Public Prosecutor v Ng Guan Hup

Lee Seiu Kin J:

[1] The respondent was charged in the district court with mischief under s 425 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). He pleaded guilty to the charge, admitted to the statement of facts and was duly convicted of the charge. He agreed for two other charges of mischief to be taken into consideration for the purpose of sentencing. After hearing the mitigation plea, the district judge adjourned the trial to 15 April 2008 for sentencing. However on the adjourned date, the prosecution informed the court that fresh evidence had been uncovered which cast doubt on the truthfulness of the respondent’s admissions and plea of guilt. The prosecution applied under s 184 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) for the respondent to be given a discharge not amounting to an acquittal on the three charges. The district judge refused the application and the prosecution appealed before me against the refusal.

[2] The offence of mischief under s 425 is punishable under s 426 of the Penal Code. Sections 425 and 426 provide as follows:

[3] The three charges stated that sometime in July 2007, at the Singapore Turf Club, the respondent had used a syringe to administer a drug, 2-(1-hydroxyethyl)-promazine-sulphoxide (“the banned substance”), to three racehorses belonging to one Charles Leck (“Charles”). As a result of the injections, the horses underperformed during a race on 20 July 2007.

[4] On 8 April 2008, before the district judge, the respondent pleaded guilty to the charge and admitted to the statement of facts without qualification. He was duly convicted of mischief under s 425 of the Penal Code. The respondent also admitted and consented to the court taking into consideration the other two charges for the purpose of sentencing.

[5] According to the statement of facts, the respondent was working as a stable hand at the Singapore Turf Club. On 12 September 2007, he was detained in the vicinity of the Singapore Turf Club and found in possession of two unused syringes, which he had no authority to bring onto the premises. In his locker, a vial was found. The respondent admitted to having administered the banned substance, via a syringe, to a racehorse named “Arabian Star” sometime in July 2007 at 9am, as he wanted it to underperform during a race on 20 July 2007. This racehorse was under the charge of Charles, a racehorse trainer. A letter from the Malayan Racing Association to Charles, dated 7 August 2007, states that the racehorses, “Arabian Star”, “Kingtrap” and “Justohelp”, tested positive for the banned substance for races on 20 July 2007. During the mitigation submissions, it was also revealed that Charles was the respondent’s nephew.

[6] On 15 April 2008, before the district judge could pronounce sentence, the prosecution informed him that it had uncovered evidence which cast doubt on the truthfulness of the respondent’s admissions and plea of guilt, and required further investigation. In particular, the prosecution informed the district judge that the closed-circuit television (“CCTV”) recording disclosed that the respondent had not entered the stables at the material time, contrary to his admission. Moreover, the vial which the respondent claimed to have contained the banned substance used to inject the three horses was analysed and found not to contain the said substance. The prosecution proceeded to apply under s 184 of the CPC for the respondent to be given a discharge not amounting to an acquittal on the three charges. Counsel for the respondent objected to the application and, after hearing the submissions from both sides, the district judge refused the prosecution’s application, resulting in this appeal.

[7] The prosecution’s application is under s 184 of the CPC, which provides as follows:

[8] According to the district judge (see Public Prosecutor v Ng Guan Hup [2008] SGDC 168 (“the GD”)), this discretion of the prosecution to not further prosecute a defendant may only be exercised before judgment has been delivered. The question, in his view, was whether judgment was delivered the moment the court convicts the accused even though the sentence has not yet been pronounced.

[9] The district judge held that once he had recorded a conviction against the respondent, judgment was delivered and as such, s 184 of the CPC could not apply.

[10] In Arjan Singh v PP [1993] 2 SLR 271 (“Arjan Singh”), it was held that when the Public Prosecutor informs the court that he will not further prosecute an accused upon a charge, the court has no discretion on the matter and must order a stay of all proceedings on that charge and discharge of the accused from and of the same; however under s 184(2) of the CPC the court has the discretion to direct that the discharge shall or shall not amount to an acquittal.

[11] The issue in this case – and it is the sole issue – is whether, for the purpose of s 184 of the CPC, judgment has or has not been delivered when the district judge has convicted an accused person but before the sentence is pronounced. This turns on the meaning to be attributed to the word “judgment” in s 184 of the CPC.

[12] The prosecution pointed out that the word “judgment” appears in various parts of the CPC, and submitted that its meaning depends on the context in which it appears. In the case of s 184 of the CPC, the prosecution contended that the meaning of the words “judgment has been delivered” encompasses the passing of the sentence. Accordingly, the powers of the public prosecutor under s 184 of the CPC may be exercised at any time up to the passing of the sentence.

[13] The respondent, on the other hand, argued in the main that the CPC draws a distinction between “judgment” and “sentence”, and referred to authorities which suggest that “judgment” means a final order in a trial terminating in a conviction or acquittal of the accused. This would mean that the “sentence” is merely a corollary of the conviction, and judgment is delivered the moment an accused is convicted even if sentence has not yet been passed.

[14] The word “judgment” appears in numerous parts of the CPC. Besides s 184, the term is also used in ss 134, 163, 212, 215, 216, 217, 218, 219, 220, 241, 243, 247, 251, 252, 258, 259, 261, 263, 314, 318, 396, and 400. Unfortunately, as the district judge noted, the word “judgment” is not defined in the CPC (see GD at [5]). However, the prosecution pointed out that “judgment” carries different meanings in different parts of the CPC; if this is so, then it would come as less of a surprise that the word is nowhere defined in the CPC.

[15] To support the assertion that the legislature intended to ascribe different meanings to the words “judgment” and “sentence”, the respondent pointed me to s 247(1) of the CPC, which states:

[16] I was also referred to the Malaysian case of Marzuki Bin Mokhtar v PP [1981] 2 MLJ 155 (“Marzuki”), where Tan Chiaw Thong J (“Tan J”) found himself having to interpret the word “judgment” in s 307(i) of the Malaysian CPC, which is in pari material with our s 247(1). He concluded thus:

[17] With respect however, the definition preferred by Tan J lends us little assistance in our dilemma; it only serves to beg the further question, ie whether “the final order in a trial terminating in the conviction or acquittal of the accused” includes the sentencing of the accused, and one which the learned judge did not need to answer in that case.

[18] Nonetheless, the manner in which s 247 (and similarly ss 241, 261 and 263) of the CPC is drafted supports the view that the terms “judgment” and “sentence” bear different meanings. Indeed, the prosecution did not contend otherwise. Instead, it accepted that in certain parts of the CPC (eg ss 241, 247, 261 and 263), “judgment” may not include sentencing, but maintained that “judgment” must include sentencing when used in other sections, or absurdity would result.

[19] To illustrate how “judgment” might include “sentence”, the prosecution referred to s 258 of the CPC, which states:

[20] By the prosecution’s reckoning, “judgment” in s 258 of the CPC must necessarily include “sentence”. For instance, in an appeal by the prosecution against the acquittal of an accused, if the High Court decides finally to set aside the acquittal and convict the accused, the “judgment in open court” must also include the pronouncement of a sentence for the accused. It would be absurd, the prosecution submitted, if in such cases the delivery of a “judgment” meant only a verdict on the conviction or acquittal of the accused, but did not include “sentence”.

[21] Having considered the arguments from both the prosecution and the respondent, the district judge concluded that the legislature had intended to ascribe different meanings to the words “judgment” and “sentence” (see the GD at [10]). He relied first on the distinction drawn between “judgment” and “sentence” in various sections of the CPC, eg ss 241 and 247 (see above at [17] to [20]). The district judge also cited the definition used by Yong Pung How CJ (“Yong CJ”) in Lim Teck Leng Roland v PP [2001] 4 SLR 61 (“Roland Lim”) in support of his decision.

[22] In Roland Lim, the word “judgment” was considered by Yong CJ in the context of s 217 of the CPC. Section 217 of the CPC reads:

[23] Yong CJ observed (at [13]):

The district judge inferred that since a “judgment” is “a final order in a trial terminating in a conviction” [emphasis in original], the sentence is merely a corollary of the conviction (see [11] of the GD). While such an interpretation is, in my view, entirely plausible, it should be noted that the issue of whether a “judgment” includes “sentence” was not considered by Yong CJ. I am thus not persuaded that the district judge’s interpretation is inevitable on the basis of the decision in Roland Lim.

[24] On this point, the prosecution referred me to Wong Hong Toy v PP [1994] 2 SLR 396 (“Wong Hong Toy”), where the Court of Criminal Appeal examined s 216 of the CPC (the present s 217) and opined (at [57]):

According to the prosecution, this demonstrates clearly that the court interpreted the word “judgment” in s 217 of the CPC to include “sentence”. Presumably (since the prosecution did not explain its case fully), what the prosecution meant was this – since the court held that s 217 of the CPC conferred on the appellate judge the power to alter or review the sentence, then the court necessarily understood the use of the word “judgment” in s 217 to include “sentence” as well.

[25] The district judge also relied on the case of PP v Oh Hu Sung [2003] 4 SLR 541 (“Oh Hu Sung”). He explained at [12] to [14]:

[26] I am afraid I must disagree with the district judge; I do not think Yong CJ’s remarks in Oh Hu Sung can be relied upon in any meaningful way in the matter before us. First, in Oh Hu Sung, Yong CJ was dealing primarily with the second limb of s 217 of the CPC, which is an exception to the general prohibition against the alteration of judgments in s 217(1). That case turned on the interpretation of s 217(2), in particular what is meant by “before the court rises for the day” and “any other mistake”, and not the definition of “judgment”.

[27] Second, Yong CJ stated clearly (at [22] of Oh Hu Sung):

While the district judge chose to interpret this passage to mean that “judgment” under the CPC does not necessarily include the “sentence”, and that the “sentence” is a mere corollary to conviction, Yong CJ could equally have meant that in his view, the term “judgment” in s 217(1) of the CPC may or may not encompass a “sentence”, ie a “judgment” can include a sentence. This was also the interpretation urged upon me by the prosecution, and one that the prosecution claimed, conformed to the court’s decision in Wong Hong Toy.

[28] The prosecution sought further support from a number of other cases dealing with the issue of when a court is functus officio, and can no longer allow an accused to retract his plea of guilt (even in the appropriate circumstances). These same cases had been cited to the district judge, who dismissed the analogy the prosecution tried to draw (at [17] and [18] of the GD):

[29] In my view, the district judge may have misunderstood the prosecution’s arguments. The cases, eg Ganesun s/o Kannan v PP [1996] 3 SLR 560 (“Ganesun”), Cheng Siah Johnson v PP [2002] 2 SLR 481 (“Johnson Cheng”), Koh Thian Huat v PP [2002] 3 SLR 28 (“Koh Thian Huat”), all establish the principle that an accused’s plea of guilt can be retracted (in the appropriate circumstances) so long as the trial court has not passed sentence, even if the court has recorded the accused’s conviction and retraction is made on a subsequent occasion after the court has risen for the day. Since s 217 of the CPC clearly renders a lower trial court functus officio once it has recorded its judgment and risen for the day, the cases of Ganesun, Johnson Cheng and Koh Thian Huat would make sense only if the word “judgment” in s 217 of the CPC encompasses “sentence”. Otherwise, the court in all these cases would have been functus officio (and hence unable to exercise its discretion to allow retraction of the accused’s plea of guilt) once it had recorded the conviction of the accused.

[30] Against the backdrop of these cases which have touched upon s 217 of the CPC and the functus officio principle, I am persuaded that at least in the context of certain sections of the CPC, viz ss 217 and 258, the meaning of the word “judgment” may include “sentence”.

[31] It is worth mentioning that while there is a rule of interpretation that the same word bears the same meaning throughout the same statute, this is merely a rule of presumption that can be rebutted. The following passage from Guru Prasanna Singh, Principles of Statutory Interpretation, seventh edition (1999) p 263 was cited to me by the prosecution to support this proposition:

[32] To my mind, the various cases demonstrate unequivocally that the term “judgment” is capable of bearing different meanings in different parts of the CPC. The examples raised by the prosecution (set out in [20] above) show that the adoption of one singular definition of “judgment” will lead to absurdity in the interpretation of certain provisions in the CPC. In these circumstances, it may well be the lesser of two evils to prefer an approach whereby the meaning of the word “judgment” depends on the context in which it appears. It is this approach that I favour.

[33] Adopting the view that “judgment” may bear different meanings in different parts of the CPC, what then is the meaning of that word in the context of s 184 of the CPC? It is necessary to consider the legislative history of s 184 of our CPC, as well as its equivalent provision in the Malaysian CPC.

[34] Section 214 of the Criminal Procedure Code, 1903 of the Laws of the Federated Malay States (1877-1920) (“FMS”) contains a provision which outlines the powers of the prosecution to stay proceedings. It states as follows:

[35] In the 1926 CPC of the FMS, s 214(i) (now renumbered as s 254(i)) was amended as follows:

[36] After the Malayan Union was formed, this provision took the form of s 254 of the Criminal Procedure (Amendment) Ordinance, Ordinance 13 of 1947:

[37] The provision remained unchanged until the CPC (Amendment) Act 1995 came into force, in which the phrase “or in the case of trials by jury before the return of the verdict” was deleted. Today, s 254 of the Malaysian CPC (Act 593, 2006 Rev Ed) reads:

[38] The earlier variations of s 254 of the Malaysian CPC provide an insight into how the word “judgment” should be interpreted, at least in the context of the Malaysian equivalent of s 184 of the CPC. Based on the legislative history of s 254 of the Malaysian CPC, we know that previously, a public prosecutor in Malaysia could only inform the court that he will not further prosecute the accused upon the charge before the delivery of judgment, or in the case of a trial by jury before the return of the verdict.

[39] Thus, under s 254 of the Malaysian CPC, the natural inference is that the meaning of “judgment” must exclude sentence; otherwise, it would create an anomaly whereby in a trial before a judge, a prosecutor could wait till after the trial judge had sentenced the accused before making an application to stop prosecution, whereas in a jury trial, the prosecutor had to make an application before the jury returned its verdict, ie before the conviction or acquittal of the accused. Unless a reasonable distinction can be drawn between jury trials and trials before a judge, it made sense that “judgment” in s 254 of the Malaysian CPC should be interpreted to similarly exclude “sentence”, thereby maintaining consistency within the provision.

[40] Prior to 1870, Singapore (being part of the Straits Settlement) adopted Indian Act XVI of 1852 for the purposes of criminal procedure. A perusal of this piece of legislation reveals that there was no provision similar to s 184 of the CPC. Subsequently, the Straits Settlement passed Ordinance V of 1870 to take the place of Indian Act XVI of 1852. This was later replaced by a more comprehensive Ordinance VI of 1873. There was however, still no equivalent of s 184 of the CPC.

[41] The first manifestation of s 184 finally emerged in the form s 182 of the CPC, Ordinance X of 1910:

The provision reappeared in substantially the same form in s 187 of the CPC (Cap 21, 1936 Rev Ed).

[42] The CPC, in its current form, emanates from Ordinance 13 of 1955, the Colony of Singapore. Section 175 (as s 184 was then numbered) of the CPC of 1955 reads:

In Singapore, jury trials were abolished for non-capital offences in 1959. All jury trials were finally abolished in 1969. Nonetheless, s 184 of the CPC today remains the same as s 175 was in 1955; clearly, our s 184 does not share the same legislative history as the Malaysian equivalent.

[43] Since s 184 of the CPC has never included the words “or in the case of a trial by jury before the return of the verdict”, it does not appear that the legislative history of its Malaysian counterpart has any relevance in its interpretation.

[44] My attention was drawn to a rule of interpretation which pertains specifically to the construction of penal statutes – the strict construction rule. The history and evolution of the rule was examined in PP v Low Kok Heng [2007] 4 SLR 183 (“Low Kok Heng”) (at [31] to [38]). This rule can be summarised simply as follows: where there is ambiguity and two reasonable constructions of a statute are possible, the statute should be strictly construed to lean in the accused’s favour.

[45] The modern local position on the construction of penal statutes is encapsulated by Yong Pung How CJ in Forward Food Management v PP [2002] 2 SLR 40 (at [26]) in the following terms:

[46] However it is not clear which construction will favour an accused person. One would have thought that an interpretation which allows the prosecution to withdraw the charges (albeit with the view of pressing other charges in the future) would be the one preferred by the accused. Indeed, in the present case we are faced with the somewhat bizarre situation where the respondent is pushing for an interpretation which will result in him being convicted (and punished) for an offence which the prosecution now believes he did not commit.

[47] Since I am unconstrained by authority in the interpretation of this aspect of s 184 of the CPC, and its legislative history offers no insight as to the parliamentary intent, I am left to discern the scope of the provision from first principles. The word “judgment” is capable of bearing the two meanings contended by both sides: (a) up to the point that the court convicts the accused person; and (b) up to the point that the court pronounces the sentence. Adoption of the first meaning would narrow the scope of application of s 184 of the CPC in that the prosecutor may only inform the court that he will not further prosecute the accused before conviction and may not do thereafter even though the sentence has not yet been pronounced. This, in my view, unnecessarily limits the prosecutor’s power in circumstances where it would serve no purpose to do so. I see no reason why, even if a conviction has already been recorded but before sentence has been pronounced, the prosecutor should not retain the power to terminate prosecution of the accused if he has reason for so doing. Indeed, to disallow this would result in an absurdity: it would require the court to proceed with the sentencing of the accused person in circumstances where the prosecution no longer believed that he should be punished and compel an application for criminal revision in the High Court.

[49] I turn now to the next issue – whether or not the discharge is to amount to an acquittal.

[50] In K Abdul Rasheed and Another v PP [1984-1985] SLR 561 (“K Abdul Rasheed”), Lai Kew Chai J (“Lai J”) held (at 564) that the discharge shall not amount to an acquittal unless there are sufficient reasons to find otherwise:

[51] However, the discretion of the court to grant a discharge amounting to an acquittal is an unfettered one. In Goh Cheng Chuan v PP [1990] SLR 671 (“Goh Cheng Chuan”), LP Thean J (“Thean J”) observed (at [14]) as follows:

[52] These principles have been repeatedly affirmed by Singapore courts, eg Ranjit Kaur d/o Awthar Singh v PP [1999] 1 SLR 836 (“Ranjit Kaur d/o Awthar Singh”), TS Video and Laser Pte Ltd v Lim Chee Yong and another appeal [2002] 1 SLR 68 (“TS Video”).

[53] In K Abdul Rasheed, Lai J directed an acquittal in one of the appeals, explaining (at 564-565):

It appears that Lai J’s chief concern was the inability of the prosecution to indicate a determinate time when it could proceed with the charges against the appellant. In the circumstances, he was persuaded that it would be unfair to subject the appellant to further agony for an indeterminate period.

[54] In Goh Cheng Chuan, the charge in question was brought in July 1985 and related to an offence alleged to have taken place in December 1983. The case was set down for trial on 21 April 1986. On that day, it was stood down pending the trial of the accused on a separate charge. The charge in question was then set down for further mention on 12 May 1986. There followed two postponements: one from 12 May 1986 to 13 October 1986 and the other from the latter date to 2 February 1987. On both occasions, the postponement was requested by the prosecution on the ground that a material witness was not available, and efforts were being made to trace such a witness. Finally, on 2 February 1987, the prosecution asked for a discharge not amounting to an acquittal under s 184 of the CPC as steps were being taken to trace the missing witness. The defence argued that the court had a discretion to direct a discharge amounting to an acquittal and should do so. The court ruled that it had no discretion in the matter and was bound to order as requested by the prosecution. The accused appealed. Thean J allowed the appeal, and said (at 679-680):

Similarly, in this case, Thean J was concerned with the prosecution’s delay in proceeding against the appellant, and he ultimately granted a discharge amounting to an acquittal.

[55] In Loh Siang Piow v PP [1998] 2 SLR 384 (“Loh Siang Piow”), the appellant was not granted a discharge amounting to an acquittal despite the unavailability of a witness. Yong CJ agreed with the trial judge’s decision, and elaborated (at [13], [14] and [33]):

[56] In his grounds in Loh Siang Piow, Yong CJ distinguished the cases of K Abdul Rasheed and Goh Cheng Chuan; he was persuaded not to grant a discharge amounting to an acquittal by: (a) the likelihood that the material witness would be found; and (b) the seriousness of the offences the appellants were being charged with. However Yong CJ cautioned that the court should be kept informed of all relevant matters, particularly the likelihood of future prosecution of the accused of the charge (at [25]):

In Ranjit Kaur d/o Awthar Singh, Yong CJ again emphasised the need for the prosecution to indicate that it intends to prosecute in the near future, stating as follows at [12]:

[57] In TS Video, Yong CJ affirmed the decision of the trial judge not to direct an acquittal because he was convinced the trial judge had carefully considered all the relevant issues and competing interests, viz: (a) the charges were serious and on matters relating to public interest and public rights; (b) there were no improper motives behind the prosecution’s application; and (c) the delay in prosecution of six months would not be unconscionable.

[58] From the above authorities, it can be discerned that the underlying theme is that it is a fine balance between the public interest in ensuring that criminal acts are punished and fairness to the accused person. The public interest factor is given more weight where it pertains to a serious offence because the more serious the charge, the greater is the public interest in ensuring that an offender is punished for the offence. Conversely, where the offence involved is relatively minor, the accused should not be faced with a disproportionate delay.

[59] On the other hand, fairness to the accused dictates that he be acquitted if the suspension in the prosecution is indefinite or likely to be long. The trial of any person accused of an offence should be conducted expeditiously so that he does not suffer the trauma of lengthy proceedings. If there is an adjournment, it should be as short as possible. However where there is a discharge not amounting to an acquittal, the accused person faces uncertainty as to whether the charge against him will resume. Where the delay is likely to be short, the court will naturally be slow to grant a discharge amounting to an acquittal. Where, as in K Abdul Rasheed and Goh Cheng Chuan, the testimony of the witnesses cannot be procured in the foreseeable future and prosecution of the accused appears likely to be delayed for an indeterminate period, a discharge amounting to an acquittal will be granted. However, it does not necessarily follow that in all cases where an indefinite delay may occur, an accused will be granted a discharge amounting to an acquittal. As Yong CJ elucidated in Low Siang Piow (at [39]):

[60] Finally, I should emphasise that the factors I have set out above are derived from the authorities referred to. It would be reckless to say that it is a comprehensive statement of the law and I need only refer to Lai J’s words in K Abdul Rasheed, at [6]:

[61] I now turn to a consideration of the circumstances in this case.

[62] Firstly, the prosecution has been quite candid in explaining its reasons not to proceed. Based on the new evidence, which calls into question the respondent’s admissions, it is right and proper for the prosecution to make this application. The prosecution has also stated that it will proceed with the appropriate charges against the respondent once it has ascertained, after further investigations, the involvement of the respondent. Again this is an entirely proper position to take.

[63] Secondly, although the initial investigation can only be described as shoddy, the respondent, by pleading guilty to the charge appears to have some role, still unascertained, in the whole affair. This case is therefore extremely peculiar. In any event, unless there is likely to be an indeterminate delay, I do not think that the respondent would suffer great prejudice in having his case delayed pending further investigations.

[64] Thirdly, although mischief is not usually a serious offence, in the present case the subject matter of the offences were race horses. There are often high pecuniary stakes associated with horse racing and therefore a strong public interest in getting to the root of the matter and ensuring the guilty are appropriately punished.

[65] Lastly and most importantly, I am persuaded by the prosecution that there will not be an indeterminate delay in the resolution of this case. The prosecution has endeavoured to investigate quickly and will proceed once the respondent’s role is revealed. Any delay on the part of the prosecution is likely to be short, and unlikely to cause much prejudice to the respondent. It was also not a situation where the defendant had pleaded not guilty and the prosecution had only made an application for discharge not amounting to acquittal after a long trial. In that situation, it could be extremely prejudicial to the defendant especially if there is no indication as to the length of the delay. Where this is the case, the court would be inclined to grant a discharge amounting to an acquittal.