Public Prosecutor v Pius Gilbert Louis
Jurisdiction | Singapore |
Judge | Chao Hick Tin JA |
Judgment Date | 22 August 2003 |
Neutral Citation | [2003] SGCA 33 |
Citation | [2003] SGCA 33 |
Date | 22 August 2003 |
Published date | 17 December 2003 |
Plaintiff Counsel | Pang Khang Chau, Ms Sia Aik Kor (Public Prosecutor) |
Docket Number | Criminal Reference No 1 of |
Defendant Counsel | Michael Khoo Kah Lip SC, Goh Aik Leng (Goh Aik Leng & Co),Davinder Singh SC, Amicus Curiae assisted by Adrian Tan |
Court | Court of Appeal (Singapore) |
Year | 2003 |
Delivered by Chao Hick Tin JA
1 This Criminal Reference arose from an order made by the High Court under s 60 of the Supreme Court of Judicature Act, pursuant to an application of the Public Prosecutor. The question upon which an opinion of this court is sought is:
Whether the proviso to section 11(3) of the Criminal Procedure Code (Cap 68) allows the District Court, and consequently the High Court in the exercise of its appellate jurisdiction, to impose a sentence beyond the maximum limit prescribed for the offence.
2 The facts giving rise to this application by the Public Prosecutor are as follows. On 1 February 2002, the accused/respondent was at Chamber E of the Family and Juvenile Courts Building for the hearing of his former wife’s application for a variation of some of the orders made on ancillary issues following their divorce. During the hearing, he repeatedly punched the left eye and face of his wife’s female lawyer in the presence of a female District Judge. The accused/respondent was sentenced by the District Court to 6 years’ imprisonment on one charge of causing grievous hurt under s 325 of the Penal Code (PC). He appealed and the High Court enhanced his sentence to one of 10 years’ imprisonment. The maximum punishment prescribed by s 325 for the offence is only 7 years’ imprisonment. The High Court held that it was entitled to impose a prison sentence of 10 years by virtue of the power conferred upon it under the proviso to s 11(3) of the Criminal Procedure Code (CPC).
3 As the Public Prosecutor had before the date set for the hearing of this reference advised that he would be arguing in favour of a negative answer to the question under reference, and so would be the accused/respondent, and, pursuant to the suggestion of the Public Prosecutor, this court appointed Davinder Singh SC, as Amicus Curiae, with a clear indication that his task was to advance arguments in favour of a positive reply to the question.
Scheme under the CPC
4 The issue is to determine the proper interpretation of s 11(3) of the CPC, in particular its proviso. This necessarily entails an examination of the subsection and its proviso, to establish its object and scope. We will, at this juncture, set out the subsection in full:-
11(3) A District Court may pass any of the following sentences:
(a) imprisonment for a term not exceeding 7 years;
(b) fine not exceeding $10,000;
c) caning up to 12 strokes;
(d) any lawful sentence combining any of the sentences which it is authorised by law to pass;
(e) reformative training:
Provided that where a District Court has convicted any person and it appears that by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed in this subsection should be awarded, then the District Court may sentence that person to imprisonment for a term not exceeding 10 years and shall record its reason for so doing.
5 The reasoning of the High Court, in holding that the proviso to s 11(3) empowered it to sentence the accused respondent to a term exceeding that provided in s 325, is the following:-
“However, the proviso to s 11(3) of the Criminal Procedure Code (Cap 68) empowers a district court to sentence a person to imprisonment for a term not exceeding ten years by reason of any previous conviction or of his antecedents provided that the court records its reason for so doing. Unlike the proviso to s 11(5) which limits the punishment which a magistrate’s court can award to ‘the full punishment authorised by law for the offence, for which that person has been convicted’ there is no such restriction on the district court’s powers under the s 11(3) proviso. Moreover, on a purposive interpretation, it is unlikely that Parliament intended the restriction under s 11(5) to be read into the proviso to s 11(3), since otherwise there would be extremely few cases which would warrant its use at all.”
6 It will be useful to begin by first looking at the scheme of things under the CPC. Part II of the CPC, which covers s 6 to s 19, is intitled “Constitution and Powers of Criminal Courts.” Section 6 provides that the High Court, District Courts and Magistrates Courts are the criminal courts. Section 7 sets out the general criminal jurisdiction of the District Courts which is to try all offences for which the maximum term of imprisonment provided by law does not exceed 10 years, except where the Public Prosecutor applies, and the accused consents, a District Court may try any offence other than an offence punishable with death.
7 Section 8 sets out the criminal jurisdiction of Magistrates Courts which is, inter alia, to try offences for which the maximum term of imprisonment provided by law does not exceed 3 years or which are punishable with fine only. However, s 9 gives a Magistrate’s Court and a District Court extended trial jurisdiction as regards certain specified offence set out in Schedule A to the CPC.
8 Section 10 permits an offence triable by a District Court under s 9 to be tried by a Magistrates’ Court when so authorized by the Public Prosecutor but such an authorization does not enlarge the sentencing power of the Magistrate’s court conferred under s 11(5).
9 Section 11 is concerned with the sentencing jurisdiction of the courts. Subsection (1) provides that the High Court has the power to pass any sentence authorized by law, but it may not impose all three forms of punishment, i.e., imprisonment, fine and canning, for the same offence. Subsection (2) empowers the High Court in respect of an accused who is again convicted of an offence which is punishable with a term of 2 years or upwards, to direct that he be subject to police supervision of up to 3 years, after the expiration of the sentence passed on him for the last of those offences.
10 Subsection (3) has already been quoted and we will return to it in a moment. Subsection (4) is similar to subsection (2) and it empowers the District Court to impose a supervision order of up to 2 years on a repeat offender.
11 Subsection 5 relates to the sentencing jurisdiction of a Magistrate’s Court and as this provision played an important part in the High Court’s reasoning in coming to its decision that the s 11(3) proviso empowers the District Court to impose a sentence in excess of the maximum prescribed by law for the offence, and is also relied upon in Mr Davinder Singh’s argument in favour of a positive reply to the question, it is necessary that we set it out in full:-
“11(5) A Magistrate’s Court may pass any of the following sentences:
(a) imprisonment for a term not exceeding 2
years;
(b) fine not exceeding $2,000;
(c) caning up to 6 strokes;
(d) any lawful sentence combining any of the
sentences which it is authorised by law to
pass:
Provided that where a Magistrate’s Court has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed by this subsection should be awarded, then the Magistrate’s Court may award the full punishment authorised by law for the offence for which that person has been convicted and shall record its reason for so doing.”
12 Subsection (6) is also similar to subsection (2) and it empowers a Magistrate’s Court to impose a supervision order on a repeat offender, but only up to 1 year.
13 Subsection (7) is an overriding provision and it provides that where in any law a District Court or Magistrate’s Court is given the power to award punishment in excess of those laid down in s 11, it may do so.
14 Section 12 of the CPC empowers the High Court and a District Court, where the conditions specified therein are satisfied, to impose, in lieu of the sentence prescribed by law for the offence in respect of which the accused has been convicted, sentence him to corrective training for a term of between 5 and 14 years or preventive detention of 7 to 20 years.
15 From the provisions of the CPC mentioned above, three aspects should be clearly differentiated and kept distinct:-
(i) the trial jurisdiction of the court;
(ii) the sentencing jurisdiction of the court;
(iii) the maximum punishment prescribed for the offence.
As would be seen from ss 7, 8 and 11, the normal sentencing jurisdiction of a District Court or Magistrate Court is not the same as its trial jurisdiction. The sentencing jurisdiction is lower than the trial jurisdiction.
16 The distinction between sentencing jurisdiction and the maximum penalty prescribed by law for an offence was brought out in the case of Harry Lee Wee v PP [1980-81] SLR 301. There, Harry Wee was tried in 1978 for offences committed in 1976. At the time of the offences, s 17 of the CPC provided that where an accused was charged with multiple offences, the jurisdiction of the District Court to impose fine was limited to a maximum of twice its normal sentencing jurisdiction as to fine of $5,000. An amendment to s 17, which came into force in 1977, but before the date of the trial, removed the restrictions relating to the aggregate of fines. The District Court, relying on the new powers granted under the amended s 17, imposed fines in excess of those allowed under the previous s 17. Harry Wee contended that he was made to “suffer greater punishment for an offence than was prescribed by law at the time it was committed.” Choor Singh J rejected the argument as follows:-
“There is clearly some confusion on counsel’s part for he has failed to distinguish between ‘punishment prescribed for an offence’ and ‘powers of a court’ to impose punishment. The punishment for an offence under s 213 of the Penal Code is laid down in that section. There has been no change in the punishment prescribed in s 213 between the date of the offences and the date of the appellant’s trial. The change that has taken place is in the powers of a district court to impose fines. Whereas at the date of the appellant’s offences in 1976 a district court could not impose fines totalling more than...
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