Public Prosecutor v Syamsul Hilal bin Ismail

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 December 2011
• Neutral Citation: [2011] SGHC 272
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 94 of 2011
• Year: 2011
• Published date: 10 January 2012
• Hearing Date: 13 July 2011
• Plaintiff Counsel: Leong Wing Tuck and Nicholas Khoo (Attorney-General's Chambers)
• Defendant Counsel: K Sathinathan (M/s Sathi & Co)
• Subject Matter: Criminal Law,offences,property,cheating
• Citation: [2011] SGHC 272

Chao Hick Tin JA: Introduction

This was an appeal against the sentence imposed by a Senior District Judge ("the SDJ") in PP v Syamsul Hilal bin Ismail [2011] SGDC 147 ("the GD"), where the Respondent pleaded guilty to 18 charges. Fifteen of those charges were for cheating offences (punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”)) and the remaining three involved criminal breach of trust (“CBT”) (punishable under s 406 of the PC). The cheating offences related, inter alia, to a car rental scam (“the car rental scam offences”) and a loan scam (“the loan scam offences”), while the three CBT offences involved the misappropriation of school laptops (“the laptop CBT offences”). Another 72 charges were admitted and taken into consideration for the purpose of sentencing.¹

The Respondent was sentenced to two months’ imprisonment for each car rental scam offence, three months’ imprisonment for each laptop CBT offence and five months’ imprisonment for each loan scam offence. One imprisonment term from each set of offences was ordered to run consecutively, making a total of 10 months’ imprisonment. The prosecution appealed on the ground that the overall sentence imposed by the SDJ was manifestly inadequate. I allowed the prosecution’s appeal and enhanced the total sentence to 15 months’ imprisonment by ordering one additional five month imprisonment term (for a loan scam offence) to run consecutively. I now set out the reasons for my decision.

The factual background

The Respondent committed four broad categories of offences. He admitted to the Statement of Facts (which pertained to the first three categories only) without qualification. The four categories are briefly described below.

Car rental scam offences

In July 2010, the Respondent posted online advertisements on websites such as www.gumtree.sg and www.cars.sg-rentals.com named “Hari Raya Cars 2010 Specials (Last Minute Cars)”, offering car rental deals. From mid-August 2010, he met interested parties and entered into rental agreements with them which he signed using a fictitious name. He even gave one complainant a test drive.² The victims handed deposits, ranging from $50³ to $550⁴, over to him. He later became uncontactable.

Laptop CBT offences

Between April and June 2010, the Respondent misappropriated 14 Temasek Junior College (“TJC”) laptops which were entrusted to him as a technical assistant attached to the school. He sold them to pay off his debts. Earlier in March 2010, the Respondent had also misappropriated a laptop from Jurong Secondary School. The 15 laptops were individually valued at between $1,504 to $2,201.

Loan Scam offences committed while on bail

The Respondent was charged in court on 13 September 2010 pursuant to complaints relating to the car rental scam offences. While on bail between December 2010 and February 2011, he committed the loan scam offences. These offences largely involved advertisements on online fora such as www.gumtree.com.sg and flashloan.sgpsg.com where he purportedly offered to arrange loans (expressly including loans to low-income earners).⁵ To add credibility to his ruse, the Respondent also created an online form for the victims to fill up.⁶ The victims were asked to make advance payments ranging from $40 to $2,000 to the Respondent. Again, he later became uncontactable.

Remaining offences committed while on bail

In the same period in which he committed the loan scam offences, the Respondent also committed what I will refer to as the “employment scam” and the “Paypal credits scam” offences. The charges pertaining to these offences were not proceeded with but were admitted by the Respondent to be taken into consideration. The Statement of Facts did not elaborate on these charges. Briefly, from the charge sheets,⁷ the employment scam saw the Respondent pretending to offer his victims employment as Information Technology store assistants or technicians. He then dishonestly induced his victims to pay sums of between $50 to $70 to him as deposit payments for uniforms. As for the Paypal credits scam, the two relevant charge sheets⁸ stated that the Respondent deceived his victims into believing he was able to offer them Paypal credits. He then dishonestly induced his victims to pay him $234 and $354 (on the two charges respectively) as payment for the Paypal credits which he could not provide.

The amounts involved in each set of the offences are enumerated in the following table:

	s 420 Car rental scam (SDJ’s sentence: two months per charge)
	Proceeded	Taken into consideration (“TIC”)	Total
No. of Charges	12	49	61
Amount involved	$3,435	$2,740	$6,175
Average amount per charge	$286	$56	$101
	s 406 Laptop CBT offences (SDJ’s sentence: three months per charge)
	Proceeded	TIC	Total
No. of Charges	3	12	15
Amount involved	$6,603	$19,248	$25,851
Average amount per charge	$2,201	$1,604	$1,723
	s 420 Loan scam (SDJ’s sentence: five months per charge)
	Proceeded	TIC	Total
No. of Charges	3	5	8
Amount involved	$4,000	$1,800	$5,800
Average amount per charge	$1,333	$360	$725
	Employment scam
	Proceeded	TIC	Total
No. of Charges	0	4	4
Amount involved	0	$220	$220
Average amount per charge	0	$55	$55
	Paypal credits scam
	Proceeded	TIC	Total
No. of Charges	0	2	2
Amount involved	0	$588	$588
Average amount per charge	0	$294	$294

Therefore, the total amount involved in the 18 charges proceeded with was $14,038; the total amount involved in the remaining 72 charges taken into consideration was $24,596; and the grand total sum involved in both the proceeded charges and the charges taken into consideration was $38,634.

The statutory provisions

As stated above at [1], the car rental scam and the loan scam offences were punishable under s 420 of the PC. For ease of reference, I set out the salient portions of ss 415 and 420 of the PC here:

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”.

...

Cheating and dishonestly inducing a delivery of property 420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

The laptop CBT offences were punishable under s 406 of the PC. Accordingly, I likewise set out the salient portions of ss 405 and 406 of the PC here:

Criminal breach of trust 405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person to do so, commits “criminal breach of trust”.

…

Punishment of criminal breach of trust 406. Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Therefore, the maximum custodial sentence which could be imposed for each of the car rental scam and the loan scam offences was 10 years’ imprisonment; and the maximum custodial sentence which could be imposed for each of the laptop CBT offences was 7 years’ imprisonment.

The Senior District Judge’s decision

The SDJ noted that the key aggravating factors were that the Respondent had reoffended (ie, referring to the loan scam offences) soon after being charged in court, the large number of offences and victims and the premeditation and planning involved (GD at [21]). While the SDJ did not accord the Respondent’s unrelated antecedents (pertaining to traffic offences) any weight (GD at [20]), he gave the Respondent’s plea of guilt minimal credit since the Respondent made no restitution and had reoffended while on bail (GD at [16]). Nevertheless, it would appear that he did accord a small measure of credit to the Respondent’s plea of guilt for the resources and inconveniences which that plea had saved (GD at [31]). The SDJ also found it immaterial whether the Respondent’s offences were motivated by his desire to clear his debts (GD at [18]).

Although the SDJ accepted that it was relevant to consider the fact that the Respondent targeted low-income earners in the loan scam, he rejected the Deputy Public Prosecutor’s (“the DPP’s”) submission that the victims of the loan scam were “in debt and in genuine need of help”, which assertion was not reflected in the Statement of Facts (GD at [19]). As for the fact that the car rental and loan scams involved Internet advertisement postings, the SDJ found that fact “neither here nor there” (GD at [32]) since the same scams could have been perpetrated through other channels such as traditional print media.

Moving on to sentencing precedents, the SDJ considered Choong Swee Foong v PP (MA 152/94/01...