Public Prosecutor v Naresh Kumar S/O Nagesvaran

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 05 December 2023
• Neutral Citation: [2023] SGDC 291
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 915389-2021, Magistrate’s Appeal Nos 9220/2023/01
• Hearing Date: 03 November 2022,12 December 2022,18 May 2023,19 May 2023,26 May 2023,11 July 2023,12 July 2023,04 August 2023,18 August 2023,20 September 2023,17 November 2023
• Citation: [2023] SGDC 291
• Year: 2023
• Plaintiff Counsel: Ms Susanna Abigail Yim & Mr Tay Jia En
• Defendant Counsel: Mr Suresh s/o Damodara, Mr Darius Malachi Lim Hong Wen, and Mr Brenan Mah Zhi Xian
• Subject Matter: Criminal Law,Enlistment Act,Failure to return to Singapore on expiry of exit permit,Criminal Procedure and Sentencing,NS defaulter
• Published date: 14 December 2023

District Judge Luke Tan: Introduction

In Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] SGHC 178 (“Sakthikanesh”), a three-judge coram of the High Court reiterated the importance of National Service (“NS”) to the nation. The Court also spoke about the mandatory obligations imposed on all male Singapore citizens to serve NS, and how the majority of such young Singaporeans would comply with their obligations to serve, and to serve when called upon to do so. The Court stated: [1] National Service (“NS”) was introduced in post-independence Singapore in 1967. The mandatory conscription of young male Singaporeans was necessary for the establishment of a credible defence force for our newly independent state….(citing the Singapore Parliamentary Debates, Official Report (13 March 1967) vol 25 at cols 1158-1162 (Mr Goh Keng Swee (Minister for Defence)). [2] Fifty years on, NS has become the cornerstone of Singapore’s defence and security. Full-time National Servicemen (“NSFs”) and Operationally-Ready National Servicemen (“ORNs”) form the backbone of the Singapore Armed Forces (“SAF”). All male Singapore citizens, regardless of their background, are required by law, pursuant to the Enlistment Act (Cap 93, 2001 Rev Ed) (“the Act”), to serve when they reach the age of 18 and are called upon to do so. The vast majority of these young people have complied with the enlistment notice. However, a small minority, which we shall refer to as “NS defaulters”, have not. In some cases, the NS defaulters have returned to serve their NS obligations at a later time of their choosing. In extreme cases, by the time they returned, they have reached an age where they could no longer serve their NS obligations at all.

In the present case, the accused, Naresh Kumar S/O Nagesvaran, a 25-year-old male Singaporean, was charged with committing an offence under s 32(2) read with s 33(b), and punishable under s 33 of the Enlistment Act (Cap 93, 2001 Rev Ed) (“Enlistment Act”). In essence, the allegation against the accused was that he had failed to fulfil a liability under the Enlistment Act by failing to return to Singapore on 1 October 2013, which was one day after his exit permit (“EP”) expired on 30 September 2013. This EP, with the permit identifier EAD2273, had earlier been issued by the Central Manpower Base (“CMPB”) to allow the accused to remain outside of Singapore from 29 January 2012 to 30 September 2013.

It was not disputed that the accused only returned to Singapore on 7 April 2019, and hence was out of Singapore for a total of 5 years, 6 months, and 6 days, longer than the period allowed for him to remain outside Singapore as set out in EP EAD2273. The accused eventually served his NS after he returned to Singapore in 2019.

The accused claimed trial to his charge. Evidence was led mainly by witnesses from CMPB involved in the NS enlistment process. The accused also testified in his own defence. Having assessed all the evidence and the detailed submissions of parties, and having studied the relevant cases, parliamentary reports and exhibits, I was of the view that the Prosecution had proved its case beyond a reasonable doubt, and I convicted the accused accordingly.

Thereafter, having considered the Prosecution’s submissions on sentence and the Defence’s mitigation plea, I imposed a sentence of 14 weeks’ imprisonment for the offence. The accused, being dissatisfied, has filed an appeal against his conviction and sentence. He is currently on bail. I now give the reasons for my decision.

Charge and amendments

I start off by discussing the charge. What was perhaps somewhat distinctive about this case, as compared to previously reported decisions on Enlistment Act offences including those involving EPs, was that the accused here had actually been issued with an EP under s 32(1) of the Enlistment Act. In fact, the accused had been issued with two EPs for consecutive periods prior to his commission of the alleged offence. In the present case, the accused’s offending act was that he failed to return to Singapore before his second EP, EAD2273, expired on 30 September 2013.

In contrast, in earlier cases involving the Enlistment Act such as Sakthikanesh and various other reported cases that will be discussed later in the Grounds of Decision (“GD”), the offenders were typically charged for leaving or remaining outside Singapore without an EP to begin with, and/or for not complying with a further reporting order (“FRO”) issued to require the offender to report for pre-NS procedures or activities.

In the present case, it was alleged that the accused’s action of failing to return to Singapore by the period stipulated in EP EAD2273 issued to him, constituted an offence under s 32(2) read with s 33(b), and punishable under s 33 of the Enlistment Act. The relevant provisions of the Enlistment Act read:

Exit Permits

32.—(1) A person subject to this Act who has been registered under section 3 or is deemed to be registered or is liable to register under this Act, or a relevant child, shall not leave Singapore or remain outside Singapore unless he is in possession of a valid permit (referred to in this Act as exit permit) issued by the proper authority permitting him to do so. (2) A person to whom an EP under subsection (1) is granted shall return to Singapore before the expiry of the period for which he was allowed to stay outside Singapore

…

(5) In this section —

… “relevant child” means a person who is a citizen or permanent resident of Singapore and who is not less than 13 years of age but less than 16 years and 6 months of age.

[14/2006]

Offences

33. Except as provided in section 32(3) and (4), any person within or outside Singapore who — (b) fails to fulfil any liability imposed on him under this Act;

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 3 years or to both.

As regards s 32(1) of the Enlistment Act, aside from a “relevant child”, the other broad category of persons mentioned in s 32(1) of the Enlistment Act who are required to be in possession of an EP when they remain outside Singapore, is “a person subject to this Act who has been registered under section 3 or is deemed to be registered or is liable to register under this Act”.

A “person subject to this Act” is defined in s 2 as follows:

“person subject to this Act” means a person who is a citizen of Singapore or a permanent resident thereof and who is not less than 16 years and 6 months of age and not more than 40 years of age or, in the case of a person who — (a) is an officer of the armed forces or a senior military expert; or (b) is skilled in an occupation which the Minister by notification in the Gazette designates as an occupation required to meet the needs of the armed forces,

not more than 50 years of age;

As can be seen from the above provisions of the Enlistment Act: The requirement set out in s 32(1) is contravened if the “…person subject to this Act who has been registered under section 3 or is deemed to be registered or is liable to register under this Act, or a relevant child” leaves or remains outside Singapore or remain without a valid EP; and The requirement set out in s 32(2) is contravened once the “…person to whom an exit permit under subsection (1) is granted”, fails to return to Singapore “…before the expiry of the period for which he was allowed to stay outside Singapore”.

What is also notable about s 32(2) is that once an EP is granted to the relevant child or the person subject to this Act, there is no further requirement stated in s 32(2) for that person, to whom the EP had earlier already been granted under s 32(1), to continue to retain the same status as when he was granted the EP (either as a “relevant child”, or a “person subject to this Act who has been registered under section 3 or is deemed to be registered or is liable to register under this Act”).

During the trial, and bearing in mind that parties had confirmed that there were no earlier reported cases on prosecutions for breach of the liability under s 32(2), I invited parties to submit on the ingredients of the offence and the requirements that have to be satisfied to prove the charge. Thereafter, following their submissions at the end of the Prosecution’s case, and subsequently, following further discussions and evaluation at the end of the Defence’s case, and bearing in mind the dearth of reported cases on this provision), I was of the view that the charge should be amended to align with the plain wording of s 32(2) (see [11(b)], [12], [49] – [52] of this GD). Thereafter, bearing in mind the relevant legislative provisions and the caselaw on the requirements that have to be satisfied in connection with the amendment of charges (see [14] of this GD), I exercised the power of the court to amend the charge. This is specifically provided under 128(1) of the Criminal Procedure Code, Cap 68, 2012 Rev Ed (“CPC”) as follows: 128.—(1) A court may alter a charge or frame a new charge, whether in substitution for or in addition to the existing charge, at any time before judgment is given.

[emphasis added]

In this regard, in considering whether the court should exercise its discretion to amend the charge, I was guided by the decision in Goh Chin Soon v Public Prosecutor [2020] SGHC 162 (“Goh Chin Soon”), where the High Court had set out the following requirements to be met before a trial court could exercise its discretion to amend an existing charge on its own motion:¹ The existing charge must be legally or evidentially deficient. The offence reflected in the intended amended charge must be readily apparent from the evidence already adduced before the trial court. The Prosecution must have discharged its...