What legal question did Public Prosecutor v Xu Yuanchen [2024] SGCA 45 address?

It addressed whether an offender who serves an imprisonment term without seeking a stay pending appeal, and whose sentence is later varied on appeal to a fine, can have the default imprisonment term for the unpaid fine satisfied by the imprisonment already served.

Under what provision was Public Prosecutor v Xu Yuanchen [2024] SGCA 45 referred to the Court of Appeal?

The Public Prosecutor brought the criminal reference under section 397(2) of the Criminal Procedure Code 2010 (2020 Rev Ed), seeking the Court of Appeal's determination of a question of law of public interest arising from earlier High Court decisions involving Xu Yuanchen.

[2024] SGCA 45 — PUBLIC PROSECUTOR v XU YUANCHEN

SUPREME COURT OF SINGAPORE

29 October 2024

Case summary

Public Prosecutor v Xu Yuanchen [2024] SGCA 45
Court of Appeal/Criminal Reference No 1 of 2023

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Judgment of the Court of Appeal (comprising Sundaresh Menon CJ, Tay Yong Kwang JCA and Andrew Phang Boon Leong SJ, delivered by Tay Yong Kwang JCA):

Outcome: The Court of Appeal (the “CA”) held, in answer to a question of law of public interest referred to the Court by the Public Prosecutor, that where an offender convicted of an offence is sentenced to imprisonment and elects to serve such imprisonment, term and not apply for a stay of execution of the sentence pending appeal and the sentence is subsequently varied on appeal to a fine, the imprisonment term imposed in default of the payment of the fine cannot be satisfied by the imprisonment term that was earlier served.

In such a situation, an appellate court should decline to interfere with the sentence imposed on the basis that the original sentence has already been served, even if the appellate court takes the view that a different sentence would have been appropriate. The Court of Appeal set aside the fine of $8,000 (in default two weeks imprisonment) imposed by the High Court and order that the respondent’s appeal against sentence in the High Court be dismissed.

Pertinent and significant points of the judgment

• The wording of s 318(1) of the CPC implies that the date of commencement of the sentence of imprisonment must be identified at the point at which it is passed, which is not true of default terms of imprisonment. Moreover, if default terms of imprisonment could be backdated to the date on which an offender began serving a sentence of imprisonment which is later set aside on appeal, there would be no reason why a default term could not also be backdated to the date of remand. This may lead to accused persons who are fined and given a default imprisonment term seeking to have the fine deemed paid in full or in part by virtue of the period already spent in remand, removing the incentive to pay the fine imposed. Such a situation was not meant to be permitted by s 318: at [32]–[35].

• Our courts have emphasised the importance of seeking a stay of execution of sentence pending appeal, so that the discretion of the appellate court is not curtailed or affected by the offender having served the original sentence by the time of the appeal hearing. Where such a stay is not obtained, the party who bears responsibility for that situation will be visited with the prejudice that results from it: at [38].

• In the circumstances of the case, the High Court ought to have declined to interfere with the sentence imposed by the DJ on the basis that the respondent had elected to serve the imprisonment term although he had appealed against conviction against sentence and ought to have dismissed the appeal against sentence: at [44] and [47].

Background to the appeal

1 The respondent was the director of The Online Citizen Pte Ltd (“TOC”), a company which runs the socio-political website “www.theonlinecitizen.com”. On 4 September, he approved the publication of an article, which took the form of a letter purportedly written in the name of a third person, but had in fact been authored by the respondent’s co-accused and sent to the TOC team using that third person’s email account. Amongst other things, the letter made allegations concerning the “present PAP leadership” relating to “corruption at the highest echelons”.

2 The respondent was subsequently charged with criminal defamation. The District Judge hearing the case at first instance (the “DJ”) interpreted the article as alleging that there had been illegal, fraudulent, or dishonest conduct by Members of the Cabinet, and held that this was defamatory, and thus convicted the respondent and sentenced him to three weeks’ imprisonment on 21 April 2022. The respondent chose to serve his sentence immediately, despite filing a notice of appeal against both conviction and sentence and having been advised that a variation his sentence may prejudice him if he started serving his sentence before the appeal was heard.

3 On appeal, the High Court Judge (the “Judge”) interpreted the article as referring to the Cabinet, but found that the more natural interpretation of the article was that the Cabinet was responsible for the emergence of serious and substantial corruption by virtue of their incompetence or failures, rather than because they were themselves corrupt. While this was still defamatory, the Judge took the view that it was “less serious than the allegation that members of the Cabinet were themselves corrupt” since it imputed “only incompetence to the members of the Cabinet instead of corruption”. The Judge held that the custodial threshold was not crossed for sentencing purposes, and thus set aside the respondent’s sentence of three weeks’ imprisonment, and substituted it with a fine of $8,000 (in default two weeks imprisonment).

4 By the time of the appeal, the respondent had already completed serving the three weeks’ imprisonment imposed upon him by the DJ. The Judge took the view that the absence of any mechanism to backdate the default term would result in “unfairness” and a “real, substantial gap”, as this would mean that the respondent would either have to pay the fine or undergo an additional two weeks of imprisonment, despite having already served his original sentence of three weeks’ imprisonment. The Judge thus treated the previously served sentence of three weeks’ imprisonment as going towards the default sentence imposed on the appellant and held that nothing remained to be served or paid under the sentence pronounced in the appeal.

5 The Public Prosecutor then filed CA/CRF 1/2023, seeking to refer the following question to the Court of Appeal for decision:

Where an offender convicted of an offence is sentenced to imprisonment, and elects to serve such imprisonment term and not apply for a stay of execution of the sentence pending appeal, and the sentence is subsequently varied on appeal to a fine, can the imprisonment term imposed in default of the payment of the fine be satisfied by the imprisonment term that was earlier served?

The court’s decision:

6 Default terms of imprisonment serve several purposes. The most obvious of these is to deter evasion of the fine imposed as punishment for a primary offence, and to punish such evasion if it does occur. However, default terms of imprisonment also take effect as a different form of punishment for the offence for which a fine was originally imposed: at [29]–[30].

7 The plain wording of ss 318 and 319 of the CPC, as well as other sections in the CPC dealing with default terms of imprisonment, do not explicitly answer the question of whether such terms can be backdated. However, s 318(1) of the CPC provides that a sentence of imprisonment “takes effect beginning on the date it was passed, unless the court passing the sentence or, where there has been an appeal, the appellate court, otherwise directs”. This implies that the date of commencement of the sentence of imprisonment must be identified at the point at which it is passed. This is not true of default terms of imprisonment, which are triggered by a future event, the default in payment of the fine imposed. Moreover, if default terms of imprisonment could be backdated to the date on which an offender began serving a sentence of imprisonment which is later set aside on appeal, there would be no reason why a default term could not also be backdated to the date of remand. This may lead to accused persons who are fined and given a default imprisonment term seeking to have the fine deemed paid in full or in part by virtue of the period already spent in remand, removing the incentive to pay the fine imposed. Such a situation was not meant to be permitted by s 318. The Question therefore had to be answered in the negative: at [32]–[35].

8 Our courts have emphasised the importance of seeking a stay of execution of sentence pending appeal, so that the discretion of the appellate court is not curtailed or affected by the offender having served the original sentence by the time of the appeal hearing. Where such a stay is not obtained, the party who bears responsibility for that situation will be visited with the prejudice that results from it: at [38].

9 The respondent appealed against both conviction and sentence the day after sentence was pronounced by the DJ, sought an entirely different type of sentence from that imposed, yet decided not to seek a stay of execution of sentence pending appeal. If he had been unable to afford bail offered or fulfil the conditions imposed, the respondent could have applied for a reduction in the bail or a variation of its terms, or asked for an early date for his appeal to be heard. However, on his own volition he chose to serve his sentence immediately, and therefore had to accept the consequences of his choice: at [40]–[41].

10 As the Judge had found that the custodial threshold was not crossed in the present case, it would not be right to impose a custodial term and backdate it in order to achieve the outcome he had reached: at [43].

11 In the circumstances of the case, the Judge ought to have found that the custodial threshold was not crossed and that a fine would have been the appropriate sentence, but declined to interfere with the sentence imposed by the DJ on the basis that the respondent had elected to serve the imprisonment term although he had appealed against sentence, and dismissed the appeal against sentence: at [44] and [47].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

PUBLIC PROSECUTOR v XU YUANCHEN

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Summary

What legal question did Public Prosecutor v Xu Yuanchen [2024] SGCA 45 address?

Under what provision was Public Prosecutor v Xu Yuanchen [2024] SGCA 45 referred to the Court of Appeal?

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