Public Prosecutor v YM

• Jurisdiction: Singapore
• Court: Juvenile Court (Singapore)
• Judge: Lim Keng Yeow
• Judgment Date: 07 November 2008
• Neutral Citation: [2008] SGJC 6
• Citation: [2008] SGJC 6
• Published date: 22 November 2008
• Plaintiff Counsel: INSP Ting Nge Kong
• Defendant Counsel: Jiang Ke-Yue (Lee & Lee)

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

7 November 2008

District Judge Lim Keng Yeow:

1. On 6 August 2008, YM (“the juvenile”) pleaded guilty to an offence of theft under Section 380 of the Penal Code, Cap 224 (“PC”).

2. On 7 October 2008, I made the following orders:

(1) The juvenile to be sent to Gracehaven, an approved school, for a period of 2 years;

(2) The juvenile is to continue with follow-up treatment at the Child Guidance Clinic;

(3) The parents are mandated to undergo counselling and to enter into a bond of $1,000 each to comply with that order; and

(4) The parents to execute a bond of $2,000 each to exercise proper care and guardianship.

3. The juvenile has an antecedent offence of theft. For that offence, she was placed in Gracehaven under an approved school order for 3 years with effect from 13 June 2006 (“the June 2006 order”). The instant offence was committed on 31 May 2008 while the juvenile was still under the June 2006 order. As the June 2006 order is still in operation, the effect of the fresh 2-year order made on 7 October 2008 is that the juvenile’s stay at Gracehaven would be extended by 15 months and 25 days (including the end date) from 12 June 2009, the date the June 2006 order expires. A table showing the chronology of events is provided in Annex A.

Retraction of plea of guilt

4. Although the appeal now filed on behalf of the juvenile is directed at the ‘sentence’ i.e. the fresh order made on 7 October 2008, it is probably fitting to mention briefly that the juvenile did, through her counsel, attempt to retract her plea of guilt. I gave regard to counsel’s and the Prosecuting Officer’s submissions, the Progress Report and Supplementary Report, Ganesun s/o Kannan v PP [1996] 3 SLR 560 which was referred to me by counsel, and also the following cases not referred to me: Koh Thian Huat v PP [2002] 3 SLR 28, Packir Malim v PP [1997] 3 SLR 429. I found that the juvenile’s plea of guilt was valid, unequivocal and voluntary. The juvenile herself confirmed that she wished to plead guilty, indicated that she understood the nature and consequences of her plea, and admitted without qualification the facts tendered by the Prosecution. I rejected the application for the plea to be retracted and proceeded to make orders against the juvenile.

The options open to the court

5. Where a juvenile undergoing an approved school order re-offends and is to be dealt with, section 44(6) of the Children and Young Persons Act, Cap 38 (“CYPA”) applies. It provides as follows:

Where an offender, while being detained in a place of detention or an approved school pursuant to an order under subsection (1)(g) or (i), is found guilty of another offence by the Juvenile Court, the Court may, instead of making a fresh order against the offender under subsection (1)(g) or (i), extend the period of detention that is being served by the offender [italics added].

6. The use of the word “may” in this provision seems to allow two possible options:

(1) The court may make a fresh order under section 44(1) CYPA; or

(2) The court may extend the existing approved school order under section 44(6) CYPA.

7. On 7 October 2008, I initially made an order for “Rehabilitation at Gracehaven to continue”. However, that order was one that could not be made as it was not an option open to the court under section 44 CYPA. An error has arisen. As mentioned above, an order under section 44(1) or (6) had to be made. Upon further consideration and review of the reports before me, the matter was re-mentioned on the same day. I exercised my powers under section 217(2) of the Criminal Procedure Code, Cap 68 (“CPC”) to correct the error and to make an order both in accordance with section 44 CYPA and sufficient to address the court’s concerns over the rehabilitation of the juvenile.

8. In this regard, PP v Oh Hu Sung [2003] 4 SLR 541 is pertinent. Yong CJ held there that the word “mistake” in section 217(2) CPC is construed expansively, covering errors of law and errors of fact. It was also further re-affirmed that correction of the mistake could be made anytime before the court’s working day had ended. Hence, although the court on 7 Oct 2008 may have been regarded as functus officio upon making the order the first time, it is my view that there was an error in that order and the correction of the error was properly carried out under section 217(2) CPC.

Matters considered in making the order

9. In deciding on a fresh two-year approved school order at Gracehaven, I gave due regard to section 28(1) CYPA, which provides as follows:

Every court in dealing with a child or young person who is brought before it, either as being in need of care or protection, or as an offender or otherwise, shall have regard to the welfare of the child or young person and shall, in a proper case, take steps for removing him from undesirable surroundings, and for ensuing that proper provision is made for his education and training.

In light of this provision, I took into account several critical considerations which I deal with here.

(1) Probation is clearly inappropriate and should not be granted

10. The juvenile re-offended whilst undergoing the June 2006 approved school order. To order probation would be to treat the juvenile’s re-offending far too lightly. Unless there are cogent reasons in support of it, probation is clearly inappropriate. No such reasons were offered by the juvenile, her parents or her counsel.

11. It is also noteworthy that even at the time of the juvenile’s antecedent offence for which she pleaded guilty on 29 May 2006, probation was not recommended in the Probation Report. The mother had committed that offence together with the juvenile and was sentenced in the adult courts. Quite apart from her own involvement in that offence, it was assessed that she would not be able to supervise the juvenile effectively. According to the Probation Report then, she tended to minimise the juvenile’s role and had attempted to get the juvenile to lie to the authorities. The father was reported to be passive and uninvolved in the supervision of the juvenile.

12. In the instant offence, the statement of facts admitted to by the juvenile indicates again the involvement of the mother. The juvenile also told the Child Guidance Clinic psychiatrist that she learnt to steal from her elder sister (letter dated 1 Sep 2008 attached to the Progress Report). There was no submission that the home environment is suitable for her rehabilitation or that effective parental supervision necessary for probation to be workable could now be provided.

(2) The fresh approved school order must be substantial in length

13. Seeing that the juvenile should continue to receive rehabilitation at an approved school, the next issue is to decide on the length of the term. As mentioned above, an order could be made extending the June 2006 order under section 44(6) CYPA or a fresh order of between 2 to 3 years could be made under section 44(1)(i) CYPA. An extension of 15-odd months would be equivalent to a fresh 2-year order.

(a) The re-offence after 23 months under the June 2006 order

14. The instant offence on 31 May 2008 occurred some 23 months into the June 2006 order, while the juvenile was on home leave. It is significant that despite the guidance and supervision...