Public Prosecutor v Su Jiqing Joel

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] SGHC 233
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9067 of 2020
• Published date: 04 November 2020
• Year: 2020
• Hearing Date: 27 August 2020
• Plaintiff Counsel: Kow Keng Siong, Winston Man and Gabriel Lim (Attorney-General's Chambers)
• Defendant Counsel: The respondent in person,Nicholas Liu (Singapore Management University) as young amicus curiae.
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Unlawful provision of short-term accommodation,Section 12 Planning Act (Cap 232, 1998 Rev Ed)
• Citation: [2020] SGHC 233

Sundaresh Menon CJ: Introduction

The respondent, Su Jiqing, Joel (“the Respondent”), faced six charges under s 12(1) of the Planning Act (Cap 232, 1998 Rev Ed). These charges concerned the unlawful provision of short-term accommodation (“STA”). The Respondent had leased six private residential properties which he then sub-let on a short-term basis to local and foreign guests through the Airbnb online platform. He pleaded guilty to four charges and consented to having the remaining two charges taken into consideration for the purpose of sentencing.

Before the District Judge, the Prosecution pressed for an aggregate fine of at least $235,000. The Prosecution submitted that the court should adopt what it referred to as the “Bifurcated Approach” when sentencing a first-time offender under s 12(1) of the Planning Act (for the breach of which, a fine is the only prescribed punishment). In essence, this approach would require the sentencing judge to impose a fine comprising two distinct elements: a “Disgorgement Component” and a “Punitive Component”. The former would seek to disgorge the offender’s pecuniary gains, while the latter would separately punish the offender and this should be calibrated having regard to the harm he caused and his culpability.

The Prosecution further submitted that all the revenue that the Respondent had received should be disgorged through the Disgorgement Component. This was relevant because while the Respondent received about $115,000 by way of the revenue generated by his committing the STA offences, his actual profits came to about $46,000, after deducting the monthly lease payments he had to make to the owners of the properties.

The District Judge did not accept either of these submissions. He rejected the Bifurcated Approach because he considered that it was not supported by precedent and was inconsistent with sentencing principles. He was also of the view that the lease payments were “reasonable expenses” which ought to be deducted for the purpose of quantifying the profits to be disgorged: see Public Prosecutor v Su Jiqing, Joel [2020] SGDC 91 (“GD”) at [12], [23], [57]–[59].

In the circumstances, the District Judge imposed an aggregate fine of $88,000 for the four proceeded charges (see GD at [5]). The individual fines are set out below (at [21]).

The Prosecution appealed contending that both the individual sentences and the aggregate sentence are manifestly inadequate. It submitted that this was the result of the District Judge’s failure to adopt the Bifurcated Approach, and his finding that the lease payments were reasonable expenses which ought to be deducted, when computing the profits to be disgorged.

As the appeal raised some novel issues in sentencing, I appointed Mr Nicholas Liu (“Mr Liu”) to assist me under the Young Amicus Curiae Scheme. I record my deep gratitude to Mr Liu, whose research and submissions were extremely thorough and of great assistance to me.

According to the Prosecution, this is the first time that an appellate court has been asked to consider the principles governing the imposition of fines for STA offences. Recognising the need to provide guidance on the relevant sentencing considerations, I take this opportunity to set out a sentencing framework for STA offences. This might aid sentencing judges, prosecutors and defence counsel in approaching the question of sentencing in a broadly consistent manner, having due regard to the salient factors.

Background facts

The facts are drawn from the Statement of Facts which the Respondent admitted to without qualification.

The present offences were committed in 2017 and 2018. At the material time, the Respondent was a registered real estate agent. He was also the sole proprietor of a business known as The Coffee Cart (“TCC”). As noted above, the Respondent did not own any of the Airbnb properties but leased them from their owners. He knew it was illegal to provide STA, and falsely represented to the owners that he was using the properties in question for his personal use or for TCC’s business.

The Respondent selected properties in Geylang because he believed the residents there were less likely to lodge complaints. He used two separate host accounts on Airbnb, “Home” and “Mik”. At various times, he changed the host names and admitted that he had done this in order to avoid detection by the Urban Redevelopment Authority (“URA”). The Respondent also attempted to cover up the fact that he had been providing STA. On one occasion, he lied to a condominium manager that a group of foreign guests were his business clients. On another occasion, he lied to CISCO officers who inspected one of the properties and told them that a foreign guest was his friend. When the Respondent became aware that URA was investigating him for his present offences, he deleted all his listings on Airbnb and his host accounts.

For ease of reference, I set out the relevant details concerning the Respondent’s STA offences in the following table (with the proceeded charges being the first, second, fourth and sixth charges):

Charge	Address	Lessee	Duration of offending
URA 000008-2019-1 (“1st Charge”)	A condominium unit at 5 Lorong 39 Geylang (“1st Unit”)	TCC	15 March 2018 to 8 September 2018 (5 months 24 days)
URA 000009-2019-1 (“2nd Charge”)	A condominium unit at 1 Lorong 24 Geylang (“2nd Unit”)	Respondent	16 April 2018 to 12 September 2018 (4 months 27 days)
URA 000010-2019-1	A condominium unit at 1 Lorong 20 Geylang	TCC	14 January 2018 to 13 April 2018 (2 months 30 days)
URA 000011-2019-1 (“4th Charge”)	A condominium unit at 302 Sims Avenue (“4th Unit”)	TCC	12 October 2017 to 28 September 2018 (11 months 16 days)
URA 000012-2019-1	A terrace house at Lorong 36 Geylang	TCC	31 July 2018 to 16 August 2018 (16 days)
URA 000013-2019-1 (“6th Charge”)	A condominium unit at 1 Lorong 24 Geylang (“6th Unit”)	TCC	8 November 2017 to 8 September 2018 (10 months)

It should be noted that prior to the detection of the present offences, the Respondent had already been investigated by URA for providing STA. On 29 November 2017, the Respondent was investigated for providing STA at 5 Lorong 27 Geylang from 30 September 2017 to 6 October 2017 (“the Lorong 27 Offence”). In the course of investigations, he lied to URA that he had no other Airbnb properties. In fact, the Respondent had two other Airbnb properties at that time, namely, the 4th Unit and the 6th Unit (see [12] above). URA, not knowing the true position, decided not to prosecute the Respondent for the Lorong 27 Offence. The Respondent was not deterred by this. Instead, he proceeded to expand his enterprise by leasing four more properties. He also changed his host name on Airbnb from “Jo” to “Mik” following URA’s investigations into the Lorong 27 Offence.

The relevant legal provisions

The Respondent was charged under s 12(1) of the Planning Act. Under s 12(4)(a), as a first-time offender, he is liable on conviction to a fine not exceeding $200,000 per charge:

Unauthorised subdivision, development and other works

12.—(1) A person must not, without planning permission, carry out or permit the carrying out of any development of any land outside a conservation area.

…

(4) Subject to subsections (4A) and (4B), any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and shall be liable on conviction — (a) to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction; or (b) if the person is a repeat offender, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

On 15 May 2017, various amendments were introduced to the Planning Act. These included the insertion of s 3(3)(ca) of the Planning Act, which provides that the use of a building or part of a building originally constructed as a dwelling-house, for a purpose specified in the Fourth Schedule, constitutes “development”. The prohibition against STA is specified in cl 2 of the Fourth Schedule to the Planning Act:

USE OF DWELLING-HOUSE CONSTITUTING DEVELOPMENT

…

2. Use of a dwelling-house to provide short-term accommodation, where the dwelling-house or any part of it is occupied by the same person for a period of less than 3 consecutive months and the short-term accommodation is provided (with or without other services) in return for the payment of rent or other form of consideration, whether or not the relationship of landlord and tenant is thereby created. The decision below

I briefly summarise the decision below.

As noted above, the District Judge rejected the Bifurcated Approach. He considered that the Bifurcated Approach was “without precedent” and “[did] not accord with trite sentencing principles and objectives” (see GD at [23]). Instead, he decided that the following three-step sentencing approach should be applied (at [29]): First, calibrate the appropriate fine taking into account all relevant aggravating and mitigating factors. Second, consider whether the quantum arrived at is sufficient to disgorge the offender’s ill-gotten gains. Third, consider whether the aggregate fine should be adjusted in the light of the totality principle.

At the first step, the District Judge found that there were a number of aggravating factors, namely: (a) the Respondent’s persistent offending; (b) the difficulty of detecting STA offences; (c) the high volume and frequency of Airbnb bookings; (d) the dishonesty and deception on the...