Xia Qin Lai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 September 1999
• Neutral Citation: [1999] SGHC 232
• Docket Number: Magistrate's Appeal No 91 of 1999
• Date: 02 September 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Soh Wee Din (Soh Ng & Partners)
• Citation: [1999] SGHC 232
• Defendant Counsel: David Khoo (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: ss 71(1), 465 & 471 Penal Code (Cap 224),Criminal Procedure and Sentencing,Value of guilty plea in mitigation,Whether s 71(1) of the Penal Code applicable,Three charges of dishonestly using as genuine a document known to be forged,ss 168, 169 & 170 Criminal Procedure Code (Cap 68),Whether sentence manifestly excessive,Sentencing,Cardinal proportionality,Dishonestly using as genuine a document known to be forged,Whether one offence or three separate offences

: This was an appeal against sentence. On 12 April 1999, the appellant pleaded guilty before the district judge to, and was convicted on, three charges of dishonestly using as genuine a document which he knew to be a forged document, namely, a Japanese passport, an offence punishable under s 465 read with s 471 of the Penal Code (Cap 224). The three charges read as follows:

First charge (DAC 011134/99)

You, Xia Qin Lai male 33 years old China national (no valid travel document), are charged that you on 25 March 1999, at about 1.15pm, at Changi International Airport Terminal 2, Arrival Hall Immigration Counter, Singapore, did dishonestly use as genuine a document which you knew to be forged, to wit, a Japanese Passport No MP5259458, by handing the said passport to one Miss Sarimah bte Ahmad, a Singapore Immigration Officer, representing that the said passport belonged to you, and you have thereby committed an offence under s 471 punishable under s 465 of the Penal Code (Cap 224).

Second charge DAC 013215/99

You, Xia Qin Lai male 33 years old China national (no valid travel document), are charged that you on 27 March 1999, at about 10am, at Changi International Airport Terminal 2, Departure Hall Immigration Counter, Singapore, did dishonestly use as genuine a document which you knew to be forged, to wit, a Japanese Passport No MP5259458, by handing the said passport to one Miss Masitah Urif, a Singapore Immigration Officer, representing that the said passport belonged to you, and you have thereby committed an offence under s 471 punishable under s 465 of the Penal Code (Cap 224).

Third charge DAC 013216/99

You, Xia Qin Lai male 33 years old China national (no valid travel document), are charged that you on 27 March 1999, at about 12.15pm, at Gate E3, Terminal 2, Changi International Airport, Singapore, did dishonestly use as genuine a document which you knew to be forged, to wit, a Japanese Passport No MP5259458, by handing the said passport to one Mr Mohd Anand bin Abdul Rashid, a Singapore Airport Terminal Services Police Officer, representing that the passport belonged to you, and you have thereby committed an offence under s 471 punishable under s 465 of the Penal Code (Cap 224).

Section 471 of the Penal Code defines the offence of using as genuine a forged document in the following manner:

Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.

The punishment prescribed for an offence under s 471 is that provided for simple forgery under s 465 of the Code, which is `imprisonment for a term which may extend to 2 years, or with fine, or with both`.

The district judge sentenced the appellant to eight months` imprisonment on each of the three charges, with the sentences for the first and third charges to run consecutively, resulting in a total of 16 months` imprisonment. At the conclusion of the hearing, I allowed the appeal and reduced the sentence to one of four months` imprisonment on each charge, with the sentences for the first and second charges to run consecutively, resulting in a total of eight months` imprisonment. I now give my reasons.

The facts

These were contained in the statement of facts, to which the appellant admitted without qualification, and were as follows.

On 27 March 1999 at about 12.50pm, the complainant, one Mohd Anand bin Abdul Rashid (`Mohd Anand`), lodged a police report after detaining the appellant at Gate E3, Departure Hall, Changi International Airport Terminal 2. The appellant was found to be in possession of a Japanese passport (No MP 5259458) which was believed to be forged. Investigations revealed that the appellant had arrived in Bangkok, Thailand, sometime on 19 March 1999. Whilst in Bangkok, he had purchased a photo-substituted Japanese passport (No MP 5259458) in the name of Yamaguchi Hisashi (`the passport`) for the sum of [yen ]20,000. After the arrest of the appellant, the passport was sent to the Japanese Embassy for verification. The First Secretary and Consul, one Tatsuo Ishikawa, confirmed that the passport was indeed a forgery.

I now set out briefly the events constituting the substance of all three charges, beginning with the first charge. On 25 March 1999 at about 1.15pm, the appellant arrived in Singapore from Bangkok. Upon his arrival, he handed the passport to one Sarimah bte Ahmad, an immigration officer who was on duty at the immigration counter of the Arrival Hall, Changi International Airport Terminal 2. She permitted him to pass through and remain in Singapore for a period of 30 days. These events formed the subject matter of the first charge.

On 27 March 1999 at about 10am, the appellant arrived at the immigration counter of the Departure Hall, Changi International Airport Terminal 2, and presented the same passport to one Masitah Urif, an immigration officer who was on duty at the time. She, too, permitted the appellant to pass through and he entered the transit area. These events formed the subject matter of the second charge.

On the same day at about 12.15pm, the appellant proceeded to Gate E3 at the Departure Hall, Changi International Airport Terminal 2, to board Singapore Airlines flight SQ 320 bound for London. Whilst at the gate holding room, he presented the passport to Mohd Anand, a Singapore Airport Terminal Services (SATS) police officer who was on duty checking passports and documents. It was Mohd Anand who detected the flaws in the passport and detained the appellant. These events formed the subject matter of the third charge.

At the hearing below, the prosecution informed the court that the appellant had no criminal record. In mitigation, the appellant pleaded for leniency.

The district judge`s decision

In sentencing the appellant, the district judge noted that the offence of using as genuine a forged document under s 471 of the Code was punishable with up to two years` imprisonment, or with fine, or with both. To begin with, therefore, the question was whether the sentence should be one of mere fine, or imprisonment, or both.

On the facts, the appellant had purchased a forged Japanese passport in Bangkok, Thailand, on 19 March 1999. Six days later, on 25 March 1999, he arrived in Singapore and used the passport, and the immigration officer, on the basis of the passport, permitted him to enter and remain in Singapore for 30 days. Two days later, on 27 March 1999, he attempted to leave Singapore using the same passport. The learned district judge observed that entry into and exit from Singapore were governed by the immigration laws. The appellant had managed to enter and remain in Singapore with the passport, without which he could not have done so. Also, if it were not for the timely intervention of Mohd Anand at the gate holding room, the appellant would have succeeded in leaving the country. He would have come in and out of Singapore with impunity, and would thus have circumvented the immigration laws. In fact, his entry into and presence in Singapore would have been illegal had he not used the passport. The appellant`s actions had struck at the heart of the effectiveness of our laws, and, if a mere fine was imposed on him, the wrong message would be sent that such offences were to be viewed lightly: PP v Tan Fook Sum [1999] 2 SLR 523 . The district judge therefore decided that a custodial sentence was called for.

The next question was the length of the term of imprisonment. In considering this question, the district judge took into account the fact that the appellant had used the passport not only once, on the day of his arrival to gain entry into and remain in Singapore, but also on two further occasions, on the day of his attempted departure. He had flagrantly flouted the law repeatedly and a deterrent sentence was thus called for. The district judge then added, by way of an aside, that had the charges been framed under s 474 read with s 467 of the Code, the maximum sentence would have been imprisonment for life, or for a term which may extend to ten years and fine, but hastened to state that this was not applicable to the present case as the charges in question were framed under s 471 read with s 465 of the Code.

In the final analysis, having regard to the appellant`s plea of guilt and the totality principle on the one hand, and the need for deterrence - not only of the appellant but also of other like-minded persons - on the other, the district judge sentenced the appellant to eight months` imprisonment on each of the three charges, with the sentences for the first and third charges to run consecutively, resulting in a total of 16 months` imprisonment.

Grounds of appeal

The appellant, being dissatisfied with the sentence imposed, appealed against it. He essentially contended:

(a) that the district judge had erred in sentencing him on all three charges when, in accordance with s 71(1) of the Code, he should have been sentenced on only one charge;

(b) that the district judge had misdirected himself on the weight of his mitigation plea; and

(c) that the sentence imposed was manifestly excessive having regard to all the circumstances of the case.

The appeal

The appellant`s contentions will be dealt with seriatim. I begin with the argument that there was a breach of s 71(1) of the Code, which I will call `the s 71(1) point`.

(a) The s 71(1) point

This argument proceeded in stages. First, as the appellant was tried at one trial on all three charges, the offences for which he was tried must either `form or [be] part of a series of offences of the same or similar character` or must be committed in a series of acts `so connected together as to form the same transaction` within the meaning of ss 169 and 170 of the Criminal Procedure Code (Cap 68) (`CPC`) respectively: this implied that the...