Keeping Mark John v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 17 July 2017
• Neutral Citation: [2017] SGHC 170
• Plaintiff Counsel: Appellant in person
• Date: 17 July 2017
• Docket Number: Magistrate’s Appeal No 9314 of 2016
• Hearing Date: 15 March 2017
• Subject Matter: Benchmark Sentences,Appeals,Sentencing,Criminal Procedure and Sentencing
• Year: 2017
• Defendant Counsel: Nathaniel Khng (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 170
• Published date: 20 July 2017

Chao Hick Tin JA: Introduction

The appellant, Keeping Mark John (“the Appellant”), pleaded guilty before a district judge (“the DJ”) to a single charge of abetment of cheating by personation under s 419 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”). This is an offence that may be punished with a fine, or with up to five years’ imprisonment, or with both. The Appellant was sentenced to 12 months’ imprisonment by the DJ, whose grounds of decision can be found at Public Prosecutor v Keeping Mark John [2016] SGDC 344 (“the GD”). The Appellant appealed against the DJ’s decision.

On appeal, the Prosecution argued before me that a term of 12 months’ imprisonment was appropriate for the Appellant, and was also a “fair starting point” for an offence under s 419 of the PC (a “s 419 offence”) committed pursuant to a scheme by a syndicate to smuggle a person into or out of Singapore by air.¹

At this juncture, I would like just to touch briefly on a matter of terminology. It seems to me that the term “starting point” may not be entirely appropriate, and that the term “benchmark sentence” may well be preferable. As the Court of Appeal recently explained in Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37, which had yet to be issued at the time this appeal was heard, the starting point approach “calls for the identification of a notional starting point which will then be adjusted taking into account the aggravating and mitigating factors in the case” (at [27]). It is generally used for regulatory offences (at [28]). The benchmark approach, on the other hand, “calls for the identification of an archetypal case (or a series of archetypal cases) and the sentence which should be imposed in respect of such a case” (at [31]). It is “particularly suited for offences which overwhelmingly manifest in a particular way or where a particular variant or manner of offending is extremely common and is therefore singled out for special attention” (at [32]). In the present case, what I was addressing was a sentencing guideline for s 419 offences committed in the context of people smuggling by syndicates, whether transnational or local. Given this degree of specificity, it seems to me that “benchmark sentence” would be the more appropriate term.

On the substance of the Prosecution’s arguments, having regard to the relevant precedents, I disagreed that the benchmark sentence for a s 419 offence should be 12 months’ imprisonment. Instead, in my view, the benchmark sentence ought to be four to six months’ imprisonment. Accordingly, I found the sentence imposed on the Appellant manifestly excessive. Given that the Appellant had, by the date of the hearing before me, effectively served a nine-month imprisonment sentence, taking into account remission, I held that he could be released forthwith. As the Appellant indicated that he was amenable to being released only “tomorrow morning” as opposed to on the same afternoon that the appeal was heard, I ordered his release on the morning of the following day, viz, 16 March 2017. I now set out the grounds for my decision.

The facts

The background to this case was set out in detail by the DJ at [5]–[13] and [25]–[30] of the GD. As the facts were undisputed, I will only give a brief summary of the material facts, which are as follows.

The Appellant is a 45-year-old British national. He was recruited by a people smuggling syndicate to assist in facilitating the illegal entry of their customers into another country. The customer in the present case was one Vigneshwararaja Kajanan (“Kajanan”), a Sri Lankan national. Kajanan had paid the syndicate to facilitate his entry (and migration) to Auckland, New Zealand. The Appellant’s role in the scheme was to check in for a flight to Auckland which had been booked in his own name. After having done so and having received his boarding pass, he handed it to Kajanan, who then used the boarding pass and a forged passport in an attempt to board the flight to Auckland. The Appellant received US$600 for his role in this scheme.²

The Appellant admitted to also having taken part in a similar operation in Tokyo in 2016, for which he was paid a total of US$500.³

The decision below

In the court below, the Prosecution referred the DJ to two District Court precedents, namely, Public Prosecutor v Rayappen Thevakumaran (District Arrest Case No 940175 of 2015) (“Rayappen”) and Public Prosecutor v Thirupathi Pillai Thevaraj Satheesh (District Arrest Case No 919518 of 2016) (“Thirupathi”): see the GD at [17]. These two cases, which I will refer to collectively as “the Passport Cases”, related to the abetment of possession of a false passport under s 47(6) of the Passports Act (Cap 220, 2008 Rev Ed) (“the PA”) read with s 109 of the PC. They were the only precedents cited to the DJ,⁴ who was not referred to any precedent involving s 419 of the PC; in fact, Prosecution had submitted to her that the Passport Cases were more relevant than cases on s 419 offences.⁵ I should point out that, as was the case at the hearing of this appeal, the Appellant was not represented in the court below.

I will later discuss (at [32]–[37] below) the relevance of the Passport Cases to the present case. For present purposes, it suffices to note that the DJ appeared to accept that the Passport Cases were directly relevant to the Appellant’s case, and accordingly sentenced the Appellant to 12 months’ imprisonment: see the GD at [31].

The arguments on appeal The Appellant’s arguments

On appeal, the Appellant argued that his case was less serious than the Passport Cases as, unlike the offenders in those cases, he had not been involved in providing false passports.⁶

The Appellant also denied being part of a syndicate, claiming that he had only agreed to help the syndicate concerned as he was desperate for money.⁷

The Prosecution’s arguments

At the hearing before me, the Prosecution acknowledged that relevant precedents on s 419 of the PC had not been cited to the DJ (these cases are discussed below at [15]–[22]). Be that as it may, the Prosecution argued, if the DJ had considered those precedents, she would have imposed an even more severe sentence.⁸ The Prosecution emphasised, in particular, two significant developments which had occurred since the precedents were decided. First, terrorism had emerged as a major security concern and had been linked to people smuggling. Second, Parliament had amended the law to enhance the maximum penalty prescribed for s 419 offences. In addition, the Prosecution maintained its argument that the Passport Cases were still germane to s 419 offences.

My decision

I will begin by discussing the appropriate benchmark sentence for s 419 offences committed in the context of people smuggling, before applying it to the facts of the present case.

The appropriate benchmark sentence

In determining the appropriate benchmark sentence for s 419 offences that are committed in the context of people smuggling, it is important to first consider the relevant precedents decided under s 419 of the PC itself. Next to be considered is whether recent developments, both legal and factual, justify an increase in the benchmark sentence. Finally, I will examine the relevance of the Passport Cases.

Relevant precedents concerning s 419 of the PC

There are two relevant sentencing precedents decided under s 419 of the PC, namely, Chua Bee Lay v Public Prosecutor (Magistrate’s Appeal No 152 of 1995) (“Chua Bee Lay”) and Public Prosecutor v Ng Tai Tee Janet and another [2000] 3 SLR(R) 735 (“Janet Ng”).

Chua Bee Lay is an unreported decision by the District Court, where the accused person (like the Appellant in the present case) was sentenced to 12 months’ imprisonment for s 419 offences. The case is summarised in Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) (“Sentencing Practice”) at pp 855–856 as follows:

Offender pleaded guilty to two counts of abetment of conspiracy to cheat by personation under s 419 and one count of cheating under s 420. A similar charge of s 420 was taken into consideration. The offender had been recruited into a syndicate smuggling alien nationals. On her part, she recruited another member into the syndicate. The role of the offender was to escort nationals from China into Japan using forged Singapore international passports. For the first charge, the offender was involved in a conspiracy to provide a Chinese national with a Singapore passport to gain entry to Japan. The second charge alleged that the offender conspired to cheat an airline official into allowing the Chinese national to board a United Airlines flight by using a boarding pass which had been issued to another person. For the third charge, the offender cheated the immigration authorities by inducing them to issue a new passport by making a false representation that her godson had scribbled in her passport and had damaged it. In fact, she had destroyed her old passport to remove evidence of her smuggling trips. The fourth charge which was taken into consideration was similar to the third charge. In mitigation, it was said that the offender was of poor health. The District Judge felt that the overwhelming consideration was that of public policy which required a severe sentence to deter criminals from using Singapore as a transit point to smuggle aliens.

Sentence imposed by the trial court: One year’s imprisonment each on the s 419 charges and two years’ imprisonment on the s 420 charge. One one-year term and the two-year term were ordered to run consecutively. Total: three years’ imprisonment.

Results of appeal: Offender withdrew appeal.

The Prosecution placed substantial reliance on Chua Bee Lay. In response to a query by this court, the Prosecution clarified that it considered Chua Bee Lay to be the most relevant precedent for the present case.⁹

However, I entertained substantial...