Public Prosecutor v Periam Rij s/o Mathyalakan

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 18 October 2022
• Neutral Citation: [2022] SGDC 245
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 919907 of 2020 & Ors, Magistrate’s Appeal No. 9201 of 2022-01
• Published date: 26 October 2022
• Year: 2022
• Hearing Date: 26 September 2022
• Plaintiff Counsel: DPP Chee Ee Ling (Attorney-General's Chambers)
• Defendant Counsel: Stephania Wong Wan Kan (Law Society Pro Bono Services)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Sentencing approach for s 419 of the Penal Code (Cap 224, 2008 Rev Ed),Sentencing approach for s 35 of the Road Traffic Act (Cap 276, 2004 Rev Ed),Principle,Sentencing approach for amalgamated charge under s 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed),Concurrent and consecutive sentences,One-transaction rule
• Citation: [2022] SGDC 245

District Judge Kow Keng Siong: Introduction

Periam Rij s/o Mathyalakan (“the Accused”) faced 21 charges. Before me, he pleaded guilty to six of these charges (“proceeded charges”) and consented to 14 other charges being taken into consideration for the purpose of sentencing. (The Accused disputed the remaining charge.) The parties’ sentencing positions on the proceeded charges, as well as the sentences that I had imposed, are set out at Annex A.

The Accused has filed an appeal against sentence.

In these grounds of decision, I will focus on those charges where I had rejected the Defence’s sentencing position. These charges are as follows:

	Charge	Defence’s position	Court’s sentence
(a)	DAC-917881-2021 (“Charge 5”) Cheating by personation under s 419 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) r/w s 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)	4 months’ imprisonment	10 months’ imprisonment
(b)	DAC-915471-2021 (“Charge 7”) Driving without licence under s 35(1) p/u s 35(3)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”)	3 weeks’ imprisonment AND 1 year’s DQ	12 weeks’ imprisonment AND 5 years’ DQAC
(c)	MAC-903749-2022 (“Charge 15”) Driving without licence under s 35(1) p/u s 35(3)(b) of the RTA	4 weeks’ imprisonment AND 2 years’ DQ	12 weeks’ imprisonment AND 5 years’ DQAC
(d)	DAC-919907-2020 (“Charge 1”) Member of unlawful society under s 14(3) of the Societies Act (Cap 311, 2014 Rev Ed)	2 months Sentence to run concurrently with the rest of the sentences	2 months Sentence to run consecutively with the rest of the sentences

I will now set out the reasons for my sentencing decision – starting with Charge 5.

Charge 5: Cheating by personation The facts

Sometime in the 2nd week of November 2020, the Accused borrowed a handphone from his friend, one Deepashini d/o Palanisamy (“Deepashini”). While using the handphone, he noticed that she had an auto login app for Shariot, a vehicle rental company. The Accused recorded Deepashini’s email address which she had used for the app. After returning home, he tried to log into Deepashini’s Shariot account by using her email address. After 10 to 15 attempts at guessing her password, he succeeded. On 17 occasions between 13 November 2020 and 7 December 2020, the Accused used Deepashini’s Shariot account to make vehicle rental bookings. In so doing, he had deceived Shariot into believing that he was Deepashini and dishonestly induced Shariot into approving his rental bookings. The Accused had used Deepashini’s Shariot account to rent vehicles because he did not have a valid driving license.¹

Prescribed punishment

Under s 419 of the Penal Code, a person who commits cheating by personation shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. Given that Charge 5 had been framed as an “amalgamated charge” under s 124(4) of the CPC, the Accused could be sentenced to two times the amount of punishment under s 419: s 124(8)(a)(ii) of the CPC.

Defence’s submissions

The Defence submitted for a sentence of four months’ imprisonment for Charge 5. In making this submission, the Defence highlighted that (a) Deepashini and Shariot (“the Victims”) did not suffer any financial loss as the Accused had made full payment for renting the vehicles, (b) the offence did not involve a criminal syndicate or a financial institution, (c) the Accused did not have any antecedent for cheating, and (d) he had cooperated with the authorities by pleading guilty at the earliest opportunity.²

My decision Cheating by personation is an aggravated form of cheating

Cheating is defined in s 415 of the Penal Code as follows:

Cheating

415. Whoever, by deceiving any person, whether or not such deception was the sole or main inducement, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation or property, is said to “cheat”.

Section 416 of the Penal Code goes on to set out three ways in which a person can be said to commit cheating by personation:

Cheating by personation

416. A person is said to “cheat by personation”, if he cheats [a] by pretending to be some other person, or by [b] knowingly substituting one person for another, or [c] representing that he or any other person is a person other than he or such other person really is.

[emphasis and words in square brackets added]

Under s 417 of the Penal Code, cheating is punishable with imprisonment for a term which may extend to three years, or with fine, or with both. Comparing the prescribed punishments, cheating by personation under s 419 is clearly an aggravated form of cheating.

Sentencing approach for an aggravated offence

In the circumstances, what is the sentencing approach when dealing with an aggravated offence such as s 419?

In Ng Soon Kim v Public Prosecutor [2020] 3 SLR 1097 (“Ng Soon Kim”), the High Court had the occasion to consider a similar question. There, the offender was convicted under s 324 of the Penal Code of having voluntarily caused hurt by means of fire. The High Court noted that an identical harm under s 323 of the Penal Code would be punished more severely under s 324 if dangerous means were used to inflict the harm. To determine the appropriate sentence under s 324, the High Court adopted the following approach: First, consider what would be an appropriate sentence – under the sentencing framework in Low Song Chye v Public Prosecutor [2019] 5 SLR 526 – if the offender had been charged under s 323 based on the hurt alone: Ng Soon Kim at [12] and [13]. Next, apply a suitable uplift to the sentence in (a) above by having regard to the dangerous means used: Ng Soon Kim at [12] and [16]. Finally, calibrate the sentence in (b) above by considering the offender-specific sentencing factors at play: Ng Soon Kim at [12] and [17].

Since Ng Soon Kim, the “uplift approach” has been adopted for the following aggravated offences: Section 326 of the Penal Code: Public Prosecutor v Miya Manik [2020] SGHC 164 at [117]; Public Prosecutor v Azlin bte Arujunah [2020] SGHC 168 at [196] and [197]; Public Prosecutor v Muhammad Syafiq bin Mohamed Abbas [2020] SGDC 114 at [28] – [30], and Repeat offence of drug trafficking: Public Prosecutor v Lai Teck Guan [2018] 5 SLR 852 at [30], [31] and [42].

In my view, the uplift approach can similarly be adopted to determine an appropriate sentence for an offence under s 419. This is because the facts that are used to establish an offence under s 419 can also be used to establish an offence under s 417. Furthermore, the sentencing factors that are relevant to an offence under s 417 are also relevant to an offence under s 419. In my view, the extent of the uplift will depend on how the nature and circumstances of the personation have aggravated the offence of cheating. Considering the prescribed punishments in s 419 and s 417, the maximum extent of the uplift will be two years’ imprisonment.

Step 1 – Determine the starting point sentence for a s 417 charge

Applying the uplift approach to an offence under s 419, the first step is to consider what could be an appropriate starting point sentence had the offender been charged under s 417. In my view, there are two elements which have the greatest influence on the severity of an offence under s 417 and hence its sentence. These are (a) the extent of actual and potential harm arising from the cheating and (b) the extent of the offender’s culpability.

I am of the view that the following factors are relevant in assessing the extent of harm arising from an offence under s 417: The act sought to be induced. The extent of harm arising from an offence under s 417 is frequently reflected in the nature of the act sought to be induced by the offender (“induced act”). For instance, if the deception is to induce the delivery of property, then obviously the value of the property is a relevant sentencing consideration. In some cases, the induced act may not involve the offender securing a financial advantage or the victim suffering a financial disadvantage. An example is where the deception is to induce the victim into performing a sexual act. In such cases, the degree of reprehensibility of the induced act is a relevant sentencing consideration: see e.g., Wong Tian Jun De Beers v Public Prosecutor [2021] SGHC 273 (“Wong Tian Jun”) at [42]. Another example is where the deception is to enable the offender to evade detection or arrest for an offence (“predicate offence”). In such cases, the gravity of the predicate offence and the extent to which the course of justice is perverted are relevant sentencing considerations. Other effects of the deception. There will be cases where the harm caused by the deception extends beyond the induced act. For instance, where the victim suffers psychiatric harm arising from being deceived into providing sex to the offender (Wong Tian Jun De Beers at [45]), or where the deception has a larger impact in that affects public safety, public health, public services, public or widely used facilities or public security: Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [24(d)]. These effects are relevant to sentencing.

As for assessing the extent of an offender’ culpability, the following factors are relevant: The offender’s purpose for committing the offence. It is well-established that an offender’s motive for committing an offence is relevant to sentencing....