Sim Yeow Kee v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 September 2016
• Neutral Citation: [2016] SGHC 209
• Plaintiff Counsel: Irving Choh and Melissa Kor (Optimus Chambers LLC)
• Date: 29 September 2016
• Docket Number: Magistrate’s Appeals Nos 9135 and 9140 of 2015
• Hearing Date: 12 July 2016
• Subject Matter: Criminal Procedure and Sentencing,Appeals,Sentencing
• Published date: 06 October 2016
• Defendant Counsel: Jerald Foo (Cavenagh Law LLP) as amicus curiae in Magistrate's Appeal No 9135 of 2015,Alina Chia (Rajah & Tann Singapore LLP) as amicus curiae in Magistrate's Appeal No 9140 of 2015.,Mohamed Faizal, Zhuo Wenzhao, Tan Wee Hao and Randeep Singh (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 209
• Year: 2016

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

Magistrate’s Appeal No 9135 of 2015 (“MA 9135/2015”) is an appeal against sentence brought by the offender, Sim Yeow Kee (“Sim”). Sim pleaded guilty to three charges (see [5] below) on 21 July 2015, and was sentenced to a total of seven years’ corrective training (“CT”) on 11 August 2015. The written decision of the District Judge dated 4 September 2015 is reported as Public Prosecutor v Sim Yeow Kee [2015] SGDC 245 (“GD 1”). Sim appeals against his sentence on the basis that it is manifestly excessive.

Magistrate’s Appeal No 9140 of 2015 (“MA 9140/2015”) is an appeal against sentence brought by the offender, Loi Wenda (“Loi”). Loi pleaded guilty to seven charges (see [7] below) on 28 July 2015, with 12 other charges being taken into consideration for sentencing purposes, and was sentenced to a total of five years’ CT and 12 strokes of the cane on 18 August 2015. The matter was heard by the same District Judge who heard Sim’s case (“the DJ”), and his written decision dated 15 September 2015 is reported as Public Prosecutor v Loi Wenda [2015] SGDC 252 (“GD 2”). Loi appeals against his sentence on the basis that it is manifestly excessive.

The immediate issue before us in MA 9135/2015 and MA 9140/2015 (“these Appeals”) is whether the respective sentences imposed on Sim and Loi (“the Appellants”) are manifestly excessive. This in turn brings into play the interaction between the CT regime and the regime of normal imprisonment, which we shall hereafter refer to as “regular imprisonment” where appropriate, to distinguish it from CT and other forms of incarceration that exist under Singapore’s penal framework. More specifically, what we have to consider is whether, in respect of an offender who satisfies the statutorily-prescribed technical requirements to be sentenced to CT, the court should impose a sentence of CT or one of regular imprisonment in view of two major changes made in 2014 to the latter regime, namely, the implementation of the Mandatory Aftercare Scheme (“the MAS”) and the Conditional Remission Scheme (“the CRS”). As this underlying issue is pertinent to our decision on both of these Appeals, we heard them together.

Background MA 9135/2015

Sim is a 56-year-old male. On 6 May 2015 at 4.45pm, he was arrested at the Royal Sporting House store in Tampines Mall. He had taken two pairs of “Adidas” shorts valued at $120 from a display rack, put them in a plastic bag and then left the store without paying for them at 4.15pm. It was discovered during the investigations following his arrest that he had also previously stolen a bottle of “Chanel” perfume from the Isetan store at Tampines Mall on 12 May 2014. The urine samples that were procured from Sim after his arrest contained evidence of the consumption of morphine, a specified drug listed in the Fourth Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Sim admitted to consuming heroin in a male toilet at Tampines Mall sometime in the afternoon on 6 May 2015.

The three charges which Sim pleaded guilty to (“Sim’s Charges”) are summarised in Table 1 below: Table 1: Sim’s Charges

Offence date	Charge
12 May 2014	Theft in a building used as a dwelling-house or for the custody of property (“theft-in-dwelling”)	s 380 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”, which expression also refers, where applicable, to the corresponding predecessor version)
6 May 2015	Theft-in-dwelling	s 380 of the Penal Code
6 May 2015	Consumption of a specified drug	s 8(b)(ii), punishable under s 33(1) of the MDA

Sim’s antecedents over the years (“Sim’s Antecedents”) are summarised in Table 2 below: Table 2: Sim’s Antecedents

Date of conviction	Charge(s)	Sentence
31 March 1977	Consumption of a controlled drug	6 months in a Drug Rehabilitation Centre (“DRC”)
16 September 1977	Consumption of a controlled drug	6 months in a DRC
9 January 1981	Consumption of a controlled drug	18 months in a DRC
17 January 1983	Consumption of a controlled drug	30 months in a DRC
5 December 1985	Consumption of a controlled drug	6 months in a DRC (later extended to 18 months)
16 August 2001	Three counts of theft-in-dwelling	6 months’ imprisonment
30 July 2002	One count of theft-in-dwelling	12 months’ imprisonment
29 April 2003	One count of theft-in-dwelling	10 months’ imprisonment
22 April 2004	Three counts of theft-in-dwelling	5 years’ CT
11 September 2010	Consumption of a specified drug	6 months in a DRC
10 September 2011	Consumption of a specified drug	6 months in a DRC
7 November 2012	One count of theft-in-dwelling	6 months’ imprisonment
24 October 2014	Two counts of theft-in-dwelling	9 months’ imprisonment

MA 9140/2015

Loi is a 28-year-old male. The seven charges which Loi pleaded guilty to (“Loi’s Charges”) are set out in Table 3 below: Table 3: Loi’s Charges

Offence date(s)	Charge
19 May 2014, 18 December 2014, 2 March 2015 and 9 March 2015	One count of abetting harassment and three counts of harassment on behalf of an unlicensed moneylender (the “Harassment charges”)	s 28(1)(b), punishable under ss 28(2)(a) and 28(3)(b)(i) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the Moneylenders Act”) (The abetment charge was brought under s 28(1)(b) of the Moneylenders Act read with s 109 of the Penal Code.)
12 May 2014 and 2 March 2015	Two counts of failing to report for a urine test (the “Urine Test charges”)	Reg 15(3)(f) of the Misuse of Drugs (Approved Institutions and Treatment and Rehabilitation) Regulations (Cap 185, Rg 3, 1999 Rev Ed) (“the MDA Regulations”)
12 March 2015	Enhanced consumption of a specified drug	s 8(b)(ii), punishable under s 33(4) of the MDA

Eight other Harassment charges and four other Urine Test charges were taken into consideration for the purposes of sentencing.

The Harassment charges against Loi relate to one instance where he abetted the harassment of debtors on behalf of an unlicensed moneylender (one “Sam”) by instructing his friend to splash red paint on the door of a debtor’s house and write the phrase “… O$P$ [owe money, pay money]” on the wall, and three other instances where Loi himself splashed the doors of the houses of Sam’s debtors with either red paint or diluted soya sauce.

Loi was arrested on 12 March 2015 at Lavender Mass Rapid Transit station on suspicion of having consumed a controlled drug. His urine samples were found to contain methamphetamine, a specified drug under the MDA, and he admitted to having consumed “Ice”. At the material time, Loi was under a compulsory 24-month drug supervision order issued pursuant to reg 15 of the MDA Regulations. The period of supervision was from 18 September 2013 to 17 September 2015. In this connection, Loi had failed to turn up for his urine test on 12 May 2014 and 2 March 2015 without any valid reason.

Loi’s antecedents over the years (“Loi’s Antecedents”) are summarised in Table 4 below: Table 4: Loi’s Antecedents

Date of conviction	Charge(s)	Sentence
29 August 2002	Two charges of distributing uncensored/ obscene films	ss 21(1)(b) and 29(3) of the Films Act (Cap 107, 1998 Rev Ed)	30 months at a Juvenile Home
26 August 2004	Eight counts of theft and criminal trespass (23 other similar charges taken into consideration (“TIC”))	ss 379 and 447 of the Penal Code	Reformative training
18 July 2006	Theft and mischief	ss 379 and 427 of the Penal Code	6 months’ imprisonment
19 December 2007	Ten charges of theft and dishonest receipt of stolen property (11 other similar charges TIC)	ss 379 and 411 of the Penal Code	12 months’ imprisonment
23 March 2009	30 charges involving theft, criminal trespass and fraudulent possession of property (63 other similar charges TIC)	ss 379 and 447 of the Penal Code, and s 35(1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)	36 months’ imprisonment
21 September 2011	Five counts of theft and dishonest misappropriation of property with common intention (11 other similar charges TIC)	ss 379 and 403, read with s 34 of the Penal Code	24 months’ imprisonment
1 February 2013	Three counts of assisting an unlicensed moneylender and one count of drug consumption (four other similar charges TIC)	s 14(1)(b)(i) of the Moneylenders Act and s 8(b)(ii) of the MDA	12 months’ imprisonment

As the Prosecution highlighted, Loi committed 173 previous offences over a period of just slightly more than a decade.

The DJ’s decision MA 9135/2015

The DJ called for a pre-sentencing CT suitability report on Sim (“Sim’s CT report”) to assess whether he was suitable to undergo CT “based on [his] seemingly recalcitrant criminal behaviour” (see GD 1 at [9]). After considering Sim’s CT report and the circumstances of the case, the DJ imposed a sentence of seven years’ CT. The DJ’s reasons for imposing this sentence can be summarised as follows: Sim had a moderate to high risk (49–60%) of reoffending. This suggested a propensity to criminal behaviour, which was corroborated by Sim’s Antecedents and the fact that there was only a short lapse of time between his release from prison and his next occasion of reoffending (see GD 1 at [12]). Sim: (i) did not have good family support; (ii) had a heroin abuse problem; (iii) had few pro-social associates; and (iv) had an erratic employment history. Cumulatively, these facts showed that he had a tendency towards crime, and that “it was expedient for the prevention of crime that he be removed from society whilst he...