In Mohamad Fairuuz bin Saleh v PP  SGHC 164, a specially constituted three-judge panel of the Singapore High Court considered the proper construction of s 5 of the Probation of Offenders Act. In doing so, the Court identified anomalies in the effect of s 5 where probation is not a sentencing option for certain offences that are relatively less serious in nature. This article discusses the anomalies raised by the Court and proposes practical solutions to rectify those anomalies.
Probing the Law on Probation: Suggestions for Reform Mohamad Fairuuz bin Saleh v PP  SGHC 264
To any criminal law practitioner, the Court’s power to grant probation as a sentencing option is of significant importance. Probation represents, to their clients, the key out of incarceration.
Section 5 of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“POA”) sets out the power of the Singapore Courts to grant probation. Section 5 uses three peculiar terms to create three categories of offences, namely:
1. Sentences which are “fixed by law”;
2. Sentences carrying “specified minimum sentences”; and
3. Sentences carrying “mandatory minimum sentences”.
For the latter two categories of offences, the Court can only grant probation if the offender:
1. is between 16 and 21 of age at the time of conviction; and
2. was not previously convicted of an offence with a mandatory or specified minimum sentence.
What do those three peculiar terms mean?
Setting the Scene
The learned Tay Yong Kwang J in Lim Li Ling v PP  1 SLR(R) 165 (“Lim Li Ling”) considered those three terms in some detail. Tay J held that:
1. A “mandatory minimum sentence” means a sentence where a minimum quantum for a particular type of sentence is prescribed, and the imposition of that type of sentence is mandatory;
2. A “specified minimum sentence” means a sentence where a minimum quantum for a particular type of sentence is prescribed, but the imposition of that type of sentence is not mandatory; and
3. A sentence “fixed by law” is one where the Court has no discretion as to the type of sentence (which is mandatory) and the quantum of the prescribed punishment, and also includes “mandatory minimum sentences” and “specified minimum sentences”.
However, counsels' (and their clients’) desire to secure the invaluable key of probation has led to continued debate over how each of those three terms should be interpreted. In PP v Lin Zhi Yi (Magistrate’s Appeal No 361 of 2010) (“Lin Zhi Yi”), the Singapore High Court granted probation to a 23-year-old offender although the offence in question ostensibly carried a specified minimum sentence. The offender was convicted under s 14(1)(b)(i) of the Moneylenders Act 2008, which provided for “a fine of not less than $20,000 and not more than $200,000 or to imprisonment for a term not exceeding 2 years or to both”. The option of granting a fine of not less than $20,000 ostensibly satisfied Tay J’s interpretation of a “specified minimum sentence”. Consequently, if one were to follow Lim Li Ling, it is arguable that the High Court did not have the power to grant probation in Lin Zhi Yi.
As the High Court’s decision in Lin Zhi Yi was unreported, practitioners did not have the benefit of the Court’s reasoning: how then should Lin Zhi Yi be reconciled with Lim Li Ling? The need for clarification was compounded when Part XVII of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) – enacted in 2010 to introduce “community sentences” – adopted the same three phrases in setting out the Court’s power to grant community sentences.
The uncertainties in the law were recently addressed by a specially constituted three-judge-panel of the Singapore High Court (presided by Sundaresh Menon CJ) in Mohamad Fairuuz bin Saleh v PP  SGHC 264 (“Fairuuz”). This note first summarises how the Court in Fairuuz had interpreted s 5 of the POA, before discussing the anomalies in the operation of s 5 that Fairuuz had identified. A review of the POA may, therefore, be timely. This writer offers certain practical solutions that may be considered by the legislature in ameliorating the anomalies identified by the Court.
Proper Interpretation of the POA
Section 5(1) of the POA comprises a main body and a proviso. The main body of s 5(1) of the POA reads as follows:
5.—(1) Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer or a volunteer probation officer for a period to be specified in the order of not less than 6 months nor more than 3 years (emphasis added).
Immediately following the main body of s 5(1) of the POA, a proviso reads as follows:
Provided that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make a probation order if the person —
(a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and
(b) has not been previously convicted of any such offence referred to in this proviso, and for this purpose section 11(1) shall not apply to any such previous conviction (emphasis added).
The Court in Fairuuz agreed with Lim Li Ling on the interpretation of the terms “mandatory minimum sentence” and “specified minimum sentence” found in the proviso to s 5 of the POA. The Court, however, held that offences which have sentences that were “fixed by law” did not include offences which carried mandatory or specified minimum sentences. Be that as it may, the Court recognised that the interpretation in Lim Li Ling would ultimately yield the same result.
Specified Minimum Sentence
Out of the three terms under consideration, the Prosecution’s submissions on the term “specified minimum sentence” merit mention. This term posed some difficulty because of a dearth of legislative material and case law that would shed light on its proper interpretation.
The Prosecution contended that Lim Li Ling’s interpretation was incorrect. According to the Prosecution, an offence would carry a “specified minimum sentence” only if the punishment provision carried two elements:
1. A sentence which is at the discretion of the Court to impose but which if it is imposed carries with it a stipulated minimum quantum; and
2. An independent mandatory sentence.
This point is better illustrated with an example. According to the Prosecution, if an offence provided for a discretionary fine of at least $10,000, or a discretionary jail term not exceeding five years, that was not an offence which carried a “specified minimum sentence”. However, if an offence provided for a discretionary fine of at least $10,000, and a mandatory jail term not exceeding five years, that was an offence which carried a “specified minimum sentence”.
The basis for the Prosecution’s submission was the Explanatory Statement to the Probation of Offenders Bill (Bill No 25 of 93). The Explanatory Statement provided as an example of a “specified minimum sentence” s 4 of the Betting Act (Cap 21, 1985 Rev Ed). Any person convicted of an offence under s 4:
… shall be liable on conviction to a fine of not less than $10,000 and not more than $100,000 and shall also be punished with imprisonment for a term not exceeding 5 years.
Section 4 of the Betting Act carries with it two types of punishment – a discretionary fine, which is subject to a minimum amount, and mandatory imprisonment. Consequently, the Prosecution’s argument was that the term “specified minimum sentence” must be construed narrowly in strict compliance with the example of s 4.
The Prosecution’s position was not accepted. According to the Court, the term “specified minimum sentence”, on its plain meaning, refers to the sentence that is imposed rather than the range of punishment options that are prescribed. The only part of the punishment provision in s 4 of the Betting Act that could be read as containing a specified minimum sentence was the fine.
Be that as it may, what is noteworthy was the effect that the Prosecution’s argument sought to achieve. Underlying the Prosecution’s submission is a recognition that the scope of the term “specified minimum sentence” should not be overly expansive.
Legislative materials suggest that the proviso to s 5 of the POA was enacted to restrict the circumstances under which probation could be granted for “serious” offences. During the reading of the relevant Bill, Minister Yeo Cheow Tong stated that the proviso was intended to deny probation for “very serious offences, like rape, robbery, being part of a syndicate in extortion” (Singapore Parliamentary Debates, Official Report (10 November 1993) vol 61 at col 936):
I would like to clarify that only offenders who are guilty or who have been convicted of serious offences are denied probation, ie, they are convicted and sentenced with a mandatory minimum sentence and therefore they are denied probation. Sir, these are for very serious offences, like rape, robbery, being part of a syndicate in extortion, and so on. For the other lesser offences they are still eligible for probation.
The terms “minimum mandatory sentence” and “specified minimum sentence” used in the proviso therefore acted as proxy indicators for offences which were “serious”. Probation would not be available as a sentencing option for adult (or repeat youth) offenders in offences carrying mandatory or specified minimum sentences.
Consequently, if the scope of the term “specified minimum sentence” was overly expansive, there would potentially be more offences for which the Court could grant probation only when the two conditions in the proviso were met. That would have the effect of curtailing the Court’s powers to grant probation – an effect the Prosecution’s submission in Fairuuz sought to avoid.
Deficiencies of the POA
Although the Prosecution’s submission was not accepted, the Prosecution’s underlying concern not to restrict the availability of probation as a sentencing option was shared by the Court. The Court identified certain anomalies where probation was not available as a sentencing option for offences which were relatively less serious in nature.
Specifically, the Court observed that the usage of “minimum mandatory sentence” and “specified minimum sentence” as proxy indicators for “serious” offences created anomalous results (Fairuuz at -):
[W]e would like to make some observations in relation to what might appear to be anomalous in some respects as to the circumstances in which probation might or might not be available as a sentencing option. Specifically, the concern is that probation would not be a sentencing option for adult offenders (as a result of para (a) of the Proviso) and repeat youth offenders (as a result of para (b) of the Proviso) for what might appear to be relatively less serious offences, whereas it might well be a sentencing option for adult offenders and repeat youth offenders who have committed what are seemingly more serious offences just because Parliament has not thought it fit to impose either a mandatory or specified minimum sentence in the latter instances. An illustration will bring the point into focus.
A first time offender convicted of an offence for the possession, exhibition or distribution of uncensored films under s 21 of the Films Act (Cap 107, 1998 Rev Ed) shall be liable to “a fine of not less than $100 for each such film that he had in his possession (but not to exceed in the aggregate $20,000”). As a fine is the only prescribed sentence for this offence, the sentence would ordinarily be in the nature of a mandatory minimum sentence and consequently, the Proviso would apply to preclude the granting of probation to both adult offenders and repeat youth offenders. However, probation would seem to be available to the same adult offender or repeat youth offender for what may be considered to be more serious offences but where the prescribed sentence is not a mandatory or specified minimum sentence, and therefore does not engage the Proviso. For instance, following Poh Boon Kiat, the sentence under s 140(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) for keeping, managing or assisting in the management of a brothel is a mandatory imprisonment term “not exceeding 5 years” and a discretionary fine “not exceeding $10,000”. This sentence for an offence under s 140(1) of the Women’s Charter is neither a mandatory nor a specified minimum sentence (even though a period of imprisonment is mandatory). Accordingly, the Proviso would not apply. As a result, the principal part of s 5(1) of the POA would govern and the consequence is that probation would prima facie be available to both adult offenders and repeat youth offenders. As noted above, this might appear to be anomalous.
We accept, of course, that it is a matter for Parliament rather than for the courts to decide on the relative gravity of offences. It chose to contain the excessive reach of the decision in Juma’at by the enactment of the Proviso. But the policy considerations that underlie a legislative choice to impose a mandatory or specified minimum sentence may not necessarily be identical or relevant to the consideration of whether or not probation should be available in a given case. We offer these observations as something Parliament may wish to consider.
These anomalies exist because the terms “mandatory minimum sentence” and “specified minimum sentence”, by themselves, are not optimal proxy indicators as to when probation should be a sentencing option. While the term “specified minimum sentence” appeared to have made its debut only in the proviso to s 5 of the POA introduced in 1993, mandatory minimum sentences were introduced for various offences to the Penal Code in 1984 because the legislature thought that the punishment for those offences was too lenient and that harsher punishment was needed to combat the increasing crime rate at that time. While the legislature had focused on offences which had “caused the most concern and alarm to the public”, the use of mandatory minimum sentences was primarily to counter what the legislature thought were “generally inadequate sentences” where Courts were “generally averse to custodial sentences”.
Using “mandatory minimum sentences” as a proxy indicator in the proviso to s 5 of the POA is, therefore, arguably over-inclusive and under-inclusive at the same time. It is over-inclusive because it potentially includes offences which by their nature may not be serious, but had originally attracted what the legislature thought were inadequate sentences such as to warrant the introduction of mandatory minimum sentences. It is under-inclusive because it potentially excludes offences which by their nature are serious, but did not attract inadequate sentences such as to warrant the introduction of mandatory minimum sentences. The same critique applies to the use of “specified minimum sentence” as well.
Several examples will illustrate this point.
Probation is not available as a sentencing option for an adult (or repeat youth) offender for relatively minor offences such as: possession, exhibition or distribution of uncensored films under s 21 of the Films Act (Cap 107, 1998 Rev Ed), and touting under s 32 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed).
Yet probation is available for certain relatively more serious offences such as voluntarily causing hurt by dangerous weapons or means, buying or disposing of any person as a slave, buying a minor for purposes of prostitution, rioting with a deadly weapon, concealing the existence of a design to wage war against the Government, abandoning a child under 12 years of age, and causing death by rash or negligent act.
Discretionary Death Sentences
Another thorny issue concerns offences which used to carry mandatory death but now carry discretionary death sentences, such as ss 300(b), (c) and (d) of the Panel Code. For these offences, the Court now has the discretion to choose between death or imprisonment for life (and if the latter, the offender is also liable to caning).
Offences which carry a mandatory death penalty are offences for which the sentence is “fixed by law”. Probation has never been a sentencing option for mandatory death offences since the original enactment of the Probation of Offenders Ordinance (Ordinance 27 of 1951).
Following the reasoning in Fairuuz, offences which now carry discretionary death are arguably offences which carry a “specified minimum sentence” – the Court has the discretion to prescribe imprisonment, but does not have the discretion as to its minimum quantum (which is life). These offences are no longer offences the sentences of which are “fixed by law”. While the inherent nature of these offences is highly likely to militate against the granting of probation orders in the first place, it remains possible for the Court to grant probation to a youth offender who has committed one of these offences.
Was that the legislative intent when discretionary death sentences were introduced?
The Way Forward
It is timely for the law on probation to be reviewed – and this is not a lone view. In 2006, a commentator had observed that it was not “valid to assume that an offence is ‘serious’ just because it is either a specified minimum offence or a mandatory minimum offence”. More recently, a commentator suggested that the legislature could consider either removing the proviso to s 5 of the POA completely, or review the offences which carry specified or mandatory minimum sentences.
The complete abolition of the proviso to s 5 of the POA alone may create uncertainty and confusion. One could expect defence counsel to seek a probation order in almost every other case. It may also be impractical (at least in the short term) for the legislature to prescribe whether probation is a sentencing option for each and every offence.
While the notion of giving the Court wider discretion in sentencing is generally laudable, there should be a set of legislative criteria or guidelines to determine when and how the power to grant probation ought to be exercised. Bearing in mind the close relationship between the criteria for community sentences (under s 337 of the CPC) and the criteria for probation (under s 5 of the POA), an exhaustive and comparative analysis of how the POA should be reformed merits another article by itself. Nevertheless, the legislature could consider several suggestions in any reform to s 5 of the POA.
One possible reform is to amend s 5 such that probation is generally available for all offences (except for offences punishable with death or offences punishable with life imprisonment). However, for offences with a specified or mandatory minimum sentence of fine, imprisonment or caning exceeding specific quantum levels, only first time youth offenders are eligible. In this way, the legislature can use the quantum levels as a more accurate proxy to calibrate and indicate the “seriousness” of offences with specified or mandatory minimum sentences. This suggestion may be preferred if the legislature takes the view that most offences with specified or mandatory minimum sentences are indeed relatively serious in nature. The main deficiency of this suggestion is that some relatively serious offences may not carry a specified or mandatory minimum sentence in the first place – the Courts would still have the power to grant probation for such offences. However, the legislature may take the view that the starting point should be to grant greater, rather than lesser, sentencing discretion to the Courts.
Alternatively, the legislature could abandon the use of specified or mandatory minimum sentences in s 5. Section 5 can simply prescribe that probation is generally available for all offences (except for offences punishable with death or offences punishable with life imprisonment). However, for offences which are punishable with a term of fine, imprisonment or caning which exceeds specific quantum levels, only first time youth offenders are eligible. This concept is not unique: under s 337(1)(i) of the CPC, community sentences are generally not available as a sentencing option for offences which are punishable with a term of imprisonment which exceeds three years.
One deficiency of this suggestion is that it may be too blunt, and may not capture certain offences the seriousness of which may be expressed by the legislature through the mandatory nature of fine, incarceration or caning, rather than the quantum of the sentence. A via media to mitigate this deficiency could be a hybrid of the two solutions above:
Probation is generally available for all offences (except for offences punishable with death or offences punishable with life imprisonment). However, for offences which are: (i) punishable with a term of fine, imprisonment or caning which exceeds specific quantum levels; or (ii) carry a mandatory minimum sentence of fine, imprisonment or caning which exceeds specific quantum levels (which would be lower than those in the preceding category), only first time youth offenders are eligible.
Finally, s 337 of the CPC sets out in some detail both the types of offences, as well as the types of offenders for which community sentences would not be a sentencing option. Section 5 of the POA may benefit from a similar architecture.
The balance to be struck in any reform exercise to s 5 of the POA is one where, as a starting point, the Courts should be given as much sentencing discretion as possible, especially in relation to first time youth offenders. At the same time, there needs to exist a careful calibration of the offences that are deemed relatively serious enough to preclude probation as a sentencing option. Regardless of any eventual reform adopted by the legislature, the objective of the foregoing analysis is to set out a conceptual framework to aid the legislature in achieving this difficult and delicate balance.
► Darius Chan*
Norton Rose Fulbright (Asia) LLP
E-mail: [email protected]
* Advocate and Solicitor, qualified in Singapore; Solicitor, qualified in England & Wales; Attorney at Law, admitted in New York.