Public Prosecutor v Nyu Tiong Lam and Others

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 November 1995
• Neutral Citation: [1995] SGHC 272
• Docket Number: Criminal Revision No 16 of 1995
• Date: 14 November 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Eugene Lee Yee Leng (Deputy Public Prosecutor)
• Citation: [1995] SGHC 272
• Defendant Counsel: Respondents in person
• Court: High Court (Singapore)
• Subject Matter: Previous convictions,ss 7(3) & 11(5) Criminal Procedure Code (Cap 68),Whether district judge hearing case sat in a magistrate's court or district court,Revision of proceedings,Sentencing,Nature of jurisdiction evoked,Magistrates’ courts,Classification of case,Whether sentencing powers limited to that of magistrate,Courts and Jurisdiction,s 268 Criminal Procedure Code (Cap 68),Criminal Procedure and Sentencing,Deterrent custodial sentences imposed in exercise of High Court's revisionary powers,Classification of case as 'Magistrate Arrest Case'

Background

This was an application for criminal revision at the instance of a district judge. The five respondents pleaded guilty before the district judge on 11 September 1995 to a joint charge under s 143 of the Penal Code (Cap 224) which averred that they were members of an unlawful assembly on 20 March 1992, whose common object was to commit an offence of illegal gaming contrary to s 7 of the Common Gaming Houses Act (Cap 49). The district judge imposed the following fines on the respondents:

(1) Nyu Tiong Lam (B7) - $3,000 fine, in default nine weeks` imprisonment.

(2) Poh Ah Liang (B16) - $5,000 fine, in default 15 weeks` imprisonment.

(3) Tan Gee Luan (B18) - $4,000 fine, in default 12 weeks` imprisonment.

(4) Goh Ah Moy (B22) - $3,000 fine, in default nine weeks` imprisonment.

(5) Toh Chiaw (B26) - $3,000 fine, in default nine weeks` imprisonment.

On 15 September 1995, the district judge applied to the High Court to exercise its powers of revision pursuant to s 268 Criminal Procedure Code (Cap 68) (CPC). The respondents had been charged under s 143 Penal Code, which carries a maximum punishment of six months` imprisonment, or fine, or both. The charge had been classified by the prosecution as a `Magistrate Arrest Case` (MAC). The district judge stated that he had erred in imposing fines which exceeded the sentencing jurisdiction of a magistrate`s court, as contained in s 11(5) CPC. He prayed that the High Court would set aside the sentences imposed and substitute appropriate sentences.

The issue stated by the DPP in his skeletal arguments was whether a district judge who hears a case classified as an `MAC` is empowered to impose a sentence which exceeds the jurisdiction of a magistrate. Section 11(5) CPC specifies that the magistrate`s court may impose a fine not exceeding $2,000. The DPP submitted that the prosecution would support the district judge`s application for revision. He referred to s 7(3) CPC, which states:

(3) Every district court shall have in the exercise of its jurisdiction all the powers which belong to and are exercised by a magistrate`s court.

Every person appointed as a district judge is ex officio a magistrate (see s 9(5), Subordinate Courts Act (Cap 321)). There is, therefore, no need to specifically appoint and gazette him as a magistrate as well. In any event, in many cases, a district judge may have already been previously gazetted as a magistrate. To my knowledge, this was precisely the case of the district judge who dealt with the case below. His district court had in the exercise of its jurisdiction all the powers which belong to and are exercised by a magistrate`s court.

I was of the opinion that the real question was whether the district judge was sitting in a district court or in a magistrate`s court. It appears that there are no directly relevant authorities. Two cases were cited by the DPP in support of his submissions. I did not find them particularly helpful. PP v Tengku Hitam [1962] MLJ 414 states the following unexceptional proposition: the prosecution should decide whether a case should be tried in a magistrate`s court or a sessions court, bearing in mind the limits of each court`s sentencing jurisdiction. Either way, the court is constrained by the maximum punishment prescribed by law in respect of the offence in question. PP v Thui Kuan Wing [1963] MLJ 368 does provide some oblique support for the view that a district judge who sits as a magistrate should limit the exercise of his powers to those of a magistrate. In that sense, he cannot sit in his `dual capacity`.

The DPP suggested that the district judge was sitting in a district court, but was compelled to exercise the powers of a magistrate, on account of the fact that the case had been classified as an `MAC`. In my view, the matter fell to be determined largely on the application of first principles. In this connection, it was necessary to consider some aspects of the administrative practices adopted by the prosecution and the subordinate courts.

The discretion to classify offences

To my understanding, as confirmed by the DPP, the discretion to classify offences for the purpose of prosecution is exercised by the DPP`s office, and by the police. In the first instance, when an offender is arrested on grounds of having committed an offence, the police, who bear the responsibility for preparing the charge, will classify the offence according to whether it falls within the jurisdiction of the magistrate`s court or the district court. This will be done with reference to the relevant jurisdiction provisions in the CPC, ie ss 7 to 10 and Sch A. I would assume that, if necessary, the question of the appropriate classification of the offence will be referred to the DPP for directions.

Classification and the extent of the magistrate`s `ordinary` or `special` jurisdiction

The `ordinary` hearing jurisdiction of a magistrate`s court is set out in s 8 CPC. In addition, there may be what I shall term the `special` jurisdiction conferred by s 9 CPC. Thus, an offence which attracts a maximum punishment exceeding the ordinary hearing (and, a fortiori, sentencing) jurisdiction of a magistrate may still be triable by a magistrate`s court, by virtue of col 8 of Sch A to the CPC. I have identified 23 such `either way` Penal Code offences which are specifically triable by a magistrate`s court (and, of course, a district court) in col 8. In addition, s 10 CPC enables the Public Prosecutor to authorize a magistrate`s court to try offences not otherwise within its jurisdiction (under s 9). The decision as to the appropriate `classification` is obviously a matter of policy, by which the exercise of prosecutorial discretion is guided.

Classification and the nature of the jurisdiction invoked

i No `underclassification`

In the present case, the offence in question was one of unlawful assembly, falling under s 143 of the Penal Code (Cap 68). Thus, there was actually no question of `underclassifying` an `either way` offence. It was in fact a matter which was properly classifiable as an `MAC` offence.

The case was fixed for hearing before the district judge, in subordinate court number 8, which, according to the DPP, is normally used as a district court. Whatever the implications of such an arrangement, the district...