DETENTION DURING THE PRESIDENT’S PLEASURE: A FOREGONE SENTENCE FOR A YOUNG PERSON CONVICTED OF MURDER?

Citation(2004) 16 SAcLJ 192
Date01 December 2004
Published date01 December 2004

Set against the case of PP v Anthony Ler Wee Teang, this article relies on provisions of the Children and Young Persons Act (Cap 38, 2001 Rev Ed), viz, the guiding principle of “welfare” in s 28(1) and the sentencing discretion that s 38(1) affords, to defend the view that detention during the President’s pleasure is not and should not be a foregone sentence for young persons convicted of murder. However, relying on the Children and Young Persons Act thus is only a temporary stopgap measure in lieu of legislative reform. Ultimately, the sentencing provisions governing young persons convicted of murder should be clarified so that it is put beyond doubt that discretion as to whether or not to impose the sentence of detention during the President’s pleasure exists for courts sentencing such young persons.

Introduction

1 The Singapore High Court decision of PP v Anthony Ler Wee Teang1 is the latest contribution to the jurisprudence pertaining to the sentencing of young persons2 convicted of murder. Regrettably, it

affirms the practice of sentencing young persons convicted of murder to be detained during the President’s pleasure.3 Notwithstanding this, I argue in this article that detention during the President’s pleasure is not and should not be a foregone sentence for a young person convicted of murder.

2 Section 213 of the Criminal Procedure Code (“CPC”)4 is the oft-cited provision where the sentencing of young persons convicted of murder is concerned. It says that a person, who is under 18 years old, “shall” be sentenced to be detained during the President’s pleasure in lieu of the death sentence. To say that detention during the President’s pleasure is a foregone sentence implies that the court has no sentencing discretion and has to impose that sentence on young persons convicted of murder. This is wholly consistent with the mandatory wording of s 213 of the CPC. However, there is also s 38(1) of the Children and Young Persons Act (“CYPA”).5 It says that the court “may”, not must, sentence a young person convicted of murder to be detained either for a fixed or indefinite period as a last resort. Detention during the President’s pleasure as a foregone sentence is inconsistent with the discretionary wording of s 38(1) of the CYPA. As between the two provisions, s 38(1) of the CYPA can, by means of statutory interpretation, prevail over s 213 of the CPC.

3 I not only argue that the two provisions can be interpreted such that s 38(1) of the CYPA prevails, but also that this should be done. This is because s 28(1) of the CYPA requires any court that deals with a young person to have regard to his or her “welfare”. Sentencing is arguably one way of “dealing” with a young person. Welfare in

sentencing entails the court meting out individualised sanctions, which are tailored to the perceived needs of the young person appearing before the court, with the aim of improving his or her future overall well-being. Section 213 of the CPC dictates that it is mandatory to impose detention during the President’s pleasure on a young person convicted of murder. This implies that the sentence is to be imposed regardless of whether or not it will meet his or her individual needs. This does not accord with having regard to the welfare of the young person, which s 28(1) of the CYPA demands of a court sentencing that young person.

4 Granted that s 38(1) of the CYPA can and should prevail, what is an appropriate case for the court to invoke it? Surely, there can be no hard and fast rule in determining appropriateness; it all depends on the facts and circumstances of each individual case. I am of the view that Anthony Ler was arguably an appropriate case for the court to have invoked s 38(1) of the CYPA so as either to exercise the discretion afforded therein not to impose a detention sentence on 15-year-old Z or, if indefinite detention was thought to be the most suitable way to dispose of the case, to detain the boy as such then under s 38(1) of the CYPA rather than imposing the very severe sentence of detention during the President’s pleasure under s 213 of the CPC. If the court did not wish to pass sentence on Z, it was also open to the court to exercise its power to remit the case to the Juvenile Court of Singapore for the Juvenile Court to invoke s 38(1) of the CYPA to dispose of the case. The High Court’s numerous favourable concessions about 15-year-old Z could have justified invoking s 38(1) of the CYPA. It was unfortunate that the High Court chose to pass sentence on Z according to s 213 of the CPC, which compelled it to sentence the boy to be detained during the President’s pleasure.

5 This article is structured thus: Part II sets the background for the article, where I identify and briefly discuss the dominant principles of sentencing in Singapore, before examining the court’s particular obligation to have regard to the “welfare” of a young person when sentencing him or her. Part III then examines three possible responses to the clash in mandatory and discretionary wordings of s 213 of the CPC and s 38(1) of the CYPA respectively. In particular, I explain how s 38(1) of the CYPA can prevail by means of statutory interpretation, and also why it should prevail in the light of the court’s obligation to have regard to the welfare of the young person whom it sentences. Part IV proceeds to analyse the Anthony Ler case. I show why Anthony Ler is an appropriate case for the court to have invoked s 38(1) of the CYPA, by distinguishing it from other previous cases where the court had imposed that sentence. I appreciate that relying upon the technicalities of statutory interpretation to argue that s 38(1) of the CYPA prevails over s 213 of the CPC is only a stopgap measure. Hence, in Part V, I recommend legislative reform of certain provisions so that it will become patently clear that there is discretion whether or not to sentence a young person convicted of murder to be detained.

Sentencing in Singapore

6 This part sets the background for my article, where I briefly introduce the principles and practice of sentencing in Singapore. I begin by looking at the classic principles of sentencing that form the theoretical framework of sentencing law in Singapore, and identifying which of these principles are dominant in practice. I then focus on the sentencing of young persons, and discuss the court’s duty to have regard to their “welfare” when sentencing them. I explain how the notion of “welfare” impinges on the sentencing process by discussing how the court is envisaged to discharge its sentencing duty under the “welfare model” of juvenile justice.

General principles and practice of sentencing in Singapore

7 The High Court, the District Courts, and the Magistrates’ Courts are responsible for administering criminal justice within Singapore,6 and are required to pass sentence according to law.7 Passing sentence according to law essentially means, inter alia, to pass a sentence in accordance with “established judicial principles”.8 The classic principles of sentencing espoused in the English Court of Appeal case of R v Sargeant have become such “established judicial principles” that inform local sentencing law.9 In that English case, Lawton LJ expressed:

What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply those facts the classic principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any

judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.10

8 However, it transpires that in practice, retribution and deterrence have been and are the dominant sentencing principles. In 1961, Professor Tommy Koh wrote:

[T]he dominant penal philosophy of Singapore’s judiciary is a retributionist one … our judges generally give greater emphasis to retaliatory and quantitative retribution and deterrence than to other objectives such as the needs of the individual offender and how best to reform him.11

In contemporary times, the practitioners’ guide, Sentencing Practice in the Subordinate Courts, expressed that “it is plain that the principal sentencing philosophy of the courts is to give paramount consideration to the public interest”.12 As to how the public interest can be served, the Singapore High Court in PP v Tan Fook Sum cited13 the following passage from the English High Court case of R v Ball:

In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It might deter others who may be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is

indeed served, and best served, if the offender is induced to turn from criminal ways to honest living.14

In R v Ball, serving the public interest was framed in terms of general deterrence (deterring like-minded offenders other than the particular offender at hand) and specific deterrence (deterring the particular offender at hand).15 This explains why “the sentencing principle which is most often used in advancing the public interest is the deterrence principle”.16 In Tan Fook Sum, the court also expressed that advancing the public interest can also sometimes mean quelling the sense of outrage felt by the community...

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