Thong Ah Fat v PP

• Jurisdiction: Singapore
• Judgment Date: 30 November 2011
• Date: 30 November 2011
• Docket Number: Criminal Appeal No 13 of 2010 (Criminal Case No 17 of 2010)
• Court: Court of Appeal (Singapore)

Thong Ah Fat

Plaintiff

and

Public Prosecutor

Defendant

[2011] SGCA 65

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

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

Court of Appeal

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 thin’. Third, there were two ambiguities with respect to the Judge's treatment of the cautioned statement, viz, whether an adverse inference was drawn against the Appellant, and if so, why such an inference was drawn. Fourth, the appellate court neither knew what the Judge assessed the contemporaneous statement's nature to be nor the weight it was given. Fifth, there was no reference at all to the alleged First Trafficking Incident which was highly relevant evidence with respect to the Appellant's mens rea. Finally, there were other anomalies in the Judgement which could not be reflexively ignored by the appellate court: at [47] to [51], [55] and [56].

(8) A brief judgment was not necessarily an inadequate one. There was always merit in conciseness and no virtue in prolixity. However, a judgment that did not explain the foundations for findings of facts and/or the basis for the determination of the witness's credibility on pivotal issues was prima facieinadequate to justify a judicial outcome and could be seen as flawed. Given the lack of clarity in the Judgment and consequently the appellate court's inability to asses the credibility of the Appellant, there was no alternative but to direct that there would be a retrial before another High Court judge, who would have the opportunity to closely scrutinise afresh the Appellant's credibility in the context of all the relevant evidence: at [58] and [59].

[Observation:A legal decision might operate on several levels. It could declare the institutional fact of guilt/liability or non-guilt/non-liability, assert propositions of facts underlying or constitutive of the alleged guilt or liability and/or ascribe legal character to the facts as found. A legal decision would be deprived of many of its illocutionary forces if no sufficient reason was stated, simply because there could then be no ground for one to stand on to defend its correctness. A legal judgment today could not be justified solely by the judge's statement of belief that it was right, without providing any explanation as to why it was so: at [16] and [17].]

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)

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