Case Summaries

Yap Ah Lai v Public Prosecutor

15 April 2014

Media Summary

Yap Ah Lai v Public Prosecutor
Magistrate’s Appeal No 271 of 2013

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

Background

  1. The appellant was a 72-year-old Malaysian citizen who was apprehended on 25 October 2013 at the Woodlands Checkpoint for smuggling 161.4kg of contraband cigarettes into Singapore. On 28 October 2013 he pleaded guilty in the District Court to two charges under s 128F of the Customs Act: the first for evading excise duty of $56,812.80, and the second for evading Goods and Services Tax of $5,330.35.

     

  2. As the offence was one of importing more than 2kg of tobacco products he was sentenced under s 128L(4) of the Customs Act, which provides for a fine of between 15 and 20 times the duty or tax evaded, or jail for up to three years, or a combination thereof.

     

  3. The District Judge sentenced the appellant to 24 months’ imprisonment for the excise duty charge and five months’ imprisonment on the GST charge, both sentences to run concurrently for an aggregate sentence of 24 months’ imprisonment.

     

  4. The appellant appealed to the High Court against his sentence on the grounds that it was manifestly excessive.

     


  5. Decision

     

  6. The High Court allowed the appeal and reduced the sentence imposed for the excise duty charge to one of 15 months’ imprisonment, for a reduced aggregate of 15 months’ imprisonment.
  7. The High Court considered that appellate intervention was warranted in the circumstances.

     

  8. The District Judge had, in his grounds of decision, reproduced three paragraphs from another decision also issued by the same District Judge at about the same time: see [18]–[20] of Public Prosecutor v Yap Ah Lai [2013] SGDC 383, and [18]–[20] of Public Prosecutor v Kesavan V Matamuthu [2013] SGDC 403.

     

  9. Although both cases had to do with offences of cigarette smuggling their facts and circumstances were not identical.

     

  10. Second, it was wrong in principle to determine the length of a sentence of imprisonment with reference to sentences of imprisonment imposed in default of paying a fine, as the District Judge had done in this case. This was because the latter was to deter the evasion of fines and not to punish those who were genuinely unable to pay the fines. In any case, based on the sentencing precedents, there was also no consistency in the imposition of imprisonment terms.

     

  11. Finally, while the appellant had smuggled a substantial quantity of contraband cigarettes, there had been cases where a larger quantity of tobacco products had been smuggled but the offenders had received a lesser sentence, with no basis to conclude that the offenders in those cases were less culpable than the appellant.

     

  12. There was therefore a reasonable basis for concluding that the District Judge had erred in failing to fully appreciate the material that was before him, so justifying the intervention of an appellate court.

     

  13. The High Court observed that there were no sentencing benchmarks for such offences as were committed in the present case. However fines should not generally be imposed where these were beyond the means of the offender to pay. Where a term of imprisonment was to be imposed, that term should be determined, at least as a starting point, by reference to the amount or weight of tobacco products smuggled.

     

  14. The High Court therefore laid down the following sentencing benchmark as a starting point for customs offences in relation to excise duty evaded when importing more than 2kg of tobacco products, where: (a) the offender was a first time offender; (b) the offender pleaded guilty at the earliest opportunity; and (c) the offender’s role was limited to pure importation.

     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

     

  15. These were only starting points and in arriving at the final sentence the judge should then apply his mind to the circumstances of the case before him. In the present case there were no other aggravating factors.

     

  16. The appellant’s advanced age of 72 when he was arrested could in principle be considered a mitigating factor. There was no general principle that age alone warranted a moderation of the punishment to be meted out. But in certain circumstances the impact of a prison sentence could be so severe to an older offender as to be disproportionate or crushing. However the term of imprisonment in the present case was not such as to require any moderation on account of the appellant’s advanced age.

     

  17. Based on the sentencing benchmarks and the weight of tobacco products smuggled by the appellant, the appropriate sentence was one of 15 months’ imprisonment. There were no applicable aggravating factors not already taken into account and no mitigating factors that would justify any further moderation of the sentence. Such a sentence was therefore fair and proportionate in the circumstances.
    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.

     

  18. 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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