Kalaiarasi d/o Marimuthu Innasimuthu v PP

JurisdictionSingapore
Judgment Date19 March 2012
Date19 March 2012
Docket NumberCriminal Revision No 1 of 2012 and Magistrate's Appeal No 191 of 2011
CourtHigh Court (Singapore)
Kalaiarasi d/o Marimuthu Innasimuthu
Plaintiff
and
Public Prosecutor
Defendant

V K Rajah JA

Criminal Revision No 1 of 2012 and Magistrate's Appeal No 191 of 2011

High Court

Criminal Procedure and Sentencing—Sentencing—Principles—Absolute and conditional discharges—When appropriate—Bankrupt failing to submit income and expenditure statements to official assignee—Bankrupt's husband originally filing income and expenditure statements—Bankrupt incorrectly assuming that estranged husband would file statements on her behalf—Insolvency and Public Trustee's Office sending only two reminders seven years apart—Number of charges a function of the delay in prosecuting bankrupt—Whether court should order appellant to be absolutely or conditionally discharged—Probation of Offenders Act (Cap 252, 1985 Rev Ed) s 8 (1)

Criminal Procedure and Sentencing—Sentencing—Principles—Community-based sentencing—Bankrupt failing to submit income and expenditure statements to official assignee—Bankrupt's husband originally filing income and expenditure statements—Bankrupt incorrectly assuming that estranged husband would file statements on her behalf—Insolvency and Public Trustee's Office sending only two reminders seven years apart—Number of charges a function of the delay in prosecuting bankrupt—Whether court should order community-based sentence—Criminal Procedure Code 2010 (Act 15 of 2010)

The appellant was adjudicated a bankrupt on 7 January 2000 together with her husband. By virtue of s 82 (1) (a) of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (‘BA’), the appellant was under an obligation to submit to the Official Assignee (‘OA’) accounts of monies and properties once every six months or such other period as the OA may specify. Such accounts were to be filed using Income and Expenditure Statements (‘I & E Statements’).

After she was adjudged a bankrupt, on 15 February 2000, the appellant was furnished with bankruptcy information sheets which informed her of her statutory duty to submit her I & E Statements. The appellant filed her I & E Statements for the requisite periods between April 2000 and March 2002 and between October 2002 and March 2003. Pertinently, the appellant did not personally prepare the I & E Statements but relied upon her husband to do so prior to appending her signature on them. After 2003, the appellant failed to continue to submit her statements because she incorrectly assumed that her husband, with whom she had become estranged, would submit the relevant statements on her behalf. Just two reminders to file her I & E Statements were thereafter sent to the appellant - the first on 17 May 2003 and the second, more than seven years later, on 7 July 2010.

On 11 October 2010, the Insolvency and Public Trustee's Office (‘IPTO’) wrote to the appellant informing that her case was being reviewed for possible discharge from bankruptcy. In the same letter, the IPTO proposed that the appellant pay a sum of $5,000 to expedite her discharge from bankruptcy. The IPTO again wrote to the appellant on 17 March 2011. The contents of the letter of 17 March 2011 were identical to the letter of 11 October 2010. In response to the IPTO's letter of 17 March 2011, the appellant in a letter dated 28 March 2011 expressed her eagerness to be discharged from bankruptcy. However, as she was unable to raise the sum of $5,000 proposed by the IPTO, the appellant offered a sum of $1,000 as the said sum was within her means. Shortly after this, without any apparent attempt to elicit her reasons for failing to file the relevant I & E Statements for such a substantial period and/or why she was unable to raise more money to discharge her bankruptcy, 30 charges under s 82 (1) (a) of the BA were abruptly preferred against the appellant.

The appellant pleaded guilty to three charges under s 82 (1) (a) of the BA for failing to meet her obligations under the said provision. An additional 27 charges under the same provision were taken into consideration for the purpose of sentencing. The court below imposed a term of imprisonment of eight weeks on the appellant.

The appellant appealed against the sentence imposed below.

Held, allowing the appeal and ordering the appellant to be conditionally discharged for a period of 12 months:

(1) The source of the court's power to order a conditional discharge lay in s 8 of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (‘the Act’). On a plain reading of that provision, the court had to be satisfied of three matters before ordering an absolute or conditional discharge for offenders who had attained the age of 21. First, it had to be inexpedient to inflict punishment. Second, a probation order had to not be appropriate. In determining whether these two requirements were satisfied, s 8 (1) provided that the court was to have regard to the circumstances. Third, the offence was not one for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning was prescribed by law. Two circumstances in particular were underscored: the nature of the offence and the character of the offender. Section 8 (1) should not, however, be read as restricting the court to only these two considerations: at [21].

(2) As provided in s 8 (1) of the Act, having been satisfied that the offence in question was one which was not fixed by law, the overriding considerations for determining whether to order an absolute or conditional discharge were twofold. The court had to consider if it was inexpedient to inflict punishment and whether probation was inappropriate. In considering these factors, the court should pay close attention to the nature of the offence and the interests which the offence sought to protect. In addition, some of the factors that the court should consider included the particular circumstances of the offender, the particular circumstances of theoffence and factors independent of the offender: at [33].

(3) In deciding between ordering a conditional discharge and an absolute discharge, it was important to bear in mind that the difference between the orders was that a conditional discharge had a ‘mild deterrent’ component. A person under a conditional discharge who commited an offence during the operative period of the discharge was liable to be sentenced for the offence for which he received a conditional discharge as if he had just been convicted of that offence (see s 9 (5) of the Act). Hence, the touchstone for determining which order was appropriate was whether the circumstances of the offence or the offender called for a superimposition of a deterrent component. Other considerations, such as the triviality of the offence, the circumstances of the prosecution and factors relating to the offender might also be considered: at [34].

(4) In deciding whether to order an offender to undergo a community-based sentence under the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’), it was important to bear in mind that there were statutory restrictions to making such orders. These restrictions were set out in s 337 of the CPC 2010. The court should also consider the views and recommendations in the reports that had to be prepared for some of the community orders. Apart from these obvious considerations, the court should bear in mind that the legislative intent underlying community-based sentencing was to allow for more flexibility in balancing the various sentencing principles in individual cases. The introduction of community-based sentencing in the CPC 2010 was recognition that custodial sentences, caning or a fine might not be appropriate for all offences and/or for all offenders. The particular circumstances of the offence and the offender in question had to therefore be carefully considered to determine whether rehabilitation should be given prominence in the case at hand notwithstanding any countervailing need for deterrence, retribution or prevention: at [38] and [39].

(5) There was little doubt that the courts took a serious view towards bankruptcy offences because the bankruptcy regime required bankrupts to comply with various provisions for its smooth operation. The present appeal, however, was a case where inordinate delay was occasioned not by the appellant, but by an oversight on the part of the prosecuting authorities. The offences for which the appellant was charged could not possibly have entailed complex or lengthy investigations which could occasion inexpedient prosecution. On the contrary, the offences involved simple non-compliance with the statutory requirement of filing I & E statements. Investigations into such offences would be far from taxing. In addition, the appellant did not fit the prototype of a serial offender who deliberately broke the law in order to conceal and/or surreptitiously deal with her assets. The appellant had been employed in a kindergarten since January 2005. Her income during this period did not vary substantially. This was not disputed by the Prosecution. Finally, the appellant's conduct throughout the approximately nine-year period of offending was representative of a hardworking and productive member of society. Hence, in the light of her gainful employment, character, lack of antecedents, as well as the delay in prosecution, some form of a discharge was appropriate notwithstanding the serious view that the courts took towards bankruptcy offences: at [40]and [41].

(6) It was not appropriate to make any community order under the CPC 2010. Rehabilitation was not a particularly strong consideration in the circumstances. The appellant was of demonstrably good character. The circumstances under which she committed the offences, viz, her belief that her estranged husband would file returns on her behalf, also suggested that her offending conduct was more of an inadvertent oversight than of a deliberate infraction. For the same reason, probation was neither necessary nor appropriate. A...

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11 cases
  • Sim Wen Yi Ernest v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 29 Agosto 2016
    ...to decide on both the nature of the charges and the number of charges: Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor [2012] 2 SLR 774 (“Kalaiarasi”) at [4]. The court should be slow to substitute its opinion for what the prosecution considers to be the most appropriate charge in ......
  • Public Prosecutor v Merlur Binte Ahmad
    • Singapore
    • District Court (Singapore)
    • 27 Diciembre 2022
    ...8(1) of the Probation of Offenders Act 1951 (“POA”) as well as the High Court’s decision in Kalaiarasi d/o Marimuthu Innasimuthu v PP [2012] 2 SLR 774 (“Kalaiarasi”). In particular, the defence referred to [33] of Kalaiarasi which set out the factors that were relevant in the Court determin......
  • Public Prosecutor v Ryan You Jun Chao
    • Singapore
    • Magistrates' Court (Singapore)
    • 4 Septiembre 2020
    ...any countervailing need for deterrence, retribution or prevention: Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor [2012] 2 SLR 774. Thus the appropriateness of CBS is a question which turns on all the relevant circumstances of each case, including the offence and the offender in q......
  • PP v Chua Wen Hao
    • Singapore
    • High Court (Singapore)
    • 26 Marzo 2021
    ...PP [2018] 5 SLR 1289 (folld) Chia Kah Boon v PP [1999] 2 SLR(R) 1163; [1999] 4 SLR 72 (folld) Kalaiarasi d/o Marimuthu Innasimuthu v PP [2012] 2 SLR 774 (distd) Koh Yong Chiah v PP [2017] 3 SLR 447 (folld) Ng Kean Meng Terence v PP [2017] 2 SLR 449 (refd) PP v Ahmad Ghuzaili bin Ismail SC 9......
  • Request a trial to view additional results
2 books & journal articles
  • EMPIRICAL STUDY ON APPELLATE INTERVENTION IN MANIFESTLY EXCESSIVE OR INADEQUATE SENTENCES IN SINGAPORE
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 Diciembre 2020
    ...example, that the sentence was not warranted in the circumstances of the case (Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor [2012] 2 SLR 774; Teo Kok Leong Kevin v Public Prosecutor [2010] SGHC 281 at [5]; Ganesh s/o M Sinnathamby v Public Prosecutor [2008] 1 SLR(R) 495) or out ......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 Diciembre 2012
    ...limit the scope of s 77 of the Bankruptcy Act. Failure to submit accounts 17.14 Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor[2012] 2 SLR 774 was an appeal against the District Court's decision to impose a term of imprisonment of eight weeks on the appellant for failing to submit......

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