Ho Sheng Yu Garreth v PP

JurisdictionSingapore
Judgment Date30 January 2012
Date30 January 2012
Docket NumberMagistrate's Appeal No 88 of 2011
CourtHigh Court (Singapore)
Ho Sheng Yu Garreth
Plaintiff
and
Public Prosecutor
Defendant

V K Rajah JA

Magistrate's Appeal No 88 of 2011

High Court

Constitutional Law—Fundamental liberties—Protection against retrospective criminal laws—Whether treating appellant's present offences under Moneylenders Act (Cap 188, 2010 Rev Ed) as repeat offences given appellant's previous conviction under Moneylenders Act (Cap 188, 1985 Rev Ed) contravened Art 11 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Article 11 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Criminal Law—Statutory offences—Moneylenders Act (Cap 188, 1985 Rev Ed)—Moneylenders Act (Cap 188, 2010 Rev Ed)—Whether repeal of Moneylenders Act (Cap 188, 1985 Rev Ed) meant that convictions under it could not be taken into account as prior offences for purposes of s 14 (1) (b) (ii) Moneylenders Act (Cap 188, 2010 Rev Ed)—Section 14 (1) (b) (ii) Moneylenders Act (Cap 188, 2010 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Caning—Application of totality principle

Criminal Procedure and Sentencing—Sentencing—Imprisonment sentences in default of payment of fines—Appellant lacking means to pay fine imposed on him—Sentencing principles on default imprisonment sentences

Criminal Procedure and Sentencing—Sentencing—Mandatory conjunctive sentencing of both fine and term of imprisonment—Sentencing benchmarks and principles to be applied in context of s 14 (1) (b)Moneylenders Act (Cap 188, 2010 Rev Ed)—Section 14 (1) (b)Moneylenders Act (Cap 188, 2010 Rev Ed)

Statutory Interpretation—Interpretation Act (Cap 1, 2002 Rev Ed)—Purposive approach—Whether s 14 (1) (b) (ii) Moneylenders Act (Cap 188, 2010 Rev Ed) ought to be construed to take into account convictions under s 8 (1) (b) Moneylenders Act (Cap 188, 1985 Rev Ed) as prior offences—Section 14 (1) (b) (ii) Moneylenders Act (Cap 188, 2010 Rev Ed)

The appellant (‘the Appellant’) pleaded guilty in the District Court to six out of 18 charges of engaging in a conspiracy to carry on the business of moneylending without a licence, with the remaining 12 charges taken into consideration for sentencing. The six charges which he pleaded guilty to were offences under the current Moneylenders Act (Cap 188, 2010 Rev Ed) (‘the MLA 2010’) read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed). The district judge (‘the District Judge’) meted out a total sentence of 60 months' imprisonment, six strokes of the cane and a fine of $480,000 (in default, 24 months' imprisonment) on the basis that the Appellant was a repeat offender for the purposes of s 14 (1) (b) (ii) of the MLA 2010 as he had two previous convictions in 2008 under s 8 (1) (b) of the Moneylenders Act (Cap 188, 1985 Rev Ed) (‘the MLA 1985’) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed). The MLA 1985 was repealed and re-enacted as the Moneylenders Act 2008 (Act 31 of 2008) (‘the MLA 2008’), which was in turn amended to become the MLA 2010.

On appeal against his sentence, the Appellant's primary argument was that the District Judge erred in regarding him as a repeat offender because s 8 (1) (b) of the MLA 1985, under which the Appellant was previously convicted, had been repealed. The Appellant further argued, inter alia, that the word ‘offence’ in s 14 (1) (b) (ii) of the MLA 2010 must precisely refer only to an offence defined by s 14 (1) of the MLA 2010, viz,the offence of contravening (or assisting in the contravention of) s 5 (1) of the MLA 2010. Such offence, it was submitted, was different from the offence of unlicensed moneylending under s 8 (1) (b)of the MLA 1985. The Appellant also contended that treating him as a repeat offender for the purposes of s 14 (1) (b) (ii) of the MLA 2010 would contravene Art 11 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’).

Held, allowing the appeal in part:

(1) An offence under s 8 (1) (b) of the MLA 1985 could be taken into account as a prior offence for the purposes of s 14 (1) (b) (ii) of the MLA 2010, notwithstanding the repeal of the MLA 1985. There was no break in the continuum between the legislative regime under the MLA 1985 and that under the MLA 2008 (which was later amended and revised to become the MLA 2010): at [41] and [42].

(2) There was no contravention of Art 11 (1) of the Constitution in treating the Appellant's convictions under s 8 (1) (b) of the MLA 1985 as prior convictions for the purposes of s 14 (1) (b) (ii) of the MLA 2010: at [105] to [112].

(3) Although the Appellant was correctly treated as a repeat offender for the purposes of s 14 (1) (b) (ii) of the MLA 2010, his aggregate sentence by way of fine was reduced to $240,000 (in default, 12 months' imprisonment). The Appellant did not appear to be a man of any financial means; neither did the Prosecution suggest that he had the means to pay the fines imposed by the District Judge or that he had derived significant financial benefits from his offending conduct. To sentence the Appellant to a cumulative fine of $480,000 (in default, 24 months' imprisonment) was effectively to order an additional imprisonment sentence. Further, the Appellant was plainly merely ‘the hands and legs’ of, and not the supplier of capital for, the unlicensed moneylending business: at [123] and [124].

(4) The totality principle applied in the context of a cumulative sentence of caning imposed for several distinct offences. Where multiple convictions for similar offences were made, the court was certainly entitled to vary the sentences for each charge on account of the totality principle. In the present case, the Appellant's offences were not aggravated by any acts of violence or intimidation. A total sentence of six strokes of the cane was disproportionate to the overall gravity of his criminal conduct and, therefore, manifestly excessive. Accordingly, the sentence of one stroke of the cane was to remain only for three of the six charges proceeded on. The sentences in respect of caning for the remaining three charges proceeded on were set aside: at [133] and [134].

(5) The 60-month imprisonment term imposed by the District Judge was to stand undisturbed as, considering all the relevant circumstances, it was not manifestly excessive: at [135] and [136].

[Observation: Regardless of whether an offender was previously convicted of actually carrying on the business of unlicensed moneylending or merely assisting in the same under s 14 (1) of the MLA 2010, he was to be considered a second or subsequent offender for the purposes of s 14 (1) (b) (ii) of the MLA 2010 upon his next conviction for either actually carrying on the business of unlicensed moneylending or merely assisting in the same. The offences of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business under s 14 (1) of the MLA 2010 should be treated as the same in the context of s 14 (1) (b) (ii) of the MLA 2010: at [73].

In the context of mandatory conjunctive sentencing under s 14 (1) (b) of the MLA 2010, the mandatory fine should ordinarily be pegged closer to the prescribed minimum quantum of $30,000 unless: (a) the offender had reaped illicit profits which should be disgorged; and/or (b) even the maximum permitted custodial sentence was, in rare cases, inadequate to reflect the full extent of the offender's criminality. Where the offender was clearly unable to pay the mandatory $30,000 minimum fine, the default imprisonment sentence imposed should not be substantial: at [128] to [131].

Although Parliament had made clear its intention that persons who assisted in unlicensed moneylending operations would be liable to the same penalties as persons who actually carried on such operations, depending on the facts of the case at hand, it might be appropriate to punish more severely offenders who had previously been convicted of actually carrying on the business of unlicensed moneylending, as compared to offenders who had previously been convicted of assisting in the carrying on of such business. As for offenders who had previously been convicted of both assisting in the business of unlicensed moneylending and actually carrying on such business, it might (again depending on the facts of the particular case in question) be appropriate to impose on them sentences in between, with stiffer punishment being meted out to offenders who had graduated from simply assisting in the business of unlicensed moneylending to actually carrying on such business: at [138].]

Bartlett v D'Rozario [1971] SASR 88 (refd)

Beckwith v R (1976) 135 CLR 569 (refd)

Campbell v R (1949) 95 CCC 63 (refd)

Chia Kah Boon v PP [1999] 2 SLR (R) 1163; [1999] 4 SLR 72 (refd)

City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR (R) 733; [2005] 1 SLR 733 (refd)

Donald Mc Arthy Trading Pte Ltd v Pankaj s/o Dhirajlal [2007] 2 SLR (R) 321; [2007] 2 SLR 321 (refd)

Green, Re [1936] 2 DLR 153 (refd)

Johnston v R [1978] 2 WWR 478 (refd)

Low Meng Chay v PP [1993] 1 SLR (R) 46; [1993] 1 SLR 569 (refd)

Maideen Pillai v PP [1995] 3 SLR (R) 706; [1996] 1 SLR 161 (refd)

Police v Whitehouse (2005) 92 SASR 81 (refd)

PP v Chen Chih Sheng [1999] 1 SLR (R) 182; [1999] 1 SLR 714 (refd)

PP v Ho Sheng Yu Garreth [2011] SGDC 125 (refd)

PP v Lee Kim Hock [2011] SGDC 201 (refd)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

PP v Mohd Yusoff bin Jalil [1994] 3 SLR (R) 895; [1995] 1 SLR 309 (refd)

PP v Tan Teck Hin [ 1992] 1 SLR (R) 672; [1992] 1 SLR 841 (refd)

R v Emil Savundra (1968) 52 Cr App R 637 (refd)

R v Frederick Austin [1913] 1 KB 551 (refd)

R v Johnston [1977] 2 WWR 613 (refd)

R v Jonathan Russell Green (1984) 6 Cr App R (S) 329 (refd)

Tan Lai Kiat v PP [2010] 3 SLR 1042 (refd)

Teo Kwee Chuan v PP [1993] 3 SLR (R) 289; [1993] 3 SLR 908 (refd)

Thavanathan a/l Balasubramaniam v PP ...

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13 cases
  • Wong Yuh Lan v PP
    • Singapore
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    • Singapore
    • District Court (Singapore)
    • 13 April 2020
    ...vary the number of strokes to be imposed for each charge on account of the Totality principle: Ho Sheng Yu Garreth v Public Prosecutor [2012] 2 SLR 375 at [133]. This would, of course, be subject to the mandatory minimum number of strokes as stipulated by the statutory provisions. Conversel......
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    ...against which Parliament has set its face implacably, as noted by the Singapore High Court in Ho Sheng Yu Garreth v Public Prosecutor [2012] 2 SLR 375 (“Garreth Ho”) at [68]. This can be seen most evidently from the substantial and robust increases in the penalties for moneylending offences......
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2 books & journal articles
  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
    ...by law at the time it was committed’ [emphasis added]. 1.89 One of the arguments raised in Ho Sheng Yu Garreth v Public Prosecutor[2012] 2 SLR 375 was that the appellant had been wrongfully treated as a repeat offender so as to contravene Art 11(1). The appellant's convictions under s 8(1)(......
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    • Singapore Academy of Law Journal No. 2013, December 2013
    • 1 December 2013
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