Oral Answer by DPM Jayakumar to Parliamentary Question on caning
15 Feb 2008 Posted in Parliamentary speeches and responses
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 s 230 of the Criminal Procedure Code, formerly s 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.
- Sir, 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 in the case of 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 on all subordinate courts.
- Subsequent to the decision in the Swimming Trunks case, there have been at least three appeals to the Court of Criminal Appeal in cases where more than 24 strokes were imposed on the offender. The Court of Criminal Appeal affirmed the sentences imposed by the High Court in each of the appeals; in one case 1 the Court of Criminal Appeal enhanced the sentence from 8 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 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.
- 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 were armed with parangs and several people were hurt. Qwek faced 17 counts of gang robbery, 15 counts of armed robbery and 1 count of house-breaking. He was convicted in 1987 of 4 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 CPC 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 A-G advised making a token ex-gratia payment to Qwek after he discontinued his case for compensation. Anyway, the previous A-G had already changed the practice, in any event.
- Finally, Sir, the Government has also decided, as part of our process of reviewing the Criminal Procedure Code, that that provision would be amended to reflect the practice which has been adopted.
: PP v Suratman bin Abas (CCA 9/83)
Ms Sylvia Lim: Sir, a supplementary question for the Deputy Prime Minister. 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 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 in the Internet and so on, that some prisoners actually needed to be hospitalised after being inflicted with a certain number of strokes because of the physical injury that had been caused to them in the course of the caning session.
DPM Jayakumar: 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 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: I would like to ask a supplementary question 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 A-G has said that in the exercise of his prosecutorial discretion he will 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 - that is one scenario - and let us says 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, so that means 34?
DPM Jayakumar: Speaker, Sir, that is a good question because when I say that no offender is caned for more than 24 strokes at one session, that does not mean that no offender would ever be caned beyond 24 strokes. Why do I say that? Because there can be many good reasons where 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. Then in the following week, he may commit armed robberies. 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 in 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: Sir, may I check with the DPM? DPM mentioned that A-G has made an ex-gratia payment to Qwek. But it is ex-gratia which means that actually no payment needs to be made at all. Why was payment made? The other thing is that in view of such confusion, is the Ministry of Law considering amending the relevant portion of the CPC to state this more clearly? Thank you.
DPM Jayakumar: The payment to Qwek was made not because his claim was meritorious or he deserved it or had any legal right to it, but rather, A-G made the decision on ex-gratia payment, among other things, in order to save time and costs 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 the manner that I outlined.
But let me stress that had Qwek insisted on proceeding with the court action, the A-G at the time had no doubt that he would contest, and robustly contest, the case in the court. So it was not a case that there was a mistake or there was an error of law, it was just an ex-gratia payment.
Last updated on 26 Nov 2012