Neo Ah Luan v Public Prosecutor

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date03 September 2018
CourtHigh Court (Singapore)
Docket NumberMagistrate's Appeal No 9307 of 2017
Date03 September 2018
Neo Ah Luan
and
Public Prosecutor

[2018] SGHC 188

Sundaresh Menon CJ

Magistrate's Appeal No 9307 of 2017

High Court

Criminal Procedure and Sentencing — Sentencing — Appeals — Offender pleading guilty to two charges of practising medicine without requisite qualifications under s 17(1)(e) read with s 13 Medical Registration Act (Cap 174, 2014 Rev Ed) — Whether aggregate term of two months’ imprisonment manifestly excessive — Sections 13 and 17(1)(e) Medical Registration Act (Cap 174, 2014 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Offender pleading guilty to two charges of practising medicine without requisite qualifications under s 17(1)(e) read with s 13 Medical Registration Act (Cap 174, 2014 Rev Ed) — Sentencing framework for offence of unauthorised person practising or acting as medical practitioner under s 17 Medical Registration Act — Sections 13 and 17(1)(e) Medical Registration Act(Cap 174, 2014 Rev Ed)

Statutory Interpretation — Construction of statute — Purposive approach — Offender charged with “practising as a medical practitioner” — Whether prohibition against unauthorised persons practising or doing any act as medical practitioner in s 13 Medical Registration Act (Cap 174, 2014 Rev Ed) referred to practising or doing acts as medical practitioner while holding out as such — Section 13 Medical Registration Act (Cap 174, 2014 Rev Ed)

Held, allowing the appeal:

(1) Purposive interpretation of a provision proceeded in three steps: First, the court would ascertain the possible interpretations of the provision, having regard to the text of the provision and its context within the written law as a whole. Second, the court would ascertain the legislative purpose of the statue. Third, the court compared the possible interpretations of the text against the purpose of the statute, preferring the interpretation that furthered the purpose of the statute: at [21].

(2) There were two possible interpretations of the terms “practise as a medical practitioner or do any act as a medical practitioner” in s 13(a) of the MRA. They could either mean practising or doing acts while holding oneself out as a medical practitioner, or practising or doing acts which should only be done by a medical practitioner: at [23].

(3) Considering s 13(a) within the context of the MRA as a whole, it was clear that s 13(a) should be read together with s 17(1) of the MRA. The Prosecution had argued that the reference to “practising or doing any act as a medical practitioner” in s 13(a) could not mean “holding oneself out as a medical practitioner”, because such conduct was already proscribed in ss 17(1)(b), 17(1)(c) and 17(1)(d) of the MRA. However, the flaw in this argument was that there was tautology within s 17(1) regardless of how s 13(a) was construed. Thus, the principle that Parliament shuns tautology could not usefully be applied to interpret s 13(a) of the MRA: at [25] to [28].

(4) Section 2A of the MRA stated that the object of the Act was to protect the health and safety of the public through, among other things, upholding standards of practice within the medical profession and maintaining public confidence in the medical profession. It would better comport with these aims to interpret s 13(a) of the MRA as prohibiting unauthorised persons from practising or doing acts which should only be done by qualified medical practitioners, regardless of whether they also held out as qualified medical practitioners: at [31] to [35].

(5) The Parliamentary debates confirmed that the legislative intent was to address the illegal performance of treatments which should only be performed by qualified medical practitioners, regardless of whether those who performed such illegal treatments held themselves out as being medically qualified: at [36] to [38].

(6) There were, in evidence, guidelines issued by the Singapore Medical Council stating that filler injections were minimally invasive procedures which should only be performed by doctors. The charges against the appellant were thus made out as she had performed acts which should only be performed by a qualified medical practitioner. However, the second charge was amended to refer to the appellant “doing an act as a medical practitioner” instead of “practising” as such, because “practising” implied a sustained course of conduct, whereas the appellant had only performed one filler injection on Ms Huang: at [43] and [44].

(7) With respect to the sentencing framework for offences under s 17(1) of the MRA, the first step was to identify, on a low-medium-high scale, the level of harm caused by the offence, and the offender's level of culpability. The concept of harm included both actual and potential bodily harm, as well as emotional or psychological harm, or the undermining of public confidence in the medical profession. Culpability would depend on factors including the offender's mens rea, the extent of any profits gained, the duration of the offending behaviour, whether the offender had held out as a medical practitioner, the sophistication and level of pre-meditation or planning involved, and the extent to which the offender may have abused any position of trust: at [67], [68], [72] and [74(a)].

(8) The weight to be given to the duration of offending behaviour in determining culpability had to be considered in the circumstances of each case. A longer duration of offending behaviour would generally correspond to a higher level of culpability where the offending conduct was dishonest, deliberately wrongful, rash, or reckless. However, such reasoning might apply with less force if the crime is committed with a less culpable state of mind such as negligence: at [73].

(9) Once the sentencing court had identified the level of harm caused by the offence and the offender's level of culpability, the second step was to identify the indicative sentencing range according to the following matrix: at [74(b)].

(10) The third step of the sentencing framework was to adjust the indicative sentence according to offender-specific aggravating and mitigating factors. Aggravating factors would include offences taken into consideration for sentencing purposes, relevant antecedents, and an evident lack of remorse. Mitigating factors would include a plea of guilt and cooperation with the authorities. The fourth step was to make further adjustments to take into account the totality principle, particularly where an offender was punished with three or more sentences of imprisonment: at [74(c)] and [74(d)].

(11) In this case, the level of harm caused by the appellant's conduct was of a low to medium level. Although no actual harm resulted, the potential for harm was high. The fillers used were not registered with the Health Sciences Authority as required by the Health Products Act (Cap 122D, 2008 Rev Ed) and their safety for use had not been verified. Further the injections were invasive procedures which could cause complications, and were carried out in a non-sterile environment. The appellant's culpability was of a medium level. She had been grossly negligent or even reckless in administering Promoitalia Skinfill products without reading or understanding the accompanying instructions. She had also run a fairly large-scale operation administering such injections from her home. A low to medium level of harm and medium level of culpability corresponded to a starting point of about two months’ imprisonment per charge: at [78], [81], [82], [84] and [85].

(12) It was an aggravating factor that a third similar charge was taken into consideration for the purpose of sentencing. However, mitigating weight was given to the appellant's plea of guilt and cooperation with the authorities. In all the circumstances, a sentence of six weeks’ imprisonment for each charge was appropriate: at [86].

(13) Although the offences were separate in the sense that they involved two different victims, the total duration of the offending behaviour had already been taken into account in determining the appellant's level of culpability. It was thus appropriate that the sentences on both charges should run concurrently: at [87].

Case(s) referred to

AG v Ting Choon Meng [2017] 1 SLR 373 (refd)

JD Ltd v Comptroller of Income Tax [2006] 1 SLR(R) 484; [2006] 1 SLR 484 (refd)

Logachev Vladislav v PP [2018] 4 SLR 609 (folld)

Ng Kean Meng Terence v PP [2017] 2 SLR 449 (folld)

Pittis Stavros v PP [2015] 3 SLR 181 (refd)

PP v Consumido Daisy Sagum District Summons Case No 00005 of 2012 (refd)

PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334; [2007] 2 SLR 334 (refd)

PP v GS Engineering & Construction Corp [2017] 3 SLR 682 (refd)

PP v Koh Thiam Huat [2017] 4 SLR 1099 (refd)

PP v Kulandaivelu Padmanaban [2010] SGDC 407 (overd)

PP v Lam Leng Hung [2018] 1 SLR 659 (folld)

PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (folld)

PP v Raveen Balakrishnan [2018] SGHC 148 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Yap Ah Lai v PP [2014] 3 SLR 180 (refd)

Facts

The appellant was charged with two counts of practising as a medical practitioner as an unauthorised person in contravention of s 13 of the Medical Registration Act (“the MRA”), which offence is punishable under s 17(1)(e) of the MRA. She had provided home-based beauty services which involved her injecting her clients’ skin with a dermal filler product called Promoitalia Skinfill. The appellant had performed such filler injections on one of her clients, a Ms Guan, over several occasions, which formed the subject matter of the first charge. She had also performed a single filler injection on another client, a Ms Huang, on one occasion. This formed the subject matter of the second charge. Upon her plea of guilt, the District Judge convicted the appellant on both charges and sentenced her to two months’ imprisonment for each charge, with both sentences to run concurrently.

The appellant appealed on the ground that the...

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3 books & journal articles
  • Biomedical Law and Ethics
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    • Singapore Academy of Law Annual Review No. 2018, December 2018
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    ...v Public Prosecutor [2018] 1 SLR 610 at [73]–[74]. 203 Ali bin Mohamad Bahashwan v Public Prosecutor [2018] 1 SLR 610 at [3]. 204 [2018] 5 SLR 1153. 205 Cap 122D, 2008 Rev Ed. 206 Neo Ah Luan v Public Prosecutor [2018] 5 SLR 1153 at [11]–[14]. 207 Neo Ah Luan v Public Prosecutor [2018] 5 SL......
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