Public Prosecutor v Neo Boon Seng

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 13 June 2008
• Neutral Citation: [2008] SGHC 90
• Docket Number: Magistrate's Appeal No 190 of 2007
• Date: 13 June 2008
• Year: 2008
• Published date: 27 June 2008
• Plaintiff Counsel: Leong Wing Tuck (Attorney-General's Chambers)
• Citation: [2008] SGHC 90
• Defendant Counsel: Alain Abraham Johns (Alain A Johns Partnership)
• Court: High Court (Singapore)
• Subject Matter: Offence of criminal misappropriation committed by taxi driver against passenger,Section 403 Penal Code (Cap 224, 1985 Rev Ed),Need for deterrent sentence,Benchmark sentences,Criminal Procedure and Sentencing,Appeals,Sentencing,Custodial sentence as benchmark sentence,Benchmark sentences for property offence committed by taxi driver against passenger

13 June 2008

Chan Sek Keong CJ:

Introduction

1 This was an appeal by the Public Prosecutor against the decision of the district judge in District Arrest Case No 25056 of 2007 in sentencing the respondent to a fine of $6,000 or two months’ imprisonment in default of payment of the fine (see PP v Neo Boon Seng [2007] SGDC 339). The respondent had pleaded guilty to one charge of dishonestly misappropriating property under s 403 of the Penal Code (Cap 224, 1985 Rev Ed), which states:

Dishonest misappropriation of property.

403. Whoever dishonestly misappropriates or converts to his own use movable property, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both.

At the conclusion of the hearing, I allowed the appeal and substituted the sentence imposed by the district judge with a sentence of three weeks’ imprisonment. Here are my reasons for so doing.

Facts of the case

2 The respondent was a taxi driver and the victim was his passenger. The victim had boarded the respondent’s taxi at about 10.40pm on 20 June 2007 at Changi Airport. Being heavily laden with baggage, the victim placed several pieces of luggage in the boot of the taxi and a number of items in the front passenger seat. The items which were placed in the front passenger seat included a bottle of Chateau Corbin wine, a Nike haversack containing three pairs of shoes, and a briefcase containing a laptop computer with accessories, various currencies from different countries, two Mont Blanc pens, the victim’s spectacles, the victim’s passport, and various items belonging to the victim’s company. The total value of all the items placed in the front passenger seat was $11,661.05.

3 When the victim alighted at his residence at Vanda Avenue, he unloaded the luggage in the boot but forgot about the items in the front passenger seat. The respondent also forgot about the items and only became aware of them shortly after leaving the victim’s residence. He did not attempt to restore the items to the victim, however, and placed the items in the boot of the taxi before continuing with his shift.

4 When the victim discovered that he did not have the items with him, he immediately reported the incident to the taxi company and waited in his house for the respondent to arrive with his property. The taxi company, upon receiving the complaint, sent out messages to all its taxi drivers informing them of the incident. After waiting in vain for more than two hours, at about 1.30am on 21 June 2007, the victim reported the loss to the police.

5 At around 6.00am on 21 June 2007, the respondent stopped his taxi for breakfast at a coffeeshop at Bedok Reservoir Road. After eating, he looked through the victim’s items and discarded some of the items at a shop in the vicinity. The only items he kept were the currencies, the laptop computer and its accessories, the haversack with the shoes, and the wine. At the conclusion of his shift (on 21 June 2007 at 7.00am), he took the items he had retained and placed them in the kitchen of his Housing and Development Board flat.

6 On 21 June 2007 at about 11.00pm, the police raided the respondent’s residence. The respondent promptly surrendered the items he had retained. All of the items were recovered (either from the shop or the respondent’s flat), save for the pens, the spectacles, the passport, and US$1,000 worth of currency. The items which were not recovered had an approximate total value of $4,000.

The district judge’s grounds of decision

7 The district judge gave little credit to the respondent’s plea of mitigation on sentence in the light of what he had done and the fact that he did not make restitution for the value of the items not recovered. However, he was of the view that the severity of the sentence had to be tempered somewhat as the victim had recovered a significant number of the items lost. He also felt that there was no need for the element of general deterrence to be reflected in the respondent’s sentence and that a high fine would be sufficient punishment.

Applicable legal principles

8 In Tan Koon Swan v PP [1986] SLR 126 and PP v Cheong Hock Lai [2004] 3 SLR 203, it was held that an appellate court would only interfere with a trial court’s decision on sentencing in the following situations:

(a) the sentencing judge had erred in respect of the proper factual basis for sentence;

(b) the sentencing judge had failed to appreciate the materials placed before him;

(c) the sentence imposed was wrong in principle and/or law; or

(d) the sentence imposed was manifestly excessive or manifestly inadequate, as the case might be.

9 It will suffice for me to elaborate briefly on situations (c) and (d). In regards to situation (c), the phrase “wrong in principle” has been described as being particularly suitable to cover cases where a trial judge has chosen the wrong type of sentence (John Sprack, A Practical Approach to Criminal Procedure (Oxford University Press, 11th Ed, 2006) at p 496). As for situation (d), in PP v Siew Boon Loong [2005] 1 SLR 611, Yong Pung How CJ described a sentence that was manifestly excessive or inadequate to be as follows (at [22]):

When a sentence is said to be manifestly inadequate, or conversely, manifestly excessive, it means that the sentence is unjustly lenient or severe, as the case may be, and requires substantial alterations rather than minute corrections to remedy the injustice … [emphasis added]

Custodial sentence as a benchmark sentence

10 In my view, the district judge was wrong in principle in regarding this case as not meriting a custodial sentence. Although the offence of criminal misappropriation under s 403 of the Penal Code is considered to be one of the less serious property offences in ch XVII of the Penal Code because it does not require a positive act of taking as contrasted with a negative act of keeping something that belongs to another (Practitioners’ Library – Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) at p 414), this consideration, in my view, should not apply to a taxi driver. The reason is that a taxi driver is in a special position vis-à-vis his passenger. The taxi driver provides a transport service to the passenger for...