Public Prosecutor v Hang Tuah bin Jumaat

• Jurisdiction: Singapore
• Judgment Date: 18 February 2016
• Date: 18 February 2016
• Docket Number: Magistrate’s Appeal No 89 of 2015
• Court: High Court (Singapore)

Public Prosecutor

and

Hang Tuah bin Jumaat

[2016] SGHC 20

Chao Hick Tin JA

Magistrate’s Appeal No 89 of 2015

High Court

Criminal Procedure and Sentencing — Sentencing — Date of commencement — Further term of imprisonment imposed on offender already serving first term — Whether date of commencement of further term to begin immediately or at expiry of first term — Applicable principles — Section 322(1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The respondent (“the Respondent”) was convicted n the court below on one charge of sexual penetration of a minor. On conviction, he pleaded guilty to five other charges, four relating to driving without a valid licence and one for the possession of obscene videos. He was sentenced to a total of four years 11 months’ imprisonment. At the time of sentencing below, the Respondent was in the midst of serving an imprisonment term of 12 years for two previousconvictions of rape (involving a different victim) and of drivingwithout a valid driving licence. Pursuant to s 322 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the district judge had the discretion to order that the further sentence of four years 11 months commence either immediately or at the expiry of the 12-year term. The district judge preferred the former option. The Prosecution appealed on the basis that the district judge had effectively subsumed the further term of imprisonment within the 12-year term, thusrendering the further term nugatory. The Prosecution submitted that the district judge should have ordered the further term of imprisonment to commence only after the expiry of the 12-year term, resulting in a total imprisonment term of 16 years and 11 months.

Held, allowing the appeal:

(1) Section 322(1) of the CPC was formerly s 234(1) of the 1985 edition of the CPC (Cap 68, 1985 Rev Ed). As the two provisions were almost identical, the principles enunciated by the courts in past cases in relation to s 234(1) remained relevant and applicable for s 322(1). First, the discretion conferred under s 322(1) had undoubtedly to be exercised judiciously. Second, the court was not entitled to backdate the sentence of any offender who was an escaped convict or was undergoing a sentence of imprisonment. Third, in exercising its discretion under s 322(1), the court should have regard to whether the subsequent offence(s) arose in the “same transaction” as the earlier offence(s), and also the totality of the sentence to be served. Fourth, the court ultimately had the primary duty to determine the appropriate sentence which would best ensure that the ends of justice were met. No single consideration could conclusively determine

the proper sentence and, in seeking to arrive at the proper sentence, the court had to balance many factors, sometimes rejecting some. One factor that the court should consider was whether the totality of the sentence served was proportionate to the inherent gravity of all the offences committed by the accused: at [24] to [33].

(2) In contemplating the totality of the sentences imposed on the accused, the trial judge should consider whether he would still have passed a sentence of similar length if all the offences had been before him. If not, the judge should adjust the sentence imposed for the latest offence in light of the aggregate sentence. Whether this was done by imposing a shorter sentence to run consecutively or a long sentence to commence immediately did not at the end of the day make much difference although, in principle, the judge should, as far as possible, try to impose a sentence that was reflective of the gravity of the latest offence(s) in question: at [34].

(3) The approach adopted by the district judge was wrong as it effectively rendered the sentences imposed in respect of the offences he had to deal with nugatory. The fact that the subsequent offence(s) arose in different transactions was a weighty consideration that warranted the imposition of the subsequent term of imprisonment to start at the expiration of the earlier term of imprisonment. Nevertheless, it still had to be ensured that the overall sentence meted out was proportionate and not crushing. At the time of sentencing the Respondent to the 12-year imprisonment term, it was originally proposed that the offences (in respect of which the term of four years and 11 months was subsequently imposed) were to be taken into account for the purposes of sentencing. If that proposal had been accepted by the Respondent, the court which imposed the 12 years’ imprisonment term would probably have just marginally enhanced the aggregate sentence imposed. Whatever might have been the reason for the Respondent to refuse the proposal, it was apparent that the overall sentence sought by the Prosecution of 16 years and 11 months’ imprisonment was excessive and that an aggregate sentence of 14 years’ imprisonment was appropriate. In these premises, the overall imprisonment sentence imposed on the Respondent by the district judge was reduced from that of four years 11 months to that of two years. The Respondent was ordered to serve his two years’ imprisonment after he had completed his 12-year term of imprisonment: at [46] and [47].

[Observation: Section 322(3) should be viewed as no more than a clarifying provision which made it clear that, even though the court could, in an appropriate case, exercise its discretion under s 322(1) to order the later sentence to begin immediately, the fact that that sentence in effect ran concurrently with the current sentence that the offender was serving did not excuse the offender from liability for the later offence: at [44].]

Abdul Nasir bin Amer Hamsah v PP [1997] 2 SLR(R) 842; [1997] 3 SLR 643 (refd)

Chua Chuan Heng Allan v PP [2003] 2 SLR(R) 409; [2003] 2 SLR 409 (refd)

Mohd Akhtar Hussain v Assistant Collector of Customs (1988) 4 SCC 183; 1988 SC 2143 (refd)

Nicholas Kenneth v PP [2003] 1 SLR(R) 80; [2003] 1 SLR 80 (refd)

PP v Goh Hum Boon [2013] SGDC 354 (refd)

PP v Hang Tuah bin Jumaat [2013] SGHC 28 (refd)

PP v Hang Tuah bin Jumaat [2015] SGDC 163 (refd)

R v Darren Lee Watts [2000] 1 Cr App R (S) 460 (refd)

R v Gerald Hugh Millen (1980) 2 Cr App R (S) 357 (refd)

Teo Kian Leong v PP [2002] 1 SLR(R) 386; [2002] 2 SLR 119 (refd)

Tham Wing Fai Peter v PP [1989] 1 SLR(R) 400; [1989] SLR 448 (refd)

Legislation referred to

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 234(1)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 322(1), 322(3) (consd);

ss 390(1)(c), 390(2)

Films Act (Cap 107, 1998 Rev Ed) s 30(2)(a)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) Penal Code (Cap 224, 1985 Rev Ed) s 406

Penal Code (Cap 224, 2008 Rev Ed) ss 375(1)(b), 375(2), 376A(1)(a), 376A(2) Road Traffic Act (Cap 276, 2004 Rev Ed) ss 35(1), 35(3), 131(2)

Undesirable Publications Act (Cap 338, 1998 Rev Ed)

Kavita Uthrapathy and Sheryl Janet George (Attorney-General’s Chambers) for the appellant;

Respondent in person.

Chao Hick Tin JA:

Introduction

1 The present magistrate’s appeal was brought by the Prosecution against the decision of a district judge imposing a further term of four years and 11 months’ imprisonment on the respondent, Hang Tuah bin Jumaat (“the Respondent”), who was still serving a 12-year term of imprisonment, to commence immediately on the date of his sentence pursuant to s 322 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). Section 322 confers on the court the discretion, in cases such as this where a person undergoing a sentence of imprisonment is sentenced to a further term of imprisonment, to order the further sentence of imprisonment to commence either immediately or at the expiration of the imprisonment term to which he was previously sentenced. By preferring the former commencement date in this case, the district judge in the court below effectively subsumed the further term of imprisonment within the 12–year term that had been imposed earlier. The Prosecution submitted on appeal that this was wrong in law as it essentially rendered the further term of imprisonment nugatory. The Prosecution’s position was that the further

term of imprisonment should have been ordered to commence only after the Respondent had completely served his then imprisonment term, which would have resulted in a total imprisonment term of 16 years and

11 months.

2 I heard the Prosecution’s appeal on 11 November 2015 and allowed it, but I declined to enhance the overall sentence imposed on the Respondent to 16 years and 11 months as that would, in my view, be a crushing sentence. Therefore, although I ordered the further term of imprisonment to start at the end of the existing 12-year imprisonment sentence, I reduced it from four years and 11 months to two years. These grounds set out my reasons for doing so, and the approach I took in reaching that result.

Background facts

O ffences for which12-year imprisonment term was imposed

3 When the present case came before the district judge below, the

Respondent was already in the midst of serving an imprisonment term of

12 years (in addition to 12 strokes of the cane). This constituted a global sentence that had earlier been imposed by the High Court on the Respondent in respect of two previous convictions — one was for an offence of rape under s 375(1)(b) and punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed), and the other was for an offence of driving a lorry without a valid Class 4 driving licence under s 35(3) and punishable under s 131(2) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) (see PP v Hang Tuah bin Jumaat [2013] SGHC 28 (“Hang Tuah 1”)). The charges in respect of these two offences read as follows:

That you, Hang Tuah bin Jumaat

First Charge

sometime between 6 pm on the 21st day of April 2010 and 12 am on the 22nd day of April 2010 in motor lorry bearing registration number YL 4802S, parked along a road near Kranji Camp, Singapore, did penetrate with your penis the...