Soong Hee Sin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 19 March 2001
• Neutral Citation: [2001] SGHC 50
• Docket Number: Magistrate's Appeal No 324 of 2000
• Date: 19 March 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Lim Kia Tong (Lim Kia Tong & Partners)
• Citation: [2001] SGHC 50
• Defendant Counsel: Hay Hung Chun (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: No restitution made of misappropriated moneys up to time of hearing,Accused pleaded guilty and unrepresented,Whether sentence manifestly excessive,Criminal breach of trust whilst employed as servant,Appeal,Criminal Procedure and Sentencing,s 408 Penal Code (Cap 224),Considerations and mitigating factors,Sentencing,Whether duty on sentencing judge to inform accused about relevance of restitution as mitigating factor

: This was an appeal only on sentence. After hearing the appellant`s counsel and the DPP, I allowed the appeal and reduced the appellant`s sentence from 15 to nine months` imprisonment. I now give my reasons.

Salient facts

The appellant pleaded guilty in the court below to one charge of committing criminal breach of trust (`CBT`) of a sum of $10,485.22 while being employed as a servant under s 408 of the Penal Code (Cap 224).

The agreed statement of facts which the appellant admitted to without qualification revealed that he was employed as a sales representative of Chin Bee Trading between 30 November 1998 and 1 July 2000. During this time, he was entrusted with making sales of provisions and collecting cash from his erstwhile employer`s various customers. Between 31 January 2000 and 1 July 2000, he collected various sums of money totalling $10,485.22 from 21 of his then employer`s customers, but he failed to hand over the money to the company`s cashier as he should have done. He was arrested on 6 November 2000 on which occasion he promptly admitted to having misappropriated the money.

The appellant was unrepresented in the court below. In mitigation, he said that he was the sole breadwinner of his family and asked for leniency.

In sentencing the district judge took into account the appellant`s plea of guilt as well as his lack of antecedents. He noted, however, that no restitution had been made by the appellant nor did he indicate that he was able to make restitution. Upon a consideration of all the factors, the district judge sentenced him to 15 months` imprisonment.

The appeal

Before me, his counsel`s main grouse was the complaint that the district judge had not informed the appellant of the significance and relevance of restitution to his sentence. The argument ran that, as the appellant was unrepresented in the court below, it was the duty of the district judge to inform the appellant of the role of restitution in sentencing, and then to ask if he intended to make such restitution. The district judge`s failure to instruct the appellant in this regard, counsel urged, rendered his consideration of the lack of restitution as a factor in passing sentence erroneous.

I found counsel`s arguments in this regard to be simply untenable. The contention that it was the duty of the district judge to educate the appellant of the manifold factors that play a part in the exercise of sentencing discretion strikes at the very root of the independence of the trial judge as an impartial umpire. I had declared this to be the position in Rajeevan Edakalavan v PP [1998] 1 SLR 815 , the pertinent facts of which were similar to those in the present case, and I reiterate the views I had stated therein that:

[i]t is not the duty of the judge to inform the accused of the defences or other options that may be open to him and advantageous to his case. That is the duty of the counsel who is appointed to defend him in court, if the accused so chooses to be represented. The onus does not shift to the judge (or the prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be performing two completely incompatible and irreconcilable roles - one as the adjudicator, the other as the de facto defence counsel. The judge`s position of impartiality and independence will be gravely undermined. There will evidently be a conflict of interest and an issue of bias ([para ] 22).

In my opinion, the above statement of the law applied with equal force to the present case. While Rajeevan `s case concerned the duty of a judge vis-.-vis unrepresented accused persons with respect to the substantive offence and thus the plea of guilt itself, there is nothing to prevent the same principles from being applied at the sentencing stage as well. The judge`s role, at any stage of the process, is always to serve as an independent and unbiased adjudicator, a role which he would be hard placed to discharge if he had to proffer or extend his own legal advice to either of the parties before the court. It is pertinent that justice not only be done, but be seen to be done and the latter I find would be impossible to achieve if judges were burdened with the added duty of advising accused persons of every possible defence strategy.

This view is supported by art 9(3) of the Constitution which states that every accused person has the right to consult and be defended by a legal practitioner of his choice. That an accused person chooses not to exercise this right cannot have the effect of shifting the burden of his defence onto the judge whose task can conflict with that of the defence. Indeed, this is precisely the reason why arguments that an accused person was ignorant of this or that point of law and thus prejudiced because he or she was unrepresented have not been well received in previous cases: see eg Packir Malim v PP [1997] 3 SLR 429 and Virgie Rizza V Leong v PP (Unreported) . If an accused person voluntarily chooses not to avail himself of his constitutional right to an advocate, it cannot be that the judge`s duty towards him then suddenly becomes more arduous than it would have been had counsel been appointed, for an unfair advantage would then accrue to accused persons who do not consult their own lawyers. Indeed, to accept counsel`s submissions in this case would create an incentive for accused persons not to instruct their own lawyers, knowing that they can depend on the judge for legal advice, with the latter`s failure to do so then amounting to easy grounds for an appeal. Further, there is the added difficulty of where one should draw the line should such a duty be held to exist for the question then arises as to how much and to what degree of detail of the law the judge should seek to impart to the accused before he may be said to have discharged his duty adequately. Certainly where the plea of guilt itself is concerned, the duty of the judge has always been to ensure that the plea is valid and unequivocal, that the accused understands the nature and consequences of his plea and that the accused intends to admit without qualification to the offence alleged against him. But this duty on the part of the judge exists irrespective and regardless...