Han Yung Ting v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 30 October 2003
• Neutral Citation: [2003] SGHC 268
• Court: High Court (Singapore)
• Published date: 07 November 2003
• Year: 2003
• Plaintiff Counsel: Subhas Anandan and Anand Nalachandran (Harry Elias Partnership)
• Defendant Counsel: Eddy Tham (Deputy Public Prosecutor)
• Subject Matter: Criminal Law,Statutory offences,Appellant implicated by prosecution witness as drug supplier,Whether appellant guilty of trafficking,s 5(1)(a) Misuse of Drugs Act,Criminal Procedure and Sentencing,Appeal,Adducing fresh evidence,Conditions to be fulfilled to justify acceptance of additional evidence,Whether conditions satisfied,s 257(1) Criminal Procedure Code,Evidence,Weight of evidence,Whether trial judge erred in placing more weight on witness' prior statements to police than on his oral testimony in court,Whether trial judge gave undue weight to witness' retracted statements,s 147(6) Evidence Act (Cap 97)
• Citation: [2003] SGHC 268

1 This was an appeal against conviction. On 12 March 2003, the appellant claimed trial and was convicted on two charges of drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185). He was sentenced to a total of six years imprisonment and eight strokes of the cane. I dismissed his appeal and now give my reasons.

Agreed facts

2 At about 10.25pm on 16 October 2002, one Tan Kian Ming (“Tan”) was arrested by a party of Central Narcotics Bureau (“CNB”) officers along Bedok North Avenue 1. The CNB officers conducted a search on his person. 60 tablets and five packets of crystalline substances, suspected to be controlled drugs, were found and seized. Tan admitted that he had received the drugs from a male Chinese in a white car at the car park of Block 36 Chai Chee Avenue 1. He was to deliver the drugs on behalf of this male Chinese, and would collect $1,070 in payment. Upon analysis, the Health Sciences Authority confirmed that the said drugs contained 0.5 grams of Methamphetamine, a Class A controlled drug, and Ketamine, a Class B controlled drug.

Prosecution’s case

3 Tan was the prosecution’s main witness. Tan said that he first met the person who supplied the drugs to him about a month before his arrest. This person asked Tan to deliver ecstasy and ketamine for him. Prior to 16 October 2002, Tan met him on four occasions to collect and deliver drugs for him. On 16 October 2002, as prearranged, he picked Tan up at the Bedok Interchange in a white car, and drove Tan to Block 40 Chai Chee Avenue 1. He instructed Tan to alight and deliver the drugs to a contact at the playground of Block 40, and to collect $1,070 in payment.

4 Whilst waiting for his contact to arrive, Tan was arrested at about 10.30pm, and the drugs were found on him. He was questioned by a CNB officer, one ASP Mathew Lim (“ASP Lim”), in the presence of another CNB officer, at 11.00pm. Tan told the CNB officers that the white car was waiting for him behind Block 36 Chai Chee Avenue 1.

5 After recording the statement, ASP Lim received a call from one of his officers, Inspector Richard Soh (“Insp Soh”), who reported that he had seen Tan alight from a white sports car prior to his arrest. In court, Insp Soh also testified that the car had a blue light when the door was opened. He was not able to see the driver of the white car clearly. After Tan’s arrest, Insp Soh instructed the other CNB officers to look out for a white sports car.

6 The white sports car was later spotted by another officer, one Staff Sergeant Justin Fong (“SSgt Fong”), at Block 36. Upon notification of this, Insp Soh proceeded to the carpark of Block 36 with a few other officers. There were three white cars in the carpark, but the engines of the other two cars were cool. The appellant was subsequently seen walking towards the white car. When he opened the door, the light was blue. The appellant was then arrested. Upon arrest, he claimed that he had been visiting a friend on the 11^th floor of Block 36. When the officers visited the unit on the 11^th floor, they found a transvestite, Chia Hock Leong Michelle (“Michelle”), who said that she had just performed oral sex on the appellant.

7 Tan was brought in a van to Block 36, where he identified the white car as being the white car that he had alighted from after collecting the drugs. He was then escorted to the 11^th floor of Block 36. Insp Soh also gave instructions for the appellant to be brought to the 11^th floor for identification by Tan. On the 11^th floor, with the appellant standing about two to five metres away, Tan identified him as the person who had earlier handed the drugs to him in the white car. He then made a further statement at 11.50pm to ASP Lim. In this statement, Tan identified the appellant as the person who had handed the drugs to him in a car, referring to him as “Ah Goh”. He also identified a white Subaru Impreza bearing registration number SCN 3128L as the car. Another officer, one Sergeant Cherynn Lim (“Sgt Lim”), was present, and signed the statement as a witness.

8 In a second statement given on the following day to the investigating officer of the case, Staff Sergeant Mohd Ferdhouse (“SSgt Ferdhouse”), Tan again admitted that the appellant was the person who had handed him the drugs. Referring to the appellant as “Ah Goh”, Tan agreed to testify against him, saying he was positive that it was the appellant who had given him the drugs.

The defence

9 The appellant denied both charges against him. He claimed that he had become acquainted with a person by the name of Michelle through a chatline prior to 16 October 2002. On 16 October 2002, he spoke to Michelle on the phone and agreed to go to her place after 10.00pm. At about 10.00pm, he left his home to meet Michelle, telling his mother that he was going to meet a friend. He drove his car, a white Subaru Impreza, arriving at Block 36 Chai Chee Avenue 1 at about 10.25 to 10.30pm. Since this was his first visit to the area, he decided to drive around in order to determine whether there was a carpark nearer to Block 36. After driving to Block 40, he realised that the other carpark at Block 36 was nearer, and so drove back to Block 36.

10 After making a phone call to Michelle to ascertain her actual address, he went to her flat, staying there for about 30 to 45 minutes. When he returned to his car, he was arrested by the CNB officers, and brought to the 11^th floor of Block 36 where he saw Tan for the first time in his life. He saw a few officers questioning Tan aggressively, and also heard hitting sounds as he was standing besides the lift.

11 The appellant was placed under arrest and brought to Clementi Police Station, where he met Tan in the lock-up. He demanded to know why Tan had implicated him, but Tan remained silent. He met Tan at the Cantonment Police Station the next day, where he spoke to him on two occasions, telling Tan not to accuse him falsely. Tan again remained silent. The following day, he again met Tan and questioned him. This time, Tan apologised, saying that he was shocked and frightened on the day of his arrest because the officers had assaulted him. Tan assured the appellant that he would tell the truth in court.

The trial below

12 Once he was on the stand, Tan asserted that the appellant was not “Ah Seng”, the person who had supplied him with the drugs. He claimed that he had only identified the appellant as Ah Seng because he had been assaulted by about ten police officers and was high on drugs at the time. He explained that he had concocted the person of “Ah Goh” when giving his statements to SSgt Ferdhouse, because he had been assaulted and was afraid of further assault by other police officers if he said that his statements to ASP Lim were untrue.

13 Upon cross-examination, Tan denied that he had been offered money to testify for the appellant, or that he had changed his evidence in order to save the appellant from prosecution. He had not met the appellant before 16 October and had not spoken to the appellant when he was at the Clementi Police Station. However, he had met the appellant in the lock up of the Subordinate Courts, whereupon the appellant had asked him why he had identified the wrong person. Tan then told the appellant that he had done so because he was high on drugs when he gave his statement.

14 In light of the inconsistencies between Tan’s evidence in court and his statements to the CNB officers, the trial judge granted the prosecution’s application to impeach Tan’s credit. Consequently, Tan’s two statements to the CNB officers were admitted as substantive evidence under s 147(3) of the Evidence Act (Cap 97).

Criminal motion to adduce fresh evidence

15 At the initial hearing before me, counsel for the appellant requested an adjournment of the hearing so as to file a criminal motion seeking to adduce fresh alibi evidence from the appellant’s parents. I allowed the adjournment, but subsequently dismissed the motion.

16 In dismissing the motion, I was mindful of the principles governing the power of the High Court to take fresh evidence on appeal. This power is conferred by s 257(1) of the Criminal Procedure Code (Cap 68)(the “CPC”), which reads:

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.

17 Section 257 of the CPC provides that additional evidence should only be accepted if necessary. In exercising this power, our courts have applied the three principles of non-availability, relevance and reliability, as encapsulated in Denning LJ’s statement in Ladd v Marshall [1954] 3 All ER 745:

In order to justify the reception of fresh evidence for a new trial, three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

I found that the motion to adduce fresh evidence failed to satisfy the third condition, and as such should be dismissed.

18 There is nothing in law preventing family members and relatives from being competent witnesses for the accused. Their credibility depends on whether or not the court finds them to be entirely disinterested witnesses, or otherwise reliable: Liow Siow Long v PP [1970] 1 MLJ 40. In Thirumalai Kumar v PP [1997] 3 SLR 434, the appellant before me sought to rely on alibis provided by his wife and mother to prove that he was at home at the time the offences were committed. However, I found his defence, which appeared to be mounted on his own instructions, absolutely unworthy of credit. Once his testimony was...