Mohamad Fairuuz bin Saleh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ; Chao Hick Tin JA; See Kee Oon JC
• Judgment Date: 22 December 2014
• Neutral Citation: [2014] SGHC 264
• Plaintiff Counsel: S K Kumar and Joseph Fernandez (S K Kumar Law Practice LLP)
• Docket Number: Magistrate’s Appeal No 113 of 2014
• Date: 22 December 2014
• Hearing Date: 06 November 2014
• Subject Matter: Criminal procedure and sentencing,Forms of punishment,Sentencing
• Published date: 29 December 2014
• Citation: [2014] SGHC 264
• Defendant Counsel: Nicholas Tan and Norman Yew (Attorney-General's Chambers),and Darius Chan (Norton Rose Fulbright Asia LLP) as Amicus Curiae.
• Court: High Court (Singapore)
• Year: 2014

Sundaresh Menon CJ: Introduction

This was an appeal brought by Mohamad Fairuuz Bin Saleh ("the Appellant") against the decision of the district judge (“the DJ”) in Public Prosecutor v Mohamad Fairuuz Bin Saleh [2014] SGDC 203 (“the GD”). The Appellant pleaded guilty to one charge of assisting an unlicensed moneylender by performing multiple fund transfers through his bank account, an offence under s 5(1) read with ss 14(1)(b)(i) and 14(1A)(a) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the MLA”). A similar charge involving a separate bank account was taken into consideration for the purposes of sentencing.

Before the DJ, counsel for the Appellant, Mr S K Kumar (“Mr Kumar”) submitted that a sentence of probation should be imposed. This was rejected by the DJ who instead sentenced the Appellant to three months’ imprisonment and a fine of $30,000 (in default to a term of imprisonment of one month).

The Appellant appealed against the sentence, submitting that the DJ had erred in holding that he was not eligible for probation. The appeal came before us on 6 November 2014 and we delivered our brief oral grounds after the hearing. We allowed the appeal insofar as we reduced the term of imprisonment from three months to six weeks, but we agreed with the DJ that the Appellant was ineligible for probation. We now give our detailed reasons for our decision.

The facts

Sometime in 2011, the Appellant borrowed from unlicensed moneylenders. The amount was initially small but eventually it ballooned to a total of approximately $23,000. He was unable to repay the loan and in a misguided endeavour to ameliorate his situation, the Appellant agreed to assist an unlicensed moneylender known as Tango whom he had borrowed money from. He did this by setting up various accounts, and procuring a total of 977 deposits and 592 withdrawals involving a sum of $236,873 over a period of almost seven months from early January 2012 to 27 July 2012. He was arrested on 15 August 2012.

The decision below

As alluded to above, the DJ held that probation was not available as a sentencing option. In his view and on an application of the reasoning in Lim Li Ling v Public Prosecutor [2007] 1 SLR(R) 165 (“Lim Li Ling”), the sentence for an offence under s 14(1)(b)(i) of the MLA is “fixed by law”. The term “fixed by law” is found in s 5(1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“the POA”) which essentially provides that an accused person is not eligible for probation where the sentence for the offence is “fixed by law”.

The DJ also noted that a similar conclusion was reached in Public Prosecutor v Ng Teng Yi Melvin [2013] SGDC 207, a case which likewise involved an offence under s 5 of the MLA punishable by s 14(1)(b)(i) of the MLA. The District Court as well as the High Court (when the matter went on appeal) both held that the sentence under s 14(1)(b)(i) is fixed by law (see Ng Teng Yi v Public Prosecutor [2014] 1 SLR 1165 at [21]). Consequently, the DJ considered himself bound to arrive at the same result.

As for the sentence imposed, the DJ observed that such offences were fairly common and that the sentencing precedents were well-established. He considered that the Appellant was a first time offender, had pleaded guilty (albeit at trial), and was a graduate who was gainfully employed. The DJ also noted the circumstances in which the offence was committed. The Appellant only turned to unlicensed moneylenders after he had run out of credit lines from authorised lenders, and started working for the unlicensed moneylender when he found himself unable to service the repayments in order to avoid harassment and repay his debt. The DJ found that many others had committed similar acts under similar circumstances for similar reasons, and that the precedents established that a term of imprisonment of between three and four months together with the prescribed fine would be appropriate. Taking into consideration the fact that there were several hundred separate transactions carried out over the relevant period and that the total amount transacted was not small, the DJ sentenced the Appellant to a term of imprisonment of three months together with the mandated minimum fine of $30,000 and in default to a term of imprisonment of one month.

The relevant legislative provisions

It is apposite to briefly set out s 5(1) of the POA, which is the relevant legislative provision governing the availability of probation as a sentencing option. The section reads:

Probation 5.—(1) Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer or a volunteer probation officer for a period to be specified in the order of not less than 6 months nor more than 3 years. [emphasis added]

Section 5(1) is followed by a proviso (“the Proviso”) which reads:

Provided that where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law, the court may make a probation order if the person —

(a) has attained the age of 16 years but has not attained the age of 21 years at the time of his conviction; and

(b) has not been previously convicted of any such offence referred to in this proviso, and for this purpose section 11(1) shall not apply to any such previous conviction.

[emphasis added]

In summary, pursuant to the opening paragraph of s 5(1) of the POA (which we shall refer to as the principal part of s 5(1)), where an accused person is convicted of an offence which is punishable by a sentence that is fixed by law, probation is generally not available as a sentencing option for the court. However, pursuant to the Proviso, where a person is convicted of an offence for which a specified minimum sentence or mandatory minimum sentence is prescribed, probation may be ordered if the two conditions in the Proviso as encapsulated in subsection (a) and (b) are satisfied.

This is also a convenient juncture to set out s 14(1)(b)(i) of the MLA which contains the punishment for the commission of an offence under s 5 of the MLA:

Unlicensed moneylending 14.—(1) Subject to subsection (1A), any person who contravenes, or who assists in the contravention of, section 5(1) shall be guilty of an offence and — … (b) in any other case — (i) shall on conviction be punished with a fine of not less than $30,000 and not more than $300,000 and with imprisonment for a term not exceeding 4 years; and …

The parties’ arguments

In this appeal, Mr Kumar submitted that the sentence for an offence under s 14(1)(b)(i) of the MLA is not one fixed by law (“the MLA Sentence”). Hence, the Appellant could be considered for probation. It was further argued that the MLA Sentence is neither a “specified minimum sentence” nor a “mandatory minimum sentence”. As a result, there was no need for the two conditions to the Proviso to be satisfied before the court could grant probation.

In the alternative, Mr Kumar submitted that the sentence imposed was manifestly excessive in the circumstances of the case. He also relied on two medical reports that stated that the Appellant was unfit for prison. These reports were before the DJ and had not been challenged by the Prosecution, but did not seem to have been considered by the DJ.

The Prosecution, on the other hand, maintained that the DJ was right in holding that the MLA Sentence was one that was fixed by law, and further submitted that because the Proviso applied and the Appellant did not meet the requirement under subsection (a), in that he was above 21 years of age, probation was not a sentencing option that was open to the court.

Issues before this court

The first issue we considered was whether the Appellant was eligible for probation. This involved determining whether the MLA Sentence was “fixed by law”, and/or whether it was a “specified minimum sentence” or a “mandatory minimum sentence”. The second issue we considered was whether the sentence imposed in this case was appropriate.

Our decision Overview

The first issue required us to consider what Parliament meant by the terms “fixed by law”, “mandatory minimum sentence”, and “specified minimum sentence”, and how, if at all, they related to one another. To assist us, we appointed an Amicus Curiae under the Young Amicus Curiae Scheme, Mr Darius Chan (“Mr Chan”), to make submissions on the following issues: the proper interpretation of the terms, “sentence fixed by law”, “mandatory minimum sentence” and “specified minimum sentence” as they appear in s 5(1) of the POA, the Proviso and s 337(1)(a) and (b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”); and whether and in what circumstances, probation is a sentencing option available under s 14(1)(b)(i) of the MLA.

Mr Chan presented us with a careful analysis and made very helpful submissions for which we were very grateful. The Prosecution and the Appellant were invited to make further submissions to address what Mr Chan had said.

Having carefully considered the various arguments in the round, we concluded that the terms “sentence fixed by law”, “mandatory minimum sentence” and “specified minimum sentence” carry the following meanings: A “mandatory minimum sentence” means a sentence where a minimum quantum for a particular type of sentence is prescribed, and the imposition of that type of sentence is mandatory. A “specified minimum sentence” means a sentence where a minimum quantum for a particular type of sentence is prescribed, but the imposition of that type of...