Yang Suan Piau Steven v PP

• Jurisdiction: Singapore
• Judgment Date: 02 November 2012
• Date: 02 November 2012
• Docket Number: Magistrate's Appeal No 119 of 2012
• Court: High Court (Singapore)

Yang Suan Piau Steven

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 224

Chan Sek Keong CJ

Magistrate's Appeal No 119 of 2012

High Court

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Offender giving false statements to customs officers to cover up breach of ¾tank rule—Whether benchmark sentence of two weeks' imprisonment was manifestly excessive

Criminal Procedure and Sentencing—Sentencing—Principles—Offender giving false statements to customs officers to cover up breach of ¾tank rule—Whether custodial sentence should be imposed as benchmark—Whether benchmark of fine would provide adequate deterrence

Criminal Procedure and Sentencing—Sentencing—Principles—Offender giving false statements to law enforcement authorities—Predicate offence not serious from perspective of Legislature—Predicate offence not involving risk of harm to persons or property, or other public policy considerations—Whether seriousness of predicate offence was relevant sentencing consideration

On 3 January 2012 at the Woodlands checkpoint, officers from the Immigration and Checkpoints Authority (‘ICA’) stopped the appellant's car for a routine fuel gauge check. When asked by an ICA officer whether the car had at least a ¾full tank and whether the fuel gauge was tampered with, the appellant declared that the fuel indicator showing a ¾full tank was correct and that the fuel gauge of his vehicle was not tampered with. Upon further questioning, the appellant maintained this story. The ICA officer directed the appellant to park his car at a designated parking lot for further checks. Before conducting further checks, the ICA officer asked the appellant whether the indicator on the fuel gauge showing a ¾full tank was correct. The appellant maintained that the indicator was correct and was not tampered with. Upon checking the appellant's car, the ICA officer found a remote control in the coin compartment. When asked about the purpose of the remote control, the appellant admitted that it was used to tamper with the fuel gauge meter reading. The ICA officer activated the remote control and the fuel indicator immediately started to move downwards below the ¼ fuel mark.

The appellant was charged with an offence under s 129 (1) (c) of the Customs Act (Cap 70, 2004 Rev Ed) (‘Customs Act’) for furnishing false information to the ICA officer that the fuel tank was ¾full and that the fuel gauge meter had not been tampered with (‘the s 129 offence’). The appellant was also charged with an offence under s 136 (1) of the Customs Act for attempting to leave Singapore without a ¾full fuel tank (‘the s 136 offence’). The appellant pleaded guilty to the s 129 offence and consented to the s 136 offence being taken into consideration for the purpose of sentencing.

The appellant was sentenced to two weeks' imprisonment by the Senior District Judge (‘SDJ’), who found that there was nothing exceptional on the facts which justified a departure from the benchmark sentence of two weeks' imprisonment. The appellant appealed to the High Court against this sentence.

Held, allowing the appeal, setting aside the sentence of two weeks' imprisonment and substituting a fine of $4,000:

(1) The 67 cases in the table of sentencing precedents tendered to the SDJ showed an extraordinarily high degree of consistency in sentencing by the Subordinate Courts for a s 129 offence in relation to a s 136 offence. But consistency was not the sole yardstick by which the courts were guided in sentencing offenders. It was possible that the first case that set the benchmark might be too high or too low, and the benchmark had been applied to all subsequent cases based on guilty pleas: at [28].

(2) While consistency in sentencing was desirable and necessary for the equal treatment of offenders for similar offences in similar circumstances, a custodial sentence should not be lightly or readily imposed as a norm unless the nature of the offence justified its imposition retributively or as a general or specific deterrent, where deterrence was called for: at [31].

(3) A sentence that was purposively inflicted to deter re-offending or other offending was invariably more severe than a retributive sentence. While a deterrent sentence was justifiably used as a means to check or to reduce the prevalence of a particular kind of offence, it should not be so excessive as to be ‘crushing’. Furthermore, a custodial sentence was not necessarily the only or even the best form of deterrence against offending. Different kinds and levels of punishment might be needed to produce a deterrent effect on different types of offending. Criminal justice did not require that offenders should be punished more than was necessary to achieve the objective of the law. Hence, there should be a balance between proportionality and effective deterrence: at [33].

(4) A prison sentence was not the only effective deterrent for certain kinds of offences and against certain types of offenders. In certain cases such as economic offences which were not serious in nature, a heavy fine, as an alternative to a custodial sentence, might equally have the desired deterrent effect in reducing the incidence of an offence: at [34].

(5) There were only two reported cases in the table of sentencing precedents. The first case provided no assistance as it was an appeal against conviction. The district judge in the second case had imposed a sentence of two weeks' imprisonment on the offender principally on the basis of two previous cases. The district judge in that case did not sufficiently appreciate the factual differences between that case and the two previous cases. The facts of the second reported case as well as the present appeal did not involve predicate offences which carried a significant risk of harm to other persons or to property, or which raised serious public policy considerations. The predicate offence in this case was a s 136 offence which carried a maximum fine of $500. All other things being equal, it was reasonable for the court to adopt a sentencing approach which calibrated the punishment to the seriousness of the predicate offence: at [36] to [38] and [41].

(6) The scope of the s 129 offence was very wide. It covered making false statements in relation to every kind of offence prescribed by the Customs Act. While the making of false statements to customs officers might hinder an investigation and cause a waste of investigative resources, or even derail an investigation, not all s 129 offences called for custodial sentences. A comparative survey of the case law in some Commonwealth jurisdictions revealed that the seriousness of the predicate offence had consistently been treated as a relevant sentencing consideration: at [42] and [44].

(7) Where a s 129 offence was committed in relation to a s 136 offence, the s 129 offence did not cause a wastage of investigative resources because: (a) the customs officer had already chosen to stop the offender's car for an inspection and thus resources had already been spent independently of the lie (s); and (b) it would take very little effort for the customs officer to go further to inspect the car and, if need be, to check the fuel level in the car's fuel tank. Further, the predicate s 136 offence did not involve any risk of harm to other persons or damage to property, and did not raise any serious public policy considerations. A s 129 offence committed in relation to a s 136 offence thus fell within the less serious range of s 129 offences: at [47].

(8) The courts should take into account the purpose of punishment in relation to a particular offence, and the fundamental factor in this regard was the harm to society which was, or which could be, caused by the commission of that offence. In the context of the giving of false information to the authorities, the mischief that could be caused to the maintenance of law and order and the relevant legislative objective was a relevant sentencing consideration. If the deception had succeeded in the present case, the appellant would have saved a small sum of money, deprived the State of revenue and also hindered the legislative policy of curbing the usage of motor vehicles. A s 136 offence carried a maximum fine of $500, which was about eight to ten times the loss of petrol duty. Furthermore, a fine of $3,000 for the s 129 offence would be 50 to 60 times the amount of money an offender would save in breaching the ¾tank rule. None of the cases appeared to have considered whether a fine of that magnitude would have been sufficient to deter would-be offenders from lying about the s 136 offence: at [50].

(9) Whilst deterrence was an important sentencing consideration with respect to a s 129 offence, the question was whether only a custodial sentence of not less than two weeks was an effective deterrent. Where the offender's purpose was to save money and to avoid paying a fine of up to $500 by lying, an appropriate deterrent sentence might be to punish him where it hurt, ie, his pocket. It should be the exception rather than the rule for the courts to sentence a first offender to imprisonment rather than a fine, given that the predicate s 136 offence was not serious. The courts should bear in mind that a custodial sentence had consequences beyond the loss of liberty and civil rights: at [51].

(10) The moral culpability of a first offender was, in general, lower than that of a second offender or one with other antecedents showing a propensity to break or defy any law, especially with respect to an offence of the same nature. The gravamen of offences such as the s 129 offence - the intentional deception of law enforcement authorities by various means and with different degrees of complexity - remained the same regardless of which offence-creating provision the Prosecution chose to rely upon. Where there was evidence of recalcitrance or wilful repeated contempt for law enforcement officers...