Naresh Kumar s/o Nagesvaran v Public Prosecutor

Naresh Kumar s/o Nagesvaran, born on 29 January 1997, became subject to exit permit rules under the Enlistment Act at 13 and lived in India. A second exit permit, issued after an over-the-counter application at the Central Manpower Base on 3 January 2012, allowed him to stay abroad until 30 September 2013. His involvement in that application was disputed. He did not return when it expired, and came back only on 7 April 2019, when he was arrested. Requests for extensions were made by his mother and in a letter of 18 February 2014 bearing his name, whose signature he disputed, and on 19 May 2014 he was granted a deferment of National Service for overseas studies.

After a trial in which the District Judge twice amended the charge, he was convicted of failing to return to Singapore before his exit permit expired, an offence under s 32(2) read with s 33(b) of the Enlistment Act (Cap 93, 2001 Rev Ed), and sentenced to 14 weeks' imprisonment. He appealed against conviction and sentence in Magistrate's Appeal No 9220 of 2023, heard by a three-judge court of the General Division of the High Court, with a young independent counsel appointed on questions of law.

1. Whether the offence of not returning to Singapore after an exit permit expires is a strict liability offence
2. Whether the statutory defence of reasonable care in s 26H(4) of the Penal Code 1871 applies to conduct before 10 February 2020, and whether the common law defence was made out
3. Whether the conviction was otherwise unsafe, given the overseas deferment, his change of status from relevant child, and the amendments to the charge
4. Whether the sentence of 14 weeks' imprisonment was manifestly excessive

Penal provisions are read purposively under the Tan Cheng Bock framework, and the presumption of mens rea in Gammon, which binding Court of Appeal authority still recognised, was simply a tool for genuinely ambiguous cases. Section 32(2) requires no knowledge, and reading in a mental element would undermine the deterrent purpose of exit controls that Parliament linked to the universality of National Service. The prosecution need only prove that a permit was granted, that it expired, and that the accused did not return before then, which the travel records showed.

Section 26H of the Penal Code came into force after the offence and codified, rather than changed, the common law, so it had no retrospective effect. The common law defence of reasonable care from M V Balakrishnan v Public Prosecutor [1998] SGHC 169 remained available, but his case was ignorance of his obligations until late 2018, which amounted to ignorance of the law and could be no defence. In any event the District Judge was not plainly wrong in disbelieving his denial of the 2014 signature and his account of waiting outside the gates during the 2012 application; he was aware by 3 January 2012 that he needed a permit.

The deferment was an internal record that granted no exit permit, since no bond was furnished, and he did not return even when it ended. He was punishable by his age when the offence was committed, and the treaty on the rights of the child could not override clear domestic law. The amendments removed only unnecessary legal elements and left the factual case unchanged, so caused no prejudice.

Under the framework in Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] 5 SLR 707, the length of default was the key factor. Later service, his claimed ignorance and his family hardship, which had no link to his failure to return, carried no real mitigating weight.

The court dismissed the appeal against conviction and sentence, affirming the conviction and the term of 14 weeks' imprisonment. At the appellant's request, the start of his imprisonment was deferred until 21 March 2025.