Koh Rong Gui v PP

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 18 November 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9161 of 2019/01

Koh Rong Gui

and

Public Prosecutor

[2021] SGHC 259

Aedit Abdullah J

Magistrate's Appeal No 9161 of 2019/01

General Division of the High Court

Constitutional Law — Equal protection of the law — Whether conclusive determination of factual matters by appointed psychiatrist under s 339(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed) violated right to equal protection of the law in comparison with other laws providing for psychiatric conditions as defence or mitigating factor — Section 339(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed) — Article 12(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law — Judicial power — Whether conclusive determination of factual matters by appointed psychiatrist under s 339(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed) constituted impermissible legislative or executive intrusion into judicial power — Section 339(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed) — Article 93 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Criminal Procedure and Sentencing — Sentencing — Mandatory treatment order — Whether Newton hearing should be convened in respect of non-compliant mandatory treatment order suitability report — Sections 339(1), 339(2), 339(3), 339(4), 339(5), 339(7), 339(8) and 339(9) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Held, allowing the appeal in part:

(1) The judicial function entailed the courts making a finding on the facts as they stood, applying the relevant law to those facts and determining the rights and obligations of the parties. However, it was not a breach of Art 93 of the Constitution to statutorily designate a fact-finder other than the courts. The criteria under s 339(3) of the CPC were questions of fact which the appointed psychiatrist was best placed to determine, as clarified by the relevant Parliamentary debates. The cases referred to by the appellant on the ultimate issue rule and Exception 7 to s 300 of the Penal Code did not assist him in making out a breach of Art 93: at [22] to [24] and [33].

(2) The stipulation in s 339(9) of the CPC that an MTO suitability report would be “final and conclusive” as to the matters in s 339(3) also did not breach Art 93 of the Constitution. The courts have recognised and given effect to conclusive evidence clauses in respect of decisions by an administrative body involving a degree of fact-finding and judgment. It was also significant that s 339(9) did not on its face go as far as to preclude judicial review in general. Rather, it remained open to the court to question apparent issues of accuracy with the conclusions in a report: at [34], [35], [39] and [40].

(3) It was not a breach of Art 93 of the Constitution that as a result of the MTO Provisions, the availability of an MTO as a sentencing option was decided by the appointed psychiatrist and not the court. Singapore cases on judicial power in the context of sentencing discretion had held that the prescription of punishment for offences was an aspect of legislative, and not judicial power. It was open to the Legislature to determine whether the discretion on the extent of punishment to be imposed in relation to a statutory offence should be given to the court. It did not infringe Art 93 that the decision of the appointed psychiatrist as to whether an accused person had met the criteria under s 339(3) of the CPC was a factor which could lead to a particular sentencing outcome. The MTO was but one sentencing option and the court remained free to impose other sentences. The inquiry by the appointed psychiatrist was a limited one into the matters in s 339(3), but the court determined the guilt of the offender and imposed an MTO if it was satisfied that it was expedient to do so: at [41], [42], [47] to [49] and [52].

(4) There was no basis for comparison so as to engage Art 12(1) of the Constitution. Although the appellant pointed to the differences between a situation where an MTO could be available as a sentencing option and other situations where psychiatric conditions were available as defences or mitigating factors, there was no measuring of like with like: at [63].

(5) In any event, even if the two situations were comparable, the MTO Provisions did not contravene the reasonable classification test. Under the first limb of the test, it was clear which offenders fell outside or within the qualifying conditions for community-based sentencing, of which the MTO was a specific type or sub-category. There was also no issue of illogicality or incoherence as the requirements limited community-based sentences to offences which were less serious or harmful. Under the second limb of the test, the differentia had a rational relation to the objectives of the MTO regime, namely, to target persons with specific and minor mental conditions where rehabilitation was the dominant sentencing principle. It was not arbitrary that there should be no questioning of the decision of the appointed psychiatrist as to the matters in s 339(3) of the CPC, as the IMH generally administered treatment under an MTO and ought not be compelled to treat those whom it believed did not have a treatable mental condition: at [65] to [67].

(6) Although the appellant argued that the MTO Provisions should be struck down for unconstitutionality, he appeared to take the position that an MTO should still be available in the present case. This appeared to be an argument for the doctrine of severance, which was not available in respect of the MTO Provisions, as they were introduced in 2010 via amendments to the CPC. Any excision based on the appellant's constitutional challenge would not be sustainable based on the relevant legislative intent in any case: at [69] to [71] and [74].

(7) Section 339(8) of the CPC had not been facially complied with. However, it did not follow that the MTO Suitability Report should be rejected out of hand. This could be a disproportionate response in instances of a clerical error or omission. Rather, an explanation from the appointed psychiatrist should be obtained. The court would then consider whether a correction should be permitted and whether the custodial sentence imposed by the District Judge ought to be upheld: at [75], [79], [80] and [82].

Case(s) referred to

Abdul Kahar bin Othman v PP [2018] 2 SLR 1394 (folld)

Anita Damu v PP [2020] 3 SLR 825 (distd)

Eu Lim Hoklai v PP [2011] 3 SLR 167 (distd)

Francis v State [2015] 2 LRC 244 (refd)

GCX v PP [2019] 3 SLR 1325 (folld)

Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 (refd)

Iskandar bin Rahmat v PP [2017] 1 SLR 505 (distd)

Lei Lin Thai v PP [2016] 9 MLJ 631 (refd)

Lim Meng Suang v AG [2015] 1 SLR 26 (folld)

Low Gek Hong v PP [2016] SGHC 69 (folld)

Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947 (folld)

Mohammed Muktar Ali v R [1992] 2 AC 93 (refd)

Moses Hinds v R [1977] AC 195 (refd)

Muhammad Ridzuan bin Mohd Ali v AG [2015] 5 SLR 1222 (refd)

Nagaenthran a/l K Dharmalingam v PP [2019] 2 SLR 216 (refd)

Ng Hai Chong Brandon v PP [2019] SGHC 107 (refd)

Nguyen Tuong Van v PP [2005] 1 SLR(R) 103; [2005] 1 SLR 103 (refd)

Nicholas v R (1998) 193 CLR 173 (refd)

Ong Ah Chuan v PP [1981] AC 648 (refd)

Palling v Corfield (1970) 123 CLR 52 (refd)

Prabagaran a/l Srivijayan v PP [2017] 1 SLR 173 (folld)

PP v Abdul Fathani bin Khairuddin [2021] SGDC 143 (refd)

PP v Nguyen Tuong Van [2004] 2 SLR(R) 328; [2004] 2 SLR 328 (refd)

PP v Tan Lian Koon [2015] SGDC 39 (refd)

PP v Taw Cheng Kong [1998] 2 SLR(R) 489; [1998] 2 SLR 410 (refd)

R v Ironside [2009] SASC 151 (refd)

R v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 (refd)

Reginald Deaton v The AG and the Revenue Commissioners [1963] IR 170 (refd)

Saravanan Chandaram v PP [2020] 2 SLR 95 (refd)

Stansfield Business International Pte Ltd v Minister for Manpower [1999] 2 SLR(R) 866; [1999] 3 SLR 742 (refd)

State of South Australia v Totani (2010) 271 ALR 662 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Tan Seng Kee v AG CA/CA 54/2020, CA/CA 55/2020, CA/CA 71/2020 (refd)

Teng Fuh Holdings Pte Ltd v Collector of Land Revenue [2006] 3 SLR(R) 507; [2006] 3 SLR 507, HC (folld)

Teng Fuh Holdings Pte Ltd v Collector of Land Revenue [2007] 2 SLR(R) 568; [2007] 2 SLR 568, CA (folld)

Wham Kwok Han Jolovan v PP [2021] 1 SLR 476 (refd)

Yong Vui Kong v PP [2010] 3 SLR 489 (refd)

Facts

The appellant was convicted of four charges of intruding upon the privacy of three women in 2019, punishable under s 509 of the Penal Code (Cap 224, 2008 Rev Ed). He was sentenced by the district judge (“District Judge”) to six weeks' imprisonment in relation to each charge, with the sentences for the first and second charges to run concurrently. On appeal, the court allowed an application by the appellant to adduce fresh evidence consisting of two psychiatric reports (“the Appellant's Reports”) in support of his submission that he should have been sentenced instead to a mandatory treatment order (“MTO”) under s 339 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The court was then persuaded to call for an MTO suitability report. However, the report by the appointed psychiatrist at the Institute of Mental Health (“the MTO Suitability Report” and “the IMH” respectively) found that the appellant was not suitable for an MTO. In particular, the requirement under s 339(3)(c) of the CPC was not met.

The appellant argued that ss 339(3), 339(4) and 339(9) of the CPC (collectively, “the MTO Provisions”) were unconstitutional, being in breach of Arts 12(1) and 93 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). He argued that the effect of the MTO Provisions was that the court's discretion to consider whether to impose an MTO only arose when the appointed psychiatrist was of the view that the criteria in s 339(3) of the CPC was satisfied, and the findings of the psychiatrist in this regard were...