Abdul Nasir bin Amer Hamsah v Public Prosecutor
[1997] SGCA 38

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Suit No:    Cr App 4/1997
Decision Date:    20 Aug 1997
Court:    Court of Appeal
Coram:    Karthigesu JA, L P Thean JA, Yong Pung How CJ
Counsel:    Appellant in person, Mathavan Devadas (Deputy Public Prosecutor) for the respondent, Michael Khoo SC (amicus curiae) and Josephine Low (Michael Khoo & Partners)


Unreported Judgments

The charge

This was an appeal against sentence only. The appellant was charged and convicted in the court below for kidnapping. The charge read as follows:

You, Abdul Nasir bin Amer Hamsah, are charged that you, on or about 3 February 1996 between 5.05pm and 7.35pm at the lock-up of the Criminal Investigation Department, 90 Eu Tong Sen Street, Singapore, together with one Low Theng Gee and in furtherance of the common intention of you both, did wrongly confine Woman Corporal Ong Bee Lay and Corporal Chia Khen Siong of the Singapore Police Force, with intent to hold both of them for ransom, to wit, a car, two guns and eight bullets and you have thereby committed an offence punishable under s 3 of the Kidnapping Act (Cap 151) read with s 34 of the Penal Code (Cap 224).



Section 3 of the Kidnapping Act (Cap 151) states:

Whoever, with intent to hold any person for ransom, abducts or wrongfully restrains or wrongfully confines that person shall be guilty of an offence and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, also be liable to caning



At the end of the trial, the appellant was convicted and sentenced to imprisonment for life and 12 strokes of the cane, the imprisonment term to commence only upon expiration of his earlier sentence for robbery with hurt, for which he was sentenced on 4 July 1996 to 18 years` imprisonment and 18 strokes of the cane.

The appellant appealed and contended that the trial judge should have ordered concurrent sentencing for the imprisonment term, in which case, he would have effectively to serve only 20 years` imprisonment.

At the end of the hearing on 21 July 1997, we dismissed his appeal. However, we indicated that we would give our grounds for this dismissal and also our conclusions on an important point of law concerning the meaning of life imprisonment. We now give our reasons for dismissing the appellant`s appeal and our conclusions on the meaning of life imprisonment.

The facts

On 3 February 1996, one PC Ong Kok Hua (PC Ong) and one Cpl Veron Ong Bee Lay (Cpl Veron) were on duty at the CID Charge Office. They were later assigned to perform lock-up sentry duty inside the CID lock-up, and were stationed at an office situated inside the lock-up just next to the lock-up gate.

At the material time, the appellant and one Low Theng Gee (Low) were the only joint occupants of cell no 4 inside the lock-up. It transpired that both of them had met for the first time that afternoon, when they plotted their escape from the lock-up. It was agreed that Low would pretend to suffer from drug withdrawal symptoms and, on that pretext, would ask for permission to take a shower. It was further agreed that, when Low started singing, that would be the signal for the appellant to get ready to overpower the lock-up officer.

At about 5.05pm, Low, who had earlier obtained permission from PC Ong to take a shower as planned, was returning to cell no 4. At that time, PC Ong was waiting outside cell no 4. Just as Low was about to enter the cell, he turned on PC Ong. The appellant joined in and, together, they tried to push PC Ong into the cell. However, PC Ong was able to resist and called for help. His colleagues, Cpl Loh Ah Ng (Cpl Loh), Cpl Chia Khen Siong (Cpl Chia) and SC Ng Chor Neng (SC Ng), heard him and rushed to the lock-up gate. Cpl Chia unlocked the gate and both he and SC Ng entered the lock-up to assist PC Ong. Cpl Loh waited at the gate outside the lock-up. Cpl Veron, at the time, stood outside the lock-up registration room and witnessed the struggle.

In the ensuing struggle between the officers and the two detainees, PC Ong managed to free himself. Cpl Chia, however, was forced into the cell and the cell gate was latched. Low then rushed towards the lock-up gate. Cpl Loh quickly ordered the officers to leave the lock-up and both PC Ong and SC Ng did so.

Unfortunately, in the confusion, Cpl Veron was locked in as she failed to get out in time. Low and the appellant thereafter held Cpl Veron and Cpl Chia against their will.

Cpl Veron was held in the lock-up registration room for most of the time. A wooden ruler and a broken piece of mirror were pointed against her neck. As for Cpl Chia, his hands were tied behind his back, and he was kept separate from Cpl Veron in various cells within the lock-up.

The police negotiators, DAC Noor Mohd and ASP Saraj Din, tried to negotiate with the appellant and Low who demanded, inter alia, a car, two guns and eight bullets. They threatened to kill the officers who were held hostages if their demands were not met.

The appellant and Low were finally overpowered and arrested by the police Special Tactics And Rescue team. Both hostages suffered minor injuries.

The decision below

In deciding on the appropriate sentence for the appellant, the trial judge took into account the seriousness of the offence. First, the kidnapping occurred in the police lock-up. Second, the appellant was in the lock-up because he was being charged for murder at the time, although he was eventually convicted of robbery with hurt.

Notwithstanding this, the trial judge did not think that the present offence warranted the death penalty. Having considered the manner of the kidnapping and the conduct of the kidnappers, he said the following:

It is true to say, as was said in the submission for the prosecution, that it was on the face of it an audacious act on the part of you both. You thought that you can take as hostage two police officers and get away with it from the CID lock-up.

However, it is also clear on the evidence that I have heard, in planning your escape, neither of you thought it through as to how you were going to succeed in this enterprise of yours ... Thereafter, it was your colleague who then held Woman Corporal Ong [Cpl Veron] as a hostage and through her the demand was made for guns, bullets and the car. As regards the demand that was made, I accept the submission made on your behalf that a number of police witnesses who gave evidence were unable to say as to what you actually demanded ... But it must be remembered that the whole incident took over two hours and the police officers were there for most of the time including Woman Corporal Ong, Corporal Chia and even the Investigating Officer. It shows the circumstances that prevailed that day when this terrible scene was enacted in the lock-up of the CID.

So in those circumstances, the manner of the kidnapping, and your acts and conduct that day, cannot be said to be as serious as is made out in the written submission on sentence.



The trial judge went on to consider the fact that the appellant had cooperated with the negotiating officers in putting out a fire that was started in the lock-up. Moreover, it was Low who mainly carried out the negotiations, while the appellant was, for most of the time, walking up and down the corridor of the cells. The court also took into account that the appellant did not harm Cpl Veron. The appellant had initially intended to tie her up, but relented and even said that he would not harm her.

In the light of all the evidence, the trial judge was of the view that this act of kidnapping was not so serious as to require the death penalty. In the circumstances, he sentenced the appellant to imprisonment for life and 12 strokes of the cane.

However, the trial judge felt that this was an appropriate case for the present sentence to commence only upon expiration of the sentence for the appellant`s earlier offence of robbery with hurt. He reasoned as follows:

I have in mind also s 234 of the CPC and that provides that when a person who is an escaped convict or is undergoing sentence of imprisonment is sentenced to imprisonment, the latter part of that limb is the one that applies in this case, then the court can order the sentence of imprisonment to start at the expiration of the imprisonment to which the offender has already been sentenced. In your case, you were being detained for a serious charge and whilst there you committed this very serious offence. It is a separate and distinct offence and clearly, in my view, I will be failing in my duty if I did not make the distinction effective. So I sentence you to imprisonment for life and order that this sentence will take effect at the expiration of the imprisonment which you are now serving. I also order that you be given 12 strokes of the rotan. [Emphasis added.]



Issues in the appeal

This appeal was essentially about whether the trial judge had exercised his discretion erroneously in ordering the appellant`s life sentence to run consecutively to his previous imprisonment term of 18 years, instead of concurrently.

However, it was first necessary to ascertain the meaning of the expression `life imprisonment` or `imprisonment for life`: does it mean imprisonment for the remainder of the prisoner`s natural life, or does it mean 20 years` imprisonment which has been the practice thus far?

And, assuming that life imprisonment indeed means imprisonment for the remaining natural life of the prisoner, we had to decide when such a judicial pronouncement should take effect.

It was only after answering the two preliminary questions above that we turned to the appeal itself, and we have set out our conclusions below.

The appeal

The meaning of life imprisonment

The prosecution submitted that there are currently 44 Penal Code (Cap 224) offences and nine offences in other pieces of legislation which carry the life sentence. But, nowhere can the definition of imprisonment for life be found in these provisions. What then is the meaning of life imprisonment? Looking at s 57 of the Penal Code, which comes closest to defining life imprisonment, the term would mean 20 years. It states:

In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.



This section, it seemed, was impressed upon the trial judge during the defence`s submission on sentence in the court below. Unfortunately, the focus of the submissions before the trial judge was simply whether the appellant should receive the death penalty or imprisonment for life with caning upon conviction for kidnapping. Hence, there was no further discussion on what life imprisonment means.

However, it should be noted that in the case of Neo Man Lee v PP [1991] 2 MLJ 369 at p 370; [1991] SLR 146 at p 149 the local Court of Appeal had in fact recognised the practice that imprisonment for life means 20 years:

We were of the opinion that the conditions for sentence to imprisonment for life were clearly satisfied in the present case and justified a life sentence. The appellant is clearly a continuing danger not only to himself but also to the public. The trial judge was of the view, which we shared, that he should be detained as long as it was permissible under the law. We might add that, with remissions, life imprisonment in Singapore may be reduced in practice to no more than 14 years, and the appellant may in fact be out of prison in another seven years. [Emphasis added.]



Moreover, in a letter dated 19 June 1997 by Poh Geok Ek, the director of the Prison Department, which was tendered before this court, he confirmed that the Prison Department `has always regarded life imprisonment as imprisonment for 20 years since 1954 ... [and has] been using s 57 of the Penal Code as the legal basis for equating life imprisonment as imprisonment for 20 years since then.` He further confirmed that remission provisions also apply to prisoners serving life sentences.

So, should life imprisonment automatically be treated as one for a definite period of 20 years, excluding remission?

In the Privy Council case of Kishori Lal v Emperor [1945] 46 Cr LJ 626 , a similar point was raised. There the Government of India stated before the Judicial Committee that, having regard to s 57 of the Indian Penal Code (which is materially similar to ours), 20 years` imprisonment was equivalent to a sentence of transportation for life. This led Lord Goddard to make the following observations at p 626:

The only sentence known to the law which can exceed 14 years is one of trransportation [sic] for life and, with two exceptions where transportation is a part of the sentence, the term is always for life. Convicts serving this sentence may be granted remission for good conduct, and for the purpose of calculating remission in the case of life sentences, it appears that in India they are treated as sentences of 20 years. This is no doubt the reason why s 57 of the Code provides that for calculating a fractional part of a life sentence, it should be treated as one of 20 years.



However, the Judicial Committee did not express a final opinion on the matter, as was evident from what Lord Goddard stated at p 628:

Assuming that the sentence [ie transportation for life] is to be regarded as one of 20 years and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application and it was, therefore, rightly dismissed but, in saying this, their Lordships are not to be taken as meaning that a life sentence must, and in all cases, be treated as one of not more than 20 years or that the convict is necessarily entitled to remission. [Emphasis added.]



Likewise, the statement made by this court in Neo Man Lee (supra) did not settle the meaning of life imprisonment conclusively. It was really more an observation, not a decided point of law, bearing in mind that in the case, there were no contentions premised on the period of imprisonment for life.

It was therefore necessary, for our purposes, to examine more closely the provision in s 57. In Ashok Kumar v Union of India 1991 AIR 1792 SC, the Supreme Court of India dealt directly with the interpretation of s 57 of the Indian Penal Code. The relevant speech by Ahmadi J at p 1800, which we now reproduce in full, was as follows:

9 ... Section 57, IPC reads as follows:

`57 Fractions of terms of imprisonment - In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.`

The expression `imprisonment for life` must be read in the context of s 45, IPC. Under that provision the word `life` denotes the life of a human being unless the contrary appears from the context. We have seen that the punishments are set out in s 53, imprisonment for life being one of them. Read in the light of s 45 it would ordinarily mean imprisonment for the full or complete span of life. Does s 57 convey to the contrary? Dealing with this contention based on the language of s 57, this court observed in Godse`s case at pp 444-445 (of [1961] 3 SCR 440; at pp 602-603 of AIR 1961 SC 600 as under:

`Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for 20 years. It does not say that transportation for life shall be deemed to be transportation for 20 years for all purposes; nor does the amended section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person`s natural life."

This interpretation of s 57 gets strengthened if we refer to ss 65, 116, 119, 120 and 511, of the Indian Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence. It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If such a provision had not been made it would have been impossible to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment.



There was no reason why the above view should not be adopted locally. Like the Indian Penal Code, our s 57 has made it abundantly clear that the 20 years` imprisonment is to be adopted only ` in calculating fractions of terms of punishment ` (see para 23 above). Instances where fractions of terms of punishment have to be calculated can be found in ss 116, 119, 120 and 511 of our Penal Code.

For example, s 116 states:

Whoever abets an offence punishable with imprisonment shall, if that offence is not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both. [Emphasis added.]



Thus, read together with s 116, if the maximum sentence was imprisonment for life under that particular offence, then life imprisonment in such an instance would mean 20 years.

However, where no such computation of fractions was involved, life imprisonment should be understood as a sentence for imprisonment for the whole of the remaining period of the convicted person`s natural life. Section 45 of our Penal Code, worded the same way as s 45 of the Indian Penal Code, reinforced this view:

The word `life` denotes the life of a human being, unless the contrary appears from the context.



Even if s 45 never existed, in the absence of qualification or further explanation, we were of the view that `life` should be given a natural and ordinary meaning: see also R v Foy [1962] 1 WLR 609 ;, [1962] 2 All ER 246. Not only would this accord with the plain meaning of the words in the Code, but it would express the legislative intent that offences carrying imprisonment for life must obviously be the next most severe sentence after the death penalty.

Our attention was drawn by the DPP to the fact that in 1984 Parliament amended the maximum punishment in five sections of the Penal Code, being ss 376, 394, 395, 459 and 460, from imprisonment for life to 20 years, even though the Penal Code also contained punishment prescribing life imprisonment. There was also a further amendment to s 3 of the Arms Offences Act (Cap 14), providing for a maximum penalty of 20 years when it was previously imprisonment for life. Hence, it was apparent that Parliament had differentiated between the two forms of punishment. Otherwise, there would have been no need to refer to life imprisonment and 20 years` imprisonment separately. Moreover, under the Misuse of Drugs Act (Cap 185), there are minimum sentences of 20 years and maximum sentences of 30 years` imprisonment for certain trafficking offences.

The amicus curiae, Michael Khoo SC, made the following submission:

... I am therefore of the opinion that `imprisonment for life` in the context of s 3 of the Kidnapping Act, as of the Penal Code, must mean imprisonment for the remainder of the life of the accused. However, though the application of the remission provisions cannot alter the nature of the sentence passed, in effect, prisoners sentenced to imprisonment for life do not serve beyond 20 years.



The prosecution, in its submission, also took the position that life imprisonment should be given its natural meaning. Yet, in the same breath, it went further by contending that this natural meaning did not conflict with the executive`s policy to use 20 years (or for that matter 30 years or any number of years the executive considered reasonable and humane) as the maximum period for purposes of remission. It further submitted that the calculation of remission was an administrative act taken by the Prisons Department for the purposes of control and discipline. There was no guarantee that a prisoner would be given remission which was conditional upon good behaviour. Therefore, a prisoner serving a life imprisonment term should still be considered as serving a sentence for the rest of his natural life unless he had earned remission through good conduct and industry.

But the crucial question we had to ask ourselves was, `Where is the provision which empowers the executive to equate life imprisonment with 20 years, or for that matter, any other number of years, for the purposes of calculating remission?`

The relevant provision appeared to be s 65 of the Prisons Act (Cap 247) which states:

(1) The Minister may make all such regulations, not inconsistent with the provisions of this Act, as are necessary for the good management and government of prisons and reformative training centres or for carrying out the objects of this Act.

(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may prescribe for all or any of the following purposes or matters:

...

(f) the remission of sentences to be allowed to prisoners who duly comply with the regulations to which they are subjected, and the conditions on which such remissions are to be made;

...



We were further referred to the Prisons Regulations [Cap 247, Reg 2] which govern remission of sentences. In particular, reg 113 which deals with how remission is granted states:

(1) With a view to encouraging good conduct and industry and to facilitate reformative treatment, prisoners sentenced to imprisonment shall be entitled to be granted remission as follows:

(a) convicted prisoners sentenced to a term of imprisonment exceeding one month shall be granted as remission one third of their sentences:

Provided that in no case shall any remission granted result in the release of prisoner until he has served one calendar month; and

(b) prisoners sentenced to a term of imprisonment of one month or under shall not be granted remission.



We did not think that the above Act or regulation empowered the Prisons Department to grant remission for prisoners serving life sentences. One way of approaching reg 113(1) was to interpret it as presupposing that the sentence passed had a definite duration which enabled the calculation of remission. Thus, where the sentence was of indefinite duration like a life sentence, it had no application at all since it would not be possible to calculate one third of such a sentence. Consequently, there could be no remission in such a case.

Moreover, the moment this court has expressed Parliament`s intention in pronouncing life imprisonment to mean the remaining natural life of the prisoner, it would require a clear and unambiguous provision before the Prisons Department could depart from such an interpretation under any circumstances. We did not think that the remission provisions had in any way provided for a life sentence to be equated with a fixed number of years. And, by continuing to ascribe 20 years (or whatever number of years) as equivalent to a life sentence, the Prisons Department would in effect be usurping the pronouncement of law by this court and possibly be acting ultra vires.

Thus, we were compelled to conclude that the prosecution`s submission was untenable. It was not possible to pay lip service to life imprisonment as meaning the remaining natural life of the prisoner, and yet maintain that it was purely an administrative discretion to equate it with 20 years for purposes of remission in the absence of some clear law empowering the executive to do so. To allow that would be going against the will of Parliament.

On the other hand, we were conscious that prisoners serving life sentences must be given some incentives for good behaviour. Indefinite incarceration with no prospect of release would make control of such prisoners difficult, if not impossible. Therefore, if for administrative and policy reasons, prisoners serving life sentences should one day be released, then it would be for the legislature to pass the necessary laws. This could take the form of commutation or reduction of sentences by the relevant government bodies; examples of such provisions can be found in the Indian Penal Code. It could also take the form of express powers conferred on the relevant body to grant remission for life sentences through an approved method of calculation. Alternatively, life imprisonment could be treated as a sentence of uncertain duration, subject to review by a parole or review board and release by the Home Affairs Minister.

But, in so far as our law stands now and in the absence of legislation to the contrary, life imprisonment must mean imprisonment for the remaining natural life of the prisoner.

Operation of the judicial pronouncement - retroactive or prospective effect?

We next embarked on the more difficult question of whether the judicial pronouncement above should have a retroactive or prospective effect which, unfortunately, neither counsel had touched on. And, if there should be prospective effect, then when should the reference point for this pronouncement be? Should it apply to all offenders convicted or sentenced after the pronouncement, irrespective of when the offence was committed? Or should it apply only to offences committed after its pronouncement?

There were three obvious considerations. First, there has never been a local judicial pronouncement on what life imprisonment means. Second, the Penal Code does not prescribe a meaning for life imprisonment. Third, the existing practice has been to equate life imprisonment with 20 years` imprisonment. Hence, of considerable importance to us was whether a first-time judicial pronouncement on the meaning of life imprisonment should be given retroactive or prospective effect, especially in the light of such a practice.

One approach was to maintain that the declaration and determination of life imprisonment would not actually pronounce any new law, but merely maintain and expound an old one. In a sense, this court would be merely making clear what has always been the law. To this extent, it could be said that a first-time judicial pronouncement should be retroactive since it merely affirms the position at law, as opposed to creating a new liability or punishment.

In R v Knuller [1973] AC 435 , Morris LJ stated as follows at p 463:

It is said that the rules of law ought to be precise so that a person will know the exact consequences of all his actions and so that he can regulate his conduct with complete assurance. This, however, is not possible under any system of law ... In many cases there can be no certainty as to what the decision will be. But none of this is a reflection upon the law. Nor do I know of any procedure under which someone could be told with precision just how far he may go before he may incur some civil or some criminal liability. Those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in.



Thus, arguably, those found guilty and sentenced to life imprisonment must take the risk that `life` could mean until the end of their natural life, even if the existing practice dictated it to be 20 years. A necessary consequence of this approach was that any interpretation which we gave to life imprisonment must be accorded retroactive effect.

In other words, all prisoners presently serving life sentences should remain incarcerated until the end of their natural lives, even if they had been assured by lawyers and the Prisons Department that life imprisonment in practice means 20 years. Accused persons who decided to plead guilty on the basis that life imprisonment means 20 years would equally be caught by the pronouncement. However, in our view, such a result would be contrary to justice and fairness to the accused. To simply turn around and dismiss the original understanding of life imprisonment as erroneous, and adopt a retroactive approach for our pronouncement, would surely defeat the legitimate expectations of such accused persons.

In the circumstances, we had to consider how best to safeguard such legitimate expectations and whether a prospective approach for a first-time judicial pronouncement could be justified and adopted.

In this regard, we noted that art 11 of the Constitution of the Republic of Singapore states:

(1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed . [Emphasis added.]



Essentially, art 11(1) entrenches the principle of nullum crimen nulla poena sine lege , also known as the legality principle, and it may be understood as such:

(No crime (or penalty) without law making it so). A maxim embodying the basic principle of the criminal law that conduct cannot be punished as criminal unless some rule of law has already declared conduct of that kind to be criminal and punishable as such. This principle, accordingly denies the validity of retrospective declaration of the criminality of any kind of conduct and also the justifiability of a court or judge declaring to be criminal when a case arises anything not previously declared criminal. The U.S. Constitution and the European Convention on Human Rights prohibit retrospective creation of criminality. [Emphasis added.] (See The Oxford Companion to Law (1980, Oxford) at p 895.)



We must emphasise, however, that of relevance here was not so much the application of art 11(1), but the rationale behind the nullum principle.

In the Canadian case of Reference re ss 193 and 1951(1)(c) of the Criminal Code (1990) 56 CCC (3d) 65 (Supreme Court of Canada), Lamer J had expounded the nullum principle in the following terms at pp 85-86:

There is no doubt, however, that the bulk of the jurisprudence in the area of `void for vagueness` lies in the US, and therefore I propose to begin with a brief recapitulation of the American authorities so as to provide a context for discussions of the doctrine`s potential application in Canadian law. It should be noted at the outset that no specific or explicit constitutional provision exists in the US prohibiting vague laws.

The Supreme Court of the United States has ruled that impermissible vague laws are void in that they constitute a denial of due process of law. In Connally v General Construction Co 269 US 385 (1926), Sutherland J put it in the following terms at p 391:

`... a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.`

In Cline v Frink Dairy Co 274 US 445, 465 (1927), that `first essential of due process of law` was expressed as follows at p 465:

`... it will not do to hold an average man to the peril of an indictment for the unwise exercise of his ... knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result.`

The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege - that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards: see Professor L Tribe, American Constitutional Law (2nd Ed,1988), p 1033. This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law. [Emphasis added.]



It seemed to us that the rationale of the nullum principle is equally applicable to first-time judicial pronouncements. Those who conducted their affairs by relying on a reasonable and legitimate interpretation of the law should not be penalised if judicial pronouncement later established that their interpretation was wrong. Legitimate expectations, reasonable interpretations and clear and unambiguous notification are obviously important considerations which would inform the operation of the nullum principle. Each case must be examined on its own - not every challenge against penalisation based on the nullum principle would succeed. Therefore, the interpretation giving rise to the expectation must be a reasonable and legitimate one and not some subjective whimsical interpretation.

This concept of legitimate expectation and its protection could also be traced to administrative law where it made its appearance in the context of natural justice and fairness. The case of HTV Ltd v Price Commission [1976] ICR 170 was instructive. There the Price Commission misconstrued the counter inflation price code and changed its mind as to the treatment of exchequer levy as an item in the costs of television companies allowable for the purpose of increasing their advertising charges within the prescribed limits of the code. The effect of such a change was to deprive the companies of an increase of advertising charges which they were plainly intended to enjoy and which they badly needed in order to remain financially viable. Lord Denning MR, allowing the appeal, stated as follows at p 185:

It is, in my opinion, the duty of the Price Commission to act with fairness and consistency in their dealings with manufacturers and traders. Allowing that it is primarily for them to interpret and apply the code, nevertheless if they regularly interpret the words of the code in a particular sense - or regularly apply the code in a particular way - they should continue to interpret it and apply it in the same way thereafter unless there is good cause for departing from it. At any rate they should not depart from it in any case where they have, by their conduct, led the manufacturer or trader to believe that he can safely act on that interpretation of the code or on that method of applying it, and he does so act on it. It is not permissible for them to depart from their previous interpretation and application where it would not be fair or just to do so. It has been often said, I know, that a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it.



See also Laker Airways Ltd v Department of Trade [1977] QB 643 at p 707.

This principle, it seemed, was again expressed by Lord Templeman in similar terms in the House of Lords case of R v Inland Revenue Commissioners, ex p Preston [1985] AC 835 . His Lordship said at p 864:

The court can only intervene by judicial review to direct the commissioners to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that `the unfairness` of which the applicant complains renders the insistence by the commissioners on performing their duties or exercising their powers an abuse of power by the commissioners.



Of course, we were not concerned with judicial review, nor were we deciding whether any claim of a legitimate expectation could estop the Prisons Department in future from applying the interpretation which we gave to life imprisonment. That was a separate matter which was not under consideration here.

But, what we wanted to extrapolate and emphasise was the principle that certain legitimate expectations could, in suitable circumstances, be deserving of protection, even though they did not acquire the force of a legal right.

In the instant case, although we had concluded that life imprisonment should mean imprisonment for the remaining natural life of the prisoner, we could not ignore that, in practice, it has been consistently given a technical meaning of 20 years` imprisonment, excluding remission. Hence, this court`s observation in Neo Man Lee (supra). Lawyers, the Prison Department, police officers and other law enforcement officers have come to know and understand the practice to be so. Advice might have been dispensed on the basis of such a practice. This seemed to be a clear example of a legitimate expectation engendered by a practice of many years. Therefore, the courts ought to protect individuals who arranged their affairs according to this expectation, bearing in mind that we were here concerned with the fundamental matter of a person`s liberty for the rest of his life.

Consequently, a prospective approach must be adopted. In taking this view, we looked no further than the recent case of PP v Manogaran s/o R Ramu [1997] 1 SLR 22 . There this court had to consider whether judicial overruling should have a prospective or retroactive effect, and the following was stated:

71 The doctrine of prospective overruling evolved in American jurisprudence in order to address the problem of retrospective reversal of past acts and decisions, where a statute (or part thereof) is declared unconstitutional: see Great Northern R Co v Sunburst Oil & Refining Co [1932] 287 US 358 . Its applicability beyond the sphere of constitutional law has since been recognised in the leading US Supreme Court decision of Linkletter v Walker [1965] 381 US 618 .

...

74 By judicial overruling of a previous decision, new law may be pronounced for the first time. The rule of law requires adherence to the maxim ignorantia juris neminem excusat: ignorance of the law excuses no one. However, if a person organises his affairs in accordance with an existing judicial pronouncement about the state of the law, his actions should not be impugned retrospectively by a subsequent judicial pronouncement which changes the state of the law, without his having been afforded an opportunity to reorganise his affairs. This seeks to protect his reasonable and legitimate expectations that he did not act in contravention of the law . In addition, as in the case of new enacted legislation which creates criminal liability, proper notification (by way of publication) must be given prior to its commencement ...

75 In our opinion, where art 11(1) and the nullum principle are brought into operation, the courts are precluded from retrospectively reversing a previous interpretation of a criminal statutory provision where the new interpretation creates criminal liability for the first time, and where it would operate to the prejudice of the accused. The same prohibition against retrospective overruling must apply equally where the new interpretation represents a reversal of the law as previously interpreted and effectively extends criminal liability. [Emphasis added.]



We were certainly not suggesting that the practice of 20 years` imprisonment had represented the state of the law on life imprisonment at any time. But, on an analogous reasoning with prospective judicial overruling, if the first-time interpretation of a particular punishment as prescribed by law would result in an expanded meaning, contrary to what could be reasonably and legitimately expected all along, then such a judicial pronouncement must also be given prospective effect to prevent prejudice and injustice to the accused.

This left only the question as to the reference point for this new pronouncement to affect offenders. Should it be determined by the date of conviction, date of sentence or date of commission of the offence? It seemed to us that an outcome based on the dates of conviction or sentence would depend on the efficiency of the criminal justice system. It could also depend on the administrative efficiency of the prosecuting agencies. As we observed in Manogaran (supra at [para ] 77-79), such factors could be arbitrary and could operate to the prejudice of accused persons.

Consequently, for fairness and for consistency with the position taken in Manogaran , this pronouncement which we now make shall affect only offences committed after the date of delivery of this judgment.

The present appeal

We turned finally to the appeal itself which we dismissed at the end of the hearing.

The appellant had tendered a letter of leniency and appeared in person before us. The thrust of his letter was at para 5 where he said:

I would like to appeal that the present sentence be made concurrent with my prior sentence of 18 years` imprisonment. I feel that the 20 years I would serve with a concurrent sentence would be punishment enough for what I have done and that the present sentence of 38 years is manifestly excessive.



Just to recapitulate, the appellant was appealing for concurrent sentencing under s 234 of the Criminal Procedure Code (Cap 68) (CPC). This way, his life imprisonment term would run concurrently with his earlier sentence passed on 4 July 1996 for robbery with hurt, for which he was sentenced to 18 years` imprisonment and 18 strokes of the cane. Thus, the question was simply whether the appellant should serve 20 years` imprisonment under concurrent sentencing, or 38 years` imprisonment in total for his two convictions.

The general rule is that a sentence commences to run from the date it is passed (see s 223 CPC). However, s 234 of the CPC creates an exception because it reads:

(1) When a person who is an escaped convict or is undergoing a sentence of imprisonment is sentenced to imprisonment the latter sentence of imprisonment shall commence either immediately or at the expiration of the imprisonment to which he was previously sentenced as the court awarding the sentence directs.

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(3) Nothing in subsection (1) shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.



Thus, if life imprisonment at law means the remaining natural life of the convict (as concluded above), then it would seem undesirable for such a sentence to commence only upon the expiration of the earlier imprisonment term of 18 years: see R v Jones [1962] AC 635 at p 647. Arguably, the better view would be that the life imprisonment term should run concurrently with the earlier sentence of 18 years` imprisonment.

But, since we decided that such a first-time interpretation by us should be given prospectivity, affecting only offences committed after the pronouncement, the old practice of 20 years` imprisonment would continue to apply to the appellant.

Viewed in this light, there was no error in sentencing principle when the trial judge decided to pass consecutive sentences. We could find no relevant mitigating factors for consideration in the appellant`s appeal for leniency. Clearly, the conviction here was entirely separate and distinct from the appellant`s earlier offence. Moreover, it seemed to us that the power under s 234 to direct that a sentence run immediately should not be so exercised to make the crime committed inconsequential. Hence, the reminder in s 234(3).

In our view, the trial judge would have erred had he ordered the present sentence to run immediately since the appellant would effectively not have to suffer the consequences of the second conviction, and he might feel justified in making similar attempts. It was necessary to send a deterrent message to prisoners that they would have to pay a heavy price should they attempt to escape from custody, especially by holding prison officers as hostages. A concurrent sentence might encourage other prisoners with long imprisonment terms to make similar attempts since they would, in effect, escape punishment for such actions.

Accordingly, we saw no basis for the sentence under appeal to commence immediately. The life imprisonment term as understood in practice (that is, 20 years` imprisonment) should commence only upon expiration of the appellant`s earlier sentence, and he could also qualify for remission.

Conclusion

For the reasons set out above, we concluded that the expression `life imprisonment` or `imprisonment for life` must mean imprisonment for the remaining natural life of the prisoner, unless the legislation has provided otherwise. This judicial pronouncement by us now shall have prospective effect, thereby affecting only those offences which carry a life sentence committed after the date of delivery of this judgment. However, should the offence be committed before the date of delivery of this judgment, the old practice of 20 years imprisonment would continue to apply to these offenders.

Therefore, since the appellant would in reality be serving 20 years` imprisonment for his life sentence, there was no error in passing a consecutive life sentence in the instant case. He would have to serve 38 years` imprisonment in total for his two convictions. The appeal was accordingly dismissed.

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