21 Miscellaneous Matters A. Disposal of Property What is covered
Property seized in the course of investigations Property tendered
in court as evidence during trial Procedure Disposal without
inquiry (no competing claims) Disposal inquiry (competing claims)
(DI) o Very much like a trial o Opening address; examination of
witnesses; submissions Disposal Order made delivery, confiscation,
forfeiture, destructions The Provisions General disposal provisions
in CPC: s386 392 o Where there is no prosecution: s392 CPC o Where
there is prosecution: s386 CPC Where there is no prosecution
Procedure by police on seizure of property. 392. (1) The seizure by
any police officer of property taken under section 29 or alleged or
suspected to have been stolen, or found under circumstances which
create suspicion of the commission of any offence shall be
forthwith reported to a Magistrates Court which shall make such
order as it thinks fit respecting the delivery of the property to
the person entitled to the possession of it or, if that person
cannot be ascertained, respecting the custody and production of the
property. (2) If the person so entitled is known, the Magistrates
Court may order the property to be delivered to him on such
conditions, if any, as the Magistrates Court thinks fit. (3) The
Magistrates Court shall, on making an order under subsection (2),
cause a notice to be served on that person, informing him of the
terms of the order, and requiring him to take delivery of the
property within such period from the date of the service of the
notice (not being less than 48 hours) as the Magistrates Court may
in the notice prescribe. (4) If that person is unknown or cannot be
found the Magistrates Court may direct that it be detained in
police custody and the Commissioner of Police shall, in that case,
issue a public notification, specifying the articles of which the
property consists and requiring any person who has a claim to it to
appear before him and establish his claim within 6 months from the
date of the public notification: Provided that, where it is shown
to the satisfaction of the Magistrates Court that the property is
of no appreciable value, or that its value is so small as, in the
opinion of the Magistrates Court, to render impracticable the sale,
as hereinafter provided, of the property, or as to make its
detention in police custody unreasonable in view of the expense or
inconvenience that would thereby be involved, the Magistrates Court
may
order the property to be destroyed or otherwise disposed of,
either on the expiration of such period after the publication of
the notification above referred to as it may determine, or
forthwith, as it thinks fit. (5) Every notification under
subsection (4) shall be published in the Gazette if the value of
the property amounts to $100. S392 CPC o Deals with seizure of
property taken from: an arrested person under s 29(1) CPC (all
articles other than necessary wearing apparel and any of those
articles where there is reason to believe were instruments or
fruits or other evidence of the crime) , or alleged to have been
stolen or found under circumstances which create suspicion of the
commission of any offence (see s 68(1) CPC). s. 392 CPC concerns
the disposal of property seized by the police or alleged to be
stolen or found under circumstances, which create the suspicion of
the commission of any offence this section applies where no trial
has taken place Sim Cheng Ho v Lee Eng Soon: A disposal inquiry was
intended to be an inexpensive and expeditious manner of
distributing items produced in the course of investigations and at
trial Such an inquiry was not conclusive as to title which should
be taken up in a civil trial if need be A magistrate determining a
disposal inquiry where entitlement to possession was disputed had
to look to the facts of each case to ascertain the party entitled
to possession Where entitlement was not clear from the evidence,
the magistrate ought to deliver possession to the party to whom,
after a consideration of the evidence, appeared to him to have been
entitled to possessiono
Police have to report seizure to Magistrate (shall) who will
make a disposal order (whether with or w/o inquiry depending on
whether there is contested)
o Court order not required in every case. See if there are
specific provisions under legislation pursuant to which seizure was
effected. E.g. s 42(11) EPHA (environmental public health act)
where food or perishable articles seized by NEA officers and are
likely to decay may be disposed of immediately. Possible disposal
orders under s 392 regime: Delivery to person entitled to
possession: s 392(2) Detention in police custody if person entitled
is not known; CP to issue public notification): s 392(4)
Destruction (after notification period or forthwith): s 392(4) Sale
of property and proceeds to owner: ss 394
Where there is prosecution Order for disposal of property. 386.
(1) During or at the conclusion of any inquiry or trial in any
criminal court the court may make such order as it thinks fit for
the disposal of any document, livestock or other property produced
before it. (2) The power conferred upon the court by this section
includes power to make an order for the forfeiture or confiscation
or for the destruction or for the delivery to any person of any
property regarding which any offence is or was alleged to have been
committed or which appears to have been used for the commission of
any offence but shall be exercised subject to any special
provisions regarding forfeiture, confiscation, destruction or
delivery contained in the Act under which the conviction was had or
in any other Act applicable to the case. (3) When the High Court or
a District Court makes such order and cannot, through its own
officers, conveniently deliver the property to the person entitled
to it, that court may direct that the order shall be carried into
effect by a Magistrate. (4) When an order is made under this
section in a case in which an appeal lies, the order shall not,
except when the property is livestock or is subject to speedy and
natural decay, be carried out until the period allowed for
presenting an appeal has passed or, when an appeal is presented
within that period until the appeal has been disposed of. (5) In
this section property includes, in the case of property regarding
which an offence appears to have been committed, not only such
property as was originally in the possession or under the control
of any party, but also any property into or for which it has been
converted or exchanged and anything acquired by such conversion or
exchange, whether immediately or otherwise. s. 386 CPC allows the
court to make an order for the forfeiture, confiscation,
destruction or delivery to any person of any property at the
conclusion of any inquiry or trial in any criminal court Applies
where there is an inquiry or trial in any criminal court: s 386(1)
Power to deal with property regarding which any offence is or was
alleged to have been committed or which appears to have been used
for the commission of any offence: s 386(2) Eg get away car
property includes property originally in possession/ under control
of any party, but also property into or for which it has been
converted or exchanged etc: s 386(5) ie cash can be seized as well
Court can make these disposal orders: Forfeiture or confiscation
Destruction Delivery to any person Note that these powers are
subject to special provisions in any other Act applicable to the
case, e.g. Customs Act, Misuse of Drugs Act, Immigration Act,
etc.
Examples of orders: (a) To respective owners; (b) to police for
disposal; (c) for Disposal Inquiry (if there is dispute as to who
shld get the item); (d) Forfeited/confiscated for destruction eg
drugs
Procedure of Disposal Inquiry Disposal without inquiry (no
competing claims). Disposal Inquiry (competing claims). Opening
Address where prosecutor presents facts surrounding seizure of
property. Prosecutor presents facts surrounding the seizure of the
property and state the result or outcome of any trial held. Notes
of Evidence presented to court Examination of Witnesses to assist
in determining who is entitled to possession Prosecution witnesses
followed by contesting parties Submissions Order of Court whereby
delivery of property made to person court thinks is entitled to
possession. Or it is confiscated, forfeited, destroyed, for DI etc.
Applicable Principles A Disposal Inquiry is intended to be an
inexpensive and expeditious manner of distributing items produced
in the course of investigations or at trial. Purpose of DI is to
determine person who is entitled to the possession of the property
except where possession is unlawful. Such an inquiry is not
conclusive as to title. The rightful owner can and should assert
his rights in a separate civil trial. Court has a wide discretion
in making an order. Relevant Cases: Magnum Finance Bhd v PP, Thai
Chong Pawnshop Pte Ltd v Vankrisappan Sim Cheng Ho v Lee Eng Soon
[1998] 1 SLR 346 - 3 vehicles belonging to complainant and company.
A Nissan, Pick-up and a Van. The Nissan was owned by a Mrs. Sim.
The pick up and the Van was owned by a dormant company controlled
by her. The Nissan was transferred to Mrs. Sims hubby (respondent)
and pick up and Van transferred to his company between August &
December 1994. In 1995, Mrs. Sim lodged a police report that her
signatures on the instruments of transfer were forged. Police
investigation followed. The vehicles were seized from respondents
possession during the police investigation. - Later in 1995, Mrs.
Sim died and left all property to her trustees (executors were
petitioners) to hold on trust for her mother. The Police decided
not to prosecute the respondent. Disposal Inquiry held because qn
as to what was to be done with trust. - Held: Magistrate ordered
that the vehicles be delivered to the respondent. A disposal
inquiry under s392 CPC (or generally) intended to be an inexpensive
and expeditious manner of distributing items produced in the course
of investigations and at trial (Thai Chong Pawnshop Pte Ltd v
Vankrisappan). DI not conclusive as to title. The rightful owner
can and should assert his rights in a separate civil suit. (*this
principle not factually followed in subseq cases)
No right of appeal against an order: Sofian & Anor v PP [70]
2 MLJ 272 If there is a fundamental error occasioning a clear
failure of justice, the High Court may exercise its revisionary
jurisdiction: Magnum Finance Bhd v PP DI Magistrate must look at
facts to ascertain who is entitled to possession/who appears to be
entitled to possession (*possession as opposed to ownership ie
inquiry not deep one) Magistrates order has no impact on civil
court, which is correct forum to test complex issues of fact &
law. Party aggrieved by DI decision should file civil proceedings;
petition for revision inappropriate because HCs revisionary powers
will be exercised only where there has been a fundamental error
occasioning a clear failure of justice. Petitioners ought to have
filed civil proceedings for conversion. If civil suit not completed
before DI, petitioners could persuade DI magistrate to Release
vehicles to respondent on bond to return them if civil suit is in
their favour, or Retain vehicles or proceeds in court custody
subject to order of civil court.
Thai Chong Pawnshop v Vankrisappan [94] 2 SLR 414: DI not
conclusive as to title. Rightful owner can and should assert rights
in separate civil suit No right of appeal against disposal order:
Sofian & Anor v PP [70] 2 MLJ 272; If there is fundamental
error occasioning clear failure of justice, High Court may exercise
revisionary jurisdiction. DI Magistrate must look at facts to
ascertain party entitled to possession. Order made at DI has no
impact on civil court, which is correct forum to test complex
issues of fact and law. Party aggrieved by DI decision should file
a civil proceedings; petition for revision not appropriate route
(because of when revisionary powers will be exercised in favour of
petitioner).In this case, petitioners ought to have filed civil
proceedings for conversion. If civil suit not completed prior to
DI, petitioners could persuade DI Mag to (a) release vehicles to
respondent on bond to return to them if civil suit is in their
favour, OR (b) retain vehicles or proceeds in court custody subject
to order of civil court.
Wang Wang Pawnshop PteLtd & others v KJ Tiffany & other
[2004] 2 SLR 222 - jewellery seized, shld they be returned to
pawnshop owners or to the jewellers? - At DI district judge ordered
most of items to be ordered to orig owners; pawn shop unhappy and
filed for criminal revision - Application for Criminal Revision on
a DI decision (argued fundamental error of law resulting in clear
failure of justice
-
Judge presiding over DI not obliged simply restore the items to
the last person in lawful possession Ownership / title was
examinedwhether person who pawned jewellery to pawnshop had title
to pledge nemo dat quod non habet Nevertheless, petitioners should
have commenced civil proceedings to determine title ie paid lip
service to sim cheng ho case though factually strayed from it found
tt person who had pawned jewellery to shop had no title to pledge
=> pawnshop had no good title so jewellery went back to the
jewellers ie court can determine title for property
Forfeiture General Blacks Law Dictionary - forfeiture = a loss
of some right or property as a penalty for some illegal act
When is forfeiture of property mandatory and when is it
discretionary? depends on statutory interpretation of the relevant
legislative provisions Forfeiture Mandatory:
Section 123(2) Customs Act: An order for the forfeiture of goods
shall be made if it is proved to the satisfaction of the court that
an offence under this Act has been committed and that the goods
were the subject matter of, or were used in the commission of, the
offence, notwithstanding that no person may have been convicted of
the offence. Prosecution only needs to show that: Goods were
subject matter of OR were used in commission of the offence. Once
prosecution is able to show this and makes the decision to proceed
with the application for forfeiture, court must forfeit.
Meaning of used in the commission of the offence- nexus with
offence PP v Mayban Finance (Singapore) Ltd [1998] 1 SLR 462 -
Lorry used to transport immigration offender from his place to the
construction site where he stayed. The issue here was whether lorry
was used in the commission of the offence of employing the
immigration offender. - Held: Usage of vehicle need not be an
essential ingredient of the offence. Test was whether vehicle was
directly related and substantially connected to the offence.
Providing transport to the workers was part and parcel of employing
workers. Transport is an incident of employment. Use of lorry was
therefore substantially connected with the employment of the
illegal workers. - Goods are used in the commission of the offence
if they are directly related and substantially connected to the
commission of the offence. - As long as the goods are directly
related to the offence, it does not matter that the usage of the
goods was not an essential ingredient of the offence.
-
Eg smuggling offence only involves bringin in duty unpaid goods
how goods are hidden is not essential ingreidient of the offence
but directly related and hence related to forfeiture
PP v Moey Keng Kong [2001] 4 SLR 211 - Clear case offence
committed and vehicle used to convey the goods
Other examples: s 45 RTA, s 49(6) Immigration Act. No DI needs
to be held. In many statutes, court has to make a mandatory order
for forfeiture of the property once certain preconditions are
met.
Forfeiture Discretionary s386(2) CPC an omnibus provision that
creates general power of forfeiture with respect to property
produced before court regarding which any offence appears to have
been committed or which has been used for commission of any
offence; complementary to specific forfeiture provisions contained
in other legislation residual role (for use when relevant
legislation does not deal with disposal of property) o Magnum
Finance v PP [96] 2 SLR 523 Principles governing exercise of
discretion to forfeit under s 386(2) CPC: whether property (usually
vehicle) owned by offender; If not, then degree of owners
complicity, i.e. whether he connived, participated, had Nelsonian
knowledge of commission of offence, whether owner benefited from
commission of offence value of propertyo whether forfeiture
proportionate to gravity of offence and maximum penalty prescribed
deterrence of potential offenders o relevant only where forfeited
property belongs to accused or someone tainted with complicity
extent of use of vehicle in commission of offence o relevant only
in context of a continuing offence where pty used on several
occasions for illegal purposes whether claimant could not
reasonably have taken any preventive measures regarding use of
property in commission of offence. o (see Chandra Kumar v PP [95] 3
SLR 123; Magnum Finance v PP) Other example of discretionary
forfeiture: o Specific provision - section 28(1) MDA: Where a
person has been convicted of an offence under this Act, the court
may order to be forfeited to the Govt any ship, hovercraft or
aircraft which has been proved to have been used in any manner in
connection with the offence.
In other statutes such as Section 386 of the CPC, Section 28 of
the Misuse of Drugs Act and Section 20(4) EPHA, court still retains
discretion despite the fact that the property in question was used
in commission of the offence.
B, Accused Persons of Unsound Mind Two distinct issues o
Unsoundness of mind in relation to fitness to plead mad at time of
trial o Unsoundness of mind as a defence to the charge mad at time
of offence When the accused is brought before the Court, and is
suspected to be of unsound mind, the Court may remand the accused
for observation in a mental hospital, and fix the case for further
mention to receive the psychiatric report on the observation
[Section 308, 309] When the psychiatric report is presented to the
Court, the Court will have to determine whether the accused is fit
to stand trial [Section 309] If the accused is not fit to stand
trial the Court may release him on bail if the offence is bailable
or else report the case to the Minister s 308(5) CPC - PP may apply
to Court before trial for accused to be remanded at mental hospital
(IMH) for observation for up to 1 mth if there is suspicion of
unsoundness of mind; s 308(1) CPC - Court to investigate if
reasonable suspicion of unsoundness of mind and consequent
incapability to make defence s 308(3) CPC - Court power to send
accused to IMH for observation up to 1 mth if not satisfied accused
capable of making defence; s 308(4) - potential extension of
observation period s 309 CPC - Medical superintendent will certify
accuseds state of mind and fitness to make his defence. Court may
or may not agree with assessment. o If capable of making defence -
trial proceeds o If incapable of making defence - trial
postponed.
Procedure when accused is suspected to be of unsound mind. 308.
(1) When a Judge or District Judge holding a trial or a Magistrate
holding or about to hold an inquiry or trial has reason to suspect
that the accused is of unsound mind and consequently incapable of
making his defence, the Judge, District Judge or Magistrate, as the
case may be, shall in the first instance investigate the fact of
such unsoundness. (2) Such investigation may be held in the absence
of the accused person if the court is satisfied that owing to the
state of the accuseds mind it would be in the interests of the
safety of the accused or of other persons or in the interests of
public decency that he should be absent, and the court may receive
as evidence a certificate in writing signed by a medical officer to
the effect that the accused person is in his opinion of unsound
mind
or is a proper person to be detained for observation in a mental
hospital, or the court may, if it sees fit, take oral evidence from
a medical officer on the state of mind of the accused person. (3)
If the Judge, District Judge or Magistrate, as the case may be, is
not satisfied that that person is capable of making his defence,
the court shall postpone the inquiry or trial and shall remand that
person for a period not exceeding one month to be detained for
observation in a mental hospital. (4) The medical superintendent
shall keep that person under observation during the period of his
remand and before the expiry of that period shall either in person
or in writing certify to the court his opinion as to the state of
mind of that person, and if he is unable within that period to form
any definite conclusion, shall so certify to the court and shall
ask for a further remand. Such further remand may extend to a
period of two months. (5) Any court before which a person suspected
to be of unsound mind is accused of any offence may, on the
application of the Public Prosecutor, made at any stage of the
proceedings before the trial, order that that person be sent to a
mental hospital for observation. The medical superintendent may,
notwithstanding any other provision of law, detain any such accused
person for such period, not exceeding one month, as may be
necessary to enable him to form an opinion as to the state of mind
of that person, and shall forward a copy of his opinion, in
writing, to the Public Prosecutor. [307 Certificate of medical
superintendent. 309. (1) If the medical superintendent certifies
that the accused person is of sound mind and capable of making his
defence, the court shall, unless satisfied to the contrary, proceed
with the inquiry or trial, as the case may be. (2) If the medical
superintendent certifies that that person is of unsound mind and
incapable of making his defence, the Judge, District Judge or
Magistrate shall unless satisfied to the contrary, find
accordingly, and thereupon the inquiry or trial, as the case may
be, shall be postponed but if the Judge, District Judge or
Magistrate is satisfied that the accused person is of sound mind
and capable of making his defence the court shall proceed with the
inquiry or trial, as the case may be. (3) The trial of the issue as
to whether or not the accused person is of unsound mind and
incapable of making his defence shall, if the finding is that he is
of sound mind and capable of making his defence, be deemed to be
part of his trial before the court. (4) The certificate of the
medical superintendent shall be receivable as evidence under this
section. (5) If the accused person is certified to be of unsound
mind and incapable of making his defence it shall not be necessary
for him to be present in court during proceedings under this
section and he may be detained in a mental hospital pending an
order under section 310.
Section 310 release of person of unsound mind pending
investigation or trial s 310 CPC - conditions for release(bailable)
of accused who is found incapable of making defence, or continued
confinement(non-bailable)
Release of person of unsound mind pending investigation or
trial. 310. (1) Whenever an accused person is found to be of
unsound mind and incapable of making his defence, the court, if the
offence charged is bailable, may, in its discretion, release him on
sufficient security being given that he will be properly taken care
of and will be prevented from doing injury to himself or to any
other person, and for his appearance when required before the court
or such officer as the court appoints in that behalf. (2) If the
offence charged is not bailable or if sufficient security is not
given, the court shall report the case to the Minister who may, in
his discretion, order the accused to be confined in a mental
hospital or other suitable place of safe custody and the court
shall give effect to the order. (3) Pending the order of the
Minister the accused may be remanded for detention in a prison,
mental hospital or other suitable place of safe custody.
s 312 CPC - accused released under s310 may be brought before
court and s308 procedure of assessing fitness repeats
Resumption of inquiry or trial. 311. Whenever an inquiry or
trial is postponed under section 308 or 309 the court may at any
time reopen the inquiry or commence the trial de novo and require
the accused to appear or be brought before the court. [310
Resumption of proceedings under section 308. 312. When the accused
has been released under section 310 the court may at any time
require the accused to appear or be brought before it and may again
proceed under section 308.
s 313 - 315 CPC: If Accused is of sound mind at the time of
trial, but was unsound at time of offence, case proceeds. Accused
will be acquitted o he was by reason of unsoundness of mind
incapable of knowing the nature of the act alleged as constituting
the offence or that it was wrong or contrary to law Order of
acquittal on grounds of unsoundness of mind must state if Accused
factually did the act constituting the offence If yes, court shall
order custody of Accused and report case to Minister of Law, who
will decide on confinement of Accused at Presidents pleasure.
o If the accused is fit to stand trial and to plead, the Court
will proceed with the trial or inquiry. [Section 314 and 315;
Section 313] o Section 313 when accused appears to have been of
unsound mind Section 314 judgment of acquittal on ground of mental
disorder Section 315 safe custody of person acquitted
Where the Court proceeds with a trial, the accused has to be
acquitted if he was of unsound mind when he committed the offence,
but the case has to be reported to the Minister and the accused has
to be remanded pending the Ministers Order - [Section 314,
315].
When accused appears to have been of unsound mind. 313. When the
accused appears to be of sound mind at the time of any inquiry
before a Magistrates Court and the Court is satisfied from the
evidence given before it that there is reason to believe that the
accused committed an act which if he had been of sound mind would
have been an offence and that he was at the time when the act was
committed by reason of unsoundness of mind incapable of knowing the
nature of the act or that it was wrong or contrary to law, the
Court shall proceed with the case and, if the accused ought
otherwise to be committed to the High Court, send him for trial.
[312 Judgment of acquittal on ground of mental disorder. 314.
Whenever any person is acquitted upon the ground that at the time
at which he is alleged to have committed an offence he was by
reason of unsoundness of mind incapable of knowing the nature of
the act alleged as constituting the offence or that it was wrong or
contrary to law, the finding shall state specifically whether he
committed the act or not. [313 Safe custody of person acquitted.
315. (1) Whenever the finding states that the accused person
committed the act alleged, the court before which the trial has
been held shall, if that act would but for incapacity found have
constituted an offence, order that person to be kept in safe
custody in such place and manner as the court thinks fit and shall
report the case for the orders of the Minister. (2) The Minister
may order that person to be confined in a mental hospital, prison
or other suitable place of safe custody during the Presidents
pleasure. o Persons confined under Section 310 or 315. (See Section
316, 318 & 319 of the CPC)
s 317 CPC - accused confined under s 310 may be brought before
court and trial proceeded with if certified capable to make defence
s 319 CPC - friend or relative of accused confined under s 310 may
take custody of accused o Minister must first be satisfied that the
person will be properly taken care of and prevented from doing
injury to himself or others.
Visiting of prisoners of unsound mind. 316. When any person is
confined under section 310 or 315 the medical officer of the
prison, if that person is confined in a prison, or the visitors of
the mental hospital, or any two of them, if he is confined in a
mental hospital, may visit him in order to ascertain his state of
mind, and he shall be visited once at least in every 6 months by
that medical officer or by two of those visitors, and the medical
officer or visitors shall make a special report to the Minister as
to the state of mind of that person.
Procedure when person of unsound mind reported able to make
defence. 317. When any person is, under section 310, confined (a)
in a prison and is certified by the medical officer thereof to be
capable of making his defence; or (b) in a mental hospital and is
similarly certified by the medical superintendent and any two
visitors thereof, that person shall be taken before the court at
such time as the court appoints, and the court shall proceed with
the trial or inquiry, as the case may be, and the aforesaid
certificate shall be receivable as evidence. Procedure when person
of unsound mind reported fit for discharge. 318. If the medical
officer of a prison or the medical superintendent and two visitors
of a mental hospital in which a person is confined under section
310 or 315 certify that that person in his or their judgment may be
discharged without danger of his doing injury to himself or to any
other person, the Minister may thereupon order him to be discharged
or to be detained in custody or in prison or to be transferred to a
mental hospital if he has not been already sent to a mental
hospital, and, in case he orders him to be transferred to a mental
hospital, may appoint a commission consisting of a Magistrate and
two medical officers to make formal inquiry into the state of mind
of that person, taking such evidence as is necessary, and to report
to the Minister, who may order his discharge or detention as he
thinks fit. Delivery of person of unsound mind to care of relative.
319. (1) Whenever any relative or friend of any person confined
under section 310 or 315 desires that that person be delivered over
to his care and custody, the Minister, upon the application of that
relative or friend and on his giving security to the satisfaction
of the Minister that the person delivered will be properly taken
care of and will be prevented from doing injury to himself or to
any other person, may, in his discretion, order that person to be
delivered to that relative or friend: Provided that if the person
is confined under section 310, the Minister may further require the
relative or friend to give security to the satisfaction of the
Minister that if at any time it appears to the Minister that that
person is capable of making his defence, that relative or friend
will produce that person for trial. (2) Whenever such person is so
delivered it shall be upon condition that he shall be produced for
the inspection of such officer and at such times as the Minister
directs. (3) Sections 316 and 318 shall mutatis mutandis apply to
persons delivered under this section. C. Juvenile Proceedings-
Section 2 of the CYPA1 defines a child and a young person. A
child means a person who is below the age of 14 years a young
person means a person who is 14 years of age or above and below the
age of 16 years.Children and Young Persons Act (Cap. 38)
1
A juvenile means person 7 years of age and above and below 16
years of age.
o Section 2 of the CPC "youthful offender" includes any child
convicted of any offence punishable by fine or imprisonment who in
the absence of legal proof to the contrary is above the age of 7
and under the age of 16 years in the opinion of the court before
which the child is convicted; The Court has the power to make an
inquiry as to the age of a person. This is provided in Section 21.
There is also a presumption under Section 43 as to the age of the
person.
Principles s 235 - Conviction of youthful offender o Court may
deal with him under the CYPA instead of sentencing him to pay a
fine or to imprisonment Youthful offender may be dealt with in
manner provided by the Children and Young Persons Act, instead of
being imprisoned. 235. When any youthful offender is convicted
before any criminal court of an offence punishable by fine or
imprisonment or by both, and whether or not the law under which the
conviction is had provides that fine or imprisonment or both shall
be imposed upon the person so convicted, that court may, instead of
sentencing the youthful offender to pay a fine or awarding any term
of imprisonment in default of payment of the fine, or of passing a
sentence of imprisonment of any kind, deal with the youthful
offender in the manner provided by the Children and Young Persons
Act.
Section 229 of the CPC.- caning awarded at any one trial not to
exceed 10 strokes caning shall be inflicted with a light rattan
Mode of executing such sentence. 229. (1) When the accused is
sentenced to caning the number of strokes shall be specified in the
sentence. In no case shall the caning awarded at any one trial
exceed 24 strokes in the case of an adult or 10 strokes in the case
of a youthful offender, anything in any Act to the contrary
notwithstanding. (2) Caning shall be inflicted on such part of the
person as the Minister from time to time generally directs. (3) The
rattan shall be not more than 1.27 centimetres in diameter. (4) In
the case of a youthful offender caning shall be inflicted with a
light rattan.
Section 213 of the CPC- Sentence of death shall not be
pronounced against accused if at the time when the offence was
committed he was under the age of 18 years - To be detained during
the Presidents pleasure instead (e.g. Anthony Lers case)
No sentence of death against person under 18 years. 213.
Sentence of death shall not be pronounced on or recorded against a
person convicted of an offence if it appears to the court that at
the time when the offence was committed he was under the age of 18
years but instead of that the court shall sentence him to be
detained during the Presidents pleasure, and, if so sentenced, he
shall be liable to be detained in such place and under such
conditions as the President directs, and while so detained shall be
deemed to be in legal custody. Governing Consideration
Section 28 of the CYPA: welfare of the child or young person
General consideration 28. (1) Every court in dealing with a child
or young person who is brought before it, either as being in need
of care or protection, or as an offender or otherwise, shall have
regard to the welfare of the child or young person and shall, in a
proper case, take steps for removing him from undesirable
surroundings, and for securing that proper provision is made for
his education and training. (2) A court shall not order a child
below the age of 10 years to be sent to an approved school, a
remand home or place of detention unless for any reason, including
the want of a fit person of his own religious persuasion who is
willing to undertake the care of him, the court is satisfied that
he cannot suitably be dealt with otherwise.
Treatment during Investigation
Section 29 of the CYPA: not to associate with adult offenders
while in detention, being conveyed to or from court or while
waiting before or after attending court
Children and young persons not to associate with adult offenders
29. No child or young person while detained in a police station or
while being conveyed to or from any court, or while waiting before
or after attending in any criminal court, shall be permitted to
associate with an adult (not being a relative) who is charged with
an offence other than an offence with which the child or young
person is jointly charged.
Section 30 of the CYPA: Juvenile arrested shall be brought
before a Juvenile Court or Magistrate who shall release him on a
bond entered into by his parent/guardian/other responsible person
to secure his attendance upon the hearing of the charge
3 Exceptions: (1) Offence triable only by the High Court (2)
Necessary in his interest to remove him from association with any
undesirable person (3) His release would defeat the ends of
justice
Bail of children and young persons arrested 30. (1) Where a
person apparently below the age of 16 years is arrested with or
without warrant, he shall be brought before a Juvenile Court. (2)
Where the person cannot be brought immediately before a Juvenile
Court, the officer making the arrest shall, without unnecessary
delay, take or send the person arrested before a Magistrate who
shall inquire into the case and unless (a) the charge is one of an
offence triable only by the High Court; (b) it is necessary in the
interest of that person to remove him from association with any
undesirable person; or (c) the Magistrate has reason to believe
that the release of that person would defeat the ends of justice,
the Magistrate shall release that person on a bond, with or without
sureties, for such amount as will, in the opinion of the
Magistrate, secure the attendance of that person upon the hearing
of the charge, being entered into by his parent or guardian or
other responsible person.
Section 53 of the CYPA: Juvenile arrested and not released on
bail may be remanded in a remand home by any police officer until
he can be brought before a court
Custody of children and young persons not released on bail 53.
(1) The Minister may provide or appoint such remand homes as may be
required for the purposes of this Act. (2) Whenever any person
apparently below the age of 16 years has been arrested and is not
released on bail, any police officer shall, notwithstanding
anything to the contrary in any other written law, cause that
person to be remanded in a remand home until he can be brought
before a court unless the officer certifies (a) that it is
impracticable to do so; (b) that he is of so unruly a character
that he cannot be safely so remanded; or (c) that by reason of his
state of health or of his mental or bodily condition it is
inadvisable to so remand him, (3) The certificate shall be produced
to the court before which the person is brought. Section 54 of the
CYPA states that a child or a young person not released on bail
shall be remanded in custody in a remand home, instead of in a
prison.
Remand of or committal to custody in remand home 54. (1) A court
on remanding a child or young person who is not released on bail
shall, notwithstanding anything to the contrary in any other
written law, instead of remanding him in custody in a prison,
remand him in custody in a remand home named in the order of remand
for the period for which he is remanded or until he is from that
place delivered in due course of law. (2) A court committing for
trial a child or young person who is not released on bail shall,
notwithstanding anything to the contrary in any other written law,
instead of committing him to prison, commit him to a remand home,
to be remanded there for the period for which he is committed or
until he is delivered from that place in due course of law.
(3) Notwithstanding subsection (1), any person whilst being
subject to the jurisdiction of the Juvenile Court who has attained
the age of 16 years but is below the age of 19 years may be
remanded at a remand home. (4) Notwithstanding subsections (1) and
(2), in the case of a young person it shall not be obligatory on
the court to remand him in or commit him to a remand home under
those subsections if the court certifies that it is impracticable
to do so, or that he is of so unruly a character that he cannot be
safely so remanded or committed, and in that case the court may
remand the young person to custody in, or may commit him to, a
prison. (5) An order of remand or committal under this section may
be varied or, in the case of a young person who proves to be of so
unruly a character that he cannot be safely remanded in a remand
home, revoked by any court; and if it is revoked the young person
may be remanded in custody in, or committed to, a prison. (6) The
order or judgment in pursuance of which a child or young person is
committed to custody in a remand home shall be delivered with the
child or young person to the person in charge of the remand home
and shall be sufficient authority for his remand in that place in
accordance with the tenor thereof. (7) A child or young person
while so remanded, and while being conveyed to and from the remand
home, shall be deemed to be in lawful custody, and if he escapes
may be apprehended without warrant and brought back to the remand
home in which he was remanded. Juvenile Proceedings
Section 32 of the CYPA - Presiding Magistrate sits alone when
finding the facts but with 2 advisors when dealing with the child
or young person
Constitution of Juvenile Court 32. (1) A Juvenile Court shall be
presided over by a Magistrate nominated by the President. (2) If at
any time, by reason of illness or other emergency, the Magistrate
nominated under subsection (1) is not available, any Magistrate,
although not so nominated, may preside over a Juvenile Court. (3)
The presiding Magistrate, when determining the method of dealing
with a child or young person in respect of whom a written report is
obtained by the Juvenile Court regarding his background, family
history, school record or such other matters, shall sit with 2
advisers from a panel of advisers nominated by the President except
that where it appears that the Court cannot without adjournment be
fully constituted and that an adjournment would be inexpedient in
the interests of justice, he may sit with one adviser or he may sit
alone. (4) Except as modified or extended by this Act, the
provisions of the Criminal Procedure Code (Cap. 68) shall apply to
a Juvenile Court as if that Court were a Magistrates Court.
Section 33(1) of the CYPA: trial of child or young person to be
by Juvenile Court, unless:
offence triable only by the High Court eg anthony ler case
murder so tried in HC even though juvenile tried by High Court
unless PP applies and legal representative of child or young person
agrees for Juvenile Court to try offence: s 33(2) o child or young
persons jointly charged with person who has attained 16 years of
age - charge heard by court of appropriate jurisdiction: s 33(3) o
proceedings before court of appropriate jurisdiction already
underway before it becomes apparent that accused is child or young
person: s 33(4) o Juvenile Court has jurisdiction to try all
offences which would be triable by a Magistrates Court, a District
Court or the High Court: s 33(5) and caveat in s 33(2)o
3 exceptions. Section 33(2), (3) & (4)
Jurisdiction of Juvenile Court 33. (1) Subject to the provisions
of this section, no child or young person shall be charged with or
tried for any offence by a court of summary jurisdiction except a
Juvenile Court. (2) Where a child or young person is charged with
any offence triable only by the High Court, he shall be tried by
the High Court unless (a) the Public Prosecutor applies to the
Juvenile Court to try such offence; and (b) the legal
representative of the child or young person concerned consents to
the offence being tried by the Juvenile Court. (3) Where a charge
is made jointly against a child or young person and a person who
has attained the age of 16 years, the charge shall be heard by a
court of appropriate jurisdiction other than a Juvenile Court. (4)
Where, in the course of any proceedings before any court of
appropriate jurisdiction other than a Juvenile Court, it appears
that the person to whom the proceedings relate is a child or young
person, the court may, notwithstanding subsection (1), proceed with
the hearing and determination of the proceedings if it thinks fit.
(5) A Juvenile Court shall have jurisdiction to try all offences
which, but for subsections (1) and (2), would be triable only by a
Magistrates Court, a District Court or the High Court. (6) A person
who has attained the age of 16 years on the date of commencement of
the hearing of the charge shall not be tried for any offence by a
Juvenile Court. (7) Where in the course of any trial before a
Juvenile Court the child or young person to whom the trial relates
attains the age of 16 years, nothing in subsection (6) shall
prevent the Juvenile Court, if it thinks fit, from proceeding with
the trial and dealing with the child or young person in accordance
with the provisions of this Act. (8) In this section, legal
representative, in relation to a child or young person who is
charged with an offence, includes any person assisting the child or
young person in his defence to the charge. Jurisdiction of a
Juvenile Court
o A person who has attained the age of 16 on the date of
commencement of the hearing of the charge shall not be tried for
any offence by a Juvenile Court (s33 (6)), i.e. age on first day of
trial. o Supersedes Ho Boon Thong v Public Prosecutor [1992] 1 SLR
756 which held that the age of the offender at the time of the
commission of the offence determines the jurisdiction of the
juvenile court. o Possible rationale: Cease to warrant special
protection of juvenile trial procedures under Section 42 CYPA if no
longer a juvenile at the time of trial. o Also avoids difficulty of
determining when the offence was committed and his age then.o
The powers of the Juvenile Court in imposing punishments are
given in Section 44 CYPA. Powers of Juvenile Courts on proof of
offence 44. (1) Subject to the provisions of this section, where a
Juvenile Court is satisfied that an offence has been proved, or
where the child or young person (referred to in this section as the
offender) admits the facts constituting the offence, the Court
shall, in addition to any other powers exercisable by virtue of
this Act or any other written law for the time being in force, have
power (a) to discharge the offender; (b) to discharge the offender
upon his entering into a bond to be of good behaviour and to comply
with such order as may be imposed; (c) to commit the offender to
the care of a relative or other fit person for a period to be
specified by the Court; (d) to order his parent or guardian to
execute a bond to exercise proper care and guardianship and to
abide by such order as the Court may make in relation to the
welfare, maintenance and rehabilitation of the offender; (e) to
make a probation order requiring the offender to be under the
supervision of a probation officer or a volunteer probation officer
for a period of not less than 6 months and not more than 3 years;
(f) to make an order, in accordance with the prescribed
requirements, requiring the offender to perform community service,
not exceeding 240 hours in aggregate, of such nature and at such
time and place and subject to such conditions as may be specified
by the Court; (g) to order the offender to be detained in a place
of detention for a period not exceeding 6 months; (h) to order the
offender to be detained in a place of detention or an approved
institution over such number of weekends, not exceeding 52, as the
Court thinks fit; (i) to order the offender to be sent to an
approved school for a period of not less than 2 years and not more
than 3 years; (j) to order the offender to pay a fine, damages or
costs; (k) to order the offender to be brought before a District
Court to be dealt with under section 13 of the Criminal Procedure
Code (Cap. 68) if the offender (i) has attained the age of 16
years; or (ii) having attained the age of 14 years but being below
the age of 16 years, has previously been dealt with by a court in
connection with another offence and had, in
respect of that other offence, been ordered under paragraph (i)
to be sent to an approved school established under section 64, and
the Juvenile Court is satisfied that it is expedient with a view to
his reformation that he should undergo a period of training in a
reformative training centre. (2) For the purpose of subsection (1),
the Juvenile Court shall have power (a) to make the orders referred
to in subsection (1) (b), (c), (d), (e), (f), (g), ( h), (i) and
(j) singly, or combine, in such manner as it thinks just and
expedient in the circumstances (i) any 2 or more of the orders
referred to in subsection (1) (b), (c), (d), ( e), (f) and (j);
(ii) any order under subsection (1) (g) with any one or more of the
orders referred to in subsection (1) (d), (e) and (j); (iii) any
order under subsection (1) (h) with any one or more of the orders
referred to in subsection (1) (c), (d), (e), (f) and (j); or (iv)
any order under subsection (1) (i) with any one or more of the
orders referred to in subsection (1) (d) and (j); and (b) without
prejudice to paragraph (a) (ii) or (iii), to make an order under
subsection (1) (h) to run consecutively to an order under
subsection (1) (g). (3) Where the Juvenile Court makes an order
under subsection (1) (g) for the detention of an offender in a
place of detention in combination with a probation order under
subsection (1) (e), the period of the offenders detention shall not
exceed 3 months. (4) Where the Juvenile Court makes an order under
subsection (1) (h) for the detention of an offender over a weekend,
the offenders detention shall commence at 3 p.m. on Saturday and
end at 5 p.m. on the Sunday immediately following. (5) If an
offender, without reasonable excuse, contravenes any order made by
the Juvenile Court under subsection (1) (referred to hereinafter as
the original order) or any condition thereof, the Juvenile Court
may make such order as is necessary for the offender to be produced
before it and thereafter, deal with the offender by (a) making any
order that the Court is empowered to make under subsection (1); (b)
varying the original order or any condition thereof; or (c)
directing the offender to comply with the original order or any
condition thereof to the extent that the original order or
condition thereof has not been complied with. (6) Where an
offender, while being detained in a place of detention or an
approved school pursuant to an order under subsection (1) (g) or
(i), is found guilty of another offence by the Juvenile Court, the
Court may, instead of making a fresh order against the offender
under subsection (1) (g) or (i), extend the period of detention
that is being served by the offender. (7) Where a Juvenile Court is
satisfied, on the representations of the manager of a place of
detention, an approved school or an approved home, that a person
ordered to be detained in the place of detention, approved school
or approved home is of so unruly a character that he cannot be so
detained, the Court may (a) order the person to be transferred to
and detained in an approved school or in another approved school,
as the case may be, which the Court considers more suitable for him
and to be detained there for the whole or any part of the unexpired
period of detention; or (b) order the person to be brought before a
District Court to be dealt with under section 13 of the Criminal
Procedure Code (Cap. 68) if the person
(i) has attained the age of 16 years; or (ii) having attained
the age of 14 years but being below the age of 16 years, has
previously been dealt with by a court in connection with another
offence and had, in respect of that other offence, been ordered
under subsection (1) (i) to be sent to an approved school, and the
Juvenile Court is satisfied that it is expedient with a view to his
reformation that he should undergo a period of training in a
reformative training centre. Thus, It can: Discharge the offender
either with or without a bond to be of good behaviour, Commit him
to the care of a relative, (or lock him onto the bed posts!) Order
his parent or guardian to execute a bond to exercise proper care
and guardianship, Make a probation order, Detain him in a place of
detention for up to 6 months, (the dungeon!) Send him to an
approved school for a period between 2 to 3 years, (RGS or CHIJ Toa
Payoh would be good. The dominatrix char bos from those school
would whip the bugger into shape ) Fine the offender, (ya, use his
pocket money to pay) Commit him to a Young Offenders section if he
is a young person and If he is so unruly a character, or if he has
reached 16 years, refer him to a District Court with a view to
sentencing him to RTC under Section 13 of the CPC. Require the
offender to perform community service not exceeding 240 hours in
aggregate. (come vacuum my house lah) May be used singly or in
combination with certain restrictions. Restrictions in Juvenile
Proceedingso
Restrictions on publication of information relating to
proceedings involving children and young persons, backed up by
criminal sanctions: s35.
Restriction on publication of information relating to
proceedings involving children and young persons 35. (1) Subject to
subsection (2), no person shall (a) publish or broadcast any
information relating to any proceedings in any court or on appeal
from any court that reveals the name, address or school or that
includes any particulars that are calculated to lead to the
identification of any child or young person concerned in the
proceedings, either as being the person against or in respect of
whom the proceedings are taken or as being a witness therein; or
(b) publish or broadcast any picture as being or including a
picture of any child or young person so concerned in any such
proceedings. (2) The court or the Minister may, if satisfied that
it is in the interests of justice so to do, by order dispense with
the requirements of subsection (1) to such extent as may be
specified in the order. (3) If any information or picture is
published or broadcast in contravention of subsection (1), the
following persons:
(a) in the case of the publication of any information or picture
as part of a newspaper or periodical publication, any proprietor,
editor, publisher or distributor thereof; (b) in the case of the
publication of any information or picture otherwise than as part of
a newspaper or periodical publication, the person who publishes or
distributes it; or (c) in the case of the broadcast of any
information or picture, any person who transmits or provides the
programme in which the information or picture is broadcast and any
person having functions in relation to the programme corresponding
to those of the editor of a newspaper or periodical publication,
shall be guilty of an offence and shall be liable on conviction to
a fine not exceeding $2,000 and, in the case of a second or
subsequent conviction, to a fine not exceeding $10,000. (4)
Subsection (1) shall be in addition to, and not in derogation from,
the provisions of any other written law with respect to the
publication of information relating to judicial proceedings. (5) In
this section "broadcast" means sounds or visual images broadcast by
wireless telegraphy or by means of a high frequency distribution
system over wire or other paths provided by a material substance
and intended for general reception; "publish" , in relation to any
information or picture, means to bring the information or picture
to the notice of the public or a section of the public by any
means.o
Conviction or finding of guilt of a child or young person
disregarded for purposes of any Act under which any
disqualification or disability is imposed upon convicted persons:
s36 of the CYPA.:
Removal of disqualification or disability on conviction 36. A
conviction or finding of guilt of a child or young person shall be
disregarded for the purposes of any Act under which any
disqualification or disability is imposed upon convicted persons. o
Words conviction and sentence not to be used in relation to
children or young persons dealt with by a Juvenile Court: s41 of
the CYPA Words conviction and sentence not to be used 41. (1) The
words conviction and sentence shall cease to be used in relation to
children and young persons dealt with by a Juvenile Court. (2) Any
reference in any written law to a person convicted, a conviction or
a sentence shall, in the case of a child or young person, be
construed as including a reference to a person found guilty of an
offence, a finding of guilt or an order made upon such a finding,
as the case may be. o There are certain restrictions in the
punishment that can be meted out on children and young persons.
Please see s37 as against s231 CPC.
CYPA Restrictions on punishment of children and young persons
37. (1) A child shall not be sentenced or ordered to be imprisoned
for any offence or be committed to prison in default of payment of
a fine or costs. (2) A young person shall not be ordered to be
imprisoned for any offence, or be committed to prison in default of
a fine, damages or costs, unless the court certifies that he is of
so unruly a character that he cannot be detained in a place of
detention or an approved school. (3) Notwithstanding the provisions
of any other written law, no child or young person shall be
sentenced by any court other than the High Court to corporal
punishment. CPC Execution of sentence of caning in certain cases
forbidden. 231. No sentence of caning shall be executed by
instalments and none of the following persons shall be punishable
with caning: (a) women; (b) males sentenced to death; (c) males
whom the court considers to be more than 50 years of age. o Child
shall not be imprisoned whether in default of payment of fine or
costs or otherwise. See s37(1) of the CYPA. o Similar treatment for
young person unless court certifies that he is so unruly that he
cannot be detained in a place of detention or an approved school.
See s37(2) of the CYPA. o Sentence of corporal punishment by the
High Court: s 37(3) but see Ang Chin Sang v PP [1965-1968] SLR 720
which held that the sentence of caning imposed by the magistrate on
the appellant under the Vandalism Act 1966 was a valid sentence but
too old case prob does not hold true anymore
Section 39 refer to the powers of the Juvenile Court to order
the fines imposed and damages of costs ordered to be paid by parent
or guardian of the child or young person unless parent or guardian
cannot be found or has not conduced to the commission of the
offence by neglecting to exercise due care of the child or young
person o - order parent or guardian to pay damages or costs or give
security for the good behaviour of the child or young person
without recording a finding of guilt against the child or young
person Power to order parent or guardian to pay fine, etc., instead
of child or young person 39. (1) Where a child or young person is
charged before a Juvenile Court with any offence for the commission
of which a fine may be imposed and damages or costs or both may be
awarded, and the Court is of the opinion that the case would be
best met by the imposition of all or any of those penalties whether
with or without any other punishment, the Court may, in such case,
and shall, if the offender is a child, order that the fine imposed
and damages or costs awarded be paid by the parent or guardian of
the child or young person, unless the Court is satisfied that the
parent or guardian cannot be
found or that he has not conduced to the commission of the
offence by neglecting to exercise due care of the child or young
person. (2) Where a child or young person is charged with any
offence, a Juvenile Court may order his parent or guardian to give
security for his good behaviour. (3) Where a Juvenile Court thinks
that a charge against a child or young person is proved, the Court
may make an order on the parent or guardian under this section for
the payment of damages or costs or requiring him to give security
for the good behaviour of the child or young person, without
proceeding to record a finding of guilt against the child or young
person. (4) An order under this section may be made against a
parent or guardian who, having been required to attend, has failed
to do so, but, subject to subsection (1), no such order shall be
made without giving the parent or guardian an opportunity to be
heard. (5) Any sum imposed and ordered to be paid by the parent or
guardian under this section, or on forfeiture of any such security,
may be recovered from him in the manner provided by the Criminal
Procedure Code (Cap. 68) in like manner as if the order had been
made on the conviction of the parent or guardian of the offence
with which the child or young person was charged.o
S38: where there is a conviction for murder, culpable homicide,
attempted murder or voluntarily causing grievous hurt AND the court
is of the opinion that none of the other methods by which the case
may be legally dealt with are suitable. Court may sentence offender
to be detained for a specified period in such place and on such
conditions as the Minister may direct Offender may be released at
any time by the Minister on licence.
Punishment of certain grave crimes 38. (1) Where a child or
young person is convicted of murder, or of culpable homicide not
amounting to murder, or of attempted murder, or of voluntarily
causing grievous hurt, and the court is of opinion that none of the
other methods by which the case may legally be dealt with is
suitable, the court may sentence the offender to be detained for
such period as may be specified in the sentence. (2) Where a
sentence has been passed under subsection (1), the child or young
person shall, during that period, notwithstanding anything in the
other provisions of this Act, be liable to be detained in such
place and on such conditions as the Minister may direct. (3) A
person detained in pursuance of the directions of the Minister
under this section shall, while so detained, be deemed to be in
legal custody. (4) Any person so detained may, at any time, be
released by the Minister on licence. (5) A licence referred to in
subsection (4) may be in such form and contain such conditions as
the Minister may direct and may at any time be revoked or varied by
the Minister. (6) Where a licence has been revoked, the person to
whom the licence relates shall return to such place as the Minister
may direct, and if he fails to do so he may be apprehended without
warrant and taken to that place. Powers of Juvenile Court on Proof
of Offence
S44 CYPA o Discharge the offender with or without bond for good
behaviour o Commit offender to the care of a relative or other fit
person for a specified period o Order his parent or guardian to
execute a bond to exercise proper care and guardianship o Make a
probation order of 6 months to 3 years. o Require the offender to
perform community service not exceeding 240hrs in aggregate o
Detain offender for up to 6 months in a place of detention o Detain
offender in a place of detention or approved institution for up to
52 weekends o Order offender to be sent to an approved school for
between 2 to 3 years o Order offender to pay fine, damages or costs
o Order offender to be brought before a District Court to be dealt
with under s13 CPC (ie.e for a sentence of reformative training) o
May be used singly or in combination with certain restrictions. S39
CYPA o Order that fine imposed and damages or costs awarded be paid
by parent or guardian unless parent or guardian cannot be found or
has not conduced to the commission of the offence by neglecting to
exercise due care of the child or young person. o Order parent or
guardian to pay damages or costs to give security for the good
behaviour of the child or young person without recording a finding
of guilt against the child or young person. S45 CYPA o convene a
family conference to deal with the offender by o reprimanding the
offender o administering a formal caution to the offender against
further committing any offence o requiring the offender to pay
compensation to the victim o requiring the offender to perform
community service not exceeding 240 hours in the aggregate o
requiring the offender to apologise to the victim o requiring the
offender to do such other act as the family conference thinks
appropriate Power to convene family conference to deal with child
or young person guilty of offence 45. (1) Without prejudice to
section 44, the Juvenile Court may, for the purpose of dealing with
a child or young person who has been found guilty of committing an
offence (referred to in this section as the offender), convene a
family conference in accordance with the prescribed requirements
and a family conference so convened may deal with the offender by
(a) reprimanding the offender;
(b) administering a formal caution to the offender in the
prescribed manner against further committing any offence; (c)
requiring the offender to pay compensation to the victim of the
offence in such manner and of such amount as may be determined by
the family conference; (d) requiring the offender, in accordance
with the prescribed requirements, to perform community service, not
exceeding 240 hours in the aggregate, of such nature and at such
time and place and subject to such conditions as may be specified
by the family conference; (e) requiring the offender to apologise
to the victim of the offence in such manner as may be specified by
the family conference; or (f) requiring the offender to do such
other act as the family conference thinks appropriate in the
circumstances. (2) In exercising its powers under this section, the
family conference shall (a) comply with the prescribed procedure;
and (b) have regard to the orders which may be made by the Juvenile
Court under section 44 for dealing with a person who has been found
guilty by the Court of a comparable offence. (3) If the offender
fails (a) to attend at the time and place appointed for a family
conference; or (b) to comply with any requirement of the family
conference, the family conference shall report the matter to the
Juvenile Court and the Court shall thereupon make such order as is
necessary for the offender to be produced before the Court and
thereafter deal with the offender as the Court thinks fit in
accordance with section 44. (4) A person who attends a family
conference (not being the offender, the parent or guardian of the
offender or any other member of the offenders family) shall not
divulge any personal information obtained at the conference
relating to any of those persons. (5) Any person who contravenes
subsection (4) shall be guilty of an offence and shall be liable on
conviction to a fine not exceeding $1,000. S46 CYPA o Order either
both child/young person and parent/guardian to undergo counselling,
psychotherapy or other activity for the purpose of resolving
relationship problems between them, rehabilitating the child/young
person, enabling the parent/guardian to manage the child/young
person or enhancing or protecting the well-being and safety of the
child/ young person o contravention of order is a criminal offence
Additional orders which may be made by Juvenile Court in relation
to child or young person found guilty of offence 46. (1) Where a
child or young person has been dealt with in connection with an
offence by a court or by a family conference, the Juvenile Court
may, on its own motion or on the application of the Director or a
protector, make an additional order requiring either or both the
child or young person and the parent or guardian thereof to
undergo
such counselling, psychotherapy or other programme or to partake
in such activity as the Court thinks necessary for the purpose of
(a) resolving any relationship problems between the child or young
person and the parent or guardian thereof; (b) rehabilitating or
assisting in the rehabilitation of the child or young person; (c)
enabling the parent or guardian of the child or young person to
manage the child or young person; or (d) enhancing, promoting or
protecting the physical, social and emotional well-being and safety
of the child or young person. (2) In making an order referred to in
subsection (1), the Juvenile Court may require the parent or
guardian of the child or young person to enter into a bond to
comply with such order. (3) Where the parent or guardian of any
child or young person contravenes any order made by the Juvenile
Court under subsection (1), he shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $2,000. WOMEN
2 The relevant provisions are Sections 352 CPC on bail for a female
offender for a nonbailable offence, and Section 231 CPC, which
prohibits caning for women offenders. Also a sentence of death is
not to be passed on pregnant women (Section 214 CPC). Sentence of
death not to be passed on pregnant woman. 214. (1) Where a woman
convicted of an offence punishable with death alleges that she is
pregnant, or where the court before whom a woman is so convicted
thinks fit, the question whether or not the woman is pregnant
shall, before sentence is passed on her, be determined by the
court. (2) If the woman is found to be pregnant, a sentence of
imprisonment for life shall be passed on her. (3) If the woman is
found not to be pregnant, she may appeal under the Supreme Court of
Judicature Act to the Court of Criminal Appeal against such
finding, and that Court, if satisfied that for any reason the
finding should be set aside, shall quash the sentence passed on
her, and instead of it pass on her a sentence of imprisonment for
life. Execution of sentence of caning in certain cases forbidden.
231. No sentence of caning shall be executed by instalments and
none of the following persons shall be punishable with caning: (a)
women; (b) males sentenced to death; (c) males whom the court
considers to be more than 50 years of age. When person accused of
non-bailable offence may be released on bail. 352. (1) When any
person accused of any non-bailable offence is arrested or detained
without a warrant by a police officer or appears or is brought
before a court, he may be released on bail by any police officer
not below the rank of sergeant or by that court, but he shall not
be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or
imprisonment for life:2
This was not mentioned in the lecture but included nonetheless
for completeness sake.
Provided that the court may direct that any person under the age
of 16 years or any woman or any sick or infirm person accused of
such an offence be released on bail. (2) If it appears to such
officer or court at any stage of an investigation, inquiry or
trial, as the case may be, that there are not reasonable grounds
for believing that the accused has committed a non-bailable
offence, but that there are grounds for further inquiry as to
whether the accused has or has not committed some other offence the
accused shall, pending such inquiry be released on bail, or at the
discretion of that officer or court on his own bond for his
appearance as hereinafter provided. (3) An officer or a court
releasing any person under subsection (1) or (2) shall record in
writing his or its reasons for so doing. (4) Any court may at any
subsequent stage of any proceeding under this Code cause any person
who has been released under this section to be arrested and may
commit him to custody. D. Contempt Of Court Source of Power to
Punish o Criminal Procedure Code (Cap. 68) o Subordinate Courts Act
(Cap. 321) o Supreme Court of Judicature Act (Cap. 322) Criminal
Procedure Code o Chapter XXXII: Proceedings in case of certain
offences affecting the administration of justice S320 of the CPC o
Any Civil or criminal court (other than the High Court) may detain
offender in custody if any offence in Section 175 (intentional
omission to produce document), Section 178 (refusing oath), Section
179 (refusing to answer question), Section 180 (refusing to sign
statement) or Section 228 (intentional insult or interruption) of
the Penal Code is committed in its view or precenceo
(can summarily try but almost often never used) Court may, if it
thinks fit, and at any time before the rising of the court on the
same day, take cognizance of offence and sentence and sentence
offender to a fine not exceeding $500 or to imprisonment not
exceeding 3 months or both
o so section is rarely used Procedure as to offences committed
in court, etc. 320. When any such offence as is described in
section 175, 178, 179, 180 or 228 of the Penal Code is committed in
the view or presence of any civil or criminal court other than the
High Court, the court may cause the offender to be detained in
custody and at any time before the rising of the court on the same
day may, if it thinks fit, take cognizance of the offence and
sentence the offender to a fine not exceeding $500 or to
imprisonment for a term not exceeding 3 months or to both.
S322 CPC o Court may direct the accused to be prosecuted S323
CPC o Court may in its discretion discharge the offender or remit
the punishment upon the offenders submission to the Courts order on
apology being made to the Courts satisfaction. s324 CPC o If any
witness in criminal court refuses to answer question or produce a
document without reasonable excuse, the court may imprison him for
up to 7 days S325 CPC o Appeal from sentence to the High Court o
Rarely resorted to Record of facts constituting the offence. 321.
(1) In every such case the court shall record the facts
constituting the offence with the statement, if any, made by the
offender as well as the finding and sentence. (2) If the offence is
under section 228 of the Penal Code the record must show the nature
and stage of the judicial proceeding in which the court interrupted
or insulted was sitting and the nature of the interruption or
insult. Alternative procedure. 322. If the court, in any case
considers that a person accused of any of the offences referred to
in section 320 and committed in its view or presence may be better
dealt with by ordinary process of law, the court, after recording
the facts constituting the offence and the statement of the accused
as provided in section 321, may direct the accused to be prosecuted
and may require security to be given for the appearance of the
accused person before a Magistrates Court or, if sufficient
security is not given, may take that person under custody to a
Magistrates Court. Power to remit punishment. 323. When any court
has under section 320 adjudged an offender to punishment for
refusing or omitting to do anything which he was lawfully required
to do or for any intentional insult or interruption, the court may,
in its discretion, discharge the offender or remit the punishment
or any part of it on his submission to the order or requisition of
the court or on apology being made to its satisfaction. Refusal to
give evidence. 324. (1) If any witness before a criminal court
refuses to answer such questions as are put to him or to produce
any document in his possession or power which the court requires
him to produce and does not offer any reasonable excuse for such
refusal, that court may, for reasons to be recorded in writing,
sentence him to imprisonment for a term which may extend to 7 days
unless in the meantime he consents to be examined and to answer or
to produce the document. Form 54.
(2) In the event of his persisting in his refusal he may be
dealt with according to section 320 or 322 notwithstanding any
sentence he has undergone under this section. Appeal. 325. (1) Any
person sentenced by any court under this Chapter may appeal to the
High Court. (2) Chapter XXVIII shall, so far as it is applicable,
apply to appeals under this section and the appellate court may
alter or reverse the finding or reduce, alter or reverse the
sentence appealed against. Magistrate not to try certain offences
committed before himself. 326. Except as provided in sections 320
and 324, no Magistrate shall try any person for any offence
referred to in section 129 when the offence is committed before
himself or in contempt of his authority or is brought under his
notice as such Magistrate in the course of a judicial proceeding.
Subordinate Court Act S8 of the Act. o Above powers are replicated
here o Power to punish for contempt of court where the contempt is
committed in the face of a subordinate court or in connection with
any proceedings in the subordinate courts. o Court may impose
imprisonment not exceeding 6 months or fine not exceeding $2,000 or
both o Court may discharge offender or remit offender if it thinks
it just to do so Contempt 8. (1) The subordinate courts shall have
power to punish for contempt of court where the contempt is
committed (a) in the face of the court; or (b) in connection with
any proceedings in the subordinate courts. (2) Where contempt of
court is committed in the circumstances mentioned in subsection
(1), the court may impose imprisonment for a term not exceeding 6
months or a fine not exceeding $2,000 or both. (3) The court may
discharge the offender or remit the punishment if the court thinks
it just to do so. (4) In any case where the contempt is punishable
as an offence under section 175, 178, 179, 180 or 228 of the Penal
Code (Cap. 224), the court may, in lieu of punishing the offender
for contempt, refer the matter to the Attorney-General with a view
to instituting criminal proceedings against the offender. Supreme
Court of Judicature Act s 7 - Power of the High Court and Court of
Appeal to punish for contempt of court. Contempt 7. (1) The High
Court and the Court of Appeal shall have power to punish for
contempt of court.
(2) Wilful disposal by a garnishee, otherwise than in accordance
with law or by leave of the court, of any property attached in his
hands or under his control by a notice of court, shall be deemed to
be contempt. (3) Wilful disobedience by a corporation to any order
punishable by attachment may be punished by attachment of the
directors or other officers of the corporation who are responsible
for, or are knowingly a party to, such wilful disobedience. John
Tan Khee Eng [1997] 3 SLR 382 o Respondent was an advocate and
solicitor acting for the appellant in MA 249/96 o Appeal was fixed
for hearing at 1000hrs on Tuesday, 29 April 1997. o He requested
for an adjournment by fax on Monday, 28 April 1007, pending his
handing over of the papers to the appellants new solicitors. o
Staff of the Sup Ct. telephoned the respondent and asked him to
attend in court to request for adjournment and make formal
application to be discharged as counsel on record for the
appellant. Followed by a telephone call from AR. o Respondent
absent on Tuesday Morning at the hearing of the appeal o CJ ordered
the clown to be present at 1415hrs to explain why he did not turn
up. o Court staff managed to call him 1410hrs. He REFUSED to come
to court citing short notice and not having the requisite counsels
robe as excuses. H o Respondent declined staffs suggestion to
borrow a robe from the Bar Room and said that he would send the
court a letter of explanation. o HE did not appear even though the
court waited for him from 1415hrs to 1540hrs. o The CJ ordered the
Respondent to appear in court on Friday, 2 May 1997. o Notice of
such order was posted to respondents office and to his residential
address by local urgent mail on Wednesday morning. o Respondent
sent a fax on Tuesday afternoon asking for another date to be fixed
because he had urgent matters or commitments to attend to. o He did
not turn up on Friday and a warrant of arrest was issued against
him. o Respondent was brought to court on Tuesday 6 May 1997. o He
was found to be in contempt of court as his conduct was calculated
to lower the authority of the court. Ordered to be committed to
prison for 7 days. o Any other lawyer, following in his footsteps
and is found guilty of contempt of court will be committed to
prison for a much longer period. E. History of Criminal Procedure
in Singapore Passed in 1900, the Criminal Procedure Code (Cap. 68)
is the main source of criminal procedure in Singapore. It
endeavoured to bring into the compass of one Ordinance the whole
procedure with regard to the administration of justice. The most
major re-enactment of the Criminal Procedure Code was in 1955, with
several other amendments made since 1956. The basic and essential
features of the Criminal Procedure Code of Singapore were derived
from its Indian counterpart. Nevertheless, important differences
exist between the two Codes.
-
Principles of Construction o Interpretation of the provisions of
Criminal Procedure Code is best appreciated within the annals of
local case law. Malaysian cases may also be useful especially where
the local provision in question is in pari materia with the
Malaysian counterpart. o Relevance of Indian Cases With the local
Criminal Procedure Code being modelled on the Indian Code, Indian
decisions are naturally relevant where they relate to the
interpretation of similar provisions3. o Relevance of Basic Common
Law Tenets Like the Indian Code, the local Criminal Procedure Code
rests on certain fundamental common law conceptions. o However, any
recourse to common law and Indian/Malaysian cases is unjustifiable
where the Code is clear and unambiguous. o Note: s 5 of the CPC
allows importation of English Law if CPC is silent and not in
conflict with the Code. But in practice this provision is hardly
applied as the CPC is quite exhaustive.
F. Inherent Powers of the Courts? - Section 4 of the Criminal
Procedure Code is not a reflection of section 561(a) of the Indian
Code. o The local courts are creatures of statute. - Some academics
have misconstrued the provisions of the Criminal Procedure Code to
suggest that the criminal courts possess inherent powers that
empower them to do anything necessary in the interest of justice,
even where the Code is silent on a particular situation. o This
roots of this argument stem from section 561(a) of the Indian Code,
which declares that, nothing in this Code shall be deemed to limit
or affect the inherent power of the High Court to make such orders
as may be necessary to give effect to any order or otherwise to
secure the ends of justice4. - There is however no local
counterpart to section 561(a) of the Indian Criminal Procedure
Code. It is argued by these academics that section 4 of the local
Code is in essence, similar to section 561(a) of the Indian Code
but it makes no express mention of any inherent powers that the
courts may possess.-
The courts have often said that they are but creatures of
statute and have only such jurisdiction as provided by
legislation5. Further, in the recent case of PP v Quek Chin Chuan
6, the Chief Justice overturned a lower courts order to the
prosecution to
3 4 5
6
See Teo Cheng Leong v PP [1970] 2 MLJ 275 See also Bachchu Lal v
The State (1951) ALL 836 at 838 See Wong Hong Toy v PP [1994] 2 SLR
396, Mok Swee Kok v PP [1994] 3 SLR 140 and Abdullah bin Rahman v
PP [1994] 3 SLR 129 [2000] 3 SLR 10
conduct further investigations. The Chief Justice stated that
the court has no power to make such orders. G. Discovery in
Criminal Cases The procedure for criminal discovery is governed by
the Criminal Procedure Code. Unlike in civil cases where the Rules
of Court prescribe extensive rules of discovery, the CPC does not
impose on the prosecution an onerous duty of disclosure. Defence
counsel may however obtain certain documents including the First
Information Report and the accused persons statement recorded under
Section 122(6) of the CPC (see above).
DISCLOSURE - there is no power for a mentions or PTC court to
order the prosecution to furnish any documents to the defence - CPC
provides for the delivery by the PP of copies of certain reports to
the accused before the commencement of the trial, where he intends
to give such reports in evidence at the proceedings - Under
s.369(1), documents purporting to be reports under the hand of
persons enumerated in sub-section (2), upon any matter or thing
duly submitted to him for examination or analysis or report may be
used in evidence, with the proviso that a copy thereof is given to
the accused at least ten clear days before commencement of the
trial Report of certain persons. 369. (1) Any document purporting
to be a report under the hand of any of the persons mentioned in
subsection (2) upon any matter or thing duly submitted to him for
examination or analysis or report may be used as evidence in any
inquiry, trial or other proceeding under this Code unless the court
or the accused requires that person to be called as a witness:
Provided that in any case in which the Public Prosecutor intends to
give in evidence any such report he shall deliver a copy thereof to
the accused not less than 10 clear days before the commencement of
the inquiry, trial or other proceeding. (2) The following are
persons to whom this section applies: (a) an analyst employed by
the Health Sciences Authority; (b) any registered medical
practitioner employed by the Health Sciences Authority; (c) the
Government Bacteriologist; (d) the Commissioner of Parks and
Recreation; S 337/87 wef 30.3.87. (e) any person appointed by the
Minister, by notification in the Gazette , to be a document
examiner; (f) any inspector of weights and measures duly appointed
as such under the provisions of any written law; (g) any person or
class of persons to whom the Minister by notification in the
Gazettedeclares that this section shall apply. - accused has no
right to inspect his own s.121 (1) statement to the police, to
copies of his co-accuseds statements, witnesses statements
-
it is entirely up to the prosecution to furnish to the defence
such statements s. 58 CPC permits an application to be made for the
production by prosecution of documents or other evidence necessary
or desirable for the proceedings, but such application can only be
made before the court which the actual trial is taking place and
only after the recording of prosecution evidence has commenced when
the trial is well under way - Tan Khee Koon v PP [1995] 3 SLR 724
at 736H? Facts The appellant Tan, a Police Staff Sergeant with the
Commercial Crime Division, was convicted on three charges of
corruption under the Prevention of Corruption Act (Cap 241) (the
Act). He appealed against both conviction and sentence. The appeal
against conviction was primarily on the trial judges findings of
fact and on the basis that the complainants evidence was not
corroborated, and the failure of the prosecution to produce his
investigation papers. As for the appeal against sentence, it was
argued that the sentences imposed were manifestly excessive. Held,
dismissing the appeal: (1) There was nothing to disturb the
findings of the trial judge on the facts. (2) Section 25 of the Act
applied to any witness who was merely a payor of gratification.
There was no need to treat the evidence of such a witness with
caution. But if the witness was something more than a mere payor
and was guilty of infamous conduct, then he fell outside the ambit
of s 25. However, s 25 did not elevate the evidence of the witness.
The normal burden remained on the prosecution to prove beyond a
reasonable doubt that a witness qualified as a mere payor. On the
facts, the complainant was clearly a mere payor, and as such, his
evidence need not be treated with more caution than usual. (3) No
application under s 58(1) of the Criminal Procedure Code (the CPC)
was made to the trial judge for the production of the investigation
papers. Neither was it necessary nor desirable for them to be
produced. Whether or not Tan refrained from prosecuting the
complainant was irrelevant under s 9 of the Prevention of
Corruption Act. (4) Where an offence consisted of a series of
components constituting offences under the same law, and completion
was made only of one of those components, there could not be
separate charges both for the attempt at the whole series and the
commission of the completed component for that would amount to
double counting. As such, there was double counting of the $4,500
in the first and second charges. However, as Tan did not argue the
point, the charges could not be amended. (5) There was nothing to
indicate that the sentences were manifestly excessive. - for
accuseds s. 121(1) statement, it has been held that the proper time
to make an application for such a statement is after the accused
and his witnesses has finished
giving his evidence, as there was no longer any question of the
defence tailoring evidence at that stage: Ronnie Tay Kok Poh v PP
[1996] 1 SLR 185; Facts The appellant Tay was charged for corruptly
offering one Chua gratification under s 6(b) of the Prevention of
Corruption Act (Cap 241). Both Tay and Chua were convicted and Tay
appealed. Tay also filed a criminal motion to admit further
evidence. Held, allowing the appeal: An examination of the evidence
revealed that there were enough reasons to allow the appeal even
without looking at the additional evidence. The court was not
convinced by the prosecutions submission, and a conviction of Tay
was unsafe. Appeal allowed. Per curiam (1) Since the appellant
maintained that what he said in the statements was the truth, the
contents of the s 121 statement would have become part of his
testimony. The entire s 121 statement should, therefore, have been
admitted and marked as evidence (2) Once the defence witnesses had
finished giving evidence, there was no longe
