Public Prosecutor v Liao Guo Kai

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 08 October 2008
• Neutral Citation: [2008] SGDC 294
• Court: District Court (Singapore)
• Published date: 09 December 2008
• Year: 2008
• Plaintiff Counsel: Deputy Public Prosecutor Ng Der Lim
• Defendant Counsel: Defence Counsel Jayakumar
• Citation: [2008] SGDC 294

08 October 2008

District Judge Loo Ngan Chor

Introduction:

1. The prosecution has appealed against the sentences I imposed on the accused.

2. The accused pleaded guilty before me to the following four charges involving:

(i) an offence under s7 read with s12 of the Misuse of Drugs Act (Cap 185) (“the Act”) punishable under s33 of the Act for engaging in a conspiracy on or about 10^th January 2008 with one Koay Chin Liang (“Koay”) for Koay to import into Singapore 20 tablets containing 1.72 gms of ά-methyl-3,4 (methylenedioxy)phenethylamine, a Class A drug (“the first charge”);

(ii) an offence under s7 read with s12 and punishable under s33 of the Act for engaging in a conspiracy on or about 10^th January 2008 with Koay, for Koay to import into Singapore 300 tablets of nimetazepam, a Class C drug (“the second charge”);

(iii) an offence under s9 punishable under s33 of the Act for having in his possession on 13^th January 2008 a utensil, namely a paper roll, used in connection with the administration of a controlled drug and stained with methamphetamine, a controlled and specified drug (“the third charge”);

(iv) an offence under s8(b)(ii) of the Act that on 12^th January 2008 he did consume methamphetamine, a controlled and specified drug (“the fourth charge”).

3. The accused consented to having four other charges taken into consideration for the purposes of sentencing. Three of these charges spun off from the four charges proceeded on in that the drugs the subject of the first two charges also contained the drugs N, ά-dimethyl-3,4 (methylenedioxy) phenethylamine and ketamine (exhibit P4) and the paper roll the subject of the third charge was also stained with ketamine (exhibit P23(1)). An eighth charge was for consumption of nimetazepam.

4. The accused had initially claimed trial to four of the eight charges, which included the first and second charges. The accused changed his plea in the course of his counsel’s cross-examination of Koay.

5. I sentenced the accused as follows:

(a) five years and three months’ imprisonment and five strokes of the cane for the first charge;

(b) three years and six months’ imprisonment and five strokes of the cane for the second charge;

(c) three months’ imprisonment for the third charge;

(d) twelve months’ imprisonment for the fourth charge.

I ordered that the prison terms for the first and fourth charges run consecutively with the other two terms to run concurrently, with effect from the date of the accused’s commencement of remand on 14^th January 2008, making a total sentence of six years and three months’ imprisonment and 10 strokes of the cane.

Prosecution’s Statement of Facts (“SOF”):

6. The accused admitted the SOF, which contained the information set out in this segment.

7. Koay, a Malaysian residing in Johor, had been dealt with for importation of controlled drugs into Singapore via the causeway. He had been arrested on 12^th January 2008 at about 1.45 pm by officers of the Immigration and Checkpoints Authority (“ICA”) when controlled drugs were found secreted in the ferrings of his motorcycle.

8. The drugs recovered from Koay included one sachet containing 20 tablets of ecstasy (the first charge) and 30 slabs of 10 tablets each, totalling 300 tablets, of Erimin 5 (the second charge). (See exhibits PS1 and PS2, conditioned statements of the ICA arresting officers and photograph exhibits P5(5), (7) and (6) respectively, which were adduced at the trial prior to the accused’s change of plea.)

9. The drugs the subject of the first and second charges, as well as the third, fourth and seventh charges taken into consideration, against the accused involved the Erimin 5 and ecstasy.

10. Two days prior to his arrest, Koay had agreed with the accused over the telephone to import the Erimin 5 and ecstasy to be delivered to the accused at agreed prices. When Koay was arrested, he was on his way to deliver the drugs to the accused.

11. The quantities of the ecstasy and Erimin 5 were borne out by [8] to [10] of the SOF and the HSA certificate marked P4, and by [11] to [13] of the SOF and the HSA certificated marked P3, respectively.

12. In support of the third charge, [15] to [18] of the SOF and the HSA certificate marked P23(1), disclosed that a paper roll found in the accused’s flat upon his arrest was stained with methamphetamine.

13. [20] to [24] of the SOF and the HSA certificate marked 23(2) disclosed, in respect of the fourth charge, that the accused’s urine samples had been found to contain methamphetamine.

Further Facts:

14. In the course of the trial[note: i], the charges and notes of evidence in respect of Koay were tendered and collectively marked P12. Two charges (exhibits P12(1) and P12(4)) of importing were proceeded against Koay, corresponding to the first and second charges. Three charges were taken into consideration; two were importing charges (exhibits P12(2) and P12(3)) corresponding to the accused’s third and fourth charges taken into consideration.

15. One (exhibit P12(12)) was for importing one satchet of ice. The satchet of ice was intended for one Chua Eng Hwa (“Chua”), which was a delivery distinct from and not connected to the accused. Thus, when Koay was arrested at the customs checkpoint, he was in fact importing two sets of drugs, one intended for the accused and one for Chua.

16. Koay received sentences of five years and eight months’ imprisonment and five strokes of the cane for the charge of importing ecstasy and three years and six months’ imprisonment and five strokes of the cane for the charge of importing Erimin 5, with the sentences to run concurrently. Koay’s sentence therefore totalled five years and eight months’ imprisonment and 10 strokes of the cane[note: ii].

Antecedents:

17. The accused’s record of antecedents (exhibit P24) adduced by the prosecution showed that the accused had four driving-related offences in January 2007. Thus, the accused had no drug-related antecedents.

Mitigation:

18. Counsel made a plea in mitigation on the accused’s behalf. It was said that the accused was single, residing with aged parents and the sole care provider.

19. The accused had secondary education. Having served with the SAF for eight years, his service was terminated on account of stress and depression when medication did not seem to help. He had since been unemployed.

20. Unspecified prescription medicine was said to have led to the accused developing a craving for other and prohibited drugs. It was said that Koay had proposed supplying the accused drugs in December 2007 when they met at a pub.

21. The accused knew that Koay was a Malaysian and was coming into Singapore with the drugs. Notwithstanding that knowledge, the accused claimed that he did not know that asking Koay to bring the drugs into Singapore would lead to the first two charges that he faced. He had, in short, committed a graver offence than he intended owing to his alleged ignorance of the law.

Prosecution’s Submissions on Sentence:

22. Citing the cases of Wong Kai Chuen Philip v PP [1990] SLR 1011 at 1013H to 1014F and Angliss Singapore Pte Ltd v PP [2006] 4 SLR 653 at [73] and [77], the learned DPP submitted that the accused’s plea of guilt did not spring from any genuine remorse. The accused, it was submitted, was thus not entitled to a discount on his plea of guilt as the plea sprang from a realization that his goose was as good as cooked rather than from genuine contrition.

23. The learned DPP submitted that as regards the first two charges, the accused should “receive stiffer sentences than [Koay] and … [Chua].” ([4] of P25, the prosecution’s skeletal submissions on sentence, which had attached to it the court record of Chua’s proceedings.)

24. It was pointed out that Koay had pleaded guilty to two counts of importing drugs on the first day of his trial. He had been sentenced to five years and eight months of imprisonment and 10 strokes of the cane.

25. Chua had pleaded guilty “at the pre-trial stage to inter alia a charge of abetment of drug importation”. He had been sentenced to five years’ imprisonment and five strokes of the cane ([6] and the attachment in P25).

Defence Submissions on Sentence:

26. Counsel for the accused submitted that although seven days had been spent at trial, this was occasioned principally by the prosecution choosing to deal with the accused’s statements which the accused challenged, thus requiring expenditure of time on two trials within a trial. Counsel said that he had requested for Koay to be called to testify first and that the accused had changed his plea upon Koay having testified. Also, counsel said that telephone toll records had not been available at the pre-trial stage. When these two pieces of “compelling evidence” became available, he said, the accused had taken a certain course.

Sentencing Considerations:

27. In delivering sentence[note: iii], I stated that I agreed with the learned DPP that the accused deserved no discount on sentence owing to the fact that his belated change of plea was not motivated by any genuine remorse. Indeed, the learned counsel’s submissions on sentence, to the extent that it was said that the accused pleaded guilty when he was advised that the evidence was compelling went to prove the learned DPP’s point that the accused’s plea of guilt was purely the product of his re-computing the odds rather than from any remorse.

28. On the other hand, I also expressed agreement with the learned defence counsel that the fact that the trial had gone on for some days was not something for which the accused could be held accountable. At any rate, while he would get no discount on sentence, I did not have to compound his sentence because he initially stood on his right to be presumed innocent until the prosecution proved its case against him. There are numerous discourses by legal luminaries, in and out of court, on the presumption of innocence and its philosophical linkage with the prosecution’s burden of proof...