SINGAPORE — The lawyer acting for a man convicted of plotting an attack on his mistress’ boyfriend has argued that it was “unsafe” to convict his client due to the prosecution’s failure to produce a witness statement.
The failure to disclose the statement made by a nephew of the accused person was in breach of rules, said Senior Counsel Sreenivasan Narayanan on Wednesday (28 October) during the resumption of the appeal hearing against the conviction of his client Lim Hong Liang.
Lim, 56, was initially charged with engaging in a conspiracy with several others, including co-accused Ong Hock Chye, to voluntarily cause grievous hurt to Joshua Koh Kian Yong, who was dating Lim’s mistress Audrey Chen Ying Fang.
One of the conspirators used a penknife to slash Koh in the early hours of 30 April 2016, causing a permanent disfiguration to his face. After a trial in 2018, Lim was convicted on 2 April last year and sentenced to six years’ jail.
Sreenivasan appealed against Lim’s conviction in the High Court in January this year. He had made further arguments in light of a Court of Appeal decision concerning drug trafficker Muhammad Nabill Mohd Fuad on 31 March this year.
In Nabill’s case, the Court of Appeal ruled that the prosecution is obliged to disclose a material witness' statement to the defence, regardless of how it would affect the accused person.
In 2011, the Court of Appeal made a landmark judgement in relation to a case involving accused person Muhammad Kadar. The apex court stated that the prosecution must disclose any unused material that can be reasonably regarded as credible and relevant to the guilt or innocence of the accused.
Consequently, the judgement set the precedent for the Kadar rules in which the prosecution must also produce any unused material that is likely to be inadmissible, but could result in a real chance of pursuing a line of inquiry that leads to admissible or credible material that is relevant.
In a hearing of Lim’s appeal earlier this year, Sreenivasan argued that the trial judge had erred in refusing to order the prosecution to give the statement by Lim’s nephew’s to the defence. Lim’s nephew – known as Edwin in court documents – was not called as a witness during the trial, though he was offered by the prosecution as a witness.
The prosecution should have disclosed any material that might be regarded as credible and relevant to the guilt or innocence of Lim, Sreenivasan said.
During the same hearing, the prosecution resisted from presenting the statement, arguing that it would not have led to a line of inquiry for the defence, and that its actions did not meet the criteria for application of the Kadar rules.
In his decision issued in August, Justice Aedit Abdullah said that Edwin’s statement could not be used as evidence unless Lim’s lawyers applied to have it admitted. The judge also listed three potential consequences of the non-disclosure of the statement: that misconduct may render the conviction unsafe, that the prosecution’s case was not made out beyond a reasonable doubt, or that an adverse inference may be sought against the prosecution.
At Wednesday’s hearing, also before Justice Aedit Abdullah, Sreenivasan said that the breach of the Kadar rules rendered Lim’s conviction unsafe.
As Edwin’s statement was not disclosed, the defence had failed to cross-examine a key prosecution witness with relevant evidence. The defence also did not manage to get Edwin to corroborate the testimony of Ong Hock Chye, or call Edwin to the stand to show that Lim was not involved in the affair, Sreenivasan said.
It is now left to the court to decide the consequences of the breach of the Kadar rules, Sreenivasan argued.
In reply, Deputy Public Prosecutor Lee Lit Cheng argued that Lim’s conviction was not affected by a “late disclosure” on the part of the prosecution.
“There has clearly been a breach but no misconduct or suppression that has cast doubt on the process,” said the DPP. She added that the prosecutors handling the trial had mistakenly assessed that Edwin’s statement was “neutral”.
“The reason why the DPPs made the wrong assessment, and there was no justification for the mistake, ….The statement does not go towards showing whether Lim was innocent or guilty,” she said.
The prosecution had not attempted to conceal Edwin or his evidence, and had in fact offered him as a witness, said the DPP. The “late disclosure” of the statement also did not cast doubt on the other evidence adduced.
This prompted Sreenivasan to say that there was “no remorse and no repentance” shown by the prosecution.
This was not the case of a late disclosure but a case of non-disclosure, said the lawyer, who accused the prosecution of mischaracterising the act. There could not be a fair outcome in an unfair trial, argued Sreenivasan.
“At the end of the day that is the centre of this appeal, every member of public, every Singaporean who comes into court, will accept any verdict as long as he is satisfied that the rules were followed and nothing improper done. But the moment we say it’s okay to breach the rules…it just means that rules have no meaning,” he said.
Justice Aedit reserved judgement at the end of the hearing and indicated he would likely deliver it early next year.
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