Poh Boon Kiat v PP

• Jurisdiction: Singapore
• Judgment Date: 25 September 2014
• Date: 25 September 2014
• Docket Number: Magistrate's Appeal No 36 of 2014
• Court: High Court (Singapore)

Poh Boon Kiat

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 186

Sundaresh Menon CJ

Magistrate's Appeal No 36 of 2014

High Court

Courts and Jurisdiction—Court judgments—Prospective overruling of court judgments—Overruling of entrenched line of sentencing precedents which assumed that imprisonment term for offences under ss 140 and 146 Women's Charter (Cap 353, 2009 Rev Ed) was discretionary—Revised sentencing framework to some degree influenced by shift in starting position of sentencing for ss 140 and 146 offences—Whether application of doctrine of prospective overruling appropriate—Sections 140 and 146 Women's Charter (Cap 353, 2009 Rev Ed) Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Vice-related offences—Appropriate sentencing framework—Sections 140 (1) (b), 140 (1) (d), 146 and 148 Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Principle—Concurrent and consecutive sentences—Sentencing judge imposing three consecutive sentences on appellant for operating vice ring for 10 days—Whether sentencing judge erred in exercising discretion as to how many and which sentences to run consecutively—Section 307 (1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Words and Phrases—‘ [S] hall be liable’—Whether type of punishment after phrase ‘shall be liable’ in ss 140 and 146 Women's Charter (Cap 353, 2009 Rev Ed) discretionary—Sections 140 and 146 Women's Charter (Cap 353, 2009 Rev Ed)

The appellant was the mastermind of an online vice ring which was unravelled within 10 days of operation. At the time of his arrest, he employed five Thai prostitutes who worked from two rented premises. The appellant earned a total of $8,070 for himself from the vice operation. Three of the prostitutes were procured through agents in Thailand. The appellant had no prior antecedents.

The appellant pleaded guilty to eight charges under Pt XI of the Women's Charter (Cap 353, 2009 Rev Ed): two for procuring a prostitute, two for receiving a prostitute, two for harbouring a prostitute, one for living on immoral earnings (together, ‘the ss 140 and 146 offences’) and one for managing a brothel. 12 similar charges were taken into consideration.

The prescribed punishments for the ss 140 and 146 offences stated that an offender ‘shall be liable on conviction to imprisonment for a term not exceeding 5 years and shall also be liable to a fine not exceeding $10,000’. The prescribed punishment for managing a brothel stated that an offender ‘shall be liable on conviction to a fine not exceeding $3,000 or to imprisonment for a term not exceeding 3 years or to both’.

The district judge (‘the District Judge’) proceeded on the basis that the starting position for the sentencing of all eight charges was a fine. However, he was satisfied that the custodial threshold had been crossed and sentenced the appellant to (a) four months' imprisonment for each charge of the ss 140 and 146 offences and (b) one month's imprisonment for managing a brothel. He ordered three sentences - one sentence for procuring a prostitute, living on immoral earnings and managing a brothel - to run consecutively such that the aggregate sentence was nine months' imprisonment.

Held, allowing the appeal:

(1) It was appropriate to consider afresh the sentencing benchmarks for first-time offenders of the vice-related offences which the appellant was charged with for two reasons. The first reason was that the sentencing precedents for ss 140 and 146 offences incorrectly assumed that an imprisonment term was discretionary and that a fine was the norm for a first offender who pleaded guilty and where no aggravating factors were present. This was premised on the phrase ‘shall be liable’ before the two types of punishments listed in the prescribed punishments for these offences conferring on the court a discretion to impose either or both types of punishments. Although the courts had tended to view penal provisions introduced with ‘shall be liable’ as conferring a discretion, this generally was not and ought not to be done without considering the provision in its textual as well as legislative context. Based on the legislative history and context of the relevant punishment provisions, an imprisonment term was in fact mandatory for ss 140 and 146 offences. The second reason was that the sentencing precedents for vice-related offences did not take into account the full range of possible sentences provided for in the Women's Charter: at [28] , [36] , [57] , [59] to [61] and [67] .

(2) Some structure would be brought to the law on sentencing for vice-related offences by determining the severity of the offence based on the principal factual elements of the case that were closely related to (a) the culpability of the offender in carrying out the offence and (b) the harm resulting from the offender's actions. These principal facts determined the starting point and range of sentences within which the offender ought to be sentenced. The precise sentence, however, depended upon the aggravating or mitigating circumstances present in each individual case: at [74] and [79] .

(3) Under the revised sentencing benchmarks, the starting point for sentencing the appellant would have been (a) six months' imprisonment per charge for the ss 140 and 146 offences and (b) three months' imprisonment for managing a brothel. In light of the aggravating and mitigating factors (which applied equally to all offences preferred since the appellant was being punished for his involvement in a single criminal enterprise where the different types of offences preferred reflected different but equally important aspects of the enterprise), the appellant ought to have received a sentence of (a) eight months' imprisonment per charge for the ss 140 and 146 offences and (b) four months' imprisonment for managing a brothel: at [93] and [102] .

(4) The District Judge erred in ordering three sentences to run consecutively. The appellant was being punished for setting up and operating an online prostitution ring which barely survived for two weeks. Common sense dictated that the statutorily mandated minimum of two consecutive sentences should have been ordered. Moreover, as the offence of managing a brothel was the most distinct offence from the others, the District Judge ought to have ordered the sentence for one charge of procuring a prostitute and the charge of managing a brothel to run consecutively: at [110] .

(5) Based on the revised sentencing framework, the appropriate aggregate sentence of imprisonment would have been 12 months; the nine months aggregate sentence imposed by the District Judge could not be regarded as manifestly excessive: at [111] .

(6) Nevertheless, the circumstances of the present case were unique and it was appropriate to invoke the doctrine of prospective overruling and consider the appeal on the basis of the prevailing practice and precedents instead of the revised sentencing framework. The sentencing precedents entrenched the proposition that the starting point for sentencing first-time offenders of ss 140 and 146 offences ought to be a fine. The shift in the starting point for sentences for these offences constituted a fundamental and unforeseeable change in the law from the appellant's perspective. Further, the revised sentencing framework for all the offences which the appellant was charged with were designed to provide a coherent framework for sentencing and were, to some degree, influenced by the shift in the sentencing starting point for the ss 140 and 146 offences: at [113] .

(7) Having regard to the prevailing practice and precedents, the appellant ought to have received a sentence of (a) five months' imprisonment for each charge for the ss 140 and 146 offences; and (b) two months' imprisonment for managing a brothel. Had only one charge of procuring a prostitute and the charge of managing a brothel to run consecutively, the aggregate sentence would be seven months' imprisonment. The sentence imposed by the District Judge was thus manifestly excessive and in any event incorrect in principle: at [116] to [118] .

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

Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 (folld)

Lee Swee Yang v PP [1991] SGHC 117 (refd)

Lim Li Ling v PP [2007] 1 SLR (R) 165; [2007] 1 SLR 165 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (folld)

Ong Chee Eng v PP [2012] 3 SLR 77 (folld)

PP v Chan Soh [2008] SGDC 277 (refd)

PP v Govindaraju Sivakumar [2014] SGDC 1 (refd)

PP v Hue An Li [2014] 4 SLR 661 (folld)

PP v Lee Soon Lee Vincent [1998] 3 SLR (R) 84; [1998] 3 SLR 552 (refd)

PP v Li Chun Mei [2008] SGDC 182 (refd)

PP v Lim Teck Chye [2004] SGDC 14 (refd)

PP v Low Chuan Woo [2014] SGHC 118 (refd)

PP v Mahat bin Salim [2005] 3 SLR (R) 104; [2005] 3 SLR 104 (refd)

PP v Nguyen Thi Bich Lieu [2012] SGDC 175 (refd)

PP v Peng Jianwen [2013] SGDC 248 (refd)

PP v See Guek Kheng [2010] SGDC 335 (refd)

PP v Tan Meng Chee [2012] SGDC 191 (refd)

PP v Tang Boon Thiew [2013] SGDC 52 (refd)

PP v Tang Huisheng [2013] SGDC 432 (refd)

Tan Tian Tze v PP [2002] SGDC 210 (refd)

Wong Kai Chuen Philip v PP [1990] 2 SLR (R) 361; [1990] SLR 1011 (refd)

Yong Kheng Leong v Panweld Trading Pte Ltd [2013] 1 SLR 173 (refd)

Common Gaming Houses Act (Cap 49, 1985 Rev Ed) s 5 (a)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 307

Immigration Act (Cap 133, 2008 Rev Ed) ss 8 (3) (e) , 8 (3) (f) , 8 (5) , 31, 58

Interpretation Act (Cap 3, 1970 Rev Ed) ss 38, 38 (1) , 38 (2) , 38 (2) (a) , 38 (2) (d)

Limitation Act (Cap 10, 1970 Rev Ed) s 6 (8)

Limitation Ordinance 1959 (No 57 of 1959) s 6 (6)

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)

Ordinance No 143 (Women and Girls Protection) s 18

Penal Code (Cap 224, 1985 Rev Ed) ss 356, 380, 394

Penal Code (Cap 224, 2008 Rev Ed) ss...