Balasubramanian Palaniappa Vaiyapuri v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 23 January 2002
• Neutral Citation: [2002] SGHC 12
• Date: 23 January 2002
• Subject Matter: Safeguards to observe in determining validity,Rejection of guilty plea by court,Relevant considerations in court's exercise of power,Sentencing,Revision of proceedings,Appellant's persistence in outraging modesty of victim as aggravating factor,Offences,Absence of criminal antecedents as mitigating factor,Benchmark sentence,Criminal Law,Qualification of guilty plea during mitigation,Whether consent of Acting Attorney General given and valid,Adjudicate,Whether plea of guilt and absence of antecedents merit discount in sentence,Outraging modesty of victim,Defence of intoxication,Appellant pleading guilty to charge,Appellant alleging intoxication in mitigation plea,Whether defence available to appellant,Appellant alleging defective statement of facts,Whether court has jurisdiction to hear matter,Jurisdiction,s 86(2) Penal Code (Cap 224),s 354 Public interest element,Appeal,Whether mitigation plea qualifies plea of guilt,s 180(b) Criminal Procedure Code (Cap 68),Courts and Jurisdiction,'Nature and consequences',Validity of plea of guilt,Words and Phrases,Consent of Attorney General necessary before commencement of proceedings,Penal Code (Cap 224),Defence available only where accused incapable of forming requisite mens rea,s 23 Supreme Court of Judicature Act (Cap 322, 1999 Ed),s 3(2) Tokyo Convention Act (Cap 327),Criminal Procedure and Sentencing
• Docket Number: Criminal Revision No 12 of 2001 Magistrate's Appeal No 309 of 2001
• Published date: 19 September 2003
• Defendant Counsel: Cheng Howe Ming (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: SK Kumar (SK Kumar & Associates)

Judgment

GROUNDS OF DECISION

This was a petition for criminal revision of a decision of a subordinate court and an appeal against the sentence imposed. I dismissed the application for revision and enhanced the sentence imposed on the petitioner. I now give my reasons.

The facts

2 The petitioner was originally charged with three counts of outrage of modesty under s 354 of the Penal Code (Cap 224). The prosecution proceeded only on the third charge after the accused had indicated that he would plead guilty to the charge. The remaining two charges were taken into consideration for the purpose of sentencing with the consent of the accused.

3 The petitioner pleaded guilty to the following charge:

You,

Name: Balasubramaniam Palaniappa Vaiyapuri, M/57 years old
Date of Birth: 26.4.1944
Nationality: Indian National
Passport No: A1504579

are charged that you on the 1^st day of November 2001, at or about 5.10 pm (Singapore Time) whilst on board Singapore Airline flight SQ 973 travelling from Bangkok, Thailand to Singapore did use criminal force to one Puspitaningrum Retnoharsiwi, F/24 years old, to wit, by touching her right breast with your right hand, knowing it to be likely that you will thereby outrage the modesty of the said Puspitaningrum Retnoharsiwi, and you have thereby committed an offence punishable under Section 354 of the Penal Code, Chapter 224.

4 The first charge that was taken into consideration in sentencing stated that the petitioner had on the same day, whilst on board the same flight travelling from Osaka, Japan to Bangkok between 1 pm and 2 pm, outraged the modesty of Ms Puspitaningrum Retnoharsiwi by touching her breast with his right hand. The other charge involved the petitioner outraging the modesty of the same victim by stroking her left cheek with his right hand between 1 pm to 2 pm on the same flight.

5 The plea of guilt was made to a statement of facts, which the petitioner admitted to without qualification. In summary, it stated that on 1 November 2001, the petitioner had asked the victim, who was a flight stewardess with Singapore Airlines, for a glass of Cognac. He then suddenly touched the victim’s right breast with his right hand. The victim reported the matter to her colleagues and subsequently to the Singapore Airline Control Centre at Singapore Changi Airport, Terminal 2. After disembarking from the aircraft, the victim identified the petitioner to a police officer of the Singapore Airport Terminal Services (SATS). The petitioner was arrested and escorted to Bedok Police Division.

6 The petitioner was convicted in the court below. In mitigation he pleaded that he had seven daughters who were dependent on his income and urged the court to consider his case sympathetically. He also stated that he had a lot to drink on the flight.

7 The district judge sentenced the petitioner to 12 months’ imprisonment. No caning was imposed as the petitioner was 57 years old at the time of the offence. The judge noted that the tariff sentence in outrage of modesty cases was nine months’ imprisonment and three strokes of the cane. The judge discerned two mitigating factors in the present case: the petitioner’s plea of guilt and the fact that he was a first offender. However, the judge was of the view that the petitioner had brazenly touched the victim’s breast at two separate points in time and that his persistence in outraging the modesty of the victim had outweighed any mitigating value in his plea of guilt. This warranted a sentence above the nine-month tariff.

The petition for criminal revision

8 Counsel for the petitioner submitted that the court below did not have jurisdiction to hear the matter because no valid consent had been obtained from the Attorney-General for the commencement of proceedings. It was also argued that the plea of guilt was not unqualified and that the statement of facts was defective as it did not state all the essential elements of the offence. Counsel submitted that the conviction and sentence had thus been rendered unsafe and sought to invoke the revisionary jurisdiction of this court to quash the conviction and to set aside the sentence imposed on the petitioner.

Principles of revision

9 The revisionary powers of the High Court are conferred by s 23 of the Supreme Court of Judicature Act and s 268 of the Criminal Procedure Code (the ‘CPC’). Such powers of revision must be exercised sparingly. There must have been some serious injustice before the court will intervene on revision. No precise definition of what will constitute such serious injustice is possible as the discretion of the courts has to be preserved. However, it must generally be shown that there was something palpably wrong in the decision of the court below, which struck at its basis as an exercise of judicial power: see Ang Poh Chuan v PP [1996] 1 SLR 326, Ngian Chin Boon v PP [1999] 1 SLR 119, PP v Mohamed Noor bin Abdul Majeed [2000] 3 SLR 17.

Lack of jurisdiction to hear the charge

10 Section 3(2) of the Tokyo Convention Act (Cap 327) reads as follows:

No proceedings for any offence under the law in force in Singapore committed on board an aircraft while in flight elsewhere than in or over Singapore other than an offence under the Air Navigation Act or any subsidiary legislation made thereunder shall be instituted in Singapore except by or with the consent of the Attorney-General.

11 Counsel for the petitioner contended that the court below had no jurisdiction to adjudicate the matter. Counsel submitted that under s 3(2) of the Tokyo Convention Act, the consent of the Attorney-General is required if the Attorney-General is not personally conducting the prosecution and in this case the consent of the Solicitor General in his capacity as Acting Attorney-General had been obtained. The Solicitor General had no powers to issue the consent for the institution of proceedings, as under s 336(2) of the Criminal Procedure Code the Solicitor General is only vested with the powers of a Deputy Public Prosecutor.

12 I was of the view that there was no merit in counsel’s argument. In the present case, the Solicitor-General had been officially appointed to act as the Attorney-General from 1 November 2001 to 4 November 2001 and from 11 November 2001 to 14 November 2001. This was published in the Government Gazette Notification No 3076 on 2 November 2001. The Solicitor General could therefore consent to the prosecution of the offence on 2 November 2001 in his capacity as the Attorney-General.

13 Counsel also argued that the court lacked jurisdiction to hear the case, given that the consent was on the face of it irregular or invalid. Counsel submitted that this was because the charge to which consent had been given by the Acting Attorney-General stated the mens rea as one of "intention", whereas the charge read out to the petitioner in the court below was concerned with the mens rea of "knowledge" and not "intention".

14 Counsel for the petitioner relied on several cases for support. One of the cases cited was R v Morarka AIR (1948) P.C. 82, which was an appeal to the Privy Council from the High Court of Bombay. This case concerned clause 23 of the Cotton Cloth and Yarn (Control) Order 1943, which required the sanction of the Provincial Government for the institution of proceedings against persons who contravened any of the provisions of the Order. The court in Morarka held that facts constituting the offence charged in respect of which sanction was given should either be referred to on the face of the sanction or it must be proved by extraneous evidence that they were placed before the sanctioning authority. Where the facts were not referred to on the face of the sanction nor was it proved that they were before the authority, the sanction would be invalid and the court would lack jurisdiction to hear the case.

15 In my view, Morarka did not lend any support to the petitioner’s contention, as a very different issue was involved in that case. Morarka was concerned with the requisite form and contents of the sanction under Clause 23 of the Order whereas the issue in this case was whether there was valid consent where the mens rea stated in the charges to which consent had been given was different from those that the petitioner subsequently faced in court.

16 The other cases cited by counsel for the petitioner also gave no support to his argument and can be distinguished from the present case. In those cases, the offence to which consent had originally been given constituted a separate and distinct offence from the one that the accused was subsequently charged with in court.

17 In PP v Lee Chwee Kiok [1979] 1 MLJ 45, the accused was originally charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Ordinance and the Public Prosecutor’s consent to prosecute had been given. At the trial the prosecution amended the charge to one of doing an act preparatory to trafficking under s 39B(1)(c) of the Ordinance. The court held that this was a distinct offence to which the Public Prosecutor’s consent had to be obtained and that the trial was a nullity as consent had not been given to the amended charge.

18 The accused in PP v Wong Cheong Yoon [1992] 1 CLAS News 37 was originally charged with an offence under s 5(a)(i) of the Prevention of Corruption Act and the consent of the Public Prosecutor had been obtained under s 31 of the Act. At the trial, the prosecution amended the charges such that they alleged offences under s 6(a) of the Act. The court held that the amended charges concerned distinct offences under a different section of the Act and as the Public Prosecutor’s consent had not been obtained, the court did not have the jurisdiction to hear the case.

19 The above cases had clearly laid down the proposition that the court had no jurisdiction to adjudicate the matter if the charge to which consent had been given alleged an entirely distinct...