What was Iskandar bin Jinan v Public Prosecutor [2024] SGCA 55 about?

Iskandar bin Jinan v Public Prosecutor [2024] SGCA 55 was a Court of Appeal grounds of decision, delivered by Steven Chong JCA with Sundaresh Menon CJ and Tay Yong Kwang JCA, addressing the mitigatory value of a guilty plea and the Sentencing Advisory Panel's PG Guidelines.

What factors affect the weight given to a guilty plea in Singapore sentencing?

In Iskandar bin Jinan v Public Prosecutor [2024] SGCA 55, the Court of Appeal noted the weight accorded to a guilty plea depends on factors including the nature of the offence, the stage of proceedings at which the plea is taken, the evidence, and the degree of remorse.

[2024] SGCA 55 — Iskandar Bin Jinan v PUBLIC PROSECUTOR

SUPREME COURT OF SINGAPORE

28 November 2024

Case summary

Iskandar bin Jinan v Public Prosecutor and another appeal [2024] SGCA 55

Criminal Appeals Nos 18 of 2023 and 6 of 2024

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Decision of the Court of Appeal (delivered by Justice Steven Chong):

Outcome: The Court of Appeal dismissed the appeal against sentence in CA/CCA 18/2023 and allowed the appeal against sentence in part in CA/CCA 6/2024 on a point of principle in relation to the Sentencing Advisory Panel’s Guidelines on Reduction in Sentences for Guilty Pleas.

Background facts

1 The two appellants in CA/CCA 18/2023 (“CCA 18”) and CA/CCA 6/2024 (“CCA 6”) (the “Appeals”), Iskandar bin Jinan (“Iskandar”) and Mohd Farid Merican bin Maiden (“Farid”), pleaded guilty to a number of drug trafficking offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) at an early stage of the proceedings and received a global sentence of 32 years’ and 31 years’ imprisonment respectively.

2 In CCA 18, Iskandar relied on the Sentencing Advisory Panel’s Guidelines on Reduction in Sentences for Guilty Pleas (the “PG Guidelines”) generally to seek a lower sentence. The sole issue before this court concerns the correct understanding of the PG Guidelines and their proper application in the specific context of drug trafficking and drug importation offences, bearing in mind the relevant sentencing precedents and benchmarks for those offences.

3 The court dismissed CCA 18 and allowed CCA 6 in part by reducing Farid’s global sentence from 31 years’ to 30 years’ imprisonment on a point of principle.

Decision on appeal

4 The PG Guidelines provide an appropriate framework to determine the extent to which a sentence might be reduced on account of a plea of guilt in the context of drug trafficking and drug importation offences. The PG Guidelines rightly give effect to the utilitarian value of a plea of guilt as a mitigating factor in two ways in the context of drug trafficking and drug importation offences. First, by recognising the utilitarian benefits of an early plea of guilt, namely that it saves public resources on the part of the law enforcement agency, the prosecution and the judiciary. Second, by quantifying the utilitarian value of a plea of guilt with reference to the timeliness of the same: at [49]–[50].

5 It is generally difficult for the court to discern whether an offender is genuinely remorseful merely from a plea of guilt. Accused persons choose to enter a guilty plea for a multitude of reasons. That is precisely why para 8 of the PG Guidelines specifically provides that only manifestations of remorse in other ways, apart from entering a plea of guilt, may be taken into account as a mitigating factor at Step 1: at [65].

6 Given the inherent difficulty in discerning remorse merely from a plea of guilt, the utilitarian justifications for giving mitigatory weight to a plea of guilt ought to come to the forefront. In this regard, the PG Guidelines are expressly driven by the utilitarian justifications in giving mitigatory weight to a plea of guilt, and they explicitly exclude the consideration of the remorse-based factor as to whether the evidence against the offender is overwhelming: at [66].

7 In the context of drug trafficking and drug importation offences, accused persons are often caught red-handed with the drugs. Remorse typically does not feature in the equation for drug trafficking and drug importation offences, save for exceptional circumstances, such as if the accused person attempts to resile from the deal prior to being caught by the authorities: at [67]–[68].

8 The PG Guidelines rightly account for the guilty plea in a separate step of the sentencing framework, as opposed to considering it in conjunction with other offender-specific mitigating factors. While a plea of guilt is the result of the personal choice of the accused person, the utilitarian benefits that the guilty plea brings, such as the savings of time and state resources, are quite objective and independent of the personal circumstances of the accused person. Therefore, as a matter of principle, it is correct to account for the guilty plea in a separate step of the sentencing framework. Additionally, given that the mechanism in the PG Guidelines is to provide a percentage reduction, it would be practically unfeasible to apply a percentage discount in conjunction with other offender-specific mitigating factors. At that stage, the sentence against which the percentage reduction should apply would not have been formulated: at [75]–[76].

9 The PG Guidelines do not prescribe fixed sentencing discounts but are deliberately expressed to refer to a maximum reduction up to a particular percentage depending on the stage at which the guilty plea is taken. There is thus no conflict with this court’s decision in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449, which eschewed prescribing fixed sentencing discounts: at [83]–[84].

10 The correct calibration of the PG Guidelines for drug trafficking and drug importation offences would be to apply a maximum reduction of up to 10%: at [106].

11 Applying a maximum reduction of up to 10% obviates the problem of a clustering of sentences at or near the mandatory minimum irrespective of the actual quantity of drugs involved. At the same time, it will still confer a fairly significant reduction in sentence, which is in line with the purpose and spirit of the PG Guidelines, and the sentences will be sufficiently differentiated based on the quantity of drugs trafficked or imported: at [107].

12 A maximum of 5% reduction should apply to all the subsequent stages, as contrasted with not setting out specific percentage reduction ranges for the other stages at all. This encourages offenders who intend to plead guilty to do so at the earliest opportunity, in keeping with the object of the PG Guidelines, and also provides for greater clarity and transparency. At the same time, further dividing the percentage reductions across Stages 2 to 4 would lead to overly and unduly granular figures and an excessively mathematical approach, which should be eschewed: at [110].

13 Paragraph 13(b) of the PG Guidelines contains what is known as the “public interest exception”, which provides that where the court is of the view that it would be contrary to the public interest for these guidelines to be applied, the court may apply a reduction in sentence which is just and proportionate without reference to the guidelines. The public interest exception may be invoked in a case involving egregious facts, for instance, a repeat offender trafficking in a quantity of drugs just below the capital threshold with a significant number of drug-trafficking antecedents. The threshold for invoking the public interest exception is high, and it would generally take an exceptional case for the exception to be invoked: at [114]–[115].

14 The court disagreed with the Judge below and the Prosecution that the public interest exception applies categorically in every case involving a repeat offender trafficking a quantity of drugs just below the capital threshold. The public interest exception is not meant to be wielded as a blunt tool to exclude the application of the PG Guidelines in every case involving a repeat offender and a quantity of drugs just below the capital threshold, with no distinction to be drawn between an accused person with one dated minor drug-trafficking antecedent and an accused person with a list of antecedents. Such a binary approach would also be unsound as a matter of policy, given that a primary objective of the PG Guidelines is to encourage accused persons who are going to plead guilty to do so as early in the court process as possible. To exclude the application of the PG Guidelines on such a categorical basis could disincentivise accused persons falling within this category from entering a plea of guilt: at [116].

15 It would remain necessary to examine the number, gravity and age of the drug-trafficking antecedents in deciding whether the public interest exception ought to apply to the exclusion of the application of the PG Guidelines: at [117].

Summary of the PG Guidelines calibrated for drug trafficking and drug importation offences

16 In summary, the PG Guidelines framework as calibrated for drug trafficking and drug importation offences is as follows: at [121].

a. Step 1: The court first determines the sentence that it would have imposed if the accused person had been convicted after trial. If the accused person has demonstrated remorse in other ways, apart from pleading guilty, the court may consider this as a mitigating factor in Step 1, if appropriate. In the case of repeat offenders, the court will:

i. Derive the starting point for the sentence based on the quantity of drugs for first-time offenders using the framework in Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 and Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115.

ii. Apply an indicative uplift on account of the fact that this is a repeat offence and derive an indicative starting point on this basis, having due regard to the circumstances of the repeat offence.

iii. Adjust the indicative starting point upwards or downwards based on (i) the offender’s culpability; and (ii) the presence of relevant aggravating or mitigating factors, except for the offender’s plea of guilt.

b. Step 2: The court determines the applicable stage of the proceedings.

i. Stage 1 refers to the period from the first mention until 12 weeks after the hearing when the prosecution informs the court and the accused person that the case is ready for the plea to be taken. For Stage 1, the reduction in sentence to be considered is up to a maximum of 10%.

ii. Stage 2 refers to the period after Stage 1, until either of the following: (i) for cases subject to Criminal Case Disclosure (“CCD”) procedures, when the court first gives directions for the filing of the Case for the Prosecution (“CPF”) in relation to the charge; and (ii) for cases not subject to CCD procedures, when the court fixes trial dates for the charge. Stage 3 refers to the period after Stage 2, until before the first day of the trial. Stage 4 refers to the first day of the trial and thereafter. For Stages 2 to 4, the reduction in sentence to be considered is up to a maximum of 5%.

c. Step 3: The court applies an appropriate reduction to the sentence that was determined in Step 1, for each charge. In deciding the appropriate reduction to be applied, the court should consider if the sentence arrived at is proportionate to the overall criminality of the case. This would involve taking a broad-brush “last-look” at all the facts and circumstances of the case to ensure that the final sentence is one that fits both the crime and the offender. The reduction should generally not exceed the maximum reduction for the applicable stage as set out above.

17 In applying the framework above, the following guiding principles should be borne in mind: at [122].

a. The court should generally apply a reduction nearer to the maximum within each stage of the PG Guidelines in the absence of any serious aggravating factors or any other reasons not to do so, at least for pleas of guilt entered at Stages 1 and 2.

b. The strength of the evidence against the accused person should not be taken into account when determining the level of reduction in sentence.

c. In a case involving egregious facts, such as a repeat offender who trafficked in a quantity of drugs just below the capital threshold with a significant number of drug-trafficking antecedents, the court may invoke the public interest exception at para 13(b) of the PG Guidelines and apply a smaller (or no) reduction. The threshold for invoking the public interest exception is high, and it is not the case that in every situation involving a repeat offender trafficking a quantity of drugs just below the capital threshold the public interest exception can apply. It would remain necessary to examine the number, gravity and age of the drug-trafficking antecedents in deciding whether the public interest exception ought to apply to the exclusion of the PG Guidelines.

The application of the calibrated PG Guidelines in the present Appeals

18 The Appeals effectively turned on the sentences to be imposed vis-à-vis Iskandar’s first charge (trafficking in not less than 14.99g of diamorphine) and Farid’s first charge (abetting by engaging in conspiracy with Iskandar to traffic in not less than 14.99g of diamorphine): at [124].

19 Iskandar’s first charge fell under the category of egregious cases involving repeat offenders who traffic in a quantity of drugs just below the capital threshold with a significant number of drug-trafficking antecedents. Iskandar had four prior drug trafficking convictions over three occasions in 1987, 1994 and 2008. The sentences imposed for these convictions were: (a) five years’ imprisonment with five strokes of the cane; (b) ten years’ corrective training with ten strokes of the cane; (c) five years’ imprisonment; and (d) five years’ imprisonment (concurrent). Accordingly, the public interest exception under para 13(b) of the PG Guidelines should apply, in favour of a just and proportionate reduction that need not adhere to the guidelines: at [126].

20 The sentence imposed by the Judge below for Iskandar’s first charge was 29 years’ imprisonment, which is consistent with the indicative starting sentence of 27 to 30 years’ imprisonment for a repeat offender who traffics in a quantity of drugs in the highest weight range right under the capital threshold. Given the significant number of drug-trafficking antecedents, the court found that a sentence of 29 years’ imprisonment at the higher end of the range was appropriate and there was no reason for appellate intervention. The court thus upheld the global sentence of 32 years’ imprisonment: at [127]–[128].

21 Unlike Iskandar, Farid had only one prior drug trafficking conviction in 2007, where he was sentenced to five years’ imprisonment with five strokes of the cane. This did not constitute an egregious case to justify the invocation of the public interest exception: at [130].

22 Accordingly, the court was of the view that the PG Guidelines ought to apply vis-à-vis Farid’s first charge. Applying the calibrated PG Guidelines framework, the starting point for the sentence based on the quantity of drugs was 29 years, given that 14.99g of diamorphine was involved. The court applied an indicative uplift of one year as Farid had only one prior drug-trafficking antecedent back in 2007. The court then adjusted the indicative starting point of 30 years downwards by one year, to account for the fact that Farid’s culpability was on the lower end of the scale. As an abettor, Farid had purchased the drugs from Iskandar, and did not partake or appear to have any control over the supply and procurement of the drugs. The court thus arrived at an indicative term of 29 years’ imprisonment and applied a sentencing discount of two years to this to arrive at a sentence of 27 years’ imprisonment for Farid’s first charge. The aggregate sentence was thus reduced from 31 years’ to 30 years’ imprisonment. The court interfered with Farid’s sentence on a point of principle and not because it was manifestly excessive: at [131]–[132].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

Iskandar Bin Jinan v PUBLIC PROSECUTOR

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What was Iskandar bin Jinan v Public Prosecutor [2024] SGCA 55 about?

What factors affect the weight given to a guilty plea in Singapore sentencing?

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