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FEATURE |
No Reason for Convicted Prosecution Witness to Falsely Implicate
This article considers the sustainability of the general prescription that a Prosecution witness who has already been convicted and sentenced is more believable in his court testimony against an accused person.
It is established law that the burden of proving a lack of motive on the part of a Prosecution witness to falsely implicate an accused person lies with the Prosecution even though this is a negative assertion: Khoo Kwoon Hain v PP [1995] 2 SLR 767 (“Khoo Kwoon Hain v PP”).
However, this does not mean that the Prosecution is required to prove that a Prosecution witness has no motive to falsely implicate an accused person in all cases. The authorities place the burden on the accused person to first show that the Prosecution witness had a motive to falsely implicate him by adducing sufficient evidence in this respect to raise a reasonable doubt in the Prosecution’s case. Only then would the burden of proof shift to the Prosecution to prove beyond a reasonable doubt that there was no such motive. In making a finding that a Prosecution witness has no reason to falsely implicate the accused person, the court must make that finding based on credible evidence. Loo See Mei v PP [2004] 2 SLR 27 (“Loo See Mei v PP”).
The Court in Loo See Mei v PP relied on the fact that the Prosecution witness had been convicted and had served his sentence for the charge of overstaying as credible evidence to find that the Prosecution witness had no reason to falsely implicate the accused person.
The accused person in Loo See Mei v PP faced one charge of harbouring one illegal immigrant, namely Limbu. By the time of the trial for the accused person, the Prosecution’s main witness, Limbu, had pleaded guilty, had been convicted and had served his sentence for his charge for overstaying. In its Judgment, the High Court highlighted that the trial judge was entitled to rely on the fact that Limbu had been convicted and sentenced for his charge of overstaying as a basis to find that Limbu has no reason to falsely implicate the accused person – refer [39]:
39 First, when a trial judge wishes to make a finding that the complainant or prosecution witness had no reason to falsely implicate the accused, he must base such a finding on credible evidence. This is founded on the principle of common sense that any finding of a trial judge must be based on some credible evidence to support his or her decision in order for that finding to be sound. What amounts to credible evidence depends on the facts of each case. It must be remembered that in Khoo Kwoon Hain v PP, my main criticism levelled against the district judge was his reliance on the fact that the accused could not venture any reasons why the complainant would lie in court to falsely implicate him. That was clearly wrong because by focusing on that, he failed to consider whether there was credible evidence to show that the complainant could not have been lying. The same criticism cannot be levelled against the trial judge in the present case. He had expressly considered the undisputed fact that Limbu had been dealt with under the law, having been convicted and having served his sentence for overstaying in Singapore without a valid permit. The trial judge was entitled to rely on this, as he did, as a basis for finding that Limbu had no reason to falsely implicate the appellant here. (Emphasis added).
The fact that a Prosecution witness had been dealt with ie, convicted and sentenced for his offence, has been relied on by the Prosecution to make submissions and the Courts to make a finding in several cases following Loo See Mei v PP that the Prosecution witness had no reason to falsely implicate the accused person.
Prior to Loo See Mei v PP, there were a few Decisions whereby the Court made a finding that the Prosecution witness has no reason to falsely implicate an accused person after he is convicted – see Samad bin Kamis and Another v Public Prosecutor [1992] 1 SLR 340 at [47]; Loo Weng Fatt v Public Prosecutor [2001] SGDC 132 at [44].
However, recent Decisions demonstrate an increasing trend of utilisation of such arguments by the Prosecution and acceptance of such arguments by the Courts. Excerpts of the relevant findings by the Courts are produced as follows:
1. 97. Thus, I was satisfied that Ramli did not bear any grudge against the accused and had no reason to falsely implicate the accused. I also accepted his evidence that he had already been sentenced for his offence and he had nothing to gain by falsely implicating the accused; neither would it help his girlfriend or Ismadi by so doing.
Public Prosecutor v Abdol Rahman Bin Mohamad [2004] SGDC 269.
2. 36. I find the evidence of PW2 Ripon to be credible. He had affirmatively maintained that he had never handed any work permit or passport to the accused and that the latter had employed him as a security guard at No. 5 with a monthly salary of $750 with bonus. In addition, Ripon was given accommodation in the guard house at No. 5 by the accused throughout his period of employment. There is no reason for PW2 Ripon to lie as he had pleaded guilty to a charge of illegal entry and was sentenced to 3 months imprisonment and 5 strokes of the cane. If Ripon had the work permit D3) and passport (D4), he would have informed the Immigration authorities and he would not have been charged for illegal entry. Likewise, he would not have pleaded guilty to the charge if he had possession of D3 and D4. PW2 Ripon had also testified that the accused did not ask for his work permit or passport at any time. The Investigating Officer PW11 had stated that the holder of the documents D3 and D4 had returned to Bangladesh. In any event, the authenticity of the documents D3 and D4 had not been established and the defence had not tendered any evidence of having made checks with the relevant authorities. Ripon was found at No. 5 during the raid on 22 Nov 2005. The other prosecution witnesses PW3 to PW9 had also corroborated Ripon’s evidence. I find that the accused had the knowledge that PW2 Ripon was not in possession of the work permit or passport as he had never asked for them and was acting in reckless disregard. The prosecution had proved its case beyond reasonable doubt in regard to the charge of illegal employment involving PW2 Ripon. The accused was found guilty and convicted on the illegal employment charge accordingly.
Public Prosecutor v Lim Hean Nerng [2006] SGDC 298 (Emphasis added).
3. 43. What is more important and which is not disputed by the defence is that the 8 prosecution witnesses PW2 to PW9 had pleaded guilty for illegal entry and they were sentenced to imprisonment and caning. In the case of PW2 Ripon and PW9 Hassan, they had additional charges of abetting the accused in harbouring the immigration offenders. Clearly, there is no reason for PW2 to PW9 to fabricate their evidence against the accused as they had either served their sentence or were serving sentence at the time of the trial. The prosecution’s evidence is actual and direct evidence. In this connection, I agree with the prosecution’s submission on the case of Loo See Mei v PP. In Loo See Mei v PP [2004] SGHC 42, which was a case involving the harbouring of an immigration offender, the Chief Justice held that when a trial judge wished to make a finding that a witness, that is, the immigration offender in that case, has no reason to falsely implicate the accused, such a finding must be based on credible evidence. This may include positive evidence that the witness has nothing to gain by giving evidence against the accused person. In that case, the prosecution led evidence that the immigration offender had nothing to gain by implicating the alleged harbourer in an offence of illegally harbouring him. He had already been convicted and sentenced for an immigration offence. Similarly, in the present case, the prosecution witnesses PW2 to PW9 had given credible evidence as they had all pleaded guilty for illegal entry and for PW2 Ripon and PW9 Hassan, they had pleaded guilty to additional charges of abetment of harbouring immigration offenders by the accused. They had nothing to gain in giving evidence against the accused and there is no reason for them to fabricate the evidence against the accused. There is however, one charge against the accused involving the immigration offender PW7 Dohil Muddin (DAC 53462/2005), the court was satisfied that he was staying at No. 5 for about 4-5 months before he was arrested i.e. from June 2005 onwards. The court amended the charge from 15 Jan 2005 to June 2005 under s. 163 of the Criminal Procedure Code (Cap 68) which provides that the court can amend the charge at any time before judgement is given. For the abovementioned reasons, I found the accused guilty of the 9 harbouring charges and convicted him accordingly.
Public Prosecutor v Lim Hean Nerng [2006] SGDC 298. (Emphasis added).
4. 30. The motive that the defence is relying on is that the trafficking charge against Haslindah had been reduced to one of possession in exchange for her evidence implicating Hisham in the Subutex transaction. On analysing the evidence, I am satisfied that there is credible evidence proving that Haslindah has no reason to falsely implicate Hisham. They were former childhood friends. Hisham was also a friend of her husband. Her childhood friendship with Hisham was renewed sometime in the year 2000 when her husband “introduced” him to her. The evidence also revealed that they had a very close and cordial relationship after that. Hisham had gone to her flat to gratuitously help her move an air-conditioned unit. He had also helped to dispose of some unwanted furniture from her flat. He had acted as her confidant in matters concerning herself and her husband. I am convinced that she has nothing to gain from falsely implicating Hisham. The fact that the trafficking charge against her was amended to one of possession does not, in my mind, point to a motive or incentive to falsely implicate Hisham. She had already been convicted and sentenced to a 12 month prison term. There was therefore nothing to stop her from exculpating Hisham. Having observed her demeanour in court, I find that she had given her evidence in a matter of fact manner and she did not make any attempt to minimise her involvement in the whole transaction nor exaggerate Hisham’s involvement. In fact a closer examination of her evidence would show that she had tried to minimise Hisham’s involvement by testifying that Hisham had lent the Subutex to Emran, and that there was no mention of price. She had also testified that Hisham had Subutex only for his own consumption, and that he had initially refused to give Emran the Subutex but he had reluctantly relented out of pity for Emran’s pregnant fiancee. This evidence is not consistent with someone bent on falsely implicating another.
Public Prosecutor v Mohamed Emran Bin Mohamed Ali and Another [2007] SGDC 256 (“Public Prosecutor v Mohamed Emran Bin Mohamed Ali”). (Emphasis added).
5. 87. Significantly Koh had no reason to falsely implicate the Accused in this matter. The Accused himself could not offer an explanation as to why Koh would falsely implicate him. Koh herself had told the Court that she had nothing to gain from implicating the Accused having already served the sentence for her role in the scam. The Court accordingly accepted Koh’s evidence that the Accused did willingly hand over the RVCC and the pin number to her pursuant to his plan cheat OCBC bank.
Public Prosecutor v Chua Chee Teck [2007] SGDC 8.
6. 75 Low has already been dealt with for his part in this conspiracy to cheat DBS Bank. Thus, he would have little reason to falsely implicate the Accused by lying about either the extent of the Accused’s knowledge or his own involvement.
Public Prosecutor v Abdul Rahman bin Sailon [2008] SGDC 44.
7. 42. I took great care to scrutinize Rudy’s evidence and I found him to be a reliable witness whose testimony remained largely unshaken during cross-examination. Having pleaded guilty, he was sentenced to five months’ imprisonment and had nothing to gain by giving evidence against the Accused. The Accused himself could not suggest any reason why Rudy might want to falsely implicate him.
Rajasegaran s/o Balakrishnan v Public Prosecutor [2008] SGDC 299.
8. 61. I accept the prosecution’s argument that the DJ, having considered the fact that the agents had already been convicted for cheating in respect of the present case by the time they gave evidence in court, was entitled to make a finding that the agents had no reason to lie or to exaggerate about the appellant’s or Koh’s role in the cash back scheme. The finding by the judge is well supported by the principles enunciated in Loo See Mei v Public Prosecutor [2004] 2 SLR 27 (at [39]).
Bachoo Mohan Singh v Public Prosecutor [2009] SGHC 125.
9. Lianhe ZaoBao Newspaper report dated 13 August 2009 which reported the Prosecution’s submissions in PP v Gao Hua.
Generally, the Courts in the above cases do not amplify the reasons why a Prosecution witness who has been dealt with has no reason to falsely implicate the accused person. The Court in Public Prosecutor v Mohamed Emran Bin Mohamed Ali suggested that the Prosecution witness who has been dealt with in that case could well have exculpated the accused person. Therefore, the implication is that the fact that the Prosecution witness did not exculpate the accused person is that the Prosecution witness’ testimony should carry great weight.
It can also perhaps be surmised that one possible reason weighing in the Court’s mind is that a Prosecution witness who has not yet been dealt with may have reason to falsely implicate an accused person because the Prosecution witness may believe, with or without any basis, that he may get a reduced charge or shorter sentence if he assists the Prosecution’s case by testifying and implicating the accused person in the latter’s trial. If that is a reason for believing that a Prosecution witness is unlikely to falsely implicate an accused person after the former is convicted and sentenced, would it not be logical to argue that a Prosecution witness is more likely to falsely implicate an accused person if he is not yet convicted and sentenced? If such a logical extension is correct, it would mean that a Prosecution witness’ statements to the police prior to his own conviction and sentence should be less believable since he is more likely to falsely implicate another person in the hope of gaining a reduced charge or shorter sentence.
Rather than rely on the mere fact as to whether a Prosecution witness has already been dealt with or not, it is submitted that the prior police statements provided by the convicted Prosecution witness and/or the Statement of Facts agreed by the convicted Prosecution witness and which implicates the accused person are highly material in one’s consideration of whether the convicted Prosecution witness has a motive to falsely implicate an accused person during trial.
A Prosecution witness who has been dealt with would in almost all the cases have previously provided a police statement implicating the accused person. The Prosecution witness’ police statement would have formed an important basis for Prosecution to charge the accused person especially if the Prosecution is a material witness. For example, in the case of Loo See Mei v PP, it is almost certain that the illegal immigrant Limbu had implicated the accused person for illegally harbouring him in his police statement(s). If Limbu had not implicated the accused person in Loo See Mei v PP but given an exculpatory statement, it would have been unlikely that the accused person would have been charged for illegally harbouring Limbu.
Further, a Prosecution witness would have agreed to a set of Statement of Facts if he had pleaded guilty to the charge. It is not uncommon for the Statement of Facts agreed by the Prosecution witness to contain statements which would implicate the accused person.
If the Prosecution witness has previously implicated the accused person in his prior police statement and/or Statement of Facts, it is highly probable that the Prosecution witness will adhere to his prior police statement and/or Statement of Facts and continue to implicate the accused person at trial. This is because if the Prosecution witness deviates from his prior police statement and/or Statement of Facts and exculpates the accused person, he faces the twin risks of being painfully impeached in Court by the Prosecution as a hostile witness through his prior statements and/or Statement of Facts; prosecuted for giving a false statement to the police under s 182 of the Penal Code and perjury to the Court. This is especially so if the Defence can show during cross-examination of the Prosecution witness that he had been reminded by the Prosecution during witness preparation for the accused person’s trial that he had given prior police statement and/or Statement of Facts implicating the accused person. Therefore, a Prosecution witness who had falsely implicated the accused person in his prior police statement and/or Statement of Facts would have good and compelling reason to continue to falsely implicate the accused person. By doing so, the Prosecution witness stands to gain by virtually erasing all risk of further trouble with the Prosecution since he has stuck by a consistent version of facts and has supported the Prosecution’s case against the accused person.
Given the very high possibility that the Prosecution witness who has been dealt with may falsely implicate an accused if he is motivated to hold fast to a version of facts consistent with his prior police statement and/or Statement of Facts which falsely implicate the accused person, it is submitted that it should generally be insufficient for the Prosecution to be able to discharge its heavy burden of proof that there was no motive for the Prosecution witness to falsely implicate the accused person by merely showing that the Prosecution witness had been dealt with. If the Prosecution wishes to rely on the fact that the Prosecution witness had been dealt with, the Prosecution should also be required to prove beyond reasonable doubt that the Prosecution witness is not implicating the accused person because he is worried or influenced by the fact that he has given prior police statement and/or Statement of Facts implicating the accused person.
In like manner, assuming that a Prosecution witness who has been dealt with had truthfully implicated the accused person in his prior police statement and/or Statement of Facts, the risks of being impeached in Court by the Prosecution as a hostile witness through his prior statements and/or Statement of Facts; prosecuted for giving a false statement to the police and perjury to the Court must act as powerful deterrents to prevent the Prosecution witness from falsely providing exculpatory testimony in favour of the accused person.
Hence, it is highly doubtful how pertinent or material is the mere fact that a Prosecution witness has been dealt with. One would argue that the mere fact that a Prosecution witness has been dealt with should preferably be treated as a totally neutral factor in deciding if the Prosecution witness has a motive to falsely implicate the accused person.
If the fact as to whether a Prosecution witness is not treated as a neutral factor, it would act as a double edged sword ie, one should also accept the argument in reverse: The evidence given by Prosecution witness before he has been dealt with in the form of police statements should carry less weight and he may have a motive to falsely implicate the accused person in such prior police statements. Leaving aside for a moment other relevant considerations that may throw light on whether an accused person has motive to falsely implicate the accused person, if the Prosecution witness who has been dealt with exculpates the accused person during the accused person’s trial and the Prosecution seeks to impeach the Prosecution witness using the prior police statements given before he was dealt with, the mere fact that the Prosecution witness was not yet dealt with (if this fact is not treated as a neutral factor) must entitle less weight to be afforded to these police statements compared to his exculpatory testimony during the trial of the accused person.
A general prescription that a Prosecution witness is more believable after his conviction and sentence ignores the fact and effect of the Prosecution witness having given prior police statements and/or agreed to Statement of Facts implicating the accused person. A reliable and accurate assessment of whether the Prosecution witness has a motive to frame the accused person should focus not on whether he has been dealt with but instead concentrate on the relevant facts of each case, his relationship with the accused person, their alleged respective roles in the offence and the context of his accusations against the accused person.
Tan Hee Joek
Tan See Swan & Co
E-mail: thj@tssco.com.sg