THE DISTRICT COURT’S SENTENCING JURISDICTION

• Author: TAN Yock Lin BSc (London); Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2004
• Date: 01 December 2004

This article traces the evolution of the summary jurisdiction in Singapore and particularly, the emergence of the distinctions between trial and sentencing jurisdiction and punishability. It shows that in the case of the Magistrate’s Court, the distinction between trial and sentencing jurisdiction accommodates the summary trial of an offence which can vary greatly in seriousness of manifestation and ease of proof. It argues that in contrast, the distinction between the trial and sentencing jurisdiction of the District Court responds to the fundamental division between summary and non-summary jurisdiction. As a result, the Parliamentary decision in 1960 to re-allocate non-summary cases to the summary jurisdiction of the District Court required a compromise, that the accused if convicted could never be punished with the full term of imprisonment authorised by the offence-creating provision where that exceeded the limits of the trial jurisdiction, as a trade-off for the loss of the accused’s rights to a preliminary inquiry and a non-summary trial. The article concludes that the Court of Appeal’s ruling in Louis Pius Gilbert v PP[2003] 3 SLR 418 is correct.

I. Introduction

1 In Louis Pius Gilbert v PP1 the accused was charged with causing grievous hurt under s 325 of the Penal Code2 in that he punched an advocate and solicitor in the face at a hearing in chambers and so far from desisting when told to do so by the presiding judge, proceeded to intimidate her as well, before resuming his punches. The trial district judge, taking a very serious view of the accused’s audacity in the face of justice, sentenced him to six years’ imprisonment (one year off the maximum of seven years’ imprisonment provided by the Penal Code for a conviction of the offence). The accused appealed against his sentence. On appeal to the High Court, Yong Pung How CJ applied the proviso to s 11(3) of the Criminal Procedure Code3 and raised the sentence to ten

years’ imprisonment, the upper limit of the trial jurisdiction of the District Court (“DC”). The implications of this view were far ranging and pursuant to an application by the Attorney-General under s 60(1) of the Supreme Court of Judicature Act,4 the question of what was the true construction of s 11(3) was referred by the High Court to the Court of Appeal.5

II. The problem

2 The Chief Justice essentially relied on the difference between the proviso to s 11(3) (which applies to the DC) and that applicable to the Magistrate’s Court (“MC”), ie the proviso to s 11(5) of the Criminal Procedure Code. For convenience and since they are repeatedly referred to, these are referred to as “the district judge’s proviso” and “the magistrate’s proviso” respectively and are reproduced in full.

3 Section 11(3) states as follows:

A District Court may pass any of the following sentences:

(a) imprisonment for a term not exceeding 7 years;

(b) fine not exceeding $10,000;

(c) caning up to 12 strokes;

(d) any lawful sentence combining any of the sentences which it is authorised by law to pass;

(e) reformative training:

Provided that where a District Court has convicted any person and it appears that by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed in this subsection should be awarded, then the District Court may sentence that person to imprisonment for a term not exceeding 10 years and shall record its reason for so doing.

4 Section 11(5), which is important for contrast, states as follows:

A Magistrate’s Court may pass any of the following sentences:

(a) imprisonment for a term not exceeding 2 years;

(b) fine not exceeding $2,000;

(c) caning up to 6 strokes;

(d) any lawful sentence combining any of the sentences which it is authorised by law to pass;

Provided that where a Magistrate’s Court has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed by this subsection should be awarded, then the Magistrate’s Court may award the full punishment authorised by law for the offence for which that person has been convicted and shall record its reason for so doing.

5 As the Chief Justice saw it, whereas the magistrate’s proviso expressly empowered the MC to sentence a persistent offender to a punishment beyond the MC’s sentencing limits and up to the full punishment authorised by law for the offence for which he has been convicted, the words “may award the full punishment authorised by law” were conspicuously missing from the district judge’s proviso. The district judge’s proviso merely obliged the district judge not to exceed an upper limit of ten years’ imprisonment, coinciding with the limit of the court’s trial jurisdiction. The Chief Justice thought that if the district judge’s proviso was also to be read with the “limitation” that the punishment of imprisonment to be inflicted on a persistent offender must never exceed the term authorised by law for the offence in question, there would be few instances which would warrant its operation.6 The Chief Justice therefore concluded from a purposive reading that the proviso empowered the court to exceed the maximum term of imprisonment prescribed by s 325 of the Penal Code, the law creating the offence, if an extended term was warranted by reason of the accused’s antecedents.7 The proviso, on this holding, operates to extend the term of imprisonment beyond the outer limit prescribed by the law creating the offence, subject to a maximum of ten years’ imprisonment. Although the Chief Justice did not spell out the full consequences of this purposive construction of the district judge’s proviso, there are at least two possibilities. One is that if the antecedent criminal history of the offender suggests that specific deterrence beyond the maximum term of imprisonment prescribed by law is appropriate, the DC may impose an extended term of imprisonment. This means that the proviso functions as a statutory enhancement of punishment measure, not to punish the offender again for past offences, which would be unconstitutional, but to empower the court to increase the sentence on the last offence. The other is that while the trial judge would of course pass an increased sentence if the antecedent criminal history of the offender suggests that specific deterrence is appropriate, this increased sentence should never

exceed the maximum penalty prescribed by law, which, as is well established, is intended for the worst cases. However, an extended term of imprisonment would be permissible if the antecedent criminal history suggests that specific deterrence would be futile and that protection of the public from the persistent offender for a period of time is necessary.

III. The ultimate solution

6 The Court of Appeal reversed the Chief Justice’s ruling on the effect of the district judge’s proviso. As the Court of Appeal saw it, there are important distinctions between the trial jurisdiction, the sentencing jurisdiction and “punishability” or the punishment limits of an offence. The main provisions of s 11(3) are dealing with the sentencing jurisdiction and there is nothing to indicate that the district judge’s proviso was intended to go beyond the sentencing jurisdiction to touch on punishability. On the contrary, all indications are that the proviso was intended to be a conservative measure to enhance the sentencing jurisdiction rather than enhancing the punishment for an offence beyond that already provided by the law creating the offence. Moreover, there is a fundamental tenet of criminal justice, a long “established jurisprudential principle”, not lightly disturbed by legislation short of clear words or compelling context, that the exercise of the sentencing powers is always and irrefutably limited to the maximum punishment prescribed by the law creating the offence. In the instant case, clear words abrogating the applicability of that principle to s 11(3) were missing. Finally, the legislative history of s 11, as reflected in the 1959 and 1975 Parliamentary debates, indicated an intention to transfer a significant portion of the High Court’s original criminal jurisdiction to the DC while ensuring that the DC would be able to deal with habitual offenders. The 1975 debates showed that where enhanced punishments for repeated offences were intended, specific provisions were enacted to that effect.8 It was hence very likely that the district judge’s proviso was intended solely to enhance the DC’s sentencing powers and very

unlikely that the district judge’s proviso was intended to affect the punishability of an offence.9

IV. Distinction between hearing jurisdiction and sentencing jurisdiction

7 At the centre of the difficulty which surfaced in Louis Pius Gilbert v PP are three things: the difference between jurisdiction and punishability; the gap between the trial jurisdiction and the sentencing jurisdiction; and the significance of the summary jurisdiction. An inquiry into the nature and origin of the summary jurisdiction will undoubtedly help to shed light on the gap between the trial and sentencing jurisdiction and hence the provisions of ss 11(3) and 11(5), which appear to be fairly unique.10

V. Summary jurisdiction in England

8 The summary jurisdiction which English law created took a long time to develop and it was not until the reign of Charles II that the idea of one or two justices of the peace, later magistrates, examining and punishing offenders for an offence, without a jury, became acceptable. Hitherto, in the reign of Henry VII, it had seemed to be an excuse to collect fines for the king11 and even earlier, had represented too great a breach from the jury trial, then the only mode of trial recognised by the common law.12 Paley tells us that after the Restoration the country became “familiarised to its use” and the “practice was insensibly moulded into the...