Leong Mun Kwai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 April 1996
• Neutral Citation: [1996] SGHC 58
• Date: 01 April 1996
• Subject Matter: Applicability,Whether relevant,Whether old convictions to be disregarded,Criminal Procedure and Sentencing,Previous convictions,s 4 Rehabilitation of Offenders Act 1974 [UK],English Law,Sentencing principles,Whether part of 'law relating to criminal procedure',Applicability of UK Rehabilitation of Offenders Act 1974,Sentencing,s 5 Criminal Procedure Code (Cap 63),Criminal trespass,Convictions not strictly similar,Whether five weeks' imprisonment manifestly excessive
• Docket Number: Magistrate's Appeal No 40/95/01
• Published date: 19 September 2003
• Defendant Counsel: Chay Yuen Fatt, Seng Kwang Boon, Lee Seng Lit, Wong Choon Ning, Jaswant Singh, Wong Keen Onn and Marilyn See (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Plaintiff Counsel: Tang Liang Hong and Fan Kin Ming (Tang & Co)

The appellant pleaded guilty before the magistrate`s court to a charge of criminal trespass, contrary to s 441 of the Penal Code (Cap 224) and punishable under s 447. The magistrate sentenced him to five weeks` imprisonment.

The appellant appealed against his sentence. He also filed a number of motions and applied for criminal revision (Cr Rev 13/95) to set aside his guilty plea. Suffice it to say that the motions have all either been dismissed or withdrawn. After numerous adjournments (which, together with the motions, would explain the number of deputy public prosecutors involved in this case), I heard the application for criminal revision on 19 March 1996, before hearing this appeal. The application was dismissed. That being so, this case was treated like any other appeal against sentence from a conviction upon a plea of guilt.

After hearing both Mr Tang for the appellant and the deputy public prosecutor, Mr Wong Keen Onn, I dismissed the appeal. As this appeal raised the point of whether the UK Rehabilitation of Offenders Act 1974 (the UK Act) is applicable in Singapore, I felt it necessary to write short grounds to put this issue to rest.

The admitted statement of facts, and the appellant`s mitigation, showed that the appellant was a managing director of the Xin Zhang Jiang group of restaurants. He was unhappy about the Ministry of Labour`s restrictions on the employment of foreign workers and a raid conducted on his restaurant. In August 1993, he began writing articles to comment on the ministry`s policies. He also printed a number of pamphlets for distribution.

On 17 September 1993, the appellant was found distributing pamphlets at the Ministry of Labour Building. At the time, the appellant was wearing a plastic handcuff on his left hand. The complainant, one James Pang, who was the head of the Building Management Unit at the ministry, was annoyed over the appellant`s act. He called the police, who arrested the appellant.

The magistrate considered a number of matters when sentencing the appellant. So far as the factual matters and the inferences she drew therefrom are concerned, nothing more need be said, save that her findings were justified in view of what was admitted in the statement of facts and the appellant`s mitigation plea.

The magistrate took into account the appellant`s three previous convictions in the 1970s when sentencing. These convictions were under ss 500 and 505 of the Penal Code, namely, criminal defamation and making statements conducing to public mischief respectively. Mr Tang`s argument was that these were spent convictions under the UK Act and should be disregarded. In any event, the offences were not similar offences.

On the UK Act, Mr Tang relied on s 5 of the Criminal Procedure Code (Cap 68) (the CPC). This states:

As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force in Singapore the law relating to criminal procedure for the time being in force in England shall be applied so far as the procedure does not conflict or is not inconsistent with this Code and can be made auxiliary thereto.

The argument was that the UK Act was imported into Singapore by s 5 of the CPC. I was unable to accept this argument. First, the exercise of a judge`s discretion when sentencing is not a matter of criminal procedure. Sentencing principles and the application of these principles are matters of substantive law. Textbooks and law reports may, for convenience, put sentencing...