Lim Kim Seng and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 01 February 1992
• Neutral Citation: [1992] SGHC 21
• Docket Number: Magistrate's Appeal No 473/90/01
• Date: 01 February 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Chong Eng Chong (Choo & Joethy)
• Citation: [1992] SGHC 21
• Defendant Counsel: Gurdip Singh (George Sandosham Gurdip & Partners),Yang Ing Loong (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Mitigating factors,Deterrence,Armed robbery,Discount for plea of guilty,ss 7(2)(a) & 178 Criminal Procedure Code (Cap 68),Co-operation with the police,Sentencing,Taking into consideration other offences,Schedule to be produced after plea is taken,Procedure,Whether previous convictions of dissimilar offences relevant,Principles,Schedule of offences,Minimum mandatory sentence,Whether sentence manifestly excessive,Whether public interest served,Whether trial judge failed to consider mitigating factors with open mind,Financial difficulties,Criminal Procedure and Sentencing

This is an appeal against sentence. The appellants were charged as follows:

First charge: DAC 10272/90 (exh P1A)

You,

B1: Lim Kim Seng, m/26 yrs

NRIC: 1782494-E

B2: Lim Yew Boo, m/26 yrs

NRIC: 1746643-G

are charged that you, on or about 23 September 1990, at about 1.20am, at the car park of Blk 852 Tampines St 82, Singapore, and in furtherance of the common intention of you both, did commit robbery of the following items:

(a) cash M$123;

(b) cash S$95;

(c) one OUB ATM card;

(d) one Singapore identity card bearing No 0121015-G;

(e) one silver-coloured Rolex wrist watch valued $1,300, and

(f) one red-coloured Honda Prelude motor car bearing reg no SBN971A valued $28,000

in the possession of one Soong Kwong Yin and at the time of committing the robbery you were armed with deadly weapons, to wit, two kitchen knives with 15cm blade each, and you have thereby committed an offence punishable under ss 392 and 397 read with s 34 of the Penal Code (Cap 224).

Second charge: DAC 10564/90 (exh P3)

You,

B1: Lim Kim Seng, m/26 yrs

NRIC: 1782494-E

B2: Lim Yew Boo, m/26 yrs

NRIC: 1746643-G

are charged that you, on or about 15 September 1990, at about 12.30am, in a public toilet at Whitley Road Hawker Centre, Thomson Road, Singapore, and in furtherance of the common intention of you both, did commit robbery of the following items:

(a) one Rolex wrist watch valued $2,800; and

(b) a black-coloured wallet containing cash $200

in the possession of one Kuoh Khin King and at the time of committing the robbery you were armed with deadly weapons, to wit, two pen knives and you have thereby committed an offence punishable under ss 392 and 397 read with s 34 of the Penal Code (Cap 224).

Third charge: DAC 10566/90 (exh P5)

You,

B1: Lim Kim Seng, m/26 yrs

NRIC: 1782494-E

B2: Lim Yew Boo, m/26 yrs

NRIC: 1746643-G

are charged that you, on or about 25 July 1990, at about 4am at the second floor staircase landing of Blk 82 Bedok North Road, Singapore, whilst being jointly concerned in committing robbery of a wallet containing cash $165 and a Singapore identity card bearing No 1695177-C in the possession of one Chua Kian Sin, did voluntarily cause hurt to Chua Kian Sin, to wit, by inflicting a cut wound on his right arm and you have thereby committed an offence punishable under s 394 of the Penal Code (Cap 224).

Fourth charge: DAC 10567/90 (exh P6)

You,

B1: Lim Kim Seng, m/26 yrs

NRIC: 1782494-E

B2: Lim Yew Boo, m/26 yrs

NRIC: 1746643-G

are charged that you, on or about 15 August 1990, at about 1.05am inside lift `A` of Blk 244 Tampines St 21, Singapore, and in furtherance of the common intention of you both, did commit robbery of the following items:

(a) one gold bracelet valued $290;

(b) one gold ring valued $100; and

(c) cash $40

amounting to a total value of $430 in the possession of one Goh Jee Chuan, f/23 years and at the time of committing the robbery you were armed with deadly weapons, to wit, two kitchen knives with 15cm blade each, and you have thereby committed an offence punishable under ss 392 and 397 read with s 34 of the Penal Code (Cap 224).

The first appellant

The appellants pleaded guilty. The first appellant was given:

(a) DAC 10272/90 - four years` imprisonment

P1A and 12 strokes of caning.

(b) DAC 10564/90 - four years` imprisonment and

P3 12 strokes of caning

(c) DAC 10566/90 - six years` imprisonment and

P5 12 strokes of caning

(d) DAC 10567/90 - four years` imprisonment and

P6 12 strokes of caning

The court ordered the sentences of imprisonment in DAC 10272/90 and DAC 10566/90 to run consecutively as required by s 18 of the Criminal Procedure Code (Cap 68) (`CPC`). The other sentences were to run concurrently. The first appellant, who was 26 years of age would have had to serve ten years` imprisonment and suffer 24 strokes of the cane.

The second appellant

The second appellant was given:

(a) DAC 10272/90 - three years` imprisonment plus

P1A

12 strokes of caning

(b)

DAC 10564/90

-

three years` imprisonment plus

P3

12 strokes of caning

(c)

DAC 10566/90

-

five years` imprisonment plus

P5

12 strokes of caning

(d)

DAC 10567/90

-

three years` imprisonment plus

P6

12 strokes of caning

The sentences of imprisonment in DAC 10272/90 and DAC 10566/90 were to run consecutively and the others to run concurrently. The second appellant who was also 26 years of age would have had to serve eight years` imprisonment and suffer 24 strokes of the cane. The longest term of imprisonment was in the case of both the appellants ordered to run consecutively to comply with s 18 of the CPC which requires the sentencing court to order at least two offences to run consecutively where at one trial a person is convicted and sentenced to imprisonment for at least three distinct offences. The appellants were charged with offences for which there is prescribed a minimum term of imprisonment and minimum strokes of the cane.

The facts in respect of the first charge are that on 23 September 1990 at about 1.20am, the complainant, upon parking his car in his car park and alighting therefrom, was held by both the appellants, who were then armed with fruit knives with blades measuring 15cm in length. The two appellants ordered the complainant into the rear seat where one of them kept him pinned down while the other (the second appellant) drove them away in the complainant`s car. Along the way, the complainant was relieved of cash and valuables. They also forced the complainant to reveal to them his personal identification number (`PIN`) with which his ATM card could be used to operate his account.

At a secluded spot off Tampines Road, they ordered the complainant out of his car. They gave him $10 as taxi fare for him to go home and then drove off in his car. The complainant telephoned the police from a nearby house and reported the incident. Police patrol cars were alerted. The appellants were spotted along Paya Lebar Road by a patrol car which trailed them to Lorong 11, Geylang, where they were intercepted and then arrested after a short chase. The items robbed from the complainant were recovered from both the appellants, including the knives used by them in the robbery. The appellants were looking for an OUB automatic teller machine from which to withdraw money from the complainant by using his PIN when they were spotted by the patrol car. The appellants were charged with committing robbery under ss 392 and 397 of the Penal Code (Cap 224) (`the Code`). They were also charged with abducting the complainant, an offence under s 365 of the Code. The offences were committed in the same transaction.

The facts in respect of the second, third and fourth charges refer to offences which are adequately set out in the charges.

Both the appellants were represented by counsel before the learned senior district judge. Counsel made four main points, the first being that the appellants were forced to commit the offences as they had been under pressure from bookies and loan sharks to whom they had become heavily indebted from losses incurred in betting on horse racing. The second point was that both the appellants had co-operated with and made frank admissions to the police of their other past offences. The third point urged before the learned senior district judge was the fact that both the appellants had decided to plead guilty to the charges that were preferred against them. The fourth point was that both the appellants did not have any record of previous convictions for offences of a similar kind as those alleged in the charges before the court. The appellants gave their consent to take into consideration outstanding offences and admitted committing the offences.

The appeal

The decision of the learned senior district judge was attacked by counsel for the appellants in a number of ways which can be summarized as follows:

(a) that the learned judge rejected the mitigation plea made in respect of financial harassment without considering its merits. The judicial mind was closed to a mitigating factor;

(b) that the learned judge failed to appreciate the worth of the co-operation the appellants had given to the police and its significance;

(c) that the fact that the appellants were caught red-handed in respect of one offence was regarded as if the appellants had been caught red-handed in respect of all the offences to which the appellants had pleaded guilty and the offences they had admitted for purposes of determining sentence;

(d) that the learned judge had made reference to a defect in character unsupported by the evidence; and

(e) that the totality of the sentence was not sufficiently considered when the need for a deterrent sentence was considered having regard to the facts and circumstances of this case.

Financial difficulties

The prosecution in its statement of facts stated: `Investigation revealed that on 23 September 1990 at about 1am, both the accused persons decided to commit robbery after having lost in gambling.`

The judgment on the question of pressure from the bookies put forward as a mitigating factor is in the following terms:

In mitigation, the learned counsel for both the accused informed the court to the effect that his clients had had no alternative but to commit the offences in question as they had been under pressure from bookies and loan sharks to whom they had become heavily indebted from losses incurred in betting on horse-racing. In my view, if those were indeed the instructions received from both the accused they would have been better left unsaid, since they hardly provided anything that could be considered as being mitigatory of what they had committed.

It was submitted that it is not unusual for persons in debt...