PP v Adith s/o Sarvotham

• Jurisdiction: Singapore
• Judgment Date: 27 May 2014
• Date: 27 May 2014
• Docket Number: Magistrate's Appeal No 302 of 2013
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Adith s/o Sarvotham

Defendant

[2014] SGHC 103

Sundaresh Menon CJ

Magistrate's Appeal No 302 of 2013

High Court

Criminal Procedure and Sentencing—Appeal—Pending stay of execution—Prosecution appealing against sentence—Principles governing stay application

Criminal Procedure and Sentencing—Sentencing—Young offenders—17-year-old committing a number of serious drug offences—Whether sentence of probation wrong in principle

Adith s/o Sarvotham (‘the Respondent’) was 17 years of age when he was convicted of several drug offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’).

On 15 January 2013, the Respondent was arrested outside his flat by Central Narcotics Bureau officers. Various drug exhibits belonging to him and two cannabis plants were seized during the raid. The Respondent admitted to owning the cannabis plants and consuming cannabis. The Respondent was subsequently released on bail.

On 26 April 2013, whilst the Respondent was out on bail, police officers conducted a spot check on him and found four blue straws containing 0.06 g of diamorphine in his possession. The Respondent admitted to ownership and possession of the diamorphine. He stated that he had obtained it from one ‘Sha Boy’ and was told by him to sell one straw at a price of $20. The Respondent was on the way to meet one ‘Jayin’ for this purpose when he was arrested.

The Respondent pleaded guilty to three charges of drug trafficking, consumption and cultivation under the MDA. Four other charges of possession and consumption of cannabis were also taken into consideration during sentencing. The district judge (‘the District Judge’) sentenced the Respondent to 36 months of probation. This sentence included: (a) a voluntary residence at a residential facility for a period of 12 months; and (b) 24 hours of community service.

The Public Prosecutor brought the present appeal against the sentence imposed by the District Judge on the ground that the sentence of probation was wrong in principle.

Held, dismissing the appeal:

(1) An appellate court should interfere with a sentence meted out by the trial judge only in the following limited circumstances: (a) the trial judge had made the wrong decision as to the proper factual matrix for the sentence; (b) the trial judge had erred in appreciating the material before him; (c) the sentence was wrong in principle; or (d) the sentence imposed was manifestly excessive or manifestly inadequate: at [11] .

(2) Rehabilitation was generally the dominant sentencing consideration for an offender aged 21 years and below. However, this consideration was usually outweighed by the need for punishment or deterrence where serious crimes such as drug trafficking had been committed. Where the individual offender's capacity for rehabilitation was demonstrably high, this could outweigh public policy concerns that were traditionally understood as militating against probation: at [13] and [14] .

(3) The litany of serious offences that had been committed by the Respondent including trafficking, consumption, cultivation and possession of prohibited drugs would ordinarily have warranted a sentence of reformative training. Moreover, there were no unusual or exceptional circumstances that warranted a deviation from the imposition of reformative training: at [15] .

(4) There was nothing remarkable or compelling about the level of familial support that would have been available to the Respondent so as to justify maintaining an overriding focus on the Respondent's rehabilitation despite the serious nature of the offences he had committed. Neither was there anything exceptional about the surrounding circumstances of this case or the degree of remorsefulness shown by the Respondent: at [16] and [17] .

(5) A sentence of reformative training would have been more appropriate. The District Judge had been generous to the Respondent to the point of erring as a matter of law and principle in imposing a term of probation. It was erroneous for the District Judge to have regarded a sentence of reformative training as being inconsistent with the objective of rehabilitation since reformative training functioned equally well to advance the dominant principle of rehabilitation. Nonetheless, the appeal was not allowed because of the surrounding circumstances of the appeal: at [20] and [21] .

(6) It was regrettable that the Prosecution's application for stay pending appeal was dismissed without reasons by the District Judge because it was not evident how the Respondent would have been prejudiced by the grant of a stay. By the time the appeal was heard, the Respondent had already served a period of almost six months at the residential facility and had been substantially deprived of his liberty during this period. Also, the Respondent had already fulfilled the 240-hour community service order imposed on him. Given the particular facts of this case, it would have been unfair to replace the Respondent's existing sentence of probation with a term of reformative training. Replacing the Respondent's existing sentence with a term of reformative training would have amounted to double punishment since he had already served a good part of his probation term and had completed his obligations under the community service order: at [22] , [26] and [27] .

[Observation: Where the Prosecution has applied for a stay of execution pending its appeal against sentence that entailed a loss of liberty for the convicted person, the court determining such a stay application should weigh the following factors: (a) the interests of a fair and just prosecution, including the interest of ensuring that the Prosecution's appeal against the sentence was not prejudiced; (b) any comparative prejudice to the convicted person in having to await the outcome of the appeal before serving his sentence; (c) the nature and gravity of the offence; (d) the length of the term of imprisonment or probation in comparison with the length of time which it was likely to take for the appeal to be heard; and (e) whether any possible prejudice to the convicted person could be ameliorated through simple measures such as requesting that the appeal be heard on an urgent basis: at [29] to [32] .

If the trial court dismissed the stay application, the Prosecution might still seek a stay from the appellate court pursuant to s 383 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed): at [33] and [34] .]

Loh Kok Siew v PP [2002] 2 SLR (R) 186; [2002] 3 SLR 22 (refd)

PP v Justin Heng Zheng Hao [2012] SGDC 219 (folld)

PP v Kwong Kok Hing [2008] 2 SLR (R) 684; [2008] 2 SLR 684 (folld)

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

PP v Loqmanul Hakim bin Buang [2007] 4 SLR (R) 753; [2007] 4 SLR 753 (refd)

PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR (R) 449; [2008] 1 SLR 449 (refd)

PP v Mok Ping Wuen Maurice [1998] 3 SLR (R) 439; [1999] 1 SLR 138 (folld)

PP v Saiful Rizam bin Assim [2014] 2 SLR 495 (folld)

PP v Teo Ming Min Magistrate's Appeal No 209 of 2012 (refd)

PP v Wong Jia Yi [2003] SGDC 53 (refd)

PP v Yusry Shah bin Jamal [2008] 1 SLR (R) 487; [2008] 1 SLR 487 (refd)

Ralph v PP [1971-1973] SLR (R) 365; [1972-1974] SLR 322 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 383 (consd)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 5 (1) (a) , 5 (2) , 8 (a) , 8 (b) (ii) , 9, 10, 33

Penal Code (Cap 224, 2008 Rev Ed) s 324

Ong Luan Tze and Low Chun Yee (Attorney-General's Chambers) for the Prosecution

Randhawa Ravinderpal Singh s/o Savinder Singh Randhawa (Kalco Law LLC) for therespondent.

Sundaresh Menon CJ

Introduction

1 This was an appeal brought by the Public Prosecutor against the decision of the district judge (‘the District Judge’) in PP v Adith s/o Sarvotham [2013] SGDC 389. Adith s/o Sarvotham (‘the Respondent’) pleaded guilty to three charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) and was sentenced to a term of probation. Four other charges under the MDA were taken into consideration. The Prosecution brought the present appeal on the ground that the sentence of probation was wrong in principle.

2 The Respondent was convicted of the following charges:

Charge (DAC No)	MDA Section	Offence	Punishment
DAC 15168/2013	Section 10	Cultivation of cannabis plants	Minimum: Three...