Public Prosecutor v Lim Yung Keng Adam

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 26 August 2022
• Neutral Citation: [2022] SGDC 192
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 902368 of 2022 & Ors
• Published date: 03 September 2022
• Year: 2022
• Hearing Date: 24 August 2022,20 May 2022
• Plaintiff Counsel: DPP Wu Yu Jie and ASP Kelvin Teo
• Defendant Counsel: Mr Tng Soon Chye (Tng Soon Chye & Co)
• Subject Matter: Immigration,Criminal offences,Offence of entering into a marriage of convenience pursuant to s 57C(1) Immigration Act (Cap 133, 2008 Rev Ed),Offence-specific sentencing factors,Criminal Procedure and Sentencing,Sentencing,Sentencing norms for s 57C(1) Immigration Act (Cap 133, 2008 Rev Ed),Sentencing norms for s 57(1)(k) Immigration Act (Cap 133, 2008 Rev Ed) committed in the context of marriages of convenience,Fines,Disgorgement of gratification through fine,Value of gratification exceeds maximum fine for the offence,Inability to pay disgorgement fine,Imprisonment term in lieu of disgorgement fine
• Citation: [2022] SGDC 192

District Judge Kow Keng Siong: Introduction

Criminally minded individuals find various ways to breach and exploit our immigration controls and laws so that they can enter, stay, and work in Singapore. Some smuggle themselves into Singapore. Others produce false documents to our immigration authorities. And there are some who take the drastic step of entering into marriages of convenience to deceive the immigration authorities into granting them immigration advantages.

Section 57C(1) of the Immigration Act 1959 (“Immigration Act”) criminalises the act of entering into a marriage of convenience to obtain an immigration advantage (“s 57C(1) offence”). Although s 57C(1) came into force a decade ago, some sentencing issues for the offence remain to be considered. For instance, while there are clear sentencing norms for a s 57C(1) offence, there is a dearth of jurisprudence on its offence-specific sentencing factors. Importantly, it appears that courts have thus far not considered whether the value of a gratification received by an offender in the commission of a s 57C(1) offence is relevant to his sentencing, and if so, how?

The present case provides an opportunity to consider the above issues. Before doing so, it would be useful to set out the facts of the case.

Background facts The charges

The accused person, Lim Yung Keng Adam (“the Accused”), pleaded guilty before me to the following charges: A charge under s 57C(1) of the Immigration Act (Cap 133, 2008 Rev Ed) for having entered into a marriage of convenience on 15 July 2019 with one Du Yuju (“Du”), a People’s Republic of China national, so as to assist Du to obtain a visit pass. The Accused received $18,000 from Du as a reward for entering into the marriage. (“1st Charge”) A charge under s 57(1)(k) read with s 57(1)(vi) of the Immigration Act for having submitted to the Immigration & Checkpoints Authority (“ICA”) on 15 October 2019 a visit pass application form for Du in his capacity as her husband and a sponsor. When submitting the form, the Accused had declared that various statements made by Du in the form were true and correct, when he knew that this was not the case. As a result of the application, ICA issued a short-term visit pass to Du. (“2nd Charge”) A charge under s 57(1)(k) read with s 57(1)(vi) of the Immigration Act for having submitted to ICA on 16 September 2020 a long-term visit pass application form for Du in his capacity as her husband and a sponsor. When submitting the form, the Accused had declared that various statements made by Du and he in the form were true and correct, when he knew that this was not the case. As a result of the application, ICA issued a long-term visit pass to Du. (“3rd Charge”)

The facts

The circumstances of the 1st Charge are as follows: In 2019, the Accused, a Singapore citizen, approached X for financial assistance. X suggested to the Accused that he enter into a marriage of convenience in return for money from his prospective “wife”. After the Accused agreed with the suggestion, X put the Accused in contact with Du. The Accused first met Du at the airport when she was leaving for Penang after her work permit had been cancelled. He later met Du again in Penang to discuss about their marriage plans in detail. The Accused knew that Du had wanted to remain in Singapore to work to support her brother and niece who were ill in China, and that she had also planned to bring her daughter from Penang into Singapore and enrol her in a school here. In return for $18,000, the Accused agreed to enter into marriage of convenience with Du and to assist her with her visit pass applications to remain in Singapore after the marriage. After returning to Singapore, the Accused filed notice of his intended marriage with Du at the Registry of Marriages (“ROM”). Du later arrived in Singapore for the marriage solemnization which took place on 15 July 2019 at a restaurant. After the solemnization, the Accused and Du stayed apart. Du worked as a freelance KTC hostess and made various payments to the Accused totalling $18,000.

The facts relating to the 2nd Charge are as follows. On 15 October 2019, at ICA Building, the Accused submitted an application for a short-term visit pass for Du. He falsely declared in the form that (i) Du was residing at his address while in Singapore, and (ii) the purpose of Du’s visit to Singapore was to stay with him (her “husband”). Not knowing that the application form contained false declarations, ICA issued a short-term visit pass to Du.

The offence in the 3rd Charge was committed in the following circumstances: On 16 September 2020, at ICA Building, the Accused submitted an application for a long-term visit pass for Du. The application form contained various false declarations by the Accused that he did not enter into a marriage of convenience with Du. Not knowing that the application form contained false declarations, ICA issued a long-term visit pass to Du. From September 2020 till August 2021, the Accused received $400/month as a reward from Du for assisting her to obtain the long-term visit pass. These payments (totalling $4,800) stopped when the Accused and Du were arrested in September 2021.

Charges taken into consideration

Apart from the above three charges, the Accused faced another six similar charges under s 57(1)(k) read with s 57(1)(vi) of the Immigration Act. He consented to them being taken into consideration for the purpose of sentencing.

Antecedents

In 2015, the Accused was convicted was convicted of charges under the Moneylending Act. He was sentenced to two months’ imprisonment and $60,000 in total.

Mitigation

In mitigation, the Defence raised the following key points: The Accused is single, had been unemployed since 2021, and was supporting his aged mother. He committed the offences because of financial difficulties. The Accused’s offences did not contain any aggravating factor. The Accused had rendered his fullest cooperation to the immigration authorities, admitted to his wrongdoing in his cautioned statements, and pleaded guilty at the earliest opportunity.

Du’s sentences

Du faced charges that were similar to the Accused’s. She pleaded guilty to her charges and her sentences were as follows:

Charge	Offence	Sentence
DAC 902379-2022	Section 57C(1) Immigration Act	Six months’ imprisonment
DAC 902380-2022	Section 57(1)(k) punishable under s 57()(vi) Immigration Act	Eight weeks’ imprisonment
DAC 902381-2022	Section 57(1)(k) punishable under s 57()(vi) Immigration Act	Eight weeks’ imprisonment
TIC charges	Six charges under s 57(1)(k) punishable under s 57()(vi) Immigration Act
Consecutive sentences	DAC 902379-2022 and DAC 902380-2022
Total sentence	Six months and eight weeks’ imprisonment

Parties’ sentencing position

The parties submitted for the following sentences:

Charge	Prosecution	Defence
1st Charge: Section 57C(1) offence	Initial: Six months’ imprisonment Revised: Six months’ imprisonment and $10,000-fine	Six months’ imprisonment
Note. The Prosecution revised their sentencing position after I had sought further sentencing submissions on the s 57C(1) offence (see [15] – [27] below).
2nd and 3rd Charges: Section 57(1)(k) offence	Eight weeks’ imprisonment per charge1	Four weeks’ imprisonment per charge
Aggregate sentence	Six months and eight weeks’ imprisonment and $10,000-fine	Six months and four weeks’ imprisonment
Note. Both the Prosecution and the Defence submitted for the sentences for the 1st Charge and one of the remaining proceeded charges to run consecutively.

Having set out the background facts, I will now proceed to the sentencing issues raised in the present case and the parties’ positions on these issues.

Section 57C(1) of the Immigration Act Prescribed punishment

Section 57C(1) and (2) states the following: 57C.—(1) Any person who contracts or otherwise enters into a marriage — (a) knowing or having reason to believe that the purpose of the marriage is to assist one of the parties to the marriage to obtain an immigration advantage; and (b) where any gratification, whether from a party to the marriage or another person, is offered, given or received as an inducement or reward to any party to the marriage for entering into the marriage,

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 10 years or to both.

(2) Any person who arranges or otherwise assists in arranging a marriage between 2 other persons, with the intention of assisting one of the parties to the marriage to obtain an immigration advantage, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 10 years or to both. The sentencing issues and the parties’ submissions

During the proceedings, I sought the assistance of the Prosecution and the Defence to clarify several sentencing issues.

Is the value of gratification relevant to sentencing?

The first concerns whether the value of the gratification received by the Accused is relevant to his sentencing. I had posed this issue to the parties in the following terms:

Issue A. If an accused person had received gratification in the commission of an offence under s 57C(1) of the Act, is this relevant to his sentencing as a matter of principle?

For instance, all other things being equal – (1) Should two accused persons – one who had received $10,000 as gratification for entering into a marriage of convenience and another who had received $2,000 as gratification – receive the same sentence? (2) Should two parties to a marriage of convenience receive the same...