Zeng Guoyuan v Public Prosecutor (No 2)

• Jurisdiction: Singapore
• Judgment Date: 04 September 1997
• Date: 04 September 1997
• Docket Number: Criminal Motion No 16 of 1997
• Court: High Court (Singapore)

Zeng Guoyuan

Plaintiff

and

Public Prosecutor

Defendant

[1997] SGHC 233

Yong Pung How CJ

Criminal Motion No 16 of 1997

High Court

Courts and Jurisdiction–Court of Appeal–Question referred to Court of Appeal for determination–Whether offender facing one charge rather than five charges–Whether conflict of judicial authority in respect of s 71 (1) Penal Code (Cap 224, 1985 Rev Ed)–Section 170 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Section 71 Penal Code (Cap 224, 1985 Rev Ed)–Section 60 Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint)–Criminal Procedure and Sentencing–Criminal references–Question referred to Court of Appeal for determination–Whether separate sentences should be imposed–Joinder of charges–Distinction with sentences imposed–Whether conflict of judicial authority in respect of s 71 (1) Penal Code (Cap 224, 1985 Rev Ed)–Section 170 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Section 71 Penal Code (Cap 224, 1985 Rev Ed)–Section 60 Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint)–Statutory Interpretation–Penal statutes–Relationship between s 71 Penal Code (Cap 224, 1985 Rev Ed) and s 170 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Interpretation of s 60 Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint)

The applicant was convicted of five charges under s 354 of the Penal Code (Cap 224, 1985 Rev Ed). Separate sentences were awarded by the magistrate on each charge. Two of the sentences were consecutive while the rest were concurrent, amounting to a total of 18 months' imprisonment and four strokes of the cane. The applicant appealed.

The appeal against conviction and sentence was dismissed but the sentences imposed on four of the charges were varied. The total sentence was increased to 27 months and 10 strokes of the cane.

The applicant then applied under s 60 of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) (“SCJA”) to have the following question referred to the Court of Appeal for determination: whether by virtue of s 71 of the Penal Code, the applicant was facing only one charge under s 354 of the Penal Code instead of five charges. In support of this, the applicant contended that there was a conflict of judicial authority in respect of s 71 (1) of the Penal Code.

Held, dismissing the motion:

(1) It was plain from ss 170 (1), 170 (2) and 170 (3) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) that, even where offences were cumulative and overlapping, an accused might be separately charged. It was also clear from s 170 (4) of the CPC that s 170 of the CPC had no effect on the applicability of s 71 of the Penal Code: at [5].

(2) It was not in every case falling within s 170 of the CPC, when several charges were brought, that only one punishment might be imposed. Where the offences fell under s 170 (1) of the CPC, separate sentences were correct: at [8].

(3) The correct approach to ascertaining the applicability of s 71 (1) of the Penal Code was to distinguish between the situation when separate offences arose out of one transaction, and the situation where the entire transaction was in reality one offence. In the former case, separate sentences might be ordered for each: at [17].

(4) For a question to be referred to the Court of Appeal under s 60 of the SCJA, the question had to be: (a) one of public interest and not one of mere personal importance to the parties; and (b) one which arose in the appeal on an issue of law, the determination of which would have affected the appeal's outcome. References to the Court of Appeal were exceptional and the court had to be mindful of the need for finality of proceedings. Two preconditions were necessary under s 60 (5) of the SCJA: (a) the question had to be one of law; and (b) there had to be a conflict of judicial authority: at [18] and [19].

(5) The question before the court was not one of law. Whether one offence or five separate offences had been committed was a question of fact, depending upon the particular circumstances of each case. Further, there was no real conflict of judicial authority in respect of s 71 (1) of the Penal Code: at [20] and [21].

Abdul Salam bin Mohamed Salleh v PP [1990] 1 SLR (R) 198; [1990] SLR 301, HC (refd)

Abdul Salam bin Mohamed Salleh v PP [1991] 2 SLR (R) 344; [1991] SLR 235, CA (refd)

Balasubramaniam v PP Criminal Motion No 7 of 1992 (refd)

Chan Hiang Leng Colin v PP [1995] 1 SLR (R) 388; [1995] 1 SLR 687 (refd)

Kanagasuntharam v PP [1991] 2 SLR (R) 874; [1992] 1 SLR 81 (folld)

PP v Bridges Christopher [1997] 1 SLR (R) 681; [1997] 2 SLR 217 (refd)

PP v Rajendra Prasad Criminal Case No 18 of 1989 (refd)

PP v Tan Swee Hoon [1993] 2 SLR (R) 284; [1993] 3 SLR 758 (refd)

Public Prosecutor v Sayer [1947] MLJ 142 (refd)

Tham Wing Fai Peter v PP [1988] 1 SLR (R) 349; [1988] SLR 424 (folld)

Thomas Castro v The Queen (1881) 6 App Cas 229 (refd)

Wee Harry Lee v PP [1979-1980] SLR (R) 464; [1980-1981] SLR 301 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 170 (consd);ss 18, 170 (1), 170 (2), 170 (3), 170 (4), 239 (2)

Penal Code (Cap 103, 1970 Rev Ed) s 213

Penal Code (Cap 224, 1985 Rev Ed) ss 71, 71 (1) (consd);ss 71 (1) illus (a), 354

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) s 60 (5) (a)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) s 60 (consd)

Criminal Procedure Code 1935 (FMS Cap 6) (FMS)

Penal Code 1936 (FMS Cap 45) (FMS) s 71

S K Kumar (S K Kumar & Associates) for the applicant

Amarjit Singh (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

(delivering oral judgment):

1 The applicant was convicted by the magistrate of five charges under s 354 of the Penal Code (Cap 224). Separate sentences were awarded by the magistrate on each charge. Two of these sentences being made consecutive and the rest being made concurrent, his total sentence amounted to 18 months' imprisonment and four strokes of the cane. By MA 275/96, the appellant appealed against both his conviction and sentence. On 15 July 1997, I dismissed his appeal but varied the sentences imposed on four of the charges. The appellant's total term of imprisonment was increased to 27 months and the total number of strokes of the cane was increased to ten.

2 Now, by this motion, counsel for the applicant seeks to refer the following question to the...