UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 20 November 2000
• Neutral Citation: [2000] SGHC 240
• Published date: 04 April 2005
• Court: High Court (Singapore)
• Plaintiff Counsel: Han Ming Kuan (Deputy Public Prosecutor)
• Defendant Counsel: Tan Kim Chiang (Angela Wong & Co)

: This was an appeal by the Public Prosecutor against the sentences imposed by the district judge in the court below.

The two respondents each pleaded guilty to one charge of abetting, in furtherance of the common intention of both of them and one Lye Ai Ling, one Yang Yan Zhi to commit cheating by personation, to wit, by assuming the identity of Lye Ai Ling for the purpose of attempting to deceive a police constable attached to the Singapore Airport Terminal Services (`SATS`) to allow Yang Yan Zhi to board an airline flight bound for Osaka; which offence was punishable under s 109 read with s 419 read with s 34 of the Penal Code (Cap. 224).

The sentence prescribed for the offence was a term of imprisonment of up to three years or fine or both. The district judge imposed a fine of $4,000 on each of the respondents, which fines have since been paid. After hearing both parties, I allowed the appeals and sentenced each respondent to imprisonment for a term of one month and a fine of $2,000. Accordingly, I ordered that a sum of $2,000 be refunded to each of the respondents. I now give my reasons in writing.

The facts

According to the statement of facts which was admitted to without qualification, Mazlan bin Mahmoud, a police constable attached to the Singapore Auxiliary Terminal Services security services, conducted a check on three People`s Republic of China (`PRC`) nationals, including the above-mentioned Yang Yan Zhi, at Changi International Airport Terminal 2, Gatehold Room E4 on 3 June 2000 at about 11.30pm. He discovered that the boarding passes produced by the three PRC nationals did not match their names. Yang Yan Zhi produced a boarding pass which bore the name of Lye Ai Ling in an attempt to assume her identity. In addition, the three PRC nationals were found in possession of forged Japanese passports.

Investigations revealed that the respondents, who were sisters, aged 24 and 33 years respectively, were recruited as agents and worked under the instructions of one Ng Ling Ling to source for persons who were willing to provide their names to apply for airline tickets. They received a sum of $150 from Ng Ling Ling for each name that they obtained.

Pursuant to this, on 2 June 2000, Lye Ai Ling provided the first respondent with her particulars so that the latter could apply for an air ticket for flight SQ 986 bound for Osaka, Japan. The next day, the second respondent met Lye Ai Ling to check in the air ticket at the Singapore Airlines Ticketing Centre at Orchard Paragon Centre. For allowing her particulars to be used, Lye Ai Ling received a sum of $100 from the second respondent. Both the respondents were aware that the air ticket and boarding pass would be used to enable an illegal immigrant to travel on a forged passport to Osaka, Japan.

The accomplice, Lye Ai Ling, had earlier pleaded guilty to an offence of abetment to commit cheating by personation for her role in this incident and was fined $2,000. Ng Ling Ling remains at large.

The decision below

The district judge sentenced each respondent to a fine of $4,000, in default eight weeks` imprisonment. In sentencing the respondents, he took into account their clean records; the plea of guilt; the mitigation plea; their minimal role in the scheme; and the fact that they would have been sufficiently deterred by the nine days spent in remand.

The appeal

The prosecution appealed against the sentences imposed and contended that a custodial sentence was warranted for an offence of this nature. The DPP submitted that the district judge erred in finding that the respondents played a minor role in the scheme. He also contended that the district judge placed undue weight on the mitigating factors as well as the sentence imposed on the accomplice, Lye Ai Ling.

Whether custodial sentence should be imposed

The primary issue in this appeal was whether a custodial sentence should have been imposed on the respondents. What was the approach to be adopted by the sentencing court when determining the appropriate sentencing option in any particular case?

In this regard, I found it useful to refer to my previous decision in PP v Tan Fook Sum [1999] 2 SLR 523 where, after discussing the content and impact of the sentencing principles of retribution, deterrence, prevention and rehabilitation, I noted (at [para ] 21):

The difficulty caused by the multiplicity of operative principles is that it makes conflicts inevitable. A complicating factor is that the principles have to be applied not only in determining which of several options made available by the legislature is the suitable punishment but also in determining whether a number of options can be combined together. ... Moreover, after the proper option has been determined, it seems the foregoing principles must again be applied in order to ascertain what the amount of fine or the term of imprisonment should be. In the view of Tan Yock Lin, there is a better way:

`... what will facilitate more rational and informed sentencing is recognition that there is a dichotomy between public interest and aggravating or mitigating factors. Generally speaking, only the public interest should affect the type of sentence to be imposed while only aggravating or mitigating circumstances affect the duration or severity of the sentence imposed.`

In my opinion, this approach may usefully be adopted here. [Emphasis added.]

That case involved an offence of wilfully endangering the safety of an aircraft, commonly known as `air rage`. There, I applied Professor Tan Yock Lin`s approach and concluded that considerations of public interest and general deterrence called for the imposition of a substantial custodial sentence in addition to a fine as the offences were of a grave nature and in order to deter others from similarly endangering the safety of aircraft in flight. I subsequently approved of and applied this sentencing approach in Chng Gim Huat v PP [2000] 3 SLR 262 at [para ] 106-107 where I held that a custodial sentence should be imposed for tax evasion offences as they were tantamount to a deliberate fraud on the State; affected the society as a whole and were often difficult to detect or to investigate. In that case, the public interest was again the critical factor in my decision.

I thus began by examining whether the considerations of public interest called for a custodial sentence. Upon reflection, I had no doubts that a custodial sentence was indeed warranted for offences of this nature. The respondents` conduct in effect, amounted to a fraud on the authorities and the SATS officers, who would not have issued the boarding pass, nor...