Public Prosecutor v Marzuki bin Ahmad and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 August 2014
• Neutral Citation: [2014] SGHC 166
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeals Nos 273 of 2013/01 and 273 of 2013/02
• Year: 2014
• Published date: 28 August 2014
• Hearing Date: 17 April 2014,27 May 2014
• Plaintiff Counsel: Grace Lim, Eunice Lim and G Kannan (Attorney-General's Chambers)
• Defendant Counsel: Nirmal Singh (Raj Kumar & Rama)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Principles,Penalties
• Citation: [2014] SGHC 166

Sundaresh Menon CJ: Introduction

Magistrate’s Appeal No 273 of 2013/01 (“MA 273/2013/01”) and Magistrate’s Appeal No 273 of 2013/02 (“MA 273/2013/02”) were cross-appeals against the sentence imposed by the district judge (“the DJ”) in Public Prosecutor v Marzuki Bin Ahmad [2013] SGDC 428 (“the GD”). The former was filed by the Public Prosecutor, and the latter, by Mr Marzuki bin Ahmad (“the Accused”).

The Accused was charged under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”), which reads as follows:

Punishment for corrupt transactions with agents 6. If —

(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business;

…

he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment not exceeding 5 years or to both.

A total of 13 charges were brought against the Accused. Six of those charges were proceeded with and he pleaded guilty to all of them. In respect of those six charges (“the charges proceeded with”), the Accused had received a total sum of $25,000 pursuant to a number of loans which he had corruptly obtained, namely, one loan of $20,000 and five loans of $1,000 each. A further seven charges were taken into consideration for the purposes of sentencing. Those seven charges (“the charges taken into consideration”) concerned a number of loans for a total sum of $6,500 and one attempt to obtain a further loan of $5,000. The DJ sentenced the Accused to six months’ imprisonment for the charge involving the loan of $20,000 and one month’s imprisonment for each of the five charges involving a loan of $1,000. He ordered the six-month imprisonment term and two of the one-month imprisonment terms to run consecutively, with the remaining one-month imprisonment terms to run concurrently, making an aggregate term of eight months’ imprisonment.

The PCA further provides for the imposition of a penalty where a person is convicted of an offence involving the acceptance of gratification in contravention of any provision of the PCA. This is found in s 13, which provides as follows:

When penalty to be imposed in addition to other punishment 13.—(1) Where a court convicts any person of an offence committed by the acceptance of any gratification in contravention of any provision of this Act, then, if that gratification is a sum of money or if the value of that gratification can be assessed, the court shall, in addition to imposing on that person any other punishment, order him to pay as a penalty, within such time as may be specified in the order, a sum which is equal to the amount of that gratification or is, in the opinion of the court, the value of that gratification, and any such penalty shall be recoverable as a fine.

(2) Where a person charged with two or more offences for the acceptance of gratification in contravention of this Act is convicted of one or some of those offences, and the other outstanding offences are taken into consideration by the court under section 148 of the Criminal Procedure Code 2010 for the purpose of passing sentence, the court may increase the penalty mentioned in subsection (1) by an amount not exceeding the total amount or value of the gratification specified in the charges for the offences so taken into consideration. The DJ ordered the Accused to pay a penalty of $25,000 under s 13(1) in respect of the sums involved in the charges proceeded with, but declined to make an order against the Accused under s 13(2) in respect of the sums involved in the charges taken into consideration.

MA 273/2013/01 and MA 273/2013/02 (collectively referred to hereafter as “these Appeals”) concerned both the length of the imprisonment term that the DJ imposed as well as the DJ’s decision on the penalty orders under both ss 13(1) and 13(2).

As to the imprisonment sentence, the Prosecution contended that the sentence imposed by the DJ was manifestly inadequate, and sought an aggregate imprisonment term of at least 12 months. The Accused, on the other hand, sought to have the sentence reduced to a term of no more than six months’ imprisonment on the grounds that the aggregate sentence of eight months’ imprisonment was manifestly excessive

As to the penalty order under s 13(1), the Accused sought a reduction in the aggregate amount which he was to pay as a penalty from $25,000 to $11,500. The Prosecution, on the other hand, appealed against the DJ’s decision not to make a penalty order under s 13(2) and, accordingly, sought a penalty order for the aggregate sum of $31,500.

These Appeals were heard on 17 April 2014, at which hearing, I raised an issue concerning s 13. As noted above, the gratification in this case took the form of a number of loans. Some of these had been repaid by the time the Accused was tried, while others remained outstanding. Both the Prosecution as well as the DJ proceeded on the basis that for the purposes of s 13, a loan of money should be treated in the identical way as an outright gift of money. I was not satisfied that this was correct in principle. I therefore directed the parties to file further submissions on this issue. After receiving and considering the further submissions, I gave my decision on 27 May 2014.

In MA 273/2013/01, I dismissed the Prosecution’s appeal to enhance the aggregate sentence of eight months’ imprisonment, but allowed its appeal against the DJ’s decision not to order a penalty under s 13(2). I ordered the Accused to pay a sum of $6,500 as a penalty under s 13(2).

In MA 273/2013/02, I dismissed the Accused’s appeal to reduce the aggregate sentence of eight months’ imprisonment, but allowed his appeal against the DJ’s decision to order a penalty of $25,000 under s 13(1). That penalty order was substituted with an order that the Accused pay a penalty of $5,000 under s 13(1).

In summary, I sentenced the Accused to an aggregate of eight months’ imprisonment and a penalty under s 13 of $11,500 (consisting of a penalty of $5,000 under s 13(1) and a penalty of $6,500 under s 13(2)). I now give the reasons for my decision.

Background facts

The Accused is a 64-year-old male. He was employed as an Assistant Property Executive by Jurong Town Corporation (“JTC”) at the material time. In that capacity, he was tasked to conduct periodic checks and inspections at premises leased out by JTC to ensure that the lessees complied with applicable local laws and regulations as well as with the terms of their leases. The Accused was obliged to report any infringements to his supervisors at JTC and also to the relevant authorities or agencies.

The gratification in this case was given by one Chew Wee Kiang Allen (“Allen”), who was then the General Manager of Multi Star Dormitory Pte Ltd and Miles Technology Pte Ltd, two companies in the business of providing lodging for foreign workers in Singapore. The dormitories run by these two companies include those situated at Nos 2, 16 and 18 Fan Yoong Road, which premises are owned by JTC. Allen was responsible for the operations of the Fan Yoong Road dormitories.

In July 2007, the Accused became acquainted with Allen when he conducted inspections at one of the Fan Yoong Road premises. The Accused discovered that foreign workers were being housed at the premises even though certain approvals from the Urban Redevelopment Authority and the Singapore Civil Defence Force had yet to be obtained at that time.

The Accused indicated to Allen that he was in need of money. They subsequently came to an understanding that the Accused would forbear from reporting the non-compliance that he had discovered, in exchange for which Allen would extend some loans to the Accused.

Over a period of more than a year, the Accused received $31,500 by way of loans from Allen and attempted to obtain a further loan of $5,000 from the latter. These formed the basis of the charges against the Accused described earlier (at [2] above).

The decision below The imprisonment sentence under s 6(a)

In determining the term of imprisonment to impose on the Accused, the DJ first addressed the sentencing precedents that were cited to him by the Prosecution as the relevant precedents in this case.

Specifically, the Prosecution cited the three cases below: In P Panner Selvam s/o Palanisamy v Public Prosecutor Magistrate’s Appeal No 136 of 1993/01 (unreported), the offender was an Assistant Labour Officer attached to the illegal employment enforcement unit of the Ministry of Labour. He claimed trial to a charge of corruptly attempting to obtain sexual gratification from a suspect as an inducement for recommending that no action be taken against her. He was sentenced to 12 months’ imprisonment. In Public Prosecutor v Tan Hock Chuan Magistrate’s Appeal No 292 of 1993/01 (unreported), the offender, a former detective police constable, attempted on 25 occasions to obtain gratification in the form of free illegal lottery bets as an inducement for forbearing to take action against an illegal lottery collector. The amount of gratification which the offender attempted to obtain totalled $12,310. He was also found guilty of accepting cash gratification of $200 and $3,500 on two occasions from the illegal lottery collector for the same forbearance. He was sentenced to six months’ imprisonment for each charge, and six of those imprisonment terms were ordered to run consecutively, making an aggregate sentence of three years’ imprisonment. In Ung Chaing Hai v Public Prosecutor Magistrate’s Appeal No 302 of 1998/01...