Case Summaries

Goh Chin Soon v Public Prosecutor [2021] SGCA 49

SUPREME COURT OF SINGAPORE

11 May 2021

Case summary

Goh Chin Soon v Public Prosecutor [2021] SGCA 49
Criminal Motion No 21 of 2020

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Decision of the Court of Appeal comprising Sundaresh Menon CJ, Andrew Phang JCA and Tay Yong Kwang JCA (delivered by Tay Yong Kwang JCA):

Outcome: CoA grants leave to an applicant to refer one question of public interest, answering that question in the affirmative and consequently (a) setting aside the applicant’s conviction under s 47(6) of the Passports Act (Cap 220, 2008 Rev Ed) (“Passports Act”) and ordering a retrial; and (b) ordering the conviction under s 57(1)(k) of the Immigration Act (Cap 133, 2008 Rev Ed), setting aside the applicant’s sentences for those charges and reserving sentencing for those charges to the new trial judge. 

Pertinent and significant points of the judgment

  • The Court of Appeal observes that there are material differences between an offence under s 47(3) of the Passports Act and s 47(6) of the Passports Act, both in terms of the actus reus and the mens rea (at [61], [62], [64]).
  • The Court of Appeal holds that where an application is made by an accused person to call fresh evidence to answer an amended charge in circumstances where the charge was amended after the defence has been called, such an application should generally be dealt with on the same basis as would an application under s 131 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). This means that an accused person’s application to call additional witnesses in his defence should be allowed unless the application is frivolous, vexatious or is meant to cause delay or to frustrate justice (at [72]).

Background facts

1 The applicant was the chairman of the Huashin Group, a Taiwanese property development conglomerate with significant investments in the People’s Republic of China. According to the applicant, the Chinese authorities arrested him in April 2004 and detained him for some seven months. They seized his Singapore passport and identity card and did not return them to him when he was released in December 2004.

2 In March 2010, the applicant allegedly received an urgent request from one Mr Tsai You Zhang (“Mr Tsai”) to travel to Taiwan. However, the applicant could not do so as he did not have a passport. Mr Tsai subsequently proposed that the applicant get an investment passport, which was a passport issued by a third-party country on the condition that the applicant invest in that country. Mr Tsai then introduced the applicant to Mr Huang Yueh Chao (“Mr Huang”), who told the applicant that he had found an agent to help him apply for a Philippine investment passport (the “Passport”). The applicant agreed to purchase a Philippine company for US$250,000 and supplied Mr Huang with his personal particulars, a passport photograph and his fingerprints for the application for the Passport.

3 In March 2011, Mr Huang handed the applicant the Passport along with the relevant supporting documents. Although the Passport bore the applicant’s photograph, the bearer’s details were stated as “Ngo Boris Jacinto”, a Philippine national born on 27 August 1967 in San Juan, Rizal. When the applicant raised these wrong particulars to Mr Huang, he was informed that correcting the mistakes would require Mr Huang to go back to the Philippines and reapply for a new passport. As this would take considerable time and the applicant needed to travel urgently, the applicant decided to use the Passport to travel to Taiwan, believing that it was a genuine travel document.

4 The applicant subsequently used the Passport to travel into and out of Singapore on 46 occasions from 20 March 2011 to 7 September 2012. On the 46th occasion on 7 September 2012, the applicant was arrested at Changi Airport. On each of the 23 occasions when the applicant entered Singapore using the Passport, he produced a disembarkation form that reflected the particulars stated in the Passport and contained the declaration that he had never used a passport under a different name to enter Singapore.

5 The applicant claimed trial in the District Court to 46 charges under s 47(3) of the Passports Act (Cap 220, 2008 Rev Ed) (“Passports Act”) for knowingly making use of a foreign travel document which was not issued to him (the “s 47(3) Passports Act charges”) and to 23 charges under s 57(1)(k) of the Immigration Act (Cap 133, 2008 Rev Ed) for making false statements in his disembarkation forms (the “Immigration Act charges”). At trial, evidence was given that the Philippine authorities had no record of a passport having been issued to a “Boris Jacinto Ngo” under the passport number stated in the Passport. Although the applicant had indicated initially that he would be calling Mr Tsai and Mr Huang as defence witnesses, in the light of the above evidence, the applicant’s then-counsel considered it unnecessary to call them because the evidence as it stood might not make out the s 47(3) Passports Act charges.

6 At the conclusion of the Defence case and after closing submissions were made, the District Judge (the “DJ”) convicted the applicant on the Immigration Act charges. However, the DJ amended the s 47(3) Passports Act charges to charges for possessing a false foreign travel document under s 47(6) of the Passports Act (the “s 47(6) Passports Act charges”). The DJ did not grant the applicant’s application under s 283(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to call Mr Tsai and Mr Huang as defence witnesses and did not consider whether she should exercise her general discretion under s 283(1) of the CPC. The applicant was convicted subsequently on the s 47(6) Passports Act charges. The DJ sentenced the applicant to two months’ imprisonment on each of the Immigration Act charges and to 12 months’ imprisonment on each of the s 47(6) Passports Act charges. Two imprisonment terms from each set of offences were ordered to run consecutively, resulting in an aggregate term of 28 months’ imprisonment.

7 The applicant appealed against his conviction on the s 47(6) Passports Act charges and against his sentence in respect of all the charges. The High Court judge (“the Judge”) upheld the DJ’s finding that the s 47(3) Passports Act charges were not made out. However, the Judge held that the DJ ought to have consolidated the s 47(3) Passports Act charges into a single charge under s 47(6) of the Passports Act. The Judge amended the s 47(6) Passports Act charges to a single charge accordingly (the “amended s 47(6) Passports Act charge”). The Judge convicted the applicant on the amended s 47(6) Passports Act charge and set aside the conviction on the remaining 45 s 47(6) Passports Act charges. She sentenced him to 18 months’ imprisonment on the amended s 47(6) Passports Act charge and to six weeks’ imprisonment on each of the Immigration Act charges. The imprisonment term for the amended s 47(6) Passports Act charge was ordered to run consecutively with two of the imprisonment terms for the Immigration Act charges, making an aggregate sentence of 18 months and 12 weeks’ imprisonment.

8 The applicant subsequently commenced a criminal motion seeking to refer four questions (“Questions 1, 2, 3 and 4” respectively) to the Court of Appeal, as follows:

a. Question 1: Where an accused person faces an amended charge at the conclusion of trial, should the accused person be permitted, as a matter of natural justice and procedural fairness, to call Defence witnesses to give evidence on his behalf in respect of the amended charge as he would be entitled to in a situation where the charge was not amended?

b. Question 2: Does s 131 of the CPC statutorily set out the right of an accused person who is subject to an amended charge to call or summon witnesses who may have been called in the course of trial but who were not?

c. Question 3: Does s 230(1)(p)(ii) of the CPC statutorily set out the right of an accused person who is subject to an amended charge to call any witnesses in his defence to said amended charge?

d. Question 4: In the event the answers to the above questions are “no”, what is the correct legal threshold for a judge’s exercise of discretion under Section 283(1), where an accused person seeks to call witnesses to testify on his behalf after a new charge is framed against him at the conclusion of trial and where that evidence is relevant?

9 At the hearing before the Court of Appeal, the Court of Appeal reformulated Question 4 as follows:

Where an application is made by an accused person to call fresh evidence to answer an amended charge in circumstances where the charge is amended after the defence has been called, should such an application generally be dealt with on the same basis as would an application under s 131 of the CPC (“the new Question 4”)?

The Court of Appeal's decision

10 The Court of Appeal (“the Court”) held that Questions 1 to 3 did not satisfy the requirements for leave to be granted under s 397 of the CPC: at [45], [48].

11 However, the Court held that the new Question 4 qualified as a question of law of public interest as it was an established principle of law that every litigant had a general right to bring all evidence relevant to his or her case to the attention of the court. The issue of whether this general right could be curtailed by a charge being amended very late in a criminal trial was a question that had a direct and substantial bearing on the applicant’s rights and was one of public importance. It was also not free from difficulty: at [49].

12 The Court was also of the view that the new Question 4 arose from the appeal in the High Court. The Judge had observed that in the context of s 283(1) of the CPC, it would normally be prudent to err in favour of allowing the Defence to call additional witnesses following the amendment of the charge after the end of the Defence’s case, even if the evidence did not appear to be dispositive. The Judge further noted that the DJ did not fully appreciate the need to consider whether the relevance of Mr Huang’s and Mr Tsai’s evidence would justify her exercising her general discretion under s 283(1) of the CPC: at [53].

13 The Court observed that it was not safe or fair to convict the applicant on the s 47(6) Passports Act charges or the amended s 47(6) Passports Act charge without hearing the evidence of his two defence witnesses as there were material differences between the s 47(3) offence and the s 47(6) offence in terms of the actus reus and mens rea: at [65].

14 In respect of the actus reus, the s 47(3) offence envisages a genuine foreign travel document while the s 47(6) offence concerns a false foreign travel document or a genuine one that has been tampered with. By charging the applicant under s 47(3) originally, the Prosecution must be deemed to have accepted at the commencement of the trial that the Passport was a genuine foreign travel document issued by the Philippine Government and there was therefore no need for the Defence to show this fact: at [62].

15 In respect of the mens rea, the s 47(3) Passports Act charges alleged that the applicant “knew” that the (genuine) foreign travel document was not issued to him. This would mean actual knowledge of the alleged fact. However, in the s 47(6) Passports Act charges framed by the DJ, this was altered to “ought reasonably to have known” that the document was a false foreign travel document, which is constructive knowledge: at [64].

16 The DJ did not apply the correct legal principles when refusing to grant the applicant’s application to call his two defence witnesses and the Judge’s affirmation of the DJ’s refusal was correspondingly incorrect although the Judge did proceed to discuss the proper legal principles pertaining to this case but she decided not to intervene in the DJ’s decision on the ground that the applicant’s appeal in the High Court was premised on only s 283(2) and not s 283(1) of the CPC. It was not possible to say at this stage that the two witnesses’ evidence would not be relevant to the amended s 47(6) Passports Act charge and it was not possible to refuse the application on the ground that it was frivolous, vexatious or was meant to cause delay or to frustrate justice. At the close of the Prosecution’s case, the evidence as it stood might not make out the s 47(3) Passports Act charges. It was therefore understandable why the two witnesses were not called although they were originally listed as defence witnesses: at [70], [71].

17 For the above reasons, the Court granted the applicant leave to refer the new Question 4 and answered the new Question 4 as follows: Yes, where an application is made by an accused person to call fresh evidence to answer an amended charge in circumstances where the charge is amended after the defence was called, such an application should generally be dealt with on the same basis as would an application under s 131 of the CPC. This means that an accused person’s application to call additional witnesses in his defence should be allowed unless the application is frivolous, vexatious or is meant to cause delay or to frustrate justice: at [72].

18 The Court of Appeal therefore set aside the applicant’s conviction on the amended s 47(6) Passports Act charge and ordered a retrial. The Court held that the Prosecution was at liberty to proceed with whatever charge(s) it deemed appropriate at the retrial. The Court ordered the conviction in respect of the Immigration Act charges to stand but it set aside the sentences for those charges and reserved sentencing on those charges to the new trial Judge. Pending the retrial, the Court extended the existing bail for the applicant until further order: at [78], [79], [82], [86].

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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