High Court · Decided 30 January 2012

Ho Sheng Yu Garreth v Public Prosecutor

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[2012] SGHC 19Case no. Magistrate's Appeal No 88 of 2011

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V K Rajah JA:
Introduction
[1] The appellant, Mr Ho Sheng Yu Garreth (“the Appellant”), a 39-year-old male Singaporean, faced 18 charges in the District Court of engaging in a conspiracy to carry on the business of moneylending without a licence. On 29 December 2010, he pleaded guilty to six charges and agreed to the remaining 12 charges being taken into consideration for the purposes of sentencing. The six charges which he pleaded guilty to were offences under s 14(1) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the MLA 2010”), and were punishable under the same section as well as under s 14(1A), both read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). In particular, the six charges, according to the amended Statement of Facts dated 29 December 2010 (“the Statement of Facts”), expressly stated that the Appellant had “abetted [Ku Teck Eng] and [Lee Kim Hock] by engaging in a conspiracy with them to carry on the business of [unlicensed] moneylending”. The Appellant was convicted accordingly.
[2] This was the second time that the Appellant was convicted of unlicensed moneylending. On 29 December 2008, the Appellant had been convicted of two charges of unlicensed moneylending under s 8(1)(b) of the Moneylenders Act (Cap 188, 1985 Rev Ed) (“the MLA 1985”), punishable under s 8(1)(i) of the MLA 1985 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 revised edition of the Penal Code”). It should be noted that the MLA 1985 was later repealed and re-enacted as the Moneylenders Act 2008 (Act 31 of 2008) (“the MLA 2008”), which was in turn amended to become the MLA 2010.
[3] In view of the Appellant’s previous moneylending offences, the Prosecution submitted that he was a repeat offender and was thus subject to the enhanced penalties (relating to fines and imprisonment) under s 14(1)(b)(ii) of the MLA 2010 (see Public Prosecutor v Ho Sheng Yu Garreth [2011] SGDC 125 (“the GD”) at [3]). The Prosecution, however, stopped short of seeking an enhanced sentence in respect of caning, which was available under s 14(1A)(b) of the MLA 2010. The District Judge (“the DJ”) accepted the Prosecution’s submission that the Appellant was a repeat offender for the purposes of s 14(1)(b)(ii) of the MLA 2010 and accordingly meted out a total sentence of 60 months’ imprisonment, six strokes of the cane and a fine of $480,000 (in default, 24 months’ imprisonment) (see the GD at [8]). Dissatisfied with the DJ’s decision on sentencing, the Appellant initiated this appeal against his sentence.
[4] At the hearing of the appeal, the preliminary issue (which was also the central issue) was whether the Appellant was liable for enhanced punishment under s 14(1)(b)(ii) of the MLA 2010 owing to his prior convictions under s 8(1)(b) of the MLA 1985. I decided that issue in the affirmative and did not disturb the custodial sentence imposed by the DJ. Nonetheless, I also thought it appropriate to halve the Appellant’s sentences in respect of the fines and the caning as I considered the lower court’s sentences manifestly excessive in the prevailing circumstances. I now give the detailed reasons for my decision. As these grounds are fairly lengthy, for ease of reference, I set out here an outline of the scheme adopted herein:
(1) Background facts (see [5]–[9] below)
a) The present convictions (see [10]–[13] below)
b) The previous convictions (see [14]–[15] below)
(2) The decision below (see [16]–[20] below)
(3) The preliminary issue (see [21] below)
a) The statutory provisions (see [22]–[25] below)
b) The Appellant’s submissions (see [26]–[29] below)
c) The Prosecution’s submissions (see [30]–[33] below)
d) The interpretational issues (see [34] below)
e) Determination of the interpretational issues (see [35] below)
i. Whether the repeal of s 8(1)(b) of the MLA 1985, in and of itself, meant that convictions made under it could not be taken into account as prior offences for the purposes of s 14(1)(b)(ii) of the MLA 2010 (see [36]–[42] below)
ii. Whether s 14(1)(b)(ii) of the MLA 2010 ought to be construed to take into account convictions under s 8(1)(b) of the MLA 1985 as prior offences
1. An issue of construction (see [43]–[45] below)
2. Whether the offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010 (see [46]–[54] below)
3. Whether the moneylending offences under s 8(1)(b) of the MLA 1985 are the same as the offences described by s 14(1) of the MLA 2010 (see [74] below)
4. Whether Parliament intended that convictions for moneylending offences under s 8(1)(b) of the MLA 1985 should count as prior convictions for the purposes of s 14(1)(b)(ii) of the MLA 2010
iii. Whether treating the Appellant’s present offences as repeat offences under the MLA 2010 would contravene Art 11(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) (see [105]–[112] below)
iv. Summary and determination of the preliminary issue (see [113]–[120] below)
(4) Reduction of the Appellant’s sentence in respect of fines and caning (see [121] below)
a) Fines (see [122]–[131] below)
b) Caning (see [132]–[134] below)
c) Imprisonment (see [135]–[136] below)
(5) Observation (see [137]–[138] below)
(6) Conclusion (see [139] below)
Background facts
[5] The Appellant was arrested on 4 September 2010 at the void deck of Block 624 Yishun Ring Road. With him were three accomplices: Ku Teck Eng (“B2”), Lee Kim Hock (“B3”) and Tan Cheng Huat Melvin (“B4”). Each of the accomplices was prosecuted in separate criminal proceedings. As those proceedings have no direct relevance to this appeal, I shall not elaborate upon them.
[6] The facts of the case admitted to by the Appellant are contained in the Statement of Facts tendered in the District Court proceedings below. According to the Statement of Facts, B2 and B3 started an unlicensed moneylending business together in or around September 2009. It was agreed between them that B3 was to provide a capital sum of $20,000 to finance the business, which was to be run by B2.
[7] Sometime in November 2009, B2 recruited B4 to assist in the unlicensed moneylending business in return for 30% of the profits made from the business (the remaining 70% of the profits were to be split equally between B2 and B3). B4’s role was to canvass for borrowers and to issue loans to them at an interest rate of 20%. In order to keep track of their dealings, B2 and B4 each maintained a set of identical records comprising the debtors’ particulars, details of the loans issued and the repayments received. B2 and B4 met up once in two days to compare and update their respective records. Once a week, B3 met B2 to inspect the records so as to be kept abreast of the profits made.
[8] It was only later in April 2010 that the Appellant came into the picture. He was introduced by B4 to B2, who learnt that the Appellant was working as a runner for an unlicensed moneylender known as “Sam”. Subsequently, in around July 2010, B2 discovered that B4 had been dishonestly using fictitious particulars to siphon money away from the unlicensed moneylending business. As a result, B2 recruited the Appellant to take B4’s place in around August 2010 on terms that the Appellant would receive 30% of the profits made from the business. Accordingly, the Appellant assumed B4’s role of canvassing for borrowers, issuing loans at the interest rate of 20% as well as collecting repayments from debtors. The Appellant also took over the records maintained by B4 and ceased working for “Sam”. Significantly, the Appellant was later introduced by B2 to B3 as a new partner in their unlicensed moneylending business.
[9] At the point of the Appellant’s arrest, the amount of loans in circulation was estimated to be around $41,000, with a pool of about 45 debtors. This sum of money represented the profits made from the unlicensed moneylending business. By the time B4 left the unlicensed moneylending business, he had collected about $5,000 as his share of the profits. B2 collected a sum of about $5,000 as his share. B3 recovered his capital sum of $20,000 sometime in May 2010 and made a profit of about $12,000 from the unlicensed moneylending business. As for the Appellant, he received just $600 as his share of the profits (see [124] below).
The present convictions
[10] Of the six charges which the Appellant pleaded guilty to, three (viz, the first, second and fifth charges) were for issuing loans in furtherance of a conspiracy to carry on the business of unlicensed moneylending, and three (viz, the eighth, eleventh and twelfth charges) were for collecting repayments in consequence of that conspiracy. The first charge (for issuing a loan in furtherance of a conspiracy to carry on the business of unlicensed moneylending) read as follows:
The second and fifth charges were identically worded save for differences immaterial to the present appeal, such as in the Appellant’s aliases, the locations at which the loans were issued and the names of the borrowers specified.
[11] The eighth charge (for collecting repayment of a loan in consequence of a conspiracy to carry on the business of unlicensed moneylending) read as follows:
[12] Again, the eleventh and twelfth charges were identically worded save for differences that were immaterial to the present appeal, such as in the Appellant’s aliases, the sums of money collected, the locations at which the collections took place and the names of the borrowers specified.
[13] As can be seen, all the present charges referred to the Appellant’s previous convictions for unlicensed moneylending under s 8(1)(b) of the MLA 1985 on 29 December 2008.
The previous convictions
[14] The record showed that the Appellant had previously been convicted of two charges of abetting (by intentionally aiding) an offence under s 8(1)(b) of the MLA 1985 (specifically, the offence of carrying on an unlicensed moneylending business) by handing over sums of money to a runner for an unlicensed moneylending syndicate. The two charges of which the Appellant was convicted were identically worded save for the locations where the offences were committed and the sums of money handed over. I set the first of these charges out in full as follows:
[15] The Appellant was sentenced to five months’ imprisonment for each of the two previous charges, with the imprisonment terms ordered to be served concurrently.
The decision below
[16] In sentencing the Appellant, the DJ agreed with the Prosecution that a deterrent sentence was called for because the Appellant was carrying on an illegal moneylending business for profit (see the GD at [5]). He noted further that this was a “highly organised syndicated illegal moneylending operation which charged [a] very high interest rate to the debtors” (see the GD at [7(e)]). Although the DJ considered the Appellant’s mitigation plea and his prompt plea of guilt, he observed that in cases of illegal moneylending, the overriding principle of sentencing was “clearly based on deterrence” (see the GD at [7(a)]).
[17] The DJ also took into account the prevalence of illegal moneylending activities in Singapore in recent times (see the GD at [7(b)]). In addition, he considered that these activities, which were generally well planned and difficult to detect (see the GD at [7(c)]), affected public safety and caused public fear and disquiet (see the GD at [7(d)]).
[18] The DJ further referred to the parliamentary debates on 21 November 2005 during the second reading of the Moneylenders (Amendment) Bill 2005 (Bill 28 of 2005), observing that Parliament had “clearly stated its zero tolerance policy against illegal moneylending activities” (see the GD at [7(f)]).
[19] Considering all the circumstances, the DJ was of the view that a clear message must be sent to illegal moneylending business operators that a deterrent sentence would be imposed for moneylending offences. He further stated that the sentence in the Appellant’s case must deter both the offender (ie, the Appellant) and potential offenders. The DJ also made clear his awareness that any deterrent sentence must be tempered by proportionality in relation to the severity of the offence as well as the offender’s culpability (see the GD at [8]).
[20] Accordingly, the DJ sentenced the Appellant to a fine of $80,000 (in default, four months’ imprisonment), 20 months’ imprisonment and one stroke of the cane for each of the six charges proceeded on. The imprisonment sentences for three of the charges were ordered to run consecutively, giving a total sentence of 60 months’ imprisonment, a fine of $480,000 (in default, 24 months’ imprisonment) and six strokes of the cane (see the GD at [8]).
The preliminary issue
[21] The central plank of the Appellant’s submissions was an imaginative argument that he was a first offender under the MLA 2010 and should not be liable for enhanced punishment under s 14(1)(b)(ii) of the MLA 2010. This in turn raised the issue of whether the Appellant was liable for enhanced punishment under s 14(1)(b)(ii) of the MLA 2010 on account of his previous convictions under s 8(1)(b) of the MLA 1985. I dealt with this as a preliminary issue because had the Appellant succeeded on this front, then the maximum imprisonment sentence for his offences would have been four years (see s 14(1)(b)(i) of the MLA 2010) instead of seven years (see s 14(1)(b)(ii) of the MLA 2010). That, in itself, would have been a prima facie justification to recalibrate his custodial sentence downwards significantly. Therefore, I thought it sensible to first determine the applicable maximum imprisonment sentence for the Appellant’s offences before considering the remainder of the submissions on his behalf, which went towards determining an appropriate total sentence in his case.
The statutory provisions
[22] Before going further, it is necessary to set out the relevant statutory provisions. As mentioned earlier, the Appellant was previously convicted under s 8(1)(b) of the MLA 1985, and was punished under s 8(1)(i) of the MLA 1985 read with s 109 of the 1985 revised edition of the Penal Code. Section 8(1) of the MLA 1985 (as it stood when the Appellant committed his earlier moneylending offences in November 2008) was worded as follows:
[23] In contrast, the present appeal concerned the Appellant’s more recent conduct in contravention of s 5(1) of the MLA 2010, which constituted offences (and were thus punishable) under ss 14(1) and 14(1A) of the MLA 2010 read with s 109 of the Penal Code. The relevant provisions of the MLA 2010, as they stood at the time of the Appellant’s present offences, are as follows:
[24] As can be seen, ss 14(1)(b)(ii) and 14(1A)(b) of the MLA 2010 provide for enhanced sentences when a person is convicted of a “second or subsequent offence”. It should be noted that the present appeal pertained only to s 14(1)(b)(ii) of the MLA 2010 because, as stated above at [3], the Prosecution did not seek an enhanced sentence in respect of caning. Nevertheless, I should add that there is no reason why my holdings regarding s 14(1)(b)(ii) of the MLA 2010 should not have applied similarly in relation to s 14(1A)(b) of the MLA 2010 had that provision been in issue as well.
[25] Finally, s 109 of the Penal Code provides as follows:
The Appellant’s submissions
[26] Mr S K Kumar (“Mr Kumar”), counsel for the Appellant, vigorously asserted that the DJ erred in treating the Appellant as a repeat offender under the MLA 2010. First, Mr Kumar submitted that s 8(1)(b) of the MLA 1985, under which the Appellant was previously convicted, had been repealed. Second, he argued that the word “offence” in s 14(1)(b)(ii) of the MLA 2010 must precisely refer only to an offence defined by s 14(1) of the MLA 2010, viz, the offence of contravening (or assisting in the contravention of) s 5(1) of the MLA 2010. He further submitted that such offence was different from the offence of unlicensed moneylending under s 8(1)(b) of the MLA 1985 in two ways.
[27] The first difference was that the punishment for a first offender under s 14(1)(b)(i) of the MLA 2010 was plainly heavier than the corresponding punishment under s 8(1)(i) of the MLA 1985. In this regard, Mr Kumar also suggested that even if the court treated the Appellant as a first offender under the MLA 2010, it would be free to take his prior convictions into account as aggravating factors and impose a slightly higher punishment.
[28] The second difference (according to Mr Kumar) lay in the fact that s 14(1) of the MLA 2010 created the new offence of assisting in the carrying on of the business of unlicensed moneylending. Therefore, s 14(1) of the MLA 2010 described two offences (viz, the principal offence of carrying on the business of unlicensed moneylending and the offence of assisting in that principal offence) and not one. In contrast, s 8(1)(b) of the MLA 1985 only described the principal offence of carrying on the business of unlicensed moneylending. Mr Kumar submitted that while the Appellant’s previous offences under s 8(1)(b) of the MLA 1985 were for abetting the carrying on of an unlicensed moneylending business, the Appellant’s present offences were in the nature of assisting in the carrying on of an unlicensed moneylending business. These offences, Mr Kumar maintained, were altogether different from the Appellant’s previous offences.
[29] Third, Mr Kumar argued that if Parliament had intended the provisions for enhanced punishment under the MLA 2010 to take into account previous offences committed under the MLA 1985, then the MLA 2010 would have specifically provided for it. Finally, Mr Kumar submitted that treating the Appellant as a repeat offender for the purposes of s 14(1)(b)(ii) of the MLA 2010 on account of his prior convictions under s 8(1)(b) of the MLA 1985 would contravene Art 11(1) of the Constitution, which provides as follows:
The Prosecution’s submissions
[31] Mr Edwin San (“Mr San”) for the Prosecution submitted, first, that the Appellant’s convictions under the MLA 1985 did not cease to exist on account of the purported “repeal” of that Act. Second, Mr San argued that Parliament could not have intended the repeal of the MLA 1985 to “[wipe] the slate clean” for offenders convicted of offences under that Act. Third, Mr San submitted that the offence described by s 14(1) of the MLA 2010 was substantively the same as that under s 8(1)(b) of the MLA 1985 since both provisions criminalised, inter alia, the carrying on of the business of moneylending without a licence. On that point, he emphasised that there had been no change to the constituent elements of the offence.
[31] Fourth, Mr San also tried to rely on s 7E of the ROCA, which deals with the consequences of criminal records becoming or being treated as spent, to show that Parliament’s intention was for convictions under the MLA 1985 to be taken into account for the purposes of court proceedings pursuant to the MLA 2010. In particular, Mr San drew attention to ss 7E(2)(b) and 7E(2)(c) of the ROCA as well as the relevant debates in Parliament to show that although the ROCA provided for an offender’s previous conviction to be treated as spent under certain circumstances, Parliament did not intend this to amount to an expunging of the offender’s criminal record “for purposes of court proceedings” [emphasis in original omitted]. Accordingly, Mr San argued, given Parliament’s reluctance to expunge an offender’s criminal records wholly (even for minor crimes), Parliament could not have intended an offender’s previous conviction to be disregarded only because that previous conviction lay under legislation which had since been repealed.
[32] Fifth, Mr San cited s 16(1)(d) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”) to support his argument that the repeal of the MLA 1985 did not affect the punishment in respect of an offence committed under that Act. Finally, Mr San submitted that the absence of transitional and savings provisions in the MLA 2010 did not prevent the court from considering previous convictions under the MLA 1985 when determining whether an offender’s present offences under the MLA 2010 counted as “second or subsequent” offences for the purposes of s 14(1)(b)(ii) of the MLA 2010.
[33] The gist of Mr San’s submissions was that the repeal of the MLA 1985 and its simultaneous reincarnation in the form of the MLA 2008 must be regarded as “a continuation and affirmation of the statute in uninterrupted operation”.
The interpretational issues
[34] In essence, the submissions made by both sides centred on the following three key interpretational issues:
(a) whether the repeal of s 8(1)(b) of the MLA 1985, in and of itself, meant that convictions made under it could not be taken into account as prior offences for the purposes of s 14(1)(b)(ii) of the MLA 2010;
(b) whether s 14(1)(b)(ii) of the MLA 2010 ought to be construed to take into account convictions under s 8(1)(b) of the MLA 1985 as prior offences; and
(c) whether treating the Appellant’s present offences as repeat offences under s 14(1)(b)(ii) of the MLA 2010 would contravene Art 11(1) of the Constitution.
Determination of the interpretational issues
[35] Before I deal with the parties’ arguments, I ought to acknowledge the assistance which I received from the submissions made by both Mr Kumar and Mr San. I also found the submissions made by the amicus curiae, Mr Kenneth Lim Tao Chung (“Mr Lim”) from Allen & Gledhill LLP, helpful. Mr Lim was appointed under the Supreme Court’s Young Amicus Curiae scheme to address the preliminary issue at hand, viz, whether the Appellant had been correctly held to be liable for enhanced punishment under s 14(1)(b)(ii) of the MLA 2010. Mr Lim’s submissions set out with clarity the applicable law on the relevant issues. Also, for the avoidance of doubt, I should add that the terms “interpretation” and “construction” and their derivatives have been used interchangeably in these grounds.
Whether the repeal of s 8(1)(b) of the MLA 1985, in and of itself, meant that convictions made under it could not be taken into account as prior offences for the purposes of s 14(1)(b)(ii) of the MLA 2010
[36] I begin by dealing briefly with the threshold issue of whether the Appellant could succeed on the preliminary issue in this appeal simply because s 8(1)(b) of the MLA 1985, the provision under which he was previously convicted, had been repealed.
[37] Mr Kumar submitted that since the Appellant’s prior convictions were under s 8(1)(b) of the MLA 1985, which had been repealed, the Appellant could not be considered a repeat offender for the purposes of the MLA 2010. Mr Kumar’s submission was principally founded on the preamble of the MLA 2008, which reads as follows:
[38] The Court of Appeal considered a similar argument in the case of Public Prosecutor v Tan Teck Hin [1992] 1 SLR(R) 672 (“Tan Teck Hin”). The respondent in that case was convicted of a drink driving charge under s 67(1) of the Road Traffic Act (Cap 276, 1985 Rev Ed) (“the RTA”). He had a previous conviction under the same subsection of the RTA. However, in between his two convictions, the version of s 67(1) in force at the time of his first conviction (“the repealed s 67(1) RTA”) was repealed by the Road Traffic (Amendment) Act 1990 (Act 7 of 1990) and re-enacted to give a new version of s 67(1) (“the re-enacted s 67(1) RTA”), which raised the existing penalties for both first and repeat offenders.
[39] The Prosecution reserved to the Court of Appeal the question of whether the respondent should be treated as a repeat offender for the purposes of the re-enacted s 67(1) RTA. The respondent’s counsel, in contending that the question should be answered in the negative, argued (inter alia) that the fact that the repealed s 67(1) RTA had been repealed meant that the offence under it had ceased to exist. Therefore, an offence under the repealed s 67(1) RTA could not count as a prior offence for the purposes of the re-enacted s 67(1) RTA (see Tan Teck Hin at [17]–[18]). The Court of Appeal unequivocally disagreed with that proposition and answered the question reserved by the Prosecution in the affirmative; ie, it held that the respondent was a repeat offender for the purposes of the re-enacted s 67(1) RTA. In its view (see Tan Teck Hin at [26]), there was no magic in the use of the word “repeal”, and the fact that the repealed s 67(1) RTA no longer had force did not assist the court in construing the re-enacted s 67(1) RTA. The Court of Appeal further held (see Tan Teck Hin at [33]):
[40] Both Mr San and Mr Lim rightly drew to my attention s 16(1) of the IA, the relevant parts of which are as follows:
Unfortunately for Mr Kumar, this appears to lend support to the Prosecution’s contention that the repeal of s 8(1)(b) of the MLA 1985 did not affect the continuing existence of the fact of the Appellant’s previous convictions under that provision.
[41] Further, I also pointed out to Mr Kumar that s 2(1) of the IA expressly defined “repeal” in the following non-exhaustive manner:
Plainly, the word “repeal” is an etymological chameleon that takes colour from its context. It seems to me that “replace” is the correct meaning to be ascribed to “repeal” in the present context. Since the MLA 2008 simply “replaced” and re-enacted (see the preamble reproduced above at [37]) the MLA 1985, there was no break in the continuum between the legislative regime under the MLA 1985 and that under the MLA 2008 (which was later amended and revised to become the MLA 2010). As such, there is little force in the proposition that an offence under s 8(1)(b) of the MLA 1985 cannot be taken into account as a prior offence for the purposes of s 14(1)(b)(ii) of the MLA 2010 simply because s 8(1)(b) of the MLA 1985 has been repealed.
[42] For the reasons outlined above, it is clear in the present case that the fact that s 8(1)(b) of the MLA 1985 has been repealed is in itself of little significance. As Mr San rightly submitted, such repeal does not have the effect of wiping the slate clean for those previously convicted under s 8(1)(b) of the MLA 1985. Instead, as alluded to above at [39], the question depends on the proper construction of s 14(1)(b)(ii) of the MLA 2010, to which I now turn.
Whether s 14(1)(b)(ii) of the MLA 2010 ought to be construed to take into account convictions under s 8(1)(b) of the MLA 1985 as prior offences
(1) An issue of construction
[43] In Tan Teck Hin, the Court of Appeal, having dismissed the notion that that the word “repeal” had any significance in itself, clarified that the central issue was really one of construction of the re-enacted s 67(1) RTA (see Tan Teck Hin at [34]):
[44] The Court of Appeal went on to resolve that question of construction by having regard to, inter alia, Parliament’s intention. Indeed, legislative intention is now the cornerstone of statutory interpretation in the Singapore context as this is statutorily mandated by s 9A of the IA, which was introduced by Parliament via the Interpretation (Amendment) Act 1993 (Act 11 of 1993) (see further below at [55]–[56]; in this regard, it should be noted that Tan Teck Hin was decided before s 9A of the IA was enacted). After comparing the repealed s 67(1) RTA and the re-enacted s 67(1) RTA, the Court of Appeal found that Parliament intended convictions under the repealed s 67(1) RTA to count as prior convictions for the purposes of the re-enacted s 67(1) RTA (see Tan Teck Hin at [35]). Accordingly, it answered the question reserved by the Prosecution in the affirmative (see above at [39]).
[45] In the same vein, the present issue of whether the Appellant’s convictions under s 8(1)(b) of the MLA 1985 could properly be taken into account for the purposes of s 14(1)(b)(ii) of the MLA 2010 is one of construction of the latter provision.
(2) Whether the offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010
[46] Before drawing s 8(1)(b) of the MLA 1985 into the picture, I move first to address an issue pertaining solely to s 14(1) of the MLA 2010. Section 14(1)(b)(ii) of the MLA 2010 refers to a “second or subsequent offence” without explaining what constitutes a first offence. However, having regard to the two-part structure of s 14(1)(b) of the MLA 2010 and given that s 14(1)(b)(i) of the MLA 2010 stipulates the punishment for what must be a first offence under s 14(1) of the MLA 2010, the first offence which s 14(1)(b)(ii) of the MLA 2010 contemplates must be an offence described by s 14(1) of the MLA 2010. As stated above at [28], Mr Kumar pointed out in his submissions that s 14(1) of the MLA 2010 encompasses not one, but two offences: that of contravening s 5(1) of the MLA 2010 and that of assisting in the contravention of s 5(1) of the MLA 2010.
[47] It is obvious that in the absence of clear statutory provision to the contrary, a subsequent offence can only be considered a repeat offence if it is the same as the prior offence; otherwise, the two offences would be different and the subsequent offence would not be a repeat offence. Mr Kumar’s observation therefore raised the question of whether the offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010.
[48] Mr Kumar helpfully drew my attention to the South Australian Supreme Court case of Bartlett v D’Rozario [1971] SASR 88 (“Bartlett”). That case concerned s 47 of the Road Traffic Act 1961–1967 (“the Aust RTA”), the relevant parts of which were as follows:
[49] One of the questions raised in Bartlett was whether a conviction for a breach of s 47(1)(a) of the Aust RTA should be treated as a conviction for a second or subsequent offence when there had been a previous conviction (within five years) for a breach of s 47(1)(b) of the Aust RTA (see Bartlett at 89). Bray CJ answered that question in the negative, primarily on the basis that the statute was ambiguous and thus had to be resolved in favour of the citizen (see Bartlett at 93–94):
[50] Another reason for Bray CJ’s decision was s 165 of the Aust RTA (see Bartlett at 93):
I should note here that there is no equivalent provision to s 165 of the Aust RTA in the MLA 2010.
[51] Pertinently, our High Court took a contrary view on a similar issue in Teo Kwee Chuan v Public Prosecutor [1993] 3 SLR(R) 289 (“Teo Kwee Chuan”), which involved drink driving under the same provision as that which was in issue in Tan Teck Hin, viz, the re-enacted s 67(1) RTA (see above at [38]–[39]). The appellant in Teo Kwee Chuan had a previous conviction for “driving under the influence of drink/drugs” (see Teo Kwee Chuan at [4]) contrary to s 29(1) of the Road Traffic Act (Cap 92, 1970 Rev Ed, 1973 Reprint). The main issue was whether the appellant should have been treated as a repeat offender vis-à-vis his later offence under the re-enacted s 67(1) RTA. However, I note in particular Yong Pung How CJ’s views on the issue of whether driving and attempting to drive under the influence of drink were separate offences such that a prior conviction for one would not count as a prior conviction for the other (see Teo Kwee Chuan at [23]):
[52] I make three observations regarding Teo Kwee Chuan. First, it is not clear why, in the first place, the appellant’s counsel raised the issue of whether driving and attempting to drive under the influence of drink were separate offences since it appeared from the charges, as summarised in the judgment, that the appellant’s prior and subsequent offences both involved actual drink driving (as opposed to an attempt to engage in the same). Therefore, Yong CJ’s holding as set out above is obiter. Second, it is not clear whether Bartlett was brought to the attention of Yong CJ as it was not referred to in the court’s grounds. However, I do not suggest that Yong CJ’s views on this issue would have been different had Bartlett been cited to him (assuming that it had not). Third, I note that the two offences in issue in Bartlett were in two separate statutory limbs (viz, ss 47(1)(a) and 47(1)(b) of the Aust RTA) whereas the two offences in Teo Kwee Chuan were not, but I do not think Bartlett can be distinguished solely on that basis.
[53] In any case, as Australian law has evolved, it is quite possible that Bartlett might be decided differently by an Australian court sitting today. Bray CJ decided Bartlett on the basis that the particular statutory provision in issue was genuinely ambiguous and “must be resolved in the manner most favourable to the citizen if doubt still remain[ed] after the application of the proper canons of construction” [emphasis added] (see Bartlett at 94 (also reproduced above at [49])). It is not insignificant that the High Court of Australia has since held that the rule of interpretation applied by Bray CJ in Bartlett is one of “last resort” (per Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 (“Beckwith”) at 576). More recently, the Full Court of the South Australian Supreme Court has also tried to confine that rule of interpretation to ambiguities as to whether an offence is created or not (per Layton J in Police v Whitehouse (2005) 92 SASR 81 at [52]):
[54] Pertinently, Layton J in fact distinguished Bartlett on the basis that it concerned the issue of whether or not an offence had been committed, rather than whether a previous conviction could be considered when convicting an offender for committing the same offence (see Police v Whitehouse at [55]):
With respect, I do not think Bartlett can be satisfactorily distinguished on the basis stated by Layton J since it did in fact concern whether a previous conviction could be considered when convicting an offender for committing the same offence (see [49] above).
(A) Purposive interpretation as the cornerstone of statutory interpretation
[55] In my view, there is no need in the present case to resort (as Bray CJ did in Bartlett (see above at [49])) to what I have previously termed the “strict construction rule” (see Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 (“Low Kok Heng”) at [30]–[31]), viz, the rule that ambiguous penal provisions must be construed in favour of the accused person. In Low Kok Heng, I considered the strict construction rule against the backdrop of s 9A of the IA in the context of construing penal provisions (see Low Kok Heng at [30]–[57]). I concluded that s 9A of the IA mandates that the rule of purposive interpretation trumps all other common law principles of interpretation, including the strict construction rule (see Low Kok Heng at [41] and [56]–[57]):
[56] The rule of purposive interpretation entails that a statute must be interpreted “in order to promote the underlying purpose behind the legislation” (see Singapore Parliamentary Debates, Official Report (26 February 1993) vol 60 at col 517 (per Prof S Jayakumar (“Prof Jayakumar”), Minister for Law)). Section 9A of the IA highlights the importance of doing so in the following terms:
[57] In the present case, I do not think that s 14(1)(b)(ii) of the MLA 2010 remains ambiguous after applying the rule of purposive interpretation, notwithstanding Mr Kumar’s breezy attempt to import the common law strict construction rule into the context. I turn now to consider the purpose of the legislation criminalising unlicensed moneylending in Singapore.
(B) Legislative history of the offence of unlicensed moneylending
[58] The offence of unlicensed moneylending can be traced back to s 8(b) of the Moneylenders Ordinance 1959 (No 58 of 1959) (“the MLO 1959”), which came into operation on 11 September 1959. The said provision was substantially similar in structure and language to s 8(1) of the MLA 1985, and read as follows:
[59] Section 8 of the 1970 revised edition of the Moneylenders Act (viz, the Moneylenders Act (Cap 220, 1970 Rev Ed)) retained the structure and language of s 8 of the MLO 1959, but was later amended in 1975 to increase the maximum fines for both first and repeat offenders from $1,000 to $5,000. The then Minister for Social Affairs, Encik Othman bin Wok, explained the rationale behind the increased penalties during the second reading of the Moneylenders (Amendment) Bill 1975 (Bill 24 of 1975) as follows (see Singapore Parliamentary Debates, Official Report (29 July 1975) vol 34 at col 1133):
[60] The next revised edition of our moneylending statute was the MLA 1985. In 1993, the MLA 1985 was amended to provide for minimum fines of $10,000 and $20,000 for first and repeat offenders respectively, and to raise the maximum fines for first and repeat offenders to $100,000 and $200,000 respectively. During the second reading of the Moneylenders (Amendment) Bill 1993 (Bill 16 of 1993), the then Minister for Law, Prof Jayakumar, explained that the purpose of these amendments was to send a strong message that illegal moneylending would not be tolerated (see Singapore Parliamentary Debates, Official Report (28 May 1993) vol 61 at cols 294–295):
[61] In 2005, the MLA 1985 was amended again to double, in respect of first offenders, the maximum imprisonment term (from one year to two years) and the sentencing range for fines (from the range of $10,000 to $100,000 to the range of $20,000 to $200,000, the same as for repeat offenders). For repeat offenders, imprisonment was made mandatory and the maximum imprisonment term was increased from 12 months to five years. This version of the MLA 1985 was in force when the Appellant committed his previous moneylending offences in November 2008 (see the provisions set out above at [22]). When the then Senior Minister of State for Law, Assoc Prof Ho Peng Kee (“Assoc Prof Ho”), proposed the aforesaid amendments at the second reading of the Moneylenders (Amendment) Bill 2005 (Bill 28 of 2005), he observed the increase in unlicensed moneylending cases and reiterated the need to send a strong signal of zero tolerance for unlicensed moneylending activities as follows (see Singapore Parliamentary Debates, Official Report (21 November 2005) vol 80 at cols 1831–1834):
[62] Next, as stated above at [2], the MLA 1985 was repealed and re-enacted as the MLA 2008. This was undertaken pursuant to comprehensive changes made to the MLA 1985 following a holistic review of that Act, which, at the time, was considered to have become outdated (see the speech by the then Senior Minister of State for Law, Assoc Prof Ho, during the second reading of the Moneylenders Bill 2008 (Bill 33 of 2008) in Singapore Parliamentary Debates, Official Report (18 November 2008) vol 85 at cols 1001–1007; see also my observations in City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR(R) 733 at [47]–[50]).
[63] Significantly, the moneylending offences under s 8(1) of the MLA 1985 (under the heading “Offences”) were later split between ss 14 and 15 of the MLA 2008 (under the respective headings “Unlicensed moneylending” and “Other offences under this Part”). Further, while s 8(1) of the MLA 1985 provided for both the offence of unlicensed moneylending (via, specifically, s 8(1)(b) of the MLA 1985) as well as its punishment under a single subsection (viz, s 8(1) of the MLA 1985), the MLA 2008 did not. Rather, the MLA 2008 prohibited unlicensed moneylending via s 5(1), and separately provided that the contravention or the assistance in the contravention of s 5(1) was an offence and was punishable under s 14(1).
[64] Pertinently, s 14(1) of the MLA 2008 expressly made it an offence to assist in carrying on the business of unlicensed moneylending (see s 14(1) read with s 5(1) of the MLA 2008). In contrast, prior to the enactment of the MLA 2008, s 8(1)(b) of the MLA 1985 only provided for the principal offence of unlicensed moneylending. Under the statutory regime set out in the MLA 1985, if a person assisted in the principal offence of unlicensed moneylending, he would have been charged (as the Appellant was in 2008) with the abetment (by intentional aiding) of unlicensed moneylending under s 8(1)(b) of the MLA 1985 (read with s 109 of the 1985 revised edition of the Penal Code).
[65] Despite the significant changes introduced in the MLA 2008, the penalties for first and repeat offenders in respect of unlicensed moneylending remained the same as before. However, in 2010, the MLA 2008 was amended to increase the penalties dramatically. Both the punishment of fine and that of imprisonment were made mandatory for first as well as repeat offenders. The sentencing range for fines for both first and repeat offenders was increased to between $30,000 and $300,000 (cf the previous range of between $20,000 and $200,000). The maximum imprisonment term for first offenders was doubled from two to four years, while the maximum imprisonment term for repeat offenders was increased from five to seven years. Most significantly, caning was introduced as a sentencing option, capped at six strokes for first offenders and 12 strokes for repeat offenders.
[66] During the second reading of the Moneylenders (Amendment) Bill 2009 (Bill 23 of 2009) (“the Moneylenders Bill 2009”), the then Senior Minister of State for Law, Assoc Prof Ho, explained the tougher penalties and reiterated the need to send a strong message of zero tolerance for all unlicensed moneylending activities as follows (see Singapore Parliamentary Debates, Official Report (12 January 2010) vol 86 (“Singapore Parliamentary Debates vol 86”) at cols 2051 and 2060–2061):
The MLA 2008 (as amended in 2010) was later revised to become the MLA 2010, which preserved the penalties discussed above.
[67] The purpose of moneylending legislation was also explicated in the Court of Appeal case of Donald McArthy Trading Pte Ltd and others v Pankaj s/o Dhirajlal (trading as TopBottom Impex) [2007] 2 SLR(R) 321, where Chan Sek Keong CJ explained that the primary objective of the MLA 1985 was to protect poor individuals from unscrupulous unlicensed moneylenders (at [6]):
I have no doubt that this salutary social objective survived the repeal of the MLA 1985, and applies both to its re-enactment in the form of the MLA 2008 and the revision of the MLA 2008 to, in turn, the MLA 2010.
[68] As can be seen from the markedly robust increases in the penalties for moneylending offences over the years as outlined at [58]–[66] above, the rising scourge of unlicensed moneylending has repeatedly prompted Parliament to toughen its stance against this particular criminal activity over the years. Plainly, Parliament has set its face implacably against this pernicious malaise.
(C) The offences of carrying on the business of unlicensed moneylending and assisting in the same under s 14(1) of the MLA 2010 are the same in the context of s 14(1)(b)(ii) of the MLA 2010
[69] Taking into account the unambiguous statutory genesis of the MLA, I return to the issue set out at the beginning of this section (see [46] above), viz, whether carrying on the business of unlicensed moneylending and assisting in the same (respectively, contravening and assisting in the contravention of s 5(1) of the MLA 2010) are indeed two separate offences such that a prior conviction for one would not count as a prior conviction for the other. I begin by noting that in Bartlett (religiously cited by Mr Kumar), Bray CJ had in fact repressed misgivings about his eventual decision that a previous conviction for a breach of s 47(1)(b) of the Aust RTA did not count for the purposes of determining whether a later conviction for a breach of s 47(1)(a) of that Act amounted to a second or subsequent offence (see Bartlett at 93):
[70] In the present context, I think it is quite clear that assisting in the carrying on of the business of unlicensed moneylending is a lesser offence than actually carrying on the business of unlicensed moneylending. That said, if carrying on the business of unlicensed moneylending does not count as a prior conviction for assistance of the same and vice versa, then the second of two convictions for assisting in unlicensed moneylending would be punishable with a higher maximum imprisonment sentence (of seven years, as opposed to four years for a first offender) than in the case of:
(a) a conviction for assisting in unlicensed moneylending after a conviction for actually carrying on unlicensed moneylending; and
(b) a conviction for actually carrying on unlicensed moneylending after a conviction for assisting in unlicensed moneylending.
[71] Surely, the repeat offender who is convicted of the principal offence of carrying on the business of unlicensed moneylending, regardless of whether his earlier conviction was for that same principal offence or for assisting in carrying on an unlicensed moneylending business, is more deserving of the maximum sentence of seven years’ imprisonment than the repeat offender who has never gone beyond assisting in carrying on the business of unlicensed moneylending to actually carrying on such business himself or herself. In my view, if s 14(1) of the MLA 2010 is construed such that the offences of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business are not regarded as the same in the context of s 14(1)(b)(ii), this would not merely “seem odd” (see Bartlett at 93). It would in fact be “manifestly … unreasonable” within the meaning of s 9A(2)(b)(ii) of the IA (see above at [56]).
[72] I also note that during the second reading of the Moneylenders Bill 2009, the then Senior Minister of State for Law, Assoc Prof Ho, emphasised that anyone who contributed to an unlicensed moneylending operation would also face the law’s wrath and that even assistants would be liable to the same penalties (see Singapore Parliamentary Debates vol 86 at col 2059):
The last sentence in the above quote is particularly noteworthy. Those who have a secondary role in unlicensed moneylending activities are deemed to have “assisted or abetted” the same (see Singapore Parliamentary Debates vol 86 at col 2059) and are liable to “the same penalties” as the principal offenders (see likewise Singapore Parliamentary Debates vol 86 at col 2059). Such “assisting” conduct should be viewed through exactly the same lenses, at least in the context of s 14(1)(b)(ii) of the MLA 2010, rather than be semantically micro-analysed as being conceptually different.
[73] For the reasons outlined above, I consider that Parliament’s intention is not to distinguish principal offenders from assistant offenders when it comes to determining whether one is a repeat offender vis-à-vis the offence of unlicensed moneylending. Therefore, I interpret s 14(1)(b)(ii) of the MLA 2010 to mean that regardless of whether an offender was previously convicted of actually carrying on the business of unlicensed moneylending or merely assisting in the same under s 14(1) of the MLA 2010, he is to be considered a second or subsequent offender for the purposes of s 14(1)(b)(ii) of the MLA 2010 upon his next conviction for either actually carrying on the business of unlicensed moneylending or merely assisting in the same. In other words, the offences of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business under s 14(1) of the MLA 2010 should be treated as the same in the context of s 14(1)(b)(ii) of the MLA 2010.
(3) Whether the moneylending offences under s 8(1)(b) of the MLA 1985 are the same as the offences described by s 14(1) of the MLA 2010
[74] I have held above (at [73]) that the offences of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business under s 14(1) of the MLA 2010 should be treated as the same in the context of s 14(1)(b)(ii) of the MLA 2010 for the purposes of determining whether a later offence is a “second or subsequent offence”. Extending the reasoning (see above at [47]) that a subsequent offence can only be considered a repeat offence if it is the same as the prior offence, unlicensed moneylending offences under s 8(1)(b) of the MLA 1985 may be prior offences for the purposes of s 14(1)(b)(ii) of the MLA 2010 only if they are the same as either of the two above-mentioned offences under s 14(1) of the MLA 2010.
(A) Different penalties for first offenders
[75] As stated above at [27], Mr Kumar repeatedly pointed out that the offence of unlicensed moneylending under s 8(1)(b) of the MLA 1985 was different from that under s 14(1) of the MLA 2010 because the punishment for a first offender under s 14(1)(b)(i) of the MLA 2010 was heavier than the corresponding punishment under s 8(1)(i) of the MLA 1985.
[76] Mr Kumar’s submission in this regard was based on the argument that the Court of Appeal in Tan Teck Hin (see above at [38]–[39]) had in fact misapplied the Canadian authority of Campbell v The King (1949) 95 CCC 63 (“Campbell”). In coming to its decision in Tan Teck Hin, the Court of Appeal had adopted the decision in Campbell. In particular, the Court of Appeal held in Tan Teck Hin at [39]–[41]:
[77] Mr Kumar submitted that the Court of Appeal might have decided Tan Teck Hin differently if the following paragraph from Campbell had been brought to its attention (see Campbell at 65–66):
Therefore, Mr Kumar argued that for Campbell to apply, the punishment for a first offender under the new Act had to be the same as the corresponding punishment under the old Act. The corollary of this argument is that Tan Teck Hin was wrongly decided since the re-enacted s 67(1) RTA provided for more severe penalties for first offenders than the repealed s 67(1) RTA (see below at [89]–[90]).
[78] I did not accept Mr Kumar’s argument. First, it is not clear that Campbell itself would have been decided differently if the punishment for a first offence had been increased after the Excise Act 1934, c 52 (Can) was repealed and re-enacted. Indeed, the paragraph which preceded the passage quoted by Mr Kumar (see above at [77]) read as follows (see Campbell at 65):
To my mind, the phrase “substantially the same statutory provisions” in the aforesaid principle considered in Campbell does not require the penalties for first offenders under the old Act to be exactly the same as the corresponding penalties under the new Act in order for offences under the old Act to be considered as prior offences for the purposes of the new Act.
[79] Further, I do not think that Tan Teck Hin would have been decided differently even if the passage from Campbell reproduced at [77] above had been drawn to the Court of Appeal’s attention (and here, I am only assuming that that had in fact not been done). Tan Teck Hin was decided by construing the re-enacted s 67(1) RTA in accordance with Parliament’s intention (see Tan Teck Hin at [34]–[35]):
[80] As seen above, the Court of Appeal in Tan Teck Hin observed (at [7]) that after the repeal and re-enactment of s 67(1) of the RTA, first offenders became subject to a minimum fine. It noted in the same paragraph that the penalty had become “drastically enhanced” for repeat offenders. Considering the changes in the punishment for persons convicted under s 67(1) of the RTA, the Court of Appeal had no doubt that Parliament intended to enhance the punishment for persons found guilty of driving while under the influence of alcohol or drugs (see [79] above). Of central relevance in Tan Teck Hin was Parliament’s intention to see that repeat drink drivers were “treated with the required degree of seriousness by the courts” (see Tan Teck Hin at [35]). This was entirely consistent with the raising of penalties for (inter alia) first offenders. Therefore, I do not think that the Court of Appeal’s decision in Tan Teck Hin would have turned on whether the penalties for first offenders under the re-enacted s 67(1) RTA had been made more severe than the corresponding penalties under the repealed s 67(1) RTA.
[81] Returning to Campbell, I note that the Supreme Court of Canada has in fact approved the application of Campbell in a situation where the new legislation in question provided for increased penalties for a first offender as well. In the Northwest Territories Court of Appeal case of Regina v Johnston [1977] 2 WWR 613 (“Johnston”), the offender was convicted of impaired driving under s 236(1) of the Criminal Code, RSC 1970, c C-34 (Can) as re-enacted by the Criminal Law Amendment Act 1974-75-76, c 93 (Can). He had previously been convicted under a previous version of the same section, which read as follows (see Johnston at 614):
In between the offender’s first and second convictions, that section was repealed and substituted with the following (see Johnston at 614):
[82] The Northwest Territories Court of Appeal held that the judge in the court below had applied Campbell correctly (see Johnston at 618–619 per Clement JA, delivering the judgment of the court):
Notably, the quotation from Re Green [1936] 2 DLR 153 cited at 618–619 of Johnston was the same as that cited with approval by our Court of Appeal in Tan Teck Hin (at [38]).
[83] Most significantly, the Northwest Territories Court of Appeal also dismissed the same argument that Mr Kumar made in the present appeal, viz, that the offences in the old and the new versions of the statutory provision in question were different because the new version provided for more severe penalties for first offenders. In Johnston, the Northwest Territories Court of Appeal held (at 620):
[84] The appeal against the Northwest Territories Court of Appeal’s decision in Johnston was summarily dismissed by the Supreme Court of Canada, which delivered a brief oral judgment stating its unanimous approval of the Northwest Territories Court of Appeal’s conclusion for the reasons that it gave (see Johnston v The Queen [1978] 2 WWR 478).
[85] Finally, I also note that the fact that the new version of a statute increased the penalty for a first offender did not trouble the English Court of Criminal Appeal in a similar case. In The King v Frederick Austin [1913] 1 KB 551 (“Austin”), the offender was convicted of living on the earnings of prostitution and was deemed a rogue and vagabond within the meaning of the Vagrancy Act 1898 (c 39) (UK). He had three previous convictions for similar offences. In between his previous convictions and the conviction which was in issue in Austin, the Criminal Law Amendment Act 1912 (c 20) (UK) was passed to increase the penalty for a first offender from a maximum of three months’ imprisonment to a maximum of six months’ imprisonment with hard labour. In addition, the same amendment Act provided that on conviction on indictment for a subsequent offence, an offender could be whipped in addition to being imprisoned. Phillimore J held that in order to justify a sentence of whipping, it was not necessary that an offender should have had a previous conviction since the enactment of the amendment Act; neither was it necessary for the offender’s previous conviction to have been on indictment (see Austin at 555).
[86] Having carefully considered Tan Teck Hin as well as the cases of Campbell, Johnston and Austin discussed above, I could not accept Mr Kumar’s argument that the offence of unlicensed moneylending under s 8(1)(b) of the MLA 1985 was different from that under s 14(1) of the MLA 2010 because the punishment for a first offender under s 14(1)(b)(i) of the MLA 2010 was heftier than the corresponding punishment under s 8(1)(i) of the MLA 1985.
[87] For completeness, I also deal with Mr Kumar’s related argument that it was simply not fair to punish the Appellant as a repeat offender under the MLA 2010 when the punishment for a first offender under the MLA 2010 was already stiffer than that provided for in the MLA 1985 (see above at [27]). With respect, I did not see the logic of this argument. That the punishment for a first offender was stiffer under the MLA 2010 was irrelevant to the Appellant if he were correctly considered to be a repeat offender under the MLA 2010, which was the preliminary issue at hand in this appeal. As for Mr Kumar’s suggestion that the court could impose a slightly higher punishment on account of the Appellant’s prior convictions under the MLA 1985 even if it were to treat him as a first offender under the MLA 2010 (see above at [27]), this would neither be proper nor necessary if the Appellant were rightly identified as a second or subsequent offender under the MLA 2010.
(B) Different wording and structure
[88] The offence of unlicensed moneylending is set out differently under the MLA 2010 as compared to under the MLA 1985. This is primarily due to the changes introduced when the MLA 1985 was repealed and re-enacted as the MLA 2008 (see above at [63]). While s 8(1) of the MLA 1985 provided for both the offence of unlicensed moneylending and the punishment for it, the MLA 2008 prohibited unlicensed moneylending under s 5(1), and separately provided that the contravention or the assistance in the contravention of s 5(1) was an offence and was punishable under s 14(1). The MLA 2010, which the Appellant’s present offences fall under, proscribes unlicensed moneylending in much the same way as the MLA 2008, save that the existing penalties have been enhanced and the additional punishment of caning has been made available under s 14(1A) of the MLA 2010 (see above at [65]).
[89] As the offence of unlicensed moneylending is now set out differently under the MLA 2010, this case is a first of sorts. In the previous cases dealing with the point of law raised by the preliminary issue presently under consideration, the new version of the statute in question had largely (if not entirely) preserved the way in which the offence was set out in the previous version of the statute. For example, in Tan Teck Hin, the repealed s 67(1) RTA read as follows (see Tan Teck Hin at [3]):
[90] The re-enacted s 67(1) RTA read as follows (see Tan Teck Hin at [4]):
As can be seen, although the re-enacted s 67(1) RTA provided for more severe punishment for both first and repeat offenders, that part of the re-enacted s 67(1) RTA which set out the offence was exactly the same as the corresponding part of the repealed s 67(1) RTA.
[91] This was the same situation as that in Public Prosecutor v Mohd Yusoff bin Jalil [1994] 3 SLR(R) 895 (“Jalil”), where s 8(a) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the MDA 1985”) entirely preserved the wording of the offence of possession under s 6(a) of the Misuse of Drugs Act 1973 (Act 5 of 1973) (“the MDA 1973”), but provided for stricter punishment for second and subsequent offenders. Yong CJ held that the respondent’s conviction in 1980 under s 6(a) of the MDA 1973 subsisted as a “previous conviction” [emphasis in original] (see Jalil at [3]) for the same offence that later became the offence under s 8(a) of the MDA 1985.
[92] In contrast, in the case of Public Prosecutor v Chen Chih Sheng and another appeal [1999] 1 SLR(R) 182 (“Chen Chih Sheng”), there was a substantive change in the wording providing for the offence in question. This case is particularly instructive. There, a restaurant’s employment of a foreign worker without having obtained a valid work permit was attributable to the default of the offender, who was the managing director of the restaurant. Such employment was an offence under the Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed) as amended by the Employment of Foreign Workers (Amendment) Act 1995 (Act 37 of 1995) (“the amended EFWA 1991”). The offender had a previous conviction pursuant to similar provisions in the pre-amended version of the same Act (“the original EFWA 1991”). The Prosecution submitted that the offender’s conviction under the original EFWA 1991 meant that his conviction under the amended EFWA 1991 was a second conviction for the purposes of the latter Act. Therefore, the Prosecution argued, the offender was subject to mandatory imprisonment.
[93] In coming to his decision, Yong CJ compared a series of matching provisions in the original EFWA 1991 and the amended EFWA 1991. To illustrate my point, I need only discuss his comparison of s 5(6) of the original EFWA 1991 and s 16D of the amended EFWA 1991. Both provisions provided that an officer of a company would be guilty of the offence of employing a foreign worker without a valid work permit if the same offence, as committed by his company, was proved to be attributable to him. Section 5(6) of the original EFWA 1991 read as follows:
Section 16D of the amended EFWA 1991 read:
[94] In respect of the aforesaid provisions, Yong CJ held (see Chen Chih Sheng at [46]):
[95] Having dealt with and compared the other matching provisions of the original EFWA 1991 and the amended EFWA 1991, Yong CJ concluded as follows (see Chen Chih Sheng at [47]):
[96] In my view, Chen Chih Sheng is sound authority for the proposition that the test for whether an offence provided for under the previous version of a statutory provision is the same as the offence provided for under the new version of that statutory provision is whether the same facts which would support a conviction under the previous version would also sustain a conviction under the new version. In short, only the ingredients of the offence need be the same.
[97] In the present case, it is clear that the facts supporting a conviction for carrying on the business of unlicensed moneylending under s 8(1)(b) of the MLA 1985 would also support a conviction for carrying on the business of unlicensed moneylending in contravention of s 5(1) of the MLA 2010, which is an offence under s 14(1) of the MLA 2010. Further, it is also clear that the facts supporting a conviction for the abetment (by intentional aiding) of carrying on the business of unlicensed moneylending under s 8(1)(b) of the MLA 1985 would also support a conviction for assisting in the carrying on of the business of unlicensed moneylending, which is also a contravention of s 5(1) of the MLA 2010 and an offence under s 14(1) of the MLA 2010.
[98] Therefore, for the purposes of s 14(1)(b)(ii) of the MLA 2010, the two aforementioned offences under s 8(1)(b) of the MLA 1985 are the same as the offences under s 14(1) of the MLA 2010 of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business (respectively, contravening and assisting in the contravention of s 5(1) of the MLA 2010).
(4) Whether Parliament intended that convictions for moneylending offences under s 8(1)(b) of the MLA 1985 should count as prior convictions for the purposes of s 14(1)(b)(ii) of the MLA 2010
(A) Absence of transitional and savings provisions
[99] I shall now deal with Mr Kumar’s submission that if it were Parliament’s intention for prior convictions for unlicensed moneylending under s 8(1)(b) of the MLA 1985 to count as prior convictions for the purposes of s 14(1) of the MLA 2010, then Parliament would have provided specifically for it. In this regard, Mr Kumar referred to s 5 of the Employment of Foreign Manpower Act (Cap 91A, 1997 Rev Ed) (as amended by the Employment of Foreign Workers (Amendment) Act 2007 (Act 30 of 2007)), the salient portions of which provide as follows:
[100] I noted that the MLA 2010 specifically provides for transitional and savings provisions under s 38. However, none of those provisions deal with the actual issue at hand. Nonetheless, I accepted Mr San’s and Mr Lim’s arguments that the absence of transitional and savings provisions is of little consequence to the present analysis. The following passages from F A R Bennion, Bennion on Statutory Interpretation: A Code (LexisNexis, 5th Ed, 2008) (at pp 314 and 725–726) are illuminating:
[101] In my view, the absence of transitional and savings provisions providing that prior convictions for unlicensed moneylending under s 8(1)(b) of the MLA 1985 should count as prior convictions for the purposes of s 14(1)(b)(ii) of the MLA 2010 is far from conclusive in indicating that Parliament’s intention was for it not to be so. Rather, in the absence of such provisions, it is for the court to give effect to s 14(1)(b)(ii) of the MLA 2010 as it considers Parliament to have intended.
(B) To ignore prior convictions for unlicensed moneylending (and the abetting by intentional aiding thereof) under s 8(1)(b) of the MLA 1985 would defeat the legislative intention
[102] I have already traced the legislative history of the MLA 2010 (at [58]–[66] above) and concluded (at [68] above) that the markedly robust increases in the penalties for unlicensed moneylending over the years indicate that Parliament has set its face implacably against this societal problem. As stated above at [98], the offences under s 8(1)(b) of the MLA 1985 of carrying on the business of unlicensed moneylending and abetting (by intentionally aiding) the carrying on of such business are the same as the offences under s 14(1) of the MLA 2010 of carrying on the business of unlicensed moneylending and assisting in the carrying on of such business (respectively, contravening and assisting in the contravention of s 5(1) of the MLA 2010). What is different in the MLA 2010 is the increased penalties for both first and repeat offenders in respect of these offences. In particular, the higher maximum imprisonment term provided for repeat offenders under s 14(1)(b)(ii) of the MLA 2010 as compared to first offenders shows Parliament’s clear intention to punish repeat offenders more severely than first offenders.
[103] In my view, it would entirely defeat the legislative intention if the courts were to ignore prior convictions for unlicensed moneylending (and the abetting by intentional aiding thereof) under s 8(1)(b) of the MLA 1985 when considering whether an offender should be punished as a repeat offender under s 14(1)(b)(ii) of the MLA 2010. To ignore such prior convictions would be to “[wipe] the slate clean” for all offenders who have been convicted of offences under s 8(1)(b) of the MLA 1985. I agreed that this would be an absurd result in the face of Parliament’s untiring refrain of wanting to send a strong signal of zero tolerance for unlicensed moneylending activities.
(C) The ROCA
[104] Given my ruling at [103] above, Mr San’s submission based on s 7E of the ROCA (see above at [31]) was quite unnecessary. However, for completeness, I will deal with it briefly. Section 7E(2)(c) of the ROCA provides that in the context of court proceedings, a person’s criminal records will not be considered spent and can be considered for (inter alia) sentencing purposes. Mr San argued that given Parliament’s reluctance to expunge an offender’s criminal records wholly, it could not have intended that an offender’s previous conviction was to be disregarded only because that previous conviction was under a repealed Act. With respect, I did not find this argument particularly helpful. It was as weak as it was broad. Whether or not a previous conviction under a repealed Act should be regarded as a previous conviction for the purposes of the replacement Act depends on Parliament’s intent regarding the specific statutory provision in question, which intent is to be ascertained by taking into account, inter alia, the considerations which I have discussed in coming to my conclusion at [103] above.
Whether treating the Appellant’s present offences as repeat offences under the MLA 2010 would contravene Art 11(1) of the Constitution
[105] Notwithstanding my views on Parliament’s intention (see above at [103]), the Appellant could nonetheless still have succeeded in the present appeal if he had succeeded on his alternative submission that to treat his convictions under s 8(1)(b) of the MLA 1985 as prior convictions for the purposes of s 14(1)(b)(ii) of the MLA 2010 would be contrary to Art 11(1) of the Constitution. To recap, Art 11(1) of the Constitution (reproduced earlier at [29] above) reads as follows:
[106] If the Appellant’s alternative submission were correct, he would succeed in his appeal because Parliament’s powers are ultimately limited by the Constitution. In this regard, Kevin Y L Tan & Thio Li-ann, Constitutional Law in Malaysia and Singapore (LexisNexis, 3rd Ed, 2010) states this trite principle thus (at p 353):
[107] Mr Kumar argued that the second limb of Art 11(1) of the Constitution prohibited treating the Appellant as a repeat offender for the purposes of s 14(1)(b)(ii) of the MLA 2010. This was because the word “offence” in s 14(1)(b)(ii) of the MLA 2010 referred to an offence under s 14(1) of the MLA 2010, and not an offence under s 8(1)(b) of the MLA 1985. Therefore, since the Appellant was being convicted under s 14(1) of the MLA 2010 for the first time, to treat him as a repeat offender for the purposes of s 14(1)(b)(ii) of the MLA 2010 was to apply s 14(1)(b)(ii) to him retrospectively.
[108] With respect, this was, on closer analysis, no more than a tired rehash of Mr Kumar’s argument that s 14(1)(b)(ii) of the MLA 2010 should not be construed to include convictions for unlicensed moneylending under s 8(1)(b) of the MLA 1985 for the purposes of determining whether the Appellant was a repeat offender. Since I have rejected Mr Kumar’s argument on that point (see above at [103]), his argument in relation to Art 11(1) of the Constitution necessarily fails as well.
[109] The effect of the second limb of Art 11(1) of the Constitution is that no one may be punished more severely for an offence than was legally provided for when the offence was committed. Criminal laws guide human behaviour by threatening the imposition of certain penalties for certain misconduct. It would not be fair to raise the stakes after the misconduct is committed. The more severe penalties would also achieve nothing in the way of general deterrence by then.

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Ho Sheng Yu Garreth v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

(1) Background facts (see [5]–[9] below)

(2) The decision below (see [16]–[20] below)

(3) The preliminary issue (see [21] below)

1. An issue of construction (see [43]–[45] below)

(4) Reduction of the Appellant’s sentence in respect of fines and caning (see [121] below)

(5) Observation (see [137]–[138] below)

(6) Conclusion (see [139] below)

Background facts

The present convictions

The previous convictions

The decision below

The preliminary issue

The statutory provisions

The Appellant’s submissions

The Prosecution’s submissions

The interpretational issues

Determination of the interpretational issues

(1) An issue of construction

(A) Purposive interpretation as the cornerstone of statutory interpretation

(B) Legislative history of the offence of unlicensed moneylending

(A) Different penalties for first offenders

(B) Different wording and structure

(A) Absence of transitional and savings provisions

(C) The ROCA