Lim Poh Eng v Public Prosecutor

CourtHigh Court (Singapore)
Judgment Date15 February 1999
Docket NumberMagistrate's Appeal No 237 of 1998
Date15 February 1999

[1999] SGHC 45

High Court

Yong Pung How CJ

Magistrate's Appeal No 237 of 1998

Lim Poh Eng
Public Prosecutor

Hee Theng Fong, Joseph Chai and Tan Siow Hung (Hee Theng Fong & Co) for the appellant

Wong Keen Onn and Kan Shuk Weng (Deputy Public Prosecutors) for the respondent.

Adnan bin Khamis v PP [1972] 1 MLJ 274 (refd)

Anthonysamy v PP [1956] MLJ 247 (refd)

Blyth v The Co. of Proprietors of the Birmingham Water Works (1856) 11 Exch 781; (1856) 156 ER 1047 (refd)

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 (refd)

Vishwanath Vishnu Dabholkar v The KingAIR (35)1948 Privy Council 183 (refd)

MV Balakrishnan v PP [1998] 2 SLR (R) 846; [1998] 3 SLR 586 (refd)

Mah Kah Yew v PP [1968-1970] SLR (R) 851; [1969-1971] SLR 441 (refd)

PP v Gan Lim Soon [1993] 2 SLR (R) 67; [1993] 3 SLR 261 (distd)

PP v Joseph Chin Saiko [1972] 2 MLJ 129 (refd)

PP v P G Mills [1971] MLJ 4 (refd)

PP v Lee Meow Sim Jenny [1993] 3 SLR (R) 369; [1993] 3 SLR 885 (folld)

PP v Teo Poh Leng [1991] 2 SLR (R) 541; [1992] 1 SLR 15 (distd)

R v Percy Bateman (1925) 19 Cr App R 8 (refd)

Wong Hong Toy v PP [1985-1986] SLR (R) 656; [1986] SLR 86 (refd)

Woo Sing and Sim Ah Kow v R [1954] MLJ 200 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 256, 268,401 (consd);ss 256 (b), 256 (c), 256 (d), 268 (1),401 (1) (b),403

Penal Code (Cap 224,1985 Rev Ed)s 338 (consd);ss 304A,336, 337,338

Republic of Singapore Independence Act1965s 13

Supreme Court of Judicature Act (Cap 322, 1993 Rev Ed)s 9 (2)

Malaysia Act 1963 (Malaya) s 88 (3)

Criminal Law–Offences–Grievous hurt–Standard of negligence–Whether criminal standard same as civil standard–Whether there is an intermediate standard–Section 338 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Whether sentence manifestly excessive–Section 338 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Revision of proceedings–Variation of compensation order–Whether order can be varied on appeal against conviction and sentence–Whether compensation order part of sentence–Sections 256, 268 and 401 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant, a practitioner of traditional Chinese medicine, was convicted under s 338 of the Penal Code (Cap 224, 1985 Rev Ed) for having caused grievous hurt to one H by negligently failing to attend to her complaints adequately after administering colonic washout treatments and failing to refer her to the hospital for treatment. These omissions gravely endangered H's life and she lost her rectum. She would have to wear a colostomy bag indefinitely.

The appellant was sentenced to ten months' imprisonment and ordered to pay $39,066.02 as compensation to H. He appealed against his conviction and sentence, contending that: (a) criminal cases required a higher degree of negligence than civil cases; (b) the criteria of criminal degree of negligence should be likelihood (rather than possibility) of injury; (c) the Prosecution failed to prove its case beyond reasonable doubt; and (d) the sentence was manifestly excessive.

This sum ordered as compensation was based on the medical fees due from H to Tan Tock Seng Hospital. A sum of $26,911.85 had already been paid by the PSA Corporation Limited (“PSA”) as part payment towards the medical expenses. H's husband and his dependants were entitled to PSA's medical benefits. The Prosecution therefore asked the court to exercise its powers of revision under s 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) to vary the compensation order such that the sum of $26,911.85 be paid to the PSA and the balance of $11,676,97 to H.

Held, dismissing the appeal and the Prosecution's application:

(1) The standard of negligence in criminal and civil cases was the same: at [20] and [28] to [30].

(2) In view of the expert evidence and the evidence as a whole, the Prosecution had proved its case beyond reasonable doubt: at [36].

(3) Sentencing benchmarks set for road traffic cases (where fines were imposed for negligent acts) were not applicable. This was because unlike such cases which were mostly caused by a momentary lapse, the appellant's negligence occurred over a period of time in the context of a doctor-patient relationship. The appellant's offence was serious: he (a) prescribed colonic washouts without training in the procedure and use of the equipment, and without understanding the risks involved; and (b) took extremely poor care of H. The normal sentence for a first offender who pleaded guilty to a charge under s 338 was nine months' imprisonment. The appellant's sentence was not manifestly excessive: at [37] to [39].

(4) The Prosecution's application was disallowed because: (a) PSA was not a person entitled to compensation under s 401 of the CPC; and (b) the High Court did not have the power to vary the compensation order under either its appellate or revisionary jurisdiction. A compensation order was not part of the “sentence” for the purposes of ss 256 (b) and 256 (c) of the CPC: at [44] and [45].

Yong Pung How CJ

1 The appellant was tried in a Magistrate's Court on the following charge:

You, Lim Poh Eng M/57 years NRIC No 0283101E, are charged that you between 14 January 1997 and 19 January 1997 at Health Gallery located at 32A Lorong Marican, Singapore, did cause grievous hurt to one H, to wit, by failing to attend to her complaints adequately after the colonic washout treatments and failing to refer her to the hospital for treatment, which omissions were so negligent as to endanger the life of the said H and you have thereby committed an offence punishable under s 338 of the Penal Code.

The appellant was convicted and sentenced to ten months' imprisonment and ordered to pay compensation of $39,066.02 to H. He appealed against his conviction and sentence. I heard his appeal on 2 February 1999 and dismissed it. I now give my reasons.

The facts

2 The appellant is Lim Poh Eng, a practitioner of traditional Chinese medicine. In 1992, the appellant went to the Hei Long Jiang College of Traditional Chinese Medicine in China for a three-week course in the internal medicine aspect of traditional Chinese medicine. While he was there, the appellant met a professor who was versed in the field of colon-cleansing. This professor explained to him the colon-cleansing procedure (“the procedure”) and showed him the equipment used. At this time, the appellant had no intention of practising colon cleansing and did not purchase any equipment.

3 In 1993, after his return, his son George Lim purchased colon cleansing equipment off the Internet. The appellant tried the procedure on himself. After gaining confidence, he introduced the procedure to his family. From August 1996 onwards, the appellant started to introduce the procedure to his patients at his clinic, Health Gallery, which was in fact situated in his residence at 32A Lorong Marican.

4 On 11 January 1997, one H visited Health Gallery for a consultation. H was seen by George Lim who prescribed a course of treatment of colonic washouts, and told H to return to the clinic on 14 January 1997 to begin her course of treatment.

5 H returned to Health Gallery on the morning of 14 January 1997 with her daughter. They were attended to by the appellant's daughter Sally Lim who instructed them to begin colonic washouts in the bathrooms. Sally Lim gave H a piece of paper and informed H and her daughter to follow the instructions on it. The procedure of colonic washout was not demonstrated to them. Both H and her daughter went to the bathrooms to begin the treatment without any supervision. During the treatment, H used the intercom to inform Sally Lim that she had difficulty inserting the tube into her anal canal. Sally Lim told H to insert the tube slowly and to try it again on her own.

6 H did as she was told and completed the procedure. However, she felt unwell and tired after the procedure and was unable to work that day. She complained to the appellant when she saw him that afternoon but the appellant assured her that it was a normal reaction to colonic washouts. When H returned home she was unable to pass urine.

7 On 15 January 1997, H returned to Health Gallery for her second washout, which she again administered on her own. After the washout, she saw the appellant and informed him that she felt tired and unwell, that she had slight abdominal pain and that she had been unable to pass urine the night before. The appellant again assured her that this...

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