Public Prosecutor v Kisshahllini a/p Paramesuvaran [2016] SGHC 57

The accused is a female Malaysian who is now 24 years old. She pleaded guilty to the following charge:

The punishment prescribed by s 33(1) read with the Second Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) is a minimum of 20 years’ imprisonment and 15 strokes of the cane and a maximum of 30 years’ imprisonment or life imprisonment and 15 strokes of the cane.

Taking into consideration the fact that the accused is female and therefore not liable to caning as provided in s 325(1)(a) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), I sentenced her to 22 years’ imprisonment with effect from the date of her arrest (25 January 2014). This included the maximum 12 months’ imprisonment that I imposed in lieu of the caning pursuant to s 325(2) of the CPC.

The Statement of Facts

The accused admitted all the facts set out in the following statement of facts:

The accused’s antecedents

The accused did not have any known antecedents.

The Prosecution’s submissions on sentence

The Prosecution submitted that the accused should be sentenced to at least 22 years of imprisonment. The cases of PP v Balakrishnan A/L Sannasy, Criminal Case No. 30 of 2007 (19 November 2007, unreported) (“Balakrishnan”), PP v Sng Choong Peng, Criminal Case No. 1 of 2009 (9 January 2009, unreported) (“Sng Choong Peng”), PP v Kesavan A/L K Tayabalan, Criminal Case No. 9 of 2013 (26 June 2013, unreported) and PP v Nares Kumar A/L Segaran¸ Criminal Case No. 23 of 2012 (7 September 2012, unreported) were cited in support of the sentence. Notably, the accused persons in these cases similarly had no criminal record, had pleaded guilty and the sole or the most significant charge involved the importation or the trafficking of diamorphine, the amount of which was reduced to just below the level attracting the death penalty.

The Prosecution further submitted that the quantity of drugs imported by the accused was a significant factor. The Prosecution argued that there was a discernible trend of higher sentences being meted out to offenders who exceeded the 14.99g limit by a greater amount. In Sng Choong Peng, a sentence of 22 years’ imprisonment and 15 strokes of the cane was imposed where the actual quantity of diamorphine involved was 17.70g. In Balakrishnan, a sentence of 24 years’ imprisonment and 15 strokes of the cane was imposed where the accused had trafficked in 28.28g of diamorphine. In both these cases, the Prosecution proceeded on the charge of possession for the purposes of trafficking in not less than 14.99g of diamorphine. The Prosecution submitted that such a trend corresponded to the magnitude of harm that could be occasioned by the drug. Given that the accused in the present case had imported 18.03g of diamorphine, it was argued that her culpability fell somewhere on the scale between Sng Choong Peng and Balakrishnan, therefore warranting the imposition of at least 22 years of imprisonment.

The Prosecution also noted that pursuant to s 325(1) of the CPC, the accused, being female, could not be subject to caning. However, s 325(2) of the CPC gives the court the discretion to order, in lieu of caning, an additional term of imprisonment of up to 12 months. For instance, in PP v Yap Siew Luan [2002] SGHC 93 (“Yap Siew Luan”), a case decided before the introduction of s 325(2) of the CPC, the court added two years to the female offender’s imprisonment term for importing not less than 249.99g of methamphetamine because she was not liable to be punished with the mandatory 15 strokes of the cane.

Taking into account the need to deter future cases of drug importation, the Prosecution submitted that a total sentence of at least 22 years of imprisonment would be appropriate.

The mitigation plea

The Defence submitted that a term of 20 years’ imprisonment, which is the minimum prescribed by law, would suffice. The Defence also submitted that court should not exercise its discretion under s 325(2) of the CPC to impose a term of imprisonment in lieu of caning. In support of its position, the Defence cited the cases of PP v Lim Bee Hoon and another [2015] SGHC 45 and PP v Masoud Rahimi bin Mehrzad and another [2015] SGHC 288. In these cases, the minimum imprisonment term of 20 years was imposed for the principal offence of trafficking in not less than 14.99g of diamorphine.

The following points in mitigation were also raised:

(a) The accused pleaded guilty and had no criminal record.

(b) The accused rendered her fullest cooperation to the investigation officers, giving the full particulars of Jeremiah and John who were the ones who instructed her to collect the parcel. She also gave the registration number of the black car which she believed was following the taxi that she was in along the way to the Woodlands Checkpoint. Her mobile phone was also used by the investigation officers in their attempts to track down further suspects.

(c) The accused was a mere courier. She did not pack nor consume the drugs. Her urine specimen was tested negative for drug consumption.

(d) The accused is of a young age and committed the offence when she was only 22 years old. She had foolishly trusted Jeremiah and John and followed their instructions to carry the bundles from Malaysia to Singapore. The minimum term of 20 years is a significant and gruelling term.

The Court’s decision

Although the MDA gives the court the discretion to impose life imprisonment in the present case, I was of the view that the imposition of the maximum sentence would not be appropriate. The accused has pleaded guilty to the offence and has no criminal record. There were no aggravating factors that justified the imposition of the maximum sentence.

The accused has admitted to importing 18.03g of diamorphine. The Prosecution exercised its discretion to proceed on a non-capital charge, which is that of the unauthorised importation of not less than 10g but not more than 15g of diamorphine. Both parties agreed that the total amount of diamorphine that was actually imported was relevant to the sentence. Given that the actual amount of diamorphine that the accused admitted to importing exceeded 15g, I disagreed with the Defence that the minimum sentence of 20 years’ imprisonment would be adequate.

The accused was of a relatively young age of at the time of the offence (which was less than a month before she turned 22). She made the decision to import drugs into Singapore in exchange for money although she did not participate in the packing of the drugs and was a mere courier.

In my view, an additional 12 months of imprisonment should be imposed in lieu of caning in this case. In the ordinary case, pursuant to s 33(1) of the MDA read with the Second Schedule of the said Act, a person convicted for the unauthorised importation of not less than 10g but not more than 15g of diamorphine would be given the mandatory 15 strokes of the cane. However, because the accused is female, she was not liable for caning (as per s 325(1) of the CPC). In Yap Siew Luan, I imposed an additional two years of imprisonment on the accused person but that case must now be read subject to s 325(2) of the CPC which states that the maximum imprisonment term that may be imposed in lieu of caning is 12 months.

In respect of the present charge, the MDA prescribes a mandatory sentence of 15 strokes of the cane. That being the case, the court should consider imposing an additional imprisonment term in respect of offenders who are exempted from caning unless there are special circumstances that justify doing otherwise. The purpose is to deter individuals, to whom this exemption applies, from importing or trafficking in drugs. Anecdotal evidence suggests that caning is regarded by would-be offenders as one of the most dreaded forms of punishments. The mandatory number of strokes for the present offence is 15, which is significantly high considering that the maximum number of strokes that can be inflicted on an offender at any one time is 24. Given the severity of the mandatory punishment of 15 strokes of the cane which this offence attracts, the maximum of 12 months’ imprisonment should be added if the accused person is exempted from caning. In this case, no special circumstances exist to justify otherwise. This approach must be taken so that such exempted accused persons have less incentive to be involved in the movement of drugs.

For the above reasons, I sentenced the accused to 22 years’ imprisonment, which included the additional 12 months’ imprisonment under s 325(2) of the CPC. The imprisonment would take effect from the date of her arrest (25 January 2014).