Cases

Lim Chuan Huat & Anor v Public Prosecutor [2002] 1 SLR 105
High Court - Magistrate's Appeal Nos 218 and 219 of 2001
Yong Pung How CJ
27 November 2001, 7 January 2002

Charge - Duplicity - Charge alleging that appellants committed two or more distinct offences - Duplicity resulted from use of phrase 'various occasions' - Whether defect curable - Criminal Procedure Code (Cap 68) ss 168 & 396

Charge - Errors in charge - Particulars of charge - Ambiguity in use of phrase 'various occasions' - Whether errors in charge material - Whether appellants misled by errors in charge - Criminal Procedure Code (Cap 68) ss 159(1) & 162

Trial - Joint trial - Whether offences committed in same transaction - Whether joint trial caused prejudice to appellants - Criminal Procedure Code (Cap 68) s 176

Sentencing - Principles - Discretion in sentencing - Whether trial judge's error in considering extraneous factors in sentencing appellants occasioned failure of justice - Whether error an irregularity - Whether curable - Criminal Procedure Code (Cap 68) s 261

Peter Yap (Chor Pee & Partners) for the first appellant.
Kertar Singh (Kertar & Co) for the second appellant.
Daniel Yong (Deputy Public Prosecutor) for the respondent.

The appellants, Lim and Tan, were separately charged but jointly tried in the district court for voluntarily causing hurt to their maid. The trial judge, who accepted the victim's evidence that Tan assaulted her on 10 June 1999, and that Lim assaulted her on the morning of 11 June 1999, convicted both appellants on their respective charges. The appellants appealed against their respective convictions and custodial sentence on two main grounds. First, that their respective charges were bad for duplicity; and second, that the trial judge had erred in law by proceeding with a joint trial for both appellants.

Held, dismissing the appeals:
A charge alleging that the accused committed two or more distinct offences is duplicitous and contravenes s 168 of the Criminal Procedure Code (Cap 68) ('CPC'). The exceptions referred to in s 168 are confined to the rule on joinder of charges and do not apply to duplicity. However, where each of these offences could have been the subject of a separate charge, and could have been proceeded with at one trial, the duplicity is merely an irregularity which can be cured by s 396 of the CPC. This is provided the accused was not prejudiced in his defence and there was no failure of justice occasioned by the irregularity. Hence, notwithstanding that the court found the appellants' individual charges to be bad for duplicity, the court was satisfied that on the present facts, the duplicity in question had occasioned no failure of justice nor prejudiced the appellants in their defence. In other words, the duplicity amounted to an irregularity which could be cured by s 396; see Yew Poo v PP [1949] MLJ 131, Ramachandran v PP [1972-1974] SLR 383; [1972] 2 MLJ 183 and Chuan Hoe Engineering v PP [1996] 3 SLR 544 followed.

The manner in which the individual charges were drafted was in breach of s 159(1) of the CPC. However, as the appellants were not misled by the errors contained in their respective charges and knew full well the charges they had to meet, the errors in question were not material and could be cured by s 162 of the CPC.

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; Tse Po Chung Nathan v PP [1993] 1 SLR 961 followed. Common sense and the ordinary use of language must decide whether on the facts of a particular case it is one transaction or several transactions. The facts of the present case supported the trial judge's decision to allow the appellants to be tried together. Not only was there an identity of purpose in the separate acts of the appellants, but there was proximity of time and unity of place. More importantly, the court was satisfied that the appellants were not prejudiced by a joint trial as the trial judge had kept the evidence applicable only to each appellant separate.

There can only be a failure of justice where the error in question (eg the trial judge's error of confusing the evidence) goes towards his conclusion of the guilt of the accused. However, where the error in question is irrelevant for the purposes of determining guilt and only affects the sentence, then it is an irregularity that can be cured. The proper remedy for such an irregularity is, however, not by the application of s 396 of the CPC, but by way of s 261 of the CPC which gives the High Court the jurisdiction to maintain a sentence or set aside a sentence that is manifestly excessive or inadequate in the circumstances of the case.

FAMILY LAW

Khor Bee Im v Wong Tee Kee [2002] 1 SLR 101
High Court - Divorce Petition No 1260 of 1987
(Summons-in-chambers No 602390 of 2001)
S Rajendran J
8, 15 January 2002

Surnames - Child - Change of surname of child by deed poll - No consent from natural father - Application to set aside deed poll - Effect on child - Interests of child - Whether there are compelling reasons to justify change of surname

Lin Shiu Yi (Hoh & Partners) for the applicant/respondent (father).
Geralyn Danker (Leong Goh Danker & Subra) for the petitioner (mother).

Mdm Khor was divorced from Wong in 1988. They had a child by the name of ZhiGang who was only eight months old when Wong left the matrimonial home, leaving ZhiGang in the care of Mdm Khor. Mdm Khor was granted custody of ZhiGang. Mdm Khor married one Eng in 1989. In 1990, ZhiGang's surname was changed from 'Huang' to 'Eng' by a deed poll. Wong later found out about the change. Wong applied for an order that the deed poll be declared void and inoperative.

Held, dismissing the application:
The question is whether there are compelling reasons in this case for the change of surname. Unlike the situation in L v L [1997] 1 SLR 222, the father in the present case (ie Wong) had shown no interest in the welfare of ZhiGang from the time Wong abandoned the matrimonial home in January 1985. In this regard, the only favourable thing that could be said of Wong was that he has contributed and is contributing towards the maintenance of ZhiGang, but, as counsel for Mdm Khor pointed out, such maintenance was a requirement of law and the payments were made under orders of court.

Whatever the legalities/moralities of Mdm Khor's conduct in unilaterally changing the surname of ZhiGang may be, consideration should be given to the effect on the child should the application be granted and, in a case where the child is sufficiently mature, the wishes of the child. ZhiGang was now 17 years of age and a Polytechnic student. He had been known by the name 'Eng ZhiGang' from the time he was seven years of age. His school records, his examination certificates, his Polytechnic records, his bank account and all such important documents relating to him carry the name 'Eng ZhiGang'. All his friends know him as 'Eng ZhiGang'. Further, ZhiGang, who is now almost an adult, has no rapport with Wong and has no desire to revert to the name 'Huang ZhiGang'.

In the above circumstances, for the court to order that ZhiGang's name be changed back to 'Huang ZhiGang' would cause considerable difficulties and even embarrassment to ZhiGang. It would not be in the interests of ZhiGang to make such an order. To trace the words of the Court of Appeal in L v L, there are, in this case, compelling reasons for the court to countenance the change of name to 'Eng ZhiGang'. Accordingly, the application is dismissed.

Considering that the change of name was effected by Mdm Khor without consultation with Wong, the court made no order as to costs.