The Case of Pang Shuo: Offences under Customs Act; Sentencing Principles for Offences under Section 128H

The Case of Pang Shuo: Offences under Customs Act; Sentencing Principles for Offences under Section 128H

General Overview

This was an appeal by the prosecution against the sentence of the respondent imposed by the District Judge. The respondent was arrested by Customs officers along with another co-accused after they had unloaded some boxes and pushed them into a certain “unit”. The boxes contained 480kg of duty-unpaid cigarettes which were known by the respondent and the co-accused. The respondent was 19 at the time and was charged with an offence under section 128H and an offence under section 128I(1)(a)(ii) of the Customs Act punishable under section 128L(4) and section 128L(2) respectively. While the co-accused was sentenced to 24 months in prison, who was 20 at the time, the respondent was sentenced to 15 months in prison by the District Judge. The prosecution appealed against the sentence for the section 128H offence claiming it to be inadequate. The High Court Judge agreed with the prosecution and allowed the appeal. The respondent was sentenced to 24 months of imprisonment for the offences committed under section 128H of the Customs Act.

Offences under Section 128H of the Customs Act

Section 128H of the Customs Act mentions the offences in relation to shipping, unshipping, loading, unloading, etc., of uncustomed or prohibited goods. It states that any person shall be guilty of an offence under this section if they commit the following actions concerning uncustomed or prohibited goods:

  • Shipping or unshipping;
  • Loading or unloading;
  • Landing or delivering;
  • Assisting or being concerned in the above-mentioned actions;

Whether or not the goods have been shipped, unshipped, loaded, unloaded, landed or delivered, the person will be guilty of this offence.

The punishment for this offence, if the goods involved consist wholly or partly of relevant tobacco products, is mentioned under section 128L(4) of the Customs Act and a person shall be liable to conviction if such tobacco products exceed 2kg in weight. The punishment mentioned is a fine of:

  • No less than 15 times the amount of the customs duty, excise duty or tax which have been or would have been evaded by the commission of this offence and also subject to a minimum of $1,000; and
  • Up to 20 times the amount of the customs duty, excise duty or tax which would have been evaded by the commission of this offence or $10,000, whichever is greater.
    Other than this, the offender may instead be liable on conviction to imprisonment of up to 3 years or both imprisonment and a fine.

Respondent’s Actions Prior to Arrest

The respondent (the accused) would be paid $200 for every truck delivery containing the duty-unpaid cigarettes where he had to collect the goods from a freight forwarding company in a truck, deliver the goods to a particular address, meet with the co-accused and unload the goods to a specific “unit”. The respondent was also given an allowance of $50 for meals by a person called Xiao Li.

The District Court Trial

In the matter before the District Court Judge, the prosecution urged the court to impose the same sentence of 2 years imprisonment that was earlier imposed on the co-accused. The prosecution also relied on the benchmark case of Yap Ah Lai to back the sentence they were seeking. The respondent, in the trial, pled guilty and expressed remorse and at the conclusion of the trial, the District Judge imposed a sentence of 15 months imprisonment.

The District Judge gave the following reasons for the sentence imposed for the offence under section 128H of the Customs Act for unloading duty-unpaid cigarettes:

The three sentencing examples provided by the prosecution, which dealt with offences under different statutory provisions, were irrelevant since they involved different behaviours and actions from the offenders.

  • As it dealt with the offence of importation under section 128F of the Customs Act rather than the offence of unloading under section 128H of the Customs Act, the benchmark prison sentences in Yap Ah Lai were not applicable to the current case.
  • Although “relevant and significant,” the quantity of duty-unpaid cigarettes involved could not be the “key factor” against which the sentence should be assessed because the respondent was a “low-level offender” who was paid a meagre sum of $250 regardless of how many cigarettes were in each delivery and had no control over the number of cigarettes involved.
  • Parity in sentencing was not necessarily an overwhelming priority, and the term of two years in jail imposed on the co-accused was excessive, and she felt compelled to deviate from this figure.
  • The Respondent should be recognised for his youth, guilty plea, and clean record and that two years in prison would be devastating for him.

The Prosecution’s Appeal

During the appeal, the prosecution argued that the respondent should receive a prison sentence of more than 24 months. To support the sentence they were seeking, the prosecution relied on the following points:

  • Although the Yap Ah Lai sentencing standard related to the importation of duty-unpaid cigarettes under section 128F of the Customs Act, there shouldn’t be any appreciable differences in sentencing standards between the offences in sections 128F and 128H since the various acts that constitute the offences under both provisions are treated equally under the Customs Act’s statutory framework. When sentencing the respondent, a standard starting point for sentences should be used, and Yap Ah Lai’s sentencing standards should be taken into consideration.
  • Recent precedents for offences under section 128H of the Customs Act demonstrated both a general adherence to the sentencing standards in Yap Ah Lai and a trend whereby the sentences imposed for section 128H offences post-Yap Ah Lai were typically relative to the quantity of the duty-unpaid cigarettes involved.

The District Judge did not give enough consideration to the significant number of duty-unpaid cigarettes involved or the respondent’s enlarged participation in collecting, delivering, and unloading the cigarettes as contrasted to the co-accused’s role in just unloading the cigarettes.

In the current instance, the District Judge erred by omitting to use the concept of parity in sentencing. It was difficult to call the co-accused’s sentence of 24 months in jail excessively severe, and the two cases shouldn’t have been treated differently.

The District Judge made an error by giving the respondent’s youth too much consideration. Although being young is a legitimate mitigating factor, its significance should have been comparable to that of the co-accused. The respondent had a bigger part in the gathering, delivering, and unloading the duty-unpaid cigarettes than the co-accused, despite being a year younger.

Offences under Section 128F of the Customs Act

Section 128F of the Customs Act states the offences in relation to the importation of uncustomed or prohibited goods into Singapore. It states that any person who is concerned, in any way, in importing any uncustomed or prohibited goods into Singapore shall be guilty of an offence.

If such products being imported involve wholly or partly relevant tobacco products, then the punishment would be the same as the punishment imposed for offences under section 128H of the Customs Act. Mentioned under section 128L(4), the punishment would be a fine of:

  • No less than 15 times the amount of the customs duty, excise duty or tax which have been or would have been evaded by the commission of this offence and also subject to a minimum of $1,000; and
  • Up to 20 times the amount of the customs duty, excise duty or tax which would have been evaded by the commission of this offence or $10,000, whichever is greater.

Other than this, the offender may instead be liable on conviction to imprisonment of up to 3 years or both imprisonment and a fine.

The meaning of relevant tobacco products is given under section 128L(7) of the Customs Act and states that relevant tobacco products would mean any cigarette, cigar, cheroot or cigarillo or any other form of tobacco including:

  1. Any tobacco substitute that is capable of being smoked; and
  2. Any mixture containing tobacco

Distinguishing between Importing and Unloading

The High Court Judge in determining the legislative intent of the Parliament stated that courts should operate in concert with this legislative objective in sentencing since Parliament sees the damage in question underlying the various offences involved in the entire chain of “steps” in cigarette smuggling as equivalent. Cigarette smuggling included importing and unloading across the whole chain of “steps”. The legal foundation for differentiating between the gravity of the offences included in the actions of importing and unloading, or for that matter the other physical acts and steps in the entire chain of smuggling, is weak.
The judge stated that the sentencing framework should be distinguished between the physical acts of smuggling and the offender’s ownership, control, responsibility and management in the hierarchy of the smuggling syndicate. Loading, importing, unloading, delivering, and other physical tasks that are typically performed by paid employees within the smuggling enterprise constitute the first offence and cause the corresponding Customs Act provisions to be triggered. The second offence is the extent or level of control that the offender had over the criminal enterprise, which is treated separately and as an exceptionally serious aggravating factor during the sentencing process.

The level of culpability embedded in the various physical actions performed by a hired employee in the smuggling chain can be seen as being generally comparable. The worker’s responsibility for these many separate individual physical acts should not be subject to any actual or substantial distinction. However, it should be considered a very serious aggravating factor that calls for significant differentiation in culpability when the offender also has a role in owning, managing, and/or controlling the smuggling enterprise.

Thus, for the above reasons, the High Court Judge concluded that the sentencing benchmarks set in the case of Yap Ah Lai for the importation of duty-unpaid cigarettes under section 128F of the Customs Act were relevant and applicable to the current case of unloading under section 128H of the Customs Act.

The Sentencing Framework Developed in Yap Ah Lai Case

In Yap Ah Lai, CJ Menon established benchmark sentences for the importation of duty-unpaid cigarettes in the form of a graded structure. The main factor is the amount of tobacco product involved, which establishes the cornerstone for the length of the prison sentence to be imposed. This framework was developed to serve as a guide for the typical or archetypal offender, who was defined as someone who:

    • is a first-time offender;
    • enters a guilty plea at the earliest opportunity; and
    • has a role that is limited to pure importation (i.e., does not have a role that is enhanced beyond committing the act in the preferred charge).

The original benchmarks in the case of Yap Ah Lai were:

  • For 2-50kg of tobacco products – 3-6 months of imprisonment
  • For 51-100kg of tobacco products – 6-12 months of imprisonment
  • For 101-200kg of tobacco products – 12-18 months of imprisonment
  • For 201-300kg of tobacco products – 18-24 months of imprisonment
  • For 301-400kg of tobacco products – 24-30 months of imprisonment
  • For more than 400kg of tobacco products – 30-36 months of imprisonment

The High Court agreed with the prosecution that the sentencing benchmarks in the Yap Ah Lai case should apply to the current case and that the sentencing framework for the offence of importing under section 128F should be treated equivalently with the offence of unloading under section 128H of the Customs Act. In the Yap Ah Lai case, it was argued that the main factor to be taken into account in sentencing for tobacco product smuggling offences would be the quantity of tobacco products that are involved. This was done in order to prevent a loss of revenue to the government and discourage the consumption of harmful goods as a matter of public policy and interest by raising the cost of such goods through the imposition of high excise duties on them. When all other factors are held constant, it must be assumed that dealing with a greater quantity of duty-unpaid tobacco products will logically result in a greater level of criminal culpability and, thus, a greater overall sentence. The following were the principal factors that affected the benchmark sentence:

The Conclusion of the Appeal

With regard to the current case, the High Court Judge noted that the respondent’s circumstances generally matched those of a standard offender, with the main exception that he was a youthful offender and that he was an untraced, first-time offender who played a relatively typical role in the smuggling operation as a paid worker to collect, deliver, and unload duty-unpaid cigarettes transported in a truck. He also pleaded guilty at the earliest opportunity. A fairly significant quantity of uncustomed cigarettes, 480 kg, was also involved in the current instance.

The High Court Judge continued by stating that a benchmark sentence of around 28 months would result from using quantity as the main factor. Given that the defendant was 19 years old when the offence was committed, a 15 per cent reduction would result in a benchmark sentence of around 23.8 months. The District Judge sentenced the respondent to 15 months in prison, which the Court found to be significantly less than the benchmark term of 23.8 months and effectively a massive 46.4 per cent reduction just because of the respondent’s youth. The respondent, who was 19 years old at the time of the offence, was not an exceptionally youthful offender who qualified for such a significant reduction from the benchmark.

The High Court Judge also concluded that the 24 months imprisonment sentence on the co-accused was not erroneously harsh. The principle of parity would almost always apply where co-offenders are involved in the same transaction with more or less the same degree of culpability after taking into account all pertinent mitigating and aggravating factors and are charged with the same offence.

The High Court ultimately ordered that the respondent’s sentence be increased to a term of 24 months imprisonment and made comparable to that of the co-accused after broadly adopting the benchmark sentences in Yap Ah Lai and clarifying the sentencing framework for offences under section 128H of the Customs Act. Thus, the appeal by the prosecution was allowed.

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