Chua Chuan Heng Allan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 May 2003
• Neutral Citation: [2003] SGHC 105
• Docket Number: Criminal Revision No 6 of 2003
• Date: 05 May 2003
• Year: 2003
• Published date: 01 October 2003
• Plaintiff Counsel: Petitioner in person
• Citation: [2003] SGHC 105
• Defendant Counsel: David Chew Siong Tai (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Applicable principles,Sentencing,Whether offender entitled to backdating of sentence,Backdating,Court not informed offender had been remanded,Sentence not backdated,Revision of proceedings,Date of commencement,Criminal Procedure and Sentencing

Background

1 The petitioner (“Chua”) and his wife were arrested by Central Narcotics Bureau (“CNB”) officers on 13 January 1999. Both were subsequently charged with various offences under the Misuse of Drugs Act (Cap 185) (“MDA”). On 27 May 1999, Chua’s wife pleaded guilty to four charges under the MDA.

2 On 29 June 1999, Chua pleaded guilty to two charges of trafficking under the MDA. The first charge was for trafficking in 14.89 grams of diamorphine, a class ‘A’ drug under the MDA and the second charge was for trafficking in 4.39 grams of diamorphine. Chua also pleaded guilty to one charge of possession of five tablets of nimetazepam, a class ‘C’ drug under the MDA.

3 Chua was sentenced to 20 years imprisonment and 15 strokes of the cane on the first trafficking charge, and to five years imprisonment and five strokes of the cane on the second trafficking charge. He was sentenced to six months imprisonment on the possession charge. The sentences on the trafficking charges were to run concurrently. In total, Chua was sentenced to an aggregate of 20 years and six months’ imprisonment, and 20 strokes of the cane.

4 Chua was first charged in court on 15 January 1999 and was ordered to be kept in the custody of the CNB. When his case was further mentioned on 28 January 1999, he was ordered to be remanded at Queenstown Remand Prison. He remained at the prison until he pleaded guilty on 29 June 1999.

5 When Chua pleaded guilty before district judge Brenda Tan, the court was not informed that he had spent time at the CNB premises and in Queenstown Remand Prison. Chua was represented by counsel during the sentencing. A written mitigation was tendered before the district judge before the sentence was passed. The district judge ordered Chua’s sentence to take effect from the date of sentencing, ie. 29 June 1999.

6 Chua did not file a notice of appeal against his sentence. Instead, he invited this court to exercise its revisionary powers, and asked that his custodial sentence be backdated to 15 January 1999, the date on which he was first ordered to remain in the CNB’s custody. I rejected his petition, and now give my reasons.

Practice on backdating

7 Before turning to Chua’s petition, I will set out the general principles which apply when the court decides to backdate a custodial sentence.

The court’s power to backdate a custodial sentence is always discretionary

8 The general rule of sentencing is that every custodial sentence takes effect from the date on which it is passed. This is expressly provided for in s 223 of the Criminal Procedure Code (Cap 68) (“CPC”), which states:

… every sentence of imprisonment to which section 221 or 222 apply shall take effect from the date on which it was passed, unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs.

Thus, the court’s power to backdate a custodial sentence is purely discretionary: Sinniah Pillay v PP [1992] 1 SLR 225. The backdating of a custodial sentence is an exception to the general rule of sentencing and is never available as of right.

The court is not obliged to exercise its discretion to backdate

9 It is settled law that the court is not obliged to backdate a sentence of imprisonment in any case. In Mani Nedumaran v PP [1998] 1 SLR 411, the court stated:

[I]t is only fair that a court take into consideration any period spent in remand by an accused when contemplating the exercise of its discretion to backdate … The above does not mean that a custodial sentence must invariably be backdated to the date when an accused was taken into remand. [Emphasis added]

Thus, where the court knows that an offender has previously spent time in remand, it should take such a period into account, when it is deciding whether to backdate a custodial sentence. However, this does not oblige the court to backdate a custodial sentence in every case where an offender has already spent time in remand.

10 The fact that an offender has spent time in remand does not necessarily increase the likelihood that his sentence will be backdated. This is evidenced by the case of PP v Wong Siu Fai [2002] 3 SLR 276, where the offender pleaded guilty to having committed carnal intercourse against the order of nature on a five year old boy. In that case, the court refused to backdate the offender’s custodial sentence because it was of the opinion that “the five months imprisonment already served should be part of the punishment given the circumstances of [the] case.”

11 The sentencing judge is not obliged to launch into an inquiry to find out whether an offender has previously spent any time in remand. The law does not require the court to actively ferret out such information. It is the offender who seeks to rely on the fact that time was previously spent in remand – the onus of bringing such a fact to the court’s attention must rest on him. It is pertinent that s 103(1) of the Evidence Act (Cap 97) states:

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

Factors which the court takes into account when deciding whether to backdate a custodial sentence

12 The court will take a variety of factors into account when deciding whether to exercise its discretion to backdate. In the cases of Mani Nedumaran v PP and Sinnih Pillay v PP, the court provided a list of relevant factors to be considered in this context. This list included the seriousness of the offence committed, the corresponding demands of public policy and the quantum of the maximum punishment prescribed for the offence.

13 However, the above list is not meant to be exhaustive. After all, the power to backdate is properly left to the discretion of the sentencing judge, based on the circumstances of every case.

A refusal to backdate a custodial sentence does not amount to an enhanced sentence

14 When the court backdates a custodial term, it effectively gives the offender a discount on his sentence: Mani Nedumaran v PP. However, case law has implied that, if the court refuses to backdate a custodial term, it effectively imposes an enhanced sentence on the offender. For example, the court stated in Mani Nedumaran v PP:

Conversely, the court may, by refusing to...