Case Summaries

Poh Boon Kiat v Public Prosecutor

25 September 2014

Media Summary

Poh Boon Kiat v Public Prosecutor
Magistrate’s Appeal No 36 of 2014

Decision of the High Court (Coram: Sundaresh Menon CJ)

Background

  1. The appellant was the mastermind of an online vice ring which was unravelled by the police within 10 days of operations commencing. At the time of his arrest, the appellant employed five Thai prostitutes who serviced customers out of two rented premises. This was the appellant’s first brush with the law.
  2. In the District Court the appellant pleaded guilty to eight offences under the Women’s Charter (Cap 353, 2009 Rev Ed). 12 other charges were taken into consideration for the purposes of sentencing.
  3. The appellant was sentenced as follows:

    S 148(1)

    Women’s Charter Provision

    Offence

    Punishment Provision for first time offenders

    No of charges

    Imprisonment sentence

    s 140(1)(b)

    Procuring a woman for the purposes of prostitution

    An offender “shall be liable on conviction to imprisonment for a term not exceeding 5 years and shall also be liable to a fine not exceeding $10,000.”

    2

    Four months

    per charge

    s 140(1)(d)

    Receiving a woman knowing she has been procured for the purposes of prostitution

    2

    Four months

    per charge

    s 140(1)(d)

    Harbouring a woman knowing she has been procured for the purposes of prostitution

    2

    Four months

    per charge

    s 146(1)

    Living on immoral earnings

    1

    Four months

    S 148(1)

    Managing a brothel

    An offender “shall be liable on conviction to a fine not exceeding $3,000 or to imprisonment for a term not exceeding 3 years or to both.”

    1

    One month

     

  4. The District Judge stated that the starting position for the purposes of sentencing for all eight charges was a fine. However, the District Judge was satisfied that the custodial threshold had been crossed because of the aggravating factors present. The District Judge ordered three sentences to run consecutively: one charge for procuring a prostitute, the charge of living on immoral earnings and the charge of managing a brothel. As a result, the appellant was sentenced to an aggregate of nine months’ imprisonment.

     

  5. Dissatisfied, the appellant appealed against his sentence.

     

  6. Decision

  7. The High Court took the opportunity to review the sentencing benchmarks of the vice related offences which the appellant pleaded guilty to. The High Court decided that it was appropriate to revisit them for two reasons:
    1. First, the previous sentencing precedents for the procuring, harbouring, receiving and living on immoral earning offences had incorrectly assumed that the courts had the discretion to impose a fine or an imprisonment term or both for such offences. This resulted in the previous sentencing precedents adopting a fine as the starting point for the sentencing of these offences. The High Court found that, based on the legislative history and context of the punishment provisions of these offences, no such discretion existed. Although a fine was discretionary, an imprisonment term was in fact mandatory for these offences.
    2. Second, the previous sentencing precedents for vice related offences did not take into account the full range of possible sentences provided for in the statutes.

     

  8. The High Court found that, based on the revised sentencing benchmarks, the appellant ought to have received (i) an eight months’ imprisonment sentence for each procuring, receiving, harbouring and living on immoral earnings charge; and (ii) a four months’ imprisonment sentence for the charge of managing a brothel.

     

  9. The High Court also found that the District Judge ought to have only ordered the statutory minimum of two sentences to run consecutively: one for a procurement offence and the other for the offence of managing a brothel. The District Judge had therefore erred by ordering three sentences to run consecutively.

     

  10. In those circumstances, the High Court held that had the revised benchmarks been relied on, the appellant would have received an aggregate sentence of 12 months’ imprisonment. This was more than the District Judge had imposed on the appellant.

     

  11. Crucially however, the High Court accepted that it would be contrary to the legitimate expectations of the appellant to apply the revised benchmarks to his case. This was because the sentencing precedents in relation to the procuring, harbouring, receiving and living on immoral earnings offences have entrenched the proposition that an imprisonment term was discretionary for these offences. The shift in the starting point for sentencing for these offences from a fine to an imprisonment term in the revised benchmarks therefore constituted a fundamental and unforeseeable change in the law from the appellant’s perspective. Furthermore, the revised benchmarks for all the offences were, to some degree, influenced by the shift in the starting point for the procuring, harbouring, receiving and living on immoral earnings offences.

     

  12. In the circumstances, the High Court held that it would be appropriate to determine the appeal by reference to the prevailing sentencing precedents and practice. On that basis, the High Court concluded that the appellant ought to have received (i) a five months’ imprisonment sentence for each procuring, receiving, harbouring and living on immoral earnings charge; and (ii) a two months’ imprisonment sentence for the charge of managing a brothel.

     

  13. Given that only the sentence for one procurement charge and the charge of managing a brothel should run consecutively, the High Court allowed the appeal and substituted the District Judge’s decision with an imprisonment term of seven months.

     

  14. This case is significant because under the revised sentencing benchmarks, persons found guilty of procuring, receiving and harbouring prostitutes and living on immoral earnings will be punished with a term of imprisonment. Also, under the revised sentencing benchmarks, persons found guilty of vice related offences can expect the courts to utilise the entire sentencing range when determining their appropriate sentence; this may lead to stiffer sentences for each individual vice related offence than was previously the case. Finally, under the revised sentencing benchmarks, fines may be imposed to disgorge any profits earned by persons from vice related activities.

     

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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