Mehra Radhika v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 October 2014
• Neutral Citation: [2014] SGHC 214
• Published date: 09 October 2015
• Date: 28 October 2014
• Year: 2014
• Hearing Date: 28 August 2014
• Subject Matter: criminal offences,Immigration
• Plaintiff Counsel: S K Kumar (S K Kumar Law Practice LLP)
• Citation: [2014] SGHC 214
• Defendant Counsel: Mavis Chionh, Chee Min Ping and Joshua Lai (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 102 of 2014

Sundaresh Menon CJ: Introduction

Under our immigration law, specifically s 57C(1) of the Immigration Act (“Cap 133, 2008 Rev Ed) (“the Act”), it is an offence for a person to enter into a marriage knowing or having reason to believe that the purpose of the marriage is to assist one of the parties to the marriage to obtain an immigration advantage, and where any sort of gratification is involved. This offence is colloquially known as “transacting a marriage of convenience”. The appeal before me concerned the arrangement, or assisting in the arrangement, of a marriage of convenience, a separate offence under s 57C(2) of the Act. Under the latter offence, there is no requirement to show that any consideration or gratification is involved.

The charge levelled against the Appellant, Mehra Radhika, a 22-year old female Indian national, was that she had committed an offence under s 57C(2) of the Act by arranging a marriage of convenience between one Norhayati, a female Singapore national, and one Gagandeep, a male Indian national, with the intention of assisting Gagandeep to obtain an immigration advantage so as to extend his stay in Singapore.

Although the Appellant initially claimed trial, she (later) admitted to the Statement of Facts without qualification and pleaded guilty to the charge on the first day of trial. She was convicted and sentenced by the learned District Judge (“DJ”) to eight months’ imprisonment in addition to the month or so that she had spent in remand prior to her being bailed out. The Appellant appealed against the sentence on two grounds, the first being that the sentence was manifestly excessive and the second being that the sentence was arrived at by the DJ without a proper appreciation of the facts.

I allowed the appeal and reduced the sentence of imprisonment to six months. These are my full grounds of decision to supplement the brief reasons I gave when I disposed of the appeal after hearing the arguments.

Facts Background

The relevant facts are set out in the Statement of Facts. The seed of the marriage of convenience was sowed in the middle of 2012, when the Appellant was first contacted by her brother in India and was asked for help in finding a job for Gagandeep. In response, the Appellant suggested that Gagandeep enter into a marriage of convenience with a female Singapore national as she thought that that would make it easier for him to secure a work permit. His “wife” would also be able to sponsor the extension of his stay in Singapore.

The Appellant then sought the assistance of her friend, one Peer Ali, in February 2013. The Appellant discussed the following proposed terms of the marriage of convenience with Peer Ali: (a) the “wife” would be paid a sum of money for her involvement; (b) the “wife” would not need to fulfil any marital obligations; and (c) the “wife” would have to sponsor Gagandeep’s application for a Visit Pass to extend his stay in Singapore.

Peer Ali (evidently, through his brother) found Norhayati quite quickly. Gagandeep arrived in Singapore shortly thereafter on 26 February 2013 and just days later, on 2 March 2013, was brought by the Appellant to the Toa Payoh South Community Club where his marriage to Norhayati was solemnised. After the solemnisation, the Appellant paid Peer Ali a sum of $6,300 for his assistance. From the Statement of Facts, it was not clear how much of this was paid to Norhayati or if any of it was paid by Peer Ali to his brother.

The Appellant, along with Norhayati, Gagandeep and Peer Ali were all subsequently arrested and charged. Norhayati and Gagandeep were charged under s 57C(1) of the Act for entering into a marriage of convenience. Peer Ali was charged under s 57C(2) (as was the Appellant) for arranging a marriage of convenience. Norhayati and Gagandeep were sentenced to six months’ imprisonment each while Peer Ali was sentenced to nine months’ imprisonment.

For ease of reference, I set out the entirety of s 57C:

57C.—(1) Any person who contracts or otherwise enters into a marriage — (a) knowing or having reason to believe that the purpose of the marriage is to assist one of the parties to the marriage to obtain an immigration advantage; and (b) where any gratification, whether from a party to the marriage or another person, is offered, given or received as an inducement or reward to any party to the marriage for entering into the marriage,

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.

(2) Any person who arranges or otherwise assists in arranging a marriage between 2 other persons, with the intention of assisting one of the parties to the marriage to obtain an immigration advantage, 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) This section shall apply to a marriage entered into whether in Singapore or outside Singapore. (4) In any proceedings for an offence under subsection (1) or (2), it shall be a defence for the person charged with the offence to prove that, although one purpose of the marriage was to assist a party to the marriage to obtain an immigration advantage, the defendant believed on reasonable grounds that the marriage would result in a genuine marital relationship. (5) For the purposes of subsection (4) what constitutes a genuine marital relationship is a question of fact and the court shall have regard to all the circumstances of the case in determining the question. (6) In this section —

“gratification” includes — (a) money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable; (b) any office, employment or contract; (c) any payment, release, discharge or liquidation of any loan, obligation or other liability whatsoever, whether in whole or in part; and (d) any other service, favour or advantage of any description whatsoever;

“immigration advantage”, in relation to a party to a marriage, means the grant or extension of the validity of any visa, pass, permit or re-entry permit under this Act or the regulations or any order made thereunder for that party or for a child or parent of that party.

The DJ’s decision

The DJ imposed what, in effect, was a nine-month term of imprisonment on the Appellant. His reasons for doing so are contained in his judgment which is reported as Public Prosecutor v Mehra Radhika [2014] SGDC 206 (the “Judgment”). These may be summarised as follows: Section 57C of the Act was enacted in December 2012 because Parliament recognised that targeted legislation aimed at marriages of convenience was needed in order to safeguard the security and integrity of our borders and to maintain law and order. As other courts have noted, marriages of convenience create serious social and economic problems, undermine the integrity of the immigration system, and erode the sanctity of marriage. If left unchecked, human trafficking and transnational organised crime may be facilitated under the cloak of a marriage of convenience. The list of precedents tendered by the Prosecution showed that similar offences attracted between eight and 11 months’ imprisonment terms. The Appellant had initiated and facilitated the offence; in that sense, her role was crucial. The Appellant was therefore more culpable. Peer Ali, the Appellant’s accomplice, had been sentenced to nine months’ imprisonment. The Appellant had no antecedents.

My decision

While I could understand the approach that had been taken by the DJ, I considered that appellate intervention was warranted in this case because, having regard to all the relevant factors, it was evident that the Appellant’s sentence was manifestly excessive.

The relevant sentencing considerations

The DJ essentially took into account five factors: first, Parliament’s intentions behind and its reasons for enacting a provision targeted at marriages of convenience; second, the sentencing benchmark based on sentences previously imposed for similar offences; third, the significance of the Appellant’s role in the commission of the offence; fourth, the Appellant’s antecedents; and finally, the sentences imposed on the others involved this matter.

These factors are undoubtedly relevant. But, in my judgment, they do not provide a complete basis upon which the sentencing decision in this case should be arrived at.

Some other considerations that ought to be factored into the sentencing framework for this offence were usefully highlighted by the English Court of Appeal in Regina v Milusca Theresita Olivieira, Kingsley Jozue Oramulu [2012] EWCA Crim 2279 (“Oramulu”). I am grateful to Ms Mavis Chionh, the learned Deputy Public Prosecutor, who referred me to this authority.

Oramulu was a consolidated appeal brought against two separate decisions that were related in that both concerned the English equivalent of a marriage of convenience.

In the first case, Olivieira, a female Dutch national, and Oramulu, a male Nigerian national, had carried out an elaborate plan which culminated in a ceremony of marriage in 2007 that provided Oramulu with a lawful basis for residing in the United Kingdom. Over the next three or four years, Oramulu sent payments totalling about £3,600 to Olivieira. In 2011, the police discovered that Oramulu was living alone. While the police found no sign that Olivieira was living with Oramulu, they did find a bag containing, amongst other things, a photocopy of Olivieira’s Dutch identity card, the couple’s marriage certificate, Olivieira’s driving licence and some wedding photographs. These were documents that could be used to substantiate the marriage, at least superficially, if the need arose.

The...