COMPENSATION ORDERS IN CRIMINAL CASES

• Citation: (1992) 4 SAcLJ 359
• Published date: 01 December 1992
• Date: 01 December 1992

The rationale for compensation orders

Section 401 of the Criminal Procedure Code allows the court to order a convicted person to pay compensation to “any person injured in respect of his person, character or property by the crime or offence for which the sentence is passed”. This section has existed in our Criminal Procedure Code from at least 1936, if not earlier1. It is based on an Indian model2.

The section gives a court a wide power to order compensation to be paid to the victim of a crime. In England, a similar power to award compensation exists under s35(1) of the Powers of the Criminal Courts Act 1973. The aim of the English provision was explained by Scarman LJ in R v. Inwood3:

“Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties for crime. Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation where the criminal clearly has means which would enable the compensation to be paid. One has to bear in mind that there is always the possibility of a victim taking civil proceedings, if he be so advised. Compensation orders should certainly not be used when there is a real doubt as to whether the convicted man can find the compensation.”

The same can be said of our section 401.

Cases in which compensation orders have been made

The section applies whenever anyone has suffered injury in respect of his “person, character or property”. The section therefore clearly gives the sentencing judge the widest discretion in all types of cases. In Singapore and Malaysia compensation orders have been made in the following reported cases:

Tai Khun v. PP of Pahang 4 — voluntarily causing hurt under s323 Penal Code.

R v. Pallak Nath Singh 5 — forgery under s465 Penal Code.

Abdullah b Tambon v. PP 6 — cheating.

PP v. Li Chuan Pin 7 — fraudulently obtaining credit.

Muniandey v. PP 8 — voluntarily causing hurt.

In the UK, compensation orders have been made in the following cases (though on the basis of a differently-worded section):

R v. Daly 9 — damage to property.

R v. Grundy, R v. Moorhouse 10 — burglary.

R v. Thomson Holidays Ltd 11 — misleading trade descriptions.

R v. Schofield 12 — theft and cheating.

Bond v. Chief Constable of Kent 13 — criminal damage to property.

Given the wide wording of the section, it appears that compensation orders may be made in practically every type of case, so long as the victim is identifiable and has suffered injury.

Principles underlying the award of compensation

(1) A compensation order is not an alternative to a sentence: R v. Miller14.

(2) The machinery of the compensation order is a quick and simple way for dealing with the claim in simple cases: per Lord Widgery CJ in R v. Daly15. They are a convenient and rapid means of avoiding the expense of resort to civil litigation where the criminal clearly has means which would enable the compensation to be paid: per Scarman LJ in R v. Inwood16.

(3) A compensation order should not be used as a further punishment for a convicted person, and the amount of compensation should not exceed the amount of damage caused: King-Emperor v. Maung Thin17. Thus, where the victim has recovered his goods undamaged, a compensation order should not be made: R v. Boardman18.

(4) Compensation will be ordered only in clear cases, where the damage is either proved or agreed: R v. Vivian19. The assessment of damage has to be based on evidence, and not merely on representations by the prosecution: R v. Horsham Justices, ex parte Richards20. Thus, in R v. Vivian the court quashed a compensation order when there was no agreement as the amount of damage caused to a car that the defendant had unlawfully taken.

(5) However, this does not preclude the court from granting compensation to the victim in respect of anxiety and distress arising out of the offence: Bond v. Chief Constable of Kent21; or to compensate for a criminal misrepresentation: R v. Thomson Holidays Ltd22.

(6) Where an offence involves financial loss to...