Public Prosecutor v Lai Teck Guan

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 June 2018
• Neutral Citation: [2018] SGHC 151
• Plaintiff Counsel: Mark Tay and Zulhafni Zulkeflee (Attorney-General's Chambers)
• Date: 29 June 2018
• Docket Number: Magistrate’s Appeal No 9031 of 2018
• Hearing Date: 23 April 2018
• Subject Matter: Misuse of Drugs Act,Benchmark sentences,Criminal Law,Statutory offences,Criminal Procedure and Sentencing,Sentencing
• Published date: 04 July 2018
• Defendant Counsel: Respondent in person.
• Court: High Court (Singapore)
• Citation: [2018] SGHC 151
• Year: 2018

Sundaresh Menon CJ: Introduction

The respondent, aged 42 at the time of the offences, pleaded guilty to four charges of drug-related offences in the District Court, as follows: one charge of possessing not less than 7.75g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) punishable with enhanced punishment under s 33(4A)(i) of the MDA (“the trafficking charge”); one charge of consuming methamphetamine, an offence under s 8(b)(ii) of the MDA punishable under s 33A(2) of the MDA (“the LT2 consumption charge”); and two charges of possessing not less than 0.52g of diamorphine and not less than 4.76g of methamphetamine respectively, offences under s 8(a) of the MDA punishable with enhanced punishment under s 33(1) of the MDA (“the possession charges”).

Eight other drug-related charges were taken into account for the purpose of sentencing (“the TIC charges”). They comprised one other charge of LT2 consumption, five other charges of enhanced possession of various drugs and two charges of possessing drug utensils.

The District Judge (“the Judge”) convicted the respondent and sentenced him to 15 years’ imprisonment and 16 strokes of the cane, with the sentences for the trafficking charge and the methamphetamine possession charge to run consecutively: see Public Prosecutor v Lai Teck Guan [2018] SGDC 37 (“the GD”) at [23].

In this appeal, the Prosecution challenges the sentence imposed by the Judge on three grounds. First, the Prosecution submits that the sentence meted out for the trafficking charge does not accord with the principles underlying the sentencing approach I adopted in Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”), which have subsequently been approved and applied by the Court of Appeal: see Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (“Suventher”) at [28]–[31]. Second, the Prosecution submits that the Judge erred in imposing only the mandatory minimum sentence for the LT2 consumption charge and the possession charges. The Prosecution contends that the Judge, in deciding as he did, failed to take into account the respondent’s antecedents and the TIC charges. Third, the Prosecution submits that the Judge erred in principle by considering the likely aggregate sentence before he imposed the sentences for the individual charges. The Prosecution says that this does not accord with the approach outlined in the decision of this court in Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 (“Shouffee”).

I heard the parties on 23 April 2018 and reserved judgment. For the reasons that follow, I allow the Prosecution’s appeal in part and set aside the sentence imposed by the Judge. In its place, I impose an aggregate sentence of 16 years and nine months’ imprisonment and 17 strokes of the cane, with the trafficking charge and the methamphetamine possession charge continuing to run consecutively and the remaining charges to run concurrently.

Background

The facts before me are simple. On 12 July 2016, the respondent was stopped by the police at a shopping centre for a spot check but attempted to flee. He was then arrested on suspicion of drug-related offences. His sling bag was inspected upon arrest and his residence later searched. The drugs and utensils that formed the basis of the charges against him were discovered. At the police station, the respondent’s urine was tested and analysed and found to contain methamphetamine.

The respondent admitted that just days before his arrest, he had purchased 30 packets of drugs from his supplier. He further admitted that since April 2015, he had bought packets of drugs from his supplier on over 100 occasions and made a profit of $10 per packet from selling those drugs.

The decision below

As earlier noted, the Judge convicted the respondent, who pleaded guilty, and sentenced him to an aggregate sentence of 15 years’ imprisonment and 16 strokes of the cane, which was made up as follows: 13 years’ imprisonment and ten strokes of the cane for the trafficking charge. The mandatory minimum of seven years’ imprisonment and six strokes of the cane for the LT2 consumption charge. The mandatory minimum of two years’ imprisonment for each of the possession charges.

The sentences for the trafficking charge and the methamphetamine possession charge were ordered to run consecutively.

On the trafficking charge, the Judge sentenced the respondent to an imprisonment term that was three years above the mandatory minimum having regard to the quantity of drugs that he had in his possession (GD at [16] and [21]). The Judge rejected the Prosecution’s submission for a sentence of 16 years’ imprisonment and 11 strokes of the cane. The Prosecution had derived this by mathematically adapting the sentencing framework in Vasentha to repeat offenders. The Judge reasoned that while “some measure of guidance” (GD at [15]) could be taken from Vasentha, that case could not be adapted and then applied directly to repeat offenders for two reasons. First, the Judge noted that the Prosecution’s proposed framework would be inconsistent with Public Prosecutor v Mohammad Raffie Bin Saide [2015] SGDC 115 (“Raffie”). The Judge considered Raffie significant even though it was a District Court decision because on appeal, the High Court upheld the District Court’s finding. To the Judge, this implicitly suggested that the High Court would have rejected the Prosecution’s proposed framework (GD at [15]–[20]). Second, the Judge noted that the Prosecution proposed the same framework in Public Prosecutor v Sufian Bin Sulaiman [2016] SGDC 298. In that case, the District Court rejected the proposed framework and the Prosecution did not appeal (GD at [26]). While the Judge did not elaborate, presumably he deduced from this that the Prosecution believed that its proposed framework would not have found favour with the High Court.

Instead, the Judge interpreted Vasentha and Loo Pei Xiang Alan v Public Prosecutor [2015] 5 SLR 500 (“Loo”), which the Prosecution had also relied on, to stand principally for the proposition that the sentence must give due effect to the interest of general deterrence (GD at [13] and [16]). The Judge gave effect to this consideration by imposing an imprisonment term that was three years higher than the mandatory minimum (GD at [21]).

On the LT2 consumption charge and the possession charges, the Judge “considered and imposed the mandatory minimum sentence” (GD at [21]). He did not elaborate further. He also did not refer to the respondent’s antecedents or the TIC charges.

For all four charges, the Judge rejected the respondent’s submission that his plea of guilt and his family circumstances were mitigating factors. The Judge gave no weight to the respondent’s plea of guilt because the overwhelming evidence against him meant that his decision not to contest the charges should be viewed with some circumspection; he also gave no weight to the respondent’s family circumstances as he deemed those unexceptional (GD at [22]).

Finally, the Judge ordered the sentences for the trafficking charge and the methamphetamine possession charge to run consecutively after applying the sentencing principles in Shouffee. He backdated the respondent’s sentence to the date of remand (GD at [23]–[25]).

Cases on appeal

The Prosecution advances three main contentions in the appeal.

First, on the trafficking charge, the Prosecution submits that the Judge erred in principle by rejecting the framework that it had proposed. The Prosecution argues that although the sentencing framework in Vasentha was articulated for first-time offenders, it can be adapted to different situations.

In Vasentha, this court was faced with a first-time offender who had pleaded guilty to a charge of possessing 8.98g of diamorphine for the purpose of trafficking. The District Court sentenced the accused to 11 years’ imprisonment and the accused appealed. On appeal, I reduced the sentence to eight years’ imprisonment after developing and applying a sentencing framework for first-time offenders in such cases. In doing so, I first examined and considered a substantial number of precedents. I noted that they had tended to impose sentences that clustered within tight bands and as a result had failed to utilise the entire sentencing range prescribed by Parliament. However, the sentences in these cases had tended to correlate at least roughly with the quantity of drugs trafficked, because the quantity of drugs operated as a suitable indicator of the potential harm that may be caused and hence of the severity of the offence. Accordingly, I developed a sentencing framework that used the quantity of drugs trafficked as a starting point.

While the Prosecution acknowledges that Vasentha concerned a first-time offender, it submits that Vasentha can be adapted to other situations and refers in this regard to cases such as Loo, Suventher and Public Prosecutor v Tan Lye Heng [2017] 5 SLR 564 (“Tan Lye Heng”). Indeed, the Prosecution notes that in Public Prosecutor v Katty Soh Qiu Xia [2018] SGDC 50 (“Katty Soh”), the District Court adapted Vasentha to a repeat offender possessing a quantity below 10g of diamorphine for the purpose of trafficking – a situation identical to the present case. The Prosecution accepts that Katty Soh arrived at a different sentencing framework but nonetheless relies on this for the proposition that Vasentha can be adapted.

The Prosecution accordingly submits that the following sentencing framework should be adopted:

Weight of drugs (diamorphine)	Imprisonment	Caning
Up to 3g	10 – 12 years	10 – 11 strokes
3 – 5g	12 – 14 years	10 – 11 strokes
5 – 7g	14 – 16 years	11 – 12 strokes
7 – 8g	16 – 18 years	11 – 12 strokes
8 – 9g	18 – 21 years

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