Public Prosecutor v Rosli bin Yassin

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] This was an appeal by the Public Prosecutor (“the Appellant”) against the sentence of Rosli bin Yassin (“the Respondent”) in respect of eight charges which were imposed by the High Court in Public Prosecutor v Rosli bin Yassin [2012] SGHC 129 (“the GD”). The charges were as follows:

(a) Four charges of cheating with common intention under s 420 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”);

(b) One charge of theft under s 379 of the Penal Code;

(c) One charge of criminal breach of trust under s 406 of the Penal Code;

(d) One charge of abetment of forgery for the purpose of cheating under s 468 read with s 109 of the Penal Code; and

(e) One charge of culpable homicide not amounting to murder under s 304(a) of the Penal Code.

[2] The Respondent pleaded guilty to all eight charges, and consented to another 11 charges being taken into consideration for the purposes of sentencing.

[3] It was common ground that the Respondent had met the technical requirements for preventive detention as set out in s 12(2)(b) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”), which reads as follows:

[4] The trial judge (“the Judge”) held that the appropriate starting point was 15 years’ preventive detention. Taking into account the fact that the Respondent had spent three years in remand, the Judge sentenced the Respondent to 12 years’ preventive detention (see [69]–[76] of the GD).

[5] The Appellant appealed against the sentence meted out by the Judge on the ground that it was manifestly inadequate. At the end of the hearing before us, we unanimously allowed the appeal. We sentenced the Respondent to 20 years’ preventive detention, which is the maximum possible sentence. We now give the detailed grounds for our decision.

[6] The sole issue in this appeal was whether the 12-year sentence of preventive detention imposed by the Judge was manifestly inadequate.

[7] Let us turn, first, to the applicable legal principles.

[8] It is trite law that an appellate court has only a limited scope to intervene when reappraising sentences imposed by a court at first instance. This is because sentencing is very much a matter of discretion and requires a delicate balancing of myriad considerations which are often plainly conflicting (see, for example, the decisions of this court in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Mohammed Liton”) at [81] and Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [13]).

[9] Insofar as the applicable principles are concerned, the following observations from Mohammed Liton (at [81]–[84]) may be usefully noted:

[10] The general principles relating to preventive detention are clear, and are neatly encapsulated within the following observations of this court in Public Prosecutor v Syed Hamid bin A Kadir Alhamid [2002] 2 SLR(R) 1018 at [10]:

[11] The overarching principle is the need to protect the public (indeed, this principle is to be found in the express language of s 12(2) of the CPC itself (see above at [3])). This does not mean that the situation of the individual offender is irrelevant. However, the applicable principles in this particular regard are formulated with the public interest as the central point of reference constantly in view. Put simply, if the individual offender is such a habitual offender whose situation does not admit of the possibility of his or her reform, thus constituting a menace to the public (and this would include, but is not limited to, offences involving violence), a sentence of preventive detention would be imposed on him or her for a substantial period of time in order to protect the public. As Yong Pung How CJ put it in the Singapore High Court decision of Public Prosecutor v Wong Wing Hung [1999] 3 SLR(R) 304 (“Wong Wing Hung”) at [10], the “sentence [of preventive detention] is meant essentially for habitual offenders, who must be over the age of 30 years, whom the court considers to be beyond redemption and too recalcitrant for reformation” [emphasis added]. The court will look at the totality of the offender’s previous convictions (see the Singapore High Court decision of Tan Ngin Hai v Public Prosecutor [2001] 2 SLR(R) 152 at [7]).

[12] It is important, in this regard, to emphasise that a sentence of preventive detention is not the same as a sentence of imprisonment. As Yong Pung How CJ put it in the Singapore High Court decision of Yusoff bin Hassan and others v Public Prosecutor [1992] 2 SLR(R) 160 (“Yusoff bin Hassan”) at [11]:

[13] In a similar vein, in Wong Wing Hung, Yong Pung How CJ observed thus (at [10]):

[14] Further, in the Singapore High Court decision of Public Prosecutor v Perumal s/o Suppiah [2000] 2 SLR(R) 145, Yong Pung How CJ referred to the passage cited in the preceding paragraph, observing as follows (at [38]):

[15] In the Singapore High Court decision of Nicholas Kenneth v Public Prosecutor [2003] 1 SLR(R) 80, the learned Chief Justice again stated as follows (at [19]):

[16] Finally, in the Singapore High Court decision of Public Prosecutor v Raffi Bin Jelan and Another [2004] SGHC 120 (“Raffi Bin Jelan”), V K Rajah JC (as he then was) observed thus (at [24]):

[17] The above-stated difference between a sentence of preventive detention on the one hand and a sentence of imprisonment on the other also has, in our view, a practical significance. In particular, there is no provision equivalent to s 223 of the CPC which (in the context of a sentence of imprisonment) confers on the court concerned a discretion to, inter alia, take into account the time the accused has spent in remand. However, even under s 223 of the CPC, there is no obligation as such to do so (see the Singapore High Court decision of Chua Chuan Heng Allan v Public Prosecutor [2003] 2 SLR(R) 409 at [9]–[11] as well as Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) (“Sentencing Principles”) at para 27.141). It would appear, therefore, to be the case that there is no express statutory provision conferring on the court the discretion to take into account the time the accused has spent in remand insofar as a sentence of preventive detention is concerned. Indeed, as already emphasised above at [11], the overarching principle is to protect the public. In the circumstances, we agree with the view expressed to the effect that the sentence of preventive detention by the court is, in principle, a prospective one (see, for example, Raffi Bin Jelan at [30]). We should note, at this juncture, that, even s 223 of the CPC itself makes it clear that a sentence of imprisonment ordinarily takes effect only from the date of the order itself unless the court otherwise directs (ie for a sentence of imprisonment to take effect from an earlier date).

[18] Unfortunately, the existing case law remains unclear. For example, in the Singapore District Court decision of Public Prosecutor v Salwant Singh s/o Amer Singh and Another Case [2003] SGDC 146 (“Salwant Singh (DC)”), the following observations were made at [43]–[44] (see also Sentencing Principles at paras 29.186–29.187 which was authored by the District Judge who wrote the decision just cited):

(An appeal against the decision in Salwant Singh (DC) was allowed on the issue of sentence, but without apparent discussion of this particular issue in Public Prosecutor v Salwant Singh s/o Amer Singh [2003] 4 SLR(R) 305, except perhaps possibly at [26].)

[19] However, it seems to us that the issue as to whether the time an offender has spent in remand ought to be taken into account in the context of preventive detention is one that ought to be approached from the perspective of substance (as opposed merely to its form) and that, looked at in this light, the observations in Salwant Singh (DC) (set out in the preceding paragraph), whilst clear and persuasive, may nevertheless be a little too strict.

[20] As already emphasised several times above, the paramount focus is on the protection of the public. To reiterate, it is the court’s duty to “simply address its mind to the appropriate period of custody merited by the offences for which the offender has been convicted before it, and his criminal record” (see Yusoff bin Hassan at [11]; also cited above at [12]). Hence, although there is no statutory provision as such which confers on the court an express power to backdate a sentence of preventive detention, it is consistent with both logic, common sense as well as justice and fairness that, in considering the overall length of the sentence of preventive detention to be meted out to the offender concerned, the time the offender has spent in remand could be a possible factor which the court takes into account (cf also the observations in the Singapore High Court decision of Public Prosecutor v Rahim bin Basron [2010] 3 SLR 278, especially at [57]). However, we would observe that such a factor would probably operate in favour of the offender only in exceptional cases. Given the overarching principle to protect the public, if, in fact, the offender’s situation is an extremely serious one, then we would think that the court would not consider taking into account the time the offender has spent in remand. We think that this is likely to be the norm rather than the exception simply because, in principle, situations warranting a sentence of preventive detention are likely to be very serious to begin with. Indeed, in the most extreme situations, the court might not only disregard the time the offender has spent in remand but also sentence him or her to the maximum period of 20 years of preventive detention. However, as alluded to above, we would not rule out the exceptional situation where, whilst a sentence of preventive detention is warranted, there is nevertheless some justification for sentencing that offender to less time in preventive detention, which would, inter alia (and in substance at least), take into account the time the offender has already spent in remand. This (more general) approach is preferable in light of the fact that (as already noted) s 223 of the CPC is not, stricto sensu, applicable to sentences of preventive detention. It is also important to emphasise that there is no pat formula that can be utilised. Much would depend on the precise facts before the court, and this brings us to the very important point of application – to which our attention must now briefly turn.

[21] Whilst the general principles (considered briefly above) are relatively clear, the real difficulty lies in their application because this exercise is an intensely fact-centric one. It is, however, wholly crucial to the ultimate decision arrived at. Hence, the focus of the court must always be on all the relevant facts. In the circumstances, the relevant case law is more useful from the perspective of general principles as opposed to the resolution of the particular factual situations therein. This would be an appropriate point at which to turn to the facts of the present appeal. However, before proceeding to do so, it would be useful to set out – in summary form – the arguments of the respective parties.

[22] The Appellant argued that the 12-year period for preventive detention imposed by the Judge was manifestly inadequate. The Judge’s exercise of sentencing discretion was, it was submitted, contrary to principle. First, he placed excessive emphasis on the non-violent nature of the offences committed by the Respondent. Second, he took into account the Respondent’s period of remand in determining the duration of preventive detention, and third, he did not sufficiently consider and emphasise the sentencing imperative of prevention and protection of the public. The Judge had also erred in failing to appreciate the facts before him in that he placed insufficient weight on the following: first, the Respondent’s long and continuous history of crime and his lack of responsiveness to his previous punishments; second, the Respondent’s high risk of re-offending as well as the threat that he continues to pose to the public; third, the number, nature and circumstances of the offences that the Respondent was convicted of; fourth, the degree of premeditation involved in the numerous offences; fifth, the numerous charges that were taken into consideration for sentencing; and sixth, the Respondent’s lack of remorse.

[23] The Respondent, on the other hand, argued that the sentence of 12 years’ preventive detention was not manifestly inadequate. This is because the Respondent is no more a menace than other offenders who were sentenced to less than 12 years’ preventive detention. The maximum duration of preventive detention is generally meted out in cases involving offenders who had either been engaged in violent criminal activities, claimed trial, possessed a very long history of antecedents, or had alcohol or drug addictions. Further, the Judge was correct in exercising his discretion to give a discount to the period of preventive detention.

[24] The Respondent has a long list of property-related criminal antecedents. Previous punishments – including a prior eight-year term of preventive detention – have had little (if any) rehabilitative effect on him. The Respondent has been in and out of prison since 1991. Indeed, since his first conviction in 1991, the Respondent has been unable to stay out of prison for periods of more than ten months. Put simply, there is a clear pattern of chronic recidivism. Extrapolating this into the future, it would appear that there is a high probability of re-offending on the part of the Respondent.

[25] Indeed, in a psychiatric report dated 27 February 2012 which was procured by the Defence on behalf of the Respondent, it was opined that the Respondent was at a high risk of re-offending because of mental retardation, lack of occupational skills, lack of social support, lack of family support, impulsive behaviour and lack of remorse.

[26] The pre-sentencing report authored by a Medical Officer from Changi Complex dated 23 December 2011 was largely in agreement with the psychiatric report referred to in the preceding paragraph. The pre-sentencing report (though not conclusive in and of itself) found that the Respondent had a 49% to 60% probability of recidivism within two years of release. The Respondent had criminal thinking styles and attitudes and had a readiness to resort to crime as a means of obtaining quick money. Crucially, the pre-sentencing report also found that the Respondent had a poor ability to cope with stressors, exacerbated by a lack of pro-social peers, familial support, and a fixed abode.

[27] Troublingly, the Respondent had, in the latest bout of criminal activities, pleaded guilty to culpable homicide not amounting to murder. The Judge nevertheless held that this was uncharacteristic of the Respondent (see [63] of the GD). Regardless of whether it was characteristic or not of the Respondent, the fact remains that the Respondent’s hitherto non-violent conduct had escalated into the taking of a human life – one of the most egregious and blameworthy crimes on the books.

[28] The Judge had also found as a fact that the Respondent “lacked remorse and was incorrigible” (see [64] of the GD). Indeed, in the Judge’s own words, the Respondent’s “callous conduct in dumping [the deceased’s] body and stealing her cheques to cheat yet again once more illustrated his lack of remorse” (see [65] of the GD). The pre-sentencing report (also referred to above at [26]) may also be noted, wherein it was observed that the Respondent, despite his claims that he was remorseful, was in fact in a state of denial insofar as his personal responsibility for his actions was concerned.

[29] Most pertinently, the Respondent did not have a supportive social network: he was not in contact with both his ex-wife and children, and did not have a fixed abode. Having been in and out of prison since 1991, it was unlikely that the Respondent had any marketable skills. Coupled with his advanced age, he would not find it easy to be gainfully employed upon release. There was a high possibility of the Respondent turning to crime as the only means of supporting himself.

[30] With respect, the Judge had not expressly considered any of the above circumstances in determining the appropriate length of the sentence of preventive detention to be meted out to the Respondent.

[31] With respect to the time the Respondent had spent in remand, we were of the view that, given the various circumstances (including, in particular, the Respondent’s utter inability to cope coupled with his total lack of any support system (noted above at [29])), it would be in the public interest not to take the period of his remand into account and to sentence him to the maximum period of preventive detention instead.

[32] For the reasons set out above, the sentence of 12 years’ preventive detention was manifestly inadequate. Taking all the circumstances into account, we were of the view that the Respondent should be incarcerated for the maximum possible duration, viz, 20 years of preventive detention.