PRISONERS

PRISONERS:

(Inflicted with more than 24 strokes of the cane): 12.

Ms Sylvia Lim asked the Deputy Prime Minister and Minister for Law (a) whether there are cases where prisoners have been inflicted with more than the limit of 24 strokes of the cane; and (b) if so, how did this come about.

The Deputy Prime Minister and Minister for Law (Prof. S Jayakumar): Mr Speaker, Sir, the Member has asked whether there are cases where prisoners have been inflicted with more than the limit of 24 strokes of the cane and how this came about.

To answer her question, we must first address the question as to what the legal limit is for the number of strokes that may be imposed by a court. This is governed by section 230 of the Criminal Procedure Code, formerly section 220, as interpreted by the courts.

Section 230 reads:

"When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally punishable by caning the combined sentence of caning awarded by the court for any such offences shall not, anything in any Act to the contrary notwithstanding, exceed a total number of 24 strokes in the case of adults or 10 strokes in the case of youthful offenders."

I have been advised by the Attorney-General that this provision was dealt with in a 1976 Magistrate's Appeal by then Chief Justice Wee Chong Jin ( _PP v Suhaymi b Harith & ors _ , MA 153/1976, the so-called "Swimming Trunks Gang case"). In interpreting this provision, the Chief Justice took the position that where an offender is convicted upon several charges, each charge constitutes a separate trial. Hence, legally, an accused person could be caned more than 24 strokes. That decision has not been overruled and therefore was - and still is - binding upon all subordinate courts.

Subsequent to the decision in the Swimming Trunks Gang case, there have been at least three appeals to the Court of Criminal Appeal in cases where more than 24 strokes were imposed on an offender. The Court of Criminal Appeal affirmed the sentences imposed by the High Court in each of the appeals. In one case, the Court of Criminal Appeal enhanced the sentence from eight years' imprisonment and 16 strokes to 16 years' imprisonment and 30 strokes. There was also a petition for revision filed in 1989 by an offender who had been guilty of a series of armed robberies and had been sentenced to more than 24 strokes. The issue of excessive punishment was raised. The then Chief Justice, having considered the issues, declined to exercise his power of revision.

Arising from those precedents, Sir, I would expect that there would have been cases where offenders were sentenced to more than 24 strokes. But it will require some research into old records to establish the actual number of such cases.

Mr Speaker, Sir, maybe this question has been prompted by recent media publicity about one Qwek Kee Chong, who filed a civil suit against the Government in 1991. Qwek was a member of a four-man gang that was responsible for a spate of armed robberies between January and August 1987. The gang was armed with parangs and several people were hurt. Qwek faced 17 counts of gang robbery, 15 counts of armed robbery and one count of house-breaking. He was convicted in 1987 of four charges of armed robbery and sentenced to 10 years' imprisonment and 48 strokes of the cane, the other charges being taken into consideration in sentencing.

When he came forward with his claim, in view of the long line of authorities that I have mentioned, the Attorney-General advised that Qwek did not have a chance of succeeding in his suit. Furthermore, he had not appealed against his sentence.

However, in the previous year, the Attorney-General had reviewed the whole issue of section 230 of the Criminal Procedure Code and decided that, as a general rule for future cases, he would exercise his prosecutorial discretion to proceed only on a limited number of charges upon each occasion where an accused faces multiple charges, such that the total number of strokes which would be imposed by the court would not exceed 24. The Attorney-General did so because he assessed that 24 strokes, together with the custodial sentences which are usually meted out in cases of this nature, would be sufficient to meet the purposes of deterrence in sentencing.

When Qwek's case finally came up for pre-trial hearing, the then Attorney-General advised making a token ex gratia payment to Qwek after he discontinued his case for compensation. Anyway, the previous Attorney-General had already changed the practice, in any event.

Finally, Sir, the Government has also decided, as part of its process of reviewing the Criminal Procedure Code, that the provision would be amended to reflect the practice which has been adopted.

Ms Sylvia Lim (Non-Constituency Member): Sir, I think one of the safeguards in the Criminal Procedure Code, as far as caning is concerned, is that the prisoner should be certified medically fit to be able to handle the number of strokes that are being inflicted. I would like the Minister to inform the House as to whether there have indeed been cases, which have been reported on the Internet, that some prisoners actually needed to be hospitalised after being inflicted with certain number of strokes because of the physical injury that had been caused to them in the course of the caning session.

Prof. Jayakumar: Mr Speaker, Sir, the information that I have is that there is always medical advice present when caning is administered and that if the medical opinion is that caning cannot proceed beyond a certain point, that medical opinion will be observed and the caning will not proceed. Whether in some cases, because of the caning, certain injuries are suffered and, if so, will there be hospitalisation, I do not know of specific cases. But I am sure that if caning results in injuries, the due medical treatment will be accorded. And if it requires hospitalisation, I have no doubt that hospitalisation services will be provided.

Ms Indranee Rajah (Tanjong Pagar): I would like to ask the Minister to clarify a certain portion of his answer. I would like to know whether it means that in all situations, a person will never receive more than 24 strokes. Let me explain what I mean by this.

The Attorney-General has said that in the exercise of his prosecutorial discretion, he would proceed only on a limited number of charges in case of multiple charges, such that the total number of strokes will not exceed 24 strokes. If you have a situation, for example, where there is one trial, three offences and the sentence is 24 strokes, and let us say that the same person is charged in a separate trial for a different offence and gets 10 strokes, does that mean that, at the end of the day, he gets 24 only for the two trials? Or does it mean that he gets 24 plus 10, ie, 34?

Prof. Jayakumar: Mr Speaker, that is a good question because when I said that no offender is caned for more than 24 strokes at one session, that does not mean that no offender will ever be caned beyond 24 strokes. Why do I say that? Because there can be very good reasons when an offender may, over a period of offending, receive over a course of time, caning of more than 24 strokes. Let me elaborate.

Take the case of a serial offender who, say, over a period of weeks or months, is tried on several occasions for several different offences. The first set of offences, say, maybe this week, could involve rape; in the following week, he may commit armed robbery; and in the third week, he may commit rioting with a deadly weapon. These are all serious offences. So if we say that in any such case there is an absolute cap of 24 strokes, then we are, in fact, giving such a serial offender permanent immunity from further caning. We cannot treat such a multiple offender who has committed, say, 50, 60 or 100 offences the same way as an offender who has committed, say, two offences. So there may be a limit of 24 strokes of the cane in any one caning session but that does not mean that if he has been tried for different offences, that when he is sent to prison, he may not be receiving different sessions of caning.

Ms Ellen Lee (Sembawang): Sir, the DPM mentioned that the Attorney-General had made an ex gratia payment to Qwek. But if it is ex gratia , it actually means that no payment needs to be paid at all. Why was payment made?

In view of such confusion, is the Ministry of Law considering amending the relevant portion of the CPC to state this more clearly?

Prof. Jayakumar: The payment was made to Qwek not because his claim was meritorious, or he deserved it, or had any legal right to it, but rather the Attorney-General made the decision on ex gra tia payment, among other things, in order to save time and cost involved in arguing the case before the High Court and probably even before the Court of Appeal. It was assessed that the effort and resources committed to the case would be disproportionate, considering that the previous Attorney-General had already decided to exercise his prosecutorial decision in a manner that I outlined. But let me stress that had Qwek insisted on proceeding with the court action, the Attorney-General, at that time, had no doubt that he would robustly contest the case in the court. So, it was not a case where there was a mistake or there was an error of law. It was just an ex gratia payment.