Whang Sung Lin v PP

• Jurisdiction: Singapore
• Judgment Date: 12 February 2010
• Date: 12 February 2010
• Docket Number: Magistrate's Appeal No 177 of 2009 (District Arrest Case No 31396 of 2008)
• Court: High Court (Singapore)

Whang Sung Lin

Plaintiff

and

Public Prosecutor

Defendant

[2010] SGHC 53

Tay Yong Kwang J

Magistrate's Appeal No 177 of 2009 (District Arrest Case No 31396 of 2008)

High Court

Criminal Law–Abetment–Appellant helping to put two willing parties in contact–Whether appellant guilty of abetment by instigating or by aiding

Criminal Law–Statutory offences–Human Organ Transplant Act (Cap 131A, 2005 Rev Ed)

Criminal Procedure and Sentencing–Sentencing–Appellant playing limited role relative to accomplice–Whether sufficient weight accorded to parity in sentencing

The appellant was convicted and sentenced to eight months' imprisonment for an offence under s 14 (2) read with s 14 (1) of the Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) and with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) for abetting by instigation the sale of a kidney. He appealed against his conviction and sentence.

The appellant's wife's uncle, Tang Wee Sung ( Tang ) required a kidney transplant. The appellant knew one Wang Chin Sing ( Wang ) who was able to source for willing kidney donors in return for fees paid to Wang and the donor. The appellant then informed Tang that Wang might be able to help him source for a kidney donor and gave Wang's contact number to Tang. Through this introduction, Tang contacted Wang and the two men met. Subsequently, Tang and Wang agreed that Wang would source for a willing donor to sell a kidney to Tang and Tang would pay $300,000. An Indonesian, Toni was to act as a liaison between the kidney donor and Wang. In separate proceedings, Wang was sentenced to 14 months' imprisonment in total for five charges against him, with another five charges taken into consideration (seven months' imprisonment for the charge which the appellant was involved in). Toni was sentenced to three months' imprisonment for the three charges proceeded against him.

The district judge ( the District Judge ) found that the appellant actively encouraged the kidney sale scheme by suggesting that Wang charge Tang $300,000 and by introducing Tang to Wang. Therefore, the District Judge found the appellant guilty of instigation. In determining the appropriate sentence, the District Judge took into account the appellant's role as the catalyst in the illegal transaction, his greed and the need for general deterrence.

With regard to his conviction, the appellant disputed the District Judge's finding of facts, in particular that the appellant would receive a monetary reward for his role in the scheme. Further, although the appellant admitted that he introduced Wang to Tang, he contended that he should have been charged for abetment by aiding and not abetment by instigating. With regard to his sentence, the appellant contended that the District Judge over-emphasised the principle of general deterrence and the appellant's role in the kidney sale but gave insufficient weight to parity in sentencing.

Held, dismissing the appeal against conviction and reducing the sentence:

(1) There was no reason to disturb the District Judge's finding of facts. First, there was no reason to doubt the credibility of Wang and Tang. Both had already been duly convicted and sentenced and neither had any motive to implicate the appellant falsely. Second, there was contemporaneous documentation to support the Prosecution's case that the appellant received monetary rewards. Third, the inconsistencies in Wang's and Tang's statements did not affect the core of the Prosecution's case. Fourth, the alleged fallacies in Wang's evidence were insufficient to cast doubt on the reliability of his evidence. Finally, there was no evidence that Tang was not lucid at the time of his conversations with the appellant and therefore no reason to doubt the reliability of his evidence: at [25] to [29].

(2) To make good the offence of abetment by instigation, the Prosecution had to show that there was active suggestion, support, stimulation or encouragement of the offence. Here, although the appellant helped to put the two willing parties together, neither Tang nor Wang needed any goading or encouragement. Further, the illegal transaction was not committed in consequence of the appellant's suggestion to charge $300,000 as Wang was already going to do the transaction if Tang should call. The charge was therefore amended to one of abetment by intentionally aiding rather than by instigating. However, the conviction was to stand even with such amendment: at [31] and [34] to [38]

(3) Abetment by aiding was not a lesser crime than abetment by instigation. Section 107 of the Penal Code drew no distinction among the three categories of abetment and s 109 did not make any distinction in the court's sentencing powers with respect to an offence of abetment by aiding and an offence of abetment by instigation. Ultimately, the court had to examine the role played by an accused person in any particular set of facts: at [39].

(4) In each case, the court had to assess how much weight to accord to each sentencing principle. Where the accused acted as a middleman in organ trading, the primary sentencing consideration was that of general deterrence: at [41].

(5) The District Judge gave insufficient weight to parity in sentencing. The appellant's level of culpability for the sole charge should not be higher than or even close to that of Wang for the corresponding charge. Although the appellant stood to benefit far more financially than Toni, his role was a very limited one and stopped completely after the telephone call to Tang. In comparison, Wang was the primary orchestrator of the illegal transaction. On the other hand, the appellant claimed trial and would not have pleaded guilty even if the charge had alleged abetment by aiding instead of instigation, as he refuted the allegation that he was to receive payment for his role. The appellant's sentence was reduced from eight months' imprisonment to four months'; however, that had nothing to do with the amendment to the charge: at [44] to [47].

ADF v PP [2010] 1 SLR 874 (folld)

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (folld)

Balakrishnan S v PP [2005] 4 SLR (R) 249; [2005] 4 SLR 249 (folld)

Moganaruban s/o Subramaniam v PP [2005] 4 SLR (R) 121; [2005] 4 SLR 121 (folld)

Ng Kwee Leong v PP [1998] 3 SLR (R) 281; [1998] 3 SLR 942 (folld)

PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR (R) 334; [2007] 2 SLR 334 (refd)

PP v Ramlee [1998] 3 SLR (R) 95; [1998] 3 SLR 539 (folld)

PP v Sulaiman Damanik [2008] SGDC 175 (refd)

PP v Tang Wee Sung [2008] SGDC 262 (refd)

PP v Wang Chin Sing [2008] SGDC 268 (refd)

Tan Kay Beng v PP [2006] 4 SLR (R) 10; [2006] 4 SLR 10 (folld)

Wang Chin Sing v PP [2009] 1 SLR (R) 870; [2009] 1 SLR 870 (folld)

Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) ss 14, 14 (1) ,14 (2)

Oaths and Declarations Act (Cap 211, 2001 Rev Ed) s 14 (1) (a) (ii)

Penal Code (Cap 224,2008 Rev Ed) ss 107, 109 (consd) ;ss 107 (c) , 107 Explanation 2,109 Explanation

Subhas Anandan and Sunil Sudheesan (KhattarWong) for the appellant

Chay Yuen Fatt and Sharon Lim (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Tay Yong Kwang J

Introduction

1 This is an appeal against the decision of a district judge ( the District Judge ) in PP v Whang Sung Lin [2009] SGDC 308 ( the GD ). The appellant was convicted and sentenced to eight months' imprisonment for an offence under s 14 (2) read with s 14 (1) of the Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) ( the HOTA ) and with s 109 of the Penal Code (Cap 224, 2008 Rev Ed). The appellant appealed against his conviction and sentence. At the hearing of the appeal, the appellant's counsel was content to confine his oral arguments to the following two issues, stating that he was not disputing the findings of fact by the District Judge:

1. (a) whether the charge (see [2]below) ought to have alleged abetment by aiding rather than by instigation; and

2. (b) whether the sentence meted out was manifestly excessive in the circumstances of the case.

However, as the appeal against conviction remains on record and for completeness, I shall deal with the factual disputes raised in the written submissions as well.

The charge and its elements

2 The appellant was charged as follows:

... that you, sometime between April 2008 and 19 June 2008, in Singapore, did intentionally abet, by instigation, one Wang Chin Sing and one Tang Wee Sung to enter into an arrangement in which the said Wang Chin Sing would, for valuable consideration, procure a suitable living donor to supply a kidney to the said Tang Wee Sung, to wit, by introducing the said Tang Wee Sung to the said Wang Chin Sing in return for a fee, for the said purpose, thereby abetting the said act, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 14 (2) read with Section 14 (1) of the Human Organ Transplant Act, Chapter 131A read with Section 109 of the Penal Code, Chapter 224.

3 Section 14 of the HOTA reads as follows:

Certain contracts, etc., to be void

14.- (1) Subject to this section, a contract or arrangement under which a person agrees, for valuable consideration, whether given or to be given to himself or to another person, to the sale or supply of any organ or blood from his body or from the body of another person, whether before or after his death or the death of the other person, as the case may be, shall be void.

1. (2) A person who enters into a contract or arrangement of the kind referred to in subsection (1) and to which that subsection applies shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both.

...

4 Sections 107 and 109 of the Penal Code read as follows:

1. Abetment of the doing of a thing

   107. A person abets the doing of...