Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 19 March 2012
• Neutral Citation: [2012] SGHC 58
• Court: High Court (Singapore)
• Docket Number: Criminal Revision No 1 of 2012 and Magistrate’s Appeal No 191 of 2011/01
• Published date: 27 March 2012
• Year: 2012
• Hearing Date: 10 January 2012
• Plaintiff Counsel: Ezekiel Peter Latimer (Peter Ezekiel & Co)
• Defendant Counsel: Darryl Soh (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing
• Citation: [2012] SGHC 58

V K Rajah JA: Introduction

This was an appeal against the sentences imposed by a District Judge (“the DJ”) (see Public Prosecutor v Kalaiarasi d/o Marimuthu Innasimuthu [2011] SGMC 5 (“the GD”)). The DJ had imposed a term of imprisonment of eight weeks on the appellant, a kindergarten teacher, for failing to submit to the Official Assignee (“the OA”) accounts of moneys and properties pursuant to s 82(1)(a) of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“BA”). After considering the parties’ submissions, I set aside the sentence of imprisonment and granted a conditional discharge pursuant to s 8(1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“the Act”). I now give the detailed reasons for my decision.

This is perhaps a timely opportunity to repeat the exhortation by Chan Sek Keong CJ in an extrajudicial speech (see Chan Sek Keong CJ, Opening Address at the Yellow Ribbon Conference 2006: “Unlocking the Second Prison” (27 September 2006)¹:

Each time a judge decides to punish an offender, he must remember to ask himself the additional question: Why punish? This will remind him that the punishment imposed should achieve a societal purpose and cannot be an end in itself.

In a similar vein, Nigel Walker at p 6 of Why Punish: Theories of Punishment Reassessed (Oxford University Press, 1991) opined that justification of individual sentences is desirable:

Yet a sentencer who regards his consistency with his colleagues’ practice as a complete justification is rather like a priest who performs ritual actions without asking himself why they are part of the ritual. Even a ritual has a meaning. Punishment is something more than a series of hopefully consistent decisions: as we have seen, it is a social institution. Like other social institutions it must serve – or at least appear to serve – one or more desired functions. If it did not, it would have been allowed to wither away, like outlawry and craft-guilds, or have come to be regarded as nothing more than a ritual, like the mounting of ceremonial guards. [emphasis added]

It is indisputable that sentencing must serve a “societal purpose”. Further, it is axiomatic, other than in situations necessitating mandatory fixed sentencing, that the sentence meted out must be rigorously justified by reference to settled sentencing objectives and principles as well as the facts of the particular case. I made this observation in Biplob Hossain Younus Akan and others v Public Prosecutor and another matter [2011] 3 SLR 217 (at [18]):

Each case must turn on a close examination of its facts, for which a bland recitation of general principles is no substitute. [emphasis added]

Not unlike a decision on sentencing, a decision to prosecute must also serve a societal purpose. Not all offending conduct is subjected to prosecution, and even then, the prosecution in the exercise of its extensive discretion may selectively decide what offending conduct it proposes to sanction. It has the discretion to decide on both the nature of the charges and, in the case of repeated offending, the number of charges. This ought not to be a mechanical exercise. Rather, it should take into account all the pertinent circumstances and the overriding consideration of serving the larger good of the community. Each time before charges are preferred the prosecution too should ask of itself a not dissimilar question: why prosecute? As will be seen, this case raised legitimate concerns about how and why the decision to prefer 30 charges against the appellant was reached by those having carriage of this matter at the Insolvency and Public Trustee’s Office (“IPTO”). First, there plainly was substantial delay in prosecuting the appellant – and this delay could not be attributed to the appellant in any way. Second, to compound matters, the gravity of the appellant’s offending – in so far as the 30 charges preferred against her were concerned – was directly attributable to the delay in prosecution. Having considered the nature of the offences, the profile of the appellant as well as the entirety of the prevailing circumstances, I unhesitatingly came to the conclusion that the usual punishments of imprisonment or fines would be entirely inappropriate and granted the appellant a conditional discharge. I now set out the factual matrix of this appeal.

Background facts The charges

The appellant was adjudicated a bankrupt on 7 January 2000 through Bankruptcy Order No. 3563 of 1999 together with her husband for a sum below $60,000.² The appellant’s bankruptcy was a result of being unable to repay a loan facility which she had applied for, but did not benefit from, together with her now estranged husband. By virtue of s 82(1)(a) of the BA, the appellant was under an obligation to submit to the OA accounts of monies and properties once every six months or such other period as the OA may specify. Such accounts are filed using Income and Expenditure Statements (“I & E Statements”). Section 82(1) of the BA reads:

Bankrupt to submit accounts 82.—(1) A bankrupt who has not obtained his discharge shall, unless otherwise directed by the Official Assignee — (a) submit to the Official Assignee once in every 6 months an account of all moneys and property which have come to his hands for his own use during the preceding 6 months or such other period as the Official Assignee may specify; or (b) pay and make over to the Official Assignee so much of such moneys and property as have not been expended in the necessary expenses of maintenance of himself and his family.

(2) A bankrupt who fails to comply with subsection (1)(a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $200 for every day during which the offence continues after conviction.

[emphasis in original in bold]

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 pursuant to s 82(1)(a) of the BA. The appellant filed her I & E Statements for the requisite periods between April 2000 and March 2002 and between October 2002 and March 2003.³ 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.⁴ 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 (see [14] below). 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. Plainly, the appellant’s file was not being appropriately monitored by the IPTO in the interim. Further, her failure to file the relevant I & E Statements was apparently not viewed with any degree of consternation by the IPTO. This can be inferred from the fact that following the last reminder, notwithstanding her failure to file the I & E Statements for more than eight years, on 11 October 2010, the 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 (as alluded to at[4]above) were abruptly preferred against the appellant.

The salient facts

During the proceedings below, 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. The offences occurred during the following periods: April 2002 to September 2002; April 2003 to June 2003; and July 2003 to September 2003. An additional 27 charges under the same provision were taken into consideration for the purpose of sentencing. The 27 charges which were taken into consideration essentially pertained to the appellant having failed to file her I & E Statements from October 2003 to March 2011. Evident from the particulars of each of the 27 charges, 24 charges were preferred for every three month period (viz, OAS 000407 to 000430-MSC-2011) and three charges were preferred for every six month period (viz, OAS 000431 to 000433-MSC-2011) that the appellant did not file an I & E Statement.

During the appeal, I queried the Prosecution at some length as to why there had been such a substantial lapse in time between the appellant’s commission of the first offence in 2002 and her eventual prosecution in 2011. Counsel for the Prosecution, Mr Darryl Soh (“Mr Soh”), informed the court that the IPTO does not prosecute offenders under s 82(1)(a) of the BA immediately after each infraction. This is to allow bankrupts an opportunity to file their I & E Statements and thereby rectify their earlier omission(s).⁵However, Mr Soh also candidly acknowledged that the IPTO’s current policy (with effect from January 2010) is to prosecute such offences after three years of persistent non-compliance.⁶ Mr Soh also stated that...