Public Prosecutor v Mohammad Rohaizad bin Rosni

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 18 August 1998
• Neutral Citation: [1998] SGHC 278
• Docket Number: Criminal Revision No 3 of 1998
• Date: 18 August 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: May Lucia Mesenas (Deputy Public Prosecutor)
• Citation: [1998] SGHC 278
• Defendant Counsel: Morris Yow Choon Seng and Sandy Foo (David Chong & Co)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Whether disqualification term permissible for offender sentenced to reformative training,Justification for imposing lengthy disqualification terms,ss 379A(1) & 379A (2) Penal Code (Cap 224),Criminal Procedure and Sentencing,Mandatory disqualification under s 379A(2),s 13 Criminal Procedure Code (Cap 68),When disqualification terms commence running,Respondent sentenced to reformative training,Multiple convictions of theft of motor vehicles under s 379A(1) Penal Code (Cap 224),Whether reformative training can substitute for imprisonment, caning and fines,Whether each conviction attracts one disqualification term,Whether multiple disqualification terms run consecutively or concurrently

Judgment:

YONG PUNG HOW CJ

The original criminal revision, which arose on the application of the trial judge in the court below as a result of his omission to impose a mandatory disqualification on the three convictions of the respondent under s 379A of the Penal Code (Cap 224), was scheduled for hearing on 3 March 1998. The respondent had pleaded guilty to the charges in the court below. Before the hearing, I adjourned the revision for further submissions. On 2 April 1998, I heard the revision. During the hearing, counsel for the respondent raised several new matters which the prosecution was unable to address. As a result, I further adjourned the revision for written submissions and replies on those same matters. On 19 May 1998, I heard both the DPP and counsel for the respondent again. I allowed the prosecution`s appeal for criminal revision and imposed a disqualification of seven years on each of the convictions under s 379A which the respondent faced. I now give my reasons. In addition, I deal with the issues raised by counsel for the respondent.

2. The facts

The facts from which this revision arose could not have been simpler. The respondent was a 17 year old male. Sometime in the early morning of 8 September 1997, he was spotted by the owner of a van trying to break into his van. Consequently, the police were alerted and arrested the respondent just as he was about to leave the scene of the crime.

3.After his arrest, the respondent admitted to his crime as well as to stealing three motorcycles on three other previous occasions. On each of these occasion, he used his house key to start the motorcycle and after riding the motorcycle to his destination, he abandoned it.

4.Further investigations by the police then revealed that he had committed several sexual offences with an underaged girl. The prosecution therefore brought a total of six charges against him, one of stealing from the said van under s 379 of the Penal Code, three of stealing motorcycles under s 379A of the Penal Code, and two of having carnal intercourse with a girl under the age of 16 under s 140(1)(i) of the Women`s Charter (Cap 353).

5.The respondent pleaded guilty to all the charges. In addition, 13 other charges under s 379A and two other charges under s 379, read with s 511, of the Penal Code were taken into consideration. He was sentenced to reformative training. However, the trial judge failed to pass the manadatory disqualification order on the respondent required under s 379A(2) of the Penal Code. This led to the present criminal revision under s 268 of the Criminal Procedure Code (Cap 68).

6. The criminal revision

When this revision was originally set for hearing, I had some doubts as to the number of disqualification terms which a court could impose on the respondent, or the length each of these disqualification terms ought to be, especially since the respondent was convicted of three counts of stealing motor vehicles under s 379A of the Penal Code. Both parties to the revision did not provide full submissions on this point. The general impression which I formed, upon a literal reading of s 379A(2), was that each conviction attracted a mandatory term of disqualification, since under s 379A(2), the imposition of a disqualification term for an offence under that section started with the phrase `a person convicted of an offence under this section ` (emphasis added). On this basis, prima facie the respondent was liable to three disqualification terms, one for each of his convictions. As to the length of the disqualification terms, s 379A(2) only provided a general guide that it should be a minimum of three years in the absence of any good reasons.

7.There was also the question of whether the disqualification terms ought to run consecutively or concurrently with each other as, unlike the principles governing sentences under s 18 of the Criminal Procedure Code, no such similar guidance was given within the same Act or other related legislation. I made it very clear in my previous case of PP v Abdul Hameed s/o Abdul Rahman [1997] 3 SLR 186 that, for purposes of s 13 and s 379A of the Criminal Procedure Code applied together, a disqualification order was not a sentence within the Criminal Procedure Code. For those who need any reminder, s 13 was the section governing reformative training. PP v Abdul Hameed s/o Abdul Rahman , if one recalled, was a case where two teenagers were sentenced, one to probation and the other to reformative training, after convictions under s 379A of the Penal Code. The trial judge also disqualified them for a period of five years each. Consequently, concerns were expressed as to the legality of the disqualification orders. As a result, a criminal revision was brought to determine whether it was appropriate to impose disqualification on offenders who had been sentenced to either probation or reformative training.

8.At the hearing, I accepted the prosecution`s admission, in view of s 11 of the Probation of Offenders Act (Cap 252), that the disqualification imposed on the teenager who was sentenced to probation was wrong in law. However, I went on and held that there was nothing incorrect with the disqualification imposed on the teenager who was sentenced to reformative training. I came to the conclusion that a disqualification, although at times referred to as a sentence (at [para ] 14), was not a sentence within the context of s 13 of the Criminal Procedure Code. The part of my judgment which stated this was from [para ] 22 to 24:

22 A more fruitful approach would be to examine the purpose and intent of s 13. That section is triggered whenever an offender is convicted of an offence punishable with imprisonment; in such a situation, reformative training may be imposed in lieu of another sentence. In such a context, while the section is not expressly limited to be in lieu of sentences of imprisonment, as is s 12 CPC (which deals with corrective training and preventive detention), it does indicate that the purpose of reformative training is to take the place of such imprisonment. In character, reformative training is a form of incarceration or deprivation of liberty. It corresponds to imprisonment. The substitution of reformative training for imprisonment is thus understandable for it would otherwise render the offender liable to double punishment of the same type. Whether a fine may be imposed together with reformative training is not in issue in the present case, but this court is, as presently advised, inclined to the view that that is permissible. Section 13 should therefore be read such that reformative training is to be in lieu of imprisonment only. On this purposive approach, the imposition of a disqualification order alongside a sentence of reformative training is correct at law.

23 It may be contended though that, if there is an ambiguity in s 13, the court should not interpret it in a way that is prejudicial to the offender. This contention could perhaps be made by relying on the principle against doubtful penalisation: see s 271, Francis Bennion, Statutory Interpretation (2nd Ed, 1992). On this argument, s 13 should be interpreted in such a way that it causes the least prejudice to the offender by precluding disqualification. This court is of the view that the principle is not an obstacle to the interpretation adopted here. There are two related bases for the principle against doubtful penalisation: the predictability of the law, and that, in the common law world, everything that is not forbidden is permitted. In essence, the hypothetical citizen who knows all the legal rules should be in a position to order his actions without fear that he is unwittingly breaking the law. Here, the purpose of s 13 is manifestly clear. In any event, this court is not convinced that the principle against doubtful penalisation has any application where the court is construing provisions of sanction; by the time such provisions have to be construed, the offence would already have been committed. The hypothetical citizen in ordering his affairs would have been concerned solely with determining whether his actions constitute an offence or not; the punishment that he would be liable for if he was committing an offence would have been irrelevant in his considerations. Those who order their affairs by a process of calculating the punishment that they would be liable for if they were to take a particular course of action do not deserve the sympathy of the courts.

24 For these reasons, I am of the view that a disqualification order is not a sentence for the purposes of s 13, and the court is not precluded from imposing both reformative training and disqualification orders by virtue of the wording of s 13 itself . [Emphasis added.]

9.Returning back to the appeal proper, I therefore directed that both parties submit their arguments on the abovestated issues I set out (see [para ] 6 and 7 above). I also directed that they should submit on the question of when the disqualification order should start to run for the respondent, since there was a suggestion that it ought to run from the date of his conviction, while he was still serving his punishment at reformative training, despite the fact that I had rejected this argument in PP v Abdul Hameed s/o Abdul Rahman .

10.Neither parties disputed my reading of s 379A(2) that each conviction under the section attracted a disqualification term. Section 379A, for convenient reference (and I set out only the relevant parts), reads:

397A (1) Whoever commits theft of a motor vehicle or any component part of a motor vehicle shall be punished with imprisonment for a term of not less than one year and not more than 7 years and shall also be liable to fine.

(2) A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of...