Extra jail time for those exempted from caning, only if justified: High Court

SINGAPORE — Unless there is a need to emphasise the deterrent or retributive effect of caning, or be fair to co-offenders, convicted persons exempted from being caned should not have their jail terms enhanced, the High Court has ruled.

It said in a written judgment released on Tuesday that even if these criteria are met, judges should not automatically hand down more jail time.

Rather, they should look at the case in totality, and consider other factors such as old age, medical conditions, or parliamentary intention for the offence in question.

Offences may include those in which there is violence committed or those that have an impact on public order and social safety, such as serious drug and moneylending activities.

In May, Chief Justice Sundaresh Menon, Judge of Appeal Chao Hick Tin and Justice See Kee Oon dismissed drug trafficker Amin Abdullah’s appeal against the extra jail time he received in lieu of caning.

The 48-year-old was at first sentenced to 20 years’ jail and 15 strokes of the cane, but after he was found medically unfit for caning, Amin was sentenced to another 30 weeks in jail by a district judge.

In the 38-page written judgment, the judges said that so far, the courts have been inconsistent in answering questions of when jail time should be enhanced concerning these offenders, and by how much.

They laid out guidelines for the extent of such penalties — ranging from up to 3 months’ jail in lieu of up to six strokes of the cane, to between nine and 12 months’ jail for more than 19 strokes avoided.

Extra jail time should be the exception rather than the rule, they said, noting that Parliament’s legislative intention is to treat certain categories of offenders differently from others.

These include women, men above the age of 50, those deemed medically unfit for caning, and those already sentenced to the maximum number of strokes.

Prosecutors had argued that the court’s “default position” should be to lengthen the jail term in lieu of caning, barring “special circumstances”.

Past cases involving female drug importers also featured tougher sentences in the absence of “special circumstances that justify doing otherwise”. In one case, the High Court extended the convict’s jail term by the maximum 12 months in lieu of 15 strokes of the cane.

The judges disagreed on this, finding that while the relevant laws give the courts power to impose stiffer jail terms on these offenders, they do not “impose an obligation”.

“The starting point, in our judgment, is that the discretion to enhance the term of imprisonment should only be exercised if there are grounds to justify doing so. Hence, as a general matter, the sentence should not be enhanced until and unless the sentencing judge has considered the matter and concluded that there are grounds to warrant it.”

If would-be offenders had expected that they would be excused from caning due to gender or age, extra jail time would “more readily seen to be called for” by the court, in order to compensate for the lost deterrent effect, because these potential offenders had already “contemplated” it.

Conversely, it would “generally not be necessary” to enhance the sentences of those who have been exempted on medical grounds, the judges said.

“Of course, these are mere guidelines, and each case must be decided on its own facts.”

In Amin’s case, the three judges found that even with more jail time imposed, his sentence was on the low side, so they dismissed his appeal.

Amin was found guilty of trafficking 13.2g and 0.27g of diamorphine. Those who traffic 10g to 15g of the drug can expect to get 20 to 30 years’ jail. As the amount he had trafficked was well past the halfway range, he should thus have been sentenced well above the mandatory minimum punishment, the court ruled.