PP v Tan Teck Leong Melvin
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ,Tay Yong Kwang JCA,Vincent Hoong J |
Judgment Date | 14 July 2023 |
Docket Number | Magistrate's Appeal No 9134 of 2022 |
Court | High Court (Singapore) |
[2023] SGHC 188
Sundaresh Menon CJ, Tay Yong Kwang JCA and Vincent Hoong J
Magistrate's Appeal No 9134 of 2022
General Division of the High Court
Criminal Procedure and Sentencing — Sentencing — Appeals — Offender pleading guilty to three charges of fraudulently evading goods and services tax under s 128D Customs Act (Cap 70, 2004 Rev Ed) — Whether fine of $1m and default imprisonment term of eight months per charge manifestly inadequate — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed)
Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Offender pleading guilty to three charges of fraudulently evading goods and services tax under s 128D Customs Act (Cap 70, 2004 Rev Ed) — Appropriate sentencing framework for default imprisonment term under s 128L(2) Customs Act — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed)
Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Offender pleading guilty to three charges of fraudulently evading goods and services tax under s 128D Customs Act (Cap 70, 2004 Rev Ed) — Appropriate sentencing framework for offence under s 128D Customs Act — Sections 128D and 128L(2) Customs Act (Cap 70, 2004 Rev Ed)
Held, allowing the appeal in part:
(1) The Prosecution's proposed framework was a viable working model on which a sentencing framework for the offence under s 128D of the Customs Act could be formulated. The court adopted the following three-step framework. At the first step, the indicative fine was derived based on the amount of GST evaded, using the following framework: at [40].
Amount of GST evaded | Multiplier applied to each bracket | Range of indicative fine |
$1 to $250 | × 12 | $12 to $3,000 |
$251 to $1,000 | × 10 | $3,010 to $10,500 |
$1,001 to $10,000 | × 8 | $10,508 to $82,500 |
$10,001 to $100,000 | × 6 | $82,506 to $622,500 |
$100,001 to $500,000 | × 4 | $622,504 to $2,222,500 |
$500,001 to $1m | × 3 | $2,222,503 to $3,722,500 |
>$1m | × 2 | > $3,722,500 |
(2) The multiplier values set out at each level of the framework applied cumulatively, to prevent an offender from getting a more lenient sentence simply because he crossed over into the next higher level on the scale. The decreasing rate in the multiplier guarded against the risk of disproportionately high fines as the amount of GST evaded increased: at [41] and [42].
(3) The framework applied to first-time offenders who pleaded guilty at the earliest available opportunity and should be used to calculate the indicative fine based on the amount of GST evaded per charge, rather than the total amount of GST evaded across all the charges proceeded on: at [45] and [46].
(4) At the second step, the court identified the relevant aggravating and mitigating factors before adjusting the indicative fine upwards or downwards accordingly. The court could make a lump sum adjustment or modify the applicable multiplier, which could include fractions if appropriate: at [48] and [52].
(5) The third and final step was for the court to consider whether further adjustments should be made on account of the totality principle. Especially where the offender was of limited financial means, it might be relevant to consider whether the overall fine quantum was just and appropriate: at [53].
(6) With regard to the sentencing framework for default imprisonment terms under s 128L(2) of the Customs Act, the appropriate framework had to calibrate the default imprisonment term based on the fine imposed for each charge, rather than the total fine imposed for all the charges proceeded on. The latter approach would have the effect of treating multiple proceeded charges as a single amalgamated charge, thereby circumventing the provisions in the CPC on the amalgamation of charges: at [66].
(7) The court adopted the following framework for indicative default imprisonment terms: at [67].
Fine quantum imposed per charge | Indicative default sentence |
Up to $500,000 | Up to six months |
$500,000 to $1m | 6 to 12 months |
$1m to $2m | 12 to 24 months |
$2m to $3m | 24 to 36 months |
$3m to $5m | 36 to 48 months |
$5m to $10m | 48 to 72 months |
$10m and above | 72 months (statutory maximum) |
(8) In cases involving multiple charges, the sentencing court had to then consider whether the aggregate default imprisonment term offended the totality principle, bearing in mind that s 319(1)(b)(v) of the CPC mandated that default imprisonment terms had to run consecutively: at [68].
(9) The present case was not sufficiently exceptional to warrant invoking the doctrine of prospective overruling. It was not the respondent's position that there was an entrenched starting point or sentencing norm in relation to the offence under s 128D of the Customs Act or the corresponding default imprisonment term. The sentencing frameworks adopted by the court did not constitute a fundamental and unforeseeable change in the law. There was therefore no serious and demonstrable injustice occasioned by applying the frameworks to the present appeal: at [72].
(10) Applying the frameworks set out to the present appeal, the fines imposed by the DJ were not manifestly inadequate. There was also no reason to disagree with the DJ's analysis of the relevant aggravating and mitigating factors. The court therefore affirmed the DJ's decision on the fines imposed: at [74] and [75].
(11) As for the default imprisonment term, it followed from the framework set out by the court that the indicative default imprisonment term was 12 months for each charge, or 36 months for the three charges. The total default imprisonment term of 24 months imposed by the DJ was therefore manifestly inadequate: at [76].
(12) The court allowed the Prosecution's appeal in part. The court ordered the fine of $1m for each charge imposed by the DJ to stand, but increased the default imprisonment term to 12 months per charge or 36 months' imprisonment in total: at [77].
[Observation: Default imprisonment terms under the Customs Act were capped at a maximum of six years pursuant to s 119 of the Customs Act. The question that arose was whether the statutory cap applied to the default imprisonment term imposed for each charge or to the total default imprisonment term imposed in respect of all the charges. A plain reading of s 119 suggested that the former interpretation was to be preferred. However, in the present appeal, the individual and collective default imprisonment terms ordered by the DJ and those ordered by the court did not come up to the statutory maximum of six years. The court therefore declined to rule on the proper interpretation of s 119 regarding the maximum default imprisonment term in cases involving multiple charges: at [61] and [62].]
Adri Anton Kalangie v PP [2018] 2 SLR 557 (folld)
Chia Kah Boon v PP [1999] 2 SLR(R) 1163; [1999] 4 SLR 72 (folld)
Gan Chai Bee Anne v PP [2019] 4 SLR 838 (folld)
Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (folld)
Poh Boon Kiat v PP [2014] 4 SLR 892 (refd)
PP v Hue An Li [2014] 4 SLR 661 (folld)
Vasentha d/o Joseph v PP [2015] 5 SLR 122 (folld)
Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361; [1990] SLR 1101 (refd)
Yap Ah Lai v PP [2014] 3 SLR 180 (folld)
The respondent was the sole proprietor of T.L Freight (“TL”), which was a freight forwarder that shipped consolidated cargoes from China to Singapore. He was responsible for creating a consolidated packing list for each shipment. Between 2016 and 2019, the respondent falsified various consolidated packing lists by lowering the value of the goods in the consolidated packing lists at random. The falsified consolidated packing lists were then provided to TL's declaring agents. Relying on these packing lists, the declaring agents under-declared to Singapore Customs (“Customs”) the value of the goods imported by TL. The respondent knew that by declaring a lower value, he would pay less goods and services tax (“GST”) for the imported goods.
The respondent prepaid the lower amounts of GST to his declaring agents who then paid the amounts to Customs. After the imported goods were received in Singapore, the respondent charged his buyers GST based on the actual higher value of the goods instead of the falsified lower value in the consolidated packing lists. The respondent pocketed the difference between the higher amount of GST that he received from his buyers and the lower amount of GST that he had prepaid to his declaring agents.
The respondent pleaded guilty in the District Court to three charges of fraudulently evading GST under s 128D and punishable under s 128L(2) of the Customs Act (Cap 70, 2004 Rev Ed) (“Customs Act”). The charges were amalgamated charges under s 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and were framed to reflect the amounts of GST evaded in the years 2016, 2017 and 2019 (ie, approximately $182,000, $219,000 and $201,000 respectively). The respondent admitted to six other similar offences and consented to having them taken into consideration for the purpose of sentencing.
The district judge (“DJ”) sentenced the respondent to a fine of $1m (in default eight months' imprisonment) for each of the three charges. The aggregate sentence was therefore a fine of $3m (in default 24 months' imprisonment).
The Prosecution appealed against the sentence imposed by the DJ on the ground that it was manifestly inadequate. The Prosecution proposed a sentencing framework for the offence under s 128D of the Customs Act, as well as for default imprisonment terms for fines imposed under s 128L(2) of the Customs Act. Applying these frameworks to the present case, the Prosecution submitted that the respondent should be sentenced to a total fine of $3.5m to $4m (in default 39 to 42 months' imprisonment).
The respondent supported the adoption of sentencing frameworks, but urged...
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