Tan Eng Chye v The Director of Prisons

Kan Ting Chiu J:

[1] This is an application for leave to apply for an order of certiorari. The applicant is Tan Eng Chye and the respondent is the Director of Prisons.

[2] The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code (Cap 224, 1985 Rev Ed). Before sentence was passed on him, the district judge was informed that the applicant suffered from Marfan Syndrome, a congenital condition which affects the heart, eyes and other parts of the body. That was discovered when he went for pre-enlistment screening for National Service on September 2000, and he was medically downgraded and placed in a service vocation.

[3] As the punishment under s 392 includes caning, the district judge was concerned whether caning should be ordered. He postponed sentence for a “[m]edical report on whether accused is fit for caning” to be produced to him.

[4] In compliance with the order, the applicant was seen by Dr Ooi Poh Hin, Medical Officer, Queenstown Remand Prison, who put up a report dated 16 October 2003 that:

The report does not state whether Dr Ooi had referred to any previous medical records, or even whether he had addressed his mind to the applicant’s condition of Marfan Syndrome.

[5] Apparently, the district judge did not find the report useful, as he did not refer to it in his grounds of decision after he sentenced the appellant to imprisonment of four years and six months and 12 strokes of the cane.[1] He stated:

[6] I surmise that the district judge called for the medical report because he wanted to know about Marfan Syndrome, the severity of the applicant’s condition, and the effects caning could have on him.

[7] Dr Ooi’s report did not give him the necessary information as it made no reference to Marfan Syndrome or its effects. The district judge had to obtain information from the Internet instead.

[8] The district judge’s initiative is commendable, but it is not a substitute for a proper medical report because he still did not get answers to the second and third questions.

[9] I feel that the district judge should have asked for another examination and report. If there were doubts whether the applicant should be caned, they could not have been removed by Dr Ooi’s report or the information obtained from the Internet.

[10] This is the applicant’s complaint, that the report is inadequate. In an affidavit affirmed by the applicant’s counsel, Tan Gee Tuan, in support of the application, she deposed that:

[11] Dr Paul Ho is a general practitioner in private practice. He saw the applicant on 10 November 2003 and found that he has classical Marfan Syndrome. Dr Ho was of the opinion that:

[12] Dr Lim Tock Han is a consultant ophthalmologist and Head of the Department of Ophthalmology, Tan Tock Seng Hospital. He examined the applicant’s eyes and stated in his report that:

[13] The applicant subsequently obtained a report from a consultant cardiothoracic and vascular surgeon Dr C Sivathasan. Dr Sivathasan’s report reads:

[14] The applicant applied for leave to apply for an order of certiorari. His application is made in compliance with O 53 r 1 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed). In compliance with the rule, the application was served on the Attorney-General’s Chambers. Consequently, while the application is an ex parte originating summons, it was served, and State Counsel from the Chambers were accorded the right to be heard on behalf of the respondent. They attended before me, and opposed the granting of leave.

[15] The respondent’s objections are:

I considered each of them.

[16] This objection arises from s 232(1) of the Criminal Procedure Code (Cap 68):

[17] It was submitted that:

[18] The argument is that the report dated 16 October 2003 will not be used as the basis for proceeding with the caning. At the time scheduled for caning, another certificate must be issued before caning is carried out.

[19] That is correct, but it does not address the applicant’s concern over the medical assessment process. The provision does not require the medical officer to put up a report, only to issue a certificate that the offender is in a fit state of health to undergo caning. That is only to be done on the day of caning, and there is no provision for the certificate to be disclosed to the offender.

[20] There is no assurance that the evaluation will be more thorough than the one carried out on 16 October 2003. If it is not, the applicant has a ground for complaint and redress.

[21] Is it premature for him to seek redress now? When the respondent calls his action premature, that presupposes that there is a later, more appropriate time to do that. When I asked when that would be, there was no answer.

[22] As the certification is to be done at the time of caning, how will the offender be able to seek redress after the certificate is issued, and before the caning is administered? If he is already caned by the time his application can be heard, it is too late to obtain the redress he seeks.

[23] The argument that the application is premature, and should not be made until it is too late to prevent the risks of permanent and unintended injury, is self-defeating.

[24] I suggested to counsel that the basic issue is the thoroughness of the medical assessment. The applicant’s concern is that he should not to be caned unless the medical risks and implications are considered more thoroughly than they were on 16 October 2003. If it can be arranged for a medical officer knowledgeable in Marfan Syndrome to examine him and his medical records and assess whether he is able to receive caning, then that would remove the basis of the complaint. When I asked if the respondent would agree to that, the suggestion was not taken up.

[25] I expect that in an application for an order of certiorari, the issues raised before me can be argued and considered fully by the court. At that stage the court can rule whether in a case of an offender with a known and potentially serious medical condition, a certificate in the form of the report of 16 October 2003 is sufficient, or whether a thorough examination and assessment should be done. Such a ruling could be a very real and useful outcome to the applicant, and I think to the respondent as well.

[26] It is argued on behalf of the respondent that there is a procedural flaw in the application in that O 53 r 1(2) of the Rules of Court has not been complied with. The rule states that:

and reliance was also placed on r 3(1) that:

[27] As I have stated, the applicant’s counsel, Tan Gee Tuan, had made an affidavit in support of the applicant on his behalf. The affidavit referred to all the matters mentioned in r 1(2) of the Rules of Court.

[28] It was pointed out by Ms Tan that there is no prescribed form for the statement to be in. Her affidavit is a formal statement made on her affirmation. I do not see any procedural deficiency in that.

[29] It was also submitted that because certiorari is a discretionary remedy, the application is also improper because there is a failure of “disclosure in the fullest confidence”.

[30] The complaint is that there was no support for Ms Tan’s allegation that there is a real danger or risk of the applicant suffering serious injury if he is caned. Reference was also made to the grounds of decision where the district judge found that there was nothing before him which showed that the applicant was affected by the Marfan Syndrome.

[31] This is a telling point. The district judge was in that state because he only had Dr Ooi’s report before him. The medical findings which lead to the applicant being downgraded medically for National Service were not before him and Dr Ooi made no reference to them in his report. The reports of Dr Ho, Dr Lim and Dr Sivathasan were not before the district judge when he sentenced the applicant to caning. He was left to search for information on the condition on the Internet, which obviously would not refer to the applicant’s individual condition.

[32] The applicant now seeks a proper medical examination to be done before caning is administered, and to address the district judge’s concern. The respondent should not be the one to levy criticism of failure of disclosure. In any event, I do not think that the applicant wants the reports of Drs Ho, Lim and Sivathasan to be the basis for exempting him from caning. That is beyond the scope of s 232(1) and the district judge’s order. The reports were submitted to show that there is a serious question whether he should be caned which should be addressed properly before caning is administered.

[33] State counsel argued that:

[34] There is an underlying unevenness in the position taken. Nothing was said to defend Dr Ooi’s report. It was not suggested that the respondent maintains that an assessment arrived at without stating whether the subject’s medical records has been referred to, and without stating that consideration has been given to the subject’s known medical condition and the potentially serious effects that caning may have on him is a proper assessment.

[35] If one is to suppose that Dr Ooi had not done either (and that supposition can be made from the face of the report) then there is a real basis to contend that the conclusion is unreasonable in the Wednesbury sense.

[36] Counsel did not discuss the “unreasonableness in the Wednesbury sense”, or the basis for submitting that there is no evidence of it.

[37] The term Wednesbury unreasonableness originated from Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223, where the English Court of Appeal considered the principles on which an executive act or decision can be subject to judicial review. Lord Greene MR made the ruling at 228 that:

[38] Here the applicant is complaining that the medical assessment ought to have regard to his medical history and his known medical condition. It is clearly arguable that it is implied that his medical history and condition must be considered, and that an omission to do that amounts to Wednesbury unreasonableness.

[39] The respondent also submitted that:

[40] The Court of Appeal in Public Service Commission v Lai Swee Lin Linda applied the test to the facts in that case and found that there was no proper issue involved. The court found that the respondent’s complaint was a contractual dispute over the terms of her employment relating to probation and termination of service, and that the dispute was not susceptible to judicial review.

[41] L P Thean JA cited with approval Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 642–643 that:

[42] Under the law, an offender is to be caned for the offence he committed. But the law is not without compassion, and it provides that before anyone is caned, he is to undergo medical examination to ensure that he will not suffer serious unintended injuries. Only those found to be fit to undergo caning will be caned. For those who are found not suitable the sentence of caning is not to be carried out.

[43] The applicant has been sentenced to be caned. He has a medical condition. Caning may have serious effects on him. The district judge who convicted him was concerned and called for a medical report. One was produced to him, but it was clearly unsatisfactory. There is no indication that the medical officer had called for or considered the applicant’s medical records. There is no indication that the medical officer made an assessment of the severity of the applicant’s condition. Indeed, there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome.

[44] The applicant wants his condition to be given proper consideration. He produced medical reports of the effects that caning may have on him to show that there is substance in his concern.

[45] The respondent’s response is that the applicant does not have any recourse because there is to be another examination done before caning is administered, but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003.

[46] In these circumstances, there is a clear issue to be determined – whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification, or whether it requires more to be done.

[47] The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint, and a waste of the court’s time.

[48] In Lai Swee Lin Linda’s case, the Court of Appeal adopted Lord Diplock’s statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that:

[49] By this test, the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review. The application is not groundless, hopeless, misguided, trivial, or a waste of time.

[50] I therefore gave the applicant leave to proceed. The respondent still maintains that he should not be allowed to proceed, and has appealed against my order.

[1]The applicant had appealed against the sentence, but had withdrawn the appeal.