Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 24 July 2017
• Neutral Citation: [2017] SGHC 178
• Docket Number: Magistrate’s Appeals No 9259, 9260 and 9312 of 2016; Criminal Motion No 13 of 2017
• Date: 24 July 2017
• Published date: 28 July 2017
• Plaintiff Counsel: Kwek Mean Luck, S.C., Kow Keng Siong, Kumaresan Gohulabalan Randeep Singh Koonar, Ho Lian-Yi and Lu Yiwei (Attorney-General's Chambers)
• Defendant Counsel: Tan Jee Ming and Selvarajan Balamurugan (Straits Law Practice LLC),Kesavan Nair and Lam Pak Nian (Genesis Law Corporation),Daniel Gaw (Rajah and Tann Singapore LLP) as amicus curiae.
• Court: High Court (Singapore)
• Hearing Date: 25 April 2017
• Subject Matter: Appeal,Sentencing,Benchmark sentences,Adducing fresh evidence,Criminal Procedure and Sentencing

Chao Hick Tin JA (delivering the grounds of decision of the court):

National Service (“NS”) was introduced in post-independence Singapore in 1967. The mandatory conscription of young male Singaporeans was necessary for the establishment of a credible defence force for our newly independent state. NS was also to serve a nation-building role, as it was thought that participation in national defence by individuals from all strata of society would help foster national consciousness and loyalty: Singapore Parliamentary Debates, Official Report (13 March 1967) vol 25 at cols 1158-1162 (Mr Goh Keng Swee (Minister for Defence)).

Fifty years on, NS has become the cornerstone of Singapore’s defence and security. Full-time National Servicemen (“NSFs”) and Operationally-Ready National Servicemen (“ORNs”) form the backbone of the Singapore Armed Forces (“SAF”). All male Singapore citizens, regardless of their background, are required by law, pursuant to the Enlistment Act (Cap 93, 2001 Rev Ed) (“the Act”), to serve when they reach the age of 18 and are called upon to do so. The vast majority of these young people have complied with the enlistment notice. However, a small minority, which we shall refer to as “NS defaulters”, have not. In some cases, the NS defaulters have returned to serve their NS obligations at a later time of their choosing. In extreme cases, by the time they returned, they have reached an age where they could no longer serve their NS obligations at all.

MA 9259 of 2016, MA 9260 of 2016 and MA 9312 of 2016 (“MA 9259” “MA 9260” and “MA 9312”) were appeals brought by the Public Prosecutor against the sentences imposed by the court below on three NS defaulters. These appeals required us to consider a number of issues relevant to the sentencing of NS defaulters. The High Court in Public Prosecutor v Chow Chien Yow Joseph Brian [2016] 2 SLR 335 (“JBC”) had earlier enunciated a sentencing framework for NS defaulters. At the conclusion of the hearing on 25 April 2017, we allowed the appeals and enhanced the sentence imposed on each of the NS defaulters. In doing so, we provided brief reasons for departing from the decision in JBC. At the time judgment was delivered, we also indicated that full written grounds for our decision would be issued at a later date, which we now do.

Background Facts MA 9259 and MA 9260

The respondents in MA 9259 and MA 9260 are brothers (collectively “the brothers”). Their father is an Indian citizen, while their mother is a Singapore citizen. The brothers’ parents have had their matrimonial home in India ever since their marriage in 1990. The mother’s family is in Singapore and she had travelled here every now and then to visit them. One of the mother’s sisters lives in a HDB flat, and in respect of that flat, the mother had contributed to the purchase using her CPF funds and was registered as a co-owner with that sister.

Sakthikanesh

Sakthikanesh was 26 years old when the present appeals were heard. He was born in Singapore at the Kandang Kerbau Hospital (“KK Hospital”) on 23 March 1991. His mother had returned to Singapore to give birth to him, and mother and son left for India when he was two-and-a-half months old. Santhikanesh grew up in India and received his full education there from primary to tertiary level.

Sakthikanesh holds a Singapore passport, which he had renewed twice. He had used this passport to travel to Malaysia and India. Between 2000 and 2008, he made six visits to Singapore, each time staying slightly more than a month. On 5 June 2006, he applied for and obtained a Singapore National Registration Identity Card (“NRIC”).

Sakthikanesh attained sixteen-and-a-half years of age on 23 September 2007 and was, therefore, required, pursuant to s 32(1) read with s 2 of the Act, to obtain a Valid Exit Permit (“VEP”) to leave or remain outside Singapore. On 12 June 2008, when he was back in Singapore for a visit, he acknowledged receipt by hand of a NS Registration Notice issued by the Ministry of Defence (“MINDEF”) informing him to register for NS. He did not do so, and instead left Singapore about two weeks later, on 29 June 2008, to pursue his university education in India. A Further Reporting Order (“FRO”) was issued to him on 29 August 2008 requiring him to report for registration, pre-enlistment documentation and medical screening on 29 September 2008, with which he also failed to comply. Sakthikanesh only returned to Singapore on 16 April 2014, after completing his university studies. The charge proceeded against him was for his failure to comply with the FRO, thereby committing an offence under s 33(a) of the Act between 29 September 2008 to 15 April 2014, a period of about five years and six months. Another charge under s 33(b) of the Act, for remaining outside Singapore without a VEP from 29 June 2008 to 15 April 2014, a period of about five years and nine months, was taken into consideration.

Upon his return, Sakthikanesh enlisted into NS on 11 September 2014, when he was 23 years old. He was selected for and entered the Officer Cadet School (“OCS”), and was assessed by his superiors during his Basic Military Training (“BMT”) as well as at OCS as someone who was “motivated”, “trustworthy”, produced “above average results”, and who had “gone beyond what was required of him”. He was removed from the OCS barely a month before completing the course and becoming a commissioned officer, due to the proceedings for his earlier default of NS.

Vandana

Vandana was 23 years old when the present appeals were heard. He was born in Singapore on 2 November 1993, also at the KK Hospital. He left for India with his mother when he was one-and-a-half months old. He also grew up and received his education wholly in India.

Like Sakthikanesh, Vandana holds a Singapore passport, which he had renewed twice. Between 2000 and 2009, he made seven visits to Singapore from India, with each visit lasting slightly more than a month. On 23 May 2009, he applied for and obtained a Singapore NRIC.

Vandana attained sixteen-and-a-half years of age on 2 May 2010, and was likewise required to obtain a VEP pursuant to s 32(1) read with s 2 of the Act to leave or remain outside Singapore. On 20 May 2010, a Registration Notice informing Vandana to register for NS was sent to the family’s overseas address in India, as Vandana was in India after his last visit to Singapore in 2009. A second Registration Notice was subsequently sent to him on 2 July 2010. On 6 January 2011, an FRO was issued to Vandana requiring him to report on 31 January 2011 for registration, pre-enlistment documentation and medical screening, but he failed to comply. He remained in India until his return to Singapore on 4 June 2014. The charge proceeded against him was for his failure to comply with the FRO, thereby committing an offence under s 33(a) of the Act between 1 February 2011 and 3 June 2014, a period of about three years and four months. Another charge under s 33(b) of the Act, for remaining outside Singapore without a VEP from 1 August 2010 to 3 June 2014, a period of about three years and 10 months, was taken into consideration.

Upon his return, Vandana enlisted into NS on 27 November 2014 when he was 21 years old. He was not selected for OCS, unlike his brother, but was selected to participate in the 2015 National Day Parade as a Gunner on display and for an overseas training exercise held in Australia. He also emerged as the best trooper in his section after attaining the top score during an Army Training Evaluation from 23 to 25 February 2016, and was named Company Soldier of the Month of May 2016. Like his brother, Vandana received good testimonials from his superiors, praising him as “an influential leader within his platoon” who displayed “great initiative on multiple occasions”, “constantly motivate[d] his peers”, and always “[gave] his best during the trainings”.

MA 9312

Ang Lee Thye (“Ang”), the respondent in MA 9312, was born in Singapore on 24 November 1973. He spent the first 14 years of his life here, where he received his primary school education and part of his secondary school education. He was a student at Fairfield Methodist Secondary School and was staying at an HDB unit at Holland Close (“the Holland Close unit”) when he left Singapore in 1987 together with his mother and brother to join his father who was working in the US. His mother remains a co-owner of the Holland Close unit.

On 2 August 1991, when Ang was 17 years of age, MINDEF’s Central Manpower Base (“CMPB”) sent a Registration Notice to Ang at the Holland Close unit requiring Ang to report on 19 August 1991 for pre-enlistment registration and medical screening. Ang failed to comply. After investigations revealed that Ang had left Singapore with his family, CMPB sent another Registration Notice, this time to Ang’s uncle’s home at Jurong West, requiring Ang to register for NS as an overseas registrant. CMPB also highlighted the requirement for Ang to obtain a VEP to remain overseas, and the forms for the overseas registration and the application for the VEP were enclosed with the Registration Notice. Ang was to complete and return the forms to CMPB by 28 April 1991. When Ang failed to respond, CMPB on 5 December 1991 sent a reminder to Ang at the Holland Close unit, stating that an NS-liable person who failed to register would be guilty of an offence, and setting out the prevailing prescribed maximum punishment for that offence. Ang never responded.

It was close to 10 years later, on 5 November 2001, when Ang was 27 years of age, that he emailed CMPB stating that he had lost his passport and that his legal status in the US was in jeopardy. According to Ang, he had by then graduated from New York University with a Master’s Degree in Literature. He stated in the email that he had applied for a replacement passport at the Consulate General office of Singapore in New York but was...