Thong Ah Fat v PP

CourtCourt of Three Judges (Singapore)
Judgment Date30 November 2011
Docket NumberCriminal Appeal No 13 of 2010 (Criminal Case No 17 of 2010)
Date30 November 2011

Court of Appeal

Chao Hick Tin JA


Andrew Phang Boon Leong JA


V K Rajah JA

Criminal Appeal No 13 of 2010 (Criminal Case No 17 of 2010)

Thong Ah Fat
Public Prosecutor

Boon Khoon Lim and Chua Siow Lee Dora (Dora Boon & Company) for the appellant

Siva Shanmugam and Samuel Chua (Attorney-General's Chambers) for the respondent.

ADF v PP [2010] 1 SLR 874 (refd)

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (folld)

Brittingham v Williams [1932] VLR 237 (refd)

Capital and Suburban Properties Ltd v Swycher [1976] Ch 319 (refd)

Chai Chien Wei Kelvin v PP [1998] 3 SLR (R) 619; [1999] 1 SLR 25 (refd)

Choo Kok Beng v Choo Kok Hoe [1983-1984] SLR (R) 578; [1984-1985] SLR 21 (refd)

Coleman v Dunlop Ltd [1998] PIQR 398 (folld)

Craven v Craven 1957) 107 LJ 505 (refd)

Crowley v Willis (1992) 110 FLR 194 (refd)

Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 (refd)

Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377 (folld)

Glen Rees T/as Glynmar Pastoral Co v Walker (13 December 1988) (CA, NSW) (refd)

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (refd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR (R) 45; [2006] 4 SLR 45 (refd)

John Christopher Towns Appellant/Husband and Deborah Jane Towns Respondent/Wife, In the Marriage Of [1990] Fam CA 129 (refd)

John Strbak v Narelle Newton [1989] NSWCA 202 (refd)

Knight v Clifton [1971] Ch 700 (refd)

Lai Wee Lian v Singapore Bus Service (1978) Ltd [1983-1984] SLR (R) 388; [1984-1985] SLR 10 (folld)

Lloyd Junior Beckford (An Infant by his Mother and Next Friend Tracy Alleyne) v Dr Trevor ET Weston (22 June 1998) (CA, Eng) (refd)

Mac Donald v The Queen (1976) 29 CCC (2 d) 257 (refd)

Nagaenthran a/l K Dharmalingam v PP [2011] 4 SLR 1156 (folld)

NRMA Insurance Ltd v Tatt (1988) 94 FLR 339 (refd)

Pettitt v Dunkley [1971] 1 NSWLR 376 (refd)

Public Service Board of New South Wales v Osmond (1986) 63 ALR 559 (refd)

R v Mac Pherson [1982] 1 NZLR 650 (refd)

R v Harrow Crown Court, Ex parte Dave [1994] 1 WLR 98 (refd)

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (folld)

Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (refd)

Tan Kiam Peng v PP [2008] 1 SLR (R) 1; [2008] 1 SLR 1 (refd)

Tramountana Armadora SA v Atlantic Shipping Co SA [1978] 2 All ER 870 (refd)

Waterson v Batten (13 May 1988) (CA, NSW) (refd)

Watt or Thomas v Thomas [1947] AC 484 (refd)

Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed) ss 121, 122 (5) ,122 (6)

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

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

Misuse of Drugs Act (Cap 185,2008 Rev Ed) ss 7, 18 (2) ,33

Courts and Jurisdiction—Court judgments—Trial judge failing to state sufficient reasons in written judgment—Scope of judicial duty to give reasons—Whether judicial duty to give reasons had been satisfied—Whether retrial would be ordered—Criminal Procedure and Sentencing—Appeal—Trial judge failing to state sufficient reasons in written judgment—Scope of judicial duty to give reasons—Whether judicial duty to give reasons had been satisfied—Whether retrial would be ordered

The Appellant was charged with importing into Singapore 142.41 g of diamorphine pursuant to s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’), an offence punishable by death under s 33 of the MDA. The trial judge (‘the Judge’), in a brief judgment of five paragraphs (‘the Judgment’), explained why he found the Appellant guilty of the charge and upon convicting him, sentenced him to suffer the mandatory death penalty.

What was disputed at trial and on appeal was the Appellant's knowledge pertaining to the nature of the drugs found in his possession. The crux of the Appellant's defence was that while he knew he was importing controlled drugs into Singapore, he thought that he was transporting methamphetamine and not diamorphine. The Appellant relied on certain events and circumstances to substantiate this, viz(a) only methamphetamine was involved in the occasions where the Appellant consumed drugs at his drug supplier's place in Malaysia; (b)he had allegedly learnt, from a prior trafficking incident carried out for his drug supplier (‘the First Trafficking Incident’), that the trafficked drugs would be methamphetamine; (c) he did not check the contents of the packets on the occasion which resulted in his arrest; and (d) his own gullibility.

The Judge made several findings of fact. He disbelieved the Appellant's account of the recording of a cautioned statement pursuant to s 122 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) and found that the statement was voluntarily given. The Judge also found that the Appellant ‘did not ... seem’ to be a gullible person, although the implication of this finding was unclear from the context of the Judgment. The Judge made no finding on or mention of the First Trafficking Incident in the Judgment. The Judge did, however, observe that the Appellant's evidence was ‘very thin’ and he had no doubt that the Appellant knew that he was carrying diamorphine.

Held, ordering a retrial:

(1) It was now settled law that a judge had to ordinarily give adequate reasons for any decision made, subject to any peculiar circumstances that might prevail. This was not only the case where the decision was on a matter involving questions of law; the trial judge who sat as a fact-finder also had a duty to give reasons for decisions on matters of fact: at [15].

(2) There were several reasons for recognising a duty to give reasons. First, it was hoped that the duty would lead to increased care in the dealing with submissions and analysis of evidence, giving rise to sounder decisions. Second, the duty ensured that parties knew why they had won or lost, and from a broader perspective, the legal profession and the community might also had legitimate interests in knowing these reasons as it enabled them to ascertain the basis upon which like cases would probably be decided in the future. Third, the duty ensured that the appellate court had the proper material to understand, and do justice to, the decisions taken at first instance. Fourth, the duty was a means of curbing arbitrariness and was a facet of judicial accountability, beneficially increasing the transparency of the judicial system. Justice had to not only be done but had to also be seen to be done. The withholding of reasons might affect the legitimacy of the decision: at [20] to [25].

(3) An appellate court's treatment of a case where the issue related to an inadequacy of reasons was different from the approach the appellate court would apply when asked to assess findings of fact made by the trial court. There was a difference between the failure to make the correct findings and the failure to state reasons for the findings: at [26] and [27].

(4) The duty to give reasons had to not be overstated, for it did not refer to the burden of reasoning per se but the burden of setting out the reasons. The duty might increase costs and result in delays. Accordingly, the standard of explanation corresponds to the requirements of the case. The duty should not be equated with a duty to issue a written judgment or provide oral grounds of decision in every case. There were also exceptions to the duty - in very clear cases and in relation to specific and straightforward factual or legal issues, the mere statement of the judge's conclusion might sufficiently indicate the basis of a decision. The duty had also been held not to apply to certain matters of lesser significance, although it should be cautioned that non-substantive cases were not necessarily insignificant. As a rule of thumb, the more profound the consequences of a decision were, the greater the necessity for detailed reasoning: at [28] to [33].

(5) While each case should be explained on its own facts, as a useful and general guide, the statement of reasons should ideally adopt the following structure. First, the statement ought to set out in summary form all the key relevant evidence. Second, the statement should briefly set out the parties' opposing stances and set out the facts found by the judge, both primary and inferential. Third, the statement should examine the relevant evidence and the facts found with a view to explaining the final outcome on each material issue. Finally, the judge had to explicate how he had arrived at a particular conclusion - impressionistic statements were not helpful. These constituents of judicial reasoning were likely to overlap: at [34] to [40].

(6) It was impossible and unprofitable to attempt to formulate a fixed rule of universal application with regard to the standard and scope of explanation. The particularity with which the judge was required to set out the reasons had to depend on the circumstances of the case before him and the nature of the decision he was giving. The extent to which reasons had to be given: (a)was constrained by the legal system's ability to bear the burden which the duty imposes; (b)should be sufficient to serve the purposes for which the duty was created; and (c)was dependent on the nature of the decision and the decision-making process: at [41] to [46].

(7) The nature of the case here, which involved a capital charge, necessitated detailed reasons, especially in relation to the findings of fact made and application of the law to such findings of fact. The judicial duty to state reasons had not been satisfied in the present case. First, the appellate court was unable to ascertain what the Judge held was the precise mens rea of the Appellant. Second, the appellate court was unable to understand how the Judge arrived at the conclusion that the evidence given by the Appellant was ‘very...

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