Yang Suan Piau Steven v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 02 November 2012
• Neutral Citation: [2012] SGHC 224
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 119 of 2012
• Year: 2012
• Published date: 21 November 2012
• Hearing Date: 23 August 2012
• Plaintiff Counsel: Peter Ong Lip Cheng (Peter Ong & Raymond Tan)
• Defendant Counsel: Sarah Lam (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing
• Citation: [2012] SGHC 224

Chan Sek Keong CJ: Introduction

This is an appeal against sentence by Yang Suan Piau Steven (“the Appellant”). He had pleaded guilty to one count of providing false information to a customs officer, which is an offence under s 129(1)(c) of the Customs Act (Cap 70, 2004 Rev Ed) (“the Customs Act”), and was sentenced to two weeks’ imprisonment. In this judgment, I shall refer to this offence as the “s 129 offence”.

The facts

The Appellant is a 48-year old male. He was charged with the following charge (“the Section 129 Charge”):

You ... on or about the 3rd day of January 2012, at about 12.10am, at the Departure Car, Woodlands Checkpoint, Singapore, being required under Section 91 of the Customs Act, Cap 70, to give information required by SGT SURIANTO BIN SULAIMAN and CPL SITI MASZURA, did furnish as true information which you knew to be false, to wit, you falsely informed the said officer that the fuel supply tank of your car, SGG 2968A, ... had ¾ tank full of motor fuel, that the fuel gauge meter of the said car had not been tampered with, and you have thereby committed an offence under section 129(1)(c) of the Customs Act ...

The relevant parts of the Statement of Facts (“SOF”) which the Appellant admitted to in the District Court are as follows: 3. On 03 January 2012, at about 12.10am, at the Departure Car, Woodlands Checkpoint, Immigration officers stopped a Singapore registered car SGG2968A, driven by the [Appellant] for a routine fuel gauge check. When asked by SGT Surianto Bin Sulaiman whether the vehicle had at least ¾ amount of motor fuel and whether the fuel gauge was tampered with, [the Appellant] declared that the fuel indicator showing ¾ tank of motor fuel was correct and that the fuel gauge of his vehicle was not tampered with. Upon further questioning about the meter reading shown, [the Appellant] maintained that fuel indicator showing ¾ tank was correct and that the fuel gauge was not tampered with. Sgt Surianto Bin Sulaiman then directed [the Appellant] to park his car at the designated parking lot for further checks. Before conducting their checks, Sgt Surianto again asked the [Appellant] whether the indicator on the fuel gauge showing ¾ was correct. The [Appellant] still maintained that the indicator was correct and was not tampered with. 4 Upon checking the car, Sgt Surianto found a remote control in the vehicle’s coin compartment. When asked by Sgt Surianto about the purpose of the remote control, [the Appellant] then admitted that the remote control was used to tamper with the fuel gauge meter reading. Sgt Surianto then pressed the remote control found and immediately, the fuel indicator started to move downwards, below ¼ fuel, which indicated that the fuel level was below the ¾ fuel amount required under the law when leaving Singapore. ... 5 Investigations revealed that the [Appellant] was aware of the ¾ tank ruling, where any person in charge of a Singapore registered motor vehicle, who leaves or attempts to leave Singapore in that motor vehicle, must have its fuel tank filled with more than ¾ tank of its capacity with motor fuel.

...

[emphasis added]

In addition to the Section 129 Charge, the Appellant was also charged with, on the same occasion (ie, at about 12.10am on 3 January 2012), attempting to leave Singapore in his car without the minimum amount of motor fuel in its fuel supply tank, which was an offence under s 136(1) of the Customs Act (“the Section 136 Charge”). For convenience, I will refer to the requirement for a prescribed amount of petrol under s 136(1) of the Customs Act as “the ¾ tank rule”, and the related offence as the “s 136 offence”.

The proceedings in the court below

The Appellant pleaded guilty to the Section 129 Charge and consented to the Section 136 Charge being taken into consideration for the purpose of sentencing. Counsel for the Appellant, Mr Peter Ong (“Mr Ong”), acknowledged that the sentencing norm was a custodial sentence. However, he urged the court to depart from the sentencing norm and to, instead, impose the maximum fine of $5,000. Mr Ong’s plea in mitigation highlighted the following matters: The Appellant was a first offender. The conviction had tainted the Appellant’s career, and a custodial sentence would destroy his career and family. The offence was committed in a moment of indiscretion. When the Appellant was confronted by Sgt Surianto, he was faced with a dilemma. In a moment of panic and confusion, he denied the offence. He was fearful and anxious about the potential consequence of the offence. The Appellant had pleaded guilty and was genuinely remorseful. He had voluntarily and fully cooperated with the authorities. At an early stage, he had confessed in his statement recorded by the investigating officer. The Appellant is of good character and has contributed significantly to the community. He is a pastor with a church and also volunteers at two homes for the elderly. There is no likelihood of recidivism. Mr Ong’s alternative submission was that even if the court was minded to impose a custodial sentence, the court should impose “the minimum custodial sentence” because the Appellant was a person of good character who had helped many people and he had committed the offence in a moment of indiscretion.

The prosecuting officer, Mr Mohamed Iqbal (“Mr Iqbal”), tendered a table of sentencing precedents to the court and submitted that there was nothing exceptional about the background of the Appellant or the facts which justified a departure from the norm, which was a custodial sentence of two weeks’ imprisonment. Mr Iqbal urged the court to impose a custodial sentence and stated that he had “[no] objections regarding the length” thereof.

The Senior District Judge (“SDJ”) sentenced the Appellant to two weeks’ imprisonment for the Section 129 Charge. In his written grounds of decision (as reported in Public Prosecutor v Yang Suan Piau Steven [2012] SGDC 213 (“the GD”)), the SDJ noted that the ¾ tank rule was intended inter alia to preserve the effectiveness of petrol taxes in restraining car usage and to reduce loss of revenue. He observed that motorists still breached the ¾ tank rule despite frequent enforcement efforts. The SDJ opined that such offences were easy to commit but were resource-intensive and difficult to detect, and the enforcement efforts caused potential delay in the clearance of vehicles at the immigration checkpoints.

The SDJ found that the Appellant had deliberately sought to mislead Sgt Surianto in the hope that he could evade detection, and that he confessed only when he realised that detection was inevitable after Sgt Surianto found a remote control device in the coin compartment in the car.

The SDJ observed that the s 129 offence, which involved furnishing false information to a law enforcement officer to evade prosecution, was a serious offence. He noted that short imprisonment terms were generally imposed for charges under s 182 of the Penal Code (Cap 224, 2008 Rev Ed) (“the current PC”) which was an analogous offence, and that fines were considered only for exceptional cases where there had been particularly strong mitigating factors. The SDJ opined that public policy considerations required the sentencing benchmark to be a custodial sentence, particularly where the principal offence was serious.

The SDJ then turned to consider the precedents for the s 129 offence. He observed that the courts “have consistently and almost invariably imposed a custodial sentence of two weeks’ imprisonment” (the GD at [12]). The SDJ pointed out that in 64 of the 67 cases in the table of sentencing precedents tendered by the Prosecution, a sentence of at least one week and mostly two weeks’ imprisonment was imposed (with the sentences in 62 of the 64 cases being, consistently, two weeks’ imprisonment). It would appear that a sentence of two weeks’ imprisonment became the norm for s 129 offences in relation to the ¾ tank rule. In this judgment, I shall use the expressions “norm” and “benchmark” to have the same meaning.

The SDJ then found that there were no exceptional circumstances which justified a departure from the sentencing norm: The facts in this case were similar to those in the overwhelming majority of previous cases, an example of which was Public Prosecutor v Wong Wen Chye (Huang Wencai) [2010] SGDC 161 (“Wong Wen Chye”). The Appellant had planned to use the remote control should the need arise in order to attempt to evade any enforcement action. This was not genuinely a case where the offence was committed in a moment of indiscretion, panic or confusion, out of fear of the consequences. The Appellant had deliberately activated the remote control in the first place to move the fuel gauge to the ¾ reading. He had obviously thought or at least hoped that he could get away with it. This was a deliberate and conscious decision; there was no perceptible fear of the consequences then. Although he was given two chances to come clean, he chose to perpetuate his deception. The Appellant’s good character was not a relevant mitigating factor given the nature of the s 129 offence, which arose out of his premeditated intent to deceive. Indeed, it could be said that he ought to have been more conscious than most of the need to admit to his transgressions instead of lying twice to attempt to evade the consequences. Although the Appellant was a first offender and may be unlikely to reoffend, this was not sufficient to diminish his moral culpability for an offence that essentially sought to prevent attempts to obstruct or pervert the course of justice. The Appellant’s plea of guilt and cooperation with the authorities had very little mitigating weight because he had been caught red-handed and knew that the game was up.

The issues before the court

There are three main issues in this appeal: whether the sentence imposed on the Appellant was out of...