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[1] Prosecution of Offences and [2] The Charge

PROSECUTION OF OFFENCES

Who prosecutes
- The Public Prosecutor (PP), his deputies and assistants
- Private Prosecutions

[a] Public prosecutions

- The Attorney General / Public Prosecutor – different persons in some jurisdictions. In sg, they are the same
person.
- Prosecutorial Discretion –
 The exercise of prosecutorial discretion lies ultimately in the hands of the Public Prosecutor and may
not be reviewed by the Court.
 ex of decision whether to prosecute or not. Decision on what charge to pros partr person with, who to
charge out of so many persons in scase, and when to prosecute – now or later?
 Decisions made after considering all facts of case
 Also quasi judicial –
 Many lesser charges to refer to as well
- AG/PP empowered under the Constitution to initiate, conduct and discontinue criminal proceedings
- power is a discretionary one which is exercised in the public interest
- DPPs may choose to prefer different charges for a particular act, prosecute accomplices differently
- PP’s discretion is an extremely wide one
- Thiruselvam s/o Nagaratnam v PP:
• Prosecution can proceed on charges of different severity as between different participants of the
same criminal acts and that this did not contravene the equality provision under Art. 12
Constitution
- Teh Cheng Poh v PP:
• many factors which a prosecuting authority may properly take into account in exercising its
discretion as to whether to charge a person at all
• all that equality before the law requires is that the cases of all potential defendants to criminal
charges be given unbiased consideration by the PP and that decisions whether or not to prosecute
in a particular case for a particular offence

- Article 35(8) Constitution


 AG’s discretionary power to “institute, conduct or discontinue any proceedings for any offence”
 very wide powers – may be critized but not possible to have guidelines because entire field of crim law
very wide and complex
- Section 336(1) CPC:
 AG (who is the Public Prosecutor) shall have control and direction of criminal prosecutions and
proceedings
o Read your Penal code and CPC!!!
o Position of AG – public office entrenched in constitution
 Above HC judges in seniority and below chief justice nad canot be removed nless proced st out in
constitn is followed
 See article 35 Constitution

Public Prosecutor.
336. —(1) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal
prosecutions and proceedings under this Code.
(3) Subject to this section, the Attorney-General may appoint any officers or persons to assist him or to act as his
deputies in the performance of any of the functions or duties of the Public Prosecutor under this Code or under any
written law and may assign to them their functions and duties.

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- the Public Prosecutor who is the Attorney-General is constitutionally entrenched and has tremendous
discretion in proceedings against persons under the criminal law
- difficult to state the matters that the AG takes into account in deciding whether a particular charge should be
brought or withdrawn, AG himself does not formulate the guidelines
- it is very much left to his deputies who de facto exercise all his powers, and if you feel that your client
should not have been charged, then you write to the Deputy Public Prosecutor (DPP), who will decide
whether to accede to your representations or not
- there are anywhere between 50 to 100 DPPs at any time in the Attorney-General’s Chambers
- they are assisted in their prosecutorial function in the Courts by the Assistant Public Prosecutors (APPs),
Police Prosecutors and Ministry of Manpower Prosecutors

o The accused person or defence counsel may write in representations to the prosecuting authority or the AG’s
Chambers to have a charge reduced or withdrawn.
o PP v Glenn Knight [1999] 2 SLR 499
o In exceptional cases oral representations may be made to the Senior DPP at the Subordinate Courts.
- pros and cons in writing to the DPP
• positive aspect is that he may accede to your request and have the charges withdrawn
• the danger is that the DPP will send your letter of representation over to the investigating agency ,
which is giving the Investigating Officer a full insight into your case
• your letter can by used to cover up those aspects of the case that were weak
- DPP seldom informs the court why the charge has been withdraw
- Public Prosecutor’s discretion is very broad
- very rarely that a DPP would want to interfere merely because your client says he is not guilty
- there must be other evidence
- DPPs’ discretion is a very important function and you must apply your mind to it
o Attorney-General’s Chambers
- Headed by the AG and assisted by a Solicitor- General
- AGC comprises 5 legal divisions:
 Civil Division (Civil)
 Criminal Justice Division (CJD)
 International Affairs Division (IAD) – eg compliance with international treaties etc
 Law Reform & Revision Division (LRRD)
 Legislation Division (Legis)

Control of Prosecutions
- CJD’s control over criminal prosecution:
a) DPPs determine whether there is sufficient evidence for a prosecution; the police and other
investigation agencies routinely refer the investigation papers (“IPs”) of cases to the CJD when
they are uncertain; where the PP’s sanction or consent is required, the IPs must also be forwarded
to the CJD
b) Prosecutors from various enforcement agencies and government bodies are authorized by the AG
to conduct prosecutions; these include police prosecutors and prosecutors from government
ministries; experienced DPP is stationed at the Sub Courts as the Senior DPP, role is to oversee and
review all cases fixed for hearing at the Sub Courts
c) AG may specifically authorize a private lawyer to conduct prosecutions on his behalf, usually
granted in cases involving the infringement of intellectual property rights; PP retains control and
direction over these prosecutions, control extends to the appeals process because s. 245 CPC
provides that when an accused person is acquitted by a District Court or a Magistrates’ Court, there
can be no appeal except by the PP
d) All prosecutions in the High Court and appeals in the High Court and the Court of Appeal are
undertaken by DPPs

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- Public Prosecutor – Delegation
o Solicitor-General: s 336(2) CPC (is a DPP, but acts as PP in absence or inability of AG) – impt
because some laws req specific acts of AG. Eg after appeal dismnisssed, prisoner may ask for clarency.
When he does so, law says that AG must give his opinion on issue of sentence – cannot be given by
DPP or SG. It must be given by AG himself.

- AG, SG or a DPP may under s. 336(7) CPC authorize any advocate to act as PP in the prosecution of a
seizable offence before a District Court or an inquiry before a Magistrate’s Court
Public Prosecutor.
336. —(7) Every prosecution for a seizable offence before a District Court and every inquiry before a
Magistrate’s Court shall be conducted by the Public Prosecutor or by the Solicitor-General or by a deputy
appointed under subsection (3), or by an advocate, officer or other person generally or specially
authorised by the Public Prosecutor or by the Solicitor-General or by a deputy appointed under subsection
(3) in that behalf.
- Criminal Justice Division (“CJD”) of the Attorney-General’s Chambers is the organizational extension of the
AG in his role as PP
- The core functions performed by CJD are to advise on and prosecute criminal cases before the Subordinate
Courts and Supreme Court
- This work is largely done by DPPs and Assistant Public Prosecutors (“APPs”)

Public Prosecutor.
336 (2) The Solicitor-General shall have all the powers of a Deputy Public Prosecutor and shall act as Public
Prosecutor in case of the absence or inability to act of the Attorney-General.

- Power of AG to appoint deputies or assistants to perform any of his functions/duties of PP under CPC or any
other law: s 336(3) CPC
- Powers, functions & duties are gazetted in the Govt Gazette: - see scope and powers
 Deputy Public Prosecutors (DPPs)
- group of legal officers of CJD are gazetted as DPPs
- as deputies of the PP acting under his authority, DPPs control and direct the prosecutorial process
- oversee the investigation of criminal cases and in this regard, exercise control over the police and
other investigation agencies
- have overriding discretion whether to prosecute an offender and what charges to proceed with,
once investigations are concluded
- functions thus include the following:
a) ordering that further evidence be taken under s. 340 CPC;
b) granting sanctions and consents for the prosecution of offences;
c) granting authorizations to private parties to prosecute certain offences on the PP’s behalf;
d) issuing fiats and altering or redrawing charges under s. 343 and 347 CPC
e) applying for cases to be transferred under s. 186 CPC; and
f) exercising the power granted to the PP under s. 10 CPC

 Assistant Public Prosecutors (APPs)(recent; since 2000)


- Gazetted (1 June 2000) with power
 To conduct prosecutions and inquiries before the District Courts and Magistrates’ Courts
and to enter a nolle prosequi at any state of a summary trial;
 To apply for the transfer of cases under Section 186 of the Code; and
 To exercise the powers given to the Public Prosecutor by Section 10 of the Code.
Enlargement of powers of Magistrate’s Court.
10. When under section 9 an offence is triable by a District Court but not by a Magistrate’s
Court the Public Prosecutor may, nevertheless, if he considers it desirable, by writing under
his hand, authorise a Magistrate’s Court in any particular case to try the offence, but that
authorisation shall not enlarge the powers conferred on the Magistrate’s Court by section 11
(5).
 Being a new scheme, all should be vigilant to ensure that powers are properly exercised. In
particular :

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o - APPs may not conduct appeals
o - APPs may not appear for High Court trials
o - APPs may not issue sanctions / consents
- duties include the following:
a) conducting prosecutions and inquiries before the District Courts and Magistrates’ Courts
and entering a nolle prosequi at any stage of a summary trial;
b) applying for cases to be transferred under s. 186 CPC
c) exercising the power granted to the PP under s. 10 CPC

 Legal Officers in statutory boards


 Police Prosecuting Officers (POs) Public Prosecutor – Delegation

- See PLC manual for different powers, functions & duties that DPPs and APPs have
o E.g. – appeals and High Court trials; granting fiats, sanctions & consents; ordering police officers to
exercise special investigative powers under Ch XIII CPC in non-seizable cases

- But note: certain powers must be exercised by the PP personally, and may not be delegated – e.g. s 7(2) CPC
(AG’s application to transfer case from High Court to District Courts)
o Cannot be delegated
o IMPT!!!!!!!!!!!! – section 7 – transfer of case fr High court to sub courts – type of cases
o See schedule A
o Schedule A will tell you whether or not partr case MUST be heard in high court. Some cases can
be heard in district court as well as high court butsome only in high court. 8 columns in sched A.
see last column.
o If must be heard in high court, then section 7 will apply.
o To transfer case down -
- 1. Will then need application of PP
- 2. also need consent of accused
o E.g. Section 7(2) of the CPC

Criminal jurisdiction of District Courts.


7. —(2) Notwithstanding subsection (1), a District Court may try any offence, other than an offence
punishable with death, if —
(a) the Public Prosecutor applies to such Court to try such offence; and
(b) the accused consents, or, if more than one are charged together with the same offence, all such accused
consent to be tried by such Court.

- Note also: difference between –


o private prosecution (s 336(8) CPC) -
o public prosecution conducted by private persons or advocates by way of fiat (s 336(7) CPC) – esp.
IPR infringements, town council violations, statutory infringements etc
- public interest. Public element to it.
[b] Private prosecutions
- Common law on private prosecutions partially preserved under s 336(8) CPC: “Nothing in this section shall be
held to preclude private persons or any officer of any Government department from appearing in person or by
advocate to prosecute in summary cases before a Magistrate’s Court or in summary non-seizable cases before a
District Court”
- see CPC again!!!!!!!!!!!! Very impt
- summary case – see section 180 – sets out summary trial
- as opposed to HC trial where statements have to be admitted

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- also defn of seizable and non seizable – whether can arrest without warrant or not. Non seizable cases are not so
serious cases. See PC – wrongful confinement. Non seizable case heard in DC. Punishment is less than seixable
case for non seizable case. Low sentence. Control on type of offences that private prosecutor may initiate
- For less serious offences
- Always subject to intervention by the PP
o Outstanding issues
 Where a Private Prosecutor appeals against sentence, does he have a right of audience in the High
Court ?
 If upon conviction the accused appeals, does the Private Prosecutor have the right to appear in the
High Court ?
- No right of appeal against acquittal :
 s 245 reads : “When an accused person has been acquitted by a District Court or Magistrate’s Court
there shall be no appeal except by the Public Prosecutor.”

Jasbir Kaur v Mukhtiar Singh [1999] 2 SLR 349 – powers of PP to discont proceedings/ whether private person
has right to appear in HC.
- The appellant prosecuted the respondent by way of a private summons in the magistrate’s court on the charges of
insulting her modesty and criminal intimidation. At the close of the proceedings, counsel for the appellant made
an application for prosecution costs under Section 401(1)(a) of the CPC. The trial judge refused to grant the
application. The sole issue arising in this appeal was whether the trial judge erred in refusing to exercise her
discretion under Section 401(1)(a) of the CPC to award the costs of prosecution to the appellant. The appellant
contended that the respondent had sufficient means to pay the prosecution costs and that the case against the
respondent was so strong that he ought to have pleaded guilty from the start. The DPP intervened and sought to
withdraw the appeal on two grounds.
- The first objection was that the appellant, as a private person, had no right of audience before the High Court by
virtue of s 336(6) of the CPC. The second objection was that the Public Prosecutor had a recognised right to
intervene in any criminal proceedings and he could, in the exercise of his discretion, intervene to withdraw the
present appeal.
- Held: In cases where the Public Prosecutor decided to intervene and take over the conduct of the
proceedings, it was clearly justifiable to oust the private prosecutor’s right of audience in favour of the
Public Prosecutor who ultimately had the control and direction of all criminal prosecutions and
proceedings under the CPC.
- However, in cases where the Public Prosecutor decides not to intervene and the private prosecutor decides to
appeal in person, then, based on the DPP’s submission, such an appellant would also not have a right of audience
in the High Court. It was difficult to justify why such an appellant should be effectively denied the right of
appeal. However, it would not be necessary to decide on this point for the purposes of this appeal. In exercising
the discretion under s 401(1)(a) to award prosecution costs, the court is entitled to take all the
circumstances into account, including the strength of the case against the accused, his knowledge of this
and his conduct of his defence. Nevertheless if he loses and the court thinks that his defence has been
conducted extravagantly and unnecessarily, he may be ordered to pay some part of the costs, which he
caused the prosecution to incur. Oh Cheng Hai v Ong Yong Yew [1993] 3 SLR 930 followed.

[c] Control of prosecutions


- Investigation by police & other enforcement agencies – compiled in investigation papers (IPs) (file)
- once investigations completed/ or when there are legal issues during investigations -
 IPs frequently referred to AGC for advice, directions &/or concurrence to charge, reply to
representations etc
- AGC may call for IPs handled by prosecutors from enforcement agencies, e.g. Customs, NEA etc
 because issues legal may have come to their attention
 reprsentaiotns made and they want to deal with the representations
- Fiats issued to private persons and advocates are subject to conditions
 fiats determine what can be done
 whose concurrence to be obtained if decisions to be made – need to send file back to AGC

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- AGC also stations a Senior DPP at the Subordinate Courts to oversee all prosecutions fixed for hearing
 he deals with all matters fixed for hearing or mention or PTC in court itself
- AGC may intervene in private prosecutions Control of prosecutions – sanctions & consents
 CPC provides for such control mechanisms
 Some offences require the written sanction or consent of the AG/PP/DPP before charges framed
on the basis of such offences may be tendered in court
 See:
• Section 129 CPC
o 129.1 – list of offences that req sanction. Not every offence. Read the section!!
• Section 182 Penal Code – false statement
• Section 6(a) PCA

Sanction required for prosecution for certain offences.


129. —(1) No court shall take cognizance —
(a) of any offence punishable under sections 172 to 188 of the Penal Code(CONTEMPTS OF THE LAWFUL
AUTHORITY OF PUBLIC SERVANTS), except with the previous sanction of the Public Prosecutor or on the
complaint of the public servant concerned or of some public servant to whom he is subordinate;
(b) of any offence punishable under section 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 or 228
(FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE) of the Penal Code, or section 14 of the
Oaths and Declarations Act 2000, except with the previous sanction of the Public Prosecutor; or
(c) of any offence described in section 463 or punishable under section 471, 475 or 476 of the Penal
Code(OFFENCES RELATING TO DOCUMENTS AND TO CURRENCY NOTES AND BANK NOTES), except
with the previous sanction of the Public Prosecutor.
(2) Subsection (1) with reference to the offences named therein applies also to the abetment of such offences and
attempts to commit them.
(3) The sanction referred to in this section may be expressed in general terms and need not name the accused person
but it shall, so far as practicable, specify the court or other place in which and the occasion on which the offence was
committed.
(4) When sanction is given in respect of any offence referred to in this section, the court taking cognizance of the
case may frame a charge of any other offence so referred to which is disclosed by the facts.
(5) No such sanction shall remain in force unless acted upon within one month from the date on which it was
given.

Sanctions & consents - sample

CONSENT OF THE PUBLIC PROSECUTOR UNDER THE RESIDENTIAL PROPERTY ACT, 1976 (NO. 18
OF 1976)
I, CHAN SEK KEONG, Attorney-General and Public Prosecutor, Singapore, do hereby, under section 26 of the
Residential Property Act, 1976 (No. 18 of 1976), consent to the prosecution, by the Commercial Affairs Department,
Ministry of Finance, of one ABC (NRIC No. 123456A) on a charge that he, being an approved purchaser, purchased
an estate in a residential property, namely, Lot 123-1 Mukim 54, District of Geylang, known as No. 85A Tanjung Rhu
Road, Singapore, as a nominee of XYZ Group (Holdings) Co Inc, a company incorporated in the Republic of Xanadu,
a foreign person, with the intention of holding the said property in trust for XYZ Group (Holdings) Co Inc, which
charge is for an offence under section 14(1)(a) punishable under section 25(1) of the Residential Property Act (No. 18
of 1976) committed on or about 4th September 1979 in Singapore.

Dated this 22nd day of August 1997.


[signed]
CHAN SEK KEONG
ATTORNEY-GENERAL AND PUBLIC PROSECUTOR
SINGAPORE

Representations
- Prosecutorial discretion is exercised on the basis of facts and circumstances within prosecution’s knowledge

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- Defence counsel, private persons & even MPs may send in written representations to AGC – AGC will review
& reply
 defence will allege that all witnesses are liars
 clients may have relationships/ documents that have bearing on case – so this is opportunity for accused
to present his case to PP to change his mind about charge or cause of action
 not just from defence but accused, private persons etc
- See: PP v Glenn Knight [1999] 2 SLR 499
- Oral representations before Snr DPP Courts

THE CHARGE – very impt!!!!!!!!!!!!!!!!!!!!!

Purpose
- Fundamental role of the charge – allegations must be positively & precisely stated so accused knows what the
accusation against him is, and what charge he has to meet: Viswanathan Ramachandran v PP [2003] SGHC 183
 charge must contain info to let accused know what is alleged against him and what he has to defend
 otherwise charge is fundametnaloy flawed
 charges framed in the District Court were fundamentally flawed because the ingredients of the offence
were wrongly borne out in the charge

- (From PP’s point of view: charge guides prosecution as to the essential ingredients of offence that it has to
prove beyond reasonable doubt)
- very impt for PP cos case fails or succeeds on this. Also very im,pt for defence. When amended, a lot of issues
raised. Counsel regularly reviews charge
- see sched B CPC Form 27 for eg of how charge shld be drawn – loh shak mow v PP (1987)

FORM & PARTICULARS

Form of charge.
158. —(1) Every charge under this Code shall state the offence with which the accused is charged.
Form 27.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by
that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence
must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned
in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to
constitute the offence charged was fulfilled in the particular case.
(6) If the accused has been previously convicted of any offence and it is intended to prove that previous conviction for
the purpose of affecting the punishment which the court is competent to award, the fact, date and place of the previous
conviction shall be stated in the charge. If the statement is omitted the court may add it at any time before sentence is
passed.

(a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of
murder given in sections 299 and 300 of the Penal Code; that he did not come within any of the general exceptions of
that Code, and that it did not fall within any of the 5 exceptions to section 300 or that, if it did fall within exception 1,
one or other of the 3 provisos to that exception applied to it.
(b) A is charged under section 326 of the Penal Code with voluntarily causing grievous hurt to B by means of an
instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the
Penal Code and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, criminal intimidation or using a false property mark. The charge
may state that A committed murder or cheating or theft or extortion or criminal intimidation or that he used a false
property mark without reference to the definitions of those crimes contained in the Penal Code; but the sections under
which the offence is punishable must in each instance be referred to in the charge.

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(d) A is charged under section 184 of the Penal Code with intentionally obstructing a sale of property offered for sale
by the lawful authority of a public servant. The charge should be in those words.

Particulars as to time, place and person or thing.

Must have:
1. Person: name/ NRIC number – very impt
2. date and time
3. location
4. did do what – specify the item and value – imp for purposes of sentencing
5. offence under what section – if want to change charge, possible. Can eg change fr 380 to 379. still in order.
6. name of person signing charge
7. date – very impt!!! when amend charge – to look at date. Insert new date when amending. By comparing
dates, court then aware what charge is the correct one
8. finally set out the punishment

- Must contain:
 All essential ingredients of offence - every limb that is required to be proved must be stated in the
charge.
 The law and the section: s 158(4) CPC
 Specific name of the offence: s 158(2) CPC
 Particulars of the offence – date/time, place – s 159(1) CPC – key: reasonably sufficient to give
accused notice of the matter with which he is charged
 charge should state all essential ingredients of an offence, to give an accused notice of the offence
and a chance to defend himself: Assathamby s/o Karupiah v PP

Particulars as to time, place and person or thing.


159. —(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person, if
any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the
accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be
sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates
between which the offence is alleged to have been committed without specifying particular items or exact dates and
the charge so framed shall be deemed to be a charge of one offence:
Provided that the time included between the first and last of such dates shall not exceed one year.

• for exams: may be asked to draft a charge


o see CPC column B, there are precedents for draft charges

The Charge – example – note: you may have to draft a charge for exams!!!!!!!!!!!!!!!!!

DAC – 12345 – 2005


THE CRIMINAL PROCEDURE CODE CAP. 68 SECTIONS 158-160
CHARGE
You,
William Tong, male/25 yrs
NRIC No. S1234567C
are charged that you, on the 12th day of August 2005, at or about 10:30 am, at the
XYZ Supermarket located at #01-05 of Block 123, Marine Terrace, Singapore, which
is a building used for the custody of property, did commit theft of 12 cans of Tiger
Beer valued at $25, and you have thereby committed an offence under section 380 of
the Penal Code, Cap. 224.

[signed]
SERGEANT ALBERT WONG
INVESTIGATION OFFICER

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15 Aug 2005
Section 380 states: Whoever commits theft in any building, tent or vessel, which building tent or vessel is used as a
human dwelling, or for the custody of property, shall be punished with imprisonment for a term which may extend to
7 years, and shall also be liable to fine.

• Under Section 158, the offence must be clearly described and any specific name used in the law must be
applied. The provision contravened should be cited.
• What is drafted in the charge may have important ramifications later on in the trial i.e. may even decide whether
you win or lose the trial
• Under Section158 (6), previous convictions should be mentioned in the charge if they affect sentencing (e.g.
drug consumption)
o - If offence carries enhanced penalties for (e.g.) 2nd and subsequent offences, then this must be
set out in the charge: s 158(6) CPC
have previous conviction at the bottom of the charge i.e. A was convicted for _____ for the same offence
can get enhanced punishment
e.g. drug consumption
o if a person is charged for drug consumption, and has been charged previously for same offence, should
include the previous charges at the bottom of the charge
o this would result in the sentence being enhanced
- academic point:
o however, this may conflict with the rule against similar fact evidence
o i.e. the judge, upon seeing the previous charges/ convictions, may be influenced by the fact that he has
previously committed a similar offence, and would have a propensity to do it again
o however, we have trust in our judiciary system in that the judge should be able to isolate such
knowledge (cf: jury system)
o judge must insulate himself and not be distracted by such prejudicial evidence
- E.g. – section 67(1) RTA – enhanced penalty for repeat drink driving
- Ian Tan Hiang How v PP (MA 208/2002/01, unreported), which read:

“That you, Ian Tan Hiang How, M/42 yrs, NRIC No: XXXXX are charged that you, on or about the 25th day of
February 1999 at about 10:21pm, along East Coast Road, Singapore, when driving motor car SBC 1234 D on the
road, did have so much alcohol in your body that the proportion of it in your blood exceeded the prescribed limit and
you have thereby committed an offence under section 67(1)(b) the Road Traffic Act, Chapter 276.
And further that you, before committing the said offence, that is to say, on the 13th November 1995 had been
convicted at the Subordinate Courts of Singapore, for an offence under section 67(1) of the Road Traffic Act, Chapter
276, which conviction had not been set aside and you shall be punished with enhanced punishment under section
67(1) Road Traffic Act, Chapter 276.”

- Take note of special provision for CBT (ss 405 – 409 PC) and CMA of $ (ss 403 – 404 PC) offences – s
159(2) CPC – amalgamations of charges – in what situations?
 Certain types only – crim breach of trust and crim misappropriation of money
 See 159.2 – if within 1 yr, many occasions of offence, can amalgamate all of them into a single charge
 Alternatively can frame 1 single charge for each occasion. If all occasions within 1 calendar yr, can be
within 1 charge.
 See Indian commentaries on CPC. S159.2 – see Indian eequivalent
- Sufficient to frame one charge detailing gross sum of $ involved, provided time frame between first and last act
does not exceed 1 year
- Alternative: frame indiv charges for each and every occasion of CBT or CMA of $

Criminal breach of trust.


405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in

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violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other
person to do so, commits “criminal breach of trust”.
Illustration
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide
the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. Z, going on a journey, entrusts his furniture to A, under a contract that it shall be
returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed
breach of trust.
(c) A, residing in Singapore, is agent for Z, residing in Penang. There is an express or implied contract between A
and Z that all sums remitted by Z to A shall be invested by A according to Z’s direction. Z remits $5,000 to A, with
directions to A to invest the same in Government securities. A dishonestly disobeys the direction, and employs the
money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly, but in good faith, believing that it will be more for Z’s
advantage to hold shares in the Oriental Bank, disobeys Z’s directions, and buys shares in the Oriental Bank for Z,
instead of buying Government securities, here, though Z should suffer loss and should be entitled to bring a civil
action against A on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of
trust.
(e) A, a collector of Government money, or a clerk in a Government office, is entrusted with public money, and is
either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain
treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal
breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the
property. A has committed criminal breach of trust.
Punishment of criminal breach of trust.
406. Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may
extend to 3 years, or with fine, or with both.
Criminal breach of trust by carrier, etc.
407. Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal
breach of trust in respect of such property, shall be punished with imprisonment for a term which may extend
to 7 years, and shall also be liable to fine.
Criminal breach of trust by clerk or servant.
408. Whoever, being a clerk or servant, or employed as a clerk or servant, and being in any manner entrusted in
such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of
that property, shall be punished with imprisonment for a term which may extend to 7 years, and shall also
be liable to fine.
Criminal breach of trust by public servant, or by banker, merchant, or agent.
409. Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity
of a public servant, or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits
criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with
imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

Dishonest misappropriation of property.


403. Whoever dishonestly misappropriates or converts to his own use movable property, shall be punished
with imprisonment for a term which may extend to 2 years, or with fine, or with both.
Illustrations
(a) A takes property belonging to Z out of Z’s possession in good faith believing, at the time when he takes it, that
the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly
appropriates the property to his own use, he is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z’s house in Z’s absence and takes away a book without Z’s
express consent. Here, if A was under the impression that he had Z’s implied consent to take the book for the
purpose of reading it, A has not committed theft. But if A afterwards sells the book for his own benefit, he is
guilty of an offence under this section.
(c) A and B being joint owners of a horse, A takes the horse out of B’s possession, intending to use it. Here, as A
has a right to use the horse, he does not dishonestly misappropriate it. But if A sells the horse and appropriates the
whole proceeds to his own use, he is guilty of an offence under this section.
Explanation 1.

10
A dishonest misappropriation for a time only is a misappropriation within the meaning of this section.
Illustration
A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the note
belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has
committed an offence under this section.
Explanation 2.
A person who finds property not in the possession of any other person, and takes such property for the purpose of
protecting it for, or of restoring it to the owner, does not take or misappropriate it dishonestly, and is not guilty of
an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or
has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the
owner, and has kept the property a reasonable time to enable the owner to claim it.
What are reasonable means, or what is a reasonable time in such a case, is a question of fact.
It is not necessary that the finder should know who is the owner of the property, or that any particular person is
the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in
good faith believe that the real owner cannot be found.
Illustrations
(a) A finds a dollar on the high road, not knowing to whom the dollar belongs. A picks up the dollar. Here A has
not committed the offence defined in this section.
(b) A finds a letter on the high road, containing a bank note. From the direction and contents of the letter he learns
to whom the note belongs. He appropriates the note. He is guilty of an offence under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost the cheque. But
the name of the person who has drawn the cheque appears. A knows that this person can direct him to the person
in whose favour the cheque was drawn. A appropriates the cheque without attempting to discover the owner. He is
guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z, but
afterwards appropriates it to his own use. A has committed an offence under this section.
(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it belongs to Z, and
appropriates it to his own use. A is guilty of an offence under this section.
(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to discover
the owner. A is guilty of an offence under this section.
Dishonest misappropriation of property possessed by a deceased person at the time of his death.
404. Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in
the possession of a deceased person at the time of that person’s decease, and has not since been in the possession
of any person legally entitled to such possession, shall be punished with imprisonment for a term which may
extend to 3 years, and shall also be liable to fine; and if the offender at the time of such person’s decease was
employed by him as a clerk or servant, the imprisonment may extend to 7 years.
Illustration
Z dies in possession of furniture and money. His servant A, before the money comes into the possession of any
person entitled to such possession, dishonestly misappropriates it. A has committed the offence defined in this
section.

Particulars as to time, place and person or thing.


159 (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it
shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed
and the dates between which the offence is alleged to have been committed without specifying particular
items or exact dates and the charge so framed shall be deemed to be a charge of one offence:
Provided that the time included between the first and last of such dates shall not exceed one year.

Further particulars

o where particulars set out in ss 158 and 159 do not give adequate notice to accused, then manner by
which the offence was allegedly committed should also be specified: s 160 CPC

When manner of committing offence must be stated.


160. When the nature of the case is such that the particulars mentioned in sections 158 and 159 do not give the

11
accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of
the manner in which the alleged offence was committed as will be sufficient for that purpose.

Illustratrions
(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner
in which the theft was effected.
(b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated
B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the
evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and
place. The charge must set out the manner in which A obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A
murdered B.
(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set
out the disobedience charged and the law infringed.

• Where the charge is complex it may be necessary to include further particulars to give the accused person notice
of the allegation against him – Section 160
e.g. charge on conspiracy  include particulars in the charge itself if complex => if P is trying to say that A is a
member of a conspiracy, must show why
PP v Yeo Choon Poh [1994] 2 SLR 867
- App was charged with conspiracy to import drugs for trafficking
o To give a clue why the app was charged with conspiracy, the prosecution listed 5 of the circumstantial
evidence on which they based their allegation/ charge
o insufficient to simply state that X had cheated Y on such a date and such a time
- it is necessary to further set out the manner by which X cheated Y
- e.g. the offence of cheating
o may have to specify the manner of deception (i.e. what the accused did or said to the victim)
o must also state in the charge what the victim did (e.g. the victim handed over the subject matter to the
accused)
o if it is a charge based on the false statement, have to include the entire statement itself
- cf: if the accused is charged for simple theft or murder per se… all you have to say is that he committed theft or
murder against so and so on a certain day at a certain place
o no need for e.g. to say that he used knife, stabbed the person etc
• If more information is needed, counsels can bring it up during the PTC.
• But only if it is complex cases.
- manner of particularization, M Sathaiah s/o Muthiaiah Pillay & 3 ors v Rex:
• a charge, and especially a charge in a complicated case, should be accompanied by particulars of the
acts complained of as constituting the crime charged when the mere mention of the time, place, persons
and crime are insufficient to explain by what means the crime was committed
• this is particularly necessary in charges of such offences as cheating
• the particulars need not be incorporated in the charge
• it is sufficient if they are contained in a separate memorandum supplied to the accused and to the Court
• helps the prosecutor by providing a simple list of the main points which he must prove; it helps the
accused by letting him know exactly what he is alleged to have done that was wrong; helps the Court
by giving it a proper outline of the case which enables it to appreciate the significance and bearing of
any piece of evidence as it is given
- prosecution may choose to frame one charge in respect of each and every occasion the offender is alleged to
have committed acts amounting to breach (if there is evidence of the specific dates where the offences were
alleged to have taken place as well as the exact sum of money involved in each of these occasions), or the
prosecution may decide to frame one single charge to cover all the acts of criminal breach of trust within the
span of one year
- in some circumstances, stating the nature of the offence allegedly committed as well as particulars such as
time, place and the victims or subject matter of the offence may still not provide an accused person with
sufficient notice of the matter

12
- s. 160 CPC mandates that the manner by which the offence was allegedly committed should also be
specified in the charge: Lim Hong Yap v PP [1978-1979] SLR 30
o (2) The charge fulfilled the requirements of ss 151 and 152(1) of the Criminal Procedure
Code (Cap 113, 1970 Ed) (‘the Code’) and gave Lim sufficient notice of the matter with
which he was charged. Section 153 of the Code only applied when Lim did not have notice of
the matter with which he was charged in which case the charge had to contain the particulars
of the manner in which the offence was committed. If there were insufficient particulars the
omission could not, in terms of s 155 of the Code, be regarded as material unless Lim could
show that he had in fact been misled by the omission which had not been done here.

Who may tender a charge


- Generally, prosecutors (PP, DPP, APP, POs, lay prosecutors etc)
- In some instances, Magistrates – for example s143(1) CPC – after a Prelim. Inquiry. Where charge under hand
of magistrate

Procedure for tendering charges


- accused person either arrested or brought to court for first time or if non seizable, summons issued – compoaint
to magis and magis issues return date – then need tocome to court on partr date. On that date, he goes to court 26
– district court or to court 23 – magis court
- Remanded prisoners and accused persons appearing in response to summonses – brought before a Mentions
Court (Ct 26 for District mentions; Ct 23 for Magistrates’ mentions)
- Prelim Inq Charge PIC , District arrest case DAC, MAC, Juvenile Arrest Case JAC, Summons Nos. issued
 very impt – determines the court it will be heard. sentencing will be very diff
 district court cannot sentence more than what charge provides
- Court forms
- at first mention, must know whether –
 Investigations complete? All charges tendered? Adjournment? Ready to accept plea? PTC?
 Any representations?
 These are also considerations for defence.
 For first mention – crim case management system. Saves time because of disclosure
- Court bail – often dependent on charge, flight risk etc
- after the case number is assigned, the prosecution would mention the case before the court
- at this point, the charge would be read to the accused person
- if prosecution was ready to accept the plea, accused would be asked whether he would plead guilty to the
charge or claim trial
- if accused wanted to plead guilty, his plea might be recorded or the case adjourned to a later for the plea to
be taken
- if the accused wanted to claim trial to the charge, a further mention or a pre-trial conference would be fixed
to prepare the matter for trial

Error/Omission in charge
- Test to be applied - whether the accused person had in fact been misled by such error or omission: see s
162 CPC
 any prejudice
o assessment takes place at appeal or crim revision stage since defective or incomplete charge may be amended by
proseuciton or by court a any time whie trial is in progress
o “…that you, Lim Chuan Huat …, are charged that you on various occasions between the 5th day of March
1999 to the 10th day of June 1999 …”
o Issue: whether ambiguous – did it meet s 159 CPC requirements?
 Held: PW1 (maid abuse victim) had given clear oral evidence of specific dates of abuse – Accused
not misled despite poorly drafted charge and hence conduct of defence not prejudiced

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Effect of errors.
162. No error in stating either the offence or the particulars required to be stated in the charge and no omission to
state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was
in fact misled by that error or omission.
Illustrations
(a) A is charged under section 242 of the Penal Code with “having been in possession of counterfeit coin having
known at the time when he became possessed of it that the coin was counterfeit” the word “fraudulently” being
omitted in the charge. Unless it appears that A was in fact misled by this omission the error shall not be regarded
as material.
(b) A is charged with cheating B and the manner in which he cheated B is not set out in the charge or is set out
incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer
from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B and the manner in which he cheated B is not set out in the charge. There were
many transactions between A and B and A had no means of knowing to which of them the charge referred and
offered no defence. The court may infer from those facts that the omission to set out the manner of the cheating
was in this case a material error.
(d) A is charged with the murder of John Smith on 6th June 1891. In fact the murdered person’s name was James
Smith and the date of the murder was 5th June 1891. A was never charged with any murder but one and had heard
the inquiry before the Magistrate which referred exclusively to the case of James Smith. The court may infer from
these facts that A was not misled and that the error in the charge was immaterial.
(e) A was charged with murdering James Smith on 5th June 1891 and John Smith, who tried to arrest him for that
murder, on 6th June 1891. When charged for the murder of James Smith he was tried for the murder of John
Smith. The witnesses present in his defence were witnesses in the case of James Smith. The court may infer from
this that A was misled and that the error was material.

Carl Elias Moses v PP [1995] 3 SLR 748


- The appellant Moses had a securities trading account with DBS Securities Pte Ltd (DBSS). He issued a
standing order authorising DBSS directly debit his DBS bank account, moneys paid for the purchase of
shares and to credit directly to the same account moneys accruing from the sale of shares. At the same time
Moses also entered into a share-financing arrangement with a company TPC, under which he was granted
credit facilities enabling him to buy and sell shares. Under this share-financing arrangement, he deposited a
large quantity of stocks and shares with TPC. Any withdrawal and sale of those shares was subjected to
TPC’s approval. On 16 October 1989, Moses sold through DBSS a number of stocks and shares deposited
with TPC. He was allowed to collect the share scrip personally from TPC, for delivery to DBSS. TPC
prepare cover notes – directing DBSS to credit TPC directly with the sales proceeds of the shares –for
delivery together with the share scrip. Moses admitted reading the cover notes, but these cover notes were
not handed over to DBSS; nor did Moses inform DBSS of TPC’s directions. DBSS failed to credit TPC with
the sale proceeds and instead paid the total amount of $258,254 into Moses’ DBS bank account. Although he
later withdrew $20,000 for payment into his TPC account, Moses used the bulk of the sale proceeds to pay
off sums owing to other financial institutions. He was tried and convicted of five charges of criminal breach
of trust and sentenced to a total of 34 months’ imprisonment. On appeal Moses argued that all five charges
were fatally flawed in alleging entrustment of one sort of property but misappropriation of another sort of
property.
- Held, allowing the appeal:
- (1) The five charges of criminal breach of trust were fatally flawed in simultaneously alleging
that Moses had been entrusted with shares but that he had misappropriated the sale proceeds of the
shares. The wording of s 405 of the Penal Code clearly indicated that for an offence of criminal
breach of trust to be established, the property misappropriated must be the same property entrusted
to Moses.
- (2) It was doubtful whether Moses was ‘entrusted’ with the sale proceeds he allegedly
misappropriated. As far as DBSS was concerned, there was no question on their part of ‘entrusting’
the sale proceeds to him, since he was, by virtue of his standing order, entitled to be credited with
these moneys. It was difficult to see how TPC could be said to have ‘entrusted’ the sale proceeds to
Moses. Whilst it might be argued that a constructive trust was created over the sale proceeds when
Moses failed to have them credited to TPC, this was never the prosecution’s case.
- (3) Whilst Moses’ conduct throughout the entire affair was far from meritorious, the charges
against him were fairly serious and it was the prosecution’s burden to prove them. On appeal the
charges were shown to be defective and the prosecution had failed to submit on how, if at all, these

14
defects might be rectified. In the circumstances, the High Court would not amend the charges of its
own accord.
- (4) The appeal was allowed and Moses’ conviction and sentence set aside. In addition, the sum
which Moses paid for the prosecution’s costs below was ordered to refunded to him.
- Per curiam
- Although s 256 of the Criminal Procedure Code (Cap 68) contained no express provision allowing
the High Court to amend the charge against an accused in an appeal against conviction by the
subordinate courts, s 256(b)(i) empowered the High Court to deal with such an appeal by ordering
the accused to be ‘committed for trial’. The High Court’s power to amend a charge on appeal must
at the very least be implicit in s 256(b)(i), otherwise, the scope of the provision would be so limited
as to be practically useless.

DUPLICITY
o Generally, duplicitous charge = a charge that alleges that accused committed 2 or more distinct offences
 Offends against gen. rule in s168 CPC that for every distinct offence of which a person is accused
there shall be a separate charge. It goes further to say that every such charge should be tried separately
except in cases mentioned in ss 169, 170, 172 and 176 CPC
o Objective: fair trial for accused person – see Lim Chuan Huat v PP 2002 1 slr 105
- object behind s. 168 is to ensure a fair trial and to see that the accused is not overwhelmed by having to
defend several unconnected charges, or distinct offences lumped together
- this is to save the accused from being embarrassed in his defence as well as to prevent the court from being
unduly influenced by the different evidence tendered against the accused on different charges: Lim Chuan
Huat v PP [2002] 1 SLR 105

Facts
The appellants were separately charged but jointly tried in court for voluntarily causing hurt to their maids on
various occasions. They were convicted on their respective charges and sentenced. They appealed against their
respective convictions and sentences, arguing that – (a) their respective charges were bad for duplicity, and (b)
the trial judge erred in law by proceeding with a joint trial.
Held, dismissing the appeal:
(1) The object of s 168 of the Criminal Procedure Code (Cap 68)(‘the CPC’) was to ensure a fair trial and that
the accused did not have to defend several unconnected charges or distinct offences lumped together in one
charge. Further, the exceptions referred to in s 168 were confined to the rule on joinder of charges and did not
apply to duplicity. Hence, a charge alleging two or more distinct offences was duplicitous and in contravention of
s 168. The appellants’ respective charges were bad for duplicity and breached s 159(1) as each of the ‘various
occasions’ which they were charged with constituted a distinct offence for which a separate charge should have
been preferred.
(2) However, if each of the offences could have been the subject of a separate charge, and could have been
proceeded with at one trial, the duplicity was an irregularity which could be cured by s 396 of the CPC. This was
provided that the accused was not prejudiced in his defence, and no failure of justice arose due to the irregularity.
No such failure arose as the trial judge had kept the evidence against each alleged offence separate when
convicting the appellants on their respective charges.
(3) Although the charges breached s 159(1), the error or omission in them was not material and could be cured
by s 162 as the appellants were not misled by them and knew the charges they had to meet.
(4) In determining whether different acts are part of the ‘same transaction’, the tests are proximity of time,
unity of place, unity of purpose or design, and continuity of action. Unity of purpose was the main test, and it
was unnecessary for all the tests to apply for several incidents to form the same transaction. The trial judge did
not err in trying the appellants jointly and s 176 of the CPC was not breached as there was not only unity of
purpose in their individual acts, but also unity of place and proximity of time.
(5) In cases where the error in question was irrelevant for the purpose of determining guilt and only affected
the sentence, it was an irregularity that could be cured. The proper remedy was by way of s 261 of the CPC
which gave the High Court jurisdiction to maintain or set aside a sentence that was manifestly excessive or
inadequate in the circumstances of the case.

- Distinction between:
 Distinct and Separate Offences
 Distinct and Alternative Offences

15
- (Yew Poo v PP) a distinction may be drawn between
a) distinct and separate offences, on the one hand,
• e.g. would be the charge in the case of Lim Chin Huat v PP:
 which stated that “you, Lim Chin Huat, …, are charged that you on various occasions
between the 5th day of March 1999 to the 11th day of June 1999, …, did voluntarily
caused hurt to one Supranti, …, to wit, by hitting her back, shoulders and hands with
your hands and a rattan cane, …”
 each of the occasions where the accused had caused hurt to eh victim were separate and
distinct and may be individually proved
b) and distinct and alternative offences on the other
• e.g. would be a charge that states that a person had caused the death of another by a rash and
negligent act under s. 304A PC
Causing death by rash or negligent act.
304A. Whoever causes the death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with imprisonment for a term which
may extend to 2 years, or with fine, or with both.
• such a charge is bad for duplicity because causing death by a rash act and causing death by a
negligent act are 2 distinct offences and in the instance of a single death the prosecution may
only prove one state of mind or the other, but not both alternatives
- Wee Hui Hoo v PP:
• conviction on a charge of “driving recklessly or in a manner dangerous to public” was quashed on the
primary ground that such a charge embarrassed the accused as the latter would be left in doubt as to
which offence he was being charged for
• secondary ground was that even if the duplicity was only one of form and curable by s. 396 CPC, a
failure of justice had occasioned
- however, “the rule against duplicity has always been applied in a practical, rather than in a strict analytical
way”: DPP v Merriman
- if the duplicity is discovered by the trial court before the end of the trial, it may be cured by a suitable
amendment to the charge either by the trial judge under s. 163 CPC, or by application of the prosecution

The charge – duplicity – example 1


“You, Chuan Hoe Engineering Pte Ltd, are charged that you, on or about 25 October 1995 in Singapore, did develop
the premises at 37A Tyrwhitt Rd without the written permission of the competent authority in contravention of s 10(1)
of the Planning Act (Cap 232),in that you fail to comply with the directions in the Enforcement Notice No 250/95
issued under s 16(1) of the said Act, to: (i.) cease the unauthorised use of the said premises as a store for machinery
and equipment and (ii.) remove all paraphernalia pertaining to the said unauthorised use from the premises, after the
said enforcement notice had been served on you on 11 May1995, which is an offence punishable under s 16(8) of the
Planning Act.”:
Chuan Hoe Engineering Pte Ltd v PP [1996] 3 SLR 544.

- The above constit 2 sep charges roled in one


- Charge was duplicitous (separate and distinct offences) as Chuan Hoe was being accused of:
 (a) developing the premises without written permission, contrary to s 10(1) of the Planning Act, and
 (b) for failing to comply with the directions in the enforcement notice, contrary to s 16(8) of the same
Act.

The charge – duplicity – example 2


“That you, on or about 8 January 1971 at about 8.45pm, outside the Beach Road Police Station, Beach Road,
Singapore, being an agent, to wit, a Detective Police Constable bearing number 2783 employed by the Police
Republic Singapore, corruptly obtained from one Sathan Periak Aruppan for himself a gratification of a sum of one
hundred dollars ($100), as a reward for forbearing to do an act in relation to his principal’s affairs to wit, to put up a
detention case under the Criminal Law (Temporary Provisions) Ordinance against the said Sathan Periak Aruppan and
to take action against one Palanichamy Sooruli to be sent to India, and he had thereby committed an offence

16
punishable under s 6(a) of the Prevention of Corruption Ordinance, 1960 (No 39 of 1960; Reprint No RS (A) 27 of
1966).”:
Ramachandran v PP [1972] 2 MLJ 183.

- “Rolled up” charge of two separate & distinct offences namely


 a) that the accused corruptly obtained from Sathan a gratification of $50 as a reward for forbearing to
put up a detention case under the Criminal Law (Temporary Provisions) Ordinance against Sathan and
 b) that the accused corruptly obtained from Palanichamy a gratification of $50 as a reward for
forbearing to take action against Palanichamy to be sent to India.

The charge – duplicity – example 3


“That you, on or about 26 November 1946, at about 3pm at Upper Serangoon Road, fifth Mile Stone, Singapore, did
cause hurt to one Tan Choon Lim by doing an act to wit driving taxi S 1403 so negligently or rashly as to endanger
human life or the personal safety of others and thereby committed an offence punishable under s 337 of the Penal
Code Ch 20.”[1]
Lim Mong Hong v Rex [1947] 1 MLJ 94.

- Two alternative mens rea states (negligence and rashness) are alleged (separate and alternative).

Implications of duplicity

- Duplicitous charge involving separate & distinct offences mere irregularity curable under s 396(a)
CPC if each offence alleged could have been subject of separate charge and tried together, and accused not
prejudiced, and no failure of justice was occasioned by the duplicity:
 this is not the general principle! Read the cases!!!!!!!!!!!!!!! Depends on what kind of case

Ramachandran v PP [1972-1974] SLR 383,


- “Rolled-up” charge incorporating two distinct offences – Bad for duplicity – Curable where there is no failure
of justice
- Accused was convicted for 2 offences of corruption
- Appealed on ground that charge bad for duplicity.
- Decision was also quashed, but on different grounds
- ==> important to note that the judges will usually hold that the charge was bad, but curable, slow to over-rule
the lower court… unless the charge caused prejudice
- Facts
- This appeal was against the appellant’s conviction on a charge that he, being an agent, to wit, a
Detective Police Constable employed by the Police Republic Singapore, corruptly obtained from
one Sathan a gratification of a sum of one hundred dollars as a reward for forbearing to do an act in
relation to his principal’s affairs, namely, to put up a detention case under the Criminal Law
(Temporary Provisions) Ordinance against Sathan and to take action against one Palanichamy to be
sent to India. The appellant was convicted of an offence under s 6(a) of the Prevention of
Corruption Ordinance 1960 (No 39 of 1960; Reprint No RS (A) 27 of 1966).
- The two main grounds of appeal were that:
- the charge was bad for duplicity as two distinct offences were rolled up into one charge. Two
points arose for the court’s consideration under this ground of appeal. First, whether the charge was
bad for duplicity. Second, if there was duplicity, whether that was an irregularity which could be
cured under s 382 of the Criminal Procedure Code (Cap 113, 1970 Rev Ed) or whether it was an
irregularity which could only result in the conviction being quashed; and the district judge erred in
law in holding that Sathan was not an accomplice and in holding that evidence of Palanichamy, an
accomplice, was substantially corroborated by Sathan when Sathan was himself an accomplice and
was thus incapable of corroborating the evidence of another accomplice.
- Held
- (1) There were two distinct offences, namely: (a) that the appellant corruptly obtained from
Sathan a gratification of $50 as a reward for forbearing to put up a detention case under the
Criminal Law (Temporary Provisions) Ordinance 1955 (No 26 of 1955) against Sathan; and (b)

17
that the appellant corruptly obtained from Palanichamy a gratification of $50 as a reward for
forbearing to take action against Palanichamy to be sent to India: at [24].
- (2) This was a case of two distinct offences combined in a single charge. However, they were
similar offences and each offence could have been the subject of a separate charge and tried
together. In those circumstances, the charge was an irregularity which was curable unless it could
be shown that there had been a failure of justice. The court was satisfied that in the present case the
irregularity had occasioned no failure of justice: at [26].

Chuan Hoe Engineering v PP


- Facts
o The appellants Chuan Hoe were convicted of developing the premises at 37A Tyrwhitt Road (‘the
premises’) without written permission in contravention of s 10(1) of the Planning Act (Cap 232) (‘the
Act’), and failing to comply with the directions in an enforcement notice to cease the unauthorised use
of the premises as a store for machinery and to remove all paraphernalia pertaining to the unauthorised
use from the premises. Approval for the development of six shophouses – including the premises in
question – was granted in 1951, and the second storey was only approved for residential use. The
prosecution was unable to ascertain that the premises was not used as a store before 1 February 1960,
the date when the Planning Ordinance (the precursor of the Planning Act) came into operation.
- Held:
- (1) The charge was duplicitous in that it accused Chuan Hoe of developing the premises without
written permission as well as failing to comply with the direction of the enforcement notice. A
charge alleging that the accused committed two or more offences was duplicitous and contravened
s 168 of the Criminal Procedure Code (Cap 68) (‘the Code’). However, this defect could be cured
by s 396 of the Code.

Lim Chuan Huat v PP


- Facts
o The appellants were separately charged but jointly tried in court for voluntarily causing hurt to
their maids on various occasions. They were convicted on their respective charges and sentenced.
They appealed against their respective convictions and sentences, arguing that – (a) their respective
charges were bad for duplicity, and (b) the trial judge erred in law by proceeding with a joint trial.
- Held, dismissing the appeal:
o (1) The object of s 168 of the Criminal Procedure Code (Cap 68)(‘the CPC’) was to ensure a fair
trial and that the accused did not have to defend several unconnected charges or distinct offences
lumped together in one charge. Further, the exceptions referred to in s 168 were confined to the
rule on joinder of charges and did not apply to duplicity. Hence, a charge alleging two or more
distinct offences was duplicitous and in contravention of s 168. The appellants’ respective charges
were bad for duplicity and breached s 159(1) as each of the ‘various occasions’ which they were
charged with constituted a distinct offence for which a separate charge should have been preferred.
o (2) However, if each of the offences could have been the subject of a separate charge, and could
have been proceeded with at one trial, the duplicity was an irregularity which could be cured by
s 396 of the CPC. This was provided that the accused was not prejudiced in his defence, and no
failure of justice arose due to the irregularity. No such failure arose as the trial judge had kept the
evidence against each alleged offence separate when convicting the appellants on their respective
charges.
o (3) Although the charges breached s 159(1), the error or omission in them was not material and
could be cured by s 162 as the appellants were not misled by them and knew the charges they had
to meet.

- Also curable if the separate offences disclosed in the charge were committed in one single incident: Khor
Ah Kah v PP [1964] 1 MLJ 309
- However, where duplicity caused confusion in mind of trial judge such that he did not consider evidence in
respect of each alleged offence separately, failure of justice may be found to have occurred: clear in See Yew
Poo v PP, PP v Mohd Fathi bin Haji Ahmad [1979] 2 MLJ 75

See Yew Poo v Public Prosecutor [1949] MLJ 131


- The accused committed 2 offences of robbery, at about the same time and about the same place, but on different
victims, who were unrelated

18
- The DPP put both in the same charge
- Court of Appeal held that if “each of the offences could have been the subject of a separate charge, and could
have been proceeded with at one trial, the duplicity was merely an irregularity which can be cured…provided
that the accused was not prejudiced and there was no failure of justice occasioned by the irregularity.”
- The conviction was quashed in this case not only because the 2 offences were put in the same charge, but
because the DPP proceeded on the basis that they were one and the same and used evidence for one for the other
==> the accused was prejudiced

- Can duplicitous charge that alleges two distinct but alternative offences be cured by s 396 CPC?
 Consider this!
 Ans is not clear

cf Yap Liow Swee v PP


- where accused is facing a charge with 2 offences – that is a matter of substance and not form – conviction was
quashed.
- Traffic offence
- A charged with being rash and negligent in the same charge (they are actually separate offences – must be
one or the other, not lumped together)
- the trial judge was confusing the 2 offences, and he was unsure which offence he was convicting the accused on,
hence the conviction was quashed
- held that the it went to the substance of the charge and it was 2 distinct offences combined in a single
charge
- i.e. where accused is facing a charge with 2 offences – that is a matter of substance and not form –
conviction was quashed

Wee Hui Hoo v PP [1987] 1 MLJ 498


- The accused was convicted of an offence under s 29(1) of the Road Traffic Ordinance 1960 and sentenced to a
fine of $500. His driving licence for all classes except for Class One was cancelled for one year and he was
disqualified from applying for a new driving licence for two years. The charge read as follows: "That you…being
the driver of a vehicle, to wit, a JKR truck, did drive the said truck recklessly OR in a manner which was
dangerous to the public having regard to all the circumstances of the case including the nature, condition and use
of the road and as a result of such driving conduct, caused the death of a pedestrian and you thereby committed
an offence punishable under Section 29(1) of the Road Traffic Ordinance, 1960"
- The accused appealed against his conviction on several grounds. The main contention dealt with by the court was
whether the charge was bad for duplicity so that there was a failure of justice.
- Held: Allowing the appeal:
o (1) Section 29(1) of the 1960 Ordinance refers to the conduct of driving described in Section 28(1). The
alternative provisions of Section 28(1) create separate and distinct offences and a summons or charge
alleging several offences in the alternative is bad for duplicity. In this case the alternative offences
charged were based on one and same transaction.
o (2) Even if the duplicity was one of form and irregularity curable under Section 422 of the Criminal
Procedure Code, a failure of justice had been occasioned. The appellant had been prejudiced and
embarrassed by the duplicity of the cage in his defence;
o (3) The conviction was quashed and disqualifications were set aside. The appellant should be retried
before another magistrate.
 don’t put 2 offences in 1 charge; must be sure of what A committed … Can’t have OR

• Effect before / during trial?


• Failure of justice – when?

Chuan Hoe Engineering Pte Ltd v PP [1996] 3 SLR 544


- The appellants were charged with developing premises at 37A Tyrwhitt Road without the written permission of
the competent authority, in contravention of Section 10(1) of the Planning Act, by failing to comply with the
directions of an enforcement notice issued under Section 16(1) of the Act, which is an offence under Section
16(8) of the Act.

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- The prosecution evidence was that approval was given in December 1951 for the erection of six shop houses,
including 37A TR, the premises of the appellants, in a location zoned for local shopping. According to the
prosecution witness, the second storey of 37A was approved only for residential purposes. The appellants were
found to be using the second storey of 37A TR as a store for machinery. Later, an enforcement notice issued
under Section 16(1) of the Act was served on the appellants, directing, inter alia, that they ceased to use the
second storey of 37A TR as a store. The appellants did not comply with the notice and the prosecution was
brought. During the trial, it was contended by the appellants, and accepted by the magistrate, that the second
storey of 37A TR had been used as a store since before 1 February 1960, the date the Act came into effect.
- Nevertheless, the magistrate convicted the appellants. The appellants appealed.
- Held: Allowing the appeal:
o (1) The charge was duplicitous as it accused the appellants of developing the premises without written
permission, contrary to Section 10(1) of the Act; and for failing to comply with the directions in the
enforcement notice, contrary to Section 16(8) of the Act.
o (2) The defect in the charge could be cured even though there had been confusion caused by the
charge. Even if the charge had been correctly framed, the only relevant issue of fact was that the
second storey of 37A TR had been used as a store since before 1 February 1960. That claim was
accepted by the magistrate. The confusion related solely to the ingredients of an offence under Section
16 of the Act. That was purely a question of law, and can easily be cured by an appellate court. See Yew
Poo v PP [1949] MLJ 131 and PP v Mohamed Fathi bin Haji Ahmad [979] 2 MLJ 75 followed.
o (3) The prosecution was able to produce no evidence, and had no basis for alleging that there had been
any material change in use of 37A TR (or the second storey thereof) since 1 February 1960. The
appellants obviously could not breach Section 10(1) before 1 February 1960 as that provision only
came into effect on that day. There was therefore no ground for alleging that the appellants contravened
Section 10(1) of the Act by developing 37A TR.
o (4) The concession by the prosecution that it had to prove development of the land was rightly made.
The natural interpretation of Section 16(1) was that the opinion of the authority related to whether the
development of land was in contravention of Section 10 or any conditions thereunder. It did not relate
to whether there was or was not a development of land. ‘Development’ in Section 16(1) referred to
development of land occurring on or after 1 February 1960.
o (5) There was no need for the prosecution to show that there had been an infringement. However, it was
necessary for the prosecution to show that the relevant authority had directed its mind to the question of
whether there was a contravention of Section 10(1).
o (6) It was unlikely that the legislative intent was that just because there was some approval given
sometime in the past for a building or part of a building to be used for some purpose, and that it
appeared that the building or part of the building had been used in contravention of what was now very
dead legislation, the competent authority was entitled to issue an enforcement notice under Section 16
of the Act. Section 16 spoke of development in contravention of Section 10 of the Act; it did not refer to
contravention of any earlier legislation.
o (7) The officers obviously did not apply their minds to the question whether there was development in
contravention of Section 10. They did not know whether any change of use, much less material change
of use, had been made since the Act came into effect and they made no effort to find out.

DOUBLE COUNTING
- When more than one charge is tendered in respect of what is substantially one single transaction or offence
- Tan Khee Khoon v PP [1995] 3 SLR 724
 2 charges in issue:
- Attempting to obtain $20K gratification
- Receiving $5260 in gratification
 But, evidence =
- $4,500 out of the $5,260 obtained was part of the $20,000 gratification that the accused
had attempted to obtain
 HC held:
- Commission of offence, and Attempt, were mutually exclusive events
- Single transaction cannot be both a commission and an attempt
- Therefore, double counting error

20
Tan Khee Koon v PP [1995] 3 SLR 724
- 3 counts
(1) attempted corruption – attempted to receive corruptly $20,000
(2) having actually received corruptly $4,000 i.e. his objective was to get $20K, but only got $4k so far
•on appeal ruled that it was wrong, it was held that separate charges for attempt of an offence and commission
of components of that offence; also single act cld not both be agreement to accept and acceptance– Whether
amounts to double counting
•Separate charges = double counting
- held that this amounts to double counting … i.e. the prosecution should proceed on either one [P must
decide which charge it prefers. Go on that one ONLY.]
- It was held that attempt and commission were mutually exclusive.
- One transaction could not be both one and the other. Where an offence consisted of a series of
components constituting offences under the same law, and completion was made only of one of those
components, there could not be separate charges both for the attempt at the whole series and the
commission of the completed component for that would amount to double counting.

JOINT CHARGES AND JOINDER

- 3 issues:
 Joint charges (2 accused in one charge)
 Joinder of charges (1 accused, multiple charges. Issue: one trial for all charges, or separate trial for
each charge?)
 Joinder of defendants (2 or more accused, issue: one trial for all accused, or separate trials for each
accused?)
o Rationale for joint/joinder: save time, money, passing of the same verdict and the same treatment of all
concerned
o Overriding concern: will accused be prejudiced or embarrassed in conduct of defence?

JOINT CHARGES
- Joint charge is one preferred against more than one accused person
- Generally, done under s 34 PC – common intention

Each of several persons liable for an act done by all, in like manner as if done by him alone.
34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if the act were done by him alone.

- Alternatively, s 109 PC (abetment by conspiracy), s 143 PC (unlawful assembly)

Punishment of abetment if the act abetted is committed in consequence, and where no express provision is
made for its punishment.
109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no
express provision is made by this Code for the punishment of such abetment, be punished with the punishment
provided for the offence.
Explanation.
An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of
the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official
functions. B accepts the bribe. A has abetted the offence defined in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of
abetting that offence, and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B, in
order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z, in A’s absence

21
and thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is
liable to the punishment for murder.

Punishment.
143. Whoever is a member of an unlawful assembly, shall be punished with imprisonment for a term which
may extend to 6 months, or with fine, or with both.

Joint charges - example


“You, Lim Ah Tah (m/25) and Tan Ah Meng (m/28) are charged that you both, on the 13th of August 2005, at or
about 3:30pm, at the XYZ Supermarket located at #01- 05 of Block 123, Marine Terrace, Singapore, which is a
building used for the custody of property, in furtherance of the common intention of you all, did commit theft of 12
cans of Tiger Beer valued at $25, and you have thereby committed an offence under section 380 read with section 34
of the Penal Code, Cap. 224.”

JOINDER OF CHARGES

- Basic principle – separate charge for each distinct offence s168


Separate charges for distinct offences.
168. For every distinct offence of which any person is accused there shall be a separate charge and every such
charge shall be tried separately except in the cases mentioned in sections 169, 170, 172 and 176.
Illustration A is accused of a theft on one occasion and of causing grievous hurt on another occasion. A must be
separately charged and separately tried for the theft and causing grievous hurt.

Exceptions to S. 168 of CPC


- 2 mechanisms for joinder of charges:
 a) Similar offences under s 169 CPC – if similar – accused person faces more than 1 charge – then may
be tried at one trial if 2 preconds met
 b) Offences in same transaction under s 170 CPC – where offences committed in same transaction

a) Joinder of charges – s 169 CPC

Series of Offences of Same or Similar Character


- Similar offences – s 169 CPC
- 2 preconditions to be met
 offences form or are part of series of offences
 offences are of same or similar character
- R v Mansfield:
• M was charged in an indictment containing ten counts
• 3 counts were for arson, alleging that on 12 Dec 1974 M had started a fire in the Worsley Hotel,
Bayswater, and that on 19 Dec and 28 Dec 1974 he had started fires in the Piccadilly Hotel in the West
End of London
• the 3 offences were a series of the same or a similar character, so those counts were rightly put in one
indictment

Joinder of similar offences.


169. When a person is accused of more offences than one he may be charged with and tried at one trial for
any number of those offences if they form or are a part of a series of offences of the same or a similar
character.

- Lee Kwang Peng v PP [1997] 3 SLR 278: different alleged victims of outrage of modesty; issue of similar fact
evidence if charges were joined at one trial
 orig 9 charges of lee kwang peng – taekwando instructer

22
 3 victimes. Stood down 1 charge – then 2 victims when went to court. Total of 6 charges, 2 charges
each
 all outrge of modesty of students in roughly the same way – of same character
 charges relating to different victims were jointly brought against the accused under s. 169
 an argument was raised that the trial judge should have exercised his discretion to order separate
trials under s. 171 CPC
 in that case, similar fact evidence was relevant and the court discussed how the improper
admission of similar fact evidence might affect the exercise of discretion under s. 171
 (2) Under s 169 of the CPC, a trial judge may order a joinder of charges at a single trial if the
offences formed or were part of a series of offences of the same or similar character. Under s 171
of the CPC, the judge had discretion to order separate trials for each charge where the accused may
be prejudiced or embarrassed in the conduct of his defence. This discretion extended to situations
where a single trial may result in similar fact evidence being heard. He should not exercise that
discretion if the similar fact evidence was properly admitted. Where the similar fact evidence was
not admissible, the judge may nonetheless order a single trial where he would not be improperly
influenced by the similar facts. In this case, the 6 charges which the prosecution proceeded with
met the requirements of s 169 of the CPC. This was a case in which it would have been appropriate
for the district judge to consider similar fact evidence. In the absence of some other source of
prejudice or embarrassment other than the rule against similar facts, s 171 had no operation and the
district judge rightly refused the application for a separate trial.

o “Series”
- to understand what is “series”, see R v Kray e.g. charged with 2 offences, but forms part of a series of offences.
o for 2 offences to constitute a series, there must be a sufficient nexus (feature of similarity between
the offences) between the offences, and also the evidence of one of the offences can be admissible for
the trial of the other
o must also consider the interests of the accused, the witnesses and that of the public
 e.g. sometimes, it may be in the interests of the accused to try all the charges together (no
hardship caused)
• because if he is charged for molesting 10 different persons, they it may be easier for
him to stand trial once only
o interests of the witnesses
 e.g. where same witnesses for 10 counts of cheating
o For the public, it’s in their interest to have the case disposed of at 1 sitting, and not heard over and
over again.

- what is “nexus”
o there must be similarity between the offences for there to be a nexus
o have to look at the facts of individual case to see whether there is sufficient similarity

• “Similar character” – Ludlow v MPC, Marsh


• facts of Ludlow
• On August 20, 1968, the appellant was seen emerging from a window of a public house and there was evidence
that he had been attempting to steal. On September 5, 1968, in another public house in the same area the
appellant ordered a round of drinks for himself and two others; at first he refused to pay but then handed over a
10s. note stating that he would pay only for his own drink; the barman having rung up on the till the price of the
three drinks, the appellant after an altercation punched him and snatched back the note.
• Lord Pearson in delivering the judgment of the House of Lords held at page 39 that (T)here was in the present
case a sufficient nexus between the two offences to make them a "series of offences of a similar character"
within the meaning of the rule. They were similar both in law and in fact. They had the same essential
ingredient of actual or attempted theft, and they involved stealing or attempting to steal in neighbouring public
houses at a time interval of only 16 days.

23
- while a sensible rule of practice has evolved to the effect that a capital and non-capital charge should not be
jointly tried at the same trial, this is not an inflexible rule and in every case it is for the trial judge to use his
discretion as to whether or not to order separate trials or to order a joinder of the offences: Yong Yow Chee v
PP [1998] 1 SLR 273

Facts
The appellant Yong was tried on two charges of trafficking in a controlled drug under s 5(1)(a) of the Misuse of
Drugs Act (Cap 185). Four other charges of possession were also preferred against him. At the close of the
prosecution’s case, the two charges were amended and amalgamated into one. Yong was found guilty as charged
and Yong appealed arguing that the trial judge failed to adequately consider his defence. He also argued that the
trial judge erred in allowing him to be tried on a capital charge coupled with a non-capital charge.
Held:
(1) The general rule was that a capital charge should not be coupled with a non-capital charge in the same
indictment. The reason for this rule was that when an accused was defending himself on a capital charge, he
ought not in fairness be required to defend himself on other additional charges at the same trial. This was a
sensible rule of practice and should be incorporated into our common law.
(2) However, in the present case, Yong did not suffer any prejudice by the joinder of the capital charge with the
non-capital charge. Both charges were drug-related except that they were for different quantities, one being an
amount sufficient to warrant a death sentence and the other not.
(3) In every case, depending on the circumstances, it was for the trial judge to use his discretion as to whether
to order separate trials or to order a joinder of the offences. This was provided for in s 171 of the Criminal
Procedure Code (Cap 68) (CPC). There were express provisions in the CPC to guide the exercise of the trial
judge’s discretion – ss 169, 170 and 172. Therefore, in all cases, the trail judge should bear in mind the rule of
practice that a capital should not generally speaking be coupled with a non-capital charge in the same trial.
However, if the trial judge felt that the circumstances of the case fell within one of the provisions of the CPC
relating to the joinder of offences in the same trial, and thought that no prejudice would be caused to the accused,
it was open to him to allow the offences to be tried together even if one was a capital offence and the other was
not.
(4) On the evidence, the sheer quantity of heroin found in the flat, coupled with the evidence which clearly
proved that Yong was in possession of it, and the hollowness of his explanations for his actions, the present of his
bank book in the flat, all led irresistibly to the conclusion that the learned trial judge was correct in finding him
guilty of trafficking in heroin.

b) Joinder of charges – s 170 CPC


- Offences in same transaction – s 170 CPC (read with the illustrations!!!!)
- accused charged with diff offences may be tried for those offences in one trial if form part of same transaction
- distinction between joinder of charges, a matter governed by s. 170 CPC, and the issue of the subsequent
sentences imposed, which is governed by s. 71 PC: Zeng Guoyuan v Public Prosecutor (No 2) [1997] 3 SLR 883

PC - Limit of punishment of offence which is made up of several offences.


71*. —(1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the
offender shall not be punished with the punishment of more than one of such his offences, unless it be so
expressly provided.
*There are no sections 54 to 56 and 58 to 70.
(2) Where anything is an offence falling within two or more separate definitions of any law in force for the time
being by which offences are defined or punished, or where several acts of which one or more than one would by
itself or themselves constitute an offence constitute when combined a different offence the offender shall not be
punished with a more severe punishment than the court which tries him could award for any one of such
offences.

Zeng Guoyuan - Facts


- The applicant Zeng was convicted of five charges under s 354 of the Penal Code (Cap 224). Separate
sentences were awarded by the magistrate on each charge. Zeng’s appeal against conviction and sentence
was dismissed but the sentences imposed on four of the charges were varied. His total term of imprisonment
was increased to 27 months and the total number of strokes of the cane was increased to ten. Zeng then
applied under s 60 of the Supreme Court of Judicature Act (Cap 322) (the SCJA) to have the following
question referred to the Court of Appeal for determination: Whether by virtue of s 71 of the Penal Code,

24
Zeng was facing only one charge under s 354 of the Penal Code instead of five charges as there was a
conflict of judicial authority in respect of s 71(1).
- Held, dismissing the motion:
 The joinder of charges where several offences arose out of a series of acts was not governed by
s 71 of the Penal Code, but s 170 of the Penal Code. Section 170 made it clear that even where
offences were cumulative or overlapping, the accused may be separately charged for each offence.
 Section 71(1) and illustration (a) of the Penal Code – upon which Zeng relied – was concerned
with the situation where all the acts complained of were component parts of one offence or were so
closely connected to form in reality one offence.
 For a question to referred to the Court of Appeal under s 60 of the SCJA, the question had to be:
(a) one of public interest and not one of mere personal importance to the parties; and (b) one which
arose in the appeal on an issue of law, the determination of which would have affected the appeal’s
outcome. References to the Court of Appeal exceptional and the court had to be mindful of the
need for finality of proceedings. Two pre-conditions were necessary under s 60(5) of the SCJA: (a)
the question had to be one of law; and (b) there had to be a conflict of judicial authority.
 The question before the court was not one of law. Whether one offence or five separate offences
had been committed was a question of fact, depending upon the particular circumstances of each
case. Neither was there a real conflict of judicial authority in respect of s 71(1) of the Penal Code.

Trial for more than one offence.


170. —(1) If in one series of acts so connected together as to form the same transaction more offences than one are
committed by the same person, he may be charged with and tried at one trial for every such offence.
Offences falling within two definitions.
(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the
time being by which offences are defined or punished, the person accused of them may be charged with and tried at
one trial for each of those offences.
Acts constituting one offence but constituting when combined a different offence.
(3) If several acts of which one or more than one would by itself or themselves constitute an offence constitute when
combined a different offence, the person accused of them may be charged with and tried at one trial for the offence
constituted by those acts when combined or for any offence constituted by any one or more of those acts.
(4) Nothing in this section shall affect section 71 of the Penal Code.
To subsection (1)
(a) A rescues B, a person in lawful custody, and in doing so causes grievous hurt to C, a constable in whose custody B
was. A may be charged with and tried for offences under sections 225 and 333 of the Penal Code.
(b) A has in his possession several seals knowing them to be counterfeit and intending to use them for the purpose of
committing several forgeries punishable under section 466 of the Penal Code. A may be separately charged with and
convicted of the possession of each seal under section 473 of the Penal Code.
(c) With intent to cause injury to B, A institutes a criminal proceeding against him knowing that there is no just or
lawful ground for the proceeding; and also falsely accuses B of having committed an offence knowing that there is no
just or lawful ground for the charge. A may be separately charged with and convicted of two offences under section
211 of the Penal Code.
(d) A with intent to cause injury to B falsely accuses him of having committed an offence knowing that there is no just
or lawful ground for the charge. On the trial A gives false evidence against B intending thereby to cause B to be
convicted of a capital offence. A may be separately charged with and convicted of offences under sections 211 and
194 of the Penal Code.
(e) A with 6 others commits the offences of rioting, grievious hurt and assaulting a public servant endeavouring in the
discharge of his duty as such to suppress the riot. A may be separately charged with and convicted of offences under
sections 145, 325 and 152 of the Penal Code.
(f) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be
separately charged with and convicted of each of the 3 offences under section 506 of the Penal Code.
The separate charges referred to in illustrations (a) to (f) respectively may be tried at the same time.
To subsection (2)
(g) A wrongfully strikes B with a cane. A may be separately charged with and convicted of offences under
section 352 and 323 of the Penal Code.
(h) Several stolen sacks of corn are made over to A and B who know they are stolen property for the purpose of
concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain-
pit. A and B may be separately charged with and convicted of offences under sections 411 and 414 of the Penal
Code.

25
(i) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in
consequence of such exposure. A may be separately charged with and convicted of offences under sections 317
and 304 of the Penal Code.
(j) A dishonestly uses a forged document as genuine evidence in order to convict B, a public servant, of an
offence under section 167 of the Penal Code. A may be separately charged with and convicted of offences under
sections 471 (read with 466) and 196 of the Penal Code.
To subsection (3)
(k) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with
and convicted of offences under sections 323, 392 and 394 of the Penal Code.

- 3 different limbs:
 1st limb (most common)
- Joinder of charges at one trial if the offences form part of the “same transaction”
- “Same transaction” = “proximity of time, unity of place, unity of purpose or design &
continuity of action”: Nathan Tse v PP [1993] 1 SLR 961 (unity of purpose most important)
- capital drug case – charges – 2 charges – heroin importing at changi airport. 2 kg of pure
heroin. Proceeded with most of same trial. Arg that oth shld be treid sep. in this case held that
the trial was in order because of s170
- illus a: A may be charged separately, but tried at one trial, for charges under:
o (a) s 225 PC – rescuing person in legal custody; and
o (b) s 333 PC – VCGH to public servant with intent to deter the discharge of public
duty
 2nd limb:
- Joinder of charges at one trial if acts alleged constitute an offence falling within 2 or more
separate definitions of any law in force for the time being by which offences are defined or
punished
- Illustration (g): A wrongfully strikes B with a cane.
- This act can be defined as:
o (a) VCH (s 323 PC), or
o (b) Criminal force (s 352 PC)
- A may be charged for both s 323 and s 352 and tried for both at the same trial … BUT …
- Take note that s 170(2) CPC must be read in conjunction with first limb of s 71(2) PC,
which reads: “where anything is an offence falling within 2 or more separate definitions of
any law … the offender shall not be punished with a more severe punishment than the court
which tries him could award for any one of such offences”
- What this means: in previous illustration, A may be charged with and tried at one trial for
both s 323 and s 352, but when convicted he cannot be punished with a more severe
punishment than can be awarded for any one of the offences (Xia Qin Lai v PP [1999] 4 SLR
343)
 3rd limb:
- Joinder of charges at one trial if several acts of which one or more than one would by itself
or themselves constitute an offence constitute when combined a different offence
- Illustration (k): A commits robbery on B and in so doing vol. caused hurt to B
- A may be charged and tried for:
• (a) VCH (s 323 PC)
• (b) Robbery (s 392 PC) and
• (c) Robbery with hurt (s 394 PC)
 BUT A, when convicted, cannot be sentenced to suffer greater punishment than court can
award for any one offence – s 170(3) CPC read with second limb of s 71(2) PC: Xia Qin Lai v
PP

Trial for more than one offence.


170. —(1) If in one series of acts so connected together as to form the same transaction more offences than one are
committed by the same person, he may be charged with and tried at one trial for every such offence.

26
Offences falling within two definitions.
[have to look at the facts of the individual case to determine whether they form part of the same transactions]
71(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for
the time being by which offences are defined or punished, the person accused of them may be charged with and tried
at one trial for each of those offences

- see illustration If W leaves C out in the cold, and C dies of exposure, this act of abandonment can fall under 2
offences: 1) exposing C with intention of abandonment 2) Culpable homicide not amounting to murder => can be
tried for both offences in the same forum

Acts constituting one offence but constituting when combined a different offence
(3) If several acts of which one or more than one would by itself or themselves constitute an offence constitute when
combined a different offence, the person accused of them may be charged with and tried at one trial for the offence
constituted by those acts when combined or for any offence constituted by any one or more of those acts.

s170(4) CPC
Nothing in this section shall affect section 71 of the Penal Code.

- Because this kind of restricts the sentence that is eventually dished out to the accused… he can only be punished
for either robbery or assault

o “Same transaction”

Tan Kheng Ann & Ors V The Public Prosecutor [1965] 2 Mlj 108 – jt trial allowed
- (7).the question of separate trials in respect of each of the three charges or in "groups" of unspecified size were
matters for the exercise of a trial judge`s discretion and in this case he exercised his discretion rightly as the
whole transaction was in truth a single one, so much of each charge as alleged participation in an unlawful
assembly was in the case of each charge the same and it was not only in the interests of justice but in the
interests of the accused that the three charges should be tried together;
- Returning to the ground on which the basis on which the trial commenced has been attacked, complaint was
made of the rejection by the trial judge of the defence applications that there should be separate trials in respect
of each of the three charges and, when that was rejected, that each of the accused should be tried separately, or,
if this was not granted, they should be tried in "groups" of unspecified size.
- Both these questions were matters for exercise of his judicial discretion by the judge (see Gibbins and Proctor
13 Cr App R 134, 136) but it has been urged upon us that he exercised his discretion wrongly and that in
consequence there has been a miscarriage of justice.
- The point that the three charges should be tried separately was not very seriously pressed and is indeed without
substance. The whole transaction was in truth a single one, so much of each charge as alleged participation in
an unlawful assembly was in the case of each charge the same and it was not only in the interests of justice but
in the interests of the accused (particularly those who were ultimately acquitted) that the three charges should
be tried together.
- As regards the question of trying all the accused together, what was first asked for was that each of the accused
should be tried separately. It is true that when the judge shewed himself averse to this course some suggestion
was made that they should be tried in "groups" though no suggestion was made of the principles on which such
a division should be made.
- Now it is difficult to see how the holding of 59 (or any lesser number of) separate trials could possibly have
been of any advantage either to the interests of justice or the interests of any individual accused. Each of the
individual trials would have been very lengthy; by far the grea ter part of the evidence would have had to be
repeated at each trial for in each case it would have been necessary to produce all the available evidence as to
the episode as a whole. There would certainly have been less time devoted to the cross-examination of the
prosecution witnesses for there would have only been one defence counsel engaged (instead of eight) and this
might also have reduced any possibility of confusion as to the evidence, a state of affairs which would not
necessarily, or even probably, have been to the interests of any individual accused. Moreover it is to be
remembered that it was no part of the defence of any individual accused to cast any blame on any other
accused.
- Again it is difficult to imagine how in a place like Singapore with a small population, a small number of judges
and a limited jury list the last of the series of proposed individual trials which would have continued in all

27
probability for well over a year could have been anything but a caricature of justice. How could a jury have
been found who did not from reading the newspapers and talking with their friends know all about the case and
be free from preconceived opinions? How could the evidence of a prosecution witness giving the same
evidence for the fifty-ninth time and who had been cross-examined on it on fifty-eight previous occasions be
anything but a travesty? And how would justice be seen to be done had different results ensued from different
judges and different juries dealing with the same matters in different ways?
- In all the circumstances we can see nothing to shew that the judge exercised his discretion in this matter in a
way that would justify this court in interfering. Indeed (though this is unnecessary) we would express the view
that he exercised his discretion rightly. The whole transaction, however confused the happenings to which the
evidence related, was essentially a single one and in its essence not a very complex one. It was not a fraud case
involving lengthy examination of accounts and it was not complicated by the addition of any charge of
conspiracy. Admittedly questions of magnitude and importance and difficulty were involved. But, given the
regrettable but unavoidable factor of human fallibility, in our view the best available tribunal was a single
careful judge and a single careful and conscientious jury who would apply the same standards of care and
conscientiousness to the case as a whole and to the various questions of individual responsibility involved. To
have the whole matter tried by suc h a tribunal was the only way to avoid the danger, in our view a real one,
that in practice different individuals among the accused would have their responsibility judged by different
standards.
- In our view there was a trial by a tribunal of this nature.
- The judge`s summing-up will be dealt with later. As regards the jury there can be no doubt that they carefully
and conscientiously applied the law as it was stated to them to the evidence to which they had listened in the
case of each individual accused. The very nature of their verdicts shews that.

Nathan Tse v PP [1993] 1 SLR 931


- case concerned the joint trial of 2 accused persons and provided a definition of what amounted to “same
transaction”. These are proximity of time, unity of place, unity of purpose or design and continuity of action”
- Facts
o The two appellants were Hong Kong nationals. They were jointly tried and convicted on similar but
separate charges of importing 2178.0g and 2190.3g respectively of diamorphine into Singapore. (See
[1992] 1 SLR 870.) On 28 February 1989 at about 2.24pm they arrived at Changi Airport from Phuket
and went to the transit lounge. They did not go through immigration or customs checks. They intended
to remain in the transit lounge until their connecting flight to Amsterdam left at 9.55pm that same
evening. They were arrested in the transit lounge and were found with the diamorphine strapped to their
persons. On appeal, they argued that they did not import the drugs into Singapore, and the second
appellant further argued that the joint trial had occasioned a miscarriage of justice.
- Held, dismissing the appeal:
o (2) Even though both appellants were not charged for the same offence, their offences were
committed in the same transaction. There was a common or identity of purpose in their separate acts.
There was also unity of place and proximity of time. As such, the joint trial was permissible.
o (3) No miscarriage of justice was occasioned by the joint trial. Any unfavourable view the trial
judges might have formed of the first appellant’s case could not have affected their evaluation of
the second appellant’s case. Further, the trial judges were not wrong when referring to elements
of the facts or alleged facts which were common to both appellants, for them to have referred to
the two appellants together. Nothing suggested that the trial judges imported into the case of one
appellant, evidence admissible only against the other. Moreover, the court was not told what
evidence the first appellant might have given in support of the second appellant nor what effect
such evidence might have had on the outcome of the case against her, thus no prejudice was
shown to have been caused to her as a result of the first appellant not having been compellable as
a witness.
o 29 Another point raised by Cheuk is that the trial judges should not have allowed a joint trial as it
has in this case occasioned a miscarriage of justice. Section 176 of the Criminal Procedure Code
permits a joint trial where more than one person is accused of the same offence or of different offences
in the same transaction. Her counsel submitted that Tse and Cheuk were not charged for the same
offence nor were the offences committed in the same transaction. He submitted that though the accused
did not object to the joint trial it was no less a nullity. He said that the joint trial prejudiced Cheuk in
two ways. First, the unfavourable view which the trial judges took of Tse’s case would have adversely
affected hers. Second, since Tse chose to remain silent, Cheuk could not compel Tse to give evidence
which would support her case.

28
o 30 Of course Tse and Cheuk were not charged for the same offence. So the question is whether their
offences were committed ‘in the same transaction’. Ratanlal on Criminal Procedure Code (1985 Ed) at
p 225 states that ‘the real and substantial test for determining whether several offences are connected
together so as to form the same transaction depends upon whether they are so related to one another in
point of purpose, or cause and effect, or as principal and subsidiary acts as to constitute one continuous
action.’
o 31 Mitra on the Code of Criminal Procedure (16th Ed) states the tests in similar vein as follows at p
1385: The tests to decide whether different acts are part of the same transaction are proximity of time,
unity of place, unity of purpose or design and continuity of action. It is not necessary that all of them
should be present to make the several incidents parts of the same transaction. Unity of place and
proximity of time are not important tests at all, but the main test is unity of purpose. If the
various acts are done in pursuance of a particular end in view and as accessory thereto, they may
be treated as parts of the same transaction. As to what is the same transaction must depend upon
the facts and circumstances of each particular case. It is not the distance nor the proximity of
time which is so essential in order to consider what is ‘the same transaction’ as the continuity of
action and purpose. The expression ‘same transaction’ must be understood as including both the
immediate cause and effects of an act or event, and also its collocation, or relevant circumstances,
the other necessary antecedents of its occurrence, connected with it, at a reasonable distance of
time space, cause and effect. For a joint trial under s 239, identity of purpose is sufficient.
Community of purpose in the sense of conspiracy is not in any way necessary, though if it is present, its
presence will be a further element supporting a finding that the offences are committed in the same
transaction. Where the prosecution case alleges association and community of purpose among the
accused, their joint trial is permissible. For s 223 it is enough if the different offences are committed in
the course of the same transaction. The criterion which makes a joint trial allowable is what the
prosecution case is, not what the result may be.
o 32 Under common law the position seems to be similar and we would just quote a passage of the
Court of Criminal Appeal in R v Assim at p 261: Where, however, the matters which constitute the
individual offences of the several offenders are upon the available evidence so related, whether in time
or by other factors, that the interest of justice are best served by their being tried together, then they can
properly be the subject of counts in one indictment and can, subject always to the discretion of the
court, be tried together.
o 33 On the charge which was brought against each of the appellants, it is clear to us that the act of
each was so closely connected with the act of the other that each could be said to have been done
conjointly with the other. There was a common or identity of purpose in the separate acts of the
appellants. In our opinion the offences were committed in the same transaction. As the charges stood,
they were, to all intents and purposes, acting in concert. There was also unity of place and proximity of
time.
o 34 Next is the question of prejudice. The first complaint is that the judges’ view of Cheuk’s case
was likely to be affected by their unfavourable view of Tse’s case. As we said earlier, the trial judges
rejected Cheuk’s evidence that she did not know what she was carrying and that she did not know that
she was transiting in Singapore. As can be seen, the trial judges approached the matter by evaluating
her evidence on the basis of whether it was inherently believable. It is difficult to see how any
unfavourable view they might have formed of Tse’s case could have affected their evaluation of
Cheuk’s case.
o 35 In the supplemental submission for Cheuk, it is also said that the trial judges failed to consider
evidence admissible against each accused separately. In support, it is said that the learned trial judges
made references to the two accused ‘both’ importing the drugs into Singapore and to the two accused
saying they did not know the contents of the packets they were carrying. We really do not see why it
was wrong, when the trial judges were referring to elements of the facts or alleged facts which were
common to both accused, for them to refer to the two accused together. There is nothing in these
passages that suggests that the trial judges were importing into the case of one accused evidence
admissible only against the other.
o 36 It is also submitted for Cheuk that as Tse was not compellable as a witness, the joint trial resulted
in Cheuk being deprived of the evidence of Tse which could have supported her. However, we have not
even been told what evidence Tse had in this regard, or what effect such evidence might have had on
the outcome of the case against her.

29
o 37 We are therefore unable to see that Cheuk has been prejudiced at all or in a way which would
nullify the joint trial.

Offences Committed in the Same Transaction


- cases where charges were rightfully joined: R v Sakandar Khan [1939] MLJ 123, Sheik Hassan bin Sheik
Ibrahim v PP (1940) 9 MLJ 69

Sakandar - Facts:

The appellant was convicted on two charges, first of accepting a bribe from a hawker contrary to s 161 of the
Penal Code; secondly of giving false information against another hawker alleging that the hawker had given him
a bribe.
Held , that the mischief of s 173 is to prevent unfairness or embarrassment to the accused (1) by confusion of
issues, (2) by introduction of evidence tending to shew that he is guilty of some other offence. If the offences
were in the same transaction neither of such embarrassments arises. The two offences in the present case had the
relation of cause and effect. If the appellant had only been charged with one of the two offences, evidence of the
other would have been admissible as being relevant to the issue. There had been no improper misjoinder.

- cases where charges were wrongfully joined: Chin Choy v PP:


• appellant was charged with two offences of consorting and two offences of being in possession of
ammunition contrary to reg. 4(1)(a) and (b) Emergency Regulations
• period which these offences covered were from 1948 to 1955
• he was asked to plead to these four charges and eventually pleaded guilty to the two charges which
related to consorting and claimed trial to the 2 charges under reg. 4
• held that:
i. the offences did not form part of the same transaction and were therefore wrongly joined;
ii. the trial together of the 4 charges was an illegality – the appellant was required to plead
to 4 charges which were joined and the fact that he pleaded guilty to 2 of them does not
cure the original illegality. If the charges are wrongly joined, the court can ask the
prosecution to elect which charges they intend to proceed with
o Tan Teik Leong v PP [1956] 22 MLJ 14 (Tan Teik Leong v Regina [1956] MLJ 14):
• Held that several charges against the same accused could be jointly tried under s. 169 and 170 CPC
because these provisions were cumulative and not mutually exclusive

Facts:

The appellant in this case was charged with a total of six charges, three of them being of causing to be let on hire
motor vehicles which were not authorised vehicles contrary to reg 3(5A) of the Motor Vehicles (Commercial
Use) Regulations and three being of causing the said vehicles to be used without there being in force sufficient
policy of insurance in respect of third party risks contrary to reg 3(1) of the Motor Vehicles Third Party Risks
Regulations. The appellant was sentenced on all six charges and he subsequently appealed. On appeal, it was
argued (a) that there was a misjoinder of charges which caused prejudice and embarrassment to the accused and
(b) the prosecution had not proved its case and the appellant should not have been called upon for his defence.

Held

(1).there was nothing illegal in the joinder of the six charges as the various sections of the Criminal Procedure
Code permitting joinder of charges are not mutually exclusive but cumulative; (2) the appellant was not in any
way prejudiced in this case by the joinder of the charges; (3) on the facts there was insufficient evidence to prove
that the cars were hired at all and even if they were, there was no evidence to show that the appellant caused or
permitted the cars to be so used.

Which charge to prefer?

30
- Discretion of prosecution in deciding the charge.
- Govindarajulu v PP [1994] 2 SLR 838
o Facts: The first appellant was convicted of trafficking by delivering 325.7g of diamorphine. The
second appellant was convicted of abetting the first appellant’s trafficking by intentionally aiding the
latter in the delivery of the said drugs.
o Held: up to the prosecution to decide which charge to prefer… not up to the defence to argue that a
more appropriate charge should have been preferred and framed… as long as on the facts, the offence
is made out… it is not for counsel to argue that another charge should have been preferred and appeal

Joinder of charges - prejudice


- Notwithstanding joinder under ss 169 or 170, court retains discretion to order separate trials if court of
opinion that joinder may prejudice or embarrass Accused in his defence: s 171 CPC

Separate trial when accused prejudiced.


171. Where before a trial or at any stage of a trial the court is of opinion that an accused person may be prejudiced or
embarrassed in his defence by reason of being charged with and tried at one trial for more than one offence under
either section 169 or 170 the court may order that he shall be charged and tried separately in respect of any one or
more of the offences

- Can you be tried for a capital and non-capital trial at the same time?
- Yong Yow Chee v PP [1998] 1 SLR 273
 court said that this was ok – but premnised this by saying that general rule is that the capital charg shld
be tried separately fr non capital charge – you want to focus entirey on your defence in capital charge.
Very impt – so ot of fairness, so that is general rule.
 Comments: The court felt that in the case of Yong Yow Chee, the appellant had not suffered any
prejudice by the joinder of the capital charge and the non-capital charge. The standard of proof were the
same for both charges. In this case, the two charges related to the quantity of the drug diamorphine (1st
charge – 244.35g (which made it a capital charge) 2nd charge – 2.58g (which made it a non capital
charge).
 But it depends on the facts of each case as the judge is given the discretion under Section 171 of
the CPC.
- Lee Kwang Peng v PP [1997] Singapore Court of Appeal
 TKD instructor charged with molesting several students
 The appellant denied the charges and alleged that the complainants had conspired to bring false charges
against him
 (dicta)
- may not require separate trials even if similar fact evidence inadmissible (prejudice >
probative force) – judge must ask himself if he would be so influenced by evidence of the
different victims that he would be unable to preserve sanctity of rule against similar facts
 Comments:
- In the case of Lee Kwang Peng, it was held that under Section 169 of the CPC, a trial judge
may order a joinder of charges at a single trial if those offences formed or were part of a series
of offences of the same or similar character.
- The trial judge had a discretion under Section 171 of the CPC to order separate trials for each
charge where the accused may be prejudiced or embarrassed in the conduct of his defence.
- This discretion extended to situations where a single trial may result in similar fact evidence
being heard.
- He should not exercise that discretion if the similar fact evidence was properly admitted under
the rule in Tan Meng Jee v PP [1996] 2 SLR 422.
- Where the similar fact evidence was not admissible under that rule, the judge may nonetheless
order a single trial where he considered that he would not be improperly influenced by the
similar facts in coming to his decision.
 Held on issue of joinder
- (a) Diff from UK law

31
o the English law and Singapore law on the diverge on this point
o in our law, the question of whether SFE would be admitted is governed by wholly
different considerations of whether a joinder should be ordered
o it is entirely possible for a judge to order a joinder but with a view to treating the
evidence of the 2 victims separately
o the trier of fact in our system is endowed with the judicial ability to preserve the rule
against similar facts
o as compared to UK where there are difficulties faced by a jury in preserving the rule
where evidence of the 2 victims is adduced at one trial almost invariably justified
separate trials
- (b) Law in Singapore
o s169 CPC provides that where a person is appellant of more offences than one, he
may be charged with and tried at the same trial for any number of offences if
they form or are part of the same series of offences of the same or similar
character
o s171 CPC empowers the court to order a separate trial where a joinder of charges
in a single trial would prejudice the appellant or embarrass him
o reiterate however, that even if came to the conclusion that SFs could not rightly be
admitted in the present case, that would not have conclusively necessitated separate
trials
o for even where SF must be considered in determining liability, because their
prejudicial effect exceeds its probative force, the trial judge retains the discretion
under s171 to decide whether the degree of prejudice presented by a single trial
justifies an order of separate trials, if he would not be so influenced by the evidence
provided by both the victims that he would be unable to preserve the sanctity of the
rule against similar facts

JOINDER OF DEFENDANTS

• Rationale for Holding of Joint Trials:


- savings of time, money, passing of the same verdict and the same treatment of all concerned.

What persons may be charged jointly.


176. When more persons than one are accused of the same offence or of different offences committed in the same
transaction, or of more than one offence falling within section 169 or when one person is accused of committing any
offence and another of abetment of or attempt to commit that offence or when one person is accused of the offence of
theft or extortion or criminal misappropriation or cheating, or criminal breach of trust, and another of receiving or
retaining or assisting in the disposal or concealment of the subject-matter of that offence they may be charged and
tried together or separately as the court thinks fit and the provisions contained in the former part of this Chapter shall
apply to all the charges
Illustrations
(a) A and B are accused of the same murder. A and B may be charged and tried together for the murder.
(b) A and B are accused of a robbery in the course of which A commits a murder with which B has nothing to do. A
and B may be tried together on charges, charging both of them with the robbery and A alone with the murder.
(c) A and B are both charged with a theft and B is charged with two other thefts committed by him in the course of the
same transaction. A and B may be both tried together on charges, charging both with the one theft and B alone with
the two other thefts.
(d) A and B being members of opposing factions in a riot should be charged and tried separately.
(e) A and B are accused of giving false evidence in the same proceeding. They should be charged and tried separately.

- Sec. 176 CPC – joinder of defendants in one trial if:


 1. Accused of same offence
 2. Accused of different offences in same transaction (Nathan Tse v PP)
 3. Third Limb - when more than one person are accused of more than one offence falling into the
category found in s 169 of the CPC (series of offences of the same or a similar character)
 4. One defendant accused of committing an offence and the other accused of abetment/attempt

32
 5. One defendant accused of theft, extortion, CMA, cheating or CBT, and other of receiving or retaining
or assisting in disposal or concealment of subject matter of that offence
- Fifth Limb - when one person commits the principal offence and another receives or retains or
assists in the disposal or concealment of the property

- Joinder – when exercised and effect of misjoinder

Loh Shak Mow v PP [1987] 1 MLJ 362 – sep trial ordered


- a conviction must be quashed if the joinder has occasioned a failure of justice to an accused
- Facts:
o The first appellant, Loh, met one Lee of BVF, a finance company. Lee was the Chairman of BVF. BVF
was a registered member of the Hong Kong Commodities Exchange Ltd. In Hong Kong both Lee and
Loh discussed setting up a company in Singapore to trade in spot gold and gold futures. In April 1981
Loh and Lee incorporated a commodities firm in Singapore called BVC in order to trade in spot gold,
gold and gold futures and other commodities.
o The second appellant, Alan Wong Hoi Ping, was then practising as an advocate and solicitor in the firm
of Lee & Lee. They misused the company’s funds.
o The first appellant was charged with and convicted on six charges of abetment of cheating under
Section 420 read with Section 109 of the Penal Code and fourteen charges of criminal breach of trust as
an agent under Section 409 of the Penal Code. The second appellant was charged and convicted on
three charges of criminal breach of trust as an agent and one charge of dishonestly retaining stolen
property. Both appellants appealed against their convictions and sentences.
- Held:
o On the evidence adduced, distinct offences of abetment of cheating and criminal breach of trust were
committed by the first appellant. The act alleged constituted offences falling within two separate
definitions of law by which offences are defined or punished. The provisions of the Criminal Procedure
Code permit the first appellant to be charged and tried at one trial for each of those offences.
o It was for the trial Judge to decide whether the two accused should be tried together or separately. The
discretion must be exercised judicially. The usual tests applied to decide whether different acts are
parts of the same transaction (to bring it within Section 175 of the CPC) are proximity of time,
unity of place, unity of purpose or design and continuity of action. In the present case, all six
charges of abetment of cheating which the prosecution elected to proceed against Loh Shak Mow were
before the first criminal breach of trust charge against the appellant.
o 6).The trial judge did not consider the case on the basis of the evidence admissible against each accused
separately. He treated the second appellant as a conspirator in a conspiracy with which he was not
charged and in which he was not named.
o (7).A joint trial should not have been ordered as it was not fair and just to the appellant and the joinder
had occasioned a failure of justice. The second appellant`s convictions had to be quashed.
o There was no proximity of time and no unity of purpose and continuity of action.
o A was extensively crossed examined on charges for which he was not charged (coz the principal
offender faced 9 counts of CBT) … the trial judge could have been influenced by this
o effect of misjoinder was that the conviction of co-accused was quashed- trial judge prejudiced so
conviction quashed

- “Same transaction”

see Loh above

Tse Poh Chung Nathan v PP [1993] 1 SLR 961


- Facts: Both accused were Hong Kong nationals. They were arrested at Changi Airport as they were attempting to
leave Singapore for Zurich. The first accused was arrested at departure gate C35 whilst checking in and the
second accused was seized on board the plane awaiting flight. The first accused was found to be in possession of
a bag containing 4,594.65g of diamorphine. Both accused were charged under Section 7 and 12 of the Misuse of
Drugs Act read with Section 34 of the Penal Code with having a common intention to attempt to export the said
drugs.
- Held: Common intention can be inferred from the surrounding circumstances and the conduct of the parties.

33
o Unity of purpose, time, place etc all fitted in…so joint trial was the right thing to do
o Factors for having joint trial matched to the facts here. Facts fitted joint trial scenario thus joint trial
correct.
o Unity of purpose coz boarded the plane together, etc to traffic (got nexus)
- Comments: The main test/ turning point is the unity of purpose as inferred from the communication between the
parties in Hong Kong and Singapore. At pg. 969 dealt with the procedure and etc.
- another ground of appeal was that Nathan elected to remain quiet
o the other accused argued that it was unfair because Nathan when being jointly tried… was not
compellable
o if separate trial, then Nathan not accused, therefore compellable
o held did not amount to prejudice or embarrassment because the appellant did not state what kind of
evidence Nathan would have provided for her

PP v Loh Ang Sing [1965] 2 MLJ 129 – separate trial ordered


- same transaction means:
(1) proximity of time
(2) unity of place
(3) unity of purpose or design
(4) continuity of action
- no real need to have all factors… Loh Ang Sing has incidated that the unity of purpose of the most important
factor (because links various acts to 1 transaction)
- Also consider that if done with particular end in mind, could also amount to ‘same transaction’.
- The two accused were charged with offences under the same section of the Internal Security Act, 1960. The
prosecution applied for them to be jointly tried. The learned magistrate ruled that they should be tried separately
but reserved the question for the consideration of the High Court.
- Held: Held as the offences were committed at different times and different places and the exhibits were different,
the learned magistrate was right in ruling that they should be tried separately.
- Semble: The usual tests applied to decide whether different acts are parts of the same transaction are proximity
of time, unity of place, unity of purpose or design and continuity of action. However it is not necessary that all of
them should be present to make the several incidents parts of the same transaction. The main test is that of unity
of purpose or design. Unity of purpose or design and continuity of action are essential elements to link together
different acts into one and the same transaction......Where the case for the prosecution if that all the accused
persons carried out a single scheme by successive acts at different intervals and there was unity of purpose and
the whole series of acts were linked together by one motive and design so as to constitute one transaction then a
joint trial is not only valid but is also proper is the interest of public expense, time and convenience.
- The fact that the accused were charged with the same offence does not necessarily mean that they may be tried
together. Here it would appear that the offences were alleged to have been committed at different times and
different places and also the exhibits are different. Therefore if the alleged offences committed by the accused are
clearly distinct and different and are not offences committed in the same transaction then joint trial is not justified
and may prove fatal. The only relevant provision which authorises joint trial of offenders under certain specified
circumstances is s 157 of the Criminal Procedure Code which reads:-
- "When more persons than one are accused of the same offence or of different offences committed in the same
transaction, or when one person is accused of committing an offence and another of abetment of or attempt to
commit the same offence, they may be charged and tried together or separately as the court thinks fit, and the
provisions contained in the former part of this Chapter shall apply to all such charges."
- The section permits joint trial where the offenders are accused of the same offence committed in the same
transaction. That means an offence in which the offenders jointly tried are concerned and does not mean an
offence under the same section of the law.
- A number of acts may be so connected as to form part of the same transaction within the meaning of the said s
157 if there should exist between the accused community of purpose or design and continuity of action. Whether
particular acts are so connected as to form part of the same transaction is a question which has to be decided
according to the facts in each particular case. (See Mallal`s Criminal Procedure, 4th Ed p 246).
- In Manikam v Public Prosecutor [1947] MLJ 90 two accused were tried jointly on charges of criminal trespass,
but the charges alleged that the first accused committed the offence on one day and the second accused on a
different day. It was held that as the offences were not committed in the same transaction, there should have been
a separate trial of each accused.

34
- Again in Yee Chee v Regina [1953] SCR 64 appellant, a prisoner, was charged jointly with two other prisoners
for possession of chandu. A tin containing chandu was found by a prisoner`s bed in a communal cell where
twelve prisoners slept. Although the appeal was allowed on other ground it is interesting to note what Smith J
said on the question of joint trial:- "There is another important point of procedure in this case which magistrates
and police prosecutors should bear in mind. Here three men were tried together for an offence under s 4(2) of
Ordinance No 27 of 1949. The only authority for a joint trial of offenders, or of trying offenders together, is s 171
of the Criminal Procedure Code. That permits a joint trial where the offence charged is the same offence, that
means an offence in which all the persons jointly tried are concerned. It does not merely mean an offence under
the same section of the law. Here the alleged possession of chandu by these prisoners was a distinct and different
offence, nor were the offences committed `in the same transaction` which also justifies a joint trial. Therefore,
the cases against these three men should have been heard as separate cases. This deviation from the correct
procedure might easily prove fatal on appeal."
- The usual tests applied to decide whether different acts are parts of the same transaction are proximity of time,
unity of place, unity of purpose or design and continuity of action. However, I do not think it is necessary that all
of them should be present to make the several incidents parts of the same transaction. In my view the main test is
that of unity of purpose or design. Unity of purpose or design and continuity of action are essential elements to
link together different acts into one and the same transaction. If the various acts are done with a particular end in
view they may be treated as parts of the same transaction. As to what is the same transaction must depend upon
the facts and circumstances in each particular case.
- In my view for a joint trial under s 157 identity of purpose or design is sufficient. Identity of purpose in the sense
of a conspiracy is not in any way necessary. If the prosecution alleges association and community of purpose
among the accused then I think joint trial is permissible. It is of course for the prosecution who knows or
should know all the facts to justify a joint trial. Where the accusation is that all accused persons carried out a
single scheme by successive acts at different intervals and there was unity of purpose and the whole series of acts
were linked together by one motive and design so as to constitute one transaction then a joint trial is not only
valid but is also proper in the interest of public expense, time and convenience.
- In my opinion in so far as this reference is concerned the learned magistrate had exercised his discretion properly
and was right in refusing to hear the two accused together as the prosecution had not produced any good reasons
to satisfy him why there should be a joint trial. If the prosecution wishes to apply for joint trial it is for the
prosecution to justify it. The prosecution has all the facts and should have little difficulty in making out a good
case for a joint trial. Even though an offence or offences are committed in the same transaction it is still a matter
for the presiding magistrate to decide whether accused should be tried together or separately. How he is going to
exercise his discretion must necessarily depend on the facts of each case. The discretion must of course be
exercised judiciously.

- Discretion of court to order joinder under Section 176 CPC

Jayaraman v PP [1979] 2 MLJ 88


- In this case the eight accused were jointly charged with four charges of culpable homicide not amounting to
murder. At the commencement of the hearing before the Sessions Court the DPP applied for the trial to proceed
on the first three charges with the fourth charge being stayed. The defence objected to such a course on the
grounds that the accused will be in double jeopardy in that there would be two separate trials in respect of
offences alleged to have been committed which arise out of the same transaction. The learned President of the
Sessions Court ordered the trial to proceed on the first three charges and stayed the hearing of the fourth charge.
At the request of the defence the learned President adjourned the hearing to enable the High Court to give the
necessary directions under s 35 of the Courts of Judicature Act, 1964.
- Held: The discretionary power to order whether the charges should be heard jointly or separately is that
of the court and not the prosecution. In this case the Sessions Court should be directed to proceed with the
trial on all four charges jointly.
- In the present case there are eight accused persons and four charges and their joint trial is forbidden by s 163
CPC unless the case falls within one of the four exceptions. Section 164 CPC does not apply because there are
more than one accused and there are four charges. The only exception within which it could fall is s 170 CPC.
The question arises whether the four offences charged were committed "in one series of acts so connected
together as to form the same transaction". It was held in Babulal Choukhani v Emperor, supra , that the relevant
point of time in the proceedings at which the condition as to sameness of accusation must be fulfilled is the time
of accusation and not that of the eventual result. In other words the question must be decided at the time the
charges are preferred. At this stage the only material before the court are the charges. In Chin Choy v Public

35
Prosecutor, supra , the Court of Appeal held that the best test to apply is that laid down in Amrita Lal Hazra v
Emperor 42 Cal 957:
- "It is not possible to frame a comprehensive formula of universal application to determine whether two or more
acts constitute the same transaction; but circumstances which must bear on the determination of the question in
an individual case may be easily indicated: they are proximity of time, unity or proximity of place, continuity of
action and continuity of purpose or design."
- Now, applying this test to the present case, a perusal of the charges show:
o (i) Proximity of time - all the four offences were alleged to have been committed at the same time;
o (ii) Unity or proximity of place - all the four offences were alleged to have been committed at the same
place;
o (iii) Continuity of action - all the four offences are the same and committed at the same time and place;
and
o (iv) Continuity of purpose or design - all the eight accused are charged with having committed all four
offences and in all four charges the prosecution allege common intention by invoking the provisions of
s 34 of the Penal Code.
- I therefore, hold that this case falls within the exception contained in s 170 CPC.
- Be that as it may, the learned Deputy Public Prosecutor contends that it is for the prosecution to determine
whether to proceed with three or four charges on the grounds that it is only the prosecution that is in possession
of the facts of the case against the accused which knowledge is unknown to the defence or the court and therefore
in the best position to determine the conduct of any case.
- It is plain that the power to order separate or joint trials is a power exercisable by the court and not the
prosecution. I am fortified in my view by the observation made by the Court of Appeal in Chin Choy v Public
Prosecutor, supra , where at p 238 the court said: "When charges are wrongly joined, the prosecutor should be
asked to elect before the pleas are taken which charge or charges he wishes to proceed on, and thus avoid a trial
which is illegal and bad. As a practice, charges which are not capable of being tried together should be made on
separate charge sheets and the subject of separate trials.
- In R v Grondkowski and R v Malinowski [1946] 1 KB 369 the Court of Appeal held that the granting or refusing
of the application for separate trials is a matter of discretion for the trial judge, and where such discretion had
been judicially exercised the Court of Criminal Appeal will not interfere unless it appears that a miscarriage of
justice has resulted either from the granting or the refusal of the application.
- In exercising its discretion, the court should bear in mind that the mischief of s 163 CPC is to prevent unfairness
or embarrassment to the accused –
o (i) by the confusion of issues;
o (ii) by introduction of evidence tending to show that he is guilty of some other offence.
o If the offences are in the same transaction neither of these embarrassments arise: R v Sakandar Khan
[1939] MLJ 123 and Mohamed Ramly b Haji Rasip v Public Prosecutor [1941] MLJ 31 .
- I accordingly hold that the discretionary power to order whether the charges should be heard jointly or separately
is that of the court and not the prosecution.

- Co-accused evid during jt trial


o Where two persons jtly tried under section 176, section 122(3) EA makes each accused competent to
give evid on behalf of himself or co accused but not compellable to do so
o If refuses to give evid and accused deprived of testimony by virtue of co accused electing to remain
silent, x mean tt nec to order sep trials

Lee Teck Wah and Another v Public Prosecutor [1998] 2 SLR 827
- Facts
 The first and second appellants (‘Lee and Rahim’) were jointly charged with abetting one Hassan by
each engaging with him in a conspiracy to traffic in diamorphine. Hassan was himself charged with
trafficking in the diamorphine by transportation. When Lee was arrested, four $10,000 notes were
found on him. The prosecution’s case was that Rahim conspired with Hassan and that Rahim was to
provide finance for the drug deal, and Lee conspired with Hassan to supply the drugs to Hassan. In
furtherance of such conspiracy Rahim gave four of the $10,000 notes to Hassan who in turn used them
to pay Lee for the drugs.
 At the commencement of the trial, Hassan pleaded guilty to the charge against him but the High Court
rejected his plea and directed the prosecution to prove its case against him. At the close of the

36
prosecution’s case, Hassan still maintained his plea of guilty. He accepted the evidence relating to him
only, and went on to exculpate the appellants. The trial judge did not accept his plea of guilty and called
upon him to enter his defence. He elected to remain silent and did not adduce any evidence in his
defence.
 Lee and Rahim claimed trial. Their counsel first applied for their trials to be severed from that of
Hassan at the outset and again at the close of the prosecution’s case, on the ground that the appellants
were prejudiced as they could not call Hassan to testify on their behalf. That application was refused on
both occasions.
 All three accused were convicted. Lee and Rahim appealed.
- Held, dismissing the appeals:
 The only question was whether there was any prejudice to the appellants having a joint trial with
Hassan. Under s 122(3) Evidence Act (Cap 97, 1997 Ed), each of the three accused was competent to
give evidence on behalf of himself or his co-accused, but not compellable to do so. There was no
authority for the proposition that where an accused was deprived of the testimony of his co-accused
because the latter elected to remain silent, it would always be necessary in such a case to order separate
trials of the accused.
 On the facts, the appellants were not actually deprived of the evidence of Hassan. At no stage
of the proceedings had Hassan refused to give evidence for either Lee or Rahim. On the
contrary, his statement from the dock seeking to exculpate them was a strong indication that
he would be prepared to give evidence as their witness, if called. He was not called. When he
elected not to give evidence, it was an election made with reference to his own defence only.
It was not an election not to give evidence for Lee or Rahim. On the basis of what had
transpired, the inference was that Hassan was only too willing to testify for Lee and Rahim.
Counsel for both appellants had the opportunity to call Hassan as a witness but did not do so.
 The learned judge was right in rejecting Hassan’s plea of guilty, as he found that his plea was
somewhat equivocal.

- If co accused elects not to give evid for himself stil open to accused to call co accused as witness – co accused
can then elect not to give evid for accused under s122.3
- Then approp for accused to call for sep trials to call co accused to give evid

CONVICTION OF ABETTOR
- an abettor can be convicted even where the principal is acquitted: Ong Ah Yeo Yenna v PP [1993] 2
SLR 73, Govindarajulu v PP [1994] 2 SLR 838

Ong Ah Yeo - Facts


The petitioner Ong pleaded guilty to of abetment by intentionally aiding one Lim to commit criminal breach of
trust. She was convicted and sentenced to six months’ imprisonment. She applied to set aside the conviction on
the ground that Lim had claimed trial to the criminal breach of trust charge and the prosecution’s statement of
facts in support of the charge against her did not in fact support that charge.
Held, granting the petition and setting aside the conviction:
(1) Illustration (a) of explanation 2 of s 108 of the Penal Code (Cap 224) indicated that an abettor’s liability
could extend beyond situations in which the principal was entitled to be acquitted where the actus reus of the
offence was not committed. However, this extension did not apply to abetment in the form of intentional aid
rather than instigation or conspiracy.
(2) Reading Explanation 2 of s 107 read with s 108 of the Penal Code, a person abetted an offence who aided in
the commission of an act which might only be a constituent part of the whole actus reus of the offence. If he was
said to have aided only where the aid yielded results, then it followed that he only intentionally aided that offence
if the whole actus reus of the offence itself was proved to have been committed. If it had not, and only the act
which formed a part of the actus reus of the offence was proved to have been committed, his intentional aiding of
that act only supported his liability for intentionally aiding an attempted commission of the offence (assuming
the evidence amounts to such attempt).
(3) However, the fact that the act intentionally aided must have been committed did not mean that the principal
should necessarily be convicted prior to the alleged abettor in order that the latter be found liable for aiding him.
The court which tried an abettor on a charge of intentionally aiding an offence must direct its mind towards
making a finding as to whether or not the whole actus reus of the offence he was alleged to have aided was in
fact committed; and the court must do so in all cases, including where the principal had not been convicted of
that offence by the time the alleged intentional aider was tried.

37
(4) Here, even assuming that the statement of facts disclosed the commission of the act/s constituting the
offence of criminal breach of trust alleged against Lim, it did not address Ong’s intention at the time she did the
acts for which she was charged. It had not been proven that she intentionally aided the commission of such act/s
with the intention that Lim should misappropriate the moneys.
(5) The charge itself was strictly improper because it did not allege that the moneys misappropriated were
property to which Lim was entrusted over which he had dominion. The cumulative deficiencies in the
prosecution case were not to be lightly regarded. The petition would be granted and Ong’s conviction set aside.
Govin - Facts
The first appellant Govind was convicted of trafficking by delivering 325.7g of diamorphine. The second
appellant Amrutham was convicted of abetting Govind’s trafficking by intentionally aiding him in the delivery of
the said drugs. On appeal, Govind argued that the trial judge failed to give sufficient consideration to his defence
that he thought he was not delivering heroin because he had tasted the packet containing trimprazine and
concluded, without tasting it, that the other packet, similarly, did not contain heroin. Amrutham submitted that:
(a) the trial judge erred in failing to consider whether the evidence adduced by the prosecution answered the
charge of abetment; (b) based on the prosecution evidence, he should have instead been charged with trafficking
by offering to sell drugs to one narcotics officer Lee; (c) as he was charged as an abettor, his conviction depended
on that of the principal Govind; and (d) the trial judge erred in holding that the prosecution successfully
established a nexus between the appellants with respect to the delivery of the drugs.
Held, dismissing the appeals:
(1) Whether or not the facts in a given case gave rise to charges for other offences and whether the prosecution
should have charged an accused for those offences was irrelevant. A trial court must concern itself with the
charge at hand and decide whether the prosecution had proved beyond a reasonable doubt each and every
element of the charge. It was not for a court of law to consider the moral complicity of each accused person and
question the prosecution’s absolute discretion in deciding which charge to prefer.
(2) In an abettor’s trial, the prosecution had to establish that the act aided must have been committed. However,
the conviction of an abettor also turned on the evidence against him, which may be different from that admitted
against the principal. As such, an acquittal of the principal may still result in the abbettor’s conviction. The
verdicts against them were therefore not interdependent as many factors and interests were operative and the
conviction or acquittal of one was irrelevant when considering the case against the other.
(3) ‘Abets’ in s 12 of the Misuse of Drugs Act (Cap 185) had the same meaning as in the Penal Code
(Cap 224). An abettor who, either prior to or at the time of the commission of an act, did anything to facilitate the
commission of that act, was said to aid the doing of that act.
(4) The trial judge correctly rejected Amrutham’s claims that there was no nexus between him and Govind with
regard to the delivery of the drugs. As Amrutham’s negotiations with Lee clearly facilitated Govind’s delivery of
the drugs, he abetted Govind’s trafficking.

- where two or more accused face a joint charge alleging that they had a common intention to commit an
offence, the charge need not be amended where a co-accused is acquitted: PP v Teh Thiam Huat [1996]
3 SLR 631

Facts
The appellant Teh and his companion Tay were jointly charged with trafficking in 40 sachets of heroin. The trial
judge acquitted Tay and convicted Teh who appealed against conviction. Teh argued that he was severely
addicted to heroin, and that the 40 sachets were for his and Tay’s personal consumption over two weeks and that
the trial judge erred in rejecting his defence.
Held, dismissing the appeal:
(1) Based on Teh’s own evidence, he could not have consumed two sachets of heroin a day.
(2) Furthermore, Teh’s argument that he had the means to support the extent of his consumption was a bald
statement unsupported by evidence.

ACQUITTAL OF CO-ACCUSED ON JOINT CHARGE


- where a co-accused on a joint charge is acquitted, should the Court amend the charge before convicting
the other co-accused?: Aziz bin Abdul Kadir v PP [1999] 3 SLR 175

Editorial Note: Appeal dismissed by the Court of Appeal on 5 April 1999]

Facts

38
The appellant and Raseed were jointly charged on two counts under s 5(1)(a) read with s 5(2) of the Misuse of
Drugs Act for trafficking in controlled drugs pursuant to their common intention to traffic. They were arrested in
the appellant’s taxi, whose boot contained several packages of drugs. Upon arrest, the appellant alleged that the
packages contained illegal things and claimed that they were left there by a male Indian passenger whom he
picked up earlier that evening. He maintained this position in his s 122(6) statement. Following a thorough search
of the taxi several days after the arrest, more drugs and drug paraphernalia were found in the taxi. In his long
statement, the appellant retracted his earlier account. Instead, he claimed that the drugs belonged to Raseed.
Raseed denied any knowledge of the drugs found and claimed that he had only met the appellant before their
arrest. At the end of the trial, Raseed was acquitted and discharged on the basis that neither the requisite
possession nor common intention to traffic were proven against him beyond a reasonable doubt. The prosecution
did not appeal against his acquittal. The appellant appealed against his convictions.

Held, dismissing the appeal:

(1) In this case, if the prosecution sought to rely on s 17 to establish the requisite mens rea of possession for the
purpose of trafficking, they could not utilise the presumption relating to the ownership or control for the time
being of a vehicle when a controlled drug was found in such a vehicle (s 21 of the Act).

(2) The appellant had physical control over the taxi and its contents at the material time. He admitted in his
long statement that he suspected the contents of the packages. His knowledge of their existence, their
juxtaposition with the transparent packets of cannabis and the fact that he attempted to hide all the bundles were
more than sufficient knowledge for this purpose. In the circumstances, the appellant clearly had possession of the
drugs in question.

(3) Although the appellant was convicted on unamended joint charges alleging a common intention to traffic
between the two accused, the appellant’s conviction was proper as he was not prejudiced by Raseed’s acquittal.

(4) The crux of the appellant’s arguments on appeal was that Raseed was the trafficker. The matters raised by him
did not found any basis for the inference that Raseed was the true mastermind of the operation to the exclusion of the
appellant. Instead, the direct evidence and incredibility of the appellant’s testimony weighed heavily against him.
Accordingly, he failed to rebut the relevant presumption.

FRAMING THE CHARGE

• Deciding on the offence (consider sentence, etc)


• Applying the rules (on joinder, duplicity, etc.)
• Knowing the law

Er Joo Nguang & Anor v PP [2000] 2 SLR 645 (pure conspiracy vs abetment by conspiracy), s159 (2) CPC
- Facts: The first appellant was the managing director of a Singapore company of freight forwarders called WF.
The second appellant was the managing director of a company called US Apparel.
- Held:
 The charges against B1 and B2 were not defective merely by virtue of the fact that no principal offender
existed. The distinction between limb (b) of Section 107 of the PC and limbs (a) and (c) should be
clarified. The offence of abetment by conspiracy was derived from the Indian Penal Code and alien to
English law. Unlike the offences of abetment by instigation or intentional aiding, abetment by
conspiracy is, in substance more closely related to the concept of ‘criminal conspiracy’ than the
traditional English notion of ‘aiding and abetting’.
 As a matter of law, it was not necessary for a principal offender to exist before someone could be
charged under s 107(b) of the Penal Code for abetment by conspiracy — so long as two accused
persons agreed that they wanted to effect a substantive offence, and so long as one of them
committed an act in pursuance of that conspiracy, there was no reason why they could not both
be charged for abetting each other by conspiracy to commit that substantive offence.
- Comments: The prosecutor would have to know the law before he/she frames the charge against the accused. In
this case, it was whether the charge was one of pure conspiracy OR abetment by conspiracy under Section 159(2)
of the CPC.

39
• Matching the evidence (e.g. Section 30 Evidence Act)

Jimina Jacee d/o CD Athananasius v PP [2000] 1 SLR 205 (amendment of charge on appeal from abetment by
instigation to abetment by intentionally aiding)
- The appellant was convicted of four charges of abetment by instigation of cheating. Each of the charges stated
that the appellant had instigated four principal offenders to cheat the counter staff of the Singapore Airport
Terminal 1. These offences arose out of a fraudulent scheme to enable some Sri Lankans to get on board an
aircraft bound for Sydney even though they did not possess the requisite visas to enter Australia.
- Held:
- The Court amended the respective charges and dismissing the appeal:
- The charge for abetment by intentionally aiding the commission of the offence of cheating would have
been made out on the facts. The appellant had clearly facilitated the commission of the offence of
cheating by providing the principal offenders with air tickets.
- The amendment of the charges from one of abetment by instigation to one of abetment by
intentional aid would not prejudice the appellant’s defence. The particulars in the charges
remained unchanged and her defence would be no different from the one she had presented
before the court if she had faced the amended charges from the outset.
- The High Court in the exercise of its appellate capacity has the power to amend charges under
s 256(b)(ii) of the Criminal Procedure Code (Cap 68) (the “CPC”). The court must be certain that the
amendment would not affect the substance of the evidence given at the trial, and that no prejudice
would be caused to the appellant’s defence or the Prosecution before the power is exercised.
- The original charges of abetment by instigation were amended to that of abetment by intentional aid as,
by merely delivering the tickets to and collecting the boarding passes from the principal offenders at the
airport, Jimina had not actively stimulated or encouraged them to commit the offence. No prejudice
would be caused as the particulars relied on to establish the offences remained unchanged and her
defence would be no different as that during the trial.

• Readability and rationality

Chua Kian Kok v PP [1999] 2 SLR 542 – (offence under s109 r/w s415 held to be doubly inchoate)
- offence under Section 109 (“aiding & abetting” read with Section 511(“attempts to commit offences”) of the
Penal Code read with Section 415 of the Penal Code (“cheating”) is held to be doubly inchoate.

ALTERNATIVE CHARGES

- Alternative Charges – Section 172 & 173 & 215 CPC

Where it is doubtful what offence has been committed.


172. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts
which can be proved will constitute, the accused may be charged with having committed all or any of those
offences and any number of the charges may be tried at once or he may be charged in the alternative with
having committed some one of those offences.

When a person charged with one offence can be convicted of another.


173. If in the case mentioned in section 172 the accused is charged with one offence and it appears in evidence
that he committed a different offence for which he might have been charged under that section, he may be
convicted of the offence which he is shown to have committed although he was not charged with it.

Judgment in the alternative.


215. In all cases in which judgment is given that a person is guilty of one of several offences under any written
law, but that it is doubtful of which of those offences he is guilty, the court shall record a conviction in the
alternative, distinctly specifying those offences, and the offender shall be punished for the offence for which
the lowest punishment is provided if the same punishment is not provided for all.

• Alternative charges framed where it is doubtful what offence has been committed – commonly used for cases of
giving false evidence / statements. A conviction in the alternative may be made under Section 215.

40
FACTS DISCLOSE SEVERAL POSSIBLE OFFENCES
- s. 172 CPC envisages two possibilities:
a) single act, or
b) a series of acts, done by the accused which may constitute several offences, but is uncertain
which was committed
- in such a case, the accused may be charge:
a) with all the offences which his acts may constitute; or
b) in the alternative
- s. 174 CPC provides that when an accused is charged with an offence, he may be convicted of having
attempted to commit, or having abetted the commission of, that offence, although neither the attempt
nor the abetment is separately charged

• On framing of alternative charges:

Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 - charges disclosed two separate dates in
respect of same offence
- The appellants were police officers. They appealed to the High Court against their convictions on corruption
charges, for which the public prosecutor’s consent for prosecution had been obtained. There were two questions
were reserved for the decision of the Court of Appeal as questions of law of public interest which had arisen in
the course of appeal, the determination of which had affected the event of the appeal:
- whether the High Court, exercising its appellate criminal jurisdiction, had the power to amend a charge pursuant
to Section 256(b)(ii) of the CPC;
- whether a fresh consent of the public prosecutor was required when a charge preferred under the Prevention of
Corruption Act was amended by the appellate court.
- Held:
o In view of the High Court’s extensive express powers under the CPC, it was inconceivable that it was
the intention of the legislature that the High Court, in the exercise of its appellate jurisdiction, should
not have the power to amend the charge preferred against the appellants. Adopting a purposive
approach to construction, such power was by necessary implication implied in Section 256(b) of the
CPC Quek Ching Kim v R [1956] MLJ 54 and Wee Toon Boon v PP [1976] 2 MLJ 191 not followed.
o The power that an appellate court had in amending a charge under Section 256(b) of the CPC was not
unlimited and had to be exercised with great caution and not to the prejudice of the appellants. The
amendment must not affect the substance of the evidence for both the prosecution and the defence.
- Comments:
o Charges disclosed two separate dates in respect of same offence. Section 166 of the CPC is to be read as
such that court cannot proceed on amended charge if sanction is required.

OTHER PROVISIONS ON CHARGES:

- Charged with offence, but convicted for its abetment or attempt: s 174 CPC
- Offence proved included within offence charged: s 175 CPC

AMENDMENT OF CHARGES
Amendment by Trial Judge
- while the court has power under s. 163(1) CPC to alter a charge or frame a new charge, it is not duty bound
to “search the law for offences that the accused may have committed”
- it is for the prosecution to decide what their real complaint against he accused is, and to frame their charges
or submit amendments accordingly
- they should apply to the court for it to exercise its power under s. 163 CPC: PP v Heng You Nang [1949]
MLJ 285; PP v Mohd Ali Bin Abang [1994] 2 MLJ 12

CPC - Court may alter charge.


163. —(1) Any court may alter any charge or frame a new charge, whether in substitution for or in addition to an
existing charge at any time before judgment is given.
(2) Every such new or altered charge shall be read and explained to the accused.
Heng You Nang - Facts:

41
In this case the Public Prosecutor had appealed against the acquittal of the respondent on charges connected with
the alleged importation of certain goods by the respondent. This appeal was dismissed. Subsequently the Deputy
Public Prosecutor applied by Motion that the Court should hear further arguments and review its judgment.
Holdings:
Held, that once a judgment in a criminal matter has been pronounced and signed it cannot be altered and that the
Court had therefore no power to vary its decision in this case.
Mohd Ali Bin Abang - Facts:
The first and second respondents were charged with raping the complainant but the sessions court judge
discharged and acquitted them at the close of the prosecution case without their defence being called. The
prosecution has appealed against that decision.
Holdings:
Held , dismissing the appeal:
(1).On appeal, the burden is on the prosecution to show that the order of discharge and acquittal was wrong. It is
for the prosecution to show conclusively that the inference of guilt was irresistible and only where, on the proven
facts and circumstances of the case, the decision could not have been legally reached, that an interference in
appeal against acquittal was justified.
(2).The burden of proving the voluntariness of a cautioned statement or a confession, in the sense that its making
had not been caused by any inducement, threat or promise as stated in s 113(1)(a)(i) of the Criminal Procedure
Code (FMS Cap 6) (`the Code`) and s 24 of the Evidence Act 1950, lies on the prosecution and the standard of
proof required is that of proof beyond a reasonable doubt.
(3).The burden lies on the prosecution to establish that sexual intercourse had taken place. If the medical report
was silent as to whether any sexual intercourse had taken place within reasonable time of the charge, the report
would be of no or hardly any assistance to the prosecution.
(4).While there is a duty on a magistrate or sessions court judge to consider whether the evidence in a case shows
that an accused had committed some offence other than that with which he is charged, the main obligation is on
the prosecution to draw to the attention of the magistrate or sessions court judge the possibility of convicting on a
different offence. Here, it was argued that as regards the second respondent, the sessions court judge should have
considered the application of s 158 of the Code and amend the charge to one of attempting to commit rape or
abetment of rape. But s 158 was not relied on against the second respondent, nor did the prosecution refer to any
specific part of the evidence to indicate that the sessions court judge should have considered ss 511 or 354 of the
Penal Code (FMS Cap 45). The court was not persuaded that the sessions court judge had been wrong in not
considering the exercise of the court`s power under s 158. Nor was the court persuaded that it was justified to
alter the charge by invoking ss 511 or 354 of the Penal Code (FMS Cap 45) against the second respondent.
(5).When the credibility of a witness is impeached, it does not mean that all the evidence of the witness must be
disregarded. It is still incumbent upon the court to carefully scrutinize the whole of the evidence to determine
which parts of her evidence are the truth and which should be disregarded.

- in a clear case, however, the trial judge should still exercise his discretion, even in the absence of a
prosecution application to do so, to effect the necessary amendments to a charge so as to fit the proved facts:
PP v Tan Khee Wan Iris [1994] 3 SLR 214; PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165

Tan Khee Wan - Facts


The respondent Tan was charged with infringed a condition of a public entertainment licence of which she was
the licensee. Tan allowed a performance by one Ng Sin Chor to take place on 1 January 1994, as part of an event
called “Artists General Assembly”. At trial, it transpired that although Tan applied for a licence to cover the
period of 25 December 1993 to 1 January 1994 and although the assistant licensing officer intended to issue a
licence valid for that period, the licence that was eventually issued in fact expired on 31 December 1993. This
was due to a clerical error by the assistant licensing officer. The district judge held that there was no valid
licensing or licensing condition in existence on 1 January 1994 which Tan could have infringed. Accordingly Tan
was acquitted. On appeal, the prosecution argued that the district judge should have amended the charge against
Tan to one of providing public entertainment without a licence.
Held, allowing the appeal:
(1) Although the prosecution bore the primary duty of drawing up and amending charges against accused
persons, the trial judge possessed the discretion to effect necessary amendments to a charge should evidence of
an alternative offence come to his attention. The trial judge should exercise that discretion to alter a charge to fit
the proved facts.
(2) In this case, there was a clear prima facie case of Tan having committed the offence of providing public
entertainment without a licence. Given that the district judge herself noted this, she should have amended the

42
charge accordingly. Tan would have suffered no injustice as a result of such amendment, since the licensing
officer’s error did not detract from the facts which made up the essential ingredients for an offence of providing
public entertainment without a licence but went, more appropriately, towards the matter of mitigation.
(3) In any event the Public Entertainments Unit was not wholly to blame for the error because Tan, as licensee,
should have checked the licence. Any further possibility of prejudice following from the fact that Tan had already
prepared her defence to meet the original charge could have been obviated by granting the defence an
adjournment.
(4) Accordingly the order of acquittal was set aside and Tan’s case was remitted to the district judge for her to
call upon her defence on an amended charge of providing public entertainment without a licence.
Annamalai - Facts
The accused was charged with abetting one Janice Marissa Hogan (Janice) to employ one Santhi who allegedly
acted in contravention of s 6(1) of the Immigration Act (Cap 133). The district judge acquitted the accused at the
close of the prosecution’s case as the prosecution failed to adduce any evidence of Santhi’s contravention of
s 6(1) of the Immigration Act and that the evidence adduced of the accused’s aid to Janice to employ Santhi was
manifestly unreliable, being full of contradictions and inconsistencies. On appeal, the prosecution conceded that
there was no evidence that Santhi contravened s 6(1) of the Immigration Act but contended that the evidence of
the accused’s abetment of Janice’s employment of Santhi was not manifestly unreliable and that the charge ought
to have been amended to one of abetting by intentionally aiding Janice to employ Santhi without a valid work
permit contrary to s 5(1) of the Employment of Foreign Workers Act (EFWA).
Held, allowing the appeal:
(1) The mere presence of several discrepancies in the prosecution’s case could not, per se, render its case
manifestly unreliable. It was incumbent upon the trial judge to consider whether the inconsistencies were
sufficiently fundamental to nullify that part of the evidence which supported the charge.
(2) There was nothing to suggest that the evidence which was directly relevant to whether the accused assisted
Janice in her employment of Santhi had been totally discredited in cross-examination, nor that other evidence had
rendered this part of the evidence completely unreliable. The discrepancies were not material to the core question
of whether the accused assisted Janice in securing Santhi’s employment. They related only to the credibility of
each witness’ evidence, which was relevant only at the end of the entire case, when all the evidence was to be
assessed by the trier of fact.
(3) A charge of abetment in the commission of an offence under s 5(1) of the EFWA required evidence that
Janice employed Santhi in contravention of s 5(1) of the EFWA and that the accused intentionally assisted her in
doing so. In view of Janice’s plea of guilty to a charge under s 5(1) of the EFWA, the first aspect of the charge
was not in issue. From the notes of evidence, a case to answer had been made out in respect of the accused’s
assistance.
(4) In the circumstances, the prosecution ought to have applied for the amendment of the charge prior to the
close of its case. When they did not do so, the district judge ought to have exercised her discretion to amend the
charge. As no prejudice was suffered by the accused, the case was remitted to the district court for the defence to
be called on an amended charge of abetment in the commission of an offence under s 5(1) of the EFWA.

- when exercising its discretion under s. 163 to alter a charge or frame a new charge, the Court has to act
judiciously to ensure that the accused person is not prejudiced
- Oh Teh Hwa v PP:
 Trial judge had read and explained the drug trafficking charge that he had just amended (by the
insertion of particulars of trafficking) to the accused person (as per s. 163(2) CPC), and the
accused person had been invited to recall witnesses or to call any new witnesses
 As such, the Court of Appeal found that the accused person had suffered no prejudice
- the offence in the new/altered charge is one which requires the prior sanction of the prosecution, the case has
to be stayed until the sanction is obtained, unless sanction has been already obtained for a prosecution on the
same facts as those on which the new/altered charge is founded: s. 166 CPC

Stay of proceedings if prosecution of offence in altered charge requires previous sanction.


166. If the offence stated in the new or altered charge is one for the prosecution of which previous sanction is
necessary, the case shall not be proceeded with until the sanction is obtained, unless sanction has been already
obtained for a prosecution on the same facts as those on which the new or altered charge is founded.

- the test is whether the amendment takes the charge out of the scope of the sanction
- mere alteration of particulars such as the date or time of the alleged offence does not
- the addition of a different set of material facts, the preference of more serious charges than those explicitly
provided for by the prosecution’s sanction, or the framing of a new charge for which the public prosecutor’s

43
fresh consent/sanction under a different statute, on the other hand, would. (Garmaz s/o Packhar & Anor v PP
[1996] 1 SLR 401)

Facts
The applicants were convicted on corruption charges and appealed to the High Court which reserved the
following questions of law of public interest for the Court of Appeal’s determination: (a) whether the High Court,
exercising it appellate criminal jurisdiction, has the power to amend a charge pursuant to s 256(b)(ii) of the
Criminal Procedure Code (Cap 68) (CPC); and (b) whether a fresh consent of the public prosecutor was required
when a charge preferred under the Prevention of Corruption Act (Cap 241) was amended by the appellate court.
Held:
(1) When the High Court exercised its power under s 256(b)(ii) of the CPC to alter the finding and substitute a
conviction for the conviction under appeal, the court was not convicting the accused on a ‘substituted’ charge.
The scope of such power allowed the court in appropriate cases, where it found the accused did not commit the
offence with which he was charged but had committed an offence on which no charge had been preferred against
him to alter the finding below and in consequence to substitute a conviction of the latter offence for that under
appeal.
(2) In view of the court’s extensive express powers under the CPC, it was inconceivable that it was the
legislature’s intention that the High Court, in the exercise of its appellate jurisdiction, should not have the power
to amend the charge preferred against the accused and set the record straight. A more purposive construction
should be adopted. Such power was necessarily implied in s 256(b).
(3) In answer to the second question, the crucial question depended on the extent of the amendments proposed
to be made, and whether the amendments would take the charge outside the scope of the consent already given. If
the amendments introduced a new set of material facts or introduced a different offence, such amendments would
generally take the charge outside the scope of the consent, in which case a fresh consent was required.

- Chin Siong Kian V PP [2001] 3 SLR 72, Sharom bin Ahmad & Anor v PP [2000] 3 SLR 565
Chin Siong Kian - [Editorial Note: Appeal dismissed by the Court of Appeal on 17 January 2000]
Facts
The appellant and one Wan Yue Kong (“Wan”) were originally separately charged with trafficking in not less
than 122.9 g of diamorphine. A number of statements had been recorded from Wan as well as from the appellant
Chin. Some parts of Wan’s statements implicated Chin. Wan admitted, inter alia, that he had received a red
plastic bag from a Chinese man and that the bag contained drugs.
At a trial-within-a-trial, the judge ruled that two of Chin’s statements which contained confessions did not appear
to have been voluntarily made and refused to admit the same. The prosecution then requested at the close of its
case to amend the charges to a joint charge. That was so that the prosecution may rely on Wan’s statements as
against Chin. Under s 30 of the Evidence Act, when more persons than one was tried jointly for the same offence,
the court may take into consideration the confession made by one as against some other of such persons as well
as against the person who made the confession.
Chin objected to the request for amendment on the ground that the amendment would be very prejudicial to him.
However, the judge held that as the prosecution was relying only on the evidence adduced thus far, there was no
prejudice, and the amendment was proper. As a further safeguard, he gave liberty to Chin’s counsel to further
cross-examine any of the prosecution’s witnesses. Chin’s counsel availed himself of the opportunity, and
subsequently made a submission of no case to answer. However, the judge held that a prima facie case had been
established and called for the defence. In his defence, Chin’s stated that he did pass a red plastic bag to Wan but
claimed, inter alia, that the bag contained only clothes and not drugs. The judge rejected the appellant’s defence
and convicted the accused persons under the amended joint charge.
Chin appealed and argued that: (a) the amendment to a joint charge was highly prejudicial to him; (b) the
prosecution had not made out a prima facie case at the close of its case; and (c) the evidence given in his defence
should be believed.
Held, dismissing the appeal:
(1) The case authorities held that an amendment of a charge may be made at any stage and, in general, the
earlier the better but it was at the close of the evidence for the prosecution that the Court was in the best position
to decide exactly what was the case which the accused was required to meet. In this case, the amendment was
necessitated by the trial judge’s decision not to admit two of Chin’s statements which contained confessions. In
any case, the amendment was sought prior to the defence being called. The two accused were given fresh
opportunities to recall any prosecution witnesses whom they wished to further cross-examine. That opportunity
was, in fact, made use of by Chin’s counsel. Ample opportunity was given to Chin to rebut and meet the amended
charge. In the light of the authorities, the trial judge acted correctly when he allowed the amendment of the
charge.

44
(2) Under the amended charge, all that the prosecution needed to show to establish a prima facie case were: (a)
possession of the said quantity of diamorphine by Wan; (b) the possession was for the purpose of trafficking in
the said drugs; and (c) the act of trafficking in drugs was committed in furtherance of a common intention
between the appellant and Wan. On the evidence, the ingredient of possession was clearly established. The
presumption in s 17 of the Misuse of Drugs Act (“MDA”) then operated to establish the second ingredient. As
regards the third ingredient, such common intention would have to be gathered from the conduct of the parties
and all the surrounding circumstances.
(3) The test to be applied at the close of the prosecution’s case was laid down in Haw Tua Tau v PP. The test in
Ang Sunny v PP, where it was held that before circumstantial evidence could be used to secure an accused’s
conviction it must lead to the irresistible inference and conclusion that the accused committed the crime, was
only applicable at the close of the trial and not at the stage of the close of the case for the prosecution.
(4) By s 30 of the Evidence Act, the confessions of Wan could be used to incriminate his co-accused, chin. In
the light of Wan’s statements, as well as Chin’s statement that he did pass a red plastic bag to Wan (albeit he said
it contained clothes), the inference which could reasonably be drawn was that the plastic bag which Chin had
given to Wan had, to his knowledge, contained the drugs. Therefore, a prima facie case had been established that
there was a common intention between the appellant and Wan to put the latter in possession of the drugs. chin
was rightly called upon to enter his defence.
(5) On the evidence, the defence should be rejected. With the rejection of the defence, and in the light of the
other evidence, the conclusion had to be that Chin passed the plastic bag of drugs to Wan under a pre-arranged
plan. With Wan proved to be in possession of the drugs, he was by s 17 of the MDA deemed to be in possession
of them for the purposes of drug trafficking and by virtue of s 5(2) of the MDA, Wan had committed the offence
of trafficking in drugs. As Chin had put Wan in possession of the drugs in furtherance of a common intention,
then by virtue of s 34 of the Penal Code, both were liable for the criminal act of possession for the purposes of
trafficking. The charge against Chin was established beyond a reasonable doubt.
Sharom - [Editorial Note: Appeal dismissed by the Court of Appeal on 22 May 2000]
Facts
The first appellant (“Sharom”) and his girlfriend were observed going to and leaving from a flat. They were
arrested at the car park as they were about to leave. When questioned by the CNB officers upon his arrest,
Sharom told a series of lies about his own identity, where they had come from and where he had changed his
clothes. When a body search was conducted, drugs and keys were recovered from Sharom, who admitted the
things belonged to him. The keys were keys to the flat, which belonged to the second appellant (“Boksenang”). A
search of the flat recovered a haversack in which heroin was found. When the haversack and its contents were
shown to Sharom, he identified the drugs and admitted the haversack belonged to him. The search of the flat also
recovered various drug trafficking paraphernalia which Sharom admitted belonged to him.
Boksenang was arrested by CNB officers some time later. In one of the long statements he recorded, Boksenang
confessed that he had bought heroin from a third party and had immediately sold some to Sharom, who was also
present during the purchase of the heroin. He claimed he saw Sharom place the ten of heroin into the latter’s
haversack.
In Sharom’s defence, he denied buying any heroin from Boksenang and alleged that the drugs belonged to
Boksenang, whom he claimed had borrowed the haversack from him. Boksenang himself sought to challenge the
admissibility of the long statement containing the incriminating confession. He claimed that the statement was
made as a result of inducement, threat and promise being exercised on him.
In the proceedings below, the two appellants were originally jointly tried on a joint charge of being a party to a
criminal conspiracy to traffic drugs. At the end of the trial, the judge rejected Sharom’s defence and found that
the drugs in the haversack had been proved to be in Sharom’s possession for the purpose of trafficking. With
regard to Boksenang, the trial judge found, after a voir dire, that the long statement containing his confession was
made voluntarily and admitted it as evidence. After reviewing all the evidence before him, the trial judge found
that the evidence did not support the original joint charge of criminal conspiracy. Thus, the joint charge was
substituted with two separate charges against each of the appellants. After giving all parties the opportunity to
answer to the fresh charges, the judge found the two appellants guilty as charged and convicted them. Both
appellants appealed. Sharom raised several grounds of appeal, viz, that the trial judge erred in (a) substituting the
fresh charges against the appellants and proceeding with the substituted charges in a joint trial; (b) failing to give
sufficient weight to Sharom’s evidence; (c) using the presumptions in s 17 and 18(1)(c) of the Misuse of Drugs
Act (“MDA”) (Cap 185) together to found a case against Sharom; and (d) failing to direct himself to treat
Boksenang’s evidence with caution under s 116, illustration (b) of the Evidence Act (Cap 97). In Boksenang’s
appeal, he argued that the trial judge erred in holding that the confession was made voluntarily.
Held, dismissing the appeal:
(1) Section 163(1) of the Criminal Procedure Code (“CPC”) conferred on the court the power to frame a new
charge in substitution for an existing charge. This power existed at every stage of the trial, before judgment had

45
not been given. Consequently, the trial judge’s decision to substitute fresh charges against the two appellants was
not wrong in law.
(2) Under s 176 of the CPC, two or more accused persons might be tried jointly for charges of different
offences that were committed in the same transaction. In this case, the two separate offences were committed in
the same transaction and therefore, there was no error in the trial judge’s decision to continue with the joint trial.
In any case, the joint trial of the two substituted charges did not cause any prejudice to Sharom at all and the trial
judge had taken the necessary precautionary safeguards.
(3) To prove possession of drugs found in a flat, the Prosecution need not prove that the person in possession of
the drugs was also the owner of the flat, and conversely, proof of non-ownership of the flat in which the drugs
were found did not necessarily mean that the non-owner could not have been in possession of the drugs. The
presumption of possession in s 18(1)(c) of the MDA was raised once the accused was proved to have in his
possession, custody or control the keys of the premises in which the drug was found.
(4) The weight of the evidence showed that Sharom was in possession of the drugs found in the haversack. His
assertions were inconsistent and implausible and were not supported by the evidence. The series of lies told by
Sharom shortly after his arrest had corroborative value and indicated a consciousness of guilt on his part. Further,
the possession of drug trafficking paraphernalia by Sharom was relevant circumstantial evidence of his drug
trafficking activities.
(5) The presumption of trafficking in s 17, MDA, and the presumption of possession in s 18(1)(c), MDA, could
not be used at the same time as the presumption in s 17 applied only if the possession of the controlled drug was
proved and not merely presumed. Although the trial judge’s holding that Sharom had failed to rebut both the
presumptions in s 17 and s 18(1)(c) of the MDA was highly misleading and erroneous, this did not mean that
Sharom was wrongly convicted. The evidence proved sufficiently that the drugs were in Sharom’s possession and
as such, the Prosecution only needed to rely on the presumption of trafficking in s 17, which was not rebutted on
the facts.
(6) Section 135 of the Evidence Act (Cap 97) had abrogated the common law rule that a court must warn itself
of the danger of convicting on uncorroborated evidence of an accomplice. Reading s 135 with s 116, illustration
(b), the court might convict an accused person based on uncorroborated accomplice evidence, while bearing in
mind that the evidence should still be treated with caution as the accomplice might, and not must, be presumed to
be unworthy of credit. The above principles applied similarly to a witness who was not an accomplice but one
who had an interest to serve
(7) The test of the admissibility of a statement under s 24 of the Evidence involved two stages. First, was the
confession made as a consequence of any inducement, threat or promise; and second, whether in making that
confession, the accused did so in circumstances which would have led him to reasonably suppose that he would
gain some advantage for himself or avoid some evil of a temporal nature to himself.
(8) Boksenang’s allegations of inducement, threat and promise were self-contradictory, inherently
improbable and not otherwise supported by objective evidence. There was no reason to depart from the trial
judge’s findings that the confession was made by Boksenang voluntarily and was admissible as evidence
Amendment by High Court in its appellate or revisionary capacity
- s. 268 CPC provides that the High Court may, in an application for criminal revision, exercise, inter alia, its
powers under s. 256 CPC

- Garmaz s/o Packhar & Anor v PP:


 Was established that the High Court’s powers under s. 256(b) CPC included the power to amend a
charge on an appeal against conviction and to convict the accused person on the amended charge
 Court of Appeal there felt that a purposive, as opposed to a literal, construction of s. 256(b) should
be adopted, since it was inconceivable that it was the intention of the legislature that the High
Court, in the exercise of its appellate jurisdiction, should not have the power to amend the charge
preferred against the accused and set the record straight
 Court then went on to caution that such powers had to be exercised with great caution, and not to
the prejudice of the accused person
 Note the court’s distinction between amending a charge and substituting one conviction for another
“…it is not correct to say that when the High Court exercises its power under s. 256(b)(ii) to alter
the finding and substitute a conviction for the conviction under appeal, the court is in effect
convicting the accused on a ‘substituted’ charge
 In effecting this substitution the court is convicting the accused of an offence with which he has
not been charged
 High Court a an appellate court can only do that which the court below can do and should have
done under s. 173, 174 and 175 CPC

46
- PP v R Sekhar s/o R Van: the power of the High Court to amend a charge on appeal was extended to allow
such amendment in an appeal against an acquittal
- The High Court’s powers of amendment extended to situations where the accused pleaded guilty to non-
existent offences: PP v Henry John William & Anor
- High Court in exercise of its appellate jurisdiction also as the power under s. 256(d) CPC to amend a charge
relating to an appeal against a refusal to grant a compensation order: PP v Donohue Enilia [2005] 1 SLR 220
 (3) The High Court had power under s 256(d) of the CPC to amend a charge relating to an appeal
against a refusal to grant a compensation order. However, such an amendment should only be made
if the necessary safeguards were observed. The amendment sought amounted to a correction of the
period of employment of the maid during which she received no salary. Such an amendment did
not affect the substance of the evidence led by the Prosecution and did not prejudice the respondent
in any way: at [35]
 (4) There was no reason why the maid should not be given compensation for her services for the
period in which she had worked for the respondent under a valid work permit: at [44].
 (5) The trial judge had refused to grant a compensation order because of his suspicion that the
maid had been complicit in the illegal employment during the period when there was no longer a
valid work permit. However, there was no evidence to suggest that the maid had been aware of the
revocation of her work permit at any point in time during the employment. There was no basis not
to grant the compensation order even for the period where there was no valid work permit: at [51]
to [53].
 (6) A compensation order was not punishment for an offence, nor part of the sentence imposed
for the offence. It was not aimed at castigating an accused but at providing redress to a victim of
crime. Aggravating factors were therefore more relevant towards sentencing rather than towards
determining the grant and quantum of compensation: at [61].

- High Court in its appellate jurisdiction will only amend the charge if it is certain that the amendment would
not affect the substance of the evidence given in the proceedings below: Jimina Jacee d/o CD Athananasius
v PP
- Court would be mindful that the amendment does not cause prejudice to the accused’s defence or to the
prosecution for that matter: Daw Aye Aye Mu v PP
- Appellate court is not in a position to overturn a conviction, even if it may disagree with the exercise of
prosecutorial discretion: Govindarajulu v PP:
• Second appellant was charged with abetting the first appellant in the commission of the offence of drug
trafficking
• On appeal, the second appellant argued that he should have been charged under s. 5(b) Misuse of Drugs
Act and that the first appellant should have been charged with abetting the second appellant in the sale
of that quantity of heroin
• Rejecting this ground of appeal, Court of Appeal held:
• “a trial court must concern itself with the charge at hand and decide at the end of the day whether the
prosecution has proved beyond a reasonable doubt each and every element of the charge … in our view,
it is not for a court of law to consider the moral complicity of each accused person and question the
prosecution’s absolute discretion in deciding what charge to prefer”

- apart from the power to amend charges in its appellate capacity, the High Court also has such powers when
it is exercising its revisionary jurisdiction: PP v Koon Seng Construction Pte Ltd, PP v Than Lwin
- where the High Court decides to amend the charge, it may proceed to convict him upon that altered charge,
or it may remit the matter to the trial court for re-trial on that charge
- in some situations, for e.g. when there are insufficient facts for the appellate court to amend the charge with
certainty, it may be more prudent for the appellate court to remit the case back to the Sub Courts for a fresh
plea to be taken: PP v Sinsar Trading Pte Ltd [2004] 3 SLR 240

Facts
The National Environment Agency (“NEA”) brought a departmental summons against Sinsar Trading Pte Ltd
(“Sinsar”) for an offence under s 22(1) of the Environmental Pollution Control Act (Cap 94A, 2002 Rev Ed)
(“the Act”). Section 27 of the Act stated that a person found guilty of an offence under s 22(1) of the Act shall be
liable to a fine not exceeding $50,000 or imprisonment for a term not exceeding two years or to both.

47
The NEA first informed Sinsar that it had contravened s 22(1) of the Act by a letter dated 28 July 2003.
Subsequently, a summons was sent to Sinsar on 20 August 2003. This was accompanied by a standard form
document entitled “Plea of Guilty by Letter” for Sinsar to plead guilty if it so wished. Under s 137(2) of the
Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), a person may plead guilty by letter if the offence is
punishable by fine or by imprisonment of up to three months or by both.
Sinsar pleaded guilty by way of letter. The matter was heard before the district judge at a night court session. The
plea of guilty by letter was tendered by the prosecuting officer. Sinsar did not appear in court and was not
represented by counsel at the hearing. The district judge recorded the plea of guilty and imposed a fine of
$15,000. Subsequently, the district judge filed this criminal revision to set aside her conviction and sentence on
the ground that she had exceeded her jurisdiction under s 137(2) of the CPC.
Held, allowing the criminal revision and setting aside the conviction and sentence for a fresh plea to be taken on
an appropriately amended charge (appeal against sentence deemed withdrawn):
(1) The maximum term of imprisonment of two years under s 27 of the Act, exceeded that prescribed under
s 137(2) of the CPC, it was clear that the district judge had exceeded her jurisdiction in recording the plea of
guilty by way of letter. The procedural irregularity originated from the fact that the NEA sent the summons to
Sinsar with a standard form letter to facilitate Sinsar to plead guilty by letter if it so wished. Since Sinsar could
not have pleaded guilty by letter for the offence with which it was charged, the court found that the NEA should
not have attached the standard form letter in the first place: at [18] and [19].
(2) The charge was substantively defective in four ways: the date of the offence reflected on the charge was
erroneous, the charge did not specify the hazardous substance that Sinsar allegedly sold and the concentration of
that substance, the charge did not state the amount of acetic acid that Sinsar had re-exported and the charge was
ambiguous about the actus reus involved in the offence: at [20] to [26].
(3) The court found that three of the four defects in the charge could have been amended without causing
Sinsar much prejudice but refrained from doing so and convicted Sinsar on the amended charge. This was
because there had been no reliable evidence before the court with regard to the concentration of the substance.
Without knowing the concentration, the charge could not be amended with certainty. The unique facts of the
present case were such that it would be inappropriate for the court to amend the charge: at [28].
(4) The court agreed with the district judge that the factors to be taken into account in sentencing for an offence
under s 22(1) of the Act would include: the quantity of the hazardous substance involved, the level of cooperation
on the part of the defendant, the type of hazardous substance involved and its relative danger to the environment,
whether there was genuine oversight on the part of the defendant and whether there were previous convictions
for similar offences:
at [31].
(5) While a sentencing judge had the discretion to look to the unique facts and circumstances to determine the
appropriate sentence in each case, it was desirable to achieve some form of parity in sentencing for cases where
the facts were similar. It appeared that the district judge had inadvertently overlooked the sentence she passed in
PP v Welcome Trading Pte Ltd which was heard before her during the same night court session. In that case, the
district judge meted out a fine of $5,000. While the present case and PP v Welcome Trading Pte Ltd were not
completely identical, there were certain striking similarities. The court found that the similarities were simply too
stark to warrant a disparity of some $10,000 in the fines meted out in the two cases. The disparate sentence was
another ground for allowing the criminal revision: at [33] and [34].
(6) The court found that a discharge amounting to an acquittal would be too indulgent a course of action to
take. A more prudent course of action was to remit the case back to the Subordinate Courts and for a fresh plea to
be taken by Sinsar as and when the charge was appropriately amended by the Prosecution: at [37].
Amendment by Court of Appeal
- Court of Appeal may also amend the charge
- s. 54(1) Supreme Court of Judicature Act

Powers of Court of Appeal


54. —(1) At the hearing of an appeal, the Court of Appeal shall hear the appellant or his advocate and solicitor, if
he appears, and, if it thinks fit, the respondent or his advocate and solicitor, if he appears, and may hear the
appellant or his advocate and solicitor in reply.

- Court of Appeal may by such order exercise such power which the trial court might have exercised
- possibility of prejudice to the accused person is of utmost concern to the Court of Appeal: Lee Ngin Kiat v
PP
- note that the Court of Appeal is not bound by the procedure set out in s. 163 to 166 CPC: Lee Ngin Kiat v
PP [1993] 2 SLR 511
Lee - Facts

48
The appellant Ng was charged with trafficking 147.68g of diamorphine. At the close of the prosecution case,
Ng’s counsel submitted that no prima facie case had been made out against him, as the presumption of trafficking
in s 17 of the Act could not be invoked in a case where the accused, at the time the drugs were proved to be in his
possession, was not in a position to traffic in the drugs in any of the ways mentioned in s 2 of the Act. It was
argued that Ng could not have trafficked in the drugs found in his possession at the time and place alleged in the
charge as he was then in police custody. The trial judge rejected the argument and held that s 17 obviated the
necessity for the prosecution to overtly prove the act or the state of affairs denoting the activity referred to in s 2
of the Act (see [1993] 2 SLR 181) and held that the presumption in s 17 could be invoked and called on the
defence. Ng elected to remain silent and did not call any witnesses in his defence. The trial judge reviewed the
evidence and held that Ng failed to rebut the presumption of trafficking, and then convicted and sentenced him to
death. On appeal, Ng’s counsel put forward essentially the same argument advanced in the court below.
Held, dismissing the appeal:
(1) The amended s 17 presumed from the fact of possession that the offence of trafficking had been
constituted. It presumed both actus reus and mens rea to be present once possession was proved. As such, once
s 17 was properly triggered, the accused bore the burden of proving on a balance of probabilities that either the
presumed actus reus or mens rea was not present. The presumption of mens rea under s 17 could be rebutted, as
was the case under the old s 17, if the accused showed on a balance of probabilities that he possessed the drugs
for his own consumption, or for purposes other than trafficking. Here, the presumption of mens rea was not
rebutted.
(2) In respect of the presumption of actus reus, the interpretation that accorded with both the wording and the
intention of s 17 was that s 17 presumed the act of possession to be an act of possession in the course of selling,
giving, transporting and so on, or offering to do so, and thus the act of possession was presumed to be the act of
trafficking. The accused could rebut this presumption by showing on a balance of probabilities that the drugs
were not in his possession in the course of an overt act of trafficking. Relevant evidence would include the
presence of paraphernalia associated with drug trafficking, the amount of drugs proved to be in the possession of
the accused, whether the accused was a drug abuser himself, explanations of how the drugs came to be in his
possession and corroboration of this, if any, and so on.
(3) This interpretation was potentially unfair to an accused, as an act of possession could be presumed to be
any, or an offer to do any, of the seven overt acts of trafficking as defined in s 2 of the Act. It was unduly
burdensome for the accused to show that he was not in possession of the drugs in the course of performing any of
these acts. As such, the particulars in the charge should be more specifically stated and the charge should state
which of the overt acts of trafficking in s 2 the accused was charged with. In this case, the words ‘by offering to
sell or distribute’ should appear in the charge immediately after the words ‘did traffic in’.
(4) The Court of Criminal Appeal had the power to alter the charge: s 163(1) of the Criminal Procedure Code
(Cap 68) read with s 54(1) of the Supreme Court of Judicature Act (Cap 322). This power must be exercised
judiciously and the possibility of prejudice to the accused (or the prosecution) must be of utmost concern when
the court decided on whether to alter a charge. In the present case, the amendment would not cause any injustice
as Ng did not actively try to adduce evidence that he was not in possession of the drugs in the course of
trafficking. He chose to remain silent and it could not be said that the fact that the charge was widely framed
deprived him of a chance to establish a defence. The charge could thus be amended and Ng convicted
accordingly.

During Trial
- The charge may be amended by the Public Prosecutor at anytime before or at the close of the prosecution’s case
at trial but the court may frame a new charge in substitution of the existing one(s) at any stage of the trial
before judgment is given.
- Amendment during trial
 with the leave of the Court under s 163 CPC – at any time before judgment is given.
 Generally, amendment of the charge is more likely to prejudice the accused the later it is done
- before close of prosecution case
 “it is at the close of the evidence for the prosecution that the Court is in the best position to decide
exactly what is the case which the accused is required to meet”
 (cited with approval by CA in Chin Siong Kian v PP [2001] 3 SLR 72)
 reqts in 163.2 must be met – amended charge msut be read to accusd and explained to him
- At the end of the trial :
 Sharom bin Ahmad & Anor v PP CA 2/2000 –

49
- a conspiracy to traffic charge was amended such that each of the two accused faced a different
charge. One of the issues was whether in view of there being 2 charges, the accused persons
were prejudiced by the joint trial. CA considered that a joint trial for the amended charges
would have been proper under section 176.
- Facts: In the court below, the two appellants were originally jointly charged with being a
party to a criminal conspiracy to traffic diamorphine. The trial judge noted the numerous
shortcomings and inconsistencies in one of the appellant’s claims. After reviewing all the
evidence before him, the trial judge was of the view that the evidence did not support the
original joint charge of criminal conspiracy that the two appellants were facing. He therefore
substituted the joint charge with two separate charges against each of the appellants. After
giving all parties the opportunity to answer to the new separate charges, he found both the
appellants guilty on the fresh charges. He therefore convicted and sentenced them to suffer
death. Both appellants appealed. In Sharom’s appeal, several grounds of appeal were raised,
namely, that the trial judge erred in substituting fresh charges against both appellant and in
proceeding with the substituted charges in a joint trial, which should have been severed.
- Held: The court was empowered by s 163(1) of the Criminal Procedure Code to frame a new
charge in substitution for an existing charge and this power existed at every stage of the trial
before judgment was given. The trial judge’s decision to substitute fresh charges against the
two appellants were therefore not wrong in law

Procedure when charge amended


- Procedural safeguards in 163.2, 164-167 are to be observed
- whenever a charge is amended, a fresh plea must be taken by the accused and the accused must be given an
opportunity to recall any of the witnesses who have given evidence. S 163(1).
- s 163(2) CPC – new or altered charge shall be read and explained to the accused
- s 164 CPC – when trial may proceed immediately after alteration.
 Call upon the accused to take the plea and to state whether he is ready to be tried on such new or
altered charge
 If accused not ready, court considers the reasons and, if no prejudice the accused in his defence or
the prosecutor in the conduct of the case, the court may proceed with the trial as if the new or altered
charge had been the original charge.
- When new trial may be directed or trial suspended: s165. If the new or altered charge is such that
proceeding immediately with the trial is likely in the opinion of the court to prejudice the accused or the
prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as is
necessary.

- s 166 CPC – court cannot proceed on amended charge if sanction is required.


 Garmaz s/o Pakhar v PP [1995] 3 SLR 701
 Garmaz s/o Pakhar v PP [1996] 1 SLR 401
 PP v Koon Seng Construction Pte Ltd [1996] 1 Slr 573
- Held: “The High Court thus had the power in its revisionary capacity to ‘alter the finding’
and correspondingly the implied power to correct errors in the charge pursuant to s 256(b)(ii)
of the CPC, including the power to amend the charge to introduce the appropriate offence
section such as s 25(1) of the Act. “
- s 167 – prosecutor and the accused shall be allowed to recall or resummon witness
- Duty of court to amend charge
 PP v Tan Khee Wan, Iris [1994] 3 SLR 214
- Accused charged for entertaining without licence
- Def’s evidence not called because PP did not make the prima facie case
- On appeal, the court should have called evidence on another charge which was disclosed by
the evidence of the Prosecution… the trial judge should have amended the charge and called
witnesses for that charge

50
- Where the offence has not been made out on a charge coz Prosecution’s evidence disclosed
another offence which A was not charged for => lower ct should amend the charge and call
a defence on that charge

On Appeal
- Amendment during Appeal
o High Court exercising Appellate jurisdiction

o Powers given to HC in exercise of its appellate jurisdiction for criminal proceedings – s 19, 23 and 27 of
SCJA.
o CA held in Garmaz v PP [1996] 1 SLR 401 that s 256(b)(ii) of CPC gives HC acting in its
appellate capacity, the power to amend a charge. Such power was by necessary implication
implied in s 256(b) of CPC. But power in amending charge under s 256(b) was not unlimited and
had to be exercised with great caution and not to the prejudice of the accused.
o Where charge is amended by HC and accused would be prejudiced by the new charge in that he was not
aware of ingredients of new charge, case would be remitted to trial ct for a re-hearing.
o But where the new charge is substantially the same as the old charge with the same ingredients/accused not
misled by defence of charge/accused knew what the ingredients of new charge were at trial, and the defect
is immaterial, the case need not be remitted to trial ct for re-hearing.
o Ong Tiong Poh v PP [1998] 2 SLR 853 – demonstrates power of HC to amend defective charge.
Held that while the charges had been defective as submitted, the defects were immaterial and it
was obvious that the PP was proceeding under s 420 of Penal Code and the higher sentence it
entailed. Charges amended and accused convicted under amended charges.
o Charge must be precise. Eg. If PP wants to charge under s 304A Penal Code, causing death by a rash or
negligent act, he must allege in the charge whether it was ‘rash’ or ‘negligent’ because to include both in
the alternative makes the charge ambiguous.
o Must ensure that charge contains every ingredient of the offence.

SCJA:
Appellate criminal jurisdiction
19. The appellate criminal jurisdiction of the High Court shall consist of —
(a) the hearing of appeals from District Courts or Magistrates’ Courts before one or more Judges according to the
provisions of the law for the time being in force relating to criminal procedure; and
(b) the hearing of points of law reserved by special cases submitted by a District Court or Magistrate’s Court before
one or more Judges according to the provisions of the law for the time being in force relating to criminal procedure.
Revision of criminal proceedings of subordinate courts
23. The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate
courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure.
General supervisory and revisionary jurisdiction of High Court
27. —(1) In addition to the powers conferred on the High Court by this Act or any other written law, the High Court
shall have general supervisory and revisionary jurisdiction over all subordinate courts.
(2) The High Court may in particular, but without prejudice to the generality of subsection (1), if it appears desirable
in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in
any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may
remove the matter or proceeding into the High Court or may give to the subordinate court such directions as to the
further conduct of the matter or proceeding as justice may require.
(3) Upon the High Court calling for any record under subsection (2), all proceedings in the subordinate court in the
matter or proceeding in question shall be stayed pending further order of the High Court.

o High Court had the power to amend charges while in its appellate jurisdiction and the power to
convict

- on the amended charge (s 256 CPC)

51
o Garmaz s/o Pakhar v PP [1995] 3 SLR 701
o Garmaz s/o Pakhar v PP [1996] 1 SLR 401
 Held: “When the High Court exercised its power … to alter the finding and substitute a
conviction for the conviction under appeal, the court was not convicting the accused on a
‘substituted’ charge.”
 “…If the amendments introduced a new set of material facts or introduced a different offence,
such amendments would generally take the charge outside the scope of the consent, in which
case a fresh consent was required.”
- where did the court draw the power and what are the relevant considerations in exercising this power: implied in
Section 256(b) of the CPC
• the power to amend can be exercised if it would make no impact on how the trial would have went
in the lower court; OR
• if it can be shown no different course or defence would have been advanced (because no fresh
witness would have been called), then amendment should be allowed
==> If would have had an impact, then amendment improper, not allowed.

S256. At the hearing of the appeal the court may, if it considers there is no sufficient ground for interfering,
dismiss the appeal or may —
(b) in an appeal from a conviction —
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of
competent jurisdiction or committed for trial;
(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the
sentence; or
(iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the
sentence

Viswanathan Ramachandran v PP [2003] SGHC 183


- The appellant had been charged and convicted in the district court on one count of criminal breach of trust as
an agent in respect of some Indium metal and one count of simple criminal breach of trust in respect of a
sputtering machine, for which he was sentenced to imprisonment for nine months and 18 months
respectively. He appealed, contending that the second charge was fundamentally flawed as he was not
entrusted with the sputtering machine, and that the
trial judge had erred in her finding of facts on both charges. The Prosecution cross-appealed against the
sentence imposed on the first charge.
- Held, dismissing the appellant’s appeal and allowing the Public Prosecutor’s appeal
o (1) Under s 405 of the Penal Code, property and the proceeds of the sale of that property were
not regarded as the same. Since the second charge envisioned that the sputtering machine was
entrusted but its proceeds misappropriated, the charge was fundamentally flawed: at [21].
o 2) The High Court in its appellate jurisdiction had the power to amend the charge. However, the
court should only exercise its discretion if the proceedings at the trial would have taken the same
course or the evidence recorded would have been substantially unchanged; the amendment should
not affect the accused’s defence; and it should not prejudice the accused in terms of his sentence: at
[23].
o 3) There would be no prejudice to the accused in amending the charge in this appeal to allege
entrustment of the proceeds of sale of the sputtering machine as the fact that the proceeds were
entrusted to him was clear from all the evidence and it was never in dispute: at [27] to [28]
o [Observation: There should be greater care in the framing of a charge as it could affect the
substance of the evidence given at the trial. It would be undesirable for an otherwise guilty party to
go free because of an avoidable failure to draft the charge correctly.]

- when court will refuse to amend charge


o Cheam Tat Pang v PP [1996] 1 SLR 541:
 case where the prosecution made boo boo.. Amendment not allowed coz P made a mess and
amended the charge 2 times at the lower court level

52
 On appeal, the prosecution argued that a new charge should be tendered… and that the case to
be remitted to the lower court and retried and witnesses be called
 Court held that should not do so, because prejudice to the accused (i.e. not fair to the accused
that defence would have to answer another charge and have a retrial )

- Safeguards

Daw Aye Aye Mu v PP [1998] 2 SLR 64


- Held: The High Court acting in its appellate capacity had the power to amend charges under Section 256(b)(ii) of
the CPC. It was important however that, before a charge was amended, certain safeguards were required to
prevent prejudice to the appellant and/or the prosecution.
- Facts
- The appellant Daw was charged in the court below for abetting one Ng in the employment of San Lwin, a
Myanmese national, while he overstayed in Singapore. San Lwin was on a social visit pass when he met Daw
and subsequently asked her about job opportunities. He later showed Daw his passport and other papers and gave
her $200 to apply for an employment pass for him. Daw brought San Lwin to see a prospective employer but he
was not in. She then brought him to Budget Lodge. San Lwin found employment at Budget Lodge and worked
there till he was arrested for overstaying.
- Daw’s defence was that she had brought San Lwin to Budget Lodge to look for cheap accommodation and
everything that happened after that was independent of any participation on her part. The district judge convicted
her and she appealed.
- At the appeal, counsel for Daw also submitted that the charge should be amended from one of abetting Ng in
employing San Lwin while he was an overstayer to one of abetting San Lwin to be employed while he was an
overstayer as Daw had no previous connection with Budget Lodge and was therefore not exactly aiding Ng, the
employer of Budget Lodge, in employing San Lwin. She had been acting as an ‘employment agent’ for San Lwin
and therefore, if she was intentionally aiding any person, it would be San Lwin and not Ng.
- Held, amending the charge and reducing the sentence:
o (1) The High Court acting in its appellate capacity had the power to amend charges under s 256(b)(ii)
of the Criminal Procedure Code (Cap 68). However, the court must ascertain that the amendment
should not affect the substance of the evidence that was given in the court below and that the
amendment would in no way prejudice the defence or the prosecution.
o (2) Whom Daw actually aided would depend on Daw’s ‘dominant intention’ at the time she did the
act which led to San Lwin’s employment by Ng. She must have had the necessary intention to aid the
commission of an offence. If a person only knew or had only the reason to believe that his act would
facilitate the commission of an offence, it could not be said that his dominant intention was that.
o (3) In many cases of abetment, where the abettor was the middle person, the introducer of one to the
other, it was important to determine whether the abettor had the dominant intention to aid the person
being introduced or the person receiving the introduction as in most of these cases, the punishments
imposed were very different.
o (4) Based on the evidence, daw was assisting San Lwin to be employed rather than assisting Ng to
employ San Lwin. The appropriate charge was one of abetting San Lwin to be engaged in paid
employment while on a social visit pass.
o (5) The principal did not even have to be convicted of the offence before the abettor could be
convicted of abetting the offence, as long as the actus reus of the offence he was alleged to have aided
was in fact committed.
o The amended charge was made out against Daw on the facts. The sentence was reduced from six
months’ imprisonment to a fine of $1000.
- Comments: It was clear that the principal did not even have to be convicted of the offence before the abettor
could be convicted of abetting the offence, as long as the actus reus of the offence he was alleged to have aided
was committed.

Appeals on conviction vs Appeals on acquittal

• PP v Annamalai Pillai Jayanthi [1998] 2 SLR 165


o Case remitted to lower court to rehear
• Convicting on amended charge where accused pleads guilty

53
 Assathamby s/o Karupiah v PP [1998] 2 SLR 744: convicting on amended charge when accused pleads
guilty … can still convict when the accused PGs on not properly drafted charge so long as no prejudice
 Facts: The accused pleaded guilty to a charge under s 57(1)(e) of the Immigration Act (Cap 133) for
employing Peramaiyan, a foreign national without a visit pass, and was convicted to seven months’
imprisonment. The accused appealed against the sentence. The accused also petitioned for criminal revision
and contended that the proceedings below were flawed because he had pleaded guilty while under the
mistaken notion that the charge and statement of facts revealed an offence under s 57(1)(e). The charge had
failed to state that the accused knew that Peramaiyan was an illegal immigrant.
 Held, dismissing the petition and appeal:
 (1) A charge should state all essential ingredients of an offence to give an accused notice of the
offence and a chance to defend himself. The mens rea requirement for the s 57(1)(e) offence was
expressly stated only in case law, but it was an important element in the offence and should not be
omitted from the charge. Accordingly the charge was defective.
 (2) However, s 162 of the Criminal Procedure Code (Cap 68) stated that no error or omission was
regarded as material unless the accused was in fact misled. In addition, s 396 provided that an
irregularity in the proceedings was immaterial unless it occasioned a failure of justice. The High Court
might, in the exercise of its revisionary jurisdiction, amend a charge and convict upon it. In this case,
whether the defect in the charge was material depended on the circumstances in which the accused
pleaded guilty.
 (3) The accused’s former counsel had in fact considered the alleged mistake as to Peramaiyan’s
citizenship before the accused pleaded guilty. In addition, it emerged from the mitigation plea that the
accused knew he was hiring foreign workers. The accused was not misled by the defect in the charge
and the defect was immaterial by virtue of s 162. The charge was amended to include the accused’s
knowledge of Peramaiyan’s status as an immigration offender and the accused was convicted on the
amended charge. The petition for criminal revision was accordingly dismissed.
 (4) The sentence was not manifestly excessive. The appeal was accordingly dismissed.
 Annis bin Abdullah v Public Prosecutor [2004] 2 SLR 93
 Facts: The appellant pleaded guilty in the district court to one charge of having carnal intercourse
against the order of nature under s 377 of the Penal Code (Cap 224). The appellant met the victim in an
Internet chatroom. They subsequently met at a barbecue and the victim initiated a date with the
appellant. During the date the appellant asked the victim to have sexual intercourse with him. The
victim refused. The appellant then asked the victim to fellate him and she agreed. The victim
subsequently lodged a police report against the appellant, whereupon he was charged.
 The appellant was 25 years old at the time of the offence. He was a police sergeant attached to the
Police Coast Guard. Both the charge and the statement of facts stated that the victim was 16 years old at
the time of the offence.
 The district judge sentenced the appellant to 24 months’ imprisonment. After sentencing, it was
discovered that the victim was only 15 years old at the time of the offence and that the Prosecution had
erred when preparing the charge and the statement of facts. The Public Prosecutor brought an
application for criminal revision pursuant to s 268 of the Criminal Procedure Code (Cap 68) (“CPC”),
seeking an amendment of the charge and the statement of facts to reflect the victim’s correct age.
 The appellant appealed against his sentence and also filed a motion for leave to adduce fresh evidence
at the hearing of his appeal. The appellant asserted that the fresh evidence – in the form of an affidavit
filed by him – would show that the district judge had erred in imposing a deterrent sentence on the
appellant.
 Held, allowing the appeal against sentence, dismissing the motion and allowing the petition for
criminal revision:
 (1) The High Court’s powers under s 256(b) of the CPC included the power to amend a charge and
consequently convict an accused person on the amended charge. The High Court’s powers under
s 256(b) of the CPC were sufficiently broad to encompass the power to amend the statement of facts.
The drafters of the CPC could not have intended that the court should not have the power to amend the
statement of facts: at [18], [21] to [22].
 (2) The High Court’s revisionary jurisdiction was only exercised where there was some “serious
injustice” or something “palpably wrong” in the decision that struck at its basis as an exercise of
judicial power by the court below. The age of the victim was a significant factor in sentencing in respect
of offences under s 377 of the Penal Code (Cap 224), particularly in cases where the victim’s consent

54
was presented to the court as a mitigating factor. Thus, the misunderstanding as to the victim’s true age
would suggest that there was something palpably wrong in the district judge’s assessment of sentence:
at [24] to [27].
 Whether the High Court’s revisionary powers include the power to amend the charge and the
statement of facts - 18 It is established law that the High Court’s powers under s 256(b) of the CPC
include the power to amend a charge and consequently convict an accused person on the amended
charge: Garmaz s/o Pakhar v PP [1996] 1 SLR 401. The Court of Appeal noted in Garmaz, however,
that such power is not unlimited and has to be exercised with great caution and not to the prejudice of
the accused. The Court of Appeal further held that the test laid down by Cussen J in Ng Ee v PP [1941]
1 MLJ 180 was applicable in this regard. In Ng Ee v PP, Cussen J stated at 181 that the power to amend
a charge on appeal was: … a power to be exercised with great caution, and only where it is clear
beyond all doubt, from the nature of the offence and the record of evidence in the case, that to do so can
in no way prejudice the case of the accused; it must be clear that … the proceedings at the trial would
have taken the same course, and the evidence recorded been the same – that the [Prosecution’s]
evidence would have been unchanged (substantially) and the accused’s defence the same.
 19 In PP v Koon Seng Construction Pte Ltd [1996] 1 SLR 573 at 579, [21], I stated, in the context of
the court’s revisionary powers to amend a charge to which the accused person had pleaded guilty, that:
The power of amendment is clearly not unfettered. It should be exercised sparingly, subject to careful
observance of the safeguards against prejudice to the defence … The court must be satisfied that the
proceedings below would have taken the same course, and the evidence recorded would have been the
same. The primary consideration is that the amendment will not cause any injustice, or affect the
presentation of the evidence, in particular, the accused’s defence. These safeguards must be rigorously
observed.
 20 I should highlight here that the Public Prosecutor was applying to amend not only the charge, but
also the statement of facts. Thus, the issue before me was whether the High Court’s powers under
s 256(b) of the CPC include the power to amend the statement of facts.
 21 I was of the view that the High Court’s powers under s 256(b) of the CPC were sufficiently broad
to encompass the power to amend the statement of facts. In Garmaz, the Court of Appeal took pains to
reject a strict and literal construction of s 256(b) of the CPC, holding at [28] that: [S]uch a construction
would lead to incongruous results: on the one hand the court by that section is given extensive powers
in respect of conviction, sentence and findings, and yet on the other it has no power to amend the
charge, and the consequence of this is that it has no power even to correct any errors appearing in the
charge. Such a position is untenable. Further, the High Court has the revisionary powers under ss 266–
268 of the CPC. In view of these extensive express powers, it is inconceivable that it was the intention
of the legislature that the High Court, in the exercise of its appellate jurisdiction, should not have the
power to amend the charge preferred against the accused and set the record straight. A more purposive
construction should in our view be adopted.
 22 While I noted that the question that was before the Court of Appeal in Garmaz related to the
charge preferred against the accused, and not the statement of facts, I was of the view that a purposive
construction of s 256(b) of the CPC should be adopted. This is because, following the Court of Appeal’s
decision in Mok Swee Kok v PP [1994] 3 SLR 140, it is clear that the court has a legal duty to record a
statement of facts and to scrutinise it to ensure that all the elements of the charge are made out therein.
In light of this, I did not feel that the drafters of the CPC could have intended that the court should not
have the power to amend the statement of facts. I was of the view that it must have been the
legislature’s intention that the court should have such a power so that it is able to accurately record the
relevant facts which must be taken into account when determining sentence.
 23 For the avoidance of doubt, I should state that an amendment to the statement of facts should only
be made where the safeguards set out in Koon Seng Construction and Ng Ee are observed.
 Whether the High Court’s revisionary powers should be exercised in the present criminal revision
 24 It is established law that the High Court’s powers of revision must be exercised sparingly. The
principles governing revision were laid down in Ang Poh Chuan v PP [1996] 1 SLR 326, where it was
held at 330, [17] that:
 [V]arious phrases may be used to identify the circumstances which would attract the exercise of the
revisionary jurisdiction, but they all share the common denominator that there must be some serious
injustice. Of course there cannot be a precise definition of what would constitute such serious injustice
for that would in any event unduly circumscribe what must be a wide discretion vested in the court, the

55
exercise of which would depend largely on the particular facts. But generally it must be shown that
there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial
power by the court below.
 25 In respect of a conviction under s 377 of the Penal Code, the age of the victim is irrelevant as an
offence is made out regardless of the victim’s age. The victim’s age is, however, a critical factor which
the court must take into account for the purposes of sentencing. In this regard, the Public Prosecutor
submitted that public policy necessitated that underage victims, ie those below the age of 16 years, must
be protected from sexual predators. I was of the view that the relative difference in age between the
victim and the accused, as well as the victim’s actual age, were both critical and relevant to the court’s
assessment of sentence.
 26 I have stated on many occasions that there is no clear-cut test of what constitutes “serious
injustice”: see, for example, Ng Kim Han v PP [2001] 2 SLR 293 at [10]. However, on the present facts,
there was little doubt that serious injustice would be caused if the appellant were to be sentenced on the
basis that the victim was 16 years old, as stated in the charge and the statement of facts as initially
drafted. This is because the age of the victim is a significant factor in sentencing under s 377 of the
Penal Code, particularly where the victim’s consent is presented to the court as a mitigating factor, as
was the case here. I was of the view that the fact that the victim in the present case was below the age of
16 years was highly significant as the clear policy of Parliament has been to criminalise sexual activity
involving girls below the age of 16 years. Section 140(1)(i) of the Women’s Charter (Cap 353,
1997 Rev Ed), for example, makes it an offence to have carnal connection with any girl below the age
of 16 years except by way of marriage. An offence is made out under s 140(1)(i) of the Women’s
Charter regardless of whether the victim consented to the act of carnal connection, on the basis that
girls below the age of 16 years are incapable of legally consenting to sexual activity: Tay Kim Kuan v
PP [2001] 3 SLR 567 at [13].
 27 I was of the view that the misunderstanding as to the victim’s true age would indeed suggest that
there was something “palpably wrong” in the district judge’s assessment of sentence. I have previously
held that the High Court’s revisionary powers exist to facilitate its supervisory and superintending
jurisdiction over criminal proceedings before a subordinate court so as to correct a miscarriage of
justice arising from the correctness, legality or propriety of any finding, sentence or order recorded or
passed: Koh Thian Huat v PP [2002] 3 SLR 28 at [16].
 28 I was therefore of the view that the present circumstances clearly justified the exercise of the High
Court’s revisionary powers and I ordered that the charge and the statement of facts be amended to
reflect that the victim was 15 years old at the time of the offence.

- power of High Court to amend defective charge:

Ong Tiong Poh v Public Prosecutor [1998] 2 SLR 853


- Facts: appellant was convicted on two cheating charges under s 420 of the Penal Code (224) and eight abetment
by conspiracy of cheating charges under s 420 read with s 109, for using counterfeit credit cards. The appellant
handed counterfeit credit cards to accomplices, gave instructions to purchase goods at various shops, received the
purchased goods and paid commissions to the accomplices based on the selling price of the goods. The appellant
was sentenced to eight months’ imprisonment for each cheating charge and 14 months for each of the abetment
charges – three of the latter sentences were ordered to run consecutively (total of 42 months’ imprisonment).
- On appeal, the appellant contended that nine of the ten charges were defective because they omitted to state that
the person deceived had been induced by the deception to deliver property. Instead, each charge alleged that the
person deceived had been induced to do something which he would not have done had he not been deceived, viz
to accept the counterfeit card for payment. The appellant further contended that the charges should not be
amended to correctly reflect the requirements of s 420 because they suggested that the prosecution never
intended to proceed under s 420; instead, the offence disclosed by the charges was merely simple cheating as
defined in s 415 and punishable under s 417.
- Held, dismissing the appeal and enhancing the sentences:
o (1) The charges were defective in that they failed to state that the person deceived was induced to
deliver property, an important requirement of s 420.
o (2) However, the defects were immaterial. The prosecution was obviously proceeding under s 420 and
the higher maximum sentence it entailed. It was unrealistic to suggest that the prosecution actually had
ss 415 and 417 in mind. The appellant was involved in the transactions in the charges and the various

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persons deceived were induced to deliver the goods successfully purchased. The particular way the
charges were framed could not have affected the substance of the evidence or how the appellant’s
defence was conducted. Accordingly, the charges were amended to reflect the requirements of s 420.
o (3) The sentences imposed were manifestly inadequate. The appellant was part of a sophisticated
syndicate, capable of committing credit card fraud on a large scale and skilled at avoiding detection.
The sentences were enhanced to 12 months’ and 20 months’ imprisonment for each of the cheating and
abetment charges respectively. Three of the latter sentences would run consecutively (total of 60
months’ imprisonment). If not for the appellant’s young age of 21, the sentences would be more severe.

- Power of HC exercised in -

Public Prosecutor v Donohue Enilia [2005] 1 SLR 220


- Facts
- The respondent was the employer of a foreign maid. The maid’s work permit was revoked when the respondent
defaulted on the payment of the maid levy, but the respondent continued to engage the services of the maid.
Throughout the period of employment, the respondent did not pay the maid any salary. The maid eventually
reported the respondent to the police.
- The respondent pleaded guilty in the magistrate’s court to a charge under s 5(1) of the Employment of Foreign
Workers Act (Cap 91A, 1997 Rev Ed) (“the EFWA”) for employing a foreign worker without a valid work
permit and to a charge under s 22(1)(a) of the EFWA for failing to comply with the conditions of the work permit
to pay the foreign worker a salary.
- The trial judge convicted the respondent on both charges and sentenced her to pay 35 months of levy at the rate
of $345 per month for the first charge, and a fine of $3,000 for the second charge. The trial judge, however,
refused the Prosecution’s application for a compensation order to be made pursuant to s 401(1)(b) of the Criminal
Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) for the unpaid salaries owed by the respondent.
- The Prosecution appealed against the refusal to grant a compensation order and raised two preliminary issues: (a)
whether the High Court had jurisdiction to hear an appeal against the refusal by the trial judge to grant a
compensation order; and (b) whether the High Court could exercise its powers under s 256 of the CPC to amend
the charge so that the applicable period of employment during which the maid did not receive any salary would
include the period in which the maid was working under a valid work permit.
- Held, allowing the appeal:
o (1) The High Court could hear an appeal against the trial judge’s refusal to grant a compensation
order under s 256(d) of the CPC even though it was technically not “an appeal from any other order”.
The opposite conclusion would be absurd, for it would mean that an appeal would be possible if the
court awarded a manifestly inadequate amount of compensation, but no appeal would be possible if the
court refused to grant any compensation: at [15].
o (2) The requisite nexus between the offence and the loss suffered had been made out as the maid’s
financial loss was occasioned by the failure of the respondent to pay all salaries due to her. This was
also a case where the quantum of compensation could be readily computed. Further, judging by the fact
that the respondent was able to make full payment of her fines, the grant of a compensation order would
not be oppressive as she was likely to be a person with the means to pay the compensation sought: at
[22], [25] and [26].
o (3) The High Court had power under s 256(d) of the CPC to amend a charge relating to an
appeal against a refusal to grant a compensation order. However, such an amendment should only
be made if the necessary safeguards were observed. The amendment sought amounted to a
correction of the period of employment of the maid during which she received no salary. Such an
amendment did not affect the substance of the evidence led by the Prosecution and did not
prejudice the respondent in any way: at [35].
o (4) There was no reason why the maid should not be given compensation for her services for the
period in which she had worked for the respondent under a valid work permit: at [44].
o (5) The trial judge had refused to grant a compensation order because of his suspicion that the maid
had been complicit in the illegal employment during the period when there was no longer a valid work
permit. However, there was no evidence to suggest that the maid had been aware of the revocation of
her work permit at any point in time during the employment. There was no basis not to grant the
compensation order even for the period where there was no valid work permit: at [51] to [53].
o (6) A compensation order was not punishment for an offence, nor part of the sentence imposed for the
offence. It was not aimed at castigating an accused but at providing redress to a victim of crime.

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Aggravating factors were therefore more relevant towards sentencing rather than towards determining
the grant and quantum of compensation: at [61].

- Power of Court of Appeal to amend charge (appeal from High Court): s 54(1) SCJA

• Lee Ngin Kiat [1993] 2 SLR 511


o The Court of Criminal Appeal has the power to alter the charge: Section 163(1) of the CPC read with
Section 54(1) of the Supreme Court of Judicature Act. This power must be exercised judiciously and the
possibility of prejudice to the accused (or the prosecution) must be of utmost concern when the court
decides on whether to alter a charge.
o s. 54 (1) SCJA states that CA has implied power to amend charges and employ power in s. 163(1) CPC
o CA has the power to alter charges, and by virtue of this provision, can also apply powers pursuant to
s163(1)

Court may alter charge.


163. —(1) Any court may alter any charge or frame a new charge, whether in substitution for or in addition to an
existing charge at any time before judgment is given.

• PP v Goh Hock Huat [1995] 1 SLR 274


o Although the CA can exercise powers under the CPC, it is not bound by the provisions in the CPC

• Where there is a change of the offence and the prescribed punishment


o e.g. Er Joo Nguang [2000] 2 SLR 645 (change from conspiracy to commit CBT to cheating)
Criminal Revision
- Under Chapter XXIX, CPC, the High Court may call for a revision on Subordinate Court cases. By virtue of
s 268(1) during a criminal revision the High Court has the power to amend the charge.
- PP v Koon Seng Construction Pte Ltd [1996] 1SLR 573
 Facts: The A was actually charged under Section 6 of the DDBIA. Clerk typed wrongly and put the
charge under Section 25 of the DDBIA. Pleaded guilty to that one instead. Fine $2000 when max fine
under Section 6 was $1000. Public Prosecutor thus applied for an order reversing the conviction and
sentence, and directing a retrial in the subordinate courts on the intended charge of Section 25(1)
DDBIA. Counsel had no objections, and he informed the court that the respondent would still plead
guilty to the Section 25(1) charge once the existing conviction and sentence were quashed.
 Held: The reversionary jurisdiction of the High Court existed to set right serious injustice. A wide
discretion was vested in the High Court, the exercise of which depended largely on the particular facts

- There is no need for criminal revision where the error in the charge is immaterial (refer to Section 162, 396
CPC)
 PP v Mohamed Noor bin Abdul Majeed [2000] 3 SLR 17 (amendment from “made use of an identity
card” to “possession of an identity card” held unnecessary)

IRREGULARITIES

- Broad principle: errors and irregularities will not generally vitiate findings, sentences or orders unless
there had been a failure of justice
- In charge/ joinder etc
- See: Ss 162, 395 and 396 CPC

• Section 162 CPC


Effect of errors.

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162. No error in stating either the offence or the particulars required to be stated in the charge and no omission to state
the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact
misled by that error or omission

• Section 396 of CPC: Errors in the charge are not fatal unless the accused was misled by the error or the error has
led to a failure to justice
Irregularities not to vitiate proceedings.
396. Subject to the provisions hereinbefore contained, no finding, sentence or order passed or made by a court of
competent jurisdiction shall be reversed or altered on account of —
(a) any error, omission or irregularity in the complaint, summons, warrant, charge, judgment or other proceedings
before or during trial or in any inquiry or other proceeding under this Code;
(b) the want of any sanction required by section 129; or
(c) the improper admission or rejection of any evidence,
unless the error, omission, improper admission or rejection of evidence, irregularity or want has occasioned a failure
of justice.

• Failure of justice –

Madtassan bin Lamat v PP [1993] 2 MLJ 46 - Indeterminate time and no location specified BUT no prejudice or
failure of justice shown
- Facts: The appellant was charged and convicted under Section 28 of the Public Order Act for possession of an
M16 firearm and Browning pistol parts. The entire prosecution case against him consisted of numerous oral
statements made separately and at different times by the appellant. Appealed against the conviction upon the
following grounds:
o (i) The trial judges erred in law in allowing one of the charges to be amended;
o (ii) The Chief Justice had made adverse findings against the appellant in a previous case and should
have disqualified himself;
o (iii) The trial judges erred in law and in fact in admitting and relying on the alleged oral statements
taken in breach of Section 116 of the CPC.
- Held:
o 1) Having regard to both the absence of any evidence of prejudice or other failure of justice and
the absence of any objection at the trial, the conviction should not be set aside because of any
error, omission or irregularity in the charge.
o 2) Without a voir dire, the judges could not have satisfied themselves beyond a reasonable doubt that
the oral admissions were voluntary. Therefore, the oral statements were improperly taken into account
and the convictions cannot rest upon any of the oral admissions. Therefore, there was no question of
there being, independent of the oral statements, sufficient evidence to justify the decision in the court
below and the improper admission of the oral statements had occasioned a failure of justice.
- Comments: Section 116 of the CPC, which required the statements to be reduced into writing, read over and
signed by the person being examined orally, was not complied with. Such failure to meet the requirements,
although clearly expressed in mandatory terms, would not of itself require the statements to be excluded.
o P should have been more precise, but A not prejudiced
o A didn’t show how the lack of particulars prejudiced his defence.
o practical approach

 Duplicity – four distinct offences in one charge – BUT no failure of justice

PP v Mohamed Fathi [1979] 2 MLJ 75


- Facts: The charge read "That you sometime between the August 1977 and 26 September 1977 at the Chase
Manhattan Bank, Jalan Gereja, Wilayah Persekutuan, Kuala Lumpur, fraudulently used as genuine four
documents….”
- No conviction recorded. The timing of the offences were never determined but still counted.
- Held:
o The charge though bad for duplicity was an irregularity, which was cured by Section 422.
o No real failure of justice, because the accused knew he had to answer 4 different charges event though
all framed as one

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 Amendment of charge after close of defence – charges not read over and explained to accused – NOT curable –
retrial – WHY ?

Singah Mohamed Hussin v PP [1973] 2 MLJ 109


- Facts: In this case the appellant had been charged under Section 414 of the Penal Code on two charges that he
"voluntarily disposed" of certain properties. At the close of the defence, the learned magistrate ordered the
charges to be amended by substituting the words "assisted in disposing of" for the words "disposed" but he did
not read over and explain the amended charges to the appellant. The appellant appealed against his conviction
and sentence.
- Held:
o (1) The omission by the learned magistrate to read and explain the amended charges to the
appellant was an irregularity which was not curable by Section 422 of the CPC as it was contrary
to a statutory requirement;
o (2) The conviction and sentence of the appellant must therefore be quashed and a retrial ordered.
 no rules as to when an irregularity should be quashed
 look at each case on its facts: got real prejudice?
 Go on a case by case basis  each case can only be an e.g.

Lim Chuan Huat and Another v PP [2002] 1 SLR 105


- The appellants were separately charged but jointly tried in court for voluntarily causing hurt to their maids on
various occasions. They were convicted on their respective charges and sentenced. They appealed against their
respective convictions and sentences, arguing that – (a) their respective charges were bad for duplicity, and (b)
the trial judge erred in law by proceeding with a joint trial.
- Held: Dismissing the Appeal
o (1) The object of s 168 of the Criminal Procedure Code (Cap 68)(‘the CPC’) was to ensure a fair trial
and that the accused did not have to defend several unconnected charges or distinct offences lumped
together in one charge. Further, the exceptions referred to in s 168 were confined to the rule on joinder
of charges and did not apply to duplicity. Hence, a charge alleging two or more distinct offences was
duplicitous and in contravention of s 168. The appellants’ respective charges were bad for duplicity
and breached s 159(1) as each of the ‘various occasions’ which they were charged with constituted a
distinct offence for which a separate charge should have been preferred.
o (2) However, if each of the offences could have been the subject of a separate charge, and could have
been proceeded with at one trial, the duplicity was an irregularity which could be cured by s 396 of the
CPC. This was provided that the accused was not prejudiced in his defence, and no failure of justice
arose due to the irregularity. No such failure arose as the trial judge had kept the evidence against each
alleged offence separate when convicting the appellants on their respective charges.
o (3) Although the charges breached s 159(1), the error or omission in them was not material and could
be cured by s 162 as the appellants were not misled by them and knew the charges they had to meet.
o (4) In determining whether different acts are part of the ‘same transaction’, the tests are
proximity of time, unity of place, unity of purpose or design, and continuity of action. Unity of
purpose was the main test, and it was unnecessary for all the tests to apply for several incidents to
form the same transaction. The trial judge did not err in trying the appellants jointly and s 176 of the
CPC was not breached as there was not only unity of purpose in their individual acts, but also unity of
place and proximity of time.
o (5) In cases where the error in question was irrelevant for the purpose of determining guilt and
only affected the sentence, it was an irregularity that could be cured. The proper remedy was by
way of s 261 of the CPC which gave the High Court jurisdiction to maintain or set aside a
sentence that was manifestly excessive or inadequate in the circumstances of the case.

• Effect during trial? Usually raised on Appeal

WITHDRAWAL OF CHARGES

- s 35(8) Constitution & s 336 CPC


 Attorney-General – power to discontinue any proceedings for any offence

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Attorney-General
35. —(8) The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or
discontinue any proceedings for any offence.

- s 184 CPC (Subordinate Courts) & s 193 (High Court) – “offering no further evidence”
 PP may decline further to prosecute at any stage of summary trial

- Difference between DATA and DNAQ – discharhge amtg to acquittal and discharge not amtg to acquittal – for
latter, can at any time resume proceedings.
 Not enough evid at this stage so ask for discharge not amtg to acquittal, when come back, need to start
all over again. Because already asked for discharge

- Note ss 184(2) and 193(2) CPC – DNAQ unless court orders DATA

- Sec. 177: when conviction achieved for one or more charges, remaining charges may be withdrawn
(having effect of DATA) unless conviction set aside (in which case the withdrawn charges are
‘resurrected’)

Withdrawal of remaining charges on conviction on one of several charges.


177. —(1) When more charges than one are made against the same person and when a conviction has been had on one
or more of them, the officer or other person conducting the prosecution may, with the consent of the court, withdraw
the remaining charge or charges or the court of its own accord may stay the inquiry into or trial of the charge or
charges.
(2) Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction is set aside,
in which case the court, subject to the order of the court setting aside the conviction, may proceed with the inquiry
into or trial of the charge or charges so withdrawn

- Usually for serious High Court cases eg where accused faces two or more capital charges – if convicted on
one, then will usu withdraw remainig charges pursuant to s177

CHARGES TAKEN INTO CONSIDERATION

- Charges “taken into consideration” (“TIC’d”) – s 178 CPC


 Where accused is found guilty of an offence, the court, in determining and in passing sentence,
may, with the consent of the prosecutor and the accused, take into consideration any other outstanding
offence or offences which the accused admits to have committed

Outstanding offences.
178. —(1) Where in any criminal proceedings instituted by or on behalf of the Public Prosecutor the accused is
found guilty of an offence, the court, in determining and in passing sentence, may, with the consent of the
prosecutor and the accused, take into consideration any other outstanding offence or offences which the
accused admits to have committed:
Provided that, if any criminal proceedings are pending in respect of any such outstanding offence or offences and
those proceedings were not instituted by or on behalf of the Public Prosecutor, the court shall first be satisfied that
the person or authority by whom those proceedings were instituted consents to that course.

(2) When consent is given as in subsection (1) and an outstanding offence is taken into consideration, the court
shall enter or cause an entry to that effect to be made on the record and upon sentence being pronounced the
accused shall not, unless the conviction which has been had is set aside, be liable to be charged or tried in respect
of any such offence so taken into consideration.

- Usu used by defence when sending written reps to prosecution


- Offences TIC are usu the ones less serous than one proceeded with
- Adv is tt can have slate wiped clean and ot worry abt police preferring fresh charges after serving sentence
- Cannot conseq be charged or tried for offence TIC unless convction set aside 178.2

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- When TIC charges does not nec mean tt sentence will be enhanced
- Procedure
 Can see the prosecutor and ask tt no of charges be reduced
- Effect
 so sentence may be increased because those charges taken into consideration
 accusd may be wiling to plead guilty to 1 charge provided tt x have other charges pending – will
consent to PP applyg to have other charges taken into consideration
- PP v Mok Ping Wuen Maurice:
• Learned CJ has stated that ‘the effect of taking into consideration (TIC) outstanding offences is to
enhance the sentence that would otherwise be awarded’
• However, it appears that the courts do consider the totality of the circumstances and the fact that there
are TIC charges does not necessarily mean that the sentence will be enhanced

PRACTICAL ISSUES
- Investigation/Pre-trial Phase:
 Role of prosecutors in vetting/drafting/amending charges (after perusing IP) and guiding
investigators on evidence required to support elements of charge
 Defence Counsel (DC) making representations wrt appropriate charge
 At PTC, JO, Prosecutor and DC need to be aware of possibility of joinder; standing down of
charges; TIC’ing of charges if defendant “takes a certain course”
- Trial Phase
 Prosecutors ensuring that they lead evidence to satisfy all elements of charge to prima facie
level (Haw Tua Tau)
 DCs – no case to answer submission
 Amendment of charges as evidence is led – case dynamics

- exams:
 Familiarity with practical procedures
 Familiarity with relevant CPC provisions (e.g. for charges = ss 158 – 179, 184, 193, 395, 396 CPC)
 Familiarity with important case law, e.g. interpretation of “same transaction” in s 176 CPC; also –
latest cases (Lawnet, Lexis Nexis)
 Basic reference guides – PLC manual; Butterworth’s Criminal Procedure; (Ratanlal, Mitra etc on
Indian CPC, commentary on Sri Lankan Code of Crim Pro)

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