High Court · Decided 28 February 2014

Tey Tsun Hang v Public Prosecutor

Feedback & support

[2014] SGHC 39Case no. Magistrate's Appeal No 114 of 2013

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

Woo Bih Li J:
Introduction
[1] This is an appeal against conviction and sentence. The appellant was convicted in the district court by the trial judge (“the TJ”) of six charges punishable under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the Act”).
[2] The appellant is a 42-year-old man who was, at the material time, an associate professor employed by the National University of Singapore (“NUS”). He was attached to the Faculty of Law. He was charged with corruptly receiving six acts of gratification from one of his students at the material time, Darinne Ko Wen Hui (“Ms Ko”), as an inducement for showing favour to Ms Ko in relation to the affairs of his principal, NUS, that is, showing favour in his assessment of Ms Ko’s academic performance. The six acts of gratification were as follows:
(a) a Mont Blanc pen worth $740 in May 2010 (DAC 27011/2012);
(b) two tailor-made shirts (“the CYC shirts”) worth $236.20 on 22 June 2010 (DAC 27012/2012);
(c) an iPod Touch (“the iPod”) worth $160 in May 2010 (DAC 27013/2012);
(d) payment of a restaurant bill (“the Garibaldi Bill”) for $1,278.60 on 21 July 2010 (DAC 27014/2012);
(e) sexual intercourse on 24 July 2010 (DAC 27015/2012); and
(f) sexual intercourse on 28 July 2010 (DAC 27016/2012).
[3] The appellant was sentenced to two months’ imprisonment each for the first four charges and three months’ imprisonment each for the final two charges. The sentences in DAC 27014/2012 and DAC 27015/2012 were ordered to run consecutively and the rest concurrently. The aggregate sentence was five months’ imprisonment.
[4] The TJ also made an order to forfeit the Mont Blanc pen (and pouch) and the iPod, and directed the Corrupt Practices Investigation Bureau (“CPIB”) to dispose of these items as the CPIB thinks fit. The TJ also ordered the appellant to pay a penalty of $278.60 (as the TJ agreed that the appellant had reimbursed Ms Ko $1,000 of the Garibaldi Bill) and $236.20 (the value of the CYC shirts).
[5] Notwithstanding the appeal against conviction and sentence, the appellant decided to serve his sentence first. He was released from prison on home detention on 17 September 2013. He completed his home detention on 5 October 2013. I understand from the Prosecution that the appellant has paid the penalties.
Issues before the court
[6] There are four main issues on appeal:
(a) whether six statements made by the appellant to the CPIB between 5 April 2012 and 24 May 2012 (“the Statements”) should have been admitted as evidence;
(b) whether s 8 of the Act applied. This provision shifts the evidential burden of proof to an accused person when certain conditions are satisfied;
(c) whether the elements of each offence were made out; and
(d) if so, whether the aggregate sentence was manifestly excessive.
The law on corruption
[7] It is necessary to have a clear framework of the law within which a discussion of the issues, the TJ’s decision, the cases of the parties, and my eventual decision is possible. I begin by setting out the relevant provisions in this case.
The relevant statutory provisions
[8] Section 6(a) of the Act reads as follows:
The wording of s 6(a) of the Act is substantially similar to that of s 1 of the Prevention of Corruption Act 1906 (6 Edw 7 c 34) (UK) (“the UK 1906 Act”) in the United Kingdom (“the UK”).
[9] Gratification is defined in s 2 of the Act as follows:
[10] Sections 8 and 9(1) of the Act, both of which could apply to a s 6(a) offence, read as follows:
[11] The applicability of s 8 in the case before me depends on whether NUS is a “public body”. Section 2 defines “public body” as follows:
I should mention that there may be a typographical error in that the words “undertakings or public utility” should read as “undertakings of public utility”. The latter wording is found in the definition of a “public body” in the Federation of Malaya’s Prevention of Corruption Ordinance 1950 (Ordinance No 5 of 1950) (Malaya) (“the Malayan 1950 Ordinance”). The explanatory statement of the bill for the Singapore Prevention of Corruption Ordinance 1960 (Ordinance No 39 of 1960) (which is the predecessor of the Act) states that a number of provisions in the Malayan 1950 Ordinance have been incorporated in the bill.
The elements of the offence
[12] The elements of an offence under s 6(a) of the Act are set out in Kwang Boon Keong Peter v PP [1998] 2 SLR(R) 211 (“Peter Kwang”) at [32] as follows:
(a) acceptance of gratification;
(b) as an inducement or reward (for any act, favour or disfavour to any person in relation to the recipient’s principal’s affairs or business);
(c) there was an objective corrupt element in the transaction; and
(d) the recipient accepted the gratification with guilty knowledge.
Actus reus
[13] The first element, the acceptance of the gratification, is the physical criminal act which is also known as the actus reus. The actus reus of the offence is thus complete even if the recipient has not yet had any opportunity to show favour to the giver in relation to the recipient’s principal’s affairs.
[14] Section 9 further clarifies this position by stating that the actual act of showing favour to the giver is not necessary to establish the actus reus of the offence. Section 9 goes one step further to preclude the recipient from raising as a defence the fact that the recipient did not have the power to, and did not in fact, show favour to the giver in relation to his principal’s affairs: see PP v Victorine Noella Wijeysingha [2013] 2 SLR 1001 at [4].
Mens rea
[15] Where a charge is made against the recipient, the question is also whether the recipient possessed a criminal intent, also known as the mens rea. The second to fourth elements set out at [12] concern the mens rea. In this respect, the intention of the recipient is paramount: see Yuen Chun Yii v PP [1997] 2 SLR(R) 209 (“Yuen Chun Yii”) at [69]–[70]. However, evidentially, the intention of the giver is also important as it sheds light on the recipient’s mens rea. Thus, the context of the gift is important. In Yuen Chun Yii, the court found that the nature of the relationship between the recipient and the giver, as well as the apparent intention of the giver, was part of the context which allowed it to make a finding that the recipient could not have had the necessary mens rea.
[16] The second element relates to the causal, or consequential, link between the gratification and the act the gratification was intended to procure (or reward). The third element relates to whether that act was objectively dishonest in the entire transaction.
[17] Although the second and third elements are conceptually different, they are part of the same factual enquiry. The question is whether the recipient received the gratification believing that it was given to him as a quid pro quo for conferring a dishonest gain or advantage on the giver in relation to his principal’s affairs. The court has treated these two elements together in its assessment of whether an offence is made out. Thus, the causal, or consequential, link between the gratification and the act of favour alleged to be procured was examined in Teo Chu Ha v PP [2013] 4 SLR 869 (“Teo Chu Ha”) and Yuen Chun Yii under the rubric of an objective corrupt element.
[18] Tan Boon Gin in The Law of Corruption in Singapore (Academy Publishing, 2007), commenting on the paradigm of corruption locally, also treats the second and third elements as part of the same factual enquiry. The author observes that the essence of corruption is as follows (at para 3.4):
[19] Yong Pung How CJ in Yuen Chun Yii (at [71]) and Chan Wing Seng v PP [1997] 1 SLR(R) 721 (“Chan Wing Seng”) (at [26]) sought to elucidate the meaning of an objective corrupt element. He drew on the dictionary definition of the word “corruption” as a “perversion of a person’s integrity in the performance of (especially official or public) duty or work by bribery etc”. Added to this is the ordinary meaning of the word “corrupt”: to “[i]nduce to act dishonestly or unfaithfully; bribe” (see Chan Wing Seng at [26]). In a similar vein, Choo Han Teck J observed in Leng Kah Poh v PP [2013] 4 SLR 878 (at [8]) that “dishonesty is a basic element in the offence of corruption”, although it is not the only element in the offence.
[20] It is thus not enough that the purpose of the gratification is to cause the recipient to perform an act of favour towards the giver in relation to the recipient’s principal’s affairs. The objective corrupt element implies the feature of dishonesty. Identifying the nature of the act of accepting the gratification as “dishonest” is important because it gives shape to the word “corruptly” in s 6(a) of the Act. If the focus were merely on the acceptance of the gratification as an inducement to show favour to the giver, the word “corruptly” used in s 6(a) of the Act would be redundant.
[21] It is possible for a recipient to be guilty of corruption even if the giver did not intend to make the gratification as a quid pro quo. If the recipient believed that the gratification was being given to him so that he would confer a dishonest gain or advantage on the giver even if he could not or did not intend to perform that act of favour, the necessary intention is still established. If the recipient intended to lead the giver to believe that he would confer such an advantage as a result of receiving the gratification, then the requisite intention is a fortiori established.
[22] A recipient of an act of gratification may show that he did not believe that the purpose of the gratification was a quid pro quo for a dishonest gain or advantage.
[23] For example, the recipient may show that the gratification was accepted by him as a gift. I am using the word “gift” in this judgment to denote a gift simpliciter, in contradistinction from “gratification”, to connote a situation where something is received without believing that the giver expects a dishonest gain or advantage.
[24] This is demonstrated in both Chan Wing Seng and Yuen Chun Yii. If an act of gratification is given as a gift and no more, then it is not received as an inducement to confer a dishonest gain or advantage on the giver because it is not given as a quid pro quo. There should not be anything dishonest in accepting a gift and there would not be an objective corrupt element in the transaction. The High Court in Chan Wing Seng and Yuen Chun Yii adopted the latter reasoning. It found that when the recipients accepted the alleged gratifications, they did so without any ulterior motive as they regarded the alleged gratifications as gifts and no more.
[25] A second example is where the recipient shows that his acceptance of the act of gratification was received for a service rendered or a thing supplied which was not, in itself, dishonest. An example would be where a waiter receives a tip as a reward for providing good service to a customer in relation to his employer’s restaurant business. Where the practice of tipping is intended to promote good service, the waiter’s receipt of this gratification would be honest. Without more, the inference would be that the person giving the tip did not intend to confer a dishonest gain or advantage on the waiter for his service.
[26] The fourth and final element relates to knowledge: did the recipient know that the advantage sought to be conferred was corrupt? The High Court in Chan Wing Seng elaborated on the fourth element as follows (at [23]–[24]):
I will say more on the fourth element later.
The presumption under s 8 of the Act
[27] Section 8 applies if:
(a) it is proved that the accused person received the acts of gratification, and
(b) the giver has or seeks to have any dealing with the employer of the accused person, and
(c) the accused person is employed by a “public body” for the purposes of the Act.
If s 8 applies, the presumption is that the mens rea is made out. It will be presumed that the recipient believed that the giver was expecting to obtain a dishonest gain or advantage for the act of improper gratification and that the recipient had the guilty knowledge discussed as the fourth element.
[28] The wording of s 8 of the Act is substantially similar to that of s 2 of the Prevention of Corruption Act 1916 (6 & 7 Geo 5 c 64) (UK) in the UK (“the UK 1916 Act”). Lord Lane CJ explained the effect of s 2 of the UK 1916 Act in R v Braithwaite (Frank Wilson) [1983] 1 WLR 385 (at 389E–G) as follows:
[29] Thus, the evidential burden of proof shifts to the recipient. The recipient can then rebut this presumption by evidence of an innocent explanation, proven on a balance of probabilities: see R v Mills (Leslie Ernest) (1979) 68 Cr App R 154. The legal burden of proof remains with the Prosecution throughout.
Background facts
The events from January to April 2010
[30] The appellant taught an Equity and Trusts class at NUS. In January 2010, Ms Ko enrolled in this class. She became acquainted with the appellant. Ms Ko took her examination for the Equity and Trusts class on 27 April 2010.
[31] In late February or early March 2010, the appellant requested for student volunteers from the Equity and Trusts class to assist him with research for his new book on the same subject. There were no volunteers. On 8 April 2010, the appellant selected ten students to assist him with the research. Ms Ko was among those selected.
The events of May 2010 including the gift of a Mont Blanc pen and pen pouch
[32] In early May 2010, the appellant met with Ms Ko and the nine others selected for an hour-long briefing on the research to be done. Ms Ko’s role was to collate the research done by the other students and perform consistency checks. After this briefing, Ms Ko and the appellant began communicating daily via email and a chat programme embedded within an internet email service known as Gmail (“Google Talk”).
[33] At the end of the second week of May 2010, Ms Ko gave the compiled research to the appellant. The appellant took Ms Ko to lunch, allegedly to thank her for her assistance. The lunch lasted three and a half hours, during which the appellant spoke to Ms Ko about his accomplishments.
[34] Thereafter, Ms Ko began to spend more time with the appellant, mostly in the appellant’s office. While in the appellant’s office, the appellant and Ms Ko would listen to music together on Ms Ko’s iPod.
[35] On 26 May 2010, Ms Ko bought a Mont Blanc pen for $740, and an accompanying pen pouch. Sometime between 26 and 31 May 2010, Ms Ko gave the appellant the Mont Blanc pen and pen pouch with a gift card (D64).
[36] Ms Ko’s exam results were released on 31 May 2010. Two hours before they were due to be released, the appellant called Ms Ko. He told Ms Ko over the phone what her grades and confidential class ranking were. The appellant also tried to persuade Ms Ko not to go on an exchange programme to Duke University in the United States of America (“USA”). He told her that if she remained in NUS, she could do even better academically.
The events of June 2010 including the payment for the CYC shirts and the gift of an iPod
[37] In June 2010, the appellant and Ms Ko met every Saturday at his office. Ms Ko assisted the appellant in formatting chapters for his new book. Ms Ko was, at the time, interning in a law firm. The appellant would meet her for lunch twice or thrice a week in addition to communicating electronically with Ms Ko daily.
[38] The appellant and Ms Ko also discussed the possibility of the appellant meeting Ms Ko in the USA while she was there on an exchange programme in the second half of 2010. On 3 June 2010, Ms Ko emailed the appellant a suggested travel itinerary for a proposed trip together to San Francisco from 17 to 24 September 2010.
[40] The appellant also emailed Ms Ko on 7 June 2010 with a write-up on Chopin. This was because the Mont Blanc pen which she had given him in late May 2010 had a Chopin design.
[41] On 8 June 2010, Ms Ko made an appointment at the USA Embassy on the appellant’s behalf so that the appellant could obtain a visa to visit the USA. She emailed the appellant details of the appointment date and a list of documents which the appellant would have to bring for that appointment.
[42] On 12 June 2010, Ms Ko’s boyfriend discovered the emails exchanged between Ms Ko and the appellant. He concluded that they were in a romantic relationship. Ms Ko’s boyfriend told Ms Ko’s father of the relationship between the appellant and Ms Ko. Her father was very angry and told her to break off the relationship she had with the appellant. Ms Ko sent the appellant an email on the same day, which was blind copied to her boyfriend and her father and which read as follows:
Two days after sending the email, Ms Ko and the appellant resumed regular contact.
[43] On 22 June 2010, Ms Ko and the appellant made a trip together to CYC The Custom Shop to tailor some shirts for Ms Ko. While they were there, a staff of the shop suggested that the appellant also tailor some shirts. The appellant acquiesced. Ms Ko paid for his two shirts, ie, the CYC shirts.
[44] In late June 2010, Ms Ko presented the iPod along with another gift card (D68) to the appellant. She had pre-loaded all the songs which they had listened to together onto the iPod.
The events of July 2010 including the payment of the Garibaldi Bill and two acts of sexual intercourse
[45] In July 2010, the appellant asked Ms Ko to coordinate a thank you dinner on the appellant’s behalf for former students who had helped the appellant with his research. Ms Ko picked Garibaldi Italian Restaurant & Bar (“Garibaldi”) as a suitable venue and arranged for a suitable date for the dinner.
[46] On 19 July 2010, Ms Ko booked the appellant’s flights to visit her at Duke University from 17 to 25 September 2010. She forwarded the travel itinerary to the appellant’s email on the same day.
[47] The thank you dinner took place on 21 July 2010. During the dinner, Ms Ko sat on the appellant’s right. She alleged that when the bill was presented, the appellant pushed the bill towards her. This act came as a surprise to her. Ms Ko noted that she had a credit card which entitled her to a 15% discount and she decided to pay the bill without protest. The bill came to $1,278.60. Ms Ko thought that the appellant would subsequently reimburse her. He did not do so immediately. She received $1,000 from him six months later, in January 2011, after Ms Ko sent the appellant a reminder via text message.
[48] On 24 July 2010, just over a week before Ms Ko was due to leave for the USA, she went to visit the appellant in his office. They started kissing on the appellant’s sofa. Their emotions heightened and they had sexual intercourse. This was Ms Ko’s first time having sex.
[49] Ms Ko’s 21 birthday fell on 29 July 2010. On 28 July 2010, the appellant took Ms Ko out for dinner to celebrate her birthday. After dinner, the appellant asked if he could stop by his office to pick something up. Ms Ko acquiesced. When they entered the appellant’s office, the appellant shut the door and locked it behind them. They had sexual intercourse for a second time on the sofa in the appellant’s office.
The events of August and September 2010
[50] In early August 2010, Ms Ko left for a fall semester exchange programme in the USA. Prior to her departure, Ms Ko wrote the appellant a farewell card (D70) and a farewell note (D69). The appellant received the farewell card before Ms Ko’s departure. The farewell note, which was dated 2 August 2010, was received by the appellant after Ms Ko had departed for the USA.
[51] After Ms Ko arrived in the USA, she remained in contact with the appellant via email and video chat. Ms Ko said that she found out in late August 2010 that she was pregnant by the appellant and she subsequently underwent an abortion. She claimed that she was encouraged by the appellant to get an abortion because he told her that he did not have money and did not want to keep the baby.
[52] From 17 to 25 September 2010, the appellant visited Ms Ko in the USA. He stayed with Ms Ko. Ms Ko testified during trial that while the appellant paid for his flights, she paid for his food and shopping expenses during this visit.
[53] During the appellant’s visit to Ms Ko in September, Ms Ko’s boyfriend got suspicious and checked Ms Ko’s email. He found out about the appellant’s visit and that the appellant and Ms Ko had been continuing their romantic relationship in secret. He called Ms Ko’s parents and informed them of Ms Ko’s relationship with the appellant. Ms Ko’s mother became distressed and made Ms Ko promise to break off her relationship with the appellant. Ms Ko complied. She did not contact the appellant from the time he left the USA on 25 September 2010 until her return to Singapore in January 2011.
Events after Ms Ko returned from the USA
[54] Ms Ko returned to Singapore in January 2011. Upon her return, she texted the appellant, requesting that he reimburse her for her payment of the Garibaldi Bill. By this time, she had forgotten the exact sum she had paid. She agreed to accept $1,000 as reimbursement and he handed her cash for that sum in an envelope. Ms Ko testified that her relationship with the appellant after her return was that of a formal teacher/student relationship.
[55] On 30 May 2011, Ms Ko emailed the appellant twice to ask whether it was worth asking for a review of the marks for her paper on Partnership Law. The appellant’s response to this email was not included in evidence at the trial.
[56] On 8 August 2011, Ms Ko and her best friend, Kenneth Teo (“Mr Teo”), approached the appellant to direct them in their respective directed research papers. Ms Ko wanted to do her directed research paper on the topic of Cross-Border Insolvency. This was Ms Ko’s intended area of specialty upon leaving law school. The appellant acquiesced.
[57] On 15 August 2011, Ms Ko also started taking a Personal Property Law class taught by the appellant. Ms Ko earned a “B” grade in the class on Personal Property Law. She obtained an “A” grade in her directed research paper.
The appellant’s arrest and statements
[58] In the morning of 2 April 2012, a team of officers from the CPIB went to the residence of the appellant to bring him to the CPIB for investigation into the events recounted in the preceding paragraphs. They were informed that he had already left for work. Due to traffic conditions, another team was despatched to the appellant’s office at NUS. Before they reached his office, the appellant had learned of the earlier visit to his residence. He quickly sent emails to colleagues and to a solicitor, Mr Peter Cuthbert Low (“Mr Low”), whom he intended to engage. Eventually, the appellant was brought by the second team from his office to the CPIB that day. CPIB officers conducted an interview with the appellant, but did not manage to record a statement from him as he appeared to be unwell. An ambulance was called and the appellant was warded in Alexandra Hospital that evening. He was discharged on 5 April 2012.
[59] After his discharge, the appellant gave the Statements between 5 April 2012 and 24 May 2012 to various CPIB officers. The Statements were as follows:
(a) a statement recorded by Bay Chun How (“Mr Bay”) on 5 April 2012 (PS6);
(b) a statement recorded by Wilson Khoo (“Mr Khoo”) also on 5 April 2012 (PS7);
(c) a statement recorded by Mr Khoo on 10 April 2012 (PS8);
(d) a statement recorded by Teng Khee Fatt (“Mr Teng”) on 17 May 2012 (PS9);
(e) a statement recorded by Mr Teng on 18 May 2012 (PS10); and
(f) a statement recorded by Mr Teng on 24 May 2012 (PS11).
[60] During the trial, the appellant challenged the admissibility of the Statements. He claimed that the Statements had been extracted from him by threats, inducements and promises, and when he was oppressed and mentally unwell.
[61] The appellant also gave six cautioned statements to the CPIB on 26 July 2012. However, the appellant did not challenge the admissibility of these statements.
[62] Ms Ko gave three statements to the CPIB on the following dates:
(a) a statement recorded by SSI Png Chen Chen on 2 April 2012 (PS1);
(b) a statement recorded by Mr Khoo on 28 April 2012 (PS1A); and
(c) a statement recorded by Mr Khoo on 4 May 2012 (PS1B).
The TJ’s decision
[63] I will briefly summarise the decision of the TJ before proceeding to deal with the issues.
The TJ’s decision on the admissibility of the Statements
[64] An ancillary hearing was held to determine the issue of admissibility of the Statements. At the conclusion of the ancillary hearing, the TJ held that the Prosecution had proved beyond reasonable doubt that the appellant had made the Statements voluntarily.
[65] The TJ came to that conclusion based on his finding that the CPIB officers were truthful witnesses. The TJ stated that the appellant’s evidence was inconsistent and found that he exaggerated and fabricated some details of fact.
[66] The TJ also declined to accept expert medical evidence on the condition of the appellant. The TJ found that the voluntariness of the Statements was not affected by any purported medical condition that the appellant was suffering from or any psychoactive medication that he was consuming at the material time.
[67] The TJ accordingly admitted the Statements.
The TJ’s decision on the substantive issue of corruption
[68] The TJ concluded that the appellant did receive the acts of gratification and the only question that remained was one of mens rea.
[69] The TJ found that the appellant’s receipt of the gratification triggered the presumption in s 8 of the Act because NUS is a “public body” for the purposes of the Act as it provides the public utility of education and administers government funds. It was not disputed that Ms Ko had and would have dealings with NUS which employed the appellant at the time the acts of gratification were received by him. The appellant thus bore the burden of rebutting the presumption on a balance of probabilities. The TJ found that the appellant had not discharged this burden of proof. The TJ nevertheless went on to find that even if s 8 did not apply, the Prosecution had proved its case on all six charges beyond reasonable doubt.
[70] The TJ rejected the appellant’s contention that the appellant was in a mutually loving relationship with Ms Ko. The TJ found that the appellant had not been a truthful witness. The TJ characterised the appellant’s relationship with Ms Ko as “love with an ulterior motive”. The appellant had taken advantage of Ms Ko “in a corrupt manner” (see [469] of the TJ’s grounds of decision found at PP v Tey Tsun Hang [2013] SGDC 165, which I will refer to as “the GD”). The TJ found that the appellant had solicited the acts of gratification from Ms Ko.
[71] Although the TJ found that only the appellant’s intention was relevant, he also examined the gratification from the point of view of Ms Ko’s intention.
[72] The TJ relied on Ms Ko’s first statement to the CPIB where she stated that her acts were done so that she would “be in [the appellant’s] good books” and so that she would “not be unduly prejudiced” if she took any of his modules in the future. The TJ came to the conclusion that Ms Ko’s acts were committed with the intention that the appellant would show favour to her in her academic pursuits.
[73] Ms Ko changed her position in her third statement to the CPIB and in her oral evidence at trial. She said the reason for her acts was that she had a crush on the appellant and that they were in a relationship. The TJ allowed the Prosecution’s application to impeach Ms Ko’s credit, specifically in relation to her oral evidence. The TJ placed more weight on Ms Ko’s first statement. He stated that her later evidence was unreliable as it was made to exculpate her from having a corrupt intent to bribe the appellant.
[74] The TJ concluded that it was Ms Ko’s intention to make the acts of gratification so that the appellant would show favour to her. The TJ concluded that the second, third and fourth elements of each offence were made out.
[75] In a separate judgment on sentencing (see PP v Tey Tsun Hang [2013] SGDC 166), the TJ found that there were many aggravating factors. The appellant had initiated the illicit relationship with Ms Ko; he wasted the court’s time by challenging the admissibility of the Statements at trial; and he deliberately destroyed the integrity of a public body, NUS. These were all taken into account in the sentence he arrived at (see [3]–[4] above).
The first issue: admissibility
Parties’ cases on admissibility
[76] On appeal, Mr Low narrowed the challenge on the admissibility of the Statements to three grounds. The first was that the Statements were procured by threats and inducements. The second was that the Statements were made under oppressive circumstances. The third related to the appellant’s medical condition and the side-effects of the psychoactive medication.
[77] On the first ground, the appellant made numerous allegations. He alleged that CPIB officers had threatened to arrest his wife upon her return to Singapore. He alleged that CPIB officers had threatened to communicate damning information to his mother, who had a weak heart. He alleged that CPIB officers had threatened a painful death if he did not confess. He claimed that the CPIB officers had attempted to induce him to confess by telling him that confessions had already been lined up, and by leading him to believe he would be helped if he cooperated.
[78] On the second ground, the appellant complained of badgering and frisking by the CPIB officers, and that the interview room was too stuffy and cold.
[79] On the third ground, the appellant claimed that the TJ had erred in rejecting the evidence of medical experts that the appellant was suffering from an acute stress disorder when the Prosecution did not have any medical expert to rebut the diagnoses of the appellant’s medical experts. The appellant also alleged that he was on psychoactive medication at the time the Statements were recorded. Mr Low submitted that the combined effect of the medical condition and the medication rendered the Statements involuntary.
[80] Counsel for the Prosecution, Mr Andre Jumabhoy (“Mr Jumabhoy”), argued that the allegations of threats and inducements and of oppressive circumstances were not borne out. The testimonies of Mr Khoo, Mr Bay and Mr Teng were consistent and reliable, and were to be preferred over the appellant’s evidence.
[81] Mr Jumabhoy argued that there was no need to call for rebuttal expert medical evidence and that the TJ was entitled to come to his own conclusions as to the appellant’s medical condition. Mr Jumabhoy challenged the diagnoses of the doctors by reference to the International Classification of Diseases (“ICD-10”) and the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) diagnosis guidelines. Mr Jumabhoy also asserted that the extrinsic facts showed that the appellant was lucid, could understand questions, and could respond to them appropriately.
The court’s decision on admissibility
[82] The admissibility of statements from the appellant is governed by s 258(3) of the Criminal Procedure Code 2010 (Cap 68, Act 15 of 2010) (“the CPC”). There is a subsequent edition of the CPC in 2012. Section 258(3) and the accompanying explanations read as follows:
(a) 258 – …
[83] The Prosecution bore the burden of proving beyond reasonable doubt that the Statements were made voluntarily. Prior to the enactment of the CPC in its present form, the provisions governing the admissibility of an accused’s statements were found in s 24 of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”) and s 122(5) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC 1985”). The provisions in both the EA and the CPC 1985 were substantially similar: both related to threat, inducement and promise. The difference was that the former applied to confessions made by an accused, while the latter applied to all statements made by an accused. Courts have frequently referred to s 24 of the EA and s 122(5) of the CPC 1985 collectively as the test of voluntariness (see Seow Choon Meng v PP [1994] 2 SLR(R) 338 (“Seow Choon Meng”) at [30]) despite such a term not being expressly used in either of the provisions.
[84] Section 258(3) of the CPC has consolidated the provisions of the EA and the CPC 1985. Under the current statutory framework, the test of voluntariness is found entirely in s 258(3) of the CPC: it applies to determine the admissibility of all statements made by an accused, whether or not they are confessions.
[85] The test of voluntariness was explained in Gulam bin Notan Mohd Shariff Jamalddin and another v PP [1999] 1 SLR(R) 498 (“Gulam bin Notan”) at [53] as follows:
[86] The common law concept of oppression developed separately from the law relating to threat, inducement and promise. Its roots were in the English common law (R v Priestley (Martin) (1966) 50 Cr App R 183; R v Nicholas Anthony Prager [1972] 1 WLR 260 (“Prager”)).
[87] The common law concept of oppression was adopted in Singapore and subsumed under the rubric of voluntariness. As the Court of Appeal in Gulam bin Notan observed (at [53]), “the common law concept of involuntariness by oppression in [Prager] has been subsumed under s 24 of the [EA]”. While oppression was accepted as a distinct ground for a finding of involuntariness, its relationship with the concept of threat, inducement or promise was unclear. In Yen May Woen v PP [2003] SGCA 29 (“Yen May Woen”), the Court of Appeal remarked (at [20]) that:
[88] The common law definition of oppression is incorporated in the present CPC under Explanation 1 of s 258(3): any circumstance or act which tends to sap and did sap the free will of the accused. Section 258(3) of the CPC, however, rationalises oppression within the framework of threat, inducement or promise. Explanation 1 thus states that if “a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement … such acts will amount to a threat, inducement or promise” [emphasis added]. This is in contrast with the position prior to the enactment of the current CPC (see Yen May Woen cited at [87] above).
[89] Section 258(3) of the CPC does not change the substantive law on oppression despite the conceptual shift in approach. This is borne out by the legislative intent behind the enactment of s 258(3) of the CPC. At the second reading of the Criminal Procedure Code Bill (Bill No 11 of 2010), Mr K Shanmugam, Minister for Law and Second Minister for Home Affairs, stated that the “admissibility test developed by our Courts in [Seow Choon Meng] and [Gulam bin Notan], is now codified in Explanation 1 to clause 258.” [emphasis added] (see Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 cols 415-416).
[90] Thus, the following observations of the Court of Appeal in Seow Choon Meng (at [33]) continue to apply to s 258(3) of the CPC:
[91] I note that Explanation 1 of s 258(3) of the CPC refers to the acts of a person in authority which tend to sap and have in fact sapped the free will of the maker of the statement. However, in Seow Choon Meng, it was stated (at [33]) that the oppressive questioning may arise from the nature, duration or other attendant circumstances of the questioning. This suggests that there may be oppression even if there is no overt act from a person in authority such as a specific threat, inducement or promise. Since the legislative intention was not to depart from what was said in Seow Choon Meng, it seems therefore that notwithstanding the reference in Explanation 1 to the act of a person in authority, no such overt act is required to constitute oppression or rather to constitute a threat, inducement or promise in the words of s 258(3).
[92] There is also another ground of involuntariness. It concerns situations where the maker of the statement is suffering from a medical condition, and/or was taking drugs or medication such that he is unable to give his statements voluntarily. The test in such cases is whether the appellant’s mind went with his statement: see Garnam Singh v PP [1994] 1 SLR(R) 1044 (“Garnam Singh”) at [31]. In this category of cases, the allegation is essentially that the person giving the statement is in such a state of delirium that he does not know or understand what he is saying, or appreciate the circumstances in which he made the statements.
[93] Notwithstanding the structure of s 258(3) of the CPC, the appellant has contested the admissibility of the Statements on each of the three grounds, namely: the presence of threats and inducements; the presence of oppressive circumstances and the presence of a medical condition and/or medication that affected the voluntariness of the Statements. In other words, he treated oppressive circumstances as being different from threats and inducements. For convenience, I will adopt his approach as it makes no material difference to the outcome. The Prosecution relied on the evidence of the respective CPIB officers who recorded each of the Statements to establish that they had been made voluntarily.
The threats
[94] On appeal, Mr Low narrowed the alleged threats to three main types of threats: (1) threats to the appellant’s wife; (2) threats to the appellant’s mother; and (3) threats to the appellant’s life.
[95] In relation to the first group of threats, Mr Low directed my attention to six allegations which the appellant put to Mr Teng, Mr Khoo and Mr Bay. On two occasions, the appellant suggested to Mr Bay that during the recordings of his first two statements on 5 April 2012, Mr Teng had called Mr Bay to tell him to “lift CIQ on the [appellant’s] spouse”. According to the appellant, the word “CIQ” was a reference to an order for arrest for the appellant’s wife. Mr Bay denied having said the alleged word.
[96] The third allegation concerned the same incident. The only difference was that this involved Mr Khoo instead of Mr Bay. The appellant asked Mr Khoo whether he had received a call from Mr Teng on 5 April 2012 to lift CIQ on the appellant’s spouse. Mr Khoo’s response was as follows: “May I clarify what is CIQ?” When he was told that this meant “arrest upon landing in Changi”, Mr Khoo stated that he was “unaware of such an event”. Mr Khoo’s evidence in this regard was consistent with Mr Bay’s evidence.
[97] The fourth and fifth allegations pertained to what Mr Bay had said during the interview process three days earlier, on 2 April 2012. No statement was recorded at this time as the appellant became unwell that evening. The appellant suggested to Mr Bay that he had on two occasions “specifically made repeated threats to [the appellant] to arrest his spouse at Changi Airport” upon her arrival and impound her passport if necessary. Mr Bay again denied these allegations.
[98] The final allegation involved Mr Teng. The appellant suggested to Mr Teng during cross-examination that Mr Teng had told the appellant on 2 April 2012 that CIQ meant arrest upon landing at Changi. According to the appellant when he was cross-examined, the first time that he had heard of the acronym CIQ being used in that way was when Mr Teng threatened to “CIQ” his wife upon her return. Mr Teng denied that he had said this to the appellant.
[99] I now turn to the second group of threats: those allegedly made against the appellant’s mother. These threats were allegedly made by Mr Bay on 2 April 2012 when Mr Khoo, Mr Bay, CPIB Special Investigator Michael Oh Yong Ban and CPIB Special Investigator Hasvind Elangovan visited the appellant’s house with the appellant to retrieve certain items. Mr Bay had allegedly told the appellant in his mother’s presence and in Hokkien, a language the appellant’s mother understood, that he would “tell your mother you [f…] others’ daughters. You can [f…] the old ones. You can [f…] the young ones too. See what your mother do or say.” The appellant allegedly pleaded with Mr Bay not to tell his mother these words as his mother had a weak heart. Mr Bay then allegedly retorted that if the appellant’s mother were to die, it would be because the appellant had been unfilial. The appellant put forward his version of events to Mr Bay. Mr Bay categorically denied these allegations.
[100] The third group of threats which the appellant maintained on appeal were allegedly made against the appellant’s life. The appellant suggested to Mr Teng that Mr Teng had told the appellant in Hokkien on 17 May 2012 words to the effect “I stab you once, you die beautifully with your legs straight. But if you insist, I will stab you tens of times, you will die a most horrendous death.” Mr Teng responded that this was “not true” and that he had only realised that the appellant spoke Hokkien in the course of interviewing the appellant a day later, on 18 May 2012.
[101] The appellant also alleged that Mr Teng had spoken to him in Mandarin words to the effect that Mr Teng, “could allow [the appellant] to die without much suffering, or there shall be greater calamity on [his family] and [himself]”. This was also denied by Mr Teng, who stated that he only realised that the appellant could speak Mandarin during a conversation on 18 May 2012.
[102] The Prosecution pointed out that even if the words were said, the appellant would not have interpreted these words literally as a threat to kill him. In fact, the appellant had admitted in cross-examination that he was aware that these words were meant metaphorically. I am of the view that this was not sufficient to negate the seriousness of the words if they were uttered. The appellant testified at trial that he interpreted the words as a threat to his family life and livelihood. He testified that he had made confessions in his statement recorded on 17 May 2012 because of this threat.
[103] An appellate court’s power of review in respect of findings of fact based on the veracity and credibility of witnesses is very limited: see Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101 (“Tat Seng Machine Movers”) at [41]. There was nothing specific that the appellant pointed to which showed that the TJ’s finding on the credibility and consistency of the CPIB officers on the issue of the threats was plainly wrong.
[104] The appellant did not say that he told Mr Low or Dr Tommy Tan (“Dr Tan”), who examined the appellant on 9, 11 and 16 April 2012, about these threats. Apparently, the appellant informed Dr Michael Yong Ken Hwee (“Dr Yong”), a psychiatrist with Alexandra Hospital, about threats to his life but he did not specify what the threats were. The appellant stated during trial that he had “complained” to his senior colleagues. He did not state who these “senior colleagues” were and he did not state what he had told these colleagues. Nor did any of them give evidence to say that the appellant had mentioned the threats.
[105] Two of his colleagues, the Dean of NUS’s Faculty of Law Professor Simon Arthur Chesterman (“Prof Chesterman”) and Associate Professor Tracey Evans Chan (“Assoc Prof Chan”) took the stand. They gave evidence that the appellant had complained of his physical and mental condition. However, they did not mention the alleged threats. An email from Prof Chesterman to Mr Khoo dated 25 May 2012 (D59) stated that based on what the appellant had told Prof Chesterman, the appellant had “made statements while stressed and anxious which, when calmer, he suggests were made in error.” This email was written in response to Mr Khoo’s request to verify the accuracy of parts of the Statements. Prof Chesterman told Mr Khoo in this email that he believed that the appellant may “be saying things, and even signing statements, that he is not sure of, or which he thinks you might want him to say” because of his medication and the stress he was under. Prof Chesterman also offered to speak to the CPIB officers about this. Notably absent from this email is any suggestion that the appellant had told Prof Chesterman that the CPIB officers had threatened him.
[106] The appellant made more allegations about threatening or intimidating conduct from the CPIB officers when he was on the stand than when he was cross-examining them. For example, when he was giving evidence, he alleged that on 2 April 2012, when he was at the CPIB, Mr Bay had entered a room where he was in. Mr Bay then stared at him, slammed his (Mr Bay’s) hand on a table and pointed a finger at him. He also alleged that on 10 April 2012 when he was driving his car to the CPIB with Mr Bay and Mr Khoo inside the car, Mr Bay made various humiliating remarks to him in the presence of Mr Khoo. Yet the appellant did not mention these allegations to Mr Bay when he was cross-examining Mr Bay. Indeed the appellant admitted that he had made more allegations against Mr Bay, Mr Khoo and Mr Teng in his evidence than had been put to each of them.
[107] Furthermore, when asked about the exact allegations that he was making about the CPIB officers, the appellant answered as follows:
[108] It seems to me that the appellant had adopted a machine gun approach and made whatever allegations he wished to make against the CPIB officers, both when he was cross-examining them and when he was on the stand, without caring about the truth of his allegations. That is why he did not bother to match his evidence with the questions he put to the CPIB officers and he simply added multiple allegations in his evidence. That is also why he resiled from his position and said he did not wish to make serious allegations against them. There was no reason for me to disagree with the TJ’s conclusion on this and I reject the appellant’s allegations about the threats made against him.
The inducements
[109] There were two alleged inducements. The first was from Mr Bay. The appellant had asked Mr Bay whether, during the journey on 2 April 2012 from the appellant’s home to the CPIB headquarters, Mr Bay had “continuously pressured” the appellant to confess with words such as “got so many photos you still want to deny ah?” Mr Bay also allegedly told the appellant that he had lined up Ms Ko and the appellant’s previous students and that they had confessed to corruptly giving the appellant gifts. Mr Bay allegedly then concluded that the appellant should “tell [his] side of the story to save [himself]”. Mr Bay denied this allegation.
[110] The second allegation was made against Mr Teng. The appellant had asked Mr Teng whether he had uttered to the appellant words to the effect that if the appellant cooperated, he would find a way to help the appellant. Mr Teng denied this.
[111] The appellant faced the same problem with these allegations as he did with the alleged threats. For example, he did not mention them to Mr Low or Dr Tan or Dr Yong or to his colleagues and he said he did not want to make serious allegations against the CPIB officers. In the circumstances, I agree with the TJ that these allegations were not made out.
Oppression
[112] Mr Low submitted that there had been oppression which made the statements involuntary and that the TJ should have excluded the Statements. Mr Low raised four factors in this respect: (1) Mr Bay had admitted to badgering the appellant; (2) the interview room was too cold; (3) the room was too stuffy; and (4) a body search was conducted on the appellant.
[113] The litmus test for oppression is whether the investigation was, by its nature, duration or other attendant circumstances, such as to affect the accused’s mind and will such that he speaks when he otherwise would have remained silent.
[114] It is apposite to bear in mind the observations of the Court of Appeal in Yeo See How v PP [1996] 2 SLR(R) 277 (“Yeo See How”) that the person in authority does not have an obligation to remove all discomfort. The appellant in Yeo See How had complained that he was very cold and was suffering from gastric pains. He alleged that he had asked the investigator for medicine for his gastric pains but had been told that there was no such medicine. The Court of Appeal observed at [40]:
[115] The first allegation that Mr Low raised was one of badgering. Mr Bay agreed that he had badgered the appellant. During re-examination, Mr Jumabhoy asked Mr Bay what his understanding of badgering was. Mr Bay responded: “Pestering and pestering”. I find that “pestering” is not enough to constitute oppression which would affect admissibility. It is not surprising to find an element of pestering in the process of investigation as investigators try to find answers especially if they suspect that a person is being evasive. Furthermore, the appellant did not put to Mr Bay or the other CPIB officers that the pestering was so intense that his mind and will were sapped.
[116] The second allegation is that the interview room was too cold. However, the appellant did not directly question the CPIB officers about the temperature of the room or how it affected him. The appellant instead asked Mr Bay questions such as whether he noticed that the appellant had a white towel wrapped around him. He did not ask Mr Bay whether he agreed that the interview room was too cold and that the conditions were so oppressive that they sapped the appellant’s free will.
[117] I also observe that the second and third allegations, which both related to events on 2 April 2012, were contradictory. The third allegation was that the room was too stuffy. Mr Low pointed out that the appellant had complained about this upon his admittance to Alexandra Hospital. At para 7 of a medical report by Dr Yong dated 18 September 2012, it was stated that the appellant “claimed that the interrogation room was stuffy and “no air” and he felt like he could not breathe.” It was unclear to me how the room could be stuffy and at the same time cold. Furthermore, the alleged stuffy condition and its effect on the appellant was again not put to the CPIB officers to offer them a chance to respond or deny the allegation.
[118] The final allegation was that a body search had been conducted on the appellant. Mr Bay’s evidence was that he had frisked the appellant over the appellant’s clothing before the start of the interview on 2 April 2012. I do not think that a body search would have constituted oppression on 2 April 2012, much less three to eight days later (after he had rested in hospital) when PS6, PS7 and PS8 were recorded or one month later when PS9, PS10 and PS11 were recorded. Moreover, it was again not put to the CPIB officers that the frisking incident so troubled the appellant that it affected the voluntariness of the Statements.
[119] I am of the view that the pestering and the frisking of the appellant do not constitute oppression. I do not accept that the room was too cold or too stuffy. Even if either of these allegations were true, I do not accept that they operated to affect the appellant’s will adversely.
The effect of the appellant’s medical condition and medication
[120] Mr Low relied on the diagnoses of Dr Yong and Dr Tan, and their prescriptions of psychoactive medication to the appellant. Mr Low argued that these were evidence that the Statements were given involuntarily, and that the evidence of the doctors could not be challenged by the TJ.
[121] The threshold for impugning a statement on the ground of involuntariness due to a medical or psychological condition is a high one. In Garnam Singh, the Court of Appeal emphasised (at [31]) that:
In that case, the accused was a drug addict who claimed that he was experiencing drug withdrawal symptoms when his statement was recorded. The Court of Appeal held that the statement was voluntary. In arriving at its conclusion, the Court of Appeal stated (at [31]) that the medical evidence did not describe “how the effects of withdrawal from drugs affected the appellant’s medical and psychological condition”. Instead, the medical evidence indicated that the effects of drug withdrawal had worn off by the time the accused’s statement was recorded.
[122] Similarly, in Gulam bin Notan, an accused who was suffering from methamphetamine withdrawal claimed that his statement was involuntary. The Court of Appeal observed (at [54]) that the accused was able to understand the questions which were asked, and thus concluded that the statements were voluntary.
[123] PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 (“Dahalan bin Ladaewa”) is the only reported local case where the court found that the accused’s medical condition affected the voluntariness of his statement. There, the accused was a heroin and erimin addict who had consumed both drugs on the morning the statement was recorded. He claimed that he could not remember what he had said in his statement. Rajendran J distinguished the case before him from Garnam Singh. In Garnam Singh, the accused had been in hospital for five days before the statement was recorded; the window of time would have allowed for the effects of drug withdrawal to abate. In contrast, Rajendran J found that the statements in the case before him had been recorded on that very morning, when the effects of drug withdrawal were at its peak.
[124] The above analysis is important for two reasons. First, it establishes the high threshold before the court finds that a statement was not voluntary due to a medical condition. Second, it illustrates the two distinct stages of the voluntariness enquiry in which medical evidence is relevant. The first stage concerns the diagnosis of the medical condition of the accused. The second stage concerns the effect of such a medical condition on the accused’s ability to make a voluntary statement.
[125] The medical evidence came principally from three doctors:
(a) Dr Ong Ee Wei Sharon (“Dr Ong”), third-year medical officer at Alexandra Hospital at the relevant time;
(b) Dr Yong, a consultant psychiatrist, as well as the Director of Psychiatry for Alexandra Hospital, who has been practicing psychiatry for about ten years; and
(c) Dr Tan, a psychiatrist.
Dr Ong and Dr Yong gave evidence at the ancillary hearing. Although Dr Tan had undergone an eye procedure and was on hospitalisation leave at the relevant tranche of the ancillary hearing, I note that the appellant had initially elected not to call Dr Tan as a witness at all. At a pre-trial conference on 26 December 2012, the Defence had said that it would not be calling him as a witness. However, during the ancillary hearing on 18 January 2013, the appellant indicated that he would be calling Dr Tan eventually. He gave the reason that because Mr Khoo was referring to some information in his investigation diary, he (the appellant) decided to refer to a report from Dr Tan. I find this a lame excuse. If Dr Tan was as important a witness as the appellant was suggesting, then the appellant would have decided to call him as a witness regardless of what Mr Khoo’s evidence would be. The appellant had not made any arrangement for Dr Tan to be available at the relevant tranche of the ancillary hearing. Dr Tan eventually gave his evidence during the Defence’s case, after the TJ had ruled that the Statements were made voluntarily and, consequently, were admissible as evidence.
[126] Dr Ong’s review of the appellant focused predominantly on his physiological rather than psychiatric condition. This was apparent when she was asked whether the appellant was “in full possession of his mental faculties”, and whether he could “make decisions” at the time he was released. Dr Ong did not answer the question, but instead responded that that was a decision for the psychiatrist in charge, Dr Yong. Dr Yong and Dr Tan, both psychiatrists, gave evidence on the appellant’s psychiatric condition. The subsequent portion of the analysis will thus focus primarily on the evidence of Dr Yong and Dr Tan, as the appellant is claiming that the existence of a psychiatric condition, rather than a physiological one, affected the voluntariness of the Statements.
[127] I turn now to the medical evidence relevant to the first stage of the inquiry: the diagnosis of the medical condition that the appellant was suffering from, if any.
[128] According to para 4 of a report dated 18 September 2012 (D44) by Dr Yong, the appellant was seen by two doctors when he was at Alexandra Hospital’s emergency department on 2 April 2012. One of the two doctors was Dr Tsu Boon Hsiung who diagnosed the appellant with altered mental state. The appellant was reviewed on 3, 4 and 5 April 2012 by other doctors, one of whom was Dr Ong.
[129] Dr Yong first examined the appellant on 3 April 2012. He also saw the appellant on 5 April 2012 to clear the appellant for discharge from the hospital, and again on 12 April 2012 at the out-patient specialist clinic. Dr Yong explained that altered mental state is a term used by physicians to describe an abnormality of functioning of the patient’s mind. It is “a form of diagnosis that is vague and usually it means that they are not certain what … the cause [is]”. After Dr Yong’s examination of the appellant on 3 April 2012, Dr Yong diagnosed the appellant as suffering from acute stress disorder. Dr Yong stated that acute stress disorder is a form of anxiety disorder caused by exposure to traumatic events, or from perception of threat either directly to the person or to his family members. He explained that a person suffering from such a condition may experience dissociative symptoms and feelings of de-realisation and de-personalisation.
[130] Dr Tan examined the appellant on 9, 11 and 16 April 2012. Dr Tan diagnosed the appellant with acute stress reaction, which was characterised by the appellant exhibiting a depressed mood, anxiety, and psychomotor retardation.
[131] The diagnoses of Dr Yong and Dr Tan appeared to be slightly different. The former referred to an “acute stress disorder”, while the latter referred to an “acute stress reaction”. However, the evidence of Dr Yong was that the terms are merely different labels for what is, in substance, the same medical condition. The former is a label adopted by the ICD-10 diagnostic tool, while the latter is a label adopted by the DSM-IV. I will use the label “acute stress disorder” in this judgment to refer to the medical condition in question.
[132] The TJ did not accept either Dr Yong’s (at [186]–[190] of the GD) or Dr Tan’s (at [608]–[629] of the GD) diagnoses that the appellant was suffering from an acute stress disorder. In doing so, the TJ acknowledged Dr Yong’s remarks that psychiatry could not empirically measure a condition; an accurate diagnosis depended largely on the information that the psychiatrist was able to obtain from the patient (at [188] of the GD).
[133] The TJ was of the view that Dr Yong’s diagnosis was not accurate as it was premised on false or inaccurate information provided by the appellant. The TJ found that the appellant had exaggerated to Dr Yong the length, conditions and circumstances of the CPIB investigation on 2 April 2010 (at [187]–[190] of the GD). Further, para 9 of Dr Yong’s report dated 18 September 2012 (D44) stated that the appellant had said that his life was threatened and that he was worried about his safety. The TJ noted that there was no threat of physical harm or death to the appellant or to his family, which is a requirement for an acute stress disorder under DSM-IV (at [189] of the GD). This is in line with my conclusion that no threat was made against the appellant, let alone a threat against his life.
[134] The TJ also did not accept Dr Tan’s diagnosis for a number of reasons.
(a) First, Dr Tan’s diagnosis was inconsistent with the diagnostic guidelines in the ICD-10 (at [608] and [614] of the GD). Dr Tan suggested that the stressor giving rise to acute stress disorder could be cumulative and also that severe stress could cause the acute stress disorder to extend beyond a few days. Both of these suggestions were contrary to the ICD-10 guidelines.
(b) Second, Dr Tan’s opinion on the stressor shifted in an attempt to maintain conformance with the ICD-10 guidelines. Dr Tan first relied on the CPIB interrogations per se as the stressor. After realising that they were insufficient to amount to an exceptional stressor, Dr Tan attempted to rely on the fearful consequences of conviction on top of the appellant’s fear of the CPIB investigations (at [608] of the GD).
(c) Third, Dr Tan’s report dated 27 August 2012 (in which his diagnosis was contained) was incomplete because it was based solely on Dr Tan’s interview with the appellant (at [609] of the GD). Dr Tan did not have the opportunity to interview the appellant’s colleagues and family members, which would have provided a firmer basis for the diagnosis.
(d) Fourth, Dr Tan’s report was premised on incorrect information (at [612]–[614] and [618]–[622] of the GD) which was provided solely by the appellant. Dr Tan gave evidence that his diagnosis was based on: the appellant’s fear of being locked up forever; the appellant’s fear that his wife would be arrested on her return from overseas; and the appellant’s fear that he would lose his family and livelihood. In respect of the first factor, the TJ concluded that the fear must have been irrational, because the appellant was a former District Judge who must have known he could not be detained for more than 48 hours. In respect of the second factor, the TJ concluded that no one had threatened the appellant with physical harm or death to himself or his family. This is in line with my conclusions above. In respect of the third factor, the TJ concluded that the fear was irrational, as it was always open to the appellant to find another job, and there was nothing at that time which suggested the appellant’s family would leave him.
(e) Fifth, the appellant’s ability to give a coherent account of the relevant facts to Dr Tan on 9 April 2012 was inconsistent with the appellant suffering from symptoms of dissociated amnesia (at [615]–[617] of the GD).
(f) Sixth, the appellant did not experience an extreme stressor in the sense contemplated by the ICD-10 guidelines. The stressors listed in the diagnostic guidelines, such as multiple bereavements and natural catastrophes are “extreme with a sense of finality”. In contrast, the stressors which Dr Tan stated gave rise to the acute stress disorder were “neither extreme nor final…[they] were potential risks purportedly internalised by the [appellant]” (at [623] of the GD). Further, the appellant’s claim that the consequences of conviction was a stressor was inconsistent with his behaviour at the trial and the results of the medical examination conducted in the midst of the trial (at [624]–[628] of the GD).
[135] The TJ was doubtful of the factual premises of Dr Yong’s and Dr Tan’s diagnoses even though Dr Yong was of the view that the appellant was not faking his symptoms. The TJ found that “the [appellant] was not truthful, and…had a tendency to malinger” (at [613] of the GD). The TJ’s finding was based on the report of Dr Gwee Kenji (“Dr Gwee”) (D92), a Senior Clinical Forensic Psychologist at the Institute of Mental Health (“IMH”). The report was admitted without objection. It utilised the Test of Memory Malingering and the Weschler Memory Scale, and had concluded that the appellant’s memory functions were “not as deficient as the…results suggest” because “he did not put in his best effort on the memory tests.” Dr Gwee’s report arose from an application made by the appellant for psychiatric evaluation on his fitness to stand trial midway through proceedings on 18 April 2013. Both the Prosecution and the appellant agreed to an IMH assessment to determine the appellant’s fitness for trial. Dr Gwee was the psychologist and Dr Bharat Saluja (“Dr Saluja”) was the psychiatrist who assessed the appellant. Consequently, the TJ concluded that since the “sole source of reference and basis” for Dr Yong’s and Dr Tan’s diagnoses were their interviews with the appellant, the accuracy of the diagnoses were accordingly suspect.
[136] The TJ was not obliged to accept either Dr Yong’s or Dr Tan’s evidence without question. This is so even though the Prosecution did not produce expert evidence to the contrary. The observations of V K Rajah JA in Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983 (at [76]) are apposite:
The TJ did precisely what he was meant to do: he sifted, weighed and evaluated Dr Yong’s and Dr Tan’s evidence in the context of the medical literature which Dr Yong and Dr Tan referred to and in the context of the overall evidence. I conclude that the TJ was not plainly wrong in declining to accept the diagnoses of Dr Yong and Dr Tan.
[137] If the TJ was wrong in reaching this conclusion, the second stage of the enquiry becomes critical: whether the appellant’s medical condition affected the voluntariness of the Statements. In this respect, the appellant relied on the cumulative effect of the psychoactive medication he was consuming at the time when the Statements were recorded as well as his medical condition.
[138] I will first address the impact of the psychoactive medication on the appellant during the recording of the Statements. The appellant was unclear, both at trial as well as at the appeal, as to what his case was on the impact of the psychoactive medication on voluntariness. It was perhaps this lack of clarity that resulted in the dearth of medical evidence on the side-effects of the psychoactive medication.
[139] The appellant was prescribed three types of psychoactive medication by Dr Yong on 5 and 12 April 2012: (1) Escitalopram to treat anxiety and depression; (2) Alprazolam to treat anxiety attacks; and (3) Diazepam to treat insomnia. Dr Tan also prescribed the appellant Lexotan and Valdoxan. Lexotan is a sleeping tablet while Valdoxan is an anti-depressant. Dr Yong gave evidence on the symptoms each of the psychoactive medications was prescribed to treat. However, neither Dr Yong nor Dr Tan addressed the impact of the medication on the appellant’s ability to understand questions and respond voluntarily to them during the interviews with the CPIB officers when the Statements were recorded.
[140] During the trial, the appellant’s case continually shifted in respect of the impact the medication had on voluntariness. The appellant first alleged that at the interview with Mr Bay on 5 April 2012, the medication had the effect that the appellant “could not remember the exact dates, times and places the sexual intercourse took place”. Mr Bay denied that the appellant raised this issue with him.
[141] The appellant next alleged that on 10 April 2012, the medication had “knocked [him] out”, making him “extremely fatigued” and sleepy.
[142] The appellant finally alleged that when he was interviewed by Mr Teng on 17 and 18 May 2012, he “was no longer in a position to engage with [the interviewer]”. The appellant did not elaborate on what he meant by “no longer in a position to engage”, nor did he give any specific factual examples to substantiate what this assertion meant.
[143] On appeal, Mr Low did not clarify what the appellant’s case was on the impact the psychoactive medication had on the voluntariness of the Statements.
[144] I find it difficult to accept the appellant’s contention that the psychoactive medication affected the voluntariness of the Statements.
[145] First, I find it highly improbable that the same medication could have produced these varying side-effects during the recording of the different statements. There is no medical evidence which supports this contention.
[146] Second, both Mr Teng and Mr Bay denied that the appellant had raised his distressed state to them. For example, Mr Teng testified that he had told the appellant that he need not record a statement on 17 May 2012 if he felt unfit to do so. There was no reason for me to disbelieve their testimonies.
[147] Third, the appellant’s behaviour at trial was inconsistent with his argument that the psychoactive medication affected his ability to make the Statements voluntarily. Throughout the course of the trial, the appellant’s prescription of psychoactive medication was: 15 mgs of Escitalopram daily; half-tablets of 0.25mgs of Alprazolam thrice daily; and 5 mgs of Diazepam every night. This was exactly the same prescription which Dr Yong gave to the appellant on 5 April 2012 and 12 April 2012. Further, in the appellant’s review with the IMH to determine his psychiatric fitness to continue with the trial, he had told the IMH psychiatrist, Dr Saluja, that “he [the appellant] had been taking extra tablet (sic) of alprazolam, diazepam and escitalopram during the trial.” The medication the appellant was taking during the trial was therefore the same (possibly even more, if the information the appellant supplied to the IMH psychiatrist was accurate) as that during the period when the Statements were recorded. One would have expected the effects of the psychoactive medication to manifest itself in the appellant’s performance at trial at a level similar to that when the Statements were being recorded. Yet, there was nothing to suggest that the appellant’s behaviour at the trial was adversely affected by the psychoactive medication. In fact, the TJ observed (at [641]–[642] of the GD) that the appellant “had a lucid mind, and was able to think and communicate clearly during the trial…[t]hroughout the trial, he was able to engage in sharp exchanges with the prosecution.”
[148] In the circumstances, I find that there is no evidence to suggest that the psychoactive medication had any impact on the appellant’s ability to make voluntary statements beyond the effects that the appellant’s medical condition had on him. I shall now address the effects of the appellant’s medical condition.

The judgment continues past this page. Read the rest at eLitigation.

Tey Tsun Hang v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

Issues before the court

The law on corruption

The relevant statutory provisions

The elements of the offence

Actus reus

Mens rea

The presumption under s 8 of the Act

Background facts

The events from January to April 2010

The events of May 2010 including the gift of a Mont Blanc pen and pen pouch

The events of June 2010 including the payment for the CYC shirts and the gift of an iPod

The events of July 2010 including the payment of the Garibaldi Bill and two acts of sexual intercourse

The events of August and September 2010

Events after Ms Ko returned from the USA

The appellant’s arrest and statements

The TJ’s decision

The TJ’s decision on the admissibility of the Statements

The TJ’s decision on the substantive issue of corruption

The first issue: admissibility

Parties’ cases on admissibility

The court’s decision on admissibility

(a) 258 – …

The threats

The inducements

Oppression

The effect of the appellant’s medical condition and medication