Public Prosecutor v Tsao Kok Wah

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 February 2001
• Neutral Citation: [2001] SGHC 27
• Docket Number: Magistrate's Appeal No 282 of 2000
• Date: 08 February 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Jennifer Marie and Adriel Loh (Deputy Public Prosecutor)
• Citation: [2001] SGHC 27
• Defendant Counsel: R Kalamohan (Kalamohan & Co)
• Court: High Court (Singapore)
• Subject Matter: Purposive 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 judge rejected the construction of s 458A made by the prosecutor because `[this] approach would run contrary to the settled rule of the construction of a penal provision`. The judge also disagreed that the parliamentary intention behind s 458A was as stated by the prosecutor, because the debates referred to `made no mention that the section would also apply to attempted offences`. The judge also rejected the application of the principle in the case of Richards v Macpherson [1943] VLR 44 to this case. This was because that case dealt with the equivalent of s 109 of the Act which equates the sentence for an abettor with that for a principal offender. The same cannot be said for attempts. `On the contrary, s 511 specifically provides different punishments for each.`

Observations

Ambiguity and the construction of penal statutes

The answer to this conundrum lies in the correct interpretation of s 458A. The defence makes much of the rule that penal statutes ought to be construed strictly in favour of the accused in the case where the statute is ambiguous and two reasonable constructions are possible. Mr Kalamohan quoted Justice GP Singh who said, `[a] statute enacting an offence or imposing a penalty is strictly construed` ( Principles of Statutory Interpretation (7th Ed, 1999) at p 631). However, the author continued:

But this rule ... is now-a-days of a limited application; and speaking broadly, serves in the selection of one when two or more constructions are reasonably open. The rule exhibits a preference for the liberty of the subject and in a case of ambiguity enables the court to resolve the doubt in favour of the subject and against the Legislature which has failed to express itself clearly.

The defence also relied on the case of The Andara [1978-1979] SLR 364 [1978] 2 MLJ 190 where it was held that a construction more favourable to the ship owners should be adopted to resolve any ambiguity in a penal provision. In a more recent case, Teng Lang Khin v PP [1995] 1 SLR 372 , it was likewise held that `the penal nature of s 101(2) [of the Road Traffic Act] required that [any] ambiguity be resolved in favour of the appellant`. Reliance was...