Public Prosecutor v Ong Gim Hoo

Choo Han Teck J:

[1] The respondent in this Criminal Revision was charged with four charges (DAC 31609 of 2013 to DAC 31612 of 2013) for offences under the Customs Act (Cap 70, 2004 Rev Ed) (“CA”). Proceedings with respect to these four charges are currently underway before the State Courts. The respondent is currently on bail, and his matter is scheduled for a Pre-Trial Conference on 28 March 2014.

[2] The applicant brings this Criminal Revision, however, to “amend two convictions” recorded against the respondent in 2012. For the purpose of this judgment, when I use the term “amend convictions” I refer to the process of setting aside a recorded conviction, framing an altered charge, and subsequently convicting the individual on the altered charge. I will discuss the complexities inherent in such a process below at [4]. In 2012, the respondent pleaded guilty to two charges of “[o]ffences in relation to possession, storage, conveying and harbouring of goods” under s 128I of the CA. These were charges DAC 33656/2012 and DAC 33689/2012. I set out the charges below to show the exact amendment sought. The first charge, DAC 33656/2012, read:

The second charge, DAC 33689/2012, read:

[4] The relevant statutory provision for Criminal Revision is found in s 401 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). As the convictions sought to be revised in this case involved charges that were laid after 31 August 2012, the 2012 Revised Edition is the relevant edition of the Criminal Procedure Code that the court should be concerned with. Section 401 reads:

By s 401(2), the High Court may exercise the powers given by s 390 of the CPC during Criminal Revision. Of relevance to this application, the applicant asks this court to invoke three of its powers under s 390. These are

(i) first, to set aside the respondent’s two 2012 convictions, notwithstanding that they arose from pleas of guilty, which is provided for in s 390(3)(a) of the CPC;

(ii) second, to frame two altered charges that correspond to DAC 33656/2012 and DAC 33689/2012, with the exception that “section 128I(b)” is changed to “section 128I(1)(b)” in either charge, which is provided for in section 390(4) of the CPC; and

(iii) third, to convict the respondent on both altered charges.

[5] It will be obvious that a leap between the applications in [4(ii)] and [4(iii)] was being attempted here. Although this court is indeed empowered to set aside previous convictions and frame altered charges, when altered charges are framed, the court must ask the respondent if he intends to offer a defence, as required under s 390(6). It is only where the respondent indicates that he does not intend to offer a defence, and if the court finds that there is sufficient evidence based on the records before it to convict, that the court can convict the respondent on the altered charges (see s 390(8)(a)). Another option available, after setting aside the previous conviction and framing the altered charges, is for the court to order the respondent to be tried on the altered charges (see s 390(8)(b)). Of course, complexities might arise should the respondent indicate that he wishes to offer a defence (see s 390(7)). As such, while the errors made in the framing of the charges in DAC 33656/2012 and DAC 33689/2012 may have been “technical” in nature, the process of “amending convictions” in Criminal Revision is far from a merely technical exercise.

[6] To illustrate, should I wish to allow the application in this case, the respondent would be entitled to offer a defence. If he indicates that he wishes to do so, this Criminal Revision may lead to a full trial. It is not simply a case of “tweaking” the respondent’s criminal record.

[7] For clarity, I also wish to point out that once an accused person has been convicted on a charge, the charge is spent. In such cases where convictions have been recorded against an individual, the only procedure open to the High Court on Criminal Revision is what I have stated in [3] and [4]. It is practically and doctrinally impossible for the High Court to simply amend the charges from which the convictions arose.

[8] Having discussed the complexities inherent in the process of “amending convictions”, I come now to two recent decisions on point. These are Bhavashbhai s/o Baboobhai v PP [2014] SGHC 46 (“Bhavashbhai”) and PP v Shaik Alaudeen s/o Hasan Bashar [2013] 2 SLR 538 (“Shaik”). Both cases involved applications to amend previous convictions. In Bhavashbhai, the application was brought by the accused. When he brought his application before me, he was facing ongoing proceedings in relation to a charge for consumption of a specified drug. In parlance familiar to the courts and parties in criminal proceedings alike, he was facing an “LT-2” charge. “LT” stands for “Long Term”. If convicted, he faced a minimum of 7 years’ imprisonment (see Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) s 33A(2)). An LT-2 conviction can only be recorded if the court is satisfied that the accused had, on record, a previous “LT-1” conviction. In Bhavashbhai, the applicant applied to the court to set aside – or amend – the LT-1 conviction he had on his criminal record, in a bid to escape conviction on the LT-2 charge he faced at the time of application. Counsel argued that the underlying LT-1 conviction should have been set aside, or amended, because it was erroneous. An LT-1 conviction can be recorded if the accused had, on record, not less than one previous admission to a drug rehabilitation centre and one previous conviction for consumption of a specified drug (see MDA s 33A(1)(d)). Counsel for the applicant argued that the previous conviction on which the LT-1 charge was premised was for consumption of a controlled drug. On that basis, counsel for the applicant sought to unravel the applicant’s history of drug consumption. I held there that to allow the application would have been to allow the applicant to evade justice. I hence disallowed the application to amend the LT-1 conviction.

[9] In Shaik, I dealt with an application brought by the prosecution. The accused there was facing six LT-1 charges in ongoing proceedings at the time of the application. In the midst of the proceedings, it was discovered that one of the accused’s previous convictions for consumption of morphine was worded as consumption of a controlled drug, when it should have been – as the prosecution argued – consumption of a specified drug. Had I allowed the application in that case, the accused would have been liable to punishment on the LT-1 scale (a minimum sentence of 5 years’ imprisonment on each of the six charges) if convicted in the ongoing proceedings. I held, in that case, that to amend the accused’s previous conviction would have been to his prejudice, and hence dismissed the application. The LT-1 charges were subsequently framed as charges of consumption of controlled drugs with enhanced punishment (attracting a lower minimum sentence of 3 years’ imprisonment on each charge). The accused pleaded guilty to three of the charges as part of an offer by the prosecution (see PP v Shaik Alaudeen s/o Hasan Bashar [2013] SGDC 159).

[10] Both Shaik and Bhavashbhai dealt with applications under the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC 1985”). The Criminal Revision provisions in the CPC 1985, namely ss 256 and 269, generally corresponded to ss 390 and 401(2) of the CPC. More importantly, I find that the principles enunciated in the two cases continue to ring true, notwithstanding the differences in wording between the provisions of the CPC 1985 and the CPC. Sections 390 and 401(2) of the CPC provide the accused person a chance to defend himself against a newly framed charge. A revision should not be made when prejudice would be caused to the accused.

[11] Had the accused in Bhavashbhai sought to peruse his criminal records in the midst of, or even prior to, his LT-2 proceedings, he would have understood that he had a recorded LT-1 conviction, and was hence liable to punishment on an LT-2 scale should he reoffend. Had he been troubled with the basis of the LT-1 conviction, namely the word “controlled” rather than “specified” in his previous conviction, he would have brought it up when convicted of the LT-1 offence. He did not. It hence cannot be said that he was caught by surprise when he then faced an LT-2 charge, and it cannot be said that prejudice would have been caused to him by refusing to amend, or set aside, the previous LT-1 conviction as he knew all along – and seemingly accepted – that he was liable to punishment on an LT-2 scale should he reoffend. In Shaik, if the accused were to peruse his criminal records before his LT-1 proceedings, he would not have thought that he was liable to be punished on an LT-1 scale. The LT-1 proceedings would have hence come as a surprise since his records would have revealed that he did not have the requisite convictions to make out an LT-1 charge. To amend his convictions retrospectively would have caused him prejudice. That said, there was nothing to prevent the trial judge, who dealt with the accused in Shaik, from recognising the previous conviction and, notwithstanding that it was for consumption of a controlled – and not specified – drug, impose a higher sentence on account of the accused’s recidivism (albeit within the limits on sentence as mandated by statute).