Rupchand Bhojwani Sunil v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 03 February 2004
• Date: 03 February 2004
• Docket Number: Magistrate's Appeal No 184 of 2003
• Court: High Court (Singapore)

Rupchand Bhojwani Sunil

Plaintiff

and

Public Prosecutor

Defendant

[2004] SGHC 17

Yong Pung How CJ

Magistrate's Appeal No 184 of 2003

High Court

Criminal Procedure and Sentencing–Mitigation–Whether judge must consider all mitigating factors not pleaded by accused or appellant–Criminal Procedure and Sentencing–Sentencing–Principles–Offence of cheating where amount involved large–Whether custodial sentence necessary–When fine appropriate–Criminal Procedure and Sentencing–Sentencing–Principles–Offences involving misuse of Internet–Factors to be considered when imposing sentence

The appellant was convicted and sentenced to 12 months' imprisonment for an offence of cheating, punishable under s 417 of the Penal Code. He had downloaded the website of Power & Motion Control Pte Ltd (“PMC”) onto his own website, EconSingapore. The victim, a managing director of an Iranian company, placed an order for Vickers Cartridge Kits through the website of PMC. Unknown to PMC and the victim, the appellant was able to access this order form. He used the particulars from the order form to correspond with the victim, falsely representing that his company, the fictitious Universal Computers, was an agent of the sole distributor of Vickers products in Singapore.

He agreed to supply Vickers Cartridge Kits to the victim for a sum of US$42,000. The victim then transferred US$42,000 to the appellant's Standard Chartered Foreign Currency Account via telegraphic transfer. The appellant did not deliver the Vickers Cartridge Kits, and was charged for cheating the victim. He pleaded guilty to the charge and made full restitution of the sum to the victim.

At trial, the district judge sentenced the appellant to the 12-month maximum term of imprisonment under s 417 of the Penal Code. In sentencing the appellant, the district judge considered the scheme employed by the appellant, terming it a sophisticated one that involved a degree of planning and IT skill. The district judge also emphasised the need to protect the reputation of Singapore's e-commerce environment as a lucrative and growing medium of business from Internet misuse. The appellant appealed against sentence.

Held, allowing the appeal and reducing the sentence to six months:

(1) A judge could not be expected to lay out every possible mitigating factor on the facts, especially where those factors were not argued by the accused or appellant: at [15].

(2) The district judge had over-emphasised the fact of Internet misuse. The Internet misuse here was peripheral to the offence committed. This was an appeal involving an offence of cheating simpliciter: at [25].

(3) On the facts, the sentence imposed by the district judge was manifestly excessive: at [25].

(4) A custodial sentence was necessary where a cheating offence involved large sums of money. A fine, although appropriate in other cases, would not have a deterrent effect in cases that were similar to this appeal: at [27].

Lim Choon Kang v PP [1993] 3 SLR (R) 254; [1993] 3 SLR 927 (folld)

PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR (R) 653; [2000] 1 SLR 34 (distd)

Sim Gek Yong v PP [1995] 1 SLR (R) 185; [1995] 1 SLR 537 (refd)

Tay Kim Kuan v PP [2001] 2 SLR (R) 876; [2001] 3 SLR 567 (distd)

Wong Kai Chuen Philip v PP [1990] 2 SLR (R) 361; [1990] SLR 1011 (refd)

Business Registration Act (Cap 32, 2001 Rev Ed) ss 12 (1), 23 (b)

Computer Misuse Act (Cap 50A, 1998 Rev Ed) ss 3 (1), 5 (1), 6 (1) (a)

Penal Code (Cap 224, 1985 Rev Ed) ss 415, 417, 420

Peter Keith Fernando (Leo Fernando) for the appellant

James E Lee (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal from the decision of the district judge when she convicted the appellant on four charges. Of these four charges, one charge related to an offence of cheating, punishable under s 417 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”). The other three charges related to the appellant's failure to submit changes of particulars to the Registrar of Companies and Businesses, as required under s 12 (1) of the Business Registration Act (Cap 32, 2001 Rev Ed) (“BRA”) (an offence punishable under s 23 (b) BRA). Additionally, two charges for a breach of s 12 (1) BRA were taken into consideration and one charge for an offence of cheating punishable under s 420 PC was withdrawn. The appellant was granted a discharge amounting to an acquittal on this withdrawn charge. The appellant was sentenced to 12 months' imprisonment and forfeiture of his computer in relation to the cheating charge and fined $4,000 for each of the three BRA charges, in default of which four weeks' imprisonment per charge would be imposed. The appellant appealed only against the imprisonment sentence imposed in respect of the cheating charge. At the end of the hearing, I allowed the appeal and reduced the term of imprisonment to six months. I now give my reasons.

The facts

2 The appellant (“Sunil”) had downloaded the website of Power & Motion Control Pte Ltd (“PMC”) onto his own website, EconSingapore. This was a fact unknown to PMC and the victim, one Kevyan-Alf, a managing director of M/s Kevyan-Alf & Co, a company based in Tehran, Iran. Sometime in December 2002, Kevyan-Alf placed an order for Vickers Cartridge Kits through the website of PMC. However, Sunil was able to access Kevyan-Alf's order form. He used the particulars from Kevyan-Alf's order form to correspond with Kevyan-Alf. Sunil falsely represented to...