Mohamed Shouffee bin Adam v PP

• Jurisdiction: Singapore
• Judgment Date: 26 February 2014
• Date: 26 February 2014
• Docket Number: Magistrate's Appeal No 184 of 2013
• Court: High Court (Singapore)

Mohamed Shouffee bin Adam

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 34

Sundaresh Menon CJ

Magistrate's Appeal No 184 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Principles—Concurrent and consecutive sentences—Appellant convicted of four charges for misuse of drugs—Two longest imprisonment sentences chosen to run consecutively—Whether sentencing judge erred in exercising discretion as to which sentences to run consecutively—Whether one-transaction rule and totality principle were correctly applied—Section 307 (1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The appellant was driving into Singapore through the Woodlands Checkpoint when his car was stopped and searched; quantities of various controlled drugs were found. The appellant pleaded guilty to four charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). A further eight charges were taken into consideration.

The district judge (‘the District Judge’) imposed imprisonment sentences ranging from six months to 12 years for the four offences and chose the two longest sentences, 12 years for importation of methamphetamine, and five years for consumption of methamphetamine, to run consecutively for a total of 17 years' imprisonment. The District Judge said this was because of the appellant's speedy relapse into drugs, his pivotal role in importing substantial quantities of drugs, and the fact that the importation and consumption offences were distinct offences while the other offences were part of and connected to the importation transaction. The appellant appealed on the basis that the sentence imposed was manifestly excessive.

Held, allowing the appeal:

(1) Where the charges were correctly framed, each separate charge faced by an accused person would have been brought in respect of a ‘distinct offence’ for the purposes of s 307 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘the CPC’): at [24] .

(2) In deciding which of multiple sentences to order to run consecutively the sentencing judge was vested with considerable discretion but this had to be exercised judiciously and with regard to the one-transaction rule and the totality principle; there was no presumption that the two most severe sentences should ordinarily be selected to run consecutively: at [25] .

(3) The one-transaction rule was not an inflexible or rigid rule but served as a filter to sieve out those sentences that ought not as a general rule to be ordered to run consecutively. The rationale for the rule was the principle that consecutive sentences were not appropriate if the various offences involved a single invasion of the same legally protected interest, but this was not a test to be rigidly applied. While it might be helpful to have regard to such factors as proximity in time, proximity of purpose, proximity of location of the offences, continuity of design and unity (or diversity) of the protected interests, in the final analysis, the consideration had to be undertaken as a matter of common sense: at [27] , [30] , [31] and [40] .

(4) It might be appropriate to run sentences consecutively even if they were in relation to offenses that formed part of the same transaction where, for instance: the straightforward application of the one-transaction rule resulted in the offender benefitting from the court's failure to have regard to the enhanced culpability that was reflected in the multiplicity of the offences that were committed; it was necessary to do so to give sufficient weight to the interest of deterrence; or the imposition of consecutive sentences would be in keeping with the gravity of the offences. But where a sentencing judge departed from the one-transaction rule he should state his reasons or considerations for doing so: at [41] , [45] and [46] .

(5) The totality principle was a principle of limitation and a manifestation of the requirement of proportionality that ran through the gamut of sentencing decisions. There were two limbs: first, whether the aggregate sentence was substantially above the normal level of sentences for the most serious of the individual offences involved; and second, whether its effect was to impose on the offender a crushing sentence not in keeping with his record and prospects: at [47] and [53] .

(6) The totality principle was a consideration that was applied at the end of the sentencing process and required the court to take a last look at the facts and circumstances to assess whether the sentence looked wrong. If so, the aggregate sentence might be reduced by re-assessing which of the sentences ought to be run consecutively, or by re-calibrating the individual sentence to arrive at an appropriate aggregate sentence. Where this was done, the sentencing judge should state this transparently. In either case, care should be taken to ensure that any mandatory sentences imposed were not rendered nugatory: at [58] , [59] , [66] and [67] .

(7) There were three ancillary principles. First, the totality principle could not be applied in a way that undermined s 307 (1) of the CPC and this entailed that the total term of imprisonment for the sentences to be run consecutively had to exceed the term of imprisonment imposed for the highest individual sentence. Second, the sentencing judge should ensure that aggravating factors were not counted against the accused twice over and should be mindful to articulate which factors had been taken into account at which stage. Third, the totality principle did not preclude more than two sentences being run consecutively where the circumstances called for it: at [75] , [77] , [78] and [80] .

(8) The sentencing judge should apply an analytical framework based on these principles which have emerged from the case law: at [81] .

(9) The District Judge erred in the reasons she had advanced for her decision. First, it was incorrect to say the appellant had speedily relapsed into drugs because despite his drug antecedents he had stayed crime- and drug-free for nine years from 2001 to 2010. Second, the individual sentence for importation took into consideration the seriousness of the appellant's offence in making a controlled drug available to abusers in Singapore and this should not then be also applied as an aggravating factor to warrant further enhancing the overall sentence through running the longer sentences consecutively. Third, the fact that substantial quantities of controlled drugs were involved had been a factor in determining the individual sentences and should not have been re-inputted into the sentencing calculus. Fourth, the importation and consumption charges were not the only two offences that were not part of the same transaction and there was one other offence, of possession of nimetazapam, which was also a distinct offence: at [84] , [87] , [89] and [91] .

(10) The sentence chosen by the District Judge was disproportionate to the totality of the appellant's criminal behaviour and breached both the first and second limbs of the totality principle: at [97] and [98] .

(11) Ordering the sentence for the possession of nimetazepam to run consecutively with the sentence for the importation which resulted in a reduced aggregate sentence of imprisonment of 12 years and six months was proportionate in the circumstances. As it was possible to achieve a just sentence in this way, it was unnecessary to re-calibrate the individual sentences: at [99] .

[Observation: While the courts were empowered under s 318 of the CPC to order that a sentence of imprisonment was to take effect from a date other than that on which it was passed, it was a nuanced question as to whether this section could be invoked in circumstances where s 307 (1) did not apply but where, as a matter of discretion, a sentencing judge wished to impose consecutive sentences but also to temper the aggregate sentence by having them run in partial concurrence. No decided view was expressed on this point: at [72] and [73] .]

ADF v PP [2010] 1 SLR 874 (refd)

Bachik bin Abdul Rahman v PP [2004] 2 MLJ 534 (refd)

Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 (refd)

HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 (refd)

Kanagasuntharam v PP [1991] 2 SLR (R) 874; [1992] 1 SLR 81 (refd)

Low Meng Chay v PP [1993] 1 SLR (R) 46; [1993] 1 SLR 569 (refd)

Mansor bin Meyon v Pendakwa Raya [2007] 8 MLJ 706 (refd)

Navaseelan Balasingam v PP [2007] 1 SLR (R) 767; [2007] 1 SLR 767 (refd)

PP v Firdaus bin Abdullah [2010] 3 SLR 225 (refd)

PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (refd)

PP v Lee Cheow Loong Charles [2008] 4 SLR (R) 961; [2008] 4 SLR 961 (refd)

PP v Saiful Rizam bin Assim [2014] SGHC 12 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (folld)

R v Greaves (Claude Clifford) [2011] 1 Cr App R (S) 8 (refd)

Rv Smith [1983] SASR 219 (refd)

R v Wasim Raza [2010] 1 Cr App R (S) 56 (refd)

R v Wozny [2010] MJ No 384 (refd)

Tan Kheng Chun Ray v PP [2012] 2 SLR 437 (refd)

V Murugesan v PP [2006] 1 SLR (R) 388; [2006] 1 SLR 388 (refd)

Veen v R (1979) 143 CLR 458 (refd)

Children and Young Persons Act (Cap 38, 2001 Rev Ed) s 5 (1)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 307 (1) (consd) ;ss 132 (1) , 306, 318, 319 (b) (v) , 322

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 7, 8 (a) , 8 (b) (ii) , 9, 33 (1) , 33 A (1)

Misuse of Drugs (Amendment) Act 1998 (Act 20 of 1998)

Trade Marks Act (Cap 332, 1985 Rev Ed) s 73

Trade Marks Act (Cap 332, 1992 Rev Ed) s 73

Appellant in person

Prem Raj Prabakaran and Alan Hu (Attorney-General's Chambers) for therespondent

Rajaram Vikram Raja (Drew & Napier LLC) as amicus curiae.

Judgment reserved.

Sundaresh Menon CJ

Introduction

1 This is an appeal brought against the decision of the district judge (‘the District Judge’) in PP v Mohamed Shouffee bin Adam [2013] SGDC 288 (‘the GD’). The appellant pleaded guilty to four charges...