Doubts on Legal Effect of Composition — PP v Koh Thiam Huat
This article examines the recent High Court decision on the relevance of compounded offences. It compares it with previous High Court decisions and suggests that a final determination on the issue by the Court of Appeal may be necessary.
The recent High Court’s decision in PP v Koh Thiam Huat1  SGHC 123 is remarkable in ruling that an offence under the Road Traffic Act (“RTA”) (or its subsidiary legislation) which has been compounded can be taken into account against an offender for sentencing purposes.
The offender in PP v Koh Thiam Huat pleaded guilty and was convicted of a single charge of dangerous driving under s 64(1) of the RTA. The District Court sentenced the offender to a fine of $3,000 and disqualification from holding and obtaining all classes of driving licence for a period of 11 months. The High Court allowed the Prosecution’s appeal for a custodial sentence and substituted the sentence with an imprisonment term of one week’s imprisonment and a lengthier disqualification of 18 months.
One of the main issues arising from the appeal was the relevance of the offender’s composition record as follows:
|(a)||16 January 1999||Speeding||Composition / $200|
|(b)||3 August 1999||Speeding||Composition / $130|
|(c)||12 September 2006||Parking at unbroken double yellow lines||Composition / $70|
|(d)||12 April 2007||Failing to conform to red light signal||Composition / $200|
|(e)||11 November 2009||Disobeying “no entry” sign||Composition / $70|
|(f)||11 October 2013||Speeding||Composition / $130|
|(g)||29 August 2014||Making an unauthorised U-turn||Composition / $70|
The Defence submitted the composition record was irrelevant for sentencing as they were, as they were, for all intents and purposes, the same as a discharge amounting to an acquittal. Reliance was placed by the Defence on ss 241 and 242 of the Criminal Procedure Code. The Prosecution on the other hand submitted that ss 241 and 242 of the Criminal Procedure Code apply only to offences under the Penal Code and the Miscellaneous Offences (Public Order and Nuisance) Act. They do not apply to traffic offences and that the composition of traffic offences does not carry the effect of an acquittal.
The High Court did not rule on the question of whether the composition of traffic offences carry the effect of an acquittal and decided instead that:
Whether an offence under the RTA (or its subsidiary legislation) which has been compounded amounts to an acquittal is a separate and distinct question from whether the same can be taken into account for sentencing purposes. The latter does not turn on the answer to the former.
Other than the instances of composition in paragraphs (c) and (e) above, the High Court held that the other five instances of composition together with the conviction record of three convictions for traffic offences showed that:
- the offender “had an alarming proclivity to flout traffic rules”; and
- a clearer and, indeed, stronger message had to be sent to the offender that “traffic rules are to be strictly obeyed and not flouted with impunity”.
The High Court concluded that it is relevant to consider the compounded traffic offences for the purpose of sentencing and that they form part of the offender’s bad driving record.
The High Court thus ascribed the same legal effect of a conviction record to a composition record. Further, as the High Court did not think that it relevant to consider if composition of traffic offences carry the effect of an acquittal, it would suggest that even if a compounded case does carry the effect of the an acquittal, such a compounded case will still be relevant for the purpose of sentencing. This means that a Court sentencing an offender convicted of a sexual offence, will be entitled to consider it aggravating if the offender had a previous compounded case of molest even if the previous case amounted to an acquittal in law.
It is respectfully submitted that the High Court’s decision on the relevance of compounded offences sits uncomfortably with prevailing legal principles and past High Court decisions.
First, it has an important bearing to consider if the composition of the offence concerned amounts to an acquittal in law. This is because if a person is acquitted of an offence, it does not form part of his criminal records for which the Prosecution’s address on sentence may include under s 228(2)(a) of the Criminal Procedure Code. Neither will it be a relevant factor which may affect the sentence under s 228(2)(a) of the Criminal Procedure Code. There must be no difference whether the acquittal resulted from the accused claiming trial, the prosecution withdrawing the charge or the accused compounding the offence. It would be contrary to the sacrosanct principle of presumption of innocence if a sentencing Court is to adversely consider any offence for which a person was acquitted.
The Minister for Law, Mr K Shanmugam succinctly emphasised in a parliamentary speech in August 2008 that:
“Sir, let there not be any doubt on this point: the presumption of innocence is an important and fundamental principle, and is one of the foundations of our Criminal Justice System. The Government is absolutely committed to upholding the presumption of innocence, as a core principle in our commitment to the Rule of Law. There is no intention to question or qualify that principle in any way.
We should not assume guilt by reason of a person being charged because our legal system, like many others, and for various sensible reasons, does not go on to establish the factual innocence of the accused.” (Emphasis added)
The Prosecution recognised the importance of considering if composition of traffic offences carries the effect of an acquittal as reflected in their arguments in PP v Koh Thiam Huat. That was why the Prosecution tried to distinguish composition of traffic offences from composition of offences under Penal Code and the Miscellaneous Offences (Public Order and Nuisance) Act by arguing that only the latter carry the effect of an acquittal.
If the Prosecution’s argument in PP v Koh Thiam Huat is correct, it would mean that composition of a whole host of regulatory offences under statutes such as the Income Tax Act, Parking Places Act, Employment of Foreign Manpower Act etc do not carry the effect of an acquittal.
With respect, the distinction drawn by the Prosecution is not legally tenable. Two previous High Court decisions considered that the composition of offences under other Acts of Parliament such as the Income Tax Act and the Road Traffic Act carries the same effect of an acquittal of an accused even though these Acts do not contain the predecessor provision2 Section 199(4) of the Criminal Procedure Code prior to its repeal and re-enactment in 2010: which provides: of ss 241 and 242 of the Criminal Procedure Code.
In Re Lim Chor Pee3  2 SLR(R) 117, LP Thean J, in delivering the judgment of the Court of Three Judges in a show cause proceedings against a lawyer, held that that the lawyer’s composition of an evasion of income tax offence under the Income Tax Act cannot be considered as an implied admission of a wilful evasion of tax:
“Whether the offence is compounded under the Code or under the Income Tax Act, payment of a sum of money is exigible from the alleged offender. The fact that the payment made is a penalty, is a large sum and is imposed at the same rate applicable upon conviction of the offence by court is not a valid ground for raising the inference of guilt against the alleged offender. We accept that there is no equivalent in the Income Tax Act of sub-s (4) of s 199 of the Code. However, in our opinion, on principle, the same rule should apply to a composition of an offence under the Income Tax Act, or to put it negatively composition of an offence by an alleged offender cannot constitute an admission of guilt against him. The effect of a composition is that no further action can be taken by the prosecuting authority against the accused on the offence compounded or indeed any other offence in respect of which he could plead autrefrois acquit or autrefois convict in respect of the offence compounded.
There are multiple reasons why a person may wish to compound an offence, whether it be an income tax offence or an offence compoundable under the Code, without any admission of guilt. In particular, in the case of a taxpayer being charged for tax evasion under s 96 of the Income Tax Act, where the burden of proof is shifted to him, he may, on grounds of practicality and expediency, if agreeable to the Comptroller of Income Tax, compound the offence and pay the requisite composition fee and penalty.” (Emphasis added)
Rajamanikam Ramachandran v Chan Teck Yuen,4  SGHC 259 Tay Yong Kwang J (as he then was) applied Re Lim Chor Pee in addressing the effect of compositions under the Road Traffic Act:
“40 It can be seen from the above two authorities that the rule embodied in Section 199(4) Criminal Procedure Code has general application to composition of offences outside the Penal Code. I respectively agree with this proposition and hold that the same rule applies to the composition of an offence under the Road Traffic Act or the subsidiary legislation made thereunder.” (Emphasis added)
The High Court rulings in Re Lim Chor Pee and Rajamanikam Ramachandran v Chan Teck Yuen are consistent with the legal effect of composition as explained in Parliament. The Minister for Home Affairs, Mr Wong Kan Seng in the Second Reading speech for the Parliamentary Elections (Amendment) Bill in May 2005 explained the general and established legal effect of composition as follows;
“… Composition of an offence is a procedure by which an agency that administers a written law gives a person who is reasonably suspected of committing an offence under that law (the alleged offender) the chance to avoid prosecution and conviction in court by paying a sum of money to the agency. This is done by many Government agencies. On payment of the sum of money by the alleged offender, the agency will not take or will discontinue any criminal proceedings against the alleged offender in respect of the offence and the alleged offender is taken not to have been convicted of the offence.” (Emphasis added)
The fundamental principle embodied in the proposition that all compositions must carry the effect of acquittal or non-conviction is that compounded cases do not involve any court of law having made any legally binding pronouncement of guilt on the person compounding the offence. Constitutionally, that role is vested exclusively in our Courts. The Prosecution accepts that stern warnings are not to be treated as an antecedent or as an aggravating factor since it has no legal effect and is not binding on the recipient5Wham Kwok Han Jolovan v Attorney-General  1 SLR 1370 as these are extra-judicial, diversionary instruments in our criminal justice system. A composition carries the strong legal effect (as opposed to no legal effect for stern warnings) of an acquittal or non-conviction and by even greater force of logic, must not be treated as an antecedent or as an aggravating factor.
Given that PP v Koh Thiam Huat appears to be in conflict with previous High Court decisions relating to the legal effect of composition, it may perhaps be necessary for this important issue of law of public interest be referred to the Court of Appeal for final determination.