Offender who wins appeal to reduce jail term to fine cannot use served time to satisfy fine: Court

An offender who chooses to serve his jail sentence despite appealing against it cannot use the served time to satisfy the punishment should he subsequently get his jail term reduced to a fine.

This ruling by the Court of Appeal on Oct 29 arose from a series of events in a defamation case against Mr Terry Xu, chief editor of The Online Citizen, who was convicted of defaming Cabinet members.

He was sentenced to three weeks’ jail by a district court in April 2022 and chose to serve the sentence despite appealing against it, as he had relocated to Taiwan and wanted to serve and get his sentence over with.

His appeal on the sentence was successful, and in May 2023, he was given an $8,000 fine. However, he did not want to pay the fine, which carried a two-week default jail term in lieu of payment.

His lawyers argued then that given the time he had already served, he should be deemed to have served the default term.

The prosecution argued that, under the law, he had to serve the two-week default term.

The judge ruled then that the previously served jail term should be treated as going towards the default sentence, and thus nothing remained to be served or paid. 

The prosecution then referred a question of law of public interest to the Court of Appeal.

In their judgment on Oct 29, Chief Justice Sundaresh Menon, Justice Tay Yong Kwang and Senior Judge Andrew Phang said they do not share the view of the High Court judge who handled Mr Xu’s appeal that there was injustice in the present situation.

They added that Mr Xu chose to serve his sentence to facilitate his relocation and the choice “was entirely his and he has to accept the consequences”.

They said: “Our courts have emphasised the importance of seeking a stay of execution of sentence pending appeal so as to ensure that the discretion of the appellate court is not curtailed or affected by the offender having served their original sentence by the time of the appeal hearing.”

Where such a stay is not obtained, the judges said the party who bears responsibility for that situation will be “visited with the prejudice that results from it”.

For example, when the prosecution seeks a more onerous sentence on appeal but fails to apply for a stay of execution on the original sentence, the appellate court in this case may decline to enhance the sentence on the basis that the offender has already served part of the sentence, the Court of Appeal judges said.

Referring to the section of the Criminal Procedure Code which permits the backdating of sentences generally, they added that it does not explicitly address whether a default term of imprisonment can be backdated.

However, to take it that it does would appear to be against the logic and mechanics of such terms of imprisonment.

They added that if a default term of imprisonment could be backdated to the date on which an offender began serving a prison sentence which is later set aside on appeal, it would follow that such a term could also be backdated to the date of remand as well.

The judges said this position would lead to “situations where an accused person who pleads guilty, is fined and given a default imprisonment term seeks to have the fine deemed paid... by virtue of the period he had already spent in remand” and there is no incentive to pay the fine.

They said the High Court judge should not have substituted the three-week jail term with a fine but that he should have declined to interfere with the sentence and dismissed the appeal, in order to “address the perceived injustice”.

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

Public Prosecutor v Xu Yuanchen [2024] SGCA 45

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