Mohammed Ibrahim s/o Hamzah v PP

• Jurisdiction: Singapore
• Judgment Date: 19 December 2014
• Date: 19 December 2014
• Docket Number: Magistrate's Appeal No 108 of 2014
• Court: High Court (Singapore)

Mohammed Ibrahim s/o Hamzah

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 269

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

See Kee Oon JC

Magistrate's Appeal No 108 of 2014

High Court

Criminal Procedure and Sentencing—Sentencing—Ministerial statement pressing for custodial sentences where period of default for National Service was two years or more—Effect of ministerial statement on sentencing process—Whether ministerial statement of general application to all National Service defaulters—Sections 3 (1) and 4 (2) Enlistment Act (Cap 93, 2001 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Principles—Accused failing to report for registration for National Service for period of less than two years—Accused absconding from Singapore Boy's Hostel and arrested pursuant to police gazette cum blacklist—District Court sentencing accused to two months' imprisonment—Whether sentence manifestly excessive—Whether custodial sentence warranted—Whether fact that accused deliberately did not report for registration for National Service and did not voluntarily surrender to authorities constituted aggravating factors

The appellant failed to report for registration for National Service (‘NS’) and medical examination at the Central Manpower Base, Ministry of Defence (‘CMPB’) between 1 March 2012 and 3 June 2013 despite the fact that several notices and reminders were sent by post to his registered local address.

On 28 June 2012, the appellant's mother informed the CMPB that the appellant had been sentenced to reside at the Singapore Boy's Hostel (‘the Hostel’), but had absconded from the Hostel sometime in March 2011. A police gazette cum blacklist (‘Police Gazette cum Blacklist’) was raised against the appellant on 16 July 2012 and he was arrested on 4 June 2013. The appellant served in the Singapore Boy's Home until he turned 19 years of age and subsequently reported for registration for NS on 7 November 2013.

He pleaded guilty and was convicted in the District Court on a charge of failing to comply with a notice to report for registration for NS, an offence under s 3 (1) and punishable under s 4 (2) of the Enlistment Act (Cap 93, 2001 Rev Ed) (‘the Act’). The district judge sentenced the appellant to two months' imprisonment, finding that the appellant's culpability was enhanced by his running away from his NS liability and regarded the fact that the appellant was arrested pursuant to a Police Gazette cum Blacklist as an aggravating factor that warranted a custodial sentence.

The appellant appealed against his sentence on the basis that it was manifestly excessive and urged that a fine be imposed instead. The amicus curiae agreed that a custodial sentence was not warranted, based on the sentencing precedents as well as the parliamentary statement regarding NS defaulters made by the Minister for Defence in January 2006 (‘the Ministerial Statement’) that a jail sentence should only be imposed where the period of default was two years or more. The respondent argued that although the period of default was less than two years, the sentence of two months' imprisonment was justified in light of aggravating factors such as the fact that the appellant deliberately did not comply with the notice to report for NS registration and had not voluntarily surrendered himself to the authorities.

Held, allowing the appeal:

(1) Where ministerial statements relating to sentencing policy were made in Parliament but not incorporated into statute, the courts should be careful not to automatically substitute such statements for the actual wording of the sentencing provision in question. In the Act, there was nothing that required the court to impose a custodial sentence only where the period of default was twoyears or more: at [18] to [20] .

(2) The Ministerial Statement, which was merely an expression of prevailing prosecutorial policy, should not ipso facto be adopted by the courts as a starting point in the sentencing process. Nevertheless, the Ministerial Statement remained significant in so far as it revealed the public policy considerations in relation to the punishment provisions of the Act: at [21] .

(3) Having regard to the context and wording of the Ministerial Statement, it was intended to be of general application to both overseas and local NS defaulters. No general distinction should be drawn in the sentencing approach towards overseas defaulters and local defaulters, since in most cases knowledge of the registration notice would not be an issue: at [25] to [27] and [29] .

(4) Cases decided prior to the 2006 amendments to the Act, which increased the maximum fine in the Act, should be read with the applicable legislative framework and prevailing prosecutorial policies in mind. The increase in the maximum fine introduced by the 2006 amendments should not ipso facto lead to the imposition of higher sentences than in the pre-amendment cases. In each instance, the court should consider all the relevant circumstances and impose a sentence proportionate to the culpability of the offender and the gravity of the offence: at [28] .

(5) While there were relatively few cases concerning offences under s 3 (1) of the Act, an analogy could be drawn with the cases concerning s 33 of the Act, which prescribed the same punishment as s 4 (2) of the Act for a s 3 (1) offence: at [30] .

(6) The sentencing precedents showed that cases involving short periods of default of two years or less would generally not attract a custodial sentence. While there were cases where only fines were imposed for substantial periods of default, such cases were few and far between and usually concerned exceptional facts: at [31] to [36] .

(7) The length of the period of default was an important factor, but not the only factor to be taken into account in determining the appropriate sentence for an offence under the Act. The length of the period of default would usually be the key indicator of the offender's culpability and accordingly, how severe a sentence ought to be imposed. While a useful starting point was that cases involving short periods of default of two years or less generally would not attract a custodial sentence, the courts should not slavishly adhere to this but should consider the circumstances of the case in totality: at [37] to [38] .

(8) Having regard to the sentencing precedents and the fact that there were neither aggravating nor mitigating factors in this case, it was inappropriate to punish the appellant with a custodial sentence. An intentional decision not to comply with a notice to register for NS (which would invariably be present in every case of NS default) and a failure to voluntarily surrender to the authorities were merely neutral factors in sentencing under the Act. The sentence of two months' imprisonment was therefore substituted with a fine of $3,000, in default one week's imprisonment for each $1,000 (or part thereof) not paid: at [39] to [42] .

Lim Sin Han Andy v PP [2000] 1 SLR (R) 643; [2000] 2 SLR 818 (folld)

PP v Chow Yee Sze [2011] 1 SLR 481 (refd)

PP v Ian Nadriz bin Mohamed Noor DAC 8534/2011 (refd)

PP v Jass Sekhon DAC 2398/2013 (refd)

PP v Kerry Trahan Jin Long Mathe DAC 21507/2012 (refd)

PP v Madhurandhaga Thevar s/o Arul [2014] SGDC 290 (refd)

PP v Melvyn Tan Ban Eng DAC 14358/2005 (refd)

PP v Mohammed Ibrahim s/o Hamzah [2014] SGDC 196 (overd)

PP v Shanthakumar s/o Bannirchelvam [2008] SGDC 130 (refd)

PP v Shanthakumar s/o Bannirchelvam MA 52/2008, HC (refd)

PP v Teo Chen Hui George DAC 2397/2013 (refd)

Seow Wei Sin v PP [2011] 1 SLR 1199 (folld)

Enlistment Act (Cap 93, 2001 Rev Ed) ss 3 (1) , 4 (2) (consd) ;ss 5 (a) , 30 (2) (b) , 30 (3) , 30 (6) , 33, 33 (a) , 33 (b)

Enlistment (Amendment) Act 2006 (Act 14 of 2006)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A (1)

Appellant in person

Tai Wei Shyong and Mark Jayaratnam (Attorney-General's Chambers) for therespondent

Chng Zi Zhao Joel (Wong Partnership LLP) as amicus curiae.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 This was an appeal by the appellant, Mohammed Ibrahim s/o Hamzah (‘the Appellant’), against the sentence imposed on him for failing to report for registration for National Service (‘NS’), an offence under s 3 (1) of the Enlistment Act (Cap 93, 2001 Rev Ed) (‘the Act’). The period of default was one year, three months and two days. In the district court below, the Appellant was convicted and sentenced to two months' imprisonment. He appealed against the sentence on the ground that it was manifestly excessive, and requested for a fine to be imposed instead.

2 As there was a dearth of High Court sentencing precedents specifically relating to offences under s 3 (1) of the Act, and as NS is undoubtedly an issue of national importance, Mr Chng Zi Zhao Joel (‘Mr Chng’) was specifically appointed as amicus curiae to assist the court on whether a custodial sentence was warranted in this case.

3 After hearing the submissions of the parties and Mr Chng, we allowed the appeal. We set aside the sentence of two months' imprisonment and replaced it with a fine of $3,000. Upon the Appellant's application, we allowed the fine to be paid in six monthly instalments and ordered that in default of payment of each $1,000 or part thereof, the Appellant is to be sentenced to one week's imprisonment. We now give the detailed grounds for our decision.

Background facts

4 The Appellant is a Singapore citizen and was born on 3 November 1994. He was 20 years of age at the time of the hearing. He admitted without qualification to the statement of facts, the salient parts of which are summarised as follows.

5 On 20 December 2011, a notice was published in the Government Gazette pursuant to s 3 (1) and s 30 (2) (b) of the Act, requiring every male Singapore citizen and Singapore permanent resident born between 27 August 1994 and 5 December...