Chia Kah Boon v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 August 1999
• Neutral Citation: [1999] SGHC 203
• Docket Number: Magistrate's Appeal No 27 of 1999 (Criminal Motion No 4 of 1999)
• Date: 05 August 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Jimmy Yim SC and Rama Tiwary (Drew & Napier)
• Citation: [1999] SGHC 203
• Defendant Counsel: David Khoo (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Appeal,Adducing fresh evidence,Whether default terms of imprisonment imposed adequate as deterrent,Whether default terms of imprisonment may run concurrently,s 224(b)(iv) Criminal Procedure Code (Cap 68),Relevance of appellant's ability to pay fines imposed,Appellant seeking to adduce evidence on appeal already available at time of trial,Criminal Procedure and Sentencing,Whether sentence constitutes crushing sentence in light of appellant's financial means,s 257(1) Criminal Procedure Code (Cap 68),Default terms of imprisonment,ss 119 and 130(1)(i) Customs Act (Cap 70),Offence of being concerned in importing uncustomed goods into Singapore,Sentencing,Fines and default terms of imprisonment imposed,Totality principle of sentencing,Whether such evidence admissible in interests of justice

: This was an appeal against the sentence passed by the district judge for the offence under s 130(1)(a) of the Customs Act (Cap 70) of being concerned in the importation of uncustomed goods into Singapore. I allowed the appeal in part, in so far as the fines which the appellant was ordered to pay were reduced. I increased, however, the default terms of imprisonment imposed on him. I now give my reasons.

The facts

The appellant pleaded guilty in the subordinate courts to nine charges of being concerned in importing uncustomed goods into Singapore from Batam Island, an offence under s 130(1)(a) of the Customs Act and punishable under s 130 of the Act read with the Goods and Services Tax (Application of Legislation Relating to Customs and Excise Duties) Order 1994, the Goods and Services Tax (Application of Customs Act) (Provisions on Trials, Proceedings, Offences and Penalties) Order 1994, and ss 26 and 77 of the Goods and Services Act (Cap 117A).

According to the joint statement of facts, which the appellant admitted without qualifications, the appellant is the Managing Director of Eastom Offshore Pte Ltd (`Eastom`), a shipping representative for the vessel `Mahkota Express I`. This vessel regularly transported electronic goods from Batam Island to Singapore for various importers. The appellant or his employees would collect the goods when they arrived at Pasir Panjang Wharves and deliver them to the respective importers. On 9 November 1998, the appellant`s employees were intercepted at Pasir Panjang Wharves by customs officials after they had obtained clearance for a shipment of electronic goods using four sets of customs permits. It was discovered that the customs permits were meant for a past consignment, and were not valid for the shipment which had just been cleared. No goods and services tax (`GST`) had been paid by Eastom on behalf of the importers in respect of that shipment. Further investigations revealed that between 8 July 1997 and 9 November 1998, the appellant had been concerned in the importation of electronic goods from Batam Island into Singapore without payment of GST on eight other occasions. The total value of the goods imported came up to $10,339,954.90, and the total amount of GST payable on these goods was $310,198.65.

As the appellant did not have any previous convictions for the offence under s 130(1)(a) of the Customs Act, he was liable under s 130(1)(i) of the Act to

a fine of not less than 10 times the amount of the customs duty or tax or $5,000 whichever is the lesser amount, and of not more than 20 times the amount of the customs duty or tax or $5,000 whichever is the greater amount ...

in respect of each charge. In addition, he was liable, in the event of his non-payment of any of the fines imposed, to imprisonment for a term not exceeding the duration laid down in s 119 of the Act in respect of each fine.

The district judge ordered the appellant to pay a fine of approximately 15 times the amount of GST payable for each charge, and sentenced him as follows:

Charge	Fine	Imprisonment in default
DAC 3550/99	$259,000	3 months
DAC 3551/99	$2,400,000	25 months
DAC 3552/99	$42,000	2 weeks
DAC 3553/99	$93,000	1 month and 2 weeks
DAC 3554/99	$35,000	2 weeks
DAC 3555/99	$715,000	8 months
DAC 3556/99	$1,000	1 week
DAC 3557/99	$1,059,000	11 months
DAC 3558/99	$2,000	1 week

The lorries used to transport the electronic goods contained in the shipment of 9 November 1998 were also forfeited.

The appeal

The appellant`s case on appeal

The appellant appealed against the sentence passed by the district judge on the grounds that it was wrong in law and/or manifestly excessive. In particular, the sentence was challenged in three aspects. First, the appellant`s counsel pointed out that the district judge erred in construing the minimum fine under s 130(1)(i) of the Customs Act to be ten times the amount of GST payable, which error affected the quantum of the fines imposed on the appellant. Second, it was argued that the district judge failed to appreciate that fines in the context of the Customs Act are primarily aimed at recovering revenue for the government, and are not meant to be a backdoor for imposing a lengthy term of imprisonment in default on the offender. Third, counsel submitted that the district judge erred in failing to take into account the appellant`s ability to pay the fines imposed. It was contended that in light of the appellant`s financial means and the cumulative effect of the default terms of imprisonment, the aggregate sentence of $4,606,000 in fines and imprisonment in default for 50 months amounted to a crushing sentence on the appellant, contrary to the totality principle of sentencing. In support of this contention, counsel applied by way of motion for leave to adduce documentary evidence of the appellant`s financial means, which evidence had neither been presented to nor requested for by the court below.

The motion to adduce further evidence

Under s 257(1) of the Criminal Procedure Code (Cap 68) (`CPC`), the High Court may take additional evidence in dealing with any appeal if it thinks such evidence is `necessary`. In Juma`at bin Samad v PP [1993] 3 SLR 338 , it was held that the three conditions of non-availability, relevance, and reliability must be satisfied before the additional evidence sought to be adduced will be deemed to be `necessary`. As Denning LJ (as he then was) explained in Ladd v Marshall [1954] 3 All ER 745 (adopted in Juma`at bin Samad v PP , supra):

first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

Applying these principles to the present appeal, I found that the additional documentary evidence of the appellant`s financial means which counsel sought to admit satisfied two of the three conditions laid down in Juma`at bin Samad v PP (supra). The evidence was relevant to the sentence to be imposed on the appellant, as case law indicates that in assessing the amount of fines to which an offender should be sentenced, his ability to pay such fines should be taken into account ( Lee Yu Fah & Ors v PP [1937] MLJ 179 , Tan Kah Eng v PP [1965] 2 MLJ 272 ). It must be emphasised, however, that whilst an offender`s financial means has a bearing on the amount of fines which he should be ordered to pay, the weight to be placed on this factor for sentencing purposes varies, depending on the circumstances of each individual case. The additional evidence at issue in the present appeal was also reliable as it was derived from `apparently credible` sources ( Ladd v Marshall , supra), such as the Inland Revenue Authority of Singapore, the Housing and Development Board, and various leading banks in Singapore.

The above evidence did not, however, satisfy the condition of non-availability at the time of the trial. Most of the documents which counsel sought to adduce on appeal were already in existence when the proceedings in the subordinate courts commenced. As for the documents which were not available then, they could easily have been obtained with reasonable diligence by writing in to the banks concerned. Nonetheless, notwithstanding the fact that these documents were available at the time of the trial, I granted counsel leave to admit them for the purposes of this appeal. As the High Court stated in Juma`at bin Samad v PP (supra) at p 347:

... there are situations where the court would allow additional evidence to be called even though it could not be strictly said that the evidence was not available at the time of the trial, if it can be shown that a miscarriage of justice has resulted. The core principle in s 257 of the CPC, after all, is that additional evidence may be taken if it is necessary, which must mean necessary in the interests of justice. That said, it must be emphasised in no uncertain terms that such a situation will arise only in the most extraordinary circumstances.

The `extraordinary circumstances` in which...