Muhammad Nasir bin Jamil v PP

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 10 February 2017
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9148 of 2015
• Date: 10 February 2017

Muhammad Nasir bin Jamil

and

Public Prosecutor

[2017] SGHC 26

Chao Hick Tin JA

Magistrate's Appeal No 9148 of 2015

High Court

Criminal Law — Statutory offences — Moneylenders Act (Cap 188, 2010 Rev Ed) — Whether enhanced punishment applicable to offender convicted of harassment offence if prior conviction was for abetting acts of harassment — Section 28 Moneylenders Act (Cap 188, 2010 Rev Ed)

Muhammad Nasir bin Jamil (“the Appellant”) was offered the job of splashing paint at debtors' homes and writing on walls in the vicinity of those homes for a sum of $100 for every home he beset. Before his arrest, he committed 30 harassment offences between mid-June 2015 and 9 july 2015. In the State Courts, six of these offences were proceeded with, 22 offences were taken consideration for sentencing and no further action was taken for the remaining two offences. In the case of the sixth proceeded offence, the Appellant had knowingly caused property damage to a neighbouring unit instead of to the alleged debtor's unit. The six proceeded offences were all offences under s 28(2) read with s 28(1)(b) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the current MLA”). The Appellant had previously been convicted in 2012 under s 28A(1)(b) read with s 28(2) of the current MLA of abetting the commission of a harassment offence by providing transport to another person to a debtor's unit for the purpose of defacing the wall near that unit. The Prosecution submitted that given the aforesaid precedent, the Appellant was liable to the enhanced punishment prescribed by s 28(2)(b) and s 28(3)(d)(i) of the current MLA. In respect of the sixth proceeded offence, the Prosecution submitted that the Appellant should receive at least two to three months' additional imprisonment (on top of the mandatory minimum sentence for repeat offenders who had caused property damage). The district judge (“the DJ”) sentenced the Appellant to a total of six years' and six months' imprisonment and 24 strokes of the cane. For the first five proceeded charges, he sentenced the Appellant to two years' imprisonment and five strokes of the cane – the minimum punishment prescribed under s 28(2)(b) read with s 28(3)(d)(i) for a repeat offender who had caused property damage – for each charge. As the sixth proceeded charge involved the harassment of an innocent neighbour's home, the DJ meted out a higher sentence – 2¹/₂ years' imprisonment and five strokes of the cane – for that charge. He ordered the imprisonment sentences for two of the first five proceeded charges to run consecutively with the imprisonment sentence for the sixth proceeded charge. The Appellant appealed on the ground that the sentence imposed was excessive.

When the appeal was first heard, there appeared to be a legal question relating to the interpretation of the current MLA which could potentially work in the Appellant's favour – namely, whether an offender who was presently convicted of a harassment offence under s 28 of the current MLA was liable to enhanced punishment under that section if his previous conviction was for abetting acts of harassment, rather than actually committing such acts (“the Legal Question”). This question turned on the proper interpretation of s 28.

Held, answering the Legal Question in the affirmative and dismissing the appeal:

(1) Where a present harassment offender – ie, an accused person who was presently charged with a harassment offence under s 28 – had previously committed any of the acts of harassment set out in s 28(1), he was liable to the enhanced penalties specified in ss 28(2) and 28(3). However, it was unclear from the literal wording of s 28 whether a present harassment offender whose antecedent was for abetting the commission of acts of harassment was likewise subject to these enhanced penalties. Section 28 seemed to suggest that the offence of abetting the commission of acts of harassment was excluded from the ambit of the phrase “a second or subsequent offence” in ss 28(2) and 28(3): at [21].

(2) The Moneylenders (Amendment) Act 2010 (Act 5 of 2010) was introduced to, inter alia, enhance the penalties for the harassment offence under s 28 and enact s 28A, which set out certain situations in which a person should be deemed to have abetted a s 28 harassment offence. These situations included giving instructions to another person to carry out acts of harassment (see s 28A(1)(a)). There was every indication that Parliament intended such persons to be treated as being just as (if not more) culpable as the actual harasser. On the basis of the scheme set out in s 28A, an abettor who acted as a lookout for or provided transportation to the actual harasser (see ss 28A(1)(b)–28A(1)(d)) was not treated any differently from an abettor who gave instructions as spelt out in s 28A(1)(a). Since no express punishment was statutorily prescribed for the abetment of, specifically, a harassment offence under s 28, therefore, pursuant to s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”), an abettor of a harassment offence was liable to the same punishment as that applicable to the actual harasser. In other words, the various types of abettors under s 28A, regardless of their roles, were to be regarded as bearing equal culpability as (and in some cases, greater culpability than) the actual harassers who committed the harassment offences spelt out in s 28(1): at [25].

(3) This interpretation was fortified by the parliamentary debates when the Bill introducing the amendments made in 2010 was read. Given the nature and methodology of a loan shark syndicate's operations, Parliament intended to adopt an aggressive approach to tackle the scourge of loan shark activities. Based on the statutory purpose as gleaned from the text of ss 28 and 28A of the current MLA as well as the relevant extrinsic materials, it was clear that Parliament intended an abettor of acts of harassment to be treated punishment-wise in exactly the same way as the actual harasser: at [27].

(4) The courts had consistently taken the position that a broad reading of the applicable provisions of the MLA was necessary whenever the question of punishment arose under the MLA. While the MLA did not have a provision equating an abetment offence with the principal offence abetted, the absence of such an explicit provision was not necessarily determinative. The clear and consistent legislative intent driving the various amendments to the MLA was to punish persons who abetted the commission of harassment offences in the same manner as those who committed the principal offence of harassment. Moreover, s 109 of the Penal Code provided that an abettor of a principal offence wasto be punished with the same punishment as that which applied to the principal offence in cases where no express punishment for that particular abetment offence was statutorily prescribed. Applying s 109, if a person were to commit an abetment offence a second time, there was no reason why he should not be punished in the same manner as a person who committed the principal offence a second time, ie, be liable to enhanced punishment. Should an instigator, who would be higher up the hierarchy than the actual harasser, commit the same offence of abetment twice, it was difficult to see why he should not be subject to enhanced punishment merely because he had repeatedly outsourced the dirty work of actual harassment: at [28] and [36].

(5) The situation in the present appeal was slightly different as the Appellant's first offence was that of abetting the commission of acts of harassment and his second offence was the principal offence of committing acts of harassment itself. As a matter of logic, there was no reason why the Appellant should not be subject to the enhanced punishment set out in ss 28(2) and 28(3) of the current MLA, bearing in mind Parliament's clear intention to impose enhanced punishment on all offenders who were involved in acts of harassment a second time, whether as a primary offender (ie, as an actual harasser) or as an abettor. To hold that such offenders would not be liable to enhanced punishment would be wholly illogical and would bring the law into disrepute for the disparity in treatment would be inexplicable: at [37].

(6) The Legal Question was therefore answered in the affirmative. Although s 28 of the current MLA was a penal provision, s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) required the rule of purposive interpretation to trump all other common law principles of interpretation, including the strict construction rule. The word “offence” in the phrase “a second or subsequent offence” in ss 28(2) and 28(3) of the current MLA could also include the offence of abetting the commission of a harassment offence under s 28. This reading would not go against all possible and reasonable interpretation of the express literal wording of the provision: at [43].

(7) The sentenced imposed by the DJ was not manifestly excessive. The DJ imposed the mandatory minimum sentence for each of the first five proceeded charges. Although he fixed the imprisonment term for the sixth proceeded charge at six months above the mandatory minimum term, that was defensible on account of the fact that the victim in that particular charge was an innocent neighbour of the alleged debtor. While it could be argued that the DJ should have increased the imprisonment term by only two or three months instead of by six months, this in itself did not render the imprisonment term for that charge manifestly excessive. Given the extent of the Appellant's criminal conduct, it was also appropriate for the DJ to order three of the imprisonment sentences to run consecutively to reflect his overall criminality: at [44].

[Observation: The importance of clear statutory wording could not be over-emphasised. Legislative drafters should always endeavour to make the wording of statutory provisions, especially penal ones, as reasonably clear as...