Abu Syeed Chowdhury v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 28 January 2002
• Neutral Citation: [2002] SGHC 14
• Docket Number: Magistrate's Appeal No 312 of 2001
• Date: 28 January 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: SK Kumar (SK Kumar & Associates)
• Citation: [2002] SGHC 14
• Defendant Counsel: Peter Koy (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Immigration,Relevant considerations,Deterrence,ss 57(1)(k) & 57(1)(iv) Immigration Act (Cap 133, 1997 Ed),Control of admission,Mitigation,Whether substantive custodial sentence should be applicable norm,Whether offender's personal circumstances justifies reduction in sentence,Sentencing,Making false statement to obtain employment pass,Whether imprisonment or fine,Applicable norm,Immigration offences

Judgment

GROUNDS OF DECISION

The appellant, Abu Syeed Chowdhury, was charged with three counts of obtaining an employment pass by making a false statement, punishable under s 57(1)(k) read with s 57(1)(iv) of the Immigration Act (Cap 133) (‘the Act’). He consented to have two similar charges taken into consideration for the purposes of sentencing. All five charges related to a false declaration in his applications regarding his employment pass, which stated that he held a Bachelor of Science degree, a statement which he knew to be false.

2 The appellant was sentenced by district judge See Kee Onn to four weeks’ imprisonment on each of the three charges, with two sentences to run consecutively. I dismissed his appeal against the sentences and enhanced them to a term of two months’ imprisonment on each charge, with two sentences to run consecutively, for a total of four months’ imprisonment. I now give my reasons.

The facts

3 The appellant, a 34 year old Bangladeshi national, was granted an employment pass to work in Singapore on 17 April 1996. From 17 April 1996 to 15 April 1998, he worked as a purchasing officer in Arc Marine Pte Ltd. From 1998 to 2001, he worked at Unimarine Shipping Services Pte Ltd (‘Unimarine’), first as a purchasing officer, and later as a purchasing manager from 1 January 2000.

4 During this five year period, the appellant made five applications to either apply for or renew his employment pass. These applications formed the subject matter of the charges under s 57(1)(k). The offence under s 57(1)(k), read together with s 57(1)(iv), states as follows:

Any person who …by making a false statement obtains or attempts to obtain an entry or re-entry permit, pass or certificate for himself or for any other person … shall be guilty of an offence and - … shall be liable on conviction to a fine not exceeding $4,000 or to imprisonment for a term not exceeding 12 months or to both …

5 The five charges against the appellant cover the period from 1997 to 2001 and were nearly similar in content. It suffices to relate the first of the charges proceeded with, which stated:

You … are charged that you applied for renewal of an Employment Pass in Form 8R, which application was received by the Employment Pass Department on 23.2.1999, to work for Unimarine Shipping Services Pte Ltd (RCB No.: 199201449N) as a Purchasing Officer, for which an Employment Pass was issued on 27.4.1999, on the basis of your declaration in the application form that you graduated from University of Dhaka with a Bachelor of Science, a statement which you declared to be true to the best of your knowledge, when the application form contained facts which you knew to be false. You have thereby committed an offence under Section 57(1)(k), of the Immigration Act (Cap 133) and punishable under Section 57(1)(iv) of the said Act.

6 The other two charges to which the appellant pleaded guilty related to similar applications to renew his employment pass, made on 1 March 2000 and 3 March 2001 respectively. In a similar vein, the two charges taken into consideration averred to similar applications made on 22 February 1997 and 15 April 1998.

7 The common thread in these applications was the appellant’s false declaration that he had graduated from the University of Dhaka in 1986 with a Bachelor of Science degree. Each application was supported by a copy of a forged graduation certificate to this effect. Verification from the University of Dhaka confirmed however that the certificate was bogus and that the appellant was not a graduate of the University. Nor, for that matter, did he hold the degree in question. He had in fact purchased the forged certificate in Indonesia sometime in 1988 or 1989, for the price of about US$100. In this manner, he had thereby induced the Employment Pass Department of the Ministry of Manpower to issue as well as renew his employment passes annually from 1997 to 2001.

The mitigation plea

8 In mitigation, the appellant pleaded several factors which can be succinctly stated as follows.

9 First, he claimed to be a victim of circumstance and poor advice. He had apparently paid a Bangladeshi agent US$3,000 to travel to Australia for employment, but was tricked and left stranded in Jakarta. Sometime in 1988 or 1989, he claimed to have met a second Bangladeshi agent, who took pity on him and offered to sell him the false degree certificate in order to obtain an employment pass in Singapore. This unnamed agent further provided him with the air fare to fly to Singapore.

10 Secondly, he pleaded that he had lived as a virtuous, law-abiding and productive resident in Singapore. He had paid all his taxes and had never given trouble to the authorities. His employers considered him an employee of high calibre and wrote testimonials in his favour. Notably, his present employer also stood as his bailor for the present charges. He also pleaded that he did not cynically extract the full benefits of his deception – for example, he did not purchase an HDB flat, nor did he enjoy medical benefits at a subsidized rate. He also claimed to be a ‘pious and devout resident’ who rendered both time and money to charitable organisations.

11 Thirdly, he asked for recognition to be given to his full co-operation with the authorities. Upon commencement of investigations, he had admitted to his wrongdoing and subsequently pleaded guilty in court.

12 Finally, he pleaded for leniency on the basis that he was married with two young and dependent children. He claimed to have come from a well-respected family in Bangladesh dealing in the clothing business, and submitted that a custodial sentence would ruin his family reputation as well as his personal life.

The decision below

13 The judge in arriving at his decision considered that there was a patent and inexplicable disparity in sentencing precedents at the district courts. Turning to the available appellate decisions for guidance, he found the facts of Rivera Eleazar P v PP (MA 308 of 1997, unreported) directly applicable to the present case and sentenced the appellant accordingly. Significantly, he also expressed the opinion that a custodial sentence should be the norm for an offence under s 57(1)(k), and that a fine should only be granted under exceptional circumstances.

The appeal

14 Counsel for the appellant, Mr S K Kumar, submitted that a blanket custodial sentence should not be applied to this particular offence. He argued that to adopt such a ‘benchmark’ would unnecessarily fetter the discretion of the judge under s 57(1)(iv) to impose either a fine or a custodial sentence. He further contended that, given the various mitigation factors in this particular case, the discretion of the court should be exercised in favour of a fine only.

15 At the outset, I dispensed with Mr Kumar’s concern about the undesirability of a ‘benchmark’ tariff as opposed to absolute sentencing discretion. This was simplistic argument which missed the point of a ‘benchmark’ tariff. A ‘benchmark’ is a sentencing norm prevailing on the mind of every judge, ensuring consistency and therefore fairness in a criminal justice system. It is not cast in stone, nor does it represent an abdication of the judicial prerogative to tailor criminal sanctions to the individual offender. It instead provides the focal point against which sentences in subsequent cases, with differing degrees of criminal culpability, can be accurately determined. A good ‘benchmark’ decision therefore lays down carefully the parameters of its reasoning in order to allow future judges to determine what falls within the scope of the ‘norm’, and what exceptional situations...