Ghazali bin Mohamed Rasul v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 25 July 2014
• Neutral Citation: [2014] SGHC 150
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 321 of 2013
• Published date: 29 July 2014
• Year: 2014
• Hearing Date: 18 June 2014
• Plaintiff Counsel: Derek Kang and Andrea Gan (Rodyk & Davidson LLP)
• Defendant Counsel: Sanjna Rai (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing
• Citation: [2014] SGHC 150

See Kee Oon JC: Introduction

This was an appeal against the decision of the District Judge in Public Prosecutor v Ghazali bin Mohamed Rasul [2014] SGDC 59 (“the GD”). The appellant was a property agent who pleaded guilty to two charges under the Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010) (“the EAR 2010”). The first charge, under reg 6(1)(a), was for introducing his client to a licensed moneylender; and the second, under reg 6(1)(b), was for receiving a sum of $150 from the moneylender in return for that introduction. A further four charges for similar offences were taken into consideration. For convenience I will refer to the first charge as the “introduction charge” and the second charge as the “referral fee charge”.

The maximum punishment prescribed under the EAR 2010 in respect of each of the proceeded charges is a fine of $25,000, or one year’s imprisonment, or both. On 11 December 2013, the appellant was sentenced to a fine of $10,000 in respect of the introduction charge, and a fine of $8,000 in respect of the referral fee charge. He appealed on the basis that the sentences were manifestly excessive.

On 18 June 2014, I allowed the appeal to the extent that the fines were reduced to $5,000 for the introduction charge, or 20 days’ imprisonment in default, and $3,000 for the referral fee charge, or 12 days’ imprisonment in default. In allowing the appeal, I observed that the District Judge ought not to have taken as his starting point for reference sentencing precedents relating to offences committed under s 29(1)(a) of the Estate Agents Act (Cap 95A, 2011 Rev Ed) (“the EAA”). This provision made it an offence for unregistered persons to masquerade as or perform the work of registered estate agents. In my opinion, this offence was not analogous in terms of criminality to the offences committed by the appellant.

As this appears to be the first time that a person has been prosecuted for breaching reg 6(1) of the EAR 2010, I now provide the detailed reasons for my decision.

Facts and the decision below

At the time of the offences, the appellant was a registered salesperson with PropNex Realty Pte Ltd. Some time in May 2011, one Mohammad Redzuwan Bin Ibrahim (“Redzuwan”), a relief taxi driver, engaged the appellant to help him sell his 4-bedroom HDB flat and to purchase another cheaper one. Redzuwan told the appellant he was in financial trouble and also in arrears with his HDB loan. He asked the appellant to introduce him to a moneylender.

In June 2011, the appellant brought Redzuwan to the offices of a licensed moneylender, AM Credit, in Sultan Plaza and introduced him to one Partippan s/o Sivasanjaran (“Partippan”). The appellant assured Partippan that Redzuwan was good for a loan as the latter would be selling his flat and that he, the appellant, was in fact handling the sale. This formed the basis for the introduction charge.

As a result, Redzuwan obtained a loan of $7,000 at 10% interest a month and an upfront fee of $700. Of the upfront fee, $150 was paid to the appellant by Partippan. This transaction was the subject of the referral fee charge.

Redzuwan subsequently took up additional loans from AM Credit between July and September 2011. Redzuwan’s flat was later sold for $441,000 and he was able to repay AM Credit for the loans.

In March 2012, the Council for Estate Agencies (“CEA”) investigated a report that a registered salesperson had referred a HDB flat owner to a moneylender. The appellant was identified and on 5 December 2012 he was charged with six offences under the EAR 2010.

On 11 September 2013, the appellant pleaded guilty to the following two charges: CEA-19-DSC-2012, the introduction charge, was for introducing Redzuwan to Partippan of AM Credit, a licensed moneylender, which was an offence under reg 6(1)(a) of the EAR 2010 punishable under reg 6(2) of the same. CEA-21-DSC-2012, the referral fee charge, was for receiving $150 from Partippan in return for the introduction, which was an offence under reg 6(1)(b) of the EAR 2010 punishable under reg 6(2) of the same.

The appellant consented to having the remaining four charges taken into consideration for the purposes of sentencing: CEA-17-DSC-2012 was for introducing another of his clients, one Affendi Bin Mohamad Noor, to the same Partippan of AM Credit, an offence under reg 6(1)(a). CEA-18-DSC-2012 was for suggesting the use of the services of a moneylender to another client, one Mohamad Yunos Bin Abdul Rahim, which moneylender was the same Partippan of AM Credit, an offence under reg 6(1)(a). CEA-20-DSC-2012 was for introducing another client, one Muhammed Fazil Bin Hashim, to Partippan of AM Credit, an offence under reg 6(1)(a). CEA-22-DSC-2012 was for receiving $150 from Partippan of AM Credit for referring Affendi Bin Mohamad Noor (see CEA-17-DSC-2012 above), an offence under reg 6(1)(b).

The matter was adjourned three times before sentence was finally passed on 11 December 2013 and, as mentioned, fines totalling $18,000 were imposed for the two charges.

The District Judge noted that the Prosecution sought a custodial sentence of two weeks and a fine of $15,000 per charge on the basis that general deterrence was the applicable sentencing principle. The defence counsel submitted, however, that it could at best be said that the appellant had corruptly received a total of $300 for introducing his clients to a moneylender and there was no need to impose a custodial sentence; this case was analogous to corruption cases where the fines imposed were generally commensurate with the moneys received as gratification or inducement.

The District Judge disagreed with both the Prosecution and the defence submissions. He considered that a custodial sentence was not warranted on the facts of the case, particularly as this was a regulatory offence. A fine was sufficient to deter would-be offenders but the fine of $15,000 sought by the Prosecution for each charge appeared disproportionately high in relation to the total amount the appellant had received in benefits.

Regarding the appropriate benchmarks, the District Judge did not accept that cases of corruption were useful comparators. Instead he took the view that the starting point for sentences for offences under reg 6(1)(a) and reg 6(1)(b) of the EAR 2010 should be a fine of between $6,000 and $8,000. This was the range established by sentencing precedents in relation to offences committed under s 29(1)(a) of the EAA and the reason the District Judge adopted the same starting point was that the punishments prescribed for the latter offences were the same as those in the present case: a fine of up to $25,000, or imprisonment of up to 12 months, or both.

The Prosecution had cited a number of aggravating factors but these were rejected by the District Judge.

First, Redzuwan was admittedly in financial difficulties but these were not caused principally or solely by the appellant’s act of introducing him to a moneylender; he was already in difficulties and therefore resorted to moneylenders.

Second, the Prosecution appeared to allege that the appellant had taken advantage of Redzuwan’s troubles to charge a high commission rate for his services, but the commission rate of 2% amounting to over $9,000 that was in fact charged was the standard rate stipulated by the agency through which the appellant was registered to practice as an estate agent.

Third, while the appellant had indeed profited from introducing Redzuwan to the moneylender in the sum of $150, this was a relatively small sum which did not warrant a high fine, let alone a custodial sentence.

Accordingly, the District Judge fined the appellant $10,000 for the introduction offence and $8,000 for the referral fee charge. The higher fine imposed for the first offence was due to the fact that there were four other charges under the same regulation taken into consideration for the purposes of sentencing. In fact there were only three other such charges to be taken into consideration; it appears the District Judge miscounted the number of reg 6(1)(a) charges. I discuss this in more detail at [28] below.

The submissions on appeal

The appellant had four main arguments on appeal.

First, he argued that the District Judge had erred in using cases decided under s 29 of the EAA as a starting point for sentencing; the correct benchmarks should have been corruption cases of similarly low gravity. The appellant said that the correct approach where an offence-creating provision was being invoked for the first time was to refer in the first instance to sentencing precedents of analogous offences and not to defer to the similarity in the prescribed punishments. The fact that the maximum sentences were the same in s 29 of the EAA and reg 6(2) of the EAR 2010 was not determinative of the issue; it was at most one input in the ultimate exercise of calibrating the identified starting point to fit the nature and criminality of the offence in question.

In this regard, the appellant said that the most closely analogous offence was that of corruption as an agent under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”) and in particular corruption by an agent in the private sector. The appellant relied on three cases: Kwang Boon Keong Peter v Public Prosecutor [1998] 2 SLR(R) 211 (“Peter Kwang”), Tan Tze Chye v Public Prosecutor [1996] 3 SLR(R) 357 (“Tan Tze Chye”), and Public Prosecutor v Teng Cheow Hing [2005] SGDC 38 (“Teng Cheow Hing”). These involved gratification in the following sums:

Case	Gratification	Fine imposed
Peter Kwang	$5,000	$12,000
$1,000	$6,000
$1,000	$6,000
Tan Tze Chye	$383	$5,000
Teng Cheow Hing	$600 (loan); loans totalling $2,500 taken into consideration for sentencing	$8,000

Based on these cases, the appellant said...