Composition and Due Process

This article looks at the compoundability of offences and the procedural aspects of it.

The procedural right to compound offences is provided by s 199 of the Criminal Procedure Code (‘CPC’) (Cap 68). The provision is discussed in the context of the Attorney General’s appeal, on constitutional grounds, in the case of Public Prosecutor v Norzian bin Bintat [1995] 3 SLR 462, in effect to limit the statutory right of the victim and the offender to compound certain offences with the consent of the court.

Composition is an arrangement between the person injured and the accused. The policy of the legislature is that in the case of certain offences where the interests of the public are not likely to be affected, the complainant should be permitted to come to terms with the party against whom he complains. Such arrangements is not against public policy and is limited to 23 offences in the Penal Code which are minor and private in nature.

Schedule A of the CPC sets out a tabular statement of the offences under the Penal Code. The offences that are compoundable are set out in column 6 under the heading ‘Whether compoundable or not’:

The legislature has permitted composition where the offences are essentially of a private nature and are not serious. The law regards it as expedient to recognise some offences as compoundable.

Where there is a right or power given to any body or person there is always the danger of abuse. The court’s consent is the safeguard to ensure that the person with the statutory right does not abuse the right or is not forced to compound when he is unwilling to do so.

Once the court takes cognisance of an offence the accused is usually put on trial. His case will end with an acquittal, conviction or a discharge.

Procedural Rights

Criminal cases, however, are not always disposed of after a full trial. A person who has once been tried for an offence and convicted or acquitted while the acquittal remains in force is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge might have been made under s 172 (doubtful which offence committed) or for which he might have been convicted under s 173 or s 174 (charged with one offence convicted of another charge, attempt or abetment). Such a person is entitled to raise the plea of a previous acquittal or conviction (s 240 CPC — plea of previous acquittal or conviction).

The provision in the CPC is now supported by Art 11(2) of the Constitution which reads:

A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.

The principle of autrefois convict (formerly convicted) or autrefois acquit (formerly acquitted) has now been recognised as a fundamental right in the Constitution.

There are procedural rights and constitutional rights and many procedural rights have constitutional backing either directly or by implication (see eg s 195 CPC (right of accused to be defended) and Art 9(3) (right to counsel)).

Compounding

A crime is regarded as a wrong done to society. The offender and the victim are not normally allowed to come to an agreement to absolve the offender from criminal responsibility.

Section 199 of the CPC which reads:

The offences punishable under the Penal Code shown in the sixth column of Schedule A as being compoundable may be compounded by the person mentioned in that column provided that when an arrest has been effected or an application has been made for the issue of a warrant of arrest or summons the consent of a Magistrate or, if the offence is not triable by a Magistrate’s Court, of a District Judge, shall first be obtained. (my emphasis)

When any offence is compoundable under this section the abetment of the offence, or an attempt to commit the offence when the attempt is itself an offence, may be compounded in like manner.

When the person who would otherwise be competent to compound an offence under this section is a minor, an idiot or a lunatic, any person competent to contract on his behalf may compound the offence.

The composition of an offence under this section shall have the effect of an acquittal of the accused.

permits the parties named to compound the offences prescribed. The composition has the effect of an acquittal.

Constitutional Criminal Procedure

The main body of criminal law in Singapore is contained in the Penal Code (Cap 224). The process is in the CPC. The constitutionalisation of criminal procedure took place with the commencement of the Constitution of the Republic of Singapore on 9 August 1965. The Penal Code and the Criminal Procedure are ‘existing laws’ and must be construed subject to the Constitution. The Constitution guarantees fundamental rights and introduced a doctrine that inter alia, required:

1. an expansive interpretation of constitutional provisions for the protection of life and liberty;
2. making references to international law in such interpretation;
3. elaboration of the elements of a ‘fair trial’; and
4. development of a jurisprudence of fundamental rights and procedural due process founded on the separation of powers, rule of law, and the supremacy of the Constitution.

Constitutional criminal procedure is an important sub-field of constitutional law. Its importance lies in the fact that Part IV of the Constitution on ‘Fundamental Rights’ guarantees the rights of an individual and requires the State and therefore the State’s agents, regardless of whether they are policemen, prosecutors, politicians or judges, to respect and protect the rights enshrined in Part IV. Part IV, inter alia, contains the constitutional criminal procedure which can only be amended pursuant to a referendum and not by Parliament acting on its own motion.

Existing Laws

The Penal Code and the CPC were in force when Singapore was a colony and are now ‘existing laws’ within the meaning of s 13 of the Republic of Singapore Independence Act and Art 162 of the Constitution. Existing laws must be construed with modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. This will often require consideration being given to:

(i)	(a)	Article 9(1) — right to life and liberty not to be deprived except according to law;
	(b)	Article 9(2) — right to complain to the High Court or any judge of the High Court that a person is being unlawfully detained, and the court’s duty to inquire into the complaint and satisfy itself that the detention is lawful;
	(c)	Article 9(3) — right upon arrest to be informed as soon as may be of the grounds of his arrest;
	(d)	Article 9(3) — right to consult and be defended by counsel of his choice;
	(e)	Article 9(4) — no detention beyond 48 hours without magistrate’s authority;
(ii)	Article 11 — no greater punishment than that prescribed by law; and
(iii)	Article 12(1) — equal protection of the law.

The leading constitutional law case of Ong Ah Chuan v PP [1981] AC 648 on Arts 9(1) and 12(1) has been criticised by an eminent academic and QC (see David Pannick — Judicial Review of the Death Penalty). The Privy Council has for practical purposes buried Ong Ah Chuan’s case, describing the law in it as ‘rudimentary’ and of ‘limited assistance’ (see Reyes v The Queen [2002] AC 235 at 257). Cases on key legal issues such as the right to remain silent, right to counsel, pre-trial custody, confessions, do not sit well with leading cases of other leading jurisdictions. Counsel and the courts have not found it necessary to look at or rely on constitutional text, history and structure of the Constitution in any depth or detail.

Whether Singapore has built up a doctrinal edifice of fundamental rights that deal with the foundations of modern constitutional criminal procedure over the last 38 years is a moot point. Such decisions as there are do not appear to have a firm grounding in constitutional history text and structure.

The question is whether the compounding of offences is consistent with due process. Is it in harmony with Art 9(1) and Art 12(1)?

In a famous judgment concerning the freedoms enjoyed by people in the United Kingdom the judge in Malone v Metropolitan Police Commissioner (No 2) [1979] 2 AER 620 at 629 said that the United Kingdom is ‘not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.’ The principle applies in Singapore with equal force.

In Singapore, compounding of offence is expressly permitted by s 199 of the CPC. In addition, the right to compound is protected by the Constitution, a living instrument aimed at inter alia protecting rights of individuals against the State and its agencies.

The Narrow Approach

The Public Prosecutor in Ong Ah Chuan’s case relied on Art 2(1) of the Constitution which defines ‘written law’ to define ‘law’. It was submitted that ‘law’ in Art 9(1) means ‘written law’ and the requirements of the Constitution that life and liberty be deprived according to law are satisfied if the deprivation of life or liberty has been carried out in accordance with provisions contained in any Act passed by Parliament, however arbitrary or contrary to fundamental rules of natural justice the Act may be, provided the Act applied to all citizens of Singapore so as to avoid falling foul of the anti-discriminatory provisions of Art 12(1) (equal protection of the law). It was a narrow interpretation.

The Privy Council rejected the narrow view of the effect of Arts 9(1) and 12(1) of the Constitution for which the Public Prosecutor contended. Lord Diplock said:

... references to ‘law’ in such contexts as ‘in accordance with law’, ‘equality before the law’, ‘protection of the law’ and the like, ... refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England ... It would have been taken for granted by the makers of the Constitution that the ‘law’ to which a citizen could have recourse for the protection of fundamental liberties assured to them by the Constitution. (p 670G)

Lord Diplock did not capture and explain the spirit of constitutional criminal procedure but he made it plain that there was a need to speak of law in the Constitution as something which affords ‘protection’ for the individual so that he may enjoy his liberty and profit from the entrenchment of Arts 9(1) and 12(1). The proposition that any statute, no matter how arbitrary, constitutes ‘law’ was firmly rejected. Any other approach to ‘law’ would take away from the constitutional provision its potential to protect life and liberty. It must follow from the above that judicial decisions that are arbitrary must also be rejected as not being law.

A Definition of Law

Marcus Tullius Cicero (106–43 BC), lawyer, doctor, philosopher and champion of Republican principles and counsel of Rome in 63 BC discussed a definition of law in Book II of his Dialogue:

Cicero ‘... Even if there was no written law against rape ... We cannot say on that account that Sextus Tarquinius did not break that eternal law by violating Lucretia, the daughter of Tricipitinus! For reason did exist, derived from the Nature of the universe, urging men to right conduct and diverting them from wrongdoing and this reason did not become law when it was written down, but when it first came into existence; and it came into existence; simultaneously with the divine mind.

Octintues ‘... I agree ... what is right and true ... does not begin or end with written statutes.

Cicero ‘... laws were invented for the safety of citizens, the preservation of States, and the tranquility and happiness of human life ... in the very definition of the term ‘law’ there inheres the ideas and principles of choosing what is just and true ... what of the many deadly, the many pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physician’s prescriptions neither in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust made in agreement with that primal and most ancient of all things, Nature, and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.’ (See Law: A Treasury of Art and Literature. Edited by Sara Robbins p 52).

Rule of Law

The concept of ‘law’ as demanding the rule of law which affords protection can be traced to Chapter 39 of the Magna Carta 1215, which proclaimed:

No freeman shall be taken or imprisoned, or be disseised of his freehold, or free customs, ... or in any other wise destroyed; nor will we not pass judgment upon him, nor deal with him but by lawful judgment of his peers; or by the law of the land ...

The Charter was obtained by the barons for their own protection from King John. King Edward I confirmed it in 1297 and sent the Charter to all his justices who ‘have to administer the laws of our land ... for the relief of our people.’ (my emphasis)

In 1354, the Statute of 28 Edw III Ch 3 substituted for the words ‘by the law of the land’ the words ‘by due process of law’.

That no man of what estate or condition that he shall be ... nor taken nor imprisoned ... nor put to death, without being brought in answer by due process of law.

Due Process of Law

The true construction of ‘by the law of the land’ in the Magna Carta became ‘by due process of law’ (Coke 2 Institutes vol 1 at p 50).

Justice Harlan of the United States Supreme Court said:

... To what principles are we to resort to ascertain whether this process ... is due process? ... the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of processing existing in the common and statute law of England ... which are shown not to have been unsuited to their civil and political condition by having been acted on by them (Justice Harlan; Hurtado v California 110 US 516 (1884)).

The word ‘process’ in due process of law refers to the procedures and processes of law besides the substantive law to ensure that there are fair trials. Due process is a changing concept for the protection of liberties and human rights and freedom. The phrase ‘due process of law’ is used in constitutional law for various procedural and substantive aspects of liberty. The essence of procedural due process is fair criminal procedures, particularly fair trials. Its roots are in the phrase ‘law of the land’ found in s 39 of the Magna Carta which meant even the king was bound by the ‘law of the land’. It gave rise to the concept that the fundamental law which controls the government should be in writing and resulted in the enactment of the Bill of Rights in England in 1689, an Act for declaring the rights and liberties of the subject and settling the succession of the Crown.

The Bill of Rights raised a barrier against the power of the Crown. The power of the English Parliament remained unrestrained. The valuable rights received no protection. The American Madison said ... ‘whilst it might not be thought necessary to restrain the legislative power in England a different opinion prevails in the United States’. In 1998, England enacted the Human Rights Act to further protect the rights of individuals against the State.

Colonial Charters

Some of the States of the United States of America like Singapore were once a colony of England. The idea that basic liberties must be stated in writing resulted in colonial charters which set out the written principles of government of the charter colony and were viewed as statements of the fundamental law controlling the operation of the colony, all arising from the philosophical concept of social compact advanced by Thomas Hobbes and John Locke. The charters of some colonies were adopted as state constitutions.

Singapore’s path to the present Constitution is not a case of the 1826 Charter to the 1965 Constitution. By the Straits Settlements (Repeal) Act 1946, the Straits Settlements was disbanded and Singapore become a separate crown colony with its own constitution as set out in the Singapore Colony Order-in-Council (1946). A new constitution, the Singapore (Constitution) Order-in-Council converted the colony into a self-governing state.

The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 was signed and ratified by the United Kingdom when Singapore was a colony and applied to Singapore when it was a dependent territory of the Crown from 1953.

Universal Declaration of Human Rights (‘UDHR’)

The UDHR was adopted and proclaimed by the United Nations General Assembly by Resolution 217 A (III) of 10 December 1948. It is not an international treaty or convention, and does not have any signatories. However, all member states of the UN are called upon to give the UDHR due recognition and enforcement.

Singapore became a member state of the UN on 21 September 1965 following its independence on 9 August 1965. As a member State of the UN, Singapore is obliged to recognise the UDHR, but it does not have any force of law as opposed to an international treaty or convention. It should be noted that Singapore’s position on the UDHR is one of guarded acceptance. In a resolution adopted at the 161st session of the Inter-Parliamentary Union in 1997, marking the 50th anniversary of the UDHR in 1998, the delegations from Indonesia and Singapore expressed reservations to the text of the resolution, which called for parliaments to give stronger effect to the UDHR in their respective States.¹  Singapore has argued that universal human rights documents and treaties actually privilege Western values favouring the individual to the detriment of Asian values favouring the community.²

Although the UDHR is merely a declaration and not a treaty, it has been argued by many that it is so widely recognised that it has become customary international law, through continued state practice and the status of opinio juris applying to the principles entrenched in the UDHR.

If the UDHR has indeed become customary international law, then it would be binding on Singapore and we would be obliged to interpret and apply our Constitution in a manner consistent with the UDHR. Unfortunately, the issue has yet to arise in our local courts; Lord Diplock mentioned the UDHR in the case of Haw Tua Tau & Anor v Public Prosecutor [1981] 3 All ER 14, in an appeal from Singapore to the Privy Council in the following terms:

Such a rule finds no place in the Universal Declaration of Human Rights proclaimed by the United Nations in 1948 nor in the European Convention for the Protection of Human Rights and Fundamental Freedom of 1950. Its non-observance involves no conflict with the fundamental rules of natural justice stated in Art 6(2) of the Convention:

Everyone charged with a criminal offence shall be presumed innocent until found guilty according to law ([1982] AC 136, 153–H).

Lord Diplock then proceeded to interpret the Constitution with reference to fundamental rules of natural justice rather than to the UDHR in the manner he adopted in Ong Ah Chuan’s case. The UDHR was merely mentioned as not being in support of a proposed fundamental rule of natural justice, but it was made clear that it was proper to refer to the two international instruments.

The 1963 Malaysia agreement resulted in the State of Singapore becoming a State of the Federation of Malaysia and a new State Constitution was granted to Singapore. The new Federation came into being on 31 August 1963.

Independent Singapore

On 9 August 1965 Singapore’s separation was effected by a series of documents (see Kevin YL Tan (1989) IS Ac LJ p 6). For purposes of this article it is enough to state that the Republic of Singapore Independence Act which made provision for the Government of Singapore upon Singapore becoming an independent and sovereign republic, and the Constitution (Amendment) Act of 1965, provided a working constitution.

Reprints of the Singapore Constitution are deemed to be the authentic text of the Constitution until superseded by the next or subsequent authorised reprint (see Heng Kai Kok v Attorney-General of Singapore [1987] MLJ 98). The Reprint of the Constitution that is in force today is the Reprint of 1 July 1999.

Entrenched Rights

Article 2A of the Constitution provides that unless the President acting in his discretion otherwise directs, a Bill seeking to amend any provision in Part IV entitled ‘Fundamental Rights’ shall not be passed by Parliament unless it has been supported at a national referendum. This is in keeping with Singapore being a sovereign republic and the Constitution the supreme law.

The Singapore Parliament unlike the English Parliament, is not supreme. It cannot enact laws that it is forbidden to enact by the Constitution or enact laws that would interfere with the exercise of judicial power. Sentencing is a function of judicial power. Acts of the Parliament can be ruled ultra vires by the courts.

The English legislation guaranteeing the rule of law in England from the Magna Carta till 1826, when Singapore received its charter applies to Singapore (see Roberts & Wray, Commonwealth and Colonial Law p 718–721). The phrase ‘in accordance with law’ in Art 9(1) accordingly incorporates the concept of the rule of law and the word ‘law’ in Art 9(1) must be given an expanded meaning to protect life and liberty and must take in the international instruments which form part of our constitutional history. The common law lawyer must become a constitutional law lawyer when the Constitution is construed.

A Constitutional Question

In Public Prosecutor v Norzian bin Bintat [1995] 3 SLR 462, the accused Norzian was charged with voluntarily causing hurt, an offence under s 323 of the Penal Code, to one Leow. Leow informed the trial court that he was willing to compound the offence. Norzian offered a sum of $500 and an apology in open court. Leow accepted the offer.

The Deputy Public Prosecutor conducting the prosecution objected to the composition. The District Judge who had all the powers to hear and dispose of the case in a summary way gave his consent under s 199 of the CPC despite the objections of the prosecution.

The Public Prosecutor contended that s 199 was ultra vires the Constitution of the Republic of Singapore unless construed such that it would apply only in cases of private prosecutions. Alternatively it was contended that the District Judge had exercised his discretion to allow composition wrongly.

The crux of the Public Prosecutor’s argument was that under Art 35(8) of the Constitution read with s 336 of the CPC only the Attorney General as Public Prosecutor has the power to discontinue or terminate criminal proceedings.

The court, dismissing the appeal, said (p 465):

The relevant provisions of the Constitution are as follows. Article 4 of the Constitution states:

This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Article 35(8) states:

The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.

Article 162 states:

Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.

Reference should also be made to Art 93 of the Constitution. This states:

The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.

It is submitted that it would not have been inappropriate to have made reference to Art 9(1) (according to law) of the Constitution which is at the heart of the constitutional criminal procedure in the Constitution and to Art 12(1) (equal protection) which provides that all persons are equal before the law, since all offenders who commit the 23 offences read with Art 162 are entitled to profit from composition where the victim agrees to do so if the court consents, whilst other offenders are not.

The court considered the constitutional question posed by the Attorney General as a simple one of statutory interpretation. No distinction was made between the Constitutional definition of ‘according to law’ which protects against governmental power and the laws which punish a citizen for offences committed against other private citizens protected by the criminal and civil laws and not by the Constitution, with the possible exception of Art 10 which forbids slavery and forced labour both by the State and any other person.

Constitutional and Procedural Rights

In Norzian’s case, Leow the victim was given compensation under s 199 of the CPC which protects citizens from the criminal acts of other citizens and non-citizens. Norzian the offender was not deprived of his liberty by the State, notwithstanding the Public Prosecutor’s objections and his offence, because the District Judge refused to allow interference by the prosecution when it exercises judicial power. He exercised the judicial power vested in him to dispose of the case by giving his consent to the composition of the offence in accordance with the legislative policy in s 199. The appeal was dismissed. The High Court, asserting the independence of judicial power, said:

It would be strange if the Public Prosecutor can in effect veto the court’s judicial decision. In my view there is no such right on the part of the Public Prosecutor (p 473).

The Constitutional question, however, was disposed of briefly:

Article 35(8) of the Constitution is already reflected in s 336 of the CPC which merely reflects the old common law position ... The question in the present case therefore involves only the interpretation of s 199 (p 468).

The High Court was not invited to explore the constitutional question in depth by reference to the history, text and structure of the Constitution although the court was invited to construe s 199 as existing law under Art 162. The court, however, opened the door for further interference by the Public Prosecutor when the court said:

In a case where the public interest is involved it is proper to withhold consent to composition. (p 474)

The court did not elaborate on the concept and content of public interest when there were public interests in conflict.

Public Interest

The words ‘public interest’ assume a single public interest. In the context of s 199 of the CPC there is a conflict of rights:

1. the victim’s right to compound the offence according to law, a procedural right; and
2. indirect curtailment of the defendant’s right to compound the offence ‘according to law’ (a constitutional right).

The question is whether the prosecution is required to ask and answer the question of what justification exists to object to the defendant’s constitutional right under Art 9(1), and the victim’s procedural right under s 199 of the CPC being interfered with when the court’s consent is required and the Public Prosecutor is entitled to appeal against the wrongful exercise of judicial discretion. There is even less merit in the Public Prosecutor maintaining a practice where counsel ascertain from them, under the guise of plea bargaining, whether the prosecutor will consent to the offence being compounded.

The rights in s 199 operate before the trial proper at a time when the presumption of innocence operates. The defendant in being prepared to compound is admitting to an offence and throwing himself at the mercy of the court and satisfying the victim. He is seeking an acquittal that is provided for in law. The duty of the court is to consider the application on the merits independently of both parties.

Public interest lies not only in suppressing crime but also in fair prosecutions and preserving and protecting the fundamental rights of its citizens and the rights of victims. Where the rights are fundamental rights they cannot be overridden by a simple public interest argument by the prosecution or the court.

Maid Abuse

The Penal Code was amended in May 1998 whereby the maximum penalty, inter alia, for an offence under s 323 of the Penal Code committed by an employer of domestic maids was enhanced to one and half times the prescribed punishment by virtue of s 73(2) of the Code. The amendment was the result of public concern over the increase in maid abuse cases.

It was recognised in Parliament that domestic maids were more vulnerable to abuse by employers and their immediate family members than any other category of employees, and that abuse of foreign maids can damage Singapore’s international reputation and bilateral relations. Parliament’s response was to increase the punishment for a class of offenders where maids are the victims.

Section 73(1) of the Penal Code states that s 73(2) which provides for the enhanced punishment shall apply only where ‘an employer of a domestic maid or a member of the employer’s household is convicted of an offence’.

Section 73(4) defines ‘domestic maid’ to mean ‘a female house servant employed in ... the domestic service of her employer’s private dwelling house and who resides in her employer’s private dwelling house’.

The words ‘member of the employer’s household’ is defined to mean ‘a person residing in the employer’s private dwelling house at the time the offence was committed ...’.

Under the amendment, the Singaporean employer and his family members can be punished one and a half times the prescribed punishment if any of them causes hurt to the foreign or Singaporean maid but the foreign or Singaporean maid cannot be punished with the same maximum punishment if the maid causes hurt to the employer’s wife.

Equal Protection

Article 12(1) condemns discrimination not only by substantive law but also by a law of procedure. Article 12 (1) of the Constitution of Singapore does not forbid a reasonable classification of persons for the purposes of legislation provided:

1. the classification is founded on an intelligible differentia which distinguished persons … that are grouped together from others left out of the group and;
2. that the differentia must have a rational relation to the object sought to be achieved from the statute in question, (Budhan Choudry & Ors v State of Bihar AIR 1975 SC 791, 193).

Equal protection of the law under Art 12(1) demands that state action shall embrace a reasonable classification of persons and objects such that the classification facilitates the goal expressed. The classification for greater punishment where maids are involved is limited to ‘employers’ and his family. The maids needed protection in Parliament’s judgment and the classification of employers and the employer’s family members is not suspect under Art 12(1). The important question in law, however, is whether a different offence was created by increasing the maximum punishment according to the existence or absence of particular factual ingredients, so that persons who are not employers or members of an employer’s family who cause hurt are not punished as if they fall within the class that is subject to greater punishment.

Effect of the Amendment to Penal Code

In R v Courtie [1984] 1 AC 463 the House of Lords considered a case where the prescribed punishment differed depending on particular factual ingredients of the offence under the English Sexual Offences Act 1956. The question was whether different offences are committed where the maximum punishment varies according to the existence or absence of particular factual ingredients.

Lord Diplock said: (p 471–D)

... where it is provided by a statute that an accused person’s liability to have inflicted upon him a maximum punishment which if the prosecution are successful in establishing the evidence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.

Parliament by amending the Penal Code created a separate offence. The maid must be a ‘domestic maid’ as defined in law. The offender must be an employer or a member of his household. It will not do for the prosecutor to assert a class called ‘de facto’ employers and for the courts to accept and act on it because it is a factual ingredient and no class was identified called ‘de facto’ employers or maids for greater punishment or for the policy considerations to be invoked.

It lies within the power of a court to modify ‘existing laws’ to bring it in harmony with the Constitution. It does not, however, lie within the power of a court or the Public Prosecutor to modify criminal procedure either generally or in relation to a particular offence in the public interest without spelling out the public interest. Where a distinct offence has been created in the public interest, it is submitted that the Public Prosecutor cannot repeat the public interest mantra. Parliament in creating the new offence did not find it necessary to make the new offence one that cannot be compounded even when read with s 73. Parliament did not take away the right of the victim to compound the offence even when the victim is a domestic maid for an offence under s 323. It can, however, be argued that there is no provision for composition for an offence under s 73, if it is treated as a distinct offence.

In Jill Ho v PP [2003] SGHC 280 a complaint was filed by SSI Ong Kim Hoon stating on oath that the accused was the wife of the registered employer and praying for the issue of a summons under s 323 of the Penal Code.

The defendant was charged on 11 July 2002 with having caused hurt to a domestic maid whilst being a household member of the employer of a domestic maid, an offence punishable under s 323 read with s 73(2) of the Penal Code.

On 23 September 2002 when the prosecution realised the true factual ingredients the charge was amended and she was charged with voluntarily causing hurt and thereby committing an offence punishable under s 323 of the Penal Code. All reference to s 73(2) was dropped when it was discovered that she was not the employer and was living separately from her husband, the then registered employer, after the marriage was dissolved, in a separate residence.

The Deputy Public Prosecutor told the court that the maid (victim) was willing to compound the offence. The victim was prepared to accept the defendant’s compensation offer of $5,000. The Deputy Public Prosecutor said: ‘Prosecution is objecting to it. It acted like a veto.’

The court ruled ‘Not allowing composition.’ No reasons were given for not allowing composition or for objecting to the composition by the magistrate and the Deputy Public Prosecutor.

The learned magistrate in his Grounds of Decision said:

While I agree that the enhanced penalties of s 73 cannot apply because the charges are simply under s 323, I must note that the law still grants me the discretion to enforce a maximum penalty of one year’s imprisonment or $1,000 fine or both. However, s 73 aside, Sartini was still a domestic maid. Yes, officially her work permit was under the name of the Appellant’s husband but de facto if not de jure she was under the employ of the Appellant. She was the Appellant’s maid, and as such belonged to the vulnerable class that s 73 was designed to protect. While, through a technicality, the court is unable to enhance to maximum penalty, there is nothing that disallows the court to consider the fact that the victim was the perpetrator’s maid as an aggravating factor and sentence accordingly within the confines of the maximum sentences allowable in s 323 itself.

The defendant Jill Ho was not charged with an offence under s 73 of the Code which is a distinct offence. Parliament defined a class of persons for greater punishment inter alia it is submitted to satisfy the requirements of Art 12(1). The defendant was not on the prosecution’s own case an employer or a member of the employer’s household. This did not, however, deter the prosecution from arguing that she was a de facto employer, a phantom charge.

The learned magistrate it is submitted, with respect, imposed a sentence for an offence under s 323 whilst protesting, perhaps too much, that he had shut out of his mind s 73. On appeal, it was submitted, in writing, but not argued that Jill Ho’s liberty was not deprived according to law under Art 9(1). The High Court was invited to exercise its powers to compound the offence. The appeal was dismissed. The sentence of four months imprisonment was not disturbed.

Section 73 was completely irrelevant. The magistrate’s duty was to consider the charge preferred and the evidence adduced in support of the charge.

The House of Lords allowing the appeal in R v Courtie said:

My Lords, in taking upon himself (and the two justices) the function of deciding that there existed in the case against Courtie a necessary factual ingredient of the 10-year offence for which he was sentenced, although Courtie had never admitted the existence of that factual ingredient by his plea of guilty on arraignment to a lesser five-year offence which did not require the existence of that factual ingredient, the judge was acting contrary to the second basic principle of English criminal law to which I referred at the outset of this speech. The question whether the other man had consented or not was one of fact and if, in a trial upon indictment, it was disputed, it was a question to be determined by the jury upon admissible evidence adduced before them and not to be determined by anyone else.

The Court of Appeal took the contrary view to that which I have developed. They certified as the point of law of general public importance involved in their decision:

Does s 12(1) of the Sexual Offence Act 1956, by reason of the provisions of s 3(1) of the Sexual Offences Act 1967, contain more than one offence?

To that question for the reasons that I have discussed I would give the answer ‘Yes,’ although I would substitute for the reference to s 3(1) of the Sexual Offences Act 1967, a reference to ss 1 and 3.

It follows that, having been sentenced on the basis that he had committed a 10-year offence, whereas he should have been sentenced for a five-year offence only, Courtie’s appeal against sentence must be allowed. For the sentence of three years’ imprisonment pronounced on him from which he has by now been released upon parole, there should be substituted a sentence that will result in his period of parole being terminated forthwith together with any liability to be recalled to imprisonment.

What went wrong in the instant case could have been avoided in one or other of two ways. It would have been possible under s 6 of the Criminal Law Act 1967 to have included in the particulars of offence in the indictment against Courtie the allegation that the buggery had been committed without R’s consent, thus charging a10-year offence. The issue of consent would then have been left for the decision by the jury and if they found that absence of consent had not been proved by the prosecution to their satisfaction, they could have convicted Courtie of the lesser five-year offence. But what, in my view, is the much more suitable way is to put into separate counts in an indictment, charges which include allegations of factual ingredients which attract different maximum punishments — as counsel for the prosecution had vainly, although belatedly, sought to do in the instant case. This simplifies the task of the judge when he sums up to the jury, and that of the jury in understanding what alternatives are open to them when they retire to deliberate on their verdict.

The defendant in Jill Ho’s case was not an ‘employer’. She was called a ‘de facto employer’ to invoke the factual ingredient and policy considerations of s 73 that brought with it greater punishment and a judicial mind that would be less receptive to composition according to law and consistent with the rights of the victim. Whether Jill Ho was an employer was not a ‘fact’, it was a ‘fact in issue’. It is de jure not de facto. Legal guilt according to law, not factual guilt.

KS Rajah, SC
Harry Elias Partnership
E-mail: ksrajah@harryelias.com.sg

Endnotes