Yap Ah Lai v PP

• Jurisdiction: Singapore
• Judgment Date: 15 April 2014
• Date: 15 April 2014
• Docket Number: Magistrate's Appeal No 271 of 2013
• Court: High Court (Singapore)

Yap Ah Lai

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 70

Sundaresh Menon CJ

Magistrate's Appeal No 271 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Principles—Judicial duty to give reasons—Advanced age as a mitigating factor—Appellant convicted of two charges for importing 161.4 kg of uncustomed tobacco products—Appellant sentenced to total of 24 months' imprisonment—Whether sentence manifestly excessive based on sentencing precedents—Whether judge's replication of three paragraphs of his reasoning from another similar decision justified appellate intervention—Whether appellant's age (72 years) could be considered in mitigation—Sections 128 F and 128 L (4) Customs Act (Cap 70, 2004 Rev Ed)

The appellant, who was 72 years of age, was caught at the Woodlands Checkpoint and 161.4 kg of uncustomed tobacco products were found in his vehicle. The appellant pleaded guilty to two charges under s 128 F of the Customs Act (Cap 70, 2004 Rev Ed) (‘the Customs Act’) for evading excise duty and Goods and Services Tax (‘GST’) respectively, which was punishable under s 128 L (4).

The district judge (‘the District Judge’) imposed a total sentence of 24 months' imprisonment. He said this term was justified because under s 128 L (4) the fine that would have been payable on the excise duty charge, had he been minded to impose this, would have been between $852,192 and $1,136,256, and the term of imprisonment that he imposed was within the range of sentences that have been imposed in the State Courts where an offender was unable to pay fines of such amounts. The District Judge also considered that the appellant had imported a ‘massive amount’ of duty-unpaid cigarettes which would have ‘flooded the market’ for such items in Singapore.

Held, allowing the appeal:

(1) In most cases where a significant quantity of tobacco product was smuggled, the amount of excise duty that was evaded, when subjected to a multiplier of 15 or 20 as stipulated under s 128 L (4) of the Customs Act, would result in very large fines that would be beyond the ability of most offenders to pay. In such cases, the fine ought not to be imposed and consideration ought to be given to imposing a sentence of imprisonment instead. The purpose of imprisonment in default of payment of the fine was to prevent evasion, but this was not a proxy for the punishment imposed for the original offence: at [16] to [18] .

(2) It was incorrect in principle to base the appropriate sentence of imprisonment, where this was intended to be the primary penalty, on the amount of fines that would have been imposed in default of payment of a fine, and consequently to take reference from the prescribed schedule of default imprisonment terms contained in s 119 of the Customs Act: at [19] to [22] .

(3) Customs offences were directed at two evils: the loss of revenue to the Government, and the reducing the consumption of harmful goods by raising their cost to the user. The latter was the stronger interest at play: at [23] to [26] .

(4) There were at least four factors relevant to sentencing for customs offences: the quantity of tobacco products imported; the repetition of the offence; whether a criminal syndicate was involved; and the role of the offender. The latter three factors could in some cases be factored already into the charges faced by the offender and where this was so the primary factor would be the quantity of tobacco products smuggled: at [27] to [36] .

(5) For cases where the offender's role was confined to pure importation of more than 2 kg of tobacco products, where he had pleaded guilty at the earliest chance, and he was a first offender, a graduated scheme cross referencing the quantity of tobacco imported with the duration of the imprisonment term that could be imposed as a starting point was laid down as follows:

Quantity of tobacco product (kg)	Sentencing range (months)
2-50	3-6
51-100	6-12
101-200	12-18
201-300	18-24
301-400	24-30
> 400	30-36

But these benchmarks were to serve only as starting points and required further calibration in each case to give effect to any aggravating or mitigating factors where present, and the weight to be accorded to such factors ought to be linked flexibly to the rationale of sentencing that applied to this offence: at [40] , [46] and [55] .

(6) In most cases of smuggling, the offender would be charged with two counts: one for evading excise duty, and the other for evading GST. Where the two charges related to the same goods, it would generally be inappropriate to order that the sentences be imposed consecutively as this would offend the one-transaction rule: at [56] .

(7) The District Judge erred in imposing the sentence he did. First, there was no evident and settled sentencing practice in the State Courts in relation to sentences imposed in default of fines for such offences, and even if there was, it would in any case be wrong in principle to have regard to such practice. Second, there was no consistency in the imprisonment terms imposed as a primary sentence. The appellant had not smuggled a ‘massive amount’ of tobacco products in absolute terms and there were cases in which the offender had received a lower sentence where a larger quantity of tobacco products had been involved, with nothing to suggest that in those cases the offender was less culpable than the appellant: at [60] to [62] .

(8) Judges had a duty to give reasons for their decisions and this entailed a duty to give sufficient reasons that adequately engaged with the circumstances of the case. The District Judge's reproduction of three crucial passages of his reasoning from another of his decisions which, although a customs offence, was not altogether similar, afforded a reasonable basis for concluding that in neither case had he fully appreciated or applied his mind to the facts and circumstances of the case before him, thus justifying appellate intervention: at [66] to [73] .

(9) Based on the benchmark laid down, the sentence called for as a starting point was an imprisonment term of between 12 and 18 months. There were no applicable aggravating factors because the need for deterrence and the involvement of syndicates were factors adequately captured within the sentencing benchmark. As for mitigating factors, there was no general principle that age alone warranted a moderation of the punishment to be meted out, unless the impact of the sentence was so severe given the offender's age and infirmities as to be disproportionate or crushing. In the circumstances no moderation of the benchmark sentence was required, particularly given the remission of sentence the appellant could expect for good behaviour in prison. The sentence on the excise duty charge was therefore reduced to one of 15 months' imprisonment: at [75] , [81] , [82] , [94] and [95] .

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

Chia Kah Boon v PP [1999] 2 SLR (R) 1163; [1999] 4 SLR 72 (refd)

Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 (refd)

Lai Wee Lian v Singapore Bus Service (1978) Ltd [1983-1984] SLR (R) 388; [1984-1985] SLR 10 (refd)

Low Meng Chay v PP [1993] 1 SLR (R) 46; [1993] 1 SLR 569 (refd)

Luong Thi Trang Hoang Kathleen v PP [2010] 1 SLR 707 (refd)

Moey Keng Kong v PP [2001] 2 SLR (R) 867; [2001] 4 SLR 211 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (refd)

Ong Chee Eng v PP [2012] 3 SLR 776 (refd)

PP v Goh Buck Koon [2009] SGDC 351 (refd)

PP v Kesavan V Matamuthu [2013] SGDC 403 (refd)

PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (refd)

PP v Lin Lai Fu [2005] SGDC 96 (refd)

PP v Ng Siong Boon [2007] SGDC 249 (refd)

PP v Ong Seng Huat [2009] SGDC 44 (refd)

PP v SThambiraja s/o Chelladurai [2011] SGDC 253 (refd)

PP v Saiful Rizam bin Assim [2014] 2 SLR 495 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (folld)

R v Sheppard 2002 SCC 26 (refd)

Rv Hunter (1984) 36 SASR 101 (refd)

RMahendran A/L Rethinasamy v PP [2001] SGDC 371 (refd)

Thong Ah Fat v PP [2012] 1 SLR 676 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 319 (1) (d)

Customs Act (Cap 70, 2004 Rev Ed) ss 128 F, 128 L (4) (consd) ;ss 119, 128 D, 128 E, 128 G, 128 H, 128 I, 128 J, 128 K, 128 L (3) , 128 L (5) , 128 L (5 A) , 128 L (7) , 130 (1) (repealed)

Customs (Amendment) Act 2008 (Act 3 of 2008)

Customs (Amendment) Act 2011 (Act 25 of 2011)

Customs (Duties) Order (Cap 70, O 4, 2009 Rev Ed) First Schedule

Customs Laws Consolidation Act 1876 (c 36) (UK) s 186

Appellant in person

April Phang and Chee Min Ping (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Sundaresh Menon CJ

Introduction

1 The appellant was 72 years old when he was apprehended on 25 October 2013 for smuggling 161.4 kg of cigarettes into Singapore through the Woodlands Checkpoint. He pleaded guilty to two charges under s 128 F of the Customs Act (Cap 70, 2004 Rev Ed) (‘the Customs Act’): the first for evading excise duty on the cigarettes, and the second for failing to pay Goods and Services Tax (‘GST’) on them. He was sentenced by the district judge (‘the District Judge’) to 24 months' imprisonment for the excise duty charge and five months' imprisonment for the GST charge. Both sentences were ordered to run concurrently from the date he was first remanded. He has appealed on the basis that the sentence is manifestly excessive.

2 I heard the appeal on 14 February 2014. Having considered the materials that were placed before me, I was troubled by three things. The first was that it was difficult to see any consistency or any clear sentencing trend in previous sentencing decisions in respect of convictions for offences of this nature. This much was evident from the table of sentencing precedents which had helpfully been prepared for this appeal by...