Lian Hoe Heng v PUBLIC PROSECUTOR

1 The appellant was based in Malaysia during the events giving rise to the five charges proceeded against him. Between 2020 and 2023, the appellant worked for a drug syndicate, operating under the instructions of one “Kadi”, who was also based in Malaysia.

2 The appellant’s role in the syndicate was significant and involved the coordination of the supply and distribution of controlled drugs into Singapore. In broad overview, Kadi gave the appellant’s contact numbers to his customers, who would in turn contact the appellant with their orders. The appellant would then convey these orders to Kadi, who would then arrange for drugs to be delivered from Malaysia to various drop-off points in Singapore. The appellant would inform syndicate runners or customers to collect the drugs from these drop-off points. For his role, the appellant was paid in methamphetamine or a few hundred dollars for each order. The scale of the operation increased over time as Kadi’s customers would introduce new customers to the appellant. The 1st Charge against the appellant for abetting the trafficking of methamphetamine by another was an instance of the appellant’s role in arranging the supply of drugs. This was an offence under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

3 In addition to coordinating the supply of drugs, the appellant also handled the proceeds of the supply of Kadi’s drugs and facilitated their laundering and repatriation from jurisdiction. Acting on Kadi’s instructions, the appellant would sometimes instruct customers or runners who had collected payments for drugs from customers to transfer the moneys, representing Kadi’s benefits of drug dealing, to various bank accounts in Singapore or Malaysia. The appellant also transferred his own benefits from the enterprise from his bank accounts in Singapore to bank accounts in Malaysia and Vietnam. Sometimes, the appellant would enlist the help of one “Lao Ban Niang” to transfer the appellant’s and Kadi’s benefits of drug dealing from Singapore bank accounts to Malaysian bank accounts. The 6th, 8th, 11th and 13th Charges against the appellant related to his role in laundering Kadi’s and the appellant’s own benefits of drug dealing, which conduct constituted offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”).

4 The 1st Charge concerned the appellant’s abetment of the trafficking by one Tan Guosheng (“Tan”) of methamphetamine. In brief, the appellant had instructed Tan, a customer of Kadi, to collect five packets of methamphetamine in crystalline form (also known as “ice”, a common street name for methamphetamine) which had been left by a syndicate runner at a lift lobby of a residential block of flats in Singapore. Tan, in turn, enlisted the help of one Chew Yee Hoe Baldwin (“Baldwin”) to collect the package. After Baldwin purchased one of the packets of ice for his own personal use, he passed the remaining four packets on to Tan, who was later arrested by the Central Narcotics Bureau with the four packets of ice (which was found on analysis to contain 253g of methamphetamine) in his possession. Tan and the appellant were resultingly charged with trafficking, and abetting the trafficking, of not less than 249.99g of methamphetamine, a non-capital charge notwithstanding that the actual amount of methamphetamine in Tan’s possession was above the capital threshold of 250g.

5 The remaining four charges concerned the appellant’s laundering of the benefits of drug dealing over extended periods:

(a) The 6th Charge involved the laundering of $160,000 of the appellant’s own benefits of drug dealing by removing them from jurisdiction, an offence under s 46(1)(b) of the CDSA. Briefly, it entailed the appellant coordinating with Lao Ban Niang, under which the appellant made 14 fund transfers from his bank account in Singapore to various other accounts in Singapore, after which Lao Ban Niang procured the crediting of equivalent amounts in Malaysian ringgit in bank accounts in Malaysia. This occurred over the span of just over two months.

(b) The 8th Charge involved the laundering of $103,000 of Kadi’s benefits of drug dealing by the appellant acting in an arrangement with Tan to facilitate Kadi’s control of the moneys, an offence under s 43(1)(a) of the CDSA. Briefly, it entailed the appellant directing Tan to deposit the moneys into two Singapore bank accounts over 15 occasions during a period spanning two weeks.

(c) The 11th Charge involved the laundering of $714,180 of Kadi’s benefits of drug dealing by removing them from jurisdiction, an offence under s 46(2)(b) of the CDSA. Briefly, it entailed the appellant coordinating with Lao Ban Niang (in similar fashion to the 6th Charge), where the appellant made 202 fund transfers, over the course of a year, from his bank account in Singapore to various other Singapore accounts, after which Lao Ban Niang procured the crediting of equivalent amounts in Malaysian ringgit in bank accounts in Malaysia.

(d) The 13th Charge involved the laundering of $101,700 of Kadi’s drug benefits by transferring the moneys from his bank account in Singapore to that of another person over multiple incidents spanning just under 2 months, an offence under s 46(2)(b) of the CDSA.

6 The appellant pleaded guilty to five Charges above. 18 other charges, comprising mainly drug trafficking, drug possession and money laundering offences, were taken into consideration for the purposes of sentencing. In the court below, a Judicial Commissioner (the “Judge”) gave the appellant the full discounts in sentence for his plea of guilt (“PG discount”) that were applicable to the Charges pursuant to the Guidelines on Reduction in Sentences for Guilty Pleas (1 October 2023) (“PG Guidelines”). The Judge imposed a global sentence of 28 years and nine months’ imprisonment, which was made up by running the sentences for the 1st and 11th Charges consecutively while all other sentences were made to running concurrently. The individual sentences imposed by the Judge were as follows:

(a) 1st Charge: 25 years and seven months’ imprisonment (after a 10% PG discount was applied to a sentence of 28 years and six months’ imprisonment);

(b) 6th Charge: 12 months’ imprisonment (after a 30% PG discount was applied to a sentence of 17 months’ imprisonment);

(c) 8th Charge: 20 months’ imprisonment (after a 30% PG discount was applied to a sentence of 30 months’ imprisonment);

(d) 11th Charge: 38 months’ imprisonment (after a 30% PG discount was applied to a sentence of 60 months’ imprisonment); and

(e) 13th Charge: 20 months’ imprisonment (after a 30% PG discount was applied to a sentence of 30 months’ imprisonment).

7 The appellant appealed against the Judge’s decision to the Court of Appeal. Apart from contending that his sentence was excessive, the appellant also alleged that he had received “ineffective assistance” from his counsel below, Mr Choo Si Sen (“Mr Choo”). In brief, the appellant claimed that: (a) Mr Choo had promised to deliver a sentence of around 23 and a half years’ imprisonment, which was not fulfilled in light of the significantly higher sentence(s) imposed by the Judge; and (b) he had not seen the statement of facts until the day of his sentencing, and had only received the mitigation plea after he had been sentenced. These allegations were refuted by Mr Choo. Subsequently, after the hearing was adjourned for the appointment of an independent counsel (“IC”) to address the court on certain questions, including whether the appellant’s sentence should be enhanced if his allegations were found to be baseless, the appellant purported to retract his allegations against Mr Choo, claiming that they had been a misunderstanding caused by his lack of “language skills and understanding of the law”.

8 The appellant’s allegations against Mr Choo were baseless and had been made in bad faith. They constituted an ill-conceived bid by the appellant to improve the prospects of his appeal, and the appellant’s subsequent retraction of them was a last-ditch attempt by him to avoid the adverse consequences of making the allegations in the event that they were exposed to be false before the court. The appellant’s conduct, as a whole, was cynical, dishonest, and spoke to an abject lack of remorse on his part: at [25]–[31].

9 An accused person found to have made baseless allegations in bad faith against other persons in the proceedings, such as their counsel, would be guilty of an abuse of process. Such conduct could be legitimately considered by the court in sentencing the accused person. This was supported by: (a) the need for specific deterrence of the accused person himself; (b) the need for general deterrence to warn others off similar conduct; and (c) the need to safeguard the integrity of the judicial process: at [33]–[44].

10 There were two bases on which a court could take cognisance of the accused person’s abusive conduct in litigation to enhance his sentence. First, where the accused person had pleaded guilty, the court could reduce the mitigatory weight of his plea of guilt, in the light of the loss of the utilitarian value of the plea due to the need to respond his abusive conduct, as well as the abusive conduct indicating the absence of remorse on the accused person’s part. Second, if the court was satisfied that the accused person’s conduct reflected a lack of remorse, lack of remorse could operate as an aggravating factor warranting the enhancement to the accused person’s sentence, either on an individual-sentence level or at the aggregate-sentence level (in the case of a multiple offender): at [46].

11 The PG Guidelines recognised both utilitarian and remorse-based justifications for the mitigatory weight of a plea of guilt. The plea of guilt not only saved the time and expense of a full trial and spared the victim of the horror of testifying (if applicable), but was presumptively treated as a demonstration of some remorse on the accused person’s part. Thus, where an accused person had engaged in abuse of process such as by making baseless allegations, the effect of such conduct would be to reduce the mitigatory weight of his plea of guilt on both the front of utilitarianism (due to the wastage of resources marshalled to responding to the allegations) and remorse (due to the accused person’s abuse of process rebutting the presumption that the plea of guilt was an indication of remorse on his part): at [47], [51] and [52].

12 The PG Guidelines were not binding on the court. The court had control over whether to adopt them or how they should be applied. There was thus no legal impediment to the court deciding to disapply the PG Guidelines and giving less or no mitigatory weight to a plea of guilt if it thought it appropriate. In any event, to the extent that it was necessary to find a legal basis for reducing the mitigatory weight of a plea of guilt within the PG Guidelines themselves, this could be found in the public interest exception under para 13(b) of the PG Guidelines: at [53]–[56].

13 An accused person’s abuse of process could also indicate a lack of remorse on his part. While the court would generally not infer a lack of remorse based on omissions, positive conduct, such as making of baseless allegations in court proceedings, was a legitimate basis to draw such an inference as an accused person who sought to blame others was more likely to be unremorseful than one who accepted responsibility without reservation: at [60], [62] and [63].

14 The two bases for enhancing an accused person’s sentence based on his abuse of process (reducing the mitigatory weight of his plea of guilt and the aggravating factor of lack of remorse) could be applied sequentially in two stages. First, the court would consider if part or the whole of the PG discount given to the accused person under the PG Guidelines should be nullified. Second, if the entire PG discount was nullified, the court would consider if the accused person’s sentence(s) should be enhanced further: at [65]–[66].

15 In the absence of a cross-appeal by the Prosecution, an appellate court had the discretion to intervene in the sentences imposed by the first instance court if, among other bases, it considered the sentences to be wrong in principle or manifestly excessive or inadequate: at [72]–[73].

16 The sentence imposed by the Judge for the 1st Charge was wrong in principle and manifestly inadequate. Although the Judge had correctly identified a starting point of 28 years and six months’ imprisonment based on the appellant having trafficked not less than 249.99g of methamphetamine (which fell within the highest band of 26 to 29 years’ imprisonment under the relevant framework), the Judge had erred in failing to apply any uplift from this starting point on account of the serious aggravating factors in play: (a) first, the appellant’s central role and extensive involvement in coordinating the syndicate’s drug trafficking activities; (b) second, the appellant’s substantial financial profits from drug trafficking; and (c) third, the existence of nine charges for serious drug offences which were taken into consideration for the purposes of sentencing. The cumulative weight of these aggravating factors should have resulted in an uplift to a sentence of 30 years’ imprisonment: at [76]–[85].

17 The applicable sentencing framework for all of the money laundering charges under ss 43(1) and 46(1) of the CDSA was the framework in Huang Ying-Chun v Public Prosecutor [2019] 3 SLR 606 (“Huang Ying-Chun”), which comprised of three stages: (a) first, identifying the harm caused by the offence (ranging from slight to moderate to severe) and the culpability of the accused person (ranging from low to medium to high) based on offence-specific factors; (b) second, determining the appropriate starting point based on a harm-culpability matrix; and (c) third, making adjustments based on relevant offender-specific aggravating and mitigating factors. A common sentencing framework was appropriate having regard to how ss 43(1) and 46(1) of the CDSA were focused on the same underlying criminality and carried the same prescribed punishments: at [98]–[105].

18 Applying the Huang Ying-Chun framework, the sentences imposed by the Judge for the money laundering charges were wrong in principle and manifestly inadequate: at [109].

(a) At the first stage of the Huang Ying-Chun framework, the Judge was correct in identifying the 8th and 13th Charges as comprising of “moderate” harm due to the amounts of laundered moneys involved ($103,000 and 101,700). The 6th Charge was also in the same category although it involved a larger amount ($160,000). The Judge was also correct in identifying the harm caused by the 11th Charge as “severe” due to the substantially higher sum involved ($714,180). However, the Judge had erred in classifying the appellant as an offender of “medium” culpability. The appellant’s culpability was clearly “high”, having regard to: (a) first, his central role in the drug syndicate; (b) second, his full knowledge of the predicate offence of drug trafficking as a member of the syndicate; (c) third, the high degree of planning and premeditation on the appellant’s part in coordinating the syndicate’s operations and the movement of the proceeds of drug trafficking; and (d) fourth, the appellant’s involvement in the syndicate’s activity over a significant period of around three years: at [110]–[112]

(b) At the second stage of the Huang Ying-Chun framework, the correct indicative starting sentences based on the appellant being of “high” culpability for all of the money laundering charges and the 6th, 8th and 13th Charges entailing “moderate” harm and the 11th Charge entailing “severe” harm, were as follows: (i) 70 months’ imprisonment for the 6th Charge; (ii) 60 months’ imprisonment for each of the 8th and 13th Charges; and (iii) 100 months’ imprisonment for the 11th Charge.

(c) At the third stage of the Huang Ying-Chun framework, an uplift of 10% was applied to account for the aggravating weight of the appellant’s eight other charges under the CDSA which were taken into consideration for the purposes of sentencing. The sentences for the money laundering charges were therefore: (i) 77 months’ imprisonment for the 6th Charge; (ii) 66 months’ imprisonment for each of the 8th and 13th Charges; and (iii) 110 months’ imprisonment for the 11th Charge.

19 Given the appellant’s cynical and dishonest conduct in making baseless allegations against Mr Choo, it was appropriate to revoke the entirety of the PG discount that he had been given below. The appellant’s conduct had caused wastage of time and resources to allow the court to address his allegations, and it was also redolent of a lack of remorse on his part, which exhausted the mitigatory weight of any remaining utilitarian value of his plea of guilt in avoiding a full trial: at [119]–[120].

20 It would have been crushing on the appellant to impose an aggregate sentence, based on the sentences for the 1st and 11th Charges running consecutively, of 39 years and two months’ imprisonment. Applying the totality principle to moderate the aggregate sentence, the sentences for the 1st and 11th Charges were adjusted downwards to 27 years’ imprisonment and 84 months’ imprisonment, making up an aggregate sentence of 34 years’ imprisonment: at [126].