Public Prosecutor v Tay Sheo Tang Elvilin

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 31 May 2011
• Neutral Citation: [2011] SGHC 141
• Court: High Court (Singapore)
• Hearing Date: 19 April 2011
• Docket Number: Magistrate’s Appeal No 289 of 2010/02
• Plaintiff Counsel: Tan Kiat Pheng and Christine Liu (Attorney-General's Chambers)
• Defendant Counsel: The respondent in person.
• Subject Matter: Criminal Procedure and Sentencing
• Published date: 03 June 2011

V K Rajah JA: Introduction

This is an appeal by the Prosecution against sentence. The respondent, a 35-year-old police officer holding the rank of Sergeant, claimed trial to five charges under s 6(b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the Act”). Four of these charges were for corruptly giving gratification to four of his fellow police officers as inducement for forbearing to report him to his supervisor for misappropriating a wallet containing a stack of $50 notes and a carton of cigarettes which were found during an unscheduled raid. The remaining charge was for corruptly offering gratification to another fellow police officer for the same purpose.

The punishment prescribed for an offence of corruptly offering or giving gratification under s 6(b) of the Act is imprisonment of a term of up to five years, or a fine up to $100,000, or both. The appellant has no criminal antecedents.

A District Judge (“DJ”) found that the Prosecution had proved its case against the respondent beyond reasonable doubt on the five charges. Accordingly, she convicted and sentenced the respondent to three months’ imprisonment for each of the five charges, with the sentences for two charges ordered to run consecutively, making a total sentence of six months’ imprisonment.

I allowed the Prosecution’s appeal and enhanced the sentence for each of the five charges before me to six months per charge, with the imprisonment sentences for three of the charges to run consecutively to give an aggregate sentence of 18 months’ imprisonment. These are my detailed grounds of decision that explain why I allowed the Prosecution’s appeal.

Factual background

The detailed facts of this case have already been comprehensively set out by the DJ in her grounds of decision at Public Prosecutor v Tay Sheo Tang Elvilin (Zheng Shaodong, Elvilin) [2011] SGDC 27. I will therefore set out only the salient facts which are necessary for an understanding of the context of the present appeal.

The respondent initiated an unscheduled raid on 24 January 2009 to arrest illegal immigrants in the forested area near the Seletar Range (“the forested area”). During this raid, which involved three other officers, a number of makeshift huts were found. Upon searching the huts, the respondent found a carton of contraband cigarettes and a wallet containing a stack of $50 notes. He removed the money, and threw the wallet into the bushes. Upon leaving the scene, he also took the carton of cigarettes with him. Only one police officer, Woman Sergeant Norhasidah binte Mohamed Said (“WSgt Norhasidah”), knew that the respondent had found and misappropriated the two items. The respondent instructed WSgt Norhasidah to lodge the arrest report for an illegal immigrant arrested in this raid “as per normal”¹ – her eventual report stated that the arrest had taken place along Upper Thompson Road, and not in the forested area. It also did not mention the items which were misappropriated by the respondent.

That afternoon, the respondent took out some packets of cigarettes at the Neighbourhood Police Post (“NPP”) rest area in the presence of three other officers. He told them that he had found these contraband cigarettes in the forested area and intended to give them to another officer as a present. The respondent then offered Staff Sergeant Zulkifli bin Mohamad (“SSgt Zulkifli”), who was his group leader and an officer of superior rank, $50 in exchange for his silence about the respondent’s actions, but the respondent was rebuffed. The respondent then gave $50 to the two other officers present and told them not to disclose to anyone what had transpired in the forested area.

When the respondent met WSgt Norhasidah later, he also gave her $50 and told her not to reveal what had happened in the forested area. He also gave her another $50 to hand to another officer involved in the raid, stating that this was to keep him quiet. WSgt Norhasidah later handed the money to that officer. These four gifts and one offer of $50 were the subject of the five charges of corruption which the respondent was convicted on.

The DJ’s decision

The DJ rightly acknowledged that the aggravating factors in this case were serious and that there were substantial and compelling circumstances that justified the imposition of a deterrent sentence here, especially since the respondent’s behaviour resulted in the corruption of four fellow officers and compromised their police duties.

Nevertheless, she felt that the facts of this case were distinguishable from the precedent cases where sentences of nine months and above had been imposed. She observed that the sentences of nine months’ imprisonment and upwards were often imposed in cases which involved more serious corrupt conduct on the part of the police officers as compared to the corrupt conduct in this case.

Here, the respondent’s corrupt conduct did not involve solicitation of gratification from members of public, and therefore did not publicly undermine the integrity of the police force. The respondent also did not compromise any police investigations or operations. Further, while the respondent was mainly motivated by greed when he corrupted the four junior officers, his conduct was not as serious as the conduct of those officers who blatantly and deliberately assisted illegal moneylenders, importers of uncustomed goods or owners of massage establishments in escaping criminal liability.

Hence, the DJ sentenced the respondent to three months’ imprisonment on each of the five charges, with two charges ordered to run consecutively, making a total sentence of six months’ imprisonment.

The Prosecution’s case

The Prosecution forcefully contended that the DJ had erred in her approach. In particular, the Prosecution submitted that the DJ had failed to accord due weight to the aggravating factors surrounding the commission of the offences (despite correctly identifying them), and this resulted in her finding that the present case was not as serious as the precedent cases and in her failure to appreciate the serious adverse impact of the appellant’s corrupt acts.

My attention was also drawn to the cases of Lim Poh Tee v Public Prosecutor [2001] 1 SLR(R) 241 (“Lim Poh Tee”), where the fact that a police officer drew two junior officers into a web of corruption was regarded by the Court as being highly aggravating, and Pandiyan Thanaraju Rogers v Public Prosecutor [2001] 2 SLR(R) 217 (“Pandiyan Thanaraju Rogers”), where a police officer accepted $2,000 as a bribe from a moneylender in exchange for future help in police matters. In Pandiyan Thanaraju Rogers, Yong Pung How CJ observed at [49] that in recent cases, the sentences meted out to police officers convicted of corruption have ranged from nine months and upwards, before dismissing the police officer’s appeal against sentence and enhancing the sentence to nine months’ imprisonment.

While acknowledging that the benchmark for members of the public offering bribes to police officers is between six weeks’ to three months’ imprisonment, the Prosecution submitted that the present case should be distinguished as the respondent himself was the offender in question, and was a police officer of some seniority, holding the rank of Sergeant. The Prosecution submitted that the sentence should be enhanced to nine months’ imprisonment per charge, and that three sentences should run consecutively as general deterrence is the most important consideration for such offences.

In response, the respondent, who was unrepresented, pleaded that he had been adequately punished and the amounts involved were small.

The Court’s decision on sentence

I agreed with the Prosecution that the DJ had failed to accord due weight to the aggravating factors surrounding the commission of the offences,...