COMPOSITION LESSONS

• Citation: (1999) 11 SAcLJ 487
• Date: 01 December 1999
• Published date: 01 December 1999
• Author: JUSTIN CHAN HSIANG-YU

Kee Leong Bee & Anor v Public Prosecutor

Public Prosecutor v Mohamed Nasir Bin Mohamed Sali

Allow me to offer a rudimentary illustration of criminal sentencing mechanics. Imagine a triangle. Say then each point or apex of the triangle represents one of three competing factors in sentencing theory — the public interest, the culpability of the accused, and the damage suffered by the victim. The surface area of the triangle represents the severity of the sentence: the greater the public interest, culpability or damage, the further out each apex will be drawn from the centre, and the more serious the repercussions will be.

You imagine the triangle is equilateral — each apex applies the same force on the epicentre. However, superimpose on the triangle the label of a criminal offence and the competing interests will take on different emphasis, reshaping the triangle to reflect the appropriate sentence for the offence. For example, where there are many mitigating factors and the damage suffered by the victim is relatively slight, two of the three points shrink towards the centre, resulting in a smaller surface area and consequently a lighter sentence. Where the public interest in an offence is greater, as where there is a spate of highly publicised offences, one apex will be drawn away from the centre, resulting in a larger triangle and a more substantial sentence even if the offence is comparatively minor where culpability and damage are concerned.

The function of the judiciary is to determine the shape of that triangle given a particular set of facts, within the limits prescribed by legislation, the precedent of decided cases, contemporary values and public opinion.

In two recent decisions of the High Court, the learned Chief Justice applied this judicial exercise to the shadowy area of composition fines. The statute law regarding the compounding of offences is set out in s 199(1) of the Criminal Procedure Code. This provision does several things:

1. • It defines what Penal Code offences are compoundable1;

2. • It provides who may compound those offences2; and

3. • It states when judicial consent is required before an offence may be compounded, namely, when an arrest has been affected or an application has been made for the issue of a warrant of arrest or summons.

Hitherto, it was arguable that no judicial consent was required for the private composition of an offence if such composition took place prior to an arrest or an application for a warrant or summons: see Public Prosecutor v Norzian bin Bintat3. In such a situation, the appropriate penalty would be negotiated between the victim and the accused and consideration of the public interest excluded from the process.

In Kee Leong Bee & Anor v Public Prosecutor4, however, the learned Chief Justice explained that this was not the case. Here, a husband and...