Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 11 November 2013
• Neutral Citation: [2013] SGHC 238
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 134 of 2013 and Magistrate’s Appeal No 135 of 2013
• Published date: 21 November 2013
• Year: 2013
• Hearing Date: 03 October 2013
• Plaintiff Counsel: Derek Kang Yu Hsien (Rodyk & Davidson LLP)
• Defendant Counsel: DPP Jiang Ke-Yue (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing
• Citation: [2013] SGHC 238

Sundaresh Menon CJ:

These appeals are brought by Ms Idya Nurhazlyn binte Ahmad Khir (“Idya”) and her husband Mr Zunaidi bin Jaafar (“Zunaidi”) against the decision of the District Judge in Public Prosecutor v Idya Nurhazlyn binte Ahmad Khir and another [2013] SGDC 217. Idya pleaded guilty to two charges of making false statements under s 39(1) of the Passports Act (Cap 220, 2008 Rev Ed) and two charges of cheating under s 417 of the Penal Code (Cap 224, 2008 Rev Ed). She was sentenced to an aggregate term of 5 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 6 weeks’ imprisonment.

Having considered the arguments presented, I am of the view that the sentence imposed for one of the cheating offences and the sentences imposed for the false statement offences were manifestly excessive. Accordingly, I allow the appeal and reduce the first appellant’s aggregate sentence to a term of imprisonment of 4½ months and the second appellant’s sentence to a term of imprisonment of 3 weeks. To be fair to the District Judge, I note that she did not have the benefit of any guidance on the question of the appropriate sentences to be imposed in relation to convictions under s 39(1) of the Passports Act given the dearth of reasoned precedents.

Background Facts The False Statement Offences

The Appellants are a married couple. Sometime in 2010, they were staying at the Lotus Desaru Hotel in Malaysia with three of their children as well as Idya’s mother, grandmother and aunt. The Statement of Facts, which was admitted without reservation by both accused, indicated that 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. Instead, they went to the home of Idya’s uncle in Subang Jaya, Malaysia, where they stayed a further period of around three weeks. This was plainly not tenable as a long term solution and at some point, a scheme was hatched.

Pursuant to this scheme, on 21 July 2010, Idya lodged a police report at a police station close to her uncle’s home, stating that she and her family members had lost their passports. Later on that same day, Idya 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. He was released on 28 July 2010. Two days later, on 30 July 2010, Zunaidi applied for a DOI at the Singapore High Commission. He too 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.

The Cheating Offences

Sometime in January 2011, Idya told her relatives that she was able to purchase Apple products at a low price from a supplier and offered to place orders for them. Her aunt, Norizah binte Md Noor, duly placed an order for two Apple MacBooks and three Apple iPhones. On 24 January 2011, Norizah transferred $1,800 to Idya’s bank account in accordance with her instructions. Idya never delivered the promised items. A police report was made on 17 February 2011. Idya eventually made full restitution to Norizah.

Some time later, in early June 2011, Idya ordered $10,509 worth of Sony products from ITIS Pte Ltd (“ITIS”). ITIS is an authorised dealer of Sony products and Idya had been directed to ITIS after she first called the head office of Sony Corporation (Singapore) to inquire into purchasing some products ostensibly for her business. A sales executive from ITIS then contacted Idya to follow up on her inquiry. Idya placed her order with the sales executive and subsequently issued a cheque for $10,509 and collected the Sony products at ITIS’ premises. The cheque was dishonoured when presented. A police report was made on 17 June 2011. Investigations revealed that Idya knew that the cheque would be dishonoured as it was drawn on a bank account that had insufficient funds. Sony products worth $2,922.42 were recovered and Idya eventually made restitution of the balance of $7,586.58.

The Decision Below

Idya pleaded guilty to two charges under s 39(1) of the Passports Act 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. Two charges relating to her mother and grandmother’s applications were taken into consideration. Idya also pleaded guilty to two charges under s 417 of the Penal Code for cheating Norizah (“the first cheating offence”) and ITIS (“the second cheating offence”). Idya had separately deceived two other members of her family into paying her $550 each for iPads which she never delivered. Two charges in respect of these offences were taken into consideration.

The District Judge sentenced Idya to two months’ imprisonment for each of the false statement offences, 2 months’ imprisonment for the first cheating offence and 3 months’ imprisonment for the second cheating offence. The sentences for the first false statement offence and the second cheating offence were ordered to run consecutively, resulting in an aggregate sentence of 5 months’ imprisonment.

In the same proceedings, Zunaidi pleaded guilty to one charge under s 39(1) of the Passports Act for making a false statement in his application for a DOI. He was sentenced to 6 weeks’ imprisonment.

The Appellants’ Case

The Appellants appeal on the basis that the sentences imposed were manifestly excessive. They were represented by Mr Derek Kang under the Criminal Legal Aid Scheme (“CLAS”) before me and in the court below.

Insofar as the offences under the Passports Act are concerned, Mr Kang submitted that Idya was in a delicate state of mind at the time of the false statement offences owing to a number of alleged events which I consider below at [16] – [22]. Mr Kang submitted that this was part of the essential context in which Idya’s false statements to obtain DOIs to return to Singapore are to be assessed. Mr Kang also submitted that both the Appellants were first time offenders and their offences were not premeditated. It was further contended that s 39(1) of the Passports Act was intended to target those who made false statements in order to obtain passports with a view to then misuse or abuse them and not to target Singapore citizens whose passports had been stolen, destroyed or were, for some reason, temporarily unavailable while abroad and who needed a travel document in order to return home. In any event, Mr Kang submitted, the Appellants’ false statements were not material as in all likelihood, the DOIs would have been issued even if Idya, Zunaidi and the others had made accurate declarations.

As regards Idya’s cheating offences, Mr Kang submitted that she was affected by a psychiatric condition at the material time which she apparently continues to suffer from. It was said that this reduced her culpability and made it appropriate to impose a mandatory treatment order instead of a custodial sentence. Finally, it was submitted that a custodial sentence was not warranted as the prevailing sentencing benchmark in the District Court for a first offence under s 417 was a fine.

The Respondent’s Case

The learned Deputy Public Prosecutor Mr Jiang Ke-Yue submitted that false statement offences under s 39(1) of the Passports Act are serious and should in principle warrant a custodial term. Further, the fact that the false statements were made to a public institution and difficult to detect, given that they were made overseas, called for a deterrent sentence. Notwithstanding the admitted dearth of direct sentencing precedents, Mr Jiang submitted that the District Judge was correct to have relied on the sentencing approach adopted for analogous offences in Luong Thi Trang Hoang Kathleen v Public Prosecutor [2010] 1 SLR 707 (“Kathleen Luong”), Abu Syeed Chowdhury v Public Prosecutor [2002] 1 SLR(R) 182 (“Abu Syeed Chowdhury”) and Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 (“Jenny Lai”).

As regards the cheating offences, Mr Jiang submitted that Idya had abused the trust of her family by cheating them and had demonstrated a marked lack of repentance by committing the second cheating offence even while she was under investigation for the first. Finally, the sentence imposed by the District Judge was said to be in line with the precedents.

My Decision The False Statement Offences Mitigation

In relation to the false statement offences, it is appropriate to begin with the alleged background that Mr Kang put forward on Idya’s instructions. According to Mr Kang, Idya was said to have been in a delicate state of mind at the material time because of a series of events that began when the Appellants were allegedly cheated of an unspecified “large proportion” of their life savings in 2007. They had been offered employment in Dubai but evidently, this was all part of a scam to cheat them. Moreover, on 30 January 2009, Idya gave birth to a premature baby girl named Izzlyn. Despite this, the Appellants said that they had to leave Izzlyn in a hospital and head off to Malaysia on 2 March 2009 as they had been told to do so by someone claiming to be a lawyer from a leading Malaysian firm and by someone else claiming to be from the Embassy of the United Arab Emirates (“UAE”) if they wished to recover the money they had been cheated of. The Appellants claimed that...