Liew Zheng Yang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 13 October 2017
• Neutral Citation: [2017] SGHC 257
• Plaintiff Counsel: Eugene Singarajah Thuraisingam and Genevieve Pang (Eugene Thuraisingam LLP)
• Docket Number: Magistrate’s Appeal No 9253 of 2016
• Date: 13 October 2017
• Hearing Date: 13 October 2017
• Subject Matter: Sentencing,Criminal Procedure and Sentencing,Principles
• Year: 2017
• Defendant Counsel: John Lu and Rimplejit Kaur (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 257
• Published date: 10 November 2017

Steven Chong JA (delivering the judgment of the court ex tempore):

In Liew Zheng Yang v Public Prosecutor [2017] SGHC 157 (“the Judgment”), I allowed the appeal by the appellant, Liew Zheng Yang (“Liew”), against his conviction of two charges of abetting in a conspiracy to traffic controlled drugs under s 5(2) and s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), read with s 107(b) of the Penal Code (Cap 224, 2008 Rev Ed) (collectively, “the Conspiracy Charges”). I set aside his conviction for the Conspiracy Charges, and convicted him on two reduced charges of attempted possession of the same drugs under ss 8(a) and 12 of the MDA (“the Attempted Possession Charges”). The drugs in question were 34.53 grams of cannabis and 68.21 grams of cannabis mixture, for the first and second charges respectively.

The present matter concerns the sentences to be imposed in respect of the Attempted Possession Charges. In the course of this judgment, I will also address a new sentencing framework proposed by the Prosecution for the offence of drug possession.

Liew had also pleaded guilty to one charge of consumption of a cannabinol derivative under s 8(b)(ii) of the MDA (“the Consumption Charge”). The district judge sentenced Liew to six months’ imprisonment for the Consumption Charge, and Liew did not appeal against this sentence. Subsequently, after the Judgment was delivered, Liew brought Criminal Motion No 32 of 2017 (“CM 32/2017”) to seek an extension of time to file a notice of appeal against the sentence imposed for the Consumption Charge. I heard and dismissed CM 32/2017 on 19 September 2017, and stayed the execution of the sentence pending the determination of the sentences for the Attempted Possession Charges. Given that Liew has been convicted of three charges, the sentences for at least two of these charges must run consecutively: s 307(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

Parties’ submissions

Parties are in agreement that the sentences for the Attempted Possession Charges should run consecutively with the sentence for the Consumption Charge. They differ, however, on the appropriate sentence for the Attempted Possession Charges.

Liew’s counsel, Mr Eugene Thuraisingam (“Mr Thuraisingam”), submits that a sentence of no more than 12 months’ imprisonment should be imposed for each of the Attempted Possession Charges. This will result in a global sentence of no more than 18 months’ imprisonment.¹

The Prosecution, on the other hand, proposes the following indicative starting points for sentencing first-time offenders of drug possession involving cannabis and cannabis mixture (“the Indicative Table”):²

Cannabis	Cannabis Mixture	Imprisonment
Up to 15g	Up to 30g	6–18 months
15–165g	30–330g	18 months–3 years
165–330g	330–660g	3–5 years
330–500g	660–1000g	5–7 years
More than 500g	More than 1000g	7–10 years

The indicative starting points in the Indicative Table are based on the quantity of drugs involved. The Prosecution submits that the Indicative Table is in line with the sentencing approach for drug trafficking offences, which also begins with indicative starting points based on the quantity of drugs involved, before adjusting the sentence based on the offender’s culpability and the presence of relevant aggravating or mitigating factors: Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”) at [44].³ The Prosecution also relies on Public Prosecutor v Jumahat Bin Japar [2016] SGDC 278 (“Jumahat”) as a precedent where the district judge had agreed with similar indicative starting points in relation to the possession of diamorphine and methamphetamine.⁴

On the basis of the Indicative Table, the Prosecution submits that Liew should be sentenced to a term of at least 24 months’ imprisonment for each of the Attempted Possession Charges and a global sentence of at least 30 months’ imprisonment.⁵

My Decision The Indicative Table

In my view, it is not appropriate to adopt the indicative starting points proposed by the Prosecution. The Court of Appeal observed in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 at [30] that such an approach (which was referred to as the “multiple starting points” approach) “is suitable where the offence in question is clearly targeted at a particular mischief which is measurable according to a single (usually quantitative) metric that assumes primacy in the sentencing analysis” [emphasis in original]. The offence of drug trafficking was cited by the Court of Appeal as a “paradigmatic” example of such offences.

However, this does not mean that all drug-related offences are compatible with a multiple starting points approach. In Public Prosecutor v Tan Thian Earn [2016] 3 SLR 269, See Kee Oon JC (as he then was) expressly declined to adopt a “multiple starting points” approach for offences under s 10A(1) of the MDA. Section 10A(1) of the MDA proscribes the manufacture, supply, possession, import or export of any controlled equipment, materials, or substances which are useful for the manufacture of a controlled drug.

See JC explained (at [35]–[36]) that a “multiple starting points” approach was unsuitable for s 10A(1) offences...