Public Prosecutor v Sentek Marine & Trading Pte Ltd and others [2024] SGHC 323

Introduction

In April 2017, the police commenced investigations into a series of offences linked to the misappropriation of gasoil from Shell Eastern Petroleum Pte Ltd’s (“Shell”) Pulau Bukom facility. The charges against the four respondents (collectively, the “Respondents”) arise out of these investigations.

Sentek Marine & Trading Pte Ltd (“Sentek”) faces 42 charges under s 47(3) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (the “CDSA”). The charges against Sentek allege that, between August 2014 and January 2018, Sentek had received on board its vessels Sentek 22 and Sentek 26 a total of about 118,131 mt of marine gasoil (valued at over US$56m) which had been dishonestly misappropriated from Shell, knowing that the marine gasoil was another person’s benefits from criminal conduct.

The Prosecution’s case is that the third respondent, Mr Ng Hock Teck (“Mr Ng”), an employee of Sentek at the material time, was first approached with the opportunity to make illegal purchases of marine gasoil. Mr Ng then approached the second respondent, Mr Pai Keng Pheng (“Mr Pai”), Sentek’s Managing Director (“MD”) at the material time, for approval. Mr Pai gave the requisite consent for Sentek to commit the offences. Furthermore, Mr Ng obtained the funds to pay for the marine gasoil from the fourth respondent, Ms Pai Guat Mooi, who was working as a cashier in Sentek at the time. Following this, Mr Ng’s role was largely in “operating things on the ground” in relation to the purchases and transfers of the marine gasoil onto Sentek’s vessels − in particular, by managing and giving instructions to the bunker clerks of Sentek 22 and Sentek 26 to load the marine gasoil onto those vessels.

Mr Ng faces 42 charges for offences under s 47(3) of the CDSA, and punishable under s 47(6)(a) of the CDSA read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”), for his role in abetting Sentek to carry out Sentek’s alleged offences under the CDSA.

Mr Pai faces 42 charges for offences under s 47(3) of the CDSA, read with s 59(1)(a) of the CDSA and punishable under s 47(6)(a) of the CDSA, for his role in providing the requisite consent to Sentek’s alleged offences under the CDSA.

Ms Pai Guat Mooi faces five charges for offences under s 47(3) of the CDSA, and punishable under s 47(6)(a) of the CDSA read with s 109 of the Penal Code for her role in providing funds for Sentek to carry out Sentek’s alleged offences under the CDSA.

In addition, the Prosecution contends that Mr Pai instructed and bribed three bunker clerks to leave Singapore, and remain outside of Singapore, so as to make them unavailable for police investigations. These allegations are the subject of 36 charges for offences punishable under s 5(b)(i) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (the “PCA”), which are read with s 29(a) of the PCA, s 37(1) of the PCA and/or s 124(4) of the Criminal Procedure Code 2010 (2012 Rev Ed) (the “CPC”).

Relevant to Mr Pai’s PCA charges, Ms Pai Guat Mooi is alleged to have abetted Mr Pai in passing the particular sums of money to the three bunker clerks and faces 12 charges for offences punishable under s 5(b)(i) of the PCA, which are read with s 29(a) of the PCA and s 124(4) of the CPC for her role in abetting Mr Pai’s offences under the PCA.

Lastly, Mr Pai is charged with ten charges under the Penal Code (the “Penal Code Charges”) for the obstruction of justice involving the three bunker clerks and one Wong Wai Seng (“Wong”). These comprise seven charges for offences punishable under s 204A of the Penal Code, and three charges for offences punishable under s 204A(b) of the Penal Code. These allege that Mr Pai intentionally obstructed the course of justice by:

(a) arranging for the three bunker clerks to leave and/or remain away from Singapore between January 2018 and January 2021, with the intention of making the three bunker clerks unavailable for investigations by the Singapore Police Force;

(b) instructing Wong, in or around January 2018, to tell the three bunker clerks to dispose of their respective handphones, knowing that those handphones were likely to contain evidence relevant to investigations by the Singapore Police Force into the suspected involvement of Sentek and others in the receipt of misappropriated marine gasoil from Shell's facility; and

(c) instructing Wong, sometime before November 2018, to lie to the Police that the three bunker clerks were deployed in the high seas and were uncontactable, with the intention of concealing their true location from the Police to obstruct investigations by the Singapore Police Force into the suspected involvement of Sentek and others in the receipt of misappropriated marine gasoil from Shell’s facility.

Issues

This is the Prosecution’s application for an order that the Respondents be jointly tried, on their respective charges, in one trial.

Section 132(1) of the CPC provides that every charge should be tried separately unless the exceptions in s 132(2) apply:

In the present case, the Prosecution relies on the exception in s 132(2)(a), in particular, ss 133, 134, 143 and 144. The four respondents contest this, and also argue that I should in any event exercise my discretion under s 146 of the CPC to order separate trials on the ground of prejudice.

The parties’ arguments engage three issues:

(a) Whether Mr Ng’s charges under the CDSA should be jointly tried with Sentek’s, Mr Pai’s and Ms Pai Guat Mooi’s charges under the CDSA (collectively, the “CDSA Charges”), at one trial.

(b) If so, whether Mr Pai’s and Ms Pai Guat Mooi’s charges under the PCA and the Penal Code should be jointly tried at one trial together with these CDSA Charges faced by the four respondents.

(c) Lastly, whether there is prejudice such that I should in any event order separate trials under s 146 of the CPC.

I deal with each issue in turn.

Should the CDSA Charges be tried together

The charges

Sentek, Mr Pai and Mr Ng’s CDSA Charges allege that, on multiple occasions between August 2014 and January 2018, at Pulau Bukom, Singapore, Sentek acquired property, namely, marine gasoil, which had been dishonestly misappropriated from Shell’s facility, by receiving the same on board marine vessels Sentek 22 and Sentek 26, when Sentek, Mr Pai and Mr Ng knew that the said marine gasoil was another person’s benefits from criminal conduct. Sentek, Mr Pai and Mr Ng each face 42 charges arising from the same set of events. As for Ms Pai Guat Mooi, her five CDSA charges also pertain to the same set of events, but in relation to a fewer number of occasions. Each of the charges under the CDSA faced by Mr Pai, Mr Ng and Ms Pai Guat Mooi correspond to charges against Sentek.

The parties for trial

The four respondents, save for Mr Ng, have no objection to the CDSA Charges being tried together. Mr Ng takes the view that he does not claim trial to the charges but should be permitted to plead guilty. Mr Ng maintained that his only point of contention is in respect of the quantity of misappropriated gasoil in the CDSA Charges, which should be resolved at an ancillary hearing after his plea of guilt, in the context of sentencing.

I do not agree. At law, a plea of guilt must signify the admission by the accused not only to all the ingredients of the offence, but also all the averments of the charge (Balasubramanian Palaniappa Vaiyapuri v Public Prosecutor [2002] 1 SLR(R) 138 at [21]):

The quantity of the misappropriated gasoil is a material fact in the CDSA Charges. By disputing the quantity of misappropriated gasoil, Mr Ng is also disputing the dollar value of the misappropriated gasoil, and by extension, the monetary value of the property and criminal benefits forming the subject matter of the CDSA Charges. It would therefore not be appropriate to accept a plea of guilt where this material particular of the charge and statement of facts is not agreed.

Joinder of the CDSA Charges

Having decided that Mr Ng must be heard in trial, the issue then arises whether the four respondents may be tried together regarding all their CDSA charges. Sentek, Mr Pai, Ms Pai Guat Mooi and the Prosecution agree that the Respondents should be jointly tried at one trial in respect of the CDSA Charges.

In my view s 133 permits each respondent’s CDSA charges to be tried together, and s 143(c) permits all the Respondents’ CDSA charges to be tried together. The sections provide as follows:

All the CDSA Charges are brought under s 47(3) of the CDSA. All arise out of the same set of facts alleged in Sentek’s CDSA charges. In short, all are “a part of a series of offences of the same or similar character”.

Should the CDSA, PCA and Penal Code Charges be tried together?

The charges

Amongst the Respondents, only Mr Pai and Ms Pai Guat Mooi have been charged with offences under the PCA (collectively, the “PCA Charges”): see [7]−[8]. None of the Respondents aside from Mr Pai has been charged under the Penal Code: see [9].

Parties’ positions

The Prosecution’s position is that all the charges, including the CDSA Charges, the PCA Charges and the Penal Code Charges, should be tried at one trial. First, Mr Pai’s CDSA, PCA and Penal Code Charges should be tried at one trial pursuant to s 134 as they constitute “one series of acts connected so as to form the same transaction”. Likewise, Ms Pai Guat Mooi’s CDSA and PCA Charges should be tried at one trial pursuant to s 134. This is because, where an offender commits a primary offence (the subject of the CDSA Charges) and subsequently commits a secondary offence to avoid and/or obstruct the investigations into the primary offence (the subject of the PCA and Penal Code Charges), jointly trying the primary and secondary offences is appropriate.

Further, the Prosecution is of the view that the PCA and Penal Code Charges should be tried together with Sentek’s and Mr Ng’s CDSA Charges. It relies on s 143(b) of the CPC which provides that “persons accused of different offences committed in the same transaction” may be jointly tried; or alternatively, s 144 of the CPC which allows the joinder of different offences arising from “the same series of acts”, whether or not those acts form the same transaction.

The Respondents object to a joint trial of the PCA and Penal Code Charges with the CDSA Charges. They argue that the requirements for a joint trial under the CPC have not been satisfied.

Sentek’s primary objection is that ss 143 and 144 of the CPC have not been satisfied because, while the CDSA Charges pertain to the period from August 2014 to January 2018, the PCA and Penal Code Charges concern the subsequent time period of February 2018 to January 2021. Sentek also did not have knowledge of, and was not involved in, the alleged events relating to the PCA and Penal Code Charges.

Mr Ng’s main objection is that “he has no nexus with the PCA and the [Penal Code] [C]harges”. He asserts that the offences were committed by different accused persons and “[did] not form part of a series, nor are [these charges] of similar character”.

As for Ms Pai Guat Mooi, she makes the following objections. First, the allegations in her CDSA Charges and PCA Charges do not form and/or are not part of a series of offences of the same or similar character, and are not so connected as to form the same transaction. This is for a few reasons: (a) the mischief that the relevant CDSA and PCA provisions seek to remedy are dissimilar; (b) the legal defences relevant to each provision are materially dissimilar; and (c) the witnesses likely to be called by Ms Pai Guat Mooi in the trials of the CDSA Charges and the PCA Charges do not overlap. Furthermore, the CDSA Charges and PCA Charges concern chronologically different time frames, with a three-month gap between the alleged offending behaviour in each category of charges. Ms Pai Guat Mooi reserved her position as to whether the PCA Charges and Penal Code Charges could be tried together, given that she was not charged with any offences under the Penal Code. At the same time she did not substantially advance the point that her PCA Charges should be tried separately from the Penal Code Charges, instead focusing her submissions on the argument that the CDSA Charges should be tried separately from the other charges.

Joinder of charges for each offender

Again the issue is first the joinder of charges concerning each offender. This is governed by s 134 of the CPC:

The section mandates that in order for an accused person’s charges to all be tried at the same trial, the offences giving rise to those charges must be “in one series of acts connected so as to form the same transaction”.

Parties do not dispute that the Court of Appeal’s guidance on the meaning of “in the same transaction” in Tse Po Chung Nathan and another v Public Prosecutor [1993] 1 SLR(R) 308 (“Nathan Tse”) applies. In Nathan Tse, two Hong Kong nationals arrived in Singapore on the same flight from Phuket and were arrested in the transit lounge. In holding that their joint trial on similar but separate drug importation charges was appropriate, the Court of Appeal pointed specifically to three extracts at [30]−[32]. I set out the paragraphs here in view of their relevance to various parts of this judgment:

Mr Pai attempts to distinguish the case of Iswaran from the present facts, arguing that the continuity of action in Iswaran arose from the fact that one offence related to the obtaining of the trip, and the other offence related to repayment for the same trip. Implicitly, he submits that continuity of action should be narrowly construed, and only be applicable to offences that are as tightly linked as those outlined in [29] of Iswaran, such as where an offence relating to the receipt of a gift is sought to be tried in the same trial as an offence relating to the repayment of that same gift.

I do not agree. The extracts referred to by the Court of Appeal in Nathan Tse from Ratanlal, Mitra and R v Assim reflect a much wider test, as do the facts of that case. The Court of Appeal there held (at [33]) that “[t]here was a common or identity of purpose” in the two separate acts of the two offenders.

Mr Pai further argues that there was no continuity in action because, unlike in other cases such as Iswaran, the acts alleged in the Penal Code and PCA Charges were not aimed at frustrating investigations into Mr Pai’s own offences, but Sentek’s offences instead. Furthermore, it was Sentek and not Mr Pai who received the gasoil. For instance, Mr Pai’s PCA Charges allege that:

Similarly, the Penal Code Charges allege that:

I disagree. The charges refer to “others” apart from Sentek, and these “others” must include any others aside from Sentek who participated in Sentek’s misappropriation, including Mr Pai in the event that he is guilty of his CDSA charges. Sentek is named because it is the entity whose vessels were in receipt of the misappropriated marine gasoil. Therefore, Mr Pai’s PCA and Penal Code Charges have continuity of action with his CDSA Charges, in that the former were allegedly committed to cover up his (and others’) involvement in the latter.

As for Sentek’s and Ms Pai’s argument regarding the gap in time between the acts alleged in the CDSA Charges and the PCA Charges, illus (d) to s 134 of the CPC reflects that offences need not be closely connected in time:

In illus (d), A’s false accusation occurred at two different points of time, consistent with the extract from Mitra (see [32] above), that the main test is unity of purpose. When a second offence is that of concealment or continuation of an earlier offence, some gap in time is necessarily involved.

In my view, all of Mr Pai’s charges are connected so as to form the same transaction. If the PCA and Penal Code Charges were committed, they were committed in order to frustrate investigations into the CDSA Charges. There is unity of purpose and continuity of action, and Mr Pai’s knowledge and intent is central to the various charges. While the PCA and Penal Code Charges are necessarily subsequent in time, there is sufficient proximity of time.

The same analysis applies to Ms Pai Guat Mooi’s PCA Charges concerning her abetment of Mr Pai and her CDSA Charges. There is unity of purpose and continuity of action; there is also sufficient proximity of time. Section 134 of the CPC is also satisfied in relation to Ms Pai Guat Mooi.

Joint trial of offenders involving all their offences

This leads then to the issue of the joint trial of the four offenders for all their various charges. For this, the Prosecution must satisfy either s 143 or s 144 of the CPC:

Is s 143 of the CPC satisfied?

Section 143 of the CPC reads as follows:

As a matter of statutory interpretation, the words “same transaction” ought to have the same meaning across ss 134 and 143 of the CPC. Counsel for Mr Pai argued at the hearing before me that this was not the case, because s 134 deals with offences that “form the same transaction”, while s 143 focuses on offences that were “in the same transaction”. Nevertheless, when submitting on s 134, counsel for Mr Pai referred to Nathan Tse, and stated that both the Prosecution and he agreed this was the leading case on s 134. In fact, the Court of Appeal in Nathan Tse was interpreting “in the same transaction”, and the test set out by the Court of Appeal was formulated in the context of the joinder of two offenders. The Court of Appeal was discussing s 176 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (the “Previous CPC”) (at [29]), the predecessor section to, and worded in the same terms as, s 143 of the CPC (the predecessor section to s 134 of the CPC is s 170 of the Previous CPC). In Iswaran, parties applied Nathan Tse to s 134 of the CPC, it was not alleged there that “form the same transaction” should not be interpreted in like vein to “in the same transaction”; nor was that point taken in the present case in relation to s 134 of the CPC.

I apply Nathan Tse to both s 134 and 143(b) of the CPC. In this context my views above on s 134 of the CPC remain relevant. In my judgment, the main difference between ss 134 and 143(b) of the CPC is that for s 143(b), there must be unity of purpose between the different offenders’ offences for s 143(b) to be satisfied, such that the various offences by the offenders form the “same transaction”. Thus, in Nathan Tse, the Court of Appeal found, at [33], “a common or identity of purpose in the separate acts of the appellants”, and also “unity of place and proximity of time” between them.

In the present case, illus (b) to s 143 suggests that different offenders who commit distinct offences, even if significantly different in severity or character, may still be jointly tried if those offences were committed in the same transaction:

“Same transaction” therefore may refer to multiple actors in a series of actions. They need only be linked by continuity of action and purpose. In the same way that the different offences of robbery and murder are linked by a common context, there is continuity of action and purpose between the CDSA offences and the PCA and Penal Code offences, which are aimed at concealing detection of the CDSA offences. In the same way that B, in illus (b), would not have contemplated that A would murder the victim, Sentek and Mr Ng need not have intended or be party to Mr Pai and Ms Pai Guat Mooi’s subsequent alleged offences. These illustrations dispose of Sentek’s argument that there is no continuity of purpose as Sentek did not have knowledge of the PCA and Penal Code offences (see [26] above). Continuity of action and unity of purpose may abide notwithstanding an absence of knowledge.

In this context I return to Mr Pai’s arguments made in the context of s 134 (see [36]), that his PCA and Penal Code charges were not sufficiently connected to his CDSA charges. To the contrary, these PCA and Penal Code charges as framed reflect the relation between Mr Pai’s PCA and Penal Code Charges, his CDSA charges and the CDSA charges of the other respondents.

I turn, then, to illus (c) and (d) to s 143 of the CPC, which the Prosecution also relies upon. Illustration (c) does not assist, as the “same transaction” criteria is mentioned as an assumption:

As for illus (d), it reads as follows:

In The Criminal Procedure Code of Singapore – Annotations and Commentary (Jennifer Marie & Mohamed Faizal Mohamed Abdul Kadir gen ed) (Academy Publishing, 2012) (“Marie & Faizal”) at para 7.154 state that “[i]llustration (d) is new and explains subsection (e)”. While there is no explanation for their attribution (aside from a reference in the Preface to the authors as members of the Review Committee whose proposals resulted in the 2010 CPC), the statement is logical as subsections (a) to (d) and (g) were derived from the former s 176 of the CPC, whereas both subsection (e) and illus (d) were new provisions. And the facts of illus (d) sit well with s 143(e):

Therefore, neither illus (c) or (d) have direct interpretive bearing on s 143(b) of the CPC. Notwithstanding, because legislative provisions are generally read in context, these illustrations and subsection (e) may be taken to be complementary to other illustrations and subsections under s 143 of the CPC, each being a specific provision under the s 143 chapeau. Seen in this light, they reflect that Parliament did envisage joinder under s 143 where accused’s persons’ offences contain different factual elements, so long as there is sufficient factual nexus, which may arise in different ways. In relation to s 143(b), that factual nexus is provided by continuity of action or purpose.

In holding that s 143(b) is satisfied, I distinguish the High Court decision of Loh Shak Mow and another v Public Prosecutor [1985−1986] SLR(R) 875 (“Loh Shak Mow”), raised by Sentek. In Loh Shak Mow, the first appellant was involved in a conspiracy with one Lee Kwong Fai to incorporate a company and use that company to cheat clients of various sums of money. Subsequently, the second appellant was invited to become a director and chairman of that company. The first and second appellants were jointly tried on various charges, with the first appellant being convicted of six charges of abetment of cheating under ss 420 and 109 of the Penal Code (Cap 103, 1970 Rev Ed) and 14 charges of criminal breach of trust under s 409 of the same act, and the second appellant being convicted of three charges of criminal breach of trust and one charge of dishonestly retaining stolen property in the possession of the company under s 411 of the same act.

The High Court held in Loh Shak Mow that the second appellant should not have been jointly tried with the first appellant and Lee Kwong Fai (at [190]). Sentek relies on Loh Shak Mow to argue that a joint trial should likewise not be ordered in the present case. However, each case turns on its own facts. In Loh Shak Mow, the High Court emphasised that the second appellant’s charges for criminal breach of trust were not dependent upon the cheating, or the conspiracy to cheat (at [186]). This is because, even if the company’s funds had been acquired perfectly legitimately (in other words, had there been no cheating), the second appellant, as director of the company, could still have been charged with criminal breach of trust for dishonestly misappropriating any part thereof (at [186]). The High Court in Loh Shak Mow was saying that the first appellant and second appellant’s offences were not related. In contrast, in the present case the PCA and Penal Code Charges are dependent upon the acts and events underlying the CDSA Charges; the various offences are related. For completeness, F A Chua J found in that case that prejudice had been occasioned because the trial judge did not consider the evidence admissible against each accused separately (at [187]). I deal with this related point of prejudice at a later stage of this judgment.

Is s 144 of the CPC satisfied?

In any event, s 144 extends the ability to join offenders wherever they are “connected”, beyond the limitations of s 143. It states:

Here, the relevant subsection is (a), where persons accused of different offences “arise from the same series of acts whether or not those acts form the same transaction” [emphasis added]. These words expressly extend the scope for joint trials. Section 144 was added in the 2010 revised edition of the CPC (see Marie & Faizal at para 07.157; and also para 17 of the Consultation Paper on the Criminal Procedure Code Bill, Ministry of Law (11 December 2008)).

Illustrations (a) to (f) specify offences that “arise from the same series of acts”. Illustration (a) makes clear the offenders may be charged with offences under different sections:

Illustration (b) makes clear there is no requirement that the subject matter of the various offences be identical, nor that the offences that the accused persons are charged with share all of their elements. There is also no strict requirement of temporal or even physical proximity. There is no indication of how soon the sale from B to C took place after the sale from A to B took place, or even that the sales took place in the same, or even nearby, locations:

This disposes of Sentek’s, Mr Pai’s and Ms Pai Guat Mooi’s arguments (see [27] and [29] above) that the CDSA Charges are not part of the same series of acts as the PCA and Penal Code Charges by virtue of their temporal separation.

Illustration (c) reveals that there is no requirement for unity of purpose or intent under s 144(a) of the CPC. Here, the code word came into the possession of B not through any deliberate intention by A to leak the code word, but through A’s failure to take reasonable care. There is no unity of purpose between A and B:

Illustrations (d) and (e) allow accused persons who participate in criminal activities in opposite or opposing capacities to be charged together:

In particular, illus (e) was expressly intended by Parliament to be wider in scope than s 176 of the Previous CPC. As Marie & Faizal observe at para 07.157, illustration (e) to s 144 of the CPC represents a change in position from illustration (d) to s 176 of the Previous CPC. From the Previous CPC:

From the CPC:

Whereas members of opposing factions in a riot could not be charged and tried jointly under s 176 of the Previous CPC (and by extension, s 143 of the CPC), members of opposing factions in a riot can now be charged and tried jointly under s 144 of the CPC.

Finally, illus (f) makes clear there is no requirement of communication between all the offenders, for the court to find that the offences arise from the same series of acts:

It is clear from the breadth of the illustrations that this series of offences of the four respondents are “connected” as envisaged by s 144 of the CPC. Mr Pai, Mr Ng and Ms Pai Guat Mooi’s CDSA charges are linked to Sentek’s CDSA charges, which form the factual context for Ms Pai Guat Mooi and Mr Pai’s PCA and Penal Code charges. For the purposes of s 144, it does not matter that the charges contain different elements to be proved, nor is any communication needed between the various offenders. The offences may nevertheless be considered to arise from “the same series of acts”. I hold that s 144 of the CPC is satisfied.

In my judgment, the interests of justice make a joint trial appropriate in this case for similar reasons. There is continuity in purpose and action, and sufficient proximity in time. Common witnesses and evidence are inextricably linked, which would mean that separate trials will otherwise result in delay, wasted expense, and worse, the threat of inconsistent findings on foundational factual issues. The safeguards lie in the rules of evidence and the burden of proof.

Prejudice

Notwithstanding that I hold s 132(2)(a) of the CPC to be applicable, I retain the discretion to order separate trials if joinder occasions prejudice or embarrassment to an accused’s defence. Section 146 of the CPC reads as follows:

Parties’ positions on prejudice

Mr Pai points out that the issue of prejudice was not argued in Soh Chee Wen, and submits that if there is any possibility of prejudice or embarrassment to the accused’s defence, the court must reject a joinder application. In his view, there is no balancing exercise. He submits that prejudice and embarrassment can arise in the following ways in the present case: (a) the risk that the court may not be able to separate the evidence for other charges when considering its verdict on a particular charge; and (b) the risk of confusion of issues. In particular, he points out that in the event that the trial judge decides that the evidence relating to the PCA and Penal Code Charges is not relevant or admissible to the CDSA Charges, it would be too late, and the Judge’s mind would already be affected by the evidence. Regarding the Evidence Act, Mr Pai submits that s 8(2) can only be invoked if the Prosecution is relying on a fact that is not the subject of any charge. This is because, if the fact sought to be relied upon is the subject of a charge, then that fact has not yet been proven by the Prosecution beyond a reasonable doubt, and thus to use that unproven fact to prove another charge tendered by the Prosecution would be circular.

Mr Ng submits that a joint trial of all the Respondents of all the charges would be unfair and prejudicial due to the length of the trial, the heavy expenses that would be incurred, and the resulting toll on his physical and mental health.

Ms Pai Guat Mooi submits that a joinder would allow evidence from her PCA Charges to potentially influence the court’s findings on the CDSA Charges without first being proven beyond a reasonable doubt. She argues that the evidence related to the PCA Charges, even if admissible under s 8 of the Evidence Act, should not be admitted into a trial of the CDSA Charges because its prejudicial effect on the accused would significantly outweigh its probative value. The prejudicial effect arises from the following: (a) admitting the evidence related to the PCA Charges presupposes Ms Pai Guat Mooi’s guilt in the CDSA Charges by allowing potentially prejudicial inferences from unrelated allegations under the PCA Charges; (b) there may be uncertainty as to whether the guilt of the accused persons in one set of charges presupposes their guilt in another set of charges and vice versa; and (c) in any case, even if Mr Pai was attempting to arrange for the three bunker clerks to remain away from Singapore, as is alleged under the Penal Code Charges, this evidence should not be regarded as probative of the other respondents’ guilt as to their respective charges. Allowing the application would remove the court’s discretion to exclude irrelevant or prejudicial evidence, and allow all evidence pertaining to the CDSA and PCA Charges to be admitted indiscriminately in a joint trial.

My decision on s 146 of the CPC

Whether the court has any discretion

The first issue is the effect of any prejudice, as Mr Pai’s argument is that the court is obliged to order separate trials once there is prejudice.

In my judgment, because of the express use of the word “may” in the provision, s 146 of the CPC confers on the court not only the power to order separate trials, but also the discretion to determine whether to order separate trials when prejudice arises. Judicial discretion, nevertheless, is exercised on principle and precedent.

Mr Pai highlighted several cases where the courts had not exercised their power under s 146 because they held that no prejudice was occasioned to the accused: see Lee Teck Wah and another v Public Prosecutor [1998] 1 SLR(R) 726 at [27] and [39], Iswaran at [31], and Public Prosecutor v Azlin bte Arujunah [2020] SGHC 168 at [10]. These cases do not go so far as to show that the court has no discretion wherever there is prejudice, but simply that it was unnecessary to consider or exercise that discretion in the particular cases because there was no prejudice. Such an approach was also taken in Lee Kwang Peng v Public Prosecutor and another appeal [1997] 2 SLR(R) 569 (“Lee Kwang Peng”), where Yong Pung How CJ considered the predecessor provision to s 146 of the CPC had no operation because there was no prejudice or embarrassment, at [60]:

Yong CJ then explained (at [60]) that whether the discretion is ultimately exercised would depend on the degree of prejudice caused by a joint trial:

This discretion is also made plain in the Court of Appeal’s opening words of [45] in Yong Yow Chee v Public Prosecutor [1997] 3 SLR(R) 243 (“Yong Yow Chee”), a case that Mr Pai cites for the contrary proposition using the last two lines:

Exercise of my discretion

The issue, then, is how I should exercise my discretion, in the light of all the relevant circumstances of the case.

The prejudice contended by the Respondents highlighted fell broadly into two categories. The first were general assertions as to age, health, length of trial and complexity. I did not think that any of these factors occasioned particular prejudice that warranted the exercise of my discretion. Length of trial and complexity were inherent in the overlapping and related factual matrix of the various charges and would be envisaged in the scenarios in illus (b), (c) and (d) of s 143 and illus (a) to (f) of s 144 of the CPC.

Secondly, the Respondents made various arguments that a joint trial of the CDSA Charges and the PCA and Penal Code Charges might result in the trial judge not being able to separate the evidence for each of these charges. In this context, Mr Pai cited various cases from Australia (Sutton v R (1984) 51 ALR 435) and the Supreme Court of Kentucky (Hammond v Commonwealth 366 SW 3d 425), which linked the joinder of charges to the admissibility of evidence. In his view, the principle illustrated by these cases is that where evidence in relation to one charge is not admissible in relation to another, there is a real risk of impermissible prejudice to the accused and separate trials should therefore be ordered. Nevertheless, the House of Lords decision of Ludlow v Metropolitan Police Commissioner [1971] AC 29 (“Ludlow”), while cited by Mr Pai in support of his proposition , endorsed the opposite approach. Lord Pearson explained that the discretion under s 5(3) of the Indictments Act 1915 (c 90) (UK), a provision in pari materia to s 146 of the CPC, should not be exercised simply because a joinder entailed counts relating to different transactions (at 41):

Furthermore, Australian, American and English cases are not apposite in this particular context. In Singapore, the position is dependent upon ss 143 and 144 of the CPC. Each of the joint trials envisaged in illus (b), (c) and (d) of s 143 and illus (a) to (f) of s 144 of the CPC would have necessitated the adduction of evidence relevant to all the various offences in the course of trial. For the various offenders in those illustrations, proving the additional offences in the same transaction or series of acts would also have involved introducing evidence related to at least one, but not all, of each accused person’s charges. In such cases, in line with the approach taken by Woo J at [46(a)] of Ridhaudin (see [63] above), the trial judge would consider whether the burden of proof is met on each particular charge.

A similar position was taken by Yong CJ in Lee Kwang Peng at [57]:

Therefore, the last line at the end of [45] from Yong Yow Chee cited by Mr Pai – “[i]t is of utmost importance that the trial judge must determine that no prejudice is caused to the accused” − must be understood in the context of that paragraph’s opening lines (see [75] above) and Lee Kwang Peng. Judges are endowed with the judicial ability to preserve and apply the appropriate rules of evidence. On each charge, only evidence admissible on that charge may be considered in assessing whether the Prosecution has proved its case beyond a reasonable doubt.

In this context, I deal with the Prosecution’s first alternative argument (see [66] above) that no prejudice is occasioned by a joint trial because the evidence on the PCA and Penal Code Charges would be admissible in any event in a trial on the CDSA Charges under s 8(2) of the Evidence Act and vice versa. However, the issue of prejudice is of wider scope than the issue of admissibility. And, as explained above, the issue of joinder is not dependent upon the issue of admissibility.

Having considered all the circumstances, I am of the view that it is not appropriate to exercise my discretion under s 146 of the CPC to order separate trials.

Conclusion

In conclusion, I grant the application for the accused persons to be jointly tried on their respective charges.