Luong Thi Trang Hoang Kathleen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 05 November 2009
• Neutral Citation: [2009] SGHC 250
• Docket Number: Magistrate's Appeal No 168 of 2009
• Date: 05 November 2009
• Year: 2009
• Published date: 11 November 2009
• Plaintiff Counsel: Kang Yu Hsien Derek (Rodyk & Davidson LLP)
• Citation: [2009] SGHC 250
• Defendant Counsel: Lau Wing Yum and Luke Tang (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing

5 November 2009

Chan Sek Keong CJ:

Introduction

1 This was an appeal against the sentences imposed by the district judge below (“the District Judge”) in District Arrest Cases Nos 16861 and 16900 of 2009 (see Public Prosecutor v Luong Kathleen Thi Trang Hoang [2009] SGDC 210 (“the GD”)). In the court below, the appellant, Luong Thi Trang Hoang Kathleen (“the Appellant”), pleaded guilty to two charges of misusing a foreign travel document under s 47(3) of the Passports Act (Cap 220, 2008 Rev Ed) (“the current Passports Act”), with one charge being read together with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) vis-à-vis the abetment of such misuse. The Appellant was sentenced to 12 months’ imprisonment for each of these offences (collectively referred to hereafter as “the Offences”), with the sentences to be served concurrently.

2 Section 47(3) of the current Passports Act provides as follows:

(3) If —

(a) a person uses in Singapore a foreign travel document in connection with travel or identification;

(b) the foreign travel document was not issued to that person; and

(c) the person knows or ought reasonably to have known that the foreign travel document was not issued to him,

the person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 10 years or to both.

3 After hearing the submissions of the Appellant’s counsel and the Prosecution, I reduced the sentence for each of the Offences from 12 months’ imprisonment to eight months’ imprisonment. I also ordered the sentences to be served concurrently and to be backdated to 17 March 2009, which was the date on which the Appellant was remanded. I now give the reasons for my decision.

The facts of the case

4 The Appellant is a US national who was born in Vietnam. On 17 March 2009, the Appellant and an eight-year-old Vietnamese boy (“the Child”) arrived in Singapore at Changi Airport on a flight from Kuala Lumpur. The Appellant presented to the immigration officer a US passport in the name of “Nguyen Chau Mai” (“the NCM passport”) for herself and a US passport in the name of “Phan Andrew” (“the Child’s US passport”) for the Child. The Appellant told the immigration officer that the Child was her son. When asked about the discrepancies between her facial features and the facial features depicted in the photograph in the NCM passport, the Appellant said that she had previously undergone cosmetic surgery. Unconvinced, the immigration officer referred the Appellant and the Child to the duty officer to be further interviewed.

5 Upon further questioning, the Appellant admitted that the NCM passport which she was using belonged to her cousin. She claimed that she had used that passport only because she had lost her own passport and could not get a replacement in time as she needed to travel urgently. Subsequently, the Child’s Vietnamese passport was found in a rubbish bin at Changi Airport. The Appellant was shown that passport, and it was then that she admitted that the Child was not her son. She also asserted that she only wanted to “bring the [C]hild out of Vietnam to the USA for a better life”.^{[note: 1]}

6 The events which form the backdrop to the Offences date back to about one and a half years ago when the Appellant started to volunteer in developing countries such as Honduras and Vietnam. The Appellant engaged in voluntary work in orphanages in those countries. While she was in Vietnam, she stayed with one Nhi Dang, a Vietnamese farmer, and her two sons, the younger of whom was the Child. The Appellant, who had herself left Vietnam as a young child to escape oppression and poverty and who had later been brought to the US under a humanitarian programme, agreed to find a way to help Nhi Dang and her family move to the US.

7 The Appellant’s application to bring Nhi Dang’s family to the US was turned down. The Appellant then tried to adopt the Child, but this did not work out either. In late 2008, the Appellant remitted US$1,300 to Nhi Dang to assist her financially. Sometime in February 2009, the Appellant lost her passport. As she thought about applying for a replacement, it occurred to her that, since her son did not have a passport yet, she could apply for a passport in his name but using the Child’s photograph; the Child could then enter the US using that passport.

8 The Appellant claimed that her original plan was to travel with the Child from Vietnam to London, with a stop in transit in Kuala Lumpur en route. From London, the Appellant and the Child would then take a flight to Mexico before entering the US via the land border between Mexico and the US. However, while en route to Kuala Lumpur, the Appellant realised that the Child’s US passport was packed in the check-in luggage and that the Child would therefore have to pass through Malaysian immigration using his Vietnamese passport. According to the Appellant, if the Child did so (ie, if he used his Vietnamese passport to pass through Malaysian immigration):^{[note: 2]}

… [The Child] would not be able to leave Malaysia with the U.S. passport [ie, the Child’s US passport] as it did not have an immigration entry stamp. [The Appellant] panicked at the airport at Kuala Lumpur as she did not have much money left and their tickets to London had to be forgone. She spent some time checking the Internet before deciding to fly on Air Asia to Singapore, transit in Singapore and then fly to the U.S. on a China Airlines flight (via Beijing) as that was the cheapest option. When [the Appellant] arrived at Changi Airport, she learned to her dismay that her check-in baggage could not be simply transferred from the Air Asia flight [ie, the flight which the Appellant and the Child took from Vietnam to Singapore] to the China Airlines flight – i.e. she would have to pass through Singapore immigration, take her luggage and [check in] for the China Airlines flight. [The Appellant] thus went reluctantly to the immigration counter at Changi Airport. At the immigration counter, [the Appellant] thought about which of the 2 passports to use for [the Child] – his actual Vietnamese passport or the US passport in her son’s name [ie, the Child’s US passport]. She decided on the US passport as she thought then that she might need to show the US immigration [authorities] that [the Child] had travelled from Singapore. [underlining in original]

9 Before I explain why I allowed the appeal and varied the sentences handed down in the court below, it is necessary to first understand the District Judge’s reasons for imposing those sentences.

The decision below

10 In her mitigation plea to the District Judge, the Appellant submitted that she had committed the Offences out of altruism and by force of circumstances in that her original intention was not to use Singapore as a transit point. She also highlighted that she had committed the Offences on her own and not as part of a criminal syndicate. As mentioned earlier (at [1] above), the District Judge sentenced the Appellant to 12 months’ imprisonment for each of the Offences, relying on a benchmark sentence of 12 months’ imprisonment for the offence under s 47(3) of the current Passports Act (see the GD at [10]). The Judge relied essentially on the following aggravating factors:

(a) there had been planning and premeditation on the Appellant’s part (see the GD at [5]–[6]);

(b) the Appellant had taken steps to avoid detection (see the GD at [7]–[8]); and

(c) the Appellant had used Singapore as a transit point to fly to the US using another person’s passport (ie, the NCM passport) and had abetted the Child in doing the same vis-à-vis the Child’s US passport (see the GD at [9]).

As the Judge only summarised the mitigating factors relied on by the Appellant and did not discuss them further (see the GD at [3]), it is reasonable to assume that he must have rejected them.

The appeal

Overview

11 Before this court, counsel for the Appellant argued that the District Judge erred in:

(a) failing to give consideration to sentencing precedents for the offences under s 419 and s 471 of the Penal Code (which are, respectively, the offence of cheating by impersonation and the offence of using as genuine a forged document or forged electronic record); and

(b) failing to consider mitigating factors in favour of the Appellant.

While I did not think that sentencing precedents relating to s 419 and s 471 of the Penal Code were useful in determining the appropriate sentence for the offence under s 47(3) of the current Passports Act, I agreed with the Appellant’s counsel that the District Judge failed to apply his mind sufficiently to the mitigating factors present in this case. I should also mention, apropos the case authorities cited by the Prosecution, that those authorities were distinguishable from the present case on their facts.

Sentencing precedents relating to section 419 and section 471 of the Penal Code

12 As mentioned in the preceding paragraph, s 419 of the Penal Code deals with the offence of cheating by impersonation, while s 471 thereof deals with the offence of using as genuine a forged document or forged electronic record. The punishment for the former offence is imprisonment of up to five years or a fine or both (see s 419 of the Penal Code), while the punishment for the latter offence is imprisonment of up to four years or a fine or both (see s 471 read with s 465 of the Penal Code). Counsel for the Appellant essentially relied on cases involving these two offences to suggest that a more lenient sentence should have been imposed on the Appellant for each of the Offences. In...