Public Prosecutor v Ma Jinlong

• Jurisdiction: Singapore
• Judge: Paul Quan
• Judgment Date: 01 August 2024
• Neutral Citation: [2024] SGDC 157
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 911947 of 2024 and 3 Others
• Hearing Date: 01 August 2024
• Citation: [2024] SGDC 157
• Year: 2024
• Plaintiff Counsel: Woo Jia Min (Singapore Customs)
• Defendant Counsel: Accused self-represented.
• Published date: 08 August 2024

District Judge Paul Quan: Introduction

The accused, Ma Jinlong (“Mr Ma”), a 29-year-old Chinese national, has been working in Singapore for the past four years. During a return visit to China, he bought 10 bottles of Er Guo Tou brand of uncustomed liquor at RMB35 per bottle, with the intention of smuggling them back to Singapore for personal consumption and resale. Mr Ma subsequently did so when he returned to Singapore via Changi Airport, and did not declare or pay the excise and customs duty and Goods and Services Tax (“GST”) leviable on the liquor. He then stored the liquor where he stayed. After giving a bottle to his friend, he advertised on his WeChat account that he had Er Guo Tou for sale at S$50 per bottle. Subsequently, Mr Ma packed five bottles of liquor into a luggage bag to fulfil an order from an unknown buyer at a mutually agreed price of S$230. While awaiting the buyer’s arrival at the void deck of where Mr Ma stayed, Singapore Customs officers, who were conducting an operation in the vicinity to apprehend persons involved in illicit activities, approached Mr Ma upon their suspicions, searched his luggage bag, and found the five bottles of liquor. At that point in time, Mr Ma admitted that he knew of the liquor and their uncustomed nature upon questioning by the officers. The officers then escorted Mr Ma to where he stayed and found the remaining four bottles of liquor after a search. Similarly, Mr Ma also admitted then that he knew of the stored liquor and their uncustomed nature.

Mr Ma pleaded guilty to four charges under section 128I of the Customs Act 1960 (“CA”), two for dealing with uncustomed liquor under section 128I(1)(b) of the CA, and another two for storing uncustomed liquor under 128I(1)(a)(ii) of the CA. Mr Ma knew that excise and customs duty and GST leviable on the liquor were unpaid when he stored and dealt with them. He had dealt with the uncustomed liquor with intent to defraud the Singapore Government of such unpaid excise and customs duty and GST.

For storing and dealing with the uncustomed liquor, Mr Ma can be punished to a fine of not less than ten times the amount of duty and tax evaded or S$5,000, whichever is lesser, and not more than 20 times that amount of duty and tax evaded or S$5,000, whichever is greater. This is prescribed by section 128L(2) of the CA in relation to the excise and customs duty evaded. This also applies to the GST evaded by operation of sections 26 and 27 of the GST Act 1993, paragraph 3 of the GST (Application of Legislation Relating to Customs and Excise Duties) Order (Order 4, 2009 Rev Ed) and paragraph 2 of the GST (Application of CA) (Provisions on Trials, Proceedings, Offences and Penalties) Order (Order 5, 2001 Rev Ed).

The unpaid amount of excise and customs duty for the five bottles of liquor that Mr Ma had dealt with is S$537.60. It is S$51.31 for the unpaid GST. The fines in respect of dealing with the uncustomed liquor therefore range: from S$5,000 to S$10,752 in respect of the charge involving the unpaid excise and customs duty; from S$513.10 to S$5,000 in respect of the charge involving the unpaid GST. The unpaid amount of excise and customs duty for the four bottles of liquor that Mr Ma had stored is S$430.80. It is S$41.05 for the unpaid GST. The fines in respect of storing the uncustomed liquor therefore range: from S$4,300.80 to S$8,601.60 in respect of the charge involving unpaid excise and customs duty; from S$410.50 to S$5,000 in respect of the charge involving unpaid GST.

The prosecution has submitted that a global fine of S$11,123.60 should be imposed on Mr Ma, and has sought only a slight total uplift of about S$900 to two of the mandatory minimum fines at [4(a)] and [4(c)], above, to take into account the fact that he: had dealt with the liquor for profit; had stored them for personal consumption and profit; has since made full restitution for the unpaid amount of excise and customs duty and GST; and gave an early indication of a guilty plea. Mr Ma is unrepresented. He does not have any criminal antecedents in Singapore. During oral mitigation, he has shown remorse and has pleaded for the court’s leniency. He also indicated his ability to pay the fines.

Issues to be decided

The two main issues that I have decide in this case are: first, whether I ought to impose merely the prescribed mandatory minimum fines on all the charges; and if not, second, whether I should apply the uplift as proposed by the prosecution, or the sentencing framework laid down by the Singapore High Court in PP v Tan Teck Leong Melvin [2023] 5 SLR 1666 (“Melvin Tan”).

I resolve the issues in this way: Mr Ma’s culpability is not so low and his mitigating factors not so strong as to justify imposing only the mandatory minimum fines on all the charges; The prosecution’s uplift to two out of four mandatory minimum fines to be imposed is fair, even-handed, and measured; and I adopt the prosecution’s uplift, instead of applying the Melvin Tan framework to the present offences as they are different scheduled offences under the CA and involve a different type of goods that are not contemplated, if not expressly excluded, by the framework.

I therefore sentence Mr Ma to a global fine of S$11,123.60 on all four charges. If Mr Ma does not pay the fine, he will serve an imprisonment term of 44 days. I set out the reasons for my sentencing decision.

Procedural history

Before I analyse the issues, I first set out the procedural history of this case by way of context. This matter first came before me on 2 July 2024 for Mr Ma’s plea to be taken. At that time, the prosecution’s sentencing position was that the Melvin Tan framework could be used as reference in deriving the fines to be imposed for the charges.

After expressing my initial reservations about applying the Melvin Tan framework and ascertaining Mr Ma’s intention to make full restitution for the unpaid amount of excise and customs duty and GST, I adjourned taking Mr Ma’s plea for full arguments to be made on the applicability of the Melvin Tan framework and to afford time for Mr Ma to make restitution. The prosecution had asked that I take Mr Ma’s plea in a month because this matter was fixed at short notice before me after it was first mentioned only on 20 June 2024.

The prosecution has since reconsidered its position and has not submitted the use of the Melvin Tan framework in any way to derive the fines to be imposed on Mr Ma.

Analysis of issues

I analyse the issues upon which my...