Public Prosecutor v Norzian bin Bintat

• Jurisdiction: Singapore
• Judgment Date: 29 August 1995
• Date: 29 August 1995
• Docket Number: Magistrate's Appeal No 143/95/01
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Norzian bin Bintat

Defendant

[1995] SGHC 207

Yong Pung How CJ

Magistrate's Appeal No 143/95/01

High Court

Criminal Procedure and Sentencing–Compounding of offences–District judge granted consent to composition despite DPP's objection–Whether discretion to consent to composition properly exercised–Relevant factors in exercise of discretion–Section 199 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Criminal Procedure and Sentencing–Compounding of offences–Public Prosecutor conducted prosecution–Victim agreed to compound offence–DPP objected to composition–Whether compoundable offence could be compounded even though Public Prosecutor objected–Whether s 199 applied to both private and public prosecutions–Section 199 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The respondent was charged with voluntarily causing hurt to one Leow. Leow informed the court that he was willing to compound the offence and the respondent made an offer to Leow, which was accepted. The deputy public prosecutor, who was conducting the prosecution, objected to the composition, but the district judge gave his consent under s 199 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). The Public Prosecutor appealed, arguing that under Art 85 (8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint) (“the Constitution”), only the Attorney-General had the power to discontinue or terminate criminal proceedings and as s 199 of the CPC provided that criminal proceedings could be discontinued by composition of the offence by the aggrieved party it was ultra vires the Constitution unless it was construed so that it applied only to cases of private prosecutions. Alternatively, the Public Prosecutor argued that the district judge had exercised his discretion wrongly in allowing composition.

Held, dismissing the appeal:

(1) Article 35 (8) of the Constitution only applied to the voluntary termination of criminal proceedings by the Attorney-General or Public Prosecutor. Thus if the Public Prosecutor decided not to proceed with a case for any reason, no one could complain about it. Article 93 of the Constitution vested the judicial powers of the State in the courts. The Public Prosecutor's discretion under Art 35 (8) did not extend to the situation where criminal proceedings were terminated as a result of a judicial decision and his discretion could not be used to substitute a judicial decision made by the court with his own views on the matter. In any prosecution, be it private or otherwise, the Public Prosecutor (or Attorney-General) had supervisory powers over its conduct. Therefore the present case did not raise a constitutional point and only involved the interpretation of s 199 of the CPC: at [21], [22], [24] and [25].

(2) Only the person vested with the power to compound was permitted to do so. Unless expressly provided, even the Public Prosecutor had no power to compound. Subject to the consent of the court, where required, the decision whether to compound or not lay with the person aggrieved. Thus a compoundable offence could be compounded by the victim even if the prosecution was mounted by the Public Prosecutor and he objected to the composition: at [32], [33], [35]and [50].

(3) The decision whether to allow composition was a judicial one. Once the criteria laid down in s 199 of the CPC were fulfilled, the court had the power to acquit: at [44] and [46].

(4) In exercising its discretion whether or not to grant consent to composition, the court was not a rubber stamp, but had to act in accordance with the rules of reason and justice and the provisions of the law. In a case where the public interest was involved, it was proper to withhold consent to composition. On the other hand, in the absence of aggravating factors, the courts should lean towards the granting of consent in cases where the public interest did not figure strongly: at [51], [52], [55] and [57].

(5) Applying the principles to this case, this was not a suitable case to refuse consent to compound the offence. The injury suffered was minor and the parties had patched up their differences. Compelling the parties to go through a criminal trial would only serve to open up old wounds and was not conducive to the parties living in peace and harmony. It was not in the public interest to make a mountain out of the proverbial molehill. The district judge exercised his discretion impeccably and there was no basis for disturbing his decision: at [62] and [63].

Aminulla v EmperorAIR 1922 Cal 191 (folld)

Azizur Rahman v EmperorAIR 1926 Cal 590 (folld)

Chang Cheng Hoe, Re [1966] 2 MLJ 252 (folld)

Dajiba Ramji Patil v EmperorAIR 1927 Bom 410 (refd)

Daud bin Kalam v PP [1937] MLJ xl (folld)

Dharichhan Singh v EmperorAIR 1939 Pat 141 (folld)

Elworthy v Bird (1825) 2 Sim & St 479; 57 ER (VC) 429 (refd)

E M Barnett v L N ThakkarAIR (43) 1956 Nag 161 (folld)

Emperor v Alibhai AbdulAIR 1921 Bom 166 (refd)

Emperor v RahmatAIR 1915 All 443 (refd)

Ganatra Vishanji Kuverji v The StateAIR (39) 1952 Kutch 60 (folld)

Khilawansingh Mansingh Dangi,ReAIR 1937 Nag 72 (refd)

Kier v Leeman (1846) 9 QB 371 (refd)

Muneshwara Nand v StateAIR (48) 1961 All 24 (folld)

Ooi Kiah Inn Charles v Kukuh Maju Industries Sdn Bhd (formerly known as Pembinaan Muncul Hebat Sdn Bhd) [1993] 2 MLJ 224 (refd)

Partap Singh v EmperorAIR 1930 Lah 272 (folld)

Partapsingh Bhaironsingh Bhilala v EmperorAIR 1937 Nag 114 (folld)

PP v E T Wright (1924) 5 FMSLR 16 (folld)

Provincial Government, Central Provinces and Berar v Bipin Singh ChoudharyAIR (32) 1945 Nag 104 (folld)

Queen-Empress v Nowab Jan (1884) ILR 10 Cal 551 (folld)

R v Abu Kassim bin Babu [1940] MLJ 243 (folld)

R v Monteiro (1889) 4 Ky 556 (folld)

R v Sultan Mahomed (1884) 2 Ky 116 (folld)

Ramakrishna Padayachi v StateAIR (41) 1954 Mad 131 (refd)

State of Gujarat v SamajAIR (56) 1969 Guj 337 (folld)

Suna Satpathiani v Panchanan PaidhiAIR (48) 1961 Orissa 47 (refd)

Theopillai v PP [1956] MLJ 177 (folld)

Constitution of the Republic of Singapore (1985 Rev Ed,1992 Reprint)Arts 4, 35 (8),93, 162

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 199 (consd);ss 142,145, 180 (f), 184,189, 193,239, 336,348, 349

Criminal Procedure Ordinance1873 (SS Ord No 6 of 1873)s 69 (1)

Penal Code (Cap 224,1985 Rev Ed)s 323

Criminal Procedure Code (FMS)ss 376, 385,386

Muhd Hidhir Majid (Deputy Public Prosecutor) for the appellant

Harpreet Singh Nehal (Drew & Napier) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 This is an appeal by the Public Prosecutor against a decision of the district judge consenting to the composition of an offence under s 199 of the Criminal Procedure Code (Cap 68) (“CPC”).

2 The respondent was charged with one count of voluntarily causing hurt to one Leow Chwee Eng (“the victim”), contrary to s 323 of the Penal Code (Cap 224) (“PC”). This occurred at 8.00pm on 30 January 1994 at the void deck of Block 304 Hougang Ave 5. The victim informed the court that he was prepared to compound the offence on certain terms. The respondent, through his counsel, offered a sum of $500 and an apology to him in court. This was accepted by the victim. The deputy public prosecutor, who was conducting the prosecution, objected to the composition. However, the district judge gave his consent to the composition and the respondent was accordingly acquitted under s 199 of the CPC. The Public Prosecutor appealed.

3 The crux of the Public Prosecutor's argument was that under Art 35 (8) of the Constitution of the Republic of Singapore, only the Attorney-General (who is also the Public Prosecutor by virtue of s 336 of the CPC) has the power to discontinue or terminate criminal proceedings. As s 199 of the CPC also provides that the criminal proceedings may be discontinued by an act of composition of the offence by the aggrieved party, which has the effect of an acquittal of the accused person, thereby resulting in a termination of the proceedings, s 199 isultra vires the Constitution. It was contended that this will be so unless s 199 is construed in accordance with Art 162 of the Constitution. The construction suggested by the Public Prosecutor was that s 199 only applies in cases where the Prosecution is brought about by way of a private prosecution.

4 An alternative submission of the Public Prosecutor was that the district judge did not properly exercise his discretion. This is basically an appeal against the district judge's exercise of his discretion.

5 I shall deal with each submission in turn.

Article 35 (8) of the Constitution

6 The relevant provisions of the Constitution are as follows. Article 4 of the Constitution states:

This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

7 Article 35 (8) states:

The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.

8 Article 162 states:

Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.

9 Reference should also be made to Art 93 of the Constitution. This states:

The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any...