Public Prosecutor v Pang Shuo

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 28 April 2016
• Neutral Citation: [2016] SGHC 82
• Plaintiff Counsel: Ang Feng Qian and Choong Hefeng Gabriel (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 9187 of 2015/01
• Date: 28 April 2016
• Hearing Date: 01 April 2016
• Subject Matter: Sentencing,Criminal Law,Statutory offences,Criminal Procedure and Sentencing,Benchmark sentences,Principles,Customs Act
• Year: 2016
• Citation: [2016] SGHC 82
• Defendant Counsel: The respondent in person.
• Court: High Court (Singapore)
• Published date: 14 January 2017

Chan Seng Onn J: Introduction

The annual loss of revenue to the Government through cigarette smuggling easily runs into tens of millions of dollars.¹ Smuggling activities undermine the integrity of Singapore’s trading system, and more importantly our efforts to reduce the consumption of harmful goods. Between 2013 and 2015, about three million packets of duty unpaid cigarettes were seized each year, a figure that is double of that in 2012. Furthermore, while the number of persons prosecuted for cigarette offences declined from 2010 to a low in 2013, there has been an unfortunate slight rebound over the past two years.²

This is the Prosecution’s appeal against the sentence of the Respondent in respect of one charge under s 128H of the Customs Act (Cap 70, 2004 Rev Ed) (“the Customs Act”) for unloading 480 kg of duty unpaid cigarettes. Upon the Respondent’s plea of guilt, he was convicted by the District Judge and sentenced to a term of 15 months’ imprisonment for the offence in question.

Having considered all the circumstances of the case, I am satisfied that the sentence imposed by the District Judge is manifestly inadequate. Accordingly, I allow the Prosecution’s appeal, and order the Respondent’s sentence to be enhanced to 24 months’ imprisonment.

Background Facts

On 28 July 2015 at about 6.35 p.m., officers from the Singapore Customs (“Customs officers”) acting on information received saw a truck arrive at 10 Kaki Bukit Avenue 4.³ The Respondent (an untraced 19 year old male Chinese national) was seen alighting from the passenger seat of the truck by the Customs officers, while one Zhi Dian (an untraced 20 year old male Chinese national) (“the co-accused”) was seen approaching the truck and opening its back compartment door. The two began unloading brown boxes from the truck onto trolleys and pushing them into Unit #08-72 at the said location. About 15 minutes later, the Customs officers moved in, found and seized a total of 480 kg of duty unpaid cigarettes hidden in signboard lighting frames in brown boxes in Unit #08-72, on the loading/unloading bay platform at 10 Kaki Bukit Avenue 4, and inside the rear compartment of the truck.

Both the Respondent and co-accused knew that they were unloading duty unpaid cigarettes. They had been engaged by one “Xiao Li”. The Respondent and co-accused were each paid $200 for every truck delivery where: the Respondent would first collect the duty unpaid cigarettes from a freight forwarding company in a truck driven by one Ji Hongwei; the Respondent would next deliver these cigarettes to 10 Kaki Bukit Avenue 4; and thereafter, the co-accused would join the Respondent and both of them would unload the duty unpaid cigarettes and transfer them to Unit #08-72. Additionally, the Respondent was provided with a meal allowance of $50.

One carton of duty unpaid cigarettes (amounting to 0.2 kg) was also found in the Respondent’s backpack by the Customs officers. The Respondent had purchased this carton from an online peddler for his personal consumption. This carton of duty unpaid cigarettes formed the basis of a separate charge under s 128I(1)(a)(ii) of the Customs Act to which the Respondent also pleaded guilty (see [7] below), but which is not a subject of the present appeal.

The proceedings below

The Respondent pleaded guilty to the following two charges before the District Judge on 7 October 2015:

DAC 928764/2015 (subject matter of this appeal)

… [T]hat you, on or about the 28th day of July 2015, at about 6.50 pm, at No 10 Kaki Bukit Avenue 4, Singapore, together with Zhi Dian, and in furtherance of the common intention of you two, were concerned in the unloading of uncustomed goods from a Singapore registered truck No. YL8825A into a unit, #08-72, located at No 10 Kaki Bukit Avenue 4, to wit, 2400 cartons x 200 sticks of Double Happiness duty unpaid cigarettes, weighing 480.000 kilogrammes, on which excise duty of $186,240.00 was not paid, and you have thereby committed an offence under section 128H of the Customs Act, Cap 70, punishable under Section 128L(4) of the same Act, read with Section 34 of the Penal Code (Cap 224).

DAC 928766/2015

… [T]hat you, on the 28th day of July 2015, at about 6.55 pm, at No 10 Kaki Bukit Avenue 4, Singapore, did have in your possession uncustomed goods, to wit, 1 carton X 200 sticks of Double Happiness duty unpaid cigarettes, weighing 0.200 kilogrammes, on which excise duty of $77.60 was not paid, and you have thereby committed an offence under section 128I(1)(a)(ii) of the Customs Act, Cap 70, punishable under Section 128L(2) of the same Act.

[emphasis in original]

Two further related charges for the evasion of Goods and Services Tax (“GST”) were taken into consideration for the purposes of sentencing with the consent of the Respondent. A joint Statement of Facts pertaining to both the Respondent and the co-accused was admitted without qualification by the Respondent.

The Prosecution urged the court to impose the same sentence of two years’ imprisonment that was earlier imposed on the co-accused (see below at [12]) as there was “not much difference in [their] role[s]”, and that the accused (the present Respondent) was in fact “a little bit more culpable”.⁴ Based on three sentencing precedents cited (Public Prosecutor v Ren Zhenhua (DAC 908961-2/2014 and DAC 908963-4/2014), Public Prosecutor v Chen Ying Hui (DAC 928728-9/2014), and Public Prosecutor v Ran Ganglei (DAC 915813-4/2015)),⁵ the Prosecution submitted that the sentencing range was between 25 to 30 months’ imprisonment for the quantity of duty unpaid cigarettes involved. Additionally, the Prosecution cited the case of Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 (“Yap Ah Lai”), where Sundaresh Menon CJ held that the benchmark sentence for cases involving more than 400 kg of duty unpaid cigarettes would be 30 to 36 months, which was higher than what the co-accused was sentenced to, as well as what the Prosecution was seeking for the Respondent.

During the mitigation plea, the Respondent expressed remorse and explained that he took up the job without initially knowing that illegal cigarettes were involved, but had continued with it after finding that out as he needed money for his family.

The District Judge gave the following reasons in her grounds of decision (Public Prosecutor v Pang Shuo [2015] SGDC 308 (“the GD”)) for her sentencing with regard to the charge of unloading duty unpaid cigarettes under s 128H of the Customs Act: the three sentencing precedents cited by the Prosecution, which related to offences under different statutory provisions altogether (namely, ss 128I(1)(a)(ii) and 128I(1)(b) of the Customs Act), were unhelpful as they involved different acts and roles on the part of the offenders (see [14] of the GD); the benchmark sentences in Yap Ah Lai were irrelevant to the present case as they dealt with the offence of importation under s 128F of the Customs Act, and not the offence of unloading under s 128H of the Customs Act (see [15] of the GD); the quantity of duty unpaid cigarettes involved, though “relevant and significant”, could not be the “key factor” against which the sentence ought to be pegged as the Respondent was a “low level offender” who was paid a low sum of $250 (regardless of the quantity in each delivery) with no control over the amount of cigarettes involved (see [19]–[20] of the GD); parity in sentencing was not necessarily an overriding concern, and the sentence of two years’ imprisonment (that was imposed on the co-accused) was too high and she felt constrained to depart from this figure (see [16] of the GD); and recognition should be given to the Respondent for his youth, plea of guilt and clean record; two years’ imprisonment would be crushing for him (see [21] of the GD).

The co-accused’s proceedings

The co-accused pleaded guilty to two charges before another district judge on 30 July 2015 (PP v Zhi Dian (DAC 928753-2015)): one similar charge as the Respondent’s under s 128H of the Customs Act for unloading the same 480 kg of duty unpaid cigarettes, and another corresponding charge for evasion of GST. No charges were taken into consideration for the purpose of sentencing. The co-accused was convicted accordingly. In mitigation, the co-accused similarly expressed remorse and explained that he had needed the money to support his aged parents. He was sentenced to 24 months’ imprisonment for his first charge, and 8 months’ imprisonment for the second. Both sentences were ordered to run concurrently.⁶

The appeal Prosecution’s submissions

During the appeal before me, the Prosecution contends that a custodial sentence of more than 24 months’ imprisonment should be imposed on the Respondent. In support of its position, the Prosecution makes the following points: Although the sentencing benchmark in Yap Ah Lai related to the importation of duty unpaid cigarettes under s 128F of the Customs Act, there should be no meaningful variation in sentencing benchmarks between the offences in ss 128F and 128H since under the statutory scheme of the Customs Act, the various acts constituting the offences under both provisions are treated with equivalency. A common starting point in sentence should apply, and the sentencing benchmarks set in Yap Ah Lai should be taken into account when sentencing the Respondent. Recent precedents for offences under s 128H of the Customs Act show a general adherence to the sentencing benchmarks in Yap Ah Lai, as well as the trend that the sentences imposed for s 128H offences post-Yap Ah Lai are generally proportional to the quantity of the duty unpaid cigarettes involved. The Prosecution tendered the following graph in its submissions to illustrate this point: The District Judge did not give sufficient weight to the large quantity of duty unpaid cigarettes involved, as well as the enhanced role the Respondent played in collecting,...