REVISITING THE HIGH COURT’S REVISIONARY JURISDICTION TO ENHANCE SENTENCES IN CRIMINAL CASES

• Date: 01 December 2009
• Published date: 01 December 2009
• Author: K Muralidharan PILLAI LLB (Hons) (National University of Singapore), LLM (National University of Singapore), MBA (University of California, Los Angeles & National University of Singapore); FSIArb, MCIArb; Advocate & Solicitor (Singapore), Solicitor (England & Wales); Partner, Commercial Litigation, Rajah & Tann LLP. LUO Qinghui LLB (Hons) (National University of Singapore); Advocate & Solicitor (Singapore); Associate, Commercial Litigation, Rajah & Tann LLP.

The High Court’s exercise of revisionary jurisdiction to enhance sentence is well entrenched. Yet in 1993, the Minister of Law stated in Parliament that the object of revision “is not to enhance sentences” and that sentences are “never enhanced on revision” except where the court below was unaware of a minimum mandatory sentence provided by statute. In this paper, we will consider the ambit of the High Court’s revisionary jurisdiction in the context of sentencing. The main theme behind the paper is that while the statutory provisions vesting the High Court with revisionary jurisdiction are wide and capable of being invoked in the context of sentencing, the exercise of such powers to enhance sentences can only be justified in highly exceptional cases. This is because very rarely can a sentence imposed by a subordinate court be described as being palpably wrong. Finally, we also revisit the merits of a suggestion previously raised in Parliament to provide for appeals from decisions made on revision to the Court of Appeal.

I. Introduction

1 The High Court has long been statutorily vested with revisionary jurisdiction over its subordinate courts.1

2 This jurisdiction is provided for in ss 23 and 27(1) of the Supreme Court of Judicature Act2 (“SCJA”) as well as ss 266—270 of the Criminal Procedure Code3 (“CPC”).

3 The law reports are replete with examples where this revisionary jurisdiction has been invoked in criminal proceedings.

4 One usual area is where it is alleged that the judge below had acted outside his jurisdiction. Thus, in Ee Yee Hua v PP4, the High Court, in the exercise of its revisionary powers, quashed an order of discharge amounting to an acquittal issued by a Magistrate on the basis that he had no jurisdiction to take cognisance of the offence in question which was ordinarily triable in the District Court. Similarly, in PP v Lee Wei Zheng Winston,5 the High Court restored the original sentence imposed on an accused by the District Court which had, in excess of its powers, altered its original sentence after it was promulgated. Yet another example arose in the decision of PP v Mahat bin Salim6 where the High Court set aside a sentence of reformative training imposed by the District Court on an accused because the accused had already exceeded the prescribed maximum age of 21 years for reformative training on the date of his conviction.

5 Another area where the revisionary jurisdiction of the High Court is invoked is where serious errors or inadequacies in the charges or statements of facts tendered in proceedings in the Subordinate Courts surface subsequent to conviction.

6 For example, in PP v Koon Seng Construction Pte Ltd,7 the accused company was convicted on a wrongly presented charge that was more serious than what the Prosecution had intended to prefer. The conviction on the wrong charge was set aside enabling the company to plead guilty to the lower charge. In PP v Hardave Singh s/o Gurcharan Singh,8 the accused was convicted and sentenced on a drug trafficking charge in which the quantity of controlled drug was wrongly stated to be much higher than what it actually was. On revision, his conviction and sentence on the wrongly stated charge were quashed. In PP v Henry John William,9 the accused was convicted on two charges that disclosed non-existent offences. The High Court, on a petition of revision, amended the defective charges and convicted the accused on the amended charges. Again, in Annis bin Abdullah v PP,10 there was an error as to the victim’s age in the charge and the statement of facts. As the age of the victim at the time of the offence of having carnal intercourse affected the issue of whether the accused could validly rely on the victim’s purported consent in mitigation the High Court exercised its revisionary powers to amend the erroneous charge and statement of facts to reflect the true age of the victim.

7 The High Court’s revisionary jurisdiction has also been invoked to set aside convictions in the lower court where it is alleged that an accused was pressurised to plead guilty to an offence.11

8 The use of revisionary jurisdiction to enhance sentences in Singapore, however, is of comparatively recent vintage. In 1993, the Honourable Minister for Law (“the Minister”) stated in Parliament that the High Court did not (at that point in time) have a practice of enhancing sentences in the exercise of its revisionary jurisdiction unless the sentences below were made in disregard of mandatory minimum sentences prescribed by legislation.12 This statement was made during the Second Reading of the Supreme Court of Judicature (Amendment) Bill,13 when (then) Nominated Member of Parliament Associate Professor Walter Woon14 (“Professor Woon”) moved his own

amendment to the Bill to provide, inter alia, for an appeal to the Court of Appeal in the exercise of the High Court’s revisionary jurisdiction. In response, the Honourable Minister replied that such a provision was unnecessary for the following reasons:15

In practice, the sentences are never enhanced on revision as opposed to appeal, except where the court below was unaware of a mandatory minimum sentence. The object of revision is not to enhance sentences, but to correct obvious mistakes of a court below, especially where appeals are not available. For example, where an accused has pleaded guilty without fully understanding the facts, the High Court may be asked by the accused to exercise its power of revision and set aside the conviction on a plea of guilty, since there was no appeal from such a conviction. The High Court does not, in practice, intervene on its own initiative in the sentences of a court below although it could do so in theory. It enhances sentences only upon appeal, either by the prosecution or by the accused. Therefore … this amendment is, in my view, not necessary.” [emphasis added]

9 Professor Woon countered by stating that even though the High Court did not then have a practice of enhancing sentences on revision, there could be no assurance that such a situation would never happen in future.

10 The Minister responded by stating that:16

[T]here are many things which the courts in the development of the law are dependent on practice and evolution of precedents and this is one of the areas. As Assoc Prof Walter Woon pointed out earlier, there is a background to the origins of this power of revision. It dates back to the days where there were non-professionals, non-lawyers, who were magistrates and judges. That taken together with the other amendment which this House has approved, that is, the Courts can look at the debates and proceedings of this House to ascertain the intention of the legislature, I think today’s proceedings should not leave anyone any doubt as to what the intent of this amendment is.

11 Parliament then proceeded to deny Professor Woon’s motion for the amendment.

12 After the abovementioned ministerial statement was made in Parliament, there have, however, been several reported decisions in which the High Court exercised its revisionary jurisdiction to enhance

sentences.17 The latest reported decision in which the High Court enhanced a sentence on revision is the 2007 case of Navaseelan Balasingam v PP18 (“Navaseelan”).

13 In Navaseelan, the appellant pleaded guilty in the District Court to five charges under s 4 of the Computer Misuse Act19 (“CMA”) and five charges under s 379 of the Penal Code20 (“PC”) respectively for making unauthorised and fraudulent withdrawals from various automatic teller machines (“ATMs”). Another 258 similar charges under the CMA and the PC were taken into consideration for the purpose of sentencing. The District Judge, after convicting the appellant, sentenced him to six months’ imprisonment on each of the five theft charges under s 379 of the PC, and to 18 months’ imprisonment on each of the five charges under s 4 of the CMA. The District Judge further ordered the imprisonment term for two of the theft charges and three of the CMA charges to run consecutively, resulting in a total imprisonment term of five and a half years.

14 The Prosecution did not appeal against the sentence. The appellant, however, filed an appeal against sentence. He contended that the sentence meted out by the District Judge was manifestly excessive as past precedents indicated that an appropriate sentence for a conviction under s 4 of the CMA would be in the region of between 8 to 12 months’ imprisonment.

15 The High Court dismissed the appellant’s appeal against sentence. It went on to hold that the District Judge imposed too light a sentence in thinking that he had no power to impose a sentence higher than seven years’ imprisonment under s 11(3)(a) of the CPC and that he had misapplied the totality principle. This “error of law” resulted in a “manifestly inadequate” sentence, which warranted the exercise of the High Court’s powers of revision to modify the permutation of the appellant’s consecutive sentences. In the result, the High Court ordered all the sentences for the CMA charges to run consecutively, resulting in an aggregate term of 102 months or eight and a half years, thereby increasing the total imprisonment term by a further three years.

16 There are other reported decisions where the High Court also exercised its revisionary jurisdiction to enhance sentences. In the 1996 case of PP v Nyu Tiong Lam21 (“Nyu”), the District Judge, sitting as a

Magistrate, originally imposed fines ranging from $3,000 to $5,000 on each of the five respondents convicted under s 143 of the PC for unlawful assembly, whose common object was to commit an offence of illegal gaming contrary to s 7 of the Common Gaming Houses Act22 (“CGHA”). The quanta of the fines imposed were in excess of the $2,000 statutory limit provided under s 11(5) of the CPC.23 The learned District Judge initiated the application for revision for the High Court to set aside the...