Public Prosecutor v Lam Leng Hung and others

• Court: Court of Appeal (Singapore)
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 01 February 2018
• Neutral Citation: [2018] SGCA 7
• Citation: [2018] SGCA 7
• Published date: 12 May 2018
• Plaintiff Counsel: Hri Kumar Nair SC, Christopher Ong, Zhuo Wenzhao, Tan Zhongshan and Germaine Boey (Attorney-General's Chambers)
• Defendant Counsel: Seah Zhen Wei Paul and Liang Hanwen Calvin (Tan Kok Quan Partnership),Edwin Tong Chun Fai SC, Aaron Lee Teck Chye, Jason Chan Tai Hui, Lee Bik Wei, Peh Aik Hin, Kelvin Kek, Lee May Ling and Jasmine Tham (Allen & Gledhill LLP),Fourth respondent in person,N Sreenivasan SC (Straits Law Practice LLC), Chelva Retnam Rajah SC and Megan Chia (Tan Rajah & Cheah),Andre Maniam SC and Pereira Russell Si-Hao (WongPartnership LLP),Kenneth Tan SC (Kenneth Tan Partnership) (instructed) and Nicholas Jeyaraj s/o Narayanan (Nicholas & Tan Partnership LLP)
• Docket Number: Criminal Reference No 1 of 2017
• Hearing Date: 01 August 2017
• Date: 01 February 2018
• Subject Matter: Criminal Procedure and Sentencing -Criminal References,Statutory Interpretation -Construction of Statute

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

At the heart of the present proceedings is a tension that does not often arise but that inevitably generates considerable divisiveness when it surfaces. On one side of the divide is the impulse to see crime punished to the full extent of the harm that it causes and in accordance with the perceived culpability of its perpetrators. On the other end is the constitutional imperative that the court’s power to do justice does not include legislative power; in other words, the court cannot impermissibly add to or take away from statutory language because its law-making power does not extend to the statutory domain. In the overwhelming majority of disputes before the court, the tension simply does not arise because statute is reconsidered and revised to keep the criminal law and its penalties in line with modern conceptions and standards of right and wrong. But where a governing statutory provision fails to evolve with the times and becomes unable to effectively regulate its appointed area of socio-economic activity, the impulse to augment the statutory provision in a manner that will give effect to contemporary models of justice – or simply to do what the court perceives to be justice in the particular case before it – may become urgent and overwhelming. In such cases, the impulse strains against the borders of the judicial function. However, the court cannot give way to this impulse and must remain guided by statutory language and legislative purpose in determining the result in the case before it.

We begin by introducing the application before us. The present application by the Public Prosecutor is yet another in a series of proceedings concerning members of the City Harvest Church (“CHC”). At its heart, this application concerns a discrete point of law that centres on the interpretation of s 409 of the Penal Code (Cap 224, 2008 Rev Ed) (“s 409”). The provision provides for the enhanced punishment of any person who commits the offence of criminal breach of trust (“CBT”) in respect of property entrusted to him “in his capacity of a public servant, or in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent”. In full, it reads as follows:

Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant, or in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 20 years, and shall also be liable to fine. [emphasis added in italics, bold italics and underlined bold italics]

The provision just quoted is deceptively simple. As we will explain, its apparent simplicity belies the difficulty of the interpretive exercise required to determine its meaning. The present application raises a myriad of complex and closely related issues. As alluded to earlier, this includes the fundamental and overarching issue as to where the line is to be drawn between judicial interpretation on the one hand and legislative action on the other. As we shall also see, this is a case in which careful attention must be paid to historical analysis – in terms of the legislative history of CBT as a statutory offence and the socio-economic concerns that led to its promulgation – all the more so because s 409 was first enacted as part of the Indian Penal Code (Act 45 of 1860) (“the Indian Penal Code”) more than a century and a half ago and has, for all intents and purposes, remained in its original form until the present day. Indeed, both of the aforementioned issues are inextricably connected with each other given that the historical materials will serve either to clarify or to confirm the meaning of s 409, pursuant to s 9A(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”).

Given the signal importance of the issues just mentioned, perhaps a few preliminary observations might be apposite – if nothing else than to ensure that the legal lenses through which s 409 is analysed are first cleared of any grit or fogginess that might otherwise lead to a distorted analysis of the provision itself.

Some preliminary observations

It is axiomatic that legal analysis in general and statutory interpretation in particular must be approached in an objective manner. This may appear to be an obvious point but it is of special significance in the context of the present case. Let us elaborate.

As already mentioned, s 409 was enacted more than a century and a half ago. It is accordingly a statutory provision of considerable vintage and, for this reason, may bear less relevance to present times than it did to the past. This is an issue that we will examine subsequently. For present purposes, we focus on the notion or proposal that it might be possible to adopt a “purposive approach” to statutory interpretation in order to take into account the changes (even sea changes) that have taken place since it was enacted, and thereby “modernise” the provision by robust “interpretive” means. In our view, this would be a misuse of statutory interpretation at best and potentially exceed the proper remit of the court at worst. It is essential to state at the outset that there are limits to the purposive interpretation of statutes, as the Singapore High Court described in unequivocal terms in Nation Fittings (M) Sdn Bhd v Oystertec plc and another suit [2006] 1 SLR(R) 712 at [27]:

I pause at this juncture to note that a literal reading of the (indeed, any) statutory text could lead to a dry, brittle literalness that does no justice to the enterprise of the law in general and the text concerned in particular. On the contrary, the favoured approach nowadays (and rightly so, in my view) is a purposive approach that is exemplified not only by the case law but also by s 9A(1) of the Interpretation Act itself (Cap 1, 1999 Rev Ed). Indeed, a purposive approach towards the statutory text does not ignore the literal meaning of the text by any means but, rather, complements it by ensuring that the purpose and intent of the statutory text itself is achieved and that any strained and, a fortiori, absurd result is avoided. I should reiterate that the court’s interpretation should be consistent with, and should not either add to or take away from, or stretch unreasonably, the literal language of the statutory provision concerned. In other words, the literal statutory language constitutes the broad framework within which the purpose and intent of the provision concerned is achieved. It is imperative, to underscore the point just made, that this framework is not distorted as the ends do not justify the means. Where, for example, it is crystal clear that the statutory language utilised does not capture the true intention and meaning of the provision concerned, any reform cannot come from “legal gymnastics” on the part of the court but, rather, must come from the Legislature itself. [emphasis added in italics, bold italics and underlined bold italics]

In our judgment, when considering the issues in this case it is critical to bear in mind the observations set out in the passage just quoted. The reason is that, as the majority in the High Court below acknowledged, it is unsatisfactory that directors of companies and officers of charities and societies who commit CBT are not liable for a level of punishment that exceeds that for clerks, servants, carriers, wharfingers or warehouse-keepers. In our view, if the majority is correct in its interpretation of s 409, there would be a lacuna or gap in the law in so far as the punishment of directors of companies and officers of charities and societies who commit CBT is concerned – although it should be noted that there is no lacuna in so far as conviction is concerned, given that such offenders would still be criminally liable for CBT simpliciter punishable under s 406 of the Penal Code. In the words of the majority (Public Prosecutor v Lam Leng Hung and other appeals [2017] 4 SLR 474 (“the MA Judgment”) (at [112]):

We agree with the Prosecution that directors, who occupy positions of great power, trust and responsibility, are more culpable than employees when they commit CBT offences against their companies or organisations. To that extent, we agree that it is intuitively unsatisfactory that a director would only be liable for CBT simpliciter under s 406 of the Penal Code while a clerk, servant, carrier or warehouse keeper would be liable for an aggravated offence under either ss 407 or 408 of the Penal Code. This does not, however, mean that we can ignore the wording of the section. Like the Malaysian Court of Appeal in Periasamy ([93] supra), we are of the view that adopting the interpretation put forward by the Prosecution may be “tantamount to rewriting the section by means of an unauthori[s]ed legislative act” (at 575A). Such a task should be more properly left to Parliament. For instance, we note that the relevant expression of the equivalent provision in the Malaysian Penal Code was amended in 1993 to read “in his capacity of a public servant or an agent”. We further note for completeness that while Periasamy was decided after the amendment was made, the amended provision had no application to the appeals as the offences were committed before the amendment came into force. [emphasis in original]

However, the issue that then arises is which institution (ie, the court or Parliament) should fill this lacuna or gap. The view of the majority of the High Court was, in effect, that it had reached the limits of judicial interpretation and that it could therefore not fill the lacuna or gap without becoming a “mini-legislature” – hence, their view was that the “task should be more properly left to Parliament” (see the extract...