MUHAMMAD ISA BIN AHMAD v PUBLIC PROSECUTOR

Facts

Muhammad Isa bin Ahmad answered a job advertisement in late November 2022 and was told by a person known to him as "Ann" that he would be paid $1,000 per unpacking job. In the early hours of 9 December 2022 he met four other men at Ecotech@Sunview, learnt through a WhatsApp group that the job involved duty unpaid cigarettes, and helped unload boxes from a Malaysian lorry and move them into a unit, where customs officers found him. He tried to flee but was detained. The cigarettes he was charged with weighed 1,501.656kg, with excise duty of $794,185.84 unpaid.

At the time he was on a remission order valid until 20 May 2023, following an earlier global sentence of five years ten months' imprisonment. He pleaded guilty to an offence under s 128I(1)(b) of the Customs Act 1960. A district judge sentenced him to 34 months' imprisonment plus an enhanced sentence of 81 days under s 50T(1)(a) of the Prisons Act 1933, out of 163 days remaining on the remission order. He appealed against sentence in Magistrate's Appeal No 9064 of 2023/01, and the judge asked both sides to address whether the total could exceed the three-year maximum for the Customs Act offence.

Issues

1. Whether the fresh-offence sentence and an enhanced sentence under s 50T together can exceed the maximum punishment for the fresh offence
2. Whether the enhanced sentence of 81 days was manifestly excessive
3. Whether the 34-month term should be reduced given the 28-month sentence imposed on the lorry driver

Holding

The High Court dismissed the appeal against sentence and affirmed the sentence of 34 months' imprisonment for the Customs Act offence together with the enhanced sentence of 81 days' imprisonment under s 50T of the Prisons Act.

Reasoning

The court agreed with the Prosecution that the aggregate may exceed the statutory maximum for the fresh offence. Section 50T(1) provides for an enhanced sentence in addition to the sentence for the offence, s 50T(5) requires it to run consecutively, and the only cap the statute sets is the remaining duration of the remission order. The parliamentary debates on the 2014 amendment showed the provision was meant to deter ex-inmates from reoffending; a cap tied to the fresh offence would leave no room for any enhancement where a very serious offence already attracted the maximum. Case law, including Abdul Mutalib and the appeal in Mohamad Faizal, was consistent with this. The caution in Abdul Mutalib that an enhanced sentence should ordinarily not exceed the underlying sentence did not arise, as 81 days was far below 34 months.

On the enhanced sentence, although the appellant reoffended 18 months after release, compared with 20 days in Mohamad Faizal, his offence was more serious, involving more than three times the weight of cigarettes. Placing the case in the middle of the moderate band under the Abdul Mutalib framework was justified. His points about a limited role and family hardship had already been weighed in the 34-month term and could not be counted again.

As to parity, the lorry driver had been charged with only 546.298 kg because he had agreed to import a smaller quantity, so the two cases were not on the same footing.

From the judgment