Angliss Singapore Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah J
• Judgment Date: 07 September 2006
• Neutral Citation: [2006] SGHC 155
• Docket Number: Magistrate's Appeal No 61 of 2006
• Date: 07 September 2006
• Year: 2006
• Published date: 13 September 2006
• Plaintiff Counsel: N Sreenivasan and Ahmad Nizam (Straits Law Practice LLC); Charles Lin (Donaldson & Burkinshaw)
• Citation: [2006] SGHC 155
• Defendant Counsel: Nor'Ashikin binte Samdin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Mitigation,Maximum sentence,Whether public interest constituting distinct and autonomous sentencing principle,Weight to be accorded to plea of guilt and remedial action when deciding appropriate sentence,Public interest,Criminal Procedure and Sentencing,Whether strict liability offence automatically attracting maximum sentence prescribed for offence,Section 88A(5)(b) Administration of Muslim Law Act (Cap 3, 1999 Rev Ed),Whether sentence must be proportionate to culpability of offender and legislative scheme,Whether trial judge entitled to take into account admission of previous offences for which accused not charged for purposes of sentencing,Whether plea of guilt motivated by genuine remorse, contriteness or regret and/or desire to facilitate administration of justice,Principles,Procedural formalities in taking offences into consideration,Sentencing

7 September 2006

V K Rajah J:

1 Is there a distinct and autonomous sentencing principle known as “public interest”? What are the procedural formalities that must be observed before a court takes into account misconduct that extends beyond the immediate charges that confront an accused? What is the true rationale that courts in Singapore should adopt in assessing whether an appropriate sentencing discount ought to be accorded to an accused’s plea of guilt? In what circumstances can the maximum prescribed sentence be meted out? These important sentencing considerations and principles are considered and explained in these grounds of decision.

2 The appellant pleaded guilty to a single charge of having illegally affixed a specified halal certification mark (“the halal certification”) on 11 August 2005 without the approval of the Majlis Ugama Islam Singapura (“MUIS”) on a packet of chicken nuggets imported by the appellant into Singapore, contrary to s 88A(5)(b) of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“the AMLA”). Upon conviction, the learned district judge imposed a fine of $9,000: see PP v Angliss Singapore Pte Ltd [2006] SGDC 70 (“the GD”). The maximum fine for the offence is set at $10,000. Dissatisfied with the outcome the appellant appealed. On hearing the appeal, I reduced the fine to $2,000.

The factual matrix

3 The undisputed facts can be shortly summarised. On 4 August 2005, an employee of MUIS, Mr Abdul Rahman Lum (“Lum”), found a few packets of chicken nuggets with the halal certification on the packaging in the course of a random inspection at Seagate Technology Canteen at 16 Woodlands Loop. These chicken nuggets had been labelled under the brand “Dewfresh” by the appellant. It was later ascertained by Lum that approval for the halal certification had not been issued for these products.

4 On 11 August 2005, Mr Mohammed Ariff Mohammed Salleh (“Salleh”), another employee of MUIS, found similar packets of chicken nuggets at Carrefour Hypermart at Suntec City (“Carrefour”). There were about ten packets of chicken nuggets on display, all bearing the brand name “Dewfresh”. One of these packets was taken by Salleh as a sample and eventually constituted the central plank for the subject prosecution.

5 MUIS wrote to the appellant on 11 August 2005 about its unauthorised usage of halal certification without MUIS’s prior approval. The appellant promptly responded by admitting that it had used the halal certification without the approval of MUIS and issued a written apology to MUIS on 12 August 2005. The appellant also immediately repackaged the chicken nuggets and destroyed all packaging illegally certified as being halal.

6 It bears mention that two years earlier, the appellant had begun importing frozen chicken nuggets under the brand name “Dewfresh” from a manufacturer in Thailand, through their Singapore representative. However, when the appellant decided to import the nuggets directly from the Thai manufacturer, one of the appellant’s employees, a newcomer to the job, incorrectly assumed that the halal certification for the appellant’s own locally manufactured “Dewpride” products could also be affixed to the packaging of the imported “Dewfresh” chicken nuggets. Such action was the consequence of a pure oversight and was accepted as such by the prosecution.

7 Finally, and most significantly, in so far as the Muslim community is concerned, the products in question were, in fact, halal. Therefore, the only transgression by the appellant company was in its failure to obtain MUIS’s approval for the use of the halal certification on its “Dewfresh” products.

The sentence of the district court

8 In assessing the appropriate sentence, the learned district judge took into account the following considerations. First, he determined, purportedly on the basis of prior case law, that the paramount consideration in sentencing is the public interest. In his view public interest apparently forms an overarching, distinct and autonomous principle of punishment. That the public interest warranted a stiff sentence in this case was borne out by the intent of s 88A of the AMLA, which Parliament had enacted primarily to signal to the public in general and the Muslim community in particular that it viewed the regulation of the halal certification with seriousness: see [10] of the GD. Moreover, being a multicultural and multiracial nation, there is a prevailing need to be sensitive towards the practices of all racial and religious communities: see [11] of the GD.

9 Secondly, the judge was also of the view that specific and general deterrence was necessary to discourage further transgressions by the appellant as well as other companies who might be tempted to cut corners given the increasing commercial appeal of the Muslim consumer market: see [11] of the GD.

10 Thirdly, the judge did not attach much weight to the mitigating factors raised by counsel for the appellant. He felt that the prosecution would have had little trouble proving its case and thus a plea of guilt was, in a sense, inevitable: see [12] of the GD. In any event, he found that the overriding need to protect the public interest overshadowed the significance of the appellant’s plea of guilt.

11 Finally, the learned district judge emphasised what he considered to be several aggravating circumstances. One of these was that the offending packets of nuggets had been placed on sale at a well-patronised hypermarket, thereby misleading a large sector of the Muslim community into wrongly assuming that these packets had been duly certified by MUIS. He felt it was also relevant that although the ultimate prosecution was in respect of only one packet of nuggets, the number of packets that had been placed on sale to begin with was “not small”. Last, but not least, he determined that the appellant had been importing such products into Singapore for the last two years, even acknowledging on one occasion that it had illegally passed them off as halal certified, had to be considered too; see [13] of the GD.

The appeal against sentence

12 Counsel for the appellant made the following submissions:

(a) the learned district judge failed to attach any weight to the fact that the offending packets of chicken nuggets were, in fact, halal, even if proper approval for the use of the halal certification had not been sought;

(b) there was no intention by the appellant, as a company, to commit the breach of s 88A(5)(b) of the AMLA;

(c) the clean track record of the appellant should be viewed favourably in sentencing;

(d) upon learning of its error, the appellant took immediate steps to rectify the breach;

(e) the sentence imposed by the learned district judge was inconsistent with previous similar cases under s 17 of the Sale of Food Act (Cap 283, 2002 Rev Ed) (“the SFA”); and

(f) given that this case represented the first prosecution under the s 88A(5) of the AMLA, the sentence would be used a benchmark for future prosecutions. To this end, a fine of $9,000 when the maximum allowed by the statute is $10,000 would create the anomalous situation of having to punish potentially far more egregious breaches of the statute with the same sanction.

Appellate intervention in sentencing

13 The prosecution correctly asserted that this court has only a limited scope for appellate intervention apropos sentences meted out by a lower court. This is because sentencing is very much a matter of discretion and requires a fine balancing of myriad considerations. That said, it remains the function of an appellate court to correct sentences where (a) the sentencing judge has erred as to the proper factual basis for the sentence; (b) the sentencing judge has failed to appreciate the material placed before him; (c) the sentence imposed is wrong in principle and/or law; and (d) the sentence imposed is manifestly excessive: Tan Koon Swan v PP [1986] SLR 126. Subsequent cases have held that an appellate court could vary manifestly inadequate sentences as well: see PP v Cheong Hock Lai [2004] 3 SLR 203 at [26] and PP v Kang Seong Yong [2005] 2 SLR 169 at [15].

14 In PP v Siew Boon Loong [2005] 1 SLR 611, Yong CJ clarified, at [22], what was meant by a sentence that was manifestly excessive or inadequate:

When a sentence is said to be manifestly inadequate, or conversely, manifestly excessive, it means that the sentence is unjustly lenient or severe, as the case may be, and requires substantial alterations rather than minute corrections to remedy the injustice ... [emphasis added]

The mere fact that an appellate court would have awarded a higher or lower sentence than the trial judge is not sufficient to compel the exercise of its appellate powers, unless it is coupled with a failure by the trial judge to appreciate the facts placed before him or where the trial judge’s exercise of his sentencing discretion was contrary to principle and/or law. I shall now analyse the reasons underpinning the learned district judge’s sentencing decision.

The purported aggravating factors

Public interest

15 It is apparent that the learned district judge felt that the facts in this case warranted a heavy sentence in light of the public interest. He formed the view that public interest constituted a separate and distinct principle of punishment and purportedly relied on several decisions in Singapore where it has been held that “the foremost consideration for a court in deciding on an appropriate sentence is that of public interest”: see Sim Gek Yong v PP [1995] 1 SLR 537 (“Sim Gek Yong”), PP v Tan Fook Sum [1999] 2 SLR 523 (“Tan Fook Sum”), and Ong Ah Tiong v PP [2004] 1 SLR 587 (“Ong Ah Tiong”).

16 It is pertinent to analyse precisely what is meant when a court takes into account public interest considerations in sentencing. The genesis of the dictum that “the foremost consideration for a court in deciding on an appropriate sentence is that of public interest” is found in R v Kenneth John Ball ...