Chua Boon Chye v Public Prosecutor

Andrew Phang Boon Leong JA (delivering the judgment of the court):

[1] This criminal reference was brought by Chua Boon Chye (“the Applicant”) to refer the following question of law of public interest to this court for determination pursuant to s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the Question”):

[2] The Applicant was convicted and sentenced to eight months’ imprisonment for one count of dishonestly receiving stolen property, namely, 105 metric tonnes of marine fuel oil (“MFO”), pursuant to s 411 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) in the District Court. The District Judge (“DJ”), in finding that the MFO was stolen, relied, inter alia, on evidence of a third party’s conviction for criminal breach of trust (“CBT”) for misappropriating MFO. The Applicant’s appeal against both conviction and sentence was dismissed by a High Court Judge (“the Judge”), who held that the DJ was right in admitting the evidence. The Applicant later filed a criminal motion to refer three questions of law of public interest purportedly arising from the Judge’s decision to this court. This court denied leave in respect of two questions, but granted leave to refer the Question. In this criminal reference, the Applicant contends that the third party’s conviction for CBT should not be admitted into evidence as proof that the MFO that he received was in fact stolen.

[3] The background facts relating to the Applicant’s charge have been set out in the decisions of the District Court and the High Court (see Public Prosecutor v Chua Boon Chye [2013] SGDC 441 (“Chua Boon Chye (DC)”) and Chua Boon Chye v Public Prosecutor [2014] SGHC 135 (“Chua Boon Chye (HC)”), respectively). We do not propose to repeat them in their entirety, save to highlight the facts that are germane to this criminal reference.

[4] Shankar s/o Balasubramaniam (“Shankar”) (the Prosecution’s first witness) was the operations executive of an MFO terminal operated by Chevron Singapore Pte Ltd (“Chevron”) located at No 210 Jalan Buroh (“the Terminal”). As part of his role, which included taking on the duty of shift superintendent, Shankar would track the movement of MFO at the Terminal. There were shore tanks in the Terminal. In the course of operations, minor discrepancies in shore tank readings would arise, which led to “gains” and “losses” in MFO. When MFO was pumped into vessels, for instance, there may be a variance between the reading on the shore tank and that on the vessel. The tolerance level for this variance was 0.5%. Any amount constituting gains (within this 0.5%) was retained at the Terminal. Shankar, as shift superintendent, was the custodian of these discrepancies. At the end of each shift, he had to record them in a log book and report to his superior, Tan Poo Lee.

[5] Shankar conspired with two petroleum surveyors, Remy bin Khaizan (“Remy”) (the Prosecution’s second witness) and Viknasvaran s/o Kumarasamy (“Viknasvaran”) (the Prosecution’s third witness), to siphon off and sell the gains of the MFO at the Terminal. As petroleum surveyors, Remy and Viknasvaran had to take measurements of the fuel in a barge before and after loading. In siphoning off MFO, their roles were as follows:

(a) Shankar identified the gains of MFO which had not been reported to Chevron.

(b) Shankar then informed Remy both of the quantity of the gains available, and of the vessels that were arriving at the terminal for loading.

(c) Remy then negotiated with the vessel’s owner or representative (such as the Applicant) for the sale of the illicit fuel.

(d) To conceal their wrongful acts, either Remy or Viknasvaran boarded the vessels and took measurements of the MFO before and after loading. The figures were adjusted such that the loading of the excess MFO would not be detected (for instance, by inflating the pre-loading figure).

(e) When the loading was completed, Shankar prepared the Certificate of Quantity – which also excluded the quantity of the excess fuel.

(f) The payments for the excess MFO were then made in Singapore dollars, in cash, and without any receipt.

[6] Shankar, Remy and Viknasvaran carried out their plan on 29 October 2009. Shankar was on duty as shift superintendent on that day. He identified 105 metric tonnes of MFO (gains) to sell and informed Remy accordingly. He also informed Remy that the MV Milos, a barge operated by Aegean Breeze Shipping Pte Ltd (“ABS”), was due at the Terminal to load 2,500 metric tonnes of MFO. Remy approached a broker, Hussein Ahmad bin Abdul Satar (“Hussein”) (the Prosecution’s fifth witness), to sell this excess MFO. The Applicant understood that the MFO came from the “black market” (according to his statement given to the Corrupt Practices Investigation Bureau dated 15 May 2008). They agreed on a price of $180 per metric tonne for the 105 metric tonnes (totalling $18,900). The Applicant then contacted a bunker clerk on board the MV Milos to expect an additional 105 metric tonnes of MFO.

[7] When the MV Milos berthed at the Terminal on 29 October 2007, the 105 metric tonnes of MFO were loaded onto the barge. Subsequently, the Applicant met Hussein at a hawker centre to make a cash payment of $18,900 from his company’s (Aegean Bunkering (Singapore) Pte Ltd (“AB”)) petty cash account.

[8] The Applicant was the general manager and director of AB. AB and ABS were related companies. AB was a wholly owned subsidiary of Aegean Marine Petroleum SA (“AM”), incorporated in Liberia. AM was in turn wholly owned by Aegean Marine Petroleum Network Inc (“AMPN”) which was incorporated in New York. AB was in the business of purchasing MFO. Once AB made the purchase, it would refer the operational aspects of delivery to ABS. ABS was wholly owned by Aegean Shipholdings Inc, a company registered in the Marshall Islands, which was in turn wholly owned by AMPN. ABS and Aegan Shipping Inc were part of the “operational arm” of AMPN, whereas AB and AM were part of the “trading arm”. For ease of reference, we illustrate this with the following diagram:

[9] The Applicant was arrested later and claimed trial in the District Court to the following charge (“the Charge”):

[10] For ease of reference, we set out the relevant portion of s 411 of the PC, which reads as follows:

[11] The phrase “stolen property” in s 411 of the PC is in turn defined in s 410 of the PC, which reads as follows:

[12] After a 29 day trial, the DJ convicted the Applicant of the charge on 13 November 2013. The DJ accepted the Prosecution’s case, namely, that the MFO stated in the Charge was in fact stolen property, the Applicant had reason to believe it was stolen, and that he had indeed received it. The DJ, in finding that the MFO stated in the Charge was stolen, relied on two grounds. First, Shankar’s oral testimony to the effect that he conspired with Remy and Viknasvaran to siphon off the MFO stated in the Charge. Secondly, Shankar’s earlier charges for CBT for siphoning oil to various barges (including the MV Milos). Shankar pleaded guilty, but the charge involving MV Milos was in fact one that was taken into consideration for the purpose of sentencing (see Chua Boon Chye (DC) at [21]).

[13] The Applicant then appealed against both the conviction and sentence imposed by the DJ vide Magistrate’s Appeal No 294 of 2013 in the High Court. In the Magistrate’s Appeal, the Applicant argued that the DJ had erred in finding that the MFO in the Charge was “stolen property”. The Prosecution contended that the MFO in the Charge was “stolen property”, and reiterated the same two reasons given by the DJ in making this finding as outlined in the preceding paragraph.

[14] The Judge held, inter alia, that the DJ was right in admitting that evidence and agreed that the MFO in the Charge was “stolen property” (see Chua Boon Chye (HC) at [22]). Accordingly, the Judge rejected the Applicant’s arguments and dismissed the Applicant’s appeal on 15 July 2014.

[15] The Applicant then filed Criminal Motion No 59 of 2014 for leave to refer three questions of law of public interest purportedly arising from the High Court decision to this court. On 3 October 2014, this court granted leave to refer the Question as stated at [1] of this judgment.

[16] The parties have cited s 45A of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”) as the relevant statutory provision governing the admissibility of prior conviction(s) in later proceedings. This provision (which we shall refer to simply as “s 45A”) reads as follows:

[17] Mr Sant Singh SC (“Mr Singh”), counsel for the Applicant, argued that the Question should be answered in the negative – s 45A does not permit evidence of a third party’s prior conviction to be adduced in subsequent criminal proceedings. This is because:

(a) Section 45A has to be read together with s 45 of the EA (“s 45”), the latter of which (in particular, Illustration (b) to s 45) forbids the admission of a third party’s prior conviction in subsequent criminal proceedings to prove a fact in issue;

(b) The Singapore Parliament expressly confined s 45A’s application to subsequent civil (and not criminal) proceedings only;

(c) The local cases provide that s 45A applies only in subsequent civil proceedings; and

(d) Permitting third party convictions to be adduced as evidence in subsequent criminal proceedings poses risks to a fair trial.

[18] Mr Andre Jumabhoy (“Mr Jumabhoy”) appeared for the Public Prosecutor (“the Respondent”) and argued that the Question should be answered in the affirmative because s 45A permits evidence of a third party’s prior conviction to be adduced in subsequent criminal (and not just civil) proceedings. Mr Jumabhoy submitted that his position was supported not only by the plain language of s 45A but also by the relevant legislative material, which we deal with in detail below.

[19] It would be apposite, at this juncture, to set out the Question once again, as follows:

[20] The Question is simple only in its form and belies a number of difficult issues to which our attention now turns. The crux of the answer to the Question lies in the purpose as well as meaning of s 45A (which has been reproduced above at [16]).

[21] It is clear that, under Singapore law, evidence of a prior conviction is admissible as evidence in subsequent civil proceedings pursuant to s 45A (see for example, Boldward Enterprises Pte Ltd v Hitachi Zosen Singapore Limited [1997] SGHC 186 (“Boldward”); Ong Bee Nah v Won Siew Wan (Yong Tian Choy, third party) [2005] 2 SLR(R) 455 (“Ong Bee Nah”); Ari bin Abdullah v Ong Chwee Siew [2007] SGHC 15 (“Ari bin Abdullah”); DBS Bank Ltd v Yamazaki Mazak Singapore Pte Ltd and Another [2008] SGHC 181 (“Yamazaki”); and Kim Anseok and another (personal representatives of the estate of Kim Miseon, deceased) v Shi Sool Hee [2010] SGHC 124 (“Kim Anseok”)). But there is uncertainty as to whether prior convictions of third parties are admissible in later criminal proceedings pursuant to that same provision. In particular, there are two conflicting decisions of the Singapore High Court in which, ironically perhaps, the observations expressed in each were obiter dicta. These are the decisions in Public Prosecutor v Heah Lian Khin [2000] 2 SLR(R) 745 (“Heah Lian Khin”) and Ong Bee Nah.

[22] Heah Lian Khin was a case primarily concerned with the use of previous inconsistent or contradictory statements at trial pursuant to s 147 of the EA. But the court in that case relied on the speech made by the then Minister for Law, Prof S Jayakumar, during the second reading of the Evidence (Amendment) Bill (Bill No 45 of 1995) (“the Bill”), which introduced s 45A, in holding that s 45A only permits a previous conviction of a third party to be admitted as evidence in later civil but not criminal proceedings. More will be said of the speech made by the Minister later in the judgment (see below at [51]). After quoting the Minister’s speech, the court held as follows (at [89]):

[23] The court in Ong Bee Nah appeared to doubt the position taken in Heah Lian Khin in relation to s 45A, and sought to restrict it. The court observed that the sentence “[i]t did not create an avenue for the admission of a previous conviction of a person as substantive evidence against an accomplice in subsequent criminal proceedings” in [89] of Heah Lian Khin should be read in the context of the specific facts of that case. After setting out [89] of Heah Lian Khin, the court observed as follows (see Ong Bee Nah at [61]):

[24] Even though the above observations by the court in Ong Bee Nah (as quoted in the preceding paragraph) are, strictly speaking, obiter dicta as that case concerned an issue of admitting a defendant’s earlier conviction as evidence against her in civil proceedings, they are nonetheless significant as there is now uncertainty about the scope of s 45A, and whether that provision permits the admission of a third party conviction against an accused. Indeed, Prof Jeffrey Pinsler SC in Evidence and the Litigation Process (LexisNexis, 4th Ed, 2013) (“Evidence and the Litigation Process”) at para 7.029 had this to say:

[25] However, as both Heah Lian Khin and Ong Bee Nah do not analyse in any detail the specific issues which arise from an interpretation of s 45A both in itself as well as in relation to other relevant provisions of the EA (in particular, s 45 thereof), it might be apposite to commence our analysis with the analysis of s 45A itself – bearing in mind both parties’ submissions which have been set out briefly above (at [17] and [18] of this judgment).

[26] In our view, the first port of call must be the actual language of the relevant provision itself – in this case, s 45A. The language of s 45A (in particular, s 45A(1)) is general inasmuch as it draws no distinction between civil proceedings on the one hand and criminal proceedings on the other. Indeed, if s 45A had been intended by the Singapore Parliament to apply only to civil proceedings, one would have expected the provision itself to have stated as much. It should also be borne in mind that – unless expressly stated otherwise (such as is the case in s 23(1) of the EA, as Mr Jumabhoy pointed out) – the EA applies to both civil as well as criminal proceedings. That this is the case is in fact made clear in s 2(1) of the EA itself, which reads as follows:

Parts I, II and III form the main bulk of the provisions in the EA. Part IV, the only remaining part in the EA with just seven sections (ss 170 to 176), deals with the law relating to banker’s books, and is not relevant for the purposes of this criminal reference.

[27] Section 23(1) is one example of a provision in the EA that expressly makes clear that it only applies to civil (and not criminal proceedings), and states as follows:

[28] However, in addition to the plain language as well as context of s 45A, it should be borne in mind that this particular provision had its source in, inter alia, the relevant United Kingdom (“UK”) legislation (see also below at [34]). Indeed, the root cause of the relevant UK legislation lay in the problematic rule laid down at common law in the English decision of Hollington v F Hewthorn and Company, Limited, and another [1943] 1 KB 587 (“Hollington”) which had held that a conviction for a criminal offence is inadmissible in subsequent civil proceedings as evidence of the fact that the person convicted committed the offence in question.

[29] In Hollington, the defendant was the driver of a vehicle which was involved in a collision with the plaintiff’s car, and which was being driven by the plaintiff’s son at the time. The only witnesses were the two drivers. The defendant was convicted of careless driving in a magistrate’s court and the plaintiff then commenced a civil action in respect of the damage to his vehicle. The plaintiff’s son died before the hearing and, being unable to produce direct evidence of the defendant’s negligence, the plaintiff sought to establish this by proof by the defendant’s conviction. Both the trial judge (Hilbery J) and the Court of Appeal rejected this evidence as inadmissible for this purpose because the evidence was seen as offending both the rules excluding hearsay and opinion evidence.

[30] The decision in Hollington has received trenchant criticism (see, for example, the Law Reform Committee, Fifteenth Report (The Rule in Hollington v Hewthorn) (Cmnd 3391, 1967) (“UK LRC 15th Report”); Michael Dean, “Law Reform Committee: Fifteenth Report on the Rule in Hollington v Hewthorn” (1968) 31 MLR 58; the note by A L Goodhart in (1943) 59 LQR 299; J A Coutts, “The Effect of A Criminal Judgment on a Civil Action” (1955) 18 MLR 231; and Cecil Wright, “Evidence – Admissibility of Criminal Convictions in Civil Actions – Hearsay” (1943) 21 Canadian Bar Rev 653; cf E W Hinton, “Judgment of Conviction, Effect in a Civil Case as Res Judicata or as Evidence” (1932) 27 Illinois L Rev 195). The UK LRC 15th Report at paras 3 and 4 sums up the criticism succinctly as follows:

[31] Indeed, the decision in Hollington has proven to be so unpopular that it has not been followed by the courts in Singapore (see Choo Michael v Loh Shak Mow [1993] 3 SLR(R) 834 and Ong Bee Nah) as well as those in other Commonwealth jurisdictions, such as New Zealand (Jorgensen v News Media (Auckland) Limited [1969] NZLR 961 (Court of Appeal)), Western Australia (see, for example, Mickelberg v The Director of the Perth Mint [1986] WAR 365 (Full Court of the Supreme Court)), Ontario (see, for example, Demeter v British Pacific Life Insurance Co (1983) 150 DLR (3d) 249 (Ontario High Court), affirmed by the Ontario Court of Appeal in (1984) 13 DLR (4th) 318) and Malaysia (see, for example, Ramanathan Chelliah v Penyunting, the Malay Mail and another [1998] 2 CLJ 691 (High Court, Kuala Lumpur); Anwar bin Ibrahim v Abdul Khalid [2001] 5 MLJ 48 (High Court, Kuala Lumpur) as well as the earlier decisions of Chock Kek Ling v Patt Hup Transport Co Ltd & ors [1966] 1 MLJ 120 , Lim Ah Toh v Ang Yau Chee & anor [1969] 2 MLJ 194 and Chang Chong Foo & anor v Shivanathan [1992] 2 MLJ 473 (Supreme Court, Kuala Lumpur)).

[32] Hollington has had a rather mixed reception in England itself. Lord Diplock in the House of Lords decision of Hunter v Chief Constable of the West Midlands Police and others [1982] AC 529 at 543 said that the decision in Hollington was “generally considered to have been wrongly decided”. He did not elaborate on this remark, which in any case was not necessary for that particular decision. Similarly, Lord Denning MR (who was coincidentally the plaintiff’s counsel in Hollington) noted in the English Court of Appeal decision of Goody v Odhams Press Ltd [1967] 1 QB 333 at 339 that he “thought that [Hollington] was wrong at the time” and that he “still [thought] it was wrong” (see also the learned Master of the Rolls’ comments in Barclays Bank Ltd v Cole [1967] 2 QB 738 at 743 and in McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283 at 319). On the other hand, Peter Gibson J in the English High Court decision of Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and others [1984] 1 WLR 271 at 280 said that Hollington still represented the common law.

[33] At this juncture, we should note that the rule in Hollington as stated above in [28] was, literally, the actual fact situation in Hollington itself. This is an important point because there are the further issues (canvassed by the Respondent in the present proceedings) as to whether or not the rule in Hollington also applied to the inadmissibility of a conviction for a criminal offence in subsequent criminal proceedings – a point to which we shall return in a moment.

[34] We note, first, that the UK Parliament abolished the application of the rule in Hollington in so far as subsequent civil proceedings were concerned via ss 11–13 of the Civil Evidence Act 1968 (c 64) (“the 1968 UK Act”). Approximately a decade and a half later, the UK Parliament abolished the application of the same rule to criminal proceedings as well via ss 73 and 74 of the Police and Criminal Evidence Act 1984 (c 60) (“the 1984 UK Act”). Australia has enacted legislation to abolish the rule in Hollington but only in relation to subsequent civil proceedings (see, for example, ss 91 and 92 of the Evidence Act 1995 (Cth); ss 78–82 of the Evidence Act 1977 (Queensland); s 34A of the Evidence Act 1929 (South Australia); and s 90(1) of the Evidence Act 1958 (Victoria)).

[35] For the present purposes, it suffices to note the version of ss 73 and 74 of the 1984 UK Act which existed at the time s 45A was enacted, and which we set out in full for ease of reference:

[36] This particular legislative background is, in our view, of significance because, when the Singapore Parliament introduced s 45A in 1996 (via the Evidence (Amendment) Act 1996 (No 8 of 1996)), we must assume that it was aware of the fact that the UK Parliament had abolished the rule in Hollington with regard to both civil and criminal proceedings. Indeed, the relevant legislative materials confirm that this is so – a point which we deal with in more detail below (at [56]–[61]). In our view, it is therefore not surprising that s 45A(1) is, as we have already noted, set out in general terms (ie, as applying to both civil and criminal proceedings). And, as also been noted above, if the Singapore Parliament had intended that s 45A abolish the rule in Hollington with regard only to civil proceedings, it would have made this clear in s 45A(1) itself. However, in fairness to the Applicant, a number of arguments were made to the contrary, and it is to those arguments that our attention now turns.

[37] Mr Singh argued that there is a distinction between the use of a judgment as evidence of its existence, or as evidence of the facts in it. He argued further that s 45A(1), whilst ostensibly applying to both civil as well as criminal proceedings, must nevertheless be read consistently with s 45, which reads as follows:

[38] In particular, Mr Singh submitted that s 45 was the governing provision and, in that regard, it was clear that a conviction was inadmissible in subsequent criminal proceedings except to the extent that it was adduced as proof of the existence of the conviction. He buttressed this argument by referring to Illustration (b) to s 45, which appeared to cover the fact situation in the present proceedings. Indeed, this particular illustration did appear to constitute powerful support for the Applicant’s argument. However, we are not, in the final analysis, persuaded by this particular argument. Let us elaborate.

[39] It is true that a distinction can be drawn between the use of a judgment as evidence of its existence and as evidence of the facts contained in it (see, for example, Khoo Boo Hooi v Robert Cecil Russell [1938] MLJ 51 at 56–57). It is also true that the effect of s 45 (which has its roots in s 43 of the Indian Evidence Act (Act No 1 of 1872)) is similar to the common law rule rejecting a criminal conviction as evidence of the facts on which it was based for both later civil and criminal proceedings (see Halsbury’s Laws of Singapore vol 10 (LexisNexis, 2013 Reissue) (“Halsbury’s Singapore vol 10”) at para 120.177). R v John Turner (1832) 1 Mood 347 (“Turner”) represented the common law position at the time s 43 of the Indian Evidence Act was enacted, which barred the use of third party convictions for later criminal proceedings. In Turner, the previous conviction of the thief was inadmissible as evidence that goods allegedly received were stolen. As a result, the accused was acquitted.

[40] The position as stated in the preceding paragraph is also supported by the relevant Indian cases (as discussed in commentaries such as Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, Ratanlal & Dhirajlal’s The Law of Evidence (LexisNexis, 22nd Ed, 2006) at pp 667–669; M C Sarkar et al, Sarkar’s Law of Evidence vol I (LexisNexis, 17th Ed Reprint, 2011) at pp 1129–1139; and Dr V Kesava Rao, Sir John Woodroffe & Syed Amir Ali’s Law of Evidence vol II (LexisNexis, 18th Ed, 2009)). For example, the Privy Council (on appeal from Calcutta, Bombay) in Kumar Gopika Raman v Atal Singh (1929) 31 Bom L R 734 at [23] observed as follows:

[41] Similarly, Sir George Rankin in the Indian Privy Council decision of Maharaja Sir Kesho Prasad Singh Bahadur v Bahuria Mt Bhagjogna Kuer (1937) AWR (PC) 459 at [15] observed:

[42] Zainal bin Kuning and others v Chan Sin Mian and another [1996] 2 SLR(R) 858, a decision of this court, is instructive for it applied s 45 (and Illustration (b) thereof), albeit by way of obiter dicta. The appellants sued the respondents in the High Court for false arrest and malicious prosecution. The first respondent was the police officer in charge of investigations against the accused while the second respondent (the Attorney-General) was joined as representing the government. The appellants had been arrested and charged with the murder of one Ang. Subsequently, one Sulaiman was charged and convicted of the murder instead. The appellants thus brought claims for: (a) false arrest; and (b) malicious prosecution. The appellants were not successful at trial and on appeal. In dismissing the appeal, this court held, inter alia, that the police acted in good faith in prosecuting the appellants as they had a reasonable case against them. Sulaiman was only arrested much later, and by then, the police had dropped charges against the appellants when it became clear that Sulaiman was the perpetrator. In any event, this court then observed that Sulaiman’s conviction for murder was not admissible as evidence that the appellants were not responsible for Ang’s murder pursuant to s 45 (and Illustration (b) thereof).

[43] However, a close reading of s 45 will reveal that that provision in fact provides expressly for possible exceptions which must, however, be provided for under the EA itself. This is to be located in s 45, in particular in the following words:

[44] Simply put, s 45A is precisely “some other provision of this Act”. Indeed, it was precisely because s 45 rejects a criminal conviction as evidence of the facts on which it was based for both later civil and criminal proceedings that it was necessary – slightly over one hundred years later – to introduce s 45A in order to abolish that rule. If so, then Illustration (b) to s 45 (which appears to embody the rule in Hollington, albeit as applied to subsequent criminal proceedings) ought to be read bearing this in mind (ie, that s 45A was introduced to abolish the rule in Hollington). Indeed, if there is an inconsistency between an illustration on the one hand and the provision of the main statute on the other (in this case, s 45A), then the latter must prevail. Put simply, s 45A was enacted much later and (more importantly) for a specific purpose that overrides or overturns the very premise upon which Illustration (b) to s 45 was originally based. In this regard, it is apposite to note the following comment in Halsbury’s Singapore vol 10 at para 120.177 which reads as follows:

[45] We are aware that the phrase “Without prejudice to [section 45]” at the beginning of s 45A(1) may give the impression that s 45 is in fact the governing provision, and that it takes precedence over s 45A. We do not think so. The Singapore Parliament could not have taken the trouble to enact s 45A only for it to be rendered superfluous.

[46] In passing, we have noted the following comment made in Halsbury’s Singapore vol 10 at para 120.177:

[47] The above passage above may give the impression that foreign convictions or acquittals are inadmissible in later criminal proceedings. This is not the case because s 290 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) (see also its predecessor in s 372 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed)) provides that they are admissible. We note also that besides permitting the admission of foreign convictions in later criminal proceedings, s 290 of the CPC (like s 45A) provides that local convictions are admissible in later criminal proceedings as well.

[48] For ease of reference, s 290 of the CPC is reproduced as follows:

[49] In this regard, it is apposite to note the decision of the Singapore High Court in Fricker Oliver v Public Prosecutor and another appeal and another matter [2011] 1 SLR 84, which dealt with an issue on the admission of a prior foreign conviction, even though the court did not cite s 290 of the CPC. In that case, the accused, a Swiss national, and his accomplice broke into the premises of SMRT Ltd’s Changi Depot (“the depot”) by cutting a hole in the fence surrounding the depot with a wire-cutter and spray-painted words on the sides of two train carriages. For their actions, the accused was charged with committing the offences of vandalism under the Vandalism Act (Cap 341, 1985 Rev Ed) and entering a protected place under the Protected Areas and Protected Places Act (Cap 256, 1985 Rev Ed) in furtherance of a common intention. The accused pleaded guilty to those charges before the district judge and agreed to have a second charge of vandalism in respect of the cutting of the fence taken into account for the purposes of sentencing. The district judge convicted and sentenced the accused to three months’ imprisonment and three strokes of the cane for the vandalism charge and two months’ imprisonment for the trespass charge, which sentences were to run consecutively. The prosecution and defence appealed against sentence, and the prosecution also filed a criminal motion to admit additional evidence of a previous conviction of the accused in Switzerland by way of an “Extract from the Swiss Criminal Records Registry” (“the Swiss Extract”) to prove recidivism on the accused’s part. V K Rajah JA admitted the Swiss Extract, though he eventually held that he was not persuaded that the Swiss Extract, being devoid of information, constituted a reasonable basis for an inference of recidivism on the accused’s part.

[50] To conclude this section, we were wholly unconvinced that s 45 (and Illustration (b) thereof) takes precedence over s 45A for the reasons given above. However, our analysis on the relationship between s 45 (and Illustration (b) thereof) and s 45A is not necessarily an end to the matter for, again in fairness to the Applicant, there is another (closely related) string to his legal bow – could it be argued that s 45A had abolished the rule in Hollington only with regard to subsequent civil (and not criminal) proceedings? Indeed, this brings us to the very parliamentary debates that preceded the enactment of s 45A itself.

[51] The actual parliamentary debates preceding the enactment of s 45A are to be found in the following statement by Prof Jayakumar during the second reading of the Bill (see Singapore Parliamentary Debates, Official Report (18 January 1996) vol 65 at col 455):

[53] Like Halsbury’s Singapore vol 10, the CLRC noted Turner as one case that demonstrates that the principle in Hollington applies to criminal proceedings as well. Since Turner, and after the CLRC 11th Report was published, there have been at least two cases (both from the English Court of Appeal) that show that the principle in Hollington also applies equally to criminal proceedings, even though these same cases do not cite Hollington expressly. One such case is R v Mark Lee Spinks [1982] 1 All ER 587. In that case, the accused stood trial for assisting a third party conceal a knife used in a stabbing with the intent to impede the apprehension or prosecution of “a person who had committed an arrestable offence”, namely, the third party. The third party was convicted in separate proceedings for wounding with intent to do grievous bodily harm, which was an arrestable offence. The court held that the prosecution could not rely on the third party’s earlier conviction as evidence that he had committed the arrestable offence of wounding. Since there was no other admissible evidence that the third party had committed such an offence, the accused’s conviction was quashed. Similarly, in R v Hassan [1970] 1 QB 423, a woman’s conviction for prostitution was inadmissible as evidence of her prostitution at the trial of a man charged with living off her earnings. As a result, that man was acquitted.

[54] We are of the view that it is reasonable to assume that the draftsperson as well as the Singapore Parliament was aware of the legal position (including the relevant case law) in relation to the rule in Hollington – in particular, that that rule also applied to subsequent criminal proceedings as well. Indeed, Turner, Spinks and Hassan (which we have referred to in the preceding paragraph) were handed down well before s 45A was introduced by the Singapore Parliament. We have also noted above (at [36]) that we can assume that the Singapore Parliament was also aware that the UK Parliament had already abolished the rule in Hollington with respect to both civil as well as criminal proceedings in 1968 and 1984, respectively – a point which is, in fact, confirmed by the relevant legislative materials (see below at [56]–[ 62]). All this points, in our view, towards the conclusion that the Singapore Parliament had intended s 45A to abolish the rule in Hollington with regard to both civil as well as criminal proceedings.

[55] But what, then, of Prof Jayakumar’s reference (above at [51]) to Hollington in the context of (ostensibly only) civil proceedings? As already explained above (at [52]), it is entirely possible that this was a reference to the specific facts as well as holding in Hollington itself. In any event, what was stated in the relevant parliamentary debates is not inconsistent with an interpretation which holds that s 45A applies to both civil as well as criminal proceedings. Most importantly, however, there are other related materials which help to resolve the matter in a definitive manner – to which we now turn.

[56] The first is, as the Respondent has submitted, to be found in the Explanatory Statement to the Bill. The material part reads as follows:

[57] The reference in the extract just quoted in the preceding paragraph is a general one, suggesting that s 45A applies to all types of proceedings, whether civil or criminal in nature. This is also consistent with the possible explanation canvassed above to the effect that Prof Jayakumar was referring more specifically to the actual fact situation in Hollington itself during the second reading stage in the Singapore Parliament.

[58] Secondly (and perhaps even more significantly), the “Table of Derivations” found at the end of the Bill states that cl 4 of the Bill (which introduced s 45A) was derived from ss 73 and 74 of the 1984 UK Act (which, of course, was concerned with the abolition of the rule in Hollington in relation to subsequent criminal proceedings). Put simply, if there was any doubt as to whether or not s 45A was intended to apply to criminal proceedings, this lays all doubts to rest.

[59] At this juncture, we would also like to refer (in a related as well as confirmatory vein) to s 45A(7), which reads as follows:

[60] It is clear that s 45A(7) has been included only because s 45A itself could apply to criminal proceedings as well. Indeed, as already noted above (at [58]), s 45A was based on the 1984 UK Act and, in a related (and more specific) vein, s 45A(7) was (in turn) based on s 74(3) of the 1984 UK Act. The word “criminal” (as highlighted in bold italics in the quotation in the preceding paragraph) in s 45A(7) is not found in s 74(3) of the 1984 UK Act (see above at [35]), and it must have been specifically added in s 45A(7) to reinforce the point that s 45A applies to subsequent criminal proceedings as well.

[61] It is now appropriate (and, indeed, important) to draw the relevant threads together. It will be recalled that we mentioned that the first port of call ought to be the actual language of s 45A itself (see above at [26]). In this regard, we note (as Mr Jumabhoy also pointed out) that s 45A(1) tracks closely the language of s 11(1) of the 1968 UK Act, which reads (as it stood before s 45A was introduced):

[62] More significantly, Mr Jumabhoy also pointed out that, unlike s 11(1) of the 1968 UK Act, s 45A does not contain the phrase “any civil proceedings”. In our view, this is significant and is consistent with the point noted above (at [58]) to the effect that s 45A was derived from the relevant provisions of the 1984 UK Act (which applies to criminal proceedings). Put simply, s 45A was intended to cover both civil as well as criminal proceedings and, as the Singapore Parliament chose to draw from the relevant language of the 1968 UK Act instead of the 1984 UK Act, it had (necessarily) to delete the reference to the phrase “any civil proceedings” in s 11(1) of the 1968 UK Act.

[63] Before we proceed to answer the Question, we note that Mr Singh relied on several local decisions besides Heah Lian Khin (for example, Boldward, Ari bin Abdullah and Kim Anseok), and in particular, [21]–[22] of Yamazaki to argue that the rule in Hollington applies only to civil proceedings, which read as follows:

[64] Whilst it is true that Yamazaki, Boldward, Ari bin Abdullah and Kim Anseok did refer to the rule in Hollington in the context of subsequent civil proceedings, that was because those cases dealt with issues involving the use of s 45A in subsequent civil proceedings. It is therefore not surprising that those cases made no reference to the rule in Hollington as applied in later criminal proceedings.

[65] Mr Singh argued that third party convictions should not be admitted as evidence in subsequent criminal proceedings because:

(a) First, to do so poses risks to a fair trial. In particular, allowing third party convictions as evidence in later criminal proceedings would drive a significant inroad into the presumption of innocence. Indeed, Mr Singh had this to say in his written submissions:

(b) Secondly, the courts in the UK have struggled in applying s 74 of the 1984 UK Act.

[66] We do not agree with Mr Singh’s arguments for these reasons:

(a) First, while we recognise that there are potential risks to a fair trial, safeguards, which we will turn to (see below at [72]), can be put in place to ensure that the accused would not be unduly prejudiced.

(b) Secondly, we are of the view that Mr Singh’s argument that a “significant inroad” would be driven into the presumption of innocence to be exaggerated. The mere fact that a third party’s conviction is adduced as evidence does not detract from the fact that the prosecution still bears the burden of proof. It is also open to an accused to call on that third party for cross-examination if necessary.

(c) Thirdly, the mere fact that the UK courts have struggled in applying s 74 of the 1984 UK Act does not mean that third party convictions should be categorically excluded from admission in subsequent criminal proceedings. Indeed, the UK courts have not done so. In this regard, it may be useful to have regard to English cases on s 74, which we will turn to later in this judgment.

[67] As a preliminary matter, we first consider the phrase “relevant to any issue in the proceedings” [emphasis added] in s 45A(1) (and s 74(1) of the 1984 UK Act). We recognise that there have been calls for that phrase not to be read literally, such that the provision only permits third party convictions to be adduced as evidence in proving predicate offences. Predicate offences are those which are, in turn, elements of offences. A classic example of this is receipt of stolen property (such as the present case), where the predicate offence is that the property involved was stolen (see, for example, the English Court of Appeal decision of R v Pigram [1995] Crim L R 808). Indeed, this approach (in not reading the quoted phrase literally) finds some support in the following authorities:

(a) First, the decision of the English Court of Appeal in R v Peter Stephen O’Connor (1987) 85 Cr App Rep 298 (“O’Connor”). In that case, the accused was charged with conspiring with a man named Beck to obtain property by deception. The accused pleaded not guilty and claimed trial. Beck, on the other hand, pleaded guilty and evidence of that plea was admitted at the accused’s trial. On appeal it was submitted: (1) that s 74 of the 1984 UK Act did not permit evidence of Beck’s plea to be put before the jury; and (2) alternatively that even if the strict wording of s 74 did render the evidence admissible, then the judge ought to have excluded it on the ground that it would have an adverse effect on the fairness of the proceedings pursuant to s 78 of the 1984 UK Act. Taylor J held as follows (at 302):

The court in O’Connor ultimately left the question of the scope of s 74 open, and did not decide if Beck’s plea of guilt was admissible pursuant to s 74. Instead, the court exercised its discretion to have Beck’s plea excluded on the ground that it would be unfair to have it admitted pursuant to s 78 (at pp 302–303):

(b) Secondly, the CLRC 11th Report, which suggests (at para 218) that s 74 was enacted for the specific purpose of allowing the prosecution prove that a predicate offence occurred, lest it be put through the inconvenience of having to prove the guilt of a person committing that predicate offence yet again. Para 218 of the CLRC 11th Report reads as follows:

The terms of clause 24 of the CLRC’s draft bill are in all material respects identical to those of s 74.

(c) Thirdly, the academic writings of Prof Roderick Munday (Proof of Guilt by Association and Fairness and Section 74 of PACE) (see above at [52]). The following passage at pp 242–243 of Proof of Guilt by Association sums up Prof Munday’s views best, and reads as follows:

(d) Fourthly, the following remark made by Watkins LJ in the English Court of Appeal decision of R v Hillier and Farrar (1993) 97 Cr App Rep 349 (at 355) bears noting:

Watkins LJ did not, however, elaborate on why he thought that this might be the case.

[68] With respect, we are unable to agree with the approach set out in the preceding paragraph. Not only is the holding in O’Connor as stated above obiter dicta, the English Court of Appeal in R v Robertson [1987] 1 QB 920 later made it clear that s 74 is not restricted to proving a predicate offence, and can be put to more extensive use. Lord Lane CJ held the following at 927:

[69] Furthermore, in our view, the CLRC 11th Report (and therefore Prof Munday’s arguments, which are anchored primarily on that report) are equivocal in that the CLRC did not categorically rule out the application of s 74 in other instances besides proving predicate offences.

[70] Having said that, we do recognise that the broad wording of s 45A might potentially pose significant risks to a fair trial. Examples of such risks include the following:

(a) First, in cases involving conspiracy where a third party’s conviction (or statements made by the third party) relates to the very charge also levelled against an accused. The accused is prejudiced because he is unable to cross-examine the third party (see, for example, I H Dennis, The Law of Evidence (Sweet & Maxwell, 4th Ed, 2010) at para 20-31). O’Connor is one such example, the facts of which have already been provided above (at [67(a)]). As mentioned, the court in that case exercised its discretion to exclude the evidence on the ground that it was deeply prejudicial to the accused.

(b) Secondly, the finder of fact may overlook the precise issue that the convictions were introduced to prove and convict the accused using some notion of “guilt by association” (see, for example, Phipson on Evidence (Hodge M Malek gen ed) (Sweet & Maxwell, 18th Ed, 2013) at para 43–93). This risk was present in R v Gary David Warner (1993) 96 Cr App Rep 324. The accused in that case was charged for supplying heroin and claimed trial. Police officers testified that they had observed up to 40 people per day visiting the accused’s house, and s 74(1) of the 1984 UK Act was relied on to establish that eight of the visitors had convictions for possession or supply of heroin. The English Court of Appeal rightly approved the admission of this evidence, but only to ground an inference as to the type of business which was going on at the house.

[71] Even though there are potential dangers, there is no need to categorically rule out the admission of third party convictions in subsequent criminal proceedings. Whether that evidence should be excluded depends on the particular circumstances of the case. It is clear at least, and as can be seen from the CLRC 11th Report, that third party convictions are admissible for proving predicate offences (such as the present case). Indeed, that is an express purpose for which s 74 of the 1984 UK Act (and s 45A) were enacted.

[72] For other cases where s 45A is used (other than for proving predicate offences), it may be useful to have regard to English cases on s 74 of the 1984 UK Act, and in this regard, we find the following propositions laid out by the English Court of Appeal in R v Boyson [1991] Crim L R 274 (“Boyson”) to be instructive:

(a) First, the conviction must be clearly relevant to an issue in the case. The court in Boyson disapproved of what it saw as a growing practice of allowing irrelevant, inadmissible, prejudicial or unfair evidence to be admitted simply on the grounds that it was convenient for the jury to have “the whole picture”.

(b) Secondly, the judge concerned should consider s 78 of the 1984 UK Act and direct his or her mind as to whether the probative value of the conviction outweighs the prejudicial value. Singapore has no statutory equivalent of s 78, but this court, in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205, has made it clear that the Singapore courts have a similar discretion under common law.

[73] It follows from the above analysis that s 45A was intended to apply to both civil as well as criminal proceedings and we therefore answer the Question posed by the Applicant in the affirmative.

[74] For completeness, we mention the various other arguments made by Mr Singh on the Applicant’s behalf before arriving at our decision with regard to the disposal of the present case:

(a) First, the prosecution did not make a formal application to adduce Shankar’s earlier charge into evidence in the District Court;

(b) Secondly, the DJ did not apply his mind to the weight to be attached to Shankar’s charge for CBT;

(c) Thirdly, the DJ was not permitted to rely on s 45A to admit Shankar’s oral testimony; and

(d) Fourthly, while Shankar was successfully prosecuted for CBT in siphoning oil to various barges (including the MV Milos), the charge involving the MV Milos was strictly speaking not a conviction, but was in fact a charge that was taken into consideration for the purpose of sentencing.

[75] Mr Singh also submitted a memorandum dated 20 April 2015 (“the memorandum”) containing a long list of references to the evidence as adduced in the District Court for the purpose of proving that there was a miscarriage of justice.

[76] We deal with the first to third arguments, as well as the memorandum, first. It is trite that criminal references should not be veiled appeals nor backdoor appeals (see for example, the decision of this court in Public Prosecutor v Lim Yong Soon Bernard [2015] SGCA 19 at [23] and [32]; and the decision of the Singapore High Court in M V Bakakrishnan v Public Prosecutor [1998] 2 SLR(R) 846 at [11]). Indeed, a criminal reference is only concerned with questions of law and not questions of fact. Regrettably, Mr Singh’s first to third arguments, and the memorandum, appear, with respect, to constitute (albeit in an unintended fashion) no more than a backdoor appeal on behalf of the Applicant. These arguments (and the references in the memorandum) were made directly in relation to the decision of the DJ and not that of the Judge’s, and indeed were not addressed in answering the Question at all. We are of the view, for reasons that follow, that there was, in any event, sufficient evidence to prove that the MFO in the Charge was stolen (see below at [78]).

[77] In so far as the fourth argument is concerned, we do recognise that the charge involving the MV Milos was strictly speaking not a conviction, but was in fact a charge that was taken into consideration for the purpose of sentencing (“TIC charge”). Be that as it may, it is clear that both the Judge and the DJ were cognisant of this. Indeed, the DJ noted in his written decision that the charge involving the MV Milos was in fact a TIC charge (see Chua Boon Chye (DC) at [21]). The Judge was also aware this (see Chua Boon Chye (HC) at [16]), although the following statement made by the Judge might have given the impression that he was not (see Chua Boon Chye (HC) at [18]):

[78] We note that, in any event, there is more than sufficient evidence to prove that the MFO in the charge was stolen. As mentioned earlier in [12] of this judgment, the DJ relied not only on Shankar’s charge in respect of the MV Milos, but also his oral testimony to the effect that he conspired with Remy and Viknasvaran to siphon off the MFO stated in the Charge.

[79] In the final analysis, it appears that this criminal reference (and the arguments not made directly in relation to the Question posed) merely constituted an attempt on the part of the Applicant to absolve himself of criminal liability arising from the Charge which, in our view, he was rightly convicted of.

[80] For the reasons given above, we answer the Question in the affirmative. The Applicant’s conviction and sentence imposed by the District Court, and as affirmed by the High Court, stands.