PP v Syamsul Hilal bin Ismail

• Jurisdiction: Singapore
• Judgment Date: 30 December 2011
• Date: 30 December 2011
• Docket Number: Magistrate's Appeal No 94 of 2011
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Syamsul Hilal bin Ismail

Defendant

[2011] SGHC 272

Chao Hick Tin JA

Magistrate's Appeal No 94 of 2011

High Court

Criminal Law—Offences—Property—Cheating—Offender cheating relatively modest amounts of money from large number of victims—Offender misusing Internet to publicise scams with view to reaching large number of potential victims—Whether number of consecutive sentences imposed gave manifestly inadequate global sentence

The respondent (‘the Respondent’) pleaded guilty to 15 charges for cheating offences (punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (‘PC’)) and three charges for criminal breach of trust (‘CBT’) (punishable under s 406 of the PC). Another 60 cheating charges and 12 CBT charges were admitted and taken into consideration for the purpose of sentencing.

The cheating offences related, inter alia, to a car rental scam and a loan scam, while the CBT offences involved the Respondent's misappropriation of school laptops entrusted to him as a technical assistant. To perpetrate the car rental scam, the Respondent posted online advertisements offering car rental deals and cheated interested parties of their deposits. Pursuant to the complaints of these victims, the Respondent was charged in court. While on bail, he perpetrated the loan scam largely through advertisements on online fora where he purportedly offered to arrange loans and cheated his victims of their advance payments.

The senior district judge (‘the Senior District Judge’) sentenced the Respondent to two months' imprisonment for each of the 12 car rental scam charges proceeded on, three months' imprisonment for each of the three CBT charges proceeded on and five months' imprisonment for each of the three loan scam charges proceeded on. One imprisonment term from each set of charges was ordered to run consecutively, making a total of ten months' imprisonment. The Prosecution appealed on the ground that the overall sentence imposed by the Senior District Judge was manifestly inadequate.

Held, allowing the appeal - enhancing the total sentence to 15 months' imprisonment:

(1) The involvement of multiple victims was a cumulative aggravating factor guiding the court's discretion to order that more than two imprisonment sentences should run consecutively. The present case involved a large number of victims and the question was whether the total sentence imposed on the Respondent was adequate punishment for the overall criminality of his conduct so as to reflect society's abhorrence of the same: at [32].

(2) The Respondent was a serial cheat and it stood to reason that his sentence should be significantly higher than if he were convicted of only a single cheating offence, albeit that the total amounts involved in both scenarios were the same or similar: at [33].

(3) The Respondent had cheated and caused much distress and inconvenience to some 70 people. The Senior District Judge did not focus sufficiently on the Respondent's total criminality. Had the Prosecution proceeded only on the three charges for the single category of the loan scam offences, the Respondent would already have received an imprisonment sentence of ten months. This clearly indicated that the number of consecutive sentences imposed by the Senior District Judge was inadequate to encompass the overall culpability of the Respondent's conduct and insufficient to address the harm caused to the Respondent's various victims: at [34].

(4) The use of the Internet was a relevant sentencing consideration in that there was a strong public interest to deter potential offenders from using that medium to reach a larger number of potential victims. The Senior District Judge gave insufficient consideration in respect of the public interest element which was that like-minded potential offenders should be deterred from following the Respondent's footsteps in using the Internet to prey on a large pool of potential scam victims: at [36] and [37].

(5) While the Internet misuse in this case might have seemed peripheral when the individual offences were viewed in isolation, it was clear that this was not so when the numerous offences were viewed in their totality. The most significant aggravating circumstance in this case was the large number of offences committed, which was largely facilitated by the Respondent's use of the Internet to effectively publicise his scams. While the Respondent might have been able to achieve a similarly remarkable geographical reach with an advertisement in the newspapers, it was unlikely that that would have been as cost-effective: at [41].

(6) It was not only the Respondent's successful persuasion of his victims to part with their monies that constituted the ‘actual cheating’, rather, it began with his Internet advertisements: at [41].

(7) The role of Internet misuse in Rupchand Bhojwani Sunil v PP [2004] 1 SLR (R) 596 was nothing more than peripheral because the offender there did not use the Internet, as the Respondent did here, to publicise a scam with a view to reaching out to a large number of potential victims: at [42].

(8) Would-be criminals should be deterred from using the Internet as a cheap, convenient and effective publicity platform to reach large numbers of potential victims in a targeted manner as the Respondent did. Therefore, in determining an appropriate overall sentence for this case, the court took the Respondent's misuse of the Internet (which led to a large number of victims being cheated) into account as a circumstance which warranted the imposition of a deterrent sentence: at [42].

(9) The overall sentence passed by the Senior District Judge was manifestly inadequate. In the result, the Respondent's total imprisonment sentence was enhanced to 15 months by the order of an additional five-month imprisonment sentence for a loan scam offence to run consecutively with the sentences originally ordered by the Senior District Judge to run consecutively: at [43] and [44].

[Observation: It was apparent from the GD that in determining the sentence per charge for each of the three categories of offences proceeded on, the Senior District Judge worked backwards from his provisional view that a global sentence of around nine to ten months' imprisonment would be appropriate for the Respondent: at [25].

The better and more logical approach would have been to first determine the sentences for the individual offences by having regard to the respective sentencing precedents, before stepping back for a holistic perspective in order to determine which sentences should be ordered to run consecutively to make for an appropriate global sentence: at [26].

This would allow for a more principled approach in determining the appropriate sentence to be imposed for each individual offence. Working backwards from a pre-conceived global sentence would be like putting the cart before the horse because a court would generally not be able to properly comprehend the overall criminality of the multiple offender (so as to determine an appropriate global sentence) unless it first came to grips with the individual offences by determining the appropriate sentence for each offence: at [27].]

ADF v PP [2010] 1 SLR 874 (folld)

Choong Swee Foong v PP Magistrate's Appeal No 152 of 1994 (refd)

Goh Siew Buay v PP Magistrate's Appeal No 54 of 1999 (refd)

PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR (R) 334; [2007] 2 SLR 334 (folld)

PP v Huang Hong Si [2003] 3 SLR (R) 57; [2003] 3 SLR 57 (folld)

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

PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR (R) 653; [2000] 1 SLR 34 (refd)

PP v Syamsul Hilal bin Ismail [2011] SGDC 147 (refd)

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

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (folld)

R v James Henry Sargeant (1974) 60 Cr App R 74 (folld)

Rupchand Bhojwani Sunil v PP [2004] 1 SLR (R) 596; [2004] 1 SLR 596 (distd)

Tay Kim Kuan v PP [2001] 2 SLR (R) 876; [2001] 3 SLR 567 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Criminal Procedure Code 2010 (Act 15 of 2010) s 307 (1)

Criminal Procedure Code (Transitional Provisions - Further Proceedings and Joint Trials) Regulations 2011 r 2

Penal Code (Cap 224, 1985 Rev Ed) s 417

Penal Code (Cap 224, 2008 Rev Ed) ss 405, 406, 415, 420

Leong Wing Tuck and Nicholas Khoo (Attorney-General's Chambers) for the appellant

K Sathinathan (M/s Sathi & Co) for the respondent.

Chao Hick Tin JA

Introduction

1 This was an appeal against the sentence imposed by a senior district judge (‘the Senior District Judge’) in PP v Syamsul Hilal bin Ismail [2011]SGDC 147 (‘the GD’), where the respondent (‘the Respondent’) pleaded guilty to 18 charges. Fifteen of those charges were for cheating offences (punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (‘PC’)) and the remaining three involved criminal breach of trust (‘CBT’) (punishable under s 406 of the PC). The cheating offences related, inter alia, to a car rental scam (‘the car rental scam offences’) and a loan scam (‘the loan scam offences’), while the three CBT offences involved the misappropriation of school laptops (‘the laptop CBT offences’). Another 72 charges were admitted and taken into consideration for the purpose of sentencing. (The GD states incorrectly at [1] that 75 counts were taken into consideration for the purpose of sentencing.)

2 The Respondent was sentenced to two months' imprisonment for each car rental scam offence, three months' imprisonment for each laptop CBT offence and five months' imprisonment for each loan scam offence. One imprisonment term from each set of offences was ordered to run consecutively, making a total of ten months' imprisonment. The Prosecution appealed on the ground that the overall sentence imposed by the Senior District Judge was manifestly inadequate. I allowed the...