KAMIS BIN BASIR v PUBLIC PROSECUTOR

Facts

Kamis bin Basir, aged 54, had been in and out of prison for three decades for drug and property offences. On the morning of 20 January 2022 he followed an elderly woman to her home, rang the doorbell to draw her to the gate, reached through the rails and violently grabbed her gold chain, breaking it. He pawned it for $870, bought heroin and was arrested later that day; his urine tested positive for a heroin metabolite. He pleaded guilty to one charge of snatch theft under s 356 of the Penal Code and one charge of drug consumption, with drug possession and assisting an illegal moneylender taken into consideration.

The District Judge sentenced him to ten years' preventive detention and refused to backdate it, relying on Public Prosecutor v Rosli bin Yassin [2013] 2 SLR 831, which said backdating such a sentence would probably be justified only in exceptional cases. He appealed in Magistrate's Appeal No 9246 of 2022, heard by a three-judge panel of the High Court. Because the lower courts had taken inconsistent positions on backdating, the court appointed young independent counsel to assist on the point.

Issues

1. Whether the District Judge was right to sentence the appellant to preventive detention.
2. Whether, after the 2018 amendments to s 318 of the Criminal Procedure Code, a preventive detention sentence may be backdated only in exceptional cases.
3. Whether the appellant's sentence of preventive detention should be backdated.

Holding

The High Court allowed the appeal in part: it upheld the sentence of ten years' preventive detention but ordered that it be backdated to the date of the appellant's arrest, 20 January 2022.

Reasoning

The technical conditions in s 304(2)(a) were plainly met given his earlier convictions and two terms of corrective training. Preventive detention was amply justified: he had reoffended less than six months after his last corrective training, earlier punishments including caning had not deterred him, and the pre-sentencing report placed him at high risk of reoffending. His challenge to the report's statistical figure failed because the District Judge relied on the specific risk factors as well, including his bad company, his habit of turning to crime to solve problems and his tendency to trivialise his offences. A supportive family did not reduce that risk.

On backdating, Rosli rested on the absence of any express power to backdate preventive detention and on its being a prospective sentence. Since 2018, s 318(1) and s 318(3) expressly allow imprisonment, corrective training and preventive detention to start earlier than the date of sentence, and s 318(4) and s 318(5) set out what the court must consider. Nothing in the text confines backdating to exceptional cases, and Parliament excluded only reformative training. The Prosecution's reliance on the Explanatory Statement was rejected. Remand also keeps the offender away from the public, so it is fair to take it into account.

The court set out a two-stage approach: first fix the length of preventive detention by reference to protecting the public, then consider whether the total period of incarceration after backdating still protects the public, with proportionality not wholly ignored. Here he had spent about ten months in remand, and without backdating he would in effect serve almost 11 years.

From the judgment