Public Prosecutor v Loh Jamie

• Jurisdiction: Singapore
• Judge: Shaiffudin Bin Saruwan
• Judgment Date: 08 April 2011
• Neutral Citation: [2011] SGDC 118
• Court: District Court (Singapore)
• Docket Number: OA 3176-212/09
• Year: 2011
• Published date: 20 April 2011
• Hearing Date: 07 March 2011
• Plaintiff Counsel: Mr Ramesh
• Defendant Counsel: Mr Laurence Goh
• Citation: [2011] SGDC 118

District Judge Shaiffudin Saruwan: The Background

The defendant pleaded guilty to the following offences – Three charges of leaving Singapore without the previous permission of the Official Assignee whilst still an undischarged bankrupt under section 131(1)(b) punishable under section 131(2) of the Bankruptcy Act, Cap 20 (OA 3176/09, OA 3188/09 and OA 3192/09), and, Three charges of failing to submit to the Official Assignee an account of all moneys and property which have come into the defendant’s hands for his own use under section 82(1)(a) punishable under section 82(2) of the same Act (OA 3206/09, OA 3207/09 and OA 3208/09).

27 charges under section 131(1)(b) and four charges under section 81(1)(a) were taken into consideration for the purposes of sentencing.

After due consideration of the facts and plea in mitigation, I imposed the following sentences – One month imprisonment for each of the section 131(1)(b) offence (OA 3176/09, 3188/09 and 3192/09); and One week imprisonment for each of the section 82(1)(a) offence (OA 3206/09, 3207/09 and 3208/09). I ordered that the imprisonment sentences in OA 3176/09, 3188/09 and 3206/09 to run consecutively. The total sentence which the defendant has to serve was two months and one week imprisonment.

The Facts

The defendant was adjudged a bankrupt by the High Court on 3 August 2007 in Bankruptcy Order No. 1369/07. He was aware that as a bankrupt, he was required to seek permission before he leaves Singapore. In fact, for the periods 24-28 August 2007, 29 August – 28 September 2007 and 1 October – 1 November 2007, he had sought and was granted permission to travel overseas. On 16 September 2009, during the course of a routine investigation into the defendant’s affairs, the Official Assignee discovered that the accused had travelled overseas without obtaining prior permission for the following periods – 21 December 2007 – 21 January 2008 (30 days); 6 – 11 February 2008 (5 days); and 15 – 18 February 2008 (3 days).

As a bankrupt, the defendant was also aware that he was required to submit to the Official Assignee Income and Expenditure statements ie, an account of all moneys and property which have come into his hands for his own use, once every six months. The accused had failed to file the statements on the following three periods despite reminders being sent to him to do so - November 2007 – January 2008; February – April 2008; and May – July 2008. He had since filed all the required statements on 10 March 2010.

Antecedent(s)

The defendant has no antecedent.

Mitigation

Counsel tendered a written mitigation. He submitted that the offences had been committed during the period when his mother was at the worst moment of her mental and physical medical condition following the death of her husband in February 2007. She had not been able to accept her husband’s death and had gone through a tough period of depression. She had amnesia, high blood pressure, depression, high cholesterol and mood swings which had caused her to be mentally and physically unstable and needed proper medication and care. As the defendant’s other brother was then working overseas most of the time, the responsibility of caring for the mother was shouldered by the defendant. The defendant had forgotten and had failed to remind himself to obtain permission for those 30 occasions stated in the charges. He admitted his stupidity and accepted full responsibility. The defendant was employed by M/s Globe Wireless and had recently been promoted to Senior Regional Sales Manager and was doing well in the company. His employer had described him as good natured, and loyal to his friends, colleagues and family. He had been placed in charge of many critical and major projects undertaken by the company.

Counsel stressed that the offences had been committed as a result of pure oversight and ignorance on the defendant’s part and not done deliberately or intentionally. Further the travel overseas in relation to the three proceeded charges had been to care for his mother who was residing in Malaysia. As such, counsel urged the court to impose fines of appropriate amounts instead of a jail sentence. Counsel emphasised that the defendant had worked very hard to attain the position he was in now in his company, and a jail sentence would place his job at great risk. Counsel also submitted that the defendant had learned his lesson, and had co-operated fully with the Official Assignee, and was not likely to re-offend.

Prosecution’s Submission

The prosecution highlighted that the defendant had faced a total of 37 charges – 30 charges under section 131(1)(b) and seven charges under section 81(1)(a). The defendant had also only filed all the required statements very late ie on 10 March 2010, after the summonses had been served on him. Further, the defendant had only made six instalment payments totalling $2200 since his bankruptcy in August 07. All considered, the prosecution submitted that the appropriate sentence in this case ought to be a custodial sentence. The prosecution also tendered a table of sentences for similar offences. A copy was given to counsel.

The Sentence

The prescribed punishment for both offences under section 131(1)(b) and section 82(1)(a) are the same – a fine not exceeding $10,000 or imprisonment not exceeding two years or to both.

The rationale for the penal provisions in the Bankruptcy Act such as section 131(1)(b) and section 81(1)(a) are summarised by V K Rajah JA in PP v Low Kok Heng [2007] 4 SLR(R) 183 - “1 The penal provisions of the Bankruptcy Act (Cap 20, 2000 Rev Ed) ("the Act") play a pivotal role in the effective administration of bankrupt estates through the designed sanctions. These provisions are intended to safeguard the interests of a bankrupt's creditors and the wider public in so far as these diverge from those of the bankrupt. Among other things, these provisions: (a) prescribe and punish conduct which impedes or hinders the administration of estates; (b) promote compliance with the prescribed legislative policy and obligations imposed by the Act; (c) protect creditors from inappropriate behaviour by a bankrupt that might result in diminished dividends from an estate; and (d) protect the public from being misled into assuming uninformed risks in their dealings with undischarged bankrupts.”

In PP v Choong Kian Haw [2002] 2 SLR(R) 997, the then Chief Justice Yong Pung How set out the sentencing policy for an offence under section 131(1)(b). In Choong Kian Haw, the respondent had pleaded guilty to three charges under section 131(1)(b) and agreed to have 41 other similar charges taken into consideration. The Magistrate held that a custodial sentence was inappropriate since Choong had committed the offences negligently, and not deliberately, recklessly or with blatant disregard for the obligations imposed on him to seek permission from the OA before leaving the jurisdiction. He imposed the maximum fine of $10,000 on each of the three charges. The prosecution appealed against the sentence, arguing that a custodial sentence should have been imposed. On appeal, Chief Justice Yong set aside the fine and imposed two months imprisonment on each of the three charges and ordered all three sentences to run consecutively.

In his judgment,...