Than Stenly Granida Purwanto v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 September 2003
• Neutral Citation: [2003] SGHC 200
• Docket Number: Magistrate's Appeal No 79 of 2003
• Date: 08 September 2003
• Year: 2003
• Published date: 03 October 2003
• Plaintiff Counsel: Sarbrinder Singh (Kertar & Co)
• Citation: [2003] SGHC 200
• Defendant Counsel: James E Lee (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether sentence manifestly excessive,Deterrence,Common law principle of parsimony,Mitigating value of guilty plea,Whether court may impose deterrent sentence where Prosecution has not requested that such sentence be imposed,Principles,Criminal Procedure and Sentencing,Appellant caught red-handed with forged credit cards whilst attempting another fraudulent transaction,Applicability of the principle in sentencing,Sentencing,Prosecution's failure to address court on sentence,Mitigation

1 The appellant had pleaded guilty to one count of conspiracy to possess forged valuable security with intent to use it as genuine, an offence punishable under s 474 read with ss 467 and 109 of the Penal Code (Cap 224) and five counts of conspiracy to cheat using counterfeit credit cards, punishable under s 420 read with s 109 of the Penal Code. The district judge sentenced him to 30 months’ imprisonment for the single offence of possession of counterfeit credit cards and two years’ imprisonment for each of the abetment of aggravated cheating charges. The sentences for the s 474 charge and two of the s 420 charges were ordered to run consecutively, for a total term of 6½ years’ imprisonment. The appellant appealed against his sentence. I dismissed the appeal and upheld the sentence imposed by the district judge. I now set out the reasons for my decision.

The facts

2 The appellant is an Indonesian national. Sometime early in January 2003, he befriended a fellow Indonesian, one “Sri Pashan”, while he was on a social visit to Singapore. Sri Pashan offered the appellant a job, which was to assist him (Sri Pashan) in purchasing electronic goods in Singapore for resale in Jakarta, Indonesia. The appellant showed interest in the proposition and gave his contact details to Sri Pashan. Subsequently, in mid January 2003, Sri Pashan contacted the appellant in Jakarta and they, together with four other Indonesians, planned to come to Singapore to make fraudulent purchases at shops in Singapore. It was agreed that the appellant would receive 10% of the profits from the resale of the illegally procured items.

3 On 27 January 2003, the appellant and his five accomplices arrived in Singapore. The next day, Sri Pashan handed several counterfeit credit cards to the appellant and instructed him to use these cards to carry out the planned purchases. The appellant agreed and kept the cards.

4 Pursuant to their conspiracy to cheat, the appellant and his accomplices embarked on a frenzied shopping spree. Their first fraudulent purchase was made on the night of 28 January 2003 at Mustafa Centre located at 145 Syed Alwi Road. There, the appellant’s accomplice, one “Ali”, committed the offence of cheating by using a counterfeit credit card to purchase a gold bracelet valued at $1,445.14. Both the appellant and Ali collected the jewellery and left the shop.

5 The following day, on 29 January 2003, the appellant, Sri Pashan, Ali and one “Fransica” continued their shopping spree at two shops in Sim Lim Square located at 1 Rochor Canal Road. At M/s Active Foto & Electronics, the appellant committed three offences of cheating by making three purchases: a Sony video camera valued at $2,652, another Sony video camera worth $2,545 and a Panasonic projector priced at $2,920. On all three occasions, the appellant used a counterfeit Mastercard credit card in the name of Kevin L to pay for the items.

6 The group then proceeded to Dynasty Audio and Camera Pte Ltd, another electrical goods shop in Sim Lim Square. There, the appellant and Ali picked out a Nikon digital camera valued at $1,559, which was again paid for by the appellant using the same counterfeit credit card.

7 That same evening, the four of them went down to IMM Building and attempted to make another set of fraudulent purchases there. However, the appellant’s luck finally ran out and he was arrested at Aspial Corporation when the police were called in by a vigilant storekeeper. At the time of arrest, a total of 12 counterfeit credit cards were found on him.

The appeal against sentence

8 The appellant appealed against his sentence on the basis that it was wrong in law and manifestly excessive. In support of this, counsel for the appellant advanced the following grounds:

(a) The district judge erred in finding:

(i) that the offences were grave and serious in nature;
(ii) that a deterrent sentence was warranted in the circumstances; and
(iii) that there were several aggravating factors in this case;

(b) the district judge had failed to take sufficient account of the mitigating factors in the appellant’s favour; and

(c) the sentence was out of line with previous similar cases.

9 It is well established that an appellant court will generally not interfere with the sentence passed by a trial court unless it is satisfied that there was some error of fact or principle, or that the sentence imposed was manifestly excessive or unjust: Tan Koon Swan v PP [1986] SLR 126, Gan Hock Keong Winston v PP [2002] 4 SLR 299. With this principle in mind, I turned to the appeal at hand.

Whether the district judge erred in concluding that the offences were grave and serious in nature

10 Counsel for the appellant submitted that the district judge, in coming to the conclusion that the offences committed were grave per se, had failed to appreciate the varied range of culpabilities and degree of seriousness of the offences under consideration. It was further submitted that a sentencing court, being cognisant of the gravity of the particular offence committed, should have regard to the “trite common law principle of parsimony” and select the least severe sentencing option that is commensurate with the gravity of that specific offence.

11 I was of the opinion that these arguments were without merit. It was clear from the judgment below that the gravity of the offence was but one of the factors that the district judge took into account in sentencing the appellant. A sentencing court has the discretion as well as the obligation to take into account all the circumstances of the case. This obviously includes the severity of any offence, which can generally be inferred from the stiff sentences prescribed by the law. Furthermore, I was of the view that the appellant’s concern that the district judge had failed to appreciate the distinct merits of his case was unfounded. It was apparent from the grounds of judgment that the sentence of 6½ years was reached only after a thorough examination of all the evidence before the court.

12 I was similarly unconvinced by counsel’s argument regarding the applicability of the so-called common law principle of parsimony. I noted that this principle has never been expressly articulated by our courts. In my view, a sentencing judge’s discretion should not be unduly fettered to selecting the least severe sentencing option. The more pertinent consideration is whether the judge has arrived at a fair and just sentence, having carefully assessed all the evidence before him. I was of the opinion that this was the case here.

Whether the district judge erred in concluding that a deterrent sentence was warranted in the circumstances

13 Counsel for the appellant also contended that the district judge had erred in concluding that a deterrent sentence was justified in the circumstances, especially when the prosecution had failed to address the court on sentence. I did not agree with counsel’s submission. As I noted in Meeran bin Mydin v PP [1998] 2 SLR 522, a deterrent sentence is granted entirely within the court’s discretion. I reiterate that there is no requirement in law for the prosecution to request for deterrence before a court may consider it in the exercise of its discretion.

14 Furthermore, I was of the view that the district judge had properly exercised his discretion in this case. He was mindful of the fact that offences involving the fraudulent use of...