Public Prosecutor v Rosli bin Yassin

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 08 March 2013
• Neutral Citation: [2013] SGCA 21
• Plaintiff Counsel: Teo Guan Siew and Toh Puay San (Attorney-General's Chambers)
• Docket Number: Criminal Appeal No 5 of 2012
• Date: 08 March 2013
• Hearing Date: 15 January 2013
• Subject Matter: Criminal Procedure and Sentencing
• Year: 2013
• Citation: [2013] SGCA 21
• Defendant Counsel: Derek Kang Yu Hsien and Nadia Yeo (Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Published date: 13 March 2013

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an appeal by the Public Prosecutor (“the Appellant”) against the sentence of Rosli bin Yassin (“the Respondent”) in respect of eight charges which were imposed by the High Court in Public Prosecutor v Rosli bin Yassin [2012] SGHC 129 (“the GD”). The charges were as follows: Four charges of cheating with common intention under s 420 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”); One charge of theft under s 379 of the Penal Code; One charge of criminal breach of trust under s 406 of the Penal Code; One charge of abetment of forgery for the purpose of cheating under s 468 read with s 109 of the Penal Code; and One charge of culpable homicide not amounting to murder under s 304(a) of the Penal Code.

The Respondent pleaded guilty to all eight charges, and consented to another 11 charges being taken into consideration for the purposes of sentencing.

It was common ground that the Respondent had met the technical requirements for preventive detention as set out in s 12(2)(b) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”), which reads as follows: (2) Where a person of the age of 30 years or above —

...

(b) is convicted at one trial before the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he reached the age of 16 years for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient for the protection of the public that he should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiration of his sentence, the court, unless it has special reasons for not doing so, shall sentence him to preventive detention for a period of 7 to 20 years in lieu of any sentence of imprisonment.

The trial judge (“the Judge”) held that the appropriate starting point was 15 years’ preventive detention. Taking into account the fact that the Respondent had spent three years in remand, the Judge sentenced the Respondent to 12 years’ preventive detention (see [69]–[76] of the GD).

The Appellant appealed against the sentence meted out by the Judge on the ground that it was manifestly inadequate. At the end of the hearing before us, we unanimously allowed the appeal. We sentenced the Respondent to 20 years’ preventive detention, which is the maximum possible sentence. We now give the detailed grounds for our decision.

The issue

The sole issue in this appeal was whether the 12-year sentence of preventive detention imposed by the Judge was manifestly inadequate.

Let us turn, first, to the applicable legal principles.

The applicable legal principles The law on appellate intervention

It is trite law that an appellate court has only a limited scope to intervene when reappraising sentences imposed by a court at first instance. This is because sentencing is very much a matter of discretion and requires a delicate balancing of myriad considerations which are often plainly conflicting (see, for example, the decisions of this court in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Mohammed Liton”) at [81] and Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [13]).

Insofar as the applicable principles are concerned, the following observations from Mohammed Liton (at [81]–[84]) may be usefully noted: 81 It is well-settled law that an appellate court has only a limited scope to intervene when reappraising sentences imposed by a court at first instance. This is because sentencing is largely a matter of judicial discretion and requires a fine balancing of myriad considerations: see Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 (“Angliss”) at [13]. 82 Notwithstanding the discretionary nature of the sentencing process, it has also been established in cases such as Tan Koon Swan v PP [1985-1986] SLR(R) 976 and PP v Cheong Hock Lai [2004] 3 SLR(R) 203 that an appellate court will nonetheless correct sentences in the following situations: (a) where the sentencing judge erred in respect of the proper factual basis for sentence; (b) where the sentencing judge failed to appreciate the materials placed before him; (c) where the sentence imposed was wrong in principle and/or law; and/or (d) where the sentence imposed was manifestly excessive or manifestly inadequate, as the case may be. 83 With respect to reason (d) in the preceding paragraph, which was relied on by the appellant in the present appeal, Yong CJ in PP v Siew Boon Loong [2005] 1 SLR(R) 611 clarified (at [22]) what was meant by a sentence that was manifestly excessive or manifestly inadequate:

When a sentence is said to be manifestly inadequate, or conversely, manifestly excessive, it means that the sentence is unjustly lenient or severe, as the case may be, and requires substantial alterations rather than minute corrections to remedy the injustice ... [emphasis added]

It has also been said (in the Malaysian High Court decision of Sim Boon Chai v Public Prosecutor [1982] 1 MLJ 353) that a sentence is manifestly excessive when it fails to accommodate the existing extenuating or mitigating circumstances. A sentence which is plainly out of line with an established benchmark is also manifestly excessive: see, for example, Tuen Huan Rui Mary v PP [2003] 3 SLR(R) 70. By parity of reasoning, the same must also apply in ascertaining whether a sentence is manifestly inadequate. Indeed, in Moey Keng Kong v PP [2001] 2 SLR(R) 867, it was observed that a sentence would be manifestly inadequate when, although it should reflect the need for both deterrence and retribution, it reflected only deterrence or retribution (which was not the situation on the facts of that particular case). At this point, we pause to observe that while guidelines and benchmarks provide consistency and predictability so far as sentencing is concerned, courts should never apply benchmarks mechanically without a proper evaluation of the facts of the case.

84 On this premise, it bears repeating that an appellate court should only intervene where the sentence imposed by the court below was “manifestly” inadequate - that in itself implies a high threshold before intervention is warranted. In the light of the highly discretionary nature of the sentencing process and the relatively circumscribed grounds on which appellate intervention is warranted, the prerogative to correct sentences should be tempered by a certain degree of deference to the sentencing judge's exercise of discretion. Indeed, as Rajah J reiterated in Angliss ([81] supra at [14]):

The mere fact that an appellate court would have awarded a higher or lower sentence than the trial judge is not sufficient to compel the exercise of its appellate powers, unless it is coupled with a failure by the trial judge to appreciate the facts placed before him or where the trial judge's exercise of his sentencing discretion was contrary to principle and/or law. [emphasis added]

The law relating to preventive detention

The general principles relating to preventive detention are clear, and are neatly encapsulated within the following observations of this court in Public Prosecutor v Syed Hamid bin A Kadir Alhamid [2002] 2 SLR(R) 1018 at [10]: 10 A sentence of preventive detention is intended for habitual offenders, aged more than 30 years, whom the court considers to be too recalcitrant for reformation (see PP v Wong Wing Hung [1999] 3 SLR(R) 304). Preventive detention ought to be imposed if the accused has shown that he is such a menace to society that he should be incarcerated for a substantial period of time (see PP v Perumal s/o Suppiah [2000] 2 SLR(R) 145). While the court will consider the need for the public to be protected from physical bodily harm, offences against property, such as theft, offences against the peace, such as affray, and offences against society in general, such as the consumption and possession of drugs, may also be taken into account for the purpose of determining whether it is appropriate for an order of preventive detention to be made. In Tan Ngin Hai v PP [2001] 2 SLR(R) 152 at [8], Yong Pung How CJ explained:

... In my view, there is no rule of law which states that protection of the public necessarily refers to protecting them only from physical bodily harm ... As such, the imposition of preventive detention ought not to be restricted only to persons with a history of violent behaviour as exhibited through the commission of violent crimes. Instead, the real test is whether or not the degree of propensity towards any type of criminal activity at all is such that the offender ought to be taken out of circulation altogether in order that he be not afforded even the slightest opportunity to give sway to his criminal tendencies again. ...

The overarching principle is the need to protect the public (indeed, this principle is to be found in the express language of s 12(2) of the CPC itself (see above at [3])). This does not mean that the situation of the individual offender is irrelevant. However, the applicable principles in this particular regard are formulated with the public interest as the central point of reference constantly in view. Put simply, if the individual offender is such a habitual offender whose situation does not admit of the possibility of his or her reform, thus constituting a menace to the public (and this would include, but is not limited to, offences involving violence), a sentence of preventive detention would be imposed on him or her for a substantial period of time in order to protect the public. As Yong Pung How CJ put it in the Singapore High Court...