Extra jail time not automatically given if caning sentences cannot be carried out

SINGAPORE — If a male offender aged 50 years old and below was suddenly deemed unfit for caning after being sentenced to such a punishment, should he automatically be given an additional jail term?

No, ruled Chief Justice Sundaresh Menon, Judge of Appeal Chao Hick Tin and Justice See Kee Oon in the High Court on Tuesday (May 9).

This particular question was raised during Amin Abdullah’s appeal against the additional 30 weeks’ jail he was given in lieu of the caning, after a prison medical officer found that the medical conditions he was suffering from made him “unfit for caning”.

The 48-year-old, who was unrepresented, was convicted after claiming trial for a charge of possessing for the purpose of trafficking not less than 13.2g of diamorphine. Later, he also pleaded guilty to a second charge of possessing 0.27g of diamorphine.

For his offences, Amin was initially sentenced to 20 years’ jail and 15 strokes of the cane. As he could not be caned, the district judge sentenced him to an additional 30 weeks’ jail.

While the three judges ruled on Tuesday that the court should not assume that an offender’s jail time should be enhanced once he is exempted from caning, they dismissed Amin’s appeal.

CJ Menon said the judges found that even with the additional jail term, Amin’s sentence was on the low side and “certainly not manifestly excessive”. The sentencing range for those who traffic between 10 and 15g of diamorphine is between 20 and 30 years’ jail. Amin had trafficked 13.2g of diamorphine, which was well past the halfway range and should have been sentenced well above the mandatory minimum punishment, said CJ Menon.

However, the Chief Justice also noted that Amin’s appeal case had offered the judges the opportunity to deal with the important question of how the court should approach the issue of when, and whether, to enhance the imprisonment sentence when the offender is suddenly exempted from caning.

Certain categories of offenders cannot be caned from the outset, such as women, and men above 50 years old. For these offenders, the court can impose a jail in lieu of the forgone caning.

But Amin’s situation falls under Section 332(2) of the Criminal Procedure Code, when the caning sentence cannot be fully or partially carried out, and the court has the powers to decide whether to set aside the caning sentence or to impose an additional jail term instead.

CJ Menon noted that this means that while the courts are given the power to impose an additional punishment, it does not lead to the conclusion that they “must exercise that power absent good reason not to”.

The starting position taken by the courts should be that they should not enhance the sentences unless there are grounds to do so, he said.

Mr Benjamin Koh, an amicus curiae (friend of the court) for this case, also noted that Parliament could have expressly stated that the court must impose an additional imprisonment term in lieu of the original caning sentence, but it did not. An amicus curiae is appointed by the court in certain cases to assist with legal issues.

When deciding how the court should exercise its powers in such cases, the court could consider, among other things, if an additional imprisonment term would be consistent with Parliament’s intention when the latter enacted the various sentencing regimes.

For instance, certain offences under the Immigration Act carry mandatory caning sentences to avoid jailing those who overstayed in Singapore for long periods and free up jail space.

Parliament’s intention in enacting such a sentencing regime would clearly be undermined if the court chose to impose an additional jail term in lieu of caning in such instances, said Mr Koh.

On how the court should determine the length of an additional jail term if it decides to impose one, he noted that the court could run into some difficulties if it were to use a fixed formula to determine the length of jail term for each forgone stroke of the cane.

Instead, it could be better for the court to adopt a flexible approach that weighs all factors of the case when determining the length of the additional jail term, added Mr Koh.

The judges will issue a detailed written grounds of judgment at a later date.