Seow Wei Sin v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 25 October 2010
• Neutral Citation: [2010] SGHC 312
• Plaintiff Counsel: Choo Si Sen and Tan Jee Ming (Straits Law Practice LLC)
• Date: 25 October 2010
• Docket Number: Maigstrate’s Appeal No 134 of 2010
• Hearing Date: 21 July 2010
• Subject Matter: Criminal procedure and sentencing
• Year: 2010
• Citation: [2010] SGHC 312
• Defendant Counsel: Chay Yuen Fatt and Davyd Chong (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 28 October 2010

Chao Hick Tin JA: Introduction

This was a troubling case concerning a 48-year-old National Service (“NS”) defaulter, Seow Wei Sin (“the Accused”). He pleaded guilty to an offence under s 32(1) of the Enlistment Act (Cap 93, 2001 Rev Ed) (“the Act”) of remaining outside Singapore from 26 May 1978 to 25 August 2001 without a valid exit permit and the District Judge imposed a sentence of 18 months’ imprisonment (see Public Prosecutor v Seow Wei Sin [2010] SGDC 191 (“the GD”)). Both the Accused (in Magistrate’s Appeal No 134 of 2010/01 (“the Accused’s Appeal”)) and the Prosecution (in Magistrate’s Appeal No 134 of 2010/02 (“the Prosecution’s Appeal”)) appealed against the sentence.

After hearing the submissions of both parties in respect of both appeals, I was of the view, having regard to the particular circumstances of this case, that the imprisonment term imposed was manifestly excessive. Accordingly, I allowed the Accused’s Appeal and dismissed the Prosecution’s Appeal, and substituted the custodial sentence with a fine of $5,000. I now give my reasons.

Background facts

The Accused was born on 26 August 1961 in Singapore. In January 1963, when he was a year old, his entire family migrated to Malaysia and settled down in Dungun, Terengganu. Since then, he had not returned to Singapore to live on a long-term basis; he only visited relatives in Singapore for a few days on a few occasions between 1973 and 1975. In 1973, when the Accused was 12 years old, his father brought him back to Singapore to register for his National Registration Identity Card (“NRIC”).

On his behalf, his parents applied for Malaysian Permanent Resident (“PR”) status, which he obtained on 22 February 1978. His NRIC was retained by the Malaysian authorities. A month later, his father sent a letter dated 25 March 1978 to the Central Manpower Base (“CMPB”) informing the latter of the family’s migration to Malaysia in January 1963. On 26 February 1978, when the Accused was 16 years and 6 months old, he became, under s 2 of the Act, a “person subject to [the] Act” and was required to report for registration for NS under s 3(1). On 7 October 1978, pursuant to s 3(1), the Accused was registered as an NS Overseas Registrant.

Sometime in June 1979, CMPB wrote to the Accused’s father asking him to furnish a bond in order for an exit permit to be issued to the Accused so that he could remain in Malaysia for his studies. The next month, his father replied to CMPB that he was unable to furnish a bond as the Accused would not be returning to Singapore, and added that he would be applying for Malaysian citizenship for the Accused. On 9 July 1979, the Accused’s father was informed that the Accused should return to Singapore immediately as he was remaining outside Singapore without a valid exit permit. In August 1979, the father wrote back to CMPB stating that he was unable to furnish the bond and that the Accused would return to Singapore upon completion of his studies.

Unbeknownst to the Accused, on three occasions, in January 1988, April 1991 and July 1993, officers from CMPB conducted house visits at an address of an aunt of his. On those occasions, the aunt told the officers that the Accused was in Malaysia and had no intention to return.

Meanwhile, the Accused also set up his own family in Dungun, Terengganu. He got married in 1991 and had his first child in 1993. He worked with his father at a petrol kiosk and held a few other jobs before setting up a small family-run pet shop in 2000.

In 1993, the Accused’s father, who had always been the one communicating with CMPB, passed away. Seven years later, on 2 July 2000, the Immigration and Checkpoints Authority of Singapore (“ICA”) sent a letter to the Accused’s Malaysian address, informing him about the retention of his Singapore citizenship and advising him to liaise with CMPB. On 25 August 2001, the Accused turned 40 years old and ceased to be a “person subject to [the] Act”.

In 2008, the Accused attempted to apply for a Singapore passport. That was the first time he had to personally deal with the issues of his citizenship and NS liability. He corresponded with the ICA over this matter and on 26 July 2009 he returned to Singapore with a Document of Identity (as he had no passport) and reported to CMPB the next day. He was accordingly arrested and charged for remaining outside Singapore from 26 May 1978 (with a three-month exemption under reg 25(1)(b)(i) of the Enlistment Regulations (Cap 93, Rg 1, 1999 Rev Ed)) to 25 August 2001 without a valid permit, an offence under s 32(1) of the Act.

The District Judge’s grounds of decision

Before the District Judge, the Prosecution pressed for a custodial sentence, submitting that a fine was not appropriate as this was a serious case of failure to perform NS liability. The Prosecution relied heavily on a statement made in Parliament by the Minister for Defence, Mr Teo Chee Hean (“the Minister”), on NS defaulters and on a proposal, which would later be submitted as a bill, to enhance the maximum fine which could be imposed by the court for an offence under the Act from $5,000 to $10,000 (see Singapore Parliamentary Debates, Official Report (16 January 2006) vol 80 at cols 2004 - 2018 (Teo Chee Hean, Minister for Defence)) (“the Ministerial Statement”).

The District Judge also placed great emphasis on the Ministerial Statement, quoting extensively from it in his GD. First, he referred to the three fundamental principles undergirding the NS policy in Singapore highlighted by the Minister: national security, universality and equity. Secondly, he reiterated the Minister’s explanation of the tough stand that the Ministry of Defence (“Mindef”) takes against NS defaulters. Thirdly, he noted the fact that the Minister has indicated that his ministry, having reviewed the Act, would later propose, by way of a bill, to increase the maximum fine provided for in the Act from $5,000 to $10,000 and the illustrations provided by the Minister as to what “Mindef considers to be sentences appropriate to the nature of the offence or commensurate with its gravity” (at [6(c)] of the GD). As this latter portion of the Ministerial Statement requires closer examination, I reproduce it in full (see Ministerial Statement, at cols 2014 – 2015):

I would like to provide some illustrations of what MINDEF considers to be sentences appropriate to the nature of the offence or commensurate with its gravity:

(a) Where the default period exceeds two years but the defaulter is young enough to serve his full-time and operationally ready NS duties in full, MINDEF will press for a short jail sentence. (b) Where the defaulter has reached an age where he cannot serve his full-time NS in a combat vocation or fulfil his operationally ready NS obligations in full, a longer jail sentence to reflect the period of NS he has evaded may be appropriate. (c) Where the defaulter has reached an age when he cannot be called up for NS at all, a jail sentence up to the maximum of three years may be appropriate.

In all instances, we expect that the Court will take into account whatever aggravating or mitigating circumstances there may be in each case to determine the appropriate sentence.

The Prosecution submitted that the Accused fell under category (c) because he has reached an age where he could not be called up for NS at all and thus a custodial sentence was called for.

While the District Judge was mindful of the fact that the Accused’s parents had taken him away to Terengganu at a tender age and that his father had dealt with all matters pertaining to his NS liability, he found that the Accused should have enquired about his NS liability as the obligation to perform NS in Singapore was “well-known and common knowledge” (at [8] of the GD). He also found it difficult to accept that the Accused was “completely in the dark” about his NS obligations; rather, the latter had preferred to let those obligations “by-pass” him until he reached the age when he could no longer be liable for NS. The District Judge felt that treating the Accused’s failure to perform NS lightly would undermine the fundamental principles of NS and “prejudice the fair and open [NS] system that has been build [sic] up over the years” (at [8]) and decided that a “deterrent sentence” of 18 months’ imprisonment was appropriate.

The appeals

On appeal, Counsel for the Accused submitted that the sentence was manifestly excessive, having regard to the sentencing precedents for similar offences where fines only were imposed. In particular, Counsel also pointed out that the District Judge erred in relying on the Ministerial Statement delivered in January 2006 in a case where the offence had been committed between 26 May 1978 and 26 August 2001, a period well before the statement was made. Instead, Counsel argued that the Accused “ought to be punished in the circumstances which then existed” (see Chota bin Abdul Razak v Public Prosecutor [1991] 1 SLR(R) 501 (“Chota”) at [19]) and not take into account events which occurred subsequently.

The Prosecution submitted that the Accused was a “serious defaulter” as he had failed to fulfil his NS liability for a period of 23 years and 3 months, which was one of the longest periods of default to have surfaced in the Singapore courts. As he had evaded his NS liabilities (both full-time and operationally ready service) completely, this was a case which fell within the range of conduct to be characterised as the most serious and therefore the maximum, or at least something close to the maximum, sentence permitted by law should be imposed.

Ministerial statement

The Ministerial Statement was delivered in Parliament on 16 January 2006 in response to the public outcry against the perceived leniency which was shown to the accused in Public Prosecutor v Melvyn Tan Ban Eng District Arrest Case No 14358 of 2005 (unreported) (“...