Public Prosecutor v Lee Meow Sim Jenny

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date30 October 1993
Date30 October 1993
Docket NumberCriminal Reference

[1993] SGCA 78

Court of Criminal Appeal

M Karthigesu JA

,

L P Thean JA

and

Lai Kew Chai J

Criminal Reference No 1 of 1993

Public Prosecutor
Plaintiff
and
Lee Meow Sim Jenny
Defendant

Ismail Hamid and P S Raj (Deputy Public Prosecutors) for the Public Prosecutor

Clement G Lopez (Wee Ramayah & Partners) for the respondent.

Jagat Bahadur v State of Madhya Pradesh AIR 1966 SC 945 (folld)

Muthiah Chetti v Emperor [1906] ILR 29 Mad 190 (folld)

R v Inwood (Roland Joseph) (1974) 60 Cr App R 70 (folld)

Sitaram v Emperor [1911] 7 Nag LR 109 (folld)

Wong Kai Chuen Philip v PP [1990] 2 SLR (R) 361; [1990] SLR 1011 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 180 (b), 244, 256 (c), 261, 401 (1) (b) (consd);ss 11 (1), 11 (3), 11 (5), 180, 256, 256 (a), 268 (1), 403 (2) (c)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) ss 15 (2), 19 (a), 60, 60 (1), 60 (4)

Code of Criminal Procedure (India) s 423 (1) (a)

Criminal Procedure and Sentencing–Sentencing–Appeals–Accused convicted and sentenced in Subordinate Court for criminal breach of trust–Public Prosecutor appealing against sentence–Whether High Court has power to enhance sentence beyond limit of power of Subordinate Court which imposed sentence–Whether plea of guilt of mitigating value–Whether compensation order part of “sentence”–Whether compensation order was “punishment” for Penal Code offence–Sections 180 (b), 244, 256 (c), 261 and 401 (1) (b) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Words and Phrases–“Enhance”–Section 256 (c) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

Lee Meow Sim Jenny (“the appellant”) had pleaded guilty to three counts of having committed criminal breaches of trust. She was sentenced by the district judge to two years' imprisonment in respect of two charges and 18 months' imprisonment in respect of the remaining charge with the sentences in the first two charges to run consecutively commencing from 10 February 1993. The sentence in the third charge was to run concurrently with the sentences for the first two charges. No fines were imposed, and a fourth charge was taken into account. On appeal by the Public Prosecutor, the Chief Justice left undisturbed the custodial sentences but enhanced the totality of the sentence by imposing a fine of $200,000, in default of two years' imprisonment, for each of the first two charges. This meant that if the accused did not pay or was unable to pay the fines she would serve a total of eight years' imprisonment. At the instance of the Public Prosecutor, the Chief Justice reserved the following question for the Court of Appeal: “Whether the High Court, in exercising its jurisdiction in an appeal as to sentence, had the power to enhance the sentence beyond the limit of the power of the Subordinate Court which imposed the sentence.”

Held, answering the question in the negative:

(1) The words “manifestly excessive or inadequate” in s 261 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) clearly referred to the sentence of the sentencing court. It was also clear that the High Court, whether exercising its appellate or revisionary powers, acting under s 261 of the CPC, was revising the excessiveness or inadequacy of the sentence passed by the sentencing court. Hence, the excessiveness or the inadequacy was measured against the fullness of the sentence as prescribed by the particular penal provision governed by the limits of the jurisdiction set by ss 11 (3) and 11 (5) of the CPC, depending on which was the sentencing court. Therefore, the High Court had to first consider a judgment of the District Court or Magistrate's Court in the light of s 261 of the CPC before proceeding to s 256 (c) of the CPC to consider whether it ought to reduce or enhance the sentence, or alter the nature of the sentence. In enhancing a sentence, the High Court, having first considered it to be manifestly inadequate in the circumstances of the case, would then proceed to enhance the sentence to what in its view the sentencing court should have passed given its jurisdictional limitations: at [12].

(2) Section 256 (a)of the CPC dealt with an appeal from an order of acquittal and empowered the High Court to find the accused “guilty and pass sentence on him according to law” and that sentence was that which the court trying the offence could have passed in law: at [13] and [14].

(3) The principle underlying the proviso in s 180 (b) of the CPC was that an accused person pleading guilty was entitled to know the maximum punishment that could be meted out to him by that court for that offence. If the court recording the plea of guilty erred by imposing a “manifestly inadequate” sentence “in the circumstances of the case” it would be against all the principles and tenets embodied by statute or otherwise in the criminal justice system, if on appeal to the High Court against sentence, the High Court could impose a sentence greater than that which the court which recorded the plea of guilt could: at [15] and [16].

(4) The appellant had dishonestly misappropriated more than $2m over a period of two years simply through greed and a desire to support an extravagant lifestyle. She had done so systematically and calculatedly. This showed that a high degree of sophistication and planning was involved, and furthermore, the appellant was in a position of trust vis-à-vis her employers. Hence, the appellant's degree of culpability was at the higher end of the scale. Restitution was a token when compared with the vast amount of money embezzled. In the circumstances, a plea of guilt was of little mitigating value: at [21].

(5) The sentence of imprisonment of a total of four years was manifestly inadequate. A term of imprisonment of three years was substituted for each of the first two charges without disturbing the other orders of the learned district judge. A compensation order under s 401 (1) (b)of the CPC was not part of the “sentence” and consequently the High Court had no power under s 256 of the CPC to make such an order. A compensation order was not “punishment” for an offence under the Penal Code: at [26] and [28].

M Karthigesu JA

(delivering the grounds of judgment of the court):

1 The question reserved for the decision of this court was as follows:

Whether the High Court, in exercising its jurisdiction in an appeal as to sentence, has the power to enhance the sentence beyond the limit of the power of the subordinate court which imposed the sentence.

2 We answered the question in the negative and now give our reasons.

3 Lee Meow Sim Jenny (“the accused”) was on 20 March 1993 charged in the District Court with three counts of having committed criminal breaches of trust...

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