Public Prosecutor v Liao Tian Shun
| Jurisdiction | Singapore |
| Judge | Loo Ngan Chor |
| Judgment Date | 11 July 2008 |
| Neutral Citation | [2008] SGDC 188 |
| Court | District Court (Singapore) |
| Year | 2008 |
| Published date | 05 August 2008 |
| Plaintiff Counsel | Deputy Public Prosecutor Isaac Tan |
| Defendant Counsel | Defence Counsel Ong Peng Boon |
| Citation | [2008] SGDC 188 |
| 11 July 2008 |
|
District Judge Loo Ngan Chor
Introduction:
The appeal:
1. There has been an appeal by the learned Public Prosecutor against my sentencing the accused to (a) reformative training and (b) police supervision for two years from the date of his release from the Reformative Training Centre (“RTC”).
The charges:
2. The accused pleaded guilty before me to the following four charges:
(i) DAC 5423/2008, which was for an offence of trafficking in 0.40 grams of a-methyl-3,4-(methylenedioxy) phenethylamine on 23rd January 2008 when he sold a quantity of tablets to an undercover CNB officer.
(ii) DAC 13121/2008, which was for his possession of 0.22 grams of Ketamine on the same day.
(iii) DAC 13122/2008, which was for consumption of norketamine when his urine samples were taken on the same day.
(iv) DAC 8147/2008 involved the accused’s having in his possession for the purpose of trafficking 8.36 grams of ketamine on 14th February 2008.
These charges are outlined in the prosecution’s schedule of offences at serial numbers 1, 4, 5 and 10.
3. The accused consented to a further 7 charges being taken into consideration for the purpose of sentencing. These were the charges outlined at serial numbers 2, 3, 6-9 and 11 of the schedule of offences. The charges at serial numbers 2 and 3 were also for trafficking because HSA analysis of the same batch of tablets as for the first charge showed that it contained other controlled drugs. Serial number 6 involved the HSA analysis of the accused’s urine samples for the charge at [2(iii)] above indicating the presence of nimetazepam. The charges at serial numbers 7 to 9 of the schedule of offences involved the accused giving tablets containing quantities of controlled drugs to one Tey Swee Kuan, a 35 year old man referred to as the “co-accused” in paragraph 3 of the Statement of Facts. Tey Swee Kuan’s case was not dealt with by me. Serial number 11 was for a consumption offence of norketamine disclosed upon the accused’s arrest for the charge at [2(iv)] above.
A young offender committing grave crimes:
4. The accused was born on 4th August 1987. He would turn 21 years old about 3 months from the date on which sentence was passed.
5. No-one in his right mind can doubt the very serious nature of the charges that the accused faced, particularly the trafficking charges. Drug addiction is an insidiously debilitating affliction, potentially destroying the human spirit of hard work and endeavour, of companionship and love. Thus, our society has deemed it fit to try and stamp out drug addiction with the hugely deterrent and retributive stances shown in the Misuse of Drugs Act (“the Act”). The illicit drug trafficking trade is parasitical, feeds on and tempts addiction, making addiction the harder to stamp out and encourages its spread. Hence, the tone of the Act for trafficking offences is yet harsher still for traffickers than for addicts.
Sentencing Considerations:
6. The acute tension in sentencing policy when the accused is young and has committed very serious offences has been delved into in numerous decisions of the higher courts by which I am bound. Parties before me focused on the, respectfully, comprehensive and sensitive, recent decision in Public Prosecutor v Mohammad Al-Ansari bin Basri
Reasons for calling for an RTC report:
7. My starting point was the question posed by V K Rajah J in Al-Ansari at [77], namely, “whether rehabilitation can remain a predominant consideration. If the offence was particularly heinous, or if the offender has a long history of offending, then reform and rehabilitation may not even be possible or relevant, notwithstanding the youth of the offender. In this case, the statutorily prescribed punishment (in most cases a term of imprisonment) will be appropriate.”
8. As noted below at [14, 15], the accused had no recorded history of offending. Serious and many, his offences ruled out any question of even considering probation. This was a point which was so obvious that the learned defence counsel did not attempt to broach it.
9. I noted that there were aggravating factors in this case. The offences were serious and many, even accounting for the fact that three, possibly four - those at serial numbers 2, 3, 9 and, possibly 6 - charges taken into consideration were the result of the drugs involved having been composite or “adulterated”. The accused’s level of culpability was presumptively high in that he appeared to have been actively engaged in the criminal activities.
10. The accused had also committed the offence at [2(iv)] above while he was on bail, which is a clearly aggravating factor reflecting an accused’s breach of faith embodied in the granting of bail (PP v Yusry Shah bin Jamal
11. The dilemma in this case had to do with the fact that the accused is a youth, still short of 21 years old. That number was by no means a technical issue. The fact is that under the law – the Probation of Offenders Act and s13 of the Criminal Procedure Code (“CPC”) – the accused’s age made him eligible to be considered for probation and reformative training. I could not, after intense reflection, accept the prosecution’s point that the accused was already pushing 21 years and his situation should not be equated with a younger person. With respect, this point would dilute the said statutory provisions at the margin; I did not think it right to deprive the accused of the biological advantage statute had given him.
12. All said, the seriousness and number of the accused’s offences did not appear to be ipso facto of so heinous a nature as to automatically tilt the sentencing consideration against looking at reformative training as a sentencing option. For that reason, I called for an RTC report so as to ensure that I had the fullest materials available for me to determine the sentence. In so doing, I had the learned defence counsel’s application and the learned deputy’s support where he said at [5] of his first written submissions, “Needless to say, the court could, if it wishes to further explore the expediency of making such an order call for a RTC report.”
13. I had in mind that reformative training could provide, in the right case, the right combination of deterrent and rehabilitative aspects. There would be such a case where the circumstances may be thought to rule out probation, it being a purely rehabilitative tool, whilst simultaneously the normal course of the relevant penal laws may be thought too retributive/deterrent for the young offender before the court.
The RTC report:
14. The accused had been experimenting with drugs since he was a child (under the heading ‘Alcohol/Drug problem’ in the RTC report). There were yet other warts disclosed (under ‘Companions & Leisure’).
15. Nonetheless, a number of significant mitigating factors surfaced when the RTC report came. I have mentioned that these were the accused’s first convictions. The accused came from a long-fractured family. He had not seen his natural mother since young, lived with his father’s sister and was hated by his step-mother. He had completed his national service and it “appeared that he had a good working attitude and adherence to conventional norms” (under the heading ‘Employment/Financial’ of the RTC report).
16. I considered that the accused’s substantial freedom from previous wrong-doing was a strong mitigating factor; I did not overlook the accused’s trying out drugs as a teenager. But, I was not prepared to hold that against him given that he had owned up to these wrongs and his having lacked parental guidance. As has been cautioned by the late Lai Kew Chai J in PP v Tan Koon Swan
“In the context of considering what has been set out in the statement of facts and what has been admitted by the accused, the following matters must be noted: - (a) the accused has pleaded guilty to and had been convicted of the offence of abetment of a particular breach of trust; (b) the prescribed punishment for the offence is imprisonment for a term which may extend to three years, or a fine, or both such imprisonment and fine; (c) the offence in this case relates only to a relatively minor aspect of what is, as revealed by the statement of facts, a much wider and rather more complicated mosaic of facts, including alleged criminal wrong-doings, in respect of which there...
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