Public Prosecutor v Muhammad Noor Indra bin Hamzah

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 18 August 2009
• Neutral Citation: [2009] SGHC 186
• Docket Number: Criminal Revision No 9 of 2009
• Date: 18 August 2009
• Year: 2009
• Published date: 19 August 2009
• Plaintiff Counsel: Francis Ng (Attorney-General's Chambers)
• Citation: [2009] SGHC 186
• Defendant Counsel: Tan Chee Meng SC and Josephine Choo (Wong Partnership)
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Whether High Court should exercise its discretionary powers to enhance sentence below under such circumstances,Statutory offences,Whether such finding of guilt constituted "previous conviction" under s 33A Misuse of Drugs Act,Revision of proceedings,Misuse of Drugs Act (Cap 185, 2008 Rev Ed),Ground for appeal existing but no appeal lodged and sentence already meted out,Criminal Procedure and Sentencing,Juvenile Court making finding of guilt and ordering respondent to reside in approved school

18 August 2009

Lee Seiu Kin J:

Introduction

1 This is an application by the Public Prosecutor for the exercise of the High Court’s powers of revision under s 266 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed)(“CPC”) to examine the record of the District Court proceedings in DAC 33059 of 2008 (“DAC 33059”). The petitioner submitted that I should also exercise my powers under s 268 read with s 256(c) of the CPC to alter the sentence imposed on the respondent by District Judge Sarjit Singh (“the District Judge”) on the ground that it was wrong in law. DAC 33059 pertained to an offence under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“MDA”) and is punishable under s 33 of that Act. However if there are two previous convictions under s 8(b) of the MDA, s 33A(1)(b) would apply to impose a minimum imprisonment term of five years and caning of not less than three strokes and not more then six strokes of the cane. In 2001, the respondent had been brought before a Juvenile Court and charged under s 8(b)(ii) of the MDA for consumption of methamphetamine. The Juvenile Court had made a finding of guilt and ordered him to reside in an approved school for 32 months. The prosecution submitted to the District Judge that the Juvenile Court proceedings constituted a “previous conviction” under s 33A(1). However the District Judge disagreed and sentenced him under s 33 instead of s 33A. The question of law before me is whether the Juvenile Court proceedings constituted a “previous conviction” under s 33A of the MDA (“the Issue”).

Background

2 The facts are as follows. On 10 September 2008, before District Judge Sarjit Singh (“the District Judge”) in Subordinate Court No 4, the respondent pleaded guilty to five charges, namely DAC 31028, 32070, 33057, 33058 and 33059 of 2008. The respondent was convicted of the offences and consented to three other charges to be taken into consideration for the purpose of sentencing pursuant to s 178 of the CPC. The District Judge adjourned the case to 29 September 2008 for sentencing. However on that adjourned date, the District Judge required submissions on the Issue and the prosecution requested an adjournment to check on the point. The matter was adjourned to 16 October 2008, but the prosecution was not ready to submit on that date and a further adjournment was granted, to 30 October 2008. On 30 October 2008, after the prosecution made its submissions, the District Judge adjourned the case for sentencing on 7 November 2008. However at that adjourned hearing, the prosecution applied for a further adjournment and the hearing was re-scheduled to 26 November 2008. But on 26 November 2008 the Criminal Legal Aid Scheme (“CLAS”) of the Law Society had put in an application for adjournment so that it can consider assigning counsel to argue the Issue fully. The District Judge granted the application and adjourned the hearing to 19 December 2008. On that new date, CLAS instructed Ms Josephine Choo to act for the respondent and she made her submissions on the Issue to the District Judge. However Ms Choo requested an adjournment to consider the earlier submission of the prosecution which she had just received in order to make her reply. The District Judge adjourned the hearing to 16 January 2009. On that date, after both sides made further submissions, the District Judge made his ruling on the Issue. On 20 January 2009 the District Judge sentenced the respondent to various punishments on the five charges. In relation to DAC 33059, as he held that s 33A of the MDA was not applicable, he sentenced the respondent to three years’ imprisonment under s 33 of the MDA, which had no provision for caning.

3 There was no appeal against the decision of the District Judge within the time fixed for appealing (or at all). The respondent had been in remand all the while and the sentence of caning imposed on him, a total of 12 strokes in relation to DAC 31028 and 32070 of 2008 was duly carried out. Had the respondent been sentenced under the provisions of s 33A of the MDA, he would have received at least another three strokes of the cane.

4 On 13 March 2009, some one and a half months after the District Judge had decided on the matter, the deputy public prosecutor (“Mr Ng”) wrote to the Registrar of the Supreme Court and requested that DAC 33059 be placed before the High Court for the purpose of this criminal revision. On 30 April 2009 after hearing submissions from Mr Ng and from counsel for the respondent, Mr Tan, I reserved judgment on the determination of the Issue. However I was of the view that, even if I were to decide the Issue in accordance with the petitioner’s position, I would not be inclined to disturb the sentence. My reasons for so doing are as follows.

5 The revisionary power of the High Court is vested by s 23 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) which provides as follows:

The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure.

The relevant written law relating to criminal procedure is the CPC and s 266(1) thereof provides that the High Court “may call for and examine the record of any criminal proceeding before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of that subordinate court”. If the High Court determines that any finding, sentence or order of the subordinate court is not correct, legal or improper, or any proceedings thereof is irregular, s 268(1) provides that the court may, “in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257”. It should be noted that s 268(1) does not require the court to make an order on every occasion that it finds a defect in the finding, sentence or order of, or in the proceedings in, the subordinate court. It gives the court the discretion to act.

6 What, then, are the factors that the court takes into account in the exercise of this discretion? In Ang Poh Chuan v Public Prosecutor [1996] 1 SLR 326, Yong Pung How CJ analysed the Indian authorities on the subject and held (at 330C) that for the court to be moved to act, “there must be some serious injustice”. He further said (at 330C) that “generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below”. In the next paragraph, he said that it was clearly not the intention of the statute for the revisionary jurisdiction to be “little more than another form of appeal”. More recently, in Yunani bin Abdul Hamid v Public Prosecutor [2008] 3 SLR 383, V K Rajah JA held (at [46] and [49]) as follows:

46 … The revisionary jurisdiction must not be exercised in such a way that a right of appeal may practically be given whenever such right is definitely excluded by the statutory provisions on criminal procedure (per Piggott J in the Allahabad High Court in Ahsan-ullah Khan v Mansukh Ram 1914 (36) ILR All 403 at 405). It is not the purpose of criminal revision to become a convenient form of “backdoor appeal” against conviction for accused persons who have pleaded guilty to the charges against them (per Yong Pung How CJ in Teo Hee Heng v PP [2000] 3 SLR 168 at [7]). The courts have therefore formulated certain principles to guide the prudent exercise of this extraordinary power.

…

49 I agree with the cautious and limited exercise of the High Court’s revisionary power as stated in [46]–[47] above. This extraordinary judicial power must not be regarded or exercised as an alternative appellate route (a point which I mentioned earlier at [46] above). However, it also has to be kept in mind that Parliament has conferred this power on the High Court so as to ensure that no potential cases of serious injustice are left without a meaningful remedy or real redress. A court would fail in its constitutional duty to oversee the administration of criminal justice if it remains impassive and unresponsive to what may objectively appear to be a potentially serious miscarriage of justice …

7 In exercising my discretion not to disturb the sentence, I took into consideration the fact that the ordinary manner in which the petitioner would have gone about this, if dissatisfied with the finding of the District Judge or the sentence, would be to lodge an appeal. Whatever may have been the reason, this was not done. The petitioner submitted that an appeal was not possible “since the extent or legality of the...