Tan Kiang Kwang v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 06 November 1995
• Date: 06 November 1995
• Docket Number: Magistrate's Appeal No 116 of 1995
• Court: High Court (Singapore)

Tan Kiang Kwang

Plaintiff

and

Public Prosecutor

Defendant

[1995] SGHC 265

Yong Pung How CJ

Magistrate's Appeal No 116 of 1995

High Court

Criminal Procedure and Sentencing–Sentencing–Mitigation–Delay in investigation and prosecution of offence–Whether delay in itself a mitigating factor–Significance of nature and gravity of offence and public interest–Whether merely staying out of trouble with law during period of delay a mitigating factor

The appellant pleaded guilty to three charges of forgery under s 465 of the Penal Code (Cap 224, 1985 Rev Ed) and was sentenced to a total of two years' imprisonment. He was first investigated and arrested in 1988 but was not charged until March 1994. The appellant appealed against sentence on the basis that the trial judge failed to adequately consider the issue of delay in investigation and prosecution.

Held, dismissing the appeal:

(1) In appropriate cases, the court may exercise its discretion to order a “discount” in sentence, if there had been a significant delay in prosecution which had not been contributed to in any way by an accused person, if it would otherwise result in real injustice or prejudice to the accused. There were two main considerations in this regard. Firstly, the accused may have to suffer the stress and uncertainty of having the matter hanging over his head for an unduly long or indefinite period. The argument may be negated, however, if the accused had actively misled the police in the course of the investigations. Secondly, if there was evidence that the accused had changed for the better between the commission of the offence and the date of sentence, the court may also take this into account in appropriate circumstances: at [20].

(2) Pertaining to the first consideration, while the irresistible inference must be that the Prosecution was largely responsible for the delay occasioned and the undue protraction of the investigation process, this was not considered as a ground, by itself, for a reduction in sentence. Pertaining to the second consideration, there was no real evidence that the accused had changed for the better. At best, it could be said in mitigation that the appellant had managed to stay out of trouble with the law. Since the district judge had taken into account all the relevant mitigating circumstances, as reflected in the fact that the sentence was below what might have been ordinarily expected, there was no basis for a more lenient sentence: at [22], [26] and [27].

R v Bird (1987) 9 Cr App R (S) 77 (not folld)

R v Regan [1979] Crim LR 261 (refd)

R v Shingles (12 July 1982) (refd)

R v Tierney [1982] Crim LR 53 (refd)

Yau Kong Kui v PP [1989] 2 MLJ 139 (refd)

Penal Code (Cap 224,1985Rev Ed)ss 465, 477A

Criminal Procedure (Scotland) Act 1975 (c 21) (UK)s 101

Abdul Rashid Gani and Shashi Nathan (Khattar Wong & Pnrs) for the appellant

Low Cheong Yeow (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 The appellant pleaded guilty in the District Court on 7 April 1995 to the following three charges:

1. (1) DAC 4405A/94:

You, Tan Kiang Kwang, m/42 years, NRIC: 0240926G, are charged that you, on or about 28 May 1981, at Eng Kheng (S) Pte Ltd, 4 Battery Road, Singapore, did forge a BNP cheque No 586309 for the sum of $61,318.02, with intent to cause the aforementioned Eng Kheng (S) Pte Ltd to part with property amounting to $61,318.02, and you have thereby committed an offence punishable under s 465 of the Penal Code (Cap 224).

1. (2) DAC 4406A/94:

You, Tan Kiang Kwang, m/42 years, NRIC: 0240926G, are charged that you, on or about 15 July 1982, at Eng Kheng (S) Pte Ltd, 4 Battery Road, Singapore, did forge a BNP cheque No 586499 for the sum of $69,920.70, with intent to cause the aforementioned Eng Kheng (S) Pte Ltd to part with property amounting to $69,920.70, and you have thereby committed an offence punishable under s 465 of the Penal Code (Cap 224).

1. (3) DAC 4406A/94:

You, Tan Kiang Kwang, m/42 years, NRIC: 0240926G, are charged that you, on or about 13 February 1984, at Eng Kheng (S) Pte Ltd, 4 Battery Road, Singapore, did forge a BNP cheque No 315841 for the sum of $107,176.00, with intent to cause the aforementioned Eng Kheng (S) Pte Ltd to part with property amounting to $107,176.00, and you have thereby committed an offence punishable under s 465 of the Penal Code (Cap 224).

2 The appellant consented to have 15 other charges against him taken into consideration for the purposes of sentencing. Fourteen of these other charges also involved forgery and the remaining one related to falsification of accounts (s 477A Penal Code). In respect of the 17 forgery charges, he had illegally withdrawn a total amount of $716,077.70 from Eng Kheng (S) Pte Ltd's current account with Banque Nationale de Paris. He was convicted on his guilty pleas and sentenced to one year's imprisonment on each of the three charges. Two of the sentences were ordered to run consecutively, while the third would run concurrently, adding to an aggregate sentence of two years' imprisonment.

3 The present appeal was brought against sentence. After hearing submissions from counsel for the appellant, I dismissed the appeal. I now give my reasons.

The district judge's grounds of decision

4 In his grounds of decision, the...