Yuen Ye Ming v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 17 April 2019
• Neutral Citation: [2019] SGHC 98
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9241 of 2018
• Published date: 27 August 2019
• Year: 2019
• Hearing Date: 05 November 2018
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: Mark Tay and Charleston Teo (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2019] SGHC 98

See Kee Oon J:

The Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) contains a number of provisions under which a repeat offender is subject to an enhanced sentencing regime. The interpretation of three of those provisions (s 33(1), s 33(4) and s 33(4A) read with the Second Schedule, collectively referred to as “the enhanced punishment provisions”) was squarely at issue in this present appeal.

I heard and dismissed this appeal on 5 November 2018. In doing so, I was conscious of the fact that the judge’s role in interpreting statutory provisions is to interpret and apply the law as enacted by Parliament. Insofar as the statutory language is clear, the judge must refrain from going beyond the text and the context of the relevant provisions. With this in mind, and having regard to the Criminal Motion (CM 1 of 2019) that the appellant filed on 22 February 2019, I set out my reasons for dismissing this appeal.

Facts

The District Judge’s Grounds of Decision can be found in Public Prosecutor v Yuen Ye Ming [2018] SGDC 229 (“the GD”). The facts are helpfully summarised at [3]–[8] of the GD.

The appellant was first arrested on 5 August 2016. He could not furnish bail and was held in remand from 6 August 2016 until he was released on bail on 20 July 2017. He faced 17 charges under the MDA and initially claimed trial to those charges (“the first set of offences”).

On 17 January 2018, the first day scheduled for trial, the appellant pleaded guilty to four charges as follows: 2nd charge (DAC-948585-2016): possession of not less than 652.66g of cannabis mixture for the purposes of trafficking on 5 August 2016, punishable under s 33(1) MDA; 3rd charge (DAC-904958-2017): possession of not less than 15.47g of methamphetamine for the purposes of trafficking on 5 August 2016, punishable under s 33(1) MDA; 8th charge (DAC-904963-2017): consumption of methamphetamine on or about 5 August 2016, punishable under s 33(1) MDA; 10th charge (DAC-904965-2017): possession of not less than 1.58g of methamphetamine on 5 August 2016, punishable under s 33(1) MDA.

The appellant admitted that he was selling drugs for profit in order to support his lavish lifestyle and pay his mounting gambling debts. The appellant also consented for a further 13 charges under the MDA to be taken into consideration for the purposes of sentencing. These charges were similarly for the possession, consumption and trafficking of various drugs.

The matter was then adjourned for submissions on sentence. On 9 February 2018, the appellant applied for an adjournment of the sentencing decision in order to spend the Chinese New Year with his family. While on court bail, the appellant reoffended and 12 additional charges under the MDA were preferred against him (“the second set of offences”). He eventually pleaded guilty on 18 July 2018 to four out of these 12 charges. The four proceeded charges were as follows: 18th charge (DAC-905974-2018): possession of 60.61g of cannabis on 20 February 2018 for the purposes of trafficking, punishable under s 33(4A)(i) MDA; 21st charge (DAC-916585-2018): possession of 1.29g of methamphetamine on 20 February 2018, punishable under s 33(1) MDA; 25th charge (DAC-916591-2018): consumption of methamphetamine on or about 20 February 2018, punishable under s 33(4) MDA; and 26th charge (DAC-916598-2018): trafficking not less than 69.74g of cannabis on 16 February 2018, punishable under s 33(4A)(i) MDA.

The Prosecution later applied for a discharge not amounting to an acquittal in respect of the 2nd charge. For present purposes, the appellant admitted to having committed 28 drug offences in total.

Decision below

For the 3rd charge, the Prosecution submitted that an appropriate term of imprisonment would be at least seven years’ imprisonment on the basis of Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha d/o Joseph”) and Loo Pei Xiang Alan v Public Prosecutor [2015] 5 SLR 500 (“Alan Loo”). The District Judge held that, considering the other 13 charges which were to be taken into consideration and the late plea of guilt, an imprisonment term of six and a half years would have been appropriate. However, a term of five years’ imprisonment was imposed to account for the fact that the appellant had been remanded for approximately 11.5 months. The District Judge took into account the one-third remission typically given to prisoners and held that a reduction of 18 months would be fair.

A term of one year’s imprisonment each was imposed for the 8th and 10th charges. These sentences were ordered to run concurrently.

The 18th charge and the 26th charge were for trafficking 60.61g and 69.74g of cannabis respectively under s 33(4A)(i) MDA. These charges carry a mandatory minimum sentence of ten years’ imprisonment and ten strokes of the cane. The District Judge adapted the framework in Public Prosecutor v Lai Teck Guan [2018] 5 SLR 852 (“Lai Teck Guan”), according to which the indicative uplift would be between five to eight years’ imprisonment from the starting sentence for first-time offenders. It was submitted on behalf of the appellant that he was not a recalcitrant offender who had not been rehabilitated or deterred by a previous period of imprisonment, unlike the offender in Lai Teck Guan. However, the District Judge held that the fact that the additional offences had been committed while the appellant was on bail was “particularly egregious”. Applying an uplift of six years from the starting point of five years and six months’ imprisonment for a first offender, the indicative sentence was therefore 11 years and six months’ imprisonment. Taking into consideration the other charges, the District Judge sentenced the appellant to 12 years’ imprisonment and 10 strokes of the cane each for the 26th and 18th charges.

The 21st charge was a repeat drug possession charge under s 33(1) MDA. The District Judge sentenced the appellant to two years’ and six months’ imprisonment, having regard to the three other repeat drug possession charges that were taken into consideration.

The 25th charge was a repeat drug consumption charge under s 33(4) MDA. The District Judge held that the mandatory minimum sentence of three years’ imprisonment was appropriate given the absence of any relevant aggravating factors.

Three sentences (relating to the 3rd, 25th and 26th charges) were ordered to run consecutively and the appellant was sentenced to a total of 20 years’ imprisonment and 24 strokes of the cane.

The parties’ cases on appeal The appellant’s case

The appellant was represented by two different sets of counsel when he pleaded guilty on 17 January 2018 and 18 July 2018 respectively. He was unrepresented in this appeal. Notwithstanding this, he filed detailed written Skeletal Arguments which ran to 23 pages. I summarise these, as well as his oral submissions, below.

The appellant submitted that the sentences imposed by the District Judge were wrong in principle as he should not have been sentenced under the enhanced punishment provisions. He therefore urged the Court to exercise its revisionary powers to amend the enhanced drug offences to offences under s 33(1) MDA.

The individual sentences were manifestly excessive

The appellant did not challenge the sentences imposed in respect of the 8th, 10th, 21st and 25th charges.¹

In respect of the 3rd charge, the appellant noted that he had been sentenced to the mandatory minimum of five years’ imprisonment and five strokes of the cane. However, he submitted that the sentence imposed was still contentious as it had been reduced from six and a half years’ imprisonment on account of the time he had spent in remand. The appellant then argued that the District Judge had not expressly placed any weight on his cooperation with the Central Narcotics Bureau (“CNB”). This was despite the fact that the appellant had allegedly offered his full cooperation to the authorities in relation to the first set of offences, which had purportedly led to the prosecution of another trafficker.² While the appellant acknowledged that the sentence imposed, being the mandatory minimum, could not be further reduced by the court, he submitted that his cooperation with the authorities should warrant a discount from either a sentence which the District Judge ordered to run consecutively, or from the global sentence.³

The appellant then submitted that the sentences imposed in respect of the 18th and 26th charges were manifestly excessive for four main reasons.

First, the appellant argued that the District Judge did not expand upon what weight his lack of antecedents ought to be given. Second, the District Judge wrongly held that a six-year uplift would be appropriate because the second set of offences was committed while the appellant was on bail. According to the appellant, the fact that these additional offences were committed after he had been convicted of the first set of offences had already rendered him liable under the enhanced punishment provisions. This resulted in an increase in the mandatory minimum imprisonment term from five to ten years. The appellant argued that this was already a far larger increase than would otherwise have been ordered for reoffending while on bail, which would ordinarily result in “a fraction of such an increase”. He therefore suggested that ordering a sentence above the enhanced mandatory minimum would be tantamount to double-counting.⁴

Third, the appellant argued that the District Judged erred in placing little mitigating weight on his plea of guilt on the basis that the appellant was caught red-handed. The appellant contended that he had spared the court time and resources by pleading guilty “at the earliest opportunity”.⁵

Fourth, the appellant submitted that he did not have profit in mind when committing the second set of offences, and had instead committed them in a state of despair, denial and...