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FEATURE |
Of Judicial Mercy, One-armed Offenders and Ill Health
This article
discusses the recent Singapore High Court decision in Chng
Yew Chin v Public Prosecutor [2006] 4 SLR 124 and explores the quiddity of judicial mercy in the context of the
controversial Australian test of whether imprisonment will be a greater burden
on the offender because of his state of health.
Introduction
In the recent High Court decision of Chng
Yew Chin v Public Prosecutor,1 the court upheld the ‘residuary
discretion’2 of
The word ‘quiddity’ refers to
‘legal arguments’ and is derived ‘from the Latin quidditas,
“essence” or “whatness”’.4 The
‘quiddity’ of judicial mercy brings to mind one of
Shakespeare’s famous passages from Hamlet which recites:
Why
may not that be the skull of a lawyer? Where be his quiddities
now, his quillities, his cases, his tenures, and his
tricks?5
In this article, we are not concerned with the quiddities of lawyers, but with the quiddity
or essence of judicial mercy. The High Court’s articulation of guidelines in Chng Yew Chin for judicial discretion in
exercising mercy is certainly welcomed for it greatly assists in ensuring that
the exercise of mercy is not ‘arbitrary or whimsical’.6
Part two of this article will explore the relationship
between judicial mercy and ill health in
The Exceptional Nature of Judicial Mercy in
Cases of Ill Health
Generally, the courts in
… it would be wrong
to assume that recourse to judicial mercy can afford a safe harbour
for criminals who might use their serious medical condition consciously and
purposefully to commit a crime thinking that leniency will be granted by dint
of their peculiar circumstances.7
In R v Bernard,8 the
English Court of Appeal established the following principles from various
English decisions concerning the sentences meted out to offenders with serious
medical conditions:
(i) a medical
condition which may at some unidentified future date affect either life
expectancy or the prison authorities’ ability to treat a prisoner
satisfactorily may call into operation the Home Secretary’s powers of release
by reference to the Royal Prerogative of mercy or otherwise but is not a reason for this court to interfere
with an otherwise appropriate sentence (Archibald Moore);
(ii) the fact that an offender is HIV positive, or
has a reduced life expectancy, is not generally a reason which should affect
sentence (Archibald Moore and Richard Moore);
(iii) a serious medical condition,
even when it is difficult to treat in prison, will not automatically entitle
an offender to a lesser sentence than would otherwise be appropriate (Wynne);
(iv) an offender’s serious medical condition may enable
a court, as an act of mercy in the exceptional circumstances of a particular
case, rather than by virtue of any general principle, to impose a lesser
sentence than would otherwise be appropriate.9 (emphasis
added)
The Hong Kong Court of Appeal in R
v Chan Kui Sheung10 endorsed
the third and fourth principles enunciated in Bernard.11 Chan
Kui Sheung was
concerned with a paraplegic offender who had been convicted of a number of
serious indecent assault charges against young female students committed at his
home. After taking into account, among other things, the offender’s medical
condition ‘as an act of mercy’,12 the court
reduced the offender’s sentence for one of the charges from four years to 18
months.13
In formulating the framework of
factors to be considered and balanced in the exercise of mercy, the High Court
in Chng Yew Chin did not only rely on
the English and Hong Kong decisions mentioned above, but also the Australian
jurisprudence on the effect of ill health on sentence.
Whether Imprisonment
will be a Greater Burden on the Offender by Reason of His State of Health: R
v SMITH14
In the landmark
Australian case of Smith, King CJ observed:
Generally speaking ill health will be a factor tending
to mitigate punishment only when it appears that imprisonment will be a greater
burden on the offender by reason of his state of health or when there is a
serious risk of imprisonment having a gravely adverse effect on the offender’s health.15
There are therefore
two limbs to the Smith test concerning ill health as a mitigating
factor:
1 when
it appears that imprisonment will be a greater burden on the offender by reason
of his state of health (‘first limb’); and
2 when
there is a serious risk of imprisonment having a gravely adverse effect on the
offender’s health (‘second limb’).
After citing the Smith
test, the High Court in Chng Yew Chin
then referred to the unanimous decision of the Court of Appeal of the Supreme
Court of Victoria in R v Boyes,16
which reinterpreted the first limb of the Smith test. According to the
court in Boyes, the relevant criterion was not
whether imprisonment would be more difficult for the offender than for an
ordinary inmate, but ‘whether the burden of imprisonment on the offender will
be increased because of his disability.’17
Chernov JA in Boyes
gave a striking illustration of the court’s reinterpretation of the first
limb of the Smith test. Using the example of an offender who had lost an
arm, Chernov JA opined that because of the offender’s
loss of one arm, he might find that it was more onerous for him to cope with
prison life than for an inmate with two arms. However, that did not mean that
imprisonment would be a greater burden for him because his difficulty in coping
with the consequences of his disability was the same in prison and outside it.
Whether his burden of imprisonment would be greater as compared with ordinary
inmates was irrelevant. Chernov JA was of the view
that the offender’s burden of imprisonment would be greater inside prison when
compared with ordinary inmates, ‘just like his burden of coping with life outside
prison with only one arm would be greater by comparison with able-bodied
people.’18 (emphasis in original)
Initially, the High
Court did not appear to have accepted the views of the Boyes
court because after discussing Boyes, it made
the following comment:
… while an
offender who suffers an increased burden on account of his health may not
always be viewed sympathetically, it does not preclude taking into account in
exceptional cases the fact that an offender’s disability would result in a
burden considerably greater than the ordinary inmate: Chan Kui Sheung at 285.19
In Chan Kui Sheung, the Hong Kong
Court of Appeal received new evidence to the effect that a penal institution
could not be expected to provide suitable facilities required by a person in
the paraplegic offender’s case.20 The court held that it could not
‘therefore overlook the additional suffering of the applicant compared with the
able bodied inmates due to his severe handicap.’21
But later, the High
Court in Chng Yew Chin did seem to have
adopted the views of the Boyes court. In
drawing up a suggested framework of factors to be used in cases where the
offender prayed for mercy to be exercised based on his ill health (which the
court cautioned was not exhaustive),22 the
court cited the following factors to be weighed against the nature and
circumstances of the offence, the offender’s receptiveness to regular treatment
and financial ability to maintain his medical treatment and the public
interest:
(a) the severity of the ill health of the accused;
(b) the likelihood of the term of imprisonment or
other punishment increasing the burden on the accused and the impact that the accused’s ailment will have on his ability to cope with the
prison system;
(c) the likelihood of the term of imprisonment or
other punishment exacting a hardship either manifestly excessive of what a
prisoner without his health condition would suffer or patently
disproportionate to his moral culpability or both; and
(d) the probable aggravation of the accused’s
health due to his term in prison. This does not necessarily entail an
assessment of the prison’s medical facilities; rather it requires an assessment
of whether the stress, anxieties and hardship associated with a term in prison
would exacerbate the accused’s condition. The fact that
the accused may not be able to receive adequate (though not necessarily
perfect) care in prison is, however, relevant.23 (emphasis
added)
While not expressly stated in the
judgment, factor (b) appears to be strongly correlated to the reinterpretation in
Boyes of the first limb of the Smith
test. On the other hand, the highlighted portion of factor (c) seems to reflect
the position rejected in Boyes but applied in Chan
Kui Sheung.
Evaluation of the Smith
Test as Applied in Chng Yew Chin
On the face of it, a
conflict is likely to arise from the juxtaposition of factor (b) (Boyes’ reinterpretation) and factor (c) (the
traditional interpretation) in the High Court’s
suggested framework for exercise of mercy. This is especially so because
slightly more than a year after the Boyes
decision was delivered, a different Court of Appeal of the Supreme Court of
Victoria24 in R v Adrian John Van Boxtel25
unanimously maintained the traditional interpretation of the first limb of the Smith
test. The court held that ‘[t]he weight of authority, and Victorian sentencing
principles, support the view that it is a circumstance of mitigation that a
sentence of imprisonment will be significantly more burdensome for a prisoner
than for a person in normal health.’26
Callaway JA declined
to follow the court in Boyes on the basis that
the court was ‘not bound by R v Boyes because
of the weight of previous, contrary authority’.27 He noted although
special leave to appeal was refused from Boyes,
that did not elevate Boyes to the status of a
decision of the High Court which would bind the court.28
According to the Boxtel court, the first limb of the Smith
test did not contemplate that ‘imprisonment will make the offender’s ill health
a greater burden but that the offender’s ill health will make imprisonment a
greater burden.’29 Callaway JA then referred to the analogy of the
one-armed offender in Boyes as follows:
If a one-armed person will, for that reason, find
prison life more difficult than a person with both arms, he or she is more
severely punished than an able-bodied co-offender if they are given the same
sentence. Even emotional stress may be taken into account, with due caution, in
that way: for example, a mother separated from young children may find the
burden of imprisonment greater on that account. The weight to be given to such
mitigating factors is another matter altogether. In some cases, they are of
great consequence; in other cases, they make no difference when all the
relevant circumstances are taken into account.30
Nevertheless, on the facts of Boxtel, the court was not persuaded that the
offender’s residual disabilities caused by an assault while he was in remand
were sufficiently mitigating to lead to the court passing a lower sentence.31
In light of the conflicting
Australian decisions of Boyes and Boxtel, it is difficult to reconcile the High
Court’s acceptance of both factors (b) and (c) in the suggested framework for
mercy. Although the High Court pointed out that all the factors in the
suggested framework should be looked at ‘holistically and not in isolation’,32 an actual conflict is likely to arise given
that both factors (b) and (c) were framed conjunctively to be weighed against
other factors. The analogy of the one-armed offender used in Boyes and Boxtel
is a good example of the conflict.
Boxtel was not discussed in Chng Yew Chin
and it may be that the High Court would have re-considered incorporating factor
(b) in its suggested framework had Boxtel been
taken into account. As mentioned above, the High Court did initially appear to favour the traditional interpretation of the first limb of
the Smith test.
Moreover, on the facts of Chng Yew Chin, the High Court adopted the
traditional view by noting that imprisonment for the offender, who was a cancer
patient, ‘could well have very harsher consequences for him than what is
intended for the ordinary offender’.33 After considering the
offender’s medical condition and all relevant factors, the High Court held that
it was ‘an appropriate case for the exercise of judicial mercy’,34
and reduced the sentence for the most serious offence of outrage of modesty
from four months’ imprisonment and three strokes of the cane to a $5,000 fine
and in default thereof a term of imprisonment of
six weeks.35
Further, there is a difficulty with
the analogy in Boyes that a one-armed offender
will face the same greater difficulty in coping with the consequences of his
disability in prison and outside it. This presumes that the environments in
prison and outside it are equal and identical. But as Chan Kui Sheung demonstrated,
there was a limit to what the prison authorities could do to take care of the
needs of the paraplegic offender. It also seems far-fetched to equate the
inherent solitariness and regimentation of prison life with life outside
prison.
Conclusion
A detailed
framework for the exercise of judicial mercy in Chng
Yew Chin has emerged from the chrysalis of a vague doctrine of mercy based
on compassion in England.36 In the light of Boxtel,
Singapore courts should re-examine their adoption of the view in Boyes that the correct interpretation of the first
limb of the Smith test is whether imprisonment will make the offender’s
ill health a greater burden. Boxtel and
Chan Kui Sheung
strongly suggest that in exercising mercy,
Alvin Chen*
The Law Society of
E-mail: alvin@lawsoc.org.sg
Notes
1 [2006]
4 SLR 124 [Chng Yew Chin].
2 Ibid,
at 141, para. 51.
3 Ibid,
at 145, para. 62.
.
4 The
Penguin Dictionary of Quotations from Shakespeare, 1995, s.v. ‘Law and Lawyers’
5 Ibid.
6 Supra, note 1, at 147, para.
67.
7 Ibid, at 145, para. 62.
8 [1997] 1 Cr App R (S) 135 Bernard].
9 Ibid, at 138.
10 [1996] 3 HKC 279
[Chan Kui Sheung].
11 Ibid, at 284.
12 Ibid.
13 Ibid, at 285.
14 (1987) 44 SASR 587 [Smith].
15 Ibid, at 589.
16 (2004) 8 VR 230 [Boyles].
17 Ibid, para. 20.
18 Ibid, para 21.
19 Supra, note 1, at 143, para.
56.
20 Supra, note 10, at 285.
21 Ibid.
22 Supra, note 1, at 145, para. 61.
23 Ibid,
at 144, paras. 59 and 60.
24 Comprising
of Ormiston, Charles and Callaway JJA.
25 (2005) VSCA 175 [Boxtel].
26 Ibid,
at para. 30.
27 Ibid,
at para. 33, note 22.
28 Ibid.
29 Ibid,
at para. 33.
30 Ibid.
31 Ibid,
at para. 35.
32 Supra,
note 1, at 145, para. 62.
33 Ibid,
at 146, para. 64.
34 Ibid,
at 147, para. 66.
35 Ibid,
at 128 and 147, paras 2 and 68.
36 Nigel
Walker, Aggravation, Mitigation and Mercy in English Criminal Justice
(Great Britain: Blackstone Press Limited, 1999) at 220.
*The views expressed herein are
solely the author’s own.