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 |
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
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
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 observationsIt 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
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
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 inPeriasamy ([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 whilePeriasamy was decidedafter 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
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