Kalaiarasi d/o Marimuthu Innasimuthu v Public Prosecutor

V K Rajah JA:

[2] This is perhaps a timely opportunity to repeat the exhortation by Chan Sek Keong CJ in an extrajudicial speech (see Chan Sek Keong CJ, Opening Address at the Yellow Ribbon Conference 2006: “Unlocking the Second Prison” (27 September 2006):

In a similar vein, Nigel Walker at p 6 of Why Punish: Theories of Punishment Reassessed (Oxford University Press, 1991) opined that justification of individual sentences is desirable:

[3] It is indisputable that sentencing must serve a “societal purpose”. Further, it is axiomatic, other than in situations necessitating mandatory fixed sentencing, that the sentence meted out must be rigorously justified by reference to settled sentencing objectives and principles as well as the facts of the particular case. I made this observation in Biplob Hossain Younus Akan and others v Public Prosecutor and another matter [2011] 3 SLR 217 (at [18]):

[4] Not unlike a decision on sentencing, a decision to prosecute must also serve a societal purpose. Not all offending conduct is subjected to prosecution, and even then, the prosecution in the exercise of its extensive discretion may selectively decide what offending conduct it proposes to sanction. It has the discretion to decide on both the nature of the charges and, in the case of repeated offending, the number of charges. This ought not to be a mechanical exercise. Rather, it should take into account all the pertinent circumstances and the overriding consideration of serving the larger good of the community. Each time before charges are preferred the prosecution too should ask of itself a not dissimilar question: why prosecute? As will be seen, this case raised legitimate concerns about how and why the decision to prefer 30 charges against the appellant was reached by those having carriage of this matter at the Insolvency and Public Trustee’s Office (“IPTO”). First, there plainly was substantial delay in prosecuting the appellant – and this delay could not be attributed to the appellant in any way. Second, to compound matters, the gravity of the appellant’s offending – in so far as the 30 charges preferred against her were concerned – was directly attributable to the delay in prosecution. Having considered the nature of the offences, the profile of the appellant as well as the entirety of the prevailing circumstances, I unhesitatingly came to the conclusion that the usual punishments of imprisonment or fines would be entirely inappropriate and granted the appellant a conditional discharge. I now set out the factual matrix of this appeal.

[5] The appellant was adjudicated a bankrupt on 7 January 2000 through Bankruptcy Order No. 3563 of 1999 together with her husband for a sum below $60,000. The appellant’s bankruptcy was a result of being unable to repay a loan facility which she had applied for, but did not benefit from, together with her now estranged husband. By virtue of s 82(1)(a) of the BA, the appellant was under an obligation to submit to the OA accounts of monies and properties once every six months or such other period as the OA may specify. Such accounts are filed using Income and Expenditure Statements (“I & E Statements”). Section 82(1) of the BA reads:

[6] After she was adjudged a bankrupt, on 15 February 2000, the appellant was furnished with bankruptcy information sheets which informed her of her statutory duty to submit her I & E Statements pursuant to s 82(1)(a) of the BA. The appellant filed her I & E Statements for the requisite periods between April 2000 and March 2002 and between October 2002 and March 2003. Pertinently, the appellant did not personally prepare the I & E Statements but relied upon her husband to do so prior to appending her signature on them. After 2003, the appellant failed to continue to submit her statements because she incorrectly assumed that her husband, with whom she had become estranged, would submit the relevant statements on her behalf (see [14] below). Just two reminders to file her I & E Statements were thereafter sent to the appellant - the first on 17 May 2003 and the second, more than seven years later, on 7 July 2010. Plainly, the appellant’s file was not being appropriately monitored by the IPTO in the interim. Further, her failure to file the relevant I & E Statements was apparently not viewed with any degree of consternation by the IPTO. This can be inferred from the fact that following the last reminder, notwithstanding her failure to file the I & E Statements for more than eight years, on 11 October 2010, the IPTO wrote to the appellant informing that her case was being reviewed for possible discharge from bankruptcy. In the same letter, the IPTO proposed that the appellant pay a sum of $5,000 to expedite her discharge from bankruptcy. The IPTO again wrote to the appellant on 17 March 2011. The contents of the letter of 17 March 2011 were identical to the letter of 11 October 2010. In response to the IPTO’s letter of 17 March 2011, the appellant in a letter dated 28 March 2011 expressed her eagerness to be discharged from bankruptcy. However, as she was unable to raise the sum of $5,000 proposed by the IPTO, the appellant offered a sum of $1,000 as the said sum was within her means. Shortly after this, without any apparent attempt to elicit her reasons for failing to file the relevant I & E Statements for such a substantial period and/ or why she was unable to raise more money to discharge her bankruptcy, 30 charges under s 82(1)(a) of the BA (as alluded to at[4] above) were abruptly preferred against the appellant.

[7] During the proceedings below, the appellant pleaded guilty to three charges under s 82(1)(a) of the BA for failing to meet her obligations under the said provision. The offences occurred during the following periods: April 2002 to September 2002; April 2003 to June 2003; and July 2003 to September 2003. An additional 27 charges under the same provision were taken into consideration for the purpose of sentencing. The 27 charges which were taken into consideration essentially pertained to the appellant having failed to file her I & E Statements from October 2003 to March 2011. Evident from the particulars of each of the 27 charges, 24 charges were preferred for every three month period (viz, OAS 000407 to 000430-MSC-2011) and three charges were preferred for every six month period (viz, OAS 000431 to 000433-MSC-2011) that the appellant did not file an I & E Statement.

[8] During the appeal, I queried the Prosecution at some length as to why there had been such a substantial lapse in time between the appellant’s commission of the first offence in 2002 and her eventual prosecution in 2011. Counsel for the Prosecution, Mr Darryl Soh (“Mr Soh”), informed the court that the IPTO does not prosecute offenders under s 82(1)(a) of the BA immediately after each infraction. This is to allow bankrupts an opportunity to file their I & E Statements and thereby rectify their earlier omission(s).However, Mr Soh also candidly acknowledged that the IPTO’s current policy (with effect from January 2010) is to prosecute such offences after three years of persistent non-compliance. Mr Soh also stated that the IPTO would usually send reminders to bankrupts during the three-year hiatus. In short, a prosecution would ordinarily only be initiated if the bankrupt persisted in defaulting despite reminders being received over a three-year period.

[9] The charges against the appellant were preferred on 27 June 2011. It was readily apparent that the nine year lapse between the appellant’s first offence and her eventual prosecution could not be justified by reference to the IPTO’s current policy of according bankrupts a reasonable opportunity to rectify lapses. Here, the appellant was charged after, and for, nine years of non-compliance with s 82(1)(a) of the BA. Significantly, only two reminders were sent to the appellant, the first on 17 May 2003 and the second, after an inexplicable hiatus, on 7 July 2010. In fact, there was absolutely no evidence on record that the 17 May 2003 reminder was even received by her. Even assuming it had been received, it was noteworthy that these reminders were more than seven years apart. After I made these observations during the hearing, Mr Soh acknowledged that “after the first reminder was given to the appellant on 17 May 2003, there was a lapse by the case officer [handling the appellant’s matter] in following up on this matter. So the prolonged failure [by the appellant] to file [her I & E Statements] was only detected in 2010, that [was] when the second reminder was sent.”

[10] While the DJ noted that the appellant was a first time offender, he was of the view that a term of imprisonment was justified on the facts. The DJ relied, in the main, on the case of Public Prosecutor v Choong Kian Haw [2002] 2 SLR(R) 997 where Yong Pung How CJ stated at [24] that fines were generally an unsuitable means for punishing bankrupts because such persons would typically be unable to pay the fines on their own accord.

[11] While acknowledging that fines may be imposed in appropriate situations (at [13] of the GD), the DJ considered (at [15] of the GD) that there were no “exceptional circumstances that warranted the imposition of a fine only or that of a nominal custodial term.” On the contrary, the DJ considered the appellant’s conduct to have aggravating features. This is evident from [17] of the GD which reads:

The DJ thus deemed the appropriate sentence to be four weeks’ imprisonment for each of the three proceeded charges. Two of the sentences were ordered to be served consecutively. The total sentence imposed by the DJ was thus eight weeks’ imprisonment. I should add that the appellant was unrepresented in the proceedings below and it did not appear from the court’s certified notes of evidence that the DJ queried either the appellant or the prosecutor why the I & E statements had not been filed for such a substantial period. I was therefore puzzled as to why the DJ referred to the appellant as having received “repeated reminders” when the facts were otherwise. It was also unclear how the DJ concluded that the appellant “had wilfully and blatantly” disregarded her statutory duty. While there was no doubt that the appellant had failed to discharge her statutory duty, it would be a stretch to say that she had done so “wilfully and blatantly”. Pertinently, on appeal, the Prosecution only characterised her conduct as “grossly negligent” (see below at [17]). It therefore seemed to me quite plain that the DJ had erroneously considered the appellant to be deserving of exemplary punishment and, as a consequence, mistakenly punished her harshly.

[12] The appellant filed an appeal against the DJ’s decision.

[13] At the commencement of the hearing, the Prosecution informed the court that one of the charges (ie, OAS 000433-MSC-2011) was erroneously preferred against the appellant. This was one of the 27 charges which were taken into consideration for the purpose of sentencing the appellant during proceedings below. The said charge was preferred against the appellant for having failed to file an I & E Statement for the period between October 2010 and March 2011. As the Prosecution had, after the hearing below, discovered that the appellant had actually fulfilled her statutory obligation pursuant to s 82(1)(a) of the BA for the relevant period, the Prosecution filed Criminal Revision No. 1 of 2012 pursuant to s 400 of the Criminal Procedure Code 2010 (Act 15 of 2010) (“CPC 2010”) seeking the exercise of this court’s revisionary powers pursuant to s 401 of the CPC 2010 to quash the order to take into consideration OAS 000433-MSC-2011 for the purpose of sentencing. By consent, I ordered that OAS 000433-MSC-2011 was not to be taken into consideration for the purpose of sentencing. I should observe that this error amplified the clear shortcomings in how this matter was inattentively processed by the IPTO and also brought into sharp focus the appellant’s lack of awareness as to what she had pleaded guilty to.

[14] The appellant was in person when she pleaded guilty to the offences at the proceedings below. On appeal, her counsel argued that she had no intention to deceive the authorities or conceal any changes to her income and expenditure. In any case, any such changes were not significant. The appellant’s counsel also pointed out that she had complied with the statutory requirements for a period of two years before she was charged. Thereafter she incorrectly assumed that her husband, with whom she had become estranged, would submit the relevant statements on her behalf.

[15] The appellant’s counsel further submitted that the appellant was not flagrant or defiant in her attitude because, as noted at [6] above, she wrote to the IPTO after she had received a second reminder to offer a settlement of $1,000.

[16] The appellant also stressed that she was a law abiding person who made an important contribution to her family and society by working as a kindergarten teacher at a People’s Action Party Community Foundation (“PCF”) kindergarten. She produced a letter from the Chairman of the relevant PCF branch, recording her achievements (see further below at [41]).

[17] The Prosecution, on the other hand, submitted that the appellant had not discharged her burden of showing exceptional circumstances that would justify a departure from the custodial norm as set out in the relevant precedents. Before I made the above observations at [9], the Prosecution also highlighted the appellant’s culpability by pointing to her prolonged non-compliance, which, it was submitted, showed that she was grossly negligent. Finally, the Prosecution submitted that the sentence imposed on the appellant was in line with sentencing precedents and could not be considered to be manifestly excessive.

[18] The facts of this case (as set out at [6]–[9] above) clearly speak for itself: the appellant was charged in court only after nine years of non-compliance with s 82(1)(a) of the BA. This aspect of the case was troubling because it appeared that the number of charges preferred against the appellant was a function of the delay in commencement of prosecutorial action. In other words, the length of delay in prosecution was directly related to the period of non-compliance with s 82(1)(a) of the BA on the part of the appellant.

[19] In Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 (“Randy”), I set out the applicable sentencing considerations where a delay in prosecution has been occasioned (at [32]–[38]):

[20] For the reasons explained below (see [41]), I took the view that the appellant’s sentence ought to be calibrated with the inordinate delay in prosecution at the forefront of considerations. I therefore asked counsel for submissions on any alternative sentencing options available on the facts which emerged in the course of the hearing.

[21] After seeking an adjournment to take instructions, Mr Soh informed me that the possible options included probation, a conditional discharge and a community sentence. Mr Soh objected, however, to an order for a conditional discharge on the ground that the appellant knew of the statutory requirements.

[22] For the reasons explained below (see [41]–[43]), I arrived at the conclusion that a conditional discharge was the appropriate sentence for this case. As there has been little critical consideration of the circumstances and factors to be borne in mind in deciding when a conditional discharge (or for that matter an absolute discharge) is appropriate, it would be useful to examine the legislative framework and the relevant case law and commentary in some detail.

[23] The source of the court’s power to order a conditional discharge lies in s 8 of the Act which provides as follows:

On a plain reading, s 8(1) of the Act requires the court to be satisfied of three matters before ordering an absolute or conditional discharge for offenders who have attained the age of 21. First, it must be inexpedient to inflict punishment. Second, a probation order must not be appropriate. In determining whether these two requirements are satisfied, s 8(1) provides that the court is to have regard to the circumstances. Third, the offence is not one for which a specified minimum sentence or mandatory minimum sentence of imprisonment or fine or caning is prescribed by law. Two circumstances in particular are underscored: the nature of the offence and the character of the offender. Section 8(1) should not, however, be read as restricting the court to only these two considerations. The word “including” in the provision makes it clear that the two specified circumstances are not exhaustive.

[24] A brief explanation of the origins of s 8 of the Act is apposite (an extensive consideration of the Act’s origins may be found in J K Canagarayar, “Probation in Singapore” (1988) 30 MLR 104 at 106; reference ought to be also be made to Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Mohammad Al-Ansari bin Basri”) at [41]–[43]). Apart from an amendment in 1993, which is not relevant for present purposes, s 8 of the Act is as it was when the Act’s predecessor, viz, the Probation of Offenders Ordinance (Ordinance No. 27 of 1951) (“the Ordinance”), was enacted in 1951 (see s 8 of the Ordinance). The proceedings of the Legislative Council during the second reading of the bill which introduced the Ordinance (ie, the Probation of Offenders Bill (S 162/1951) (“the 1951 Bill”)), reveals that it was thought that probation is suitable in cases where “neither the nature of the offence for which the offender has been convicted nor the interests of the community demand that he should be sent to prison” [emphasis added] (see Proceedings of the Second Legislative Council: Colony of Singapore (19 June 1951) (Mr C H Butterfield, Solicitor-General) at p B 126; also see Mohammad Al-Ansari bin Basri at [43]). Although these remarks were made in the context of probation orders, they are, in my view, equally relevant to absolute or conditional discharges. After all, s 5 of the Act, which confers the court with the power to order probation, is worded in a similar manner to s 8. A key difference, however, is that s 8 of the Act also requires that a probation order must not be appropriate. Hence, the two considerations identified in the proceedings of the Legislative Council are by no means exclusive in determining whether probation, conditional or absolute discharge is an appropriate sentence in a particular case.

[25] Absolute and conditional discharges are infrequently made. In fact, the authors of Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) (“Sentencing Practice”) note that there are no known cases in which an absolute discharge has been ordered (see Sentencing Practice at p 43). As for conditional discharges, the authors explain that such orders have been made in “rare instances” due to “the triviality of the offence, [the fact that] the offender is virtually blameless, the circumstances in which the offence came to be prosecuted, or matters relating to the offender” (see Sentencing Practice at p 43). There are, however, a number of unreported decisions of the Community Court in which a conditional discharge was ordered; several of these decisions involved accused persons with some form of mental illness (see Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at pp 954–955). Apart from offenders with mental illnesses, a conditional discharge has been ordered in a case involving an airline executive who used criminal force against a taxi driver (see Elena Chong, “Conditional discharge for Tiger Airways exec”, Straits Times (13 January 2009); also noted in Public Prosecutor v Mathava Arulananthan s/o Tialagasamy [2009] SGDC 171 (“Mathava Arulananthan”) at [10] and [14]). The statement of facts revealed that the Tiger Airways executive (“the accused”) had grabbed the neck of the taxi driver in the course of an argument which arose after the taxi driver told the accused that his taxi was not for hire. The accused subsequently disembarked from the taxi and boarded another taxi. He returned after he was told by the taxi driver that he had called the police. The accused waited for the police. The injuries inflicted on the taxi driver appeared to be relatively minor. The accused also offered compensation to the taxi driver and apologised to him. It should be noted that the Prosecution in that case did not object to the grant of a 12-month conditional discharge.

[26] The relative infrequency of conditional discharges does not mean that offenders or their counsel have not attempted to seek such orders. There are a number of cases at the Subordinate Courts where submissions for a conditional discharge have been rejected (see Public Prosecutor v Tang Wee Sung [2008] SGDC 262 (illegal purchase of a human organ; the court at [52] found that a conditional discharge was not warranted due to the gravity of the offence), Public Prosecutor v Andrew Bevan Jones [2008] SGDC 115 (voluntarily causing of hurt to a taxi driver; the court at [24] considered that a conditional discharge was not appropriate) and Mathava Arulananthan (entering a protected place; the court at [15] imposed a fine instead of ordering a conditional discharge because airport security was a “major national concern” and persons less knowledgeable than the accused had been convicted and punished with fines)).

[27] It would be useful to consider the approach taken by the English courts particularly since s 8 of the Act has English roots (see Comparative Table annexed to the 1951 Bill which shows that s 8 is derived from s 7 of the Criminal Justice Act 1948 (c 58) (UK)). The power of the English courts to order a conditional discharge is now found in s 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (c 6) (UK) (“the PCC(S)A”) (see Regina v Clarke (Joseph) [2010] 1 WLR 223 at [15], [27], [33] and [38] for a description of the legislative history of the equivalent UK provision). The only material differences between s 12(1) of the PCC(S)A and s 8(1) of the Act are that the former does not require the court to consider if a probation order is inappropriate and it further specifies three offences for which a conditional or absolute discharge may not be ordered.

[28] Absolute discharges are also infrequently ordered in England (see D A Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (Heinemann, 2nd Ed, 1979) (“Thomas”) at p 226 considering s 7 of the Powers of Criminal Courts Act 1973 (c 62) (UK) which, unlike the s 12 of the PCC(S)A and like s 8(1) of the Act, requires the court to consider if a probation order is inappropriate). A notable exception is R v Robert John O’Toole (1971) 55 Cr App R 206 (“O’Toole”) (noted in Thomas at p 226), which involved an ambulance driver who was convicted of driving in a manner dangerous to the public due to his involvement in a collision with another vehicle. No one was injured. The Court of Appeal (Criminal Division) quashed the sentences of a fine and an order of disqualification of 12 months imposed below and substituted it with an absolute discharge. It reasoned that there was no moral blame on the ambulance driver “who was doing his best to get to an emergency and was impeded only by a disastrous piece of driving” on the part of the other driver (at 209 of O’Toole). The Court of Appeal (Criminal Division) also considered that it had to balance the need to protect the safety of the roads against the desire not to impede the work of the drivers of ambulances and fire engines. Another case, involving similar facts also resulted in an absolute discharge (see R v Lundt-Smith [1964] 2 QB 167 at 170; cited at 209 of O’Toole).

[29] As for conditional discharges, Thomas helpfully identifies that the cases in which such orders were granted appear to fall under different categories (see Thomas at pp 227–228):

Questionable exercises of the power to order conditional discharges include Attorney General's Reference No 70. of 2003 (Alan Roy Bates) [2004] 2 Cr App R (S) 49, where Latham LJ expressed his view (at [25]) that a conditional discharge was a “lenient sentence” in a case involving an indecent assault on a child, and R v Young [1990] BCC 549 where the Court of Appeal (at 553) expressed that it had “considerable difficulty” with the sentencing judge’s decision to order a conditional discharge on a charge of managing a company as an undischarged bankrupt which the sentencing judge himself had considered to be a serious offence.

[30] I turn now to the considerations that should be borne in mind in choosing between absolute and conditional discharges.

[31] Eric Stockdale and Keith Devlin in Sentencing (Waterlow Publishers, 1987) (“Stockdale & Devlin”) at para 14.03 suggest that an absolute discharge would be appropriate in technical or trivial offences or in situations where rehabilitation is not necessary because either the offender has already been rehabilitated, or because probation or supervision is not necessary to effect rehabilitation. They suggest that a conditional discharge may be warranted where retribution or general deterrence is not necessary but yet there is a need for a “mild deterrent” (at paras 14.03–14.04):

[32] Another approach for deciding between absolute and conditional discharges may be found in Martin Wasik, “The Grant of an Absolute Discharge” (1985) 5 OJLS 211 (“Wasik”). The author, who examines several English and Canadian authorities, suggests that three factors should be considered: the triviality of the offence,the circumstances in which the offence was prosecuted, and the factors relating to the offender (Wasik at p 218). The first factor is obviously a matter of degree and would be determined, inter alia, by the “social significance” of the law contravened (Wasik at p 219). Controversial questions may arise vis-à-vis the first factor such as whether courts could be justified in maintaining a policy of ordering discharges for certain kinds of offences (Wasik at p 220). The second factor, which may overlap somewhat with the first factor, allows the court to express its disapproval at the prosecution of an offence (Wasik at p 224). An example of a situation which may call for an absolute discharge is where an offence is prosecuted a considerable time after the commission of the offence (Wasik at pp 224–225). As for the third factor, the considerations concerning the particular offender which may justify the imposition of an absolute discharge may be viewed as falling under two categories: situations where the offender has a low degree of culpability, and situations where an absolute discharge is appropriate due to “collateral matters” such as the possibility that the offender may have suffered “unofficial or indirect punishment” as a result of his offence such as a loss of employment, etc (see Wasik at pp 226–233). It seems to me that this is a useful framework to employ in assessing the appropriateness of this genre of sentencing.

[33] As provided in s 8(1) of the Act (see [23] above), having been satisfied that the offence in question is one which is not fixed by law, the overriding considerations for determining whether to order an absolute or conditional discharge are twofold. The court must consider if it is inexpedient to inflict punishment and whether probation is inappropriate. In considering these factors, the court should pay close attention to the nature of the offence and the interests which the offence seeks to protect. In addition, some of the factors that the court should consider include:

(a) the particular circumstances of the offender: for example, a relatively minor offence committed by an offender with a mental illness might warrant an order for a discharge; it is also relevant to consider the character of the offender;

(b) the particular circumstances of the offence: for example, the context in which an offence was committed (say, in a situation of an emergency) may suggest a low degree of culpability on the part of the offender; and

(c) factors independent of the offender: for example, a delay in the prosecution of an offence, may justify some form of a discharge.

[34] In deciding between the two kinds of orders, it is important to bear in mind, as Stockdale & Devlin suggests, the difference between the orders is that a conditional discharge has a “mild deterrent” component. A person under a conditional discharge who commits an offence during the operative period of the discharge is liable to be sentenced for the offence for which he received a conditional discharge as if he had just been convicted of that offence (see s 9(5) of the Act). Hence, the touchstone for determining which order is appropriate is whether the circumstances of the offence or the offender call for a superimposition of a deterrent component. Other considerations, such as those highlighted in Wasik (ie, the triviality of the offence, the circumstances of the prosecution and factors relating to the offender) may also be considered.

[35] A new regime for community-based sentencing was introduced in the CPC 2010 (see Part XVII of the CPC 2010). The rationale for these new sentencing options is explained in the introductory speech of the Minister for Law, Mr K Shanmugam, at the second reading of the Criminal Procedure Code Bill (Bill 11 of 2010) (“CPC Bill 2010”) (see Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at col 422 (K Shanmugam, Minister for Law and Second Minister for Home Affairs)):

It would be useful to also note two responses by the Minister to points raised during the debates at the second reading of the CPC Bill 2010. First, in his response to a query from a member, the Minister clarified that community-based sentences are not meant to prevent “moral stigmatisation”. The focus of community-based sentences is to “prevent the offender from being dislodged from his family, employment and society and to assist his rehabilitation” (see Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 568 (K Shanmugam, Minister for Law and Second Minister for Home Affairs)):

Second, in explaining the rationale for not introducing a regime of suspended sentences, the Minister noted that community-based sentences would generally be more appropriate in situations where other jurisdictions which allow for suspended sentences would make such orders (see Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 570):

[36] The focus of community-based sentencing is on the individual offender (see Melanie Chng, “Modernising the Criminal Justice Framework: The Criminal Procedure Code 2010” (2011) 23 SAcLJ 23 (“Chng”) at para 43). The objective is to identify and address the “root causes” of the offending behaviour (Chng at para 43). Although the focus is on the individual, community-based sentencing also promotes the interests of the public because by correcting and rehabilitating offenders, recidivism will be reduced (Chng at para 44). As the Minister explained in his response to a question by a member during the second reading of the CPC Bill 2010, community-based sentencing should not be viewed as a “softening of our stance on crimes”. The strictures imposed on the ordering of such sentences (see below at [38]) make it clear that the legislative intention is not to allow community-based sentencing in serious offences (see Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 566–568 (K Shanmugam, Minister for Law and Second Minister for Home Affairs)):

Reference may also be made to Chng at para 45, where the author opines that the eligibility criteria for community-based sentencing (see below at [38]) ensures that the need for deterrence is not unduly compromised by precluding such sentencing options in cases involving serious offences and where the offender is recalcitrant.

[37] I turn now to the types of community-based sentencing options introduced in the CPC 2010. The CPC 2010 allows for five types of community orders to be made, viz, a mandatory treatment order, a day reporting order, a community work order, a community service order and a short detention order (see s 336(1) of the CPC 2010). A helpful summary of what each of these orders entails may be found in Chng at para 41:

[38] As a starting point, it is important to bear in mind that there are statutory restrictions to making community orders (see s 337 of the CPC 2010):

The court should also consider the views and recommendations in the reports that must be prepared for some of the community orders (see, inter alia, ss 339(2) (mandatory treatment orders – report to be submitted by an appointed psychiatrist) and 341(2) (day reporting orders – report to be submitted by a day reporting officer)).

[39] Apart from these obvious considerations, the court should bear in mind that the legislative intent underlying community-based sentencing is to allow for more flexibility in balancing the various sentencing principles in individual cases. The introduction of community-based sentencing in the CPC 2010 is recognition that custodial sentences, caning or a fine may not be appropriate for all offences and/or for all offenders. The particular circumstances of the offence and the offender in question must therefore be carefully considered to determine whether rehabilitation should be given prominence in the case at hand notwithstanding any countervailing need for deterrence, retribution or prevention.

[40] There is little doubt that our courts take a serious view towards bankruptcy offences. Such an approach is essential because the bankruptcy regime requires bankrupts to comply with various provisions for its smooth operation. As the speech of the Minister for Law at the second reading of the Bankruptcy Bill in 1994 reveals, the general legislative purpose underlying the penalties provided for bankruptcy offences such as s 82(2) of the BA is to ensure that bankrupts perform those “essential legal obligations” imposed on them by the BA (see Singapore Parliamentary Debates, Official Report (25 August 1994) vol 63 (Prof S Jayakumar, Minister for Law and Minister for Foreign Affairs) at col 402; also see Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 at [82] where I quoted the relevant speech):

[41] This appeal before me, however, was a case where inordinate delay was occasioned not by the appellant, but by an oversight on the part of the prosecuting authorities. This much was acknowledged, very fairly in my view, by Mr Soh. I was also constrained to observe that the offences for which the appellant was charged could not possibly have entailed complex or lengthy investigations which could occasion inexpedient prosecution. On the contrary, the offences involved simple non-compliance with the statutory requirement of filing I & E statements. Investigations into such offences would be far from taxing. In addition, I was also persuaded that the appellant did not fit the prototype of a serial offender who deliberately broke the law in order to conceal and/or surreptitiously deal with her assets. The appellant has been employed in a kindergarten since January 2005. Her income during this period has not varied substantially (she was earning $1,200 per month in 2002 and earned $1,800 per month as at 2010). This was not disputed by the Prosecution. Finally, I also noted that the appellant’s conduct throughout the approximately nine year period of offending was representative of a hardworking and productive member of society. Her efforts were summarised in a glowing letter from her employer:

In the light of the appellant’s gainful employment, character, lack of antecedents, as well as the delay in prosecution, I found that some form of a discharge was appropriate notwithstanding the serious view that courts take towards bankruptcy offences. Unlike the DJ, I did not consider her to have “wilfully and blatantly” breached her statutory obligation to file her I & E Statements. This appeared to be an instance of inadvertent omission. Her explanation that she assumed that her estranged husband had filed the returns on her behalf appeared credible and was not disputed. I also noted that when she received the IPTO’s letter on 17 March 2011, she duly responded. I was perplexed as to why the IPTO, after offering to discharge her if she paid the sum of $5,000, had failed to respond at all to her offer and take into account her personal circumstances. Instead, her offer was unceremoniously met with 30 charges for having failed to comply with her statutory obligations under the BA for a period of approximately nine years.

[42] I did not consider that it was appropriate to make any community order under the CPC 2010. It did not strike me that rehabilitation was a particularly strong consideration in the circumstances. As mentioned above, the appellant was of demonstrably good character. The circumstances under which she committed the offences, viz, her belief that her estranged husband would file returns on her behalf, also suggested that her offending conduct was more of an inadvertent oversight than of a deliberate infraction. For the same reason, I did not think that probation was either necessary or appropriate. I also considered that a discharge was more appropriate to take into account the unjustifiable delay in prosecution.

[43] I did not, however, think that an absolute discharge was warranted. Although the delay occasioned by the IPTO’s failure to follow up on the appellant’s transgressions resulted in the sheer number of charges brought against her, the fact remained that the appellant herself did not take the initiative to ensure that she had complied with her essential legal obligations under the BA. While this was somewhat mitigated by her explanation that she assumed that her estranged husband had filed the I & E Statements on her behalf, this did not entirely exonerate her from her statutory duty. Bearing in mind all the circumstances, I considered that a conditional discharge, with its attendant “mild deterrent” component (see above at [31]), was more suitable in the circumstances.

[44] I was puzzled why so many charges were preferred against the appellant despite the fact that there had been a patent lapse by the IPTO in monitoring her case and its adoption of an internal policy in January 2010 of preferring charges immediately after the failure to file I & E Statements for three years (see [8] above). At worst, she ought to have faced charges for her alleged lapses for the three prior years. Further, if indeed the appellant’s failure to file I & E Statements was viewed as a heinous lapse meriting a stiff custodial sentence, why was the IPTO at one stage even prepared to discharge her from bankruptcy notwithstanding her known earlier lapses (see above at [6])? Regrettably, the processing of this matter was conspicuous for a number of rather obvious oversights, including the lack of foresight and insight in decision making (see above at [4] and [6]). The ostrich, few would disagree, is a worthy bird. But few would agree that it is the best source of inspiration for decision making.

[45] For all the reasons given here, I allowed the appeal and ordered that the appellant be conditionally discharged for a period of 12 months. I also ordered the appellant to file a statutory declaration within a week to confirm and itemise her income for the relevant periods and to confirm that, apart from that income, she had not received any other inheritance or other assets from other parties.