Public Prosecutor v Boon Kiah Kin

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 22 May 1993
• Neutral Citation: [1993] SGHC 114
• Citation: [1993] SGHC 114
• Date: 22 May 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Wong Keen Onn (DPP)
• Docket Number: Magistrate's Appeal No 123/92/01
• Defendant Counsel: John Abraham (John Abraham)
• Court: High Court (Singapore)
• Year: 1993

On 8 November 1990 at about 10.05pm, officers of the Anti-Vice Enforcement Unit raided 9A Tyrwhitt Road and detained five Thai women who had been providing sexual services in those premises. One of them was then entertaining a client. One Chua Huat Thong (`Chua`), PW1, had told them the terms of their service; he assigned them to clients and collected payments from the clients.

However the respondent was shown to be the leading culprit. He had secured the premises and recruited Chua to assist him in managing it as a brothel. Although Chua received payments from the clients, he handed the daily proceeds to the respondent. The respondent would then pay Chua and others who had assisted in managing the brothel and would give Chua money to pay the women.

On 9 April 1992 the respondent was convicted in the district court upon:

one charge of managing a brothel between 25 October 1990 and 8 November 1990 under s 148(1) read with s 148(5) of the Women`s Charter (Cap 353);

five charges of knowingly living in part on the earnings of the prostitution of five women between 25 October 1990 and 8 November 1990 under s 146(1) of the Women`s Charter.

On each charge the respondent was fined $3,000 with a default imprisonment term of three months. This amounted to a total fine of $18,000 and a total default term of 18 months` imprisonment. The prosecution appealed against the sentences and asked that they be enhanced. I allowed the appeal and now give reasons for my decision.

The respondent`s antecedents

When the respondent came to be sentenced on 9 April 1992, it emerged that he had also previously been convicted on 4 January 1991 on the following charges under the Women`s Charter:

one charge of managing a place of assignation at some time before 11 October 1990, an offence under s 147(1) of the Women`s Charter, for which he had been fined $1,500; and

six charges under s 146(1) of the Women`s Charter, of living in part on the immoral earnings of a prostitute at some time before 11 October 1990 (with seven other similar offences being taken into consideration), for which he had been fined $2,000 on each charge.

The sentence in the present case

In deciding upon sentence on 9 April 1992 the district judge considered whether the previous convictions sustained on 4 January 1991 for the offences committed before 11 October 1990 could be considered `previous convictions` for the purposes of sentencing the respondent in the present case.

He decided that a `previous conviction` meant that:

the first offence must be committed before the second offence;

the conviction for the first offence must be sustained before the conviction for the second offence; and

the conviction for the first offence must be sustained before the commission of the second offence.

Accordingly he held that the convictions sustained on 4 January 1991, after the present offences were committed between 25 October 1990 and 8 November 1990, could not be previous convictions for the purposes of enhancing sentence because condition (c) had not been satisfied.

The district judge decided that the earlier offence under s 147(1) of managing a place of assignation did not make the offence of managing a brothel a second or subsequent conviction for the purposes of s 148(5). In respect of the five offences under s 146(1), of knowingly living in part on the earnings of prostitution, the district judge referred to s 146(2) and held that as he had only imposed a fine and not a term of imprisonment for these offences, the additional liability to caning under s 146(2) did not arise.

Previous convictions

The main issue before me was whether the convictions of 4 January 1991 could be taken into account in sentencing the respondent for the present offences which were committed before that date.

It is convenient first to turn attention to statutes which prescribe different grades of punishment for second or subsequent offences under the same statutory provision. In the present case, the Women`s Charter does in fact contain such provisions. I turn first to the offence of managing a brothel under s 148(1). Section 148(5), which provides for penalties upon conviction of offences under s 148, reads

Any person who is guilty of an offence under this section shall be liable on conviction to a fine not exceeding $3,000 or to imprisonment for a term not exceeding 3 years or to both; and on a second or subsequent conviction shall be liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 5 years or both. [emphasis added.]

The first implication of this form of drafting is that a `second or subsequent conviction` in this context ought to be construed to mean a second or subsequent conviction of an offence under that section. None of the convictions sustained on 4 January 1991 concerned s 148(1). Accordingly in my judgment the district judge was quite correct to sentence the respondent on 9 April 1992 for the offence under s 148(1) on the footing that he had acted contrary to s 148 for the first time. The prior offence under s 147(1) of managing a place of assignation could not make the offence under s 148(1) a `second or subsequent conviction` for the purposes of s 148(5).

I now turn to the offences of knowingly living in part on the earnings of prostitution. Section 146(2) of the Women`s Charter provides:

Any male person who is convicted of a second or subsequent offence under this section shall in addition to any term of imprisonment imposed in respect of such offence be liable to caning.

The question was whether the five charges under s 146(1) that were before the court on 9 April 1992 constituted second or subsequent convictions for the purposes of s 146(2), by virtue of the earlier offences under s 146(1) for which the respondent had been convicted on 4 January 1991. It was because of these charges that I had to consider whether the words `second and subsequent` offence` in this subsection require the second offence to have been committed only after the conviction for the first has been sustained.

The prosecution contended that the district judge erred in his treatment of the term `previous convictions`, and that a sentencer may take into account any convictions for offences committed prior to the commission of the offence before the court, regardless of whether those earlier convictions were sustained before or after the commission of the offence before the court.

Therefore for present purposes the only antecedents under consideration are those offences which an accused has already committed and been convicted of by the time he is sentenced for the offence before the court. The question is whether, and if so how, the sentencer may take into account all these earlier offences or only a narrower category of them, consisting of those earlier offences of which the offender had been convicted before he committed the offence for which he is being sentenced.

The learned district judge in deciding in favour of the narrower category, expressed the following view:

The practice of these courts is that for a conviction to be a `previous conviction` the commission and conviction of that offence should precede the commission of the second offence for which the accused is to be sentenced. The rationale for this requirement is clear. The accused must have been dealt with by a court previously for an offence. Having been dealt with he was not deterred and had committed a second offence. In such circumstances, the accused would face an enhanced sentence for the second offence because of his previous conviction, especially if both offences are similar.

In short, he regarded an offender`s persistence in breaking the law as the primary basis for a...