Ong Chee Eng v PP

• Jurisdiction: Singapore
• Judgment Date: 24 May 2012
• Date: 24 May 2012
• Docket Number: Magistrate's Appeal No 35 of 2012
• Court: High Court (Singapore)

Ong Chee Eng

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 115

Chao Hick Tin JA

Magistrate's Appeal No 35 of 2012

High Court

Criminal Procedure and Sentencing—Sentencing—Appeal against sentence imposed for conviction on offence of harassment—Role of deterrence in such offences—Section 28 Moneylenders Act (Cap 188, 2010 Rev Ed)

The appellant pleaded guilty to 24 charges, mainly loan shark harassment offences, with a further 48 charges taken into consideration. He was sentenced to a total of 84 months' imprisonment, 24 strokes of the cane, and a fine of $30,000.

In his mitigation plea, the appellant said he had got involved with loan sharks only because he had guaranteed a loan for a friend, who had then absconded. The appellant was subsequently retrenched and despite his efforts could not find a new job. He sold his home to try and repay the loans, but even that was not enough. It was in these circumstances that he began working for the loan sharks by harassing other debtors. Nonetheless he took tangible steps to minimise the damage caused by his acts of harassment. For example, he splashed only a small amount of heavily diluted paint that could be easily wiped away with a cloth. He also used only Zippo lighter fluid to start his fires, and ensured that they burned out quickly with little damage caused.

Held, allowing the appeal

(1) It was undoubtedly Parliament's intention to deter the commission of loan shark offences. But deterrence was just one aspect of a sophisticated and holistic solution targeted at the complex causes of loan shark offences. Some people borrowed from loan sharks out of a genuinely desperate financial need. When they failed to repay, they were then forced to turn to harassment in order to repay their debts. Parliament had expressed some measure of sympathy for such people: at [10] to [18].

(2) Parliament had vested the courts with a reasonable amount of discretion to determine the appropriate sentence for loan shark harassers. The courts had to carefully balance between upholding the deterrence objectives on one hand, and applying punishment in a sensitive and nuanced manner on the other hand: at [19] to [22].

(3) A key feature in the administration of criminal justice was that the punishment imposed had to fit the crime and the criminal. Even in a case like the present, where Parliament had clearly declared its intention to deter loan shark offences, deterrence could not be indiscriminate. This principle applied also to the use of benchmark sentences. The court had to resist an unhesitating application of benchmark sentences without first thoroughly considering if the particular factual circumstances fell within the reasonable parameters of the benchmark case. Where Parliament had enacted a range of possible sentences, it was the duty of the court to ensure that the full spectrum was carefully explored in determining the appropriate sentence: at [23] and [24].

(4) The district judge had been overly focused on the principle of deterrence and the number of charges the appellant faced. He did not give sufficient consideration to the circumstances in which the appellant had been forced into crime, nor to the steps he had taken to minimise the damage caused by his acts. The Prosecution had also erred in placing too much weight upon unreported authority: at [26] to [33].

(5) The bulk of the charges brought against the appellant was on account of his confession which demonstrated his sense of remorse of wanting to come clean, a factor which was not given adequate consideration to by the district judge: at [34] and [35].

(6) In the circumstances of the case, the 24 months' imprisonment imposed by the District Court for each of the fire harassment charges would be reduced to 16 months. Three of the fire harassment charges and one of the paint harassment charges were to run consecutively making for a total of 60 months' imprisonment: at [38] to [40].

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

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

Luong Thi Trang Hoang Kathleen v PP [2010] 1 SLR 707 (refd)

PP v Goh Kim Leong Jeffrey District Arrest Case 17821 of 2011 (not folld)

PP v Kwong Kok Hing [2008] 2 SLR (R) 684; [2008] 2 SLR 684 (refd)

PP v Nelson Jeyaraj s/o Chandran [2011] 2 SLR 1130 (distd)

PP v Siew Boon Loong [2005] 1 SLR (R) 611; [2005] 1 SLR 611 (refd)

PP v Soh Hann Kwang District Arrest Case 20162 of 2011 (not folld)

PP v Tan Chiah Khing [2012] SGDC 35 (refd)

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

Tan Kay Beng v PP [2006] 4 SLR (R) 10; [2006] 4 SLR 10 (refd)

Moneylenders Act (Cap 188,2010 Rev Ed) ss 14, 28 (1) , 28 (2) , 28 (2) (a) , 28 (2) (b) , 28 (3) (b) (i) , 28B

Appellant in person

DPP Wong Woon Kwong (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Chao Hick Tin JA

1 The appellant was caught after a month-long spree during which he harassed loan sharks' debtors by splashing paint, locking doors, setting fires, and writing ‘O$P$’ outside their homes. The appellant pleaded guilty to 24 charges with a further 48 charges taken into consideration. The charges that the Prosecution proceeded with fell into four categories.

2 The first category (five charges) dealt with harassment by fire. The appellant was sentenced to 24 months' imprisonment and three strokes of the cane for each charge in the first category. The second category (three charges) related to locking the victims' doors with bicycle locks. The appellant was sentenced to 15 months' imprisonment and three strokes of the cane for each charge. The third category (15 charges) concerned the splashing of paint. He was sentenced to 12 months' imprisonment and three strokes of the cane for each charge.

3 These three categories of charges related to the offence under s 28 (2) (read with s 28 (1)) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (‘the Act’). Section 28 (2) (a) of the Act applies to first-time offenders and provides for mandatory imprisonment for up to five years and a fine of $5,000 to $50,000. The punishment for repeat offenders is found in s 28 (2) (b): between two to nine years' imprisonment and a fine of $6,000 to $60,000. Where there is damage to property, s 28 (3) (b) (i) provides that three to six strokes of the cane will be imposed. The Prosecution confirmed during the hearing of the appeal that it was not proceeding under s 28 (2) (b) of the Act.

4 The fourth category comprised a single charge of assisting in unlicensed money-lending activities by distributing the namecards of a loan shark called ‘David’. This is an offence under s 14 of the Act. The punishment for first time offenders is a fine of $30,000 to $300,000 and mandatory imprisonment of up to four years. The appellant was sentenced to one month's imprisonment and fined $30,000 on this charge. The remaining 48 charges were mainly for harassment by splashing paint and writing on walls, with one count of assisting in unlicensed moneylending.

5 The district judge (‘the District Judge’) ordered three sentences for fire harassment and one sentence for paint harassment to run consecutively. That gave a global sentence of 84 months' imprisonment, 24 strokes of the cane, and a $30,000 fine. The appellant has now appealed to this court on the ground that the 84 months' imprisonment term is manifestly excessive in the circumstances of this case.

Facts

6 The appellant is a 44-year-old man. He has two daughters. The elder is studying in a Polytechnic and the younger has been diagnosed with Attention Deficit Hyperactivity Disorder. The appellant's wife recently underwent an operation for cervical cancer. He is the sole breadwinner for his family. His parents are old and ill - his father has high blood pressure and diabetes and his mother has recurrent psychiatric issues. The appellant was unemployed at the time of his arrest and had previously worked in sales for the high-end fashion stable Club 21. He has an otherwise crime-free record.

7 According to the appellant, his troubles began when he agreed to guarantee a friend's loan from a loan shark. His friend fled Singapore without paying. It appears that the appellant was initially able to service the loan, but in October 2010 he was retrenched from his sales job. He sought help from the Chinese Development Assistance Council and from his Member of Parliament (‘MP’), but could not find a job. To repay the outstanding loan, he began borrowing from other loan sharks. To pay these new debts, he took on even more loans. In half a year's time, the amount of money he owed to the loan sharks escalated from $5,000 to $13,000. To repay them he decided to sell his Housing and Development Board (‘HDB’) flat. But it took some time for the sale of the flat to be completed, and by the time of completion his loans had ballooned to $40,000, owed to some 30 different loan sharks. At this time, he was advised by his friends to run and leave the new homebuyer to face the loan sharks' wrath. The appellant did not take his friends' advice even though he could not pay the loans in full. Only $30,000 was available from the sale proceeds to repay the loans (presumably he downgraded to a smaller flat). He was still unemployed and still short of $10,000.

8 Options running out, he started working for the loan sharks in May 2011. The victim had now turned terror. But according to him he was a harasser with a heart, acting with reluctance and regret. He never harassed a house if he saw a sign stating that the debtors had already moved out. He diluted the paint with turpentine in the ratio of 1:1 so it could be easily wiped away. He splattered only half a plastic cup's worth of paint to minimise the occupants' trouble of cleaning up. He wrote on the walls with a non-permanent white board marker so the intimidating scrawls could be removed with a wet cloth. As for...