Tan Eng Chye v The Director of Prisons (No 2)

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 06 September 2004
• Neutral Citation: [2004] SGHC 196
• Docket Number: Originating Summons No 32 of 2004
• Date: 06 September 2004
• Published date: 06 September 2004
• Year: 2004
• Plaintiff Counsel: Tan Gee Tuan (Gee Tuan and Khin Wai) and A Rajandran (A Rajandran Joseph and Nayar)
• Citation: [2004] SGHC 196
• Defendant Counsel: Leong Kwang Ian (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Medical officer certifying applicant fit for caning,Criminal Procedure and Sentencing,Administrative Law,Forms of punishment,Section 232(1) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Applicant informing court of his Marfan's Syndrome,Whether individual's fitness to undergo caning should be considered before or after sentencing,Sentencing,Applicant sentenced to caning,Caning,Applicant pleading guilty to charge of robbery,Whether medical officer's decision amenable to judicial review,Judicial review

6 September 2004 Judgment reserved.

Choo Han Teck J:

1 This was an application for an order of certiorari to quash the certification of a prison medical officer, Dr Ooi Poh Hin. Dr Ooi had certified that the applicant was fit to receive the punishment of caning imposed by a district court judge. The facts giving rise to the application are as follows. On 15 October 2003 the applicant, aged 22, pleaded guilty to a charge of robbery punishable under s 392 of the Penal Code (Cap 224, 1985 Rev Ed), for robbing a man of his gold chain and handphone, and having put the man in fear of hurt in the course of the robbery. This offence carried a mandatory sentence of not less than 12 strokes of the cane. In the course of the oral mitigation plea, counsel for the applicant told the court that the applicant had Marfan’s Syndrome (sometimes referred to as “the Marfan syndrome”), and further directed that a medical report be produced to determine whether the applicant was fit for caning. A medical officer of the Queenstown Remand Prison, Dr Ooi Poh Hin, examined the applicant and produced a report dated 16 October 2004. The terse report merely stated that the doctor had examined the applicant on 16 October and that the applicant was found fit for caning. The district court judge stated at [17] of his grounds of judgment (see [2003] SGDC 284) that:

It was not clear from the Mitigation Plea what Marfan Syndrome is, but the following posting on the web-site of the US National Marfan Organisation (http://www.marfan.org) states that –

What is the Marfan syndrome?

The Marfan syndrome is a heritable disorder of the connective tissue that affects many organ systems, including skeleton, lungs, eyes, heart and blood vessels. The condition affects both men and women of any race or ethnic group. It is estimated that at least 200,000 people in the United States have the Marfan syndrome or a related connective tissue disorder.

What medical problems are associated with the Marfan syndrome?

1. The Cardiovascular System

The most serious problems associated with the Marfan syndrome involve the cardiovascular system. The two leaflets of the mitral valve may billow backwards when the heart contracts (mitral valve prolapse). This can lead to leakage of the mitral valve or irregular heart rhythm.

In addition, the aorta, the main artery carrying blood away from the heart, is generally wider and more fragile in patients with the Marfan syndrome. This widening is progressive and can cause leakage of the aortic valve or tears (dissection) in the aorta wall. When the aorta becomes greatly widened, or tears, surgical repair is necessary.

2. The Skeleton

Skeletal manifestations common in people with the Marfan syndrome include curvature of the spine (scoliosis), abnormally shaped chest (pectus deformity), loose jointedness and disproportionate growth usually, but not always, resulting in tall stature.

2. The Eyes

People with the Marfan syndrome are often near-sighted (myopic). In addition, about 50 percent have dislocation of the ocular lens.

2 On 29 October, the district court judge sentenced the applicant to four years and six months’ imprisonment and 12 strokes of the cane. In his grounds, the district court judge, after noting the Internet description of Marfan’s Syndrome, stated (at [17]):

Although this appears to be a medical problem that can seriously affect a person’s health, there was nothing in the materials before me which showed that the accused was so affected. Therefore, while I accepted that the accused had a medical problem, as well as psychiatric and behavioural problems, these were of limited mitigating value.

On 31 October 2004 the applicant filed a Notice of Appeal against the sentence imposed by the District Court.

3 However, on 12 April 2004 the applicant applied before the High Court and sought leave under O 53 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) to issue an application for an order of certiorari to quash the medical report of Dr Ooi Poh Hin dated 16 October 2004. The High Court (see [2004] 2 SLR 640) granted the application and the relevant parts of the grounds of decision are set out as follows:

18 The argument is that the report dated 16 October 2003 will not be used as the basis for proceeding with the caning. At the time scheduled for caning, another certificate must be issued before caning is carried out.

19 That is correct, but it does not address the applicant’s concern over the medical assessment process. The provision does not require the medical officer to put up a report, only to issue a certificate that the offender is in a fit state of health to undergo caning. That is only to be done on the day of caning, and there is no provision for the certificate to be disclosed to the offender.

20 There is no assurance that the evaluation will be more thorough than the one carried out on 16 October 2003. If it is not, the applicant has a ground for complaint and redress.

21 Is it premature for him to seek redress now? When the respondent calls his action premature, that presupposes that there is a later, more appropriate time to do that. When I asked when that would be, there was no answer.

22 As the certification is to be done at the time of caning, how will the offender be able to seek redress after the certificate is issued, and before the caning is administered? If he is already caned by the time his application can be heard, it is too late to obtain the redress he seeks.

23 The argument that the application is premature, and should not be made until it is too late to prevent the risks of permanent and unintended injury, is self-defeating.

24 I suggested to counsel that the basic issue is the thoroughness of the medical assessment. The applicant’s concern is that he should not to be caned [sic] unless the medical risks and implications are considered more thoroughly than they were on 16 October 2003. If it can be arranged for a medical officer knowledgeable in Marfan Syndrome to examine him and his medical records and assess whether he is able to receive caning, then that would remove the basis of the complaint. When I asked if the respondent would agree to that, the suggestion was not taken up.

4 Before me, Mr Leong Kwang Ian, counsel for the respondent, advanced the same arguments that he made in the hearing at the leave stage, and Mr Rajandran, counsel for the applicant, likewise, made the same arguments, but this time both parties referred to various affidavits that were not previously used. Mr Leong referred to an affidavit of Dr Ooi Poh Hin dated 16 August 2004 and an affidavit of Dr Naranjan Singh of the same date. Counsel also relied on an affidavit of Terence Goh, the head of Operations Control of the Singapore Prisons Department. The applicant, in turn, referred to his affidavit dated 23 August 2004. For the purposes of the application for leave, the applicant relied on an affidavit of a general practitioner, Dr Paul Ho, dated 12 January 2004, and an ophthalmologist, Dr Lim Tock Han of the Tan Tock Seng Hospital dated 9 January 2004. Counsel for the applicant also referred to a medical report by a Dr C Sivathasan dated 16 January 2004. This medical report was not submitted by way of an affidavit and was handed to the judge during the application for leave. It is appropriate at this stage to deal with Dr Sivathasan’s medical report as well as the medical literature obtained by the district court judge through the Internet, in respect of which the High Court (see [3] supra) made the following comment at [8] in regard to the dredging of Internet information:

The district judge’s initiative is commendable, but it is not a substitute for a proper medical report because he still did not get answers to the second and third questions. [emphasis added]

5 Dr Sivathasan’s medical report is not evidence. If a medical report is deemed sufficiently important and the party concerned wishes to rely on it, it is incumbent upon that party to produce it as he would any other evidence, namely, by calling the maker on oath or affirmation, whether to give oral evidence in the witness box, or where the case permits, by way of an affidavit. There is no evidence properly adduced to show that Dr Sivathasan was in fact a doctor, or that the said report was made by him. A witness who is competent, compellable, and not excused under any statutory exemption (such as the exceptions to the direct evidence...