Tey Tsun Hang v PP

• Judgment Date: 28 February 2014
• Date: 28 February 2014
• Docket Number: Magistrate's Appeal No 114 of 2013
• Court: High Court (Singapore)

Tey Tsun Hang

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 39

Woo Bih Li J

Magistrate's Appeal No 114 of 2013

High Court

Criminal Law—Statutory offences—Prevention of Corruption Act—Law professor accepting gifts and sex from student—Whether corruption was made out—Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Law—Statutory offences—Prevention of Corruption Act—National University of Singapore law professor charged with corruption—Whether National University of Singapore a ‘public body’ for purposes of Prevention of Corruption Act—Whether s 8 Prevention of Corruption Act applied—Section 8 Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing—Statements—Voluntariness—Appellant alleging threats and inducements—Appellant claiming that acute stress disorder and medication taken for his condition affected voluntariness—Whether statements admissible—What weight should be given to statements

This is an appeal against conviction and sentence. The appellant was convicted in the district court of six charges punishable under s 6 (a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘the Act’).

The appellant received a Mont Blanc pen, two tailor-made shirts, an iPod Touch, payment of a restaurant bill, and two acts of sexual intercourse from one of his students, Darinne Ko Wen Hui (‘Ms Ko’), from the period May 2010 to end July 2010. Thereafter, Ms Ko left for the United States on an exchange programme from August 2010 to December 2010. The appellant visited her once in the United States in September 2010. They decided to break off their relationship during this visit. In August 2011, Ms Ko took two modules under the appellant: a ‘Personal Property Law’ class and a directed research paper. Ms Ko earned a ‘B’ grade in the class on Personal Property Law, and an ‘A’ grade in her directed research paper.

The appellant was arrested on 2 April 2012 and questioned by a team of officers from the CPIB. Six statements were subsequently recorded from the appellant on 5 April, 10 April, 17 May, 18 May and 24 May 2012. The appellant challenged the admissibility of the statements on the grounds that they had been obtained under threat or inducement. The appellant also alleged that the statements had been recorded under oppressive circumstances and while he was suffering from acute stress disorder and taking medication for that condition. The trial judge (‘the TJ’) found that the statements had been voluntarily given.

The TJ found that National University of Singapore (‘NUS’) was a public body for the purposes of the Act and the presumption under s 8 of the Act applied. The burden of proof thus shifted to the appellant to rebut the presumption that he had received the six acts of gratification corruptly and in exchange for showing Ms Ko favour in his assessment of her academic performance. The TJ found that the appellant was unable to rebut that presumption. The TJ found that the appellant was not in a mutually loving relationship with Ms Ko and had exploited and manipulated Ms Ko.

The appellant appealed against his conviction on the following grounds: (a) that the TJ had erred in law and fact by finding that the six statements were voluntarily given and therefore admissible; (b) that the TJ had erred in finding that NUS was a public body and that the presumption of corruption applied; and (c) that the TJ had erred in finding that the appellant was not in a mutually loving relationship with Ms Ko. The Prosecution submitted that the TJ's findings were right in law and fact.

Held, allowing the appeal:

(1) Section 258 (3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) rationalised oppression within the framework of threat, inducement or promise. However, it did not change the substantive law on oppression. The test of voluntariness was whether the circumstance or act complained of tended to sap and did sap the free will of the appellant: at [88] and [89] .

(2) The TJ's findings on threat and inducement were not plainly wrong. The appellant adopted a machine gun approach and made whatever allegations he wished to make against the CPIB officers without caring about the truth of his allegations: at [103] , [106] , [108] and [111] .

(3) The test for oppression was whether the investigation was, by its nature, duration or other attendant circumstances, such as to affect the appellant's mind and will such that he spoke when he otherwise would have remained silent. There was no evidence that the conditions were so oppressive that they sapped the appellant's free will. ‘Pestering’ was not enough to constitute oppression which would affect admissibility. It was not surprising to find an element of pestering in the process of investigation as investigators tried to find answers especially if they suspected that a person was being evasive: at [113] , [115] and [119] .

(4) The threshold for impugning a statement on the ground of involuntariness due to a medical or psychological condition was high. There were two distinct stages of the voluntariness enquiry in which medical evidence was relevant. The first stage concerned the diagnosis of the medical condition of the appellant. The second stage concerned the effect of such a medical condition on the appellant's ability to make a voluntary statement: at [121] and [124] .

(5) At the first stage, the TJ was not obliged to accept either of the sets of medical evidence proffered by the defence without question. This was so even though the Prosecution did not produce expert evidence to the contrary. He was not plainly wrong to decline to accept the diagnoses of the defence's expert witnesses: at [136] .

(6) At the second stage, there was no medical evidence to support the appellant's contention that the medication he was on affected the voluntariness of his statements. The evidence also indicated that the appellant was capable of making, and did make, the decision to be interviewed by the CPIB notwithstanding his alleged medical condition. His medical condition did not affect his voluntariness: at [145] , [148] , [157] , [159] , [162] and [164] .

(7) NUS was a public body for the purposes of the Act. Although the intent behind the National University of Singapore (Corporatisation) Act (Act 45 of 2005) was to grant increased autonomy to NUS, it was clear that the autonomy was not intended to be complete. The accountability framework in the Corporatisation Act and the fact that NUS was open to the public for tertiary education qualified it as a ‘public body’ for the purposes of the Act in that it was an undertaking of public utility, viz,public tertiary education: at [200] and [208] .

(8) It was irrelevant that the appellant was not a public or civil servant. The only criterion, on a plain reading of s 8 of the Act, was that the recipient be in the employment of the public body in question: at [205] .

(9) The first element of corruption, the acceptance of an act of gratification, was complete even if the recipient had not yet had any opportunity to show favour to the giver in relation to the recipient's principal's affairs. The first element was made out as the appellant did receive the six acts of gratification from Ms Ko, whether as gifts or loans: at [13] , [216] , [225] and [226] .

(10) The second element, whether the gift was given as an inducement or reward, related to the causal link between the gratification and the act the gratification was intended to procure or reward. The third element, whether there was an objective corrupt intent, related to whether that act was objectively dishonest in the entire transaction. In practice, these elements were part of the same factual enquiry, viz,whether the recipient received the gratification believing that it was given to him as a quid pro quo for conferring a dishonest gain or advantage on the giver in relation to his principal's affairs: at [12] and [15] to [17] .

(11) There was ample evidence to support the TJ's conclusion that the relationship between the appellant and Ms Ko was one-sided and not mutually loving. However, this did not necessarily mean that the second and third elements of each offence were established: at [250] and [251] .

(12) The TJ had underestimated the importance of the new evidence, in particular, the three cards and a note which Ms Ko had given to the appellant from May to August 2010. These cards and the note were important as they constituted contemporaneous evidence of Ms Ko's feelings and her intention at the time of the acts of gratification. The TJ should have allowed Ms Ko to be recalled to the stand to be cross-examined on the three cards and the note: at [289] , [290] and [292] .

(13) Fortunately for the appellant, the cards and the note spoke for themselves. They showed that Ms Ko thought that her feelings for the appellant were reciprocated. She would not have thought that there was a need to be in his good books or that he might be unduly prejudiced against her. She thus did not have any intention to seek favour from the appellant in her academic pursuits. Correspondingly, the appellant had to have known from their relationship and the cards and the note that she was infatuated with him. There was no objective corrupt element: at [297] , [299] , [313] , [314] and [321] .

(14) The fact that the appellant had breached NUS's policies did not necessarily mean he had a corrupt intention. Exploitation of a student did not necessarily amount to corruption under the Act: at [320] .

[Observation: Doubt was cast on the fourth element, viz,whether guilty knowledge was a requirement of the offence. It was unclear why a recipient should be absolved of all liability simply because he thought that what he was doing was legitimate. The objective standards of corruption should apply equally to all: at [322] to [325] .]

Chan Wing Seng v PP [1997] 1 SLR (R) 721; [1997] 2 SLR 426 (refd)

DPP v Holly...