Lim Teck Leng Roland v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 August 2001
• Neutral Citation: [2001] SGHC 234
• Docket Number: Criminal Motion No 28 of 2001
• Date: 24 August 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Patrick Nai (Abraham Low & Partners)
• Citation: [2001] SGHC 234
• Defendant Counsel: Anandan Bala (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Relevant considerations for court,Criminal Procedure and Sentencing,Judgment,Functus officio,Whether possible to lay down guidelines for grant of deferment,Words and Phrases,s 217 Criminal Procedure Code (Cap 68),Whether High Court in appellate capacity has power to alter or review its judgment,Whether order of court granting applicant deferment a 'judgment'- Whether High Court has power to alter such order and grant further deferment,Power of High Court to alter or review its judgment,Burden on applicant to justify court's discretion in granting deferment,'Judgment',Definition of 'judgment'- High Court allowing applicant to defer commencement of sentence,s 217(1) Criminal Procedure Code (Cap 68)

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Introduction

The applicant had earlier pleaded guilty to a total of four charges. They were for driving whilst under disqualification, an offence under s 43(4) of the Road Traffic Act (Cap 276), driving whilst not being covered by insurance, an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189), failure to wear a seat belt whilst driving, an offence under r 4(1) of the Road Traffic (Motor Vehicles, Wearing of Seat Belts) Rules, and for speeding, an offence under s 63(4) of the Road Traffic Act.

He was sentenced on 30 April 2001, to a total of eight months` imprisonment, and a total of 18 years` disqualification for all classes of vehicles, a total fine of $1,000, in default, ten days` imprisonment. The appeal against the sentences of imprisonment and disqualification before this court was dismissed on 2 August 2001. Counsel for the applicant, immediately after the dismissal, sought for an order that the applicant commence serving his sentence of imprisonment on 16 August 2001, so that the appellant could have a period of two weeks to settle his personal and work affairs. I granted it and also ordered that the applicant`s bail be extended.

This motion, filed on 16 August 2001, and heard on 17 August 2001, was for a further order that the applicant`s sentence of imprisonment which was to commence on 16 August 2001, be postponed instead to commence on 30 August 2001. The applicant cited in his affidavit, that he needed a further two weeks to settle his personal and work affairs, before serving his sentence.

The applicant was seeking, in essence, an alteration of my order of 2 August 2001 that the applicant surrender himself and commence serving his sentence on 16 August 2001. I dismissed the application.

Functus officio

I shall first deal with the issue of whether I could lawfully substitute my own order, some two weeks after it had been made. Section 217 of the Criminal Procedure Code (Cap 68) provides as follows:

Judgment not to be altered

(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the judgment.

(2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before the court rises for the day.

I ruled in Chiaw Wai Onn v PP [1997] 3 SLR 445 at 460, that s 217 did not attempt any substantive enactment with regard to the High Court. The phrase `other than the High Court` could be interpreted to suggest that s 217 allowed the High Court to alter or review its judgment. However, to regard so would mean that the High Court would never be functus officio since, in theory, there would be nothing to prevent a third judgment or a fourth judgment to supplement an earlier judgment. This would go against the universal principle of law that, when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside.

This provision, and its equivalent, has spawned different interpretations. The previous s 369 of the Code of Criminal Procedure of India provided as follows:

No court, other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in ss 395 and 484 or to correct a clerical error.

Despite the express exclusion of the High Court from the operation of this provision, many Indian High Courts held that they had no implied power to alter or review their own judgment. In Re Gibbons (Unreported) at 47, Petheram CJ stated:

In my opinion the effect of the words `other than a High Court` is precisely the same as if in place of them the Legislature had at the end of the section added these words `this section does not apply to the High Court`. There is no substantive enactment in that section with reference to the High Court, and all it does is to reserve the powers which existed in the High Court before, so that they are in no degree taken away. What the powers of the High Court were before it is unnecessary to consider, but whatever they were, they were reserved and they were in the same position after this section was passed as they had been in before; and inasmuch as it is not shown to us that, before the passing of this section, any power of revision existed in the High Court, that section did not, in my opinion, create any such power, and therefore, it appears that this section does not help the applicant.

This was cited with approval by Spenser-Wilkinson J in PP v Heng You Nang [1949] MLJ 285 , a criminal appeal from Sessions Court. In this case, the Public Prosecutor had applied against the acquittal of the respondent on charges connected with the alleged importation of certain goods by the respondent. The appeal was dismissed. Subsequently, the Deputy Public Prosecutor applied by motion that the court should hear further arguments and review its judgment. Spenser-Wilkinson J referred to s 278 of the Criminal Procedure Code of Malaysia, that provides as follows:

No Court, other than a Court of a Judge, having once recorded its judgment, shall alter or review the

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