25 April 2016
INTRODUCTION
The recent Singapore High Court (“Court”) case of PP v Chow Chian Yow Joseph Brian [2016] 2 SLR 335 (“Chow Chian Yow”) is a welcome decision that clarifies the sentencing guidelines for National Service (“NS”) overseas defaulters with a substantial connection to Singapore.
This decision also affirms that the sentencing of such NS overseas defaulters is generally premised on the fair share argument, i.e. “each citizen has a duty to do his fair share to sustain social arrangements from which all benefit”
1 and “the law is justified in using coercive power when necessary to ensure the performance of this duty”.
2 In Chow Chian Yow, the Court articulated a structured, fact-sensitive and multi-factorial approach to sentencing a NS overseas defaulter with a substantial connection to Singapore.
This article discusses the significance of the Court’s decision, and how it has clarified the benchmark sentences for such NS overseas defaulters.
BRIEF FACTS
In 2005, the Respondent, a Singapore citizen by birth, left Singapore for Australia before turning 15 years old to pursue a foundation programme.
Before his departure, the Respondent had completed his primary and some part of his secondary education under the Singapore education system. According to the Respondent, he had left Singapore as the Singapore education system was inadequately equipped to deal with his attention deficit disorder (“ADD”). The Respondent flew in and out of Singapore after his initial trip to Australia.
When the Respondent turned 16½ years old in April 2007, he did not register or obtain a valid exit permit (“ VEP”) in order to remain outside Singapore. In January 2008, the Central Manpower Branch (“CMPB”) notified the Respondent of his obligation to register for NS. Shortly after, the CMPB was informed that the Respondent was in the final year of the foundation programme and may be enrolled in a university in early 2009 if he was successful.
Despite the CMPB further notifying the Respondent that he was only eligible for deferment relating to the foundation programme and not the university course, the Respondent did not reply to CMPB until March 2009 to belatedly confirm his enrolment in an Australian university. The CMPB then informed the Respondent, via letter and e-mail, that he had committed an offence by not responding to their reporting orders and advised him to return to Singapore to resolve his NS offences. However, the Respondent failed to do so and claimed that he had not received the CMPB e-mail because he had changed his computer.
After completing his university education, the Respondent informed the CMPB on 7 May 2013 that he would voluntarily surrender on 11 May 2013 to fulfil his NS obligations. Subsequently, the Respondent enlisted for NS, where he performed exceptionally well.
In early 2015, the Respondent was convicted of an offence under s 32(1) of the Enlistment Act (“ the Act”) for remaining outside of Singapore without a VEP from 13 April 2007 to 10 May 2013, for a period of 6 years and 27 days. He was subsequently fined $4,500. The prosecution appealed against the sentence on the ground that it was manifestly inadequate.
DECISION
The Court allowed the prosecution’s appeal by setting aside the fine of $4,500 and replacing it with a 1½-month custodial sentence.
In deriving the benchmark sentence for NS overseas defaulters with a substantial connection to Singapore, the Court observed as follows:
1. Three fundamental principles that underpinned the NS policy in Singapore were national security, universality and equity. The principle of national security required NS to be served according to the prevailing defence policy, which includes operational effectiveness and fairness. The principle of universality was evidenced by the requirement for NS obligations to apply to all eligible Singaporean males and the penalties applicable for evasion of those obligations under the Act. The principle of equity ensured that when one serves NS is equally important as whether one serves NS or not, because it would be unfair to
allow an individual to defer his NS so as to further his education or life pursuits and thereby “[gain] an advantage over his peers
who would have had to postpone such pursuits”.
2. As a starting point, a custodial sentence will generally be imposed where a NS overseas defaulter who has a substantial connection to Singapore remains overseas without a VEP for more than two years. A NS overseas defaulter would be considered as having a greater connection to Singapore if he had left Singapore after commencing and/or completing his secondary education in Singapore or if his family was based in Singapore.
3. In determining the benchmark sentence for a NS overseas defaulter with a substantial connection to Singapore, the primary
factor was the length of time the offender evaded NS without a VEP. A sentencing discount may be warranted if the offender
voluntarily surrendered, pleaded guilty or performed exceptionally well during full-time NS.
Using a graphical model, the Court determined that a benchmark sentence of slightly less than 3 months’ imprisonment was applicable to the Respondent.
Although the Respondent had gained an “unfair advantage over his peers by choosing to remain overseas to complete his university education instead of returning to Singapore to discharge his NS obligations”, the Court noted that he had “voluntarily surrendered and made a significant contribution to NS through his exceptional performance in NS”.
Accordingly, the Court gave a sentencing discount of 1½ months, but did not reduce the Respondent’s sentence further as
he had submitted a “spurious argument on not receiving emails from the CMPB because of a change of his computer”.
The Court also noted that the lower court had erroneously taken into account the Respondent’s ADD in assessing his culpability. The Respondent’s culpability stemmed from the fact that he had remained in Australia “even after he knew that he was required to register for a VEP or return for NS”, and not from the fact that he departed for Australia due to his ADD.
COMMENT
This case is a laudable step in clarifying the law because of two reasons:-
1. It provides much needed clarity on the penalties for NS overseas defaulters, and introduces certainty and predictability for
subsequent cases. The timeous introduction of transparent and clear sentencing guidelines reinforces the equitable principle
of universality, which requires every Singaporean male citizen to perform his fair share towards Singapore’s national defence,
regardless of his background or circumstances;
and 2.
The guidelines are sufficiently flexible and not overly rigid, which will enable the courts to mete out an appropriate punishment.
Judges in future NS overseas defaulter cases will be able to adopt a structured approach in taking into account multiple factors, such as the overseas defaulter’s performance during NS, or whether he pleaded guilty or claimed trial.
NS is a fundamental pillar in safeguarding Singapore’s defence and security, and there should be no room for ambiguity when it comes to sentencing overseas defaulters.
The Court’s decision in Chow Chian Yow is therefore significant, because in setting out benchmark sentencing guidelines for NS defaulters, it establishes a firm stance against NS overseas defaulters who try to game the system.
1 Chow Chian Yow at [1].
2 Chow Chian Yow at [1].
3 Chow Chian Yow at [25].
4 Chow Chian Yow at [76].
5 Chow Chian Yow at [76].
6 Chow Chian Yow at [73].
7 Chow Chian Yow at [74].
8 Chow Chian Yow at [3].
For further information, please contact:
Eng Hui Chua, Partner, RHTLaw TaylorWessing
