Citation(2015) 27 SAcLJ 462
Published date01 December 2015
Date01 December 2015

Legal and Theoretical Foundations

The composition of offences has been an integral part of the Singapore criminal justice system from its inception. This article sets out the legal and theoretical foundations for composition, as well as its historical genesis within our Criminal Procedure Code — from its roots in English law to its statutory entrenchment in India and the Straits Settlements. The recent amendments to the Criminal Procedure Code and its effect on composition in our penal system will also be examined.

I. Historical genesis of composition

A. English common law 1

1 At first blush, composition appears to be an aberration in criminal law. As K S Rajah observes in his article “Composition and Due Process”:2

A crime is regarded as a wrong done to society. The offender and the victim are not normally allowed to come to an agreement to absolve the offender from criminal responsibility.

2 Indeed, the compounding of a felony — a prosecutor or a victim accepting consideration in return for not prosecuting a felony — was an offence under English common law.3 The compounding of theft

constituted the more serious offence of theftbote,4 which was criminalised by Edward III as early as the 12th century.5 Theftbote was regarded as a heinous offence; in fact, a judicial decision appears to have been needed to settle that the punishment for it was not capital.6 While theftbote has long since been abolished, it remains an offence (in both English law and Singapore law) for a person to accept consideration or restitution to screen an offender from punishment.7

3 An example of the arguments against allowing the composition of offences appears in the 1825 case of Elworthy v Bird8 (“Elworthy”). The case concerned the compounding of several indictments against one William Bird for violent assaults against his wife, Mary Bird, in return for, inter alia, a deed of separation and the payment of £50 a year for the rest of her life. The defendants argued that agreements to compound offences were illegal:9

[This] was an agreement to suppress and compromise indictments for offences against the public peace. All such agreements are illegal; for an indictment is not a matter of private interest, but of public policy; and the object of it is, not to procure compensation for injury done to an individual, but to protect the community, by the punishment of offences injurious to it. [emphasis added]

4 Despite this, composition as an accepted way of resolving a criminal case has its roots in the common law. In the 1734 case of Johnson v Ogilby,10 it was argued and accepted that a prosecution could be lawfully stifled where the indictment was for fraud and the party wronged agreed to be satisfied, “matters of fraud being cognizable and relievable as well in equity as in law”. The decades following this decision saw the court accept that at least some misdemeanours could be compromised; however, there was also some uncertainty regarding the boundaries within which this was allowable.11

5 The next landmark in the history of composition was the 1844–1846 case of Keir v Leeman12 (“Keir”). In Keir, Lord Denman CJ reviewed the case law up to that point and laid down the rule that the law will permit a compromise of all offences though made the subject of a criminal prosecution, for which offences the injured party might sue and recover damages in an action, this being often the only manner in which he can obtain redress; “but if the offence be of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it”.13 This remained the state of the common law up to the introduction of composition into Indian law.

B. India and the Straits Settlements

6 Composition was first enshrined in statute in the Indian Criminal Procedure Code under s 345 of Act X of 1882. A virtually identical provision was enacted in the very first Straits Settlements Criminal Procedure Code under s 248 of Ordinance VII of 1892 (“s 248”),14 but was only brought into force under s 248 of Ordinance XXI of 1900.

7 It is unclear why composition was introduced into our Criminal Procedure Code15 (“CPC”). The 1892 Ordinance was passed by the Legislative Council of the Straits Settlements without any discussion on the composition clause.16 It is known that large swathes of the 1882 Indian CPC were imported into the Straits Settlements CPC, and it is likely that this was the case for s 248. The authors have also been unable to ascertain as yet the reason why composition was first provided for in the 1882 Indian CPC.

8 The effect of s 248 was to establish that certain offences could be compounded by certain persons. Compoundable offences were divided into two groups — those which composition required the consent of the court, and those which did not.17 This distinction was removed in Singapore by 1955, requiring the consent of the court for the composition

of all compoundable offences. The list of compoundable offences has otherwise remained remarkably similar between the 1892 Ordinance and the 2012 Revised Edition of our CPC. Notably, the offence of enticing a married woman has been removed,18 and outrage of modesty, along with several offences under the Miscellaneous Offences Act, has been added.

9 Interestingly, while composition in both India and Singapore has its roots in the 1882 Indian CPC, the two provisions have since diverged substantially. The Indian Code of Criminal Procedure 1973 (“CrPc”) retains the distinction between offences that can be compounded only with the consent of the court and offences that can be compounded without. In addition, the Indian CrPc has considerably expanded the list of compoundable offences — notably, theft, criminal breach of trust, cheating, dishonestly receiving or assisting in the concealment of stolen property, fraudulent concealment of property, counterfeiting, and marrying again during the lifetime of a spouse are all offences that can be compounded with the consent of the court under the Indian CrPc.19

II. Compoundable offences

10 The Law Commission of India commented that “[which] offences should or should not be made compoundable is always an enigma for … law-makers”.20 Is there any conceptual coherence that can be attributed to the current schema of compoundable offences?

11 As discussed below, the court appears to allow composition for offences which are relatively minor, and which composition would not be against the public interest. These requirements are mirrored in the list of compoundable offences under the CPC — Yong CJ observed in Public Prosecutor v Norzian bin Bintat21 (“Norzian bin Bintat”) that “almost all [offences prescribed as compoundable] are minor and largely private in nature”.22

12 It should be noted that theft and the other dishonesty-related offences are omitted from the list of compoundable offences and it is uncertain whether the omission is a matter of legislative policy.23 It could be argued that it would be against public policy to condone dishonesty.

13 It is also worth noting that all the compoundable offences under the CPC require that there be a victim who can compound the matter. This results in offences under ss 337 and 338 of the Penal Code24 (rash/negligent act causing hurt and rash/negligent act causing grievous hurt) being compoundable, while offences under s 336 (rash/negligent act endangering life) of the Penal Code are not.

III. Composition in Singapore prior to the 2010 legislative reforms

14 Save for the changes stated above, s 248 of the Straits Settlements CPC survived largely intact in s 199 of the 1985 Revised Edition of the Criminal Procedure Code (“old CPC”).

15 The compoundable offences in the Penal Code were listed in the sixth column of Sched A to the old CPC and could be compounded by the person prescribed in that column.25 Notwithstanding any prior settlement between the accused and the prescribed person, the offence could only be compounded with the consent of the court once the accused was charged for the offence.26 Composition has the effect of an acquittal.27

A. Starting point is to lean towards the granting of consent

16 As composition under the old CPC was governed by the consent of the court, there was a substantial body of case law concerning the court's discretion to allow composition. The court begins with the assumption that the Legislature intended for compoundable offences to be compounded:28

[Magistrates] should not withhold their consent to the compounding of an offence … unless there is reason to suppose that the case in question is one of an aggravated nature. According to an Enactment of the legislature the compounding of such offences is not contrary to public policy, and it is the duty of all judicial officers to give effect to the Enactments of the legislature so far as in them lies.

17 As far as possible, the court gives effect to statute in allowing the composition of compoundable offences. However, the consent of the court is not a mere formality,29 and the court's discretion has to be exercised not only in accordance with the rules of reason and justice but also in accordance with the provisions of law.30

B. Public interest and the seriousness of the offence

18 In deciding whether to allow composition, the general principle was that in the absence of aggravating factors, courts should lean towards the granting of consent in cases where the public interest does not feature strongly.31 This principle manifested in two limbs:

19 First, an offence that was public in nature, or has an element of public interest, would not usually be compounded. For example, in Ho Yean Theng Jill v Public Prosecutor32 (“Jill Ho”), the court held that the public interest elements in maid abuse cases were sufficient to warrant a departure from the general principle that the courts should lean in favour of granting consent for the composition of minor offences.


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