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

• Judge: Choo Han Teck J
• Judgment Date: 06 September 2004
• Neutral Citation: [2004] SGHC 196
• Defendant Counsel: Leong Kwang Ian (Attorney-General's Chambers)
• Subject Matter: Section 232(1) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Sentencing,Caning,Applicant sentenced to caning,Judicial review,Applicant pleading guilty to charge of robbery,Criminal Procedure and Sentencing,Whether medical officer's decision amenable to judicial review,Administrative Law,Medical officer certifying applicant fit for caning,Applicant informing court of his Marfan's Syndrome,Whether individual's fitness to undergo caning should be considered before or after sentencing,Forms of punishment
• Published date: 06 September 2004
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Gee Tuan (Gee Tuan and Khin Wai) and A Rajandran (A Rajandran Joseph and Nayar)

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...