Public Prosecutor v Pereira Arthur

• Jurisdiction: Singapore
• Judge: Chay Yuen Fatt
• Judgment Date: 09 October 2012
• Neutral Citation: [2012] SGDC 399
• Court: District Court (Singapore)
• Docket Number: District Arrest Case 31893 of 2011
• Year: 2012
• Published date: 11 October 2012
• Hearing Date: 27 August 2012,27 September 2012,29 June 2012
• Plaintiff Counsel: DPP Gregory Gan
• Defendant Counsel: Mr S K Kumar (S K Kumar & Associates)
• Citation: [2012] SGDC 399

District Judge Chay Yuen Fatt: Charge and sentence

The accused was represented by counsel, Mr S K Kumar, when he pleaded guilty on 29 June 2012 to a single charge of consumption of a specified drug (morphine) under s 8(b) of the Misuse of Drugs Act (Cap 185)(“MDA”). It was a long-term (‘LT-2’) offence which was punishable under s 33A(2) of the MDA with a mandatory minimum sentence of 7 years’ imprisonment and 6 strokes of the cane. The accused was liable for an LT-2 offence because he already has a previous conviction on 26 December 2006 for an LT-1 offence which was punishable under s 33A(1) of the MDA. At the request of counsel, the mitigation and sentence was adjourned to another date for reasons which are set out below.

On the adjourned date of 27 September 2012, counsel made an application for the accused to retract his guilty plea. After hearing brief oral submission from both parties, I rejected the application and sentenced the accused to 7 years’ imprisonment. It was the minimum prescribed imprisonment sentence under the law. The sentence was further ordered to take effect from 10 August 2011, the day he was first charged in court. No caning was imposed because the accused was already 50 years old.

Appeal

The accused then filed an appeal in prison on 3 October 2012 against his sentence. Since the sentence was already the absolute minimum that the court could have imposed and therefore the accused could not possibly hope to receive a lower sentence, I gather that the accused is appealing not against the sentence but the fact that I had rejected his application to retract his plea of guilt. If so, the accused should rightly have filed an application for a criminal revision and not an appeal against sentence. Be that as it may, I will nevertheless give my reasons for not allowing the accused to retract his original plea. In order to do that, I need to first set out the history of this case.

History

The accused was first charged in the mentions court on 10 August 2011. He was then unrepresented. The matter was adjourned for the prosecution to complete its investigations. The prosecution was ready by 7 September 2011 but the accused requested for an adjournment to apply for criminal legal aid representation. The accused first indicated to the court on 28 September 2011 that he was going to plead guilty. Pending the outcome of his application for legal aid, the case was fixed for a pre-trial conference. His application for legal aid was eventually turned down and he then engaged Mr Kumar as counsel. Counsel made his first appearance at the first pre-trial conference (PTC) in Court 17 on 10 January 2012.

At the said PTC, counsel informed the court that the accused was not disputing that he had consumed the prescribed drug. By then however, counsel had already applied to refer a constitutional question to the High Court on the validity of LT charges in another case in Special Case No. 1 of 2012 (Mohammad Faizal bin Sabtu v PP). As a result, the accused’s and all other LT cases in the Subordinate Courts were adjourned and held back pending the determination of the constitutional question in the High Court.

On 8 May 2012, the Honourable the Chief Justice ruled that LT charges were constitutionally valid (see Mohammad Faizal bin Sabtu v PP [2012] SGHC 163 and a related case, Amazi bin Hawasi v PP [2012] SGHC 164). However, counsel applied by way of motion for leave to refer the constitutional point to the Court of Appeal.

Pending his application for leave, counsel advised his clients (including the accused) who faced LT charges and who were not disputing the fact of consumption of a prescribed drug, to enter a plea of guilty but to have the sentence adjourned pending the Court of Appeal’s decision whether to grant leave. It was common ground between the prosecution and counsel that even if counsel should ultimately succeed in his constitutional challenge, the outcome would only have a bearing on the sentence but would not affect any conviction grounded on a plea of guilt.

On that understanding, the accused’s matter was fixed for the accused to plead guilty in my court on 29 June 2012. I should point out that in the interim PTCs and mentions (on 14 February, 22 March and 29 May 2012) leading up to 29 June 2012, counsel had always maintained that the accused would be pleading guilty to the charge.

The accused pleaded guilty before me to the LT-2 charge on 29 June 2012, some 10 months after he had been first charged in the Subordinate Courts. I deferred hearing the mitigation and passing sentence to 27 August 2012 and again to 27 September 2012. In the interim, counsel’s motion for leave was dismissed by the Court of Appeal on 4 September 2012. That put paid to counsel’s constitutional challenge against the validity of LT charges.

The accused’ matter finally came up for mitigation and sentence on 27...