Koh Rong Gui v Public Prosecutor: Constitutional Challenge to Mandatory Treatment Order Provisions

In Koh Rong Gui v Public Prosecutor, the High Court of Singapore addressed a constitutional challenge to the Mandatory Treatment Order (MTO) provisions under the Criminal Procedure Code. The appellant, Koh Rong Gui, convicted of intruding upon the privacy of women, argued that sections 339(3), 339(4), and 339(9) of the CPC breached Articles 12(1) and 93 of the Constitution. The court, presided over by Aedit Abdullah J, dismissed the constitutional challenge but found an apparent breach of statutory procedure regarding the consideration of psychiatric reports. The case was remitted for further clarification on compliance with section 339(8) of the CPC.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

Appeal dismissed; the constitutional challenge against the MTO Provisions failed. The case was remitted for further clarification regarding compliance with section 339(8) of the Criminal Procedure Code.

1.3 Case Type

Criminal

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court upholds the constitutionality of MTO provisions, addressing equal protection and judicial power concerns in sentencing.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Public ProsecutorRespondentGovernment AgencyWon in partPartial
Niranjan Ranjakunalan of Attorney-General’s Chambers
Lee Zu Zhao of Attorney-General’s Chambers
Koh Rong GuiAppellantIndividualAppeal dismissed in partPartial

3. Judges

Judge NameTitleDelivered Judgment
Aedit AbdullahJudge of the High CourtYes

4. Counsels

Counsel NameOrganization
Niranjan RanjakunalanAttorney-General’s Chambers
Lee Zu ZhaoAttorney-General’s Chambers
Ravi s/o MadasamyK K Cheng Law LLC

4. Facts

  1. The Appellant was convicted of four charges of intruding upon the privacy of three women.
  2. The Appellant recorded videos of their cleavage and breasts and took an upskirt video.
  3. The incidents took place around Jurong East MRT station, in an MRT train, and at Jurong East Mall.
  4. The District Judge imposed a sentence of six weeks’ imprisonment in relation to each charge.
  5. The Appellant argued that he should have been sentenced instead to an MTO.
  6. The Institute of Mental Health found that the Appellant was not suitable for an MTO.
  7. The Appellant argued that the MTO Provisions are unconstitutional.

5. Formal Citations

  1. Koh Rong Gui v Public Prosecutor, Magistrate’s Appeal No 9161 of 2019/01, [2021] SGHC 259

6. Timeline

DateEvent
First incident of intrusion upon privacy occurred at Jurong East MRT station.
Second incident of intrusion upon privacy occurred in an MRT train.
Third incident of intrusion upon privacy occurred at Jurong East Mall.
District Judge imposed a sentence of six weeks’ imprisonment for each charge.
Appellant submitted that he should have been sentenced instead to an MTO.
Court allowed application by Appellant to adduce fresh evidence consisting of two psychiatric reports.
Court called for an MTO suitability report under s 339 of the Criminal Procedure Code.
Institute of Mental Health found that the Appellant was not suitable for an MTO.
Appellant argued that the MTO Provisions are unconstitutional.
Appellant's letter argued that the MTO Suitability Report also did not comply with s 339(8) of the CPC.
Prosecution submitted that the MTO Provisions were carefully designed.
Judgment reserved.

7. Legal Issues

  1. Equal protection of the law
    • Outcome: The court held that the MTO Provisions do not infringe Art 12(1) of the Constitution.
    • Category: Constitutional
  2. Judicial power
    • Outcome: The court held that the MTO Provisions do not violate Art 93 of the Constitution.
    • Category: Constitutional
  3. Sentencing
    • Outcome: The court found an apparent breach of statutory procedure in the present case and remitted the case for further clarification.
    • Category: Procedural

8. Remedies Sought

  1. Striking down the MTO Provisions as unconstitutional
  2. Convening a Newton hearing
  3. Reduction of the custodial sentence

9. Cause of Actions

  • No cause of actions

10. Practice Areas

  • Criminal Law
  • Constitutional Law

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
GCX v Public ProsecutorUnknownYes[2019] 3 SLR 1325SingaporeCited for the approach in determining whether to call for an MTO suitability report.
Ng Hai Chong Brandon v Public ProsecutorHigh CourtYes[2019] SGHC 107SingaporeCited as an example where the approach in GCX was followed.
Saravanan Chandaram v Public Prosecutor and another matterCourt of AppealYes[2020] 2 SLR 95SingaporeCited for the principle that the presumption of constitutionality is no more than a starting point.
Wham Kwok Han Jolovan v Public ProsecutorCourt of AppealYes[2021] 1 SLR 476SingaporeCited for the principle that the presumption of constitutionality is no more than a starting point.
Mohammad Faizal bin Sabtu v Public ProsecutorUnknownYes[2012] 4 SLR 947SingaporeCited for the definition of judicial power and the principle that the prescription of punishment is a legislative function.
Prabagaran a/l Srivijayan v Public Prosecutor and other mattersUnknownYes[2017] 1 SLR 173SingaporeCited for the principle that the Public Prosecutor has sole discretion to determine whether an offender has provided substantive assistance under s 33B(2)(b) of the MDA.
Abdul Kahar bin Othman v Public ProsecutorUnknownYes[2018] 2 SLR 1394SingaporeCited for the principle that the Public Prosecutor has sole discretion to determine whether an offender has provided substantive assistance under s 33B(2)(b) of the MDA.
Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appealUnknownYes[2019] 2 SLR 216SingaporeCited for the principle that the Public Prosecutor has sole discretion to determine whether an offender has provided substantive assistance under s 33B(2)(b) of the MDA.
Muhammad Ridzuan bin Mohd Ali v Attorney-GeneralUnknownYes[2015] 5 SLR 1222SingaporeCited for the principle that the question of disruption to drug trafficking activities is an operational one for which the CNB and the Public Prosecutor have distinctive expertise.
Eu Lim Hoklai v Public ProsecutorCourt of AppealYes[2011] 3 SLR 167SingaporeCited for the principle that expert evidence does not excuse a judge from making a crucial finding of fact.
Anita Damu v Public ProsecutorHigh CourtYes[2020] 3 SLR 825SingaporeCited for the principle that expert evidence should not give evidence on the ultimate issue, which is to be decided by the court.
Iskandar bin Rahmat v Public Prosecutor and other mattersCourt of AppealYes[2017] 1 SLR 505SingaporeCited for the principle that the first and third limbs of Exception 7 to s 300 of the Penal Code are matters which cannot be the subject of any medical opinion.
Low Gek Hong v Public ProsecutorHigh CourtYes[2016] SGHC 69SingaporeCited for the principle that the threshold for questioning an MTO suitability report is high, only being met where the report is unclear or draws manifestly wrong, illogical or absurd conclusions.
Teng Fuh Holdings Pte Ltd v Collector of Land RevenueHigh CourtYes[2006] 3 SLR(R) 507SingaporeCited for the principle that the courts would intervene in cases of bad faith, even with conclusive evidence clauses.
Teng Fuh Holdings Pte Ltd v Collector of Land RevenueCourt of AppealYes[2007] 2 SLR(R) 568SingaporeCited for the principle that the courts would intervene in cases of bad faith, even with conclusive evidence clauses.
Stansfield Business International Pte Ltd v Minister for Manpower (formerly known as Minister for Labour)UnknownYes[1999] 2 SLR(R) 866SingaporeCited as an example of a case that considered a clause which provided that such decisions “shall not be challenged in any court”.
Nguyen Tuong Van v Public ProsecutorCourt of AppealYes[2005] 1 SLR(R) 103SingaporeCited for the principle that a mandatory death penalty does not infringe the principle of the separation of powers.
Yong Vui Kong v Public Prosecutor and another matterCourt of AppealYes[2010] 3 SLR 489SingaporeCited for the principle that it is for Parliament, and not the courts, to decide on the appropriateness or suitability of the mandatory death penalty.
Ong Ah Chuan v Public ProsecutorPrivy CouncilYes[1981] AC 648UnknownCited for the principle that Art 9(1) does not justify all legislation, whatever its nature.
Moses Hinds v The QueenPrivy CouncilYes[1977] AC 195UnknownCited for the principle that a fixed punishment for a defined offence could be prescribed by Parliament.
Francis and Another v StateCourt of Appeal of Trinidad and TobagoYes[2015] 2 LRC 244Trinidad and TobagoCited for the principle that the creation of mandatory minimum sentences for drug trafficking did not violate the principle of the separation of powers.
Reginald Deaton v The Attorney General and the Revenue CommissionersSupreme Court of IrelandYes[1963] IR 170IrelandCited for the principle that there is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case.
Palling v CorfieldHigh Court of AustraliaYes(1970) 123 CLR 52AustraliaCited for the principle that it is open to the Legislature to determine whether or not such a discretion shall be given to the court in relation to a statutory offence.
State of South Australia v TotaniHigh Court of AustraliaYes(2010) 271 ALR 662AustraliaCited for the principle that the Parliament of the Commonwealth may pass a law which requires a court exercising federal jurisdiction to make specified orders if some conditions are met.
Public Prosecutor v Nguyen Tuong VanUnknownYes[2004] 2 SLR(R) 328SingaporeCited for the principle that Art 12(1) requires that offenders in like situations are treated alike.
Lim Meng Suang and another v Attorney-General and another appeal and another matterCourt of AppealYes[2015] 1 SLR 26SingaporeCited for the test of whether legislation is in breach of Art 12(1) is whether the classification was reasonable.
Public Prosecutor v Taw Cheng KongUnknownYes[1998] 2 SLR(R) 489SingaporeCited for the principle that the relevant standard of rationality is arbitrariness.
Lei Lin Thai v Public ProsecutorUnknownYes[2016] 9 MLJ 631MalaysiaCited for the principle that classification which is based on a difference in defined circumstances of the case does not infringe Art 12(1).
Tan Eng Hong v Attorney-GeneralUnknownYes[2012] 4 SLR 476SingaporeCited for the principle that Art 162 only applies in respect of an existing law or a law which had already been enacted but not yet brought into force at the commencement of the Constitution.
Public Prosecutor v Abdul Fathani Bin KhairuddinDistrict CourtYes[2021] SGDC 143SingaporeCited as an example where the court declined to call for an MTO suitability report.
Public Prosecutor v Tan Lian KoonDistrict CourtYes[2015] SGDC 39SingaporeCited as an example where an MTO was recommended but not ordered.
Huddart, Parker and Co Pty Ltd v MooreheadUnknownYes(1909) 8 CLR 330AustraliaCited for the definition of judicial power.
The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty LtdUnknownYes(1970) 123 CLR 361AustraliaCited for the definition of judicial power.
Nicholas v The QueenUnknownYes(1998) 193 CLR 173AustraliaCited for the definition of judicial power.
Mohammed Muktar Ali v The QueenPrivy CouncilYes[1992] 2 AC 93UnknownCited as an example of administrative decisions by the Executive directly related to the charges brought against particular accused persons, directly impacting the sentence imposed by the court.
R v IronsideSupreme Court of South AustraliaYes[2009] SASC 151AustraliaCited for the principle that it is not an infringement of Art 93 for Parliament to prescribe minimum sentences for an offence.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Penal Code (Cap 224, 2008 Rev Ed) s 509Singapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12(1)Singapore
Constitution of the Republic of Singapore Art 93Singapore
Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 339Singapore
Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 33ASingapore
Misuse of Drugs Act s 33B(2)(b)Singapore
Penal Code (Cap 224, 2008 Rev Ed) Exception 7 to s 300Singapore
Land Acquisition Act (Cap 152, 1985 Rev Ed) s 5(3)Singapore
Employment Act (Cap 91, 1996 Rev Ed) s 14(5)Singapore
Industrial Relations Act (Cap 136, 2004 Rev Ed) s 47(2)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Mandatory Treatment Order
  • MTO Provisions
  • Judicial Power
  • Equal Protection
  • Psychiatric Condition
  • Sentencing Discretion
  • Appointed Psychiatrist
  • MTO Suitability Report
  • Constitutional Challenge

15.2 Keywords

  • Mandatory Treatment Order
  • MTO
  • Constitutional Law
  • Judicial Power
  • Equal Protection
  • Sentencing
  • Singapore

17. Areas of Law

Area NameRelevance Score
Mandatory Treatment Order90
Sentencing80
Constitutional Law75
Equal protection of the law70
Criminal Procedure65
Criminal Law50
Right to life and personal liberty40

16. Subjects

  • Constitutional Law
  • Criminal Law
  • Sentencing
  • Judicial Review