Ng Nicholas v PP

• Jurisdiction: Singapore
• Judge: Vincent Hoong J
• Judgment Date: 10 January 2024
• Docket Number: Magistrate's Appeal No 9020 of 2023 and Criminal Revision No 3 of 2023
• Court: High Court (Singapore)

Ng Nicholas

and

Public Prosecutor

[2024] SGHC 2

Vincent Hoong J

Magistrate's Appeal No 9020 of 2023 and Criminal Revision No 3 of 2023

General Division of the High Court

Criminal Law — Statutory offences — Offender claiming trial to offences relating to evasion of excise duty leviable on vehicles imported into Singapore — Section 128D and punishable under s 128L(2) Customs Act (Cap 70, 2004 Rev Ed) — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed)

Criminal Law — Statutory offences — Offender claiming trial to offences relating to evasion of goods and services tax leviable on vehicles imported into Singapore — Section 128D Customs Act (Cap 70, 2004 Rev Ed) read with ss 26 and 77 Goods and Services Tax Act (Cap 117A, 2005 Rev Ed) and punishable under s 128L(2) Customs Act — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed) — Sections 26 and 77 Goods and Services Tax Act (Cap 117A, 2005 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Sentencing framework — Whether sentencing framework laid down by the General Division of the High Court in Public Prosecutor v Tan Teck Leong Melvin[2023] SGHC 188 for offence of fraudulent evasion of goods and services tax on imported goods under s 128D and punishable under s 128L(2) Customs Act (Cap 70, 2004 Rev Ed) ought to be extended to apply for offence of fraudulent evasion of excise duty on imported goods under s 128D and punishable under s 128L(2) Customs Act — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed)

Held, dismissing the Appellant's appeal against conviction and sentence and allowing the Prosecution's application in CR 3:

[Editorial note: The paragraphs enclosed within parentheses in the holdings below are not reported; they can be found in the unreported version of the judgment ([2024] SGHC 2) on LawNet. The “Case(s) referred to” and “Legislation referred to” below list the cases and legislation referred to in the headnote and/or the paragraphs reported below.]

(1) The DJ did not err in convicting the Appellant of the charges. The documents which were retrieved from the electronic devices seized from the Appellant were indeed indicative of the actual CIF value of the imported vehicles. The Appellant's account in relation to the documents was that he was assisting a friend named Yang. However, the record clearly showed that the Appellant's account of Yang's involvement was both internally and externally inconsistent: (at [25] to [30]).

(2) In Melvin Tan, the High Court had laid down a sentencing framework which was applicable only to offences under s 128D of the Customs Act involving the fraudulent evasion of GST on imported goods, where no harmful goods were involved. On the question of whether the sentencing framework could also apply to other offences under s 128D involving the fraudulent evasion of customs or excise duty, the High Court left this for future determination in a suitable case given that there were no such offences in Melvin Tan: at [31].

(3) As in the Appellant's case, many cases involving offences punishable under s 128L(2) of the Customs Act involved both the evasion of excise duty and the evasion of GST imposed on the same good. Section 128L(2) of the Customs Act also made no distinction between the type of duty or tax evaded. Rather, one of the sentencing aims for offences under s 128L(2) of the Customs Act, that of preventing loss of revenue to the State, applied equally across offences concerning the fraudulent evasion of GST and offences concerning the fraudulent evasion of excise duty: at [35].

(4) The sentencing framework in Melvin Tan was introduced to promote consistency and provide coherence to the sentencing practice. Without an extension of the sentencing framework to cover offences involving the fraudulent evasion of excise duty, the sentencing framework in Melvin Tan would have applied in the Appellant's case only to the charges relating to the fraudulent evasion of GST, and not the fraudulent evasion of excise duty, notwithstanding that the offences arose in relation to importing of the same motor vehicles. Extending the sentencing framework to cover offences concerning the fraudulent evasion of excise duty was therefore in line with the High Court's intentions in Melvin Tan: at [32] and [36].

(5) However, while the Prosecution sought for the sentencing framework in Melvin Tan to be extended to all specified offences punishable under s 128L(2) of the Customs Act, its position did not consider that there were separate punishment provisions and carve-outs for offences involving goods consisting wholly or partly of relevant tobacco products, as provided under ss 128L(2), 128L(4), 128L(5) and 128L(5A) of the Customs Act. Given the lack of full arguments on the issue and that the facts of the Appellant's case did not give rise to other types of specified offences punishable under s 128L(2) of the Customs Act, it was appropriate only to extend the sentencing framework in Melvin Tan to also apply to offences concerning the fraudulent evasion of excise duty payable on imported goods, where no harmful goods were involved: at [32], [34], [37] and [38].

(6) The fines imposed by the DJ were about 37.7% higher than the indicative starting fines derived from an application of the sentencing framework in Melvin Tan to the Appellant's charges punishable under s 128L(2) of the Customs Act: at [40] to [43].

(7) The fines imposed by the DJ were not manifestly excessive. First, the indicative starting fines derived from an application of the sentencing framework in Melvin Tan only applied to first-time offenders who had pleaded guilty at the earliest available opportunity. Second, under the second step of the sentencing framework in Melvin Tan, an uplift to the indicative starting fines was necessary to account for the aggravating factors which featured in the Appellant's case. Third, under the third step of the sentencing framework in Melvin Tan, the court was required to consider the totality principle. The DJ had already done so in the court below. Therefore, the fines imposed by the DJ in relation to the Appellant's charges punishable under s 128L(2) of the Customs Act were upheld: at [45] to [47].

(8) The default imprisonment terms imposed by the DJ were reasonably calibrated based on the fine imposed for each charge: at [50].

(9) The Appellant's request for his total imprisonment term, including the default imprisonment terms, to be backdated to account for his period of remand was denied for three reasons. First, the default imprisonment terms could not be backdated to commence from the date of the Appellant's remand. Second, the DJ had already considered the Appellant's remand period in calibrating the default imprisonment term for each charge. Third, the Appellant was remanded only because he had absconded and failed to comply with the conditions stated in a court order, diminishing the significance of his period of remand: at [51] to [53].

(10) The Prosecution's application in CR 3 was allowed. As the DJ had recognised in her grounds of decision, the fine of $18,903 which was imposed for the charge, DAC-922466-2019, was in excess of the maximum fine prescribed under s 128L(1) of the Customs Act. The sentence imposed by the DJ was therefore set aside to remedy the serious injustice. The maximum fine of $10,000 (with a default sentence of one week's imprisonment) was imposed instead, in view of the seriousness of the Appellant's offence: at [55] to [56].

Case(s) referred to

PP v Tan Teck Leong Melvin[2023] 5 SLR 1666 (folld)

Facts

The appellant, Mr Nicholas Ng (“the Appellant”), was the sole director and shareholder of a company named 1 Genesis Pte Ltd (“1 Genesis”). Under the name of 1 Genesis, the Appellant imported motor vehicles from the United Kingdom into Singapore. As part of the process for importing a vehicle into Singapore, the Appellant was required to submit a declaration to the Singapore Customs (“Customs”) in respect of the cost, insurance and freight (“CIF”) value of the vehicle, which was typically the price at which the importer bought the vehicle. Customs relied on the declaration submitted by the Appellant to calculate the approved value at which the importer could import the vehicle into Singapore. The amount of excise duty, goods and services tax (“GST”) and additional registration fee (“ARF”) payable by the importer for the vehicles was also determined from the approved value.

The Appellant faced 23 charges relating to the excise duty, GST and ARF payable on nine vehicles which the Appellant had imported into Singapore. According to the Prosecution, the Appellant had undeclared the CIF values of the nine vehicles and was therefore liable to pay a lower amount of excise duty, GST and ARF. The 23 charges comprised: (a) six charges under s 128D and punishable under s 128L(2) of the Customs Act (Cap 70, 2004 Rev Ed) (“Customs Act”) which concerned the fraudulent evasion of excise duty leviable on eight of the vehicles; (b) six charges under s 128D of the Customs Act read with ss 26 and 77 of the Goods and Services Tax Act (Cap 117A, 2005 Rev Ed) (“GST Act”) and punishable under s 128L(2) of the Customs Act which concerned the fraudulent evasion of GST leviable on eight of the vehicles; (c) one charge under s 128(1)(a) and punishable under s 128L(1) of the Customs Act which concerned the Appellant's conduct of causing Penanshin Air Express Pte Ltd (“Penanshin Air”) to incorrectly declare the value of a vehicle in a cargo clearance permit that resulted in a shortfall in the excise duty payable; (d) one charge under s 128(1)(a) of the Customs Act read with ss 26 and 77 of the GST Act and punishable under s 128L(1) of the Customs Act which concerned the Appellant's conduct of causing Penanshin Air to incorrectly declare the value of a vehicle in a cargo clearance permit that resulted in a shortfall in the GST payable; and (e)...