Tey Tsun Hang v PP

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

[2014] SGHC 39

High Court

Woo Bih Li J

Magistrate's Appeal No 114 of 2013

Tey Tsun Hang

Plaintiff

and

Public Prosecutor

Defendant

Peter Cuthbert Low (Peter Low LLC) for the appellant

Andre Jumabhoy, Kok Shu En and Yau Pui Man (Attorney-General's Chambers) for the respondent.

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

DPP v Holly [1978] AC 43 (distd)

Garnam Singh v PP [1994] 1 SLR (R) 1044; [1994] 2 SLR 243 (refd)

Gulam bin Notan Mohd Shariff Jamalddin v PP [1999] 1 SLR (R) 498; [1999] 2 SLR 181 (folld)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (folld)

Leng Kah Poh v PP [2013] 4 SLR 878 (refd)

PP v Dahalan bin Ladaewa [1995] 2 SLR (R) 124; [1996] 1 SLR 783 (refd)

PP v Ng Boon Gay [2013] SGDC 132 (refd)

PP v Tan Sri Kasitah Gaddam [2009] 6 MLJ 494 (refd)

PP v Victorine Noella Wijeysingha [2013] 2 SLR 1001 (refd)

R v Braithwaite [1983] 1 WLR 385 (refd)

R v Mills (1978) 68 Cr App R 154 (refd)

R v Newbould [1962] 2 QB 102 (refd)

R v Prager [1972] 1 WLR 260 (refd)

R v Priestley (1966) 50 Cr App R 183 (refd)

Sakthivel Punithavathi v PP [2007] 2 SLR (R) 983; [2007] 2 SLR 983 (refd)

Seow Choon Meng v PP [1994] 2 SLR (R) 338; [1994] 2 SLR 853 (refd)

Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR (R) 1101; [2009] 4 SLR 1101 (refd)

Teo Chu Ha v PP [2013] 4 SLR 869 (refd)

Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 50 FLR 19 (distd)

United Malacca Rubber Estates Bhd v Pentadbir Tanah Daerah Johor Bahru [1997] 4 MLJ 1 (distd)

Yen May Woen v PP [2003] SGCA 29 (refd)

Yeo See How v PP [1996] 2 SLR (R) 277; [1997] 2 SLR 390 (refd)

Yuen Chun Yii v PP [1997] 2 SLR (R) 209; [1997] 3 SLR 57 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 105 (6)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 122 (5)

Criminal Procedure Code 2010 (Act 15 of 2010) s 258 (3) (consd)

Evidence Act (Cap 97, 1997 Rev Ed) s 24

Nanyang University Ordinance (No 27 of 1959)

National University of Singapore (Corporatisation) Act 2005 (Act 45 of 2005)

National University of Singapore Act 1980 (Act 21 of 1980)

National University of Singapore Act (Amendment of University Constitution) Order 2000 (S 356/2000)

National University of Singapore Act (Amendment of University Constitution) (No 2) Order 2004 (S 470/2000)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) ss 2, 6 (a) , 8 (consd) ;s 9 (1)

Prevention of Corruption Ordinance 1960 (No 39 of 1960)

Emergency (Essential Powers) Ordinance (No 22 of 1970) (M'sia) s 2 (1)

Income Tax Assessment Act 1936 (NSW) s 62 A

Land Acquisition Act 1960 (Act 486) (M'sia)

Penal Code (FMS Cap 45) (M'sia) s 417

Prevention of Corruption Act 1906 (c 34) (UK) ss 1, 2

Prevention of Corruption Act 1916 (c 64) (UK) ss 2, 4 (2)

Prevention of Corruption Act 1961 (Act 57) (M'sia) s 2

Prevention of Corruption Ordinance 1950 (No 5 of 1950) (Malaya)

Public Bodies Corrupt Practices Act 1889 (c 69) (UK) s 7

University of Malaya Ordinance 1949 (No 12 of 1949) (Malaya)

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...