Abdul Nasir bin Amer Hamsah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 20 August 1997
• Neutral Citation: [1997] SGCA 38
• Docket Number: Criminal Appeal No 4 of 1997
• Date: 20 August 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: Appellant in person
• Citation: [1997] SGCA 38
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor),Michael Khoo SC (amicus curiae) and Josephine Low (Michael Khoo & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Legitimate expectation,Administrative Law,Meaning of 'life imprisonment',Protection of accused's right of legitimate expectation,'Life imprisonment' or 'imprisonment for life',Natural justice,Protection of legitimate expectations,Whether life imprisonment meant 20 years' imprisonment or natural life,Words and Phrases,Protection against retrospective criminal law,Prospective pronouncement of judgment affecting retrospective rights,Penal Code (Cap 224),Criminal Procedure and Sentencing,Constitutional Law,Sentencing

The charge

This was an appeal against sentence only. The appellant was charged and convicted in the court below for kidnapping. The charge read as follows:

You, Abdul Nasir bin Amer Hamsah, are charged that you, on or about 3 February 1996 between 5.05pm and 7.35pm at the lock-up of the Criminal Investigation Department, 90 Eu Tong Sen Street, Singapore, together with one Low Theng Gee and in furtherance of the common intention of you both, did wrongly confine Woman Corporal Ong Bee Lay and Corporal Chia Khen Siong of the Singapore Police Force, with intent to hold both of them for ransom, to wit, a car, two guns and eight bullets and you have thereby committed an offence punishable under s 3 of the Kidnapping Act (Cap 151) read with s 34 of the Penal Code (Cap 224).

Section 3 of the Kidnapping Act (Cap 151) states:

Whoever, with intent to hold any person for ransom, abducts or wrongfully restrains or wrongfully confines that person shall be guilty of an offence and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, also be liable to caning

At the end of the trial, the appellant was convicted and sentenced to imprisonment for life and 12 strokes of the cane, the imprisonment term to commence only upon expiration of his earlier sentence for robbery with hurt, for which he was sentenced on 4 July 1996 to 18 years` imprisonment and 18 strokes of the cane.

The appellant appealed and contended that the trial judge should have ordered concurrent sentencing for the imprisonment term, in which case, he would have effectively to serve only 20 years` imprisonment.

At the end of the hearing on 21 July 1997, we dismissed his appeal. However, we indicated that we would give our grounds for this dismissal and also our conclusions on an important point of law concerning the meaning of life imprisonment. We now give our reasons for dismissing the appellant`s appeal and our conclusions on the meaning of life imprisonment.

The facts

On 3 February 1996, one PC Ong Kok Hua (PC Ong) and one Cpl Veron Ong Bee Lay (Cpl Veron) were on duty at the CID Charge Office. They were later assigned to perform lock-up sentry duty inside the CID lock-up, and were stationed at an office situated inside the lock-up just next to the lock-up gate.

At the material time, the appellant and one Low Theng Gee (Low) were the only joint occupants of cell no 4 inside the lock-up. It transpired that both of them had met for the first time that afternoon, when they plotted their escape from the lock-up. It was agreed that Low would pretend to suffer from drug withdrawal symptoms and, on that pretext, would ask for permission to take a shower. It was further agreed that, when Low started singing, that would be the signal for the appellant to get ready to overpower the lock-up officer.

At about 5.05pm, Low, who had earlier obtained permission from PC Ong to take a shower as planned, was returning to cell no 4. At that time, PC Ong was waiting outside cell no 4. Just as Low was about to enter the cell, he turned on PC Ong. The appellant joined in and, together, they tried to push PC Ong into the cell. However, PC Ong was able to resist and called for help. His colleagues, Cpl Loh Ah Ng (Cpl Loh), Cpl Chia Khen Siong (Cpl Chia) and SC Ng Chor Neng (SC Ng), heard him and rushed to the lock-up gate. Cpl Chia unlocked the gate and both he and SC Ng entered the lock-up to assist PC Ong. Cpl Loh waited at the gate outside the lock-up. Cpl Veron, at the time, stood outside the lock-up registration room and witnessed the struggle.

In the ensuing struggle between the officers and the two detainees, PC Ong managed to free himself. Cpl Chia, however, was forced into the cell and the cell gate was latched. Low then rushed towards the lock-up gate. Cpl Loh quickly ordered the officers to leave the lock-up and both PC Ong and SC Ng did so.

Unfortunately, in the confusion, Cpl Veron was locked in as she failed to get out in time. Low and the appellant thereafter held Cpl Veron and Cpl Chia against their will.

Cpl Veron was held in the lock-up registration room for most of the time. A wooden ruler and a broken piece of mirror were pointed against her neck. As for Cpl Chia, his hands were tied behind his back, and he was kept separate from Cpl Veron in various cells within the lock-up.

The police negotiators, DAC Noor Mohd and ASP Saraj Din, tried to negotiate with the appellant and Low who demanded, inter alia, a car, two guns and eight bullets. They threatened to kill the officers who were held hostages if their demands were not met.

The appellant and Low were finally overpowered and arrested by the police Special Tactics And Rescue team. Both hostages suffered minor injuries.

The decision below

In deciding on the appropriate sentence for the appellant, the trial judge took into account the seriousness of the offence. First, the kidnapping occurred in the police lock-up. Second, the appellant was in the lock-up because he was being charged for murder at the time, although he was eventually convicted of robbery with hurt.

Notwithstanding this, the trial judge did not think that the present offence warranted the death penalty. Having considered the manner of the kidnapping and the conduct of the kidnappers, he said the following:

It is true to say, as was said in the submission for the prosecution, that it was on the face of it an audacious act on the part of you both. You thought that you can take as hostage two police officers and get away with it from the CID lock-up.

However, it is also clear on the evidence that I have heard, in planning your escape, neither of you thought it through as to how you were going to succeed in this enterprise of yours ... Thereafter, it was your colleague who then held Woman Corporal Ong [Cpl Veron] as a hostage and through her the demand was made for guns, bullets and the car. As regards the demand that was made, I accept the submission made on your behalf that a number of police witnesses who gave evidence were unable to say as to what you actually demanded ... But it must be remembered that the whole incident took over two hours and the police officers were there for most of the time including Woman Corporal Ong, Corporal Chia and even the Investigating Officer. It shows the circumstances that prevailed that day when this terrible scene was enacted in the lock-up of the CID.

So in those circumstances, the manner of the kidnapping, and your acts and conduct that day, cannot be said to be as serious as is made out in the written submission on sentence.

The trial judge went on to consider the fact that the appellant had cooperated with the negotiating officers in putting out a fire that was started in the lock-up. Moreover, it was Low who mainly carried out the negotiations, while the appellant was, for most of the time, walking up and down the corridor of the cells. The court also took into account that the appellant did not harm Cpl Veron. The appellant had initially intended to tie her up, but relented and even said that he would not harm her.

In the light of all the evidence, the trial judge was of the view that this act of kidnapping was not so serious as to require the death penalty. In the circumstances, he sentenced the appellant to imprisonment for life and 12 strokes of the cane.

However, the trial judge felt that this was an appropriate case for the present sentence to commence only upon expiration of the sentence for the appellant`s earlier offence of robbery with hurt. He reasoned as follows:

I have in mind also s 234 of the CPC and that provides that when a person who is an escaped convict or is undergoing sentence of imprisonment is sentenced to imprisonment, the latter part of that limb is the one that applies in this case, then the court can order the sentence of imprisonment to start at the expiration of the imprisonment to which the offender has already been sentenced. In your case, you were being detained for a serious charge and whilst there you committed this very serious offence. It is a separate and distinct offence and clearly, in my view, I will be failing in my duty if I did not make the distinction effective. So I sentence you to imprisonment for life and order that this sentence will take effect at the expiration of the imprisonment which you are now serving. I also order that you be given 12 strokes of the rotan. [Emphasis added.]

Issues in the appeal

This appeal was essentially about whether the trial judge had exercised his discretion erroneously in ordering the appellant`s life sentence to run consecutively to his previous imprisonment term of 18 years, instead of concurrently.

However, it was first necessary to ascertain the meaning of the expression `life imprisonment` or `imprisonment for life`: does it mean imprisonment for the remainder of the prisoner`s natural life, or does it mean 20 years` imprisonment which has been the practice thus far?

And, assuming that life imprisonment indeed means imprisonment for the remaining natural life of the prisoner, we had to decide when such a judicial pronouncement should take effect.

It was only after answering the two preliminary questions above that we turned to the appeal itself, and we have set out our conclusions below.

The appeal

The meaning of life imprisonment

The prosecution submitted that there are currently 44 Penal Code (Cap 224) offences and nine offences in other pieces of legislation which carry the life sentence. But, nowhere can the definition of imprisonment for life be found in these provisions. What then is the meaning of life imprisonment? Looking at s 57 of the Penal Code, which comes closest to defining life imprisonment, the term would mean 20 years. It states:

In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.

This section, it seemed,...