Public Prosecutor v Sinsar Trading Pte Ltd

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 June 2004
• Neutral Citation: [2004] SGHC 137
• Docket Number: Criminal Revision No 9 of 2004 and Magistrate's Appeal No 7 of 2004
• Date: 24 June 2004
• Year: 2004
• Published date: 30 June 2004
• Plaintiff Counsel: Goh Kok Yeow (De Souza Tay and Goh)
• Citation: [2004] SGHC 137
• Defendant Counsel: Benjamin Yim (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Revision of proceedings,Whether district judge erred in accepting plea of guilty by letter,Plea of guilty by letter,Section 137(2) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Maximum punishment for offence was imprisonment term of more than three months,Offence under s 22(1) Environmental Pollution Control Act (Cap 94A, 2002 Rev Ed),Alteration,Factors to be taken into account in sentencing,Whether facts of two cases sufficiently similar for there to be parity in sentencing,Sentencing,Substantive defects in charge,Criminal Procedure and Sentencing,Whether appropriate for High Court to amend charge and convict on amended charge in light of application for criminal revision,Charge,Principles

24 June 2004

Yong Pung How CJ:

1 This was a criminal revision filed by a district judge seeking to have this court set aside her conviction and sentence against Sinsar Trading Pte Ltd (“Sinsar”) on the ground that she had exceeded her jurisdiction in accepting Sinsar’s plea of guilty by letter. Sinsar also appealed against the fine of $15,000 meted out by the district judge. Both the criminal revision and the appeal were heard together before me. I allowed the criminal revision, and ordered the conviction and sentence to be set aside for a fresh plea to be taken on an appropriately amended charge. I will now give my reasons.

Facts

2 The National Environment Agency (“NEA”) brought a departmental summons (NEA Summons No 54140 of 2003) against Sinsar on the following charge:

You, Sinsar Trading Pte Ltd, 197702716K of Blk 150 South Bridge Rd #03-14 Fook Hai Bldg Singapore 058727 are charged that you, on 05 Jun 2003 at about 11.00 am, at 150 South Bridge Road, no person shall sell or offer for sale any hazardous substances unless he holds a licence granted by the director for such purpose and you have thereby contravened section 22(1) of the Environmental Pollution Control Act 1999 and committed an offence under section 22(3) and punishable under section 27 of the aforesaid Act. [emphasis added]

3 The relevant sections of the Environmental Pollution Control Act (Cap 94A, 2002 Rev Ed) (“the Act”) are as follows:

Application of this Part to hazardous substances

21. This Part shall apply to the hazardous substances specified in the first column of Part I of the Second Schedule except where —

(a) they fall within the exclusion specified in the second column of that Part corresponding to those substances; or

(b) they are contained in any substance, preparation or product specified in Part II of that Schedule.

General prohibition with respect to importation and sale of hazardous substances

22.—(1) No person shall import, possess for sale, sell or offer for sale any hazardous substance unless he holds a licence granted by the Director-General for such purpose.

(2) Every licence granted to any person under this section shall not be transferable to any other person and no licence shall authorise the import, possession for sale, sale or offer for sale of any hazardous substance by any individual other than the individual named therein.

(3) Any person who contravenes subsection (1) or (2) shall be guilty of an offence.

Penalty for offences involving hazardous substances

27. Any person who is guilty of an offence under this Part, for which no penalty is expressly provided, shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $2,000 for every day or part thereof during which the offence continues after conviction. [emphasis added]

4 Under the Second Schedule of the Act, acetic acid is listed as the first hazardous substance on the list. There are two exclusions listed in the second column of the Second Schedule next to acetic acid, namely:

(a) substances containing not more than 80%, weight in weight, of acetic acid; and

(b) preparations and solutions for photographic use.

5 The NEA first informed Sinsar that it had contravened s 22(1) of the Act by a letter dated 28 July 2003. The letter mentioned an officer’s inspection of Sinsar’s premises on 5 June 2003. During this inspection, the officer realised that Sinsar had purchased 523 drums, or 110mt, of glacial pure acetic acid from Times Chemicals Pte Ltd for re-export. Subsequently, a summons was sent to Sinsar on 20 August 2003. This summons was accompanied by a document entitled “Plea of Guilty by Letter” for Sinsar to plead guilty if it so wished.

6 Under s 137(2) of the Criminal Procedure Code (“CPC”) (Cap 68, 1985 Rev Ed), an accused may plead guilty by way of letter under certain circumstances. Section 137(2) states:

Personal attendance of accused may be dispensed with.

137(2). In any case relating to an offence punishable by fine or by imprisonment not exceeding 3 months or by both and in which a Magistrate has issued a summons, an accused person desiring to plead guilty and be convicted and sentenced in his absence may appear by advocate, or may by letter addressed to the court plead guilty and submit to pay any fine which may be imposed in respect of that offence, and the court may thereupon record a plea of guilty and convict him according to law, and may sentence him to a fine with or without a sentence of imprisonment in default of payment of the fine. [emphasis added]

7 Sinsar pleaded guilty by way of letter. In this letter, it stated two grounds for the judge to consider in mitigation:

(I) The physical handling/transportation of this cargo from Malaysia to Pasir Panjang Port (for export) were [sic] all done by our suppliers (who hold a valid licence to deal with such products). At no time were we physically involved with this cargo.

(II) The export permit for this cargo was approved by the Trade Development Board of Singapore.

8 The matter came up for hearing before the district judge during a night court session on 28 October 2003. The plea of guilty by letter was tendered by the prosecuting officer. Sinsar did not appear in court and it was not represented by counsel at the hearing. The district judge recorded the plea of guilty and imposed a fine of $15,000.

9 Subsequently, Sinsar engaged counsel. It obtained leave from the High Court on 9 January 2004 to file an appeal against the sentence out of time and the appeal against sentence was filed on the same day. The district judge issued her grounds of decision on 28 January 2004. In considering the sentence to be imposed, the district judge made the following observations ([2004] SGDC 54):

7 Against this background, I am of the opinion that the relevant factors to be taken into consideration for this offence would include the quantity of the substances involved (the larger, the more aggravating), the level of co-operation on the part of the defendant with the agency in relation to subsequently dealing with the hazardous substances in question, the type of hazardous substances involved and its relative danger to the environment, genuine oversight on the part of the defendant, and the presence or absence of previous convictions for similar offences. Turning to the facts of this case, it was not stated in the charge or in the defendant’s letter pleading guilty to the offence the type or quantity of hazardous substances involved. I did however accept as a mitigating circumstance the fact that the defendant did not physically handle the cargo and it was physically handled all the way through to export by its Malaysian suppliers who were licensed to do so. I had to balance this against the legislative intention that the import and sale of such substances must be strictly regulated and that all potential importers and sellers at any stage of the transactions in such substances must be assessed by the relevant agencies before they are permitted to deal in these substances. I was however unable to give any weight to the fact that the Trade Development Board had approved the export permit for the cargo of hazardous substances as it did not address the main concern of the legislative provision under which the defendant was convicted. Even if the cargo was subsequently exported, its presence in the Singapore ports was a potential risk to our environment.

8 Taking into account the relevant mitigating factor, the fact that the defendant is a first offender and the maximum fine of $50,000 and/or 2 years’ imprisonment for this offence, I was of the opinion that a fine of $15,000 was appropriate.

10 On 10 March 2004, the district judge filed this criminal revision to set aside her conviction and sentence on the ground that she had exceeded her jurisdiction under s 137(2) of the CPC.

11 The Prosecution agreed with the district judge that the conviction and sentence should be set aside. The Prosecution raised three grounds in support of its contention: (a) the charge had been defective; (b) there had been a procedural irregularity; and (c) a disparity in sentencing had arisen. It submitted that this court should quash the conviction, set aside the sentence and remit the case back to the subordinate courts for a fresh plea to be taken on a charge as appropriately amended. Counsel for Sinsar also agreed with the district judge that the conviction and sentence should be set aside. However, counsel went one step further by urging me to grant Sinsar a discharge amounting to an acquittal.

Issue before this court

12 The sole issue for my determination was whether the criminal revision should be allowed and, if it was allowed, the consequential order to be made.

General principles on criminal revision

13 In Ang Poh Chuan v PP [1996] 1 SLR 326, I cited Indian cases that discussed the general principles to be considered by the High Court when faced with an application for criminal revision and came to the following conclusion (at 330, [17]):

Thus various phrases may be used to identify the circumstances which would attract the exercise of the revisionary jurisdiction, but they all share the common denominator that there must be some serious injustice. Of course there cannot be a precise definition of what would constitute such serious injustice for that would in any event unduly circumscribe what must be a wide discretion vested in the court, the exercise of which would depend largely on the particular facts. But generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below. [emphasis added]

14 Ng Kim Han v PP [2001] 2 SLR 293 arose out of the arrest of seven persons and one Chua Seong Soi while playing a game of cards in a factory. All seven petitioners in that case were jointly...