Soh Qiu Xia Katty v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 28 November 2018
• Neutral Citation: [2018] SGHC 260
• Plaintiff Counsel: Tan Jeh Yaw (Tan Jeh Yaw Law Chambers) and Edmund Lam Hon Mern (LHM Law Corporation)
• Docket Number: Magistrate’s Appeal No 9042 of 2018
• Date: 28 November 2018
• Hearing Date: 28 September 2018
• Subject Matter: Sentencing,Criminal law,Criminal Procedure and Sentencing,Statutory offences,Misuse of Drugs Act
• Published date: 04 December 2018
• Defendant Counsel: Winston Cheng and Shana Poon (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 260
• Year: 2018

Chan Seng Onn J: Introduction

The appellant, aged 23 at the time of the offence, pleaded guilty to the following four drug-related charges in the District Court: One charge of possessing not less than 9.98g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) punishable with enhanced punishment under s 33(4A)(i) of the MDA (“the trafficking charge”); One charge of consuming methamphetamine, an offence under s 8(b)(ii) of the MDA punishable under s 33(4) of the MDA (“the enhanced consumption charge”); One charge of possessing not less than 1.12g of MDMA, an offence under s 8(a) of the MDA punishable with enhanced punishment under s 33(1) of the MDA (“the possession charge”); and One charge of possessing utensils for the intended consumption of drugs under s 9 of the MDA punishable under s 33(1) of the MDA (“the utensils charge”).

Five other drug-related charges were taken into consideration for the purpose of sentencing (“the TIC charges”): three for the repeat offence of trafficking of various drugs, one for joint possession of methamphetamine punishable under the enhanced regime, and one for joint possession of utensils for drug taking.

The appellant pleaded guilty at the court below and the District Judge (“the Judge”) convicted her and sentenced her to 21 years and three months’ imprisonment, with the sentences for the trafficking charge and the utensils charge to run consecutively: see Public Prosecutor v Katty Soh Qiu Xia [2018] SGDC 50 (“the GD”) at [3]. The appellant now appeals against her sentence. Given that the bulk of her imprisonment term stems from the trafficking charge, she understandably focuses her appeal on that sentence.

What is notable about this appeal is that between the time the Judge delivered his decision on 8 March 2018 and the time I heard this appeal on 28 September 2018, a new High Court authority emerged which is on all fours with the present case. On 29 June 2018, Sundaresh Menon CJ delivered his decision in Public Prosecutor v Lai Teck Guan [2018] SGHC 151 (“Lai Teck Guan”) which arose out of a Magistrate’s Appeal to the High Court. Lai Teck Guan laid down the sentencing framework for a repeat offender trafficking in up to 15g of diamorphine. Prior to Lai Teck Guan, the sentencing benchmarks for trafficking in diamorphine were set out in Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”) (for less than 10g of diamorphine) and Public Prosecutor v Tan Lye Heng [2017] 5 SLR 564 (“Tan Lye Heng”) (for 10g to less than 15g of diamorphine). However, both High Court authorities dealt solely with the sentencing benchmarks for first-time offenders. Under the MDA, repeat offenders face a different sentencing regime from first-time offenders.

In determining the sentence for the trafficking charge, the Judge chose to apply Vasentha by mathematically extrapolating the degree of uplift from the sentencing benchmarks in that case (which are meant to apply to a sentencing range of five to 20 years) to fit the sentencing range for a repeat offender (ie, ten to 30 years): GD at [41]. However, this approach was expressly rejected in Lai Teck Guan (at [30]). Menon CJ stated that when sentencing a repeat offender, the court is concerned with not just the quantity of drugs trafficked, but also the circumstances in which the repeat offence came about.

I note that as a general rule, judicial pronouncements are presumed to be retroactive in effect until and unless expressly stated otherwise. Further, the onus of establishing that there are grounds for the court to exercise its discretion to limit the retroactive effect of a judgment is on whoever seeks the court’s exercise of that discretion (see Adri Anton Kalangie v Public Prosecutor [2018] 2 SLR 557 at [70]). Before me, both the Prosecution and the appellant accept that Lai Teck Guan is applicable to the present case.¹ Therefore, I do not consider it necessary to examine whether or not the doctrine of prospective overruling applies. Accordingly, given Menon CJ’s express rejection of the pure mathematical extrapolation approach, the Judge’s decision on sentence for the trafficking charge is wrong in principle and on that basis alone is liable to be set aside.

Be that as it may, I heard parties’ arguments and reserved judgment to scrutinise the precedents and sentencing benchmarks that the parties had relied on. For the reasons that follow, I allow the appellant’s appeal and set aside the sentence imposed by the Judge. In its place, I impose an aggregate sentence of 15 years and nine months’ imprisonment, with the trafficking charge and the utensils charge continuing to run consecutively and the remaining charges to run concurrently.

Facts

The detailed statement of facts which the appellant admitted to can be found at [4] to [16] of the GD. In any event, the facts are uncomplicated and can be summarised as follows. On 4 July 2016, the appellant’s accomplice was arrested and subsequently implicated the appellant as her supplier. Thereafter, the appellant was arrested and a search was conducted on her residence. The drugs and utensils that formed the basis of the charges against her were discovered. At the police station, the appellant’s urine was analysed and found to contain methamphetamine.

The appellant admitted that the diamorphine in her possession was for sale and she would earn a commission for each transaction. The appellant stated that she was selling the drugs to supplement her income. The appellant had previously been convicted on 11 July 2013 for trafficking in a controlled drug for which she was sentenced to reformative training. This therefore rendered her liable for enhanced punishment for the trafficking charge under s 33(4A)(i) of the MDA.

Decision below

As alluded to earlier, the Judge convicted the appellant, who pleaded guilty, and sentenced her to the following: 21 years’ imprisonment for the trafficking charge; the mandatory minimum of three years’ imprisonment for the enhanced consumption charge; nine months’ imprisonment for the possession charge; and three months’ imprisonment for the utensils charge. The sentences for the trafficking charge and the utensils charge were ordered to run consecutively with the rest of the sentences to run concurrently. The aggregate sentence was therefore 21 years and three months’ imprisonment. The appellant’s sentence was ordered to be backdated to commence from 5 July 2016, the date on which the appellant was remanded (at [3] and [59] of the GD).

In relation to the trafficking charge, the Judge adapted the sentencing benchmark in Vasentha to formulate a similar sentencing benchmark for a repeat offender trafficking in less than 10g of diamorphine (ie, 10 to 30 years) (at [41] of the GD). Applying the sentencing benchmark that he had formulated, the Judge found that the indicative starting point for the sentence to be imposed on the appellant was 22 years (GD at [54]). This sentence corresponded to the highest end of the sentencing range, given that the appellant had trafficked close to the highest end of the weight range. The Judge found that a clear aggravating fact was the five TIC charges, three of which involved trafficking. However, he considered as a mitigating fact the relative youth of the offender and that apart from her stint in reformative training, she had not yet been imprisoned for a significantly long period. Accordingly, he moderated the starting point sentence down by one year to arrive at a sentence of 21 years for the trafficking charge (GD at [55] and [56]).

On the enhanced consumption charge, the Judge gave the mandatory minimum of three years without further elaboration. On the utensils charge, the Judge also did not elaborate on his decision given that the sentence was not challenged. On the possession charge, the Judge found that the Prosecution’s proposal of nine months was well within the bounds of sentencing precedent and would be more realistic given the appellant’s antecedents and the number of charges that she was facing (GD at [57]).

Finally, the Judge ordered the sentence for the trafficking charge and the sentence for the utensils charge (which was the shortest sentence) to run consecutively, again taking into account the appellant’s youth and that she had hitherto not served such a long imprisonment sentence (GD at [58]).

The sentencing framework in Lai Teck Guan

The parties’ cases on appeal are heavily reliant on the sentencing framework set out in Lai Teck Guan. Therefore, I consider it helpful to briefly set out the framework here before moving on to summarise the parties’ cases.

In Lai Teck Guan, Menon CJ set out the approach to be taken when sentencing repeat-offenders who traffic in less than 15g of diamorphine as follows (at [38]): (a) The sentencing court would first derive the starting point for the sentence based on the quantity of drugs for first-time offenders using Vasentha. (b) The court would then apply an indicative uplift on account of the fact that this is a repeat offence and derive an indicative starting point on this basis, having due regard to the circumstances of the repeat offence. (c) Finally, the court would adjust that indicative starting point based on the offender’s culpability and the aggravating or mitigating factors, which have not been taken into account in the analysis up to this point.

[emphasis in original]

Following from this, Menon CJ set out a table from which a sentencing judge could determine the starting sentence and the indicative uplift to be imposed based on the weight of the diamorphine (Lai Teck Guan at [42]):

Weight of diamorphine	Starting sentence (first-time offender)	Indicative uplift
Up to 3g	5 – 6 years 5 – 6 strokes	5 – 8 years 5 – 6 strokes
3 – 5g	6 – 7 years

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