Wuu David v Public Prosecutor

[1] This was an appeal against the sentence of nine weeks’ imprisonment imposed on the appellant, Wuu David (“the Appellant”), by the judge (“the District Judge”) in District Arrest Case No 44067 of 2007 (see Neo Jun Wei v PP [2008] SGDC 9 (“the Judgment”)). The Appellant had pleaded guilty to one charge of cheating, which is punishable under s 417 of the Penal Code (Cap 224, 1985 Rev Ed) as follows:

A second charge of theft (“the TIC charge”), which is punishable under s 379 of the Penal Code, was taken into consideration for the purposes of sentencing.

[3] The Appellant is a male, aged 24 years old. At the time of his arrest and prosecution, he was working as a waiter in a restaurant while pursuing a part-time diploma course in mass communications. He is the main breadwinner in his family, which consists of his mother (who is a divorcee) and two younger siblings. He had, until this conviction, no antecedents.

[4] The prosecution of the Appellant arose from his use of a stolen credit card at about 2.03am on 27 May 2007 to purchase a bottle of liquor at Dragonfly Backstage Bar, St James Power Station (“the Bar”). The Appellant and his friend, one Neo Jun Wei (“Neo”), were drinking at the Bar when the former spotted the complainant’s handbag lying unattended. The Appellant took the handbag (this act formed the subject matter of the TIC charge) and went into the restroom, where he removed two credit cards (a MasterCard and a Visa card) belonging to the complainant’s boyfriend (“the Victim”) and kept them. Having done that, he threw away the handbag and the other contents in it. The Appellant later passed one of the credit cards (viz, the MasterCard) to Neo.

[5] The Appellant then purchased a bottle of Hennessy VSOP for $765 at the counter of the Bar and paid for it using the stolen Visa card (which he had retained). The waiter swiped the Visa card through the point-of-sales terminal and the transaction was approved. A charge slip was printed, which the Appellant signed. There was no evidence that the waiter checked whether the Appellant was indeed the owner of the credit card. At about 2.22am, Neo also went to the Bar’s counter and purchased another bottle of Hennessy VSOP for $688.50. He paid for it using the stolen MasterCard and similarly signed on the charge slip after the transaction was approved. After making the purchases, the Appellant and Neo threw the stolen credit cards into a dustbin outside the premises.

[6] Very shortly after, at about 2.38am on 27 May 2007, the complainant discovered the loss of her handbag and the credit cards therein, and called the police. The police arrived soon after, and, upon investigation, found that the stolen credit cards had been used by the Appellant and Neo to purchase liquor at the premises. Both men were arrested at about 4.25am. They admitted to the offences immediately.

[7] The complainant’s handbag and all its contents (without the credit cards) were recovered. Full restitution of the price of the bottle of liquor which the Appellant had purchased was made by Neo immediately after his arrest. The Appellant later reimbursed Neo half of the amount paid. The other bottle of Hennessy VSOP which Neo had purchased had not been opened and was taken back by the Bar. Neither the Victim nor the Bar, therefore, suffered any monetary loss.

[8] The Appellant pleaded guilty and admitted unreservedly to the statement of facts tendered by the Prosecution (“the Statement of Facts”). The mitigation plea put forth by the Appellant’s counsel rested essentially on the submission that the Appellant had been charged with the offence under s 417 of the Penal Code (commonly referred to as “simple cheating”) and that ordinarily called for a non-custodial sentence. The Prosecution did not make any submissions on sentence. The District Judge decided that the nature of the Appellant’s cheating offence was such that it warranted a custodial sentence regardless of whether the Appellant was charged under s 417 or s 420 of the Penal Code (the latter provision sets out what is commonly referred to as “aggravated cheating”). Accordingly, she sentenced the Appellant to nine weeks’ imprisonment.

[9] The Appellant appealed against the sentence. The arguments made before this court by his counsel and by counsel for the Prosecution on the propriety of the District Court’s sentence were basically the same as those presented to the District Judge. Before I explain why I allowed the appeal and varied the sentence, it is necessary to understand the factual and legal basis on which the District Judge imposed a custodial sentence on the Appellant.

[10] The District Judge approached the question of sentencing by asking herself whether considerations of public interest justified a custodial sentence. She stated (at [7] of the Judgment) that:

She then referred to the judgment of V K Rajah J in PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR 334 (“Payagala”).

[11] In Payagala, the accused (a 20-year-old Sri Lankan) misappropriated a credit card which he found near his seat during a flight from New Zealand to Singapore. When he landed in Singapore, he immediately used the card to purchase, at Singapore Changi International Airport (“Changi Airport”), a laptop valued at $1,522, a watch valued at $449.81 and a mobile telephone valued at $1,288. He was arrested at one of the departure gates of Changi Airport after he tried to buy a bracelet valued at $2,728.01 and was told that the credit card facility had been blocked. The accused pleaded guilty to a charge of criminal misappropriation of a credit card under s 403 of the Penal Code and another charge of aggravated cheating under s 420 of the Penal Code in connection with his use of the misappropriated credit card. Two further charges of aggravated cheating under s 420 and another charge of attempted cheating under the same section read with s 511 of the Penal Code were taken into account for the purposes of sentencing. The accused was sentenced at first instance to two months’ imprisonment for the aggravated cheating charge and a consecutive term of two weeks’ imprisonment for the criminal misappropriation charge. On appeal by the Prosecution, Rajah J increased the sentence to concurrent terms of six months’ imprisonment for the aggravated cheating charge and two months’ imprisonment for the criminal misappropriation charge respectively. In so doing, he held that there was a public interest in checking credit card fraud for a variety of reasons, one of which was that such fraud would erode public confidence and could have a deleterious effect on Singapore’s standing as a preferred destination for tourism, trade and investment (see Payagala at [20]). To check the abuse of credit cards, persons who committed credit card offences could usually expect harsh custodial sentences as the principle of general deterrence would be a vital, if not the paramount, consideration in assessing how severe the sentence should be in any given case.

[12] The District Judge was cognisant of the fact that Payagala was a case of aggravated cheating under s 420 of the Penal Code (which is punishable with a term of imprisonment of up to seven years and a fine). Nevertheless, she held that the sentencing considerations applicable in Payagala would also apply to a case of simple cheating under s 417 of the Penal Code as the same public interest in deterring credit card abuse featured in both scenarios. She reasoned (at [12]–[15] of the Judgment):

[13] The District Judge then considered the mitigating circumstances put forward by the Appellant. Counsel for the Defence had emphasised the following (in addition to the fact that the Appellant had been charged under s 417, rather than s 420, of the Penal Code (see [8] above)):

(a) the relatively low value of the liquor which the Appellant had purchased using the stolen Visa card;

(b) the prompt making of full restitution of the value of the liquor in question; and

(c) the fact that the Appellant had readily admitted to the s 417 offence with which he was charged and had co-operated fully with the police in the investigations.

It was further submitted that the Appellant had committed the above offence while he was inebriated and, as such, his conduct had been out of character. The District Judge, however, was of the view that there was no cogent evidence that the Appellant had been behaving out of character when he committed the crime, in that tipsy though he had been at the material time, he had nonetheless acted with a dishonest intention (see [16] of the Judgment). Other mitigating factors raised in the court below included hardship, but these were summarily rejected by the District Judge on the basis of well-established law (see [18] of the Judgment).

[14] In discussing the appropriate punishment, the District Judge said (at [20]–[22] of the Judgment):

[15] Counsel for the Appellant argued that the District Judge had misapplied the relevant considerations and benchmarks in Payagala ([10] supra) as the Appellant had been convicted under s 417 of the Penal Code for simple cheating and his act of cheating had been on a relatively smaller scale than that involved in Payagala. Counsel also referred to Soh Puay Luan ([12] supra), where the accused (“Soh”) used a stolen credit card on two occasions to purchase two items of jewellery valued at $5,635 and $4,500 respectively. The credit card had actually been stolen by Soh’s boyfriend and Soh had used it to help him as he was in financial difficulties. She made full restitution of the sums involved and previously had a clean record. She pleaded guilty to two charges under s 417 of the Penal Code, with three other similar charges taken into consideration for sentencing purposes. At first instance, Soh was sentenced to three months’ imprisonment on each charge, with both terms to run concurrently. On appeal, the High Court set aside the sentence of imprisonment and substituted it with a fine of $2,500 (with two months’ imprisonment in default of payment) on each charge.

[16] Counsel for the Appellant had referred Soh Puay Luan to the District Judge, who, at [13] of the Judgment, distinguished it on the basis that Soh had not accepted any of the wrongful gains from the transactions and had committed the offences to help her boyfriend. I accept that Soh Puay Luan may be distinguished on the basis that the boyfriend’s influence on Soh was a valid mitigating factor, but, in my view, the public interest in deterring credit card abuse is exactly the same, whether such abuse is committed in the factual matrices of Soh Puay Luan, Payagala or the present case. What the decision in Soh Puay Luan shows is that a cheating offence under s 417 of the Penal Code which is constituted by the use of a stolen credit card does not necessarily entail a custodial sentence as the norm. There is always room to determine what the proper sentence should be on the facts of the particular case.

[17] Counsel for the Appellant also argued that the Appellant had been intoxicated at the time he committed the s 417 offence. He had gone to the Bar at about 9.30pm to drink with his friends and had shared two bottles of brandy with them. It was submitted that his actions in stealing the credit cards and subsequently using one of them had been out of character because of his mental state as affected by prolonged drinking. The District Judge dismissed this argument on the ground that the Appellant had nevertheless acted with a dishonest intention. In my view, there was no doubt that the Appellant had acted with a dishonest intention in using the stolen Visa card in the sense that he must have known that it was wrong to use that credit card to purchase the bottle of Hennessy VSOP, but that does not therefore mean that he had not acted out of character. The Appellant might not have stolen the credit cards and might not have used one of those cards if he had been more sober at the material time. I also found it significant that the Appellant did not leave the Bar with the bottle of liquor that he bought using the stolen Visa card. Instead, he stayed behind for almost two and a half hours, sharing the bottle with his friends, until he was arrested. It was almost as if he was waiting to be arrested for using the stolen credit card. Of course, the state of mind of the Appellant after the few hours’ worth of drinking that he had engaged in prior to the offences cannot be known for certain, and the fact that he had been drinking would not exonerate him from criminal culpability. However, the pertinent question for the purposes of this appeal is whether the Appellant deserved to be imprisoned for nine weeks for the offence under s 417 of the Penal Code in the circumstances of the case.

[19] However, the decisive factor that influenced my decision that a custodial sentence was inappropriate and excessive in this case consisted of two facts which were not stated in the Statement of Facts. These two facts, which were mentioned earlier (at [4]–[5] above), were that the Appellant had, after stealing the complainant’s handbag and removing the Victim’s credit cards therefrom, thrown away the handbag with the rest of its contents, and, furthermore, had, after using the Victim’s Visa card, also thrown it away. These facts were not brought to the attention of the District Judge. They were also not known to counsel for the Appellant in the proceedings both in the court below and before this court, although they were known to the Prosecution. In the course of making submissions before me, counsel for the Prosecution mentioned these facts, probably without realising their significance.

[20] In my view, the above-mentioned facts cast a very different light on the state of mind of the Appellant at the material time. Firstly, although the Appellant was also charged (under the TIC charge) with stealing the complainant’s handbag and its contents (which included, inter alia, an “EZ-link” card, a “NTUC Link” card and an “EasiCard” issued by OCBC Bank, but no cash), he only took the Victim’s Visa card and MasterCard with the intention of using them to buy drinks. This was confirmed by his subsequent conduct. Secondly, the Appellant intended to use the stolen Visa card to make only one purchase and no more (a point which was likewise inferable from his conduct). In my view, the intention of the Appellant, as manifested by his conduct, made his act of cheating very different, in terms of the nature of the cheating and the degree of culpability involved, from the kinds of cheating (whether simple or aggravated) involving the use of misappropriated or stolen credit cards that Rajah J highlighted in Payagala ([10] supra). The Appellant’s act of cheating in the present case was akin to his having found $765 in cash in the complainant’s handbag and having used the money – as opposed to the Victim’s Visa card – to buy the same bottle of liquor. In my view, the District Judge erred in applying the sentencing benchmarks set out in Payagala to the Appellant’s cheating offence as the latter, although likewise involving the use of a stolen credit card, did not have the characteristics of the type of credit card abuse addressed in Payagala, which was held by Rajah J to warrant a custodial sentence, given the manner in and the intent with which it was committed.

[21] For these reasons, I held that the District Judge erred in respect of the factual and legal basis for imposing the custodial sentence in the present case, and that, in the circumstances, that sentence was manifestly excessive. In my view, a fine of $3,000 was a sufficient punishment for the specific offence under s 417 of the Penal Code which the Appellant committed, taking into account the other mitigating factors in his favour.

[22] As regards the principle of general deterrence, I should add that, where one-off offenders such as the Appellant are concerned, prosecution for the offence(s) committed will in itself provide some form of deterrence in most cases. As stated in Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 4th Ed, 2005) at p 79: