14 Defence Case

INSTRUCTIONS- When a client instructs you, determine whether he is to plead guilty or claim trial to the allegation (charge)

against him.- Client to be advised that he has a choice to plead guilty or claim trial to charge. - If client chooses to plead guilty he should be advised of the punishment sentence. While court is not

possible to inform precisely what sentence he would receive, reference should be made to past precedents and sentencing trends of the Courts so that client can have an idea of what kind of punishment he can expect.

- NEVER promise client what punishment he will receive.

Admission of queen’s counsel- If accused wants QC admite to bar to defend him, to make application under section 21.1 LPA- 3 stage test to satisfy

case contains issues of law and or fact of sufficient diff and complexity to req elucidation and/or arg by QC – this does not in itself guarantee admission

persuad court tt circusmtnaces of case warrant court exg discretion in favour of admission crim cases – section 21(1A) LPA – additional reqt – special reasons for admission eg isues of

constit significance

Re Caplan Jonathan Michael [1998] 1 SLR 432o Factso The applicant, QC, applied under s 21(1) of the Legal Profession Act (Cap 161, 1994 Ed)(the Act) to appear

for the appellant Nomura, a Japanese national, convicted under s 467 read with s 471 and s109 of the Penal Code (Cap 224) for abetting one Okada, in fraudulently using as genuine a forged document purporting to be a Dai-Ichi Kangyo Bank (DKB) bank draft for the sum of ¥1.27trillion (S$16 million). Nomura was sentenced to four years’ imprisonment on each of two charges and sentences to run concurrently.

o Held, dismissing the application: (1)    Under s 21 of the Act, the applicant must: (a) demonstrate that the case in which he sought to

appear contained issues of law and/or fact of sufficient difficulty and complexity to require a QC’s elucidation; (b) persuade the court that the circumstances of the case warranted the court to exercise its discretion in favour of his admission; and (c) to satisfy the court of his suitability for admission.

(2)    The criteria for admitting a QC in criminal cases was stricter, with the insertion of a new s 21(1A) in 1 January 1997. The court must be satisfied that there was a special reason to admit a QC.

(3)    Based on the affidavit filed by Nomura’s counsel, the facts of this case were no more complex than many of the cheating cases heard regularly in the district courts. The affidavit also did not specify what factors there were to constitute “special reasons” for allowing the application. The fact that Nomura was a wealthy and respectable Japanese national could not be regarded as a special reason under s 21(1A) of the Act. The fact that the trial lasted 54 days in itself did not suffice as an indication of factual complexity. The trial was prolonged because four out of the five accused acted in person and all testified with the aid of a Japanese interpreter.

(4)    The task of sifting through the evidence adduced in the trial and persuading the High Court that sufficient evidence existed in support of Nomura’s defene was not a task of such magnitude to require a QC. Without doubting the applicant’s experience and qualifications, there must be numerous local criminal lawyers who were more than equal to the challenge of such a task.

PREPARATION1) Pleading Guiltya. Make representations prior to plea, asking for either withdrawal, reduction of charges or asking for less charge to be proceeded with.b. Representations based on client’s instructions and personal circumstances, including offering an explanation for why client did as alleged.

2) Pleading not guilty

a)Prepare the case for trial- In the event client’s instruction is to claim trial to charge(s), take detailed instructions from client,

including statement(s) from witnesses. - Even though client may wish to claim trial, he should be advised of the evidence available, both

favourable and unfavourable. Also whether the client has a Defence recognized in law.- Take detailed instructions fr client, interview witnesses, determine sequence, when interviwing client,

prepare him for eic and likely qn tt pros may ask of him during cross exam – but don’t tell him what to say

b) Interview client at length and obtain detailed instructions. • Arrange sequence of witness. • Prepare client and witnesses for Examination in Chief and Cross-Examination.

o Ask him qn u wld ask at trial so tt u know what to expect • To consider whether to call for Expert witness and expert report if any. – whether of benefit to ur case • Exhibits, documents eg. Photographs (of scene), plans and model. If documents, to consider need for

translation, if necessary.o Cannot do the day before trial – prepare early!o Under s369 CPC - to forward to pros not less than 10 days before trial if reqg on report or doc

eg examiner’s reporto Pros also to furnish to defence such reports if intend to use it not less than 10 clear dayso As matter of practice – may not happen because reports surface late. But be mindfulo Can object – justice of case may req tt evid be admitted, then court will allow – then chided by

bench for late submission

c) Counsel engaged on behalf of more than one Defendant in a criminal case, must consider whether there is a conflict of interest between them which

might inhibit his proper and effective defence of one of them. Any doubt must be resolved in favour of separate representation.

No 2 persons can say same thing in ans to same allegation – so unless witnesses clear as ot what to say – always lurking danger of conflicting evid

If acting for both accused persons – there is pot confict of interest in respect of respective testaments So before accepting brief must be clear tt both not blaming ewach other As long as so, and evid is complementary to each other, then can act for both

d) Accused has a right to have his defence properly and effectively placed before the Court. It is an integral part of the Accused’s right to a fair trial.

Advising client on legal position, i.e., whether defence recognized in law Ethics in Litigation: Issues raised by the Legal Profesion (Professional Conduct) Rules, 1998

o overriding principle to be applied to all circumstances of legal practice. This principle now finds itself expressed in the LP (PC) Rules as the obligation ‘to maintain the rule of law and assist in the administration of justice

o fundamental principle that an advocate and solicitor must represent his client to the best of his ability12 and to endeavour to do his utmost in this respect13 subject to the obligations arising from his role as an officer of the court14 is formulated by Rule 54 of the LP (PC) Rules necessarily limited by his position as an officer of the court, which raises a separate set of obligations relating to the system of justice as a whole

- Duty not to deceive or misleado Confidentiality: advocate and solicitor is under no duty to disclose to the court any convictions

which are not on record before the court, or to point out any errors or omissions in the record, if such disclosure ‘would be to his client’s detriment’.

o See PR notes for ruless in general

e) If Counsel need to use information obtained from co-Accused which he acquired when dealing with the case, Counsel should apply to discharge himself from acting for both Defendants.

Seet Melvin v The Law Society of Singapore [1995] 2 SLR 323 –o charged with three others – prior to hearing other cld not speak eng, used seet as interpreter. Ie

counel receiving instructions fr both at same time. Prior to trial, allegations surfaced (after PI

– some coinfklicting evid). Counsel decided to discharge Melvin seet. All the accused persons convicted

o held:o (2)    The issue of conflict of duties required the court to examine whether, by acting for Tan

and making such submissions as he did against his former client Seet, real mischief and real prejudice resulted. Since T was not privy to any confidential information in relation to Seet’s proposed line of defence, no real mischief or prejudice was occasioned.

o (3)    Thangaveloo’s duty was to act in Tan’s best interests. He only owed a residual duty to Seet, and this was the duty to respect the confidence reposed in him in relation to whatever information had been gleaned from Seet during his period of retainer. There was nothing in Thangaveloo’s submissions to indicate a breach of the duty of confidentiality or a contravention of the rules of professional privilege.

o (5)    Counsel had absolute control over the conduct of the case on his client’s behalf, and unless it could be shown that he had acted contrary to his client’s interests, an allegation of misconduct would be difficult to sustain. On the facts, there was no indication that T acted contrary to Tan’s instructions, or made the submissions with the intent to mislead the court.

o “Protection of Confidential Information Acquired from a Former Client: Are Chinese Walls

Adequate? [1999] 11 SACLJ 444 – see PR notes

TRIAL

a) Prosecution’s opening speech – not all cases. In HC, may be.b) Examination-in-chief of Prosecution witnessc) Cross-Examination of Prosecution witness –

PUTTING YOUR CLIENT’S CASE- cross-examination

- can ask leading questions: s. 143 to 145 EALeading questions143. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question. When they must not be asked144. —(1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court. (2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved. When they may be asked145. —(1) Leading questions may be asked in cross-examination, subject to the following qualifications: (a) the question must not put into the mouth of the witness the very words which he is to echo back again; and (b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact. (2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.

- entitled to ask questions which are asked with a view to testing accuracy, credibility or veracity of the witness: s. 148 EA

Bonds of witnesses.148. —(1) Witnesses for the prosecution and the defence whose attendance before the High Court is necessary and who have appeared before the Magistrate’s Court pursuant to section 141 (4) or whose written statements have been admitted by the Court under that section shall execute before it bonds binding themselves to be in attendance when called upon at the High Court to give evidence. (2) If any witness refuses to execute such bond, the Magistrate’s Court may commit him to prison until the trial or until he gives satisfactory security that he will give evidence at the trial.

- can ask questions designed to injure the character of the witness, but there is an important qualification: s. 150 EA

Court to decide when question shall be asked and when witness compelled to answer

150. —(1) If any question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it. (2) In exercising its discretion, the court shall have regard to the following considerations: (a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies; (b) such questions are improper if the imputation which they convey relates to matters so remote in time or of such character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he testifies; (c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence; (d) the court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable.

- these ‘character’ questions unless you have some basis for doing so (which would usually be that you have had firm instructions from your client or other reasonable grounds to justify the attack): s. 151 EA

Question not to be asked without reasonable grounds151. No such question as is referred to in section 150 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

Illustrations(a) An advocate is instructed by a solicitor that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he is a professional gambler. (b) An advocate is informed by a person in court that an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a professional gambler. (c) A witness of whom nothing whatever is known, is asked at random whether he is a professional gambler. There are here no reasonable grounds for the question. (d) A witness of whom nothing whatever is known being questioned as to his mode of life and means of living gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a professional gambler.

- if in breach, the matter can be reported for disciplinary action to be taken against you: s. 152 EA- indecent and scandalous questions are forbidden, unless they have bearing on the case: s. 153 EA

- response would not be proper if he had merely asked you to repeat the question: s.154 EA

Procedure of court in case of question being asked without reasonable grounds152. If the court is of the opinion that any such question was asked without reasonable grounds, the court may, if it was asked by any advocate or solicitor, report the circumstances of the case to the Supreme Court in order that the Judges may, if they think fit, exercise the power to suspend or strike off the roll of advocates and solicitors given to them under the Legal Profession Act (Cap. 161). Indecent and scandalous questions153. The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. Questions intended to insult or annoy154. The court shall forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form.

- witness when giving evidence, (whether it be evidence-in-chief or in cross-examination) is entitled to refresh his memory from written statements in certain circumstances: s. 161 EA

Sense of words used in charge to describe offence.161. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which that offence is punishable.

- however, in these cases the adverse party has the right to inspect such statements: s. 163 EA, or the relevant portions of such documents: proviso to s. 127 CPC

Right of adverse party as to writing used to refresh memory

163. Any writing referred to under section 161 or 162 must be produced and shown to the adverse party if he requires it; such party may cross-examine the witness thereupon. Diary of proceedings in investigation.127. —(1) Every police officer making a police investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forth — (a) the time at which the order, if any, for investigation reached him; (b) the times at which he began and closed his investigation; (c) the place or places visited by him; and (d) a statement of the circumstances ascertained through his investigation. (2) Notwithstanding anything in the Evidence Act, an accused person shall not be entitled, either before or in the course of any inquiry or trial, to call for or to inspect any such diary: Provided that if the police officer who made the investigation refers to the diary for the purposes of section 161 or 162 of that Act, such entries only as the officer has referred to shall be shown to the accused, and the court shall at the request of the officer cause any other entries to be concealed from view or obliterated.

- you can in such a situation, confront the witness and ask him why he has made the statement which differs substantially from the evidence he has given in court and proceed in some circumstances to impeach his credit on that basis: s. 147 & 157 EA

Cross-examination as to previous statements in writing147. —(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. (2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement. (3) Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. (4) Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those proceedings. (5) Where a document or any part of a document is received in evidence by virtue of subsection (4), any statement made in that document or part by the person using the document to refresh his memory shall by virtue of that subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. (6) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts. (7) Notwithstanding any other written law or rule of practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement which is admissible in evidence by virtue of this section shall not be capable of corroborating evidence given by the maker of the statement. Impeaching credit of witness157. The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him: (a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit; (b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; (d) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. Explanation.—A witness declaring another witness to be unworthy of credit may not, upon his examination-in-

chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that on a previous occasion he said that he had not delivered the goods to B. The evidence is admissible. (b) A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his presence. The evidence is admissible.

- you can request the court to call for and refer to the previous statements of a witness to determine whether the testimony in court of that person differs materially from the statement: s. 122(2) CPC

Admissibility of statements to police.122. —(2) When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to a police officer in the course of a police investigation under this Chapter and may then, if the court thinks it expedient in the interests of justice, direct the accused to be furnished with a copy of it; and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act.

- District Judge or Magistrate has to take down evidence himself in legible handwriting and usually in the form of questions and answers: s. 205 & 207 CPC

Manner of recording evidence.205. The evidence of each witness shall be taken down in legible handwriting in English by the Magistrate or District Judge.

[204Record to be in narrative form.207. —(1) Evidence taken under section 205 shall not ordinarily be taken down in the form of question and answer but in the form of a narrative. (2) The Magistrate or District Judge may, in his discretion, take down any particular question and answer.

[206

- Accused person will always be the first witness you have to cross-examine if you are prosecuting counsel: s. 180(k)(ii) & s. 190(3) CPC

Procedure in summary trials.180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials: (k) (ii) if any accused person elects to give evidence his evidence shall be taken before that of other witnesses for the defence; Defence.190. —(3) If any accused person elects to be called as a witness, his evidence shall be taken before that of other witnesses for the defence.

- In PP v. Teo Chor Hong: the learned Chief Justice held that if a lawyer conducted a cross-examination that humiliated and embarrassed a victim, he would assume that he was doing so on the advice of his client. That is why, in such a case, he would double the sentence of the accused person.

- as Defence Counsel, you must put to the Prosecution witnesses every aspect of the Accused’s case- a failure to do so will be treated as an acceptance of the Prosecution’s version, and you will not be allowed

in your closing submissions to attack the prosecution’s evidence or to put your client’s case. ‘Putting your case’ means putting your client’s version of the disputed facts to the witness.

- Browne v. Dunn [1893] 6 R 67, HL: if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; is essential to fair play and fair dealing with the witness Lord Halsbury: “My Lords, I have always understood that it you intend to impeach a witness you are

bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to

him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with the witness.”

Lord Hershell LC: … it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. … it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

- R v. Bircham [1972]: On appeal to Court of Appeal (Criminal Division), it was held that it was unfair to F to suggest at a late

stage in the trial that he had done the stabbing If it had been put to him when he gave evidence he could have dealt with the suggestion, and his

counsel could have cross-examined B as to his record The conduct of counsel for B was wrong and it was the duty of the judge to intervene

“Put” – positive evidence will be called to prove the matters put. “Suggest” – Assertions of witness inherently incredible, but no positive evidence will be called to contradict

the statement

- As noted in 10 Halsbury’s Laws of Singapore (2000) para 120.505: If the cross-examiner has adduced, or intends to adduce, evidence, which in any respect contradicts the evidence of the witness being cross-examined, he should put the contradictory facts to the witness so that the evidence of the witness is put in contention (officially challenged), and the latter is given the opportunity to respond. If the cross-examiner fails to put his case to the witness, the court is free to regard the witness’s evidence as undisputed regardless of the nature of the cross-examiner’s case.

- It may be further noted that r 60(g) of the Legal Profession (Professional Conduct) Rules states: An advocate and solicitor when conducting proceedings in Court — shall not by assertion in a speech make an allegation against a witness whom he had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation …

- The ‘rule’ in Browne v Dunn is well-established as a flexible rule of practice. The mere failure to cross-examine does not necessarily mean that adverse inferences will be drawn against the defaulting party: Liza bte Ismail v PP [1997] 2 SLR 454. See also Wong Swee Chin v PP [1981] 1 MLJ 212; O’Connell v Adams [1973] Crim LR 113, where it was held that there was no rule of evidence that a trier of fact must believe the evidence of a witness merely because it was unchallenged.

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 - Hunt J: … [The rule in Browne v Dunn] gives the witness the opportunity to deny the challenge on oath, to

show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

Notes- As for the extent to which a party should put it to a witness that his evidence is not accepted, Whitley J in

Velayuthan v R [1935] MLJ 277 held that it was not necessary to conduct the cross-examination in detail, and that a few questions would generally suffice. Cf PP v Abdul Naser bin Amer Hamsah [1997] 1 SLR 73, at p 383 below.

Liza binte Ismail v PP [1997] 2 SLR 454 - If a party fails to cross-examine a witness on the material aspects of his evidence and there is no other

reason to doubt the veracity of the witness’s testimony, the Court may very well conclude in the final analysis that such testimony is credible

- Yong Pung How CJ: …

- Para 67.The rule in Browne v Dunn is not inflexible. This was noted in that case itself by Lord Morris in particular (at p 79), who emphasised the need for caution against ‘laying down any hard-and-fast rule as regards cross- examining a witness as a necessary preliminary to impeaching his credit’. Similar sentiments were expressed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677, a decision of the New South Wales Court of Criminal Appeal. Having set out the observations of the House of Lords in Browne v Dunn, Gleeson CJ observed (at p 688): ‘It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non- observance, including the remedies that are available to deal with a problem so created.’

- Para 68.It is settled law then that the rule in Browne v Dunn is a flexible rule of practice, intended to ensure procedural fairness in litigation. The mere failure to cross-examine does not necessarily mean that adverse inferences must be drawn against the ‘defaulting’ party as there may be other explanations for this failure: R v Birks; R v Manunta (1989) 54 SASR 17.

- Para 69.… should the prosecution fail to cross-examine a defence witness on material exculpatory aspects of his evidence, it does so at some potential risk to the cogency of its own case: Bulstrode v Trimble [1970] VR 840. The court may infer that the prosecution does not challenge the witness’s testimony. As Samuels JA observed in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (at p 507), the absence of cross-examination enables the evidence in question to be regarded with a greater degree of assurance than might otherwise have been the case. Hence, if there are no other reasons to doubt the veracity of the witness’s testimony, the court may very well conclude in the final analysis that such testimony is credible. In some instances, this testimony may be sufficient to raise a reasonable doubt as to the prosecution’s case.

- Para 70.It seems to me, therefore, that if a defence witness’s testimony stands in material contradiction to the prosecution’s case, it would have been prudent for the prosecution to have embarked on cross-examination of that witness. More importantly, the rule in Browne v Dunn may be infringed if such a course is not adopted. As a matter of procedural fairness, the witness should have the opportunity to explain the material contradictions.…

- Para 72.Although the general proposition is that testimony not subjected to contradiction in cross-examination may be treated as unchallenged and thus accepted by the opposing party, the court is still entitled to reject such testimony: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, per Samuels JA at p 507; see also Hunt J’s observations at p 18 in Allied Pastoral Holdings. A careful evaluation of the totality of the evidence must still be undertaken to determine the cogency and weight of such testimony. In other words, it need not always follow that the whole of the appellant’s testimony would have to be accepted by the court …

Notes- A failure by the defence to put material aspects of its own case (as opposed to attacking the prosecution’s

case) to the prosecution witnesses during cross-examination may invite an inference of ‘recent fabrication’, thereby undermining the credibility of its case: Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209; Ng Chye Meng v PP [1994] 2 SLR 809; Gay Yun Lin v PP [1999] 1 SLR 547; Sim Yew Thong v Thomas Ng Loy Nam [2000] 4 SLR 193.

- It is relevant to note that in the above cases where the Court drew an adverse inference of ‘recent fabrication’ against the accused persons, they were all represented at the trial by counsel. Where an accused is unrepresented, the rule in Browne v Dunn will probably not be applied too strictly against him. Being unversed in the rules of criminal procedure, it would not be appropriate to expect a lay person to appreciate the significance of the rule.

- Nevertheless, a failure on the part of the defence to put its case can never, by itself, relieve the prosecution of its duty of establishing the charge against the accused beyond any reasonable doubt: Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209. In his article ‘Putting and Suggesting in Cross-examination’ [1984] MLJ xi (at pp xiii to xiv), Shankar J made the following observations in relation to a scenario where the defence had failed to put its own case to prosecution witnesses during cross-examination: … it is an inflexible rule that in the absence of any statutory provision to the contrary, the onus of proof is always upon the prosecution and never shifts. It must follow from this that failure to cross-examine cannot result in a reversal of the onus of proof. …… failure to cross-examine whilst the prosecution case is in progress will not help the prosecution if at the close of its case its version of the facts is inherently incredible or for some

other reason does not amount to proof beyond all reasonable doubt of all the ingredients necessary to sustain a conviction.

Arts Niche Cyber Distribution Pte Ltd v PP [1999] 4 SLR 111 - By failing to cross-examine a witness on a crucial part of his evidence, the defaulting party is deemed to

have accepted the truth of that testimony — He cannot attack the unchallenged evidence of the witness in submissions nor put forward any case or theory inconsistent with that testimony

- Yong Pung How CJ: …- Para 49.In the present case, much of the appellant’s defence was not put to the prosecution’s witnesses

during cross-examination. … In their closing submissions at the trial, the appellant’s lawyers contended that whilst some aspects of the appellant’s case had not been expressly put to the prosecution’s witnesses, the questions which the latter had been asked during cross- examination had already laid the foundations for the defence’s line of argument. In that sense, the rule in Browne v Dunn had been complied with …

- Para 50.I was not persuaded by the above submissions. Contrary to counsel’s contentions in the court below, the rule in Browne v Dunn was breached at the trial. It could not be said that the evidence of the prosecution’s witnesses was ‘so incredible and romancing’ (per Lord Morris) that cross-examination was unnecessary. It was also not the case that the prosecution’s witnesses already had prior notice of the defence’s intention to impeach their testimonies (per Lord Herschell). As Hunt J pointed out in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation 44 ALR 607 at 630, it must be made clear to the witness whose evidence is to be impugned not only that his evidence is to be challenged, but also how it is to be challenged. In the present case, [the prosecution witnesses] had no inkling of how their accounts of the material events were going to be disputed. … In these circumstances, cross- examination of the prosecution’s witnesses could not be dispensed with.

Notes- The High Court accepted that a failure to cross-examine a witness may be remedied by recalling that witness

for questioning, especially where such omission had been inadvertent, following Reid v Kerr [1974] 9 SASR 367 and R v Wilson [1977] Crim LR 553. Although the trial judge had the discretion to do so under s 399 of the Criminal Procedure Code (Cap 68, 1985 Ed), this discretion is to be exercised sparingly: see Mohammad Ali bin Mohd Noor v PP [1996] 3 SLR 276.

PP v Abdul Naser bin Amer Hamsah [1997] 1 SLR 73 - Where the evidence of the accused is unchallenged, the prosecution may not be permitted to attack his

evidence in submissions or put forward any case or theory inconsistent with that testimony- The respondent was charged with murder. The prosecution’s case was that the respondent had stamped on

Ms Isae’s (the deceased) face when he tried to rob her and that this had proved fatal. The forensic pathologist located 30 external injuries to the face of the deceased which were superficial to or related to the formation of the six fractures. The only issue at the trial was whether the respondent had the intention to inflict those bodily injuries. In his defence, the respondent denied that he had placed his hand on the wall to steady himself and intentionally stamped his right foot on the deceased’s face. He maintained that he had stepped on her face accidentally. The trial judge accepted the respondent’s evidence that he stepped on the deceased accidentally and acquitted him of the charge of murder. The Court of Appeal upheld the acquittal by a majority decision, LP Thean JA dissenting.

- Karthigesu JA (delivering the majority judgment): …- Para 33.What we find surprising is that the respondent was not cross-examined on what we think is a very

significant aspect of this case. Given that Ms Isae was lying prostrate on the floor after she was punched on the nose by the respondent with her head right up almost against the corner of the room near where she fell with her body extending outwards into the room as seen in the photographs exhibited, how was it that the respondent who says that he lost his balance and stumbled when trying to stand up after bending down to search her handbag came to step on her face accidentally. The question comes to mind that if the respondent did in fact lose his balance and stumbled and placed his hand on the wall on the right of him to break the fall or the stumble, as he says he did, the most natural and obvious movement of his body would have been away from the wall and the corner. We find it inconceivable, if he did what he says he did to break his fall or stumble that he would have been thrust forward into the corner. This is plain common sense and we do not need expert opinion to make this deduction. This then could lend to an inference that he more likely stamped on Ms Isae’s face deliberately. If it was an accidental stamping, as he says it was, then it was, in our view, a most unlikely accidental stamping. It would then have rested on the respondent to give a credible explanation.

- Para 34.But this was not put to the respondent. It was never suggested to him that if he did what he says he did the thrust of his body would have been away from the wall and the corner and not into the corner which it would have to be to cause an accidental stepping with the force that caused the fractures. Instead the case put to the respondent was that to avoid being identified by Ms Isae the respondent had deliberately stamped on her face. …

- Para 35.In the absence of what we have described as a very significant aspect of this case in ¶33 being put to the respondent and the respondent given an opportunity to give a credible explanation on whether what we have described in ¶33 is the more likely or the respondent’s explanation of an accidental stepping is the more likely, it would not be right for us to speculate which was the more likely.

- Para 36.In the circumstances the benefit of the doubt ought to be given to the respondent and accordingly the Public Prosecutor’s appeal is dismissed.

- Thean JA (dissenting): …- Para 103.Like Karthigesu JA and Goh J, I find it inconceivable that if the respondent did what he said he did

to break his fall he would have thrust forward into a corner. I also agree with the criticism of Karthigesu JA and Goh J that the prosecution had failed to cross-examine the respondent on this aspect of his evidence. Clearly the prosecution could, by adroitly questioning the respondent, have demonstrated to the trial judge how highly improbable, if not impossible, it was for the respondent to have thrust forward and stepped on the deceased’s face, thus showing that his evidence could not possibly be true. Nonetheless, notwithstanding the absence of the cross-examination, the respondent’s evidence of how he stepped on the deceased’s face was to my mind quite incredible.

- Para 104.Assuming that he did step on her face, as he said he did, he would have lessened the impact of his foot on her face by his two hands which were placed against the wall to break his fall. In this connection, the evidence of Dr Chui is again of some assistance. He said that if someone lost his balance and accidentally stepped on the deceased, he would not expect the amount of force delivered by such accidental step to result in the degree of severity of the fractures.

- Para 105.On the evidence adduced, it has been established beyond reasonable doubt, and the trial judge has so found, first, that the deceased sustained serious injuries and these injuries were sufficient in the ordinary course of nature to cause and did cause her death, and second, that it was the respondent who inflicted these injuries. The respondent admitted that he punched the deceased and following that she fell. The respondent also admitted that he stepped on the deceased but he said he stepped on her accidentally. On this point, there were clear admissions by him twice that he stepped on her intentionally. Further, the position of the deceased gave rise to a strong inference that the respondent did not fall and step on her in the manner as he alleged, and he could not have done so. Lastly, the forensic evidence showed that the fatal injuries could not have been caused by a single accidental step in the manner as alleged by the respondent. On the totality of the evidence, the finding of the trial judge that the respondent accidentally stepped on the deceased and caused some of the injuries was, with respect, against the weight of evidence. With great respect to the trial judge, this finding on the evidence was plainly wrong and unsupportable. In my judgment, the prosecution has proved the charge of murder of the deceased beyond reasonable doubt. I would allow the appeal and convict the respondent.

- Noteso The other member of the majority, Goh Joon Seng J, did not deliver any judgment. The decision to

apply the rule in Browne v Dunn [1894] 6 R 67 strictly can be rationalised as a means of ensuring procedural fairness to the accused facing a capital charge. By failing to cross-examine the accused on a material issue, the prosecution had failed to effectively challenge the claim that the injuries were caused accidentally. Accordingly, a doubt had arisen in the prosecution’s case.

o In his dissenting judgment, LP Thean JA noted that the respondent’s testimony was ‘quite incredible’ notwithstanding the absence of cross- examination. There is no obligation to challenge evidence which is inherently incredible. In Browne v Dunn, Lord Morris opined (at p 79) that ‘a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box’. This observation was cited with approval in Liza bte Ismail v PP [1997] 2 SLR 454 and Arts Niche Cyber Distribution Pte Ltd v PP [1999] 4 SLR 111.

Teoh Kah Lin v PP [1995] 1 SLR 213 - There is no obligation for an adverse party to challenge aspects of a witness’s evidence which are

immaterial to its case- The appellant was tried and convicted of trafficking in 34 packets of substance containing not less than

1496.41g of diamorphine, an offence under s 5(a) and punishable under s 33 of the Misuse of Drugs Act (Cap 185, 1985 Ed). The appellant’s defence was simply that he had thought that he was smuggling

medicine for one Ah Guan as this was what the latter had told him. The appellant claimed that he was a mere bailee who had no right or opportunity to inspect the items before he crossed the causeway into Singapore. On appeal, the appellant’s counsel argued that the prosecution had failed to challenge the appellant on his evidence and was therefore not entitled to invite the trial judge to disbelieve the appellant as to his evidence about Ah Guan.

- LP Thean JA: … it is true that, as a general rule, failure on the part of the cross-examining party to challenge a witness’s testimony is taken to be acceptance of it. However, in our judgment, it is idle to suggest that the prosecution is under an obligation to challenge every utterance of the appellant irrespective of whether it serves any purpose. Obviously, cross-examination on points arising from an accused’s evidence which are immaterial to the prosecution case serves no useful purpose. In the present case, it was not necessary for the prosecution to disprove the appellant’s story about his dealings with Ah Guan. Whether or not Ah Guan was a fictitious person, the appellant was guilty of the offence charged if he knew that the packets of substance hidden in his car were in fact drugs. In the premises, we saw no merit at all in counsel’s submission that there had been a miscarriage of justice because the prosecution had failed to challenge the appellant’s evidence.

d) Re-Examination of Prosecution witness

e) Before an Accused is asked to enter a defence, the Prosecution must establish a prima facie case against the Accused – S. 189(1) CPCi. The Defence is then entitled to make a submission that the Prosecution has not proved its case beyond

reasonable doubt. The landmark case with regards to his area of the law is Haw Tua Tau v PP [1981] 2 MLJ 49 Prosecution must first establish a prima facie case against the accused. Briefly, at the close of the

prosecution’s case, the trial judge will have to decide if there is some evidence (not inherently incredible), which, if accepted as accurate, would establish each essential element in the charge.

Haw Tua Tau v PP [1981] 2 MLJ 49.o Lord Diplock at p 52: At the conclusion of the prosecution`s case what has to be decided

remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding `that no case against the accused has been made out which if unrebutted would warrant his conviction`, within the meaning of s 188(1). Where he has not so found, he must call upon the accused to enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of any of the prosecution`s witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance.

o Under s 189(1) of the CPC, at the close of the case for the prosecution, the court has to decide whether the prosecution has made out a case, which, if unrebutted, would warrant a conviction of the accused. In deciding this question or issue, the court ought not to consider whether the possession has proved the guilt of the accused beyond a reasonable doubt.

o Lord Diplock said [in relation to s 189(1) CPC] at p 51: The crucial words in s [189(1)CPC] are the words `if unrebutted`, which make the question that the court has to ask itself a purely hypothetical one. The prosecution makes out a case against the accused by adducing evidence of primary facts. It is to such evidence that the words `if unrebutted` refer. What they mean is that for the purpose of reaching the decision called for by s [189(1) CPC] the court must act on the presumptions (a) that all such evidence of primary fact is true, unless it is inherently so incredible that no reasonable person would accept it as being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state of mind of the accused which would reasonably be drawn from the primary facts in the absence of any further explanation.

o evaluate whether shd make the submissiono court may inform u tt don’t want to hear submission or that it wants to hear ur submission – if the

latter – then to work on the inconsistencies etc and show tt chage nt proven

ii. The Prosecution can reply to this under Section 181 (c) CPC - person conducting Prosecution shall have the right of reply on the whole case if the Accused or his advocate has summed up his case.

– The Judge must assess the veracity and accuracy of the evidence and consider whether the Prosecution has proved the guilt of the Accused beyond reasonable doubt.

– Jagatheesan s/o Krishnasamy v PP [2006] SGHC 129 –o Prosecution’s Case against accused for drug trafficking based solely on accomplice’s

testimony implicating accused.– Sim Ah Cheoh v PP [1991] 2 MLJ 353

o At the close of the Prosecution’s case, the Trial Judge will have to decide whether there is some evidence (not inherently incredible) which, if accepted as accurate, would establish each essential element in the charge.

o Held - In a criminal trial there were two critical stages at which the court had to make a decision. At the close of the prosecution case the court had to decide whether the prosecution had made out a case, which if unrebutted, would warrant a conviction of the accused. In deciding this question or issue, the court ought not to consider whether the prosecution had proved the guilt of the accused beyond a reasonable doubt. At that stage, what the court had to decide was whether the evidence adduced, which was not inherently incredible and which, if accepted as accurate, would establish each essential element in the alleged offence. If the court so decided it must call for the defence. At that stage the court must keep an open mind about the veracity and accuracy of the evidence. After the defence had been called the court must proceed to examine the evidence adduced, assess the veracity and accuracy thereof and consider whether the prosecution had proved the guilt of the accused beyond a reasonable doubt.

iii. In determining whether a prima facie case has been made out, regard must be given to Section 189 (1) CPC –when case for the Prosecution is concluded, the Court, if it find that no case against the Accused has been made which if unrebutted would warrant his conviction, shall record an order of acquittal or, if it does not so find, shall call on the Accused to enter his defence.– • Ng Theng Shuang v PP [1995] 2 SLR 36 – minimum evaluation of the evidence– • PP v Sng Siew Ngoh [1996] 1 SLR 143

o The respondent Sng was charged voluntarily causing grievous hurt to the victim by poking her eyes with his fingers, resulting in the permanent privation of her sight in the right eye and for voluntarily causing hurt by biting and kicking the victim, as well as spraying insecticide into her eyes. The district judge acquitted and discharged Sng for want of a prima facie case. The prosecution appealed, arguing that the trial judge erred in: (a) not admitting the statement of the victim; (b) failing to consider the evidence of the eye specialist; and (c) failing to apply the proper test to determine whether there was a prima facie case.

o Held, allowing the appeal: (1)     Section 147 of the Evidence Act (Cap 97, 1990 Ed) (‘the Act’) provided a

general scheme governing cross-examination on previous statements. There was thus no conflict between s 147(3) and s 122 of the Act as the latter made reference to it. The victim’s statement could thus to relied on for the truth of the facts contained in it.

(2)     In determining whether a prima facie case was made out, regard must be had to s 189(1) of the Criminal Procedure Code (Cap 68) (CPC). It was necessary to consider whether the evidence adduced of the primary facts at the end of the prosecution’s case was so inherently incredible that no reasonable person could believe it. In this case, the trial judge failed to apply the test properly to the evidence of the eye specialist. That being the case, the elements of the offence had been made out, and the evidence of the prosecution was such that, if unrebutted, justified a conviction. Appeal allowed

– A failure to adduce evidence only affecting accuracy of evidence is not fatal to the Prosecution’s case

o Public Prosecutor v Manit Wangjaisuk [1995] 1 SLR 326 The respondent Manit and three others were jointly tried for murder committed

in the course of a gang robbery under s 396 of the Penal Code (Cap 224). The case against the four accused was based primarily on statements made to the police by Manit’s co-accused (the first, second and fourth accused). At the close of the prosecution’s case, the trial judge held that the prosecution failed to make

out a case against Manit because the statements did not positively identify Manit as one of the perpetrators of the offence. The judge held further that there was no other evidence which sufficiently incriminated Manit in respect of the charge against him. Accordingly, Manit was discharged and acquitted without calling on his defence. The prosecution appealed, arguing that the statements by Manit’s co-accused identified him as an accomplice, and that there existed other evidence showing Manit’s involvement in the offence.

Held allowing the appeal: (1)    On the facts, the cautioned statements of the second and fourth accused identified Manit as an accomplice in the offence. Furthermore, there existed other evidence which showed his involvement. Manit himself was identified by the fourth accused from photographs shown to the latter by the police. The investigating officer’s failure to describe or produce in court the photographs in question was a factor which affected only the accuracy of the identification evidence.

– Similarly, the mere presence of discrepancies in the Prosecution case cannot, per se render its case manifestly unreliable. What has to be considered is whether the inconsistencies are sufficiently fundamental to nullify that part of the evidence which supports the charge.

o PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165 The accused was charged with abetting one Janice Marissa Hogan (Janice) to

employ one Santhi who allegedly acted in contravention of s 6(1) of the Immigration Act (Cap 133). The district judge acquitted the accused at the close of the prosecution’s case as the prosecution failed to adduce any evidence of Santhi’s contravention of s 6(1) of the Immigration Act and that the evidence adduced of the accused’s aid to Janice to employ Santhi was manifestly unreliable, being full of contradictions and inconsistencies. On appeal, the prosecution conceded that there was no evidence that Santhi contravened s 6(1) of the Immigration Act but contended that the evidence of the accused’s abetment of Janice’s employment of Santhi was not manifestly unreliable and that the charge ought to have been amended to one of abetting by intentionally aiding Janice to employ Santhi without a valid work permit contrary to s 5(1) of the Employment of Foreign Workers Act (EFWA).

Held, allowing the appeal: (1)    The mere presence of several discrepancies in the prosecution’s case could not, per se, render its case manifestly unreliable. It was incumbent upon the trial judge to consider whether the inconsistencies were sufficiently fundamental to nullify that part of the evidence which supported the charge. (2)    There was nothing to suggest that the evidence which was directly relevant to whether the accused assisted Janice in her employment of Santhi had been totally discredited in cross-examination, nor that other evidence had rendered this part of the evidence completely unreliable. The discrepancies were not material to the core question of whether the accused assisted Janice in securing Santhi’s employment. They related only to the credibility of each witness’ evidence, which was relevant only at the end of the entire case, when all the evidence was to be assessed by the trier of fact.

– Read, “The Persistent Problem of the Prosecutor’s Prima Facie Burden”,[1997] 9 SACLJ 388, Michael Hor

o problem of the prosecutor’s prima facie burden is likely to persist at two levels. Although the minimum evaluation rule is the law in Singapore and Malaysia, the jurisprudential debate concerning the choice between it and proof beyond reasonable doubt is likely to continue, as the core of the difference of views is rooted in different conceptions of the value of innocence and of the relationship between the State and the Individual. More practically, we are slowly coming to the realisation that “minimum evaluation” is not a pre-ordained standard, but a fluid one which may possibly encompass many levels of scrutiny. There appears to be no reason to use different tests for direct and circumstantial evidence, but what exactly is the proper level of scrutiny is a question which bears no easy answer.

– The court has to consider the weight of the evidence. Discrepancies between Prosecution witnesses’ testimonies will be considered, whether such discrepancies are material. Sarjit Singh Rapati v PP [2005] 1 SLR 638

– Similarly, when at the close of the Prosecutor’s case, there are inconsistencies in witness’s evidence, trial judge will have to consider whether mere presence of inconsistencies render prosecution case manifestly unreliable. It will be incumbent upon Trial Judge to consider whether inconsistencies sufficiently fundamental to nullify part of the evidence supporting the charge. See PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165.

– The totality of the Prosecution evidence must be considered:

PP v IC Automation Pte Ltd [1996] 3 SLR 249 - This appeal arose out of a criminal prosecution brought by way of private summons under a fiat by the

Public Prosecutor (PP). The complainant Chuang was managing director of Rahmonic, a Singapore company specialising in writing computer software programs dealing with image processing. The respondent ICA was a company building mechanical handlers. ICA was Rahmonic’s former joint venture partner in a project of NSC Penang. A total of 12 charges were brought against ICA under ss 136(1), 136(2) and 136(3) of the Copyright Act (Cap 63) (‘the Act’). Chuang argued that the three software in question were created by Chuang and the proprietorship of their individual copyrights vested in him. The PP argued that ICA sold and distributed these programs without authority and was thus guilty of the offences charged. The trial judge found that there was prima facie evidence of the subsistence of copyright in the three programs and there was also prima facie evidence of ICA’s knowledge or constructive knowledge that copies of the software found in its permiese pursuant to the search warrants were infringing copies. However, the trial judge held that the PP failed to adduce evidence to support the elements of ‘sale’, ‘possession for the purposes of sale’, ‘distribution for the purpose of sale’ and ‘make for the purpose of sale’ in the corresponding 12 charges, and acquitted ICA of all charges. On appeal the only question before the court was whether in the light of the totality of the evidence presented, there was sufficient evidence for a prima facie case against ICA. Bearing in mind that the PP was unable to provide any direct evidence to prove that there was a sale or distribution of the software by ICA to a company Haltech, the questions before the court were: (a) whether it was reasonable to draw an inference of sale or distribution to satisfy the elements of the charges; (b) in the event that such an inference could not be drawn, whether the presumption of sale under s 136(7) of the Act could be invoked; and (c) whether the trial judge correctly refused the PP’s application for a summons to produce under s 58 of the Criminal Procedure Code (Cap 68) (‘CPC’) to compel one of ICA’s directors to produce incriminating evidence of any sale or distribution.

- Held, dismissing the appeal:o (1)    The case involved only circumstantial evidence. Based on the totality of the evidence, it was

pure conjecture that a sale or distribution to Haltech took place. In the absence of direct evidence, more circumstantial evidence was required. A reasonable inference had to point to a distinct and probably possibility and not just a mere suspicion. Mere possession of the infringing works per se did not prove that they were for the purposes of sale or distribution. On the totality of the evidence, there was clearly insufficient evidence to support each and every ingredient in the charges.

o (2)    The presumption of sale under s 136(7) of the Act applied but was rebutted by the evidence that the infringing copies in ICA’s possession could not have been for the purpose of sale.

o (3)    The trial court correctly refused the PP’s application to compel ICA’s director to produce incriminating evidence pursuant to s 58 of the CPC. There was no question that if such incriminating documents did in fact exist, they would be relevant, but an applicant had to be precise as to the documents which he wished the other party to produce. Similarly a general demand for unspecified documents was inadequate. To allow such an application would be unfair ICA since this would have practically permitted the PP to initiate criminal proceedings against them without having first amassed sufficient evidence to make a case. The appeal was dismissed.

Chai Chien Wei Kelvin v PP [1999] 1 SLR 25 (at page 61)

f) calling of defence- When Defence is called, Accused must be warned of Section 196 (2) CPC – “ … the Court, in determining

whether the Accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper.”

- 2 options: ->>

a. Accused can elect to remain silent An accused person may decide to remain silent when he is called upon to enter his defence: Section 122(3)

of the EA and Rule 79 Professional Conduct Rules.

Section 122(3) of the EAParties to civil suit and their wives or husbands, and husband or wife of person under criminal trial122. —(3) In any criminal proceedings, the accused shall be competent to give evidence on behalf of himself or any person jointly charged with him, but shall not be compellable to do so.

Rule 79 of the Professional Conduct RulesEvidence from accused79. An advocate and solicitor may advise a client about giving evidence in his own defence but the client must be allowed complete freedom of choice whether to give evidence or not.

– However before you advice your client, you must be satisfied that Prosecution has not proved their case and that you have advised client to bring the matter to appeal.

– 1. Must never advise client to remain silent unless you are completely satisfied that Prosecution has failed to prove the charge both in law and fact and you can support your argument(s) on Appeal, despite the court’s ruling on the evidence.

o U must be satisfied that pros case is impossible Eg material witness not called Discrepancy in identification Inconsistencies And despite all this, court calls on u – u can then advise accused to be silent

– 2. Further, if you are satisfied, supported by medical evidence, that the Accused will not be able to give evidence on his behalf.

o Get report etc and can present early to prosecution to review charge– Whichever course you advise, the FINAL decision must be the client’s and/or his family, if he

is unable to give a decision himself.

But lawyer has to a duty to explain to the accused that his failure to give evidence may result in adverse inferences being drawn against him. Section 196(2) of the CPC

Accused not to make a statement without being sworn or affirmed.196. —(2) If the accused — (a) after being called upon by the court to give evidence or after he or the advocate representing him has informed the court that he will give evidence, refuses to be sworn or affirmed; or (b) having been sworn or affirmed, without good cause refuses to answer any question, the court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

PP v Took Leng How [2005] 4 SLR 472 Accused charge with murder under s.300 Penal Code by causing death of an 8 years old girl. In his

statements and re-enactment to Police, Accused admitted to assaulting the victim and disposed of her body. However, he retracted his statement. At close of Prosecution’s case, the Court called for the Accused’s Defence. However, he elected to remain silent. The Defence led evidence that the Accused was suffering from Schizophrenia at time of offence and he qualified for Defence of Diminished Responsibility.

Court noted s.196 (5) CPC which states that the Court may not draw any inferences from the Accused’s silence if his physical or mental condition makes it undesirable for Accused to be called upon to give evidence. However, the trial judge found that the Accused could give evidence of what he was doing at time of offence.

The Defence submitted that the Accused could not contribute to the Defence by giving oral evidence since the Defence was based on an expert pathologist’s testimony. However, the trial judge rejected that submission. He noted that the pathologist’s expert evidence was important in determining the cause of death, the Accused’s description of how the victim died would have been useful.

The majority of the Court of Appeal agreed with the trial judge’s decision to draw an inference against the Accused [2006] 2 SLR 70. The Court nevertheless cautioned that not every Accused who is certified to be fit to plead is susceptible to an adverse inference if he elects to remain silent as there may be circumstances where such an Accused still exhibits certain mental or physical symptoms in the course of the trial that would make the Court’s drawing of adverse inference from the Accused’s silence unwarranted. – ie 196.5 being the proviso but not just oral evid but medical evid MUST be used to support.

PP v Tse Nathan & Anor [1992] 1 SLR 870 Accused persons were arrested at Changi airport with blocks of white substance wrapped in cellophane

paper and secured by elastic guards strapped around their calves and thighs. When quested about the substance, the first accused was alleged to have uttered the words “Pak Fun”, a Cantonese word meaning white powder which is commonly used to describe heroin

Both accused persons denied knowledge of the nature of the substance they were carrying in their cautioned statements. When the defence was called, the first accused elected to remain silent.

Court said at page 875 that his electing to remain silent did not assist his defence in any manner or form. On the contrary, such a silence on his part gives rise to the inference that he knew or ought to have known that the substance that he was carrying was drugs.

PP v Ker Ban Siong [1992] 2 SLR 938 The respondent Ker was charged for criminal trespass, having entered the Bukit Turf Club in contravention

of a notice prohibiting him from entering the club for a period of one year. At the close of the prosecution’s case, Ker was called upon to enter his defence but he respondent elected to remain silent. Ker was acquitted and the public prosecutor appealed against acquittal.

Held - As Ker chose not to testify in his own defence and not to offer any explanation for his conduct, an adverse inference could be drawn against him as to his intention in entering the club. Accordingly, Ker should have been convicted of criminal trespass.

Gan Lim Soon v PP [1993] 3 SLR 261 Respondent Gan, a bus driver, was charged with causing the death of a pedestrian by doing a negligent act

not amounting to culpable homicide, contrary to s 304A of the Penal Code (Cap 224). The bus he was driving collided with and killed the deceased who was then upon a pedestrian crossing. The district court ruled that there was no case to answer but the High Court allowed the prosecution’s appeal and remitted the case back to the district court to call upon Gan to enter upon his defence. Gan elected to remain silent and offered no witnesses, whereupon after hearing submissions the district court acquitted him. The prosecution appealed.

Held, allowing the appeal: (1) When an accused was called upon to enter upon his defence after the prosecution closed its case, and he chose not to give evidence or call witnesses, it was left to the judge to assess the credibility of the witnesses before deciding whether the case was proved beyond reasonable doubt. However, if, apart from the disputed facts and the credibility of the witnesses, there was hard evidence which was itself sufficient to constitute a prima facie case on the charge, then if the accused chose to remain silent when called upon, the unavoidable result was that the case would then have been effectively proved against him beyond reasonable doubt by default. (2) Rules 5 and 7 of the Pedestrian Crossing Rules 1982 left no doubt that if a driver of a vehicle collided with a pedestrian at a pedestrian crossing, the pedestrian clearly had the right of way.(3) Even if there was any doubt about whether the green pedestrian light had been in her favour when the deceased was crossing the road, it was not possible to escape from the fact that she was in the middle of the pedestrian crossing itself when she was hit and killed. This alone was prima facie evidence of Gan’s negligence, and, if not explained, was sufficient to support his conviction upon the charge. The appropriate punishment for causing death by a negligent act under s 304A of the Penal Code would be a fine.

Syed Yasser Arafat bin Shaik Mohamed v PP [2000] 4 SLR 27 at 37. - In this case, when called upon to enter his defence, the appellant elected to remain silent. It was an informed

decision. The trial judge granted an adjournment to let the appellant to reconsider his decision. He did not change his decision. Neither did he call any witnesses on his behalf. There was no submission from the defence, admittedly also upon his instructions.

- Held: It was neither unjustifiable nor unreasonable for the trial judge to draw an inference that Arafat was guilty of the offence charged in light of his election to remain silent. The offence under s 5(1)(a) read with s 5(2) MDA had been made out. Arafat’s silence and failure to adduce any evidence to show that the drug was not for the purpose of trafficking necessarily meant that a guilty verdict was amply justified.

Pointer: should put the advice to the client in writing, as well as his election to remain silent, otherwise he may deny it later.

It does not necessarily mean that if an accused elects to remain silent, and does not call any evidence, a conviction is inevitable.

In Ramakrishan s/o Ramayan v PP, HC: Presumed to have been properly advised by his counsel Despite this, he had on his own free will not to testify Counsel was suggesting that his client had been advised by him not to testify without being

fully appraised of the consequences, then counsel was opening himself up to a charge of incompetence

Surely, in a criminal trial, the accused’s refusal to testify may carry dire consequences in terms of adverse inferences

If accused elects to remain silent, he may make a submission that the prosecution has not proved its case beyond a reasonable doubt

Prosecution has the right of reply: s. 181(c) CPC Court would do a maximum evaluation of the case to determine if the standard of proof beyond a

reasonable doubt has been discharged Open to court to conclude that charge against accused who chose to remain silent has not been proven

beyond reasonable doubt if, having reviewed the evidence against him, the court was not satisfied as to the credibility of the witnesses: PP v Poh Oh Sim [1990] SLR 1047

PP v Poh Oh Sim [1991] 3 MLJ 416 Accused was charged with 2 counts of corruption Elected to remain silent at the close of the Prosecution’s case DJ found the evidence of the 2 main Prosecution witnesses doubtful because of material discrepancies

in their evidence. Accused was acquitted. On appeal by the Prosecution, CJ Yong: “ … It is true that, even though the respondent had chosen to

remain silent, the court could still decide to acquit him if, having then reviewed the evidence against him, the court should come to the conclusion that the case against him was dependent on the evidence of witnesses, and that the credibility of these witnesses had been seriously impugned.

Yeo Geok Seng v PP [2000] 1 SLR 195FactsThe appellant (“Yeo”) was the managing director of a company (“MFED”);, director of another (“XMS”);, and director, manager and 50% shareholder of yet another (“Triple Star”).MFED was awarded a building contract (the “TWCC contract”). On behalf of MFED, Yeo then contracted with XMS to award the TWCC contract to XMS, with a provision that consultation fees were payable to MFED by XMS. Yeo did not declare any interest in this contract to the directors of XMS.In addition, there was a building materials supplies agreement between XMS and Triple Star (the “supplies agreement”). However, no documentary evidence of this agreement existed and Yeo also did not declare to the directors of XMS any interest in this agreement.Yeo was charged under ss 156(5) and 156(1) of the Companies Act (Cap 50) for failing to declare his interests in the two contracts. He was convicted and fined $5,000 on each charge. On appeal, Yeo contended that he did not have any personal interest in the contracts and that the sentence was manifestly excessive.Held, dismissing the appeal:(1)    In respect of the charge under s 156(5), there was a conflict of duty or interest as Yeo was managing director of MFED and director of XMS, and he was obliged to declare it. In respect of the contract between MFED and XMS, Yeo owed a duty to MFED to secure the highest possible commission from XMS; as director of XMS, the converse applied. Furthermore, there would also be a conflict if a dispute arose between the two companies in relation to the contract.(2)    In respect of the charge under s 156(1), Yeo, as Triple Star’s director, manager and 50% shareholder, had an interest in the supplies agreement and was obliged to declare it. Furthermore, the exception in s 156(2) did not apply as his shareholding, even if it was not a controlling interest, was substantial enough to influence the decision of Triple Star and thus constituted a material interest.(3)    In respect of the charge under s 156(1), the trial judge was aware that Yeo’s knowledge was a necessary ingredient, and found on the facts that he had the requisite knowledge. First, as director and manager of Triple Star at the relevant time, it was reasonable to infer that Yeo was aware of the supplies agreement. Secondly, it could also be reasonably inferred from the correspondence between

XMS and Yeo regarding the TWCC contract that Yeo had a keen personal interest in the project and knew that XMS was obtaining materials from Triple Star.(4)    Yeo’s sentence was not manifestly excessive. Any breach of s 156 was a serious offence and the maximum fine of $5,000 was imposed in most cases unless there were mitigating factors, of which none existed in his case.Per Curiam:(1)      Section 156 exists for the benefit and protection of the company so that its directors may make informed decisions in the light of declarations of interest by individual directors. A wide interpretation of s 156 is thus necessary to give effect to its purpose.(2)    As long as the potential for conflict exists by virtue of his office as director in both companies, s 156(5) imposes a duty of disclosure on a director even if he does not have a personal interest which conflicts with his duty to the company. While this duty may not arise in every case of multiple directorships, whether such duty arises depends on the relevant circumstances, including the relationship between the companies of which he is a director.

Which Course – an Election: Consequence Thereto

If the accused elects to remain silent and not call any evidence, the defence is entitled to make a submission that the Prosecution has not proved its case beyond a reasonable doubt. The Prosecution has a right to reply to the defence’s submission: Section 181(c), 191 CPC.

Addresses.181. In summary trials under this Chapter —(c) the officer or other person conducting the prosecution shall have the right of reply on the whole case if the accused or his advocate has summed up his case.

Reply.191. In all cases the counsel for the Public Prosecutor shall have the right to reply on the whole case, whether the accused adduces evidence or not

At this stage, the trial judge must proceed to examine all the evidence adduced at the trial, assess the veracity and accuracy of the evidence and consider whether the prosecution has proved the guilt of the accused beyond a reasonable doubt.

b. Accused can elect to give evidence

- If accused elects to give evidence, he or his counsel may state the facts or law on which he intends to rely and make such comments as he thinks necessary on the evidence for the prosecution: s. 181 CPC

- Accused’s evidence shall be taken before that of other witnesses for the defence (s. 180(k)(ii) CPC) and he may be cross-examined on behalf of any other person who is accused with him (s.180(k)(iii) CPC) before the prosecution does so

- Accused may apply to the court to issue any process for compelling the attendance of any witness - Court shall issue the process unless it considers that the application should be refused on the ground that it is

made for the purpose of vexation or delay or for defeating the ends of justice, in which case that ground shall be recorded by the court in writing: s. 180(m)(i) CPC

- Defence’s responsibility to apply to the Chambers’ Magistrate at the Crime Registry of the Sub Courts for issue of summonses to witnesses before the trial

If the accused elects to give evidence, he must do so under oath or affirmation, and he must give evidence from the witness box. An accused is not entitled to make any statement without being sworn or affirmed: Section 196(1) CPC. Statements from the dock are not regarded as evidence.

Accused not to make a statement without being sworn or affirmed.196. —(1) In any criminal proceedings except an inquiry preliminary to committal for trial, the accused shall not be entitled to make a statement without being sworn or affirmed, and accordingly, if he gives evidence, he shall do so on oath or affirmation and be liable to cross-examination; but this subsection shall not affect the right of

the accused, if not represented by an advocate, to address the court otherwise than on oath or affirmation on any matter on which, if he were so represented, the advocate could address the court on his behalf

Before calling any evidence on behalf of an accused, the defence may make an opening speech stating the facts or law on which the defence intends to rely, and may even criticise the Prosecution’s evidence: Section 181(b), 190(1) CPC.

Addresses.181. In summary trials under this Chapter —

(b) when the accused is called upon to enter on his defence, he or his advocate may before producing his evidence open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution, and if the accused gives evidence or witnesses are examined on his behalf may sum up his case; and

Defence.190. —(1) The accused or his advocate may then open his case, stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution.

Accused will be called to give evidence before any other witnesses and he must be told the effect if he refuses to be sworn or affirmed: Section 180(k)(i) of the CPC (Subordinate Courts); Section 189(2) of the CPC (High Court).

Procedure in summary trials.180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials:(k)(i) before any evidence is called for the defence, the court shall tell the accused that he will be called upon by the court to give evidence in his own defence and shall tell him in ordinary language what the effect will be if, when so called upon, he refuses to be sworn or affirmed; and thereupon the court shall call upon the accused to give evidence;

Procedure after conclusion of case for prosecution.189. —(2) Before any evidence is called for the defence, the court shall tell the accused that he will be called upon by the court to give evidence in his own defence and shall tell him in ordinary language what the effect will be if, when so called upon, he refuses to be sworn or affirmed, and thereupon the court shall call upon the accused to give evidence.

Defence.190. —(3) If any accused person elects to be called as a witness, his evidence shall be taken before that of other witnesses for the defence.

Standard allocution read to the accused by the court:o Accused is told that he has two options and has to elect one:

(1) he can elect to give evidence from the witness box, on oath or affirmation, and be liable to cross examination

(2) he can remain silent and not give evidence in the witness box. But if he chooses this option the court in deciding whether he is guilty or not may draw such inferences as appear proper from his refusal, including inferences that may be adverse to him.

o Whichever course he takes, it is open to him to call other evidence in his own defence.

In order to enable him to make a considered choice, should advise him early when taking instructions as to his options. If haven’t take instructions yet, can ask court to let accused stand down for a few minutes to take instructions

Note: once the witness is in the witness stand, need permission of the court to confer with the client (whether in the courtroom or otherwise) i.e. during the trial, cannot take any more instructions. If really need to, tell the court and the DPP e.g. expert witness on a technical point, or regarding ownership of property etc.

Upon completion of his EIC, the Prosecution will cross-examine the accused, followed by a re-examination of the accused by the defence Counsel. Re-examination is confined to matters raised in the cross-examination, and defence Counsel is not allowed to raise any new matters without the leave of court. If such leave is granted, the court will normally grant leave to the Prosecution to cross-examine on these new matters as well: Section 140 of the EA.

Order of examinations and direction of re-examination140. —(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

Note: Never ask the client a question to which you do not know the answer during the trial Do not re-examine if there is no need to Never re-examine unless you are clear as to what you want to achieve. If the case is stood down for lunch in the middle of the EIC or cross examination NEVER HAVE LUNCH

WITH THE CLIENT as if the two of you are seen together having lunch and talking it may give the impression to the Prosecution that you are coaching the witness.

Where there are more than one accused, the accused is also liable to be cross-examined by Counsel for the co-accused. Counsel for the co-accused will cross-examine the accused immediately after the EIC of the accused. This is followed by cross-examination of the Prosecution, and re-examination by the Defence Counsel.

o • The accused cannot refuse to answer any question unless he is entitled to refuse to answer question byvirtue of section 122(4) of the Evidence Act or on the ground of privilege (see CPC, s 196(4)).

Significance of failure to Cross-Examine. Rule in Browne v. Dunn [1893] 6 R 67– • In Liza bte ISmail v PP [1997] 2 SLR 454, the High Court noted that the central purpose of the

rule in Browne v Dunn is simply to secure procedural fairness in litigation. The rule ensures that contradictory facts are put to the witness during cross-examination to give the witness an opportunity to respond.

– Any testimony left unchallenged may be treated by the Court as undisputed and therefore accepted by the opposing party: Arts Niche Cyber Distribution Pte Ltd v PP [1994] 4 SLR 111.

– •The accused will then call his witnesses to testify who may be cross-examined by the prosecution and reexamined by the accused.

– • When the accused has produced his evidence, he may make a closing submission or address concerning the issues and the evidence. The prosecution would respond with its own submission.

– • If the defence wishes to address the court on a matter arising from the prosecution’s closing submission, he should apply to the court for leave. The court may grant leave if it believes that this would be in the interest of justice.

– •The court will record an order of acquittal if the accused is found not guilty and pass sentence if it convicts him.

Procedure involving co-accused

– • Where there are two or more accused, each of them has the opportunity to address the court, adduce evidence and cross-examine witnesses. If there are two co-accused (A and B), both are entitled to cross-examine the prosecution witnesses sequentially.

– • After the court determines that there is a case to answer, A will give evidence and call and examine his witnesses in chief. B may then cross-examine A and his witnesses after which the prosecution may do so. The same procedure applies when B commences his case.

– •Once A and B have produced all their evidence, they will present their closing submissions sequentially and the prosecution will then respond.

– •If A decides to remain silent and not to call any evidence, B would be entitled to commence his case as if he is the sole accused.

General points– • If any of your witnesses cannot speak English, you should write to the trial court to inform that you require

the assistance of an interpreter for the trial. This is crucial for foreign interpreters.– • If you are not sure whether your witness would be willing to turn up, you should apply at the Crime

Registry for a Summons to A Witness to be issued against that witness. A fee of $1 is payable at the Crime Registry for every summons that is issued. A court process server will serve the summons on the witness.

– • If the evidence comprises documents, you must make sure you have at least four copies of each document: one (the original) for the court, one for the prosecution, one for the witness and one for yourself.

– • In criminal cases, documentary exhibits are tendered individually unlike in civil cases where the documents are bound in a bundle. (unless court otherwise directs)

– • Please be punctual. If for some reason you will be late (say) you are held up in another Court, please call the Court Officer to inform that you will be late and why.

– • There is a strict policy of no adjournments of trials in the absence of good reasons e.g. illness. If you or your witness is unwell, a properly endorsed medical certificate in strict compliance with para 135 (Pt XV) of the Subordinate Courts Practice Directions 2006 must be tendered.

Exhibits– • Exhibits are marked in a sequential manner starting of with the charge(s) so that if there are two charges

they would be marked P1 and P2 and the first exhibit tendered would be P3 and so on.– • Conditioned statements are marked sequentially as PS1, PS2 and so on.– • With regard to witnesses, they are referred to by PW (prosecution witness) and DW (defence witness).

Numbers are assigned in ascending order in the sequence in which they are called.– • In the case of a trial within a trial, the letter ‘T’ is included so that the prosecution witnesses will be

referred to as PWT1 and so on and the defence witnesses be DWT1 and so on.

Voir dire– • Voir dire (trial within a trial) is necessary in order to determine the admissibility of the accused’s statement

if its voluntariness is in issue.– • The trial within a trial is a separate proceeding within the trial. The evidence to be adduced at this separate

proceeding must relate only to the admissibility of the statement and, further, such evidence cannot be used at the main trial.

– • An accused person has no right to examine witnesses or take any other role in a voir dire which concerns thevoluntariness of a co-accused’s confession, even if the confession is used as evidence against the former (Jasbir Singh v PP; Panya Martmontree).

c. Re-Examination – Do’s and Don’t’s – • Never do Re-Examination just for the sake of it. – • Never Re-Examination unless you are clear about what you can achieve.– • In re-Examination, Counsel can only ask questions pertaining to cross-Examination.

o • Does the evidence need clarifying or explaining.o • Can I show the evidence in its proper context.o • Can the matter be developed further so as to shed a different light upon it.o • Can I clear up an inconsistency.

– S399 CPC – after giving evid – must with leave of court – recall or reexamine witness who has been examined.

– • Never deliberately leave matters for Re-Examination which should properly be dealt with in Examination-in-chief.

– • Never Re-Examine on matters other than those which arise out of Cross Examination. If you really have to, seek the leave of the Court before doing so.

– • Never use leading questions to elicit evidence from your own witness in Re-Examination.– • Never ask a question in Re-Examination to which you do not know the answer. This is a

dangerous practice at any time as it could destroy your case at this late stage.– • Do not ask a question which will help the Prosecution’s case.

d. Whatever the accused decides to do, it is still open to the defence to call witnesses on behalf of the accused to give evidence.

Process is repeated for all the witnesses. In a joint trial, the above is followed by the EIC of the co-accused (if he decides to give evidence), cross-

examination by Counsel for the accused, cross-examination by the Prosecution, and re-examination for the Counsel for the co-accused.

Note: if the accused does not have any defences, plead guilty – realistic and truthful – saves times and costs. Do not create defences. Defences must be based on client’s instructions.

ACCUSED’S DEFENCE

Establish the defences or potential defences at an early stage in the preparations. Relevant considerations for trial preparation:

o Obtain discoveryo Analyse the elements of the chargeo Explain the legal positiono Make a full assessment of the evidenceo Decide the legal issues or defenceso Consider the pre-trial issues

- Do not create a Defence for the Accused. The Defence must be based on client’s instructions and on facts presented by client.

Alibi evidence– Leave:

– • May not be adduced or relied on without the Court’s leave unless, before the end of the prescribed period, notice is given to Prosecution prior to the commencement of the trial – Section 155 CPC (High Court), Section 182 (1) CPC (Subordinate Courts)

– • Prescribed Period s182(1)o High Court – 14 days after end of proceedings before Magistrate.

- only substantial difference between the procedure in HC and Sub Courts is in the definition of “prescribed period”

in HC: s. 155(9) CPC “prescribed period” means the period of 14 days from the end of the proceedings before the examining Magistrate

in Sub Courts: s. 182(9) CPC “prescribed period” means the period of 14 days from the end of the proceedings before the Magistrate on the occasion that the accused is charged in court for the first time with the offence in respect of which he is raising the defence of an alibi

- assertion that an accused was not at the scene of the crime, and could not remember where he was, was evidence of denial only and not “evidence in support of an alibi”: Panya Martmontree & Ors [1995] 3 SLR 341 CA

The four appellants were convicted under s 396 of the Penal Code (Cap 224) of murdering two persons in the course of gang robbery. The only material evidence against them comprised the statements of the first, second and fourth appellants. The third appellant argued that he could not remember where he was, and that he could not to be implicated by the other appellants’ statements.

Para 60       The next issue to be considered is the evidence of the third appellant that he was not in Singapore during the material times. There was some question whether this amounted to evidence in support of an alibi, or that it was simply a denial. If it was the former, leave of the court would

have been required under s 155(1) of the CPC as no notice had been given to the prosecution within the prescribed period. At trial, it was held that the third appellant was simply saying that he was not in Singapore. He did not know where he was so this was not evidence in support of an alibi and thus did not require notice to be given under s 155(1) of the CPC. If this were all, then on the plain words of s 155(9) which defines the phrase ‘evidence in support of an alibi’, this holding was correct. Section 155(9) reads: ‘[E]vidence in support of an alibi’ means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission … .

Para 61       If an accused does not remember that he was at a particular place or in a particular area at a particular time, then that evidence would not be evidence in support of an alibi. The learned judge agreed with that distinction as drawn in Vasan Singh v PP. He found that the third appellant’s claim, relying on his passport, that he was not in Singapore was a denial only.

Held: The third appellant’s defence that he was not in Singapore at the time, and could not remember where he was, was evidence of denial only and not evidence in support of an alibi. The judge was correct in regarding the passport as unreliable evidence in support of that denial.

The Court has a discretion as to whether or not to allow the evidence to be adduced in the absence of appropriate notice.

Criminal Procedure, Tan Yock Lin, Vol 2 Chapter XV, para 3451 & 3451.1 “There is no automatic exclusion if no notice is given as prescribed. But where no notice has been given as

prescribed, leave of the court must be obtained to adduce the alibi evidence.1 Leave of court is also necessary notwithstanding a notice but where the notice is a prescribed sense defective; First, where the notice did not give the name and address of the alibi witness and the court is not satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name and address would be ascertained; second, where after the accused subsequently discovered the missing name or address or received other information which might be of material assistance in finding the witness, he failed forthwith to give notice of his discovery; third, where after notification by the Public Prosecutor to him of the inability to trace his alibi witness by the name or at the address given, he failed to give notice of any such information which is then in his possession or of any such information which subsequently came into his possession.2 But the court shall not refuse leave if it appears that no advocate has been instructed to act for the accused at any time prior to the trial and if it is satisfied that the accused was not aware of the provisions of Section 155 or 182, as the case may be.3

In Singapore, the exercise of the court’s discretion to give leave to adduce alibi evidence despite the absence of such a notice has been exhibited in several recent cases. Guided by the principle that verification of the accused’s alibi is the principle purpose of the alibi notice,4 the court will certainly deny leave in the case of a deliberate attempt to subvert the notice requirement. Short of that, the accused’s explanation for the failure to give the requisite notice may be crucial. If he claims that he omitted to give notice because he was unsure of the willingness of his alibi witnesses to testify on his behalf, he will seldom succeed in obtaining indulgence from the court. The reason is the simple one that he can always subpoena witnesses who are competent to give evidence on his behalf. Certainly, an explanation of this sounds very lame when the accused knew of the identity of the witnesses and of their whereabouts.5 However, leave applications tend to be favourably regarded when alibi witnesses were unknown to the accused and their identities could not at the relevant time have been discovered by him or his legal adviser acting with due diligence. The seriousness of the charge is another factor to take into consideration when giving or denying leave to give alibi evidence despite the absence of a notice.6 Leave to give alibi evidence is usually granted where the accused himself desires to give the alibi evidence. The reason is that there is no danger of overrating his evidence since he will also have to explain why he made no mention of his alibi evidence at the time of the

1 In PP v Kadir bin Awang [1989] 2 MLJ 33 no notice of alibi was served and as the DPP did not object to the admissibility of the accused’s alibi evidence, the court allowed the evidence to be given by the accused.2 Section 155(2)(b), (c), (d) & Section 182(2)(b), (c), (d)3 Section 155(8) and Section 182(8). Note that if the PP or any investigating officer interviews an alibi witness, the accused or his advocate has a right to be present.4 Lee Choon Chee v PP [1996] 1 SLR 264 at 268.5 Lee Choon Chee v PP [1996] 1 SLR 264 at 268.6 Panya Martmontree v PP [1995] 3 SLR 317 at 357.

charge.7 But it does not follow at all that if the accused is given leave to give his own alibi evidence, he must also be given leave to call alibi witnesses other than himself. The trial judge has an independent discretion under Section 182(2) whether to allow other alibi witnesses to give evidence.8

- purpose of notice is to enable Prosecution to verify the accused’s account so that hey are able to challenge the accused’s version of event if it is appropriate: Lee Choon Chee v Public Prosecutor [1996] 1 SLR 264

o The primary purpose of the statutory requirement of an alibi notice is to enable the prosecution to verify the accused’s account so that the Prosecution is able to challenge the accused’s version of the events if it is appropriate to do so. There may well be circumstances where it would not be possible to provide the information at all or to do so within the prescribed period.

o Therefore, there remains a judicial discretion to allow alibi evidence to be adduced even when the statutory provision has not been complied with. This discretion has to be exercised judiciously, based on the facts and circumstances of each particular case.

Lee Choon Chee v. PP [1996] 1 SLR 264- Facts: The appellant Lee was convicted of a charge of cheating a taxi driver. His defence was that he was, at

the material time, at the home of a close friend, and that he was not involved in the offence in any way. Lee did not give an alibi notice under s 182 of the Criminal Procedure Code (Cap 68) (CPC). After Lee gave evidence, his counsel applied for leave of court to adduce evidence from Lee’s wife Chua and a friend Cheong who were with him at the close friend’s home. The trial judge rejected the application and Lee’s defence. Lee appealed arguing that the trial judge: (a) erred in refusing him leave to call the two alibi witnesses; (b) erred in rejecting his defence; and (c) failing to consider the implausibility of the victim’s evidence.

- Held, dismissing the appeal:- (1)    There was no merit in Lee’s first ground of appeal. The primary purpose of the statutory requirement

of an alibi notice was to enable the prosecution to verify the accused’s account so that the prosecution was able to challenge the accused’s version of the events if it was appropriate to do so. The availability of the two witnesses was well within Lee’s knowledge, yet he refused to mention his alibi witnesses, either to defence counsel or to the police. Spectacularly, he changed his mind at the last minute. In these circumstances, there was no reason why leave should have been granted. Moreover, in a case of this nature, the credibility of the witnesses, especially the alibi witnesses, was important. The prosecution should have been given an opportunity to investigate the matter.

- (2)    There were some very unsatisfactory aspects to Lee’s testimony which could not be attributed solely to lapses in memory. More crucially, there was the unresolved question why Lee chose not to reveal his alibi evidence much earlier. There was thus no reason to reverse the finding of the trial judge that Lee’s defence was not to be believed.

- (3)    The findings of the trial judge with respect to the veracity of the victim’s testimony was accepted. Furthermore, Lee was apprehended six months after the victim lodged his police report and had no problems identifying Lee at the identification parade. Appeal dismissed

See Section 155(2) CPC and Garmaz s/o Pakhar v PP [1995] 3 SLR 703 for what the notice of alibi should include.

Notice of alibi.155. —(2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless —

(a) the notice under subsection (1) includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness; (b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained;

7 Panya Martmontree v PP [1995] 3 SLR 317 at 357.8 Lee Choon Chee v PP [1996] 1 SLR 264 at 269.

(c) if the name or the address is not included in that notice, but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he forthwith gives notice of the name, address or other information, as the case may be; and (d) if the accused is notified by, or on behalf of, the Public Prosecutor that the witness has not been traced by the name or at the address given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it.

Garmaz s/o Pakhar v PP [1995] 3 SLR 70- The two appellants were former police officers. The first appellant Garmaz was charged under s 6(a) of the

Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA) with corruptly accepting $2,000 from one Tan, through one Leong. This was allegedly an inducement for Garmaz to recommend that no further action be taken on a complaint against Leong which he was investigating. The second appellant Jaswinder was charged with abetting Garmaz in committing the offence by intentionally arranging with Tan to give the money to Garmaz through Leong. Tan and Leong were both prosecution witnesses and their evidence materially implicated the appellants. However, Tan’s oral testimony contradicted his written police statement. The prosecution applied to treat Tan as a hostile witness.  The district judge allowed the application and ruled that Tan’s credit had been impeached and he proceeded to call for the appellants’ defence. The district judge accepted Leong’s testimony in the main and parts of Tan’s testimony and convicted both appellants and sentenced to six months’ imprisonment. On appeal, the appellants argued inter alia that adverse inferences pursuant to s 123 of the Criminal Procedure Code (Cap 68) (CPC’) were erroneously drawn for the appellants’ alleged ‘non-compliance’ with s 182 CPC, as notice of alibi was not required; alternatively, sufficient notice was constituted as the appellant’s evidence had been given within 14 days from the time the amended alternative charges were preferred

- Section 182 of the CPC did not say rule alibi evidence admissible simply because it was adduced in court within the prescribed 14-day period. The purpose of s 182 was to enable the prosecution to verify the accused’s account.  On the evidence, there was no reliance on an alibi defence at all. As such, there could not have been any material non-disclosure. The trial judge wrongly invoked s 123 of the CPC.

Preferably, should interview all alibi witnesses before giving the Alibi Notice to the Prosecution.

- s. 155(4) CPC: any notice purporting to be given under this section on behalf of the accused by his advocate shall, unless the contrary is proved, be deemed to be given with the authority of the accused

– • Notice cannot be retrieved. Notice may amount to a previous inconsistent statement against the Accused which the Prosecution is entitled to use in its case.

R v Bridgen [1973] Crim. L.R. 579 R v Rossborough (1985) 81 Cr. App.R. 139. Syed Abdul Mutalip bin Syed Sidek and Anor v PP [2002] 2 SLR 405

– Procedure to follow:o 1. record statement of cliento 2. interview witnesso 3. record statement fr tt witness and affirm fact so tt aibi evid relevant and useful for defece.

If not relevant, then don’t use warn the witness that he MUST have been with him, not merely trying to help him with

no valid reasono 4. get statutory declaration (sworn before commissioner for oaths) from the witness so that he later

cannot turn ard and object to the statement if he does can discredit him

– If Defence have witness(es) must decide whether to call. If witness can help Defence case, must call. o Adverse inference can be drawn by Court for failure to call witness: Evidence Act, s.116

illustration (g).

– When witness/accused is on stand, u shld not confer with ur accused!! Ethics of the profession– If want to spek to client, shld get leave of court – he is now at service to court– Carry urself well – distance urself fr witness/accused during trial

IMPEACHMENT- Note:

o Accused may not understand the implications – explain to himo Always have in mind the possibility of impeachment – warn the accused first so that he is preparedo Inevitably, the accused will not be able to remember everything he said then, but try to get as much

information as possible as to what he said to the IO – probe them.

Where witness gives oral evidence which is contrary to a previous statement made by the witness, the party cross examining the witness may impeach the credit of that witness.

• Can impeach your own witness – Section 157, Evidence Act impeachment is, however, not confined to the adverse party, you may, with the leave of the court, apply

to impeach your own witness: s. 157 EA but this is very seldom done by the defence

Kwang Boon Keong, Peter v PP [1998] 2 SLR 592- The credit of a witness refers to his character and moral reliability — The purpose of impeaching a

witness’s credit is to undermine his credibility by showing that his testimony should not be believed because he is of such a character and moral make-up that he is incapable of speaking the whole truth under oath and should not be relied on

- Yong Pung How CJ: …- Para 17.… The words, ‘credit’ and ‘impeachment’, are familiar terms in the litigation process and are

frequently and freely used by both the members of the bar and the bench. However, there is a dearth of judicial and legislative exposition as to the definition of these two terms. What does one exactly mean when one says that the credit of a witness has been impeached? What is the significance of the impeachment of a witness’s credit? A clear understanding of these two critical words is required before one can seek to answer these queries.

- Para 18.The Evidence Act does not contain a definition of ‘credit’. The term is referred to in s 148 which seeks to distinguish between credit and credibility. … Section 148 associates credibility with accuracy and veracity, while credit is linked with character. … Nokes, in the fourth edition of An Introduction to Evidence at pp 407–408, sought to define and distinguish between credit and credibility. The learned author stated that credit involves ‘antecedents, associates, character, impartiality and consistency’ while credibility concerns the ‘opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers’. It can thus be deduced that the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity.

- Para 19.There is a close relationship between the credit and credibility of a witness. The credit or discredit of a witness relates to his credibility. This brings us to the question of what it means by impeaching a person’s credit. The Oxford English Dictionary (2nd ed) defines the word, ‘impeach’, as ‘to challenge, cast an imputation upon, attack’. To impeach a witness’s credit is to disparage or undermine his character and moral reliability and worth. The purpose of the impeachment of a witness’s credit is to undermine his credibility by showing that his testimony in court should not be believed because he is of such a character and moral make-up that he is one who is incapable of speaking the whole truth under oath and should not be relied on.

- … Thus, if a witness’s testimony is inconsistent with a previous statement made by him, that statement may be put to him in cross-examination to challenge his credit if the inconsistency will affect his credibility and likely standing with the trier of fact.

• Procedure when making an application to impeach credit of witness: Muthusamy v PP (1948) MLJ 57

MATERIAL DISCREPANCIES (for defence, you shd get ur client to write down and tell u whatever they told the plice earlier – so

tt not shocked later) (get all documentation ready – annexes (eg costs etc) for self prxtn – treat every client as potential

complainant)!

Somwang Phattanaseng v PP (1992) 1 SLR 850

• If accused denies making statement or challenges the voluntariness of the statement, then the Prosecution must prove in a voire dire that the statement was in fact made by the Accused and that it was made voluntarily without any inducement, threat or promise.

Facts - The appellant Somwang was charged with the murder of one Thongdam by striking him several times with the blunt end of an axe. In his defence Somwang claimed that Thongdam owed him $800 and refused to repay this debt, and when Somwant asked for the repayment of this debt, Thongdam struck him with a broom. This provoked Somwang to strike Thongdam with the axe. Somwang also led medical evidence to suggest that he was suffering from depression at the time of the offence. In the course of the trial the prosecution impeached Somwang’s evidence by using his previous inconsistent statements made to the police under s 121 of the Criminal Procedure Code (Cap 68) (‘the s 121 statements’). The trial judges found that the defence of provocation was not made out as there was no loan of $800 owing by Thongdam and there was no fight between Thongdam and Sonwang as alleged. Somwang was accordingly convicted (see [1992] 1 SLR 138) and he appealed arguing that the proper procedure for allowing the prosecution to use the s 121 statements to cross-examine him was not followed by the trial judges, and that in their findings against the appellant, the trial judges relied on the s 121 statements as substantive evidence.

Relevant Portion of the Judgment Para 31       Before we conclude, there is one other complaint made by counsel for the appellant

which we should consider. Five days after the appellant had been charged with the murder of the deceased and had given the s 122(6) statement, Inspector Michael Chan, with the assistance of the Thai interpreter, Lim Yew Teck, recorded two lengthy statements from him under s 121 of the CPC: one on 30 March 1988 and the other on 31 March 1988. These two statements (‘the s 121 statements’) were not tendered as part of the evidence against the appellant at any stage of the case for the prosecution; nor were copies thereof furnished to the defence. During the cross-examination of the appellant (after the defence had been called), the prosecution sought to impeach his credit by showing that his evidence was inconsistent with the s 121 statements. As the appellant did not appear to admit the whole of the s 121 statements, the prosecution then adduced evidence to prove that he had made the statements voluntarily. A trial-within-a-trial was conducted, and at the conclusion thereof the trial judges were satisfied that the statements were made by the appellant voluntarily and admitted them in evidence. Thereafter, the appellant was cross-examined and was asked to explain the inconsistencies between the s 121 statements and the evidence he had given. He was then re-examined by his own counsel and was given an opportunity to clarify and explain the inconsistencies. The trial judges in their grounds of decision found that there were several material inconsistencies between his evidence and the statements, and held that the appellant had been discredited.

Para 32       The complaint of counsel for the appellant is two-fold. Firstly, it was contended that the proper procedure for allowing the prosecution to use the s 121 statements to cross-examine the appellant had not been followed by the trial judges, and counsel referred us to the case of Muthusamy v PP.

In that case the accused was charged with house trepass with intent to intimidate the occupant and also with assault. In the trial before the magistrate, previous statements made by the accused to the police were used to cross-examine the accused and were admitted as substantive evidence against the accused. On appeal to the High Court this was disallowed, and Taylor J who heard the appeal laid down the following procedure at pp 58–59: “The proper way to apply the sections [ie the equivalent of s 122(2) of the Criminal Procedure Code and s 157 of the Evidence Act] is this. On the request of either side, the court reads the former statement. If there is no serious discrepancy the court so rules and no time is wasted. The first necessity is to read it with the confident expectation that it will be different from the evidence but looking judicially to see whether the difference really is so serious as to suggest that the witness is unreliable.” If the police statement gives an outline of substantially the same story there being no apparently irreconcilable conflict between the two on any point material to the issue, the magistrate should say at once ‘The difference is not such as to affect his credit’ and hand the statement back. If, however, the difference is so material as probably to amount to a discrepancy affecting the credit of the witness, the court may permit the witness to be asked whether he made the alleged statement. If he denies having made it, then either the matter must be dropped or the document must be formally proved, by calling the writer or, if he is not available, by proving in some other way that the witness did make the statement. If the witness admits making the former statement, or is proved to have made it, then the two conflicting versions must be carefully explained to him, preferably by the court, and he must have a fair and full opportunity to explain the difference. If he can, then his credit is

saved, though there may still be doubt as to the accuracy of his memory. This procedure is cumbersome and slow and therefore should not be used unless the apparent discrepancy is material to the issue.

Para 33       We have examined the record of proceedings before the trial judges and have found nothing which was at variance in any material respect with the procedure laid down in Muthusamy. The appellant was referred to the statements he made and since he did not appear to admit them, the trial judges conducted a trial-within- a-trial and at the conclusion determined that the statements were made by the appellant voluntarily. Thereafter, cross-examination of the appellant continued, after which his counsel re-examined him. For some inexplicable reason, at that point of time counsel for the appellant strenuously urged the trial judges to make a ruling whether the credit of the appellant had been impeached. The trial judges declined, and in our view, rightly, and held that they would determine that issue at the close of the case. There is no reason whatsoever why the trial judges should make any ruling at that stage as requested by counsel. In our opinion, counsel was in error. The use of the s 121 statements to impeach the credit of the appellant was part of the cross-examination by the prosecution and does not call for any special ruling at that stage.

Public Prosecutor v Sng Siew Ngoh [1996] 1 SLR 143 learned Chief Justice held that

whilst no explicit reference is made, para (c) of s. 157 EA must point to s. 147 which deals with cross-examination on previous statements made by a witness.

This means that the whole of that section is brought in, including s. 147(3): it could not be argued that there is a dustinction between using as evidence and using to impeach.

As noted above, this is too subtle a distinction. Whatever the position at common law, given the clear expression of purpose of the legislature, any argument against the application of s. 147(3) on the basis that there is a difference between use as evidence and use to impeach cannot stand

Section 122 (2) CPC makes reference to impeachment in the manner provided by the Evidence Act, which points to Section 157

Section 157 ( c ) in turn referred to impeachment by former inconsistent statements, which is governed by Section 147, and that section brings the whole of Section 147 including subsection (3).

A statement admitted for the purpose of impeachment may be relied on for the truth of the facts contained in the statement. In PP v Sng Siew Ngoh [1996] 1 SLR 143 it was held that Section 147 of the Evidence Act provided a general scheme governing cross-examination on previous statements. There was thus no conflict between s 147(3) and s 122 of the Act as the latter made reference to it. The victim’s statement could thus to relied on for the truth of the facts contained in it.

Chai Chien Wei Kelvin v PP [1999] 1 SLR 25- The appellant and the first accused were jointly tried in the High Court. The first accused was charged with

attempting to export controlled drugs (‘the drugs’) from Singapore to Taipei. The appellant was charged with abetment of the offence in that he strapped the drugs, which he transported into Singapore, onto the body of the first accused with tapes at the Changi Airport, in order to enable the first accused to transport the drugs out of Singapore. The High Court admitted as evidence several statements made by the first accused, the appellant and one Goh. At the close of the prosecution’s case, the High Court called for the defence of the first accused and the appellant. They both elected to remain silent. The appellant and the first accused were both found guilty and sentenced to death. Only the appellant appealed.

- Held, appeal dismissed:- (1)    The argument that the first accused’s statements were not ‘confessions’ and therefore could not be

used against the appellant under s 30 of the Evidence Act (cap 97) (‘EA’) was not accepted. For a statement to amount to a confession, it need not be of a plenary or unqualified nature. 

- (2)    Section 122 of the Criminal Procedure Code (cap 68) (‘CPC’) was not applicable to narcotics officers. The admissibility of the first accused’s statements fall to be tested under s 24 of EA. The test of voluntariness under s 24 of EA was partly objective and partly subjective. The objective limb was satisfied if there was a threat, inducement or promise, and the subjective limb when the threat inducement or promise operated on the mind of the accused through hope of escape or fear of punishment connected with the charge. 

- (3)    Where voluntariness  was challenged, the burden was on the prosecution to prove beyond a reasonable doubt that the confession was made voluntarily and it was not for the defence to prove on a balance of probabilities that the confession was not made voluntarily.  In this case, the inducement alleged was self-perceived.

- (6)       As Goh retracted his previous statement when giving evidence in Court, the prosecution was entitled to impeach his credit under s   157(c) of EA and admit   his previous inconsistent statement as evidence of any fact stated therein under s   147(3) of EA. The weight to be attached to the statement was determined by the factors stipulated in s   147(6) of EA. In estimating the weight of such statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether the maker of the statement had any incentive to conceal or misrepresent the facts. There was no rule of law that the testimony of a witness must either be believed in its entirety or not at all.

PP v Tan Kim Seng Construction Pte Ltd & Anor [1997] 3 SLR 158. - The first respondent TKSC was charged with employing foreign workers without a valid permit, contrary to

s 5(1) of the Employment of Foreign Workers Act (Cap 91A, 1991 Ed) (‘the Act’). The second respondent, who was managing director of TKSC was charged with neglect in permitting TKSC to employ the said workers contrary to s 5(6) of the Act. The foreign workers stated that obtained work from one Ang, whom they considered as their ‘boss’ and who paid their salaries. Ang himself testified that he was merely TKSC’s sub-contractor. This testimony contradicted his prior statement that he had employed the workers on TKSC’s behalf. The magistrate disbelieved Ang, and held that the prosecution failed to prove the case beyond a reasonable doubt. The prosecution appealed.

- Held –o On the evidence, Ang’s credibility was correctly impeached. While Ang’s statement could have

been used for the truth of the facts stated, little weight should have been placed on it considering the context of the inconsistent portions.

- The introduction of the prior inconsistent statement- Para 22    This was a statement recorded in October 1995, about a year after the material time. The

magistrate found that the statement was only inconsistent in parts and only allowed those parts into evidence. The statement, in so far as it was possibly inconsistent with Ang’s testimony in court, was as follows:

- 1       I want to amend para 1 of my previous statement on 2 October 1995 because I remember the facts wrongly. I did not recruit ‘Wei Seng’ to work at the construction site at Tampines but I had employed him to work another construction site at Lorong M. Besides recruiting ‘Wei Seng’, I also recruited ‘Ah Bee’ to work at the construction site at Lorong M somewhere in mid-October 1994. The construction site is located at Telok Kurau and is used for the construction of one block of four-storey private housing. …

- 3       At the construction site at Lorong M, my employer, ‘Jin Chen’ [the second respondent] had subcontracted painting works at the said site from Sum Keong Construction Pte Ltd. My employer, ‘Jin Chen’ had a written contract with Sum Keong Construction Pte Ltd. For the subcontract painting works at the construction site at Lorong M, ‘Jin Chen’ did not further subcontract the painting works to any other company or to any other person(s). The entire contract for the painting works at the Lorong M construction site is handled by Tan Kim Seng Pte Ltd ……

- 5       After ‘Wei Seng’ and ‘Ah Bee’ had started working for two to three days, I told my employer, ‘Jin Chen’, that there were two Malaysians that wanted to work at the Lorong M site. ‘Jin Chen’ told me to let them work first and if they are found suitable for the job, he would try to apply work permit for them. … …

- 11     My employer, ‘Jin Chen’, gave me the authority to employ Singaporean and Malaysian workers. However, if I recruit Malaysian workers, I have to inform ‘Jin Chen’ within a few days of their recruitment. ‘Jin Chen’ would then make the final decision as to whether to employ them further. I do not need to inform ‘Jin Chen’ whenever I recruit Singaporean workers.

- 12     I admit recruiting ‘Wei Seng’ and ‘Ah Bee’ on the behalf of my employer, ‘Jin Chen’ to work as painter at the construction site at Lorong M without any valid work permits. Both ‘Jin Chen’ and myself were aware that ‘Wei Seng’ and ‘Ah Bee’ were Malaysians when they were employed to work as painters at the construction site at Lorong M.

- The prosecution’s contention was in essence that¶3, 5, 11 and 12 were materially contradictory in that they might indicate, through the reference to the second respondent as Ang’s employer, a relationship between Ang and him, and thus between him and the workers. The magistrate however, thought that only¶5 and 12 contained material contradictions. This court accepted that these paragraphs were contradictory, but so was¶11. The magistrate thought it was not because no evidence of authority had been given by Ang. Though that was true, Ang’s testimony was that there was no relationship of employment, and that no consultation was made about the employment of the workers. Paragraph 11 stated that Ang was so employed, and that authority was conferred through that employment. There were thus two conflicting versions of events. They could not exist alongside each other. Hence they were contradictory. But as found by the magistrate,¶3 was

not contradictory as it dealt only with the relationship between the second respondent and the main contractor.

- Para 23     By virtue of s 157, Evidence Act (Cap 97, 1990 Ed), Ang’s credit could be impeached by the prosecution using the prior inconsistent statement, provided there was consent of the court. Such impeachment would require that the contradictions materially affected the witness’ credibility. It did not necessarily however mean that the whole of the witness’ evidence was rejected: Garmaz s/o Pakhar & Anor v PP [1995] 3 SLR 701. Here the contradictions concerned the precise nature of the relationship between Ang and the second respondent. It hinged on the use of the term ‘employ’ by Ang in his statement. However, no explanation was given by Ang which indicated that the term was used in any other sense. Ang also explained that he had made the statement in respect of another period of employment, but, given the specificity of the reference to Telok Kurau, this could not be true. In view of all of this, the contradictions were material and affected Ang’s credibility as a witness.

- Para 24     In addition to the impeachment of Ang’s credit, the prosecution sought to use the prior statement for the truth of the facts stated. The use of prior inconsistent statements for the truth of the facts stated was approved by this court in PP v Sng Siew Ngoh [1996] 1 SLR 143. The statutory basis for it is s 147 of the Evidence Act …. Ang accepted that he made the statement.

- Para 25     That statement could be used for the truth of the facts stated in regard to: (i)     Ang’s labelling of the relationship; and (ii)    The control exerted over Ang. However, (i) was not relevant. Though Ang used the term ‘employer’ in his statement, and the indications were that Ang knew of the implications of the term, all that such use went to show was that Ang labelled the relationship between him and the second respondent as employment. This was not enough. The prosecution had to prove beyond a reasonable doubt that in substance the relationship was indeed one of employment.

- Para 26     The statement was only useful then as evidence of control by the second respondent. In weighing the evidence, consideration was given to s 147(5) as noted by this court in PP v Sng Siew Ngoh , at p 157: “The dangers of falsification and inaccuracy, to which all out of court, evidence is prone, are recognised and highlighted. So long as these are borne in mind, there is nothing inherently wrong in admitting inconsistent statements for the truth of the facts stated contained in them.”

- II Factors to be considered- Para 27     The contemporaneity of a statement with an incident is important for it guards against inaccuracy.

However, the degree of contemporaneity that is required will vary with the facts in question. The recollection of the details of particular events, particularly where these occur quickly, is easily susceptible to error with time. However, the recollection of the existence of a relationship, such as of employment, is not so malleable.

- Para 28     Subsection (5) refers as well to the possibility of misrepresentation by the maker of the statement. There can be little guidance on this; the court must be astute in weeding out such instances.

- Para 29     In addition to the above matters, which are explicitly referred to, the weight to be accorded to a prior inconsistent statement will be affected materially by an explanation of the inconsistency, and why that statement is an inaccurate representation of the facts.

- Para 30     Regard should be had to the context of the statement. Subsection (5) does not restrict consideration to only the making of the statement, but requires consideration of all the circumstances affecting its accuracy. Thus, the court must consider the context of the inconsistent portions, which requires that the whole of the statement be examined. Reliance cannot be placed on a portion of a statement that is taken out of context. In practice, it is necessary for the defence to be given a copy of the whole statement, so that counsel may assist the court in putting the portion used in context.

- Para 31     Finally, the cogency and coherence of the facts to be relied upon has to be noted. An ambivalent statement does not attract much weight.

- III The weight that should be accorded- Para 32     In this appeal consideration had to be had of all the factors above as they applied generally as

well as specifically to certain paragraphs. Taking all the inconsistent portions together first, it was noted that the magistrate found that the circumstances warranted that little weight should be attached to the statement as it was made about a year after the incident in question, and was not contemporaneous with the occurrence of the events. However, whether Ang was an employee of the respondents was a fact which could not have been affected by difficulties in recollection. It followed that the passage of a year after the relationship ended before the making of the statement could not have affected its accuracy. And no allegation of misrepresentation was raised by Ang, nor was there any evidence of it.

- Para 33     Ang offered an explanation that the statement was made in respect of another occasion. Since this reference raised issues of similar fact evidence if it was true, the admission of the statement would have had to be measured against the likelihood of prejudice against the accused persons. The initial consideration though had to be whether the statement was in fact in relation to the events which were the subject matter of

the charge. The statement contained several references to the site being at Lorong M, and to the period being October to December 1994. In view of this, Ang’s explanation could not be accepted. Ang attempted a further explanation, saying that all that he had meant to say in the statement was that he had requested the second respondent to get work permits for the workers as he himself could not do so. But this went against the literal meaning of the statement that he gave, particularly in¶12.

- Para 34     Turning then to specific paragraphs, in  5 of the statement, Ang stated that he informed the second respondent that he had two workers. Allegedly, the second respondent instructed that they were to be tried out first, and that he would seek permits for them if found suitable. This could have indicated that the second respondent had some control over the employment of the workers. However, it could not go so far, for it could have equally indicated only that the second respondent would have been willing to apply for permits on Ang’s behalf. That this may be an offence was irrelevant in this appeal.

- Para 35     As for¶11, that disclosed that Ang had authority from the second respondent to recruit workers. If true, this showed that the second respondent, and hence the first respondents as well, exerted some control over the activities of Ang. However, the weight to be placed on this part was very much reduced by the context from which it was taken. The evidence in the rest of the statement indicated that Ang was the one who paid the workers and supervised them. There was no indication in the statement that Ang’s supervision was under the control of the respondents. Thus any authority Ang had to recruit was largely negatived by the absence of any evidence that Ang’s supervision of the workers was ultimately subject to the respondents’ control.

- Para 36     In view of the circumstances affecting the statement as noted above, the weight to be accorded to the inconsistent parts concerning the control exerted over Ang by the second respondent was minimal. It was noted that the prosecution submitted in court that the magistrate had wrongly considered that the statement did not record what Ang said because Ang was in his view an easily confused person. In view of the findings above, this was immaterial.

All that is required for a witness’s previous statement to be admitted under Section 147 Evidence Act, is for it to be proved that the statement was in fact made by the witness.

Sim Bok Huat Royston v PP [2001] 2 SLR 348. - There was no statutory provision requiring that a witness’ statement to be voluntary before it became

admissible. It was thus unnecessary and procedurally incorrect for the judge to have ordered a voir dire to determine the voluntariness of Tan’s [a witness, not the accused] statements. To be admissible under s 147 of the Evidence Act, all that was required was for the prosecution to prove that the 2 previous inconsistent statements had been made by Tan. While the weight of a witness’ involuntary statement might be significantly reduced, it remained admissible under s 147 which did not stipulate a requirement of voluntariness.

After the previous inconsistent statement is admitted, the conflicting versions must be carefully explained to the accused (preferably by the court), and he must be given a fair and full opportunity to explain the difference between his oral evidence in court and his previous statement. But the court is not obliged to make its ruling as to the witness’ credibility at the end of the impeachment exercise (Somwang Phatthanasaeng v PP [1982] 1 SLR 850, Loganatha Venkatesan & Ors v PP [2000] 3 SLR 677)

Syed Abdul Aziz & Anor v PP [1993] 3 SLR 534 - - Para 15       In our view, Muthusamy v PP does not support the proposition advanced by counsel that the

learned trial judges should have made an immediate ruling on the credibility of Jumaat [a prosecution witness]. Although Taylor J in Muthusamy v PP took great pains to set out the procedure for impeaching credit, he did not say that the court was obliged at the completion of the exercise to make a ruling whether the credit was impeached or not. There can of course be cases where a court confronted with a materially inconsistent previous statement made by a witness is prepared at that stage to indicate that the witness is not worthy of credit and that the evidence of that witness will be disregarded but that does not mean that the court is obliged in every case to make such an immediate ruling. We would, in this context, refer to what was said by this court in Somwang Phattanasaeng v PP at p 861: “For some inexplicable reason, at that point of time counsel for the appellant strenuously urged the trial judges to make a ruling whether the credit of the appellant had been impeached. The trial judges declined, and in our view, rightly, and held that they would determine that issue at the close of the case. There is no reason whatsoever why the trial judges should make any ruling at that stage as requested by counsel. In our opinion, counsel was in error. The use of the s 121 statements to impeach the credit of the appellant was part of the cross-examination by the prosecution and does not call for any special ruling at that stage.”

All that is required is that the court must consider the discrepancies and the explanations proferred by the witness for the purpose of an overall assessment of his credibility. (Loganatha Venkatesan & Ors v PP [2000] 3 SLR 677).

o Held, dismissing the appeal:o (1)    The trial judge was not required to treat Ravichandran’s evidence with caution, even if

he was an accomplice. All that s 116 illustration (b) of the Evidence Act (Cap 97) said was that an accomplice might be presumed to be unworthy of credit and that his evidence might be treated with caution. Whether or not the presumption applied depended on the circumstances of each case and it was open to the trial judge to accept an accomplice’s evidence if he found that it was reliable.

o (2)    On the evidence before the trial judge, he was entitled to find Ravichandran’s evidence reliable and to accept it. Material aspects of Ravichandran’s evidence on the conspiracy were not disputed or were corroborated. Apart from Ravichandran’s testimony, the circumstantial evidence was also consistent with the existence of a conspiracy. Hence, the trial judge’s finding of a conspiracy was wholly supportable.

o (3)    The discrepancies in the evidence of the eyewitnesses of the attack were not material and were obviously due to a difference in their perception of an unexpected fast moving incident. They were not witnessing the attack at the same point in time and each saw a different part of the attack from different angles commencing from different times. The trial judge did not err in relying on their evidence.

o (4)         Venkatesan’s and Chandran’s explanations for their presence at the scene of attack at the material time were inherently incredible in the circumstances. The trial judge was correct in rejecting their explanations.

o (5)    As Julaiha was an accused person and not a mere witness, the use of her police statements was governed by s 122(5) and not s 122(2) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). Under s 122(5), there was no need for the Prosecution to apply to court for permission to use the statements made by Julaiha, whether for cross-examination or impeaching her credit, so long as the statements were made voluntarily.

o (6)    When the credibility of a witness was sought to be impeached, there was no requirement that the trial judge must, at any stage of the trial, make a ruling on whether the credit of the witness was impeached. The court was only required to consider the discrepancies and the explanation proffered by the witness for the purpose of an overall assessment of his credibility. An impeachment of the witness’s credit did not automatically lead to a total rejection of his evidence and the court remained under a duty to evaluate the evidence in its entirety to determine which aspect of it should be accepted or disregarded.

• R Alagiyasolam v PP [2006] 2 SLR 427- Credibility of a witness cannot be impeached unless there are serious discrepancies or ‘material’

contradictions between his oral testimony and his previous police statements ‘material’ discrepancies are inconsistencies that go to the crux of the charges against the accused court will compare the oral evidence with the previous statement to assess the overall impression

which has been created as a whole

- impeachment of a witness’s credit does not automatically lead to a total rejection of his evidence: Impeachment of credit goes to the weight of the evidence, not to admissibility — The court must

carefully scrutinise the whole of the evidence to determine which aspect might be true and which should be disregarded. (PP v Mohammed Faizal Shah [1998] 1 SLR 333, Kwang Boon Keong Peter v PP [1998] 2 SLR 592). The court is entitled to reject certain parts of his evidence, while still accepting others (Garmaz s/o Pakhar & Anor v PP [1995] 3 SLR 701)

Chen Jian Wei v PP [2002] 2 SLR 255- Facts: The appellant was charged with rioting under s 147 of the Penal Code (Cap 224). He was allegedly an

active participant in a group assault against Ong.The prosecution called nine witnesses, but only one witness, 15-year old PW6, insisted that the appellant was an active assailant. The minor initially gave evidence that the appellant was an active assailant, but subsequently retracted much of his initial evidence. PW6’s credit was impeached, and the district judge preferred PW6’s initial evidence. The appellant testified

that he was not an active participant in the assault. However, the judge impeached the appellant's credit on the basis of two inconsistencies in his evidence.

- The appellant was convicted and sentenced to two years' imprisonment and four strokes of the cane. He appealed against his conviction and sentence.

- Held, allowing the appeal:- (1)    As PW6 was regarded as a young witness, the traditional concerns as to whether he had attained

sufficient maturity not to be swayed by personal interests and fantasy, and understood the importance of stating the truth on oath applied. In certain cases, the law required corroboration for evidence given by such young witnesses because it was considered unsafe to convict solely on their testimony alone.

- (2)    Whether corroboration was required for evidence given by a child witness was a matter for the judge to weigh in determining the issues. A judge who had had the benefit of observing the demeanour and conduct of the child witness would be in a far better position to determine if corroboration was required in the circumstances of the case. An appellate court would not readily interfere with such a finding.

- (3)    However, in this case, there were overwhelming reasons to regard the evidence given by PW6 with suspicion. PW6 did not fall into the category of persons with more mature intellectual faculties and it would be unsafe to convict solely on his testimony without any corroboration. The prosecution did not adduce any evidence which corroborated PW6's evidence. Further, there were several material inconsistencies in PW6’s evidence.

- (4)       The credibility of a witness could NOT be impeached unless there were serious discrepancies or material contradictions between his oral testimony and his previous police statements. 'Material' inconsistencies were those inconsistencies that went to the crux of the charges against the appellants. In determining whether the credit of the accused or a witness had been impeached, the court would compare the oral evidence with the previous statement to assess the overall impression which has been created as a whole. In this case, the two inconsistencies in the appellant’s evidence were not material inconsistencies.

- (5)    An impeachment of the witness's credit did not automatically lead to a total rejection of his evidence. The court must carefully scrutinise the whole of the evidence to determine which aspect might be true and which aspect should be disregarded. In this case, various aspects of the appellant's testimony were consistent with the evidence given by the prosecution witnesses.

- (6)    The prosecution’s burden of proving that the offence had been committed beyond reasonable doubt continued to apply strictly. While an appellate court should be slow to overturn a trial judge's findings of fact unless they were clearly reached against the weight of evidence or were plainly wrong, the court was not satisfied on the totality of the evidence in this case that the burden of proof was satisfied

• Even if a statement is held to be voluntarily obtained, the Court has to then decide on the weight to be given to the statement.

• Where there is inconsistency in testimony, the Court is entitled to accept one part of testimony and reject another part: Yeo Kwan

Wee Kenneth v PP [2004] 2 SLR 45

• Whether there is need to make formal application for impeachment.– In Loganatha Venkatesan v PP [2000] 3 SLR 677, CCA held no requirement for trial judge to

make a ruling on whether the credit of a witness is impeached. Court only has to consider any discrepancies and witness’s explanation.

– Again in Low Siew Hwa Kenneth v PP [2003]3 SLR 448.

- “Previous Inconsistent Statements: Scope of s.147(3) of Evidence Act and its Applicability where the witness does not testify to the facts mentioned in his previous statement [2001] 13 SACLJ 1

- “Prior Inconsistent Statements: Fairness, Statutory Interpretation and the Future of Adversarial Justice [2002] 14 SACLJ 248.

ALL AVAILABLE EVIDENCE FOR DEFENCE TO BE BEFORE THE COURT- • However, if evidence was not available before the Trial Judge for one reason or another, the Defence can

on appeal adduce fresh evidence which was not available at the trial.- • Done by way of motion to adduce fresh evidence.

- • However, if the evidence, to be introduced, could have been obtained with reasonable diligence for use at the hearing, the Court would not give leave for its introduction.

- • See Ladd v Marshall [1954] 3 All ER 745; [1954] 1 WLR1123 The applicable principles 22     The conditions that have to be satisfied before leave is granted to adduce additional evidence

on appeal are set out in Ladd v Marshall [1954] 1 WLR 1489, namely: - (a)    non-availability – it must be shown that the evidence could not have been obtained

with reasonable diligence for use at trial;- (b)    relevance – the evidence must be such that, if given, it would probably have an

important influence on the result of the case; and- (c)    reliability – it must be apparently credible, although it need not be incontrovertible.

- This framework has been adopted and applied in numerous criminal cases such as Juma’at bin Samad v PP [1993] 3 SLR 338, Chan Chun Yee v PP [1998] 3 SLR 638 and Annis bin Abdullah v PP [2004] 2 SLR 93.

Juma’at bin Samad [1993] 3 SLR 338- The appellant Juma’at was convicted on his guilty plea of housebreaking in order to commit theft under

s 454 read with s 34 of the Penal Code (Cap 224). He was sentenced to the mandatory minimum of 18 months’ imprisonment. Juma’at’s counsel urged the senior district judge to make a probation order instead of ordering a custodial sentence, arguing that Juma’at had a stable and promising career with an electronics company and that he was a prominent and highly-respected young Malay entrepreneur. There was also a brief reference to the appellant having committed the offence while under the influence of alcohol. The senior district judge rejected these arguments and imposed the punishment of 18 months’ imprisonment. Juma’at filed filed a criminal motion asking the High Court to exercise its revisionary powers under s  268 of the Criminal Procedure Code (Cap 68) (CPC) to inquire into the conviction. He also applied for the leave to introduce additional evidence to show that he was in fact entitled to the defence of intoxication under s 86(2) of the Penal Code. This additional evidence was in the form of affidavits which purportedly showed that: (a) Juma’at was addicted to alcohol; (b) he was heavily intoxicated at the time he committed the offence; and (c) he could not have intended to steal the items as he would have known that they were almost worthless and that what he did was completely out of character with his achievements and station in life. Alternatively, he appealed against the sentence of 18 months’ imprisonment.

- Held, dismissing the criminal motion and appeal:- (1) Three conditions had to be fulfilled to justify the court taking additional evidence. It had to be shown

that the evidence: (a) could not have been obtained with reasonable diligence for use at the trial; (b) was such that, if given at the trial, it would probably have an important influence on the result of the case, although it need not be decisive; and (c) was apparently credible, although it need not be incontrovertible.

- (2) Section 86(2) of the Penal Code may be a complete defence or a mitigating circumstance which may render an accused to be guilty of a lesser offence. Section 86(2) applied only where the mens rea for an offence was intention and not other forms of mens rea. The burden of proof fell on the accused to prove on a balance of probabilities that he was so intoxicated that he did not form the necessary intention. Juma’at would have had a complete defence if he could show that he was so intoxicated that he did not housebreak with the intention to commit any offence or to intimidate, insult or annoy. Alternatively, his conviction may be reduced to one for a lesser form of housebreaking if he could show that he did not housebreak with the intention to commit the specific offence of theft

- (3) The additional evidence sought to be adduced was not apparently credible and, even if believed, did not establish on a balance of probabilities that Juma’at was entitled to the defence of intoxication. Furthermore, the commission of the offence entailed an extensive sequence of apparently conscious and purposeful acts. Such a protracted criminal venture negated any serious possibility of one of the two participants being so inebriated as not to have intended to embark on the unlawful endeavour at all.

Loh Khoon Hai v PP [1996] 2 SLR 321- appellant Loh was charged in the court below for abetting a robbery with hurt by conspiracy. The

prosecution case rested solely on the uncorroborated testimony of one Teh, who was involved in the robbery. Teh had already been convicted and sentenced when he gave evidence at Loh’s trial. Loh’s defence was a total denial of any complicity or involvement in the robbery, but the trial judge found Teh to be a truthful, fair and reliable witness, convicted Loh and sentenced him to six years’ imprisonment and 12 strokes of the cane.

- While at Changi Prison, Loh was given a note handwritten note by Teh which repudiated everything Teh said at trial. In the note, Teh said that he implicated Loh because of pressure from the police and that the

note was written voluntarily. Loh sought to adduce the note as fresh evidence at the appeal and also appealed against the decision of the trial judge.

- Held, dismissing both the application and the appeal:- (1) In an application to adduce fresh evidence, the applicant must satisfy the three conditions of

unavailability, relevance and reliability. The circumstances in which additional evidence would be allowed on appeal were very limited (see p 326A–C).

- (2)    As regards the third condition, the fresh evidence must be apparently credible. The general rule was that a confessed liar could not be regarded as credible. In particular, when it involved a confession of lying and fabrication by the prosecution witness who had participated in the offence, an appellate court had to exercise additional caution.

- Thus, the appellate court must look again at the whole matrix of evidence in deciding whether the fresh evidence which was sought to be adduced was credible.

- (3)   On the evidence presented, the account by Teh of the appellant’s involvement was of such considerable detail that it could not have been made up. In the light of the overall matrix of evidence, there was no doubt that Teh was telling the truth at the appellant’s trial and his present confession was not so apparently credible as to be admitted as fresh evidence

- (4)   An appellate court would not usually interfere with a trial judge’s findings of fact. On the facts, the discrepancies raised as regards Teh’s testimony were not material so as to affect his credit. The process of testimony was not a memory test and minor inconsistencies were often inevitable. Moreover, what appeared to be inconsistencies could have been due to the way questions were phrased. The crux was whether the totality of the evidence was believable and, in this respect, the trial judge rightly concluded that Teh had given an account that was coherent and logical.

Syed Jarafalsadeg bin Abdul Kadir Alhadad v PP [1998] 3 SLR 788- The appellant was charged with of cheating pursuant to s 415 of the Penal Code (Cap 224). The

prosecution’s case was that from March to May 1995, the appellant had deceived one Azam Ali, a director of Scan Electronics, into paying him $50,000 as agent’s commission for purchase of a property on behalf of Scan Electronics, when in fact no such payment was payable as no agent was involved in the sale. Azam testified that the appellant had given him the impression that there would be no deal if the $50,000 fee was not paid.

- The appellant’s defence was that the $50,000 had been taken by one Abdullah, his cousin who was acting as Azam’s agent. However Abdullah had given a statement (‘P15’) to the investigating officer in October 1995 which differed materially from his evidence-in-chief given at trial. The trial judge chose to believe P15 rather than Abdullah’s evidence-in-chief. At the end of the trial, the trial judge found that the evidence of the prosecution witnesses largely more believable than that of the defence witnesses. The appellant was duly convicted and sentenced.

- The appellant appealed against his conviction, contending that the trial judge should have believed his version of events on the grounds that - (a) as Azam had felt the overall price of the property to be fair, thus the agent’s commission neither induced nor deterred Azam from purchasing the property, and since the $50,000 would have been returned to Azam if the sale was aborted, there was no cheating was involved, (b) an adverse inference should be drawn against Azam for alleged inconsistencies in his evidence and because Azam had not demanded repayment of the $50,000 from the appellant as yet, and (c) the trial judge should have put more weight to Abdullah’s reasons for the discrepancies between P15 and his evidence-in-chief.

- The appellant also sought to adduce fresh evidence in the form of a transcript of a tape as proof of lying by Azam and another prosecution witness in their evidence.

- Held, dismissing the appeal:- (1) In order for additional evidence to be taken pursuant to s 257(1) of the Criminal Procedure Code, three

conditions must be satisfied: (a) the evidence could not have been obtained with reasonable diligence for use at trial, (b) the evidence would probably have had an important influence on the result of the case, although it need not be decisive, and (c) the evidence was apparently credible without the need for further proof, although it did not need to be incontrovertible. The circumstances in which fresh evidence was allowed were extremely limited. The additional evidence should enable a glaring injustice to be corrected.

- (2) The additional evidence the appellant sought to introduce satisfied the first condition, however the conversation on the tape was disjointed and unclear, and it was doubtful that it would have a significant influence on the outcome of the case. Also, the credibility of the evidence was open to dispute as the authenticity of the tape had not been proved. The second and third conditions were not satisfied.

- (3) For the offence of cheating under s 415 of the Penal Code to be made out, there must have been a deception by the appellant done fraudulently or dishonestly which induced the deceived person to deliver any property to any person. It was crucial that Azam had been induced by the appellent’s representation and

had paid over the $50,000 to the appellant who had carried out the deception with a dishonest intent. It did not matter that there were other considerations which influenced Azam’s decision to purchase the property, or that the $50,000 would have been returned to Azam if the sale fell through.

- (4) The trial judge did consider Abdullah’s reasons for the inconsistencies, but there was so much other material evidence, eg P15’s relative contemporaneity to the material events and the fact that Abdullah would have been more likely to give an accurate account of events as he was not aware of the significance of the $50,000 then. Further the account of events in P15 was consistent with the accounts of the Azam and Chow, the other Scan Electronics director, and seeing that Abdullah was not in cahoots with Azam and Chow, there would also be no reason for him to tell untruths to the investigating officer. Thus the trial judge was entitled to accept in P15 as evidence of the facts stated therein pursuant to s  147(3) of the Evidence Act (Cap 97, 1997 Ed).

- (5) With respect to the appellant’s other contentions, where there was an appeal based on fact, it was settled law that the appellate court would be slow to overturn the trial judge’s finding of fact especially where he had made an assessment of the credibility and veracity of the witnesses, unless it could be shown that his assessment was plainly wrong or against the weight of evidence. This was not apparent here. The appellant had failed to show why the version of facts should be anything other than that found by the trial judge. As such the offence was proved beyond a reasonable doubt

Chew Gim Ser v PP [2005] 1 SLR 201- Facts- The appellant faced two charges (“the third and fourth charges”) in relation to the importation of 250 cartons

of 200 sticks (ie 50,000 sticks) of Marlboro brand cigarettes (“the cigarettes”) from Malaysia into Singapore on 23 October 2003 without paying customs duty and goods and services tax (“GST”). The cigarettes were found hidden amongst consignments of fish on a Malaysian-registered lorry at Tuas Checkpoint. One unopened packet containing 20 sticks of Marlboro cigarettes, similar to those found on the lorry, was later found at the appellant’s home.

- The driver of the lorry, Khairu Nazri bin Husain (“Khairu”), admitted to importing the cigarettes. Khairu was employed by a Malaysian company (“the company”) that the appellant was a director of. The lorry belonged to the company. The appellant’s elder brother, Chew Gim Hock (“Gim Hock”), had instructed him to drive the lorry from Johor Baru to Singapore and deliver the cigarettes to the appellant, as the company’s other driver, Muniandy s/o T M Rajoo (“Muniandy”), was prohibited from entering Singapore.

- Khairu was sentenced to nine months’ imprisonment for his part in smuggling the cigarettes. The appellant’s defence was that he did not know what had transpired in Johor Baru and was not concerned in smuggling the cigarettes. As for the packet of Marlboro cigarettes found at his home, the appellant said that he had found it lying around and decided to take it home with him.

- The district judge preferred the evidence of Khairu, the sole prosecution witness, to that of the appellant, concluding that the appellant was in charge of the company’s operations in Singapore and Johor Baru and was concerned in the importation of the cigarettes. She further drew an adverse inference against the appellant that the evidence of his brothers and employees, who were not called as witnesses, would have been unfavourable. The appellant was convicted on the third and fourth charges, and pleaded guilty to two other charges relating to the packet of Marlboro cigarettes. He was sentenced to a total of 15 months’ imprisonment.

- The appellant in his appeal against conviction argued that the District Judge was wrong in several aspects. He also filed a criminal motion seeking to adduce as additional evidence on appeal a statutory declaration made by Muniandy after the conclusion of his trial. The appellant contended that it had not occurred to him that Muniandy was a potentially important witness until Muniandy’s evidence was discovered in the course of enquiries made in relation to a charge against his younger brother, Chew Cheng Huay (“Cheng Huay”). Cheng Huay had been charged with offering money to Khairu, together with Muniandy, to persuade Khairu to accept full criminal liability for smuggling the cigarettes. Muniandy stated that he and Khairu were partners in the smuggling operation, and their employers were unaware of their smuggling activities. He also declared his willingness to attend court and give evidence, despite the likely criminal consequences.

- Held, dismissing the criminal motion and appeal against conviction on the third and fourth charges, but allowing the appeal against sentence:

o (1)       The appellant failed to satisfy any of the three conditions to be satisfied before leave was granted to adduce additional evidence on appeal. There was nothing to suggest that Muniandy could not be located before trial, and the appellant must have known all along Muniandy’s potential importance as a witness. Muniandy’s evidence would not have had an important influence on the outcome of the appellant’s case, and was not sufficiently reliable: at [24] to [27], [29], [31] and [32].

o (2)    The appellant failed to show the existence of any extenuating circumstances that would justify invoking the exception that additional evidence might be allowed on appeal in the most extraordinary circumstances, where the evidence was necessary in the interests of justice: at [35].

o (3)    There were no grounds to disturb the judge’s decision that the Prosecution had made out its case at trial based on Khairu’s evidence, and that the appellant was concerned in the importation of the cigarettes: at [42] to [44]

o (4)    That the Prosecution did not call Muniandy and Gim Hock as witnesses was no grounds for drawing adverse inferences against the Prosecution. Both persons were resident in Malaysia and not compellable as witnesses before the Singapore courts. They were also not witnesses relevant to the Prosecution’s case: at [46]and [48].

o (5)    The judge’s decision to convict the appellant could not be faulted, and she had correctly drawn an adverse inference against him for failing to call any witnesses to support his defence. The appellant’s failure to contact Gim Hock after the lorry had been seized at Tuas Checkpoint was telling. The packet of Marlboro cigarettes found at his home also connected him with the cigarettes on the lorry, and his explanations for its discovery were incredible and contradictory: at [50

RECALL OF WITNESS- see section 399 CPC – court can at any stage of inq, trial etc can call witness even thgouh not summonsed/

recall or reexamine any witness if nec to ans qno judge may alow this application at close of ur caseo NOT in the course of hearngo Must finish witnesses first

- s. 180(1) CPC provides that an accused person shall be allowed to recall and cross-examine any witness present in the court or it s precincts

- If the charge has been amended after the commencement of the trial, then Section 167 of the CPC states that the accused and the prosecution shall be allowed to recall any witness with reference to the new or altered charge.

Recall of witnesses when charge is framed or altered.167. Whenever a charge is framed or altered by the court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon and examine with reference to the new or altered charge any witness who may have been examined.

Procedure in summary trials.180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials: (l) any accused person shall, at any time while he is making his defence, be allowed to recall and cross-examine any witness present in the court or its precincts; Recall of witnesses when charge is framed or altered.167. Whenever a charge is framed or altered by the court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon and examine with reference to the new or altered charge any witness who may have been examined.

- In practice, the court will allow the defence to recall any witness (whether he is within the precincts of the court or not) if it can be shown that there are good reasons to do so.

The Prosecution cannot recall rebuttal evidence to merely confirm its case. It is open to the Defence to call evidence to poke holes in the Prosecutions evidence. The

Prosecution cannot be allowed to call rebuttal evidence merely because the Defence appeared to have succeeded in doing so. It is unfair to the Defence.

• Evidence Act Section 140 (4)

Order of examinations and direction of re-examination140 (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

– • Bridges Christopher v PP [1997] 1 SLR 406

– • Sim Cheng Hui v PP [1998] 2 SLR 302o The first and second appellants were convicted of drug trafficking. During a surveillance

operation, Teo handed over to the first appellant a white bag. The first appellant later handed over the white bag containing a significant amount of money to the second appellant. As for Teo, after he had passed the money over to the first appellant, he went to the second appellant`s car, bearing the number plate 8808, and retrieved a white bag containing drugs.

o The prosecution’s case was that the first and second appellants were involved in a conspiracy to traffic drugs with Teo, and that the transaction was carried out through the first appellant. The prosecution showed that the first appellant paged Teo with the number 8808 instructing Teo as to where to collect the drugs. During the trial, the judge recalled two prosecution witnesses to find out the number of the pager which Teo was carrying so as to enable him to draw the link that the first appellant paged Teo instructing him where to collect the drugs.

o Held, dismissing the appeals:o (1)    Section 399 of the Criminal Procedure Code (Cap 68) retained for a trial judge a

statutory discretion to summon or recall a witness at any stage of the proceedings. This power should be exercised sparingly and judiciously for the just decision of the case. The sole purpose of recalling the witnesses in the present case was to clarify evidence which had already been adduced before the court. Both Teo and the first appellant were on trial for the offence of drug trafficking and abetment of trafficking respectively. The judge correctly sought to connect them together in the whole transaction of drug trafficking using s 399.

o (2)    Taking all the evidence as a whole, it could be inferred that there was a conspiracy between Teo and the appellants to traffic drugs.

o (3)    Teo’s statement which he gave upon his arrest amounted to a confession as the statement allowed the inference to be drawn that he committed the offence of drug trafficking which he was later charged with. The judge rightly used Teo’s statement against the second appellant under s 30 of the Evidence Act. (Cap 97, 1990 Ed)

AT THE END OF TRIAL- Points to note – if your client intends to appeal against conviction and sentence, you should not say anything

in the mitigation plea that was counter to your client’s interests in the appeal.

Final Submissions- • After all witnesses for the defence have been called, the defence will close its case.- • Submissions would be given either orally or written (usually written). – 2 wks given to prepare final

submissions- • The submissions will include the law, the evidence and the facts.- • Both Prosecution and Defence will be allowed to exchange their submissions. Both parties will be

allowed to reply to the other’s submission. This will be the final reply.- At next sitting, may submit submission or make oral reply- On day of hearing may then make decision – it depends on how judge wants to mange the case- CCM- After all the Defence witnesses have given evidence, the Defence will close its case with a closing

submission. This would include submissions on law, evidence and facts. Defence Counsel will invariably want to criticise the Prosecution’s case on the basis that the Prosecution failed to prove its case beyond a reasonable doubt and that the accused is entitled to an acquittal.

- In the case of a joint trial, the closing submission of the Defence Counsel is followed by the closing submission of Counsel for the co-accused. The Prosecution will submit thereafter.

- Defence Counsel may, with the leave of court, reply to the Prosecution’s submission.- Closing address differs according to whether heard before a Magistrate, DJ, HC Judge or Appeal Judge.- Adopt the discipline of keeping neat notes throughout the trial – all the Q & As, arguments for the other

side, interventions by the Bench, whether helpful or unhelpful to the Counsel’s cause.- Note that your notes are always subject to the court’s record – guided by his records. Judge will record the

evidence in a language that is readable.- Note that nowadays, submissions are in writing – need to exchange.- The judge may interrupt Counsel with points that are troubling him/her, so Counsel must be prepared for a

dialogue and to deal with those points.

- Closing Submissions and Judgment:

There is no need for recall or to summon any witness under s. 399 CPC: Sim Cheng Hui & Anor v PP [1998] 2 SLR 302, the defence is entitled to sum up his case, and prosecution will reply: s. 181(b) & (c) CPC

Sim Cheng Hui & Anor v PPFactsThe first and second appellants were convicted of drug trafficking. During a surveillance operation, Teo handed over to the first appellant a white bag. The first appellant later handed over the white bag containing a significant amount of money to the second appellant. As for Teo, after he had passed the money over to the first appellant, he went to the second appellant`s car, bearing the number plate 8808, and retrieved a white bag containing drugs.The prosecution’s case was that the first and second appellants were involved in a conspiracy to traffic drugs with Teo, and that the transaction was carried out through the first appellant. The prosecution showed that the first appellant paged Teo with the number 8808 instructing Teo as to where to collect the drugs. During the trial, the judge recalled two prosecution witnesses to find out the number of the pager which Teo was carrying so as to enable him to draw the link that the first appellant paged Teo instructing him where to collect the drugs.Held, dismissing the appeals:(1)    Section 399 of the Criminal Procedure Code (Cap 68) retained for a trial judge a statutory discretion to summon or recall a witness at any stage of the proceedings. This power should be exercised sparingly and judiciously for the just decision of the case. The sole purpose of recalling the witnesses in the present case was to clarify evidence which had already been adduced before the court. Both Teo and the first appellant were on trial for the offence of drug trafficking and abetment of trafficking respectively. The judge correctly sought to connect them together in the whole transaction of drug trafficking using s 399.(2)    Taking all the evidence as a whole, it could be inferred that there was a conspiracy between Teo and the appellants to traffic drugs.(3)    Teo’s statement which he gave upon his arrest amounted to a confession as the statement allowed the inference to be drawn that he committed the offence of drug trafficking which he was later charged with. The judge rightly used Teo’s statement against the second appellant under s 30 of the Evidence Act. (Cap 97, 1990 Ed)

Known as closing submissions or closing addresses

In practice, court may direct or parties may request to submit and exchange written closing submissions

Power of court to summon and examine persons.399. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned, as a witness or recall and re-examine any person already examined and the court shall summon and examine or recall and re-examine any such person, if his evidence appears to it essential to the just decision of the case.

Discretionary power on court to to recall summon witnesses – to be exercised sparingly – test’: failure of justice, truth need nt be estd

accused’s guilt need not be proved beyond a shadow of doubt, but beyond a reasonable doubt: Chiaw Wai Onn v PP [1997] 3 SLR 445

FactsThe appellant Chiaw was charged and convicted in the court below for abetting one Poon in disposing of 640 pieces of Hewlett Packard computers valued at $1,855,072 by providing the latter with cash to acquire the stolen computers. Chiaw’s main defence was that he did not know that his ‘loan’ to Poon was used to buy stolen goods. He also claimed that his presence on the day of the theft was fortuitous as he had offered to fetch Poon around because the latter’s car had broken down, and that the excess $60,000 which he received was to discharge an earlier debt which Poon owed him. The district court sentenced Chiaw to 12 months’ imprisonment. On appeal, his sentence was initially enhanced to a fine of $80,000 but was immediately revoked the same afternoon because the High Court exceeded its jurisdictional limit. The sentence was then substituted by a sentence of six months’ imprisonment.Held, dismissing the appeal:(1)    Chiaw’s account of his presence at every stage of the criminal enterprise was incredulous. The sheer coincidences were inexplicable. Moreover, if he was not a party involved in some way or another with the theft, it was inconceivable that the other participants would have readily agreed to his presence at

every stage of the criminal enterprise from the planning to its execution.(2)    On the circumstantial evidence alone, Chiaw clearly participated in the criminal activity. His presence at all the relevant stages of the theft went beyond mere presence, but indicated that he was well aware of the theft and was an active participant. The prosecution had clearly discharged the burden of proving this beyond reasonable doubt. Even if knowledge could not be inferred, the mens rea for a s 414 charge would have been constituted under the alternative limb that Chiaw had ‘reason to believe’ that the computers were stolen. The requirement here would have been lower than actual knowledge.(3)    The rules on whether the High Court in its criminal appellate capacity could alter the judgment, including sentence of a subordinate court, were set out in s 217 of the Criminal Procedure Code (Cap 68) (CPC). Section  217 did not attempt any substantive enactment with regard to the High Court. As such, s 217(1) laid down a general prohibition against alteration of judgments by the subordinate courts. Section 217(2) was an excepting proviso to this prohibition by prescribing the limited circumstances as to when the subordinate courts could alter or review their judgments. The entire section did not apply to the High Court at all.(4)     In s 217(2), ‘any other mistakes’ meant more than clerical mistakes. In practical terms, the phrase ‘rises for the day’ in s 217(2) meant when the working day for the court had ended. This purposive construction afforded the judge a realistic opportunity to know of and correct any non-clerical mistake in the judgment without unduly offending the principle of finality. The limited time period within which a non-clerical mistake might be rectified ensured that the accused would not have suffered any real detriment. For the sake of prudence, the accused or his counsel should be present to avoid any allegation of prejudice or impropriety.(5)    The High Court in its appellate jurisdiction must necessarily have whatever powers the lower courts possessed. The powers conferred on the lower courts by s 217 must, by implication, have also been available to the High Court in its appellate capacity. As such, this court had the requisite power to alter Chiaw’s sentence even though it was a substantive mistake, because it had not arisen for the day when the rectification was made.(6)    Even if the above view was wrong, the court was still empowered to substitute a six-month imprisonment term for a $80,000 fine. Since the court was not functus officio, it could alter the sentence. No real detriment or prejudice would have occurred in this case.

if accused not guilty of offence, court shall record an order of acquittal s. 180(n)(i) CPC if accused guilty, court shall record a conviction and pass sentence according to law after

hearing his criminal record if any and plea in mitigation: s. 180(n)(ii) CPC

Burden and standard of proof on Defence- • The burden of proof is on Defence to prove certain defences like insanity, alibi etc.

o s84 PC; intox s85; right of private defence s96; exceptions to murder – provocation, sudden fight, right of private defence (exceptions 1-6 of s300 of PC); alibi defence

- • The burden of proof is also on the Defence when they allege certain things.- • Generally, the burden of proof will be on the Prosecution to prove the elements of the charge beyond a

reasonable doubt.o Haw Tua Tau.

- Burden of proof is on the prosecution and remains with the prosecution throughout the trial:

Sim Ah Cheoh v PP [1991] 2 MLJ 353 - The appellants` cautioned statements were admitted at trial and based on these statements they were called

upon to enter their defence. The appellants remained silent and the trial judges found that they had `no alternative` but to find the appellants guilty. The argument was that there was a miscarriage of justice in that the trial judges failed to consider whether the prosecution had proved its case beyond a reasonable doubt; the test which the trial judges applied in deciding to call upon the appellants to enter on their defence is not the same as that in deliberating on the guilt of the appellants at the end of the trial.

- Held - In a criminal trial there were two critical stages at which the court had to make a decision. At the close of the prosecution case the court had to decide whether the prosecution had made out a case, which if unrebutted, would warrant a conviction of the accused. In deciding this question or issue, the court ought not to consider whether the prosecution had proved the guilt of the accused beyond a reasonable doubt. At that stage, what the court had to decide was whether the evidence adduced, which was not inherently incredible and which, if accepted as accurate, would establish each essential element in the alleged offence. If the court so decided it must call for the defence. At that stage the court must keep an open mind about the veracity

and accuracy of the evidence. After the defence had been called the court must proceed to examine the evidence adduced, assess the veracity and accuracy thereof and consider whether the prosecution had proved the guilt of the accused beyond a reasonable doubt.

Yeo See Koon Jimmy v PP [1994] 3 SLR 539 - The appellant Yeo was convicted of two charges of corruptly giving gratification to one Leong. The money

was allegedly given to Leong as a reward for administering a prohibited drug known as “Etorphine” to a racehorse. Yeo admitted giving money to Leong but claimed that it was the winnings from a bet he placed on Leong’s behalf and at Leong’s request. He denied having at any time handing Leong the etorphine to be administered to the racehorse. The prosecution’s case depended essentially on Leong’s. At the close of the trial below, the district judge rejected Yeo’s defence, and held Leong to be a credible witness. Yeo was convicted of both charges and fined $20,000 in respect of each charge. On appeal, it was argued that Leong’s evidence should not have been believed because it revealed significant inconsistencies.

- Held, allowing the appeal and ordering a refund of the fines paid by the appellant: (1)    The fact that the district judge disbelieved the appellant’s defence did not exempt the prosecution from having to prove the charges against Yeo beyond reasonable doubt. In discharging that burden, it was insufficient for them to point to the inadequacies in Yeo’s defence. On evidence, the court had grave doubts as to Leong’s credibility. (2)    Having regard to the serious inconsistencies in Leong’s evidence, the prosecution failed to prove the charges against Yeo beyond reasonable doubt.

- There is no obligation on the part of the defence to call any evidence: But note:

Mohamed Abdullah s/o Abdul Razak v PP [2000] 2 SLR 789. - Para 41 - What effect should be attributed by the court to the appellant’s failure to call material witnesses ?

In criminal matters, it is well established that where the Prosecution fails to call a material and essential witness, the court has the discretion to draw an adverse presumption against it under s 116 illustration (g) of the EA. In deciding whether it is appropriate to draw such an adverse presumption against the Prosecution, all the circumstances of the case will be considered, to see whether its failure to call that material witness left a gap in its case, or whether such failure constituted withholding of evidence from the court. In contrast, due to the allocation of the burden of proof in criminal matters, great caution should be exercised when applying s 116 illustration (g) EA to the defence’s failure to call a material witness. Whereas the Prosecution has the burden to prove its case beyond reasonable doubt, the defendant has no such burden to prove his innocence. Instead, all that he has to do, is to cast a reasonable doubt on the Prosecution’s case. Even if the defendant has failed to call a material witness, and there are gaps in his defence, the court must still consider whether he has nevertheless succeeded in casting a reasonable doubt on the Prosecution’s case. In the Malaysian cases of Illian v PP [1988] 1 MLJ 421 and Tan Foo Su v PP [1967] 2 MLJ 19, it was held that the failure of the Defence to call a witness should not be made subject to adverse comment by the court, and that s 114 illustration (g) of the Malaysian Evidence Act (in pari materia with Singapore’s s 116 illustration (g) EA) should not be invoked against the accused person.

- Para 42 - Therefore, it is clear that s 116 illustration (g) of the EA does not apply with the same vigour to the Defence as to the Prosecution. Otherwise, it would be tantamount to placing a duty on the Defence to call every material witness, and to prove the defendant’s innocence. When faced with a situation where the Defence has failed to call a material witness, the court should bear in mind that such failure on the part of the Defence does not add anything to the Prosecution’s case, in that it does not operate to raise any presumption which would help the Prosecution to prove its case beyond reasonable doubt when it has otherwise failed to do so. Instead, the Defence’s failure to call a material witness will only affect its own ability to cast a reasonable doubt on the Prosecution’s case. Section 116 illustration (g) of the EA does not change this fundamental principle. In every case, the court will ask, in view of all the facts and evidence before it, whether the Defence has succeeded in casting a reasonable doubt on the Prosecution’s case despite its failure to call a material witness.

- Para 43 - In Choo Chang Teik v PP [1991] 3 MLJ 423, the Supreme Court of Malaysia distinguished the previous cases of Illian v PP and Tan Foo Su v PP, and drew an adverse inference against the accused under s 114 illustration (g) of the Malaysian Evidence Act. Mohamed Yusoff SCJ, delivering the judgment of the court, stated that where the Prosecution had made out a complete case against the accused person, and had adduced rebuttal evidence against the accused’s evidence, and the case disclosed that there was evidence that could be produced by the accused to negate the charge against him, then the natural conclusion flowing from the accused’s failure to offer such evidence was that the evidence, if produced, instead of rebutting would sustain the charge. In my view, this was really another way of saying that the Defence had failed to cast a reasonable doubt on the Prosecution’s case. Section 114 illustration (g) of the Malaysian Evidence

Act was simply used by the Malaysian Supreme Court to draw the “natural conclusion”, from the facts of that case, which ordinary prudence required them to draw.

- Para 44 - Thus, when the Singapore court is faced with a situation where the Prosecution has made out a complete case against the defendant, or has adduced rebuttal evidence against the Defence, and the case discloses that the Defence has failed to call a material witness, s 116(g) of the EA merely allows the court, where appropriate, to draw the natural conclusion that the evidence which could have been adduced but was not would have been unfavourable to the defendant. If such a natural conclusion can indeed be drawn, then it would go towards the court’s consideration of whether the Defence has cast a reasonable doubt on the Prosecution’s case. However, in deciding whether it is appropriate to draw this conclusion, all the facts and circumstances of the case will be considered. For example, if the witness could not be located despite reasonable efforts, no such “natural conclusion” can be drawn.

- Sarjit Singh Sarpati v PP [2005] 1 SLR 638,FactsIn the court below, Sarjit Singh Rapati (“Sarjit”) was convicted together with one Paramjit of the offences of extortion, wrongful confinement and false impersonation. The judge found that the two men had assumed the guise of immigration officers to inspect the work permit of one Faruq, wrongfully confined Faruq in a motor vehicle, and had extorted money from one Sharful by intentionally putting him in fear that they would continue to keep Faruq in wrongful confinement. The judge sentenced Sarjit and Paramjit to 36 months’ imprisonment and six strokes of the cane for the extortion offence, four months’ imprisonment for the wrongful confinement offence and four months’ imprisonment for the false impersonation offence. The judge ordered the imprisonment for the extortion and wrongful confinement offences to run consecutively.Sargit appealed against his conviction and sentence. In so far as his appeal against conviction was concerned, Sarjit argued that: (a) there was no evidence that he and Paramjit had put Sharful in fear that they would continue to keep Faruq in wrongful confinement; (b) the judge had erred in finding that it was not necessary for the Prosecution to call the investigating officer (“the IO”) as a rebuttal witness; (c) Sharful had concocted the allegation that he and Paramjit had identified themselves as immigration officers; (d) the judge had failed to take into account Sarjit’s testimony that he had identified himself as a security officer or a security boss; and (e) that the extortion charge should be substituted with a chargeof corruption under s 5(a) of the Prevention of Corruption Act (Cap 241,1993 Rev Ed).Held, dismissing the appeal against conviction, allowing the appeal against sentence in part and reducing Paramjit’s sentence on the court’s own motion:(1)     Although an appellate judge was as competent as any trial judge to draw the necessary inferences of fact from the circumstances of the case, there had to be strong objective facts that weighed so strongly against the decision of the trial judge that intervention on appeal was required: at [20] and [21].(2)     To support the offence of extortion, Sarjit and Paramjit must have induced Sharful to experience the fear specifically contemplated by the charge. It was not sufficient that he might have experienced some other fear: at [23].(3)     The evidence showed that Sarjit and Paramjit had intentionally put Sharful in fear that they would not release Faruq unless money was paid. While it may be true that neither Sarjit nor Paramjit had personally threatened Sharful with Faruq’s continued confinement, it was not the law that the offence of extortion was not made out unless the accused conveyed the threat himself. Faruq represented the two men’s will and intent when he spoke to Sharful on the phone and informed him that the “immigration officers” would release him if he could pay them money. Further, Sharful agreed in cross-examination that he had been worried and afraid for Faruq and that he had wanted to secure Faruq’s release immediately:at [26], [28] and [29].(4)     It was not uncommon for an accused person to give the wrong version of events, to hold back certain facts or to embellish facts to downplay his role in the offence. Therefore, the mere fact that there were inconsistencies between Sarjit’s long statement and his testimony in court was not sufficient reason for the Prosecution to call the IO as a rebuttal witness: at [35].(5)     If the Defence had been seriously desirous of cross-examining the IO after the long statement had been admitted into evidence, it could easily have applied under s 180(l) or s 399 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) to recall him: at [37].(6)     Although the police officer who recorded the first information report did not testify that Sharful had told him that two men had claimed to be immigration officers, the discrepancy between Sharful’s and the officer’s testimonies were too minor to be material. Adequate allowance had to be given to human fallibility in observation, retention and recollection: at [40].

(7)     Although the first information report did not contain the allegation that two men had claimed to be immigration officers, the law did not require the report to contain the entire case for the Prosecution. Its main purpose was merely to give information of a cognisable offence to the police so as to set them in motion. In the present case, it was not fair to expect the report to contain as many details as one lodged after cool calculation because Sharful had lodged the report at a time when he was anxious to secure Faruq’s release: at [41] and [42].(8)     It would have made much more sense for Sarjit to portray himself as an immigration officer than as a security officer or security boss because that would have made it easier for him to get Faruq to submit to his direction: at [44].(9)     The court was not in a position to substitute the conviction for extortion with one under the Prevention of Corruption Act simply because it disagreed with the exercise of prosecutorial discretion: at [46] and [49].(10)   Having regard to the sentencing benchmarks established in case precedent, the sentence for the offence of extortion fell within the normal sentencing tariff. However, the sentences for the offences of wrongful confinement and false impersonation ought to be reduced to one month’s imprisonment each because they were manifestly excessive. The two sentences were to run concurrently but consecutively to the offence of extortion: at [54], [57] and [60].(11)   Since there was little difference between Sarjit’s and Paramjit’s levels of culpability, the court should invoke its powers of criminal revision to reduce Paramjit’s sentence to ensure parity of sentencing: at [64].

- Tan Wei Yi v PP [2005] 3 SLR 471FactsThe appellant was charged along with six other people, including his father, for voluntarily causing grievous hurt to the victim, alleged to be the illicit lover of the appellant’s mother. The appellant’s parents had divorced on the ground that the appellant’s mother had committed adultery with the victim.On 6 February 2003, the appellant and the other accused persons went to the appellant’s mother’s apartment to retrieve some furniture. There, the appellant’s father spotted the victim in the toilet that was situated in the kitchen of the apartment. The appellant’s father assaulted the victim in the toilet and thereafter dragged him into the kitchen, where two other accused persons, namely, the appellant’s uncles, further assaulted him.The victim claimed that the appellant too had participated in the episodes of assault, in particular the episode that took place in the toilet. The victim alleged that the appellant sat on him, pinned his hands down with his knees and punched him in the face. However, the appellant’s mother had informed the first police officer at the scene that the appellant and three other accused persons had not participated in the episodes of assault. She identified the appellant’s father and two uncles as the assailants.Nevertheless, the district judge relied solely on the victim’s evidence to convict the appellant on the charge. The appellant was sentenced to seven months’ imprisonment. He appealed against both conviction and sentence.Held, allowing the appeal against conviction and quashing the sentence:(1)    If the district judge had properly applied his mind to the evidence before him, he would have come to the conclusion that the Prosecution had not proven beyond a reasonable doubt that the appellant had indeed assaulted the victim. In this respect, it bore repeating that although the burden on the Prosecution was not to overcome every imaginable doubt in the case unless these doubts were real or reasonable, the Prosecution most certainly had the duty of proving every relevant ingredient of the charge beyond a reasonable doubt in order to establish its case:at [20] and [21].(2)    It was clear that the district judge relied solely on the victim’s testimony in convicting the appellant, despite the fact that the victim’s testimony was uncorroborated. Although there was no prohibition against relying on the evidence of one witness, there was an inherent danger in convicting an accused based only on the evidence of a single witness. The court had to be mindful of this danger and had to subject the evidence before it to careful scrutiny before arriving at a decision to convict an accused person on the basis of a sole witness’ testimony. In such circumstances, it was trite law that a conviction may be sustained on the testimony of one witness only if the court made a finding that the witness’ testimony was so compelling that a conviction could be based solely on it:at [22] and [23].(3)    In the present case, the district judge never made a finding as to how compelling the victim’s testimony in relation to the appellant was. The district judge’s failure to do so rang alarm bells as to whether he had actually exercised the appropriate level of caution when relying solely on the victim’s testimony to convict the appellant. Indeed, there was in this case a very real possibility that the district

judge convicted the appellant on the basis of the victim’s testimony without even realising that he had to find that the victim’s testimony was of such a compelling nature as to warrant the conviction. Whatever the possibilities, the fact remained that the law required the district judge to make this finding, and his not doing so was an error of law that could not be rectified: at [24] and [25].(4)    Alternatively, even if one were to argue that a specific finding, of whether the victim’s testimony was indeed compelling, was a purely procedural requirement, there were also no substantive findings in the district judge’s grounds of decision that indicated that the victim’s testimony was so compelling that it was safe to rely solely on it to convict the appellant. Further, on a close scrutiny of the notes of evidence, it was doubtful that the victim’s testimony was indeed so unusually compelling. This was because the victim’s evidence in relation to the appellant was based largely on assumptions, and was riddled with inconsistencies. In the event, even if the district judge had made the specific finding that the victim’s testimony in relation to the appellant was of a very compelling nature, it was clear that such a finding would have been incapable of being supported on the objective evidence: at [26], [27], [31] and [33].(5)     Of course an appellate court ought to be slow to overturn a trial judge’s findings of fact, especially where they hinged on the trial judge’s assessment of the credibility and veracity of witnesses. However, this was not an unassailable rule, and where an appellate court was convinced that a trial judge’s findings of fact were plainly wrong or against the weight of the evidence, the appellate court had to obviously intervene: at [34].(6)    Additionally, the district judge’s findings in relation to the appellant’s mother’s testimony left much to be desired. Her testimony actually created much doubt as to whether the appellant had indeed entered the toilet and assaulted the victim: at [37], [39], [41], [43] to [45].(7)    During the course of the hearing, the Deputy Public Prosecutor (“DPP”) submitted that the appellant must have taken part in the episode of assault that took place in the kitchen. As such, the DPP argued that the appellant should at least be convicted on a lesser charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 1985 Rev Ed). However, there was nothing conclusive in the notes of evidence that clearly indicated that the appellant did indeed assault the victim in the kitchen. In fact, the victim admitted that he had his eyes closed during this particular episode of assault, and was therefore unable to identify his assailants. Most importantly, the district judge himself found that the appellant did not play an active role in the assault that took place in the kitchen, and had only stood by as the appellant’s father and two uncles kicked the victim. That being the case, there was no evidence to find that the appellant assaulted the victim in the kitchen, let alone any reasons to convict the appellant on a reduced charge: at [47].(8)    Notably, the district judge held that since four of the accused persons had decided to abandon their respective appeals, this signified that all of the accused persons, including the appellant, had deliberately lied to the court. The simple fact that the respective appellants had withdrawn their appeals did not translate immediately into an acceptance by the appellants that they lied in their testimony. There could be multiple reasons why appellants withdrew their appeals, some of which could be based on practical considerations such as costs. Additionally, the fact that the other appellants had withdrawn their appeals did not then mean that the appellant must have therefore lied in his testimony. This was an illogical train of thought and an erroneous one at that: at [48] and [49].(9)    The DPP argued that since the appellant was, at all material times, following closely behind his father, this therefore meant that the appellant must have also followed his father into the toilet or at least taken part in the assault at some point in time. However, it did not mean that just because the appellant followed his father closely, he must have therefore assaulted the victim. The Prosecution’s burden was always to prove an accused person’s commission of an offence beyond a reasonable doubt. Where there was reasonable doubt as to whether an accused person had indeed committed the offence that he was charged with, the court would almost invariably have to record an acquittal on that charge. Likewise, in this case, there was a reasonable doubt as to whether the appellant assaulted the victim at any point in time, the very essence of the charge of voluntarily causing grievous hurt. That being the case, it was clear that the Prosecution had not proven its case against the appellant, and therefore, the appellant had to be acquitted on the charge: at [54] and [55].

- Unless it bears the burden to prove a general or a specific defence in the Penal Code. Section 107 of the CPC.

Burden of proving that case of accused comes within exceptions107. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code (Cap. 224), or within any special exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.

Comments: Even if the defendant has failed to call a material witness, and there are gaps in his defence, the court must still consider whether he has nevertheless succeeded in casting a reasonable doubt on the prosecution’s case. (Para. 41 of the a/m case)

Acquittal or Conviction If the accused is acquitted at the end of the trial in the Subordinate Courts, he shall be released forthwith

provided that there are no other charges pending against him: Section 180(n)(i) CPC. The court then invites the accused to step out of the dock signifying his release.

Procedure in summary trials.180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials: (n)(i) if the court finds the accused not guilty, the court shall record an order of acquittal, and shall, provided no other charge is pending against him, forthwith release the accused;

Section 192 of the CPC for trials in the High Court.

Finding and sentence.192. —(1) If the court finds the accused not guilty the court shall record an order of acquittal. (2) If the court finds the accused guilty or if a plea of guilty has been recorded and accepted the court shall pass sentence according to law.

If the accused is found guilty, the court records the conviction and before passing sentence (which may either be forthwith or on a later date), the court invites the defence to mitigate on behalf of the accused.

Mitigation- Plan beforehand – get bail amt ready – bailor ready – otherwise to spend night in dock- • Find out the background of the Accused.- • Financial impediment is no longer a strong mitigating factor.- • Mitigating factors must be relevant to Accused and offence, include medical evidence, if necessary.- Mitigation at the end of a trial is the same as a plea in mitigation following a plea of guilt. But restricted in

that you cannot say that your client is ‘remorseful and that he regrets his actions’.- If already taken instructions from the client before the commencement of the trial, can present the plea in

mitigation from the instructions obtained. But if not, then can ask the court for the case to be stood down and take client’s instructions on the mitigation from the dock or from the Witness Room.

- The objective of the plea in mitigation is to ensure that the sentence is passed by the court, which is appropriate both in the circumstances of the offence and the circumstances of the accused.

- See also Rules 73,78 and 80 Professional Conduct Rules.

Duty of defence counsel73. When defending a client on a criminal charge, an advocate and solicitor shall endeavour to protect the client from being convicted except by a competent Court and upon legal evidence sufficient to support a conviction for the offence with which the client is charged.

Disclosure of previous convictions78. Where a client who has a record of previous convictions is convicted of an offence and the prosecution — (a) does not put the record before the Court; (b) puts only part of the record before the Court; or (c) puts before the Court a record containing errors that favour the client, the advocate and solicitor acting for that client is under no duty to make any disclosure to the Court if the disclosure would be to his client’s detriment, except that the advocate and solicitor shall not lend himself to any assertion that the client has no convictions nor ask a prosecution witness whether there are previous convictions against the client in the hope of receiving a negative answer.

Mitigation plea

80. An advocate and solicitor shall not in a plea in mitigation make an allegation that is scandalous or calculated to vilify or insult any person.

Highlight the mitigating factors to the court. Some mitigating factors: Accused played a minor role Accused was provoked Committed at the spur of the moment Injuries sustained by the victim were minor Previous good character No loss or damage to property Age Family background Financial hardship of the accused is a mitigating factor only in very exceptional circumstances and the

fact that there has been no financial gain from the crime may be a legitimate mitigating factor but it carries little weight: Lai Oei Nui Jenny v PP [1993] 3 SLR 305.

Sentence

Duty of Counsel to ensure that the sentence passed by the court is not illegal or inappropriate (R v Brown [1996] Crim LR 134; R v Bruley [1996] Crim LR 913, R v McDonnell [1996] Crim LR 914)

Therefore must be ready to assist the court if called upon to do so (but see Rule 78 Professional Conduct Rules). See also Rule 81 of the Prof. Conduct Rules.

Disclosure of previous convictions78. Where a client who has a record of previous convictions is convicted of an offence and the prosecution — (a) does not put the record before the Court; (b) puts only part of the record before the Court; or (c) puts before the Court a record containing errors that favour the client, the advocate and solicitor acting for that client is under no duty to make any disclosure to the Court if the disclosure would be to his client’s detriment, except that the advocate and solicitor shall not lend himself to any assertion that the client has no convictions nor ask a prosecution witness whether there are previous convictions against the client in the hope of receiving a negative answer.

Must know the maximum penalty prescribed by law, whether a term of prison is mandatory, whether the offence includes a fine (discretionary or mandatory), whether the offence includes caning, whether the accused is above the age limit of 50 years – see Section 230-231 of the CPC.

Conviction for two or more offences punishable with caning.230. When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally punishable by caning the combined sentence of caning awarded by the court for any such offences shall not, anything in any Act to the contrary notwithstanding, exceed a total number of 24 strokes in the case of adults or 10 strokes in the case of youthful offenders. [229Execution of sentence of caning in certain cases forbidden.231. No sentence of caning shall be executed by instalments and none of the following persons shall be punishable with caning: (a) women; (b) males sentenced to death; (c) males whom the court considers to be more than 50 years of age.

Ratnam Alfred Christie v PP [2000] 1 SLR 467 The appellant was convicted under the Misuse of Drugs Act (Cap 185) and sentenced to five-and-a-half

years’ imprisonment and five strokes of the cane. The appellant was 49 years old at the time he was convicted and sentenced. The appellant’s appeal against conviction was heard and dismissed by the High Court. Upon the dismissal of the appeal, the appellant’s counsel informed the court that the appellant would be turning 50 years old the same day. It was submitted that the appellant was not liable to be caned as s 231 of the Criminal Procedure Code (Cap 68) (“CPC”) stated that no male ‘whom the court considers to be more than 50 years of age’ shall be ‘punishable with caning’. The issue was whether the appropriate time for

determining the age of the offender, and hence liability for caning, should be at the time of sentencing or the time of execution of the sentence.

Held, ordering the appellant to be exempted from caning: (1)    The marginal note accompanying s 231 of the CPC indicated very strongly that the appropriate time to

determine the age of the offender should be the time of execution of the sentence. Judicial authorities showed that marginal notes were accepted as part of the Act and may be referred to for assistance in interpreting the statute.

(2)    The exemption from caning provided for males above the age of 50 years was intended by Parliament to be a presumption in law that males of that age would be unfit to withstand such punishment. Since the time of assessment of an offender’s state of health was at the time of execution of the sentence, this meant that the proper time to determine when the offender had attained the age of 50 years would be the date on which the caning was to be carried out.

(3)    A court must bear in mind the age of the offender when sentencing him. If the offender was or above the age of 50 years, then no sentence of canning could be passed. Where the offender was below the age of 50 years, this meant that he was punishable with caning and such a sentence might be imposed by the court. However, any sentence of caning imposed would have to be carried out before the offender turned 50 years of age. The sentence could no longer be executed once the offender had reached that age. A sentence of caning would not be rendered improper or irregular simply because after the date of sentencing the offender attained the age of 50 years prior to the time of execution of the sentence.

The Court has a discretion to backdate a sentence of imprisonment: • Address Court on back-dating of sentence where necessary if Accused is not on bail to date of arrest

or remand. However, Court’s power to backdate jail sentence is discretionary. – if client x conducted himself reasonably, then will not backdate

Sinniah Pillay v PP [1992] 1 SLR 225 (CA) – - The appellant Sinniah was convicted of abetment and conspiracy to cause grievous hurt. He and four co-

conspirators threw formic acid on the victim which caused the latter’s death. The four co-conspirators pleaded guilty to abetment and conspiracy to cause hurt by using a corrosive substance under s 4 of the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65). Sinniah appealed, arguing that he did not intend to cause grievous hurt by means of a corrosive substance within s 326 of the Penal Code (Cap 224).

Held - the power of the court to backdate a sentence of imprisonment is a discretionary power. The trial judge decided not to backdate the custodial sentence of the appellant in this case. All the relevant facts were before the trial judge. The maximum sentence for the offence was life imprisonment and caning. The appellant was sentenced to ten years’ imprisonment. He escaped caning because he was then 62 years of age. His fellow conspirators had pleaded guilty and were sentenced to between six to ten years’ imprisonment and were given six to eight strokes of the cane. Their sentences were not backdated. The offence was a heinous one. Throwing formic acid on a person is a particularly vicious and painful way to injure him. In this case, the victim died.

Para 29       In the circumstances, it could not be shown that the trial judge had erred in not giving to the appellant a discount on the custodial sentence and not backdating it to the date of his arrest. Nor were we satisfied that the sentence without taking into account the backdating was manifestly excessive, having regard to the circumstances of the case.

Section 223 of the CPC.

Date of commencement of sentence.223. Subject to the provisions of this Code and of the Supreme Court of Judicature Act, every sentence of imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed, unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs.

There is nothing in Section 233 to the effect that backdating may only be allowed where the period spent in remand is less that or at least equal to the maximum custodial sentence prescribed for the offence: Mani Nedumaran & Anor v PP [1998] 1 SLR 411.

As a general rule, the period in which a convicted person has been out on bail is not taken into account in backdating a sentence: Tang Kin Seng v PP [1997] 1 SLR 46.

Similarly, the period in detention in a DRC is not given any allowance because such a centre is not gazetted as a prison: Cheong Seok Leng v PP [1988] SLR 565.

Appeal and other matters Duty to client does not end with the conviction and sentence - Rule 81 Professional Conduct Rules

Acting after conviction and sentence81. An advocate and solicitor shall continue to reasonably assist his client after conviction and sentence.

If the client was found guilty, consider appeal – do not tell the client that he must appeal – advise him on the various possibilities and let him make the decision.

If minimum sentence was given, do not appeal. When imprisonment is mandatory, must let him know (see Rule 78 – be ready to assist court and advise

client).- At close of Trial, if client is found guilty, advise client on merits of the case, both Prosecution and Defence

and shortcomings of Defence, if any.- • What is important is whether the Prosecution have proved their case beyond reasonable doubt.- • Prepare Notice of Appeal before sentence.- • Ask client to prepare twice the bail amount – the usual increase in bail after your client is convicted. - • Ask for payment by installments if fine is imposed or arrange to off-set cash bail against fine imposed.- If going to file notice of appeal, prepare client for it

DISCHARGE OF AN ACCUSED AT ANY STAGE OF SUMMARY TRIAL – SECTION 184(1) CPC- court cannot interfere with the prosecution’s decision not to prosecute an accused: Arjan Singh v PP

[1993] 2 SLR 271FactsThe appellant Arjan was charged with four charges of voluntarily causing grievous hurt, criminal trespass, mischief and public nuisance. Before the commencement of the trial, the prosecution successfully applied for him to be discharged to enable him to complete a course of treatment at a drug rehabilitation centre. Such a discharge did not amount to an acquittal. On appeal, Arjan argued that the discharge ought to amount to an acquittal and in the alternative asked that the matter be reinstated and disposed of expeditiously on the grounds that it was unjust that he should be left under indefinite apprehension of the recommencement of criminal proceedings.Held, dismissing the appeal:(1)    When the public prosecutor informed the court he would not further prosecute a defendant upon a charge, he did so in the exercise of the discretionary power vested in him by art 35(8) of the Constitution and s 336(1) of the Criminal Procedure Code (Cap 68) (CPC). The court could not interfere with this prosecutorial discretion and by virtue of s 184(1) of the CPC, the court had no discretion to stay all proceedings on that charge and as to the defendant’s discharge.(2)    The court’s discretion arose only under s 184(2) of the CPC, to direct whether or not such discharge shall amount to an acquittal. This discretion was unfettered in that it was subject only to the usual principles governing the exercise of judicial discretion and to the initial presumption, arising from the way s 184(2) was drafted, that in the ordinary case the order of discharge under s 184 did not amount to an acquittal.(3)    The indefinite apprehension of criminal proceedings being recommenced was not conclusive but simply a factor affecting the court’s exercise of discretion under s 184(2) to be weighed in the balance with all the other circumstances of the case.(4)     In this case, there was no reason to think that the prosecution intended to leave matters suspended indefinitely nor that it had any improper motive for making the application. Indeed, Arjan was undergoing a course of treatment which ought not to be disrupted. By virtue of the provisions of s 37 of the Misuse of Drugs Act (Cap 185), the period of treatment was finite. As such, the court did not see fit to interfere with the district judge’s order.

- PP’s right to apply for a stay of proceedings under s. 184 comes into existence upon the commencement of a summary trial: Loh Siang Piow & Anor v PP [1998] 2 SLR 384

FactsThe appellants were charged for obtaining a loan from a prisoner in return for showing him favour. The alleged offences occurred sometime in 1992 and the appellants were first charged in November 1996. The

prosecution successfully applied for a discharge of the appellants not amounting to an acquittal in August 1997, on the basis that they had lost contact with one of their material witnesses, Soh, since March 1997.On appeal, the appellants argued that a discharge not amounting to an acquittal would have been prejudicial to the first appellant, a Deputy Superintendent of Prisons, as he could have been interdicted indefinitely as no disciplinary proceedings could be taken against him under the Public Service (Disciplinary Proceedings) Regulations until the criminal proceedings had been determined.Held, dismissing the appeal:(1)    The court’s jurisdiction to grant a discharge under s 184 of the Criminal Procedure Code (Cap 68) only arose when the public prosecutor informed the court that he would not further prosecute the defendant upon the charge. When the prosecution invoked s 184(1), it ought to inform the court of all relevant matters as early as possible, eg, the difficulty of tracing a material witness and its intention as to the likelihood of future prosecution of the accused on the charge.(2)    On the facts, granting a discharge not amounting to an acquittal was appropriate.  Soh was a Singapore citizen and the loss of contact was fairly recent and he had not left the country.  It did not appear that the prosecution had intended to leave matters suspended indefinitely.(3)    The prejudice to the first appellant might not have been as harsh as it seemed as the Public Service (Disciplinary Proceedings) Regulations provided adequate protection and compensation to an officer who had been interdicted but subsequently cleared of fault. However, it would be prejudicial to public interest in allowing the appellants to be granted a discharge amounting to an acquittal, as public interest demanded that crimes be prosecuted and criminals brought to justice. This was more so if the charge was of a serious nature, as in this case.

- Court has no discretion as to the staying of all proceedings on a charge and as to the discharge of the defendant from and of the same under s. 184(1) (Ranjit Kaur d/o Awthar Singh v PP [1999] 1 SLR 836)

Facts

The appellant was charged with criminal breach of trust under s 408 of the Penal Code. She was alleged to have taken $26,188.50 from the school where she worked as a clerk. On the first day of the six-day trial, the prosecution tendered amended charges and also informed the court that two days preceding the hearing, new evidence that a much larger sum was involved had been found. The prosecution applied for an adjournment pending further investigations into the other amounts. The application was denied and the prosecution consequently applied under s 184 of the Criminal Procedure Code (Cap 68) (‘CPC’) for a discharge not amounting to an acquittal, which was granted. The appellant appealed to the High Court, seeking an acquittal.

Held, dismissing the appeal:

(1)    The offence in question was punishable by a maximum seven-year term of imprisonment. This fell within the criminal jurisdiction of the District Court. It was within the High Court’s appellate jurisdiction, having the same powers as the court below, to order an acquittal.

(2)    Applications for discharge under s 184(1) of the CPC were made at the prosecution’s discretion, as conferred by art 35(8) of the Constitution and by 335(1) of the CPC. Once such application was made, s 184(2) gave the court an unfettered discretion to direct, in appropriate circumstances that the discharge should amount to an acquittal.

(3)    In considering whether to direct an acquittal, the prosecution’s intentions were not a conclusive factor. The prosecution should indicate its intention to prosecute at some foreseeable point of time and substantiate reasons for its inability to proceed immediately. The court ought to be informed of all relevant matters as early as possible. It was necessary to balance the prosecution’s right to proceed at a later stage with the prejudice to the accused in staying proceedings for an indeterminate period.

(4)     In the present case, the accused received a discharge not amounting to an acquittal three months after she was charged. There was no unconscionable delay on the prosecution’s part. Further, no grounds were found to grant an acquittal.          

- When court is so informed, all proceedings on the charge against the accused shall be stayed and he shall be discharged from and of the same: s. 184(1)

- Such discharge shall not amount to an acquittal unless the court so directs: s. 184(2) CPC

- When the prosecution will not further prosecute the case, court may order a discharge amounting to acquittal (DATA) or a discharge not amounting to acquittal (DNATA or DNAQ)

- But, the prima facie position under s. 184(2) is in favour of a DNATA: TS Video and Laser Ote Ltd v Lim Chee Yong and another appeal [2002] 1 SLR 68

FactsThe appellants were charged for copyright infringement. At the trial, the respondent, who was prosecuting them with authorisation from the Public Prosecutor, applied for a discharge not amounting to an acquittal pursuant to s 184(2) of the Criminal Procedure Code (Cap 68) (‘the CPC’) as he could not procure the attendance of a key witness. The appellants argued that they were entitled to a discharge amounting to an acquittal.The judge granted the application on the following grounds :– (a) the charges were serious and on matters relating to public interest and public rights, (b) there were no improper motives behind the application, and (c) the delay in prosecution would not be unconscionable. The appellants appealed.Held, dismissing the appeal:Section 184(2) created an initial presumption in favour of a discharge not amounting to an acquittal. However, a judge had an unfettered discretion to grant, where appropriate, a discharge amounting to an acquittal. In the result, there was no reason to interfere with the judge’s decision as he had carefully considered all the relevant issues and competing interests before granting the application.

- Order of DNATA means that the accused can be tried again on the same offence without offending the doctrine of autrefois acquit enshrined: Art. 11 Constitution; s. 239 CPC

- Discretion whether to order DATA or DNATA must be exercised judicially, taking into consideration all relevant facts and factors placed before the court, including the intention of the prosecutor as to whether it intends to proceed against the accused on the charge in future: Goh Cheng Chuan v PP [1990] SLR 671

FactsThe accused Goh faced two charges. The charges were mentioned in the subordinate courts on several occasions before finally being set down for trial on 21 April 1980. On that date, prosecution proceeded on one of the charges and Goh was acquitted. The second charge was set down for mention on 21 May 1986 but was twice adjourned on the prosecution’s application as a material witness was not available. When the case came up for mention on 2 February 1987, the prosecution asked for a discharge not amounting to an acquittal under s 184 as steps were being taken to trace the missing witness and that the prosecution had every intention of proceeding with the charge. One of the complainants had since passed away. The defence argued that the court had a discretion to direct a discharge amounting to an acquittal and should do so in this case. The court ruled that it had no discretion in the matter and was bound to order as requested by the prosecution. Goh appealed. In the course of his judgment, the District Judge refused to follow a decision of the High Court on the ground that it was decided per incuriam.

Held, allowing the appeal:(1)    Section 184 of the Criminal Procedure Code (Cap 68) only came into effect if the prosecution decided not to further prosecute the accused.(2)    In ordinary cases the order of discharge under s 184 did not amount to an acquittal, but this was not because of any intention on the part of the prosecution but because of the wording of the section.(3)    Section 184 gave the court an unfettered discretion to direct in appropriate circumstances that the discharge should amount to an acquittal, but it had to be exercised judicially, taking into consideration all the relevant facts and factors placed before it. The prosecution’s future intentions were only one of the factors that the court should consider in deciding whether the discharge should amount to an acquittal or not. The decision whether to prosecute an accused on a charge and whether to continue it once started was vested solely in the Attorney General as the public prosecutor. But once instituted, the conduct of such proceedings was subject to the overall control of the court.(4)    Once the public prosecutor decided not to proceed further against the accused, he ought to inform the court of all the relevant matters. The court would then exercise its discretion considering the public interest in observing the right to proceed against the accused and the fairness to the accused person.(5)    It was not open to a court to invoke the per incuriam rule against a court of superior jurisdiction. The district court was bound by the High Court’s decision, even if it was per incuriam.

- Prosecution’s intention to proceed against the accused in future is not a conclusive factor: Ranjit Kaur d/o Awthar Singh v PP (2 above)

- Court has to consider both public interest Constitution - Protection against retrospective criminal laws and repeated trials11. —(1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed. (2) A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.CPC - Person once convicted or acquitted not to be tried again for offence on same facts.239. —(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 172 or for which he might have been convicted under section 173 or 174. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 170 (1).

(3) A person convicted of any offence constituted by any act causing consequences which together with that act constituted a different offence from that of which he was convicted may be afterwards tried for that different offence if the consequences had not happened or were not known to the court to have happened at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may notwithstanding the acquittal or conviction, be subsequently charged with and tried for any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged.

[238The dismissal of a complaint or the discharge of the accused is not an acquittal for the purposes of this section.

Illustrations(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged upon the same facts with theft as a servant or with theft simply or with criminal breach of trust. (b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with and tried for robbery. (c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide. (d) A is tried and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B. (e) A is charged and convicted of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts unless the case comes within subsection (3).

Sub Court Practice - 53. Citation of written judgments and secondary authorities Citation of written judgments (1) The neutral citation system (a) A neutral citation is a court-approved system of citation which is independent of the series of law reports or

other publications, and unique to each written judgment. (b) Each written judgment from a particular level of court is assigned a sequential number, starting from 1 at the

beginning of each calendar year. (2) Specific paragraph citations (a) Counsel will be required to make specific citations by referring to the paragraph number of the judgment, and

not to the page number of the judgment or report. (b) For consistency, square brackets will be used to denote paragraph numbers. The paragraph mark (¶) will no

longer be used. (3) Court designators

SGDC – Singapore District Court SGMC – Singapore Magistrates’ Court

SGJC – Singapore Juvenile Court SGSCT – Singapore Small Claims Tribunal

(4) Application of the neutral citation system

The application of the system is as follows:

(a) Cases reported in the Singapore Law Reports shall be cited using their Singapore Law Reports citations, in priority to their neutral citations.

(b) Unreported decisions shall be cited using their neutral citations. (5) Example and explanation

ABC Co Pte Ltd v XYZ Co Ltd [2003] SGDC 25, at [3], [8]. Year of the decision [2003] Level of Court SGDC (Singapore District Court) Sequential Number 25 (twenty-fifth written judgment rendered by the District Courts in 2003)

Paragraph Number(s) Paragraphs 3 and 8 of the judgment Citation of secondary authorities in court (6) Counsel are advised to be more circumspect in their use of secondary authorities such as textbooks, journals,

periodicals and other treatises. As far as possible, counsel should rely on primary authorities to support the proposition of law argued for; and

(7) If it necessary to cite secondary authorities, counsel should ensure that the material to be cited is directly relevant to the case before the Court. Counsel are also reminded of their duty to ensure that such material is not cited out of context. The following are specific guidelines for the citation of different types of secondary authorities:

(a) Textbooks that are generally recognised as leading textbooks in the relevant area of law may be readily cited to the Court.

(b) If counsel wish to cite academic articles in journals and periodicals in support of a particular proposition of law, they should ensure that they are citing a statement, rather than a critique, of the law. Citation of academic articles should be limited to those written by eminent authors of reputable standing. The articles should also have been published in established journals and periodicals.

(c) Legal opinions written by other counsel not having conduct of the case before the court should generally not be cited as authority. Such legal opinions are considerably less authoritative than academic articles, as the views expressed in these private opinions have not been subject to the rigorous scrutiny of editorship and public critique.

(8) Counsel’s attention is drawn to Order 59 Rule 8 of the Rules of Court which gives the Court the power to make an order for costs personally against errant advocates and solicitors, who have wasted or incurred costs unreasonably or improperly. The Court will not hesitate to invoke its powers under Order 59 Rule 8 of the Rules of Court in cases where costs have been wasted due to counsel’s indiscriminate citation of unnecessary and irrelevant secondary authorities.