PP v Saiful Rizam bin Assim

• Jurisdiction: Singapore
• Judgment Date: 15 January 2014
• Date: 15 January 2014
• Docket Number: Magistrates' Appeals Nos 76, 78 and 79 of 2013
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Saiful Rizam bin Assim and other appeals

Defendant

[2014] SGHC 12

Chao Hick Tin JA

Magistrates' Appeals Nos 76, 78 and 79 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Appeals—Whether to impose reformative training when bulk of imprisonment sentence appealed against had already been served—Principle of proportionality in sentencing in relation to reformative training

The respondents were staff assistants to an officer in charge (‘the complainant’) of the case property store of a police division (‘the Store’), where seized case exhibits were kept, as part of their national service with the Singapore Police Force.

While the complainant was away on leave, the first respondent took the keys from her drawer and, together with the second respondent, took four handphones from the cabinet. On another occasion later, the first respondent took two pairs of shorts and a haversack from the Store, and had the second respondent help him remove those items from their office to him. Two months later, the second respondent returned to the Store and took six handphones, disposing of two, selling three and giving one to the third respondent, who knew that it was a stolen handphone. Barely a week later, the second and third respondent returned to the Store and took four handphones. Two days later, the second respondent took four more handphones, and agreed with the third respondent to return the next day. The next day, the second respondent took 12 handphones from the Store while the third respondent waited for him near the police station. The second respondent threw away six handphones of supposedly poorer quality and together with the third respondent sold the remaining six.

The respondents eventually admitted to the offences. After being convicted of the charges relating to theft of the handphones from the Store, the second respondent further stole his mother's handphone while on bail.

When the appeal against the district judge's sentences was heard by the High Court on 31 July 2013, the respondents had already served out a considerable proportion of their imprisonment sentences, presenting a situation of potential unfairness if the High Court were then to decide to substitute their imprisonment sentence with reformative training which could not be backdated. The High Court thus adjourned the hearing to 21 August 2013 and called for an amicus curiae to provide the court with assistance on those issues.

Held, dismissing the appeal:

(1) Rehabilitation should have been the primary sentencing consideration as the respondents were young, free of antecedents and their crimes were not particularly heinous: at [17] and [18] .

(2) The aim of reformative training was for the rehabilitation of the offender, and had to not be lost sight of when considering the principle of proportionality. The fact that the minimum period of reformative training (18 months) was longer than the imprisonment sentence which the district judge had intended to impose should not have been a bar to reformative training being ordered: at [25] .

(3) Reformative training should have been imposed on the respondents from the outset although the circumstances presented at the appeal did not warrant a substitution of the imprisonment sentence by reformative training: at [26] .

(4) The phrase ‘circumstances of the offence’ in s 305 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) included considerations of proportionality between the punishment meted out and the nature and gravity of the offence. Hence the specific facts of the case had to be carefully considered, and the mere fact of a conviction should not be sufficient to warrant a reformative training order: at [38] and [41] .

(5) To impose reformative training on the respondents at the time of the hearing of the appeal would have resulted in grossly disproportionate punishment on the respondents as it was still a form of punishment, and not a soft option. To do so would have been akin to ‘double punishment’ on them due to the length of imprisonment which had already been served: at [42] and [43] .

Liow Siow Long v PP [1970] 1 MLJ 40 (folld)

Nur Azilah bte Ithnin v PP [2010] 4 SLR 731 (folld)

PP v Abdul Hameed s/o Abdul Rahman [1997] 2 SLR (R) 71; [1997] 3 SLR 186 (folld)

PP v Foo Shik Jin [1996] SGHC 186 (distd)

PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR (R) 449; [2008] 1 SLR 449 (refd)

PP v Loqmanul Hakim bin Buang [2007] 4 SLR (R) 753; [2007] 4 SLR 753 (refd)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (refd)

R v Amos [1961] 1 WLR 308; [1961] 1 All ER 191 (refd)

R v James [1960] 1 WLR 812; [1960] 2 All ER 863 (refd)

R v Longstreeth (23 June 1952) (CCA, Eng) (refd)

R v Trigg [1961] Crim L R 126 (refd)

Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12 (folld)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 305 (consd) ;ss 305 (1) , 383 (1)

Penal Code (Cap 224, 2008 Rev Ed) ss 34, 109, 381, 411 (1) , 414 (1)

Training Centres Ordinance (Cap 280) (HK) s 4 (1)

Leong Wing Tuck and Nicholas Seng (Attorney-General's Chambers) for theappellant

Amarick Gill and Tan Jia Wei (Amarick Gill & Co) for the respondents

Tan Kai Liang (Allen & Gledhill LLP) as amicus curiae.

Chao Hick Tin JA

Introduction

1 These three appeals (viz, Magistrate's Appeals Nos 76, 78 and 79 of 2013, collectively ‘the present appeals’) were brought by the Prosecution (‘the Appellant’) against the sentences meted out by the district judge (‘the District Judge’) to 19-year-old Saiful Rizam bin Assim (‘R 1 Saiful’), 20-year-old Muhammad Erman bin Iman Tauhid (‘R2 Erman’) and 19-year-old Muhammad Yunus bin Aziz (‘R 3 Yunus’) (collectively, ‘the Respondents’). The Respondents had all pleaded guilty to the following charges:

	Charges convicted on	Charges taken into consideration
R 1 Saiful	• 1× theft as servant under s 381 of the Penal Code (Cap 224, 2008 Rev Ed) (‘the PC’) (DAC 45721/2012)	• 1× theft as servant under s 381 of the PC
R2 Erman	• 1× dishonestly receiving stolen property under s 411 (1) of the PC (DAC 45729/2012) • 1 × voluntarily assisting in making away with stolen property under s 414 (1) of the PC (DAC 45731/2012) • 2 × theft as servant under s 381 of the PC (DAC 45735 & 45738/2012) • 1 × theft as servant in furtherance of common intention under s 381 read with s 34 of the PC (DAC 45737/2012) • 1 × abetment by conspiracy of theft as servant under s 381 read with s 109 of the PC (DAC 45739/2012)	• 4× theft as servant under s 381 of the PC • 1 × abetting theft as servant under s 381 read with s 109 of the PC
R 3 Yunus	• 1× dishonestly receiving stolen property under s 411 (1) of the PC (DAC 45725/2012) • 1 × theft as servant in furtherance of common intention under s 381 read with s 34 of the PC (DAC 45726/2012) • 1 × abetment by conspiracy of theft as servant under s 381 read with s 109 of the PC (DAC 45727/2012)	• 1× theft as servant under s 381 of the PC

Facts

2 At all material times, the Respondents were serving their national service with the Singapore Police Force (‘SPF’) and were posted as staff assistants to the officer in charge of the case property store of Ang Mo Kio Police Division (‘the Store’). Case exhibits seized in the course of police investigations were kept in the Store. R 1 Saiful and R 3 Yunus were Vigilante Corps Officers and R2 Erman was a Special Constabulary Officer. The Store had metal cabinets labelled ‘2011’ and ‘2012’ with a central locking mechanism that would lock all the cabinets simultaneously. There was also a wooden cabinet where handphones condemned for disposal were kept (‘the pedestal cabinet’). The keys to these cabinets were kept by the officer in charge of the Store (‘the complainant’). The complainant had given R2 Erman a key to unlock the door to the Store (‘the key’) for emergencies when she was not around. The complainant had also warned R2 Erman not to return to the Store after office hours or otherwise abuse the privilege of having the key.

3 On 13 April 2012, when the complainant was away on leave, R 1 Saiful searched her drawer and found the keys to open the pedestal cabinet. R 1 Saiful showed R2 Erman what was in the cabinet and took four handphones from it. R 1 Saiful kept two for himself and gave two to R2 Erman who sold them to a second hand dealer for $100.

4 On a day in May 2012, R 1 Saiful went to the Store and took two pairs of beach shorts and a haversack which were meant for disposal and told R2 Erman about it. At R 1 Saiful's request, R2 Erman helped the former removed the shorts and haversack from their office and R2 Erman passed them to R 1 Saiful who kept them for his own use.

5 On 7 July 2012, a day on which R2 Erman was not on duty, he returned and unlocked the Store with the key, forcibly opening the first drawer of the ‘2011’ cabinet and taking therefrom six handphones. He later disposed of two, sold three (for $1,200) and gave one to R 3 Yunus a week later (13 July 2012) who accepted it knowing that it was stolen from the Store.

6 On 13 July 2012, R2 Erman agreed to R 3 Yunus' suggestion to go back to the Store to steal. The two met on 14 July 2012 and took four handphones from the ‘2011’ cabinet which R2 Erman later sold for $1,350 at Ang Mo Kio Central.

7 On 15 July 2012, R2 Erman took four handphones from the ‘2011’ and ‘2012’ cabinets and sold them for $1,900.

8 On 16 July 2012, R2 Erman and R 3 Yunus went to the Store in accordance with their agreement the previous day. R 3 Yunus waited at the stadium opposite the police station while R2 Erman took 12 handphones from the ‘2011’ and ‘2012’ cabinets. R2 Erman threw away six of the handphones which he deemed to be of poor quality, and met up with R 3 Yunus. They then travelled to Ang Mo Kio Central where they sold the other six handphones for $1,700.

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