Public Prosecutor v Fernando Payagala Waduge Malitha Kumar

• Jurisdiction: Singapore
• Judge: V K Rajah J
• Judgment Date: 15 February 2007
• Neutral Citation: [2007] SGHC 23
• Docket Number: Magistrate's Appeal No 256 of 2006
• Date: 15 February 2007
• Published date: 16 February 2007
• Year: 2007
• Plaintiff Counsel: Paul Quan (Deputy Public Prosecutor)
• Citation: [2007] SGHC 23
• Defendant Counsel: Peter Keith Fernando (Leo Fernando)
• Court: High Court (Singapore)
• Subject Matter: Suitability of probation for foreigners,Foreign precedents on sentencing,Reliance on deterrence as a sentencing consideration,Sentencing tariffs for credit card cheating offences,Public interest,Factors for court to consider when deciding whether sentencing tariff should be discounted or enhanced,Forms of punishment,When and how to be relied on,Basis for departure,Benchmark sentences,Sentencing,Criminal Procedure and Sentencing,Whether relevance confined to broad principles and articulated sentencing considerations,Importance of deterrence when offending conduct undermining public confidence in financial services,Principles,Probation

15 February 2007

V K Rajah J:

1 Credit cards are now widely accepted as a preferred mode of payment for daily transactions. Unfortunately, the plethora of credit card transactions has in turn engendered a multiplicity of credit card offences. The financial burden perpetrated by such credit card frauds falls on the shoulders of the issuers, the banking industry and credit card holders. Indeed, the very substantial interest that credit card issuers and banks charge for instalment payments and defaults can also be directly attributed to the substantial losses these institutions continue to chalk up from card frauds and scams. It would be no exaggeration to assert that the entire credit card holding community bears the palpable and painful brunt of such offences. In addition, the inconvenience, frustration, distress and perhaps even loss of reputation suffered by victims of fraud are often incalculable and irremediable.

2 It is therefore important to have a coherent and consistent sentencing regime to deter the commission of such offences in Singapore. The relevant sentencing considerations, principles and appropriate sentencing tariffs for offences concerning the fraudulent use of credit cards are assessed and expounded upon in these grounds of decision.

3 The respondent pleaded guilty to two charges: (a) criminal misappropriation of a credit card under s 403 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”), read with s 3(1) of the Tokyo Convention Act (Cap 327, 1985 Rev Ed); and (b) cheating and dishonestly inducing a delivery of property by the fraudulent use of a credit card, contrary to s 420 of the Penal Code. In addition, two other similar cheating charges under s 420 of the Penal Code, as well as one other attempted cheating charge under s 420 read with s 511 of the Penal Code, were taken into consideration for the purpose of sentencing. The learned district judge (“trial judge”) sentenced the respondent to two months’ imprisonment for the cheating charge, and a consecutive sentence of two weeks’ imprisonment for the criminal misappropriation charge: see PP v Payagala Waduge Malitha Kumar Fernando [2006] SGDC 304 (“GD”). Dissatisfied with the sentences, the Prosecution appealed. On hearing the appeal, I enhanced the sentences for the cheating charge to six months’ imprisonment, and for the criminal misappropriation charge to two months. Both sentences are to run concurrently.

The facts

4 The respondent is a 20-year-old male Sri Lankan national currently residing and working in New Zealand. On 17 November 2006, the respondent boarded an SIA flight from New Zealand to Singapore where he was to take a further connecting flight to Colombo. During the flight, the respondent found in the proximity of his seat a credit card belonging to Ms Sanderson Weijde Kirsten Anna Maria (“Ms Sanderson”), a fellow passenger sitting next to him. The respondent decided to retain the credit card for his own use. Ms Sanderson only discovered that her credit card was missing when she was in transit at Singapore Changi International Airport (“Changi Airport”). She immediately reported the loss to her bank.

5 Upon arrival at Changi Airport Terminal 2, the respondent promptly and in great haste used the credit card to purchase the following items:

(a) A lap-top valued at $1,522 (this was the subject matter of the s 420 of the Penal Code charge to which the respondent pleaded guilty);

(b) A watch valued at $469.81; and

(c) A hand phone valued at $1,288.

6 When the respondent attempted to purchase a fourth item – a bracelet valued at $2,728.01 – he was informed by the cashier that the credit card facility had been blocked. The respondent then immediately left the shop and quickly made his way to the departure gate. There, he was identified and arrested. The items that he had fraudulently purchased were seized.

Decision of the trial judge

Aggravating factors

7 The trial judge noted that the respondent’s misappropriation of the credit card would have caused tremendous anxiety and inconvenience to Ms Sanderson, a foreign traveller. He further observed that the credit card was used to make several purchases and that the total value of these purchases was fairly significant (GD at [14]-[16]).

Mitigating factors

8 The respondent had cooperated with the investigations, and had promptly pleaded guilty, instead of chancing on the Prosecution’s ability to secure Ms Sanderson’s attendance in Singapore as a witness against him. The trial judge relied on this in concluding that the respondent was genuinely remorseful: see GD at [19].

9 Further, the trial judge took into account the fact that the respondent was both young and a first offender. He surmised that offences were out of character and possibly a consequence of the respondent’s ‘youthful folly’ culminating in an error of judgment (GD at [20] and [21]).

10 The trial judge also considered it pertinent that all the fraudulent purchases were made by the respondent within less than an hour and that all the items were in any event recovered. In the learned judge’s view the respondent did not derive any benefit from his offences and no loss was occasioned to anyone: see GD at [23].

Other considerations

11 The trial judge distinguished the present case from the following types of cases, in which heavy jail sentences are imposed as a matter of course (GD at [22]):

(a) where a foreigner has come to Singapore for the sole purpose of committing offence;

(b) where the offender has planned to steal credit cards for fraudulent use, or has made use of forged credit cards;

(c) where the offender is part of a sophisticated credit card syndicate; or

(d) where the offender has committed credit card fraud on a large scale.

12 Lastly, the trial judge emphasised that while the principle of general deterrence admittedly featured significantly in offences such as that committed by the respondent, the notion of deterrence should nonetheless be tempered by the notion of proportionality. In other words, sentences imposed should reflect the severity of the offence committed as well as the moral and legal culpability of the offender: see GD at [24] to [26].

The appeal against sentence

13 On appeal, the Deputy Public Prosecutor (“DPP”) submitted that the trial judge erred both in law and in fact by inter alia:

(a) Failing to accord sufficient weight to the nature of the offences committed, which involved credit card fraud, and thereby failing to impose a sentence that would deter similar opportunistic conduct in like-minded offenders;

(b) Failing to accord sufficient weight to the manner in which the offences were committed, and to the fact that there were three other charges to be taken into consideration for the purpose of sentencing; and

(c) Attaching undue weight and significance to both the respondent’s plea of guilt and his cooperation with the investigations, the respondent’s age, the fact that the respondent was a first offender and evidence of the respondent’s good character.

Preliminary observations

14 First, it should be noted that this appeal was heard on 12 January 2007, after the respondent had been released from prison on 8 January 2007, having completed the sentence imposed by the trial judge. The enhanced sentences on appeal have resulted in the respondent having to return to prison after his release. This was by no account due to want of diligence on the part of the Prosecution in prosecuting the appeal. Having said that, it is highly desirable that the relevant Court Registries and counsel involved in criminal cases pertaining to foreigners sentenced to short terms of imprisonment use their best endeavours to ensure that the appeals are expedited: see also the observations of Yong Pung How CJ in PP v Siew Boon Ling [2005] SGHC 20 at [29]. Indeed the written appeal submissions and possibly the trial judge’s detailed grounds of decision may be dispensed with or alternatively replaced by short skeletal submissions/grounds of decision. In cases such as this, time is of the essence in ensuring that legitimate expectations about the administration of justice are not unnecessarily undermined. Where the liberty of an individual is at stake, certainty should always replace uncertainty as a matter of urgency and priority. I single out foreigners because they may be hard put to raise adequate security for bail in this regard. Similar considerations should also apply to impecunious Singaporeans and permanent residents.

15 Given the circumstances, I directed that the sentences be backdated to the date of commencement of the sentence imposed by the trial judge, and that the period when the accused was released (ie., 8 January 2007 to 12 January 2007) not be added to the sentence.

Probation order unsuitable

16 Secondly, the respondent is 20 years old. In PP v Mok Ping Wuen Maurice [1999] 1 SLR 138, Yong Pung How CJ stated that rehabilitation is the dominant consideration where the offender is 21 years and below (at [21] and [25]). However, the authorities suggest that probation is unsuitable for an offender who is a foreign national not resident in Singapore: Sentencing Practice in the Subordinate Courts (2nd Ed, 2003) (“Sentencing”) at page 39. This proposition was explained in Tan Choon Huat v PP [1991] SLR 805 by Rubin JC at 811 in the following terms:

… having regard to the nature of the offence, the circumstances of the case and the fact that the appellant is a foreign national not resident in Singapore, a probation order appears to be wholly inappropriate.”

[emphasis added]

17 The logistical and administrative difficulties involved in the monitoring and supervision of a non-resident render a probation order both inappropriate and impracticable in the case of an offender. A key feature of probation is rigorous supervision against the backdrop of a nurturing environment. I am however loathe to completely rule out the possibility of probation as a sentencing option in the case of ...