Chew Soo Chun v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 January 2016
• Neutral Citation: [2016] SGHC 6
• Plaintiff Counsel: Philip Fong Yeng Fatt and Tan Yong Seng Nicklaus (Harry Elias Partnership LLP)
• Docket Number: Magistrate’s Appeal No 24 of 2015/01—02
• Date: 20 January 2016
• Hearing Date: 20 July 2015
• Subject Matter: Criminal Procedure and Sentencing -Sentencing
• Year: 2016
• Citation: [2016] SGHC 6
• Defendant Counsel: Alan Loh Yong Kah, Yau Pui Man, Loh Hui-Min and Charis Low Jia Ying (Attorney-General's Chambers),Jordan Tan Zhengxian (Cavenagh Law LLP) as amicus curiae.
• Court: High Court (Singapore)
• Published date: 22 January 2016

Chao Hick Tin JA (delivering the judgment of the court): Introduction

These appeals raise a common question of sentencing: when would ill-health justify the exercise of judicial mercy or a reduction in the sentence? The offender, Chew Soo Chun, (“the Offender”) suffers from a litany of conditions, which have left him in a poor state of health. The District Judge (“the DJ”) was invited to consider exercising judicial mercy. But he declined to do so, holding that judicial mercy was not warranted. Nonetheless, he gave a sentencing discount of six months’ imprisonment to the aggregate sentence imposed on the offender. Post-discount, the aggregate sentence is 32 months’ imprisonment and a fine of $10,000 in default two weeks’ imprisonment. The DJ’s decision can be found at Public Prosecutor v Chew Soo Chun [2015] SGDC 22 (“the Judgment”).

Both the Offender and the Prosecution have appealed against the sentence. The Offender argues, as he had before the DJ, that judicial mercy should be exercised in his favour so only a nominal imprisonment term should be imposed for the offences he had committed. But should the court refuse to exercise judicial mercy, the Offender contends that a greater downward adjustment on the sentence should be made on the basis that the sentence imposed by the DJ is manifestly excessive and does not adequately take into account the greater hardship he would suffer while serving his prison term because of his ill-health. The Prosecution, on the other hand, takes the position that the exercise of judicial mercy is not warranted in the circumstances of this case and that there is no further and separate basis to moderate a sentence due to ill-health. Given the culpability of the Offender, the Prosecution submits that the sentence imposed by the DJ should not be discounted and should instead be enhanced as it is otherwise manifestly inadequate.

Having considered the circumstances of the case and the submissions of the parties, we dismiss both appeals. In our judgment, the circumstances are insufficiently exceptional as to warrant invoking the doctrine of judicial mercy. That said, however, the Offender’s ill-health is sufficiently serious such that he would suffer disproportionately in prison compared to other offenders who are not so physically disadvantaged. There is thus a need to attenuate the sentence, not as an act of mercy, but in an endeavour to preserve an element of proportionality in the sentence. We find that the discount of six months’ imprisonment determined by the DJ to be an appropriate discount for the disproportionate impact of a prison sentence on the Offender. We also do not consider the sentence of 38 months’ imprisonment (to which the discount of six months’ imprisonment is applied) to be manifestly inadequate after having regard to the criminality of the Offender’s conduct.

The detailed grounds for upholding the DJ’s decision follow. First, we shall begin with the facts leading to the Offender’s arrest. Second, we will set out a list of medical problems that the Offender is suffering from. Third, we will summarise the decision below. And fourth, we shall identify the principles on which a sentence may be reduced on account of ill-health and apply them to the case at hand.

The facts

The Offender was the Chief Executive Officer and Managing Director of Chew Yak Mong-Synerpac Limited, a company listed on the National Stock Exchange of Australia (“the Company” and “NSX” respectively). He owned 38.77% of the Company’s shares. The remaining shares were held by his father, Chew Song Hock (34.75%), employees, friends, and 18 Australian individuals whose names were provided by Australian consultants (26.48%).

Between 2005 and 2006, the company’s financial situation started to deteriorate. The Offender sought to keep the company’s books looking healthy so that the Company could remain listed on the NSX. On his instigation, the following fictitious transactions were recorded: on or around 21 November 2005, $142,785 of sales revenue; on or around 29 May 2006, $298,050 of cash sales; on or around 10 June 2005, $298,000 of cash sales; on or around 25 September 2006, $139,946 of sales on credit term; and on or around 30 October 2006, $20,000 of repayments made by its debtors. These became the subject matter of five charges under s 477A of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”), viz, DAC 7873 of 2011, DAC 7900 of 2011, 7902 of 2011, 7934 of 2011 and 7994 of 2011. The Prosecution proceeded with these charges. There were 108 other charges, also under s 477A of the PC, which were stood down to be taken into consideration for sentencing.

In June 2006, the Company needed more funds for its working capital. The Offender applied for invoice financing loans from Overseas-Chinese Banking Corporation Limited (“the Bank”) using fictitious documents generated to support the fictitious transactions recorded on the Company’s accounts. The Offender deceived the staff of the Bank on multiple occasions into believing that there were sales made by the Company when no such sales were in fact made. As a result, the Bank disbursed to the Company a total of $2,627,355.37, including: on or around 7 August 2006, $173,414,24; on or around 15 September 2006, $160,815.48; and on or around 13 October 2006, $174,424.80. These became the subject-matter of three charges under s 420 of the PC: DAC 7960 of 2011, DAC 7968 of 2011 and DAC 7972 of 2011. The Prosecution proceeded with these three charges. There were 23 other charges under s 420 of the PC stood down to be taken into consideration for sentencing. On 12 June 2015, the Prosecution reported that the Company still owed the Bank an outstanding balance of $932,282.19.

Sometime in September 2006, the Company’s auditor, Chew Whye Lee & Co (“the Auditor”), began auditing the Company’s accounts. The Auditor required, inter alia, a balance confirmation of a sum of $356,357 owing by a trade debtor, PT Mandara Jasindo Sena, as at 30 June 2006. This balance was in fact fictitious. Consequently, on or around 5 October 2006, the Offender delivered a forged balance confirmation to the Auditor. In respect of this, the Offender was charged under s 471 read with s 465 of the PC – this was the subject of the charge in DAC 8013 of 2011 which was proceeded with. Seven other charges under s 471 read with s 465 of the PC were stood down to be taken into consideration for purposes of sentencing.

Because of the fictitious accounting entries made in November and December 2005, the Company’s financial statements for the financial period ended 31 December 2005 did not give a true and fair view of the Company’s state of affairs. The sales revenue was overstated by 32% to 65%, while the trade debtors balance was overstated by 53% to 179%. The Offender nevertheless presented the financial statements at the Company’s annual general meeting on 30 June 2006. This was an offence punishable under s 204(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“the CA”), and this formed the subject of the charge against the Offender in DAC 8015 of 2011 which was proceeded with.

Between 4 January 2006 and 6 February 2007, the Offender failed to keep accurate accounting records of the Company. He was charged under s 199(6) read with s 408(3) of the CA in DAC 8014 of 2011. The Prosecution stood down this charge to be taken into consideration for sentencing.

Altogether, the Prosecution proceeded with ten charges and stood down a further 139 charges to be taken into consideration for sentencing.

The Offender’s medical conditions

The Offender suffers from two mental disorders: major depression with a risk of suicide; and claustrophobia. He is taking anti-depressant and anxiolytic medication, and is receiving therapy to manage these disorders.

In terms of physical ailments, the Offender suffers from: traumatic anosmia resulting in loss of taste and smell; post-concussion syndrome characterised by frequent headaches and severe dizziness; a blood clot in one of the arteries leading to the brain which could give rise to a risk of a stroke attack; hypertension; stage one salivary gland cancer; deviated nasal septum; turbinate hypertrophy; severe obstructive sleep apnea; left shoulder cuff tendonitis; and prostate enlargement. The Offender makes regular follow-up visits to his doctors in respect of ailments (b), (d), and (j). He is required to monitor his blood pressure every four hours daily and take medication for ailment (d). He is on Continuous Positive Air Pressure treatment (ie, he receives pumped air through a firmly-fitting facial mask during sleep) to alleviate ailment (h). He requires a mattress that can support his sleep posture because of ailment (i).

Additionally, it has been recommended to the Offender that he should undergo surgery to treat ailments (e), (f), and (g). The surgical procedures are the removal of the salivary gland tumour, facial reconstruction (if the facial nerves are affected by the salivary gland tumour), submucus resection of nasal septum, and endoscopic trimming of inferior turbinates. Adjuvant radiotherapy will also be required to complete the treatment of ailment (e).

The Offender had also been previously afflicted with other conditions. From 2000 to 2005, he suffered chronic low mood (dysthymia). In 2013, he experienced a transient ischemic attack, which presented as numbness at the left side of his body.

The decision below

The DJ dealt first with the nature of the offences that the Offender was charged with. He considered that there was personal gain involved in the s 477A offences because the company effectively belonged to the Offender and his family; the Offender was the single largest shareholder, CEO and MD of the Company; and the Offender drew a monthly salary of $10,000 in 2005: the Judgment at [9]. He also found that the first 35 counts of s 477A...