Public Prosecutor v Oh Hu Sung

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 October 2003
• Neutral Citation: [2003] SGHC 248
• Date: 16 October 2003
• Subject Matter: Aggravating circumstances,Judgment,Power of subordinate courts to alter judgments,Sentencing,Meaning of "mistake" in s 217(2) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed),Penal Code (Cap 224, 1985 Rev Ed) s 323,Criminal Procedure and Sentencing,Voluntarily causing hurt,Whether trial judge is functus officio after sentence pronounced
• Docket Number: Criminal Revision No 10 of 2003
• Published date: 28 October 2003
• Defendant Counsel: V N (Heng Leong & Srinivasan) and S Gogula Kannan (Tan Leroy & Kannan)
• Court: High Court (Singapore)
• Plaintiff Counsel: Amarjit Singh (Deputy Public Prosecutor)

1 This was an application for criminal revision at the instance of a district judge. I allowed the application, setting aside his order rejecting the respondent’s plea of guilt and reinstating his earlier order for conviction and sentence. I now give my reasons.

Background

2 The respondent, a Korean national, was originally charged with voluntarily causing grievous hurt under s 325 of the Penal Code (Cap 224) by stepping on and fracturing the wrist of a Bangladeshi national who worked for him. The Notes of Evidence revealed the following. On 19 July 2003, when the s 325 charge was read to the respondent by the Korean interpreter in Court No 26, he pleaded guilty. At this point, the Prosecuting Officer informed the court that he was proceeding on a reduced charge of voluntarily causing hurt under s 323 of the Penal Code. The new charge was then read to the respondent, who pleaded guilty again. He indicated that he was aware of the consequences of his plea. The Prosecuting Officer then read out the statement of facts, which the respondent admitted without qualification. He was subsequently convicted and sentenced to three months’ imprisonment (“the first order”).

3 About two hours later, counsel for the respondent appeared before the district judge while mentions were still being heard and asked for the matter to be re-mentioned. Counsel informed the district judge that he was applying for the plea to be rejected under s 217(2) of the Criminal Procedure Code (Cap 68) (“CPC”), as the respondent had pleaded guilty by mistake.

4 Counsel for the respondent clarified two points before the district judge. First, he contended that the respondent had pleaded guilty by mistake because he had thought that he would only get a fine if he pleaded guilty. Second, counsel explained that the respondent did try to raise objections to some parts of the statement of facts before his case was mentioned. Also, there were now some indications of provocation, contrition and punishment to be considered. The victim had been fully compensated, and the respondent had apologised.

5 The district judge rejected the counsel’s first point, finding that the respondent’s plea of guilt had been valid, unequivocal and voluntary. However, the other facts raised by counsel led the district judge to conclude that the sentence of three months’ imprisonment appeared excessive. The Prosecuting Officer was himself sympathetic to the respondent’s case. Therefore, the district judge rejected the plea of guilt, fixed the matter for mention and fixed bail (“the second order”).

6 After the district judge had completed his cases for the day, he conducted his own research as to the propriety of the second order. He decided that s 217(2) of the CPC had no application on the facts because he had been functus officio after sentence was pronounced. Therefore, on 22 July 2003, the case was re-mentioned, and the district judge informed the parties of his research. Counsel for the respondent disagreed and argued that s 217(2) of the CPC could still apply, and requested for time to prepare submissions on this point. The Prosecuting Officer supported counsel’s application for time.

7 Having considered counsel’s submissions, the district judge remained convinced that he had been functus officio after sentence was pronounced, and therefore had no power to make the second order. Believing that the second order was made in error of law, he brought the present application to the High Court to exercise its revisionary powers pursuant to s 268 of the CPC, to set aside the second order in favour of the original conviction and sentence, or to make any other order which may be just and appropriate in the circumstances.

The issues

8 The issues that I had to deal with in the course of this criminal revision were as follows:

(a) whether the district judge had been functus officio after sentence was pronounced;

(b) whether s 217(2) of the CPC could still apply; and

(c) the appropriate order to make, taking into account all the circumstances of this case.

Principles governing revision

9 The revisionary powers of the High Court are conferred by s 23 of the Supreme Court of Judicature Act (Cap 322) and s 268 of the CPC which states:

The High Court may in any case, the record of proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257.

10 Section 268(1) provides that the High Court, in exercising its powers of revision, can exercise powers similar to those of an appellate court. This includes the power to alter or reverse any order made in the court below: s 256(d).

11 The principles governing the exercise of the High Court’s revisionary powers were laid down in Ang Poh Chuan v PP [1996] 1 SLR 326 at 330:

… various phrases may be used to identify the circumstances which would attract the exercise of the revisionary jurisdiction, but they all share the common denominator that there must be some serious injustice… generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below.

12 There is no doubt that if the district judge had been functus officio after sentence was passed, and s 217(2) of the CPC did not apply, then the second order would clearly be wrong in law, and the appropriate subject of a criminal revision.

Power to alter or review judgments

13 It is established law that generally, a judge is functus officio after sentence is pronounced: Jabar v Public Prosecutor [1995] 1 SLR 617; Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR 560. However, the power of the subordinate courts to alter or review judgments is also regulated by s 217 of the CPC, which states as follows:

(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the judgment.

(2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before the court rises for the day.

14 I first analysed this provision in detail in Chiaw Wai Onn v Public Prosecutor [1997] 3 SLR 445. The accused in this case had been convicted and sentenced to 12 months’ imprisonment by the district court. On appeal, I affirmed his conviction and enhanced his sentence with a fine of $80,000. However, I revoked this order on the same day when I realised that I had exceeded my jurisdictional limit in imposing the $80,000 fine. Instead, I substituted the fine with a further sentence of six months’ imprisonment, bringing the total to 18 months’ imprisonment.

15 The substitution of sentence raised a legal point concerning whether the High Court in its criminal appellate capacity could alter the judgment. In the course of deciding the issue, I considered the interpretation and scope of s 217 of the CPC.

16 After examining the history of the provision and considering various cases, I concluded that s 217(1) laid down a general prohibition against the alteration of judgments by the subordinate courts, while s 217(2) was an excepting proviso that prescribed the limited circumstances in which the subordinate courts could alter or review their judgments.

17 Section 217 of the CPC has remained substantially the same as when it first appeared in the CPC in 1900 as s 266, which read:

No court other than the Supreme Court when it has recorded its judgment shall alter or review the same. Provided that a clerical error may be rectified at any time and that any other mistake may be rectified at any time before the Court rises for the day. [Emphasis added.]

18 Although the words “provided that” were subsequently omitted in the 1920 reprint of the revised edition of the 1910 CPC, I took the view that the change did not in any way affect the role of s 217(2) as a proviso to the general prohibition in s 217(1). I then observed, at paragraph 64:

The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein which but for the proviso would be within it. Such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect: see Duncan v Dixon [1890] 44 Ch D 211; Corp of the City of Toronto v AG for Canada [1946] AC 32 and Mullins v Treasurer of the County of Surrey [1880] 5 QBD 170.

19 I subsequently applied this construction of s 217 in Virgie Rizza V Leong v Public Prosecutor, CR 2/1998, MA 264/1997, HC, an unreported judgment dated 15 April 1998. Here, the accused was charged with overstaying in Singapore after the expiry of her visit pass, an offence under s 15(1) of the Immigration Act (Cap 133). She pleaded guilty after the charge was read and explained to her in Tagalog and she was told of the nature and consequences of the plea. She admitted to the statement of facts without qualification, and was convicted and sentenced to five months’ imprisonment and a fine of $3,000. However, on the afternoon of the same day, her lawyer asked the district judge to allow her to retract her plea of guilt, as she had pleaded guilty while ignorant of a possible defence, and also as a result of threats by immigration officers while in custody. The district judge held that he had been functus officio unless s 217(2) of the CPC applied. I endorsed his reasoning, noting at paragraph 10:

A trial judge has a discretion to allow an accused to retract a plea of guilt, which must be exercised judicially and for valid reasons: Ganesun s/o Kannan v PP [1996] 3 SLR 560 at p 563. But this discretion only exists as long as the court is not functus officio, and the court is functus officio after sentence is passed: Ganesun (supra). Accordingly, the district judge was correct in stating that he had no power to alter the conviction and sentence unless s 217 of...