Koh Jaw Hung v PP

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 19 November 2018
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9161 of 2018
• Date: 19 November 2018

Koh Jaw Hung

and

Public Prosecutor

[2018] SGHC 251

Hoo Sheau Peng J

Magistrate's Appeal No 9161 of 2018

High Court

Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Vice-related offences — Section 146A Women's Charter (Cap 353, 2009 Rev Ed) — Whether to extend benchmark sentences for keeping, managing or assisting in management of place of assignation or brothel to offence of operating or maintaining remote communication service — Sections 146A, 147 and 148 Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Fines — Disgorgement of criminal proceeds — Determination of offender's profit, gain or benefit — Offender incurred expenses in course of illegal enterprise — Whether accounting for expenses incurred appropriate

Held, dismissing the appeal:

[Editorial note: The paragraphs indicated in parentheses in holdings (1), (3), (7) and (8) are not reported. They can be found in the unreported version of the judgement ([2018] SGHC 251) on LawNet.]

(1) Applying the sentencing benchmarks set in Poh Boon Kiat v PP[2014] 4 SLR 892 (“Poh Boon Kiat”), the starting point for sentencing in a case involving Category B culpability and Category 2 harm would be six months' imprisonment. There was no reason to disturb the sentences of five months' imprisonment imposed for each of the charges under s 140(1)(d) and six months' imprisonment imposed for the charge under s 146(1) of the Act: (at [27] and [31]).

(2) It was appropriate to extend the Poh Boon Kiat benchmarks for offences under ss 147 and 148 to offences under s 146A of the Act (for operating a remote communication service). The offences created by s 146A(1) were the virtual equivalent of the offences of managing a place of assignation or a brothel. Section 146A of the Act had been enacted for the purpose of extending the reach of the law in respect of the same public interest protected by ss 147 and 148 so as to allow for an equally robust response to new technologies and the evolving manner in which vice syndicates organise themselves. In this connection, the prescribed punishment for offences under s 146A of the Act was exactly the same as that provided for in its “offline” counterparts, ss 147(1) and 148: at [35], [36], [38] and [39].

(3) In respect of the charge of operating a remote communication service under s 146A(1)(a) of the Act, the appellant's culpability fell within Category B and the harm caused fell within Category 2. Applying the benchmarks, the starting point would be three months' imprisonment, with an indicative range of a fine of $3,000 to a term of nine months' imprisonment. Against this, it could not be said that the sentence of three months' imprisonment imposed by the District Judge was manifestly excessive: (at [41]).

(4) While fines were most commonly employed as a means of punishing the offender, it was well-established that a fine might also be imposed as a rough and ready method of confiscating the proceeds of crime. That said, the sentencing court had to remain mindful of the offender's ability to pay in deciding on the quantum of fine to be imposed: at [44] and [54].

(5) The rationale for imposing a confiscatory fine was to disgorge the profit, gain or benefit received by the offender. As a starting point, the total earnings, takings or revenue received by an offender would represent his profit. However, where the offender was able to adduce evidence of expenses incurred, it would be fair and reasonable to take such expenses into account. This did not mean that full deduction had to be given for all expenses claimed by the offender; it remained open to the Prosecution to challenge the evidence of the offender where the expenses incurred were unrelated, unnecessary or unreasonable: at [48].

(6) On the facts, the appellant had incurred about $5,500 in the creation of a vice website, and would have had to pay for hotel rooms, air tickets and other miscellaneous expenses. In the absence of objective evidence as to the quantum of the expenses incurred by the appellant, the District Judge was entitled to reject the appellant's bare assertion that his profit was only $10,000, and instead take the rough and ready approach of assuming that about half of the appellant's gross earnings of $33,145 had been incurred as expenses. Accordingly, the fine of $16,000 was not manifestly excessive: at [51], [53] and [55].

(7) Where a mixed sentence of imprisonment and a fine had been imposed, the overall term of imprisonment (where the accused had to serve the default term of imprisonment as well) should not exceed the proper tariff for the offence or be wholly disproportionate to the offence: (at [58]).

(8) The terms of imprisonment in default were to be set at a level sufficient to deter the individual offender from evading payment of the fine. This would necessarily be a fact-specific exercise taking into account the particular circumstances of the case. In the circumstances, the overall sentence, taking into account the in-default term of three months and one week's imprisonment, did not exceed the tariff for the offences nor was it wholly disproportionate to the offending: (at [61] and [62]).

Case(s) referred to

Chew Tiong Wei v PP Magistrate's Appeal No 9032 of 2016 (17 August 2016) (refd)

Low Meng Chay v PP [1993] 1 SLR(R) 46; [1993] 1 SLR 569 (folld)

Poh Boon Kiat v PP [2014] 4 SLR 892 (folld)

PP v Chew Tiong Wei [2016] SGDC 59 (refd)

PP v Quek Chin Choon [2015] 1 SLR 1169 (refd)

Facts

The appellant single-handedly set up and ran an online vice ring involving a total of seven prostitutes. The vice ring remained in operation for a period of over a month until the appellant was apprehended together with two of the prostitutes under his charge. An accounts book recovered from the appellant's residence showed that he had received a gross total of $33,145 in prostitution earnings.

The appellant pleaded guilty to four charges under Pt XI of the Women's Charter (Cap 353, 2009 Rev Ed) (“Act”): one charge of living on immoral earnings under s 146(1) of the Act, one charge of receiving a prostitute under s 140(1)(d) of the Act, one charge of harbouring a prostitute...