Sunlink Engineering v Koru Bena [2003] 2 SLR 451

High Court — Suit No 1315 of 2002
Tan Lee Meng
4 March, 30 May 2003

Courts and Jurisdiction — Transfer of case from High Court to subordinate court — Whether case should be heard in High Court when amount sued for is below minimum required — Whether sufficient that plaintiff requires High Court judgment for enforcement in Malaysia under reciprocal enforcement legislation

Tan Tian Luh (Rajah & Tann) for the appellants/defendants
Genevieve Chia (Tan Peng Chin LLC) for the respondents/plaintiffs

The respondent had sued the appellant, a Malaysian company with a registered office in Singapore, for the sum of S$46,051.90. The appellant applied to transfer the case to the subordinate courts as the amount involved was much less than the minimum amount required for a claim to be heard in the High Court. The respondents were opposed to the transfer as they wanted to rely on the Malaysian Reciprocal Enforcement of Judgments Act 1958, which only recognises High Court judgments. The application was dismissed by the assistant registrar.

Held, allowing the appeal:

Each application has to be considered on its own merits. The case does not involve complex issues of law or fact and the only reason given by the respondents is that they wanted to take advantage of the Malaysian Reciprocal Enforcement of Judgments Act 1958, if they succeed in their claim against Koru Bena in the High Court. The Malaysian Act only concerns judgments of superior courts, and the subordinate courts are not considered to be superior courts.

In view of the small sum being claimed, the appellant has good reason to have the case transferred to the subordinate courts. The plaintiff’s reason for having the matter heard in the High Court merely because the defendant is a foreigner and that the foreign laws only recognised High Court judgments, was not enough reason to part from the normal course of events. If that is the case, then a different set of rules would apply to all such foreign defendants and the High Court’s resources would be unjustifiably spent on claims that ought normally to have been dealt with by a subordinate court.

Further, Koru Bena had secured a multi-million dollar contract to build a local school and was unlikely to abandon their business interests in Singapore and flee the jurisdiction to avoid paying the relatively small amount to the respondents if the respondents should succeed.

After taking all the circumstances into account, it is clear that the High Court’s resources should not be utilised in this case to hear a claim for a relatively small sum. As such, the appellant’s appeal is allowed with costs.

Appeal allowed.

Chan Weixiong Jerriek v Public Prosecutor [2003] 2 SLR 333

High Court — Magistrate’s Appeal No 18 of 2003
Yong Pung How CJ
1, 30 April 2003

Criminal Procedure and Sentencing — Mitigation — Whether offender charged with multiple offences can be considered first time offender

Criminal Procedure and Sentencing — Mitigation — Remorse — Whether evidence of genuine remorse shown

Criminal Procedure and Sentencing — Sentencing — Appeal — Application of totality principle

James Lee Ah Fong ( Ng, Lee & Partners) for the appellant
Edwin San (Deputy Public Prosecutor) for the respondent

The appellant had pleaded guilty to a total of seven charges, six of which were for robbery and one for voluntarily causing hurt by means of a dangerous weapon. He was sentenced to nine and half years imprisonment and 24 strokes of the cane. In passing sentence, 38 charges were taken into consideration. The appellant appealed the sentence imposed contending that the sentence imposed was manifestly excessive. Counsel also asserted that the district judge had erred in finding that the appellant had a violent disposition when the Family Service Centre (‘FSC’) volunteer counsellor report stated that the appellant was ‘positive to change and receptive to help’. The district judge’s finding that the appellant was not a ‘mere follower’ in the robbery offences was also contended to be baseless by counsel. Counsel further argued that there were mitigating circumstances that the district judge had not taken into consideration, mainly the fact that the appellant was a ‘youthful, first time offender’ who was remorseful and capable of being rehabilitated.

Held, dismissing the appeal and enhancing the aggregate sentence to 14 years of imprisonment and 24 strokes of the cane:

The appellant, together with two other accomplices, one Koh Ban Leong and one Chia Jia Ting Samuel, had committed the offence of robbery and robbery with hurt in June and July 2002. The appellant and his accomplices had approached their victims, all between the ages of 12 and 16 years, and accused the victims of either staring at them or of belonging to a secret society. The victims were then taken to a secluded spot where they would bewere robbed of their handphones. Victims who resisted were beaten up and one victim had his head slammed against a wall. Money collected from selling the handphones was used by the appellant and his accomplices on food, drinks and arcade games. The total value of the items taken in the 44 charges of robbery and robbery with hurt was S$10,321.00.

Once the appellant had been arrested and released on bail, the appellant committed the offence of voluntarily causing hurt by means of a dangerous weapon. On 26 December 2002, the appellant had been in a coffeeshop at Yishun Central Road and had perceived that a 22-year-old who was sitting at another table was staring at him and confronted the 22-year-old. The appellant broke an empty beer bottle over the head of the 22-year-old victim with such force that the bottom half of the bottle broke off and the victim suffered a 2cm laceration at the back of his head.

It was, thus, unsurprising that the district judge was of the opinion that the appellant had a violent disposition and was clearly a dangerous person. He was not only violent but aware of the nature of his offences. The appellant had no qualms on in using violence on those victims who resisted him and had used violence in no less than nine occasions. As such, it is unlikely that the Yishun Central Road incident was a ‘one-off incident’ as contended by counsel.

There was also no merit to counsel’s argument that the district judge had failed to give due weight to the FSC report. On the contrary, the report itself carried very little weight as it had been prepared by the counsellor following a single hour-long meeting and six brief telephone conversations with the appellant between March and August 2002. The robbery and robbery with hurt occurred while the appellant was undergoing counselling at the FSC; this casts serious doubt on the counsellor’s assessment that the appellant was ‘positive to change and receptive to help’.

Counsel’s contention that the appellant was a mere follower in the robberies is also rejected. The large number of offences committed by the appellant clearly indicated that the appellant was an active perpetrator in the criminal activity. The manner in which the offences were committed also shows that the crimes were not committed at a whim, rather the offences were well planned as the victims were carefully selected. The victims were those that were easily frightened and those that would be unable to defend themselves in the case of a violent assault by the appellant or his accomplices.

Defence counsel’s contention that the appellant was remorseful and that he was a first time offender who was young and capable of rehabilitation is an argument that requires to be dealt with in some depth.

The appellant could not be regarded as a ‘first offender’ in any sense of the phrase as although he had no prior convictions it was not due to the fact that he had not committed any crimes, rather it was due to the fact that the law had yet to catch up with the appellant’s criminal deeds. It is the prerogative of the court to refuse to consider as a first time offender anyone who has been charged with multiple offences, even if he has no prior convictions. Courts in general should be extremely reluctant to regard such persons as first time offenders.

As for remorse, although counsel had pleaded that the appellant was extremely remorseful and had written apologies to the victims in the robberies, he had only done so after being handed over to the police. As for pleading guilty, there is little remorse in a robber pleading guilty once he had has been handed over to the police, in this case his father handed him over to the police.

In Fu Foo Tong v PP [1995] 1 SLR 448, it was clearly stated that the protection of the public is an important exception to the general rule that an offender who pleads guilty is entitled to a discount of the sentence which would have been imposed on him had he claimed trial and then been found to be guilty. It should be further stated that remorse is only a mitigating factor where the offender is genuinely sorry about the offences he had committed.

Defence counsel cited the case of PP v Mok Ping Wuen Maurice [1999] 1 SLR 138 and contended that the FSC report found that the appellant was capable of rehabilitation. Taking into consideration that the appellant had committed the crimes after having carefully selected his victims and the number of occasions he had committed the crimes, it was obvious that the appellant was a habitual offender. Further, the appellant’s total disregard for the law through the unprovoked attack at Yishun Central Road while out on bail, showed that the appellant was too recalcitrant to reform.

Defence counsel submitted that the total sentence of nine years and six months imprisonment and 24 strokes of the cane was manifestly excessive under the circumstances. When sentencing, the court must have regard to the one transaction rule and the totality principle; Kanagasuntharam v PP [1992] 1 SLR 81. The totality principle is divided into two limbs. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender a ‘crushing sentence’ not in keeping with his records and prospects.

In considering whether a sentence can be crushing, a crucial consideration is the pattern of the offender’s previous behaviour. It is important to emphasise that the critical factor in applying the totality principle is the question of whether the offender is capable of rehabilitation or is hewhether he is likely to be a recidivist. However, the totality principle cannot be used to strait jacket the courts, such that the courts cannot impose severe sentences where the circumstances warrant it.

In this case, the sentence of nine years and six months imprisonment and 24 strokes of the cane fell short of the statutory maximum of 20 years imprisonment and 24 strokes of the cane under the most serious offence of robbery with hurt under s 394 of the Penal Code. Taking into consideration the appellant’s criminal behaviour and incapacity for rehabilitation the sentence is not crushing at all.

Indeed the sentence imposed is too light and manifestly inadequate. The appellant is to be sentenced to 14 years imprisonment and 24 strokes of the cane pursuant to s 230 of the Criminal Procedure Code (Cap 68).

Appeal dismissed.

Vimala Chandrarajan