Kee Leong Bee and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 July 1999
• Neutral Citation: [1999] SGHC 178
• Docket Number: Magistrate's Appeal No 65 of 1999
• Date: 01 July 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Edwin Tay and Fun Huay Yew (Edwin Tay & Co)
• Citation: [1999] SGHC 178
• Defendant Counsel: Amarjit Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Effect of judge's refusal to compound matter,Whether such refusal appealable,Compounding of offences,s 199 Criminal Procedure Code (Cap 68),Public interest consideration,Whether judge's refusal constitutes an order of finality,Criminal Procedure and Sentencing,Whether judge's discretion to refuse composition properly exercised

Judgment:

YONG PUNG HOW CJ

This was an appeal against the decision of a district judge where he held that composition under s 199 of the Criminal Procedure Code (Cap 68) (`CPC`) was not appropriate for the offences charged.

2. The facts

The first appellant Kee Leong Bee (`Kee`) was charged with one count of voluntarily causing hurt to her domestic maid (`the victim`), contrary to s 323 read with s 73(1)(a) and s 73(2) of the Penal Code (Cap 224), for using her hands to slap and knock the victim on her head and left hand on 27 October 1998.

3.The second appellant Toh Tian Choon (`Toh`), is Kee`s husband. He was charged with three counts of voluntarily causing hurt to the victim, contrary to s 323 read with s 73(1)(a) and s 73(2) of the Penal Code. The first count involved the squeezing of a bun into the victim`s mouth on 26 August 1998, the second count involved the squeezing of a chicken nugget into the victim`s mouth on 6 September 1998 and the third count involved the poking of his index finger against the victim`s forehead on 26 October 1998.

4.The victim lodged a complaint after the above incidents occurred. On 5 November 1998, she agreed to withdraw the complaint on terms set out in a certificate of settlement (`the settlement`) witnessed by the Consul of the Philippines Embassy Mr Ernesto N Diano. The appellants complied with the terms of the settlement on the same day. The Philippines Embassy (`the Embassy`) subsequently wrote a letter dated 12 November 1998 to the police informing them that the victim and the appellants had reached an agreement to settle the case amicably and that the victim had agreed to drop her complaint. The letter stated that the Embassy had no objection to the settlement and requested the police to allow the case to be closed.

5.On 31 December 1998, formal charges were brought against the appellants. On 12 February 1999, Sukumar & Teo, then the solicitors for the appellants, wrote to the Embassy seeking confirmation that the victim had in fact agreed to settlement. In a written reply dated 15 February 1999, the Embassy informed the solicitors that the victim would only accept the offer to settle if the appellants paid her an additional $3,500.

6.The charges were heard before the district judge on 15 March 1999. Counsel for the appellants requested the court to endorse the terms of compensation set out in the settlement of 5 November 1998 and allow the charges to be compounded under s 199 of the CPC.

7. Decision of the district judge

The district judge held that there was inherent public interest involved in the case and withheld his consent to the composition.

8. The appeal

The appellants appealed against this decision of the district judge. They submitted firstly, that the consent of the court to composition is not required under s 199 of the CPC where the composition is made before any arrest or application for summons or warrant of arrest is made. Secondly, they argued that, even if the consent of the court is required, the court should have granted its consent in this instance.

9. Preliminary objection of the respondents

The Public Prosecutor raised a preliminary objection to the appeal. In a criminal matter, an appeal can only be lodged against a judgment, sentence or order of finality, that is, resulting in conviction, sentence or acquittal. This principle is equally true of appeals from the High Court to the Court of Appeal as well as from the Subordinate Court to the High Court; see Mohamed Razip v PP [1987] SLR 142 [1988] 1 MLJ 84 , Ang Cheng Hai & Ors v PP [1995] 3 SLR 201 and Knight Glenn Jeyasingam v PP (Unreported) . It was submitted by the Public Prosecutor that since the order of the district judge to withhold consent from the composition did not result in an acquittal or conviction, there was no order of finality against which an appeal could be lodged.

10.In Provincial Govt, Central Provinces and Berar v Bipin Singh Choudhury [1945] AIR 104 it was held that an order giving consent to composition of an offence can be appealed against since the discharge on composition has the effect of an acquittal, although that decision was on the basis of s 417 of the Indian Criminal Procedure Code (`Indian CPC`) which states that an appeal lies in a case of an acquittal and s 345(6) of the Indian CPC which states that the composition of an offence shall have the effect of an acquittal. Within the local context, the relevant decision is that of the High Court in PP v Norzian bin Bintat [1995] 3 SLR 462 , where the Public Prosecutor brought an appeal against the decision of the district judge to consent to composition. In both these cases, consent for composition was granted by the court below and those orders were final as the acquittal brought a close to the proceedings. Where consent to composition is withheld however, such as in the present case, there is no acquittal and the trial continues. The question then is whether, in such a situation, the order to withhold consent to composition is an order of finality which can be appealed against.

11.The definition of an `order of finality` was laid down by Wee Chong Jin CJ in Mohamed Razip v PP at [1987] SLR 142, 144, [1988] 1 MLJ 84, 85:

... the jurisdiction of the [appellate court] is to hear appeals against orders of finality, ie those resulting in conviction and sentence, or acquittal.

Mr Edwin Tay, counsel for the appellants, submitted that an order withholding consent from composition is an order of finality in that it could have effected an acquittal, bringing the proceedings to a close. In other words, the test of the finality of an order should be based not just on the operative effect of the order, but on its possible effect. Otherwise, there can be no appeal against an order to withhold consent to composition, when the effect of such an order, if wrong and reversed, is an acquittal. An argument along these lines was raised by counsel for the appellant in Knight Glenn Jeyasingam v PP . The issue there was whether an order refusing a stay of proceedings was an order of finality which could be appealed against. The court rejected the appellant`s submission that the test of finality...