[2014] 3 SLR 0649.

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[2014] 3 SLR SINGAPORE LAW REPORTS 649

Public Prosecutor
v
Adith s/o Sarvotham
[2014] SGHC 103

High Court — Magistrate’s Appeal No 302 of 2013

Sundaresh Menon CJ
17 April; 27 May 2014
Criminal Procedure and Sentencing — Appeal — Pending stay of execution —
Prosecution appealing against sentence — Principles governing stay application
Criminal Procedure and Sentencing — Sentencing — Young offenders — 17-year-
old committing a number of serious drug offences — Whether sentence of probation
wrong in principle

Facts
Adith s/o Sarvotham (“the Respondent”) was 17 years of age when he was
convicted of several drug offences under the Misuse of Drugs Act (Cap 185,
2008 Rev Ed) (“the MDA”).
On 15 January 2013, the Respondent was arrested outside his flat by Central
Narcotics Bureau officers. Various drug exhibits belonging to him and two
cannabis plants were seized during the raid. The Respondent admitted to
owning the cannabis plants and consuming cannabis. The Respondent was
subsequently released on bail.
On 26 April 2013, whilst the Respondent was out on bail, police officers
conducted a spot check on him and found four blue straws containing 0.06g of
diamorphine in his possession. The Respondent admitted to ownership and
possession of the diamorphine. He stated that he had obtained it from one “Sha
Boy” and was told by him to sell one straw at a price of $20. The Respondent was
on the way to meet one “Jayin” for this purpose when he was arrested.
The Respondent pleaded guilty to three charges of drug trafficking,
consumption and cultivation under the MDA. Four other charges of possession
and consumption of cannabis were also taken into consideration during
sentencing. The district judge (“the District Judge”) sentenced the Respondent
to 36 months of probation. This sentence included: (a) a voluntary residence at a
residential facility for a period of 12 months; and (b) 24 hours of community
service.
The Public Prosecutor brought the present appeal against the sentence imposed
by the District Judge on the ground that the sentence of probation was wrong in
principle.

Held, dismissing the appeal:

(1) An appellate court should interfere with a sentence meted out by the trial
judge only in the following limited circumstances: (a) the trial judge had made
the wrong decision as to the proper factual matrix for the sentence; (b) the trial
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650 SINGAPORE LAW REPORTS [2014] 3 SLR

judge had erred in appreciating the material before him; (c) the sentence was
wrong in principle; or (d) the sentence imposed was manifestly excessive or
manifestly inadequate: at [11].
(2) Rehabilitation was generally the dominant sentencing consideration for
an offender aged 21 years and below. However, this consideration was usually
outweighed by the need for punishment or deterrence where serious crimes such
as drug trafficking had been committed. Where the individual offender’s
capacity for rehabilitation was demonstrably high, this could outweigh public
policy concerns that were traditionally understood as militating against
probation: at [13] and [14].
(3) The litany of serious offences that had been committed by the Respondent
including trafficking, consumption, cultivation and possession of prohibited
drugs would ordinarily have warranted a sentence of reformative training.
Moreover, there were no unusual or exceptional circumstances that warranted a
deviation from the imposition of reformative training: at [15].
(4) There was nothing remarkable or compelling about the level of familial
support that would have been available to the Respondent so as to justify
maintaining an overriding focus on the Respondent’s rehabilitation despite the
serious nature of the offences he had committed. Neither was there anything
exceptional about the surrounding circumstances of this case or the degree of
remorsefulness shown by the Respondent: at [16] and [17].
(5) A sentence of reformative training would have been more appropriate.
The District Judge had been generous to the Respondent to the point of erring as
a matter of law and principle in imposing a term of probation. It was erroneous
for the District Judge to have regarded a sentence of reformative training as
being inconsistent with the objective of rehabilitation since reformative training
functioned equally well to advance the dominant principle of rehabilitation.
Nonetheless, the appeal was not allowed because of the surrounding
circumstances of the appeal: at [20] and [21].
(6) It was regrettable that the Prosecution’s application for stay pending
appeal was dismissed without reasons by the District Judge because it was not
evident how the Respondent would have been prejudiced by the grant of a stay.
By the time the appeal was heard, the Respondent had already served a period of
almost six months at the residential facility and had been substantially deprived
of his liberty during this period. Also, the Respondent had already fulfilled the
240-hour community service order imposed on him. Given the particular facts
of this case, it would have been unfair to replace the Respondent’s existing
sentence of probation with a term of reformative training. Replacing the
Respondent’s existing sentence with a term of reformative training would have
amounted to double punishment since he had already served a good part of his
probation term and had completed his obligations under the community service
order: at [22], [26] and [27].
[Observation: Where the Prosecution has applied for a stay of execution pending
its appeal against sentence that entailed a loss of liberty for the convicted person,
the court determining such a stay application should weigh the following factors:
(a) the interests of a fair and just prosecution, including the interest of ensuring
that the Prosecution’s appeal against the sentence was not prejudiced; (b) any
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[2014] 3 SLR PP v Adith s/o Sarvotham 651

comparative prejudice to the convicted person in having to await the outcome of

the appeal before serving his sentence; (c) the nature and gravity of the offence;
(d) the length of the term of imprisonment or probation in comparison with the
length of time which it was likely to take for the appeal to be heard; and
(e) whether any possible prejudice to the convicted person could be ameliorated
through simple measures such as requesting that the appeal be heard on an
urgent basis: at [29] to [32].
If the trial court dismissed the stay application, the Prosecution might still
seek a stay from the appellate court pursuant to s 383 of the Criminal Procedure
Code (Cap 68, 2012 Rev Ed): at [33] and [34].]

Case(s) referred to
Loh Kok Siew v PP [2002] 2 SLR(R) 186; [2002] 3 SLR 22 (refd)
PP v Justin Heng Zheng Hao [2012] SGDC 219 (folld)
PP v Kwong Kok Hing [2008] 2 SLR(R) 684; [2008] 2 SLR 684 (folld)
PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (refd)
PP v Loqmanul Hakim bin Buang [2007] 4 SLR(R) 753; [2007] 4 SLR 753 (refd)
PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449; [2008] 1 SLR 449
(refd)
PP v Mok Ping Wuen Maurice [1998] 3 SLR(R) 439; [1999] 1 SLR 138 (folld)
PP v Saiful Rizam bin Assim [2014] 2 SLR 495 (folld)
PP v Teo Ming Min Magistrate’s Appeal No 209 of 2012 (refd)
PP v Wong Jia Yi [2003] SGDC 53 (refd)
PP v Yusry Shah bin Jamal [2008] 1 SLR(R) 487; [2008] 1 SLR 487 (refd)
Ralph v PP [1971–1973] SLR(R) 365; [1972–1974] SLR 322 (refd)

Legislation referred to
Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 383 (consd)
Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 5(1)(a), 5(2), 8(a), 8(b)(ii), 9, 10,
33
Penal Code (Cap 224, 2008 Rev Ed) s 324

Ong Luan Tze and Low Chun Yee (Attorney-General’s Chambers) for
the Prosecution;
Randhawa Ravinderpal Singh s/o Savinder Singh Randhawa (Kalco Law LLC) for
the respondent.

[Editorial note: This was an appeal from the decision of the District Court in
[2013] SGDC 389.]
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652 SINGAPORE LAW REPORTS [2014] 3 SLR

27 May 2014

Sundaresh Menon CJ:

Introduction

1 This was an appeal brought by the Public Prosecutor against the

decision of the district judge (“the District Judge”) in PP v Adith
s/o Sarvotham [2013] SGDC 389. Adith s/o Sarvotham (“the Respondent”)
pleaded guilty to three charges under the Misuse of Drugs Act (Cap 185,
2008 Rev Ed) (“the MDA”) and was sentenced to a term of probation. Four
other charges under the MDA were taken into consideration. The
Prosecution brought the present appeal on the ground that the sentence of
probation was wrong in principle.

2 The Respondent was convicted of the following charges:

Charge MDA Section Offence Punishment

(DAC No)
DAC Section 10 Cultivation of Minimum: Three years
15168/2013 cannabis plants imprisonment or $5,000
fine or both
Maximum: 20 years
imprisonment or
$40,000 fine or both
DAC Section 8(b)(ii) Consumption of Maximum: Ten years
15171/2013 punishable a cannabinol imprisonment or
under s 33 derivative $20,000 fine or both
DAC Section 5(1)(a) Trafficking of Minimum: Five years
24697/2013 punishable diamorphine and five strokes
under s 5(2)
Maximum: 20 years and
15 strokes

3 The following charges were taken into consideration during

sentencing:

Charge MDA Section Offence Punishment

(DAC No)
DAC Section 8(a) Possession of Maximum: Ten years
15169/2013 punishable cannabis imprisonment or
under s 33 $20,000 fine or both
DAC Section 8(a) Possession of Maximum: Ten years
15170/2013 punishable cannabis imprisonment or
under s 33 $20,000 fine or both
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[2014] 3 SLR PP v Adith s/o Sarvotham 653

DAC Section 9 Possession of Maximum: Three years

15172/2013 punishable utensils for drug imprisonment or
under s 33 taking $10,000 fine or both
DAC Section 8(b)(ii) Consumption of Maximum: Ten years
19271/2013 punishable a cannabinol imprisonment or
under s 33 derivative $20,000 fine or both

Background facts
4 The Respondent was 17 years of age when he was convicted of these
offences.
5 On 15 January 2013 at about 11.20pm, the Respondent was arrested
outside his flat by Central Narcotics Bureau officers. He was searched and
various drug exhibits belonging to him were recovered. The flat at which he
was residing was also searched. More drug exhibits were seized, including
two potted plants which were later analysed and found to be cannabis
plants. The Respondent admitted to owning the cannabis plants and
consuming cannabis. He had started cultivating the plants in December
2012 and had watered them once every two days. The Respondent was
subsequently released on bail.
6 On 26 April 2013 at about 7.55pm, whilst the Respondent was out on
bail, police officers conducted a spot check on him at the Singapore
Shopping Centre. The officers found in the Respondent’s possession four
blue straws containing a powdery substance. This was subsequently
analysed and found to contain 0.06g of diamorphine. The Respondent
admitted to ownership and possession of the diamorphine. He stated that
he had obtained it from one “Sha Boy” and was told by him to sell one straw
at a price of $20. The Respondent was on the way to meet one “Jayin” for
this purpose when he was arrested.

The proceedings below

7 At the hearing below on 10 September 2013, the District Judge called
for both probation and reformative training pre-sentence reports. The
matter was then adjourned for sentencing. On 4 October 2013, the
probation and reformative training reports (“the PR” and “the RT Report”
respectively) were furnished to the court. At the end of the hearing, the
District Judge directed the probation officer to prepare a supplementary
probation report (“the SPR”) in order to enable him to evaluate whether a
period of hostel residence would be a more suitable option.
8 The PR initially recommended that the Respondent be placed on
27 months’ split probation with six months of electronic tagging, 200 hours
of community service, regular urine tests and a bond for good behaviour.
The SPR contained a revised recommendation of 30 months’ split
probation (12 months of intensive probation and 18 months of supervised
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654 SINGAPORE LAW REPORTS [2014] 3 SLR

probation) with an additional period of voluntary residence at a residential

facility for 12 months. The other recommended conditions were not
altered. The RT Report found the Respondent physically and mentally fit
for reformative training. It was also noted that in the course of the training,
the Respondent would be exposed to courses that would address his
attitudes and upgrade his educational level.

The decision below

9 The District Judge held that:
(a) The principal consideration when sentencing a young offender
is rehabilitation although this must be balanced against the interests
of both general and specific deterrence.
(b) The findings and recommendations of the PR and SPR were to
be preferred over the RT report because the latter only took into
account a limited range of information, whereas the
recommendations of the PR and SPR were more closely targeted at
the root causes of the Respondent’s offending behaviour and he could
participate in specific programmes targeted at his reform and
rehabilitation.
(c) It could not be in the public interest that every young drug
offender be incarcerated and exposed to the negative influences of
hardened criminals in the prison environment.
(d) The MDA did not specifically prohibit the court from placing a
young drug trafficker on probation if the court found it appropriate to
do so.
(e) The nature of the offence is only one of the many relevant
factors which are taken into account in arriving at an appropriate
sentence. The guiding principle in assessing the suitability of
probation is the likelihood of success of the attempted rehabilitation.
(f) On balance, the Respondent had good prospects for
rehabilitation and an intensive probation order together with the
stringent conditions and rehabilitative programmes would not detract
from the aim of both specific and general deterrence.
(g) The Respondent demonstrated genuine remorse by being co-
operative during the social investigation process, abiding by time
restrictions, ceasing to smoke, drink and consume drugs and
acknowledging the severity of his offences.
(h) There was no evidence that the Respondent had gone to the
extent of trafficking drugs of substantial quantities; he had no
intention of using the drugs from the cannabis plant for consumption
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[2014] 3 SLR PP v Adith s/o Sarvotham 655

or for sale and had intended to sell drugs only to one potential
customer.
10 The District Judge therefore sentenced the Respondent to 36 months
of probation with the following conditions:
(a) voluntary residence at a residential facility, The New Charis
Mission (“TNCM”), for a period of 12 months;
(b) electronic tagging for six months upon discharge from TNCM;
(c) observance of a time restriction of 10.00pm to 6.00am unless
otherwise varied by the Probation Services Branch, in accordance
with the guidelines approved by the court;
(d) 240 hours of community service; and
(e) regular urine tests.

My decision

The appropriate sentence

11 It is uncontroversial that an appellate court should interfere with a
sentence meted out by the trial judge only in limited circumstances.
Specifically, it must be satisfied that:
(a) the trial judge had made the wrong decision as to the proper
factual matrix for the sentence;
(b) the trial judge had erred in appreciating the material before him;
(c) the sentence was wrong in principle; or
(d) the sentence imposed was manifestly excessive or manifestly
inadequate.
See PP v Kwong Kok Hing [2008] 2 SLR(R) 684 (“Kwong Kok Hing”) at [14].
12 The Prosecution’s essential argument was that the sentence of
probation imposed by the District Judge was wrong in principle or
manifestly inadequate and that a sentence of reformative training should
have been imposed instead.
13 There are four generally accepted principles of sentencing, namely,
deterrence, retribution, prevention and rehabilitation. In any given factual
matrix, the court should assess which of these considerations has or have
the greatest relevance (see Kwong Kok Hing at [33]). Where serious offences
have been committed by the accused person, the sentencing principle of
deterrence comes to the fore. General deterrence “aims to educate and deter
other like-minded members of the general public by making an example of
a particular offender” (PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24])
while specific deterrence “relates to the effect that punishment might have
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656 SINGAPORE LAW REPORTS [2014] 3 SLR

in persuading an accused to refrain from further unlawful conduct by the

fashioning of an appropriate sentence that takes into account the nature of
the offence and his peculiar disposition ” [emphasis in original] (PP v
Loqmanul Hakim bin Buang [2007] 4 SLR(R) 753 at [25]).
14 On the other hand, rehabilitation is generally the dominant
sentencing consideration when deciding on an appropriate sentence for a
young offender aged 21 years and below (see PP v Mok Ping Wuen Maurice
[1998] 3 SLR(R) 439 at [21]). However, this consideration is usually
outweighed by the need for punishment or deterrence where serious crimes
such as drug trafficking have been committed (see PP v Justin Heng Zheng
Hao [2012] SGDC 219 at [13] (“Justin Heng”). The District Court in Justin
Heng took pains to emphasise that probation had been ordered in PP v
Wong Jia Yi [2003] SGDC 53 only because it was an exceptional case where
the risk of re-offending was clearly low. Where the individual offender’s
capacity for rehabilitation is “demonstrably high”, this could outweigh
public policy concerns that are traditionally understood as militating
against probation (Justin Heng at [15]).
15 Turning to the facts of the present case, the litany of serious offences
that had been committed by the Respondent including trafficking,
consumption, cultivation and possession of prohibited drugs would
ordinarily have warranted a sentence of reformative training. Moreover,
there were no unusual or exceptional circumstances that warranted a
deviation from the imposition of reformative training.
16 There was certainly nothing remarkable or compelling about the level
of familial support that would be available to the Respondent so as to justify
maintaining an overriding focus on the Respondent’s rehabilitation despite
the serious nature of the offences he had committed. The Respondent used
to reside with his father, who was apparently a strict disciplinarian, from a
young age until August 2012. However, his father no longer resided in
Singapore and was therefore no longer in any position to exert meaningful
influence over the Respondent or to play a substantial role in his
rehabilitation. As for the Respondent’s mother, she had recently been
sentenced to six months’ imprisonment on 24 April 2013 for consuming
marijuana. According to the PR, the mother did express her willingness to
step up her supervision over the Respondent. However, it was also
recognised that she had a lax parenting style and this coupled with her own
disregard for the law rendered “her ability to effectively supervise [the
Respondent] questionable”. The Respondent’s maternal uncle expressed his
willingness to execute the Respondent’s “good behaviour” bond and
monitor his peer association and activities outside the home but it was not
evident how effective this would prove to be.
17 Neither was there anything exceptional about the surrounding
circumstances of this case or the degree of remorsefulness shown by the
Respondent. The Respondent had committed a string of serious drug-
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[2014] 3 SLR PP v Adith s/o Sarvotham 657

related offences on two separate occasions. On 15 January 2013, he was

arrested for cultivating cannabis plants, consuming a cannabinol derivative
and possessing cannabis and utensils intended for the consumption of a
controlled drug. Despite what might have been expected to be a daunting
encounter with the face of the law, three months later, on 26 April 2013,
while the Respondent was out on bail for the first set of offences, he was
arrested and found to be trafficking diamorphine and consuming a
cannabinol derivative. The Respondent was plainly undeterred and
unremorseful after having been apprehended just a few months earlier.
Indeed, he had gone on to commit further drug offences, including the
more serious offence of trafficking which ordinarily attracts a mandatory
imprisonment term of five years and five strokes (see above at [2]).

18 Further, the Respondent’s propensity to consume cannabis was not

something that was newly developed. According to the PR, the Respondent
had been consuming cannabis four or five times a month when he was
living in India from 2011 to August 2012. This rate of consumption
increased to two or three times a week between August 2012 and January
2013 after he returned to Singapore. The Respondent said that he continued
to consume cannabis while he was out on police bail ostensibly because he
was upset after his mother had been incarcerated in April 2013. It was also
stated in the PR that the Respondent “felt that he was not addicted to
cannabis but enjoyed taking it as it helped him to relax”. And by April 2013,
as I have already noted, the Respondent had moved on to trafficking in
drugs. According to the statement of facts, the Respondent had engaged in
trafficking diamorphine because of the “prestige” he thought this would
have brought him. He apparently felt that he would be seen as someone
other drug users could turn to if they wanted drugs. This was a troubling
descent to say the least.

19 None of this painted a picture of an offender who presented a

compelling case for lenience, even when balanced against the remorse that
the Respondent has expressed in more recent times for his actions. It was
reported in the SPR that he had stopped smoking, consuming alcohol or
abusing drugs since his release from remand on 7 October 2013. In
addition, he had undertaken some 30.5 hours of volunteer work at the Sree
Narayana Mission Home between 17 October 2013 and 25 October 2013.
The Respondent also admitted himself into the residential programme at
TNCM on 1 November 2013. In a letter dated 18 November 2013, the
Executive Director of TNCM, Mr Don Wong Shyun Yann, reported that
the Respondent had been observed to be responding well to the
programme. Mr Wong also observed that the Respondent “shows a deep-
seated determination to make up for lost time through his plans for further
education”. According to the Respondent’s uncle, the Respondent has
ceased contact with his negative peers and has abided by the 9.00pm curfew
imposed by the probation officer.
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658 SINGAPORE LAW REPORTS [2014] 3 SLR

20 On the whole, despite the recent signs of improvement, which

emerged at about the time of the sentencing hearing below, there was
nothing exceptional about the facts presented which suggested that the
Respondent’s capacity for rehabilitation was so demonstrably high that a
term of probation would be sufficient. I was therefore of the view that a
sentence of reformative training would have been more appropriate and
that the District Judge had been generous to the Respondent to the point of
erring as a matter of law and principle in imposing a term of probation.
21 The District Judge placed considerable emphasis on the fact that
when a court deals with a young offender, the paramount consideration is
rehabilitation. As I have noted, this may be displaced where serious offences
are involved. But aside from this, it was erroneous for the District Judge to
regard a sentence of a term of reformative training as being inconsistent
with the objective of rehabilitation. As compared to probation, reformative
training functions “equally well to advance the dominant principle of
rehabilitation” (see PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R)
449 (“Al-Ansari”) at [65]). In a case such as the present where serious
offences have been committed, a sentence of reformative training would be
particularly appropriate because it would undoubtedly represent a better
balance between the need for rehabilitation and deterrence (see Al-Ansari
at [65] and PP v Yusry Shah bin Jamal [2008] 1 SLR(R) 487 at [12], [18] and
[19]). Nonetheless, despite my serious misgivings over the sentence that
was imposed by the District Judge, for the reasons that I shall come to
below, I was persuaded not to allow the appeal.

The surrounding circumstances of the present appeal

22 Immediately after the sentence was imposed, the Prosecution made
an oral application before the District Judge for a stay pending appeal but
this application was dismissed by the judge without reasons. This was
regrettable since it is not evident how the Respondent would have been
prejudiced by the grant of a stay. Upon the stay application having been
denied, the Respondent commenced serving his sentence with some
urgency. By the time I heard the appeal:
(a) the Respondent had already served a period of almost six
months at TNCM and had been substantially deprived of his liberty
during this period;
(b) the Respondent was reported to have made moderate to good
progress in that six month period; and
(c) the Respondent had already fulfilled the 240-hour community
service order.
Aside from this, the Respondent had already served a period of six months
in remand prior to his conviction.
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[2014] 3 SLR PP v Adith s/o Sarvotham 659

23 This court has recently dealt with at least two cases in which similar
situations had arisen. In PP v Teo Ming Min Magistrate’s Appeal No 209 of
2012 (“Teo Ming Min”), the respondent was sentenced to probation for a
charge under s 324 of the Penal Code in the District Court. The Public
Prosecutor appealed against the order of probation. When the appeal was
heard, the respondent had already served nine weeks of probation and was
reportedly performing well. According to the Prosecution, although
V K Rajah JA was of the view that the respondent ought to have been
sentenced to imprisonment, the order of probation was not set aside and
the appeal was accordingly dismissed. Rajah JA evidently commented at the
hearing that if the Public Prosecutor had applied for a stay of the probation
order, this might have prevented the situation from arising where, by the
time of the appeal, the offender would already have served a significant
portion of the original sentence imposed by the court at first instance.

24 More recently, in PP v Saiful Rizam bin Assim [2014] 2 SLR 495

(“Saiful Rizam”), the accused persons were sentenced to varying terms of
imprisonment by the District Court for a number of theft and theft-related
offences under the Penal Code. Chao Hick Tin JA observed that he would
have sentenced the accused persons to reformative training had he been in
the district judge’s position (at [26]). However, he declined to do so on
appeal because the accused persons had already served a substantial part of
their imprisonment terms. Chao JA was particularly troubled by the fact
that imposing reformative training when a substantial part of the accused
person’s imprisonment term had already been served would have
amounted to double punishment, because among other things the term of
reformative training that is imposed cannot be adjusted or reduced to take
into account the partially served term of imprisonment (at [43]).

25 These cases highlight the dilemma that confronts an appellate court

when it is faced with an appeal brought by the Prosecution against the
sentence imposed by the lower court in circumstances where that sentence
has already been served in part. The difficulty is acute where the issue
before the court is one of choosing between different types of sentences that
cannot be reversed if it has already been served in whole or in part – such as
between imprisonment and reformative training (as was the case in Saiful
Rizam) or between probation and imprisonment or a term of reformative
training as was the case in Teo Ming Min and in the present case. In such
circumstances, it is generally not simply a matter of making an adjustment
in the severity of a particular type of punishment such as adjusting the term
of imprisonment. Rather, it is a question of choosing between types of
sentences which may be different in nature and where because of the fact
that the sentence originally imposed may already have been served in part,
the appellate court would generally be reluctant to correct an error made by
the lower court if to do so would result in prejudice to the offender. Of
course, no such difficulty arises in the case of a fine that has been paid since
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660 SINGAPORE LAW REPORTS [2014] 3 SLR

this can be readily refunded. But the position is different where the offender
has lost his liberty in the intervening period between the time the sentence
is imposed and the time the appeal is heard.
26 This was the quandary in which I found myself. Although I
considered that the District Judge had erred in imposing a term of
probation, given the particular facts that I was faced with at the appeal
hearing, I was satisfied that it would have been unfair to the Respondent to
replace the existing sentence of probation with a term of reformative
training.
27 In all the circumstances, I decided not to interfere with the sentence
that had been imposed by the District Judge. As was the case in Teo Ming
Min and Saiful Rizam, there would have been an element of double
punishment here if I were to replace the existing probation term with an
order for reformative training since the Respondent had already served a
good part of his probation term and had completed his obligations under
the community service order.
28 This situation could have been readily avoided if the District Judge
had granted the stay sought by the Prosecution. Unlike the position in Teo
Ming Min and Saiful Rizam, the Prosecution here did seek a stay, which as I
have noted, was refused by the District Judge. As it is important to avoid a
recurrence of such a situation in the future, I turn to examine the principles
that should govern such stay applications.

Principles governing stay applications where the prosecution brings an

appeal against sentence
29 Where a convicted person appeals against his conviction or sentence,
the grant of a stay of execution pending appeal and the continuance of bail
arrangements are fairly straightforward matters. The key concern is the
interest of the accused person in retaining his freedom until his appeal
against conviction or sentence has been resolved. Hence considerable
emphasis is placed on factors that go towards the likelihood of absconding,
including the accused person’s flight risk, his ties with Singapore, and the
character, means and standing of the accused person. Other factors that
would be taken into account include the accused person’s criminal record,
the possibility of the accused person offending or reoffending whilst at
liberty and whether the security imposed is sufficient to ensure the
attendance of the accused person before the appellate court: see Ralph v PP
[1971–1973] SLR(R) 365 at [6] and Loh Kok Siew v PP [2002] 2 SLR(R) 186
at [10].
30 But the setting is altogether different where the Prosecution is:
(a) appealing not against an acquittal (in which case the whole
question of a stay would not generally arise at all) but against a
sentence that entails some loss of liberty; and
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[2014] 3 SLR PP v Adith s/o Sarvotham 661

(b) seeking a stay of execution to prevent the convicted person from

commencing to serve his sentence before the hearing of the appeal,
so as to ensure that when the appellate court comes to consider the
appropriate sentence its discretion is not curtailed or affected by the
convicted person having already served the original sentence in part or
worse, conceivably, in its entirety.

The proper approach

31 In such circumstances, the court hearing a stay application should
primarily be concerned with ensuring that the Prosecution’s appeal is not
prejudiced while weighing this against the comparative prejudice, if any,
that is suffered by the convicted person in having to await the outcome of
the appeal before commencing his sentence. Prejudice in the latter context
will not readily be apparent but I do not mean to shut the door to matters
that might conceivably be raised. Any legitimate concern the offender
might have should be weighed against the legitimate interest of the
Prosecution in having the sentence reviewed and finally settled by the
appellate court.
32 In these circumstances, in my judgment, the court determining such a
stay application should weigh the following factors:
(a) the interests of a fair and just prosecution, including the interest
of ensuring that the Prosecution’s appeal against the sentence is not
prejudiced;
(b) any comparative prejudice to the convicted person in having to
await the outcome of the appeal before serving his sentence;
(c) the nature and gravity of the offence;
(d) the length of the term of imprisonment or probation in
comparison with the length of time which it is likely to take for the
appeal to be heard; and
(e) whether any possible prejudice to the convicted person can be
ameliorated through simple measures such as requesting that the
appeal be heard on an urgent basis.
33 It should be noted that if the trial court dismisses the stay application,
as it did in this instance, the Prosecution may yet seek a stay from the
appellate court. Unfortunately, this was not done here. Section 383 of the
Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) provides that:

Stay of execution pending appeal

383.—(1) An appeal shall not operate as a stay of execution, but the trial
court and the appellate court may stay execution on any judgment, sentence
or order pending appeal, on any terms as to security for the payment of
money or the performance or non-performance of an act or the suffering of a
[2014] 3 SLR 0649.fm Page 662 Monday, August 25, 2014 3:23 PM

662 SINGAPORE LAW REPORTS [2014] 3 SLR

punishment imposed by the judgment, sentence or order as to the court seem

reasonable.
[emphasis added]
34 The simple point ultimately is that a trial court in such circumstances
should hesitate before taking a course that is likely to prejudice the
prospects of an appeal that is being pursued. Where it does take such a
course, there is no reason why the appellate court should not be approached
to consider the point afresh.

Conclusion
35 For the reasons set out above, I dismissed the appeal even though I
considered that the District Judge had erred in the sentence imposed and in
subsequently dismissing the stay application brought by the Prosecution.
36 The Respondent should consider himself extremely fortunate in the
circumstances and at the conclusion of the appeal, I urged him to make the
best of this opportunity and to turn over a new leaf.

Reported by Tan Ben Mathias.