Amin bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 August 2017
• Neutral Citation: [2017] SGHC 215
• Date: 29 August 2017
• Docket Number: Magistrate’s Appeal No 9308 of 2016
• Published date: 01 September 2017
• Plaintiff Counsel: Appellant in person
• Defendant Counsel: Terence Chua, Chin Jincheng and Du Xuan (Attorney-General's Chambers),Koh Zhen-Xi Benjamin (Allen & Gledhill LLP) as young amicus curiae.
• Court: High Court (Singapore)
• Hearing Date: 09 May 2017
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Appeal,Principles,Benchmark sentences

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

Under the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”), certain categories of offenders are exempted from caning. The CPC also empowers the courts to enhance the imprisonment terms of such offenders in lieu of caning, by up to 12 months. Case law has not spoken with one voice on when an offender’s sentence should be enhanced in lieu of caning (“the enhancement question”), and if so enhanced, how the extent of such enhancement should be determined (“the duration question”).

These questions arose in the present appeal. At the conclusion of the oral arguments, we dismissed the appeal and gave brief reasons. We indicated that we would elaborate by furnishing detailed grounds for our decision. This we now do. In these written grounds, we provide guidance on both the enhancement question and the duration question. We first discuss the law and the current sentencing practice of the courts. We then set out the approach that should guide the courts in this context. We finally address the present appeal.

Brief Facts

Amin Bin Abdullah (“the Appellant”) was convicted of one charge of trafficking in 13.23g of diamorphine, an offence under s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and punishable under s 33(1) of the MDA. He also pleaded guilty to one charge of possession of 0.27g of diamorphine, an offence under s 8(a) of the MDA and punishable under s 33(3) of the MDA. For the trafficking charge, he was sentenced to the mandatory minimum of 20 years’ imprisonment and 15 strokes of the cane. For the possession charge, he was sentenced to three years’ imprisonment. Both sentences were ordered to run concurrently, for an aggregate sentence of 20 years’ imprisonment and 15 strokes of the cane.

The Appellant was later certified by a medical officer to be permanently unfit for caning. The learned district judge (“the District Judge”) then enhanced the original sentence by 30 weeks’ imprisonment in lieu of caning. The Appellant appealed against this enhancement, contending that it was manifestly excessive. This required us to consider the applicable principles. Because we thought that the issues raised were somewhat complex, we appointed Mr Benjamin Koh Zhen-Xi (“Mr Koh”) as amicus curiae. We are deeply grateful for the extremely helpful submissions that he made.

The current state of the law An introduction to the relevant statutory provisions

There are three relevant categories of offenders who are exempted from caning: All female offenders and male offenders aged above 50 at the time of caning: see s 325(1) of the CPC; Offenders who are sentenced at the same sitting of the court to more than the specified limit of 24 strokes of the cane (in the case of an adult) or 10 strokes of the cane (in the case of a juvenile): see s 328(1) read with s 328(6) of the CPC; and Offenders who are certified to be medically unfit for caning: see s 331 of the CPC.

We refer to these three categories of offenders collectively as “the exempted offenders”.

The CPC also empowers the court to enhance the sentences of exempted offenders by up to a maximum of 12 months’ imprisonment. The relevant provisions are: Section 325(2) of the CPC, for offenders exempted under s 325(1) of the CPC; Section 328(2) of the CPC, for offenders exempted under s 328(1) of the CPC; and Section 332(2)(b) of the CPC, for offenders exempted under s 331 of the CPC.

While the latter provisions are drafted in similar terms, they have different origins which we trace below.

Section 325(2) of the CPC

Section 325 of the CPC provides:

Execution of sentence of caning forbidden in certain cases

325.—(1) The following persons shall not be punished with caning: (a) women; (b) men who are more than 50 years of age at the time of infliction of the caning; and (c) men sentenced to death whose sentences have not been commuted.

(2) Subject to any other written law, if a person is convicted of one or more offences punishable with caning (referred to in this section as the relevant offences) but the person cannot be caned because subsection (1)(a) or (b) applies, the court may, in addition to any other punishment to which that person has been sentenced, impose a term of imprisonment of not more than 12 months in lieu of the caning which it could, but for this section, have ordered in respect of the relevant offences. (3) A court may impose a term of imprisonment under subsection (2) notwithstanding that the aggregate of such term and the imprisonment term imposed for any of the relevant offences exceeds the maximum term of imprisonment prescribed for any of those offences.

…

While the prohibition against caning the classes of persons set out in s 325(1) of the CPC has long existed, s 325(2) of the CPC is a relatively new provision. It was introduced when the present CPC came into force on 2 January 2011, vide Criminal Procedure Code (Commencement) Notification 2010 (S 776/2010). During the Parliamentary debates, the Minister for Law explained that the underlying rationale was to “give the Court discretion in exercising parity between co-accused persons, one of whom may be caned and the other may not” (see Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at col 422 (K Shanmugam, Minister for Law)).

It should be noted, however, that even though the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the 1985 CPC”) did not specifically provide for the sentences imposed on this category of exempted offenders to be enhanced, the courts did from time to time impose higher sentences on accused persons on account of the fact that they could not be caned. We set out some of the key cases.

Cases decided under the 1985 CPC

We begin with the 1991 decision of the Court of Appeal in Er Boon Huai and another v Public Prosecutor [1991] 2 SLR(R) 340 (“Er Boon Huai”). There, the appellant, a drug trafficker, was over the age of 50 and not liable for caning. The High Court imposed an additional three-year imprisonment term on the appellant on account of the exemption and sentenced him to 27 years’ imprisonment in total. The appellant’s co-accused, whose culpability was not dissimilar, received a sentence of 24 years’ imprisonment and 15 strokes of the cane. On appeal, the Court of Appeal set aside the additional three years’ imprisonment, reasoning as follows (at [11]):

Section 231 [of the 1985 CPC] places the three categories of persons stated therein in a special position in that any provision in any law imposing a liability to caning would not be applicable to such persons. That being so, unlike the first appellant, the maximum penalty that the second appellant was liable for was therefore 30 years’ imprisonment (without any caning) and the minimum penalty was 20 years’ imprisonment (without any caning). The additional three years’ imprisonment imposed on the second appellant in lieu of the caning cannot be justified as the second appellant, in the absence of any facts to distinguish his case from that of the first appellant’s, must be sentenced to the same term of imprisonment as the first appellant for this offence. [emphasis added]

Er Boon Huai has been interpreted in different ways. Some have understood it to mean that it proscribes the imposition of an enhanced sentence of imprisonment in lieu of caning: see Mallal’s Criminal Procedure (Noor Azman bin Adnan & James Selladurai Thanjong Tuan gen eds) (LexisNexis, 7th Ed, 2012) at para 1401. Others have seen it as standing for the proposition that an additional term of imprisonment in lieu of caning should not be ordered “in the absence of valid reasons”: see, for example, Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) (“Sentencing Principles in Singapore”) at paras 30.054–30.055.

The authors of The Criminal Procedure Code of Singapore: Annotations and Commentary (Jennifer Marie & Mohamed Faizal gen eds) (Academy Publishing, 2012) suggest at para 16.142 that Er Boon Huai was legislatively overruled by the enactment of s 325(2) of the CPC, but this has not been judicially explored. It may be noted that Er Boon Huai was not referred to in the subsequent cases decided under the 1985 CPC, to which we now turn.

Seven years later, Tay Yong Kwang JC (as he then was) decided Public Prosecutor v Koh Jin Lie [1998] SGHC 180 (“Koh Jin Lie”). The 52-year-old accused in Koh Jin Lie pleaded guilty to a charge of attempted rape of a girl below 14 years of age, which was punishable with a sentence of between eight and ten years’ imprisonment, and a mandatory sentence of 12 strokes of the cane. Tay JC noted as follows (at [8]):

In my opinion, a sentence of imprisonment can and should be enhanced in appropriate cases, where caning is avoided for one reason or another.

Nevertheless, Tay JC did not enhance the accused’s imprisonment term. He explained that he had proceeded in this way in order to preserve an incentive for accused persons like the offender in that case to plead guilty in such cases, because proving guilt at trial might otherwise be difficult and would almost certainly be stressful for the victim. Keeping in mind that the sentencing range available to him was between eight and ten years’ imprisonment, Tay JC reasoned that “[a] sentence which approaches the higher end of the scale would give little incentive for offenders like the present Accused to plead guilty” (at [10]).

Although no additional term of imprisonment was ordered in Koh Jin Lie, Tay JC had clearly endorsed the possibility of such enhancement and in Public Prosecutor v Yap Siew Luan [2002] SGHC 93 he did enhance the sentence where an offender was exempted from caning. There, the female accused pleaded guilty to importing into Singapore a controlled drug, an offence that carried a minimum sentence of 20...