Criminal Procedure, Evidence and Sentencing

• Date: 01 December 2010
• Published date: 01 December 2010
• Author: LEE Lit Cheng LLB (Hons) (National University of Singapore), LLM (London); Advocate and Solicitor (Singapore); Deputy Senior State Counsel/Deputy Public Prosecutor, The Attorney-General‘s Chambers.

CRIMINAL PROCEDURE

Compensation orders

13.1 The power of a criminal court to order an offender to pay compensation to a victim of crime is provided for in s 401 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’). The court has the discretion to order an offender to pay a sum of money by way of compensation to any person ‘injured in respect of his person, character or property by the crime or offence for which the sentence is passed’.

13.2 Section 359 of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’) which came into force on 2 January 2011 confers similar discretion on the court to order compensation but mandates the court to consider whether or not a compensation order should be made. Section 359 of the CPC 2010 further allows the court to order compensation not only in relation to the charges that the offender had been convicted of but also charges that had been taken into consideration for the purposes of sentencing.

13.3 In Public Prosecutor v AOB [2010] SGHC 376 (‘PP v AOB’), an offender was convicted of a charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed). He was ordered to pay a fine and the issue of compensation was not considered in the District Court. On appeal, Chan Sek Keong CJ considered whether the High Court, in its appellate capacity, had the power to order compensation. Section 401 of the CPC empowers the trial court convicting an offender to make a compensation order. In the present case, the trial court did not consider whether it was appropriate for him to order compensation. Hence the issue was whether, in a case where the trial court has not imposed or considered a compensation order, the High Court in its appellate capacity has the power to order compensation.

13.4 The powers of an appellate court are found in s 256 of the CPC. Chan CJ distinguished the case of Public Prosecutor v Donohue Enilia [2005] 1 SLR(R) 220 (‘PP v Donohue Enilia’) as the prosecution had in

that case appealed against the District Judge“s refusal to order compensation and Yong Pung How CJ (as he then was) had in that case held that the appeal fell within s 256(d) of the CPC, being ‘an appeal from any other order’.

13.5 In the present case, Chan CJ held that the Court of Appeal“s decision in Public Prosecutor v Lee Meow Sim Jenny [1993] 3 SLR(R) 369 (‘PP v Lee Meow Sim Jenny’) applied, ie, in an appeal against sentence, the powers of the High Court under s 256(c) of the CPC were restricted to reducing, enhancing or changing the nature of the sentence. The High Court, therefore, had no power to impose a compensation order when such order was not considered or ordered by the trial court.

13.6 Although PP v AOB (above, para 13.3) was decided prior to the coming into force of the CPC 2010, Chan CJ took the opportunity to offer guidance on how s 359 of the CPC 2010 should be applied, and affirmed the continued applicability of the principles relating to compensation orders set out in PP v Donohue Enilia (above, para 13.4). First, a compensation order does not form part of the sentence nor is it an alternative to a sentence. Therefore, it should not be used as a further punishment of an offender and the amount of compensation ordered should not exceed the amount of damage caused. Second, there must be a causal connection between the offence committed by the offender and the damage for which compensation is ordered. The court should adopt a broad common sense approach and should not allow itself to be enmeshed in refined questions of causation which may arise in claims for damages under contract law or tort law. Third, compensation will only be ordered in clear cases where the damage is either proved or agreed. The assessment must be based on evidence. Fourth, compensation should only be ordered in cases where the amount of compensation can be readily and easily ascertained, and are not for cases where the amount of damages or loss is notoriously disputed. Fifth, the order must not be oppressive, but must be realistic in that the court must be satisfied that the offender either has the means available, or will have the means, to pay the compensation within a reasonable time. Chan CJ gave the reminder that s 359(1) of the CPC 2010 makes it mandatory for judges hearing criminal trials to consider whether a compensation order is appropriate, and urged the courts to make compensation orders in suitable cases whenever it is appropriate to do so.

Duplication of charges

13.7 In Arjun Upadhya v Public Prosecutor [2011] 1 SLR 119 (‘Arjun Upadhya v PP’), the appellant was the owner and licensee of a nightclub. He had allowed four Filipina nationals who did not possess

any work permit or employment pass to work at the licensed premises. He had also allowed the said Filipina nationals to provide companionship to the patrons at the licensed premises by chit chatting and drinking with them. The appellant was charged for eight counts under s 19(1)(c) of the Public Entertainment and Meetings Act (Cap 257, 2001 Rev Ed) for breaching the Licensing Conditions for Nightclubs, Cabarets, Discotheques, Bars, Lounges and other Public Houses. Four of the charges relate to the employment of the four Filipinas when they did not have a valid work permit in breach of licensing condition number 5 (‘LC 5’), and the other four charges were in relation to the appellant permitting the same four Filipinas to perform the duties of a hostess without approval from the licensing officer in breach of licensing condition no 21 (‘LC 21’). The appellant pleaded guilty to the first four charges and claimed trial to the latter four on the ground that the doctrine of autrefois convict applied and the prosecution should be precluded from proceeding with the four charges relating to the breach of LC 21 as they arose from the same set of facts as the four charges relating to the breach of LC 5.

13.8 The District Judge“s conviction of the appellant for the four charges relating to the breach of LC 21 was upheld on appeal by Tay Yong Kwang J. Even though the charges arose from the same set of facts, Tay J found that they concerned breaches of two distinct licensing conditions which sought to achieve different objectives. The rationale of LC 5 was to control and regulate the employment of foreigners in Singapore, while that of LC 21 was to prevent the proliferation of vice activities in pubs and other nightspots. Tay J held that there was no duplication of charges in this case as it was possible to breach one condition without the other. There would have been duplicity in the charges ‘if breaching one condition results in an offence which wholly encompasses the elements of an offence arising from breaching the other condition’: Arjun Upadhya v PP at [18].

EVIDENCE

Whether nature of controlled drug could be proved by accused person“s confession or admission

13.9 The appellant in Lim Boon Keong v Public Prosecutor [2010] 4 SLR 451 (‘Lim Boon Keong v PP’) was convicted after trial of a charge of consumption of norketamine in contravention of s 8(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’). At the trial in the district court, the appellant challenged the manner in which the urine tests were conducted and argued that the tests were not carried out in compliance with s 31(4)(b) of the MDA. The district judge held that the tests were in accordance with s 31(4)(b) of the MDA, and thus

the presumption in s 22 of the MDA applied. The district judge also held that by virtue of s 16 of the MDA, the certificates signed by the analysts of the Health Sciences Authority (‘HSA’) proved that there was norketamine in the appellant“s urine samples. It was also held by the District Judge that the appellant could be convicted based on his confession and from the adverse inference to be drawn from his silence at the trial.

13.10 During the appeal against conviction and sentence, the prosecution withdrew its reliance on the presumptions and conceded that the evidence adduced at the trial was incomplete and insufficient for the court to establish that the process of urine testing adopted by HSA was in line with internationally accepted standards and adequately satisfied the requirements of s 31(4)(b) of the MDA. Given this concession, it became irrelevant for the appellate court to make a ruling on the applicability of the presumption in s 22 of the MDA in the present case.

13.11 Be that as it may, Steven Chong J, in dicta, expressed his views on the requirements of s 31(4)(b) of the MDA. First, the two urine tests must be conducted by HSA analysts or gazetted persons. Second, the urine tests must be conducted by the HSA analysts who sign the certificates that are to be admitted under s 16 of the MDA. As to the meaning of the word ‘conduct’, it is both necessary and sufficient for the analyst to supervise the testing process without physically conducting the actual tests. The degree of supervision must be such that the analyst is able to claim responsibility for the whole testing process and authorship of the certificate. Third, the two urine tests must be carried out separately. This means that the personnel involved in the testing of one urine sample cannot be in any way involved in the testing of the second urine sample. This applies equally to the actual physical testing as well as to supervision and review of the test results.

13.12 As the prosecution had conceded at the appeal that there was insufficient evidence adduced to show that s 31(4)(b) of the MDA had been complied with in the present case, the certificates issued by the HSA analysts could not be accepted as presumptive evidence under s 16 of the MDA that norketamine was found in the appellant“s urine samples.

13.13 Turning to the appellant“s confession, Chong J held that while in principle, it was possible to rely on an accused person“s admission or confession to prove the nature of a substance even though the...