport with the serial number G05643970 bearing the name Sun Hongyu (the “old passport”).

3 Prior to being deported to China on 23 June 2003, the petitioner was served a ban notice by an immigration officer in Mandarin. She was informed that she was barred from entering Singapore for one year from 23 June 2003 to 23 June 2004. She had to obtain the prior written permission of the Controller of Immigration (the “Controller”) should she wish to return to Singapore, and failure to do so would render her liable to be imprisoned for between one and three years. The petitioner accepted the notice and acknowledged that she knew the consequences of breaching it.

4 The petitioner subsequently obtained a new People’s Republic of China passport with the serial number G09322619 bearing the name Sun Qiaoman (the “new passport”). Using the new passport, she re-entered Singapore on 20 June 2004. She had not obtained written permission from the Controller beforehand, and upon arrival in Singapore she did not disclose that she was under a prohibition.

5 In statements recorded under s 122(5) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), the petitioner admitted that she knew that the entry ban imposed on her was in force, that she had to obtain prior written permission before visiting Singapore, and that she knew the consequences of failing to obtain permission.

6 At the trial, the petitioner, who was then unrepresented, pleaded guilty to the charge under s 36 of the Act. She admitted without qualification to the Statement of Facts (the “SOF”), which set out the facts in the preceding paragraphs. Three other charges under s 57(1)(k) of the Act involving false statements made to ICA were taken into consideration. The judge convicted the petitioner, sentenced her to one year’s imprisonment, and ordered that she be repatriated upon completion of her sentence.

The petitioner’s submissions

7 Before this court, the petitioner made the following submissions:

(a) her unequivocal admission to the SOF was qualified because she was under the mistaken impression that the entry ban imposed on her ran from 20 June 2003 and not 23 June 2003, and she could not recall being informed that she required prior written permission to re-enter Singapore;

(b) she believed that ICA was fully aware of her true identity, and that she had re-entered Singapore lawfully on 20 June 2004;

(c) she should not have been charged under s 36 of the Act, as she had obtained a visa and visit pass and therefore could not be said to have re-entered Singapore without the Controller’s written permission;

(d) her cautioned statements were involuntary or, alternatively, that she was compelled to admit to the charges against her under undue influence as the immigration officer handling her case (the “Officer”) had told her that she would otherwise face additional charges in respect of her engagement to one Lee Liat Yeong and a longer term of imprisonment; and

(e) she had been denied the right to contact and consult her family, friends and fiancé.

The law on criminal revision

8 The High Court’s powers of revision in respect of criminal proceedings and matters in subordinate courts are conferred by s 23 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and s 268 of the Criminal Procedure Code. Pursuant to these powers, the High Court has the discretion to, amongst other things, review a conviction passed by the subordinate courts. However, the very scope of these powers obliges the court to act with great circumspection in exercising them, and these powers will be exercised sparingly: Mok Swee Kok v PP [1994] 3 SLR 140. It is not the purpose of a criminal revision to become a convenient form of “backdoor appeal” against conviction for accused persons who had pleaded guilty to their charges: Teo Hee Heng v PP [2000] 3 SLR 168.

9 For the court to exercise its revisionary powers, there must be some serious injustice. No precise definition of serious injustice is possible as that would unduly circumscribe the discretion of the court. However, it must generally be shown that there is something palpably wrong in the decision of the court below that strikes at its basis as an exercise of judicial power: Ang Poh Chuan v PP [1996] 1 SLR 326, Mohamed Hiraz Hassim v PP [2005] 1 SLR 622. The revisionary court should confine itself to errors of law or procedure, and deal with questions of evidence or findings of fact only in exceptional circumstances to prevent a miscarriage of justice: Sarjit Singh s/o Mehar Singh v PP [2002] 4 SLR 762, Shan Kai Weng v PP [2004] 1 SLR 57.

The petitioner’s plea of guilt

10 Before a plea of guilt is accepted, the trial judge must ensure that the plea is valid and unequivocal. A plea must be unequivocal in the sense that, it must signify without doubt and qualification the accused’s admission to all the ingredients of the offence and all the averments in the charge: Rajeevan Edakalavan v PP [1998] 1 SLR 815. For the plea to be valid, the test set out in Ganesun s/o Kannan v PP [1996] 3 SLR 560 and followed in Rajeevan must be satisfied. First, the court must ensure that it is the accused himself who wishes to plead guilty. Second, the court must ascertain whether the accused understands the nature and consequences of his plea. Third, the court must establish that the accused intends to admit without qualification the offence alleged against him. In Chan Chun Yee v PP [1998] 3 SLR 638, I had also said that the plea of guilt of an unrepresented person was not more easily vitiated than that of a represented person, and that the plea was not vitiated by the accused’s ignorance of possible defences.

11 The petitioner’s submissions, that her admission of the SOF was actually qualified because of her mistake as to when the entry ban was in force and her ignorance of the requirement for prior written permission, sought to vitiate the validity and unequivocal nature of her plea of guilt. This is because the third limb of the test in Ganesun s/o Kannan requires the accused pleading guilty to admit to all the ingredients of the offence contained in the statement of facts without qualification: see Rajeevan and Shan Kai Weng ([9] supra).

12 Section 36 of the Act reads as follows:

Any person who, having been removed or otherwise lawfully sent out of Singapore, enters or resides in Singapore without the permission in writing of the Controller shall be guilty of an offence and shall on conviction be punished with imprisonment for a term of not less than one year and not more than 3 years and shall also be liable to a fine not exceeding $6,000, and shall in addition be liable to be removed from Singapore.

13 The elements of the offence under s 36 were set out in Ma Teresa Bebango Bedico v PP [2002] 1 SLR 192 (“Ma Teresa”) at [11]. These were that:

(a) the accused had been removed from or sent out from Singapore;

(b) he entered or resided in Singapore; and

(c) he did not have the Controller’s written permission to be in Singapore.

The petitioner’s claim of ignorance of the need for the Controller’s permission sought to attack the most critical aspect of the Prosecution’s case against her.

14 I rejected the petitioner’s arguments on this point. The charge and SOF were perfectly clear. The Notes of Evidence of the proceedings in the District Court indicated that the petitioner had pleaded guilty to the charge after it had been read and explained to her in Mandarin. She had indicated that she understood the charge, and understood the nature and consequences of her plea.

15 Turning to the SOF, the offence under s 36 of the Act was made out. The petitioner was repatriated to China on 23 June 2003 after being served with the ban notice. She was also informed of the requirement for prior written permission from the Controller before re-entering Singapore. She returned to Singapore on 20 June 2004 without obtaining the Controller’s permission. She admitted that she had consciously decided to re-enter Singapore with the new passport, as she knew the old passport had been coded with the entry ban. Had she used the old passport to re-enter Singapore, the Immigration Officer at the checkpoint would have been alerted to her immigration status.

16 The petitioner failed to object to the SOF at trial. This flew in the face of her assertion before this court that she had informed the Officer upon her arrest of her mistake as to her entry...