Public Prosecutor v Tsao Kok Wah

CourtHigh Court (Singapore)
JudgeYong Pung How CJ
Judgment Date08 February 2001
Neutral Citation[2001] SGHC 27
Citation[2001] SGHC 27
Defendant CounselR Kalamohan (Kalamohan & Co)
Published date19 September 2003
Plaintiff CounselJennifer Marie and Adriel Loh (Deputy Public Prosecutor)
Date08 February 2001
Docket NumberMagistrate's Appeal No 282 of 2000
Subject MatterPurposive approach,Whether distinction should be drawn between attempt and actual commission of offence -s 458A Penal Code (Cap 224),Whether enhanced punishment applicable to attempt to commit offence,Penal statute,s 9A Interpretation Act (Cap 1),Statutory Interpretation,Sentencing,Attempted house-breaking by night,Whether provision ambiguous,Criminal Procedure and Sentencing,Intention of Parliament,Enhanced punishment of caning,Construction of statute

: This was an appeal by the prosecution against the sentence imposed by District Judge A Rahim Jalil on the respondent. Tsao had pleaded guilty to one charge of attempting to commit house-breaking by night with the intention of committing theft contrary to s 457 read with s 511 of the Penal Code (Cap 224) (`the Act`).

Tsao had also pleaded guilty to one charge of failing to present himself for a urine test contrary to a supervision order which is an offence under reg 15(3)(f) of the Misuse of Drugs (Approved Institutions and Treatment and Rehabilitation) Regulations 1976 and punishable under reg 15(6)(a). Two other similar charges under these Regulations were taken into consideration.

Tsao`s antecedents included a conviction under s 457 of the Act in 1990 and a conviction under s 454 in 1993. For the latter offence, he was sentenced to suffer the enhanced punishment of caning provided for under s 458A.

The judge sentenced Tsao to undergo six years` corrective training. He rejected the prosecution`s argument that s 458A applied here as well and that, therefore, caning should also be imposed. This was because the offence Tsao pleaded guilty to was an attempt to commit the offence under s 457, whereas s 458A states that the enhanced punishment of caning applies where a person commits an offence under s 457.

The prosecution appealed on the basis that the sentence was manifestly inadequate because the judge failed to impose the punishment of caning.

The issue

The issue here was whether or not s 458A applies where a person is convicted of having attempted to commit an offence under s 457 and, if so, whether or not Tsao was liable to the enhanced punishment of caning. The DPP submitted that there is no direct authority in the law reports which relates to this issue, and invited the court to set out the grounds of its decision to provide a useful precedent for the future.

The prosecution case

The prosecution submitted that a plain reading of s 458A showed that it applies. The charge states that Mr Tsao `committed an offence punishable under section 457 read with section 511`. There is no distinct offence of attempted house-breaking and so the offence was one under s 457, but read with another section. Therefore, Tsao committed an offence under s 457.

The next submission was that the Parliamentary intention behind s 458A (enacted in 1984) was that the enhanced punishment of caning should apply to an attempt as well as to a completed offence.

The prosecution therefore submitted that:

the words `commits an offence` under s 457 should not be strictly read to mean that that specific offence of s 457 must have been committed. But rather, it should be taken to mean the commission of any offence of which the substantive provision is s 457. (Italics in original.)

The defence case

Counsel for Tsao, Mr R Kalamohan, argued that s 458A is at least ambiguous and, on established principles of statutory interpretation of penal provisions, any ambiguity should be resolved in favour of an accused person.

Secondly, Mr Kalamohan argued that the legislative intent behind s 458A was to impose caning only on professional and repeat offenders where there is a possibility of injury, assault, rape or death.

Finally, Mr Kalamohan pointed out that the Penal Code does not deal with attempts as severely as it does with completed offences. Section 511 of the Act does not allow any imprisonment term to exceed one-half of the longest term provided for the offence.

The district judge`s decision

The judge rejected the prosecutor`s submissions. First, he contended that a plain reading of s 458A required the offence under s 457 to have been committed and not merely to have been attempted.

Secondly, he contended that an attempt is not treated as severely as a completed offence. He referred to the punishment provision under s 511 and contended that this indicates that, when it comes to sentence, `the offender who attempts to commit an offence would receive a lesser sentence`.

Thirdly, he contended that a statute enacting an offence or imposing a penalty should be strictly construed and that a construction more favourable to the accused should be adopted to resolve any ambiguity in a penal provision.

Finally, the...

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    • Singapore Academy of Law Journal Nbr. 2009, December 2009
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    • Singapore Academy of Law Annual Review Nbr. 2001, December 2001
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