19 And 20 Judgement And Sentence

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19 – 20 Judgement and Sentence follow all the latest sentencing decisions!!!!! Keep track of latest decisions coming out!!!!!!!!!!!!!!!! Sentencing Jurisdiction • •

no jurisdictional limits for the HC Note distinction between ‘trial’ jurisdiction (s 9(c) CPC) and sentencing powers (s 11 CPC) for DC and MC

District Courts - trial jurisdiction: - General jurisdiction: any offence punishable with impt which does not exceed 10 yrs or with fine only – CPC, s 7(1); also see CPC, s 9(c)(i). - Special (or enhanced) jurisdiction: any offence other than one punishable with death if PP applies for such offence to be tried in district court and accused consents - CPC, s 7(2). – • Offences under the Penal Code: any offence listed to be triable in a district court in the 8th Column of Schedule A of the CPC – s 9(a). See Ramanathan Yogendran v PP [1995] 2 SLR 563.- Interprets s9(a) – • Offences under other laws (other than PC) – see statute itself: if specifically empowered to try under the law – CPC, s 9(b).  If the law is silent, then the district court can try an offence punishable with imprisonment not exceeding 10 years. (go back to general jurisdiction)  MOA, Prevention of Corruption Act District Courts - sentencing jurisdiction: – • Impt up to 7 years per charge: CPC, s 11(3)(a) – • Impt up to 10 years per charge “by reason of any previous conviction or antecedents”: CPC, s 11(3) proviso.  See PP v Pius Louis Gilbert v PP [2003] 3 SLR 418 - the proviso does not allow the district court to impose a sentence beyond the maximum limit prescribed for the offence. – offence under 325 here, max 7, distict gave 6 yrsm, on appeal enhanced to 10 yrs by HC – it went beyond 7 yr punishment for offene and CA held tt this was wrong – • Aggregate impt at one trial cannot exceed14 years: CPC, s 17 proviso – • Fine of up to $10,000 per charge: CPC, s 11(3)(b) – • Caning up to 12 strokes per charge: CPC, s 11(3)(c). – Not to exceed 24 strokes for an adult offender and 10 strokes for a “youthful offender” – CPC, s 230. – General provn overridden if  • If a written law empowers a District Court to award full punishment which exceeds above, the District Court can award full punishment authorised by the law: CPC, section 11(7).  Eg MDA – impt of 20 yrs, for eg – • Any lawful combination of sentences it is authorised by law to pass: CPC, s 11(3)(d), for example, impt and fine, impt and caning.

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Note: cannot have a combination of imprisonment, fine and caning sentence If written law empowers District Court to award full punishment which exceeds above, follow the written law’s enhanced sentencing powers: s 11(7) CPC, eg. MDA, CGHA • Reformative training: CPC, s 11(3)(e) and s 13 (one term for all charges).(for those under 21) • Corrective training: CPC, s 12(1) (1 term for all charges) (for the bad hats) • Preventive detention: CPC s 12(2) (1 term for all charges). • Probation, conditional discharge, absolute discharge: see Probation of Offenders Act (Cap 252). • Forfeiture, disqualification etc

Magistrate’s Court (trial jurisdiction): – • Any offence punishable with impt of not more than 3 yrs or with fine only – CPC, s 8(1)(a); also see s 9(c)(ii). – • Any offence listed in the 8th Column of Schedule A, CPC – s 9(a). – • Any offence under any law it is specifically empowered to try – CPC, s 9(b). – • PP may give written authorisation to a Magistrate’s Court to try a District Court case – CPC, s 10 {But no enlargement of sentencing powers}. Magistrate’s Court - sentencing jurisdiction: – • Impt of not more than 2 years per charge: CPC, s 11(5)(a). – • Aggregate impt – ie multiple charges - at one trial cannot exceed 4 years: CPC, s 17 proviso. – • Fine not exceeding $2,000 per charge: CPC, s 11(5)(b). – • Caning up to 6 strokes per charge: CPC, s 11(5)(c). – • Any lawful combination of sentence it is authorised to pass: CPC, s 11(5)(d). – • May award full punishment authorised by law “by reason of any previous conviction and antecedents”: CPC, s 11(5) proviso. – – – • •

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• If written law empowers Magistrate Court to award full punishment which exceeds above, the Magistrate’s Court may award the full punishment authorised by that law: CPC, s 11(7), e.g.. Betting Act, CGHA etc. • Cannot order reformative training but can call for RTC report and commit accused in custody for sentence to a District Court: CPC, s 13(2) & (5). • Probation, conditional discharge, absolute discharge, forfeiture, disqualification etc Jurisdiction to try offences listed in Schedule A 8th column CPC - s 9(a) CPC & where specifically empowered under written law - s 9(b) CPC Rape cases can be tried in Sub Courts. The appropriate sentence should be the benchmark rather than the Court subject to DC limits. (See Soh Lip Yong [1999] 4 SLR 281) High Court. Section 15(2) of the SCJA: states that the HC may pass any sentence allowed by law.

District Court and Magistrate Court: o Subordinate Court. Section 11(3) & (7) of the CPC.

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o DC can impose imprisonment for a term not exceeding 7 years; fine not exceeding $10,000; caning up to 12 strokes; or any lawful sentence combining any of the sentences which it is authorised by law to pass. o Where it appears that by reason of previous convictions/antecedents, punishment in excess of the above should be warded, the DC can sentence that accused to imprisonment for a term not exceeding 10 years; and it shall then record its reason for doing so. (s 11(3) of CPC) o Where jurisdiction is given to DC to award punishment for any offence in excess of the powers in s 11, the DC and MC can award full punishment authorised by that law, under s 11(7) CPC. o PP can give written authorisation for MC to try DC case, pursuant to S 10 CPC. Note: no enlargement of sentencing powers conferred by s 11(5). o Magistrate Court. Section 11(5) of the CPC. •

Maximum aggregate punishment of imprisonment: 14 years (DC) and 4 years (MC) o MC can impose imprisonment not more than 2 yrs, fine not more than $2000; caning up to 6 strokes; any lawful sentence combining any of the sentences it is authorised by law to pass. S11(5) CPC. o Where appears tt due to accused’s prev convictions, punishment in excess of tt prescribed by s11.5 shld be awarded, magis court can award full punishment prescribed by law for offence of which accused convicted – then record reasons – s11.5 o Pursuant to S 17 CPC, aggregate punishment of imprisonment which can be imposed by a DC or by a MC in a case which it has tired is limited to ‘twice the amount of punishment’ which that court ‘in the exercise of its ordinary jurisdiction is competent to inflict. ‘

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Aggregate punishment of imprisonment: Section 17 of the CPC

Sentence in case of conviction for several offences at one trial. 17. When a person is convicted at one trial of any two or more distinct offences the court may sentence him for such offences to the several punishments prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court directs or to run concurrently if the court so directs, but it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of one single offence, to send the offender for trial before a higher court: Provided that if the case is tried by a District Court or Magistrate’s Court the aggregate punishment of imprisonment shall not exceed twice the amount of punishment, which such Court in the exercise of its ordinary jurisdiction is competent to inflict. (DC = 2x 7 = 14 yrs and MC = 2 x 2 = 4 years) Enlargement of powers of Magistrate’s Court 10. When under section 9 an offence is triable by a District Court but not by a Magistrate’s Court the Public Prosecutor may, nevertheless, if he considers it desirable, by writing under his hand, authorise a Magistrate’s Court in any particular case to try the offence, but that authorisation shall not enlarge the powers conferred on the Magistrate’s Court by section 11 (5).

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Offences under the Penal Code. 9. Subject to the other provisions of this Code — (c) when no court is so mentioned such offence may be tried by the High Court or by any court constituted under this Code: Provided that — (i) no District Court shall try any such offence which is punishable with imprisonment for a term which may exceed 10 years; (ii) no Magistrate’s Court shall try any offence which is punishable with imprisonment for a term which may exceed 3 years. Sentences. 11. —(1) The High Court may pass any sentence authorised by law provided that in no case shall the 3 punishments of imprisonment, fine and caning be inflicted on any person for the same offence. (2) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, the High Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than 3 years commencing immediately after the expiration of the sentence passed on him for the last of those offences. (3) A District Court may pass any of the following sentences: (a) imprisonment for a term not exceeding 7 years; (b) fine not exceeding $10,000; (c) caning up to 12 strokes; (d) any lawful sentence combining any of the sentences which it is authorised by law to pass; (e) reformative training: Provided that where a District Court has convicted any person and it appears that by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed in this subsection should be awarded, then the District Court may sentence that person to imprisonment for a term not exceeding 10 years and shall record its reason for so doing. (4) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, a District Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than 2 years, commencing immediately after the expiration of the sentence passed on him for the last of such offences. (5) A Magistrate’s Court may pass any of the following sentences: (a) imprisonment for a term not exceeding 2 years; (b) fine not exceeding $2,000; (c) caning up to 6 strokes; (d) any lawful sentence combining any of the sentences which it is authorised by law to pass; Provided that where a Magistrate’s Court has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed by this subsection should be awarded, then the Magistrate’s Court may award the full punishment authorised by law for the offence for which that person has been convicted and shall record its reason for so doing. (6) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, a Magistrate’s

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Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than one year commencing immediately after the expiration of the sentence passed on him for the last of such offences. (7) Notwithstanding anything in this Code where by any law for the time being in force jurisdiction is given to a District Court or Magistrate’s Court to award punishment for any offence in excess of the power prescribed by this section for a District Court or Magistrate’s Court respectively the District Court or Magistrate’s Court may award the full punishment authorised by that law. Criminal jurisdiction 15. —(2) The High Court may pass any sentence allowed by law. PP v Soh Lip Yong [1999] 4 SLR 281 - Guy raped a 12 year old. Pleaded guilty. DJ sentenced him to 5 years. Was influenced by the fact that the maximum sentence which he could impose in the District Court was seven years’ imprisonment and 12 strokes of the cane. PP appealed. - Held: o A guilty plea which saved the victim from further embarrassment and suffering would be a mitigating factor to merit a reduction of one-quarter to one-third of the sentence. o Even though the District Court’s sentencing jurisdiction pursuant to s 11(3) of the Criminal Procedure Code was capped at seven years and 12 strokes of the cane, this should not be an additional factor in passing sentence. The appropriate sentence should be determined by the benchmark guidelines relating to the offence itself, rather than the court in which the sentence was passed, subject of course to the district court limits. The respondent’s sentence was enhanced to seven years’ imprisonment and six strokes of the cane by the High Court. • • •

PP v Louis Pius Gilbert: s 11(3) CPC does not enable DC to sentence beyond maximum prescribed for the offence Where the PP gives written authorisation for MC to try a DC case - s 10 CPC [Note: no enlargement of sentencing powers conferred by s 11(5) CPC] Classification as DAC/MAC: a matter of prosecutorial discretion

PP v Louis Pius Gilbert [2003] 3 SLR 418 - Issue: The PP applied for a criminal reference to the Court of Appeal seeking its opinion as to whether the proviso s 11(3) of CPC allowed the district court, and consequently the High Court in the exercise of its appellate jurisdiction, to impose a sentence beyond the maximum limit prescribed for the offence. - Held by CA pursuant to crim reference under s60 SCJA, answering the question in the negative: - While the ordinary jurisdiction of the district court was to try offences which were not punishable with more than ten years’ imprisonment, its powers to impose imprisonment terms was restricted to only seven years. - The proviso was linked to the main provision of s 11 CPC, and there was nothing to indicate that Parliament intended to go beyond that main provision. - Parliament could not have intended the proviso, as currently worded, to allow the district court to disregard the maximum sentence prescribed for an offence, particularly as a repeat

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offender would not in effect be subject to prescribed maximum punishments for second or subsequent offences. A positive answer to the question could give rise to an anomaly. If the same accused were to be tried before the High Court, in its original jurisdiction, the High Court would not have the power to impose an imprisonment term of up to ten years as the proviso only applied to the district court. Nor would the High Court have the inherent jurisdiction to do so since that jurisdiction could not be invoked to alter substantive law. S.11(3) does not allow a district court to impose a sentence beyond the maximum prescribed for the offence While the ordinary jurisdiction of the district court was to try offences which were not punishable with more than ten years’ imprisonment, its powers to impose imprisonment terms was restricted to only seven years The proviso did not expressly state that the offender could be punished beyond the penalty prescribed. Section 41 of the Interpretation Act specified that a court could only impose the punishment for the offence prescribed by law and nothing more, unless it was expressly provided for. Very clear words were also necessary to override the fundamental tenet of criminal justice that an offender could not be punished with more than the maximum penalty prescribed by the offence provision. The wording between the proviso and the s 11(5) proviso of the CPC was different but the object was the same. It was to enhance the court’s sentencing jurisdiction, and not to enhance the punishment for the offence. Furthermore, where penal provisions were framed in wide and ambiguous language and there were two possible meanings, the court should adopt the more lenient one.

DJ sitting as a Magistrate • DC in MAC case would have the sentencing powers of a Magistrate. (See Nyu Tiong Lam [1996] 1 SLR 271) • PP v Nyu Tiong Lam: DJ is ex officio a Magistrate (s 9(5) Sub Courts Act) and exercises a Magistrate’s powers only in a MAC case  Discretion to classify offences for purpose of proseuciton was exercised by DPP’s office and police.  A district judge who hears a case classified as a ‘Magistrate’s Arrest Case sits in his capacity as a magistrate … sentencing powers are limited to the powers of a magistrate’  The discretion to classify offences for the purpose of prosecution was exercised by the DPP’s office and by the police  It could not be that the accused should then face the prospect of a sentence which exceeded a magistrate’s court’s ordinary sentencing jurisdiction • A DJ who hears a case classified as a Magistrate’s Arrest Case (MAC) sits in his capacity as a magistrate; sentencing powers limited to powers of a magistrate. (PP v Nyu Tiong Lam [1996] 1 SLR 271). So district judge who hears MAC case no power to order preventive detention – error made at first instance in Kothandapany v PP and Perumal Karanan v PP – 1995 unreported. • •

The procedures can be important. In a capital charge (e.g. murder), PI will have to be conducted. Presently, an Assistant Registrar will do (wearing a Magistrate’s hat) District Court has no power/jurisdiction to acquit accused for offence triable only by the High Court (See Yen Ching Yan [1998] 3 SLR 430)

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Note MAC1 / DAC – a District judge hearing an MAC, only assumes the jurisdiction and sentencing powers of a Magistrate. (See Nyu Tiong Lam [1996] 1 SLR 273 (cf: CT and PD possible for MAC charges : Meyanathan s/o Appavoo MA 257/1996)

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Mode of Delivering Judgement o

pronounced in open Court: Section 212 of the CPC, in presence of the accused except with dispensation & fine (Also note Section 137 of the CPC)

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Dispensation of presence - s 212(2) CPC; s 137(2) CPC - Ref: PP v Sinsar Trading Pte Ltd [2004] 3 SLR 240 - PG by letter for offence under s 22(1) EPCA (Cap 94A) wrongly accepted as offence punishable with 2 years’ maximum impt or $50,000 fine or both – under 137.2 CPC, accusd person may plead guilty by way of letter…. • But under 137.5 if court intends to pass sentence of imprisonment without option of fine, shall direct and enforce personal attendance of accused

Mode of delivering judgment. 212. —(1) The judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court either immediately or at some subsequent time of which due notice shall be given to the parties or their advocates. (2) The accused shall, if in custody, be brought up or, if not in custody, shall be required to attend to hear judgment delivered except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only. (3) In the case of trials in any criminal court, if it appears to the court expedient, the court instead of pronouncing judgment may direct that the accused shall be released on his entering into a bond with or without sureties, and during such period as the court directs to appear and receive judgment, if and when called upon, and in the meantime to keep the peace and be of good behaviour. Personal attendance of accused may be dispensed with. 137 (2) In any case relating to an offence punishable by fine or by imprisonment not exceeding 3 months or by both and in which a Magistrate has issued a summons, an accused person desiring to plead guilty and be convicted and sentenced in his absence may appear by advocate, or may by letter addressed to the court plead guilty and submit to pay any fine which may be imposed in respect of that offence, and the court may thereupon record a plea of guilty and convict him according to law, and may sentence him to a fine with or without a sentence of imprisonment in default of payment of the fine. Judgement Not To Be Altered – functus officio •

Generally court is functus officio once judgment pronounced

PP v Oh Hu Sung [2003] 4 SLR 541 - Issue: application for criminal revision, to set aside the second order in favour of the original conviction and sentence. - Held, allowing the application and reinstating the order for conviction and three months’ imprisonment: 1

Magistrate’s Arrest Case

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(1) A judge is generally functus officio after sentence is pronounced. Section 217(1) of the CPC lays down the general prohibition against the alteration of judgments, while s 217(2) is an excepting proviso prescribing the limited circumstances in which the subordinate courts can alter or review their judgments. Therefore, the district judge was functus officio after he made the first order, unless s 217(2) applied. o (2) “Mistake” in s 217(2) is construed expansively. It includes not only mistakes by the court, but also unilateral mistakes by the parties. It covers errors of law and errors of fact. However, s 217(2) does not contemplate a court hearing and deciding a disputed issue as to whether a mistake was made; it should apply only if the mistake was obvious to the court or admitted by all parties. o (3) There was no obvious mistake here. The respondent understood the nature and consequences of his plea, and admitted to the statement of facts without qualification. He did not produce any evidence to substantiate his claim that he was induced to plead guilty by the police officers. There was also nothing to support his assertion that he had objections which the Korean interpreter did not convey to the district judge. As s 217(2) was not applicable here, the district judge was functus officio at the time he made the second order. Therefore, the order for conviction should be reinstated. o

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Exception: s 217(2) CPC allows alteration of judgment in limited circumstances - no court other than HC when it has recorded judgment shall alter or review the judgement. (applies esp to sub courts) o Error must be one termed as ‘clinical error’ o Rationale – vol of cases in sub courts o But must be done before court rises for the day o • Errors can be rectified before the court rises for the day. If the Court has exceeded its jurisdiction, please notify the Court so that the case can be rementioned before the end of the day to correct the mistake: see CPC, s 217(2).  Otherwise crim revision to be filed Judgment not to be altered. 217. —(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the judgment. (2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before the court rises for the day.

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“Rise for the day” - When the court ceases to sit for business. - In practical terms, this means, when the working day for court has ended. - Even if a judge has retired into chambers after hearing, the court will not yet have effectively ceased its business for the day because the judge could still have convened a hearing if necessary. (See Chiaw Wai Onn)

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broad view taken of High Court’s powers to alter or review judgment:

Wong Hong Toy v PP [1994] 2 SLR 396

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Main issue for determination before the Court of Criminal Appeal was whether it had jurisdiction to hear the appeal and the criminal motions. Wong and JBJ case sent back to district court to be dealt with new district judge. 3 mths impriosnmetn imposed, on appeal, justice Lai who head appeal varied sentence and altered it to 10,000 fine and imposed imprisonment term of one mth. Done ard 2.30pm. after tt parties went away, DPP discovered tt sentencing provisions for DC at time offence committed carried max of only 5000. this meant tt appellate court cld not alter the sentence to one of 10,000 fine since abo ve juris limits of DC. So they tried to get parites altogether to go before appellate judge again but only managed to get counsel representg to go before judge. Both accused did not turn up. Judge then altered the fine from 10,000 to 5000. Held: o (1) A plain reading of s 216 of the CPC showed that the High Court could alter or review its judgment. It was necessary for the judge to do so to correct a mistake as to the maximum fine that could be imposed. Cases that held a court to be functus officio immediately after sentencing were inapplicable in the present case. No reason to comple a restrictive interpretation of sn since this was superior court of record which is also highest court of trial in sg for crim cases o (2) There was no impropriety in the alteration being made in chambers and in the appellants’ absence. The appellants’ counsel were present with the deputy public prosecutors. The fact that the amendment was done in chambers was not objectionable per se. The important consideration was whether the appellants or their counsel were present. Moreover, the alteration in the sentence resulted in the fine being reduced. There was no detriment or prejudice to either of the appellants. => HC can alter judgement any timein crim trial even after decision Note – CJ in *Chiaw pted out that this wld =mean tt HC wld never be functus officio and wld strike at very core of principle of finality Chiaw Wai Onn v PP: when the court ‘rises for the day’ – when court ceases to sit for business ie when workgin day for court has ended. Even if judge retired into chambes, court x ceased businss for day because judge cld still have conened hearing if nec o Always be vigilant – otherwise cannot save apart fr crim rvision

Chiaw Wai Onn v PP [1997] 3 SLR 445 • The appellant Chiaw was charged and convicted in the court below for abetting one Poon in disposing of 640 pieces of Hewlett Packard computers valued at $1,855,072 by providing the latter with cash to acquire the stolen computers. Chiaw’s main defence was that he did not know that his ‘loan’ to Poon was used to buy stolen goods. He also claimed that his presence on the day of the theft was fortuitous as he had offered to fetch Poon around because the latter’s car had broken down, and that the excess $60,000 which he received was to discharge an earlier debt which Poon owed him. The district court sentenced Chiaw to 12 months’ imprisonment. On appeal, his sentence was initially enhanced to a fine of $80,000 but was immediately revoked the same afternoon because the High Court exceeded its jurisdictional limit. The sentence was then substituted by a sentence of six months’ imprisonment. • Held, dismissing the appeal: (HLP – only the relevant headnotes have been included) o (1) The rules on whether the High Court in its criminal appellate capacity could alter the judgment, including sentence of a subordinate court, were set out in s 217 of the Criminal Procedure Code (Cap 68) (CPC). Section 217 did not attempt any substantive enactment with regard to the High Court. As such, s 217(1) laid down a general prohibition against alteration of judgments by the subordinate courts. Section 217(2) was an excepting proviso to this prohibition by prescribing the

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limited circumstances as to when the subordinate courts could alter or review their judgments. The entire section did not apply to the High Court at all. o (4) In s 217(2), ‘any other mistakes’ meant more than clerical mistakes. In practical terms, the phrase ‘rises for the day’ in s 217(2) meant when the working day for the court had ended. This purposive construction afforded the judge a realistic opportunity to know of and correct any non-clerical mistake in the judgment without unduly offending the principle of finality. The limited time period within which a non-clerical mistake might be rectified ensured that the accused would not have suffered any real detriment. For the sake of prudence, the accused or his counsel should be present to avoid any allegation of prejudice or impropriety. - Note sentencer cannot CHANGE the sentence. It must be altering a clinical error only, not changing the sentence imposed earlier! - Eg – court omitted to impose caning when sentencing juris allows this. Can accused be brought back for judge to impose caning? o (5) The High Court in its appellate jurisdiction must necessarily have whatever powers the lower courts possessed. The powers conferred on the lower courts by s 217 must, by implication, have also been available to the High Court in its appellate capacity. As such, this court had the requisite power to alter Chiaw’s sentence even though it was a substantive mistake, because it had not arisen for the day when the rectification was made. o (6) Even if the above view was wrong, the court was still empowered to substitute a six-month imprisonment term for a $80,000 fine. Since the court was not functus officio, it could alter the sentence. No real detriment or prejudice would have occurred in this case. •

A court is normally functus officio of a case after sentence has been passed and it will have no power to alter judgements unless Section 217 applies. The sentence kicks in once sentence is passed. (See Ganesun s/o Kannan [1996] 3 SLR 560)

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Subordinate courts do not have powers to alter its judgement except if provided by Section 217(2) of the CPC. (See Chiaw Wai Onn [1997] 3 SLR 445)

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Section 217 is not substantive enactment in respect of the High Court; however, the contents of Section 217 are nevertheless relevant to the High Court when it is sitting in its appellate capacity. (See Chiaw Wai Onn also)

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Rectifications by the Subordinate Court may go beyond mere accidental slips and omissions, if they are done before the court rises for the day. Deferment of sentence not a “judgement”, and hence not subject to restriction.

Lim Teck Leng Roland v PP [2001] 4 SLR 61 - The issues before the court were – (a) whether it could lawfully alter the order, (b) whether the order fell within the definition of ‘judgment’, and (c) when and in what circumstances it would consider granting a further deferment of commencement of sentence. - Held, dismissing the motion: - The phrase ‘other than the High Court’ in s 217(1) of the Criminal Procedure Code (Cap 68) suggested that the High Court could alter or review its judgment. However, to regard so meant that it would never be functus officio, ie, having performed its duty and thus without further authority or legal competence, as theoretically there was nothing to prevent further judgments from supplementing an earlier one. This went against the legal principle that when

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a court was functus officio, and in the absence of a direct statutory provision, it could not entertain a fresh prayer for the same relief unless the previous order of final disposal was set aside. Although not defined in the Criminal Procedure Code, ‘judgment’ could be defined as that which finally acquitted or convicted the accused. Hence, the order could not be not regarded as a ‘judgment’, and the court had the power to review it. As different conditions and circumstances could necessitate or justify an order granting further deferment of commencement of sentence, it was impossible as such to lay down clear-cut guidelines as to when and how the High Court would exercise its discretion in making such an order. However, an applicant bore the burden of proving that the circumstances and conditions were serious or urgent so as to warrant the exercise of the court’s discretion in his favour. Ultimately, the court would be guided by the interests of justice, and it had to ensure that its discretion was not abused by frivolous requests from the applicant. Per Curiam o Section 217(1) laid down a general prohibition against alteration of judgments by the subordinate courts. Section 217(2) prescribed the limited circumstances in which the subordinate courts could alter or review its judgments and was an exception to the general prohibition. Rectifications could go beyond mere accidental slips and omissions provided it was corrected before the working day of the court ended. The High Court, in its appellate capacity, possessed the same power by implication

Public Prosecutor v Lee Wei Zheng Winston [2002] 4 SLR 33 - Facts - The respondent (“Lee”) was convicted of an offence under s 148 read with s 149 of the Penal Code (Cap 224) (the “PC”). Another court had sentenced Lee’s accomplices to 30 months’ imprisonment and six strokes of the cane for the same offence. Taking this and the principle of parity of sentencing into account, the judge likewise sentenced Lee (“the original sentence”). - Before the court rose for the day, the judge was erroneously informed that one of the accomplices was sentenced to 30 months’ imprisonment and three strokes of the cane; however, this was actually on a reduced charge under s 147 of the PC. As such, the judge reduced Lee’s sentence of caning to three strokes. - On later learning the truth, the judge applied to the High Court to exercise its revisionary powers pursuant to s 268 of the Criminal Procedure Code (Cap 68) (the “CPC”), and sought to have the amendment to the original sentence set aside and for the reinstatement of the original sentence. However, as Lee had already been caned, the DPP submitted that he could not be caned again. - Held, allowing the application: o (1) The district judge had no power under s 217 of the CPC to alter the original sentence of caning because there was no mistake in it as the accomplice was sentenced under a different, and reduced, charge. o (2) While the court’s revisionary powers, which included the power under s 256(b)(iii) of the CPC to alter the sentence, were to be exercised sparingly, the present case had sufficient injustice to warrant its exercise. First, the reduction of the sentence was contrary to law. Second, the amended sentence was not commensurate with Lee’s culpability and violated the principle of parity, which provided that the sentences passed on two or more offenders for the same offence should be the same unless there was a relevant difference in their responsibility or personal circumstances. In this regard, it was grossly unfair that Lee, who was

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similarly involved in the offence with his accomplices who were similarly charged, received a lighter sentence than them. o (3) First, to order Lee to receive a further three strokes was tantamount to the infliction of caning in instalments, which violated s 231 of the CPC and reg 98(3) of the Prisons Regulations. However, the court stressed that this was strictly confined to situations where caning had already been executed, and did not restrict the court’s power to enhance a sentence of caning once it had been passed. o (4) If the DPP had not applied only to reinstate the original sentence, the court would have sentenced Lee to an appropriate jail term, in addition to the 30 months imposed, in lieu of the three strokes of the cane. This would redress the injustice caused by the alteration without violating s 231 of the CPC. In the result, the application was granted, and the original sentence was reinstated but without the further infliction of caning. Public Prosecutor v Oh Hu Sung [2003] 4 SLR 541 - Facts - The respondent, a Korean national, was charged in the subordinate courts under s 323 of the Penal Code (Cap 224), for voluntarily causing hurt by stepping on and fracturing the wrist of a Bangladeshi national who worked for him. The charge was read to him by the Korean interpreter, and he pleaded guilty and indicated that he was aware of the consequences of his plea. He admitted to the statement of facts read out to him without qualification. He was subsequently convicted and sentenced to three months’ imprisonment (“the first order”). About two hours later, his counsel informed the district judge that he was applying for the plea to be rejected under s 217(2) of the Criminal Procedure Code (Cap 68) (“CPC”), as the respondent had pleaded guilty by mistake, thinking that he would only get a fine. He had also apparently tried to raise objections to parts of the statement of facts before his case was mentioned. The district judge then rejected the plea of guilt, fixed the matter for mention and fixed bail (“the second order”). However, the district judge later took the view that he had been functus officio after sentence was pronounced, and therefore had no power to make the second order. He brought an application for criminal revision, to set aside the second order in favour of the original conviction and sentence. - Held, allowing the application and reinstating the order for conviction and three months’ imprisonment: o (1) A judge is generally functus officio after sentence is pronounced. Section 217(1) of the CPC lays down the general prohibition against the alteration of judgments, while s 217(2) is an excepting proviso prescribing the limited circumstances in which the subordinate courts can alter or review their judgments. Therefore, the district judge was functus officio after he made the first order, unless s 217(2) applied: at [13] to [21]. o (2) “Mistake” in s 217(2) is construed expansively. It includes not only mistakes by the court, but also unilateral mistakes by the parties. It covers errors of law and errors of fact. However, s 217(2) does not contemplate a court hearing and deciding a disputed issue as to whether a mistake was made; it should apply only if the mistake was obvious to the court or admitted by all parties: at [25] to [28]. o (3) There was no obvious mistake here. The respondent understood the nature and consequences of his plea, and admitted to the statement of facts without qualification. He did not produce any evidence to substantiate his claim that he was induced to plead guilty by the police officers. There was also nothing to support his assertion that he had objections which the Korean interpreter did not convey to the district judge. As s 217(2) was not applicable here, the district judge was functus officio at

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the time he made the second order. Therefore, the order for conviction should be reinstated: at [29] to [36]. o (4) The victim’s injuries were serious, and a major aggravating factor was the fact that the victim had been a foreign worker under the respondent’s charge. Therefore, the district judge’s first order sentencing the respondent to three months’ imprisonment was entirely appropriate on the facts, and should also be reinstated: at [37] to [42]. Chuah Gin Synn v Public Prosecutor [2003] 2 SLR 179 - Facts - The appellant pleaded guilty to one charge of theft, under s 379 of the Penal Code (Cap 224, 1985 Rev Ed), of several items, with a total value of $259.70. She was sentenced to two weeks of imprisonment by a magistrate. She appealed against the sentence, arguing that it was manifestly excessive. - Held, allowing the appeal: o (1) The sentence was not manifestly excessive. However, some measure of clemency could be exercised towards the appellant given that she had not appreciated the importance of raising her personal circumstances of depression during the sentencing. It was not unheard of to impose a suitably high fine in lieu of imprisonment in shoplifting cases: at [10]. o (2) An error had been made by imposing a fine of $5,000, in default two weeks of imprisonment, as the appellant had been tried in a magistrate’s court, where the jurisdictional limit was $2,000. This was corrected, pursuant to s 217 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), by reducing the fine to $2,000, in default two weeks of imprisonment: at [12] to [14]. Explaining the Judgement o To be explained to the accused. (Section 218 of the CPC) Judgment to be explained to accused and copy supplied. 218. The judgment shall be explained to the accused and, on his application, a copy of the judgment or, when he so desires, a translation in his own language, if practicable, shall be given to him without delay. o High Court can provide brief outlines of judgement. It can furnish the Grounds of Decision (GD) later. Section 46(1) of the SCJA does not conflict with Section 218 of the CPC. o In Goh Lai Wak v PP [1994] 1 SLR 748, the CA held that a judge may not supplement his reasons for convicting if he already indicated them earlier. o s 46(1) of SCJA means that if a trial judge has delivered a prior judgment at the conclusion of the trial which contained his reasons for convicting the accused, the judge cannot subsequently give his grounds of decision. CA felt that their interpretation of s46(1) did not conflict with s 218 CPC because there was ‘no objection’ to a trial judge providing ‘briefly’ an outline of the issues before him and the evidence, and indicating ‘without reasons’ his finding on the issues. o In this case trial judge only prov an oral summary of evid adduced at the trial. This did not amt to him giving reason or grds for convicting goh. As such, judge not precluded fr writing his grds of decision.

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Section 46(1) of the SCJA Record of proceedings 46. —(1) When a notice of appeal has been filed, the trial Judge shall, if he has not already written his judgment, record in writing the grounds of his decision, and such written judgment or grounds of decision shall form part of the record of the proceedings. o The convention in the Subordinate Court is that written judgement ought not contain reasoning that clashes with previous oral grounds. o Practice is that it usually gives a brief structure and broad reasoning. o Sub courts act does not contain provision identical to s46.1 SCJA Sentencing Philosophy of the Courts i)

Public Interest

Read the latest decisions in HC – VK Rajah J – balance public interest in tt case with sim gek yong and tan fook sum • •

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Overall purpose - crime reduction and protection of the community Sim Gek Yong v PP/Tan Fook Sum v PP - public interest dictates the type of sentence while aggravating and mitigating circumstances affect only the duration and severity of the sentence – any sentence must enable crim law to punish crime effectively AND prevent it - Sim gek yong: Public interest  Element of public interest to be considered before deciding whether to give a discount  Need to protect the public may outweigh any mitigating effect to be attached to an accused’s guilty plea or voluntary surrender  Identify a range of conduct which characterizes the most serious instances of the offence in question - Tan fook sum Consider public interest to the type of sentence to be imposed  “sentence according to law” meant that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed according to established judicial principles. The latter required the court to balance the diverse and competing policy considerations, viz retribution, deterrence and public interest.  Only the public interest should affect the type of sentence to be imposed while aggravating or mitigating circumstances affect the duration or severity of the sentence imposed. The four pillars of sentencing (See Chua Tiong Tiong v PP [2001] 3 SLR 425) - Retribution - Deterrence - Prevention - Rehabilitation - Read case and see how sentencing principles operate - 4 elements work in diff combi depending on circumstances prevailing.

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Ong Tiong Poh v Public Prosecutor [1998] 2 SLR 853 - Sentence - 28 The maximum term of imprisonment under s 420 is seven years; the same punishment is prescribed for the charges for abetment by conspiracy under s 109. It may be noted that the other 58 charges which were stood down at the start of the appellant’s trial below were not taken into consideration for sentencing; the prosecution asked for mention dates for these charges at the end of the trial. As stated above, the district judge sentenced the appellant to eight months’ imprisonment for each of the two cheating charges and fourteen months for each of the abetment charges. The sentences for three of the abetment charges were ordered to run consecutively and concurrently with the other seven sentences, for a total of 42 months’ imprisonment. - 29 The judge gave two main reasons for the appellant’s light sentence: his age of 21, and the similar sentences of between two to three years’ imprisonment imposed on his accomplices. I did not think the second reason was valid. His accomplices pleaded guilty. Moreover, the appellant played a more important role in the credit card operation than the accomplices; as already stated, the judge found that he recruited some accomplices and sent them for training, distributed the counterfeit cards, gave instructions on purchases, took delivery of the goods and paid commissions. - 30 In my view, the sentences imposed by the district judge did not properly reflect the seriousness of the appellant’s offences and were manifestly inadequate. The appellant appeared to be part of a sophisticated syndicate, capable of committing credit card fraud on a large scale and skilled at avoiding detection; this had to be taken into account in sentencing. I therefore enhanced the appellant’s sentences for the two cheating charges to 12 months’ imprisonment for each charge. For the eight abetment charges, I enhanced the sentences to 20 months’ imprisonment for each charge; three of these sentences were to run consecutively while the remaining sentences were to run concurrently, making a total of 60 months’ imprisonment. If not for the appellant’s young age, the sentences would have been more severe. - Appeal dismissed; sentences enhanced. • •

The sentencing process ultimately involved striking a balance between the public interest and the interest of the offender, A sentencing court should consider the public interest in relation to the type of sentence to be imposed, whereas only aggravating / mitigating circumstances should affect the duration /severity of the sentence. (See PP v Tan Fook Sum [1999] 2 SLR 523)

Public Prosecutor v Ng Tai Tee Janet and Another [2001] - Held, allowing the appeal: - (1) In assessing the appropriate sentence to impose, the general principle was that only the public interest affects the type of sentence to be imposed whereas only aggravating or mitigating circumstances affect the duration or severity of the sentence imposed. - (2) The considerations of public interest made a custodial sentence warranted for all offences of the present nature. In the light of domestic and global efforts to combat organised illegal migration, the offence was particularly grave as it assisted the illegal immigrant in circumventing Singapore’s strict immigration laws. Furthermore, custodial sentences had been imposed in previous cases involving offences of similar nature; Thus, the present offences called for a deterrent sentence and a fine would not be appropriate. The fact that the respondents were first offenders and had pleaded guilty were, at best, neutral factors.

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(3) A deterrent sentence was granted entirely within the court’s discretion and the prosecution was not required in law to apply for deterrence before a court may consider it in the exercise of its discretion. (4) The “clang of the prison gates” principle did not apply to the respondents in the present case. The facts here were not so exceptional or extenuating as to justify invoking this principle. Thus, the district judge erred in holding that the nine days spent in remand would have served as a sufficient deterrent. (5) Taken in totality, the respondents played a fairly active role in the entire scheme even though they were not the mastermind. There was sufficient evidence for the court to infer that they had colluded with the activities of an organised criminal syndicate, which was an aggravating factor to be considered when determining the duration of the sentence. (6) In determining the appropriate sentence, the court was not inclined to be fettered by the sentence imposed on the accomplice. Although consistency in sentencing was a desirable goal, it was not an overriding consideration since the sentences in similar cases might have been either too high or too low. Accordingly, the sentences were enhanced and each respondent was sentenced to one month’s imprisonment in view of the need for general deterrence, although the fine imposed was reduced to $2,000 for each respondent.

Public Prosecutor v Cheong Hock Lai and Other Appeals [2004] 3 SLR 203 - Facts - The three respondents were employees of a company that provided fund management services. They were convicted in the District Court on one charge each of engaging in a practice which operated as a deceit, an offence under s 102(b) of the Securities Industry Act (Cap 289, 1985 Rev Ed) (“the SIA”) and punishable under s 104 of the same. The respondents each had other charges under s 102(b) of the SIA and s 201(b) of the Securities and Futures Act (Cap 289, 2002 Rev Ed) taken into consideration for the purpose of sentencing. The district judge sentenced the respondents to pay fines of $100,000, $50,000 and $30,000 respectively. The Prosecution appealed against sentence. - On appeal, the Prosecution argued that the sentence imposed was manifestly inadequate in light of the district judge’s misplaced reliance on other market misconduct cases as sentencing precedents, and his failure to appreciate that the present facts called for a deterrent sentence in the form of a custodial term. - Held, dismissing the appeal: o (1) The Prosecution argued that the present case was distinguishable from other market misconduct cases because this case involved CPF-approved unit trusts. However, the important distinguishing factor was not the nature of the funds, but the fact that the respondents had traded on their own accounts at all material times. Also, in the absence of direct precedent, it was eminently reasonable of the district judge to refer to those cases: at [30]. o (2) A deterrent sentence need not always take the form of a custodial term. The fines imposed by the district judge amply served the twin aims of specific and general deterrence •

An important requirement of public interest is the protection of the public from recalcitrant offenders. (See Tan Ngin Hai v PP [2001] 3 SLR 161)

Public Prosecutor v Perumal s/o Suppiah [2000] 3 SLR 308 - Held, allowing the appeal: - (1) A review of the previous and current convictions showed the respondent’s increasing propensity for violence. Taking all the circumstances into account, the respondent’s criminal

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history and his obvious lack of remorse, he was clearly a man of violence and a ‘menace to society’ for which preventive detention was a fitting punishment. (2) It was settled law that hardship caused to the offender’s family as a result of the imprisonment of the offender had little mitigating value save in very exceptional or extreme circumstances. This was an unavoidable consequence occasioned by the offender’s own criminal conduct and could not affect what would otherwise be the right sentence. The present circumstances were not so exceptional as to warrant a reduction in the appropriate sentence. (3) The district judge erred in considering the length of the imprisonment sentence previously imposed on the respondent. The criteria for the imposition of preventive detention, as set out in s 12(2) of the Criminal Procedure Code (“CPC”), did not stipulate a minimum term for an offender’s previous sentences and did not require the previous sentences to correspond to the minimum period of preventive detention. It should be borne in mind that a different sentencing framework had been provided for imprisonment and preventive detention. Any comparison between the sentences previously imposed on the offender and the minimum period of preventive detention was misconceived and constituted a misreading of the law and objective of preventive detention. (4) Once the criteria set out in s 12(2)(a) or s 12(2)(b) of the CPC were met and the court was satisfied that the offender posed such a danger to the public that it was expedient to detain him in custody for a substantial period of time, the court must sentence him to preventive detention unless there were special reasons which made preventive detention unsuitable. Thus, the district judge erred in holding that he retained the discretion not to impose preventive detention and that the protective purpose of preventive detention could be met by a substantial term of imprisonment once the threshold was met. (5) When determining whether to impose a sentence of preventive detention, the enquiry should simply focus on the danger which the offender posed to the community at large. Whether he should be incarcerated under the regime of imprisonment or preventive detention was not the subject of the enquiry at this stage. Correspondingly, it followed that the prospect of remission was also not a relevant consideration. Per curiam: o Even if preventive detention had not been suitable for the respondent in the present case, the court would have increased the sentences of imprisonment imposed as the aggregate sentence of seven years was manifestly inadequate. In view of the respondent’s criminal history, the proviso to s 11(3) CPC could be applied that would permit the court to sentence the respondent to imprisonment for a term longer than the normal district court jurisdictional limit of seven years, at least insofar as it related to the current offence of voluntarily causing hurt with a dangerous weapon. Furthermore, as the respondent was convicted of two distinct charges, the proviso to s 17 CPC enabled the court to award an aggregate imprisonment term of up to twice the ordinary jurisdictional competence of the court. Consistency in Sentencing

What Is The “Consistency “Consistency Principle”/ Principle”/ Sentencing Parity? Parity? • It is desirable (See Mohd Shahrin bin Shwi [1996] 3 SLR 553) • But no fetters binding the court. (See Ng Tai Tee Janet [2001] 1 SLR 343) • Setencns imposed prev may be too high or too low: • •

Sentencing parity and consistency is desirable but not overriding or inflexible Past cases may help as guidelines but each case must be determined on its own facts

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Relevant considerations include whether there is any difference in the respective offenders’ culpability or in their personal circumstances, or whether previous sentences were too high or too low - No 2 cases will ever be completely identical Yong Siew Soon v PP [1992] 2 SLR 933 o Court is not bound to pass sentences that are consistent with those imposed on accomplices who have been dealt with earlier

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wang kim hock v PP 2003 1 SLR 410 o No 2 cases will ever be completely identical o The process of sentencing is a matter of law that involves manifold factors such that no two cases would ever be totally identical for the purposes of sentencing. o Thus, while past cases are clearly helpful in providing guidelines for the court … they are, mere guidelines. o In sentencing the offender, the court must look to each case on its unique facts.

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No two cases can ever be completely identical? – Soong Hee Sin v PP - not duty of district judge to educate appellant of manifold factors tt play a part in ex of sentencing discretion. o A judge would be hard placed to discharge his role as an independent and unbiased adjudicator if he had to proffer or extend his own legal advice to either of the parties before the court. o Each case must be determined on its own facts o Court not bound to undertake precise quantitative analysis of sentences imposed in other cases involving similar or related offences snce cases x identical in terms of factors tt arise for court’s consideration.

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Mohd shahrin bin shwi v PP 1996 3 SLR 553 o Consistency in sentencing is a deisrable objective .. Not an overiding or inflexible principle o All that was necessary was evidence of common intention which existed among them to cause hurt … It follows that each officer would be liable ‘in the same manner as if the act were done by him alone’: s 34 Penal Code. o The mere fact of claiming trial is not an aggravating factor

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Yong siew soon v PP 1992 2 SLR 933 – o When few accusd persons charged for same offence, may be no of accomplices for partr offence. And they may be dealt with at diff pts in time, investigated at diff pts in time and produced in court at diff times. Some may have crim backgrds, some may not. When sentencer decides on what sentences to impose, how does he assess sentence given the fact tt he has to berar in mind parity in sentencing? Does he follow sentence imposed on another accused in same offence? Can he depart and when does he do so? o Court is not bound to pass sentences that are consistent with those imposed on accomplices who have been dealt with earlier

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The ‘clang of prison gates’ principle should not be overstated … It merely contemplates a short prison sentence as being appropriate in certain circumstances, and its correct application must depend on the facts of each case o … I see no reason why the learned district judge should have considered … a sentence imposed by another court, which was drawn to his attention, and which he rightly regarded as inadequate… .’ o … ‘I am of the view that the mere fact that another offender had been lucky to have received a relatively lenient sentence did not mean that all others who committed similar offences were entitled to lenient sentences.’ o

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Court’s approach has been that for consistency, similar sentence to be imposed on co accused. Goh moh sia and yong siew soon make clear – that this is no longer true.

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Amer Hamzah bin Berang Kutty v PP/Lim Thiam Hor– main perpetrators cf. ‘followers’, ‘lookouts’ or ‘bystanders’ S Balakrishnan & anor v PP (‘commando dunking’ case) – different degrees of culpability ‘Benchmark’, ‘tariff’ or ‘guideline’ sentence – Abu Syeed Chowdhury v PP/Dinesh Singh Bhatia v PP - ‘A ‘benchmark’ is a sentencing norm prevailing on the mind of every judge, ensuring consistency and therefore fairness in a criminal justice system. It is not cast in stone, not does it represent an abdication of the judicial prerogative to tailor criminal sanctions to the individual offender’ - ‘It instead provides the focal point against which sentences in subsequent cases, with differing degrees of criminal culpability, can be accurately determined’ When is a sentence ‘manifestly excessive’ or ‘manifestly inadequate’? – PP v Siew Boon Loong: requires substantial alteration and not minute correction

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Gan Hock Keong Winston v Public Prosecutor [2002] 4 SLR 299 - Gan’s sentence was not manifestly excessive, and the appeal against sentence was also dismissed. An appellate court would not interfere with the sentence passed below unless there was some error of fact or principle, or the sentence was manifestly excessive or inadequate. Gan’s prior convictions under the EFWA were taken into account, and that he made no financial gain from his actions carried little mitigating value. - Appeal against sentence - 26 The appellant had also appealed against the sentence imposed by the district judge. He relied on the case of Choy Tuck Sum v PP [2000] 4 SLR 665, where the accused was tried and convicted of abetment for the same offence under s 5(1) of the EFWA. The accused in that case was sentenced to one month’s imprisonment and fined $7,920. On the authority of this case, the appellant argued that his sentence of two months was manifestly excessive. - 27 Before I turn to Choy Tuck Sum, I wish to emphasise that sentencing in criminal cases is not a scientific procedure. One cannot simply look at the sentence passed in a previous case, and then conclude that the identical sentence should be passed in another case with similar facts. If sentencing were to be reduced to such a mathematical exercise, then this would severely hamper the trial judge’s fundamental discretion to pass sentences in accordance with all the factors of a particular case. - 28 I turn now to consider Choy Tuck Sum. In that case, the accused was a sole proprietor in the construction trade and had supplied one of his 13 workers to work as a cleaner in another premises. The appellant argued that he was less culpable than the accused in Choy Tuck Sum’s case on the ground that he was not subcontracting his worker to Tan. The appellant

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also claimed that the district judge failed to take into account the fact that he made no financial gain from his actions in the present case. 29 It is settled law that an appellate court will not generally interfere with the sentence passed below unless there was some error of fact or principle, or the sentence was manifestly excessive or inadequate. This was clearly stated in PP v Mohamed Noor bin Abdul Majeed [2000] 3 SLR 17. 30 I did not find the two months’ imprisonment imposed by the district judge to be manifestly excessive. The district judge explained that the appellant was not any less culpable than the accused in Choy Tuck Sum’s case. While the accused in Choy Tuck Sum only had one previous conviction under the EFWA, the appellant had two fairly recent convictions under the EFWA. The appellant’s punishment was thus appropriately higher than that meted out in Choy Tuck Sum’s case. Moreover, I found no merit in the appellant’s argument that he had made no financial gain from his actions. After all, the district judge held that the appellant had knowingly entered into the arrangement with Tan and Yap because it had suited him not to pay Yap’s wages during that two-week period, as business was bad. In any case, it was clear from the case of Lai Oei Mui Jenny v PP [1993] 3 SLR 305 that, while the lack of financial gain is a legitimate mitigating factor, it carries very little weight in court.

Tuen Huan Rui Mary v Public Prosecutor [2003] 3 SLR 70 - Facts - The appellant was convicted on two charges of criminal breach of trust under s 406 of the Penal Code, for encashing and using the proceeds of two cash cheques from another amounting to $50,000 for her personal use. She was sentenced to 27 months’ imprisonment on each charge, with both the sentences ordered to run concurrently. The appellant appealed against conviction and sentence. - Held, dismissing the appeal against conviction and allowing the appeal against sentence:  (1) An appellate court ought to be slow to disturb a trial judge’s findings of fact unless they were plainly wrong or against the weight of evidence. The conviction was neither against the weight of evidence nor unsupportable: at [22].  (2) In determining the sentences in offences of criminal breach of trust, the value of property misappropriated was relevant as an indication of the culpability of the offender. It was not the sole factor in determining the sentences: at [51] to [52].  (3) The sentence of 27 months’ imprisonment for each charge was manifestly excessive. A more appropriate sentence was 15 months’ imprisonment for each charge, with both sentences ordered to run consecutively, making a total sentence of 30 months’ imprisonment: at [55]. - Principles of sentencing  51 The principle of proportionality in sentencing in respect of criminal breach of trust cases was discussed by Chan Sek Keong J (as he then was) in Wong Kai Chuen Philip v PP [1990] SLR 1011 at 1015:  In an offence like criminal breach of trust, it is a matter of common sense that, all other things being equal, the larger the amount dishonestly misappropriated the greater the culpability of the offender and the more severe the sentence of the court.  52 This passage must be read together with Amir Hamzah bin Berang Kuty v PP [2003] 1 SLR 617, where I held that in sentencing accused persons on charges of criminal breach of trust, the court’s discretion is never restricted by the amount involved and each case must be looked at on its own facts. The value of property is not the sole factor in determining the sentence.

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53 It is well-settled, on the authority of Tan Koon Swan v PP [1986] SLR 126, that one of the grounds on which an appellate court may interfere in a sentence imposed by a lower court is if it is satisfied that the sentence imposed was manifestly excessive. 54 Besides considering the cases cited by counsel, I also took into account Ang Chee Huat v PP (DAC 18934/1995, DC, an unreported judgment dated 5 May 1996) where the misappropriated sum (approximately $333,000) was over ten times the amount in the more serious charge faced by the appellant. The accused in Ang Chee Huat did not make any restitution and had claimed trial, but was sentenced to a term of imprisonment of 33 months, a mere five months more than the appellant’s sentence.

Sarjit Singh Rapati v Public Prosecutor [2005] 1 SLR 638 • (10) Having regard to the sentencing benchmarks established in case precedent, the sentence for the offence of extortion fell within the normal sentencing tariff. However, the sentences for the offences of wrongful confinement and false impersonation ought to be reduced to one month’s imprisonment each because they were manifestly excessive. The two sentences were to run concurrently but consecutively to the offence of extortion: at [54], [57] and [60]. Wan Kim Hock v PP [2003] 1 SLR 410 - HC observed that while past cases are helpful in providing guidelines for the Court, in sentencing the offender, the Ct must look to each case on its own unique facts. Ooi Joo Keong v Public Prosecutor [1997] 2 SLR 68 - Facts - The accused Ooi consumed Ecstacy without authorisation and was convicted for an offence under s 8(b) of the Misuse Drugs Act. Ooi was a first time abuser of the drug but his antecedents showed that he had a string of previous offences. Taking into account also the dangers and prevalence of the drug, and its classification by Parliament as a Class A drug, the senior district judge sentenced Ooi to 12 months’ imprisonment. He appealed against sentence. - Held, dismissing the appeal: o (1) Although Ecstacy was relatively new in Singapore and Ooi was a first time abuser of the drug, he knew that he was taking drugs. o (2) Parliament classified Ecstacy as belonging to a class which could be described as most dangerous. Many young people might not know the dangers of Ecstacy. The courts in Singapore would be failing in their duty if they did not debunk the myth that Ecstacy was not harmful and addictive. o (3) The sentence was not manifestly excessive. A tariff of 12 to 18 months’ imprisonment for a first time abuser of Ecstacy was appropriate o 16 It is true that other offenders caught at about the same time as the appellant had gotten away with much lesser sentences. Consistency in sentencing is of course desirable. However, the court need not and should not be fettered by sentences passed by other courts when it is its view that the previous sentences were manifestly or even woefully inadequate. I need only refer to Goh Moh Siah v PP [1988] 2 CLAS News 14 and R v Broadbridge (1983) 5 Cr App R (S) 269. Lim Poh Tee v Public Prosecutor [2001] 1 SLR 674 - Held, dismissing the appeal:

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(1) Public interest demanded the imposition of a substantial deterrent sentence as the offence involved corruption by a public servant who abused his position and powers as a police officer. The principle of deterrence required the custodial sentence to be not insubstantial but not so much as to be unjust in the circumstances of the case. (2) Although it was desirable to achieve consistency in sentencing, this was not an inflexible or overriding principle. Varying degrees of culpability and the unique circumstances of each case were equally, if not more, determinative. Furthermore, the sentences in similar cases might have been too high or too low and should not be followed. (3) On the present facts, there were clearly distinguishing circumstances which warranted a comparatively higher sentence. Not only did Lim allow himself to be bribed, he drew two junior officers into the web of corruption and instigated them to act contrary to their duties. Lim also demonstrated absolutely no remorse for his conduct and had cast spurious and unsubstantiated allegations against various law enforcement officers in the course of his defence. Finally, Lim had a prior conviction for an unrelated offence of corruption. Accordingly, the sentence imposed was not manifestly excessive. (4) The district judge did not place excessive weight on Lim’s previous conviction. The previous conviction was a relevant factor in that it revealed Lim’s propensity to corrupt means of self-enrichment and correspondingly, the need to deter him from gravitating towards such wrong-doing. In any case, the antecedent was merely one of several factors considered by the district judge. (5) Although the appellate court might have been inclined to order a slightly lower term of imprisonment had the case been heard before it first, the appellate court would only interfere with the sentence imposed by the lower court.

Rahman Pachan Pillai Prasana v Public Prosecutor [2003] SGHC 52 - Facts - One John Fernando (‘Fernando’) had paid to one Gopalan Mukunnan (‘Mukunnan’), on several occasions, a sum of money totalling $410,000. Mukunnan was the Honorary Consul of the Republic of Malta to Singapore at the time of the payments. The appellant was then Mukunnan’s secretary. Fernando obtained from the appellant a letter of surety for $354,000, with the Malta Consulate as guarantor. - Fernando subsequently commenced an action in the High Court (‘High Court Suit’) against Mukunnan to recover $410,000. Fernando’s case was that these payments were loans to Mukunnan; while Mukunnan’s defence was that they were Fernando’s investments in a business venture and he was hence not liable to repay Fernando a single cent. - The appellant then swore an affidavit before a Commissioner for Oaths stating that Fernando had signed a letter (‘impugned letter’) promising that he "would not use the letter of surety … against the Consulate of Malta for any claims purposes whatsoever". A copy of the impugned letter was annexed to the affidavit. The affidavit was subsequently filed in court. - Fernando denied signing the impugned letter and he proceeded to lodge a police report. The appellant was charged with fabricating false evidence for use in a stage of a judicial proceeding, under s 193 of the Penal Code (Cap 224, 1985 Rev Ed). She was convicted of the charge and sentenced to two years’ imprisonment. The appellant initially appealed against both conviction and sentence. She subsequently dropped the appeal against conviction and elected to proceed with the appeal against sentence only. - Held, dismissing the appeal: - (1) The fact that the appellant had made no financial gain or had caused no financial loss to another from the fabricated evidence was a legitimate mitigating factor but of very little weight. The purpose behind the enactment of s 193 of the Penal Code was to deter any attempt to pervert the course of justice and the fact that there were no personal

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gains or losses arising from the perjury could only be of little weight: at [16] to [19]; Lai Oei Mui Jenny v PP [1993] 3 SLR 305 and PP v Gurmit Singh [1999] 3 SLR 215 followed. (2) While consistency in sentencing was a desirable goal, this was not an inflexible or overriding principle. The different degrees of culpability and the unique circumstances of each case played an equally, if not more, important role. Furthermore, the sentences in similar cases might have either been too high or too low: at [22] to [23]; Lim Poh Tee v PP [2001] 1 SLR 674; PP v Mok Ping Wuen Maurice [1999] 1 SLR 138 and Yong Siew Soon v PP [1992] 2 SLR 933 followed. Whether the sentence here was out of line with previous similar cases o 21 The appellant relied principally on the decision of Koh Pee Huat v PP [1996] 3 SLR 235. The accused there (‘Koh’) made a false statement in an affidavit which was filed in a maintenance claim involving his former wife (‘Fang’). The false statement asserted that the handwriting on certain papers was Fang’s. Koh was convicted of a charge of fabricating false evidence and sentenced to six months’ imprisonment. On appeal, I reduced the sentence to one month’s imprisonment. o 22 I emphasised that a short sentence was justified there only because of the exceptional circumstances in that case. It is important to note that in Koh Pee Huat, the purpose of making the false statement was to show that Koh and Fang were interested in buying a new property. As it turned out however, Koh and Fang were indeed interested in buying a new property. In other words, the statement there, although in itself false, was tendered for the purpose of proving a fact which was actually true. The false statement there could not therefore have led to any unjust consequences. Such exceptional circumstances were not present in this appeal: the impugned letter was tendered in the High Court Suit to prove that Fernando did not have a case for repayment. As the consent judgment there showed, however, Fernando had a case for repayment. Admission of the impugned letter as evidence could therefore unjustly defeat Fernando’s claim against Mukunnan. o 23 The appellant also cited several cases where sentences of less than two years’ imprisonment were imposed for the offence of fabricating false evidence for use in judicial proceedings. I was not convinced that those cases showed that the sentence here was manifestly excessive. I have emphasised on many occasions that, while consistency in sentencing was a desirable goal, this was not an inflexible or overriding principle. The different degrees of culpability and the unique circumstances of each case played an equally, if not more, important role. Furthermore, the sentences in similar cases might have been either too high or too low: Lim Poh Tee v PP [2001] 1 SLR 674; PP v Mok Ping Wuen Maurice [1999] 1 SLR 138 and Yong Siew Soon v PP [1992] 2 SLR 933. o 24 In the present appeal, the appellant had carefully set out to deceive the High Court with the fabricated evidence. Instead of expressing remorse, she went on to spin a web of deceit in the trial below, hence wasting precious court time. She clearly had no regard for the solemn nature of swearing an affidavit and for judicial proceedings in Singapore. The sentence meted out by the court below was proportionate to the gravity of her conduct. For the foregoing reasons, I dismissed the appeal. Court not bound to only pass sentences consistent with those imposed on accomplices dealt with earlier Court also not bound to follow sentences imposed in unrelated cases involving same type of offence

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Chua Kim Leng Timothy v Public Prosecutor [2004] 2 SLR 513 - Facts - The appellant was convicted on ten charges under s 6(b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). Another 76 charges were taken into consideration for the purpose of sentencing. All the charges involved bribes paid to bunker surveyors for overlooking short deliveries of fuel oil and/or deliberate short pumping and/or provision of a lower and cheaper grade of fuel oil to vessels than that which was contracted for. The appellant was sentenced to ten months’ imprisonment and fined $410,000. - He appealed against the sentence of imprisonment, claiming that the district judge erred in: (i) departing from the general principle that the giver of gratification bears equal culpability to that of the receiver; (ii) not paying due regard to the fact that these offences took place in a purely commercial context; (iii) failing to appreciate the true nature of the public interest at stake and what was necessary to address this interest; and (iv) failing to appreciate that the sentencing norm for such corruption offences was to impose a fine. - Held, dismissing the appeal against sentence: - (1) The district judge departed from the general principle of equal culpability only because, on the facts, the appellant’s culpability was far greater than that of the receivers of gratification: at [20]. - (2) It was not the case that only government servants would be subject to custodial sentences. Where an offender in the private sector proved to be far more culpable than a corrupt government servant, having regard to all the considerations on the facts, a heavier sentence should be meted out to the private sector offender. The appellant’s intention was to draw a clear distinction between the private sector offender and the corrupt government servant. However, no such clear distinction could be drawn nowadays: at [24] to [25]. - (3) The appellant’s arguments failed to show why the district judge had not appreciated the true nature of the public interest at stake and what was necessary to address this interest. Accordingly, there was no merit in the appellant’s argument: at [30]. - (4) On the facts before her, the district judge was correct in her analysis of the issue of whether to impose only a fine or a custodial sentence. The district judge took into account various factors that ought to be considered before any decision on sentencing was reached. This was a clear sign that courts did not impose fines in bribery offences as a matter of course or only in adherence to some sentencing norm. On the facts of this appeal, the necessity to impose a sentence that would serve as a sufficient deterrent for future potential offenders was greater, considering the schemes employed by the appellant and the manner in which he had conducted himself: at [34] and [36]. Dong Guitian v Public Prosecutor [2004] 3 SLR 34 - Facts - The appellant was convicted on two counts of cheating, punishable under s 420 of the Penal Code (Cap 224, 1985 Rev Ed). As the director of Happy Millennium Pte Ltd (“Happy Millennium”), the appellant had submitted two applications to the Ministry of Manpower (“MOM”) to obtain Prior Approval (“PA”) for the recruitment of workers from the People’s Republic of China (“PRC”). The ostensible purpose of the applications was to meet the manpower needs of Happy Millennium under an alleged sub-contract between Happy Millennium and another construction company, Sunway Juarasama Sdn Bhd (“Sunway”) which had a contract with the Ministry of Education to construct two schools. As the main

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contractor, Sunway had been granted Man-Year Entitlement (“MYE”) by MOM entitling it and/or its subcontractor(s) to employ a certain number of foreign workers. The appellant appealed against his conviction on the basis that the trial judge had erred in finding that he had the requisite mens rea to cheat, and that his credit had been impeached by his previous inconsistent statement. In particular, the counsel maintained that the trial judge had attached undue weight to the evidence of the accomplices, who were the main perpetrators of the offence. The appellant also appealed against his sentence on the ground that it was manifestly excessive. Held, dismissing the appeals against conviction and sentence: o (5) The sentence imposed was not manifestly excessive. First, the principle of deterrence was a dominant consideration in this case, as the deception had been perpetrated against a government department. Second, parity of sentence with the other accomplices was not appropriate as they had pleaded guilty to a lesser charge of simple cheating and were also ordered to pay substantial fines. In any event, the principle of parity in sentencing was not an overriding consideration and there was no reason for the appellant to benefit from what was considered to be a lenient sentence against the other accomplices: at [40] to [42].

Public Prosecutor v Ng Tai Tee Janet and Another [2001] 1 SLR 343 - (6) In determining the appropriate sentence, the court was not inclined to be fettered by the sentence imposed on the accomplice. Although consistency in sentencing was a desirable goal, it was not an overriding consideration since the sentences in similar cases might have been either too high or too low. Accordingly, the sentences were enhanced and each respondent was sentenced to one month’s imprisonment in view of the need for general deterrence, although the fine imposed was reduced to $2,000 for each respondent. -

Where 2 or more offenders are to be sentenced for participation in the same offence, the sentences passed on them should be the same, unless there is a relevant difference in their responsibility for the offence or in their personal circumstances.

Public Prosecutor v Norhisham bin Mohamad Dahlan [2004] 1 SLR 48 - Facts - The respondent and five other members of a secret society (collectively referred to as the “gang”), including one Hasik, had attacked the deceased and two others. The deceased died of stab wounds inflicted by the respondent and two of the gang. Hasik punched and kicked, but did not stab, the deceased. Hasik, who had a previous conviction under s 324 read with s 34 of the Penal Code for voluntarily causing hurt by dangerous weapons or means, was sentenced to a term of life imprisonment. The respondent, who did not have a previous conviction for a violent offence, was sentenced to ten years in prison and 16 strokes of the cane. The Prosecution appealed for an increase in the respondent’s sentence to one of life imprisonment. - Held, dismissing the appeal: o (1) Parity in sentences between cases of broadly similar facts was desirable, but not an overriding principle. Where two or more offenders were to be sentenced for participation in the same offence, the sentences passed on them should be the same, unless there was a relevant difference in their responsibility for the offence or their personal circumstances. The fact that Hasik’s criminal record included a violent offence, while the respondent’s criminal record did not, justified the disparity in sentence. The trial judge was correct to place emphasis on the respondent’s lack of a violent antecedent. Having addressed all the aggravating factors surrounding the case

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and given each factor its due weight, the trial judge was convinced that a life sentence was excessive: at [16] to [18] and [22]. o in PP v Ramlee [1998] 3 SLR 539. In that case, the court stated Where two or more offenders are to be sentenced for participation in the same offence, the sentences passed on them should be the same, unless there is a relevant difference in their responsibility for the offence or their personal circumstances: Archbold (1998) at para 5-153. An offender who has received a sentence that is significantly more severe than has been imposed on his accomplice, and there being no reason for the differentiation, is a ground of appeal if the disparity is serious. This is even where the sentences viewed in isolation are not considered manifestly excessive: see R v Walsh (1980) 2 Cr App R (S) 224. o 17 Whether the above authority successfully challenged the Prosecution’s argument hinged on the meaning of the phrase “their personal circumstances”. Archbold (2003) states at para 5-171: Relevant difference in personal circumstances: o It is appropriate for a court to distinguish between offenders on the ground that one is significantly younger than the other (see R v Turner, unreported, October 6, 1976), that one has a significantly less serious criminal record (see R v Walsh, 2 Cr App R (S) 224, CA) or that some other mitigating circumstance is available to one defendant which is not available to the other (see R v Tremarco, 1 Cr App R (S) 286 CA). Where the sentence on one defendant is reduced on account of mitigating circumstances which apply only to that defendant, the sentences of the other defendants should not be reduced: Att-Gen’s References (Nos 62, 63 and 64 of 1995). o 18 Therefore, the fact that Hasik’s criminal record included a violent offence while the respondent’s criminal record did not, justified the disparity in sentence. Of importance here was the fact that there is no intermediate mark in s 304(a) – between ten years and a life sentence – which helps explain why the disparity, though justified, was so wide. The case of PP v Ramlee and Archbold (1998 Ed and 2003 Ed) show that Woo J was correct to place emphasis on the respondent’s lack of a violent antecedent when deciding to sentence him to ten years’ imprisonment instead of the full term of life. Where the offenders did not play the same roles in the commission of the crimes and have different degrees of culpability, they should not be made to suffer the same length of punishment.

Ong tiong poh v PP - The judge gave two main reasons for the appellant’s light sentence: his age of 21, and the similar sentences of between two to three years’ imprisonment imposed on his accomplices. I did not think the second reason was valid. His accomplices pleaded guilty. Moreover, the appellant played a more important role in the credit card operation than the accomplices; as already stated, the judge found that he recruited some accomplices and sent them for training, distributed the counterfeit cards, gave instructions on purchases, took delivery of the goods and paid commissions. - 30 In my view, the sentences imposed by the district judge did not properly reflect the seriousness of the appellant’s offences and were manifestly inadequate. The appellant appeared to be part of a sophisticated syndicate, capable of committing credit card fraud on a large scale and skilled at avoiding detection; this had to be taken into account in sentencing. I therefore enhanced the appellant’s sentences for the two cheating charges to 12 months’ imprisonment for each charge. For the eight abetment charges, I enhanced the sentences to 20

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months’ imprisonment for each charge; three of these sentences were to run consecutively while the remaining sentences were to run concurrently, making a total of 60 months’ imprisonment. If not for the appellant’s young age, the sentences would have been more severe. -

Amir Hamzah bin Berang Kuty v PP – 6.5 yrs imprisonment upheld on basis tt appellant was mastermind of conspiracy to commit crim breach of trust and hence deserved harsher sentence than accomplice who pleaded guilty earlier HC approach to three offenders each with diff degrees of culpability

Rajendran s/o Kurusamy and Others v Public Prosecutor [1998] 3 SLR 225 - Facts: - This was a consolidated appeal arising out of the trial judge’s decision in the court below convicting and sentencing the three accused – B1, B2 and B3 being the first, second and third accused respectively – on two charges of a conspiracy to fix the results of two football matches in the S-league in Singapore. The prosecution’s case was based on a few statements, some made by B2 and the rest made by one Maran. After two voir dires, the trial judge admitted the statements after finding that they were made voluntarily, without any threat, inducement or promise. In addition, the three accuseds’ defences were rejected. B2 and B3 received fines and monetary penalties for their roles in the conspiracy while B1, a wellknown ‘bookie’ within the football circle in Singapore, received a fine and six month’s imprisonment. B1 and B3 appealed against their convictions but B1 withdrew his appeal before the commencement of the hearing. B3 argued that the prosecution could not rely on s 147(3) of the Evidence Act (Cap 97, 1997 Ed) (‘the Act’) to admit Maran’s statement because Maran was the prosecution’s own witness who turned hostile. The Public Prosecutor cross-appealed against the sentences imposed on all three accused on the ground that they were manifestly inadequate. - Held: o (3) In sentencing, the general body of case law which evolved over the years gave guidance to the principles to be applied, included taking into account the facts of the offence, antecedents of the accused, mitigation, taking into consideration other offences, general thresholds and benchmarks of sentencing, the seriousness of the offence, the deterrent principle and protection to the public. It was useful to have regard to similar cases for a prevailing idea as to the kind of sentences appropriate in the present case. o (4) On the facts, B2’s sentence was adequate. He was the least culpable of the three accused, and was a mere conduit between B1 and Maran. His involvement in the match-fixing charges were of no great significance. B3 allowed B1’s plan to be executed properly even if he was not the mastermind of the scheme. The wider public interest justified a severe sentence for B3 whose original sentence did not reflect the severity of the offences he committed. Taking into account the profile of B3 as a player and captain of his team, his sentence was enhanced to include two months’ imprisonment on each charge, both to run consecutively. B1 was the most guilty of the three. It was clear that B1 was someone who, though punished previously on many other instances, had not learnt his lessons and mended his ways. Indeed his offences became more severe, as the amounts for match-fixing became larger. It was necessary to send a strong message to those who intended to involve themselves in such illegal activities. Accordingly B1’s sentence was enhanced to twelve months’ imprisonment for the first charge and six months’ imprisonment for the second charge, both to run consecutively.

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An offender who has received a sentence that is significantly more severe than that imposed on his accomplice, there being no reason for the differentiation, has a ground of appeal if the disparity is serious, even where the sentences in isolation are not manifestly excessive. (See PP v Ramlee & anor [1998] 3 SLR 539)

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Pannirselvam s/o Anthonisamy v PP (2005) - common object to cause hurt: ‘acts were not committed in isolation that constitutes the gravity of the offence’ - HC noted here tt where accused is convicted on charge involving common obj to cuase hurt, not sentenced for indiv cts in isolation since it is very fact tt acts not commited in isolation tt constit gravity of offence - Sentenced for having by deed or encouragement been one of number engaged in crime against peace -

Consistency is NOT the over riding principle. (See Lim Poh Tee [2001] 1 SLR 674)

iii)

One Transaction and Totality Principle

o Section 18 of the CPC: Consecutive or Concurrent Consecutive sentences in certain cases. 18. Where at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which he is convicted shall order that the sentences for at least two of those offences shall run consecutively.  in practice, during reps, get better deal for client. Reduce charges to two so tt s18 does not

kick in. What is the “One Transaction Rule”?  Where 2 or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent. o But the One Transaction Rule is subject to Section 18 of the CPC – 2 consecutive sentences where 3 distinct offences. o

The question of what constitutes “one transaction” is not susceptible to a single unequivocal answer and must depend on the particular facts of the case.

Maideen Pillai v Public Prosecutor [1996] 1 SLR 161 - Facts - The appellant Maideen was convicted of five charges of drug-related offences. He had previous convictions for drug trafficking, unlawful possession of drugs and unlawful consumption of drugs. The was sentenced to 10 years’ imprisonment and 15 strokes of the cane in respect of the trafficking charge, two years’ imprisonment in respect of the possession charge, and one year’s imprisonment on each of the two charges under the Criminal Law (Temporary Provisions) Act (Cap 7) (CL(TP)A). The district judge ordered all sentences to run consecutively, making it a total of 17 years’ imprisonment and 15 strokes fo the cane.

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Maideen appealed, arguing that the sentences were manifestly excessive and asked for the sentences to be made concurrent. Held, dismissing the appeal: o (1) The necessity for consecutive sentences in cases involving multiple convictions arose form s 18 of the Criminal Procedure Code (Cap 68) (CPC). Of the five charges against Maideen, three concerned offences committed on the same day and at the same place. It was plaint that all three were distinct offences with different elements and that proof of each offence required proof of a set of entirely different particulars. The same may be said of the two charges under the CL(TP)A. As such, s 18 of the CPC applied. o (2) The one transaction rule stated that where two or more offences were committed in the course of a single transaction, all sentences in respect of those offences should be concurrent rather than consecutive. In Singapore, the operation of this rule was subject to s 18 of the CPC. In the present case, the imposition of consecutive sentences was mandated by s 18 since all five charges concerned separate and distinct offences. o (3) Under the totality principle, where consecutive sentences were imposed on an offender, the overall punishment should be in proportion to the overall gravity of his criminal conduct, taking into account the circumstances in which he offended and also the pattern of his previous behaviour. In this case, the sentence of 17 years’ imprisonment and 15 strokes of the cane fell short of the statutory maximum of 20 years imprisonment and 15 strokes prescribed for the most serious offence, that of trafficking in diamorphine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185). However, not only did Maideen have a previous conviction for trafficking, he also committed the present offences in defiance of the police supervision ordered as a result of his previous offence. In the interests of society and also of Maideen himself, a setence with some deterrent effect was plainly called for. It was neither excessive nor inappropriate. o The question of what constitutes ‘one transaction’ is not susceptible to a single unequivocal answer, but depends instead on the particular circumstances of an individual case.

What is the “Totality Principle”? - That the aggregate sentence imposed on an offender should not exceed the normal level of sentences given for the most serious of the individual offences involved. - ‘Totality’ - aggregate sentence should be fair and proportional to overall gravity of the offences, not excessive or ‘crushing’ - The Totality Principle is not “crushing”. - It is also subject to Section 18 of the CPC; imposition of consec sentences may lead to aggregate sentences exceeding stat max for single most serious offence Chandara Sagaran s/o Rengayah v Public Prosecutor [2003] 2 SLR 79 -

Held, dismissing the appeal: (1) A longer period of disqualification was warranted here because the appellant’s conduct was deliberate and his lack of the requisite knowledge to navigate local roads increased the risks of a traffic accident which would have consequently left the victims without any compensation should he be unable to satisfy judgment. Section 3(2) of the MVA was enacted to prevent this from happening and public interest demands the imposition of a longer period of disqualification in order to deter such irresponsible conduct: at [11].

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(2) The fact that the appellant held a foreign driving licence was not a mitigating factor in sentencing. As a permanent resident the appellant would require a local driving licence to drive on Singapore roads. It was not open to the appellant to argue that s 38(1) of the RTA applied as he was not in Singapore temporarily: at [12] and [13]. (3) Based on the totality principle, the aggravating factors and the fact that the sentences were nowhere near the statutory maximum for each of offences, the trial judge rightly imposed the sentences which were not manifestly excessive: at [14]. As in all cases where a cumulative sentence is imposed … the key consideration … was the application of the totality principle … the judge must not only ensure that the individual sentences were neither unreasonable nor excessive, he must also ensure that the overall punishment meted out for the multiple offences was proportional to the overall gravity of the appellant’s conduct, taking into account the circumstances in which he committed the offences and his previous records

V Murugesan v Public Prosecutor [2006] 1 SLR 388 - Facts - The appellant was convicted of the offences of illegal entry, possession of an unlawful identity card, abduction and rape. The total sentence for the four offences was 21 years’ imprisonment with effect from the date of arrest, 24 strokes of caning, and a fine of $3,000. The appellant appealed against the conviction and sentence for the offences of abduction (seven years’ imprisonment and seven strokes caning) and rape (14 years’ imprisonment and 14 strokes caning). The custodial sentences for these offences were ordered to run consecutively with each other and concurrently with that imposed for the offence of illegal entry. - The appellant alleged that it was his accomplice, Manikkam, who had tried to have intercourse with the victim. He also claimed that the medical evidence did not point positively to a finding of rape. In any event, the appellant argued that the sentence imposed for the two offences was excessive. - Held, dismissing the appeal against conviction aand allowing the appeal against sentence: - (2) Section 18 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) which provided that where an accused was convicted of at least three distinct offences, at least two sentences should run consecutively, was applicable. In exercising his discretion as to which two or more sentences were to run consecutively, the trial judge had to have regard to the “one transaction rule” (ie where two or more offences were committed in the course of a single transaction, all sentences in respect of those offences were to run concurrently) and the “totality principle” (ie the aggregate sentence should not be higher than the upper limit of the normal sentences for the most serious offence committed by the offender): at [32], [33] and [37]. - (3) There was no doubt, in the circumstances, that the offences of abduction and rape were clearly connected and were one transaction. The abduction was for the purposes of having illicit intercourse with the victim and it was really part and parcel of the rape: at [33] and [35]. - (4) Although the acts of the appellant and Manikkam were obviously heinous and revolting, that, per se, was no reason to depart from the “one transaction rule”. This was not a case where the court was faced with a persistent offender or where the maximum sentence would be too short to reflect the gravity of the appellant’s total conduct if the offences were treated as a single transaction: at [38]. - (5) A deterrent sentence should be imposed in the circumstances. In comparison to Manikkam, the appellant had played a more dominant role in this despicable episode and orchestrated the whole incident. The imprisonment term for rape was therefore enhanced to

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18 years, leaving intact the number of strokes of caning. However, the imprisonment term for the offence of abduction was to run concurrently with that for rape, while that for the illegal entry offence should run consecutively. The $3,000 fine was substituted for a one month’s imprisonment which was also to run concurrently. In total, the appellant would have to serve 18 years and one month’s imprisonment and suffer 24 strokes of caning: at [39]and [40]. Chen Weixiong Jerriek v Public Prosecutor [2003] 2 SLR 334 - Facts - The appellant pleaded guilty to six charges of robbery and one charge of voluntarily causing hurt by means of a dangerous weapon. He was sentenced to a total of nine and a half years of imprisonment and 24 strokes of caning. In sentencing him, some 38 charges of robbery were also taken into consideration. The appellant appealed, contending that the sentence imposed on him was manifestly excessive and that the district judge had failed to give weight to a number of mitigating factors, including the fact that the appellant was a youthful, first time offender who was remorseful and capable of rehabilitation. - Held, dismissing the appeal and enhancing the aggregate sentence to 14 years of imprisonment and 24 strokes of caning: - (1) It was the prerogative of the court to refuse to consider as a first time offender anyone who has been charged with multiple offences, even if he has no prior convictions. The court in general should be extremely reluctant to regard such person as first time offender: at [15]. - (2) The circumstances were such that any mitigating effect afforded by the appellant’s guilty plea was entirely outweighed by the clear need for a deterrent sentence and the aggravating factors present: at [21]. - (3) A crucial factor in considering whether a sentence can be considered to be “crushing”, such that it offended the totality principle, was the pattern of the offender’s previous behaviour and whether the offender was capable of rehabilitation. The totality principle should not be allowed to strait-jacket the courts such that they could not impose severe sentences where the public interest so warrants: at [31]. o 31 I wish to reiterate that in considering whether a sentence can be considered to be crushing, a crucial consideration is the pattern of the offender’s previous behaviour. It is important to emphasise this because a critical factor in applying the totality principle is the question of whether the offender is capable of rehabilitation or is likely to be a recidivist. But I must stress that the totality principle must not be allowed to strait-jacket the courts, such that they cannot impose severe sentences where the circumstances warrant this; it may well be necessary to do so where the public interest requires that the offender be kept in a custodial environment in order to keep our society safe from individuals who have no capacity for rehabilitation. It should not be open to offenders such as the appellant to use the totality principle as a shield to get around the clear and important considerations of public order and safety. In using the totality principle, the court must not only consider the gravity of an offender’s conduct but also the likelihood that the offender will prove to be a danger or menace to society if given a more lenient sentence. Thus, the application of the totality principle necessitates an analysis of the public interest and the sentence that is eventually meted out to the offender must reflect this. o 32 Here, the total sentence of nine years and six months imprisonment and 24 strokes of the cane fell short of the statutory maximum of 20 years imprisonment and 24 strokes of the cane prescribed for the most serious offence, robbery with hurt with common intention under s 394 read with s 34 of the Penal Code. In light of this, and taking into account the appellant’s pattern of criminal behaviour and incapacity for rehabilitation, the sentence could not at all be said to be crushing.

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o 33 Indeed, the sentence imposed by the district judge was, in my view, manifestly inadequate. Not only was there a notable absence of mitigating factors in favour of reducing the sentence, there were serious aggravating factors in the appellant’s conduct, as I have discussed earlier. In the circumstances I was of the view that a more severe sentence was condign with the offences. Public Prosecutor v Henry John William and another appeal [2002] 1 SLR 290 - Facts - The appellant pleaded guilty to seven offences, and was convicted and sentenced to seven years’ imprisonment and 18 strokes of the cane. The prosecution later sought the substitution of amended charges for two of the offences and applied for a criminal revision pursuant to s 268 of the Criminal Procedure Code (Cap 68) (‘the CPC’). This was because the charges were defective as they charged the appellant with non-existent offences. The appellant did not object to the proposed amendments, but appealed against his sentence on the ground that it was excessive. - Held, allowing the application and dismissing the appeal: o (1) The powers granted to the High Court in the exercise of its appellate jurisdiction under s 256 of the CPC included the power to amend a charge and consequently convict an accused person of it. Further, its powers of amendment extended to situations where the accused pleaded guilty to non-existent offences. o (2) The charges were defective as their wording failed to conform with that in the statute. The present case was analogous to that of a substituted conviction, and also that where the charge failed to disclose the necessary elements of the offence. The courts had previously allowed applications to amend in both these situations. o (3) Granting the application would not cause the appellant injustice as he had not objected to the proposed amendments. Further, as the two offences to which the charges related were clearly made out on the facts and were also complete offences, the course of proceedings in the court below would not have taken a different turn had the charges been correctly drawn up in the first place. o (4) The appellant’s total sentence was not manifestly excessive as the bulk of it was taken up by the sentence for robbery with hurt. Further, the additional one year’s imprisonment and six strokes of the cane was reasonable given that it was meant to account for the remaining six offences. What is the “Proportionality Principle”? - Requires the sentence to be objectively measured against the offence in terms of gravity. - E.g. In an offence like criminal breach of trust, it is matter of common sense that all other things being equal, the larger the amount of money dishonestly misappropriated, the greater the culpability of the accused and the more severe the sentence imposed by the court. See Wong Kai Chuen v PP [1991] 1 MLJ 321) Where consecutive sentences were passed, the sentencer had to take into account the totality of the cumulative sentences … whether it was justified by the criminal behaviour … in the case as a whole. A cumulative sentence might offend the totality principle if the aggregate sentence was substantially above the normal level of sentences for the most serious of the individual offences involved or if its effect was to impose on the offender a ‘crushing sentence’ not in keeping with his record or prospects. Applies only when all acts complained of are component parts of one offence or are so closely connected as to form in reality one offence

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Teo Kian Leong v Public Prosecutor [2002] 2 SLR 119 - Held, dismissing the appeal: - (1) The court's discretion under s 234(1) of the Criminal Procedure Code (Cap 68) to impose immediate or consecutive sentences should be exercised judiciously. This involves having regard to the common law principles applicable, namely, the one transaction rule and the totality principle. A sentencing judge should have regard to whether the subsequent offence arose in the 'same transaction' as the earlier offence(s), and also to the totality of the sentence to be served. - (2) No single consideration can conclusively determine the proper sentence and, in arriving at the proper sentence, the court must balance many factors, sometimes rejecting some. One factor the court should consider is whether the totaIity of the sentence to be served is proportional to the inherent gravity of all the offences committed by the accused. Hence, while the individual sentence for a particular offence may be perfectly appropriate, the cumulative effect of the sentences may result in a total term of imprisonment that is disproportionate to the overall criminality of the accused. In such a situation, the judge should adjust the sentence to be imposed for the latest offence in the light of the aggregate sentence. - (3) Given the aggravating factors of the case, a total sentence of 18 months was not disproportionate to the gravity of the appellant’s offences. iv) -

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v) • •

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Relevance of English Law Yes. It can be relevant. (See Tan Fook Sum [1999] 2 SLR 523) But be aware of local cultural differences and sexual mores (See Tay Kim Kuan [2001] 3 SLR 567. This is an internet sex case. The easy availability of the internet and its services to the ordinary man and child in the street and the countervailing security that it provides to the unscrupulous who are allowed to hide their true identities and remain faceless whilst boldly preying on the young, gullible and immature together led to the conclusion that a deterrent sentence was warranted in the present case. The benchmark sentence for offences of the nature of the one here committed should thus be one year’s imprisonment and a fine to reflect the court’s intolerance of the conduct exhibited. On the facts, given that the appellant was three times the complainant’s age, and that he had shown no remorse by continuing to associate with her after the episode, a sentence of 12 months` imprisonment and a fine of $10,000 should be imposed instead) Section 71 of the Penal Code Section 71(1) - applies only when all the acts complained of are component parts of one offence or are so closely connected as to form in reality one offence - ref. Illustration (a) - A gives Z 50 blows in one beating, but only liable to one sentence Section 71(2): - where an offence falls within 2 or more separate definitions or - where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence, the punishment should not exceed that for any one of such offences

Xia qin lai v PP 1999 4 SLR 343 (s71.2)

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Offender cannot be punished with a more severe punishment than the court could award for any one of the offences Just because the appellant was tried at one trial on three charges it did not follow that the offences were not ‘distinct’ offences within the meaning of s 168 CPC … making ss 17 and 18 … CPC inapplicable. ‘Distinct’ meant ‘not identical’. Two offences were ‘distinct’ if they were ‘not in any way interrelated’. However, interrelated offences could also be distinct; it would depend on the circumstances of the case. A series of offences of the same or similar character could also be distinct, as could offences committed in the same transaction. Limit of punishment of offence, which is made up of several offences. 71*. —(1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. *There are no sections 54 to 56 and 58 to 70. (2) Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences. Illustrations (a) A gives Z 50 strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for 50 years, one for each blow. But he is liable only to one punishment for the whole beating. (b) But if, while A is beating Z, Y interferes and A intentionally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.

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Applied only when all the acts complained of are component parts of but one offence or are so closely connected as to form in reality one offence. (See Zeng Guo Yuan (No 2) [1997] 3 SLR 883)

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If Section 71(1) applies, and court convicts the offender of all the charges, offender can only be sentenced to one charge. He cannot be punished with the punishment for more than one of the offences. (See Tay Boon Sien [1998] 2 SLR 734) o Xia qin lai v PP 1999 –  s71.1 inapplicable to case where appellant used or attempted ot use forged poassport on three sep occasions – they did not rep component parts of any one offence and each occasion stood by itself o Wong loke cheng v PP 2003 –  similarly held tt 71.1 did not aply to sitn where appellant had corruptly received gratifn on 9 sep occaiosns through july 2000 and may 2001 – consistent with reasoning by HC in Tan boon sien

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With respect to Section 71(2) of the PC, the Indian courts have previously held that it was the intention of the legislature that only one sentence for either of these offences was to be awarded, inflicting separate punishments in respect of the offences was not in violation of the law. This is only provided that the aggregate sentence was not in excess of what the court could inflict for either of these offences. (See Mala Arjun [1899] 1 Bom LR 142 & Fakira Khan [1905] 4 CLJ 590) o Xia qin lai – HC observed obiter tt general effect of 71.2 was tt offender may be charged with sep offences and convicted accordingly but cannot be pusniehd with more severe punishment than court cld award for any one of offences

Zeng Guo Yan v PP (No 2) 1997 3 SLR 883 - - separate acts of molest, therefore separate punishments Separate sentences were awarded on each charge. Sentences imposed on four of the charges were varied - total term of imprisonment was increased to 27 months and the total number of strokes of the cane was increased to ten. Whether by virtue of s 71 of the Penal Code, Zeng was facing only one charge under s 354 of the Penal Code instead of five charges. The joinder of charges where several offences arose out of a series of acts was not governed by s 71 of the Penal Code, but s 170 of the Penal Code. Section 170 made it clear that even where offences were cumulative or overlapping, the accused may be separately charged for each offence. Where an offence falls within 2 or more separate definitions, or where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a diferent offence, the punishment should not exceed that for any one of such offences Ho Yean Theng Jill v Public Prosecutor [2004] 1 SLR 254 - Facts - The appellant was convicted on five charges of voluntarily causing hurt under s 23 of the Penal Code and sentenced to a total of four months’ imprisonment. The victim was an Indonesian domestic maid whose work permit was registered under the name of the appellant’s ex-husband. The victim worked in the appellant’s household and took instructions from the appellant at all material times. - Before the commencement of the trial, the appellant offered to compound the offence. The Prosecution objected to the composition and the magistrate withheld his consent to the compounding of the offences. - The appellant filed a criminal motion for leave to file a supplementary petition of appeal on whether the magistrate erred in withholding his consent. The Prosecution did not object to this application. The appellant also contended that the magistrate erred in allowing the trial to proceed on five charges instead of two charges for composite offences, and that the sentence imposed was manifestly excessive. - Held, allowing the criminal motion but dismissing the appeal: o (1) The fact that the appellant was the victim’s de facto employer and not her de jure employer had no bearing on whether the courts should lean in favour of granting consent to allow composition of the offences. The public interest element present in cases where a foreign domestic maid had been abused warranted a departure from the general principle that the courts should lean in favour of granting consent for composition of minor offences. There were also aggravating factors, including how the appellant

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inflicted the injuries on the victim. The magistrate did not err in law when he withheld the consent to compound the offences: at [34] to [35] and [47]. o (2) Section 170 of the Criminal Procedure Code allowed each of the distinct offences to be brought against the appellant. This was so even though the first three charges and the latter two charges appeared to refer to actions done at around the same time. The magistrate was bound by s 18 of the Criminal Procedure Code to order that two of the sentences run consecutively. As the two charges for which the sentences were ordered to run consecutively related to distinct offences which happened on two separate days, there was no breach of s 71 of the Penal Code: at [52] to [53]. o (3) The two most pertinent facts were that the appellant was in a position of authority and that the victim was a vulnerable victim. The magistrate correctly applied his mind to these aggravating factors and meted a sentence within the limits of s 323 of the Penal Code. The sentences meted out in cases involving s 323 read with s 73 of the Penal Code were relevant, even though s 73 of the Penal Code did not apply, because the aggravating factors were similar and the need for general deterrence was just as strong. The sentence imposed was not manifestly excessive: at [57], [61] and [65]. vi) •

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Imposing Maximum Sentence Provided by Law: Sim Gek Yong v PP - maximum sentence may be imposed even in PG cases o ct would identify a range of conduct which characterises the most serious instances of the offence in question. This would involve consideration both of the nature of the offence and of the circumstances of the criminal eg. previous similar convictions? Worst case scenario:  court analyses the range of conduct and other circumstances

Sim Gek Yong v Public Prosecutor [1995] 1 SLR 537 - The maximum sentence prescribed for an offence could not be restricted to the ‘worst case imaginable’ for that offence. In deciding whether to impose the maximum sentence prescribed for an offence, all that a court should do is to identify a range of conduct which characterizes the most serious instances of the offence in question. - (4) The district judge was justified in imposing the maximum sentence prescribed under s 137(a) of the Customs Act (Cap 70). The quantity of duty-unpaid cigarettes being smuggled in by Toh was not insubstantial. In addition, in driving in such a way as to endanger the safety of the customs officers and of other road-users, Sim displayed a blatant recklessness which became a crucial factor in bringing his case within the band reserved for the worst possible type of case under s 137(a). - Imposition of maximum sentence - 10 The above did not of course lead to the ineluctable conclusion that the maximum sentence was warranted in the appellant’s case; and this, no doubt, was the point of counsel’s contention that the appellant’s role in the entire episode amounted to that of a mere lookout; in other words, that the present case fell outside the ‘worst case’ scenario for which the maximum sentence was designed. The proposition appeared to be based on the remark made by Channell J in R v Harrison that ‘[t]he maximum sentence must … be reserved for the worst cases.’ In the present case, however, I would point out (albeit with respect) that

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counsel’s reliance on the above proposition begged the question of what actually constituted a ‘worst case’ scenario. 11 In R v Ambler it was held by the Court of Appeal in England that: … it is to be borne in mind that when judges are asking themselves whether they should pass the maximum sentence, they should not use their imagination to conjure up unlikely worst possible kinds of cases. What they should consider is the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with comes within the broad band of that type. 12 The above approach was adopted by the Federal Court of Australia in R v Tait and Bartley. In its judgment, the court referred to and approved the decision of Burt CJ in Bensegger v R, in which it was stated: o A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with it that can be imagined. If such were the case it would never be imposed as the addition of non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of cases falling within the prohibition or … ‘for the worst cases of the sort.’ That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was. 13 It was clear from the district judge’s grounds of decision that he took the above approach in sentencing the appellant; and in this I was fully in accord with him. The principles espoused above in R v Tait and Bartley and Bensegger v R represent, in my view, the approach which should be adopted by a court towards the issue of maximum sentences. To restrict the maximum sentence to the ‘worst case imaginable’ would only invite an endless permutation of hypotheses. In the appellant’s case, for instance, would the ‘worst case imaginable’ be one in which the customs officers had been injured? Or would it be one in which one of the officers had been killed? Or would it be one in which a innocent bystander had been fatally hit by the appellant’s car? The possibilities are limitless and the uncertainty intolerable. All that a court can realistically do — and all that it should do — when deciding whether or not to impose a maximum sentence is to identify a range of conduct which characterizes the most serious instances of the offence in question. This would, as the court in R v Tait and Bartley pointed out, involve consideration both of the nature of the crime and of the circumstances of the criminal. Thus, taking the case of a conspiracy to defraud as an example, the fraud involved could be said to come within a band of fraud of the worst kind if it concerned a breach of trust; was in the multimillion dollar range; involved a person in a senior and responsible position; and had an element of public impact: see A-G v Cheung Kai-man Dominic. 14 In the present case the offence in question was that of obstructing customs officers in the execution of their duties contrary to s 137(a) of the Customs Act. In committing this offence, the appellant acted deliberately and with full knowledge of the fact that he was facilitating the commission of a crime. The quantity of duty-unpaid cigarettes being smuggled by Toh was, furthermore, not insubstantial. In addition, by driving his car as he did, the appellant not only achieved the obstruction of the customs officers but further posed a danger to their safety and the safety of other road-users; and, indeed, the blatant recklessness shown by the appellant in this respect was a crucial factor in bringing his case within the band reserved for the worst possible type of case under s 137(a). guilty plea did not automatically merit a discount. The sentencing court had to consider the element of public interest before deciding whether to give a discount; and in some cases the need to protect the public may outweigh any mitigating effect to be attached to an accused’s guilty plea or his voluntary surrender.

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Once an accused has pleaded guilty to … a particular charge, it is not open to the court, in sentencing him, to consider the possibility that an alternative — and graver —charge might have been brought and to treat him as though he had been found guilty of the graver charge.

Chen Weixiong Jerrick v PP [2003] 2 SLR 334 - The appellant pleaded guilty to six charges of robbery and one charge of voluntarily causing hurt by means of a dangerous weapon. He was sentenced to a total of nine and a half years of imprisonment and 24 strokes of caning. In sentencing him, some 38 charges of robbery were also taken into consideration. The appellant appealed, contending that the sentence imposed on him was manifestly excessive and that the district judge had failed to give weight to a number of mitigating factors, including the fact that the appellant was a youthful, first time offender who was remorseful and capable of rehabilitation. - Held, dismissing the appeal and enhancing the aggregate sentence to 14 years of imprisonment and 24 strokes of caning: o (1) It was the prerogative of the court to refuse to consider as a first time offender anyone who has been charged with multiple offences, even if he has no prior convictions. The court in general should be extremely reluctant to regard such person as first time offender. o (2) The circumstances were such that any mitigating effect afforded by the appellant’s guilty plea was entirely outweighed by the clear need for a deterrent sentence and the aggravating factors present. o (3) A crucial factor in considering whether a sentence can be considered to be “crushing”, such that it offended the totality principle, was the pattern of the offender’s previous behaviour and whether the offender was capable of rehabilitation. The totality principle should not be allowed to strait-jacket the courts such that they could not impose severe sentences where the public interest so warrants. - Remorse o 18 Counsel for the appellant also submitted that his client was extremely remorseful, as evidenced by his plea of guilt and by the letters of apology he had written to the victims in the robberies. o 19 While the voluntary surrender by an offender and a plea of guilt by him in court are factors that can be taken into account in mitigation as evidence of remorse, their relevance and the weight to be placed on them must depend on the circumstances of the case: Wong Kai Chuen Philip v PP [1990] SLR 1011. I see very little mitigating value in a robber pleading guilty after he has been turned over to the police; in this case, the game was up for the appellant as his father had handed him over to the police. o 20 Further, there is always the public interest element to be considered. The Court of Appeal has clearly established in Fu Foo Tong v PP [1995] 1 SLR 448 that the protection of the public is an important exception to the general rule that an offender who pleads guilty is entitled to a discount of the sentence which would have been imposed on him had he claimed trial and been found guilty. The following passage from Lord Lane’s judgment in R v Costen (1989) 11 Cr App R (S) 182 at 184 was quoted approvingly by the Court of Appeal in Fu Foo Tong at 455 and bears repeating here: o But there are certain exceptions, likewise well authenticated in the authorities, to that general rule that discount will be allowed for a plea of guilty. The first and most important exception is the protection of the public. Where it is necessary that a long sentence, if necessary the maximum sentence, should be passed in

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o

o

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order to protect the public, in those circumstances a plea of guilty may not result in any discount. 21 It was my view that a long sentence was necessary to protect the public in this case. The appellant was clearly of a violent disposition and had no qualms about venting his frustrations in public in a violent manner at the slightest perceived provocation. The appellant targeted vulnerable victims to rob. As the court noted in Lim Kim Seng v PP [1992] 1 SLR 743, the court must provide protection for persons regarded as easy targets and a deterrent element must be seen in the sentence imposed. I felt that the circumstances were such that any mitigating effect afforded by the guilty plea was entirely outweighed by the clear need for a deterrent sentence and the aggravating factors in this case. 22 There is a common practice for defence counsel in their mitigation pleas for lighter sentences to state glibly that their clients are remorseful. In view of this, I should add that remorse is only a mitigating factor where there is evidence of genuine compunction or remorse on the part of the offender. In Soong Hee Sin v PP [2001] 2 SLR 253, I noted that restitution made voluntarily before the commencement of criminal proceedings or in its earliest stages carries a higher mitigating value for it shows that the offender is genuinely sorry for his mistake. I also observed at [9] that: 32 Here, the total sentence of nine years and six months imprisonment and 24 strokes of the cane fell short of the statutory maximum of 20 years imprisonment and 24 strokes of the cane prescribed for the most serious offence, robbery with hurt with common intention under s 394 read with s 34 of the Penal Code. In light of this, and taking into account the appellant’s pattern of criminal behaviour and incapacity for rehabilitation, the sentence could not at all be said to be crushing. 33 Indeed, the sentence imposed by the district judge was, in my view, manifestly inadequate. Not only was there a notable absence of mitigating factors in favour of reducing the sentence, there were serious aggravating factors in the appellant’s conduct, as I have discussed earlier. In the circumstances I was of the view that a more severe sentence was condign with the offences.

Enhanced Punishment and Previous Conviction Specific enhanced punishment provisions may exist for second or subsequent conviction of the same offence Where statute prescribes a higher grade of punishment for second or subsequent offences, the higher punishment may only be imposed upon an offence committed after the conviction for and not merely after the commission of the earlier offence or offences; A fortiori, cannot be imposed for offence committed before earlier conviction

See Boon Kiah Kin [1993] 3 SLR 639 - Held, allowing the appeal: - (1) Under s 148(5) of the Charter the words ‘second or subsequent conviction’ ought to be construed to mean a second or subsequent conviction of an offence under that section. As such, Boon’s prior offence under s 147(1) could not make the offence under s 148(1) a ‘second or subsequent conviction’ for the purposes of s 148(5). Accordingly the district judge was correct to sentence the respondent for the offence under s 148(1) on the footing that he acted contrary to s 148 for the first time.

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(2) Boon’s convictions of 4 January 1991 could not make the offences under s 146(1) for which he was convicted on 9 April 1992 second or subsequent offences for the purposes of s 146(2). In general, where a statute prescribed a higher grade of punishment for second or subsequent offences, the higher punishment could only be imposed upon an offence committed after the conviction for and not merely after the commission of the earlier offence or offences. (3) This specific injunction put upon sentencers by such statutory provisions was entirely distinct from the general principle of discretion that sentencers had in regarding antecedents of the person being sentenced. The court should be open to persuasion as to the weight that should be assigned to these convictions for earlier offences. Where the accused was convicted of the earlier offence only after he committed the offence for which he was being sentenced, then he would normally have a better chance of persuading the court that circumstances relating to the earlier offences showed that, in committing the offence for which he was being sentenced, he was not acting in defiant disregard of the law. The burden of bringing these matters to the court’s attention lay on the person being sentenced. (4) As such, the district judge erred in principle. It was open to the court consider Boon’s convictions of 4 January 1991. Although the fine for the offence under s 148 could not exceed $3,000, it was appropriate to impose a three month term of imprisonment in addition to the fine. A higher fine of $6,000, with a default imprisonment term of three months, was appropriate for each charge under s 146(1).

o Tan kek kim (CA) under s60 SCJA o Accused person conviced of drink driving but when case came up, prev provision under which he had been convicted for similar drink driving had been repealed and reenacted as modified drink driving offence. Issue was whether in spite of earlier offence being repealsed, because of substance of offence being substantially similar, he shld be punished with the enhanced punishment. CA held tt nowithstanding act reenacted, since substance of offence is same, offence to be treated as second offender and enhanced punishment applies o Another example o would be Section 148(1) of the Women’s Charter, which is the offence of managing a brothel. Section 148(5) of the WC provides for enhanced punishment on an accused’s “second or subsequent conviction” under the section. o Offence of employing foreign worker without work permit under section 6b of Employment of foreign workers act • •

Previous convictions for dissimilar or unrelated offences - relevance depends on particular case Dissimilar previous convictions may also impact on sentencing. But the effect they have on the sentence in any case depends on the facts of each case. Relevant considerations include the number and nature of these previous convictions. Old convictions (or “spent convictions”) can still be relevant for the purpose of sentencing. (See Leong Mun Kwai [1996] 2 SLR 338 as authority for ALL of the a/m)

Leong Mun Kwai v Public Prosecutor [1996] 2 SLR 338 • Leong’s previous convictions were not strictly for similar offences as the ingredients of those offences and the present one did not share any common element. Nonetheless it would be wrong to treat them as being totally irrelevant. In a broad sense, they shared some similarities, in that they involved an element of mischievous intention.

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The effect these convictions had on sentencing in any case depended on the facts of each case. Relevant considerations would be the number and nature of those previous convictions. For convictions which occurred a long time ago, it was relevant to consider the length of time during which Leong maintained a blemish-free record. All these were part and parcel of a convicted person’s antecedents which the court should take into account. Taking into account all the circumstances including Leong’s previous convictions, the sentence of five weeks’ imprisonment was not manifestly excessive. Appeal dismissed.

o So long as previous convictions are shown to exist, therefore, it does not matter whether they are in respect of offences committed before or subsequent to the offence for which the court was considering. o It still affects the weight, for sentencing. (See Sim Yeow Seng [1995] 3 SLR 44 which held that a ct when meting out sentence for any particular offence, will take into account, inter alia, the accused’s antecedents up to time of sentence and upon consideration of such antecedents, enhance the sentence.) viii) •

Treatment Of Antecedents

Courts have general discretion to consider all antecedents - ‘whole character’ of accused:

Sim Yeow Seng v PP [1995] 3 SLR 44 • Facts - The appellant Sim pleaded guilty to committing criminal breach of trust under s 408 of the Penal Code (Cap 224). In sentencing, the district judge noted that in the absence of aggravating circumstances, the usual punishment for a first offence under s 408 – where the accused pleaded guilty and where the sum involved was between $5,000 and $10,000 – was imprisonment of nine months coupled with a fine. However, in this case, even though Sim pleaded guilty, he had a previous conviction for criminal breach of trust. The district judge took this into account and sentenced him to one year’s imprisonment. Sim appealed, arguing that the district judge should not have taken into account his previous conviction as the previous conviction was in respect of an offence committed subsequent the one before the district judge. • Held, dismissing the appeal:  (1) In meting out sentences, the court would consider the accused’s antecedents up to the time of sentence and could, upon consideration of such antecedents, enhance the sentence. An accused’s antecedents revealed his character, his attitudes and the likelihood of rehabilitation. So long as previous convictions were shown to exist, it did not matter whether they were in respect of offences committed before or subsequent to the offence for which the court was considering sentence.  (2) In this case Sim’s previous conviction for criminal breach of trust involved dishonesty and repeated convictions for this offence indicated his strong propensity to dishonest means of self-enrichment. All things being equal, the need to deter an accused from committing such further wrongdoing was sufficient basis for the sentencing court to enhance the sentence. However, any enhancement should not bring the sentence beyond the tariff applicable to the offence.  (3) Sim’s argument that he committed both offences to pay off loan sharks was of no mitigating value. Financial difficulties could not be relied upon in mitigation of an

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offence save, possibly, in the most exceptional or extreme circumstances; and such circumstances were not shown to exist in this case. (4) The sum which Sim misappropriated was money which his employers — a small business concern — could ill afford to lose. Sim did not hesitate to abuse the trust his employers placed on him and that between the time of his crime and his arrest four years later, he showed no compunction nor effort towards restitution. These factors went towards diminishing any credit given to Sim for pleading guilty on the day of the trial. Appeal dismissed.

Considered by CA in PP v Syed Hamid bin A Kadir Alhamid [2002] 4 SLR 154 cf. Roslan bin Abdul Rahman v PP; PP v Norhisham bin Mohd Dahlan - unrelated antecedents disregarded by CA If totally irrelevant, CA has held tt shld not be taken into acct

Public Prosecutor v Norhisham bin Mohamad Dahlan [2004] 1 SLR 48 • The trial judge was correct not to allow the respondent’s antecedents of non-violent offences to influence his mind when it came to sentencing: at [27]. • The fifth argument advanced by the Prosecution was that Woo J erred in fact and in law when he regarded the antecedents of the respondent as having no bearing on the case at all. • The case of Roslan bin Abdul Rahman v PP [1999] 2 SLR 211 involved an appellant who had pleaded guilty in the High Court to the charge of robbery causing death under s 394 read with s 397 of the Penal Code. At the trial below, the Public Prosecutor drew the court’s attention to the appellant’s previous antecedents all of which were drug-related. Karthigesu JA delivered the judgment of the Court of Appeal. He stated that the appellant’s drug-related antecedents should have had no bearing on the trial below as they were completely unrelated to the offence the appellant was charged with. Karthigesu JA stressed that the appellant had no antecedents of the type of offence he was charged with. Following this principle laid down by the Court of Appeal, we were of the view that Woo J was correct not to allow the respondent’s antecedents of non-violent offences to influence his mind when it came to sentencing Public Prosecutor v Siew Boon Loong [2005] 1 SLR 611 • Juvenile antecedents • 11 The respondent has two previous convictions for property offences that he had committed before the CBT offences, albeit as a juvenile. By committing the CBT offences after having already been disciplined for committing past property offences, the impression of persistence to commit crime despite chastisement was therefore more obvious and harder to dispel: Boon Kiah Kin at 648, [37]. In this regard, the Prosecution labelled the respondent a “repeat offender” in respect of property offences, though presumably not in the strict sense of that term used when invoking specific enhanced punishment provisions. • 12 The fact that the respondent had run afoul of the law when he was still a juvenile (as opposed to an adult) might go some way in dispelling such an impression, though this could not be overstated because the respondent had committed not one, but two, property offences when he was a juvenile. I noted, however, that the respondent’s juvenile antecedents were committed some 11 years ago. In Leong Mun Kwai v PP [1996] 2 SLR 338, I had stated at 342, [19] that: • [F]or convictions which occurred a long time ago, it would also be relevant to consider the length of time during which the defendant has maintained a blemish-free record.

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In this case, the respondent’s juvenile antecedents were relatively dated, being more than a decade old. He had therefore managed to remain crime-free for a significant period of time until only recently. Accordingly, I was inclined to accord less weight to his juvenile antecedents. In all, taking the respondent’s antecedents in their totality, I was of the view that it would be appropriate to accord some, but not too much, weight to them.

Tan Kiang Kwang v Public Prosecutor [1996] 1 SLR 280 19 There are, of course, strong policy arguments for advocating efficiency and dispatch in investigation and prosecution. Nonetheless, the fact that an offence may have been committed some time ago does not compel the prosecution to desist from initiating proceedings. Unlike the Scots (Criminal Procedure (Scotland) Act 1975, s 101), for instance, stringent time-limits for the commencement of trials do not exist in our system of criminal procedure. It appears that the concept of ‘stale’ offences receives little attention in local prosecutorial policy. What is critical is that the relevant evidence can still be obtained in the course of investigation. I should also add that the concept of ‘spent’ convictions has no application in Singapore. ‘SPENT CONVICTIONS’? • • • • •

•

Registration of Criminals Act (Cap 268) amended in 2005 Facilitate the re-integration of exconvicts into society Pre-requisite: ‘Crime-free’ period of 5 years Renders certain convictions for minor offences ‘spent’ but does not ‘expunge’ or ‘erase’ criminal records RCA amendment enables a convicted person to withhold disclosure of his record of conviction, once spent, in certain cases – s7E.1.a and c read with s7F of registration of crim act a) But 7E.1 x apply to prosecution for any offence nor in any proceedings before a court including any decision as to sentence s7E.2.b and c RCA amendment disqualifies a person from having his record treated as spent in various cases (s 7C), for example where: a) Sentence exceeded $2,000 fine or 3 months imprisonment b) Conviction was for 3rd Schedule offence such as drug trafficking, serious sex offences, culpable homicide, gang robbery, rioting etc c) Person has more than one record

•

No principle of ‘spent convictions’ (Leong Mun Kwai v PP) but a question of weight to be determined in each case – UK rehabilitation of offenders act 1974 no application in sg

•

An earlier conviction for the same offence in earlier edition of Act - constitutes second or subsequent conviction.

Chen Chih Sheng [1999] 1 SLR 714 - This case is in the context of the Employment of Foreign Workers Act - Whether the accused’s conviction under the 1991 Act should be considered a previous conviction under the 1995 Act - 44 The accused had a previous conviction under s 5(6) read with s 5(1) and punishable under s 5(4) of the 1991 Act. His current conviction was under s 16D read with s 5(1) and punishable under s 5(4) of the 1995 Act. The trial judge found that the accused’s conviction under the 1991 Act should not be considered a previous conviction under the 1995 Act and

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his current conviction should therefore not be considered a second conviction under the 1995 Act which would attract the punishment of mandatory imprisonment under s 5(4)(b)(i) of the 1995 Act. The DPP contended that the trial judge had erred in so finding. 46 Having perused the relevant sections of the 1991 as well as the 1995 Act, I agreed with the submissions of the DPP. The only difference between the 1991 and the 1995 Acts is that the 1995 Act has incorporated into it the amendments made to the 1991 Act by the Employment of Foreign Workers (Amendment) Act (Act 37 of 1995). So far as the offence in the instant case is concerned, its definition has remained the same save for the following changes: o (a) In the 1991 Act, the offence of employing a worker without a valid work permit by the body corporate must be attributable to the neglect of the accused. In the 1995 Act, the offence by the body corporate must be attributable to the act or default of the accused. o (b) In the 1991 Act, the term ‘employ’ was not defined. However, the courts, in interpreting the term, would look to the definition of ‘employ’ in s 2 of the Immigration Act (Cap 133) for guidance: see PP v Tham Kwai Lian [1995] 1 SLR 293, PP v Tan Kim Seng Construction Pte Ltd [1997] 3 SLR 158. Section 2 states that ‘employ’ means to engage or use the service of any person and to pay such person for services rendered or work done or to remunerate such person on a piece rate or on a commission basis. In the 1995 Act, the term ‘employ’ is defined at s 5(9) to mean to engage or use the service of any person, whether under a contract of service or otherwise, with or without salary. This definition was adopted so that it would no longer be possible for errant employers to claim that they did not employ the illegal foreign workers because they did not pay the workers any salary or that they were merely trying out the workers: see the Second Reading of the Employment of Foreign Workers (Amendment) Bill by the Minister for Labour, Mr Lee Boon Yang on 1 November 1995. The definition of the term ‘employ’ in the 1995 Act is therefore wider than in the 1991 Act. o (c) Under the 1991 Act, an officer of a body corporate would be liable for the offence in question only when the body corporate committed an offence under s 5(1) of the 1991 Act. Under the 1995 Act, an officer of a body corporate would be liable for the offence in question when the body corporate committed an offence under the 1995 Act or any regulations made thereunder. o (d) Under the 1991 Act, on a second or subsequent conviction, an individual and a body corporate would be liable to be punished in the same way. Both would be liable for a term of imprisonment of not less than one month and not more than one year and would also be liable to pay a fine of an amount of not less than 24 months’ levy and not more than 48 months’ levy. It was eventually realised that the punishment of imprisonment was not apt in the case of a body corporate. Under the 1995 Act, therefore, an individual and a body corporate would be dealt with differently. An individual would be liable for a term of imprisonment of not less than one month and not more than one year and would also be liable to pay a fine of an amount of not less than 24 months’ levy and not more than 48 months’ levy, whereas a body corporate would be liable to pay a fine of an amount of not less than 48months’ levy and not more than 96 months’ levy. 47 It was clear from the above comparison that the sole effect of the amendments to the offence in question between 1991 and 1995 was to broaden the ambit of the offence. In other words, the same facts which would support a conviction under s 5(6) read with s 5(1) and punishable under s 5(4) of the 1991 Act would also sustain a conviction under s 16D read with s 5(1) and punishable under s 5(4) of the 1995 Act. As such, I did not see why the

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accused’s conviction under s 5(6) read with s 5(1) and punishable under s 5(4) of the 1991 Act should not count as a previous conviction under the 1995 Act, so as to make the accused’s current conviction under s 16D read with s 5(1) and punishable under s 5(4) of the 1995 Act a second conviction which would attract the sentence of mandatory imprisonment under s 5(4)(b)(i) of the 1995 Act. Clearly, the intention of Parliament in re-enacting s 5(4)(b)(i) of the 1995 Act was to ensure stricter punishment for individuals who repeatedly committed the offence in question, and it would be an absurd denial of Parliament’s intention if in considering whether the accused’s current conviction was a second conviction, the courts were to ignore his past conviction on the mere basis that that he had been convicted under an earlier edition of the Act which defined the offence in question more narrowly than the 1995 Act. I therefore allowed the prosecution’s appeal against sentence. PP v Tan Teck Hin [1992] 1 SLR 841 in context of the Road Traffic Act) - Held, allowing the motion: - (1) The punishment should have been for a second offence. Tan’s previous conviction under s 67(1) of the Act before the re-enactment should be taken into consideration in deciding whether the proper punishment should be for a second or subsequent offence. - (2) No meaningful distinction could be drawn between a repeal and an amendment for the purpose of resolving the question whether Tan was to be treated as a second offender. - (3) Whether an Act was repealed or amended was a matter of substance and not one of form. There was no magic to the use by the draughtsman of the word ‘repeal’. In this case, there was no question concerning the survivability of an act done under a repealed statutory provision. Tan’s conviction under s 67(1) before the ‘repeal’ was a fact which did not cease to exist on the ‘repeal’. He remained a person who had been so convicted. The question whether the legislative Act was a repeal or amendment was thus devoid of substance. - (4) Whether a conviction under s 67(1) before its ‘repeal’ could properly be taken into account when applying the subsection after its ‘repeal’ was one of construction, of ascertaining Parliament’s intention when enacting the new provision. Parliament intended to enhance punishment for persons found guilty of driving while under the influence of alcohol and drugs. The legislature was particularly intent on dealing severely with repeat offenders. Tan’s argument would have led to the absurd result that a person, no matter how many times he had been convicted in the past under the old subsection, would be treated as a first offender if he was convicted for the first time under the new subsection. This would defeat the legislature’s intention. The repeal and simultaneous re-enactment of substantially the same statutory provisions must be construed, not as an implied repeal of the original statute, but as affirming and continuing the statute in uninterrupted operation. - (5) There was nothing in the court’s holding that offended the rule against the retrospective operation of statutes. There was no question of Tan being punished for an act or omission which was not punishable by law when it was done. The offence with which he was charged was undoubtly an offence at the time it was committed. The punishment for a second offence was nothing other than what was prescribed by the Act. Different Sentences a) Imprisonment for Life   

Subject to Prisons Regulations review after 20 years The High Court is the only trial court, which can pas a sentence of life imprisonment. Note apart fr life – max imposable is 30 yrs ie accused person given 30 yrs o for MDA offence can be released after 20 yrs.

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Life imprisonment must mean more than the 30 yrs.

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Abdul Nasir bin Amer Hamsah v PP [1997] 3 SLR 643 - ‘life means life – to be given its natural ordinary meaning’; but now subject to Prisons Regulations review after 20 years o Life imprisonment means imprisonment for the whole of the remaining period of the offender’s natural life. (See Abdul Nasir bin Amer Hamsah [1997] 1 SLR 643). o Please note that this decision affects only offences committed after the date of judgment, which is the 20 Aug 1997. o Once pass 20 yrs, eligible for release. o Prison reg amended to provide for this.

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Since the CA’s decision, Regulation 119A Prison Regulations, the Life Imprisonment Review Board reviews the suitability for release of prisoners sentence to life imprisonment after the prisoner has served 20 years of his sentence, and at intervals of 12 months thereafter.

•

Presently 44 PC offences and 9 offences n other legis carrying life sentence – exect defn not spelt outs

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When life sentence appropriate:

Neo Man Lee v Public Prosecutor [1991] SLR 146 -

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Facts: murder. He was suffewring fr chronic schizophrenia. To be kept away fr public for long period. Held, dismissing the appeal: (1) A sentence of life imprisonment was justified in the following circumstances: o (a) where the offence was in itself grave enough to require a very long sentence; o (b) where it appeared from the nature of the offences or from the defendant’s history that he was a person of unstable character likely to commit such offences in the future; and o (c) where if the offences were committed, the consequences to others may be specially injurious, as in sexual offences or crimes of violence. o (2) The psychiatrists’ reports on Neo were that he required long-term drug treatment for an indefinite period to minimize relapses during which he might pose a danger to society and himself. The conditions for a sentence to imprisonment for life were clearly satisfied. Neo was clearly a continuing danger not only to himself but also to the public. He should be detained as long as it was permissible under the law. Courts usu slow to impose this on young offenders – life is natural life and even if sub to renewal after 20 yrs, courts still slow to impose this

PP v Tan Kei Loon Allan [1999] 2 SLR 288 • Court must exercise caution before giving a young offender life imprisonment • held that the courts must exercise caution before committing a young offender to life imprisonment, because contrary to traditional reasoning, in similar cases involving a youthful offender on the one hand and an older offender in the other, the youthful offender sentenced

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•

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to life imprisonment would be subject to a longer period of incarceration, assuming they both lived to the same age) As the maximum period of incarceration now was the remainder of the prisoner’s natural life instead of 20 years, the courts must exercise caution before committing a young offender to life imprisonment. o But see Purwanti Parji v Public Prosecutor [2005] 2 SLR 220. Where prescribed sentence is ten years or life imprisonment, if the court desired a sentence greater than ten years but felt that a sentence of life imprisonment was excessive, the choice should be on the side of leniency. Otherwise, the sentence imposed would significantly exceed the offender’s culpability

Purwanti parji v PP 2005 2 SLR 220 - Facts o The appellant, an Indonesian national, was charged with culpable homicide not amounting to murder, punishable under s 304(a) of the Penal Code (Cap 224, 1985 Rev Ed). The appellant, who was 17 years and 10 months old at the time of the offence, pleaded guilty to and was convicted of the charge. o Strangulation was determined as the cause of death of the deceased, an elderly woman, and the appellant had admitted to strangling the deceased. The appellant also admitted to trying to conceal her crime by making it look as if the deceased had committed suicide before calling the police and feigning concern for the deceased. o The trial judge sentenced her to life imprisonment. She appealed against the sentence. - Held, dismissing the appeal: o The three conditions to be satisfied for imposing a life sentence were: (a) the offence was grave enough to require a very long sentence; (b) it was evident from the nature of the offence and the personal history of the offender that he was a person of unstable character likely to commit such offences in the future; and (c) if the consequences of committing of the offence was specially injurious to others: at [19]. o This was a case where a sentence of ten years’ imprisonment would be wholly inappropriate and inadequate, and where a sentence of life imprisonment would not be excessive despite the appellant’s youth at the time of the offence. The appellant had executed her attack on the deceased while she was asleep, and she systematically dissociated herself from the killing thereafter. - Held: o In PP v Tan Kei Loon Allan [1999] 2 SLR 288 (“Tan Kei Loon Allan”), to which both counsel for the appellant and the Prosecution referred, this court had expressed at [37] that: [W]e are of the view that the courts must now exercise caution before committing a young offender to life imprisonment. Contrary to traditional reasoning, in similar cases involving a youthful offender on the one hand and an older offender in the other, the youthful offender sentenced to life imprisonment would now be subject to a longer period of incarceration than an older offender, assuming they both lived to the same age.

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o This court then directed at [40] that: In a situation in which the court is desirous of a sentence greater than ten years, but feels that a sentence of life imprisonment is excessive, we have no choice but to come down, however reluctantly, on the side of leniency. Otherwise, the punishment imposed would significantly exceed the offender’s culpability. It would, in our view, be wrong to adopt an approach in which the court would prefer an excessive sentence to an inadequate one. o 26 The Prosecution rightly pointed out that Tan Kei Loon Allan does not stand for the proposition that the courts should not, as a general rule, commit a young offender to life imprisonment. Instead, it only exhorted that caution should be exercised before deciding to do so. During the appeal, counsel for the appellant agreed with this interpretation of Tan Kei Loon Allan. We noted that in the present case, the appellant is a young offender, being only 17 years old at the time of the offence. However, the presence of aggravating factors, and the fact that the value of the mitigating factors is either limited, or is outweighed by the public interest of upholding the employer-domestic worker relationship, justified putting the appellant away for a longer period of time. In the circumstances, this is a case where a sentence of ten years’ imprisonment would be wholly inappropriate and inadequate, and where a sentence of life imprisonment would not be excessive. As such, imposing a life imprisonment sentence would not go against the grain of Tan Kei Loon Allan as counsel contended. We now turn to discuss the aggravating factors in this case. b) Imprisonment  Section 17 CPC - concurrent or consecutive Sentence in case of conviction for several offences at one trial. 17. When a person is convicted at one trial of any two or more distinct offences the court may sentence him for such offences to the several punishments prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court directs or to run concurrently if the court so directs, but it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of one single offence, to send the offender for trial before a higher court: Provided that if the case is tried by a District Court or Magistrate’s Court the aggregate punishment of imprisonment shall not exceed twice the amount of punishment, which such Court in the exercise of its ordinary jurisdiction is competent to inflict. -

But section 18 - 3 or more distinct offences, at least 2 consecutively.

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The sentencing court has a discretion as to how many and which of the imprisonment terms should run consecutively.  The High Court has cautioned, however, that a decision to go beyond the stated minimum of 2 consecutive sentences should be taken only in exceptional cases. (See Maideen Pillai v PP).

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Court in exg discretion will consider principles like one transaction rule nad totality principle

What is ‘distinct’? It is a series of offences of the same or similar character as well as offences committed in the same transaction can constitute “distinct offence”. (See Xia Qin Lai [1999] 4 SLR 343

) -

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In sentencing convicted person to a term of imprisonment, shld cosider  Whether plea of guilt made  nature of offence  Whether any antecedents  Sentencing range  Benchmark set by court  Whether sentence shld be backdated to time of arrest Also to consider  If serving custodial sentence for aother offence, ask court to consider imposing custodial sentence tt commences immed and effectively runs concurrently with custodial sentence served esp if accused prej by present charges brought ginat him sep instead of tog with charge already serving sentence for  Whether recorded antecedents actually relates to present offence being sentenced for

PP v Boon Kiah Kin 1993 3 SLR 639 - Facts - On 4 January 1991 the respondent Boon was convicted and sentenced for one charge of managing a place of assignation, and six charges of living in part on the immoral earnings of a prostitute (with seven other similar offences being taken into consideration) under ss 147(1) and 146(1) of the Women’s Charter (Cap 353) (‘the Charter’) respectively. On 9 April 1992 he was convicted upon (a) one charge of managing a brothel under s 148; and (b) five charges of knowingly living in part on the earnings of prostitution under s 146(1). In determining sentence, the district judge decided that the convictions of 4 January 1991 were not ‘previous convictions’ for the purposes of enhancing sentence in the present case because they were sustained after the present offences were committed. Boon was fined $3,000 on each charge with a default imprisonment term of three months. The prosecution appealed against the sentences. - Held, allowing the appeal: - (1) Under s 148(5) of the Charter the words ‘second or subsequent conviction’ ought to be construed to mean a second or subsequent conviction of an offence under that section. As such, Boon’s prior offence under s 147(1) could not make the offence under s 148(1) a ‘second or subsequent conviction’ for the purposes of s 148(5). Accordingly the district judge was correct to sentence the respondent for the offence under s 148(1) on the footing that he acted contrary to s 148 for the first time. - (2) Boon’s convictions of 4 January 1991 could not make the offences under s 146(1) for which he was convicted on 9 April 1992 second or subsequent offences for the purposes of s 146(2). In general, where a statute prescribed a higher grade of punishment for second or subsequent offences, the higher punishment could only be imposed upon an offence committed after the conviction for and not merely after the commission of the earlier offence or offences.

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(3) This specific injunction put upon sentencers by such statutory provisions was entirely distinct from the general principle of discretion that sentencers had in regarding antecedents of the person being sentenced. The court should be open to persuasion as to the weight that should be assigned to these convictions for earlier offences. Where the accused was convicted of the earlier offence only after he committed the offence for which he was being sentenced, then he would normally have a better chance of persuading the court that circumstances relating to the earlier offences showed that, in committing the offence for which he was being sentenced, he was not acting in defiant disregard of the law. The burden of bringing these matters to the court’s attention lay on the person being sentenced. (4) As such, the district judge erred in principle. It was open to the court consider Boon’s convictions of 4 January 1991. Although the fine for the offence under s 148 could not exceed $3,000, it was appropriate to impose a three month term of imprisonment in addition to the fine. A higher fine of $6,000, with a default imprisonment term of three months, was appropriate for each charge under s 146(1).

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o If a delay on part of pros in brinigng present case and benchmark setnecne now altered compared to if charged immed or shortly after offence commission – defence to address court on prevailing sentence then and or whether statute amended Backdating o Section 223 of the CPC states that the sentence takes effect when it was passed but court can order otherwise. o The power to backdate a sentence of imprisonment is a discretionary one. o Sinniah Pillay [1992] 1 SLR 225 By backdating an imprisonment sentence, the court will be able - to achieve a discount in the sentence; By refusing to backdate it, the court can in effect achieve an enhanced sentence Where the court does decide to backdate an imprisonment sentence, a common practice has been to backdate it to the date when the accused was first remanded by the Courts. o aw hoon v PP 1996 3 SLR - Singapore courts have no power to pass ‘suspended’ sentences Suspended sentences are statutory creation We do not have the statutory mechanism in Singapore o Section 223 CPC - date of commencement of sentence - court may backdate sentences eg. to date of remand/DRC o Usually to date when accused first remanded by courts Date of commencement of sentence. 223. Subject to the provisions of this Code and of the Supreme Court of Judicature Act, every sentence of imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed, unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs. •

Drug rehab centres like sembawang DRC and jalan awang DRC presently gazetted as prisons by minister – sched to declaration of prisons (consol) notification o So sentences ma be backdated to incude remand terms in DRCC subj to court discretion

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o

Cheong Seok Leng v Public Prosecutor [1988] SLR 565 supserceded  80 As for the sentence, I agree with the submission of the deputy public prosecutor that the district judge erred in law in treating detention in a drug rehabilitation centre as being equivalent to imprisonment for the purpose of serving out a sentence of imprisonment under s 223 of the Criminal Procedure Code. Unless such a centre is gazetted as a prison under the Prisons Act, it is not a prison for the purpose of serving a term of imprisonment therein. Any sentence of imprisonment must commence from the date it was passed without any allowance whatever being allowed for the period of detention served by the appellant in a drug rehabilitation centre.

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However in practice: A practice of no backdating if accused had been in DRC, and not in remand (& also in immigration over-stayers) –s5nce DRC remand nt sth he shld be given ‘credit’ for, not the same as when offender in remand because x afford bail o Time spent in drug rehab centres x qualify for inclusion in backdated sentence o Time spent in woodbridge for mental state exam also x qualify for backdating of sentence (degazetted as prison since 1999) – but period spent in remand considered part and parcel of crim proceedings against accused for which fair to give accused ‘credit’ for

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Backdating sentence of imprisonment to date of first remand refers to cases where remand period unbroken up to date of conviction and sentence o Tang kin seng v PP 1997 – as general rule, period in which convicted person out on bail x be taken into acct in backdating senence o So when period broken due to bail, court shld assss proper sentence and allow discount in consdiertion of period spent in custody – done in Muharam bin Anson v PP 1981 sentence can only be backdated to encompass continious or uninterrupted remand (custody before sentence)

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o Can backdate even if remand period was longer than sentence. There is nothing in the statute to say cannot. o Mani Nedumaran [1998] 1 SLR 411. This was where the maximum imprisonment sentence for charge of riotous behaviour was only 1 month but the accused had spent 4 months in remand. The remand period is no bar to backdating of imprisonment term imposed.) – chief justice held tt only fair tt court considered any peroud spent in remand by accused when considering ex of discretion to backdate o Factors relevant whether or not to backdate – seriousness of offence, corresp dds of public policy, quantum of max punishemtn for the offence o Can refuse to backdate therby giving enhanced sentence o In considering whether to backdate, court considers o Seriousness of offence o Dd of public poicy o quantum of max punishment prescribed for offence Chua Chuan Heng Allan v Public Prosecutor [2003] 2 SLR 409: o Facts

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o The petitioner (“Chua”) was arrested by Central Narcotics Bureau (“CNB”) officers on 13 January 1999. He was charged and kept in custody in the CNB premises on 15 January 1999. On 28 January 1999, he was remanded. On 29 January 1999, he pleaded guilty to three drug-related charges under the Misuse of Drugs Act (Cap 185, 1998 Rev Ed). o Chua was sentenced to a total of 20 years and six months of imprisonment, and 20 strokes of caning, without backdating of his sentence. During sentencing, the court was not informed that Chua had been remanded, although he was then legally represented. Chua filed a criminal revision to have his sentence backdated to 15 January 1999. o Held, dismissing the petition: o (1) The court was not obliged to backdate a custodial sentence in every case where an offender had been remanded. That the offender had been remanded did not necessarily increase the likelihood of backdating of sentence by the court: at [9] to [10]. o (2) The onus was on the offender to inform the court of his remand: at [11]. o (3) Backdating a sentence effectively gave the offender a discount on his sentence. However, a sentence that was not backdated was not an “enhanced” sentence: at [14] to [15]. o (4) Time spent in the CNB premises did not qualify as time spent in remand, as the CNB premises were not gazetted as a prison: at [26]. Section 223 CPC also allows deferment of sentence – o May be because accused needs to put personal affairs in order o Postponement for short term only o Usu defence will ask for mitigation and sentencing to be postponed o The sentencing court could also postpone the date of commencement of sentence of imprisonment. Section 223 of the CPC. o This is usually done (if at all) because the accused needs time to put his personal affairs in order before starting to serve his sentence. (See Lim Teck Leng Roland [2001] 4 SLR 61 & Loh Kok Siew (CR 8/2002) - normally not to exceed 15 days). o may be on terms eg. increased bail: ref. Lim Teck Leng Roland v PP; Loh Kok Siew v PP [2002] 3 SLR 22 o court tt has passed sentence not functus officio with regard to application for deferment of sentence = but must show gd reasons o

Loh Kok Siew v Public Prosecutor [2002] 3 SLR 22 - Facts - The applicant (‘Loh’) was convicted and sentenced to three years’ imprisonment. He appealed against conviction, but later withdrew it, and successfully applied to postpone the commencement of the sentence for two months as he needed time to settle some work commitments. - Loh then filed the present criminal motion where he sought leave to further postpone the commencement of sentence by another two months. - Held, dismissing the motion: - (1) A sentence of imprisonment took effect from the date on which it was passed, unless the sentencing or appellate court exercised its discretion under s 223 of the Criminal Procedure Code (Cap 68) (‘CPC’) to postpone its commencement. - (2) In deciding whether to grant a further postponement of commencement of sentence, the paramount consideration was the applicant’s reasons for such postponement; other considerations included the length and the reasons given in support of the first postponement,

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o

the reasons given in support of the first postponement. The court would be guided as well by whether the interests of justice required the discretion be exercised in the applicant’s favour, and would also adopt a robust approach in ensuring that the discretion was not abused. Ultimately, the burden lay on the applicant to satisfy the court that the peculiar circumstances and conditions in his case necessitated the court’s exercise of the discretion in his favour. (3) The motion was dismissed. First, the court granted a two-month extension the reason given by Loh, and he was precluded as such from asking for a further extension using the same reason. Second, granting a further postponement would send out a wrong message that the interests of justice could be subordinated to other considerations. Third, Loh was clearly granted more than enough time to settle his work commitments before his sentence was due to begin. Per curiam: The court granting a postponement of commencement of sentence of imprisonment should not ordinarily grant reprieve in excess of 15 days unless the circumstances of the case were overwhelmingly urgent and required the applicant’s immediate attention, or if the interests of justice otherwise demanded it. This was in accordance with the spirit behind s 225 of the CPC, which although inapplicable in the present case, was still instructive. In Loh Kok Siew the HC stated that ct would be guided by whether the interests of justice require its discretion to extend time to be exercised.

o Burden on applicant to show and explain that the circumstances and conditions are of such a dire and serious nature or such urgency that they merit the exercise of discretion. o

No ‘suspended sentences of imprisonment’ (except in General Court Martial): Aw Hoon v PP 1996 o These are stat creation and no such stat mechiam in sg o Sg courts have no power to pass suspended sentences

o Section 234(1) CPC - no backdating of sentence where offender is an escaped convict or is already serving sentence o Section 234(1) of the CPC - sentencing discretion of the court when imposing a subsequent sentence on an accused who is serving sentence. Teo Kian Leong [2002] 2 SLR 119 - This was an offence under Section 102(b) of the Securities Industries Act. In this case, the accused was serving a 12 month sentence for an earlier trial. He PG to 3 remaining similar charges which were stood down at the time of the earlier trial. The other 2 charges were taken into consideration for the purposes of sentencing. For this latter charge, he was sentenced to 6 months to commence upon expiration of the earlier 12 months sentence. - It was held that sentencing discretion under s 234(1) CPC must be exercised judiciously, having regard to totality principle and one transaction rule. Ct should consider whether totality principle is proportionate to inherent gravity of offences committed. - On the facts held not disproportionate. o No backdating of sentence where offender is escaped convict or is already serving sentence o A sentencing judge, when deciding whether to order a subsequent term of imprisonment to run immediately or at the expiration of an existing term of

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imprisonment imposed on an earlier occasion, should … have regard to whether the subsequent offence arose in the ‘same transaction’ as the earlier offence(s), and also to the totality of the sentence to be served o No single consideration can conclusively determine the proper sentence and, in arriving at the proper sentence, the court must balance many factors, sometimes rejecting some. Commencement of sentence of imprisonment on prisoner already undergoing imprisonment. 234. —(1) When a person who is an escaped convict or is undergoing a sentence of imprisonment is sentenced to imprisonment the latter sentence of imprisonment shall commence either immediately or at the expiration of the imprisonment to which he was previously sentenced as the court awarding the sentence directs. Whether plea of guilt will result in discount - Not always - Need to prxt pubic is exception to general rule tt yes Lim Hock Hin Kelvin v Public Prosecutor [1998] 1 SLR 801 - Facts - The accused Lim pleaded guilty and was convicted of 10 charges: four charges of having carnal intercourse against the order of nature (under s 377 of the Penal Code (Cap 224); one charge of attempting carnal intercourse against the order of nature (s 377 read with s 511); and five charges of committing acts of gross indecency with another male person (s 377A). He was sentenced to 10 years imprisonment on each of the four charges under s 377, 5 years’ imprisonment on the charge under s 377 read with s 511, and one year’s imprisonment on each of the five charges under s 377A. The trial judge took into consideration 30 other charges for similar offences committed by Lim on five victims, as well as his two previous convictions for similar offences. Lim was sentenced to a total of 40 years’ imprisonment, and appealed on the ground that the sentence was manifestly excessive. - Held, dismissing the appeal: - (1) In considering the appropriate tariffs for sentences, the gravity of the offence and the circumstances in which the offence was committed had to be taken into account. - (2) The harm to the victims included both physical and emotional harm. A paedophile who committed unnatural carnal intercourse (in the form of anal intercourse) against young children below the age of 14 years, without any aggravating or mitigating factors, should be sentences to 10 years’ imprisonment. There should be no difference whether the victim was a young girl or a young boy. The court would then need to consider the aggravating and mitigating factors in increasing or reducing the sentence. Second or repeat offenders who were shown to be a menace to society should be sentence to a far longer period. - (3) The offences were committed in a situation where the offender was placed in a position of trust by the parents or by the victims. The breach of trust justified a substantial sentence on the ground of general deterrence. All those who have charge of children cannot abuse their positions for the sake of gratifying their sexual urges. Where the offender enticed or cajoled the victims to indulge in unnatural carnal intercourse by the promise of gifts had a very corrupting effect on the young victims, especially adolescents. This would be reflected by a more severe sentence. In this case, Lim was shown to have carefully and calculatedly expended time and effort to build up trust and confidence in him by the young victims and their parents. He appeared to the parents to be a pleasant young man who liked children and seemed genuinely interested in their welfare; there was no way for the unsuspecting parents

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to think that he was a sexual deviant. At present, it was neither possible nor practical to impose long-term compulsory supervision of Lim if he was released early into the community. (4) Lim’s previous convictions for similar offences under similar circumstances were aggravating factors which weighed heavily against him. The court’s immediate concern was to protect other potential young victims from him. There were no significant mitigating factors in this case. Public protection justified a long-term incarceration. While Lim’s guilty plea was a relevant consideration, the protection of the public was an exception to the general rule that the plea of guilt would entitle the convicted person to a discount. (5) The trial judge considered the overall effect of the aggregate sentence imposed, but held that the offences which Lim committed were very grave and the preventive and deterrent aspects of punishment were very important. In so doing, the sentences could not be said to be wrong in principle in view of Lim’s antecedents, the total number of charges taken into consideration, and the nature and circumstances of the offences. Appeal dismissed.

Default Sentences o Where the court orders a fine and imp for the same charge, the default imprisonment sentence for the fine must not be concurrent with imprisonment ordered. (See Chia Kah Boon [1999] 4 SLR 72) o Several charges, several default terms, some of the default terms can run concurrently. o One charge - default term; the other terms are also imprisonment. The default cannot run concurrently with other terms of imprisonment. (See Liu San Long @ Yu Xia Hu (CR 7/2002). The reason being the lack of deterrence . Rehabilitation o Young offenders (See Mok Ping Yuen Maurice [1999] 1 SLR 138.In this case, it was held that rehabilitation was the dominant consideration where the offender was under 21 years of age. The public had no greater interest than that the offender should become a good citizen) o However, there may be instances when the offence was so serious that a sentence of imprisonment must be imposed. The courts would need to assess the facts of each case. o Not for trendy drugs (See Reena bte Abdul Rahim MA 189/2001. In this case, she was sentenced to 24 months imprisonment for possessing a controlled drug. She was only 17 years old.) In Muhammad Suhail bin Omar MA 232/2001, the boy was 16 yrs old when he was caught consuming morphine. He was jailed for 6 months. c) Home Detention -

Introd by part IVA of Prisons Act

-

see provisions. Prisoners after they serve prescribed min term are considered for release on home detention – takes one of few forms – o The most straightforward is where accused sho is 50 plus is released, reqd to stay home and within radius of a telephone at home. Phone is disabled in so far as extra features are concernen o He is not allowed to leave premises except for pruor arrangements made with supervisor supervising him • Diff variations of this

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o Accused persons deemed fit to be employed during period of home detention so work release scehme is tagged on to home detention so tt donjt have to stay at home throughout poerod of home detention – leave home for work and come ack in evening anda re monitored o Diff forms of home detention available o Be familiar! Note tt these are schemes tt do not conver rights on accused persons Do not apply for client to be palced on home detention – prison auth consider htsi based on critera and committee comprising sit and deliberate on whether person is safe and nec tests and assessments ade to alow him to be released on hom detention

d) Caning •

Section 231 of the CPC - women, capital, males above 50 – not punishable • Caning only for males above 16 and below 50 and in non-capital cases: s 231 CPC • Sentencing to be carried out before 50th birthday. The sentence can no longer be carried out once the offender has reached that age. (See Alfred Christie Ratnam [2000] 1 SLR 467) Execution of sentence of caning in certain cases forbidden. 231. No sentence of caning shall be executed by instalments and none of the following persons shall be punishable with caning: (a) women; (b) males sentenced to death; (c) males whom the court considers to be more than 50 years of age.

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S230 - max 24 strokes at one trial - All to be given at one go; no instalments! but note MDA s53 – for any offences under tt act, full juris conferred oin district court to pass full; punishemtn stiupated notwithstanding anything contrary to CPC • s37.3 of children and young persons’ act – notwistanding any provn of written law, no chid or youn person shal be sentenced by any court other than HC to corporal punishment Mandatory sentences of caning must be imposed: R Yogendran v PP Tan Eng Chye v Director of Prisons (No 2) - on s 232(1) CPC and medical examination to certify fitness for caning - pre-sentence medical opinion not subject to judicial review • Section 230 of the CPC – A maximum of 24 strokes for adults) and a maximum of10 for youths • (if between 7-16 yrs old, to be caned with lighter rattan – section 229.4 CPC)

Conviction for two or more offences punishable with caning. 230. When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally punishable by caning the combined sentence of caning awarded by the court for any such offences shall not, anything in any Act to the contrary notwithstanding, exceed a total number of 24 strokes in the case of adults or 10 strokes in the case of youthful offenders. •

Caning sentence must be carried out in presence of medical officer and offender must be certified to be in fit stat of health to undergo caning

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• •

•

If during caning offender certified unfit to undergo remainder of sentence, caning has to be finaly stopped – s232.2 Only a medical officer can determine the offender’s fitness to undergo caning. (See Ramanathan Yogendran [1995] 2 SLR 563.In this case the accused was charged with mandatory minimum of 12 strokes but claimed to be in poor medical health) o Must be carried out by prison authorities – will not be interfered with o See slides o If caning x be carried out because of med reasons, court tt imposd sentence of caning ust be infoemd and can then revise sentence in any of ways specified in 233.1 – remit sentence of caning or sentence offender instead of caning or instead of so much of sentence as not executed, to imprisonment for any term up to 12 mths in addition to other punishment already imposed o Remittance of sentence – Section 233 (1) of the CPC - must this be done in open court? No instalment for caning. (See Liaw Kwai Wah [1987] 2 MLJ 69) And the court also cannot order distinct sentences of caning to be concurrent. (See Chan Chuan & anor [1991] 2 MLJ 538)

Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 52 – see slides - Facts - The applicant, Tan Eng Chye (“Tan”) had pleaded guilty to a charge of robbery which carried a mandatory sentence of not less than 12 strokes of the cane. After the court was informed that Tan had Marfan’s Syndrome, the district court judge directed that a medical report be produced to determine whether Tan was fit to undergo caning. Dr Ooi Poh Hin (“Dr Ooi”) in his terse report merely stated that Tan was found fit for caning. The district court judge, after noting an Internet description of Marfan’s Syndrome, held that there was nothing which showed that Tan’s health was seriously affected by this medical problem. He then sentenced Tan to four years and six months’ imprisonment and 12 strokes of the cane. Subsequently, Tan obtained leave from the High Court to issue an application for an order of certiorari to quash Dr Ooi’s certification. The application for an order of certiorari was the subject of the present proceedings. Tan argued that Dr Ooi failed to take into account the real possibility that caning him would be potentially dangerous, and that this failure amounted to unreasonableness in the Wednesbury sense. - Held, dismissing the application: - (1) The medical examination by Dr Ooi was conducted under an order of court prior to sentencing. However, s 232(1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) envisaged a post-sentence medical examination. The district court was bound to impose the requisite sentence of caning as the provision under which the applicant was to be sentenced carried a sentence of mandatory caning. Whether Tan was fit to receive the punishment was a matter to be determined by a medical officer subsequently: at [6] - (2) For a decision to be susceptible to judicial review the decision-maker must be empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers, which would have consequences affecting some person. In the instant case, Dr Ooi’s decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooi’s report. The remedy in the event of any dissatisfaction with the district court judge’s order lay in the appeal process: at [7] and [8]. - (3) Since this was not a judicial review case at all, it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense. Tan could not be allowed to attack Dr Ooi’s report. Otherwise, any party who was unhappy with a trial

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judge’s decision, but who had no valid grounds of appeal, would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor: at [10] and [11]. e) Fines • • • •

Quantum: Two competing considerations - means to pay and adequacy of fines to achieve sentencing objectives ie deterrence and retribution in sense of reflecting oc’s abhorrence of offence: Chia Kah Boon v PP 19 Section 224 CPC - court may allow extension of time, instalments etc Default sentences may have to be served - may run concurrently: Chia Kah Boon 1999 4 SLR 72 v PP Where offender is genuinely unable to pay fines, the court should order an appropriate imprisonment term: Low Meng Chay v PP 1993 1 SLR 569 • In-default term not to punish, but to prevent evasion or to punish those who are genuinely unable to pay. (See Low Meng Chay [1993] 1 SLR 569)/ when clear tt acused x pay fine, realitic and reaodnalbe, fine shld not be imposed even though court wld have preferred to ipose fine rathe than short term of imprisonment

Low Meng Chay v PP [1993] 1 SLR 569 - Where offender is genuinely unable to pay fines, the court should order an appropriate imprisonment term Default terms of imprisonment were intended to prevent evasion of fine payment and not to punish those who were genuinely unable to pay. When it was unambiguously clear that a defendant could not pay a fine … the fine should not be imposed even though the court would have preferred to impose a fine rather than a short term of imprisonment. -

Accused can reasonably pay, given his financial means; yet sufficient deterrence and retribution. Default imprisonment terms can be ordered to run concurrently also. Chia Kah Boon [1999] 34 SLR 72 o where accused canot pay for substantial fines imposed, can ask that the in default sentences be short in duration and or be ordered to run concurrently – allowed in chia case o An offender’s financial means and ability to pay the fine should be taken into account in assessing the amount of fines Where an offender was sentenced to more than one default imprisonment term, the court had the power to order that the default terms run concurrently, in accordance with the totality principle of sentencing – S.224 (b)(iv) CPC

Chia Kah Boon v Public Prosecutor [1999] 4 SLR 72 - Facts - The appellant Chia pleaded guilty in the subordinate courts to nine charges of being concerned in importing uncustomed goods into Singapore, an offence under s 130(1) of the Customs Act (‘the Act’). As he was a first-time offender, he was liable under s 130(1)(i) of the Act to a fine of between ten times the amount of goods and services tax (‘GST’) payable or $5,000 (whichever is the lower) and 20 times the GST or $5,000 (whichever is the higher) in respect of each charge, and imprisonment in default. The district judge ordered an aggregrate sentence of $4,606,000 in fines, which was approximately 15 times the GST

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payable, and 50 months imprisonment in default. Chia appealed against the sentence, on the grounds that given his financial situation and the cumulative effect of the default imprisonment terms, it amounted to a crushing sentence which was contrary to the totality principle of sentencing. Chia also applied for leave to adduce additional documentary evidence of his financial means. Held, allowing the motion and the appeal in part: (3) A cumulative sentence might offend the totality principle if the aggregate sentence was substantially above the normal level of sentences for the most serious of the individual offences involved or if its effect was to impose on the offender a crushing sentence not in keeping with his records and prospects. (4) On the present facts, the individual fines were neither unreasonable nor excessive, given the scale and protracted nature of the offences. However, given the state of Chia’s finances, the aggregate effect of the fines, which amounted to 1,000 times his annual income, imposed a crushing sentence on him which was manifestly excessive and out of keeping with his records and prospects. (5) The default terms of imprisonment passed by the district judge were manifestly inadequate as they were too short to deter Chia from evading the fines, neither would these imprisonment terms constitute sufficient punishment in the event he defaulted on payment of the fines. (6) The total amount of fines payable was reduced to $1,550,993.25, approximately five times the total GST payable, whilst the aggregate length of the default terms of imprisonment was increased to 203 months. (7) Where an offender was sentenced to more than one default term of imprisonment, the court had power to order that the default terms run concurrently, in accordance with the totality principle of sentencing. This was the position in common law and nothing in the wording of s 224(b) (iv) of the CPC suggested otherwise. Where that section stipulated that the default term of imprisonment must be consecutive to ‘any other imprisonment to which [the accused] may be sentenced’ or the reference to ‘any other imprisonment…’ did not include default terms of imprisonment , which were imposed, not to punish the offender for the offence, but to deter him from evading the penalty prescribed, or to punish his default of payment of the penalty. (8) In this instance, it was contrary to the totality principle for the default terms amounting to 203 months of imprisonment to run consecutively, as such a lengthy term of imprisonment would be substantially above the normal duration of a default sentence for the most serious offences involved. Hence it was ordered that the default terms of imprisonment for two of the convictions run consecutively while those of the remaining seven convictions run concurrently, making a total of 71 months’ imprisonment. Default sentences of imprisonment are additional to any othe rpunishemtn but subj to proviso tt aggregate punishment of im,prisonemtn passed on offender at one trial x exceed limists prescribed b s17 CPC; s224(d) CPC – ie aggregate punishment of imprisonment plus default sentences of impriosemtn x exceed twice ord sentencing juris of court – 14 yrs for district, 4 for magis court

Wu Tze Kok v Public Prosecutor [2001] 4 SLR 645 - Facts - The appellant (‘Wu’) failed to attend court despite being ordered to do so, and was required to show cause. As Wu had no valid reasons for his failure, a show cause penalty, with imprisonment in default, was imposed. Wu promptly paid the penalty in full.

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Wu appealed, and requested the court to refund him the penalty paid, and allow him to serve the default sentence of imprisonment instead. Held, dismissing the appeal: (1) Section 19 of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) set out the appellate criminal jurisdiction of the High Court, which was circumscribed, in the present case, by s 224 of the Criminal Procedure Code (Cap 68), which deal with the power of the court to impose a sentence of default imprisonment. (2) The sentence of default imprisonment was meant to prevent the evasion of fines, and not to punish those genuinely unable to pay. This was evident from s 224(e), which stated that the sentence of default imprisonment ceased to be effective and terminated the moment the fine was paid, and s 224(f) which essentially relieved an individual of his remaining term of default imprisonment when he was able to pay the proportionate amount of fine outstanding. (3) The court was not legally empowered to grant Wu’s request. Section 224(b)(iv) clearly showed that the court’s discretion to impose a term of default imprisonment in lieu of paying the fine imposed was only available before the fine had been paid in full. Further, allowing Wu’s request went against the object of default imprisonment, as a person who had already paid the fine in full could not be said to be genuinely unable to pay.

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PP V liu san long @ yu xia hu 2002 – for 1 charge, accused sentenced to fine of 5000 in default two weeks of imprisonment o Ordered to run concurrently with imprisonemtn sentenes of other charges o Pros applied for crim revision on grd tt by ordering default sentence to run concurrently with other imprisonment sentences, sentence of fine imposed rendered ineffective because accused wld then escape conseq of punishment by not paying fine o Default sentences meant to deter accused fr evading penalty prscribed for offence o HC quashed lower court’s order tt default sentence be made to run concurrently

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But note section 18 CPC Consecutive sentences in certain cases. 18. Where at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which he is convicted shall order that the sentences for at least two of those offences shall run consecutively.

•

See Section 224 of the CPC Provisions as to sentence of fine. 224. Where any fine is imposed under the authority of any law for the time being in force then, in the absence of any express provision relating to the fine in such law, the following provisions shall apply: (a) where no sum is expressed to which the fine may extend, the amount to which the offender is liable is unlimited but shall not be excessive; (b) in every case of an offence in which the offender is sentenced to pay a fine the court passing the sentence may, at any time before the fine has been paid in full in its discretion, do all or any of the following things:

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(i)

allow time for the payment of the fine and grant extensions of the time so allowed;

(ii) direct payment of the fine to be made by instalments: - in practice if this is allowed then courts will req offender to pay up substantial part of fine forthwith – to disting offenders truly remorseful and who have made efforts towards securing funds prior to pleading guilty from dilettante offenders who just wwan to buy time Provided that before allowing time for payment of a fine or directing payment of a fine to be made by instalments the court may require the offender to execute a bond with or without sureties conditioned upon payment of the fine or of the instalments, as the case may be, on the day or days directed and in the event of the fine or any instalment not being paid as ordered the whole of the fine remaining unpaid shall become due and payable and the court may issue a warrant for the arrest of the offender; - if procured sureties who executed bond on his behalf, sureties may be called on to show cause why sum of bond shld not be forfeited; alternatively court may fix in default sum of impisonmetn – offender then informed of in default sentence. Will be warned tt if fais to pay on time or miss instalment, warrant of arrest will be issued against him and when taken into custody, may have to serve in default sentence of imprisonment (iii) issue a warrant for the levy of the amount by distress and sale of any property belonging to the offender; Form 40. (iv) direct that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of a sentence; (v) direct that the person be searched, and that any money found on him when so searched or which, in the event of his being committed to prison, may be found on him when taken to prison, shall be applied towards the payment of such fine, the surplus, if any, being returned to him: Provided that the money shall not be so applied if the court is satisfied that the money does not belong to the person on whom it was found; ******** (c) the term for which the court directs the offender to be imprisoned in default of payment of a fine shall be as follows: (i) if the offence is punishable with imprisonment for any term exceeding 6 months it shall not exceed one half of the term of imprisonment which is the maximum fixed for the offence; (ii) if the offence is punishable with imprisonment for any term not exceeding 6 months it shall not exceed the term of imprisonment which is the maximum fixed for the offence; (iii) if the offence is not punishable with imprisonment it shall not exceed the following scale: (A) when the fine does not exceed $50 the imprisonment in default of payment may be for any term not exceeding 2 months; (B) when the fine exceeds $50 but does not exceed $100, for any term not exceeding 4 months; (C) in any other case for any term not exceeding 6 months; (d) the imprisonment which the court imposes in default of payment of a fine may be additional to a sentence of imprisonment for the maximum term awardable by the court under

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section 11 provided that the aggregate punishment of imprisonment passed on an offender at one trial shall not exceed the limits prescribed by section 17; (e) the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law; (f) if before the expiration of the time of imprisonment fixed in default of payment such a proportion of the fine is paid or levied that the time of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate; (g) the fine or any part thereof which remains unpaid may be levied at any time within 6 years after the passing of the sentence and, if under the sentence the offender is liable to imprisonment for a longer period than 6 years, then at any time previous to the expiration of that period, and the death of the offender does not discharge from the liability any property which would after his death be legally liable for his debts.

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Note special default rovisions for fines imposed under customs act – s119 Courts can order extra time, instalments, warrant for levy by distress and sale, search for money in possession, in-default imp terms Know how to calculate default sentences in CPC! EXAM!!!!! o If punishable with imprisonemt not exceeding 6 mths, default sentence cannot exceed the max for tt offence o ………………… o In any other cse, cannot exceed more than 6 mths

f) Conditional and absolute discharge S8 probation of offenders act Absolute and conditional discharge. 8. —(1) Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, the court may make an order discharging him absolutely, or if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding 12 months from the date of the order, as may be specified therein: Provided that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make an order discharging a person absolutely or an order for conditional discharge if the person — (a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and (b) has not been previously convicted of such offence referred to in this proviso, and for this purpose section 11 (1) shall not apply to any such previous conviction. (2) An order discharging a person subject to such a condition is referred to in this Act as “an order for conditional discharge”, and the period specified in any such order as “the period of conditional discharge”.

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(3) Before making an order for conditional discharge the court shall explain to the offender in ordinary language that if he commits another offence during the period of conditional discharge he will be liable to be sentenced for the original offence. (4) Where, under the following provisions of this Act, a person conditionally discharged under this section is sentenced for the offence in respect of which the order for conditional discharge was made, that order shall cease to have effect. -

rarely used absol discharge – person almost being let out

g) Police supervision -

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s11(2) CPC when it can be imposed usu imposed for offenders who are persons who have been convicted of previous crimes and these shld have carried imp terms of at least 2 yrs and above, and they are brought back to court on offences of offnces with imp terms of 2 yrs abvove on conviction on present set of offences, cout will order police supervision for eruod up to 24 mths and accused to report so tt check kept on persons who are going ard committing such offences

Sentences. 11. —(1) The High Court may pass any sentence authorised by law provided that in no case shall the 3 punishments of imprisonment, fine and caning be inflicted on any person for the same offence. (2) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, the High Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than 3 years commencing immediately after the expiration of the sentence passed on him for the last of those offences. (3) A District Court may pass any of the following sentences: (a) imprisonment for a term not exceeding 7 years; (b) fine not exceeding $10,000; (c) caning up to 12 strokes; (d) any lawful sentence combining any of the sentences which it is authorised by law to pass; (e) reformative training: Provided that where a District Court has convicted any person and it appears that by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed in this subsection should be awarded, then the District Court may sentence that person to imprisonment for a term not exceeding 10 years and shall record its reason for so doing. (4) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, a District Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than 2 years, commencing immediately after the expiration of the sentence passed on him for the last of such offences. (5) A Magistrate’s Court may pass any of the following sentences:

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(a) imprisonment for a term not exceeding 2 years; (b) fine not exceeding $2,000; (c) caning up to 6 strokes; (d) any lawful sentence combining any of the sentences which it is authorised by law to pass; Provided that where a Magistrate’s Court has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed by this subsection should be awarded, then the Magistrate’s Court may award the full punishment authorised by law for the offence for which that person has been convicted and shall record its reason for so doing. (6) When a person having been convicted whether in Singapore or elsewhere of an offence punishable with imprisonment for a term of 2 years or upwards is convicted of any other offence also punishable with imprisonment for a term of 2 years or upwards, a Magistrate’s Court may, in addition to any other punishment to which it may sentence him, direct that he shall be subject to the supervision of the police for a period of not more than one year commencing immediately after the expiration of the sentence passed on him for the last of such offences. (7) Notwithstanding anything in this Code where by any law for the time being in force jurisdiction is given to a District Court or Magistrate’s Court to award punishment for any offence in excess of the power prescribed by this section for a District Court or Magistrate’s Court respectively the District Court or Magistrate’s Court may award the full punishment authorised by that law. h) Probation •

Probation of Offenders Act (POA). Under the POA, the High Court, the district courts and the magistrates’ courts are all empowered to make probation orders.

Section 5(1) of the POA Probation. 5. —(1) Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer or a volunteer probation officer for a period to be specified in the order of not less than 6 months nor more than 3 years: Provided that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make a probation order if the person — (a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and (b) has not been previously convicted of such offence referred to in this proviso, and for this purpose section 11 (1) shall not apply to any such previous conviction. •

offences for which sentence fixed by law held not simply to comprise offences which attract single inflexible sentence for which exact quantum and kind of punishment are expressly stipulated by statute – jumat’at bin samad v PP 1993 o read case for ‘fixed by law’ meaning o also see how 5.1 amended

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o so for eg offence like housebreaking wihti ntent to commit theft under s454 PC constituted offence for which sentence fixed by law – carried mandatory min and mandatory max imprisonment term -

following case, new proviso in 5.1 POA - Provided that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make a probation order if the person — (a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and (b) has not been previously convicted of such offence referred to in this proviso, and for this purpose section 11 (1) shall not apply to any such previous conviction.

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Section 5(1) POA - probation may be ordered for first-time offenders between 16 and 21 regardless of whether offence carries any specified minimum or mandatory minimum sentence (Juma’at overtaken)

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PP v Mok Ping Wuen Maurice - rehabilitation is the dominant consideration for offenders below 21 Probation ≠ conviction Period ranges from 6 months to 3 years Generally not appropriate for serious Penal Code offences eg. robbery, rioting or other violent crimes Probation not considered appropriate in PP v Muhamad Nuzaihan bin Kamal Luddin; Wu Si Yuan v PP [2003] SGHC 7 (cf. Wong Jia Yi v PP [2003] SGDC 53) Court may pursuant to s5.1 order offender to comply with reqts imposed by court o onditions include curfew; community service; residence; e-tagging; parental bond, residence at approved institution eg Singapore boys’ home o cannot make reqt for payment of suyms by way of damge for injry or compensation for loss amongst reqt of probation order – s5.2 proviso o but can make order under s10.2 for offender to pay damages for injury or compensation for loss as court thinks reasonable Probation never granted as of right; consider - offender’s prospects of reform/rehabilitation - seriousness of offence - other reasons militating against probation

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Considerations: • report is given tracing crim backgrds, reasons for offending, the sot of family support, and prospects tt offender has, and how he can be dealt with if to be palced on probation • on the pre sentence report, various programs tt will be prescribed for the offender • see the pre sentence report. Know what is covered in it and its structure. EXAMS!!!!!!!!!!!!!!! o Recommendations o What can be made under rehabilitations of offenders act o Max tt can be ordered o How community service can be performed Why does the Court need a Report?

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The Court has to decide on the most appropriate sentence for the offence you have committed. This is based on:• The seriousness of your offence • Your suitability for particular sentences. Some community sentences cannot be made unless a Report has been prepared. What meetings are needed? The Officer, who will interview you, probably on more than one occasion, will need to ask you relevant questions. This would normally involve discussion with your parents/carers at home. If you are in custody, the Officer will visit you. If you are on bail, it is most important that you keep appointments to allow the Officer the maximum time to prepare your report. The extent to which you participate will effect the quality of the Report. Who else is contacted? The Youth offending Team Officer may also want to talk with other people who know you, such as your teachers, social worker, youth worker, family doctor, or with others who provide specialist services that could be helpful to you. What does the Report contain? It gives information about: • The details and circumstances of your offence(s) • The seriousness of your offence(s) • An assessment of the consequences of the offence(s) including the impact on the victim. • An assessment of your attitude to the offence(s) and its consequence. • The risks of further offending. • Any personal circumstances which may be relevant to the offence(s) • The suitability of any particular sentence •

HC: Rehabilitation is the dominant consideration where the offender is 21 years and below. Young offenders are in their formative years and the chances of reforming them into lawabiding citizens are better. (See Mok Ping Wuen Maurice [1999] 1 SLR 138) – corrupt influence of prison environment and bad effects of labelling and stigmatidatin x desirable for young offenders

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Probation never grnted as of right even for juvenile offenders o There may be public interests involved. o See Muhammad Nuzaihan bin Kamal Luddin [2000] 1 SLR 34. still need to consider all circumstances includg 5.1 POA factors o Probation was inappropriate for a 17 year- old student convicted of “hacking” type offences under the Computer Misuse Act (CMA). Facts showed tt he had made conscious decision to use hacking skills and publicly boasted of his feats. In such cases, courts to apply principesl of strict liab so tt offender’s state of mind is irrelevant. o Pt of probation was to keep young offender off streets away fr bad company. CMA offences were usually committed from the offender’s home. o There was also a need to take into consideration for deterrence) o Computer crimes regarded very seriously in sg because need to preserve cmmercialintergirty and viability of computer systems and striving to be global e commerce hub

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Probation is generally inappropriate for accused persons who are foreign nationals not resident in Singapore. Difficult for the probation officers trying to supervise. (See Tan Choon Huat [1991] 3 MLJ 230) If not less than 14 yr sof age – o Section 5(4) of the POA o 5. (4) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsection (2) or (3)) and that if he fails to comply therewith or commits another offence he will be liable to be sentenced for the original offence; and if the offender is not less than 14 years of age the court shall not make the order unless he expresses his willingness to comply with the requirements thereof. Breach of conditions or further offence: liable to be sentenced for original offence: see Law Shu Fen v PP (MA 7/2003) – section 5.4

(4) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsection (2) or (3)) and that if he fails to comply therewith or commits another offence he will be liable to be sentenced for the original offence; and if the offender is not less than 14 years of age the court shall not make the order unless he expresses his willingness to comply with the requirements thereof. -

Section 6.2 for provn regarding amendment and review of probation order

Discharge, amendment and review of probation orders. 6. —(1) The court by which a probation order is made under section 5 may, upon application made by — (a) the probationer; or (b) the probation officer or volunteer probation officer who is responsible for the supervision of the probationer, discharge the order. (2) A court may, upon application made by the probation officer or volunteer probation officer or by the probationer, by order amend a probation order by cancelling any of the requirements thereof or by inserting therein (either in addition to or in substitution for any such requirement) any requirement which could be included in the order if it were then being made by that court in accordance with section 5: Provided that — (a) the court shall not amend a probation order by reducing the probation period, or by extending that period beyond the end of 3 years from the date of the original order; and (b) the court shall not so amend a probation order that the probationer is thereby required to reside in an approved institution, for any period exceeding 12 months in all. (3) Where the court proposes to amend a probation order under this section, otherwise than on the application of the probationer, it shall summon him to appear before the court, and if the probationer is not less than 14 years of age, the court shall not amend a probation order unless the probationer expresses his willingness to comply with the requirements of the order as amended: Provided that this subsection shall not apply to an order cancelling a requirement of the probation order or reducing the period of any requirement.

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(4) Where a court discharges or amends a probation order under this section, the clerk to the court shall forthwith give copies of the discharging or amending order to the Chief Probation Officer who shall give a copy thereof to — (a) the probationer; (b) the probation officer or volunteer probation officer responsible for the supervision of the offender; and (c) the person in charge of any institution in which the probationer was required by the probation order as originally made or is required by the amending order to reside. (5) A volunteer probation officer shall not make an application for the discharge or an amendment of a probation order under subsection (1) or (2), as the case may be, without the prior approval of the Chief Probation Officer. (6) Where a probation order, whether as originally made under section 5 or as amended under this section, requires a probationer to reside in an approved institution for a period extending beyond 6 months from the date of the order as originally made or amended, as the case may be, the probation officer or volunteer probation officer who is responsible for the supervision of the probationer shall, as soon as possible after the expiration of 6 months from that date, report to the court on the case. (7) On receipt of any such report, the court shall review the probation order for the purpose of considering whether to cancel the requirement as to residence or reduce the period thereof, and may, if it thinks fit, amend the order accordingly without the necessity for any application in that behalf. (8) Where, under the following provisions of this Act, a probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect. -

Under s5.2 – and without prej to 5.1, conviction of offender placed on probation shall be disregarded for purposes of written law imposing any disqualifn or disability on convicted persosns or authorises or req imposition of any such disqualification or disability

2) A probation order may in addition require the offender to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences: Provided that (without prejudice to the power of the court to make an order under section 10 (2)) the payment of sums by way of damages for injury or compensation for loss shall not be included among the requirements of a probation order.

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o Eg s379A PC reqt accusd convicted to be disqualieid fr driving for at last 3 yrs unelsss court thinks fit to order otherwise o PP v abdul hameed s/o abdul rahman 1997 – held tt offender put on probation was not ‘convicted’ for purspoe of s379A.2 PC - First appellant therefore not laible for disqualifn order Probtion increasingly used for even adult offenders depending on circumsntaces of offence and offender o More so when offdner suffers fr mental or intellectual disability

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Conditions: o Male and female, 16-21, Section 13(1) of the CPC, expedient with a view to his reformation and prevention of crime.

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o The power to order reformative training is available only to the High Court and District Court. Reformative training. 13. —(1) Where a person is convicted by the High Court or a District Court of an offence punishable with imprisonment and that person — (a) is, on the day of his conviction, not less than 16 but under 21 years of age; or (b) is, on the day of his conviction, not less than 14 but under 16 years of age and has, prior to his conviction, been dealt with by a court in connection with another offence and had, in respect of that other offence, been ordered to be sent to an approved school established under section 62 of the Children and Young Persons Act (Cap. 38), and the High Court or District Court (as the case may be) is satisfied, having regard to his character and previous conduct and to the circumstances of the offence of which he is convicted, that it is expedient with a view to his reformation and the prevention of crime that he should undergo a period of training in a reformative training centre, that Court may, in lieu of any other sentence, pass a sentence of reformative training. o

Borstal training – s20 Eng crim justice act 1948 has abolished this but sg still finds eng auth on borstal training orders relevant

Ng Kwok Fai v Public Prosecutor - Facts - On 28 June 1995, the appellant Ng was placed on 18 months probation after pleading guilty to a charge of rioting with hurt. On 13 October 1995, Ng was charged with unlawful assembly with the common object of committing affray, punishable under s 143 of the Penal Code (Cap 224). He pleaded guilty and wa sentenced to under reformative training. On 28 November 1995, Ng was taken before the district judge for breaching his probation order due to his conviction for the s 143 offence. In view of his youth, the district judge sentenced him to 18 months’ imprisonment and six strokes of the cane, the sentence to begin after Ng completed his reformative training. Ng appealed against sentence. - Held, allowing the appeal: - (1) Section 113 of the Criminal Procedure Code (Cap 68) (CPC) was based on the system of Borstal training in the United Kingdom under s 20 of the Criminal Justice Act 1948, which had been abolished. o A perusal of the relevant cases on Borstal training reveals a number of applicable principles. o 4 In R v Fry, George Thomas (1954) 38 Cr App R 157, the accused had been given a conditional discharge for an earlier offence of larceny. He was subsequently convicted of storebreaking and larceny and sentenced to Borstal training. He was also before Quarter Sessions for breach of the conditional discharge. The court declined to pass any sentence, taking the view that a substantial sentence of imprisonment would be inconsistent with the Borstal training. The Court of Appeal agreed that a substantial sentence of imprisonment would indeed be inconsistent with the Borstal training. However, it expressed the view that a nominal sentence of one day’s imprisonment should have been passed as otherwise the offence for which the appellant was conditionally discharged would not rank as a conviction. o 5 A similar approach was taken with respect to corrective training under s 21 of the Criminal Justice Act 1948 in R v Sokell [1965] Crim LR 562. A substantial prison term consecutive to corrective training was held to be undesirable as the

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imprisonment would undo whatever value was obtained from the training. However, in that case, the court ordered the prison sentence to begin immediately. o 6 In my view, the same principle is applicable here. o The whole basis of sentencing Ng to reformative training was that he was considered amenable to reform. The length of reformative training was governed by Schedule D to the Criminal Procedure Code (Cap 68), and Ng was to be detained for such period not exceeding three years as the Visiting Justices may determine, provided that the period not be less than 18 months except by direction of the President. He would then be subject to supervision until the expiration of four years from the date of sentence. (2) While it was in general undesirable for a reformative sentence to follow a prison sentence, in a case where the accused’s interest and in the public’s interest reformative training was the only appropriate way to deal with him, then the fact that, when he was sentence to reformative training, he was in the course of serving a prison sentence was no reason why the appropriate sentence of reformative training should not be passed. However, in such a case, the reformative training sentence commenced from the moment it was passed and the prison sentence merged with it. o 7 It seems quite apparent that a lengthy prison term after the appellant is released from reformative training would run counter to the aim of reformative training, as it could well undo what the reformative training is meant to do. The same is even more true of caning. In addition, it would be unfair to the appellant as the prospect of caning would hang heavily on his mind during the entire period of reformative training. The prospect of a lengthy prison term after release would be detrimental to reformative training. For this reason, I was of the view that the sentence was inappropriate. o 8 In considering what other sentences are appropriate, there are a number of applicable principles. First, in R v Beamon, Arthur (1948) 32 Crim App Rep 181, it was held that consecutive sentences of Borstal training were undesirable because they make the scheme unworkable. In the context of reformative training, the same difficulty arises — if the Visiting Justices thought fit to release the appellant on licence after 18 months, what would become of the other sentences? Hence, consecutive sentences are inconsistent with the scheme of reformative training. If the view is that the appellant is so intractable that he might not profit from reformative training, then he should be sent to prison. o 9 There appears, however, to be nothing wrong with imposing concurrent sentences of Borstal training. This was done in R v Dangerfield, Terence Edwin (1959) 43 Cr App R 164. Applying it to the Singapore context, it would mean that there is nothing wrong with concurrent sentences of reformative training o 10 There are also cases on the converse situation of Borstal training consecutive to imprisonment. The general rule was that this was undesirable — R v Donoghue [1963] Crim LR 375 and R v McMurray [1966] Crim LR 347. This, however, was not an intractable rule. In R v Hannah, Peter John (1968) 52 Cr App R 734, it was held that while it was in general undesirable for a Borstal sentence to follow a prison sentence, in a case where in the accused’s interest and in the public’s interest Borstal was the only appropriate way of dealing with him, then the fact that, when he was sentenced to Borstal, he was in the course of serving a prison sentence was no reason why the appropriate sentence of Borstal should not be passed. However, in such a case, the Borstal sentence commenced from the moment it was passed and the prison sentence merged with it. o 11 There appears to be no case on the reverse situation of a Borstal sentence merging with a prison sentence. However, it appears that the principle in R v Sokell

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applies. In that case, it will be recalled, it was held that imprisonment consecutive with corrective training was undesirable. Instead, the accused was sentenced to imprisonment concurrent with the corrective training. It should, however, be noted that in that case the term of imprisonment was longer than the term of corrective training. o 13 Hence, if the court is of the view that the offender is amenable to reform, then there are two courses open to it. First, it can impose a nominal sentence of imprisonment on the accused for the first offence, the sentence to begin after he has completed his reformative training. However, as nominal sentences of imprisonment should not usually be imposed, it would be preferable to sentence him also to reformative training in respect of the first offence. This second sentence of reformative training should be concurrent, as consecutive terms of reformative training are wrong in principle and could give rise to problems in practice. o 17 However, in view of the appellant’s youth, I was minded to give him one last chance at reform. In the circumstances, I substituted an order for reformative training under s 13 of the CPC for the 18 months imprisonment and six strokes of the cane for the offence for which he had been given probation. As consecutive terms of reformative training are not desirable, I ordered the second reformative training sentence to commence on the same date as the first. Accordingly, I allowed the appellant’s appeal. -

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(3) In this case, the sentence of 18 months imprisonment and six strokes of the cane consecutive to reformative training was inappropriate. However, in view of s 11 of the Probation of Offenders Act (Cap 252), it was also inappropriate to not impose any sentence on Ng. Unless Ng was sentenced for the earlier offence, the conviction would not count as a conviction for the purposes of relevant provision in the CPC such as s 12. (4) In view of Ng’s youth, the court was minded to give him one last chance at reform. The court substituted an order for reformative training under s 13 of the CPC for the 18 months imprisonment and six strokes of the cane for offence for which he had been given probation. The second reformative training sentence would commence on the same date as the first. Appeal allowed. Per curiam: In order to avoid the sort of difficulty that arose in this case, the court should, in dealing with an offender for a second offence – committed while on probation for an earlier offence –have regard to the fact that the offender would later have to be dealt with for the offence for which he had been given probation or conditional discharge as well. This was because sentences passed for the second offence could restrict the types of sentences that could be passed by the court dealing subsequently with the offence for which the offender had been given probation or conditional discharge.

 consecutive RT terms undesirable; should not order imprisonment to commence after offender has served RT o Ng Kwok Fai v PP [1996] 1 SLR 568. HC stated that consecutive terms of reformative training are not desirable because they made the scheme unworkable. Since the purpose of reformative training is to rehabilitate the offender, the ct should not order a term of imprisonment to commence after a term of reformative training.

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Cf. PP v Mohamed Noor bin Abdul Majeed - fresh offence while under supervision: ‘consecutive’ RT terms imposed o Cf PP v Mohd Noor bin Abdul Majeed [2000] 3 SLR 17. distinguished Ng Kwok Fai, in Ng the date of 2nd sentence of reformative training was relatively close to the first. Here, more than 47 mths had lapsed between the first sentence of RT and the 2nd. o Offender sentenced to refoamtive training for earlier offence and first dtained in reformative training centre on 16 feb 1996, released into supervision on 6 jan 1999 o Term of supervision expired on 15 2000

Facts The appellant was arrested and charged with an offence punishable under the National Registration Act for possessing another’s identity card. At the time of his arrest, it was discovered that he had previously been convicted and sentenced to reformative training for other offences. He was detained in a reformative training centre (“RTC”) for about 34 months before being released into supervision. During his term of supervision, the appellant disobeyed instructions and an order of recall for further detention was issued against him. The appellant failed to return to the RTC and remained unlawfully at large until he was arrested for the current offence. The appellant pleaded guilty to his charge. After taking into account his antecedents and mitigation plea, the trial judge sentenced him to reformative training. The trial judge ordered the current sentence of reformative training to commence on the same date as the appellant’s existing term of reformative training as he felt bound by the earlier High Court decision, which held that consecutive terms of reformative training were not desirable. The appellant appealed against his sentence. The trial judge filed the petition for CR 4/2000 after he discovered that there was an error in the statement of the charge. The Public Prosecutor brought CR 5/2000 on the basis that the trial judge’s order for concurrent sentences of reformative training was inappropriate on the facts. The applications were heard together. Held: (3) The detention and release of persons sentenced to reformative training was governed by Sch D to the Criminal Procedure Code (“CPC”). Due to the operation of para 4 of Sch D to the CPC, the problem of consecutive reformative training did not arise on the present facts. Applying the provision, the earlier sentence of reformative training ceased to have effect once the appellant was sentenced to further reformative training. Thus, there was only one sentence of reformative training, which was the current one being imposed. (4) The order for the sentence of reformative training to commence on the same date as the earlier term of reformative training effectively also meant that the appellant had already completed serving his sentence and would have to be released practically immediately. The order was obviously erroneous with an absurd result. Such circumstances therefore justified the exercise of the High Court’s revisionary powers, which would include the power to alter the nature of the sentence. The petition under CR 5/2000 was thus allowed and the sentence was amended to commence on the date of sentencing. Public Prosecutor v Andy Sofiaan bin Rahmad [2000] 3 SLR 770 - Facts - The respondent was released into aftercare supervision after serving about 32 months of reformative training for a previous conviction. The respondent failed to comply with the conditions of supervision and an Order for Recall to the reformative training centre was issued against him. He was then charged with vandalizing his “EMS” tag and for failing to report for urine tests. The respondent pleaded guilty and was sentenced by the District Court

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to reformative training to commence on the same date as the respondent’s prior term of reformative training. The Public Prosecutor petitioned for the sentence to commence on the date of conviction of the present charges. Held, allowing the petition: o (1) Paragraph 4 of Sch D to the Criminal Procedure Code (Cap 68, 1985 Rev Ed), where a Under respondent was sentenced for offences committed during the supervision period following release from the reformative training center (“RTC”), the existing RTC sentence would cease to have effect and the new RTC sentence should commence on the date of his conviction of the fresh offences. o (2) When an RTC sentence was ordered for offences committed while the respondent was under supervision post-RTC release, the fact that the order for reformative training fell consecutive to a separate term of reformative training did not run counter to the aim of reformative training.

Cheng Thomas v Public Prosecutor [2001] 1 SLR 285 - Held: - Rehabilitation is the dominant consideration where the offender is 21 years and below. Young offenders are in their formative years and chances of reforming them into law-abiding adults are better. The corrupt influence of a prison environment and the bad effects of labelling and stigmatisation may not be desirable for young offenders. Compassion is often shown to young offenders on the assumption that the young `don’t know any better’ and they may not have had enough experience to realise the full consequences of their actions on themselves and on others. Teens may also be slightly less responsible than older offenders, being more impressionable, more easily led and less controlled in their behaviour. - These considerations were similarly applicable to the present facts of the case. A custodial sentence was therefore unsuitable for the appellant. - 15 For the earlier stated reasons, the sentence passed by DJ Mavis Chionh was similarly not excessive. The two fresh offences under s 224 and s 427 of the Penal Code each provided for punishment “with imprisonment for a term which may extend to 2 years, or with fine, or with both”. Applying the principles I laid down in Ng Kwok Fai v PP (supra), a custodial sentence was not suitable on the present facts since the appellant had already been sentenced to reformative training by DJ Seng Kwang Boon. The appellant’s antecedents and long history of misconduct, however, ruled out the mere imposition of a fine for the two offences. In the light of all the foregoing, I found the concurrent sentence of reformative training ordered by DJ Mavis Chionh to be the most appropriate sentence for the appellant. Accordingly, I ordered for this appeal to be dismissed too. • •

RT can be ordered for male and female offenders between 16 and 21: s 13 CPC Can only be ordered by the HC and DC

13.2 – commit offender in custody for sentence to DC (2) Where a person is convicted by a Magistrate’s Court of an offence punishable with imprisonment and that person — (a) is, on the day of his conviction, not less than 16 but under 21 years of age; or (b) is, on the day of his conviction, not less than 14 but under 16 years of age and has, prior to his conviction, been dealt with by a court in connection with another offence and had, in respect of that other offence, been ordered to be sent to an approved school established under section 62 of the Children and Young Persons Act (Cap. 38), and the Magistrate’s Court is satisfied of the matters mentioned in subsection (1), the Court may commit him in custody for sentence to a District Court. o

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Mohamed Walik Shafiq bin Adzhar Shah v PP2002 - no RT for ‘MAC’ offence unless order made by MC to commit offender before a DC pursuant to s 13(2) CPC - HC set aside RTC sentence and remitted case to magis for accused to be committed in custody for sentence before DC pursuant to s13.2

Pre-sentence report before order can be made for reformative training – by or on behalf of director for prisons on offender’s physical and mental cond and his suitability for reformative training o Court must consider physical and mental suitability based on RTC report: s 13(5) CPC remand not exceeding 3 weeks - during period remand, acused persons then assessed by counsellors and others on accused person’s sutiability for rformative training o

Section 13(5) of the CPC 13. (5) Before a sentence of reformative training is passed under this section, and before a person is committed for sentence under subsection (2), the Court shall consider any report or representations made by or on behalf of the Director of Prisons on the offender’s physical and mental condition and his suitability for the sentence; and if the Court has not received such a report or representations it shall remand the offender in custody for such a period or periods, not exceeding 3 weeks in the case of any single period, as the Court thinks necessary to enable the report or representations to be made. •

Court can order reformative training even where offender prev imprisoned for other offences - Court can also order reformtive training even whre offence of which offender convicted carries max sentence of imprisonment which is much shorter than min term of detention possible in reformative training - *r v Douglas 1965  accused convicted of offence with max punishment of 1 mth imprisonment andor fine of 20 pounds; numerous antecedents ahd prev served 6 mths impriosnmetn for prev conviction, inter aia  eng CCA upheld sentence of borstal training for accused – indicated tt he shld have oppty of training and showing tt he cld reform - *R v amos 1965 – eng CCA held disting earlier uth tt although max sentence fixed by statute for offence might be shorter term than offender wld undergo if sentenced to borstal training, senenc eof bordtal training cld nevertheless lawfully be passed – max term of imprisonment fixed for offence said to be no more than relvant consideration in deciding whether ot impose borstal training - followed in Mohamed Walik Shafiq bin Adzhar Shah v PP2002 – accused eventually sentenced to TRC by district court for offence under s35.1 of misc offences (public order and nuisance) act with max punishment of 1 yr imprisonment or fine not exceeding $3000 or both

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Detention & supervision during reformative training – see SCHEDULE D!! o An offender sentenced to reformative training shall be detained subject to his release in accordance with Schedule D of the CPC. o The minimum period is 18 months from the date of his sentence, whereas the maximum period is 3 years. (Para 1 of Schedule D)

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o Maximum 3 years; minimum 18 months, followed by supervision - court does not specify duration o Para 1 to sched D o Period of detention and approp time for release determined by Visiting Justices - Can be further imposed o After release fr reformative training centre offender subj to further supervision until expiration of 4 yrs fr date of sentence and whilst under supervision, has to comply with such reqt as may be specified – para 3 sched D - Breach of which can bring you back to RTC - Note no remission. - This is why it is not preferable to actual imprisonment o Visiting justices have discretion to modify or cancel any of said reqts or to order cessation of supervision o

Reformative training consists of 2 elements (i.e. detention & supervision)2, an order of reformative training is not suitable when the offender will not be able to undergo both phases and hence, also not suitable for foreigners. (See Lai Heng Hwa [1992] 1 SLR 914. In this case, the offender was a Malaysian and would be repatriated to Malaysia on release from a reformative training centre, as such, he would be unable to undergo supervision)

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Offender convicted of var offences before court and ordered to undergo RT shld reeive single sentence of RT for multiple offences – shl dnot be sep order of reformative training - RT is in lieu of any other (punitive) sentence ie. imprisonment/caning - mandatory DQ order must be made: PP v Mohammad Rohaizad bin Rosni – offender pleaded guilty to 3 charges under s379A PC, one charge under s379 and 2 under s140(1)(i) WC – received single sentence of reformative training

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A single reformative training sentence for all charges. There should NOT be a separate order of reformative training made on each charge, even if convicted on each of the charge. (See Mohammad Rohaizat bin Rosni [1998] 3 SLR 804) o Clarified abdul hameed s/o abdul rahman 1997 which held- Wrong to impos term of disqualif alongside order for probation as prereq for disqualif order is tt offender convicted of offence o Under s13 CPC, reformative training iposed in lieu of not just sentence of imprisonment but also caning, fine and any combi (“in lieu of any OTHER sentence”) - Rationale not to inflict pain but to ensure that you are able to conform/ reform and understand discipline o HC held tt as matter of practicability, refoamtive training shld substit both imprisonment nad caning o Both forms of punishment inconsistent with refoamtiv training – former 2 are retributive in character wherea reformative training is rehabilitative regime o HC also added tt sam view not nec applicable where fines concerned because court felt tt some fines cld be compensatory in nature o See CPC – no caning during RT section 13 - Contrast s12 – CT and PD – court unless has special reasons for not so doing shall pass in lieu of any sentence OF IMPRISONMENT a sentence of CT of such term of not less than 5 yrs but not more than 14 yrs.

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For further details, please refer to Para 2 of Schedule D of the CPC.

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Difference in wording. Draw this distinction!!!

o For disqualif orders against ofendes conviced under s379A PC and snenteced to reformative training – since disqualif order under s379A not sentence for purpose of s13 CPC, such disqualifn order can be made on top of sentence of reformative training j) Corrective Training •

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Section 12(1) CPC - can only be ordered by the HC and DC – MC courts no such sentencing powers 5 years minimum; 14 years maximum 2 sitn where court will order corrective training unless special reasons for NOT doing so – s12.1

Corrective training and preventive detention. 12. —(1) Where a person who is not less than 18 years of age — (a) is convicted before the High Court or a District Court of an offence punishable with imprisonment for a term of 2 years or upwards, and has been convicted on at least two previous occasions since he attained the age of 16 years of offences punishable with such a sentence; or (b) is convicted at one trial before the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for a term of 2 years or upwards, and has been convicted and sentenced to imprisonment for a term of not less than one month since he attained the age of 16 years of an offence punishable with imprisonment for a term of 2 years or upwards, then, if the Court is satisfied that it is expedient with a view to his reformation and the prevention of crime that he should receive training of a corrective character for a substantial period of time, followed by a period of supervision if released before the expiration of his sentence, the Court, unless it has special reasons for not so doing, shall pass, in lieu of any sentence of imprisonment, a sentence of corrective training for such term of not less than 5 nor more than 14 years as the court may determine. (2) Where a person who is not less than 30 years of age — (a) is convicted before the High Court or a District Court of an offence punishable with imprisonment for a term of 2 years or upwards, and has been convicted on at least 3 previous occasions since he attained the age of 16 years of offences punishable with such a sentence, and was on at least two of those occasions sentenced to imprisonment or corrective training; or (b) is convicted at one trial before the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for a term of 2 years or upwards, and has been convicted and sentenced to imprisonment for a term of not less than one month since he attained the age of 16 years of an offence punishable with imprisonment for a term of 2 years or upwards, then, if the Court is satisfied that it is expedient for the protection of the public that he should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiration of his sentence, the Court, unless it has special reasons for not so doing, shall pass, in lieu of any sentence of imprisonment, a sentence of preventive detention of such term of not less than 7 nor more than 20 years as the Court may determine. (3) Before sentencing any offender to corrective training or preventive detention the Court shall consider the physical and mental condition of the offender and his suitability for such a sentence.

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(4) A person sentenced to corrective training or preventive detention shall be detained in a prison for the term of his sentence subject to his release on licence in accordance with Schedule C, and while so detained shall be treated in such manner as may be prescribed by rules made under section 407 • •

Additional mandatory orders eg. caning or DQ must be made CT meant for offenders who show capacity for reform - PP v Wong Wing Hung Main aim … is to reform the offender by instilling in him a sense of discipline and by teaching him useful work skills No requirement that he must be shown to be a ‘menace to society’ before CT can be imposed - The mmt he becomes menace – will move on to regime of preventive detention.

•

No arbitrary upper age limit - Kua Hoon Chua v PP – in this case training on 37 yr old - THOUGH MOST LIKIELY TO SUCCEED in case of youthful offender for whom remains after discharge not insignif portion of life in which to make use of skill acqd in corrective training

•

Court shall consider physical and mental suitability - CT reports called in practice but not a mandatory requirement: Kua Hoon Chua v PP - HC on appeal did not call for reports because judge of view tt records befor him suff to hsow tt accusd clearly suited for CT - Ntoe that reports if called for are extended to defence counsel as matter of courtesy – offenmder x automatically become entitled to cross examine prison psychologist or official who put up report

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Single sentence of CT ‘Mixed’ charges - MAC/DAC? Unnecessary to impose a separate sentence for MAC charges: see G Ravichander v PP

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HC, DC; Section 12(1) of the CPC, 5-14 years conditions in Section 12(2) of the CPC; - must comply unless court special reasons for not so doing for those above 18; no upper age limit Is he capable of reform? (See Wong Wing Hung [1999] 4 SLR 329). The main aim of corrective training is to reform the offender by instilling in him a sense of discipline and by teaching him useful work skills.

Public Prosecutor v Wong Wing Hung [1999] 4 SLR 329 -

Facts The respondent pleaded guilty in a district court to a charge under s 332 of the Penal Code (Cap 224) of voluntarily causing hurt to a public servant. At the age of 35 years, the respondent had been charged and convicted 16 times and sentenced to a total of 15 years of imprisonment and 25 strokes of the cane for crimes involving violence, including outrage of modesty, use of offensive weapons, rape, criminal intimidation, theft, causing grievous hurt and armed robbery. The current offence was committed barely two months after he was last released from prison.

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The district judge sentenced the respondent to nine months’ imprisonment on account of his antecedent convictions. He rejected the prosecution’s request to impose preventive detention as he found it inappropriate. He highlighted the fact that the maximum term of imprisonment for the offence in question was only five years whereas the minimum term for preventive detention was seven years. The prosecution appealed against the sentence. Held, allowing the appeal: (1) The district judge erred in law and principle by drawing a comparison between the maximum term of imprisonment for the present offence with the minimum term of preventive detention. (2) The purpose of imposing preventive detention was to protect the public. If the offender by his history of criminal behaviour proved to be a menace to society, he should and must be put away for the protection and safety of the community at large. The normal limitations on sentencing did not apply for a sentence of preventive detention. In imposing a sentence of preventive detention, the judge was only subject to the limits in s 12 of the Criminal Procedure Code (Cap 68). (3) The respondent accumulated a large number of criminal convictions for crimes involving violence. His affinity to crime and aggression came close to an addiction and it was expedient for the public’s protection to take him out of circulation for the maximum possible period. (4) As the court was fully satisfied that the respondent was both physically and mentally suited for a sentence of preventive detention, the usual practice of calling for a pre-sentencing report on the physical and mental condition of the offender and his suitability for such a sentence was not needed. (5) The maximum term of 20 years of preventive detention was imposed on the respondent. No need to fulfil ‘menace to society’ requirement. If menace to society, should be preventive detention (PD). o Furthermore, reports on the offender’s physical and mental condition and suitability for corrective training are called for by the court primarily as practice, to confirm what the court has been able to observe of the offender in court and from other available evidence. (See Kua Hoon Chua [1995] 2 SLR 286) But corrective training not a lesser form pf preventive detention – critical factor is amt of tiem court feels is reqd to enable real reform - *ravichander v PP 2002 CT is meant to supplant a sentence of imprisonment, which would otherwise be ordered (passed in lieu of any sentence of imprisonment). If the offence in question carries other punishment such as caning, this can be imposed on top of the corrective training. (See Yusoff bin Hassan [1992] 2 SLR 1032) Facts: The three appellants were each convicted of a number of robbery-related offences at one trial. In lieu of imprisonment, they were sentenced to preventive detention and corrective training. Separate sentences were awarded for each charge. The first appellant was sentenced to a total of 12 years preventive detention, the second appellant to a total of 14 years preventive detention and the third appellant to a total of 8 years corrective training. In addition, they were each sentenced to a total of 24 strokes of the cane and to two years` police supervision. The appellants appealed against the sentences imposed. o Held: Firstly, for three of the charges, the period of custody term imposed was below the statutory minimum, which was an error. Secondly, corrective training and preventive detention should be ordered in lieu of the aggregate sentence of o

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imprisonment, which the court would otherwise have been minded to impose. In sentencing an offender to corrective training or preventive detention, the court should award a single sentence based on the offences for which the offender has been convicted before it, and his criminal record. The statutory provisions relating to the ordering of consecutive or concurrent sentences of imprisonment were clearly inapplicable. •

Note also tt where accused convicted of n of offences and court minded to sentence ihm to corr training, this shkd be orederd in lieu of aggregate sentnc eof imprisonment tt court otherwise minded to impose – yusoff bin hassan o Ie there is single sentence eof corr training imposed for all offences of which accused stands convicted bfore the court

Public Prosecutor v Tsao Kok Wah [2001] 1 SLR 666 - Facts - The respondent pleaded guilty to a charge of attempting to commit house-breaking by night with the intention of committing theft, contrary to s 457 read with s 511 of the Penal Code (Cap 224) (“the Act”). The respondent’s antecedents included prior convictions for housebreaking. For the present offence, the judge sentenced the respondent to six years’ corrective training with no caning. The judge was of the view that s 458A applied only to an actual commission of the offence and not to an attempt to commit the offence. The judge felt that an attempt should not be treated as severely as a completed offence and since there was an ambiguity in s 458A, such ambiguity should be construed strictly in favor of the accused. Finally, the judge believed that the Parliament did not intend s 458A to apply to attempted offences. The prosecution appealed on the ground that the sentence was manifestly inadequate and that caning should be imposed. - Held, allowing the appeal and enhancing the sentence to include six strokes of the cane: - (1) The rule requiring a strict construction of penal statues was not relevant as the words in s 458A of the Act were not ambiguous. Thus, the provision should be interpreted purposively, as dictated by s 9A of the Interpretation Act (Cap 1). In applying s 9A, there was no need for any ambiguity or inconsistency in the provision in question. - (2) Although the relevant parliamentary debates made no mention of attempts, it was clear that the provision was aimed at preventing or minimising the mischief associated with housebreaking. The intention of Parliament behind s 458A was to deter a subsequent attempt as much as a subsequent commission of the offence under s 454 or 457. - (3) There was no reason why a distinction should be drawn here between an attempt and the actual commission of the offence under s 457. It was usually fortuitous why an attempt was unsuccessful. In any case, even if the punishment for an attempt should be less than for an actual commission of the offence, if only to encourage offenders to desist before consummating the offence, it could be argued that s 458A merely required caning as an additional punishment. The court still had the discretion as to how many strokes to impose. - (4) If a distinction was drawn, the police or the public would have to allow a known convicted burglar to succeed in breaking in and stealing before arresting him in order to ensure that he would be liable for the enhanced punishment of caning. This would undermine law enforcement and efforts to prevent crimes and could not have been Parliament’s intention. -

Whereas sentences of imprisonment governed by prisons act, sentences of corr training governed by CP (Corr training and preventive detention) rules

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o Two regimes quite diff o For sentence of imprisonment, generally 1/3 period of remission – rule 118 Prisons regulations *******Remission — how granted 118. —(1) With a view to encouraging good conduct and industry and to facilitate reformative treatment, prisoners sentenced to imprisonment shall be entitled to be granted remission as follows: (a) convicted prisoners sentenced to a term of imprisonment exceeding 14 days shall be granted as remission one third of their sentences, except that in no case shall any remission granted result in the release of prisoner until he has served 14 days; and (b) prisoners sentenced to a term of imprisonment of 14 days or any period less than 14 days shall not be granted remission. (2) Notwithstanding any provision in these Regulations, the Superintendent may, in any case where any other punishment ordered by the Court has not been executed, reduce the period of remission to be granted to the prisoner under paragraph (1) by not more than 2 weeks to enable that punishment to be executed. o Whereas under corr training, offender merely released on licence pursuant to Sched C of CPC – rule 5 Crim Pro (corr training and preventive detention) rules) Release on licence. 5. A prisoner sentenced to corrective training shall become eligible for release on licence after he has served two-thirds of his sentence of corrective training. k) Preventive Detention •

Section 12(2) CPC - can only be ordered by the HC and DC – MC x such powers • HC, DC, Section 12(2) of the CPC. The term of PD is not to be less than 7 years and not to be more than 20 years. A single PD sentence. 12. (2) Where a person who is not less than 30 years of age — (a) is convicted before the High Court or a District Court of an offence punishable with imprisonment for a term of 2 years or upwards, and has been convicted on at least 3 previous occasions since he attained the age of 16 years of offences punishable with such a sentence, and was on at least two of those occasions sentenced to imprisonment or corrective training; or (b) is convicted at one trial before the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for a term of 2 years or upwards, and has been convicted and sentenced to imprisonment for a term of not less than one month since he attained the age of 16 years of an offence punishable with imprisonment for a term of 2 years or upwards, then, if the Court is satisfied that it is expedient for the protection of the public that he should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiration of his sentence, the Court, unless it has special reasons for not so doing, shall pass, in lieu of any sentence of imprisonment, a sentence of preventive detention of such term of not less than 7 nor more than 20 years as the Court may determine.

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to be ordered unless court has special reasons for not doing in eiter of 2 sets of sitn – see 12.2 CPC o Conditions: Section 12(2) of the CPC passed in lieu of sentence of imprisonment - as with corr training, if additional mandatory punishment like caning also prescribed for offence in qn, additional punishment must be imposed in qddition to preventive detention term - single sentence for all offences for hich accused convicted in lieu of aggregate sentence of impriosnemtn tt court otherwise wld have imposed *yusoff bin hassan v PP 1992 Additional mandatory orders eg. caning or DQ must be made PD for protection of the public against ‘high-risk’/recalcitrant offenders – PP v Yusoff bin Hassan v PP; - Tan Ngin Hai v PP; - PP v Syed Hamid bin A Kadir Alhamid 2004 4 SLR 154 (CA decision) PD reports may be called in practice but not mandatory – PP v Wong wing hung 1999 3 SLR 329 See slides Single sentence of PD Consecutive PD sentences may be ordered: Nicholas Kenneth v PP – sentence wld have to commence fr date sentence was passed. No express power under s34.1 CPC to order PD terms to run consecutively. See case.

nicholas Kenneth v Public Prosecutor [2003] 1 SLR 80 - Facts - The appellant, Kenneth Nicholas (“Kenneth”) was charged with kidnapping N, a nine-yearold girl and Q, a five-year-old girl, contrary to s 363 of the Penal Code (Cap 224) (“PC”); using criminal force with an intent to outrage N’s modesty, contrary to s 354 of the PC; and using criminal force with an intent to outrage Q’s modesty and causing fear of instant hurt to Q, an offence punishable under s 354A(2)(b) of the PC. He pleaded guilty to all four charges before a district judge. He also consented to having a fifth charge, of voluntarily causing hurt to Q, contrary to s 323 of the PC, taken into consideration. On the morning of 12 August 2002, the district judge sentenced him to 20 years of preventive detention and 12 strokes of the cane. - In a separate hearing before a different district judge later that day, Kenneth also pleaded guilty to an offence of kidnapping Z, a seven-year-old girl, contrary to s 363 of the PC and the charge of having two prohibited publications in his possession, an offence punishable under s 6(2) of the Undesirable Publications Act. On the afternoon of 12 August 2002, the second district judge sentenced Kenneth to 20 years of preventive detention and three strokes of the cane. The district judge also ordered that the sentences of preventive detention ordered by herself and the earlier district judge commence on the same day. - Kenneth appealed against both of the sentences imposed on him by the district judges. - Held, allowing one appeal and dismissing the other: - (1) Pursuant to s 9A(1) of the Interpretation Act, a purposive interpretation of a statutory provision was to be adopted over a literal interpretation that did not support the purpose and object of the written law, even if the wording of the statute was not ambiguous or inconsistent: at [16] to [18].

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(2) Parliament’s intention in enacting s 234(1) of the Criminal Procedure Code (Cap 68) was to empower the courts to mete out an aggregate sentence that reflected the seriousness of the offences which formed the basis of subsequent trials when an offender was already serving a sentence. A purposive interpretation of s 234(1) meant that the court should have the same options when it determined the commencement date of subsequent sentences when an accused was undergoing a sentence of either preventive detention or imprisonment pursuant to that section: at [21]. (3) The court would only order consecutive sentences of preventive detention if it was necessary to reflect the extent to which the accused was a threat to the community: at [26]. (4) Kenneth’s history of crime and his medical and preventive detention reports showed that he had a great propensity towards committing sexual crimes against young, vulnerable girls. An appropriate sentence for the offences that he pleaded guilty to before the earlier district judge was the maximum term of 20 years’ preventive detention: at [27] to [33]. (5) Kenneth also pleaded guilty to kidnapping Z. This proved that he was such a menace to society that he should be locked away for more than 20 years in aggregate. As he was only 49 years old, concurrent sentences of preventive detention would mean that he would be released at the age of 69 when he would still be capable of harming society. His sentences of preventive detention should run consecutively so as to adequately protect society from him. As he was found guilty of only one further offence of kidnapping, his second sentence of preventive detention was reduced to ten years to run consecutively so that he would serve a total of 30 years’ preventive detention and would only be released at the age of 79 with a probably reduced libido: at [34]. ‘Mixed’ charges - MAC/DAC? Unnecessary to impose a separate sentence for MAC charges: see Heng Jong Cheng v PP The purpose of imposing preventive detention was to protect the public and if the offender in question proved by his history of criminal behaviour to be a menace to the society, then he should and must be put away for the protection and safety of the community at large. Yusoff bin Hassan o Purpose? Protection of the public, habitual offenders, over 30 years’ old, beyond redemption, too recalcitrant for reformation

Public Prosecutor v Syed Hamid bin A Kadir Alhamid [2002] 4 SLR 154 - Held, allowing the appeal: - (1) Preventive detention was intended for habitual offenders, aged 30 years old or more, whom the court considered to be too recalcitrant for reformation. It ought to be imposed if the accused was such a menace to society that he should be incarcerated for a substantial period of time. Further, while the court would consider the need for the public to be protected from physical bodily harm, offences such as those against property could also be taken into account in determining whether preventive detention was appropriate. - (2) The judge should have ordered preventive detention. Syed committed his first crime in 1976, was convicted on numerous occasions, and was imprisoned for a total of 49 months. Further, his dependence on drugs and alcohol was the reason for many of his offences. Hence, these and the circumstances of his latest offence revealed his propensity for crime, and there was a real danger that he would commit more offences in the future. 

The normal limitations on sentencing did not apply when the court was considering a sentence of preventive detention. Preventive detention was distinct from a term of imprisonment and the two should not be confused as the same. When imposing a sentence of

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preventive detention, a judge was limited only by Section 12 of the CPC. – PP v wong wing hung 1999 

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Incorr for court to take acct length of sentences prev imposed on offender for prior convictions when deciding whether to sentence ehim to rpev detention – PP v perumal s/o suppiah 2000 o (3) The district judge erred in considering the length of the imprisonment sentence previously imposed on the respondent. The criteria for the imposition of preventive detention, as set out in s 12(2) of the Criminal Procedure Code (“CPC”), did not stipulate a minimum term for an offender’s previous sentences and did not require the previous sentences to correspond to the minimum period of preventive detention. It should be borne in mind that a different sentencing framework had been provided for imprisonment and preventive detention. Any comparison between the sentences previously imposed on the offender and the minimum period of preventive detention was misconceived and constituted a misreading of the law and objective of preventive detention. o (4) Once the criteria set out in s 12(2)(a) or s 12(2)(b) of the CPC were met and the court was satisfied that the offender posed such a danger to the public that it was expedient to detain him in custody for a substantial period of time, the court must sentence him to preventive detention unless there were special reasons which made preventive detention unsuitable. Thus, the district judge erred in holding that he retained the discretion not to impose preventive detention and that the protective purpose of preventive detention could be met by a substantial term of imprisonment once the threshold was met. o (5) When determining whether to impose a sentence of preventive detention, the enquiry should simply focus on the danger which the offender posed to the community at large. Whether he should be incarcerated under the regime of imprisonment or preventive detention was not the subject of the enquiry at this stage. Correspondingly, it followed that the prospect of remission was also not a relevant consideration. Principle reinforced in PP v syed hamid a kadir alhamid o (3) As regards the appropriate period of detention, any comparison between the sentences previously imposed on the offender and the minimum period of preventive detention was misconceived and constituted a misreading of the law and objective of preventive detention. In the result, Syed was sentenced to preventive detention for the maximum period of 20 years. In determining length of PD term, relevant factors for consideration include offender’s remorse/lack thereof, list of antecedents, likelihood or risk of re-offending.

Heng Jong Cheng v PP [1999] 2 SLR 345. - Facts - The 57-year old appellant was convicted after a trial on 23 charges of abetment of cheating and a charge of abetment of attempted cheating. He also pleaded guilty to an affray charge. He was sentenced to nine years’ preventive detention. The appellant appealed against his sentence. - Held, dismissing the appeal and enhancing the sentence to 20 years preventive detention:  (1) The appellant’s continued protestation of a “fix-up”, even on appeal, demonstrated an obstinate refusal to accept responsibility for the offences committed.

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This, together with his lengthy list of antecedents and the high likelihood of his reoffending rendered his appeal against sentence without merit. (2) Far from being manifestly excessive, the term imposed was in fact manifestly inadequate to protect the public from a menace like the appellant. At 57, the appellant had no useful skills. If released into society at age 66, he was unlikely to find gainful employment; and the lack of any gainful employment would simply fuel his tendencies towards unlawful means of livelihood. In the circumstances, the High Court considered a protracted period of detention to be in the best interests of the public and the appellant.

Max term of 20 yrs prev det also given to 35 yr old offender in wong wing hung convicted 16 times since 1980 for wide range of serious and violent offence sinculd armed robbery, rape, crim intimidation, outrage of modesty etc Salwant singh – 20 yrs prev det also imposed – offender had obrained bachelor’s degree in ecos though distance learning prog during 5 yr corrective training sentence and upon release promptly used skills to acilitate what HC described s compex computer based credit card scam Theft and drugs are equally offensive to public. There is no rule of law which states that the protection of the public necessarily refers to protecting them only from physical bodily harm. PD ought not to be restricted to persons with a history of violent crimes. The real test is whether or not the degree of propensity towards any type of criminal activity is such that the offence should be taken out of circulation altogether so that he is not given the slightest opportunity to gibe in to his criminal tendencies. (See Tan Ngin Hai [2001] 3 SLR 161) o He was convicted of theft of 1.10 fr van o He had a record of t least 15 prev convictions including possession of ffensive weapon, affray and robbery wit hurt o Sentence of 8 yrs detention upheld on appeal Court will first consider offender’s physical and mental suitability - PD reports called in practice but not mandatory: PP v Wong Wing Hung o May disopnse with this where satisfied tt offender physically and mentally suited for sentence of prev det Regime governed by CP (Corr trining and preventicve det) rules – diff fr imprisonment

l) Disqualification from Driving •

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DQ relates to motoring/motor insurance offences and theft of motor vehicles or component parts – pursuant to s379A PC o May be mandatory or discretionary depending on specific stat provn Offender is disq fr driving or fr holding or obt driving icense for specified period Depending on legislation, DQ commences on date of conviction (eg s 3(2) MV (TP R & C) Act) or on expiry of imprisonment (eg. s 379A Penal Code) Mandatory DQ must be ordered alongside RT/CT/PD; not for probation

o Stewart Ashley james v PP 1996 – HC held tt court making disq order under s3.2 Motor vehicles (third poarty risks and compensation) act no discretion to limit disq to only certain classes of vehicles – order must extend to all calses of vehicles

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o PP v mohammad rohaizad bin rosin – if conviction for offence entails mandatory disqualif and offender convicted of several counts of tt offence, court to impose sep termof disq for each conviction o Probation ordr not conviction for purposes of disq – s5.2 probation of offenders act – so wrongot make disq order alongside probation order – abdul hameed o Each conviction under section 379A will attract seop disq term o All dis terms under the sn will run fr date of release fr incarceration o Multiple disq terms must run concurrently since each hav to run fr date of offender’s release fr incarceration o

In some provisions, the court has discretion not to order disqualification where “special reasons” exists (E.g. Section 67(2) of the Road Traffic Act.). o Special reasons not to impose DQ, must relate to facts of circumstances of an offence, and not to offender himself. (See MV Balakrishnan [1998] 3 SLR 586 o Joseph Roland v PP 1996 1 SLR 179 – no one has succeffuly raised special reasons for past 20 yrs! They have to be reasons relating to facts and circumstances and not offender himself. o ‘Special reasons’ not to order DQ must relate to the facts or circumstances of offence and not personal circumstances o ‘special reasons’ have to be reasons which relate to the facts or circumstances of an offender and not to the offender himself o A mitigating or extenuating circumstance, not amounting in law to a defence to the charge o Directly connected with the commission of the offence o In this case, the appellant was not ‘forced’ to drink, but did so in the midst of merrymaking. The ‘remorse’ he felt was not a factor related to the circumstances in which the offence was committed and did not qualify as a ‘special reason’ excusing him from a disqualification. o Onus lies on offender to raise ‘special reasons’: Chue Woon Wai v PP o Irrespective of whether the Court is dealing with mandatory or discretionary disqualification o Accused’s own duty to highlight his ‘special reasons’ for not imposing DQ. (See Chue Woon Wai [1996] 343) o If he chooses to say nth in mitigation, he does so in ex of his own better judgmne and court can only assume tt he knows what is in his own best interest Special reasons’ – It is a question of law. Emergency - must show there was no alternative but for him to drive, and that he had explored every possible alternative before driving. (See Sivakumar s/o Rajoo [2002] 2 SLR 73.The appellant had marital problems and got drunk. Close friend rang telling him that she will end her and her children’s life. He dashed to her house. Driving at 133 km/h at 60 km/h zone. Not special enough a reason as he should have considered other alternative form of transport e.g. taking the cab for one. ) o In other words, a special reason is a mitigating or extenuating circumstances, not amounting in law to a defence to the charge, yet directly connected with the commission o

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of the offence, and one which the court ought properly to take into consideration when imposing punishment. (See Whittall v Kirby [1947] 1 KB 194) Chua Chye Tiong v Public Prosecutor [2004] 1 SLR 22 o Facts o The appellant was the manager of one of the branch outlets of a motorcar trading company, Swee Seng Credit Pte Ltd (“SSC”). The SSC head office applied to the Land Transport Authority to de-register a vehicle registered in SSC’s name. The vehicle was stationed at the branch at which the appellant was the manager. Subsequently, the vehicle was driven by an unknown person and passed two different Electronic Road Pricing gantry points. It was undisputed that the de-registered vehicle did not have a valid vehicle licence and insurance coverage. The appellant was convicted on four charges for being privy to causing a vehicle to be used without a valid licence and an insurance coverage. He appealed against his conviction and sentence, contending in particular that the district judge had erred in his interpretation of the relevant statutory provisions. o Held: o (4) The court may exercise its discretion not to impose the mandatory 12-month disqualification if it found a ‘special reason’ on the facts. In this case, the appellant’s reasoning that he could possibly lose his livelihood in the motorcar trade was not a ‘special reason’: at [58] to [63]. o Chua’s appeal against sentence - 57 Counsel contended that the sentence, in particular the 12-month disqualification period for the second and fourth charges was manifestly excessive. - 58 I dealt, first, with counsel’s contentions on the 12-month disqualification period. In Chua’s re-examination at trial, he had claimed that if he did not have a licence, he would not be able to work. As such, Chua sought to preserve his livelihood and probably submitted this argument through his counsel as a “special reason” for the court to consider. The issue then revolved around whether there were any “special reasons” that the district judge ought to have accounted for. - 59 There were a number of case authorities where the issue of a “special reason” has been discussed. Essentially, the law on this issue is clear. In Re Kanapathipillai [1960] MLJ 243, a “special reason” was held to mean one that was “special to the facts which constitute the offence”. Such a special fact may not amount in law to a defence to the charge but would be one which the court ought to take into consideration when imposing punishment. However, a circumstance peculiar to the offender would not be a “special reason” within the exception. - 60 This statement of the law was followed in a number of cases regarding traffic offences. For ease of reference, some of the prominent endorsements of the meaning of “special reasons”, as noted in Re Kanapathipillai, were PP v Hiew Chin Fong [1988] 1 MLJ 467, M V Balakrishnan v PP, Sriekaran s/o Thanka Samy v PP and Sivakumar s/o Rajoo v PP [2002] 2 SLR 73. - 61 For the current purposes, Hiew Chin Fong would be useful to determine if Chua’s possible loss of livelihood constituted a “special reason”. In PP v Hiew Chin Fong, the respondent was not disqualified by the lower court despite committing offences of driving a vehicle without a valid licence and insurance policy coverage. The Malaysian criminal appeal court held that the lower court might have symphatised with the respondent whose livelihood depended on him having a driving licence. The appeal court allowed the Prosecution’s appeal and ordered the respondent to be disqualified from obtaining or holding a driving licence for a period of 12 months.

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62 In the process of arriving at this decision, the court laid down several statements of law on what should not be considered “special reasons”. The court held: (a) that financial hardship to the offender; (b) that the offender knew no other means of earning his livelihood; (c) that the effect of the disqualification must necessarily and consequently deprive the offender of his livelihood or occupation; and (d) that the offender was a poor man and would have difficulty to get to his work were all not “special reasons” to justify non-imposition of the mandatory disqualification. 63 The reason in this case (of a possible loss of livelihood in the motorcar trade) was no more special a reason than that in Hiew Chin Fong. As such, counsel’s reasoning, which was effectively a circumstance peculiar to Chua, could not be considered a “special reason”. Additionally, the imposition of a 12-month disqualification from operating all classes of vehicles was not an excessive punishment. Section 3(3) MVA allowed the district judge the discretion to order a longer period of disqualification if he saw fit. The district judge had sentenced Chua to a 12-month disqualification period for each of the second and fourth charges. However, he took Chua’s mitigation plea and the circumstances which gave rise to the offences into consideration and chose to order the periods of disqualification to run concurrently

o

No breach of natural justice if accused has not received notice of DQ before. (See Chng Wei Meng3 (MA 6/2002.In this case, the appellant did not have the legitimate expectation that notices of disqualification would be sent to him. It was not the practice of the traffic police to do so and no such promises or representations were ever made to the appellant by WEU or the officer who administered the written warning. Driving while under disqualification is about as serious an offence as a motorist can commit as it compromises the safety of our roads and creates problems in ensuring adequate compensation for luckless victims.) o Accused disqualified for faiing to attend court for HDB parking offence under s42A RTA o Then involve din minor traffic accident and charged for driving under disq o HC held tt offence of driving under disquaf one of strict liab – no breach of nat justice even if no notice sent to him informing of order to disqualify him – no oblig on part of warrant enforcemenet unit to send out such omtices o Custodial term the norm for such offences

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Consecutive disqualification periods o Gnanasekaran S/O Jayaguthi – Disqualification periods were ordered to run consecutively o In PP v Rohaizad bin Rosni (1998) 3 SLR 804, the High Court ruled that disqualification periods cannot be ordered to run consecutively – CJ Yong (in PP v Rohaizad bin Rosni): “I formed the view … that multiple disqualification terms imposed could only be concurrent. The reason for this … was simple. Each period of disqualification, regardless of how many periods in total there were and for how long each of these periods was, had to start from ‘the date of [the offender’s] release from imprisonment’. .. there was no scope for arguing that multiple disqualification terms could be consecutive, because those terms which started later would not be from the date of release of the offender’s incarceration.”

m) Corrective Work Order (CWO) [not mentioned in lecture notes] 3

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 Section 21A & 21B Environmental Public Health Act (EPHA) • The court shall make a corrective work order requiring an offender to perform such work under the supervision of a supervision officer upon fulfilment of three conditions: (a) the offender must be convicted of an offence under section 17 or 19 of the Act. (b) the offender is 16 years of age or above. (c) the court by or before which he is convicted is satisfied that it is expedient with a view to his reformation and the protection of the environment and environmental public health that he should be required to perform unpaid work in relation to the cleaning of premises, unless the Court has special reasons for not so doing. Corrective work order Three conditions: 21A. —(1) Where a person who is 16 years of age or above is convicted of an offence under section 17 or 19, and if the Court by or before which he is convicted is satisfied that it is expedient with a view to his reformation and the protection of the environment and environmental public health that he should be required to perform unpaid work in relation to the cleaning of any premises, the Court shall, in lieu of or in addition to any other order, punishment or sentence and unless it has special reasons for not so doing, make a corrective work order requiring him to perform such work under the supervision of a supervision officer and in accordance with the provisions of this section and section 21B. (2) The number of hours which a person may be required to work under a corrective work order shall be specified in the order and shall not in the aggregate exceed 12 hours. (3) Notwithstanding section 18 of the Criminal Procedure Code (Cap. 68), where a Court makes corrective work orders in respect of 2 or more offences of which the offender has been convicted by or before the Court, the Court may direct that the hours of work specified in any of those orders shall be concurrent with or additional to the hours specified in any other of those orders, but so that the total number of hours which are not concurrent shall not exceed the maximum specified in subsection (2). (4) In making a corrective work order, the Court shall consider the physical and mental condition of the offender and his suitability for carrying out the requirements of such order. (5) Before making a corrective work order, the Court shall explain to the offender in ordinary language — (a) the purpose and effect of the order and in particular the requirements of the order as specified in section 21B or any regulations made thereunder; (b) the consequences which may follow under section 21C if he fails to comply with any of those requirements; and (c) that the Court has under section 21D the power to review the order on the application of the offender or the Director-General. (6) The Minister may, by order published in the Gazette, amend subsection (2) by varying the maximum number of hours for the time being specified in that subsection. Obligations of person subject to corrective work order 21B. —(1) An offender in respect of whom a corrective work order is in force shall —

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(a) report to the supervision officer and subsequently from time to time notify him of any change of address; and (b) perform for the number of hours specified in the order such work at such places and times and in such manner as he may be instructed by the supervision officer. (2) The work required to be performed under a corrective work order shall be performed during the period of 12 months beginning with the date of the order; but unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified therein. (3) A supervision officer shall not require an offender to work under one or more corrective work orders for a continuous period exceeding 3 hours in a day. (4) The Agency may, with the approval of the Minister, make regulations, not inconsistent with the provisions of this section, to make further provisions for the manner in which a corrective work order may be carried out including the imposition of additional requirements and the service of any instructions or notice on a person in respect of whom such an order has been made.  Intended for recalcitrant litering offenders and first offenders wh commit serious littering offenders  >16, offence under Sections 17/ 19 of EPHA, expedient for reformation & protection of environment, environmental public health.  Court will impose unless court can cite ‘special reasons’.  The phraseology of Section 21A(1) is “quasi-mandatory”.  Imposition of a corrective work order is mandated, unless the court can cite “special reasons” why it should not do so.  He need not have been convicted of the offence; it may have been compounded. (See PP v Lim Niah Liang [1997] 1 SLR 534.In this case, evidence of a compounded offence committed 4 years ago was held to suffice as evidence that the offender was “recalcitrant”) 

Court will impose unless court can cite ‘special reasons’: Lim Niah Liang [1997] 1 SLR 534

Facts:  The respondent pleaded guilty to one charge of throwing a cigarette butt into a roadside drain.  The prosecution applied to the court to impose a CWO, contending that the respondent was a ‘repeat offender’ since he had compounded a similar offence in 1993.  However, the magistrate took the view that (1) the prosecution had failed to discharge its burden to show that a CWO should be imposed. (2) the respondent could neither be characterised as a ‘recalcitrant’ nor a ‘repeat’ offender, as there was only evidence of one previous compounded offence. (3) the respondent had maintained a clean record for four years. (4) the nature of littering committed by the respondent was not serious.  The magistrate declined to impose a corrective work order, and fined the respondent $300 instead. The prosecution appealed. Held, appeal allowed:  Whether a CWO should have been imposed was a matter for the court to determine in the exercise of its discretion.

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The prosecution did not have to satisfy the court beyond reasonable doubt that a CWO would be expedient for the reformation of the respondent and the protection of the environment and the environmental public health. These were merely the broad considerations laid down by the legislature to guide the court in deciding whether a CWO would be appropriate in a particular case.  S 21A(1) EHPA stipulates that “the Court shall, in lieu of any other order, punishment or sentence and unless it has special reasons for not so doing, make a CWO”. In effect, the imposition of a CWO is mandated, unless the court can cite ‘special reasons’ why it should not do so.  The concept of ‘special reasons’ allows the court to exercise residuary discretion, according to the justice of each individual case. E.g. a CWO may not be appropriate where the offender is physically or mentally unsuitable for carrying out the order.  In practical terms, the implementation of a CWO depended on either: (a) evidence of commission of previous similar offences  Such evidence would demonstrate whether a person was a recalcitrant offender. It would suffice to rely on evidence that he had previously committed the same offence on at least one occasion. He need not have been convicted of the offence. (b) evidence that a serious littering offence had been committed  To determine what constituted ‘serious’ or ‘minor’ littering, need to consider the size of the littering problem. Littering which involved the likelihood of serious hygiene, sanitary or disposal problems was apt to be considered `serious` littering.  Undue weight was accorded by the magistrate to the point that the compounded offence was committed four years ago. Four years was by no means a long lapse of time. The respondent had been caught committing exactly the same offence. He could have been properly termed a ‘recalcitrant offender’ under (b). 

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As for what constitutes “serious” or “minor” littering, the critical consideration for determining this appears to be the size of the littering problem. In Lim Niah Liang, the High Court referred to the following passage from a speech made by the Minister for the Environment in the Parliamentary Debates on 14 Sept 1996 (column 211): “A serious littering offence is one which would directly cause pollution or give rise to cleansing problems. Dropping or throwing out or leaving behind bags of refuse, styrofoam boxes, packets of food, old furniture, are some of the good examples that I can think of. What the Environment Ministry may consider as minor littering offences would be littering with cigarette butts, or car park coupon tabs and things like that”.

 In the context of s 21A EPHA, the concept of “special reasons” allows for some residuary

discretion to be exercised, according to the justice of each individual case.  S 21A(1) provides that provides that in making a corrective work order, the Court shall

consider the physical and mental condition of the offender and his suitability for carrying out the requirements of such order •

The corrective work order can be passed in lieu of or in addition to any other order, punishment or sentence.

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•

The number of hours which the offender is required to work under the corrective work order shall not in the aggregate exceed 12 hours and the number of hours shall be specified in the order.

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See s 21B & s 21C for the provisions on the court’s powers upon a breach of a corrective work order.

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See s 21D for the provisions on variation & revocation of corrective work orders.

Mitigation Plea •

Balance public interest (esp. gravity of the offence) against personal circumstances: PP v Quek Loo Ming [2003] 1 SLR 305

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Not compulsory before sentencing. (See Ng Ai Tiong [2000] 2 SLR 358). Ct not duty bound before passing sentence to invite convicted person to present mitigation plea. It is the defence counsel’s duty to do so. Court is not duty-bound to invite accused to mitigate:

Ng Ai Tiong v PP - Facts:  The appellant brought a motion under s 60 SCJA, asking, inter alia, whether the appellate court hearing an appeal from a district court can be said to have passed a sentence in accordance with law (ref s 108(n)(ii) CPC and art 9(1) Constitution) when it reverses the order of acquittal, and imposes a jail term without hearing or affording an opportunity for the accused to tender the plea in mitigation.  Held:  A court is not duty bound, before passing a sentence, to invite the convicted person to present his mitigating plea. The court has no duty to defend the accused and neither is it obliged to assist the accused in presenting his case. At the conclusion of the hearing of a criminal matter, the impetus was upon the counsel for the accused to bring to the attention of the court all the mitigating factors and circumstances. -

Not the court’s duty to educate the accused. (See Soong Hee Sin [2001] 2 SLR 253.In this case, it was held that the judge’s role at any stage of the process is always to serve as an independent and unbiased adjudicator, a role which he would be hard placed to discharge if he had to proffer or extend his own legal advice to either of the parties before the court.)

Ng Facts:  The appellant pleaded guilty to committing CBT.  The district judge took into account the appellant's plea of guilt and his lack of antecedents in sentencing but noted that no restitution had been made by the appellant up to that time. Upon a consideration of all the factors, he sentenced the appellant to 15 months' imprisonment.  On appeal, the appellant argued that the district judge should not have taken the lack of restitution into account during sentencing as the appellant was unrepresented in the court below, and the district judge had not informed him of the significance and relevance of restitution to his sentence.

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Held:  It was not the duty of a judge to educate the accused of the manifold factors that play a part in the exercise of sentencing discretion.  To do so would compromise the independence of the trial judge as an impartial umpire. It would be difficult for a judge to discharge his role as an independent and unbiased adjudicator if he had to proffer or extend his own legal advice to either of the parties before the court.  The fact that an accused chooses not to exercise his constitutional right under Art 9(3) to consult and be defended by a legal practitioner of his choice cannot have the effect of shifting the burden of his defence onto the judge whose task can conflict with that of the defence.  There is the added difficulty of where one should draw the line should such a duty be held to exist. How much and to what degree of detail of the law the judge should seek to impart to the accused before he may be said to have discharged his duty adequately?  In any event, while restitution voluntarily made before the commencement of criminal proceedings or in its earliest stages carries the higher mitigating value as it shows that the offender is genuinely sorry for his mistake, the same cannot be said of the case where the sole motive for restitution is the hope or expectation of obtaining a lighter punishment. •

Mitigating factors include: - Previous clean record/good character - Cooperation with police - Restitution - Genuine remorse - Youth/old age (ABOVE 65 – may go before community court) - Poor health/mental condition - Delay in prosecution and prejudice

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Neutral or irrelevant factors include: - Loss of employment/career - Financial hardship - Hardship to family - No loss suffered by victim - Intoxication (alcohol/drugs) - Entrapment - Ignorance of the law

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Timely PG - usually merits discount but not in every case - eg. where offender caught red-handed (Wong Kai Chuen Philip v PP) or where deterrent sentence necessary (Than Stenly Granida Purwanto v PP) o stages at which guilty plea may be entered is taken into account o Public Prosecutor v Chia Teck Leng [2004] SGHC 68 – 38 There are of course some points in the accused’s favour. By pleading guilty and indicating he was going to do so from the outset, a lot of time and expense in a potentially lengthy trial have been saved. However, this would have to be counter-balanced against the time and expense that would be involved in the litigation that is likely to be generated among the corporate entities ensnared by his misdeeds.

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– Not axiomatic tt PG wil mean discount in sentencing On plea of guilt, such a plea if made timeously is usually a good mitigating factor; but it is not axiomatic that an offender who pleads guilty will be given a discount in sentencing. In certain situations, there may be other important considerations militating against any discount being given for a plea of guilt: e.g. where the offender is caught ‘red-handed’ (Sim Gek Yong), or where considerations of public policy demand a deterrent sentence (Fu Foo Tong v PP [1995] 1 SLR 448).

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Court cannot give or be perceived to give indications that on a guilty plea a lighter sentences will be meted out: Brook, Inns, Turner - R v Peace: • Counsel advised his client that if he pleaded guilty he was likely to get Borstal but if he claimed trial he would get 3 to 4 years imprisonment • Client pleaded guilty allegedly because he felt Counsel would not represent him satisfactorily in a trial and also alleged that he was confused • Court of Appeal upheld his plea, remarking that a defendant who pleaded guilty unhappily and regretfully could not ipso facto be said to have lost his power to make a voluntary and deliberate choice - Rajeevan Edakalavan v PP: • Court found that the petitioner (who was unrepresented) had pleaded guilty after having understood the nature and consequences of his plea and admitted to the statement of facts without qualification after the charge was read and explained to him • No suggestion that the plea was made involuntarily or in ignorance of the consequences of the plea • Evidence showed that the petitioner knew exactly what he was doing when he pleaded guilty • No deception on the part of the Court or the prosecution was imputed - Balasubramanian Palaniappa Vaiyapuri v PP: • the petitioner pleaded guilty to a charge of outrage of modesty • petitioner sought revision of the conviction inter alia on the basis that his plea of guilt was not unqualified and not unequivocal as the petitioner had said in his mitigation plea that he had had a lot to drink • Chief Justice held that was a valid and unequivocal plea of guilt by the petitioner in the present case • in the court below, the charge was read and explained in Tamil and the petitioner pleaded guilty and there was no evidence to substantiate his claim, other than the bare assertion that he had ‘a lot to drink’

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Assisting and Co-operating with Police  Assisting & co-operating with police in their investigations is generally a mitigating factor: (R v Ramsey [1969] Crim LR 668, although the weight to be accorded to this factor will depend on the facts of each case and the quality of assistance rendered.  The court must avoid giving the impression that it has entered into a “bargain” with the offender: R v Collins [1969] Crim LR 323.

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PP v siew boon long – resp vol surrendered to police almost immed after relase fr imprisonemtn for offence of theft0in0dwelling offence and had owned up to CBT offences tt he had committed earlier  On vol surrender, ooperated fully with police  HC considered tt these were strong mitigating factors which domeonstrated genuine remorse Credit is given for a plea of guilty because it tends to show remorse on the part of the accused and also because it saves the court and prosecution time and expense: Sinniah Pillay v PP However, it does not automatically merit him a discount on sentence What weight ought to be given by the court depends on the other facts made known to the court at the time the sentence is considered Little weight would be given to a late plea just before the commencement of the trial proper, where neither the police nor the prosecution has any indication that a guilty plea would be forthcoming until the day of the trial itself: Krishan Chand v PP If the accused did not have such a choice, then a plea of guilt is not evidence of remorse and a willingness to accept punishment for his wrong doing Wong Kai Chuen Philip v PP, Singapore High Court stated that: • “do not see any mitigation value in a robber surrendering to the police after he is surrounded and has no means of escape, or much mitigation value in a professional man turning himself in the face of absolute knowledge that the game is up”

- Accused Providing Information - accused providing assistance or information to the police appears to be regarded as within the wider ambit of the general mitigating factor of cooperation with the police: PP v Siew Boon Loong [2005] SGHC 20 at 18 - contrasted with the English position where there are specific guidelines: • long standing practice of the courts to recognize by a further discount of sentence the help given and expected to be given to the authorities in the investigation, detection, suppression and prosecution of serious crime • the extent of the discount ordinarily depended on the value of the help given • value was a function of quality and quantity • if information was accurate, particularized, useful in practice and hitherto unknown to the authorities, discount might be substantial -

Clean Record – first offender - fact that the accused was a first offender is at best a neutral factor when they are compelling overriding policy reasons for imposing a deterrent sentence: PP v Ng Tai Tee Janet - while an accused may have no antecedents in the sense of prior convictions, he will not be regarded as a first offender if he has pleaded guilty to multiple charges, and has other charges taken into consideration: Chan Weixiong Jerrick v PP [2003] SGHC 103 at 15  On previous clean record, it is generally accepted that this holds some mitigating value: see again Fu Foo Tong.

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By and large, fact tt offender is first timer normally treated as valid mitigating factor –  Note, however, that the weight to be given to such a factor depends on the facts of each case. If it is a very grave offence, the offender’s first-offender status may not carry very much weight: R v Turner (1975) 61 Cr App R 67. If offender commited multiple illegal acts so x be termed first time offender, fact tt is first conviction may stil carry some mitig value – soong hee sin v PP 2001 Prev clean record may be of little mitig value where public interest dd approp sentence – Purwanti Parji v Public Prosecutor [2005] 2 SLR 220  (4) The fact that the appellant was a first time offender, as a mitigating factor, was to be weighed against the public interest. The appellant and the deceased shared a relationship corollary to the employer-domestic worker relationship. In light of the worrying trend of domestic workers inflicting violence on their employers and/or their employer’s family members, there was a need to impose a heavier sentence to attempt to curb this new wave of socially disruptive behaviour: at [33], [38] and [39].

Hardship, Financial or otherwise - On accused’s financial hardship as a motive behind the commission of offences: generally not accepted as a good mitigating factor: Krishan Chand and Sim Yeow Seng. - A fortiori, the fact that an offender who obtains money by criminal means has spent that money on friends and relatives not in urgent need of money should never be a mitigating factor: PP v Lim Hoon Choo [2001] 1 SLR 221.  see Lai Oei Mui Jenny @ Tan Siew Hong v. PP [1993] 3 SLR 305  Facts:  The appellant made a false police report stating that she had lost her Singapore passport when in fact she had sold it for $500.  She was convicted and sentenced to two months’ imprisonment, and appealed against this sentence as being manifestly excessive.  Held, appeal dismissed:  That the appellant had made no financial gain and had in the past contributed voluntary public service were legitimate mitigating factors but of very little weight.  Financial difficulties would only constitute a legitimate factor in mitigation of sentence in very exceptional or extreme circumstances. The weight attributed to it will be at the discretion of the court. These circumstances would be very rare, if indeed they ever occurred.  The fact that the imprisonment of an offender would cause hardship to the family is not an argument which should normally be taken into account for the purposes of sentence.  The circumstances which might persuade a court to reduce the sentence could not be prescribed and would vary not fro jurisdiction to jurisdiction and case to case, but they ought to be quite exceptional before a reduction of what would otherwise be the proper sentence would be justified.  On hardship to offender and his family if he is imprisoned, the High Court stated:  “as for the argument that the appellant being a divorcee with two young children, her imprisonment would cause hardship to the family, this is in my opinion not an argument which should normally be taken into account for the purposes of sentences. Most of the time, imprisoning the main or sole breadwinner of a family unavoidably

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causes hardship to his family. In R v. Ingham, unreported, 3 October 1074, Lord Widgery CJ said as follows:  … it is not altogether an easy case, but of course this always happens, time and time again, that imprisonment of the father inevitably causes hardship to the rest of the family. If we were to listen to this kind of argument regularly and normally in the cases that come before us, we should be considering not the necessary punishment for the offender but the extent to which his wife and family might be prejudiced by it. The crux of the matter is that part of the price to pay when committing a crime is that imprisonment does involve hardship on the wife and family, and it cannot be one of the factors which can affect what would otherwise be the right sentence. We do not think this is a case which is so unusual in its individual factors as to justify us departing from the general principle  “We do not think this is case which is so unusual in its individual factors as to justify us departing from the general principle.”  “One cannot modify a sentence on the husband merely because the wife and family, or prospective family, will suffer.”  “I am fully in agreement with this passage.” See also Lim Choon Kang v. PP [1993] 3 SLR 927 where it was held that hardship to the accused’s family, if accused was sent to jail, carried little weight if the jail sentence was short. Public Prosecutor v Selvakumar Pillai s/o Suppiah Pillai [2004] 4 SLR 280 ° 68 Additionally, any hardship to an accused’s family caused by his imprisonment is unavoidable and is not usually a factor that can affect what will otherwise be the right sentence: Lai Oei Mui Jenny v PP [1993] 3 SLR 305. Counsel for the respondent did not show me that this was a case so unusual on its individual facts as to justify a departure from the general principle. ° 69 In the circumstances, bearing in mind that the regime of sentencing is a matter of law which takes into consideration a hotchpotch of such varied and manifold factors that no two cases can ever be completely identical in this regard (Soong Hee Sin v PP [2001] 2 SLR 253), I sentenced the respondent to two years’ imprisonment. A mitigating factor should be something an accused is “given credit” for. (See Krishan Chand v PP [1995] 2 SLR 291.In this case, it was stated that ignorance of the law and accused’s financial hardship as a commission of the offence is not a good mitigating factor. ° Plus this was due to offender’s own wrongdoing ° There is also no general rule mandating giving a discount to offenders of mature years. But restitution is seen as a good mitigation factor) Abu syeed chowdhury v PP 2002 – illegal immig who starts family in sg despite knwoeldge of illegal status and suffeirn ghis family will face if caught and punished – court will consider hardship to be self induced and carry little mitigating weight

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altruism  Lim hoon choo 2000 – fact tt offender who obtains money by crim means has spent tt on friends and relatives not un urgent need of money shld never be mitig factor

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Loss of employmenmt  On loss of employment and professional career, the courts can consider this as a mitigating factor: Knight v PP [1992] 1 SLR 720.

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The weight to be attached depends on the facts of each case. If, for e.g., the loss of employment results from offences committed by accused in abuse of a position of responsibility and trust, the courts are unlikely to accord any mitigating value: see R v Barrick (1985) 7 Cr App R (S) 142.

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ignorance of law  On ignorance of the law, this is generally not a good mitigating factor: Krishan Chand.

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Restitution  On making restitution, this is usually seen as a good mitigation factor: Krishan Chand.  But the actual weight to be accorded to such a factor may vary from case to case depending on circumstances such as the stage at which restitution was made, whether restitution is partial or full, etc.  Where, despite restitution being made, the offender has shown no remorse e.g. he has continued to cast aspersions on the character of prosecution witnesses, the fact that he has made restitution is of little mitigating value: Ng Kwee Seng v PP [1997] 3 SLR 205.  Moreover, in cases involving deprivation of property, where restitution is made in circumstances which may lead one to suspect that it was done with a calculated purposefulness in the hope of getting a lighter sentence, the sentencing court will not give much credit for it: Soong Hee Sin v PP [2001] 2 SLR 253. – here partial restition made a wk bfore hearing of appeal and clar tt restitution made with advice of counsel in hope of getting lighter sentence on appeal  if the accused makes full restitution, then the fact that he does so after being caught and charged should have less bearing: Tan Sai Tiang v PP  Same principles apply as for criminal breach of trust to other restittionary gestures eg writing of letters of apology – chen weixiong jerrick  Public Prosecutor v Ong Ker Seng [2001] SGHC 266 ° 35 On the facts of this case, I was hesitant to give much credit for the respondent's full repayment of the loan for another reason. I noted that a cheque dated 29 December 2000 for the then outstanding sum of $20,623.61 was paid over only after the respondent was convicted on 16 December 2000, but before sentence was passed on 13 January 2001. In deprivation of property cases, where restitution is made in circumstances which may lead one to suspect that it was done in the hope of getting a lighter sentence, a sentencer will not give much credit for it (Soong Hee Sin v PP [2001] 2 SLR 253). As a matter of fact, in Soong's case (op. cit., at 258) I said: "…if anything, such mindset appeared to me to demonstrate calculated purposefulness rather than genuine remorse on the appellant's part." Similar principles should apply here as well. While full repayment of the loan was eventually made to Mr Law, the respondent should not be given full credit since the final repayment made to Mr Law was done under circumstances which led me to believe that it was made with calculated purposefulness in the hope of obtaining a lower sentence.

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Intoxication  On intoxication at the time of the offence [raised as a mitigating factor as opposed to a defence based on lack of mens rea], this factor is generally regarded without much sympathy by the courts when raised in mitigation: see e.g. Mani Nedumaran.

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Age

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On elderly age of the offender, note that there is no general rule mandating giving of a discount to offenders of mature years: Krishan Chand. ° Elderly? Yes, if very elderly. Frail? Yes, in exceptional cases. On youthfulness of offender, note that rehabilitation is the dominant consideration: Mok Ping Wuen Maurice, cited in Cheng Thomas v PP. ° However, even youthful offenders will not get probation “as of right”; and the court still has to weigh in the balance the interests of the community. Purwanti Parji v PP: • Singapore Court of Appeal was of the view that the appellant had exhibited that she was calculating in her offence • seriousness of the offence that she had committed (culpable homicide not amounting to murder) also weighed on the court’s mind • as such, her young age was of limited mitigating value, if at all, in that particular case, lest age be seen to be licence for the young and calculating to commit serious crimes • court also considered that the offence was committed in the context of an employer-domestic worker relationship, of which public interest required the court to uphold Malaysian position appears to be the same: Tan Bok Yeng v PP [1972] 1 MLJ 214, cited with approval by the Malaysian Court of Appeal in Koay Teng Soon v PP [2000] 2 MLJ 129 o “emerged in recent years in society certain species of crime which the alacrity of mind and body, the dare, dash and defiance of the youth alone is capable of performing and producing. Law, cannot, remain merely a static mind and a meaninglessly passive … social needs of the time have to be met … considerations of public interest have also to be borne in mind

Health  On offender’s ill health: this is not a mitigating factor save in the most exceptional of cases when judicial mercy may be exercised: PP v Ong Ker Seng, Magistrate’s Appeal No. 14 of 2001 (judgement dated 12 September 2001). ° Facts: ° The respondent, an undischarged bankrupt, obtained two loans from the complainant without informing him that he was an undischarged bankrupt. ° The trial judge took into consideration, inter alia, the respondent’s ill-health, the fact that he had been under medication since his triple heart by-pass 5 months ago, the fact that loansharks were hounding him and that one of the loans was procured to help pay the medical expenses of his chronically-ill nephew, and sentenced him to fines in the amount of $20,000. ° The prosecution appealed against the sentence. ° Held, appeal allowed, sentence enhanced to 3 month’s imprisonment on each charge to run consecutively:  The role of mitigation is to provide for an opportunity for an offender to present factors personal to himself which tend to reduce the gravity of his offence and also to assist the court in coming out with an appropriate sentence consistent with justice. However, a mitigation sentence should be something for which an offender can be ‘given credit’.

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Ill-health is not a mitigating factor except in the most exceptional cases when judicial mercy may be exercised.  Financial difficulties may not be relied on during mitigation: Lai Oei Mui Jenny followed.  A sentencing judge should not readily accept the plea of contributing to a relative’s medical expenses since it might be easily abused and used as an excuse. In any event, the respondent had not put forward persuasive evidence to prove that his money was indeed put to such a use. Leaw Siat Chong [2002] 1 SLR 63. ° In this case, it was held that the ill-health of an offender is a mitigating factor only in the most exceptional cases where judicial mercy may be exercised. The appellant’s high blood pressure and pain in the eye were not of such serious nature as to warrant the exercise of judicial mercy) ° Facts: The appellant was convicted for employing an immigration offender, and sentenced to the benchmark sentence of 12 months’ imprisonment. On appeal, he contended that, inter alia, his personal circumstances warranted a departure from the benchmark sentence. The appellant was of advanced years, the sole breadwinner in his family, and had high blood pressure and pain in his right eye. ° Held, appeal dismissed:  There is no general rule mandating the giving of a discount of sentencing for offenders of advanced years.  Hardship caused to an offender’s family by way of financial loss occasioned by imprisonment carries little weight today.  The ill-health of an offender is a mitigating factor only in the most exceptional cases.  The appellant’s health problems were not of such serious nature as to warrant the exercise of judicial mercy.  The appellant had been able to continue working despite his health problems. Chuah Gin Synn v PP: • Court took into account the fact that the appellant, being unrepresented, had not appreciated the importance of raising her personal circumstances to the trial judge during mitigation, namely that she was on medication for depression at the time of the offence, which had caused her to act out of character to commit shoplifting • It was said that an exceptional case would be when the offender suffers from a terminal illness CLB v PP: • Accused persons were convicted and sentenced to one-week imprisonment for falsely declaring that they were not HIV-positive prior to donating blood under s. 182 PC • On appeal, they submitted, in mitigation, that the ‘stigma’ attached to HIV, and the fact that it was an irremediable disease, was suffering enough, and that they should not be incarcerated with common criminals, as they needed special care and attention • Considering public interest, the court thought that the sentence should be enhanced to 2 months’ imprisonment, but reduced their sentences to one 

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month imprisonment instead, having regard to the mitigation plea that was put forth PP v Lim Kim Hock: • Accused was found to be HIV positive but did not have full-blown AIDS yet • High Court expressed the view that the accused was facing a potential death sentence of another sort by virtue of his medical condition and deserved some sympathy for his medical condition whether it was selfinflicted or otherwise • If it were not self-inflicted, he would deserve a greater measure of sympathy Tan Eng Chye v The Director of Prisons: • Court held that the trial court was bound to impose caning on the accused, as the provision under which the accused was to be sentenced carried a sentence of mandatory caning, notwithstanding that the accused was suffering from a rare disease called Marfan syndrome • Whether the accused was fit to receive the punishment was a matter to be determined by a medical officer subsequently post-sentencing

- Circumstances Leading to Crime - Lai Oei Mui Jenny v PP: • Court expressed that often, it is stated in mitigation that the offender was motivated by the need for money, perhaps to purchase drugs to feed an addiction, or to pay off gambling debts, or to relieve some urgent need that arose because he had been unwise or profligate • It may well be that some very exceptional or extreme circumstances may arise warranting the constitution of those financial difficulties as a mitigating factor, the weight attributed to it to be at the discretion of the court - Prospect of Re-offending - Goh Lee Yin: • Because of the exceptional support system she had, which ensured her adherence to the supervision plan and that she fulfils the essential conditions for the viability of the appellant’s probation, the court substituted her custodial sentence with a probation order • Court is willing to consider non-custodial sentences, if family members are able to rehabilitate the accused - Shah Amir Singh: • Court reportedly called for a probation report because it was of the view that the accused had excellent parents who were experienced counselors and there was a chance that they could help him • An offender with previous antecedents who has made an effort to lead a crime-free life and maintain a blemish-free record since his last release from custody can be taken into consideration: Leong Mun Kwai v PP -

Delay in Prosecution  As to delay in prosecution, note that in appropriate cases, the court may exercise its discretion to order a discount in sentence if there has been a significant delay in

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prosecution which has not been contributed to by the offender, if it would otherwise result in real injustice to the offender: Tan Kiang Kwang v PP [1996] 1 SLR 280. There are 2 main considerations in this regard: ° Firstly, the offender may have to suffer the stress and uncertainty of having the matter hang over his head for an unduly long or indefinite period. The argument has more force where the delay sets in after the offender had been charged, as it is only then that the charge can be said to “hang over his head”. However, the argument can be wholly negated if the offence is a serious one, or where the offender has numerous antecedents, or has taken steps to avoid detection. A fortiori, where the offender has actively misled the police during investigations, he cannot complain of delay in prosecution, much less seek to extract some mitigating value from it. ° Secondly, if there is evidence that the offender has changed for the better between commission of the offence and the date of sentence, the court may also properly take this into account in appropriate circumstances. The weight to be accorded to either of these two considerations depends very much on the circumstances of each case.

Chua Siew Lin v Public Prosecutor [2004] 4 SLR 497 - Further, the appellant sought to argue that the sentences meted out by the lower court were manifestly excessive with regards to established sentencing benchmarks and the presence of mitigating factors, such as the appellant’s lack of antecedents, hardship on the appellant’s family and the inordinate delay in the prosecution of the appellant - Held, dismissing the appeal against conviction and allowing the appeal against sentence in part: - (5) An inordinate delay in the prosecution of an accused was a mitigating factor that justified a “discount” in sentence. However, this factor did not avail the appellant as the prosecution of the appellant in the present case followed shortly after the appellant was charged: at [62]. - 62 On the third and final mitigating factor, the appellant submitted that the case of Tan Kiang Kwang v PP [1996] 1 SLR 280 supported the practice of granting a “discount” in sentence for the inordinate delay in the prosecution of the appellant’s case. The appellant’s proposition was, however, misconceived. In that case, I had drawn a distinction between situations where the prosecution of the accused had occurred long after the accused had been charged and the converse situation where there was a delay in charging the accused but with no delay in the prosecution thereafter. I had further stated that there was greater mitigating force in the former situation. Hence, based on the present facts, where the prosecution had followed a few months after the appellant was charged, there was no force in the appellant’s argument at all. - 63 Before turning to review the specific sentences, I was mindful of some relevant mitigating factors that are indeed in the appellant’s favour. First, as alluded to above, the appellant is a first-time offender; second, the entire episode happened on the spur of the moment and was not premeditated; third, the incident was short-lived; and finally, the injuries sustained were not of a serious nature. These considerations guided me in my assessment of the reasonableness of the sentences. -

Mental illness: little effect in mitigation – tan ngin hai v PP 2001

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Siauw Yin Hee v PP: • High Court declined to order a conditional discharge in respect of a kleptomaniac and affirmed the custodial sentence that the trial judge had imposed • Demands of public interest must be weighted in the balance: • “persons such as the appellant cannot be allowed to deal with their personal problems by giving vent to their kleptomaniac tendencies with abandon” • appeared to court that no particular effort had been made by the appellant to exercise self-restraint over his recurring impulse to steal or, for that matter, to seek more extensive counseling and treatment o C.f. PP v huang hong si 2003 - Facts: The accused brought a knife wrapped in a newspaper to confront the victim (“Zhang”), a director of his employer, at Zhang’s flat for unpaid wages. They quarrelled and the accused stabbed Zhang once, injuring him. Zhang’s parents intervened. In the melee, the accused stabbed Zhang’s mother, killing her. The accused pleaded guilty to, first, culpable homicide not amounting to murder under s 304(a) of the Penal Code (Cap 224) (“PC”) and second, causing grievous hurt with weapon under s 324 of the PC. - At trial, the Deputy Public Prosecutor (“DPP”) submitted that there were aggravating factors in this case and listed them for the court’s consideration. Expert evidence was also given at trial that the accused “did not have mental control of his actions” despite being aware of what he was doing. - Held, sentencing the accused to seven years’ imprisonment for the first charge and 12 months’ imprisonment for the second charge, both sentences to run concurrently: - (1) “Aggravating factors” indicated the level of gravity of the crime in specific relation to the offence of which the accused was being charged and were used to assist the court in reaching a sentencing decision: at [8]. - (2) There were four major aspects to the gravity of a crime – (a) the degree of seriousness of the offence; (b) the manner and mode in which the crime was committed; (c) the consequences of the crime; and (d) its impact on the public interest: at [8] to [11]. - (3) Some of the “aggravating factors” listed by the DPP such as the fact that the accused was armed, that innocent victims were harmed, and that provocation was absent were standard parcels of crime and not aggravating factors: at [12]. - (4) The fact that the accused was suffering from a mental condition mitigated some factors that might have increased the degree of seriousness of the offence: at [13]. - 13 In the present case, the accused was suffering from a mental condition that mitigates some of the factors that might otherwise have increased the degree of seriousness of the offence. The consultant psychiatrist at the Institute of Mental Health examined the accused and found the accused to have a “prolonged depressive reaction that was caused by prolonged stressful situation”. He stated that the accused was in “a dissociative state of mind at the time he committed the offences”. He also stated that although the accused was aware of what he was doing, “he did not have mental control of his actions”. In the circumstances, I sentenced the accused to seven years’

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imprisonment in respect of the first charge, and 12 months’ imprisonment in respect of the second charge. The sentences of imprisonment are to run concurrently with effect from the date of his arrest. o in Ng So Kuen Connie v PP [2003] 3 SLR 178, HC: objective of general deterrence would not be advanced by imprisoning accused person suffering from mental disorder at time of committing offence, notwithstanding she was capable of knowing what she did and fit to enter a plea. - Bears noting that the court was of the view that the case was unique with its own peculiar and special facts - Court was impressed by the fact that both psychiatrists, each called by the defence and the prosecution, found that the appellant was suffering from hypomania, and that the psychiatrist for the prosecution opined that the appellant’s condition would worsen if she were to be imprisoned o Goh lee yin v PP 2006 - Facts: The appellant pleaded guilty to two charges of theft in dwelling under s 380 of the Penal Code (Cap 224, 1985 Rev Ed) and consented to have four other charges under the same section taken into consideration for the purpose of sentencing. The appellant, who was 25 years old, suffered from kleptomania, an impulse control disorder for which she required daily medication and regular treatment. The appellant, however, defaulted on her medication and treatment, which resulted in the commission of the shoplifting offences. - The appellant was sentenced to two and a half months’ imprisonment. The appellant appealed, arguing that the sentence was manifestly excessive and that she should have been granted probation. The appellant’s family and caregivers had instituted a 24-hour supervision plan to ensure that the appellant took her medication daily and remained constantly supervised. - (3) Incarceration was no solution to the appellant’s problem; it would not serve to deter the appellant, whose offences were a manifestation of her mental affliction. It would instead exacerbate her condition and destroy the very last hope for her recovery: at [53]. - [Observation: If the courts were to properly adjudicate on cases where the offender suffered from some medical condition, the courts had to be vested with the requisite sentencing discretion. Alternatively, it was to be greatly preferred if the Attorney-General’s Chambers would, after proper verification, refer mentally ill or otherwise deficient offenders to the appropriate Ministry or government agency where such cases might be more fittingly administered: at [61].] • in imposing probation, the court was persuaded by other considerations, quite apart from the appellant’s mental condition • first, the court was not given the assurance that the appellant would, at the very least, be administered her medication in prison daily, when the appellant’s daily medication was the most fundamental aspect of the treatment for her condition so as to curtail her shoplifting impulses • secondly, and most importantly, a meticulously crafted supervision plan was put in place so that someone would be with the accused 24 hours a day to prevent her from stealing

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appellant had an exceptional support system borne out of the concerted effort on the part of several dedicated individuals to achieve her recovery and rehabilitation court was impressed by the commitment and resolve of the appellant’s family and her caregivers to look after her and ensure her adherence to the supervision plan and that she fulfils the essential conditions for the viability of the appellant’s probation this case should not be used carte blanche to argue that in all cases, kleptomaniacs should be given probation

Offenders with low intellect can be crim culpable and do not receive differentiated treatment in sentencing unless justified on facts – iskandar bin mohamad nordin v PP 2006 o Facts: The appellant, who had a mild intellectual disability, pleaded guilty to one charge of outrage of modesty under s 354 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Offence”). He was convicted and sentenced to nine months’ imprisonment and three strokes of the cane. Prior to the commission of the Offence, the appellant already had several previous brushes with the law, including a similar charge for outrage of modesty for which he was given a discharge amounting to an acquittal after compounding that offence. Further, the appellant had committed the Offence on the day of his release from prison for committing offences of theft in dwelling. He appealed against his sentence. o Held, dismissing the appeal and enhancing the sentence: o (1) The appellant’s mild intellectual disability did not preclude him from being criminally culpable for his actions. Similarly, offenders of low intellect did not receive differentiated treatment in sentencing unless it was justified on the facts. The weight to be attached to the low intellectual capacity of such offenders as a mitigating factor, if any, would depend on the particular circumstances of the case: at [8], [9] and [14]. o (2) Case law had established that the tariff sentence in respect of offences under s 354 of the Penal Code where the victim’s private parts or sexual organs had been intruded upon applied even where the accused person was of low intellect: at [10] to [13]. o (3) On the facts, the appellant’s intellectual disability was not such that any significant mitigating weight should be given in sentencing. It was clear that his reduced intellectual faculty did not impair his ability to gain insight into his actions as well as the consequences of those actions: at [18]. o (4) On the contrary, the aggravating factors present called for a heavier sentence. The appellant who had a string of recent antecedents had committed the Offence almost immediately after his release, within a stone’s throw from the prison gates. The abominable manner in which the appellant had preyed on the victim also inflicted a traumatic ordeal upon her. Both the appellant’s past experiences of incarceration and the second chance given to him for the similar offence of outrage of modesty had failed abysmally to make him mend his ways. Taking into account the pillars of sentencing, his sentence was enhanced to 24 months’ imprisonment with nine strokes of the cane: at [19] to [22].

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Tan Kok How v PP: • good academic and extra-curricular background was not a consideration that weighed so heavily in his favour as to justify a non-custodial sentence, since there is no good reason why accused persons who chance to possess some learning and intelligence should receive more lenient sentences than those meted out to their tutored brethren • indeed, persons of some intellectual merit should be capable of a commensurate level of self restraint Edwin Lim Zhaoming: • Was prosecuted for hacking activities, the court chose to see the accused in his status as a criminal because of the offence involved, rather than as a person of intelligence and good academic records • Court reportedly expressed that the more intelligent the accused is and the better his academic records, the more severe will be his punishment Law Society of Singapore v Wee Wei Fen: • Court, in striking the respondent off the rolls, noted that the respondent had schooled at various premier institutions, but was of the view that this should be given negligible weight, as she would than all the more have been expected not only to conduct herself with utmost probity and righteousness, but also live up to the good name of her alma mater

- Past Achievements - Knight v PP: • Court took into account the fact that the appellant had provided distinguished public service or services of substantial value to the community - Character in General - positive evidence as to character rather than the negative inference from the absence of allegations of other convictions - being of good character is irrelevant as a mitigating factor but relevant as an aggravating factor in that the offence is so much greater because the offender should have known better: PP v Tan Fook Sum - ‘Clang of Prison Gates’ Principle - Tan Sai Tiang v PP: • Court clarified that the ‘clang of the prison gates’ principle is not where first time offenders are concerned, the mere fact that a jail sentence has been imposed is sufficient punishment • Actual basis for the application of this principle is that the shame of going to prison is in itself sufficient punishment for that particular person convicted • In order for the principle to be applicable, the convicted person must have been a person of eminence, who had previously held an important position, or was of high standing in society • In other words, it would hardly ever apply in most cases dealing with members of society, who had never held an important post, or were persons of sufficient standing in the eyes of society

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. Relationship of Accused and Victim - PP v N: • Wrong to regard the fact that the offences occurred as a result of a domestic dispute as a mitigating factor • An offence committed against one’s spouse should not be treated any less seriously than an offence committed against a complete stranger - Criminal breach of trust cases, Wong Kai Chuen Philip v PP: • Where an offence involves a breach of trust, this is generally treated as an aggravating factor • Offence may be seen as a betrayal of those very basis of trust • Individual who puts himself forward as trustworthy, is trusted by others and then takes advantage of his power for his own personal ends can be said to offend in two ways, not only does he commit the crime charged, but in addition he breaches the trust placed in him by society and by the victims of the particular offence - Time Spent in Remand - the period in which a convicted person has been out of bail should not be taken into consideration in backdating a sentence: Tan Kin Seng v PP - default sentences of imprisonment in relation to non-payment of fines cannot be backdated - PP v Ong Pei Ling Audrey: • Senior District Judge expressed that there is a general principle that time in custody overseas, pending extradition, should normally be taken into account - However, it bears noting that the court is not bound in law to discount sentence for time spent in foreign custody, pending extradition: PP v Salwant Singh - mitigating factors in specific offences - role of mitigating factors in disciplinary proceedings involving lawyers - Law Society of Singapore v Tham Yu Xian Rick: - Court held that considerations, which ordinarily weigh in mitigation of punishment, have less effect on the exercise of the disciplinary jurisdiction than on sentences imposed in criminal cases, as show cause proceedings are primarily civil and not punitive in nature -

Judge not expected to address every mitigating factor in written grds esp ehere factors not even argd by appellant

Rupchand Bhojwani Sunil v Public Prosecutor [2004] 1 SLR 596 - At this juncture, it is necessary to understand that it would not be plausible to expect a judge to lay out every possible mitigating factor on the facts, especially where these factors were not argued by an appellant (or an accused for that matter). This would be tantamount to expecting a judge to function as defence counsel for a represented accused. Accordingly, I rejected Sunil’s arguments in this regard.

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In certain situations, there may be other important considerations militating any discount being given for a Plea of Gulit (PG).

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No value, if caught red-handed. (See Tay Beng Guan Albert [2000] 3 SLR 785).  Facts:  The respondent returned to his house with a female colleague after a game of squash and she took a shower in his bathroom. She discovered a video-camcorder switched to recording mode hidden in a basket of soft toys in the bathroom. The tape contained footage of another woman. The respondent pleaded guilty to two charges of intruding upon the privacy of a woman under s 509 PC.  The trial judge imposed a $1,000 fine on the respondent for each of the two charges. In coming to her decision, she took into account the fact that the usual benchmark for a first offender who pleaded guilty to an offence under s 509 PC was a fine.  The prosecution appealed against the sentence imposed as being manifestly inadequate.  Held, appeal allowed, sentence enhanced to one month’s imprisonment on each charge in addition to the fines imposed, to run consecutively:  Following Tan Fook Sum (above), a plea of guilt had little or no mitigation value where the offender was caught red-handed. The respondent was caught red-handed as the video tape contained hard evidence of his crimes. ∴The magistrate erred in attaching undue weight to the respondent’s plea of guilt.  The magistrate had also erred by taking the view that there were no aggravating factors to justify imposing a custodial sentence: (1) The modus operandi adopted by the respondent required planning and premeditation, rendering the situation more aggravating than a simple peeping offence. (2) Using modern technology to record a victim’s private moments without her knowledge differed from other ‘peeping tom’ cases in that the tape could be replayed over and over again. There was also a risk of circulation of such tapes to other third parties.  Video-camcorders are available freely in this age of modern technology. Policy considerations dictate that a deterrent sentence has to be imposed to indicate that offences of this nature will not be tolerated.

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Or where considerations of public policy demand a deterrent sentence. (See Fu Foo Tong v PP [1995] 1 SLR 448)

Aggravating Factors o The existence of aggravating factors may lead the sentencing court to decide that a deterrent sentence is called for. o Distinguish between aggravated offence and aggravating features: PP v Huang Hong Si 2003 3 SLR 57 - The imposition of a deterrent sentence is within the discretion of the sentencing court. - There is no requirement in law that the prosecution should apply for a deterrent sentence before the court may consider imposing one: Meeran bin Mydin v PP [1998] 2 SLR 522; PP v Gurmit Singh. - The prosecution does have a duty, however, to point out the aggravating factors which may warrant the imposition of a deterrent sentence: Gurmit Singh.

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Note that PP should be careful to distinguish aggravating factors and features which are part and parcel of an ‘aggravated offence’ eg. Use of weapons. Hurt caused. PP v. Huang Hong Si [2003] 3 SLR 57. Prev convictions – antecedents tt are dissimilar or remotely related taken into acct – leong mun kwai v PP But where totally unrelated – x considered – Dahlan Convictions subsreq to offence can be taken in acct – sim yeow seng v PP 1995; limp oh tee v PP 2001

Examples of aggravating factors: •

the offender has a bad record, particularly wrt similar offences;

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the offence was carefully premeditated and planned by the offender (Tan Fook Sum); Facts:  The accused was a passenger in an aircraft. He took some rolls of tissue paper from the toilet, placed them in the wash basin and used his lighter to set fire to the tissue paper because he was annoyed with the cabin crew. This offence was punishable with a fine not exceeding $5,000 or imprisonment for a term of one year or both.  The magistrate sentenced the respondent to a fine of $2,000 or in default four weeks' imprisonment.  The Public Prosecutor appealed. Held, appeal allowed, sentence increased to 12 months' imprisonment in addition to the fine of $2,000:  The respondent’s act was a deliberate and intentional act of retaliation calculated to cause inconvenience to the cabin crew. It fell within the meaning of the term 'wilfully' in that it was done deliberately and intentionally, not by accident or inadvertence, but so that his mind went with it.  It is well established that it is an aggravating factor where an act is done after deliberation and with premeditation as opposed to where it was done on the spur of the moment and in 'hot blood'.

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the offence was committed on victims who were particularly vulnerable e.g. young children (Lee Kwang Peng v PP [1997] 3 SLR 278); the offender, in committing the offence, took advantage of a position of trust or authority (Lee Kwang Peng, Lim Hoon Choo). Facts:  The appellant, a taekondo instructor, was convicted of 6 charges of outraging the modesty of his 14 year old students, using criminal force.  He was sentenced to 4 months’ imprisonment for each offence, with three of the sentences to run consecutively making a total period of 12 months’ imprisonment.  The appellant appealed against his conviction and sentence. The public prosecutor cross-appealed against the sentence, on the ground that the trial judge had passed a sentence that was manifestly inadequate considering the aggravating factors, in particular the victims’ ages and the fact that the appellant was placed in a position of trust and responsibility over the victims. Held, appeal dismissed, cross-appeal allowed:

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This was a serious case in which the appellant had abused the trust and responsibility reposed in him by the victims and their parents, and because of the age of the victims.  Accordingly, the sentences would be enhanced from 4 to 9 months for each offence with two of the sentences to run consecutively making a total of 18 months’ imprisonment. (The sentence of 9 months followed from the benchmark applied in cases involving female victims. The appellant should not receive a lighter sentence simply because the victims were male and not female.) 

•

Elderly victim – purwanti parji v PP 2005

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The fact that the offender was a law enforcement officer is generally held to be an aggravating factor: PP v Gurmit Singh [1999] 3 SLR 215; Lim Poh Tee v PP.  Pandiyan Thanaraju Rogers [2001] 3 SLR 281).  Facts: • The appellant, a staff sergeant in the CID, had ‘borrowed’ $2,000 from a person believed to be an illegal moneylender. He had previously given the person his name card and told that person to contact him if he encountered any problems with police matters. • The district judge convicted the appellant and sentenced him to 6 months’ imprisonment and pay a penalty of $1,700. The appellant appealed against the conviction and sentence.  Held, appeal dismissed, sentence enhanced to 9 months’ imprisonment: • The appellant had allowed himself to be placed in a position where he would be beholden to provide future assistance as and when required. In many of the recent cases involving corruption, particularly on the part of police officers, the gratification was given to purchase the receiver’s goodwill and as a form of retainer for future unspecified services as and when required. The lack of any specific representation by the appellant as to the precise assistance to be rendered by him was not fatal to the charge. • The sentence imposed by the district judge was manifestly inadequate and inconsistent with the sentences imposed in similar cases of corruption. • Crimes involving corruption on the part of police officers are extremely grave in nature and are viewed severely by the courts. The appellant was a senior and highly experienced officer, having served in the police force for some 29 years and occupied a fairly important position. Yet he was prepared to undermine the integrity of his office for his personal benefit and, in the process, betrayed the public’s trust and confidence in the police force. This was an aggravating feature of the offence.

•

Brutality by law enfrcement officers considered serious aggravating factor – mohammed zairi bin Mohamed mohtar v pp Police officers who abuse their powers to commit offences will be treated more severely but ref. Annis bin Abdullah v PP 2004:

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‘the mere fact that the appellant had been a police officer should not have been regarded as an aggravating factor … a deterrent sentence may not be warranted in cases where a police officer offends outside the scope of his official duties and does not abuse his position to commit criminal mischief’  mere fact tt poice officer x mea aggrates offence  distrioct judge held to have erred in imposing deterrent setnce where appellant, poice officer, had commited offence outside scope of duties Prompt relapse after last release from custody Use of weapons/extent of injury or damage Syndicated crime/gang-related Unblemished career or model citizenship do not tell greatly in the offender’s favour because his offence against his office may be seen as a betrayal of those very characteristics. Lawyers trade on their honesty and trustworthiness: Wong Kai Chuen Philip v PP 

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Mere fact of claiming trial is NOT an aggravating factor. (See Mohd Shahrin bin Shwi v PP [1996] 3 SLR 553) • However, if the offender conducts his defence in such an “unbridled” way as to humiliate or ridicule prosecution witnesses or to show disrespect to the trial judge, such behaviour may amount to an aggravating factor warranting an enhancement of sentence: Zeng Guo Yuan v PP [1997] 3 SLR 321. • Wan kim hock v PP 2003 – appellants protracted trial by extensive eor irrelevant qning in cross exam and mad unfounded allegations agsianst ros witnesses in course of trial • If accused person instructs counsel to ask all manners of qns, these matters go to aggravating features and sentence can be enhanced! • Treat witness in a humiliating way or ridicule prosecution witnesses or show disrespect to the trial judge, such behaviour may amount to an aggravating factor warranting an enhancement of sentence. (See Zeng Guo Yuan [1997] 3 SLR 321) Facts:  The appellant, an acupuncture and acupressure practitioner, was charged with five counts of using criminal force with intent to outrage the modesty of the complainant during the course of an acupuncture and acupressure session.  The appellant conducted his own defence. During cross-examination, he badgered the complainant so relentlessly that she cried on two occasions. He refused to answer direct questions from the court on the relevancy of his crossexamination tactics or to submit to judicial control of his courtroom antics. In the middle of the trial, he arranged for an unknown person to tap the prosecuting officer’s shoulder and to leave the courtroom immediately thereafter. He then told the magistrate that the person was a retired judge of the High Court whose presence was a great honour to the magistrate. Upon being convicted, he interrupted the magistrate with statements such as “you have done me a lot of injustice”, “there is no justice in the system” and “the law is blind”.  The magistrate convicted the appellant on all five charges and sentenced him to a total term of 18 months’ imprisonment and 4 strokes of the cane.  The appellant appealed against both his sentence and conviction. Held, appeal dismissed, sentence varied to a total of 27 months’ imprisonment + 10 strokes of the cane:  The circumstances merited a harsher total sentence than that originally ordered. The appellant had held himself out as an acupuncture and acupressure

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specialist with degrees from several universities and had preyed upon the complainant under the guise of playing doctor.  While an accused is entitled to raise any type of defence necessary to his case, a scandalous or even vexatious defence notwithstanding, and some degree of latitude in the manner in which he wishes to conduct his defence, the scandalous nature of a defence, nevertheless, cannot be an unqualified excuse for an unbridled performance in the courtroom.  In the large majority of cases, a rebuke from the trial judge would be sufficient punishment.  However, on the present facts, the appellant had displayed a wholly exceptional contempt for the proceedings in the court below by humiliating the complainant and showing extreme disrespect to the magistrate. Such conduct could only be taken as an aggravating consideration. •

Misconduct in court – may evidence lack of remorse and justify higher enalty – PP v Nyu tiong lam and 4 others 1996

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Prospect of reoffending - Recidivists4. (See Perumal s/o Suppiah [2000] 3 SLR 308); tan ngin hai v PP 2001 Facts:  The respondent pleaded guilty to one charge of voluntarily causing grievous hurt with a dangerous weapon and one charge of drug consumption.  The respondent, aged 43, had 17 convictions, including the present two, since 1979. These consisted of various offences involving the use of force, including a conviction for culpable homicide not amounting to murder, affray, voluntarily causing hurt including causing hurt to a public servant, theft and drug related offences.  The district judge noted that the respondent’s previous convictions showed him to be a man of violence and a menace to society. It was submitted in mitigation that preventive detention would be too harsh as it offered no prospect of remission and that the respondent had two young children. The district judge declined to impose preventive detention, holding that he retained the discretion not to impose such a sentence, especially if its protective purpose could also be achieved by a substantial term of imprisonment. He noted that the longest prison term received by the respondent in the 1990s was eight months and that he had not used any weapons or dangerous means in his previous offences.  The respondent was sentenced to a total of 7 years’ imprisonment and 6 strokes of the cane. The prosecution appealed against the sentence. Held, appeal allowed, sentence varied to 10 years’ PD + 6 strokes of the cane:  The purpose of imposing preventive detention was in order to protect the public. The question was whether the respondent had proved by his history of criminal behaviour to be a menace to society which necessitated his incarceration for a substantial period of time for the protection and safety of the community at large: PP v Wong Wing Hung (above) followed.  Taking all the circumstances into account, the respondent had shown himself to be a habitual offender and too recalcitrant for reformation.

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Someone who is repeatedly arrested for criminal behaviour (especially for the same criminal behaviour)

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He posed a high risk of re-offending and should be incarcerated for a substantial period of time for the protection of the public.  Little weight should have been placed on mitigation that the respondent had two young children. Hardship caused to the offender’s family as a result of the imprisonment of the offender had little mitigating value save in very exceptional or extreme circumstances: Lai Oei Mui Jenny (above) and Tan Fook Sum (above) followed.  The district judge erred when he took into account the length of the sentence previously imposed on the respondent. A different sentencing framework had been provided for imprisonment and preventive detention. Drawing an analogy with Wong Wing Hung (above), any comparison between the sentences previously imposed and the minimum period of preventive detention was misconceived and constituted a misreading of the law and objective of preventive detention.  When the criteria set out in s 12(2)(a) or (b) CPC were met and the court was satisfied that the offender posed such a danger to the public that it was expedient to detain him in custody for a substantial period of time, the court must sentence him to preventive detention unless there were special reasons rendering the offender unsuitable for preventive detention.  “Special reasons” generally refer to the offender’s physical and mental suitability for preventive detention. The reasons must be exceptional and each case would depend on its own facts.  The lack of remission did not constitute a “special reason”. Prosecution Costs Rationale Federick Oliver Seaward v PP (1994) 3 SLR 369 - “…… (where) public money had been used to launched…prosecutions, which were demonstrably justifiable, it was our duty to ensure that the public purse did not suffer as a result of the accused’s misdeeds. It is perfectly correct, and it means that the local authority is entitled to be reimbursed for the cost which they have properly incurred in prosecuting this case…..” -

// party and party costs in civil accused of course shld pay lawyer but so far as prosecution is concerned – issue is whether proseuciotn pays to defence or vice versa issue rare in crim cases because pros rarely asks for costs CAD cases – usu here costs are asked for not invoked as matter of course in recent times however

Source of Court’s power: Section 401(1) CPC • prosecution costs (public or private) and compensation to victim o court can order payment of either or both (discretionary) • Power to prioritise payments: s 401(3) CPC; If no order - costs have priority over compensation • Extent of court’s power - see s 403(1) ... o Allow time for payment, instalments, etc • Must be the court before which the person in convicted.

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o Pre-requisites: (a) conviction; (b) same court hearing case When to apply? · · ·

There must be a conviction for a crime or offence. Made before the trial court. It is discretionary; not in every case that such costs be ordered.

Costs: factors to consider • Court’s broad discretion •

Oh Cheng Hai v Ong Yong Yew [’93] 3 SLR 930; Abex Centre v PP [’00] 2 SLR 681: o strength of case against Accused o Accused’s knowledge of this o Conduct of defence; conducted ‘extravagantly and unnecessarily’? (e.g. did defence advance accused’s case, was the cross-examination prolonged and unnecessary - Jasbir Kaur v Mukhtiar Singh [’99] 2 SLR 349)

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Extent of liability to pay cost? o Liable only for that part of prosecution costs which accused caused prosecution to incur by reason of extravagant or unnecessary conduct of defence, not all costs ordinarily incurred to secure conviction Even if prosecution has strong case, accused has a right to claim trial and put prosecution to strict proof of guilt - Jasbir Kaur v Mukhtiar Singh Line to be drawn is a question of fact in every case

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An Appellant can also be ordered to pay the costs of an appeal if he had conducted it “extravagantly and unnecessarily”. (See Arts Niche Cyber Distribution Pte Ltd v PP [1999] 4 SLR 111. In this case, the High Court ordered payment of the costs incurred by the prosecution of an appeal under Section 262(1) of the CPC.)

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In Abex Centre Pte Ltd v PP [2000] 2 SLR 681. In this case, instructions to withdraw appeal just 3 days before hearing showed abuse of appeal system as means of avoiding payment of rent and delaying eviction from premises. Appellants benefited financially as they were subletting the premises and collecting rental from sub tenants.

Oh cheng hai v ong yong yew 1993 3 SLR 930  It was not in every case that costs should be ordered. In exercising its discretion, the court was entitled to take all the circumstances into account, including the strength of the case against the accused, his knowledge of this and his conduct of his defence. An accused had a right to plead not guilty and to conduct his defence in any manner allowed by law. Nevertheless, if he lost and the court thought that his defence had been conducted extravagantly and unnecessarily, he cannot complain if he was ordered to pay some of the costs which he caused the prosecution to incur.

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Order for payment of costs of prosecution and compensation. 401. —(1) The court before which a person is convicted of any crime or offence may, in its discretion, make either or both of the following orders against him: (a) an order for the payment by him of the costs of his prosecution or such part thereof as the court directs; (b) an order for the payment by him of a sum to be fixed by the court by way of compensation to any person or to the representatives of any person injured in respect of his person, character or property by the crime or offence for which the sentence is passed. (2) The court shall specify the person to whom any sum in respect of costs or compensation as aforesaid is to be paid, and section 403 shall be applicable to any order made under this section. (3) The court may direct that an order for payment of costs or an order for payment of compensation shall have priority and, if no direction is given, an order for payment of costs shall have priority over an order for payment of compensation. (4) To the extent of any amount which has been paid to a person or to the representatives of a person under an order for compensation any claim of such person or representatives for damages sustained by reason of the crime or offence shall be deemed to have been satisfied, but the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.

Jasbir Kaur v Mukhtiar Singh [1999] 2 SLR 349  Facts  The appellant Jasbir Kaur successfully prosecuted the respondent Mukhtiar Singh under a private summons for insulting her modesty and criminal intimidation. At the close of the proceedings, the appellant unsuccessfully applied for prosecution costs under s 401(1)(a) of the Criminal Procedure Code (Cap 68) (“CPC”). On appeal, the appellant argued that prosecution costs should have been ordered as the respondent - (i) had sufficient means to pay the costs; and - (ii) should have pleaded guilty given the weight of the appellant’s case.  The Deputy Public Prosecutor intervened to withdraw the appeal, contending: - (i) the appellant had no right of audience before the High Court as a private person; and (ii) the Public Prosecutor had a right to intervene in the proceedings.  Held, dismissing the appeal: o (1) Under s 336(1) of the CPC and Art 35(8) of the Constitution of the Republic of Singapore, the Public Prosecutor had power to intervene and withdraw the appeal. o (2) The court left open the question of whether a private prosecutor appealing in person had a right of audience before the High Court when the Public Prosecutor decided to discontinue the proceedings. o (3) Considerations for awarding prosecution costs included: (i) the strength of the case against the accused; (ii) his knowledge of this; and (iii) his conduct of defence. An accused who conducted his defence extravagantly and unnecessarily might be ordered to pay part of the costs which he caused the Prosecution to incur. o (4) Although the appellant had a strong case, the trial judge found that the Defence had not been conducted in an extravagant or unnecessary manner. The appellate court would not interfere with this decision as the trial judge was not shown to have

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considered irrelevant matters or failed to consider relevant matters or was plainly wrong. In this case, the Court agreed with the trial judge’s decision not to award prosecution costs because - (a) the Defence was not conducted in such a manner that did not advance the respondent’s case; and (b) the trial lasted for only two days and the respondent’s counsel did not engage in prolonged and unnecessary crossexamination. o (5) The mere fact that the respondent had the means to pay prosecution costs did not mean that the appellant was entitled to such cost. However, the accused’s lack of means would be a relevant consideration in deciding whether to order costs. o (6) An accused should not be made to bear prosecution costs simply because he chose to claim trial even though the Prosecution’s case was strong. Every accused had a right to conduct his defence and put the Prosecution to strict proof of his guilt beyond reasonable doubt. 

Section 262(1) of the CPC, for the High Court, in appellate capacity.

Costs. 262. —(1) The High Court shall have full power in all proceedings under Part VII to award such costs to be paid by or to the parties thereto as the Court thinks fit. 

Arts Niche Cyber Distribution v PP - Section 401(1) of the CPC, for courts below. On appeal, unfounded attacks on judge’s integrity and baseless allegations of being a fair trial Section 262(1) of the CPC, costs for appeal too. o Facts:  The appellant company was convicted with three counts under s 58(b) CPF Act of failing to pay contributions to the CPF in respect of three of its employees. At the trial, the sole issue to be decided was whether those three employees were in fact employees of the appellant within the meaning of the CPF Act for CPF contributions to be payable.  The appellant appealed against its conviction and sentence. o Held, appeal dismissed:  There were no merits in the appellant’s appeal against conviction.  As for the appeal against sentence: (1) The fines imposed by the trial judge, although slightly on the high side, were not manifestly excessive. (2) The order that the appellant should pay the costs of prosecution pursuant to s 401(1) CPC was also upheld.  The court has a wide discretion to order costs under s 401(1) CPC.  In exercising its discretion, the court is entitled to take all the circumstances into account, including: (a) the strength of the prosecution’s case, (b) the accused’s knowledge of the strength of the prosecution’s case, and (c) the accused’s conduct of his defence, in particular, if his defence has been conducted “extravagantly and unnecessarily”. One way of determining whether the accused`s defence has been conducted “extravagantly and unnecessarily” would be to consider whether the line of defence mounted has advanced his case.

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On the facts, the appellant’s defence at the trial was extravagant and unnecessary since many aspects of it did not serve to advance the appellant’s case.  The High Court may likewise order an appellant to pay the costs of his appeal pursuant to s 262(1) CPC.  However, an appellant should not be ordered to pay the costs of an appeal simply because his case on appeal is a weak one. Instead, he should be ordered to pay such costs only if he conducts his appeal “extravagantly and unnecessarily”.  In the present case, the arguments the appellant’s director relied on to challenge the trial judge’s decision were devoid of merit. They consisted largely of unfounded attacks on the trial judge’s integrity and baseless allegations that the appellant had been denied a fair trial, which did not in any way advance the appellant’s case that the trial judge erred in finding that the three employees were in fact employees within the meaning of the CPF Act at the material time. In light of the arrogance and the disrespect for the trial judge which the appellant’s director displayed in the course of the appeal, it was appropriate to order him (as opposed to the appellant) to pay the prosecution costs in respect of this appeal. Compensation 

s401.1.b empowers court to order accused convicted of ofence to pay sum by way of compensation to any peron or rep of tt person injured iro his person, character or property by accused’s offence

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section 401(1)(a) of the CPC where upon the conviction of a person of any offence, the court may in its discretion, make such an order.

Section 403(1) of the CPC Provisions as to money payable as costs or compensation. 403. —(1) Subject to the provisions of this Code, where any person is, under this Code, for any reason whatsoever, ordered to pay any sum of money by way of costs or compensation, the court making the order may at any time before that sum has been paid in full, in its discretion, do all or any of the following things: (a) allow time for the payment of that sum and grant extension of the time so allowed; (b) direct payment to be made of that sum by instalments: Provided that before allowing time for payment of that sum or directing payment of it to be made by instalments the court may require that person to execute a bond with or without sureties conditioned upon payment of that sum or of the instalments, as the case may be, on the day or days directed and in the event of that sum or any instalments not being paid as ordered the whole of that sum remaining unpaid shall become due and payable and the court may issue a warrant for the arrest of that person; (c) issue warrant for the levy of the amount by distress and sale of any property belonging to that person; (d) direct that in default of payment or of a sufficient distress to satisfy any such sum, that person shall suffer imprisonment for a certain term, which imprisonment

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shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence; Form 32. (e) direct that that person be searched, and that any money found on him when so searched or which, in the event of his being committed to prison, may be found on him when taken to prison, shall be applied towards the payment of that sum; the surplus, if any, being returned to him: Provided that such money shall not be so applied if the court is satisfied that the money does not belong to the person on whom it was found. ·

A compensation order under Section 401(1)(b) is not ‘punishment’ for an offence under the Penal Code. See R v Inwood [1974] 60 Cr AR 70 and PP v Lee Meow Sim Jenny [1994] 1 CLAS News 40. In this case, a compensation order under Section 403(1)(b) is not part of the “sentence”. Consequently, the High Court would not have the power under Section 256 of the CPC to make a compensation order.

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Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means, which would enable the compensation to be paid.

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It is made by the Court, which convicted the accused of the crime or offence. The court can make the order on its own motion.

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See Section 403 CPC for various orders, which a Court can make for payment of costs. o Allow time for payment or extension of time to do so o Direct payment to be made by instalments (may require bond with / without sureties) o Issue warrant for levy of the amount by distress and sale of any property o Default imprisonment (See s 403(2) for limitations) o Person to be searched for money

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See Lim Poh Eng v PP [1999] 2 SLR 116 delivered on 15 Feb 99. In this case, compensation order could conceivably be varied under Section 256(d) of the CPC in “an appeal from any other order”. It was not available in present case as appeal was only with regards to conviction and sentence.

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PP v Donohue enilia 2005 – victim an ind onesian national who worked for respondent as domestic worker after revocation of her work permit owing to resp having defaulted on payment of the foreign worker’s levy - victim never paid throughout period of her employment - matter went to HC - HC ordered resp to compensate victim wrt unpaid salary - Eg of court using its powers to order compensation - Accused defaulted on paying domestic maid levy (so maid’s work permit was revoked). - Accused continued to use maid’s services without paying her

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Convicted of employing a foreign worker without a valid work permit Prosecution sought compensation order for unpaid salaries owing to maid – Magistrate refused. PP appealed against Magistrate’s refusal to grant compensation order, under s256 (d) CPC i.e. an appeal against “any other order” CJ: Strictly speaking, there was no compensation order to appeal against.  “Nevertheless, I was of the view that there could be an appeal against the court’s refusal to grant a compensation order. The opposite conclusion would be absurd, for it would mean that an appeal would be possible if the court awarded manifestly inadequate amount of compensation, but no appeal would be possible if the court refused to grant any compensation. It cannot be parliament’s intention for the High Court’s appellate powers to be so circumscribed.” Another way of looking at it:  The “order” made by the Magistrate was for “no compensation” and the prosecution merely appealing against THAT order. Compensation order made for 2 years’ worth of wages.

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Another sitn whre comp may be ordered is clear evid of loss suffeed by victim eg where there are med expenses incurred or case akin to restitution. If amt can be quantified easilsy, can make applic for compensation order to be made

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Section 401(4) CPC: Does not prejudice right to civil remedy to recover beyond amount of compensation paid R v Inwood [’74] 60 Cr App R 70 per Lord Scarman o “Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties of crime. o Compensation orders were introduced into our law as a convenient and rapid means of having the expense of resort to civil litigation when the criminal clearly has the means which would enable the compensation to be paid. PP v Sim Meow Sim Jenny [’93] 3 SLR 885 (crim. reference): o Compensation order not ‘punishment’ for an offence under Penal Code nor part of the “sentence” o Thus High Court (in crim. Appellate capacity) would not have power under s 256 CPC to make a compensation order as part of the sentence or punishment Lim Poh Eng v PP [’99] 2 SLR 116: Compensation order could conceivably be varied under s 256(d) CPC in ‘an appeal from any other order (c.f. appeal against conviction or sentence)’.

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Compoundable offences -

effective ‘settlement’ of the offence among the complainant and accused person, with the consent of the Court, either with or without any objections from the Prosecution

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terms of composition might include, among other things, an agreement to pay for the complainant’s medical fees (where injury has been caused), an apology, appropriate financial compensation or a donation by the accused person to a charity of the complainant’s choice for composition, the complainant’s consent is most important court has power to make the final decision about whether composition should be allowed court will be guided by such factors as the nature of the offence, the public policy considerations for allowing composition for the type of offence(s) involved certain offences that are governed by statutes other than the Penal Code may also be compounded if provided for in the statute prescribing such offence, e.g.:  s. 135 Road Traffic Act Composition of offences 135. —(1) The Deputy Commissioner of Police, any police officer not below the rank of sergeant specially authorised by name in that behalf by the Deputy Commissioner of Police by notification in the Gazette or any employee of the Authority specially authorised by name in that behalf by the Minister for Transport by notification in the Gazette may, in his discretion and subject to such conditions as may be prescribed, compound any such offence under this Act as may be prescribed as an offence which may be compounded by the Deputy Commissioner of Police or such police officer or employee of the Authority by collecting from the person reasonably suspected of having committed the offence a sum not exceeding $500. [28/95;11/96;5/98;1/2003] (2) The appropriate Minister may make rules to prescribe the offences which may be compounded under this section and the conditions subject to which, and the method and procedure by which, such offences may be compounded. o s. 126 Customs Act Composition of offences 126. —(1) Any senior officer of customs may compound any offence under this Act which is prescribed to be a compoundable offence by collecting from the person reasonably suspected of having committed the offence a sum not exceeding $5,000. [23/93] (2) On payment of such sum of money, the person reasonably suspected of having committed an offence, if in custody, shall be discharged, any properties seized shall be released and no further proceedings shall be taken against that person or property unless the property consists of goods the import of which is absolutely prohibited under section 38 or of goods manufactured in Singapore without a licence in contravention of this Act in which case the goods shall be forfeited. - s. 59 Immigration Act Composition of offences 59. The Controller or any immigration officer authorised by name or by office in that behalf by the Minister by notification in the Gazette may compound such offence under this Act or the regulations as may be prescribed as being an offence which may be compounded by collecting from the person reasonably suspected of having committed the offence a sum of money not exceeding $500. o s. 27 Employment of Foreign Workers Act

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Composition of offences 27. The Controller may compound any offence under this Act or any regulations made thereunder by accepting from the person reasonably suspected of committing the offence a sum not exceeding $1,000. Section 199(1) CPC 199. —(1) The offences punishable under the Penal Code shown in the sixth column of Schedule A as being compoundable may be compounded by the person mentioned in that column provided that when an arrest has been effected or an application has been made for the issue of a warrant of arrest or summons the consent of a Magistrate or, if the offence is not triable by a Magistrate’s Court, of a District Judge, shall first be obtained. -

Court has the power to make the final decision about whether composition should be allowed. Factors include nature of offence, public policy considerations, whether parties involved are related and not allowing composition may strain the relationship, and whether the accused person could be viewed to be ‘paying his way’ out of the allegation he or she faces.

Norzian Bin Bintat [1995] 3 SLR 462 - In exercising its discretion whether or not to grant consent to composition, the court was not acting as a rubber stamp. It had to exercise its discretion judicially. In a case where the public interest was involved, it was proper to withhold consent to composition. On the other hand, in the absence of aggravating factors, the courts should lean towards the granting of consent in cases where the public interest did not figure strongly. - Applying the principles to this case, this was not a suitable case to refuse consent to compound the offence. The injury suffered was minor and the parties had patched up their differences. Compelling the parties to go through a criminal trial would only serve to open up old wounds and was not conducive to the parties living in peace and harmony. It was not in the public interest to make a mountain out of the proverbial molehill. The district judge exercised his discretion impeccably and there was no basis for disturbing his decision. Ho Yean Theng Jill v PP [2004] 1 SLR 254 (maid abuse case) - The fact that the appellant was the victim’s de facto employer and not her de jure employer had no bearing on whether the courts should lean in favour of granting consent to allow composition of the offences. The public interest element present in cases where a foreign domestic maid had been abused warranted a departure from the general principle that the courts should lean in favour of granting consent for composition of minor offences. There were also aggravating factors, including how the appellant inflicted the injuries on the victim. The magistrate did not err in law when he withheld the consent to compound the offences