Mathavakannan s/o Kalimuthu v AG

• Jurisdiction: Singapore
• Judgment Date: 27 February 2012
• Date: 27 February 2012
• Docket Number: Originating Summons No 129 of 2012
• Court: High Court (Singapore)

Mathavakannan s/o Kalimuthu

Plaintiff

and

Attorney-General

Defendant

[2012] SGHC 39

Lee Seiu Kin J

Originating Summons No 129 of 2012

High Court

Constitutional Law—President—Discretionary powers—Decision by Court of Appeal changing interpretation of ‘life imprisonment’ or ‘imprisonment for life’ to ‘imprisonment for natural life’ rather than imprisonment for 20 years—Offence committed before Court of Appeal decision but President exercising clemency power to commute death sentence to sentence of life imprisonment after Court of Appeal decision—Whether President's commutation of death sentence to sentence of life imprisonment meant imprisonment for 20 years or imprisonment for natural life—Section 238 Criminal Procedure Code (Cap 68, 1985 Rev Ed)—Section 8 (1) Republic of Singapore Independence Act (Act 9 of 1965, 1985 Rev Ed)

Words and Phrases—‘Life imprisonment’ or ‘imprisonment for life’—Decision by Court of Appeal changing interpretation of ‘life imprisonment’ or ‘imprisonment for life’ to ‘imprisonment for natural life’ rather than imprisonment for 20 years—Offence committed before Court of Appeal decision but President exercising clemency power to commute death sentence to sentence of life imprisonment after Court of Appeal decision—Whether President's commutation of death sentence to sentence of life imprisonment meant imprisonment for 20 years or imprisonment for natural life

The Plaintiff was jointly charged with two others for murder with common intention for an act committed on 26 May 1996. On 27 November 1996, the High Court sentenced him to suffer death, and the Court of Appeal dismissed his appeal on 14 October 1997. On 28 April 1998, the President of the Republic of Singapore Mr Ong Teng Cheong (‘President Ong’) commuted the Plaintiff's sentence of death to a sentence of life imprisonment.

Prior to 20 August 1997, although s 45 of the Penal Code (Cap 224, 1985 Rev Ed) defined ‘life’ as denoting the life of a human being, there was a practice that life imprisonment meant 20 years' imprisonment. Indeed, since 1954, the Singapore Prison Service (‘Prisons’) had also regarded life imprisonment as meaning a term of 20 years' imprisonment with the possibility of remission. Furthermore, s 57 of the Penal Code at that time provided that the term ‘imprisonment for life’ was to be construed as the equivalent to imprisonment for 20 years in calculating the fractions of terms of punishment.

On 20 August 1997, the Court of Appeal rendered its decision in Abdul Nasir bin Amer Hamsah v PP [1997] 2 SLR (R) 842(‘Abdul Nasir’), holding that ‘life imprisonment’ ought to be accorded its natural and ordinary meaning, viz, imprisonment for the duration of the prisoner's natural life. The Court of Appeal emphasised that its pronouncement would have prospective effect, thereby affecting only those offences which carry a life sentence committed after the date of delivery of the judgment. However, for offences committed before the said date, the old practice of 20 years' imprisonment would continue to apply.

In 2002, Prisons wrote to the Singapore Armed Forces stating, inter alia, that the Plaintiff's tentative date of release was 28 August 2011. In 2006, the Plaintiff sought clarification from Prisons regarding his release date, and was told that his death sentence had been commuted to ‘natural life imprisonment’. On further inquiry by the Plaintiff in 2007, Prisons sought clarification with the Attorney-General's Chambers (‘AGC’) and reiterated that the Plaintiff's death sentence had been commuted to imprisonment for the rest of his natural life. The Plaintiff's mother subsequently sent a letter to the Minister for Law in 2010 and received the same response.

In the circumstances, the Plaintiff filed the present application, seeking a determination that his sentence, commuted by President Ong to life imprisonment, was in effect a term of imprisonment for 20 years.

Held, allowing the application:

(1) It is clear from s 8 (1) (b) of the Republic of Singapore Independence Act (Act 9 of 1965, 1985 Rev Ed) (‘RSIA’) that the power of clemency is untrammelled. The President, acting on the advice of the Cabinet, may, in the exercise of power under s 8 of the RSIA, grant a ‘pardon, free or subject to lawful conditions’, or ‘any reprieve or respite, either indefinite or for such period as the President may think fit’. This meant that the President was empowered to commute a capital sentence to,inter alia, an imprisonment term ofany period. The President was not bound, when commuting a capital sentence, to impose ‘life imprisonment’ in accordance with how that term was understood under the law at the time of the commutation: at [21].

(2) There was ambiguity over what exactly President Ong meant when he ordered that the Plaintiff be ‘imprisoned for life’. President Ong could have meant one of two things, viz, either (a) that the Plaintiff would suffer imprisonment for 20 years under the pre-Abdul Nasir regime given, inter alia,that the offence was committed before the date of the Abdul Nasir judgment; or (b) that the Plaintiff would suffer imprisonment for the rest of his natural life under the Abdul Nasir regime given,inter alia, that the commutation took placeafter the Abdul Nasir judgment: at [24]and [25].

(3) The arguments supporting each of the two interpretations were finely balanced. Due to the significant change in the law as of the date of the Abdul Nasirdecision, and the fact that it was unclear whether Abdul Nasir applied to a case such as the present, it was inconceivable that the legal advisors to President Ong and the Cabinet would not have recommended expressing the commutation order in clearer terms if it was intended for the Plaintiff to be imprisoned for the rest of his natural life. This was especially so given that the long established practice of interpreting ‘life imprisonment’ as an imprisonment term of 20 years was only changed eight months prior to President Ong's commutation order: at [26].

(4) Furthermore, any interpretation of President Ong's commutation order ought also to be guided by the principle of strict construction, viz, that penal statutes were to be strictly construed to lean in the accused's favour. The construction of President Ong's commutation order in favorem vitae would - in line with the rationale for the principle of strict construction - constitute a form of fairness to the individual, especially in a case such as the present where there were serious implications on the Plaintiff's liberty depending on the particular interpretation taken and that he had, at least since 2002, been given indication that his capital sentence had in effect been commuted to 20 years' imprisonment: at [27].

[Observation: Although this matter commenced by way of a criminal motion, the parties agreed to convert it to an originating summons (‘OS’). It was accordingly not necessary for the court to consider the merits of the mode of commencement: at [3].

The present OS did not require the court to question the merits of President Ong's commutation decision; instead, all that was required was the court'sinterpretation of President Ong's commutation order. Such interpretation of executive orders was within the province of the court: at [23].]

Abdul Nasir bin Amer Hamsah v PP [1997] 2 SLR (R) 842; [1997] 3 SLR 643 (refd)

Asogan Ramesh s/o Ramachandren v PP [1997] 3 SLR (R) 201; [1998] 1 SLR 286 (refd)

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525; [1988] SLR 132 (refd)

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (refd)

Neo Man Lee v PP [1991] 1 SLR (R) 918; [1991] SLR 146 (refd)

PP v Asogan Ramesh s/o Ramachandren [1997] SGHC 181 (refd)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

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