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Accused persons can retract guilty plea during mitigation stage of sentencing without giving reasons: Apex court

In a criminal reference brought by the Public Prosecutor, the Court of Appeal has ruled that accused persons who had pleaded guilty before sentencing, should generally be allowed to retract their plea of guilt at the mitigation stage of sentencing, without the need to provide valid and sufficient reasons for doing so.

This ruling, however, does not apply to an exception where there had been an abuse of the process of the court, said the court on Tuesday (5 March).

The Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Judge of Appeal Steven Chong – would issue detailed grounds for its decision in due course.

The criminal reference arose out of Justice Chua Lee Ming’s decision in October last year, to order a retrial for 31-year-old shipping executive Mr Dinesh s/o Rajantheran.

Mr Dinesh faced 63 charges under the Employment of Foreign Manpower Act, each of which alleged that he had received a sum of $2,000 from a foreign employee as a condition of their employment.

In April last year, Mr Dinesh pleaded guilty to 20 charges and consented to have the remaining 43 charges taken into consideration for the purposes of sentencing. His lawyer then had sought an adjournment from the court for a mitigation plea to be prepared.

Before the hearing resumed in May, Mr Dinesh wished to retract the guilty plea, and instructed Mr Peter Fernando to represent him instead. The district judge, however, refused to allow the guilty plea to be retracted during the resumed hearing.

Mr Fernando then filed a mitigation plea, which listed six grounds disputing the allegations made against Mr Dinesh. The district judge held that such an act amounted to an abuse of court process and refused to reject the guilty plea. Instead, he proceeded to sentence Mr Dinesh to a total fine of $240,000 and a total disgorgement of $40,000.

Mr Dinesh then applied for a criminal revision before the High Court. In allowing the petition, Justice Chua held that the law, namely section 228(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), made it compulsory for the court to reject a guilty plea, even if the contents of the mitigation plea amounted to a retraction of the guilty plea. As such, the district judge was wrong in not rejecting the guilty plea.

The Prosecution then referred two questions of law of public interest for the Court of Appeal’s determination, which were re-framed by the court (changes depicted in italics and strikethrough) at the conclusion of the hearing as follows:

  1. Does s 228(4) of the CPC apply to a case where an accused person seeks to retract qualify his plea of guilt at the mitigation stage of sentencing, to such an extent that it is tantamount to a retraction of his plea of guilt?
  2. Must an accused person seeking to retract qualify his plea of guilt at the mitigation stage of sentencing in the manner as aforesaid satisfy a court that he has valid and sufficient grounds for his retraction before the court can reject his plea of guilt?

During the hearing, Chief Prosecutor Kow Keng Siong had argued that, Justice Chua’s decision would open up the floodgates whereby accused persons are given “a free license” to change their minds as to their guilty pleas. He suggested that the court should make accused persons provide reasons as to why they pleaded guilty at first instance, even though the court did not need to consider them before rejecting a guilty plea.

However, CJ Menon and Justice Chong pointed out that accused persons were entitled to a right of mitigation during sentencing. They further noted that in most of the precedent cases, the accused persons wished to maintain their guilty pleas, even though they were qualified by the contents of their mitigation pleas.

Even in an extreme scenario where there was a potential abuse of court process, Justice Chong was of the view that the Prosecution could invoke other remedies, such as seeking an enhancement of the accused person’s sentence upon his conviction.

After hearing the Prosecution’s arguments for an hour, and without having to hear Mr Fernando in response, the Court of Appeal answered the first question in the affirmative, with the qualification that it did not apply to cases where there had been an abuse of the court processes, and answered the second question in the negative.

This effectively meant that the matter was decided in Mr Dinesh’s favor and that his retrial would proceed.