Lim Li Ling v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 19 October 2006
• Neutral Citation: [2006] SGHC 184
• Docket Number: Magistrate's Appeal No 76 of 2006
• Date: 19 October 2006
• Published date: 20 October 2006
• Year: 2006
• Plaintiff Counsel: RS Bajwa (Bajwa & Co)
• Citation: [2006] SGHC 184
• Defendant Counsel: Hay Hung Chun (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Criminal Law,Criminal Procedure and Sentencing,Forms of punishment,Meaning of phrases "mandatory minimum sentence" and "specified minimum sentence",Section 5(a) Common Gaming Houses Act (Cap 49, 1985 Rev Ed),Common Gaming Houses Act,Offender charged and pleading guilty to charge for assisting carrying on of public lottery under s 5(a) Common Gaming Houses Act,Scope of jurisdiction to grant probation for offence under s 5(a) Common Gaming Houses Act where offender not young offender,Section 5(a) Common Gaming Houses Act (Cap 49, 1985 Rev Ed), s 5(1) Probation of Offenders Act (Cap 252, 1985 Rev Ed),Whether term of imprisonment under s 5(a) mandatory while fine optional,Statutory offences,Offender sentenced to term of imprisonment and fine

19 October 2006

Tay Yong Kwang J:

1 This was an appeal against sentence. The appellant, a 34-year-old female, was charged with and pleaded guilty to assisting in the carrying on of a public lottery under s 5(a) of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed) (“CGHA”). The material facts were not in contention and were as set out in the agreed statement of facts. In summary, the appellant had committed the offence in question by helping to carry on an illegal “10,000 characters” lottery (also known as “4D”). Her areas of responsibility extended to keying betting data received from 4D collectors into her laptop and transmitting this data to an unidentified location in Johor Baru. These activities were conducted from the appellant’s sister’s home. When the police raided this place, they found 84 pieces of faxed paper which recorded more than $55,000 worth of betting stakes.

2 The charge against the appellant under the CGHA read:

You, Lim Li Ling, F/34 yrs, NRIC: S7105204D, are charged that you on or about the 26^th day of November 2005 at or about 5.30 p.m., at Number 18-D St Michael’s Road, Singapore, did assist in carrying on of a public lottery, to wit, “10,000” characters, and you have thereby committed an offence punishable under Section 5(a) of the Common Gaming Houses Act, Chapter 49.

Following her plea of guilt, the appellant was sentenced to six months imprisonment and a fine of $200,000, with 12 months’ imprisonment in default. She then filed the present appeal to the High Court against her sentence.

3 After hearing the arguments presented by both counsel, I allowed the appeal in part by reducing the fine to $80,000, with four months imprisonment in default. The six-month imprisonment term was left unaltered. I now give my reasons.

4 At this preliminary juncture, I pause to highlight that the present case was of particular significance because it occasioned a reconsideration of the erstwhile sentencing practice vis-à-vis offences under s 5(a) of the CGHA (“s 5(a)”). Section 5(a) provides as follows:

Assisting in carrying on a public lottery, etc.

5. Any person who —

(a) assists in the carrying on of a public lottery;

…

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $20,000 and not more than $200,000 and shall also be punished with imprisonment for a term not exceeding 5 years.

[emphasis added]

For the reasons set out below, I was of the view that the current practice of treating both the sentences of fine and of imprisonment under s 5(a) as mandatory was erroneous.

The proceedings before the magistrate

5 As stated at the outset, the prosecution and defence were generally agreed on all material facts relating to the commission of the offence. A Newton hearing was originally fixed to resolve certain areas of factual dispute. This hearing was subsequently vacated because parties reached an agreement on the facts as reflected in the statement of facts. The case thus proceeded directly to sentencing before the magistrate.

6 In her mitigation plea before the magistrate, the appellant relied on the fact that she had, at the material time, been afflicted with post-partum depression and carpal tunnel syndrome. According to her counsel, she was constantly tormented by a strong sense of guilt because these illnesses had placed her family under immense financial pressure. It was in this fraught state that she agreed to assist in the illegal data entry of 4D numbers. Counsel for the appellant urged the magistrate to take a compassionate view of the appellant’s circumstances. In view of the appellant’s medical condition, her counsel urged the magistrate to call for a pre-sentence report with a view to placing the appellant on probation.

7 The prosecution in turn confined itself to highlighting that probation was not appropriate in view of the appellant’s age and the nature of her offence, and left the question of sentence to the magistrate’s discretion.

8 The magistrate rejected counsel for the appellant’s submissions and agreed with the prosecution that this was a case where probation was not appropriate, principally because the offence was a serious one, involving high betting stakes, use of high-technology equipment and also the involvement of syndicated operations: PP v Lim Li Ling [2006] SGMC 8 (“Grounds of Decision”) at [4] and [5]. The magistrate went on to observe that incarceration, as mandated by s 5 of the CGHA, would not be inappropriate on the present facts as incarceration would ensure the appellant’s rehabilitation whilst at the same time arresting any suicidal tendencies that she might display under the watchful eyes of the wardens: Grounds of Decision at [6].

9 On the issue of the appropriate quantum of punishment, the magistrate began by observing that s 5 of the CGHA imposed a mandatory sentence of imprisonment and fine: Grounds of Decision at [10] and [11]. The magistrate generally gave little weight to the appellant’s need to discharge her role as a mother. Though he was sympathetic to the appellant’s family, and more particularly her child, he did not doubt that the appellant had family members who would take care of the child’s welfare whilst she was being rehabilitated: Grounds of Decision at [11]. In light of the high value of bets (to the amount of $55,106.20), the sophisticated equipment used to transmit the data, and the appellant’s involvement with an intricate cross-border syndicate, the magistrate was of the view that the statutory maximum fine of $200,000 should be imposed: Grounds of Decision at [11] and [12]. However, as the appellant was a first offender who had pleaded guilty and in view of the circumstances leading to her commission of the offence, a six-month term of imprisonment was considered sufficient: Grounds of Decision at [12]. The total sentence imposed on the appellant was accordingly a term of six months’ imprisonment and a fine of $200,000.

The appeal

10 Dissatisfied with this sentence, the appellant filed the present appeal. In this appeal, counsel for the appellant raised two alternative grounds of contention. The primary relief which the appellant sought was the substitution of her sentence with a term of probation. In the event that probation was not granted, the appellant additionally sought a reduction of her sentence on the grounds that it was manifestly excessive.

The parties’ submissions on appeal

11 The appellant’s primary ground of appeal was that the magistrate had erred in deciding that probation was inappropriate. Counsel for the appellant submitted that the magistrate had failed to give sufficient weight to the appellant’s personal mitigating circumstances such as her string of medical ailments, her affliction with depression and her financial difficulties. Had these factors been properly weighed against the nature of the offence under s 5(a), a probation order would have been found to be appropriate in the appellant’s circumstances.

12 Second, and in the alternative, counsel contended that the appellant’s sentence was manifestly excessive and at odds with the established sentencing practice for first offenders under s 5(a). In particular, counsel submitted that the magistrate had omitted to record and consider the exact extent of the appellant’s role in the modus operandi of the public lottery, which had been pleaded as part of her oral mitigation before the magistrate. It was said that whilst the faxed papers found at the appellant’s sister’s house recorded bets totalling $55,106.20, the appellant had only been responsible for entering bets of approximately $4,000. Her role vis-à-vis the balance value of approximately $51,000 was limited to retaining the pieces of faxed paper as backup records in case the relevant entry clerk lost the information.

13 The prosecution responded to the appellant’s contentions by raising the following arguments. On the issue of probation, the prosecution submitted that the magistrate had not erred in refusing to grant probation. To begin with, the court’s jurisdiction under s 5(1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“the POA”) did not extend to the appellant. In any event, an order of probation would not have been appropriate in the present circumstances. Sentences awarded under s 5(a) needed to incorporate a sufficiently deterrent element to reflect the serious nature of such offences. This case involved sophisticated and organised cross-border criminality and the mitigating factors highlighted by the appellant carried little or no weight. The appellant’s commission of the offence was attributable to her desire for financial gain rather than to her ill-health.

14 The prosecution additionally submitted that the sentence imposed by the magistrate was reasonable. The appellant’s averments regarding her partial involvement in the total value of bets had not been included in the statement of facts, the truth of which the appellant had voluntarily accepted. In any event, this alleged fact did not detract from the appellant’s general involvement in an illegal public lottery that had cumulatively involved $55,106.20 worth of illegal bets. It was submitted that the magistrate, having accurately distilled the relevant aggravating and mitigating factors, had applied the correct sentencing precedents to the present facts.

The issues arising on appeal

15 In essence, this appeal raised two related, but distinct, questions: (a) whether the magistrate erred in refusing to grant probation; and (b) whether the sentence imposed by the magistrate was in any event manifestly excessive. For the reasons that follow, I held that these two questions should respectively be answered in the prosecution’s and the appellant’s favour. I accordingly affirmed the magistrate’s decision to refuse probation but reduced the sentence of fine imposed on the ground that it was manifestly excessive.

The issue of probation

16 As the prosecution rightly pointed out, the...