Chan Kum Hong Randy v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 04 February 2008
• Date: 04 February 2008
• Docket Number: Magistrate's Appeal No 156 of 2007
• Court: High Court (Singapore)

Chan Kum Hong Randy

Plaintiff

and

Public Prosecutor

Defendant

[2008] SGHC 20

V K Rajah JA

Magistrate's Appeal No 156 of 2007

High Court

Criminal Procedure and Sentencing–Sentencing–Principles–Rehabilitated ex-offender belatedly charged for other earlier offences after serving sentence–Mitigating effect of inordinate delay between commencement of investigations and eventual prosecution and sentencing

In July 2007, shortly after he was charged, the appellant pleaded guilty to eight charges of cheating and forgery, with 19 other charges taken into consideration. These charges (“the 2007 charges”) arose from the appellant's involvement in a scam on the Land Transport Authority and various finance companies between 1997 and 2001. From 1998 to 2001, nine investigation files were opened by three police divisions (Geylang, Ang Mo Kio and Tanglin) on this matter. Statements were recorded from the appellant, who readily admitted his involvement. However, the respective police divisions did not co-ordinate their inquiries.

Meanwhile, in May 2002, the Bedok police division commenced investigations against the appellant for, inter alia, illegal moneylending, criminal breach of trust and dishonestly inducing the delivery of property. Eventually a connection was made between this train of inquiry and the earlier investigations carried out from 1998 to 2001. In July 2002, charges were brought against the appellant in respect of three offences which were similar to those set out in the 2007 charges and which had been committed around 2001-2002. The appellant pleaded guilty to two charges, with the third taken into consideration for sentencing. On 1 October 2002, the appellant was sentenced to nine months' imprisonment and fined $10,000. During his incarceration the appellant was allegedly interviewed by police investigators who recorded statements from him in relation to the 2007 charges.

A week after the appellant was released from prison in March 2003, he was summoned by Tanglin Police Division to assist with further investigations in relation to the 2007 charges. In September 2003, fresh investigations were also commenced by the Commercial Affairs Department pursuant to a report by the appellant's ex-wife that he had fraudulently applied for a credit card using her personal particulars. In March 2007, four years after his release, the 2007 charges were finally preferred against the appellant and he was sentenced to 60 months' imprisonment upon pleading guilty. On appeal it was submitted that the district judge had erred in failing to consider the mitigating effect of an inordinate delay in prosecution.

Held, allowing the appeal and reducing the sentence to two days' imprisonment:

(1) From the point of view of fairness to the offender, where there had been an inordinate delay in prosecution, the sentence should in appropriate cases reflect the fact that the matter had been held in abeyance for some time, possibly inflicting undue agony, suspense and uncertainty on the offender. From the rehabilitative and reformative perspectives of the administration of criminal justice, it was appropriate that an accused be prosecuted for all known offences at the same time as far as practicable. The lapse of time between the commission of an offence and the imposition of an unjustifiably-delayed subsequent sentence took on particular significance when the rehabilitative goal of punishment appeared to have been met. Due weight must be given to the positive progress of the offender's rehabilitation and the real prospect that he might be fully rehabilitated; in appropriate cases this vital factor might warrant a sentence that might otherwise be viewed as “a quite undue degree of leniency”: at [23], [26] to [29].

(2) In cases of inordinately-delayed prosecution, the first and foremost inquiry should always be whether the accused was in any way responsible for the delay. Where the delay was attributable to the offender's own misconduct, the offender could not complain of the delay, much less seek to opportunistically extract some mitigating credit from it: at [32] to [34].

(3) The rehabilitative progress of the offender must also be considered in the light of the nature and the gravity of the offence, as well as the wider public interest in each individual case. Considerations of fairness to an accused might in certain circumstances be substantially irrelevant or even outweighed by the public interest, if the offence in question was particularly heinous or where the offender was recalcitrant. The length of delay involved must also always be assessed in the context of the nature of the investigations depending on the factual complexity of the case: at [35] and [36].

(4) The six to ten years that had elapsed between the detection of the offences constituting the 2007 charges and the actual prosecution of those charges must be ascribed solely to an incomprehensible and apparently entirely inexcusable failure on the part of the police to pursue their investigations diligently. The district judge erred in refusing to take into consideration the prejudicial effect of the delay in prosecution by reason of the appellant's failure to inform the investigating officers of the facts which gave rise to the 2007 charges. First, there was no basis in law to suggest that an accused person was obliged to voluntarily apprise an investigating officer of offences which were not directly relevant to the offences being investigated. Second, and more fundamentally, the appellant had already admitted to his involvement and complicity in respect of every offence for which he was under investigation. Thus, the onus fell squarely on the respective investigating officers to ensure the timely and proper prosecution of all the admitted offences. The delay in the prosecution of the appellant in the instant case should therefore not be attributed to him: at [43] to [48].

(5) No satisfactory explanation was given by the Prosecution as to why a period of four years had lapsed after the appellant's release from prison in March 2003 before the 2007 charges were eventually brought. This piecemeal prosecution unnecessarily prolonged the mental anguish, anxiety and distress suffered by the appellant. While the investigations relating to the credit card complaint lodged by the appellant's ex-wife could not have proceeded until 2003, this alone did not justify the fact that it took four years for the relatively straightforward investigations leading to the 2007 charges to finally come to fruition. The broad factual matrix had to be considered as a whole: at [49] and [55].

(6) The appellant had made substantial rehabilitative progress in his personal and professional life, as letters from his sons and employer attested. He had achieved the rehabilitative goal of reintegrating into society, and all reasonable efforts should be made to minimise the potentially adverse effects that a period of future incarceration might have on the appellant's familial relationships. The appellant was unlikely to commit similar offences or to pose a future threat to the public interest. He had already spent more than six years racked by the agonising uncertainty occasioned needlessly by rather slipshod investigations. A further term of imprisonment was therefore quite clearly not warranted and the sentence should be reduced to a total of two days' imprisonment: at [58] to [63], [65], [66], [68]and [69].

Duncan v R (1983) 47 ALR 746 (refd)

Lai Oei Mui Jenny v PP [1993] 2 SLR (R) 406; [1993] 3 SLR 305 (refd)

PP v Saroop Singh [1999] 1 SLR (R) 241; [1999] 1 SLR 793 (refd)

Queen, The v Kearne Paul King [2007] VSCA 38 (refd)

Queen, The v Lyndon Cockerell [2001] VSCA 239 (refd)

R v Merrett, Piggott and Ferrari (2007) 14 VR 392 (refd)

R v Miceli [1998] 4 VR 588 (refd)

R v Schwabegger [1998] 4 VR 649 (refd)

R v Todd [1982] 2 NSWLR 517 (refd)

R v Whyte (2004) 7 VR 397 (refd)

Tan Kiang Kwang v PP [1995] 3 SLR (R) 746; [1996] 1 SLR 280 (refd)

Yau Kong Kui v Public Prosecutor [1989] 2 MLJ 139 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 18

Penal Code (Cap 224,1985 Rev Ed)ss 420, 468

Abraham Vergis and Darrell Low (Drew & Napier LLC) for the appellant

Han Ming Kuang (Attorney-General's Chambers) for the respondent.

V K Rajah JA

Introduction

1 What is the mitigating effect, if any, of an inordinate delay between the commencement of investigations and the eventual prosecution and sentencing of an accused?

2 The factual matrix of the present appeal brought the various processes of the criminal justice system into sharp focus. In these grounds of decision, I will examine and clarify the inextricably interwoven nature of the different phases of detection, investigation, prosecution, conviction and sentencing, respectively, as well as the extent to which delays or lapses in each phase can potentially have an adverse impact on the fairness of the overall criminal process in relation to the offender.

3 The crux of the present appeal was that the judge in the court below (“the District Judge”) erred in failing to grant a discount in sentencing, notwithstanding the prejudice suffered by the appellant as a result of a very substantial delay in prosecution.

Summary of the facts

4 On 27 July 2007, the appellant pleaded guilty to a total of eight charges consisting of seven charges of cheating and one charge of forgery for the purpose of cheating under ss 420 and 468 respectively of the Penal Code (Cap 224, 1985 Rev Ed) (collectively referred to as “the 2007 charges”). Nineteen other charges were taken into consideration for the purposes of sentencing. On 31 July 2007, the appellant was sentenced as follows:

(a) Nineteen months' imprisonment for District Arrest Case No 16900 of 2007 (“DAC 16900”), 19 months' imprisonment for District Arrest Case No 16901 of 2007 (“DAC 16901”), 18 months' imprisonment for District Arrest Case No...