Public Prosecutor v Chow Chian Yow Joseph Brian

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 11 February 2016
• Neutral Citation: [2016] SGHC 18
• Plaintiff Counsel: Kwek Mean Luck, Kow Keng Siong and Senthilkumaran Sabapathy (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 27 of 2015
• Date: 11 February 2016
• Hearing Date: 23 October 2015
• Subject Matter: Benchmark Sentences,Criminal Law,Armed Forces Offences,Sentencing,Criminal Procedure and Sentencing
• Year: 2016
• Citation: [2016] SGHC 18
• Defendant Counsel: SH Almenaor (R Ramason & Almenoar)
• Court: High Court (Singapore)
• Published date: 14 January 2017

Chan Seng Onn J: Introduction

Each citizen has a duty to do his fair share to sustain social arrangements from which all benefit. Parliament is to determine the nature and content of this duty, and the law is justified in using coercive power when necessary to ensure the performance of this duty (“the fair share argument”).

In relation to the fair share argument, one can draft as an ally the 19th century economic and moral theorist John Stuart Mill (“Mill”). In On Liberty, Mill states as follows:

[E]veryone who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct toward the rest. This conduct consists, first, in not injuring the interests of one another, or rather certain interests which, either by express legal provision or by tacit understanding, ought to be considered as rights; and secondly, in each person’s bearing his share (to be fixed on some equitable principle) of the labors and sacrifices incurred for defending the society or its members from injury and molestation. These conditions society is justified in enforcing at all costs to those who endeavor to withhold fulfillment.

[emphasis added]

National Service (“NS”) has been the cornerstone of Singapore’s defence and security since 1967. NS is about each Singaporean male citizen performing his fair share towards Singapore’s national defence, regardless of his background or circumstances to defend his country and its members. It is fixed on an equitable principle: universality. To uphold the principle of universality, Parliament has pursuant to the Enlistment Act (Cap 93, 2001 Rev Ed) (“the Act”) made NS obligations apply to all eligible Singaporean males and set out sanctions to be applied against individuals who attempt to evade those obligations under the Act.

The present appeal is brought by the Public Prosecutor (“Prosecution”) against the sentence imposed on the respondent, Chow Chian Yow, Joseph Brian, for remaining outside of Singapore without a valid exit permit (“VEP”), an offence under s 32(1) and punishable under s 33(b) of the Act. The respondent remained outside Singapore without a VEP from 13 April 2007 to 10 May 2013, for a period of six years and 27 days (both dates inclusive). The respondent pleaded guilty to the offence on 13 January 2015 and was sentenced to a fine of $4,500 on 4 February 2015 by a District Judge (“the DJ”). The DJ’s grounds of decision can be found at Public Prosecutor v Chow Chian Yow, Brian Joseph [2015] SGDC 97 (“the DJ’s GD”). The Prosecution brings this appeal on the basis that the sentence imposed on the respondent is manifestly inadequate.

Background

The respondent is a 24 year old male. He is a Singaporean citizen by birth. In 2005, before turning 15 years old, the respondent left Singapore for Australia to pursue a foundation programme (“the foundation programme”). It was highlighted in the court below that respondent left Singapore as the local education system was inadequately equipped to deal with his attention deficit disorder (“ADD”). The respondent had prior to his departure completed his primary and some part of his secondary education under the local education system. After his initial journey to Australia in 2005, the respondent flew in and out of Singapore.

The respondent last left Singapore on 20 January 2007 when he was already 16 years old. On 13 April 2007, the respondent turned 16 years and six months old. He thus became liable to register for a VEP to remain outside Singapore. The respondent did not register for or obtain a VEP.

On 7 January 2008, the Central Manpower Branch (“the CMPB”) sent a notice to the respondent’s registered address in Singapore informing him of his obligation to register for NS. A further reporting order was issued to the respondent on 22 February 2008. Slightly before the further reporting order was issued, a letter from the Deputy Principal of Murdoch College Australia dated 14 February 2008 was sent to the CMPB informing it that the respondent was in the final year of the foundation programme and would be granted an offer to start university in February 2009 if he was successful.¹

On 17 April 2008, the CMPB sent a letter to the respondent’s registered address in Singapore stating that he had to report to the CMPB on 6 May 2008 for NS registration. The letter also stated that the CMPB was prepared to grant the respondent a deferment from full-time NS to complete the foundation programme, provided a bond in the form of a bank guarantee was furnished to the Ministry of Defence (“the MINDEF”). It was also stated in the letter in no uncertain terms that the offer for deferment only extended to the foundation programme and not the university course. After issuing a further reporting order on 7 May 2008, investigation officers from the MINDEF (“the MINDEF IOs”) visited the respondent’s Singapore address and informed a lady, who identified herself to be the respondent’s grandmother, that the respondent had to report to the CMPB by 5 August 2008 (this reporting order together with those issued from and including 17 April 2008 shall be hereinafter collectively referred to as “the Reporting Orders”). The respondent’s grandmother informed the MINDEF IOs that she would relay the message to the respondent’s parents.

After the respondent failed to report to the CMPB in accordance with the Reporting Orders, a Police Gazette cum Blacklist was raised against him on 28 August 2008. Almost seven months later, on 16 March 2009, the respondent emailed the CMPB attaching a letter from the University of Western Australia (“UWA”) confirming his enrolment into the four-year Bachelor of Engineering degree course in UWA.² He belatedly informed the CMPB that he was admitted into the UWA and sought advice on deferring his NS obligations. The CMPB responded on 21 April 2009 via letter (and by an email dated 23 April 2009 attaching the said letter). It narrated, inter alia, the contents of the Reporting Orders and the visit by the MINDEF IOs to the respondent’s Singapore residence. The CMPB then informed the respondent that he had committed an offence by not responding to the Reporting Orders and advised him to return to Singapore to resolve his NS offences.

The respondent replied to the CMPB on 22 May 2009 via letter. He communicated that he was unware of the Reporting Orders or the visit by the MINDEF IOs and repeated his earlier request for advice on deferment. The CMPB replied to the respondent’s letter via email. In the reply, the CMPB stated that the respondent was not eligible for deferment from full-time NS to complete the university course. Therefore, the CMPB advised him to return to Singapore to resolve his NS offences as soon as possible.

The respondent did not reply to the CMPB’s email. The respondent suggested in the court below that he did not receive the email as he “changed his computer”. This argument is spurious for a reason so obvious: the change of a computer does not destroy emails that are stored in a server hosted by the email service provider.

On 9 April 2013, the respondent informed the CMPB via email that he had completed his university education and that he was waiting for his passport to be renewed so that he could return to Singapore. He then informed the CMPB on 7 May 2013 that he would voluntarily surrender on 11 May 2013 to fulfil his NS obligations, which he had until that point evaded. On 13 May 2013, the respondent reported at the CMPB. He was thus absent without a VEP from 13 April 2007 to 10 May 2013 ie, six years and 27 days.

The respondent enlisted for NS on 7 November 2013. I note that he performed exceptionally well during his Basic Military Training (“BMT”) and was sent to command school, namely Specialist Cadet School (“SCS”). He is now a Reconnaissance Instructor with the Combat Intelligence School (“CIS”) in MINDEF. I note from the testimonials before me, which were penned by the respondent’s commanders, that his performance throughout his full-time NS was exceptional.

The decision below

As noted at [4] above, the DJ sentenced the respondent to a fine of $4,500. In imposing the fine, the DJ made the following points: The respondent left Singapore because the local education system was ill-equipped to deal with his condition of ADD, and there was no evidence that the respondent left Singapore to evade NS (see the DJ’s GD at [36]); A fine would not be inappropriate if an offender voluntarily returns to Singapore to fulfil his NS obligations at an age when the majority of Singaporean males fulfil theirs (see the DJ’s GD at [39]); While the respondent had gained an advantage over his peers by completing his university education before fulfilling his national service obligations, this was insufficient in itself to conclude that a custodial sentence was warranted (see the DJ’s GD at [42]); and The respondent through his exceptional performance while in NS had made a significant contribution towards national defence and this should be recognised (see the DJ’s GD at [45]).

I reproduce in full certain observations made in the DJ’s GD on the factors that should be considered in the imposition of a custodial sentence: 33 Whilst the period of default may play a part in the final sentence imposed by the Court, but by itself, it is not the sole factor determining sentence. In Seow Wei Sin at [33], the appellate court was of the view that:

The seriousness of an offence under the Act should not be determined purely on the length of the period of default. This would be quite unjust. I would have thought equally important, if not more, must be in the circumstances surrounding the default …

34 In the instant case, if the Prosecution was relying on the length of the accused’s period of default as the basis of their submission that a custodial...