Thong Sing Hock v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 02 March 2009
• Neutral Citation: [2009] SGHC 47
• Docket Number: Magistrate's Appeal No 76 of 2008
• Date: 02 March 2009
• Published date: 06 March 2009
• Year: 2009
• Plaintiff Counsel: Appellant in person,Choo Si Sen (previous counsel
• Citation: [2009] SGHC 47
• Defendant Counsel: Christopher Ong Siu Jin (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Whether enhanced need for deterrence because appellant was senior immigration officer,Revision of proceedings,Exercise of revisionary powers where there was plea of guilt,Whether court should go behind plea of guilt,Whether lack of remorse could operate as aggravating factor,Criminal Procedure and Sentencing,Whether serious injustice was occasioned if counsel advised client to plead guilty despite knowing that client lacked requisite mens rea,Whether allegations against counsel made out,Sentencing,Appropriate procedure when appellate court investigated allegations of pressure by counsel

2 March 2009

V K Rajah JA:

Introduction

1 The price for a credible criminal justice system is eternal vigilance. In paying that price, the various stakeholders can from time to time be considerably inconvenienced whenever efforts are made to verify an accused’s complaints. Neither the courts nor the Prosecution should baulk at inquiring into all apparently serious grievances made at any stage of the proceedings. In particular, when grave allegations such as improper pressure by counsel to plead guilty are raised, the court should not, as a matter of course, dismiss such allegations outright unless they are inherently unbelievable or unsupportable on the facts. Nevertheless, while genuine grievances must never be suppressed or buried, scurrilous and vexatious aspersions against counsel should not be allowed to fester and thereby smirch the reputation of counsel. Unmeritorious complaints of this nature, if left unchecked, can have a chilling effect on the role of counsel in criminal matters by inhibiting the giving of candid advice. Given these considerations, appellate courts have to strike a careful balance between according due process to such complaints and ensuring that unsustainable allegations are firmly dealt with.

2 In his appeal against sentence, Thong Sing Hock (“the appellant”) denied that he had the requisite knowledge necessary to ground the various offences to which he pleaded guilty. When pressed further, the appellant took the position that his plea of guilt was induced by his previous counsel who had advised him to plead guilty despite being aware of this. I adjourned the hearing for the Deputy Public Prosecutor (“DPP”) to invite the appellant’s previous counsel to respond, by way of affidavit, to the assertions made by the appellant. The appellant was also accorded an opportunity to file a response.

3 After considering the various affidavits filed and hearing submissions by both the appellant and the DPP, I dismissed the appellant’s appeal at the adjourned hearing on 12 August 2008. I was satisfied that the sentence imposed on the appellant was not manifestly excessive. In fact, it was manifestly inadequate. Accordingly, I ordered that the appellant’s sentence be enhanced as follows:

(a) The sentence in respect of District Arrest Case (“DAC”) No 7036 of 2008 was increased from 15 to 18 months;

(b) The sentence in respect of DAC No 7042 of 2008 was increased from six months to nine months;

(c) The sentence in respect of DAC No 7054 of 2008 was increased from three months to six months.

The aggregate sentence is thus now 33 months in substitution of the earlier sentence of 24 months. I now set out the detailed grounds of my decision, having earlier provided only brief grounds at the hearing.

Facts

4 The offences committed span the period between 22 November 2003 and 11 March 2006. During that period, the appellant was a Deputy Superintendent of the Immigration and Checkpoints Authority (“ICA”), in charge of a team of officers and holding the post of Assistant Head (Repatriation). From 16 February 2004 to 26 May 2006, he held the post of Senior Assistant Commander (Ground Operations) at the Tuas Checkpoint, having general oversight of the entire ground operations. His office was the third-highest appointment at Tuas Checkpoint.

5 The appellant faced 27 charges in the District Court in relation to the assistance he had rendered to one Song Qinghua (“Song”), a People’s Republic of China (“PRC”) national, who had unlawfully entered Singapore using a misleading passport which contained a false name and date of birth. The circumstances, which led her to obtain the passport with false particulars, are as follow. Song entered Singapore in 1997 to work but remained here unlawfully after her work permit expired on 1 July 2001. She was sentenced to three weeks’ imprisonment for this offence, and was informed, prior to her repatriation, that she would be banned from coming into Singapore for a period of one year and subsequently, would require the approval of the Controller of Immigration before she could enter Singapore.

6 After Song returned to China, she changed her name to Song Qi and obtained a new PRC identity card with a false date of birth. She also obtained a new PRC passport with the number G10735197 in the name of Song Qi on 22 April 2002. In late 2002 or early 2003, Song became acquainted with the appellant who was in Beijing for a visit. She introduced herself as Song Qi. They exchanged telephone numbers and maintained contact after the appellant returned to Singapore. Thereafter, the appellant visited China on several occasions and developed an intimate relationship with Song. She also visited Singapore with the appellant’s assistance.

7 According to the Agreed Statement of Facts (“SOF”), sometime in February 2004, the appellant became suspicious about Song’s real identity as he heard her being called by the name Song Qinghua, instead of Song Qi. When queried, she admitted that her real name was Song Qinghua and that she had previously been charged and convicted for overstaying in Singapore. She also told him that she had changed her date of birth from 14 April 1969 to 5 April 1969 and had a new passport made, which stated her false name Song Qi and her false date of birth.

8 The appellant pleaded guilty to nine charges, and consented to have the remaining 18 charges taken into consideration for the purpose of sentencing. The nine charges to which the appellant pleaded guilty fell broadly into three categories: (a) unauthorised access to computer materials under s 3(1) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“Computer Misuse Act”); (b) abetting Song’s unlawful entry into Singapore under s 57(1)(aa) of the Immigration Act (Cap 133, 2008 Rev Ed) (“Immigration Act”); and (c) harbouring under s 57(1)(d)(i) of the Immigration Act.

9 The facts (as laid out in the SOF) pertaining to the three charges of unauthorised access to computer materials under s 3(1) of the Computer Misuse Act are as follow:

(a) Facts pertaining to DAC No 7034 of 2008 (5th charge)

Sometime in February 2004, the appellant decided to verify what Song had told him by using ICA’s computer system called the National Identification Databank/Passport and Employment System (“NIDPEM”). He entered her details into NIDPEM and retrieved the ICA File Reference number of Song Qinghua. Thereafter, the appellant retrieved the ICA file on Song Qinghua and made photocopies of her PRC identity card and PRC passport in order to confirm from the photographs that Song Qi was indeed Song Qinghua. The appellant did not have the authority to access NIDPEM for his personal purposes.

(b) Facts pertaining to DAC No 7054 of 2008 (25th charge)

On a day between 1 March 2006 and 3 March 2006, the appellant, without authorisation, used a computer workstation at the Tuas Immigration Checkpoint to retrieve Song’s Foreign Identification Number (“FIN”) from the Immigration Central Index (“ICI”) in order to check if she had been arrested.

(c) Facts pertaining to DAC No 7055 of 2008 (26th charge)

On or about 1 March 2006, the appellant again, without authorisation, used a computer workstation at the Tuas Immigration Checkpoint. This time, he entered his personal details in the Web-based Inquiry Into System Enquiry (“WISE”) to tally his entry and exit records with that in his passport.

10 The facts pertaining to the four charges for abetment of unlawful entry into Singapore under s 57(1)(aa) of the Immigration Act are as follow:

(a) Facts pertaining to DAC No 7036 of 2008 (7th charge)

On 28 November 2004, the appellant flew to Beijing to meet Song. He bought an air ticket to Singapore for Song and also acted as her sponsor in her application for a Singapore visa. On 2 December 2004, the appellant and Song arrived in Singapore at the Changi Airport Immigration Checkpoint. Song then produced the passport with the false particulars and obtained entry. With the knowledge that Song had produced a misleading document (ie, a passport with false particulars) to gain entry into Singapore, the appellant intentionally abetted her unlawful entry by purchasing her air ticket for her and acting as her sponsor.

(b) Facts pertaining to DAC No 7040 of 2008 (11th charge)

The appellant again abetted Song’s unlawful entry into Singapore by purchasing a return air ticket to Bangkok for her. Song (and the appellant) left for Bangkok on 31 December 2004 and returned to Singapore on 3 January 2005 via the Changi Airport Immigration Checkpoint. Song used the passport with her false particulars to gain entry into Singapore.

(c) Facts pertaining to DAC No 7045 of 2008 (16th charge)

On 7 December 2005, the appellant flew to Beijing to meet Song. Whilst there, he again abetted Song’s unlawful entry into Singapore by purchasing her air ticket and acting as her sponsor for a Singapore visa.

(d) Facts pertaining to DAC No 7049 of 2008 (20th charge)

The appellant again abetted Song’s unlawful entry into Singapore by purchasing a return air ticket from Singapore to Bangkok for her. Song left for Bangkok on 10 January 2006 and returned to Singapore on 12 January 2006 using the passport with her false particulars.

11 The facts pertaining to the two charges of harbouring under s 57(1)(d)(i) of the Immigration Act are as follow:

(a) Facts pertaining to DAC No 7042 of 2008 (13th charge)

Between 15 January 2005 and 23 February 2005, the appellant, despite knowing that Song had entered Singapore unlawfully in contravention of the Immigration Act by using a misleading passport, arranged for her to stay at Block 10, Lakepoint Condominium, the rent for which he paid. He thus committed the offence of harbouring Song.

(b) Facts pertaining to DAC No 7042 of 2008 (17th charge)

Between 13 December 2005 and 10 January 2006, the appellant again committed the offence of harbouring when he arranged for Song to stay at Block 9D Yuan Ching Road #10-40, the rent for which he paid.

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