Public Prosecutor v Yeo Wee Sin Lionel

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 29 May 2007
• Neutral Citation: [2007] SGDC 165
• Published date: 26 June 2007
• Court: District Court (Singapore)
• Plaintiff Counsel: Shasha Lee (Assistant Public Prosecutor)
• Defendant Counsel: S K Kumar (S K Kumar & Associates)

8 June 2007 Judgment reserved.

District Judge Kow Keng Siong:

The appeal

1. This Judgement arises from an accused’s appeal against his sentence.

2. The appeal raises 2 interesting issues:

a. Firstly, how does a court assess the genuineness of an accused’s claim of remorse?

b. Secondly, how should the Dinesh Singh Bhatia sentencing tariff for offences relating to the possession and consumption of Class A controlled drugs be applied?

The charges

3. The Accused, Mr Lionel Yeo Wee Sin pleaded guilty to the following charges:

(a) trafficking in 5 packets of crystalline substances containing 1.59 g of Ketamine, an offence under section 5(1)(a) of the Misuse of Drugs Act: DAC 2389/2007;

(b) possession of 6 packets of crystalline substances containing 3.95 g of Ketamine, an offence under section 8(a) of the Act: DAC 8063/2007; and

(c) Norketamine consumption, an offence under section 8(b)(ii) of the Act: DAC 8064/2007.

4. The Accused also consented to having another drug possession charge (relating to 2 tablets containing nimetazepam) in DAC 8065/2007 being taken into consideration for the purpose of sentencing.

The facts

5. Trafficking charge: On 16 January 2007 at about 8.15 pm, the Accused sold 5 packets of crystalline substances containing 1.59 g of Ketamine to one Toh Boon Yong (Toh) for $100. This transaction – carried out at the Accused’s residence – was uncovered when Toh was arrested about 5 minutes thereafter for reselling the same drugs to a CNB undercover officer.

6. Possession charge: Following Toh’s arrest, CNB officers raided the Accused’s flat unit at 9 pm. The officers found 6 packets of crystalline substances containing 3.95 g of Ketamine from the Accused’s room. $100 marked notes were also recovered on the Accused.

7. Consumption charge: Urine samples were taken from the Accused soon after his arrest. HSA analysis later revealed that the Accused’s urine contained Norketamine.

Mitigation

8. In mitigation, Mr S K Kumar, the Accused’s counsel, highlighted the following factors:

a. The Accused was a first time offender. He had cooperated with the authorities and had confessed to his wrong doings from the outset. His guilty plea was evidence of his remorse and had saved valuable time of all parties concerned;

b. The Accused was a filial son and caring brother who supported his family financially;

c. The Accused turned to drugs to alleviate his grief over the demise of a close uncle. He committed the trafficking offence after Toh, a teenage friend, had pestered him to sell the drugs to him;

d. The Accused resolved not to re-offend and to dissociate himself from friends who engage in drug and other criminal activities.

Sentence imposed

13. After careful consideration, I imposed the following sentences:

a. Trafficking charge: 5 years’ imprisonment and 5 strokes of the cane;

b. Possession charge: 14 months’ imprisonment;

c. Consumption charge: 12 months’ imprisonment;

14. I also ordered the following:

a. The sentences for the trafficking and possession charges to run consecutively. Total: 6 years, 2 months and 5 strokes; and

b. The imprisonment terms to run with effect from 18 January 2007 to take into account the period the Accused had been in remand.

15. Given that I have (a) imposed the prescribed minimum punishment for the trafficking offence, (b) ordered only 2 of the 3 imprisonment terms to run consecutively (section 18 of the Criminal Procedure Code), and (c) backdated his sentences, the Accused’s appeal would necessarily have been triggered by his dissatisfaction with the sentences imposed on his possession and consumption offences. Accordingly, I shall only articulate my reasons behind the sentences for these 2 offences.

Sentencing considerations

16. In deciding on the appropriate sentences, I gave due weight to the factors cited by Mr Kumar in mitigation, save for his submission on the mitigating value of the Accused’s guilty plea.

Circumstances where guilty plea is mitigating

17. A plea of guilt can be taken into consideration in mitigation when it is motivated by genuine remorse, contriteness or regret and/or a desire to facilitate the administration of justice:Angliss Singapore Pte Ltd v PP [2006] 4 SLR 653, [2006] SGHC 155 @ para 77.

Assessing the genuineness of an accused’s claim of remorse

18. Very frequently, an accused would state in mitigation that he is remorseful for his offence. Whether this claim to remorse is genuine can often be seen from factors such as the following:

a. Nature of the offence: It has been observed that ‘[r]emorse is more credible after impulsive violence or unintended harm than after a lucrative or sexual offence; and a guilty plea is far from strong evidence of it, being a tactic which is known to be likely to earn a reduction of sentence’: Nigel Walker, Aggravation, Mitigation and Mercy in English Criminal Justice, (1999 edition) Blackstone Press Limited at page 114;

b. Offender’s conduct shortly after the offence: In PP v Ng Kwok Soon [2002] 3 SLR 199,[2001] SGHC 339 @ para 29, the High Court noted that the accused was deeply remorseful for his actions by (i) calling the police almost immediately after the offence, (ii) surrendering himself, (iii) making a completely clean breast of things in his statement to the police the next day, and (iv) expressing the same remorse in his section 122(6) cautioned statement. Consider alsoMohamad Iskandar bin Basri v PP [2006] 4 SLR 440, [2006] SGHC 158 @ para 27;

c. Offender’s actions after being charged for the offence: It was held in Hollington & Emmens [1985] 7 Cr App R (S) 364 that those who put up tactical pleas, and then change their plea to guilty when finally arraigned, cannot expect to get the same discount when finally sentenced as they would have done if they had pleaded guilty at the beginning. Thus, in PP v Toh Kim San [2004] SGDC 243 where the guilty plea was entered at the start of a 7-day trial, the court held that –

29. … it [would not] lie for an accused person to excuse a late plea of guilty on the grounds that he was waiting for a better offer from the prosecution. A person holding out for a more favourable offer demonstrates not remorse but a calculated self-interest that does not attract as large a reduction as one who pleads guilty as early as possible. A holding out that lasts until the first day of trial certainly does not count, contrary to the mitigation plea, as a plea of guilt at the first instance.

d. Offender’s actions after pleading guilty: Where an accused makes excuses for, or belittle the gravity of, his offence(s) after pleading guilty, this may suggest that he is not truly remorseful and hence undeserving of any credit for his plea: see for instance PP v Nyu Tiong Lam & 4 Ors [1996] 1 SLR 273, [1995] SGHC 272@ para 17 (Held: lack of remorse apparent from the accused’s assertion that his unlawful assembly for the purposes of gaming in a common gaming house was not a serious offence).

19. An accused’s claim of remorse may also be less credible where there is overwhelming evidence against him. This is because it is all too easy for an accused to say he is sorry when the strong arm of the law has caught up with him. Thus, an accused’s apologetic gestures must be carefully scrutinised to see whether they constitute evidence of genuine, heartfelt remorse: Chen Weixiong Jerriek v PP [2003] 2 SLR 334, [2003] SGHC 103@ para 23.

Guilty plea of little value in the present case

20. In my view, the mitigatory value of the Accused’s guilty plea (as a purported expression of his remorse) was undermined by the following factors:

a. The offences were clearly not committed on the spur of the moment. He must surely have known of the dangers of drug abuse and trafficking. Despite this knowledge, he chose to consume Ketamine and even sell it to a teenage boy (Toh);

b. The Accused did not plead guilty at the earliest instance. Instead, he had waited for more than 4 months after being charged in court, after the matter had been fixed for trial, before pleading guilty. In fact, the court records revealed that (i) an earlier mentions fixed for the Accused to plead guilty (11 March 2007) had to be aborted because he decided to change his counsel at the 11^th hour, and (ii) the Accused had protracted the case disposition so as to secure a better plea bargain;

c. Finally, I also noted that the evidence against the Accused was simply overwhelming: (i) he was arrested after his buyer (Toh) was himself caught as a result of an undercover buy; (ii) in the ensuing raid, CNB officers had found several packets and tablets of drugs in the Accused’s own bedroom; and (iii) the Accused’s urine contained a controlled drug. Under the circumstances, he clearly did not have much choice but to plead guilty.

Zero-tolerance for drugs policy

Singh Bhatia v PP [2005] 3 SLR 1, [2005] SGHC 63 stressed that –

59 The consumption of drugs inexorably attract custodial sentences, save in purely exceptional cases. … The courts have to discharge their duty fairly and dispassionately regardless of an accused’s station in life and/or family background. That said, it is nonetheless inappropriate for the courts to unthinkingly and mechanically impose on any individual, regardless of his background, an inflexible benchmark that makes no allowance for legitimate mitigating circumstances. (emphasis added)

Sentencing tariff for drug consumption and possession

22. In line with this tough zero-tolerance for drugs policy, it is not uncommon for drug abusers – even first time offenders – to be sentenced to imprisonment. In the context of Class A controlled drugs,the High Court has held that ‘the range of sentences for imprisonment starts at six months (… for a young 18-year-old offender) and extends right up to 18 months for a first-time offender’: Dinesh Singh Bhatia @ para 38.

Relevant sentencing factors

23. In applying this sentencing tariff, the relevant factors to consider would include –

a. What was the amount of drug(s)...