Ganesh s/o M Sinnathamby v Public Prosecutor

• Judge: Lee Seiu Kin J
• Judgment Date: 02 November 2007
• Neutral Citation: [2007] SGHC 189
• Citation: [2007] SGHC 189
• Defendant Counsel: Janet Wang (Attorney-General's Chambers)
• Published date: 04 December 2007
• Plaintiff Counsel: Uthayasurian Sidambaram (Surian & Partners)
• Date: 02 November 2007
• Docket Number: Magistrate's Appeal No 58 of 2007
• Court: High Court (Singapore)
• Subject Matter: Offences,Whether there was compulsory custodial sentence on bankrupts contravening travel restrictions,Whether fact that offender already discharged bankrupt when proceedings commenced against him warranting departure from normal sentencing tariff,Section 131(1)(b) Bankruptcy Act (Cap 20, 2000 Rev Ed),Bankruptcy,Leaving jurisdiction without prior permission of Official Assignee,Insolvency Law

2 November 2007

Lee Seiu Kin J:

1 The appellant pleaded guilty to three charges of leaving the jurisdiction without the prior permission of the official assignee (“OA”) under s 131(1)(b) of the Bankruptcy Act (Cap 20, 2000 Rev Ed) (“the Act”). After taking 52 similar charges into consideration, the district judge sentenced the appellant to four weeks’ imprisonment on each charge, two of which were ordered to run consecutively, resulting in a total imprisonment term of eight weeks.

2 The current factual matrix is unprecedented as the appellant was at the time the proceedings were commenced against him, already a discharged bankrupt, as opposed to prior sentencing precedents which dealt with undischarged bankrupts.

3 The present appeal has been brought by the appellant against sentence on the basis that the district judge failed to consider that the appellant was a discharged bankrupt at the material time of the proceedings and that she had wrongly applied sentencing principles. The primary issue is whether the fact that the appellant is a discharged bankrupt amounts to an exceptional circumstance warranting deviation from a custodial sentence.

Summary of facts

4 The statement of facts tendered below was accepted by the appellant without qualification. The appellant admitted that he had left Singapore for India on three separate occasions, namely 3 May 2003, 27 December 2003 and 10 March 2004, for periods of between two and 16 days, without the permission of the OA which he was required to obtain. Several other trips were made to Malaysia and Indonesia, which formed the subject matter of the charges taken into consideration. The appellant did not dispute the fact that he knew that he needed the consent and permission of the OA before leaving the jurisdiction of Singapore.

5 In mitigation, counsel for the appellant submitted that his multiple trips to Malaysia and Indonesia were work-related. He was offered employment on a commission basis which required travel to these countries at short notice. It was highlighted that the application to the OA at that time could not be done through the internet as it now can be. It entailed a waiting period of about two weeks. As the appellant was then in dire financial straits, he could not afford to give up his employment which was the only means of sustaining his extended family who were all dependent on him. In these circumstances, he travelled to Malaysia and Indonesia without obtaining the requisite permission.

6 However those charges were not proceeded with and were only taken into consideration for the purposes of sentencing in accordance with s 178 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). The prosecution proceeded on three charges which pertained to trips to India made by the appellant in May and December 2003 and March 2004. The appellant submitted that the first trip on 3 May 2003, which lasted for a period of about 15 days, was organized by his wife to fulfil a vow at a temple after her difficult childbirth and that the entire trip was financed and arranged by the wife’s family. Being informed at short notice, he was unable to muster sufficient funds to pay the outstanding arrears at the time and made the decision to travel as he did not want to disrupt the plans made by his wife, whose child was sickly.

7 The second trip on 27 December 2003 spanned seven days and involved a pilgrimage trip to India for which he was designated group leader. He had contravened the travel requirements out of fear of embarrassment and ridicule of his peers as the group did not know of his bankruptcy status.

8 The final trip on 10 March 2004, which lasted for two days, was made at the request of a close friend to secure an affidavit from a witness in relation to a legal matter the friend was involved in. His assistance was required on an immediate basis and the appellant did not apply for permission due to the urgency of the matter. No debts were incurred for any of the three trips, as all expenses were borne by his travel companions.

9 Counsel for the appellant conceded that these grounds did not absolve the appellant from liability but nonetheless submitted that a fine would suffice given that a custodial sentence would disrupt the appellant’s settled life and throw into disarray the stability he had built up over the two years since his discharge.

The decision below

10 In the proceedings below, the prosecution conceded that this was an unprecedented case and that they were unaware of the offences until the appellant was granted a discharge by the OA. I observed that the prosecution there had accepted that “a fine would be appropriate in the circumstances”. While I accept that the district judge was not bound by this submission, it was clearly a relevant factor in the assessment of the sentence.

11 After hearing the submissions of both parties, the district judge concluded that the appellant’s discharge did not amount to an exceptional circumstance which warranted a departure from the usual benchmarks of custodial sentences established in PP v Choong Kian Haw [2002] 4 SLR 776 (“Choong Kian Haw’s case”)(see Public Prosecutor v Ganesh s/o M Sinnathamby [2007] SGDC 95).

12 While the district judge considered (at [20]) that the imposition of fines on the appellant could, in light of his discharged status, achieve the desired punitive effect, she emphasized that the “accused had committed the said offences at the time when he was still an undischarged bankrupt, for which like-minded persons should be deterred from committing such offences in future” and also noted that the accused had not fully paid up the debt he owed.

13 Finally, the district judge held that the fact that a bankrupt was currently discharged would be a mitigating factor to be taken into account in that he was unlikely to commit such offences in the future. That said, she concluded that this would only go so far as to determine “the length of the custodial sentence to be imposed”. For reasons that will be discussed below, this proposition necessitates further clarification.

The present appeal

Offences under s 131(2) of the Bankruptcy Act

14 As a starting point, it would be helpful to set the appropriate context for discussion by tracing the main features of the travel restrictions imposed by the present bankruptcy regime.

15 It is an offence to leave Singapore without the prior permission of the OA. Section 131(1)(b) of the Act provides that an undischarged bankrupt “shall not leave, remain or reside outside Singapore without the previous permission of the Official Assignee”. Failure to comply with this provision attracts a criminal sanction of a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both (see s 131(2)).

16 It must be emphasised at the outset that our legislative regime provides for a broad spectrum of punishment, ranging from a fine to imprisonment for two years. A custodial sentence is not mandatory and there is clearly a judicial discretion to impose a fine in lieu of punishment. Within this statutory range, it is the duty of the court to determine the degree of severity of punishment to achieve the legislative objective in question.

17 This legislative objective was recently clarified by the Minister for Law, Professor S Jayakumar during the Parliamentary debates held on 16 July 2007 (vol 83) in relation to undischarged bankrupts leaving Singapore without permission as follows:

The main purpose of requiring a bankrupt to seek the OA’s permission for overseas travel is to help the OA in the administration of the...