Tan Lai Kiat v Public Prosecutor

• Judge: V K Rajah JA
• Judgment Date: 07 May 2010
• Neutral Citation: [2010] SGHC 145
• Citation: [2010] SGHC 145
• Docket Number: Criminal Revision No 2 of 2010
• Published date: 14 May 2010
• Hearing Date: 20 April 2010
• Plaintiff Counsel: Rajan s/o Sankaran Nair (Rajan Nair & Partners)
• Date: 07 May 2010
• Defendant Counsel: Jaswant Singh, Gillian Koh-Tan and Lee Jwee Nguan (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Powers,Revision of proceedings,Release,High Court,Attorney-General,Arrest,CRIMINAL PROCEDURE AND SENTENCING,Public Prosecutor,Irregularities in proceedings

V K Rajah JA: Introduction

This matter involves a petition for criminal revision filed by Tan Lai Kiat (“the Petitioner”), who is now 58 years old. On 20 April 2010, I heard his petition and allowed it. Consequently, I varied the original sentences which the Subordinate Courts had imposed on him in respect of two charges (referred to hereafter as, respectively, “MAC 11701/1998” and “MAC 11702/1998”). I now give the detailed reasons for my decision.

Factual background

More than a decade ago, on 18 September 1998, officers from the Gambling Suppression Branch of the Criminal Investigation Department conducted a raid on a property located in Tampines, where illegal gambling activities were being conducted. The Petitioner was arrested during the raid. Subsequent investigations revealed that the Petitioner was involved in an illegal lottery scheme. The documents seized during the raid contained records of stakes amounting to approximately $22,682. A second raid was conducted at about the same time on a property at Surin Lane. A number of exhibits relating to the Petitioner’s illegal lottery operation were seized during the second raid, including records of stakes amounting to $2,918.80.

On or about 28 January 1999, the Petitioner pleaded guilty to and was convicted of MAC 11701/1998 and MAC 11702/1998 (collectively, “the two CGHA charges”). Both of these charges were brought under s 5(a) of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed) (“the CGHA”) read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). The Petitioner also consented to two other charges (one under s 4(1)(a) of the CGHA and one under s 4(1)(b) of the CGHA) being taken into consideration for the purposes of sentencing.

Section 5(a) of the CGHA, which sets out (inter alia) the offence of “assist[ing] in the carrying on of a public lottery”, provides for the following punishment:

Assisting in carrying on a public lottery, etc.

5. Any person who — (a) assists in the carrying on of a public lottery;

…

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $20,000 and not more than $200,000 and shall also be punished with imprisonment for a term not exceeding 5 years.

The same sentence was imposed on the Petitioner in respect of each of the two CGHA charges, ie:

Charge	Sentence
MAC 11701/1998	Nine months’ imprisonment and a fine of $70,000, with six months’ imprisonment in default of payment
MAC 11702/1998	Nine months’ imprisonment and a fine of $70,000, with six months’ imprisonment in default of payment

The two sentences of nine months’ imprisonment were ordered to run concurrently. This resulted in an aggregate sentence of nine months’ imprisonment (“the 9-month imprisonment sentence”) and a cumulative fine of $140,000 (“the $140,000 fine”), with a total of 12 months’ imprisonment in default of payment of the fine (for convenience, I will hereafter refer to imprisonment of this nature – ie, imprisonment in default of payment of a fine – as “default imprisonment”). Dividing the sum of $140,000 by 12 months, which I took to be 360 days (rather than 365 days) so as to work with a round figure, it can be seen that each day of the Petitioner’s 12-month default imprisonment sentence was (loosely speaking) “worth” approximately $389.

The Petitioner commenced serving the 9-month imprisonment sentence on 22 February 1999. As a result of a remission of one third of that sentence for good conduct, he completed serving the sentence on 22 August 1999. In other words, the 9-month imprisonment sentence has been fully served, and it is not an issue in this petition.

As the Petitioner could not afford to pay the $140,000 fine, he commenced serving his 12-month default imprisonment sentence on 23 August 1999. At the time he started serving this default sentence, he was informed by the Singapore Prison Service that his due date of discharge vis-à-vis this default sentence would be 22 April 2000. This date was derived on the basis that the Petitioner would be entitled to a remission of one third of his 12-month default imprisonment sentence for good conduct (see reg 113(1)(a) of the Prisons Regulations (Cap 247, Rg 2, 1990 Rev Ed) (“the 1990 Prisons Regulations”), which was the revised edition in force at the time the Petitioner commenced serving his default imprisonment sentence).

After the Petitioner had served 124 days (ie, approximately four months) of his 12-month default imprisonment sentence from 23 August 1999 to 24 December 1999, he requested Mdm Foo Tiew Jiak (“Mdm Foo”), who currently shares the same address in Hougang as him, to ascertain what I will term “the Outstanding Sum” – ie, the outstanding amount which the Petitioner had to pay in respect of the $140,000 fine as at 24 December 1999 (after taking into account the 124 days of default imprisonment already served) in order to secure his immediate release from prison. According to the Petitioner, he had all along been resigned to completing the balance of his 12-month default imprisonment sentence if his family could not afford to pay the Outstanding Sum. Mdm Foo in turn contacted the court clerk attached to Court 37 of the Subordinate Courts (“the Court Clerk”) and ascertained by telephone the quantum of the Outstanding Sum.

Later that same day, Mdm Foo and the Petitioner’s daughter, Delphine Tan (“Delphine”), after being informed of the amount due, proceeded to the Subordinate Courts to make payment. Mdm Foo obtained a receipt dated 24 December 1999 (“the Receipt”) from the Court Clerk and was requested to return with the Receipt after making payment at the Subordinate Courts’ payment counter and getting the Receipt stamped. Upon payment of the sum of $44,306 (“the $44,306 payment”) by Mdm Foo, the Receipt was duly stamped by the Subordinate Courts. The handwritten remarks on the Receipt stated:

Total fine: $140,000

Given 246 days [sic] rebate of $95694 at $389 per day.

[the word “therefore” in symbol] Fine: $44306

The above handwritten remarks were in fact wrong as the Petitioner had served only 124 days of his 12-month default imprisonment sentence as at 24 December 1999. He should therefore have been given a rebate which was the monetary equivalent of only 124 days of default imprisonment, ie, a rebate of $48,236 (taking 124 multiplied by $389, which (as stated at [5] above) was the approximate “value” of each day of the Petitioner’s 12-month default imprisonment sentence). The Outstanding Sum was thus $91,764 ($140,000 minus $48,236), and not merely $44,306. This in turn meant that, after deducting $44,306 from $91,764, there was in reality still a balance of $47,458 (“the $47,458 balance”) to be paid in respect of the $140,000 fine.

When Mdm Foo returned to Court 37 of the Subordinate Courts with the Receipt after getting it stamped, she saw Delphine conversing with the Court Clerk. She cannot now remember precisely what was discussed between Delphine and the Court Clerk. Nevertheless, both Mdm Foo and Delphine are adamant that they were not at any point in time on 24 December 1999 informed that there was any amount still outstanding vis-à-vis the $140,000 fine. Mdm Foo left the Subordinate Courts with Delphine that day believing that the $44,306 payment constituted full payment of the Outstanding Sum and sufficed to fully discharge the Petitioner’s legal obligation in respect of the $140,000 fine.

Later that day, an Order to Release a Prisoner (“OTR”) numbered 10142 (“OTR No 10142”), which was prepared by the Court Clerk and signed by a district judge (“the District Judge”), was issued. It directed the Superintendent of Prisons to release the Petitioner. At the bottom of this OTR was an annotation (“the OTR No 10142 annotation”), the material part of which stated:

Paid $44306 vide Receipt No 288681

Dated 24.12.99

Given 246 days [sic] rebate of $95694 at $389 per day.

[underlining in original; handwritten text in original in bold]

The handwritten figures “44306”, “246” and “95694” on this annotation were wrong for the same reason that the handwritten remarks on the Receipt were wrong (see [10] above). Furthermore, this annotation was signed by the Court Clerk alone. The District Judge did not sign against it, so it is unclear whether she was aware of it when she signed OTR No 10142.

Oddly, an OTR numbered 10144 (“OTR No 10144”), which likewise directed the Petitioner’s release from prison and which bore the same date as OTR No 10142 (ie, 24 December 1999), was also issued. It has not been made clear when OTR No 10144 was issued even though it was dated 24 December 1999. As in the case of OTR No 10142, OTR No 10144 was prepared by the Court Clerk and signed by the District Judge.

OTR No 10144 contained the following handwritten note, which was signed by the Court Clerk:

After rebate, total amt of fine: $91764 92542

Paid: $44306

Balance of $47458 to be paid by instalment. Starting on 24th Jan 2000 – $4,000 each month until balance is paid.

[deletion mark in original]

It should be noted that the figure “91764” stated in this note should not have been deleted as the sum of $91,764 was in fact the correct quantum of the Outstanding Sum.

The material part of the OTR No 10142 annotation (see [12] above) also appeared at the bottom of OTR No 10144, but with the following amendments:

Paid $44306 vide Receipt No 288681

Dated 24.12.99

Given 246124 days [sic] rebate of $9569448236 at $389 per day.

[underlining in original; handwritten text and deletion marks in original in bold]

The District Judge did not sign against either the annotation at the bottom of OTR No 10144 (“the OTR No 10144 annotation”) or the handwritten note in that OTR. It is thus similarly unclear whether the District Judge was aware of the presence of these two items when she signed OTR No 10144.

At the hearing before me, the deputy...