Syed Fathuddin Putra bin Syed A Rahman v Public Prosecutor

Two appeals against sentence under the Customs Act 1960 were heard together by a three-judge High Court because they raised the same question: whether the graph-based sentencing framework in Public Prosecutor v Pang Shuo [2016] 3 SLR 903 should be used for specified offences punishable under s 128L(4). The High Court in Ripon v Public Prosecutor [2023] 3 SLR 896 had told lower courts to avoid that graph as overly complex and technical. The court appointed a Young Independent Counsel to assist.

In HC/MA 9067/2023/01, Syed Fathuddin Putra bin Syed A Rahman, a paid worker for a syndicate, pleaded guilty to being concerned in delivering 262.313kg of duty unpaid cigarettes (s 128H) and storing 421.344kg in a second van (s 128I(1)(a)(ii)), with four charges taken into consideration. He received 11 and 20 months' imprisonment, consecutive, for a global 31 months. In HC/MA 9103/2023/01, Bhawal Sourov pleaded guilty on the first day of a four-day trial to dealing with 90.367kg of duty unpaid cigarettes (s 128I(1)(b)) and a related GST charge. He had hired a taxi driver to ferry the cigarettes and had been promised $25. He received 40 weeks, reduced to 33 weeks for time in remand, with a concurrent ten weeks for the GST charge. Both had been unable to pay the fines and argued their prison terms were manifestly excessive.

1. Whether the Pang Shuo sentencing framework should be used for specified offences punishable under s 128L(4)
2. Which framework should govern the offences in ss 128D to 128I of the Customs Act
3. Whether the sentences imposed on Syed and Bhawal were manifestly excessive

The court agreed with Ripon. Reading a precise starting point off a curved graph turned sentencing into an arithmetic exercise and fettered discretion. The graph was hard to read in 20kg steps, its split between an early plea and a trial without remorse did not fit cases in between, and it imposed an unexplained ceiling of 28 months for those who plead guilty despite the three-year maximum. It also gave no guidance beyond about 500kg.

The weight-based ranges of Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 suited offences measured mainly by one metric, the quantity of tobacco. Its benchmark assumptions were restated so that the offender's role is limited to the act charged; a wider role can be reflected in further charges or as an aggravating factor. Because every step in the smuggling chain serves the same twin evils of lost revenue and consumption of harmful goods, it would apply across ss 128D to 128I. Sections 128J and 128K seemed different in nature and were left open.

Syed's sentences fell well below the indicative Yap Ah Lai starting ranges and were, if anything, lenient. Family hardship carries little weight, and the two charges involved separate transactions, so consecutive terms were right. Bhawal's 40 weeks sat within the range despite an unduly late plea showing a lack of remorse, and his comparison with a reported Customs case was factually incorrect.

The High Court dismissed both appeals. It held that the Pang Shuo framework should no longer be applied and that the Yap Ah Lai framework governs the specified offences in ss 128D to 128I, reserving its decision on ss 128J and 128K.