PP v Song Hauming Oskar

• Jurisdiction: Singapore
• Judge: Vincent Hoong J
• Judgment Date: 05 July 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9689 of 2020/01; Magistrate's Appeal No 9689 of 2020/02

Public Prosecutor

and

Song Hauming Oskar and another appeal

[2021] SGHC 169

Vincent Hoong J

Magistrate's Appeal No 9689 of 2020/01; Magistrate's Appeal No 9689 of 2020/02

General Division of the High Court

Criminal Procedure and Sentencing — Charge — Purpose of framing amalgamated charge under s 124(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) — Whether device of amalgamation under s 124(4) CPC purely was procedural in nature or whether it had substantive implications — Section 124(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Availability of community orders or community sentences — If accused person was convicted of charge amalgamated under s 124(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and by virtue of s 124(8)(a)(ii) CPC, might be sentenced to imprisonment for term which exceeded three years, whether court was statutorily precluded under s 337(1)(i) CPC from imposing community sentences under Pt XVII CPC — Meaning of word “offence” in s 337(1)(i) CPC — Whether word “offence” in s 337(1)(i) CPC referred to amalgamated offence under s 124(4) CPC, or underlying base offences which were amalgamated under s 124(4) — Sections 124(4), 124(8)(a)(ii), 337(1)(i) and Pt XVII, Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Mentally disordered offenders — When would sentencing consideration of deterrence be displaced by rehabilitation in respect of credit card cheating offences under s 417 Penal Code (Cap 224, 2008 Rev Ed) — Section 417 Penal Code (Cap 224, 2008 Rev Ed)

Held, allowing the appeal and dismissing the cross-appeal:

Availability of community sentence

(1) Under the first step of purposive statutory interpretation, the plain meaning of “offence” in s 337(1)(i) CPC was wide enough to encompass an amalgamated offence. This was because s 124(4), read with s 124(8)(a)(ii) CPC, fulfilled the definition of “offence” in s 2(1) of the CPC. It was also clear, from ss 124(4)(b) and 132 CPC, that an offence amalgamated under s 124(4) of the CPC was a single offence: at [44], [45], [47] and [48].

(2) Other contextual clues indicated that “offence” in s 337(1)(i) CPC should refer to the amalgamated offence under s 124(4) CPC when such an amalgamated charge was framed. The references to the sentence of imprisonment in lieu of which a community order would be imposed or which would be subsequently resurrected for various reasons stipulated in ss 337(5), 337(6), 337(9), 352(5)(b), 354(6)(b) and 354(7)(b) of the CPC, had to refer to that imposed in light of s 124(8)(a)(ii) of the CPC. Bearing this in mind, the court saw no reason for the “term of imprisonment” in s 337(1)(i) to then refer to the court's sentencing jurisdiction under the base offence, rather than s 124(8)(a)(ii). It followed that “offence” in s 337(1)(i) had to refer to the amalgamated offence if the proceeded charge was one amalgamated under s 124(4) CPC: at [53], [54] and [58].

(3) Under the second step of purposive statutory interpretation, the court examined the legislative purposes of Pt XVII and s 337(1)(i) of the CPC: at [63] to [65].

(4) Community sentences in Pt XVII of the CPC targeted offences and offenders traditionally viewed by the courts to be on the rehabilitation end of the spectrum. They enabled the courts to deliver the correct mix of deterrence, prevention, retribution and rehabilitation on the specific facts of each case: at [63] and [64].

(5) Section 337, in turn, was intended to prevent offences or offenders which fell outside of the rehabilitation end of the spectrum from accessing the regime of community orders. Section 337(1)(i) CPC filtered out offences punishable with more than three years imprisonment. Such offences, in Parliament's view, were not at the rehabilitation end of the spectrum and engaged the other three sentencing considerations of deterrence, prevention and retribution more strongly: at [65].

(6) With regard to the legislative purpose of the device of amalgamation in s 124(4) of the CPC, the court concluded that s 124(4) CPC was not merely procedural in nature. Instead, amalgamation could be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct. This view was supported by the plain wording of s 124(4), as understood in the context of established sentencing principles, and English authorities discussing a similar amalgamation procedure in the UK: at [69] to [75] and [77] to [82].

(7) The Prosecution had to take extreme care when exercising their prosecutorial discretion to frame amalgamated charges so as not to inadvertently preclude a deserving offender from receiving a community sentence. This was because not in all cases would the overall criminality of an accused facing an amalgamated charge comprising X number of incidents be higher than the overall criminality of an accused facing X number of discrete charges for the same base offence. Put another way, it was conceptually possible for someone facing an amalgamated offence to still be deserving of a community sentence: at [76] and [89].

(8) At the third step of purposive statutory interpretation, the court held that parliamentary intention behind ss 124(4), 124(8)(a)(ii) and 337(1)(i) of the CPC was best promoted by interpreting “offence” in s 337(1)(i) CPC as referring to the amalgamated offence, when the accused faced a s 124(4) CPC amalgamated charge. Therefore, if the court's enhanced sentencing jurisdiction under s 124(8)(a)(ii) CPC exceeded three years' imprisonment, the court was statutorily precluded by s 337(1)(i) from imposing community sentences under Pt XVII of the CPC even if each base offence of the amalgamated charge was punishable with an imprisonment term of three years or less: at [85] and [97].

(9) The word “offence” in s 337(2)(c) CPC had to be interpreted in the same manner as that in s 337(1)(i) CPC. There was nothing to suggest that the position would be otherwise. Under s 337(2)(c), where an offence was punishable with a term of imprisonment exceeding three years but not exceeding seven years, the offence had to be identified in the Criminal Procedure Code (Prescribed Offences for Mandatory Treatment Orders) Regulations 2018 (“Prescribed Offences Regulations”) in order for an MTO to be available. Since an amalgamated offence was distinct in law from its base offences, and the Prescribed Offences Regulations did not include offences amalgamated under s 124(4) of the CPC, amalgamated offences with a maximum imprisonment term exceeding three years but not exceeding seven years, under s 124(8)(a)(ii) CPC, were necessarily precluded from MTOs: at [98].

(10) In this case, the maximum imprisonment term under s 124(8)(a)(ii) CPC in respect of the Amalgamated Cheating Charge was six years. This exceeded the three year threshold in s 337(1)(i) CPC, thus precluding the accused from a community sentence. The accused was also ineligible for an MTO as offences amalgamated under s 124(4) were not prescribed offences for the purposes of s 337(2)(c) CPC: at [99].

The appropriate sentence

(11) Given the court's interpretation of s 337(1)(i) of the CPC, the accused's cross-appeal failed as both an SDO and MTO were unavailable: at [100].

(12) With regard to the sentence for the Amalgamated Cheating Charge, despite the contributory role of the accused's two mental disorders, general and specific deterrence remained the dominant considerations. This was because, inter alia, the offence in the Amalgamated Cheating Charge was premeditated, the accused understood the legal and moral wrongfulness of his actions and the accused offended for personal gain: at [105], [107], [110], [112] and [113].

(13) At least 12 months' imprisonment was justified for the Amalgamated Cheating Charge before the mitigating impact of the accused's mental disorders was considered: at [121] to [125].

(14) From the initial position of 12 months' imprisonment, the court adjusted the custodial sentence for the Amalgamated Cheating Charge downwards by four months to account for the contributory link between the accused's mental disorders and the commission of the offence: at [126].

Case(s) referred to

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

Ang Peng Tiam v Singapore Medical Council [2017] 5 SLR 356 (refd)

Chew Im v PP MA 308/2000/01 (refd)

Chua Whye Woon v PP [2016] SGHC 189 (folld)

Fadilah bte Omar v PP MA 168/1996 (refd)

Gan Chai Bee Anne v PP [2019] 4 SLR 838 (folld)

GCX v PP [2019] 3 SLR 1325 (distd)

Idya Nurhazlyn bte Ahmad Khir v PP [2014] 1 SLR 756 (folld)

Kanagaratnam Nicholas Jens v PP [2019] 5 SLR 887 (folld)

Lim Bee Ngan Karen v PP [2015] 4 SLR 1120 (folld)

Lim Ghim Peow v Public Prosecutor [2014] 4 SLR 1287 (folld)

Mahender Singh Kadian v State of Haryana (28 November 2008, High Court of Punjab and Haryana at Chandigarh) (India) (refd)

Poh Boon Kiat v PP [2014] 4 SLR 892 (folld)

PP v BDB [2018] 1 SLR 127 (refd)

PP v Charan Singh [2013] SGHC 115 (folld)

PP v Cheong Yoke Lin, Christina [2019] SGMC 58 (distd)

PP v Chong Hou En [2015] 3 SLR 222 (folld)

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

PP v Goh Lee Yin [2008] 1 SLR(R) 824; [2008] 1 SLR 824 (distd)

PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 (folld)

PP v Low Ji Qing [2019] 5 SLR 769 (refd)

PP v Siti Nor Anin Binti Tugiman DAC 10126/2006 (refd)

R v A [2015] EWCA Crim 177 (refd)

R v Cunningham (Christopher) [2018] EWCA Crim 2704 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (folld)

Sim Gek Yong v PP [1995] 1 SLR(R) 185; [1995] 1 SLR 537 (folld)

Sim Wen Yi Ernest v PP [2016] 5 SLR 207 (refd)

Stansilas Fabian Kester v PP [2017] 5 SLR 755 (folld)

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

Willie Tan v PP MA 359/93/01 (refd)

Zhao Zhipeng v PP [2008] 4 SLR(R) 879; [2008] 4 SLR 879 (folld)

Facts

At the material time, the accused was a digital...