Suventher Shanmugam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 04 April 2017
• Neutral Citation: [2017] SGCA 25
• Plaintiff Counsel: Appellant in person
• Date: 04 April 2017
• Docket Number: Criminal Appeal No 21 of 2016
• Hearing Date: 18 January 2017
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Benchmark sentences
• Year: 2017
• Defendant Counsel: Wong Woon Kwong and Chan Yi Cheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 25
• Published date: 13 April 2017

Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction

The appellant is a male Malaysian, aged 22 at the time of the offences in May 2015. He pleaded guilty in the High Court to one charge of importing into Singapore not less than 499.9g of cannabis without authorisation, an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (”MDA”) and punishable under s 33 of the MDA. He also admitted to a second and similar charge of importing not less than 999.9g of cannabis mixture and consented to it being taken into consideration for the purpose of sentencing.

The Judge convicted the appellant and imposed a sentence of 23 years’ imprisonment with effect from the date of arrest and the mandatory 15 strokes of the cane. In doing so, the Judge rejected defence counsel’s submissions that the minimum custodial sentence of 20 years should be imposed. The Judge’s grounds of decision are published as Public Prosecutor v Suventher Shanmugam [2016] SGHC 178 (“the GD”).

In this appeal, the appellant, who appeared in person, sought to persuade us to impose the minimum sentence. We found that the sentence imposed by the Judge was amply justified and dismissed the appeal. However, we said during the hearing that we would issue written grounds of decision setting out our views on two issues which arose, not just from the Judge’s decision, but also generally in situations where the Prosecution decides to state a quantity of drugs in a trafficking or an importation charge that is lower than the actual quantity involved. In most such cases, that is done because stating the actual quantity would attract the death penalty as it exceeds the limit set by law (“the death penalty limit”). In this case, the death penalty applies where the quantity of cannabis is more than 500g. In some cases, although the actual quantity of drugs would not attract the death penalty, the Prosecution could have decided to state a lower quantity in the charge as a result of representations made on behalf of the accused, thereby resulting in a relatively less serious charge.

The first issue is what the indicative sentence should be when the quantity of drugs stated in the charge is just below the death penalty limit, as in the present case. Having reviewed the precedents cited to the Judge, we found that the sentences for importation of such an amount tended to cluster around the minimum sentence. Given that the quantity of drugs is an indicator of the potential harm that an accused person can cause, the sentence for an offence of drug importation or trafficking should, all things being equal, be proportional to the quantity of drugs involved. We did not think that the trend of sentences clustering around the minimum sentence was consistent with this principle. In these grounds of decision, we set out the indicative range of sentences for the offence of unauthorised importation of between 330 and 500g of cannabis.

The second issue concerns the relevance of the actual quantity of drugs seized from the accused person. The Judge was of the view that the actual quantity was relevant to sentencing and could justify a higher sentence even though the charge was based on a reduced amount. This view was consistent with the decided cases in similar situations involving a reduced charge. We had some reservations about the correctness of this view and will explain why.

Background facts

On 16 May 2015, at about 5.10am, the appellant entered the Woodlands Checkpoint on a public bus. He proceeded to the Arrival Bus Hall and was cleared for entry into Singapore. As he appeared nervous at the x-ray counter, he was asked to remove his sweater. Officers from the Immigration and Checkpoints Authority found two blocks of vegetable matter wrapped in plastic and tucked at the waist and back of his trousers.¹ The first block was analysed and found to contain not less than 404.7g of cannabis and not less than 512.5g of cannabis mixture; the second, not less than 431.3g of cannabis and not less than 513.2g of cannabis mixture. In total, the two blocks were found to contain not less than 836g of cannabis and not less than 1025.7g of cannabis mixture.²

The appellant brought the two blocks into Singapore on the instructions of a friend, one Bathumalai A/L Veerappen. Bathumalai had handed the two blocks in a plastic bag to the appellant with a promise to pay him for delivering them to an address in Singapore. While on the bus to Singapore, the appellant opened the plastic bag and recognised the smell of ‘ganja’ (the street name for cannabis). He took the two blocks out of the plastic bag and placed one under his shirt and his sweater at the front of his stomach and the other at the back of his pants.

Cannabis and cannabis mixture are both Class ‘A’ drugs, as specified in the First Schedule to the MDA. Based on the amounts of cannabis and cannabis mixture that the appellant was charged with, the appellant faced the following range of sentences as stated in the Second Schedule of the MDA. For unauthorised importation of 330–500g of cannabis or 660–1000g of cannabis mixture, the minimum sentence is 20 years’ imprisonment and 15 strokes of the cane and the maximum is 30 years ‘imprisonment or imprisonment for life and 15 strokes of the cane. The range of sentences for trafficking in these drugs (an offence under s 5 of the MDA) is identical.

Decision Below

Before the Judge, the appellant’s defence counsel put forward three mitigating factors in support of his submissions that the minimum sentence of 20 years’ imprisonment should be imposed. First, the appellant’s plea of guilt indicated genuine remorse. Second, the appellant had cooperated fully with the CNB in their investigations. Third, the appellant was a first-time offender.³

The Judge placed little weight on these factors.⁴ In his view, the appellant pleaded guilty only after being arrested in very incriminating circumstances. He did not assist the investigators to apprehend the person who was to collect the drugs from him when he was asked to do so in the CNB follow-up operation. Although he was a first-time offender, he had committed the offence for easy money despite being gainfully employed at the time of the offence.

The Judge was of the view that when the Prosecution decides to proceed on a reduced non-capital charge, “the accused cannot be sentenced on the basis of the actual quantity of drugs involved”. “However, when it comes to imposing custodial sentence within the prescribed range, it is right that regard be given to the actual amount of drugs involved, and a higher sentence be imposed if the court finds it appropriate”.⁵ The Judge supported this proposition by reference to three High Court cases (Public Prosecutor v Rahmat bin Abdullah and another [2003] SGHC 206 (“Rahmat”), Public Prosecutor v Kisshahllini a/p Paramesuvaran [2016] 3 SLR 261 (“Kisshahllini”), and Public Prosecutor v Nguyen Thi Thanh Hai [2016] 3 SLR 347 (“Nguyen”).

The Judge also emphasised that the second charge was taken into consideration for the purpose of sentencing. The Judge considered that a higher sentence would generally be appropriate when the offences taken into consideration are similar to the principal offences and aggravate them.⁶ He opined that in the present case, there was a significant amount of cannabis mixture, whether one looked at the weight that formed the basis of the charge or the actual weight recovered from the accused. The Judge held that the sentence for the principal offence should be enhanced on account of that.⁷

The Judge noted that the appellant had put forward “scant mitigation”. He observed that the appellant had “knowingly carried the drugs for reward” and had the “benefit of having the weight of the cannabis reduced in the principal charge so that he avoided the death penalty”, as well as having the second charge taken into consideration instead of being proceeded with as a separate offence.⁸ The Judge therefore disagreed with defence counsel’s submissions for the minimum sentence and instead imposed a sentence of 23 years’ imprisonment and 15 strokes of the cane.

Parties’ submissions

Since the Judge was bound by law to impose 15 strokes of the cane, the only issue before us was whether appellate intervention was warranted in respect of the imprisonment term of 23 years.

The appellant made two points in the handwritten submissions he filed for this appeal. First, he urged us to consider the mitigating factors. He was working and supporting his family at the time of the offence, he was full of shame for what he had done, he was a first-time offender determined never to reoffend and he was still young and hoped to be of better use to society in future.

Second, he cited five unreported cases involving trafficking or importation of Class ‘A’ drugs. These were all cases in which the minimum sentence of 20 years was imposed (save for one case where the sentence was 20 years and 6 months’ imprisonment) even though the prosecution exercised its discretion to charge the offender for a lower amount of drugs than was actually trafficked or imported, such that the amount stated in the charge was below the death penalty limit.

The Prosecution made two broad arguments in its submissions. First, it urged us to apply to this case the approach to sentencing set out by Sundaresh Menon CJ in Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”). That approach involved using the quantity of the drugs in the charge to obtain an indicative starting sentence before making upward or downward adjustments to reflect the offender’s culpability and the presence of any aggravating or mitigating factors. Applying that approach, the Prosecution submitted that the indicative starting sentence for trafficking not less than 499.9g of cannabis should be 26 years and 8 months’ imprisonment. Therefore, the appellant’s sentence of...