PP v Sindok Trading Pte Ltd

• Judge: Aedit Abdullah J
• Judgment Date: 14 March 2022
• Docket Number: Magistrate's Appeals Nos 9839, 9840, 9841 and 9842 of 2020/01 and Magistrate's Appeal No 9842 of 2020/02
• Court: High Court (Singapore)

Public Prosecutor

and

Sindok Trading Pte Ltd (now known as BSS Global Pte Ltd) and other appeals

[2022] SGHC 52

Aedit Abdullah J

Magistrate's Appeals Nos 9839, 9840, 9841 and 9842 of 2020/01 and Magistrate's Appeal No 9842 of 2020/02

General Division of the High Court

Criminal Procedure and Sentencing — Sentencing — Appeals — Offenders supplying designated luxury goods to Democratic People's Republic of Korea in breach of sanctions — Offences under reg 5(a) read with reg 16(1) United Nations (Sanctions — Democratic People's Republic of Korea) Regulations 2010 — Whether imprisonment sentence and fines imposed were manifestly inadequate — Section 5(1) United Nations Act (Cap 339, 2002 Rev Ed) — Regulations 5(a) and 16(1) United Nations (Sanctions — Democratic People's Republic of Korea) Regulations 2010

Criminal Procedure and Sentencing — Sentencing — Fines — Offenders earning substantial gross profits from high volume of trade — Whether fine should comprise two distinct elements to disgorge profits and punish offender respectively — Section 5(1) United Nations Act (Cap 339, 2002 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Principles — Failure to comply with United Nations Security Council resolutions concerning threats to international peace and security — International disapproval and criticism from United Nations Security Council Panel of Experts — Whether there was substantial harm caused to Singapore's reputation and standing

Criminal Procedure and Sentencing — Sentencing — Principles — Offences committed after 2014 amendments to s 5(1) United Nations Act (Cap 339, 2002 Rev Ed) which enhanced punishments — Increased nuclear testing by Democratic People's Republic of Korea — Whether there should be uplift in sentence for post-amendment offences — Section 5(1) United Nations Act (Cap 339, 2002 Rev Ed)

Held, allowing the appeal and dismissing the cross-appeal:

(1) No sentencing benchmark was laid down in this case given the relative scarcity of cases. The framework in PP v Ng Kheng Wah[2019] SGDC 249 was not endorsed. There had to be sufficient care in the extensive usage of foreign authorities to determine sentencing benchmarks in Singapore. For the moment, first instance courts dealing with offences under the UN-DPRK Regulations could take guidance from this case, but should also focus on the specific factors at play before them: at [28], [29], [31] and [88].

(2) The UN-DPRK Regulations implemented the United Nations' (“UN”) sanctions imposed on the DPRK, which were intended to curb the DPRK's growing nuclear activities. Violation of the UN-DPRK Regulations would affect Singapore's international reputation and relations with other countries. Compliance with United Nation Security Council (“UNSC”) resolutions was paramount as they concerned threats to international peace and security. While the export of luxury goods did not create a threat in themselves, they provided succour and motivation for the continued contravention of UN sanctions by those in positions of power within the DPRK: at [39] to [41] and [44].

(3) Judicial notice was taken of the impact of scrutiny on our position as an international trade and financial centre. Where there was evidence of international disapproval, the harm would be assessed as significant. A 2018 investigative report by the UNSC Panel of Experts made explicit reference to SCN and the findings were reported to all UN members, which led to a negative light being cast onto Singapore. A fine alone would not be an appropriate sentence for Chong: at [42], [47] and [48].

(4) Specific factors going to culpability were the duration of offending, the level of premeditation, sophistication and planning, the amount of profit obtained, and any blatant disregard for sanctions. Chong's prolonged trading with the DPRK for almost six years, the multiple charges brought against him, the blatant indifference to sanctions imposed, the planning involved by routing the goods through circuitous routes, and the substantial profits made indicated that Chong's culpability was not low: at [49], [55], [56], [58], [62] and [64].

(5) There should be an uplift for offences committed after the 2014 amendments to reflect the greater harm to Singapore's reputation flowing from the perceived need at the intentional level for greater action to be taken against the DPRK due to increased nuclear testing. The objectives of the 2014 amendments supported this uplift. A sentence of two weeks' imprisonment per pre-amendment offence and four weeks' imprisonment per post-amendment offence was appropriate, and six weeks' imprisonment globally was imposed on Chong: at [85], [86] and [92].

(6) The bifurcated approach should be adopted in calibrating the fines to be imposed on the three companies. The court first determined how much to disgorge to negate the pecuniary gains of the offender, before considering the net detriment to be imposed to separately punish the offender in accordance with the harm caused and culpability. This approach operated even in the absence of any specific forfeiture provision: at [104] and [105].

(7) While caution had to be exercised not to impose double deterrent sentences where the corporate entity was essentially the alter ego of the errant director, there would not be any double counting in this case as there was a sufficiently strong public interest in deterring both individuals and corporate entities from breaching the UN-DPRK Regulations: at [109] and [115].

(8) In calibrating the fines, the relevant factors were: the type of items involved, the target market of the goods, the value of the goods, the amount of subterfuge, and the adverse impact on Singapore's international standing. Even the trade of quotidian goods might help sustain the continued flouting of UN sanctions. While the harm caused might be lower, the culpability of all three companies was medium given their primary business of supplying luxury goods to the DPRK. The fines imposed on SCN, Sindok and Laurich were increased to $311,000, $23,000 and $30,000 respectively: at [118], [119] and [123] to [125].

Case(s) referred to

Auston International Group Ltd v PP [2008] 1 SLR(R) 882; [2008] 1 SLR 882 (refd)

Chan Chun Hong v PP [2016] 3 SLR 465 (refd)

Ding Si Yang v PP [2015] 2 SLR 229 (refd)

Huang Ying-Chun v PP [2019] 3 SLR 606 (refd)

Koo Kah Yee v PP [2021] 3 SLR 1440 (refd)

Leong Sow Hon v PP [2021] 3 SLR 1199 (folld)

Lim Bee Ngan Karen v PP [2015] 4 SLR 1120 (refd)

Lim Kopi Pte Ltd v PP [2010] 2 SLR 413 (refd)

Logachev Vladislav v PP [2018] 4 SLR 609 (refd)

Mehra Radhika v PP [2015] 1 SLR 96 (refd)

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

Mohammed Ibrahim s/o Hamzah v PP [2015] 1 SLR 1081 (refd)

Ng Kean Meng Terence v PP [2017] 2 SLR 449 (refd)

Ong Chee Eng v PP [2012] 3 SLR 776 (refd)

Pittis Stavros v PP [2015] 3 SLR 181 (refd)

PP v GS Engineering & Construction Corp [2017] 3 SLR 682 (refd)

PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (refd)

PP v Lim Cheng Hwee DAC 920573/2019 and others (11 December 2020) (refd)

PP v Ng Kheng Wah [2019] SGDC 249 (overd)

PP v Su Jiqing Joel [2021] 3 SLR 1232 (folld)

PP v Tan Kok Ming Michael [2019] 5 SLR 926 (refd)

Yong Vui Kong v PP [2015] 2 SLR 1129 (refd)

Facts

These were cross-appeals by the Prosecution and Chong Hock Yen (“Chong”) relating to Chong's imprisonment sentence and the fines imposed on the three companies that he held directorship in: SCN Singapore Pte Ltd (“SCN”), Sindok Trading Pte Ltd (“Sindok”) (now known as BSS Global Pte Ltd) and Laurich International Pte Ltd (“Laurich”) (now known as Gunnar Singapore Pte Ltd). Chong had incorporated the three companies to supply designated luxury goods to various entities in the Democratic People's Republic of Korea (“DPRK”).

Between 27 December 2010 to 18 November 2016, Chong had abetted by engaging in a conspiracy with the three companies to supply luxury items such as perfumes, cosmetics, watches and musical instruments in breach of the United Nations (Sanctions — Democratic People's Republic of Korea) Regulations 2010 (“UN-DPRK Regulations”). These breaches are punishable under s 5(1) of the United Nations Act (Cap 339, 2002 Rev Ed) (“UN Act”). Detection was avoided throughout the offending period by routing the goods through circuitous routes and with payments being made through front companies in various offshore jurisdictions.

Chong faced 43 charges against him in relation to the abetment by conspiracy, and this corresponded to the 39 charges against SCN, the three charges against Sindok and the one charge against Laurich. The total value of goods supplied to the DPRK amounted to $575,854.13, giving rise to a total gross profit of $122,116.96. Some of these offences were committed after the coming into force of amendments to s 5(1) of the UN Act on 10 March 2014 which enhanced the maximum available punishment (“2014 amendments”).

Chong pleaded guilty to eight charges, while SCN, Sindok and Laurich pleaded guilty to six, one and one charge respectively, with the other charges taken into consideration. The District Court imposed a total of three weeks' imprisonment on Chong, while the total fines imposed on SCN, Sindok and Laurich was $120,000, $10,000 and $10,000 respectively. The Prosecution appealed against the sentences imposed on Chong and the three companies for being manifestly inadequate, while Chong appealed against his custodial sentence for being excessive.

Legislation referred to

Employment of Foreign Manpower Act (Cap 91A, 1997 Rev Ed)

Penal Code (Cap 224, 2008 Rev Ed) s 109

Planning Act (Cap 232, 1998 Rev Ed) s 12(1)

Regulation of Imports and Exports Regulations (1999 Rev Ed) Seventh Schedule Pt 1

Terrorism (Suppression of Financing) Act (Cap 325, 2003 Rev Ed)

United Nations Act (Cap 339, 2002 Rev Ed) s 5(1) (consd)

United Nations (Sanctions — Democratic People's Republic of Korea) Regulations 2010 regs 2, 5(a), 16(1)