Public Prosecutor v Tan Huai En Jonathan

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 02 February 2017
• Neutral Citation: [2017] SGDC 17
• Court: District Court (Singapore)
• Docket Number: DAC 932174-5 of 2015, MA 9028/2017/01
• Year: 2017
• Published date: 15 July 2020
• Hearing Date: 02 February 2017,13 January 2017
• Plaintiff Counsel: Houston Johannus
• Defendant Counsel: Josephine Choo (Wong Partnership LLP)
• Subject Matter: Criminal Law,Offences,Enlistment Act
• Citation: [2017] SGDC 17

District Judge Shawn Ho: INTRODUCTION

Singapore is a little red dot. A tiny island, we are an improbable nation with no natural resources or hinterland.¹ We lack strategic depth.

Our vulnerability was heightened by the withdrawal of British military forces from Singapore in 1971. Bookended by Konfrontasi and the Cold War, the hurried departure of the British military presence left Singapore imperilled.

During World War II, Singapore was invaded. Untold brutality and bloodshed were visited upon our people. Our country had been vanquished. On a broad canvas, disrupting our water supply, energy sources or shipping routes would undermine investor confidence in Singapore. Commerce is the lifeblood of our nation, which depends on the maritime trade route of the Malacca Straits.

To safeguard Singapore’s existential priorities, the velvet glove of diplomacy must be backed up by the iron fist of a military. Geo-politically, this safeguards Singapore’s freedom of action, to the extent that our city-state is not a price-taker in international affairs. The global terrorism tinderbox also informs the military’s involvement in homeland security viz. protecting designated military and key civilian installations.

Pulling the various strands together, having a strong Singapore Armed Forces is of first importance. The SAF is a deterrent force, serves as the bulwark against attacks, and is the ultimate guarantor of Singapore’s sovereignty. In an age of unmanned drones and precision-guided weapons, it remains cardinally important to have boots on the ground. This finds expression in the spine of our regular army stiffened by a citizen reserve of more than 350,000 NSmen. For this reason, we sleep peacefully at night.

Situated against this landscape, what are the fundamental principles underpinning National Service? The 3 principles are national security, universality, and equity.²

First, the principle of national security requires NS to be served according to the prevailing defence policy, which includes operational effectiveness and fairness.

Second, the principle of universality is evidenced by NS obligations applying to all eligible Singaporean males and the penalties for evading those obligations under the Enlistment Act.

Third, the principle of equity ensures that when one serves NS is equally important as whether one serves or not. An individual cannot cherry-pick when he serves NS. This is because it would be unfair to allow an individual to defer his NS so as to further his education or life pursuits and thereby gain an advantage over his peers who would have had to sacrifice by postponing such pursuits.

Based on the fair share argument – having enjoyed the benefits of a Singapore citizenship – it is only fair that the male citizen even if residing overseas, returns to fulfil his NS obligations to negate any unfair advantage over his local peers.³

Regardless of station in life and background, for the past 50 years of NS, our young men have stood shoulder-to-shoulder to serve Singapore. Over 900,000 male Singaporeans – sons following their fathers – have served NS.⁴

In the present case, the Accused remained outside Singapore without a valid exit permit for 10 years, 4 months and 13 days.⁵ Over that decade, he amassed 2 degrees from the University of British Columbia and a career at a Multinational Company.

A Singapore citizen, he completed primary school education here before migrating to Canada. When he was 26 years old, he reported to the Singapore authorities to resolve his NS offences. He commenced full-time NS on 8 January 2016. He has pleaded guilty to 2 charges under sections 32(1) and 33(b) of the Enlistment Act (Cap 93, 2001 Rev Ed).

My judgement is based on the following analytical framework: Issue: 1: Does Public Prosecutor v Chow Chian Yow Joseph Brian [2016] SGHC 18 (‘JBC’) apply to the present case? The Defence brought this to sharper focus by hitching its case to the wagon of prospective overruling. (Zhuang Wen Xiong, Prospective Judicial Pronouncements and Limits to Judicial Law-Making, (2016) 28 SAcLJ 611 to 630)⁶ Issue 2: If JBC applies, does the Accused have a substantial connection to Singapore? Issue 3: What are the mitigating factors? This brings to the fore the twin issues of exceptional performance during NS and his mother’s psychiatric condition.

In the final analysis, I sentenced the Accused to 16 weeks’ imprisonment. The Defence has appealed against the sentence imposed. The Accused is on bail pending appeal, and his sentence of imprisonment has been stayed.

These are the reasons for my decision.

ANALYTICAL FRAMEWORK Issue 1: Does Public Prosecutor v Chow Chian Yow Joseph Brian [2016] SGHC 18 (‘JBC’) apply to the present case?

The doctrine of prospective overruling applies in “exceptional circumstances”: Public Prosecutor v Hue An Li [2014] SGHC 171 (“Hue An Li”) at [124].

In deciding whether the circumstances of a case are so exceptional to warrant prospective overruling, courts have considered the following factors: The extent to which the law or legal principle concerned is entrenched, The extent of the change to the law, The extent to which the change to the law is foreseeable, and The extent of reliance on the law or legal principle concerned.

This is a factors-based test. No one factor is preponderant over any other, and no one factor is necessary before prospective overruling could be adopted in a particular case: Hue An Li at [124] and [125].

The Defence argued that the doctrine of prospective overruling applies to JBC.⁷ This is because non-custodial sentences for Enlistment Act offences were well-entrenched before JBC. The Defence said that JBC revolutionised the law as follows: JBC expressly adopted, for the first time, the sentencing policy articulated in the Ministerial Statement in 2006. This is in relation to determining the Court’s starting point of a custodial sentence for overseas defaulters with a substantial connection to Singapore whose period of default exceeds 2 years. JBC first mentioned the “substantial connection” principle. JBC placed undue emphasis on the length of the default as the primary basis for determining the length of the sentence. JBC accepted that a discount on the sentence for NS defaulters would be applied based on performance in full-time NS. JBC generally imposed a harsher sentencing regime for NS defaulters.

In addition, the Defence claimed that the change in the law in JBC was not foreseeable. Past judicial pronouncements had expressly considered the impact of the Ministerial Statement and declined to adopt it.⁸ It could not be predicted that JBC would, some 10 years after the Ministerial Statement in 2006, adopt its definition of a “serious” NS defaulter, further define it in terms of a “substantial connection” and fix the starting point for the sentencing of such offenders at a custodial sentence in line with the Minister’s recommendations.

Furthermore, it is unfair for the Accused to be subject to JBC’s sentencing benchmarks as he had acted and relied on the prevailing law at the material time of the offence.

As against this, the Prosecution argued that the doctrine of prospective overruling does not apply to JBC.⁹

At the outset, I would state that I derived considerable assistance from both sides’ submissions, which are commendably cogent and well-organised. After due consideration, I agree with the Prosecution that the doctrine of prospective overruling did not apply to JBC. My reasons are as follows at a granular level.¹⁰

First, JBC did not overrule any entrenched law or legal principle. Before JBC, the sentencing precedents do not show that the prevailing sentencing norm was a fine for a default period of more than 2 years.

For instance, the High Court in Mohammed Ibrahim s/o Hamzah v Public Prosecutor [2014] SGHC 269 (“Mohammed Ibrahim”) stated at [38]:

“(B)ased on the sentencing precedents, cases involving short periods of default of two years or less will generally not attract a custodial sentence… If there are aggravating circumstances, even a period of default of two years or less may warrant the imposition of a custodial sentence.” (emphasis added)

There are cases, before JBC, where custodial sentences were meted out when the default period was more than 2 years.¹¹

The Defence has tried to distinguish these cases by arguing that they contained particular aggravating factors such as (a) the offenders’ wilful and knowing default on their NS obligations¹² and/or (b) the offenders were arrested instead of voluntarily surrendering to the authorities.¹³

The Defence’s contention does not stand. There are three interlacing reasons for this. The first reason is that many of these cases are unreported cases,¹⁴ and there are no written grounds of decision to explain the aggravating factors (if any) in arriving at a certain sentence.

Bringing this to sharper focus is the fact that in Public Prosecutor v Madhurandhaga Thevar s/o Arul [2014] SGDC 290, the Court did not state in any way that the offender’s default on his NS obligations constituted an aggravating factor.¹⁵ Neither did the Prosecution contend that it was an aggravating factor.¹⁶ The offender had voluntarily reported for NS shortly after his return to Singapore.¹⁷

In any event, the Defence’s contention runs counter to the decision of the specially constituted three-member High Court bench in Mohammed Ibrahim. Led by the Chief Justice, the High Court made it clear that neither an intentional decision not to comply with a notice to register for NS nor a failure to voluntarily surrender to the authorities could properly be regarded as aggravating factors.¹⁸ These were merely neutral factors in the sentencing approach for the Enlistment Act.¹⁹

The High Court explained that this is because an intention to evade NS would invariably be present...