Tan Sai Tiang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 10 January 2000
• Neutral Citation: [2000] SGHC 4
• Docket Number: Magistrate's Appeal No 144 of 1999,
• Date: 10 January 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: KS Rajah SC and Chua Sui Tong (Harry Elias Partnership)
• Citation: [2000] SGHC 4
• Defendant Counsel: Kan Shuk Weng (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: ss 257(1) & 268(1) Criminal Procedure Code (Cap 68),Circumstances when appellate court will interfere,Application of 'clang of prison gates' principle,Relevance of when restitution made,Sentencing,Criminal Procedure and Sentencing,High court,Whether fresh evidence may be adduced in mitigation,Appeals,Conditions to be satisfied before accepted fresh evidence,Factors considered in sentencing,Revisionary powers of High Court to accept additional evidence on appeal,Power of appellate court to interfere with sentence,Restitution as mitigating factor

: Introduction

The appellant pleaded guilty to ten charges of cheating under s 420 of the Penal Code (Cap 224) in the court below. She was sentenced to six months` imprisonment on each of these charges, the first four of which were ordered to run consecutively and concurrently with the rest, resulting in a total of two years` imprisonment. The appellant appealed against her sentence and requested the High Court to exercise its revisionary powers to overturn some of her convictions.

Except for the dates on which the offences were committed and the amounts involved, the charges were worded similarly. The first charge read as follows:

DAC 884/1999

You,

Tan Sai Tiang, F/47 yrs NRIC No S0149438D DOB: 11.4.1950

are charged that you on or about 6 January 1997, at about 6pm, at the Singapore Swimming Club located at 45 Tanjong Katong Road Singapore, did cheat Francisco Lachica, a cashier with the said Club, to wit, by submitting a jackpot payment voucher No 27086 dated 6.1.97, for payment of $400 cash in jackpot wins, for the purpose of deceiving the said Francisco Lachica into believing that the contents of the said payment voucher were true when you knew that they were not, and by such manner of deception, you dishonestly induced the said Francisco Lachica into paying you cash of $400, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224).

Nine other charges worded in the same vein were proceeded with. The salient details of the charges are as follows:

a) DAC 886/99: 6 January 1997 for the sum of $220

b) DAC 894/99: 8 January 1997 for the sum of $300

c) DAC 922/99: 16 January 1997 for the sum of $760

d) DAC 1031/99: 25 February 1997 for the sum of $300

e) DAC 1085/99: 10 March 1997 for the sum of $460

f) DAC 1086/99: 10 March 1997 for the sum of $771.20

g) DAC 1126/99: 21 March 1997 for the sum of $700

h) DAC 1154/99: 30 March 1997 for the sum of $300

i) DAC 1155/99: 30 March 1997 for the sum of $220

The appellant was also charged with 390 other charges for the offence of cheating under s 420. These offences which arose in similar circumstances as the charges proceeded with were taken into consideration by the district judge for the purposes of sentencing.

The appellant had committed the offences in respect of all the charges with the help of two jackpot officers at the Singapore Swimming Club (`the club`), Chia Ah Soon (`Chia`) and Choy Swee Mun (`Choy`). Chia and Choy pleaded guilty to similar offences and were sentenced to a total of 12 months` and 18 months` imprisonment respectively.

Background facts

The appellant was a member of the club and a regular fixture at the jackpot room. She spent many hours playing the jackpot machines. Invariably, she lost a fair bit of money at the machines.

The jackpot machine system at the club worked in this manner. When a player struck a jackpot, the jackpot machine would pay out a maximum of 200 coins as wins. If the amount won exceeded 200 coins, the player had to claim excess winnings from the cashier by way of a payment voucher. The machine meter recorded these extra winnings as `Cancel Credits`. As jackpot officers, Chia and Choy were required to issue payment vouchers to certify that the excess wins were genuine. This was carried out by writing the winning jackpot combination, the sum of 200 coins paid out by the machine and the additional sum to be claimed. The player`s membership card would be embossed on the voucher and the player would have to sign this voucher and present it to the cashier of the club in order to claim these winnings. The cashier`s duty was to ensure that the voucher was duly filled up but not to verify the winnings.

Sometime in January 1997, the appellant, Chia and Choy came up with a scheme to cheat the club. The offences were carried out in the following way. Either Chia or Choy would issue the appellant a payment voucher that was purportedly for an excess win above 200 coins struck on a particular machine. This was obviously not the case as the particular machines did not record any excess wins. The vouchers were duly embossed with the appellant`s membership card and signed by her after which she would claim the extra cash from the club`s cashier.

These amounts were then split equally between the appellant and either Chia or Choy depending on who had issued the payment vouchers. In this manner, the appellant managed to cheat the club and cause it to pay to her the sum of about $102,959.80 as revealed by the 400 charges brought against her.

The decision below

The only issue before the district judge was the appropriate sentence to impose on the appellant as she had pleaded guilty unequivocally to the ten charges proceeded with against her in the court below. In coming to his decision to sentence the appellant to six months` imprisonment on each of the charges proceeded with, four to run consecutively and the rest to run concurrently, resulting in a custodial sentence amounting to a total of two years, the district judge considered several factors.

The district judge was of the view that there were some mitigating factors in the appellant`s favour. These were the fact that she had pleaded guilty and showed genuine remorse and shame from the outset. At the time of sentencing, the appellant was aged 49 years and had no previous antecedents. Her married life was in a state of shambles. Both her mental and physical health were not good. After a fall from the balcony of her house in 1985, the appellant suffered from amnesia, poor concentration and impaired hearing. The psychometric report relating to her mental health indicated that she had a poor sense of judgment, was guilible, had low self-esteem and was easily swayed by people. She indulged in playing the jackpot machines for comfort, relief and solace from the sorry state of her married life. Furthermore, it was said that it was her accomplices who had initiated the scheme after they found out about her losses. The appellant also did not keep the entire sum cheated, retaining only 50% of it whilst the other 50% was shared by Chia and Choy. The district judge also noted that the appellant had made full restitution of all the sums she had received.

However, the district judge commented that restitution only took place after the appellant had been caught and charged for the offences. The district judge also pointed out that Chia and Choy had committed far fewer offences than the appellant. Chia had 147 charges brought against him, eventually pleading guilty to the five charges that were proceeded with. Choy was charged with 254 offences and pleaded guilty to eight of them. Comparatively, the appellant had committed 400 offences and pleaded guilty to ten charges. As such, this was a factor to be taken into account when passing sentence.

The district judge was also cognisant of the fact that the appellant had deceived the cashier of the club on 400 separate occasions. On each of these occasions, the appellant had carried out a separate and deliberate deception. This was not a case where the appellant had given in to temptation on the spur of the moment and she was likely to have continued committing the offences had she not been discovered.

Based on all these factors, the district judge felt that the appropriate sentence was a global term of two years` imprisonment.

The criminal motion

The appellant filed a motion to adduce further evidence consisting of a report made by the Principal Scientific Officer at the Department of Scientific Services, Ms Lee Gek Kwee (`the DSS report`), two statements made by the appellant to the police under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`), a letter dated 27 April 1999 from her previous solicitors to the Attorney General`s Chambers and two jackpot vouchers signed by one Neo Guat Choo and one Wee Hock Kee respectively pursuant to s 257(1) of the CPC. The appellant sought to introduce this evidence for the purpose of asking this court to exercise its revisionary powers to quash her convictions on five charges (DAC 894/99, DAC 1031/99, DAC 1086/99, DAC 1154/99 and DAC 1155/99) despite her having pleaded guilty to these charges in the court below. In the alternative, the appellant also asserted that this evidence should be taken up in the appeal as mitigation.

The principles relating to s 257(1) of the CPC

The power of the High Court in its revisionary capacity to take additional evidence is governed by ss 257(1) and 268(1) of the CPC which read:

257(1) In dealing with any appeal under this Chapter the High Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a District Court or Magistrate`s Court.

268(1) The High Court may in any case, the record of the proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257.

In Juma`at bin Samad v PP [1993] 3 SLR 338 , I considered in great detail how this power was to be exercised. This case is particularly relevant to the present circumstances as the appellant in that case had also pleaded guilty in the court below and was seeking to adduce additional evidence in his criminal motion asking the High Court to exercise its revisionary powers to inquire into his conviction.

In Juma`at bin Samad v PP , the appellant sought to adduce additional evidence to show that he was in fact entitled to the defence of intoxication and was therefore not guilty of the charge of housebreaking in order to commit theft. I followed the authority of Rajendra Prasad v PP [1991] 2 MLJ 1 and held that the principles relating to the application of s 257(1) of the CPC were to be found in Denning LJ`s judgment in Ladd v Marshall [1954] 3 All ER 745. This reads:

In order to justify the reception of

...