Ho Sheng Yu Garreth v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 30 January 2012
• Neutral Citation: [2012] SGHC 19
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 88 of 2011
• Published date: 14 February 2012
• Year: 2012
• Hearing Date: 29 August 2011
• Plaintiff Counsel: S K Kumar (S Kumar Law Practice LLP)
• Defendant Counsel: Edwin San (Attorney-General's Chambers),Kenneth Lim Tao Chung as amicus curiae.
• Subject Matter: Constitutional Law,Criminal Law,Criminal Procedure and Sentencing,Statutory Interpretation
• Citation: [2012] SGHC 19

V K Rajah JA: Introduction

The appellant, Mr Ho Sheng Yu Garreth (“the Appellant”), a 39-year-old male Singaporean, faced 18 charges in the District Court of engaging in a conspiracy to carry on the business of moneylending without a licence. On 29 December 2010, he pleaded guilty to six charges and agreed to the remaining 12 charges being taken into consideration for the purposes of sentencing. The six charges which he pleaded guilty to were offences under s 14(1) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the MLA 2010”), and were punishable under the same section as well as under s 14(1A), both read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). In particular, the six charges, according to the amended Statement of Facts dated 29 December 2010 (“the Statement of Facts”), expressly stated that the Appellant had “abetted [Ku Teck Eng] and [Lee Kim Hock] by engaging in a conspiracy with them to carry on the business of [unlicensed] moneylending”.¹ The Appellant was convicted accordingly.

This was the second time that the Appellant was convicted of unlicensed moneylending. On 29 December 2008, the Appellant had been convicted of two charges of unlicensed moneylending under s 8(1)(b) of the Moneylenders Act (Cap 188, 1985 Rev Ed) (“the MLA 1985”), punishable under s 8(1)(i) of the MLA 1985 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 revised edition of the Penal Code”). It should be noted that the MLA 1985 was later repealed and re-enacted as the Moneylenders Act 2008 (Act 31 of 2008) (“the MLA 2008”), which was in turn amended to become the MLA 2010.

In view of the Appellant’s previous moneylending offences, the Prosecution submitted that he was a repeat offender and was thus subject to the enhanced penalties (relating to fines and imprisonment) under s 14(1)(b)(ii) of the MLA 2010 (see Public Prosecutor v Ho Sheng Yu Garreth [2011] SGDC 125 (“the GD”) at [3]). The Prosecution, however, stopped short of seeking an enhanced sentence in respect of caning, which was available under s 14(1A)(b) of the MLA 2010.² The District Judge (“the DJ”) accepted the Prosecution’s submission that the Appellant was a repeat offender for the purposes of s 14(1)(b)(ii) of the MLA 2010 and accordingly 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) (see the GD at [8]). Dissatisfied with the DJ’s decision on sentencing, the Appellant initiated this appeal against his sentence.

At the hearing of the appeal, the preliminary issue (which was also the central issue) was whether the Appellant was liable for enhanced punishment under s 14(1)(b)(ii) of the MLA 2010 owing to his prior convictions under s 8(1)(b) of the MLA 1985. I decided that issue in the affirmative and did not disturb the custodial sentence imposed by the DJ. Nonetheless, I also thought it appropriate to halve the Appellant’s sentences in respect of the fines and the caning as I considered the lower court’s sentences manifestly excessive in the prevailing circumstances. I now give the detailed reasons for my decision. As these grounds are fairly lengthy, for ease of reference, I set out here an outline of the scheme adopted herein: Background facts (see [5]–[9] below) The present convictions (see [10]–[13] below) The previous convictions (see [14]–[15] below) The decision below (see [16]–[20] below) The preliminary issue (see [21] below) The statutory provisions (see [22]–[25] below) The Appellant’s submissions (see [26]–[29] below) The Prosecution’s submissions (see [30]–[33] below) The interpretational issues (see [34] below) Determination of the interpretational issues (see [35] below) Whether the repeal of s 8(1)(b) of the MLA 1985, in and of itself, meant that convictions made under it could not be taken into account as prior offences for the purposes of s 14(1)(b)(ii) of the MLA 2010 (see [36]–[42] below) Whether s 14(1)(b)(ii) of the MLA 2010 ought to be construed to take into account convictions under s 8(1)(b) of the MLA 1985 as prior offences An issue of construction (see [43]–[45] below) Whether the offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010 (see [46]–[54] below) a. Purposive interpretation as the cornerstone of statutory interpretation (see [55]–[57] below) b. Legislative history of the offence of unlicensed moneylending (see [58]–[68] below) c. The offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010 (see [69]–[73] below) Whether the moneylending offences under s 8(1)(b) of the MLA 1985 are the same as the offences described by s 14(1) of the MLA 2010 (see [74] below) a. Different penalties for first offenders (see [75]–[87] below) b. Different wording and structure (see [88]–[98] below) Whether Parliament intended that convictions for moneylending offences under s 8(1)(b) of the MLA 1985 should count as prior convictions for the purposes of s 14(1)(b)(ii) of the MLA 2010 a. Absence of transitional and savings provisions (see [99]–[101] below) b. To ignore prior convictions for unlicensed moneylending (and the abetting by intentional aiding thereof) under s 8(1)(b) of the MLA 1985 would defeat the legislative intention (see [102]–[103] below) c. The Registration of Criminals Act (Cap 268, 1985 Rev Ed) (“the ROCA”) (see [104] below) Whether treating the Appellant’s present offences as repeat offences under the MLA 2010 would contravene Art 11(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) (see [105]–[112] below) Summary and determination of the preliminary issue (see [113]–[120] below) Reduction of the Appellant’s sentence in respect of fines and caning (see [121] below) Fines (see [122]–[131] below) Caning (see [132]–[134] below) Imprisonment (see [135]–[136] below) Observation (see [137]–[138] below) Conclusion (see [139] below)

Background facts

The Appellant was arrested on 4 September 2010 at the void deck of Block 624 Yishun Ring Road. With him were three accomplices: Ku Teck Eng (“B2”), Lee Kim Hock (“B3”) and Tan Cheng Huat Melvin (“B4”). Each of the accomplices was prosecuted in separate criminal proceedings. As those proceedings have no direct relevance to this appeal, I shall not elaborate upon them.

The facts of the case admitted to by the Appellant are contained in the Statement of Facts tendered in the District Court proceedings below. According to the Statement of Facts, B2 and B3 started an unlicensed moneylending business together in or around September 2009. It was agreed between them that B3 was to provide a capital sum of $20,000 to finance the business, which was to be run by B2.

Sometime in November 2009, B2 recruited B4 to assist in the unlicensed moneylending business in return for 30% of the profits made from the business (the remaining 70% of the profits were to be split equally between B2 and B3). B4’s role was to canvass for borrowers and to issue loans to them at an interest rate of 20%. In order to keep track of their dealings, B2 and B4 each maintained a set of identical records comprising the debtors’ particulars, details of the loans issued and the repayments received. B2 and B4 met up once in two days to compare and update their respective records. Once a week, B3 met B2 to inspect the records so as to be kept abreast of the profits made.

It was only later in April 2010 that the Appellant came into the picture. He was introduced by B4 to B2, who learnt that the Appellant was working as a runner for an unlicensed moneylender known as “Sam”. Subsequently, in around July 2010, B2 discovered that B4 had been dishonestly using fictitious particulars to siphon money away from the unlicensed moneylending business. As a result, B2 recruited the Appellant to take B4’s place in around August 2010 on terms that the Appellant would receive 30% of the profits made from the business. Accordingly, the Appellant assumed B4’s role of canvassing for borrowers, issuing loans at the interest rate of 20% as well as collecting repayments from debtors. The Appellant also took over the records maintained by B4 and ceased working for “Sam”. Significantly, the Appellant was later introduced by B2 to B3 as a new partner in their unlicensed moneylending business.

At the point of the Appellant’s arrest, the amount of loans in circulation was estimated to be around $41,000, with a pool of about 45 debtors. This sum of money represented the profits made from the unlicensed moneylending business. By the time B4 left the unlicensed moneylending business, he had collected about $5,000 as his share of the profits. B2 collected a sum of about $5,000 as his share. B3 recovered his capital sum of $20,000 sometime in May 2010 and made a profit of about $12,000 from the unlicensed moneylending business. As for the Appellant, he received just $600 as his share of the profits (see [124] below).

The present convictions

Of the six charges which the Appellant pleaded guilty to, three (viz, the first, second and fifth charges) were for issuing loans in furtherance of a conspiracy to carry on the business of unlicensed moneylending, and three (viz, the eighth, eleventh and twelfth charges) were for collecting repayments in consequence of that conspiracy. The first charge (for issuing a loan in furtherance of a conspiracy to carry on the business of unlicensed moneylending) read as follows:³

You, [the Appellant] …

are charged that you, between July 2010 to August 2010, did abet by engaging in a conspiracy with [B2] and [B3], for the doing of a thing, to wit, to carry on the business of...