The High Court on Friday (20 Aug) reserved its judgment once again on an appeal by Mr Koh Rong Gui who is seeking a Mandatory Treatment Order (MTO) for 4 charges in relation to taking videos which insulted the modesty of women between November 2016 and April 2017
At the heart of the dispute was whether certain provisions in the Criminal Procedure Code that prevents the court from reviewing or questioning the findings of the MTO psychiatrist in determining whether an MTO should be imposed on an offender, is an impermissible violation of the court’s powers under the Constitution.
The trial judge found Mr Koh guilty of the four charges in July 2019 and declined to call for an MTO suitability report, sentencing him to 12 weeks’ imprisonment.
On appeal, Mr Koh, who was represented by lawyer Mr M Ravi, confirmed that he was no longer pursuing his appeal against the conviction and he would be only asking for the sentence of 12 weeks’ imprisonment to be replaced with an MTO.
Mr Koh also applied, and was allowed to introduce psychiatric reports by Dr Munidasa Winslow and Dr Ken Ung Eng Khean as fresh evidence on appeal in order to persuade the court to impose an MTO.
The Prosecution then had argued that an MTO suitability report should not be called as a previous IMH psychiatrist had already stated that there was no connection between Mr Koh’s psychiatric conditions and his offences.
In February 2021, Justice Aedit Abdullah called for an MTO suitability report on Mr Koh. On the same day, the medical reports of Dr Winslow and Dr Ung were sent to the Institute of Mental Health for the purposes of preparing the MTO suitability report.
In April 2021, the MTO psychiatrist issued her report stating that although Mr Koh suffered from Obsessive Compulsive Disorder and Hoarding Disorder, which are susceptible to treatment, and that Mr Koh was suitable for treatment, but that “there was no contributory factor between his psychiatric conditions and the commission of the offences”. However, the appointed psychiatrist did not state that the medical reports of Dr Winslow and/or Dr Ung had been taken into consideration in her report.
Mr Ravi then submitted that certain provisions in the Criminal Procedure Code, which effectively prevents the court from questioning the findings of the appointed psychiatrist in the MTO suitability, is an intrusion and violation of the judicial power under the Singapore Constitution and should be declared void.
In this regard, Mr Ravi had referred to Parlimentary debates on the Criminal Justice Reform Bill 2018 where Member of Parliament (Bukit Batok) Mr Murali Pillai had raised his concerns about the “incongruity” in the courts being “constrained by the sole professional judgement of the [MTO] psychiatrist” on whether an MTO should be imposed on accused persons.
The same provisions were also said to be a violation of the right to equality and equal protection of the law under the Constitution as the MTO psychiatrist’s report, being non-questionable by accused persons, is treated in a different manner from other medical expert evidence in the context of defence to any criminal charge or as a mitigating factor during sentencing, is treated in a different manner and could not be questioned by accused persons.
He also argued that the MTO psychiatrist’s report had not complied with the mandatory legal requirement that before any MTO suitability report was prepared, the MTO psychiatrist must take into consideration any report prepared by “psychiatrists engaged by the offender”, which in this case refers to the medical reports of Dr Winslow and Dr Ung.
In response to Justice Abdullah’s queries on the MTO’s psychiatrist non-compliance with the mandatory legal requirement at the hearing, Deputy Public Prosecutor Lee Zu Zhao had argued that the matter could be referred back to the MTO psychiatrist who could then clarify whether she maintains the same position after taking into consideration the reports of Dr Winslow and Dr Ung.
Mr Ravi disagreed with the Prosecution’s position, arguing that this approach engages principles of natural justice and it would lead to an “apprehension of bias”.
