Loo Pei Xiang Alan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 20 August 2015
• Neutral Citation: [2015] SGHC 217
• Date: 20 August 2015
• Docket Number: Magistrate’s Appeal No 56 of 2015
• Published date: 24 September 2015
• Plaintiff Counsel: The appellant in person
• Hearing Date: 05 August 2015
• Defendant Counsel: Teo Lu Jia (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Enhanced sentences for repeat offenders,Criminal Procedure and Sentencing,Drug trafficking

Chao Hick Tin JA:

The appellant pleaded guilty to four drug-related charges, with nine other drug-related charges taken into consideration, and was given a total sentence of 17 years and three months’ imprisonment and 18 strokes of the cane. He now appeals against sentence. The four charges to which he pleaded guilty and the corresponding sentences imposed were as follows: One charge for trafficking 11.64 grams of methamphetamine – 16 years’ imprisonment and 15 strokes of the cane; One charge for consumption of methamphetamine – five years’ imprisonment and three strokes of the cane; and Two charges for possession of two different Class A drugs – 15 months’ imprisonment on each charge.

The sentence for one of the possession charges was ordered to run consecutively with the sentence for the trafficking charge.

This was not the first time the appellant had committed drug-related offences: he had prior convictions for drug trafficking and consumption. In view of these antecedents, the mandatory minimum sentences prescribed under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) applied for both the trafficking charge and the consumption charge. As to the trafficking charge, since methamphetamine is a Class A drug, under s 33(4A)(i) of the MDA, the minimum sentence was 10 years’ imprisonment and 10 strokes of the cane. As for the consumption charge, since the appellant also had a prior admission to a Drug Rehabilitation Centre, under s 33A(1) of the MDA the minimum sentence was five years’ imprisonment and three strokes of the cane.

The appellant’s previous convictions for drug trafficking and consumption were handed down in 1997. At just 17 years of age, he pleaded guilty to three drug-related charges, with a further two drug-related charges taken into consideration. The total sentence imposed on him was 15 years’ imprisonment and 24 strokes of the cane. The three charges to which he pleaded guilty and the corresponding sentences imposed for those charges were as follows: One charge for trafficking 297.2 grams of cannabis – 14 years’ imprisonment and 12 strokes of the cane; One charge for trafficking 623.2 grams of cannabis mixture – 14 years’ imprisonment and 12 strokes of the cane; and One charge for the offence of consumption of “Ecstasy” – one year’s imprisonment.

The sentence for the consumption charge was ordered to run consecutively with the sentence for one of the trafficking charges. The appellant completed serving sentence on 7 February 2007. Subsequent to that, and before his present brush with the law, the appellant committed an offence of disorderly behaviour in 2007, for which he was fined $600, and offences of voluntarily causing hurt in 2012, for which he was fined a total of $2,400.

Facts

The pertinent facts relating to the charges which are the subject of this appeal are these. On 11 March 2013, narcotics officers raided the appellant’s flat and found a number of items on the floor of his bedroom that were subsequently analysed and found to contain drugs. In particular, there were yellow tablets and a yellow substance that contained a total of 1.24 grams of N,α-Dimethyl-3,4-(methylenedioxy)phenethylamine, a Class A drug. This gave rise to one of the charges for possession of a Class A drug. The appellant was arrested and later released on bail.

Subsequently, on 12 June 2013, while the appellant was out on bail, he was arrested by narcotics officers. A car key was found in the appellant’s possession but he refused to divulge the vehicle’s location. The narcotics officers eventually used the key to gain access to a vehicle parked in the carpark where the arrest took place. A number of packets of crystalline substance were found in the vehicle and in the appellant’s possession. These packets were analysed as three different exhibits and were found to contain 11.64, 7.76 and 0.97 grams of methamphetamine. Investigations revealed that the packets containing 11.64 grams of methamphetamine were meant for sale to one Chua for an agreed price of $1,350, and that the remaining packets – containing a total of 8.73 grams of methamphetamine – were meant for the appellant’s own consumption. This gave rise to the trafficking charge as well as the other charge for possession of a Class A drug.

Following the appellant’s arrest, a urine sample was taken from him and analysed. The sample was found to contain methamphetamine. This gave rise to the consumption charge.

The enhanced sentencing regime for repeat drug traffickers

Drug trafficking is an offence under s 5(1) of the MDA. The punishments to be imposed for this offence are defined in the Second Schedule of the MDA. Minimum and maximum sentences are laid down according to the type of drugs trafficked, ie, whether they are Class A, B or C drugs. In addition to this general regime, harsher punishments are prescribed where the quantity of certain drugs – such as methamphetamine, cannabis and diamorphine – exceeds stipulated levels.

The punishments laid down in the Second Schedule are applicable where an offender is convicted of drug trafficking for the first time. But if the offender has been convicted of drug trafficking on one or more previous occasions, then his subsequent offences of the same nature will attract enhanced minimum and maximum sentences depending on the class of drugs trafficked and the quantity pursuant to s 33(4A) of the MDA which took effect in May 2013. For Class A drugs, the minimum sentence is 10 years’ imprisonment and 10 strokes of the cane, and the maximum is 30 years’ imprisonment and 15 strokes of the cane. Section 33(4A)(i) provides:

Punishment for offences

33.—(1) …

…

(4A) Where — (a) any person is convicted of an offence under section 5(1) or 7; and (b) that person is again convicted of an offence under section 5(1) of 7,

that person so convicted shall be punished with — (i) in relation to a Class A drug — (A) imprisonment for a term of not less than 10 years and not more than 30 years; and (B) not less than 10 strokes and not more than 15 strokes of the cane; …

The decision below

In the present case, the District Judge was obliged to impose a minimum sentence of 10 years’ imprisonment and 10 strokes of the cane on the appellant for the trafficking charge because of his earlier drug trafficking convictions. In the result, the District Judge thought fit to impose a sentence which exceeded that minimum by a margin of six years’ imprisonment and five strokes of the cane. He gave his reasons in his grounds of decision published as Public Prosecutor v Loo Pei Xiang Alan [2015] SGDC 89 (“the GD”).

On the trafficking charge, the District Judge agreed with defence counsel’s submission that the appellant’s drug trafficking antecedents “would have been factored into the prescribed mandatory minimum sentence”. But he held that there were a number of aggravating factors that together showed the appellant’s “blatant disregard” for the law and his “contemptuous attitude” towards it. These factors were: (i) he committed the offence while on bail, (ii) the drugs involved were Class A drugs, and (iii) he stood to gain a profit of $1,350. In the circumstances, the District Judge thought that the length of the imprisonment term to be imposed for this charge “should be significantly more than the previous sentence of 14 years imprisonment”, and he accordingly ordered 16 years’ imprisonment (at [15]–[16] of the GD).

On the consumption charge, the District Judge “did not find any compelling reason to impose an imprisonment term of more than the mandatory minimum of five years”. Accordingly, he so sentenced the appellant (at [13] of the GD). On the two possession charges, the District Judge noted that the drugs were Class A drugs and that the quantity of drugs in the appellant’s possession “could not be said to be small”. That, coupled with the appellant’s “blatant disregard for the law”, warranted in his view a sentence of 15 months’ imprisonment for each charge (at [17] of the GD). Finally, considering the total sentence to impose, the District Judge opined that 17 years and three months’ imprisonment and 18 strokes of the cane was “[neither] disproportionate nor crushing” (at [20] of the GD).

The consumption and possession charges

I should say at the outset that I do not think the sentences imposed on the consumption and possession charges should be disturbed. The sentence of five years’ imprisonment and three strokes of the cane imposed on the consumption charge was the minimum that the District Judge could have imposed, and hence it cannot possibly be said to be excessive. As for the possession charges, the amounts of drugs involved were not very substantial, but given the appellant’s recalcitrance and disregard for the law in re-offending on bail, I do not think the sentence of 15 months’ imprisonment for each charge can be said to be manifestly excessive.

The trafficking charge The small quantity of drugs trafficked

All that remains for consideration is the sentence for the trafficking charge. In my view, the proper starting point in determining the appropriate sentence is the quantity of methamphetamine trafficked. This is because, as Sundaresh Menon CJ noted in the very recent decision of Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 (“Vasentha”), the sentencing framework in the MDA for drug trafficking “rests primarily on the type and quantity of the drugs” (at [14]), meaning that “the quantity of drugs involved in a trafficking charge will inevitably have a strong bearing on the sentence to be imposed in any given case” – a sensible approach given that “the quantity of the drugs will usually be proportionate to the harm” that would be caused to society, and would thus serve “as a reliable indicator of the seriousness of the offence” (at [23]).

Guidance from the indicative starting points for...