Singapore

Legal Systems
In Class Group Presentation
 Problem Statement #1

You are prosecuting a case in the State Courts before a District Judge. The accused has
pleaded guilty to Cheating and you are arguing about sentence.
The defence has produced case law stating that the appropriate sentence would be a
fine and not imprisonment. The cases are as follows:
1. A reported English case from 1992
2. A reported English case from 2019
3. A newspaper report of a Singapore District Court case from 2020
4. A reported decision of the Singapore High Court from 2020, where the charge
was Criminal Breach of Trust
Your position is that the accused should be sentenced to imprisonment. How would
you find case law to support your position, and how would you deal with the precedents
cited by the Defence?
 Case law
How to find relevant case law must be
To support our argument for imprisonment up to
date!

STEP 1: Finding relevant cases STEP 2: Finding relevant law reports

Asking friends or cases recommended by

LawNet, Supreme Court website
the district judge

Textbooks and commentaries LII website, Singapore Law Watch website

Online research services (Lexis/Westlaw

Internet search
etc…) or the Library

Understanding the facts, the charge and the corresponding statutory provision
 Section 415 Penal Code
Section 415 Penal Code - Cheating

Whoever, by deceiving any person… or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit to do … and which act or omission causes or is likely to
cause damage or harm to any person in body, mind, reputation or property, is said to “cheat”.

Punishment for Cheating

Keywords in
Section 417 - Whoever cheats shall be punished with imprisonment for a search:
term which may extend to 3 years, or with fine, or with both. - Cheating
- Sentencing
Section 418 - cheating with knowledge that wrongful loss may be thereby - Pleaded guilty
caused to a person whose interest the offender is bound to protect - Mention of
section 415 - 420
● imprisonment for a term which may extend to 5 years, or with fine, or with both.
of penal code
- Highest court
authority
Section 420 - Cheating and Dishonestly inducing a delivery of property

- Recent decisions
● imprisonment for a term which may extend to 10 years, or with fine, or with both.

Penal Code 1871 (Cap17, 2020 Rev Ed) s 415-420

Using Search Operators

● “AND”, “OR” operators can

be used to reduce the pool
of cases

● Incorporating the three

most important key points
in search query

● Selecting what type of

resources
Utilising Search Filters

● Using Years

○ More recent decisions =

more relevant to today’s
context

● Filter through the

courts

○ Preference towards Court

of Appeal cases due to the
doctrine of stare decisis
(highest authority)
01. 03.
Sentencing Practice in the Idya Nurhazlyn bte Ahmad Khir v
subordinate Courts, Third Edition Public Prosecutor and another appeal
Volume I at [837 to 838] [2014] 1 SLR 756; [2013] SGHC 238
Persuasive arguments and precedents
Factors affecting sentence for that indicate imprisonment is an
an offence of cheating appropriate punishment under s 147

02. 04.
Public Prosecutor v Lee Hwai San Public Prosecutor v Song Hauming
Adrian Matthew [2018] SGDC 271 Oskar and another appeal
[2021] 5 SLR 965; [2021] SGHC 169
2 charges under S417:
sentenced 4 months Benchmarks cases where the accused
imprisonment for each charge pleaded guilty under s 147 and
received imprisonment
 Sentencing Practice in the subordinate Courts, Third Edition
01. Volume I at [837 to 838]
As stated by the authors of the book on Sentencing Practice in the Subordinate Courts, Third Edition
Volume I at [837 to 838] the factors affecting sentence for an offence of cheating simpliciter or its
more serious form include:
a) High value of property; h) Vulnerable victim

b) Multiple victims or multiple items involved; i) Government funds;

c) Committed over a lengthy period; j) Credit card fraud;

d) Deliberate deception rather than an omission; k) Passport or other official documents involved;

e) Carefully organized operation; l) Effect on victims particularly disastrous (eg

victim cheated of life savings, victim is a financial
f) Syndicated; institution wose reputation and standing are
adversely affected by the offence)
g) Abuse of position of trust;
m) Similar antecedent
Practitioners' Library: Sentencing Practice in the Subordinate Courts, Third Edition. (n.d.) (3rd ed., Vol. 1).
 Public Prosecutor v Lee Hwai San Adrian Matthew [2018]
02.
01. SGDC 271

● Recent case in the district courts where 2 charges under S417 was sentenced to 4 months
imprisonment for each charge

● The judge took into account all mitigating factors: First-time offender, pleaded guilty, made full
restitution, remorseful

● The judge took into account all aggravating factors: Substantial amount involved (SGD 65,000),
Premeditation and high degree of planning, Use of false documents

● Judge concluded that custodial threshold had been crossed and the imposition of high fines is
clearly inappropriate, hence the global sentence imposed on the Accused was 4 months’
imprisonment.
 Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another
03.
01. appeal [2014] 1 SLR 756; [2013] SGHC 238
[44] In my judgment, a custodial sentence will generally be appropriate as long as the offence in question
causes a victim to part with property that has more than negligible value. This is the case here, as Idya
caused Norizah and ITIS to part with the significant sums of $1,800 and $10,509 respectively. The cases cited in
Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) (“Sentencing Practice”) indicate
that custodial sentences have been imposed where the s 417 offence in question was committed for
financial gain.

● For example, in Willie Tay v PP, the offender cheated two victims of $9,000 and $15,000 each by
deceiving them into believing that new cars would be purchased for them.
○ No restitution was made. He was sentenced to four months’ and eight months’ imprisonment
on two charges under s 417,
● Low Sze Sze v PP, the offender deceived a victim into accepting as repayment for a loan forged cheques
for $1,300 and $1,100 → six months’ imprisonment on one charge under s 417.
● In Chew Im v PP, the offender cheated property agents of $19,000. Full restitution was made. She was
charged under s 417 for two of the instances of cheating relating to sums of $5,000 and $3,000 and was
sentenced to eight months’ imprisonment on each charge
● These cases indicate that sentences for terms of between four and eight
months’ imprisonment have been imposed for cheating offences that resulted
in losses of between $1,000 and $15,000.
 Public Prosecutor v Song Hauming Oskar and another appeal
04.
03.
01. [2021] 5 SLR 965; [2021] SGHC 169
[133]With regard to the accused’s early plea of guilt, I have already taken this into
account when arriving at the starting point of 12 months’ imprisonment above.

● I applied a four-month uplift from the range of four to eight months’

imprisonment set out in Idya Nurhazlyn ([26] supra) by balancing the
aggravating and mitigating circumstances
● in this case with Idya Nurhazlyn itself, Willie Tan v Public Prosecutor MA
359/93/01 and Chew Im v Public Prosecutor MA 308/2000/01 (the latter two are
unreported cases cited at [47] of Idya Nurhazlyn; see Sentencing Practice in the
Subordinate Courts (LexisNexis, 3rd Ed, 2013) at pp 839 and 843).
● All these three cases involved offenders who pleaded guilty to, inter alia, s 417
Penal Code charges. In other words, by using these cases as benchmarks, I have
already accounted for the mitigating value of the accused’s plea of guilt.
How to treat
precedents cited
by the DEFENCE
How to treat precedents cited by the defence

A reported english case A newspaper report of a

from 1992 Singapore District Court
Case from 2020

A reported decision of
A reported english case the Singapore High Court
from 2019 from 2020, where the
charge was criminal
breach of trust
A reported english case from 1992

A reported english case from 2019

 OUR ARGUMENT
Application of English Law Act 1993

Section 3.(1) Section 3.(2)

“The common law of England “The common law continues
(including the principles and to be in force in Singapore, as
rules of equity), so far as it provided in subsection (1), so
was part of the law of far as it is applicable to the
Singapore immediately circumstances of Singapore
and its inhabitants and
before 12 November 1993,
subject to such modifications
continues to be part of the as those circumstances may
law of Singapore.” require”

Application Of English Law Act ( 2020 Rev Ed) s 3

 OUR ARGUMENT
Application of English Law Act 1993

English case from 1992 English case from 2019

This case is not persuasive as: According to the Application of
● Age of case ~ 30 years in the past English Law Act 1993, this case is:
● Common law is affected by policy
decisions - of which Singapore ● Not part of Singapore law, hence,
and England are fundamentally is not binding
different ● Similar justification as 2019 case
● The court decisions from England
and other Commonwealth
Relevant cases would include recent,
jurisdictions are not legally
up-to-date Singaporean Cases as cited earlier
binding on Singapore
E.g. Idya Nurhazlyn v PP [2014] 1 SLR 756
Application Of English Law Act ( 2020 Rev Ed) s 3
Eugene K B Tan, G. C. (2019, February 7). Ch. 01 The Singapore Legal System. Retrieved from Singapore Law Watch:
https://www.singaporelawwatch.sg/About-Singapore-Law/Overview/ch-01-the-singapore-legal-system
A newspaper report of a Singapore District
Court Case from 2020
 OUR ARGUMENT

Admissibility of Newspaper Articles

● Highly opinionated, unreliable source for court’s decision

○ Reliable sources include LawNet, Supreme Court Website etc…)
● District Court case is not binding on Singapore cases
● Unofficial source means the Ratio of the case may be inaccurate, ambiguous or
even politically construed - goes against principles of judicial precedent

● An argument based on a stronger

argument (fortiori) is present in
Abdul Aziz bin Mohamed Hanib v
Public Prosecutor and other appeals
[2022] SGHC 101
A reported decision of the Singapore High
Court from 2020, where the charge was
criminal breach of trust (CBT)
 OUR ARGUMENT
Interpreting both Statutes
Purposive Approach

● Section 9A(1) of the Interpretation Act requires the construction of written law' to
promote the purpose or object underlying the statute.

● Using this approach, we can ascertain the intent of the Statute through the words
of the statute. As both statutes refer to different types of offenders, the reported
decision by the SGHC is irrelevant to the facts of this case.

Interpretation Act 1965 (Cap2, 2020 Rev Ed) s 9

 Cheating VS CBT

Section 405 Penal Code -

Criminal Breach of Trust
“Whoever, being in any manner entrusted Section 415 Penal Code -
Cheating
with property… dishonestly
misappropriates or converts to his own use
that property, or dishonestly uses or
disposes of that property in violation of “Whoever, by deceiving any person… or
any direction of law prescribing the mode in intentionally induces the person so
which such trust is to be discharged, or of deceived to do or omit to do anything
any legal contract, express or implied, which which he would not do or omit to do …
he has made touching the discharge of such and which act or omission causes or is
trust , or intentionally suffers any other likely to cause damage or harm to any
person to do so, commits “criminal breach person in body, mind, reputation or
of trust”. property, is said to “cheat”.
Penal Code 1871 (Cap17, 2020 Rev Ed) s 405
Penal Code 1871 (Cap17, 2020 Rev Ed) s 415
 Cheating VS CBT

Section 405 Penal Code -

Criminal Breach of Trust
Section 415 Penal Code -
Per Wong Seng Kwan, Chan J explains, Cheating
As for criminal breach of trust, the accused person is entrusted
with property or dominion over the property at the outset by
another person, and he dishonestly uses or disposes of that
property in abuse of trust [W]hile for cheating, the possession of
the property is voluntarily handed over to the accused person as
a result of his deceitful or fraudulent misrepresentation.

Penal Code 1871 (Cap2, 2020 Rev Ed) s 11

Penal Code 1871 (Cap2, 2020 Rev Ed) s 22
Penal Code 1871 (Cap17, 2020 Rev Ed) s 405
Penal Code 1871 (Cap17, 2020 Rev Ed) s 415
 OUR ARGUMENT
Interpreting both Statutes

Distinguishing between provisions

● No similarity in phrasing of the provisions

○ s 405 and s 415, both sections refer to two completely different charges and
hence, the reported decision by the SGHC is irrelevant to the facts of this
case.
● CBT has stricter sentencing measures
(comparing most lenient sentencing guidelines)
■ Section 417 (Cheating) - “...punished with imprisonment for a term
which may extend to 3 years, or with fine, or with both.”

■ Section 406 (CBT) - “... punished with imprisonment for a term which
may extend to 7 years, or with fine, or with both.”

Penal Code 1871 (Cap17, 2020 Rev Ed) s 405

Penal Code 1871 (Cap17, 2020 Rev Ed) s 415
Conclusion
 Problem Statement #2

Identify the ratio of this case and any obiter comments. Determine which courts this
case is binding on:

Public Prosecutor v Osi Maria Elenora Protacio [2016] SGHC 78

 Defining Ratio

“PERSPECTIVE or BINDING RATIO DECIDENDI”

“Any rule of law expressly or impliedly
treated by the judge as a necessary step in “DESCRIPTIVE RATIO DECIDENDI”
reaching his conclusion, having regard
to the line of reasoning adopted by him.” “Statement of the aterial facts and
the conclusion based on them”
Defines the Internal perspective of the
Objective and interpretive approach from the
judge deciding the case perspective of an outsider towards the case
precedent itself.
Identifies and delimits the reasoning
which a subsequent court is bound to It describes the process of reasoning by
follow. which the decision was reached.

Gary Chan Kok, J. T.-T. (2015). The Legal System of Singapore -

Institutions, Principles and Practices. Singapore: LexisNexis.
 Defining Obiter
Obiter Dicta refers to
Statements in a judgment that
are incidental or go beyond
the main points necessary for
deciding the case at hand.

Obiter comments are non-binding on

subsequent courts but possess
persuasive effect in a judgment.

Some examples include:

- Hypothetical statements to what the
legal principles may be if facts were different
- Comments on the appropriateness of past
precedents
- Judicial statements emanating from foreign courts.
Gary Chan Kok, J. T.-T. (2015). The Legal System of Singapore - - State a principle by way of illustration or analogy
Institutions, Principles and Practices. Singapore: LexisNexis.
 RATIO DECIDENDI
Public Prosecutor v Osi Maria Elenora Protacio [2016] SGHC 78

The ratio decidendi is derived from the rules that are necessary and expressly used by
the judge to arrive at his conclusion
● Only in “rare” and “very exceptional or extreme circumstances” would an accused’s
financial hardship be treated as a mitigating factor (Lai Oei Mui Jenny v PP [1993] 2 SLR(R)
406 at [10]).

● However, taking into account the TIC charge and the large sum of $26,624.25 that made up
the Misappropriated Funds, as well as the extensive length of time the Respondent was
engaged in dishonest misappropriation (19 months as opposed to just 4 and 1.5 months in
Tham Whye Tong and Lim Yew Heng respectively), the sentence given should be adjusted
upwards to reflect these aggravating factors.

● Both specific and general deterrence are key sentencing considerations where CBT
offences are concerned (see Tan Kim Hock Anthony v PP [2014] 2 SLR 795 at [43]).
 Obiter Dicta
Public Prosecutor v Osi Maria Elenora Protacio [2016] SGHC 78

● These are not borne out based on the present facts. One cannot modify a sentence merely
because the family will suffer.

● I am of the view that the District Judge had placed insufficient weight on these two
aggravating factors, and too much weight on the mitigating factors such as the
Respondent’s clean record, plea of guilt, full restitution and difficult financial
circumstances.

● Furthermore, the existing precedents set out above all also involved accused persons who
pleaded guilty, made full restitution and had clean records (see Table 1 above).

● Based on the sum of $14,089.95 misappropriated in the proceeded charge, the present case
would be comparable to the figures involved in the proceeded charges in Tham Whye
Tong and Lim Yew Heng. However, taking into account the TIC charge…
RATIO DECIDENDI
Which courts are legally bound by the
precedent(s) set in PP v Osi Maria?

Singapore’s Stance
Only vertical stare decisis applies
in Singapore (NOT horizontal)

As PP v Osi Maria is a high court

case, it is binding on District
Courts and Magistrates’ Courts
Conclusion