Public Prosecutor v Yeong Mun Wai

• Jurisdiction: Singapore
• Judge: Koo Zhi Xuan
• Judgment Date: 08 July 2020
• Neutral Citation: [2020] SGDC 155
• Citation: [2020] SGDC 155
• Court: District Court (Singapore)
• Published date: 17 July 2020
• Docket Number: DAC 930009 of 2019 and 1 Other
• Plaintiff Counsel: Nicholas Yeo (Singapore Customs)
• Defendant Counsel: Ong Meng Hwa William (Alpha Law LLC)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Offences under Customs Act,Principles,Parity,Benchmark sentences
• Hearing Date: 08 July 2020,10 June 2020,07 April 2020

District Judge Koo Zhi Xuan:

In the sentencing of offenders involved in the smuggling of duty unpaid cigarettes under the Customs Act (Cap 70, 2004 Rev Ed) (“Customs Act”), the sentencing benchmarks laid down by the High Court (“the Benchmarks”) in Yap Ah Lai v PP [2014] 3 SLR 180 at [46] (“Yap Ah Lai”) and PP v Pang Shuo [2016] 3 SLR 903 at [49] (“Pang Shuo”) have provided much clarity and consistency in this area of law. It is now well established that the primary factor in the sentencing of such offenders is the quantity or weight of the cigarettes dealt with. But in a case involving co-offenders who are involved in the same criminal enterprise (and therefore the same quantity of cigarettes), how should each of their sentences be calibrated, to reflect their respective criminal culpability vis-à-vis each other? To what extent are the Benchmarks applicable, if an offender is to be sentenced not for the principal offence under the Customs Act (eg, storing or delivering duty unpaid cigarettes), but for abetting the co-offender who had committed the principal offence? These are some of the issues considered in this judgment.

Facts

On 7 April 2020, the Accused pleaded guilty to the following charge:

you, sometime in May 2019, in Singapore, did abet an offence by intentionally aiding one Liew Cheng Long, Shawn by allowing Liew Cheng Long, Shawn to store duty unpaid cigarettes at no 63 Kaki Bukit Place #01-01, Millennium Centre, Singapore, and by the doing of that thing, an act took place, namely, on 14 June 2019, at about 12.04 pm, Liew Cheng Long, Shawn did store uncustomed goods, to wit, 1,285 cartons x 200 sticks, 40 cartons x 160 sticks, 307 packets x 20 sticks and 6 packets x 16 sticks of assorted brands of duty unpaid cigarettes, weighing 249.682 kilogrammes, on which excise duty of $117,908.36 was not paid, which act was committed as a consequence of your abetment, and you have thereby committed an offence under Section 128I(1)(a)(ii) of the Customs Act (Cap 70) read with Section 140 of the same Act, punishable under section 128L(4) of the same Act.

The Accused also admitted to a related charge in relation to the Goods and Services Tax Act for the same amount of duty unpaid cigarettes, and consented to have it taken into consideration for the purposes of sentencing.

Statement of Facts

The Accused admitted to the following statement of facts (“Accused’s SOF”) without qualification:

The accused is Yeong Mun Wai …

2 The co-accused is Liew Cheng Long, Shawn (“B1”) … (dealt with separately). 3 On 22 October 2019, [the Accused] was arrested at about 10.45am at Customs Operations Command, Singapore, for abetting an offence by intentionally aiding B1 to store uncustomed goods i.e. duty unpaid cigarettes.

Facts pertaining to the 1st charge (DAC-930009-2019)

4 On 14 June 2019, from about 7am, Customs officers (the “Officers”) conducted an operation in the vicinity of #01-01, 63 Kaki Bukit Place, Millennium Centre, Singapore, (the “Unit”) to arrest persons concerned in illicit activities involving duty unpaid cigarettes. At about 10.50am, the officers saw a Singapore registered car bearing plate number SDD6575A (the “Car”) driven by B1 and arriving at the Unit. After parking the Car in the compound of Millennium Centre, B1 alighted at about 11am and entered the Unit empty-handed. B1 remained in the Unit until about 12.04pm, when the Officers saw him leaving the Unit with two canvas bags and loading them onto the Car. Suspecting the canvas bags to contain duty unpaid cigarettes, the Officers identified themselves to B1 and conducted a check on the bags. In B1’s presence, the Officers found 81 cartons x 200 sticks and 26 cartons x 160 sticks of duty unpaid cigarettes of assorted brands wrapped in brown wrappers in both canvas bags. B1 admitted knowledge of the cigarettes found and was arrested. The said cigarettes, Car, canvas bags and brown wrappers were seized as case exhibits. 5 On the same day, at about 12.06pm, the Officers conducted a search of the Unit. In B1’s presence, the Officers found 1,204 cartons x 200 sticks, 14 cartons x 160 sticks, 307 packets x 20 sticks and 6 packets x 16 sticks of duty unpaid cigarettes of assorted brands contained in brown boxes, green gunny sacks, black trash bags and a cupboard in the Unit. The said cigarettes, brown boxes, gunny sacks and black trash bags were similarly seized as case exhibits. 6 Investigation revealed that [the Accused] was the legal tenant of the Unit at the material time of the abovesaid offences and had rented the Unit for his business since 2015. On or about May 2019, B1 approached [the Accused] to rent part of the Unit from him to store duty unpaid cigarettes, including the total quantity seized on 14 June 2019 (i.e. 1,285 cartons x 200 sticks, 40 cartons x 160 sticks, 307 packets x 20 sticks and 6 packets x 16 sticks of assorted brands of duty unpaid cigarettes) and [the Accused] agreed to the same verbally. [The Accused] agreed to sublet part of the Unit to B1 with the knowledge that B1 would be using the Unit to store and repack duty unpaid cigarettes before delivering them to buyers of such cigarettes. In return, B1 promised to pay [the Accused] a monthly rental sum of $1,500. In addition, [the Accused] also rented his van to B1 for $50 per use for B1 to transport duty unpaid cigarettes from B1’s suppliers to the Unit for storage. 7 [The Accused] knew that the excise duty leviable on the seized cigarettes were unpaid at the material time the offences were committed. 8 The excise duty leviable on the seized cigarettes in the 1st charge, weighing 249.682 kilogrammes, is $117,908.36. Antecedents

The Accused has no similar antecedent. He was convicted and sentenced to probation for 18 months for an offence under section 380 of the Penal Code (theft in dwelling house) in 1988.

The proceedings of the co-accused

In its written submissions, the Prosecution annexed the statement of facts which the co-accused, B1, had admitted to without qualification (“B1’s SOF”), in a separate and earlier proceedings. I set out the relevant portions of B1’s SOF below:

The accused is [B1].

2 On 14th June 2019, at about 12.05pm, [B1] was arrested at #01-01, 63 Kaki Bukit Place, Millennium Centre, Singapore, for storing uncustomed goods i.e. duty unpaid cigarettes.

Facts pertaining to the 1st charge (DAC-917392-2019)

3 [The contents of this paragraph are similar to paragraph 4 of the Accused’s SOF]. 4 [The contents of this paragraph are similar to paragraph 5 of the Accused’s SOF]. 5 Investigation revealed that, since April 2019, [B1] was engaged by a Chinese male known to him as “Xiao Yu” to collect, store, repack and deliver duty unpaid cigarettes to Xiao Yu’s customers. Xiao Yu would instruct [B1] to collect duty unpaid cigarettes from different suppliers at various locations and, thereafter, directed [B1] to rent a warehouse to store such cigarettes pending delivery to Xiao Yu’s customers. To perform his role, [B1] rented the Car and Unit, and Xiao Yu would pay [B1] for the monthly rental of the Unit. After collecting duty unpaid cigarettes from Xiao Yu’s suppliers, [B1] would transport them to the Unit for storage using the Car and track the stock of duty unpaid cigarettes therein. [B1] would also report to Xiao Yu regularly on the supply of such cigarettes remaining in the Unit. Upon receiving Xiao Yu’s instructions on the date, time and location of delivery of duty unpaid cigarettes to Xiao Yu’s customers, [B1] would then retrieve such cigarettes from the Unit and deliver them using the Car. [B1] would be paid a cash sum of $0.50 to $1.00 for every carton of duty unpaid cigarettes delivered. 6 On 14th June 2019, at about 10am, [B1] received instructions from Xiao Yu to retrieve and repack duty unpaid cigarettes from the Unit for delivery to Xiao Yu’s customers. As such, [B1] arrived at the Unit in the Car at about 10.50am to pack such cigarettes into two canvas bags and left at about 12.04pm when he was arrested by the Officers. At the time of arrest, [B1] also admitted that the cash sum of $768.90 found in his possession were payment by Xiao Yu’s customers for duty unpaid cigarettes previously delivered by [B1]. As such, the sum of $768.90 was similarly seized as case exhibits. 7 [B1] knew that the excise duty leviable on the seized cigarettes was unpaid at the material time the offence was committed. 8 The excise duty leviable on the seized cigarettes weighing a total of 249.682 kilogrammes in the 1st charge is $117,908.36.

B1 pleaded guilty on 19 September 2019 for an offence under section 128I(1)(a)(ii) of the Customs Act, namely, storing duty unpaid cigarettes in the Unit. The Prosecution sought an imprisonment term of 19 months for B1, and the District Judge who took B1’s plea sentenced him to 19 months’ imprisonment accordingly.

Parties’ Initial Submissions on Sentence

In the present case, the Prosecution submitted that the Accused should be sentenced similarly to at least 19 months’ imprisonment, citing the parity principle. The Prosecution also submitted that a 19 months’ imprisonment sentence falls within the “benchmark sentence” for the weight of cigarettes involved (ie, 249.682kg).¹

In response, the Defence submitted in its Mitigation Plea that the Court should “distinguish the sentence of the [B1] from [that to be imposed on] the Accused. [B1] was a paid worker hired by the syndicate. Here the Accused has merely allowed the main offender the use of his storage space”.²

Queries of the Court

At the hearing on 7 April 2020, I drew parties’ attention to [61] of Pang Shuo and raised queries on how the parity principle should be applied in the present case. At [61] of Pang Shuo, the High Court had analysed the sentence it was imposing on the accused (“the Respondent”) in relation to that which...