Idya Nurhazlyn bte Ahmad Khir v PP

• Jurisdiction: Singapore
• Judgment Date: 11 November 2013
• Date: 11 November 2013
• Docket Number: Magistrate's Appeals Nos 134 and 135 of 2013
• Court: High Court (Singapore)

Idya Nurhazlyn bte Ahmad Khir

Plaintiff

and

Public Prosecutor and another appeal

Defendant

[2013] SGHC 238

Sundaresh Menon CJ

Magistrate's Appeals Nos 134 and 135 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Cheating offence causing victim to part with possession of property—Whether custodial sentence appropriate—Section 417 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Making or giving false or misleading statements or information in connection with Singapore passport or travel document—What sentence appropriate—Section 39 (1) Passports Act (Cap 220, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Forms of punishment—Psychological impact on offender subject to psychiatric condition—Whether relevant sentencing consideration

Criminal Procedure and Sentencing—Sentencing—Principles—Making false statements to public authorities—What considerations relevant

Criminal Procedure and Sentencing—Sentencing—Principles—Offender subject to psychiatric condition having no causal connection to commission of offence—Whether mitigating factor

Criminal Procedure and Sentencing—Sentencing—Principles—Use of cheque to commit cheating offence—What effect on sentence

Sometime in 2010, the appellants, Ms Idya Nurhazlyn bte Ahmad Khir (‘Idya’) and Mr Zunaidi bin Jaafar (‘Zunaidi’), a married couple, were staying in a hotel in Malaysia with three of their children as well as Idya's mother, grandmother and aunt. Because the appellants were unable to pay the hotel bill at the time of checking-out, the hotel retained the passports of all eight of them as security. The appellants and their accompanying relatives left and never returned to settle the bill or retrieve the passports.

On 21 July 2010, Idya lodged a police report stating that she and her family members had lost their passports. Later that day, she and her family went to the Singapore High Commission in Kuala Lumpur to apply for documents of identity to be issued in lieu of passports (‘DOIs’). Idya completed a declaration form stating that she had lost her passport in Kuala Lumpur. She also helped her mother, grandmother and aunt to complete declaration forms in similar terms.

Zunaidi, in the meantime, had been remanded by the Malaysian authorities for unlawfully overstaying in Malaysia. Following his release, he too applied for a DOI at the Singapore High Commission on 30 July 2010 and completed a declaration form stating that he had lost his passport. The Appellants and their family subsequently used the DOIs to return to Singapore, whereupon the DOIs were surrendered to the authorities.

Separately, sometime in January 2011, Idya told her relatives that she was able to purchase electronics from a supplier and offered to place orders for them. An aunt duly placed an order and transferred $1,800 to Idya's bank account in accordance with her instructions. Idya never delivered the promised items.

In early June 2011, after investigations in respect of the events in January 2011 had commenced, Idya ordered $10,509 worth of electronic products from ITIS Pte Ltd (‘ITIS’). She issued a cheque for $10,509 in exchange for the products. The cheque was dishonoured when presented. Investigations revealed that Idya knew that the cheque would be dishonoured as it was drawn on a bank account that had insufficient funds.

Idya pleaded guilty to two charges of making false statements under s 39 (1) of the Passports Act (Cap 220, 2008 Rev Ed) for making false statements in respect of her own (‘the first false statement offence’) and her aunt's (‘the second false statement offence’) applications for DOIs. She was sentenced to two months' imprisonment on each charge. Idya also pleaded guilty to two charges under s 417 of the Penal Code (Cap 224, 2008 Rev Ed) for cheating her aunt (‘the first cheating offence’) and ITIS (‘the second cheating offence’), for which she was sentenced to two months' and three months' imprisonment respectively. The sentences for the first false statement offence and the second cheating offence were ordered to run consecutively, resulting in a cumulative sentence of five months' imprisonment. Zunaidi pleaded guilty to one charge of making a false statement under s 39 (1) of the Passports Act and was sentenced to six weeks' imprisonment.

Being dissatisfied with the sentences imposed, the appellants appealed.

Held, allowing the appeals in part:

(1) The appellants' false statement offences were not merely technical offences that did not result in any appreciable harm. The legislative objective behind the offences created by the Passports Act was to safeguard the reputation and standing of the Singapore passport. The appellants' actions allowed a hotel employee to retain eight genuine Singapore passports and created the opportunity for these passports to be abused. Allowing the passports to be retained as security was not unlike selling a passport for commercial reward: at [24] and [26] .

(2) The analytical framework put forward in the case of Abu Syeed Chowdhury v PP[2002] 1 SLR (R) 182 for assessing the culpability of an offender for false statement offences could be usefully applied for offences under other statutes where these involved false statements being made to a public authority. The following four considerations enabled the sentencing court to gauge how serious the particular offence was and where in the sentencing range the case should fall: (a) the materiality of the false representation on the mind of the decision-maker, (b) the nature and extent of the deception, (c) the consequences of the deception and (d) the personal mitigation factors applicable to the offender: at [32] and [33] .

(3) The starting point for an offence under s 39 (1) of the Passports Act should be a term of between four and eight weeks' imprisonment. Where the statement was made in connection with a view to applying for a passport, a sentence at the higher end of that range would be appropriate; if it was in connection with a single use DOI for the purpose of returning home to Singapore a sentence at the lower end of that range would be appropriate: at [37] .

(4) Having regard to the fact that Idya was evidently the driving force behind the false statement offences who procured the other members of her family to commit similar offences, and having regard also to the fact that she went to the extent of lodging a false police report in an attempt to substantiate the false declarations, the appropriate sentence would be a term of imprisonment of 1½months on each of the false statement offences: at [38] .

(5) Zunaidi appeared very much to have been the follower in this incident. A term of imprisonment of three weeks was therefore appropriate: at [39] .

(6) Although Idya raised a psychiatric condition as a mitigating factor in respect of the cheating offences, it was apparent from the psychiatric reports relied upon that her condition had no causal connection with the cheating offences. It therefore could not be considered a mitigating factor: at [41] .

(7) The psychological impact of incarceration on a particular offender was generally not a relevant sentencing consideration or a valid reason for not meting out a custodial sentence. To hold otherwise would result in unfair inconsistency in the sentencing of offenders who committed similar offences and demonstrated similar culpability: at [42] and [44] .

(8) A custodial sentence would generally be appropriate for an offence punishable under s 417 of the Penal Code as long as the offence in question caused a victim to part with property that had more than negligible value: at [47] .

(9) The second cheating offence had the potential to undermine the confidence in the use of cheques and the financial system. If cheques became a common vehicle for cheating, no one would be willing to provide goods or services on faith of a cheque. Immediate payment would always be demanded, and a facility vital to commerce would be undermined. There was thus a legitimate interest in deterring such offences: at [49] .

(10) In relation to the second cheating offence, the use of a dud cheque, the careful planning that preceded the actual commission of the offence and the fact that this was a second instance of cheating and one that was committed at a time when Idya knew she was under investigation for the first cheating offence were all aggravating factors that negated the mitigating value of Idya's having made restitution. On balance, the sentence of three months' imprisonment imposed for the second cheating offence was not manifestly excessive and was upheld: at [51] and [53] .

(11) In relation to the first cheating offence, having regard to the fact that the offence did not involve the use of cheques or financial instruments and that it was Idya's first offence and there was full restitution, the sentence of two months' imprisonment was manifestly excessive. A sentence of one month's imprisonment was imposed instead: at [52] .

(12) The false statement offences were part of the same transaction and the sentences imposed in respect of these offences should therefore be concurrent. In contrast, both cheating offences were wholly separate and consecutive sentences were prima facie appropriate. However, the totality principle militated against imposing three consecutive sentences. Therefore, the sentences for the first false statement offence and the second cheating offence were to run consecutively and a cumulative sentence of 4½ months' imprisonment was imposed on Idya: at [54] .

Abu Syeed Chowdhury v PP [2002] 1 SLR (R) 182; [2002] 1 SLR 301 (folld)

Chew Im v PP (DC) (refd)

Lai Oei Mui Jenny v PP [1993] 2 SLR (R) 406; [1993] 3 SLR 305 (distd)

Lim Choon Kang v PP [1993] 3 SLR (R) 254; [1993] 3 SLR 927 (refd)

Low Sze Sze v PP (DC) (refd)

Luong Thi Trang Hoang Kathleen v PP [2010] 1 SLR 707...