Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin

• Jurisdiction: Singapore
• Judgment Date: 19 October 1999
• Date: 19 October 1999
• Docket Number: Magistrate's Appeal No 168 of 1999
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Muhammad Nuzaihan bin Kamal Luddin

Defendant

[1999] SGHC 275

Yong Pung How CJ

Magistrate's Appeal No 168 of 1999

High Court

Criminal Law–Computer crimes–Unauthorised access to computer networks and modification of content–Sections 3 (1), 5 (1), 6 (1) (a) Computer Misuse Act (Cap 50A, 1994 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Computer crimes–General deterrence versus individual deterrence–Computer Misuse Act (Cap 50A, 1994 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Whether accused's state of mind relevant to finding of guilt–Whether lack of tangible damage caused to victim companies could be mitigating factor–Sections 3 (1), 5 (1), 6 (1) (a) Computer Misuse Act (Cap 50A, 1994 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Youthful offender–Whether probation order appropriate given nature of offences–Accused committing offences from home–Accused showing persistent course of conduct with felonious intent–Section 5 (1) Probation of Offenders Act (Cap 252, 1985 Rev Ed)

The respondent hacked into one of the proxy servers in the network of Swiftech Automation Pte Ltd, secured unauthorised access to computer files contained in the server and used the server to gain access to the Internet Relay Chat. The respondent also hacked into the File Transfer Protocol server of Singapore Cable Vision Ltd which had earlier rejected his application for an Internet account. For these offences, three charges were preferred against the respondent under the Computer Misuse Act (Cap 50A, 1994 Rev Ed) (the “CMA”) to which he pleaded guilty. Fifteen similar charges were taken into consideration for the purposes of sentencing.

The district judge ordered the respondent to undergo 30 months' probation. The Prosecution appealed on the grounds that (a) the judge's finding of fact that the respondent's intention was merely to check for vulnerabilities in computer networks was erroneous; (b) the judge did not attach sufficient weight to the active steps taken by the respondent to conceal his criminal actions; (c) the judge failed to consider the obvious inconvenience caused by the respondent's actions, the time and expense involved in tracing and apprehending him and the inherent damage which computer-related crimes caused to the national interest and public confidence; and (d) the judge should not have given consideration to the fact that the affected computers were not “protected computers” under the CMA.

Held, allowing the appeal and quashing the order for probation:

(1) Although probation was more relevant for young offenders because of the greater chances of rehabilitation compared with adults, s 5 (1) of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) made it clear that probation was never granted as of right. Even in the case of juvenile offenders, the court had to take into account all the circumstances of the case, including the nature of the offence and the offender's character: at [16].

(2) Probation orders were rehabilitative in nature and premised on the offender staying at home and off the streets. However, a majority of computer-related crimes were committed at home, as in this case. Public interest required that offenders such as the respondent be put away in a place where they had no access to computers: at [17] and [18].

(3) The district judge erred in finding that the respondent did not possess any criminal intent when committing the offences. The facts showed that he had made a conscious decision to use his hacking skills to serve his own purposes. He took steps to avoid detection and publicly boasted of his feats. For such offences, the courts might have to apply principles of strict liability so that the offender's state of mind was irrelevant to a finding of guilt. Furthermore, the respondent admitted to 15 other offences of a similar nature. This demonstrated a persistent course of conduct and a felonious intent on his part: at [19] and [24].

(4) In certain instances, considerations of general deterrence took precedence over individual or specific deterrence. Cyber-crimes undermined public and international confidence in Singapore's computer systems and compromised Singapore's efforts to position itself as a global e-commerce hub. Besides deterring the respondent from repeating his actions, there was also a need to deter other like-minded individuals. This would give effect to Parliament's express intention that all computer crimes would be dealt with severely in Singapore: at [20] and [21].

(5) The absence of tangible damage caused to the victim companies meant that the charges against the respondent were brought under more lenient provisions of the CMA. Therefore the fact that no damage was caused could not be a mitigating factor. In any event, his offences were conduct crimes for which liability was not dependent on the occurrence of a prohibited result: at [22].

(6) The fact that the respondent was unrepresented in the court below was irrelevant. His decision not to exercise his constitutional right to consult and be defended by a legal practitioner of his choice could not be used as a mitigating factor to the prejudice of the State: at [25].

(7) In the result, the probation order was wrong in principle and was substituted with a sentence of imprisonment of two months on each of the three charges, with the sentence of imprisonment on the first two charges to run consecutively: at [26].

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (refd)

Tan Koon Swan v PP [1985-1986] SLR (R) 976; [1986] SLR 126 (refd)

Computer Misuse Act 1993 (Act 19 of 1993)ss 3 (1), 5 (1), 6 (1) (a) (consd)

Constitution of the Republic of Singapore (1985 Rev Ed)Art 9 (3)

Criminal Procedure Code (Cap 68,1985 Rev Ed)s 18

Probation of Offenders Act (Cap 252, 1985 Rev Ed)s 5 (1) (consd)

David Lim Jit Hee (Deputy Public Prosecutor) for the appellant

Ravinderpal Singh (Arthur Loke, Bernard Rada & Lee) for the respondent.

Yong Pung How CJ

1 The respondent was charged with and pleaded guilty in the District Court to three charges under ss 3 (1), 5 (1) and 6 (1) (a) of the Computer Misuse Act (Cap 50A, 1993 Ed) (“the CMA”), for unauthorised access to computer materials, unauthorised modification of the contents of a computer and unauthorised access to a computer service respectively. Fifteen other charges under the same provisions of the CMA were taken into consideration for the purposes of sentencing. After calling for a pre-sentence report, the district judge ordered the respondent to undergo six months of intensive probation and 24 months of supervised probation with the following added conditions:

1. (a) a time restriction from 10pm to 6 am;

2. (b) the performance of 200 hours of community service; and

3. (c) a requirement for the respondent's parents to sign a bond of $5,000 for...