Public Prosecutor v Tan Thian Earn

• Jurisdiction: Singapore
• Judgment Date: 11 April 2016
• Date: 11 April 2016
• Docket Number: Magistrate’s Appeal No 115 of 2015
• Court: High Court (Singapore)

Public Prosecutor

and

Tan Thian Earn

[2016] SGHC 59

See Kee Oon JC

Magistrate’s Appeal No 115 of 2015

High Court

Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Appeal against sentence for possessing controlled substance useful for manufacture of methamphetamine — Appropriate sentencing framework — Whether district judge had erred in holding that starting point should be imprisonment for term of two years

The respondent pleaded guilty in the district court to four offences, of which one was under s 10A(1)(c) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). This charge pertained to the possession of 126 tablets of pseudoephedrine, which was a substance used in the manufacture of methamphetamine, a controlled drug specified in the MDA. The respondent admitted that he intended to use the tablets of pseudoephedrine to manufacture methamphetamine and that he had successfully done so on at least eight previous occasions. The district judge (“District Judge”) held that the starting point for the s 10A(1)(c) charge was a term of two years’ imprisonment. Taking into account the aggravating factors, she adjusted the sentence upwards and imposed a sentence of four years and six months’ imprisonment for the s 10A(1)(c) charge. She imposed terms of imprisonment ranging from four weeks to 18 months for the other three charges. The respondent received an aggregate sentence of six years’ imprisonment.

The Prosecution only appealed against the sentence imposed in respect of the s 10A(1)(c) charge. It was submitted that the sentence was manifestly inadequate for two reasons. First, the District Judge had erred in holding that the appropriate starting point for a sentence meted out for an offence under s 10A(1) of the MDA was an imprisonment term of two years. Second, the District Judge had failed to give adequate weight to the aggravating factorspresent in this case.

Held, dismissing the appeal:

(1) The object of s 10A(1) of the MDA was the prevention of the manufacture of controlled drugs. Thus, the sentencing tariffs for this offence should take reference from the sentences prescribed for the actual manufacture of drugs, which was a separate offence. The MDA prescribed three different bands of punishment for the actual manufacture of three different categories of drugs. The sentences for each varied so significantly that different sentencing tariffs should be applied for s 10A(1) offences committed in respect of drugs falling in each category: at [13], [20] and [21].

(2) A sentencing court should not approach the sentencing of s 10A(1) offences in the same way it approached the sentencing of persons convicted of trafficking. For trafficking, there were clear sentencing bands set out in the MDA based on the weight of the drugs. Thus, the quantity of drugs involved provided a clear quantitative index which could be used to determine the appropriate sentence. This was not so in the case of s 10A(1), particularly where methamphetamine was concerned since there was only a single sentencing band: death, regardless of quantity. Further, the circumstances under which a s 10A(1) offence could be committed varied so widely that no sensible sentencing tariffs could be promulgated which did not take the culpability of the individual offender into account: at [34] to [36].

(3) The sentencing court ought first to have had regard to two parameters — (a) the degree of harm caused and (b) the offender’s culpability — in order to derive an appropriate sentencing range for a s 10A(1) offence. The measure of “harm” was the scale of manufacturing the offender’s actions had enabled or would have enabled. The offender’s “culpability” was the degree f relative blameworthiness disclosed by his actions and it was measured chiefly in relation to the extent and manner of his involvement in the criminal act. This sentencing range was the spectrum of sentences appropriate for the offence in question and not merely an indicative starting point. Once a sentencing range had been identified, the court would examine the aggravating and mitigating factors to decide precisely where the offence fell within that range: at [19], [23], [26] and [31].

(4) The starting point identified by the District Judge was inappropriate for two reasons. First, it failed to accord with the principle of ordinal proportionality as it did not adequately reflect the relative seriousness of the present offence as against the other “supply side” offences in the MDA. Second, it failed to accord with the principle of cardinal proportionality as it did not reflect the relative seriousness of the present offence as against the full range of possible offences under s 10A(1) of the MDA. A more appropriate starting point would have been an imprisonment term of at least three years: at [39], [40], [48], [50] and [54].

(5) The District Judge had properly taken into account the relevant aggravating and mitigating factors and placed the appropriate degree of weight on each. She rightly concluded that the fact that the respondent had successfully manufactured methamphetamine prior to his arrest could only be used to show that he was not entitled to any sentencing discount for being a first–timeoffender but could not be taken into account as an aggravating factor per se. She also rightly rejected the Prosecution’s argument that the respondent’s actions had posed a risk to public safety. There was no evidence that passers-by or their property were ever in any form of danger. While the Prosecution raised the possibility that his actions could have threatened public safety, the raising of a mere potentiality, without more, could not be the basis for the enhancement of a sentence on this ground: at [66], [70], [71] and [73].

(6) Appellate intervention was only warranted in limited circumstances. While a higher sentence of about five years’ imprisonment could have been imposed in respect of the s 10(1)(c) charge, the mere fact that an appellate court would have awarded a higher sentence was insufficient to compel intervention. Neither the sentence of four years and six months’ imprisonment for the s 10A(1)(c) charge nor the aggregate sentence of six years’ imprisonment was manifestly inadequate and they were within the bounds of the sentencingdiscretion that was conferred on the District Judge: at [75].

Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653; [2006] 4 SLR 653 (refd)

Bachoo Mohan Singh v PP [2010] 4 SLR 137 (refd)

Cabassi v R [2000] WASCA 305 (refd)

Dinesh Singh Bhatia s/o Amarjeet Singh v PP [2005] 3 SLR(R) 1; [2005] 3 SLR 1 (refd)

Loo Pei Xiang Alan v PP [2015] 5 SLR 500 (refd)

Ooi Joo Keong v PP [1996] 3 SLR(R) 866; [1997] 2 SLR 68 (refd)

Poh Boon Kiat v PP [2014] 4 SLR 892 (refd)

PP v Law Aik Meng [2007] 2 SLR(R) 814; [2007] 2 SLR 814 (refd)

PP v Marzuki bin Ahmad [2014] 4 SLR 623 (refd)

PP v Syed Mostofa Romel [2015] 3 SLR 1166 (refd)

PP v Tan Thian Earn [2015] SGDC 243 (refd)

R v Fatu [2006] 2 NZLR 72 (refd)

R v Healy [2012] EWCA Crim 1005 (refd)

R v Wallace [1999] 3 NZLR 159 (refd)

Vasentha d/o Joseph v PP [2015] 5 SLR 122 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) s 35(1)

Misuse of Drugs Act 1973 (Act 5 of 1973) s 8

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) s 8(b)(ii)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 10A(1)(c) (consd); ss 2, 6, 8(a), 8(b)(ii), 10, 10A(1)(a), 10A(1)(b), 10A(1)(d), 12, 59

Penal Code (Cap 224, 2008 Rev Ed) ss 107(c), 380

Mohamed Faizal, Tan Yan Ying and Randeep Singh (Attorney-General’s Chambers)

for the appellant; Respondent in person;

Lum Junwei Joel (Allen & Gledhill LLP) as amicus curiae.

See Kee Oon JC:

Introduction

1 This appeal concerns the appropriate sentencing tariffs in respect of offences committed under s 10A(1)(c) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). This offence is part of a range of offences unde r s 10A(1) MDA, which proscribes the manufacture, supply, possession, import or export of any controlled equipment, materials, or substances which are useful for the manufacture of a controlled drug.

2 The respondent was represented by counsel when he pleaded guilty to four charges, of which one was a charge under s 10A(1)(c) of the MDA, before the district judge (“District Judge”). The Prosecution subsequently filed an appeal against the sentence imposed in respect of this charge, arguing that it was manifestly inadequate. At the hearing of the appeal, the respondent was unrepresented. As this was the first time that a prosecution had been brought under s 10A(1)(c) MDA and the appeal concerned the appropriate sentencing framework to be applied in this novel area, Mr Lim Junwei, Joel was appointed as amicus curiae to assist the court with submissions. I wish to place on record my appreciation to Mr Lim as well as Mr Mohamed Faizal, who appeared on behalf of the Prosecution, for the valuable assistance and guidance they offered in their written and oral submissions.

3 Having considered the submissions, I concluded that the sentence imposed by the District Judge in relation to the charge under s 10A(1)(c) of the MDA was not manifestly inadequate. I was also not persuaded that the aggregate sentence was in need of enhancement. I, therefore, affirmed the sentences and dismissed the appeal. I now set out the grounds for my judgment.

Background facts

4 The respondent was arrested on 25 August 2013 at his flat on suspicion of inhalant abuse and was released after he signed a personal bond. On 26 September 2013, a party of officers from the Central Narcotics Bureau returned to conduct a further search of the respondent’s flat whereupon they found, among other things, 126 tablets of pseudoephedrine — a substance commonly found in over–the–counter influenza medication — which is listed in Part I of the Third Schedule to the MDA. Pseudoephedrine is known in law-enforcement...