(Abstract: A five-coram Court of Appeal has held that previously compounded offences under any law can potentially aggravate the sentence that an offender receives for a future offence. What are the implications of this and how did the Court of Appeal arrive at this holding?)
Where a legal system is built upon the presumption of innocence, an obvious implication arises. A person who is charged with an offence never goes to court to prove his innocence – the purpose of the court proceedings is solely for the state to prove his guilt.
Because the burden of proof on the prosecution is beyond a reasonable doubt (and not on the balance of probabilities), a perceivable gap arises whenever the court returns a verdict of “not guilty”. Whilst this is equivalent to an acquittal, it does not equate to a pronouncement of innocence – the person is, after all, presumed innocent until and unless proven otherwise, and the court therefore need make no such pronouncement.
Thus, a person who is acquitted in a court of law may be one of two things – either factually innocent, or factually guilty. It is not the function of the court, nor our legal system, to go into this inquiry.
This position was famously stated by the Law Minister in Parliament in August 2008, though that was not the first time it had been made.1
What are the implications of this?
First, a person who is acquitted by the court may still be viewed by the public as a guilty person – especially if the acquittal was obtained on perceived technical grounds such as the decay or unavailability of evidence, or the trial judge’s rejection of witness testimony. Such a person would not be able to protest his factual guilt by pointing to his legal acquittal. Thus, the fact that he had once stood trial, even if he was eventually acquitted, may forever remain a blight on his reputation.
Second, the conceptual distinction between factual and legal innocence created by the burden of proof means we also have to grapple with another conundrum when a legal finding of guilt is made. This is because the burden on the prosecution is to prove the offence beyond a reasonable doubt, not beyond all doubt.2 Thus, a person who has been convicted in court may still continue to protest his factual innocence. Unfortunately for him, this is irrelevant as far as the court is concerned. The position may be illustrated thus.
Given this, why don’t we require the prosecution to prove all offences beyond all doubt? The answer is balance and efficiency.3 Such a requirement would not only put an enormous strain on state resources, it would also make court proceedings extremely laborious and time-consuming.
The balance is thus struck by presuming legal innocence, and requiring proof beyond a reasonable doubt before the threshold into legal guilt is crossed. Factual guilt or innocence, in the sense used by the Law Minister in the parliamentary session referred to above, is irrelevant as far as the court proceedings are concerned.
Balance and efficiency is also the reason behind the five-coram Court of Appeal’s pronouncement in Teo Seng Tiong v Public Prosecutor [2021] SGCA 65 (“Teo Seng Tiong”) that a sentencing court can take into account an offender’s previously compounded offences, including driving-related compositions, when passing sentence for any future offence (at [104]).
In reaching this determination, the Court of Appeal considered a series of past conflicting judgments issued in the High Court – namely Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099, Public Prosecutor v Aw Tai Hock [2017] 5 SLR 1141, Public Prosecutor v Ong Heng Chua [2018] 5 SLR 388 and Neo Chuang Seng v Public Prosecutor [2020] SGHC 97 – as well as the jurisprudential basis behind a number of other categories of past conduct that may aggravate a future sentence.
The overall position may be summarised in the following table.
| Stern or conditional warning | Past conduct for which the offender has not been charged | Compounded offence | Conviction | |
| Can it aggravate the sentence for a future offence? | No | Yes | Yes | Yes |
| Legal effect | No legal effect. Merely the opinion of the relevant authority that the recipient of the warning had committed an offence. | Relevant to sentencing if the past conduct has a sufficient nexus to the offence before the court. | Hybrid between a conviction and an acquittal. Presumptively an admission of guilt unless the alleged offender can prove otherwise. | Finding of guilt. Not open to offender to say otherwise, unless set aside. |
| Basis | Wham Kwok Han Jolovan v AG [2016] 1 SLR 1370 | PP v Bong Sim Swan Suzanna [2020] 2 SLR 1001 | Teo Seng Tiong v PP [2021] SGCA 65 | Criminal Procedure Code, Section 228 |
The starting point is Section 228 of the Criminal Procedure Code (Cap. 68) (the “CPC”), which provides:-
Address on sentence, mitigation and sentence
228.—(1) On the conviction of the accused, the prosecution may where it thinks fit address the court on sentence.
(2) The address on sentence may include —
(a) the criminal records of the accused;
(b) any victim impact statement; and
(c) any relevant factors which may affect the sentence.
(3) The court must then hear any plea in mitigation of sentence by the accused and the prosecution has a right of reply.
(4) Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.
(5) After the court has heard the plea in mitigation, it may —
(a) at its discretion or on the application of the prosecution or the accused hear any evidence to determine the truth or otherwise of the matters raised before the court which may materially affect the sentence; and
(b) attach such weight to the matter raised as it considers appropriate after hearing the evidence.
That an accused person’s past conviction can aggravate his sentence for a future offence is perhaps the most uncontroversial and well-established of the propositions summarised above. It falls squarely within Section 228(2)(a) of the CPC and attracts the principle of specific deterrence. Presumptively, an accused person who re-offends demonstrates that his previous sentences did not have sufficient deterrent effect on him,4 or his long criminal record may attest to his bad character, poor attitude and low likelihood of rehabilitation.5 That said, a substantial gap in time between the previous offences and the instant one may be testament to an offender’s genuine effort to change his ways,6 and all the more so if these offences are dissimilar.
Perhaps more interesting, on first reading, is the proposition in Public Prosecutor v Bong Sim Swan Suzanna [2020] 2 SLR 1001 (“Suzanna Bong”) that past conduct for which an offender has not been charged can nevertheless aggravate the sentence for an offence that is before the court. This arose out of a criminal reference heard by a five-coram Court of Appeal, where a woman who had abused her domestic helper leaving her blind in one eye had her sentence reduced to 8 months’ imprisonment in the High Court, and then enhanced to 14 months’ imprisonment by the Court of Appeal following the criminal reference.
There appear to be at least two requirements before uncharged past conduct can aggravate a sentence.
First, the said conduct must be proved by the Prosecution. This addresses the trite principle of criminal law and sentencing that a person cannot be punished for an offence for which he is neither charged nor convicted.7 Thus, the Prosecution can only rely on such conduct if either (1) the accused person admits to it; or (2) if it is otherwise proven at trial or in a Newton hearing (if the sentencing court deems it important enough to call for one).
The latter point blends into the second requirement – that the past conduct must have a sufficient nexus to the instant offence. This is because only evidence that is relevant can be led at trial. What constitutes a sufficient nexus is a fact-sensitive inquiry that depends on the circumstances of each case and the degree of proximity of time and space to the charged offence. A sufficient nexus would generally be present if it concerns a fact in the immediate circumstances of the charged offence or is a fact relevant to the offender’s state of mind at the time of committing the offence.8
So in Suzanna Bong, the past conduct was relevant because the offender knew about the victim’s particular vulnerability i.e. her worsening eyesight, having herself been responsible for the past injuries that caused this (even if she was not charged for the previous occasions of abuse). This went directly towards her culpability for the offence for which she was charged (using a glass bottle to hit the left side of the victim’s face several times on one occasion) and the harm eventually suffered by the victim.
At the other end of the spectrum, past warnings that have been administered to an offender have no legal effect and are irrelevant to sentencing. This is because they merely represent the opinion of the relevant authority that the recipient of the warning had committed an offence.9 A warning is not binding on its recipient and does not affect his legal rights, interests or liabilities.10 Thus, an application for leave to commence judicial review proceedings to quash a warning that was administered failed: Wham Kwok Han Jolovan v Attorney-General [2016] 1 SLR 1370.
In that decision, it was in fact the state that had put forward the propositions above, which were accepted by the Honourable Justice Woo Bih Li.11 In a subsequent case, the state sought to argue that these propositions should be limited to stern warnings, and that conditional stern warnings should be treated differently.12 The Court disagreed.
Respectfully, this must be correct. The only difference between a stern warning and a conditional stern warning is whether the state expresses an intention to prosecute the individual in question if a further offence is committed within a specified time period. That an offence has been committed remains the opinion of the relevant authority. The prior offence must still be proven in court, should the accused person challenge the same.
A hybrid between a warning and a conviction is composition. This returns us to the discussion on balance and efficiency. This was expressly recognized by the Court of Appeal in Teo Seng Tiong:-
62 Some offences are compounded for the sake of expedience and efficient administration. In the case of road traffic offences, the composition procedure is used for the “efficient disposition of less serious traffic violations” … It would appear that the rationale for this is that such offences occur frequently and in relatively high numbers but are generally not so serious that they should go before the courts. Composition of such offences would therefore benefit the alleged offenders, the Traffic Police as well as the courts in terms of time and expense. While most alleged offenders who accept the offer of composition are probably admitting guilt, it is reasonable to expect that some alleged offenders in minor traffic offences may genuinely not recall the circumstances of the alleged offences and choose to pay a relatively low composition amount in order to close the matter quickly.
Not every case is worth taking to court. Just as there are avenues for settlement in civil proceedings, there is also an avenue for “settlement” in criminal proceedings – and this is composition.
And just as a defendant who pays a sum of money to a plaintiff to settle a civil dispute is not necessarily admitting that he was liable at law to that plaintiff, so a person who pays a composition fine is not necessarily admitting that he is guilty of an offence.
But should he be given the full benefit of doubt and be treated as an innocent party? The answer is no.
Following Teo Seng Tiong, a person who pays a composition fine is presumptively admitting guilt.13 This is because composition cannot be offered unless the individual in question is “reasonably suspected of having committed the offence”, whether pursuant to Section 135(1) of the Road Traffic Act or Sections 242(1) or 243(4) of the Criminal Procedure Code.
In other words, composition would not have been offered if there was not at least some evidence capable of leading to a reasonable suspicion that an offence is made out. This does not generally take into account any valid defences that a person may have.14 Presumably, such a person should protest his innocence and contest the composition offer. But ultimately, if the appeal is rejected most people would still pay the composition rather than subject themselves to trial proceedings in court.
Evidently, the Court of Appeal is not imperceptive to this very reasonable tendency of human nature to seek the path of least resistance. Thus, the carve-out is that any person who has a previous compounded offence brought up against him in the sentencing analysis for a later offence is entitled to challenge the circumstances giving rise to the earlier composition.15 Practically speaking, it may be difficult to do so where a substantial period of time has passed, and evidence has been disposed of. But given this precedent, everyone who pays a composition fine which he does not agree with should do well to preserve the evidence of his defence – for he will never know when he will need it.
There is one further restriction – and that is again, relevance. As with uncharged past conduct, a past composition should only aggravate a future sentence if the conduct in question is related. Section 139AA of the Road Traffic Act is permissive and allows a court to take into account, as an aggravating factor, any offence that has been compounded under the Road Traffic Act before the date of the sentencing. But it is not mandatory – the court still decides whether or not to do so. For example, a past composition for late payment of a vehicle’s annual road tax is unlikely to have any effect on the sentence to be passed for a future offence of dangerous driving.16
And on this reasoning, there would be no reason to restrict the analysis only to past compositions under the Acts under which they were compounded. A composition under the Road Traffic Act can for example, if relevant, aggravate a future sentence under the Penal Code and vice versa.17 Should it? The only guidance given by the Court of Appeal is that “good sense” should guide the way.18
This is unsurprising given that the underpinning rationale can probably be traced back to the principle of specific deterrence. Past conduct is relevant because it shows that an offender has not been sufficiently deterred, and may tend to suggest a future tendency to commit further similar offences as compared to a like offender without such a history. This has always been part of the sentencing practice of the courts, and they are respectfully well-versed in applying it. The only change brought about by the decision in Teo Seng Tiong is the express recognition of the fact that the courts are now permitted to consider previously compounded offences in the sentencing analysis for future offences under any law so long as relevant, and subject to the right of the accused person to challenge the past composition at that stage.
*“Reasonable doubt, guilt and the new hybrid of composition A commentary on Teo Seng Tiong v Public Prosecutor [2021] SGCA 65” was the feature article in the September 2021 edition of the Law Gazette.
Introduction In December 2023, a significant judgment was handed down in the case of Lee…
In a video collaboration between Eugene Thuraisingam LLP and Founders Doc, our Suang Wijaya and…
In February, our partner, Eugene Thuraisingam was invited as a guest on the flagship podcast…
We are pleased to announce that Eugene Thuraisingam, Johannes Hadi and Ng Yuan Siang have…
Introduction Under Section 304(a) of the Penal Code, which punishes a person who commits culpable…
This article by our Hamza Malik originally appeared on the International Arbitration Review. Introduction Singapore…