Mathavakannan s/o Kalimuthu v Attorney-General

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 27 February 2012
• Neutral Citation: [2012] SGHC 39
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 129 of 2012
• Year: 2012
• Published date: 28 February 2012
• Hearing Date: 20 January 2012
• Plaintiff Counsel: Subhas Anandan and Sunil Sudheesan (RHT Law LLP)
• Defendant Counsel: Aedit Abdullah and Darryl Soh (Attorney-General's Chambers)
• Subject Matter: Administrative Law,Constitutional Law
• Citation: [2012] SGHC 39

Lee Seiu Kin J:

This matter commenced by way of a criminal motion (viz Criminal Motion No 81 of 2011), brought by Mathavakannan s/o Kalimuthu (“the Applicant”) for the following orders or declarations: (1) that the decision by the Director of Prisons to hold that the Applicant’s sentence of life imprisonment as commuted by the President equates to the imprisonment for the Applicant’s remaining natural life is contrary to the Honourable Court of Appeal’s pronouncement in Abdul Nasir bin Amer Hamsah v Public Prosecutor [1997] 2 SLR(R) 842 at 861; (2) that the law applicable on 26 May 1996 (the date of the Applicant’s offence) applies to the Presidential clemency (to commute [the Applicant’s] death sentence to one of life imprisonment) granted to the Applicant on 28 April 1998; and/or (3) that there may be such further or other relief as may be deemed just in the circumstances.

[original emphasis omitted]

The issue arising in this matter concerns the interpretation of “life imprisonment” in the commutation order of 28 April 1998 made in exercise of the President’s commutation powers under s 238 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) (see [19]-[21] below).

The Respondent raised a preliminary objection to the commencement of this action by way of a criminal motion. As the Applicant agreed to converting it to an originating summons (“OS”), I do not need to consider the merits of the mode of commencement. The Applicant made an oral application before me for the proceedings to be heard by way of an OS pursuant to O 5 r 14 read with O 15 r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), with any documents to be regularised accordingly and I granted it. This matter was thus thereafter referred to as an OS, and the Applicant and Respondent were referred to as the “Plaintiff” and “Defendant” respectively.

Having read the submissions and heard the oral arguments put forward by both sides, I declared that the President’s commutation order for the Plaintiff to be “imprisoned for life” referred to an imprisonment term of 20 years. I now render the grounds of my decision.

Facts

The Plaintiff, a Singaporean male currently 33 years of age, and two other accused persons were jointly charged for murder with common intention for an act committed on 26 May 1996. The Plaintiff was aged 18 years 16 days old at that time. On 27 November 1996, the three were tried and convicted in the High Court and were sentenced to suffer death (see Public Prosecutor v Asogan Ramesh s/o Ramachandren & 2 others [1997] SGHC 181). The Court of Appeal dismissed the appeal on 14 October 1997 (Asogan Ramesh s/o Ramachandren and others v Public Prosecutor [1997] 3 SLR(R) 201). Clemency petitions were thereafter filed by the three convicted persons, but only the Plaintiff’s petition (filed on 13 January 1998) was granted.

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. The commutation order was phrased as follows:

WHEREAS Mathavakannan K, having been tried at the High Court, Singapore, was on the 27 November 1996, in due form of law convicted of and sentenced to death for the commission of an offence of murder:

AND WHEREAS I have, upon the advice of the Cabinet, decided in the exercise of my prerogative that the said sentence of death passed upon him be commuted to a sentence of life imprisonment:

NOW, THEREFORE, I, ONG TENG CHEONG, President of the Republic of Singapore, in exercise of the powers conferred on me by section 238 of the Criminal Procedure Code, do hereby commute the said sentence of death and order that the said Mathavakannan K be imprisoned for life.

GIVEN under my Hand and the Seal at the Istana, Singapore, this 28th day of April 1998.

[emphasis added]

On 15 November 1999, the Singapore Prison Service (“Prisons”) wrote to the Traffic Police telling the officer-in-charge that the Plaintiff had been serving life imprisonment in prison since 4 July 1996.

President Ong’s term in office ended on 31 August 1999, and he passed away on 8 February 2002.

On 14 November 2002, Prisons wrote to the Singapore Armed Forces stating, inter alia, that the Plaintiff’s tentative date of release was 28 August 2011.

On 13 September 2006 and 18 December 2006, two letters were written to Prisons requesting clarification of the Plaintiff’s release date. On 28 December 2006, Prisons replied stating that President Ong had commuted the Plaintiff’s death sentence to “natural life imprisonment”. Counsel for the Plaintiff sought clarification from Prisons via a letter on 4 January 2007, and Prisons said that more time was required to look into the matter. On 5 March 2007, Prisons replied to the Plaintiff, stating that upon clarification with the Attorney-General’s Chambers (“AGC”), the commutation of the Plaintiff’s death sentence “by the President to life imprisonment should be construed as life imprisonment for his remaining natural life”.

The Plaintiff’s mother subsequently sent a letter to the Minister for Law on 26 October 2010. Prisons responded on 3 December 2010, stating inter alia that the “commutation of death sentence to life imprisonment, effective on 28 April 1998, by the President should be construed as life imprisonment for his remaining natural life”.

On 28 March 2011, counsel for the Plaintiff wrote in again to the AGC to restate the Plaintiff’s case. The AGC replied on 28 July 2011, turning down the Plaintiff’s request. The AGC further stated that the Plaintiff would be referred to the Life Imprisonment Review Board.

In the circumstances, the Plaintiff filed the present criminal motion (now OS – see [3] above), seeking a determination that the Plaintiff’s sentence, commuted by President Ong to life imprisonment, is in effect for 20 years, consistent with the pronouncement of the Court of Appeal in Abdul Nasir bin Amer Hamsah v Public Prosecutor [1997] 2 SLR(R) 842 (“Abdul Nasir”).

The pronouncement in Abdul Nasir

In Abdul Nasir, the Court of Appeal faced the issue of whether life imprisonment meant imprisonment for the remainder of a prisoner’s natural life. 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 (see Neo Man Lee v Public Prosecutor [1991] 1 SLR(R) 918). Since 1954, Prisons had also regarded life imprisonment as meaning a term of 20 years’ imprisonment with the possibility of remission. It should also be pointed out that s 57 of the Penal Code at that time provided that the term “imprisonment for life” is to be construed as the equivalent to imprisonment for 20 years in calculating the fractions of terms of punishment. In a landmark judgment considering the proper interpretation of “life imprisonment”, the Court of Appeal held that “life imprisonment” ought to be accorded its natural and ordinary meaning, viz imprisonment for the duration of the prisoner’s natural life (Abdul Nasir at [70]).

However, the Court of Appeal was mindful of Art 11 of the Constitution of the Republic of Singapore (1985 Rev Ed) (“the Singapore Constitution”) which provided that no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed (Abdul Nasir at [49]). As such, the Court of Appeal emphasised the need to protect the legitimate expectations of individuals who arranged their affairs according to the expectation that “life imprisonment” would be interpreted as a term of 20 years (ibid at [56]). The Court of Appeal was careful to make its interpretation of life imprisonment prospective, in the following manner (ibid at [70]):

For the reasons set out above, we concluded that the expression “life imprisonment” or “imprisonment for life” must mean imprisonment for the remaining natural life of the prisoner, unless the legislation has provided otherwise. This judicial pronouncement by us now shall have prospective effect, thereby affecting only those offences which carry a life sentence committed after the date of delivery of this...