Ng Him Moi v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Michelle Yap
• Judgment Date: 15 June 2015
• Neutral Citation: [2015] SGMC 22
• Court: Magistrates' Court (Singapore)
• Hearing Date: 26 May 2015
• Docket Number: MAC-902212-2014
• Plaintiff Counsel: Deputy Public Prosecutors Kumaresan s/o Gohulabalan and Chen Jincheng
• Defendant Counsel: Mr Udeh Kumar S/O Sethuraju (S K Kumar Law Practice LLP)
• Published date: 17 July 2015

District Judge Michelle Yap: Introduction

The accused pleaded guilty to one charge of s 5(a) of the Common Gaming Houses Act (“CGHA”) (Cap. 49, Rev Ed 1985) for assisting an unknown male in the carrying on of a public lottery. The matter was initially fixed for trial. On the first day of trial, the accused through her counsel, Mr S K Kumar, informed the court that she wanted to plead guilty.

I sentenced the accused to two weeks’ imprisonment and a $20,000 fine (in default 14 days’ imprisonment). The accused, being dissatisfied with the sentence, has filed an appeal. The accused is currently on bail, pending the appeal. She has paid the fine.

The Facts

The accused is a 58 year-old Singaporean female. At the material time, she was running a clothes alteration business.

On 3 October 2012, acting on information received that the accused was conducting illegal lottery activities, the police conducted a raid at a Housing Development Board apartment (the “premises”). A search was conducted at the premises in the accused’s presence, and the following items were seized: Two pens; One A4 size Notepad with 3 pieces of paper with entries; Ten pieces of paper with column; One roll of beige paper; One Samsung Note 2 mobile phone; Cash $8/-; One fax machine; One black cordless telephone; One piece of paper with entries; and One calculator.

Investigations revealed that the above items were used by the accused for the illegal collection of bets for “10,000” characters (4-D) lottery. Punters would place their 4-D bets with the accused via the phone or by going down physically to the premises. After the accused had consolidated the bets, she would fax the 4-D numbers to her “boss” via the seized fax machine. The identity of the “boss” remained unknown.

The exhibits contained records of stakes approximately valued at $653.70.

The accused was untraced.

Mitigation and Submissions on Sentence

Mr Kumar tendered a written mitigation plea on behalf of the accused. The following points were raised in mitigation: the accused was a first offender; the bet amounts were small; the accused played a minor role; the person whom the accused was working for is still at large; the accused only committed this offence because she was facing financial difficulties and she wanted to ease the family’s financial burden; the accused is in poor health and suffers from depression; and lastly, it is unlikely that the accused will ever be involved in a similar offence in the future.

In light of the mitigating factors above, Mr Kumar submitted that probation would be an appropriate sentence. He also asked the court to consider the fact that the accused was charged under CGHA instead of the Betting Act (Cap. 21 Rev Ed 2011). He claimed that this distinction reflected the accused’s minor role, and therefore the accused was deserving of a lesser sentence.

In the alternative to probation, Mr Kumar submitted for a day’s imprisonment and the minimum fine of $20,000.

The Prosecution did not submit for a specific sentence, save to state that the sentence imposed should not depart from the usual sentence of imprisonment and a fine. The Prosecution also pointed out that probation is not an available sentencing option for an offence under s 5(a) of the CGHA.

My Decision Availability of Probation

I agreed with the Prosecution that probation is not an available sentence for the offence.

The relevant legislative provision governing the availability of probation as a sentencing option for the court is found in the Probation of Offenders Act (“POA”) (Cap 252, 1985 Rev Ed), s 5(1), which 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:

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 italics and bold]

As stated, probation is not available as a sentencing option where a person is convicted of an offence for which the punishment is “fixed by law”. If, however, a person is convicted of an offence for which “a specified minimum sentence” or “mandatory minimum sentence” is prescribed, then the person would be eligible for probation provided that he is between 16-21 years old and has not been previously convicted of any offence for which “a specified minimum sentence” or “mandatory minimum sentence” is prescribed.

In the recent case of Mohamad Fairuuz bin Salen v Public Prosecutor [2015] 1 SLR 1145 (“Fairuuz v PP”), the High Court stated what the terms “sentence fixed by law”, “mandatory minimum sentence” and “specified minimum sentence” mean (at [17]):

“(a) 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.

(b) A “specified minimum sentence” means a...