Tan Eng Chye v The Director of Prisons

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 17 April 2004
• Neutral Citation: [2004] SGHC 77
• Docket Number: Originating Summons No 32 of 2004
• Date: 17 April 2004
• Published date: 20 April 2004
• Year: 2004
• Plaintiff Counsel: Tan Gee Tuan (Gee Tuan and Khin Wai) and A Rajandran (A Rajandran Joseph and Nayar)
• Citation: [2004] SGHC 77
• Defendant Counsel: Leong Kwang Ian and Vinod Sabnani (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Certiorari,Administrative Law,Forms of punishment,Sentencing,Section 232(1) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Remedies,Criminal Procedure and Sentencing,Caning,Whether grounds for judicial review exist,Thoroughness of medical assessment required prior to administering sentence,Whether leave to apply for order of certiorari should be granted

17 April 2004

Kan Ting Chiu J:

1 This is an application for leave to apply for an order of certiorari. The applicant is Tan Eng Chye and the respondent is the Director of Prisons.

2 The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code (Cap 224, 1985 Rev Ed). Before sentence was passed on him, the district judge was informed that the applicant suffered from Marfan Syndrome, a congenital condition which affects the heart, eyes and other parts of the body. That was discovered when he went for pre-enlistment screening for National Service on September 2000, and he was medically downgraded and placed in a service vocation.

3 As the punishment under s 392 includes caning, the district judge was concerned whether caning should be ordered. He postponed sentence for a “[m]edical report on whether accused is fit for caning” to be produced to him.

4 In compliance with the order, the applicant was seen by Dr Ooi Poh Hin, Medical Officer, Queenstown Remand Prison, who put up a report dated 16 October 2003 that:

I have examined the [accused] today.

He is fit for caning.

The report does not state whether Dr Ooi had referred to any previous medical records, or even whether he had addressed his mind to the applicant’s condition of Marfan Syndrome.

5 Apparently, the district judge did not find the report useful, as he did not refer to it in his grounds of decision after he sentenced the appellant to imprisonment of four years and six months and 12 strokes of the cane.[1] He stated:

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 (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 the 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.

3. The Eyes

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

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. Similarly, while the surrender of the accused, his co-operation in the investigations, and his admission of guilt were also mitigating factors, not much weight could be given to them because he was known to the victim, and his identity was established very early.

6 I surmise that the district judge called for the medical report because he wanted to know about Marfan Syndrome, the severity of the applicant’s condition, and the effects caning could have on him.

7 Dr Ooi’s report did not give him the necessary information as it made no reference to Marfan Syndrome or its effects. The district judge had to obtain information from the Internet instead.

8 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.

9 I feel that the district judge should have asked for another examination and report. If there were doubts whether the applicant should be caned, they could not have been removed by Dr Ooi’s report or the information obtained from the Internet.

10 This is the applicant’s complaint, that the report is inadequate. In an affidavit affirmed by the applicant’s counsel, Tan Gee Tuan, in support of the application, she deposed that:

7 The Applicant has been assessed to suffer from the Marfan Syndrome and a person with such disability is likely to suffer serious injury affecting his heart, eyes, and skeletal structure. The fact that the Applicant suffers from the Marfan Syndrome is confirmed by the medical reports from the Ministry of Defence assessing the Applicant as such. …

8 Subsequent to the sentencing of the Applicant, the Applicant underwent further medical examination and the assessments made by the respective doctors are stated in the affidavits of Dr Paul Ho and Dr Lim Tock Han filed herewith. The further assessment shows that there is a real danger or risks of the Applicant suffering serious injury upon the infliction of caning. This is clearly contrary to the medical certification made by the Prisons Department.

9 An even more worrying consideration is the fact that it would appear that the medical examination and subsequent certification of the Applicant by the Prisons Department did not give full or sufficient assessment of the Marfan Syndrome and the ensuing risks and disabilities which could be inflicted by the caning.

11 Dr Paul Ho is a general practitioner in private practice. He saw the applicant on 10 November 2003 and found that he has classical Marfan Syndrome. Dr Ho was of the opinion that:

[A]s he has the features of Marfan Syndrome he should not be caned as there are complications of lens dislocation, dissecting aneurysm and dislocation of joints and possible hernia presentation.

The disabilities caused to such a patient can be permanent and irreversible and may also require surgical correction in future.

12 Dr Lim Tock Han is a consultant ophthalmologist and Head of the Department of Ophthalmology, Tan Tock Seng Hospital. He examined the applicant’s eyes and stated in his report that:

[T]he patient was also suspected to have glaucoma, as there was asymmetrical cup disc ratio of right 0.5 and left 0.7. Heidelberg retinal tomogram showed an abnormal left optic nerve head contour. Humphrey visual field (SITA standard, 24-2) did not reveal any significant visual field defect. Partial phasing was normal. Computerised tomogram of the optic nerves did not reveal any compressive lesion. The patient was diagnosed to be a glaucoma suspect. The patient will require close monitoring and may require anti-glaucoma therapy in the near future.

Marfan’s Syndrome is known to be associated with crystalline lens subluxation (in about 60%-80% of patients) and retinal detachment (in about 10% of patients). Ocular trauma is known to cause lens subluxation and retinal detachment in a non-Marfan person. The risk is likely to be higher in a patient with Marfan’s Syndrome who suffers from ocular trauma. As to whether caning can precipitate these complications, it is unknown. However, it would be important to avoid accidental ocular trauma during caning. The patient will benefit from regular follow up in view of the possibility of such complications and in view of the suspicion of early glaucoma.

[emphasis added]

13 The applicant subsequently obtained a report from a consultant cardiothoracic and vascular surgeon Dr C Sivathasan. Dr Sivathasan’s report reads:

Re: Mr Tan Eng Chye (S81050301)

Marfan syndrome is a congenital condition which affects the following body systems:

1. Skeleton

a. Excessive loose joints

b. Spinal curvature abnormalities.

2. Eye

a. Short sightedness

b. Detachment of the retina

c. Left sublexation.

3. Cardiovascular

a. Mitral valve, abnormalities like prolapse, regurgitation and enlargement of mitral annulus

b. Aortic valve abnormalities like regurgitation, dilatation of aortic root

c. Aortic dissection.

4. Pulmonary

a. Spontaneous pneumothorax

b. Blebs in the lung.

5. Central Nervous System

a. Attention deficit disorder

b. Hyperactivity

c. Verbal performance discrepancy.

In the management of this congenital abnormality, the patient is advised to have restriction of “heavy activities like heavy weight lifting, contact sports and any exertion at maximal activity”. (Heart Disease – A textbook of cardiovascular medicine 5^th edition. Publisher W.B. Saunders Co., Editor Eugene Braunwald, pg 1672.)

I am of the opinion that in the light of the diagnosis of marfan syndrome for Mr Tan Eng Chye, the act of canning [sic] can cause a sudden surge in blood pressure resulting in a potentially life threatening occurrence of aortic dissection.

[emphasis added]

The application

14 The applicant applied for leave to apply for an order of certiorari. His application is made in compliance with O 53 r 1 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed). In compliance with the rule, the application was served on the Attorney-General’s Chambers. Consequently, while the application is an ex parte originating summons, it was served, and State Counsel from the Chambers were accorded the right to be heard on behalf of the respondent. They attended before me, and opposed the granting of leave.

The respondent’s objections

15 The respondent’s objections are:

(a) The application is premature;

(b) The application can have no useful outcome;

(c) The application is improper; and

(d) No grounds exist to...