Sentencing in Cheating Offences

The offence of cheating can cover a myriad of transactions with differing modus operandi involving different sums of money. Further, it is common for an accused person to face multiple cheating offences, which gives rise to the possibility that the prosecution may elect to proceed on some charges and have the remaining charges taken into consideration for sentencing. Sometimes, the cheating scam may involve several offenders, each with differing culpability. Therefore, depending upon the circumstances, sentencing in cheating cases can sometimes be difficult to predict. In this article, Mr Lee Teck Leng discusses sentencing considerations in cheating offences in general.

The Starting Point in Sentencing

Generally speaking, a person accused of cheating can be charged under either sections 417 or 420 of the Penal Code (Cap 224) (the Code). The starting point in sentencing would invariably be the section under which the offence has been classified.

Simple cheating is punishable under section 417 of the Code with imprisonment for a term of up to one year, or with a fine or both. Imprisonment is not mandatory. Generally, if the quantum involved is reasonably small and there are no aggravating factors, the courts would be prepared to impose only a fine.

Aggravated cheating is punishable under section 420 of the Code with imprisonment for a term of up to 7 years, and the offender is also liable to fine. Imprisonment is mandatory. Hence, the best sentence that any accused can possibly expect under section 420 would be one day’s imprisonment coupled with a fine. This can happen only if there are no aggravating factors whatsoever and the mitigating factors are exceptional.

For instance, in Seaward v PP [1994] 3 SLR 369, the appellant was the chairman and director of the Calvary Charismatic Centre and he was convicted of conspiring to cheat Hong Leong Finance Ltd by inflating the price of the goods in order for the Centre to obtain a higher loan quantum in the hire purchase financing. Despite claiming trial, he was sentenced to one day’s imprisonment and fined $10,000. On appeal, the sentence was upheld.

Another case on point would be Edmund Nathan v PP [1997] 3 SLR 782. The appellant was an advocate and solicitor who was jointly convicted with his client of cheating a bank by deceiving the bank into believing that the purchase price of a property was $190,000 when the client’s intended purchase price was $110,000. Despite claiming trial, the trial judge imposed a nominal custodial sentence of one day’s imprisonment and a $10,000 fine, bearing in mind the mitigating factors, in particular, the fact that the appellant did not personally gain anything from the offence. On appeal, the sentence was affirmed.

However, notwithstanding Seaward and Edmund Nathan, it must be emphasised that the courts are generally not inclined to impose such a nominal one-day custodial sentence, unless the case is truly exceptional.

As such, if an accused faces a charge under section 420, it is imperative that the solicitor makes representations to the Attorney-General’s Chambers to try and reduce the charge to one under section 417. As a rule of thumb, the accused must make full restitution before the representations can have any serious chance of succeeding.

The Quantum Involved

In almost all cheating cases, the accused would have gained financially. The courts will always look at the quantum involved in the offence as a starting guide. Naturally, the higher the quantum, the heftier the sentence.

In Liza bte Ismail v PP [1997] 2 SLR 454, the appellant was convicted on, inter alia, five cheating charges. She committed the offences while she was an accounts clerk with a company. The amounts involved in the five cheating charges were $500, $1,040, $1,520.64, $2,047.50 and $4,825. The trial judge imposed a sentence of two weeks’ imprisonment for the cheating charge involving $500, one month’s imprisonment for the next three charges, and a sentence of two months’ imprisonment for the charge involving $4,825. The sentences were not disturbed on appeal.

In Ng Kwee Seng v PP [1997] 3 SLR 205, the appellant was convicted on one charge of cheating the victim into handing him $8,000 in cash. He had deceived the victim into believing that he owned a bunkering business and that the victim could earn $4,000 profit by investing a sum of $8,000 in the business. The trial judge imposed a sentence of five months’ imprisonment, which was affirmed on appeal.

In Foo Tiang Khim Julian v PP [1998] 1 SLR 313, the appellant was convicted on one charge of cheating a bank officer by deceiving her into believing that he was authorised to encash a $30,000 cheque. The trial judge imposed a sentence of eight months’ imprisonment after noting that the usual punishment for a cheating offence involving $30,000 was actually 12 months’ imprisonment. On appeal, the sentence was affirmed.

In Ong Eng Huat v PP [1998] 2 SLR 863, the appellant was convicted on two charges of cheating two different car dealers into paying him two deposits amounting to $40,000 and $25,000 after deceiving them into believing that he had a car to sell to them. The trial judge imposed a sentence of nine months’ imprisonment per charge. The sentences were not disturbed on appeal.

In Gunasegeran s/o Pavadaisamy v PP [1997] 3 SLR 969, the appellant was convicted of, inter alia, one charge of cheating a Japanese person into paying him $60,568 for the purchase of a car. The trial judge imposed a sentence of eight months’ imprisonment. On appeal, the sentence was enhanced to 12 months’ imprisonment, in the light of the aggravating factor that the victim was Japanese and the appellant’s conduct gave Singapore a bad name.

In Syed Jafaralsadeg bin Abdul Kadir v PP [1998] 3 SLR 788, the appellant was convicted on one charge of cheating the victim into paying a sum of $50,000 as commission in the purchase of a property. The trial judge imposed a sentence of 18 months’ imprisonment. On appeal, the sentence was not disturbed.

In Tan Sai Tiang v PP [2000] 1 SLR 439, the appellant pleaded guilty to ten charges of cheating the Singapore Swimming Club by submitting false jackpot vouchers to the club’s cashiers. Another 390 similar charges were taken into consideration against her. The total amount involved in the 400 charges was $102,959.80. The appellant made full restitution. The trial judge imposed a total sentence of 24 months’ imprisonment. On appeal, the total sentence was reduced to a total of 18 months’ imprisonment.

In Gan Bee Hwa & Ors v PP (MA 7/98, unreported), the three appellants were charged with conspiring to cheat the victim into selling his apartment to one of the appellants for a lower sum of $1.99m when there was actually an offer for $2.1m, thereby causing the owner to lose about $110,000. The appellants thereafter sold the said apartment for $2.32m, thereby making a wrongful gain of about $320,000. On appeal, the 24 months’ imprisonment sentence imposed by the trial judge on the mastermind was affirmed.

In Lee Foo Choong Kelvin v PP [1999] 4 SLR 318, the appellant was convicted on one single charge of cheating the victim of a sum of US$300,000 by deceiving him as to the conditions for certain loan applications. The trial judge imposed a sentence of 24 months’ imprisonment. On appeal, the sentence was enhanced to 36 months’ imprisonment in the light of the huge sum involved (about S$500,000) and the appellant’s defiant conduct.

In Er Joo Nguang v PP [2000] 2 SLR 645, the appellant was convicted by the High Court on appeal on a cheating charge for deceiving the victim into delivering goods worth US$301,673 (about S$500,000), which he later sold. The learned Chief Justice imposed a sentence of four years’ imprisonment.

From the decided cases, the sentencing tariffs for cheating offences under section 420, based on the quantum in each charge, would be as follows:

The Modus Operandi

The nature and manner in which cheating offences occurred are important sentencing considerations. If a cheating offence involves a deception that takes on a degree of sophistication, or if the accused was part of an organised syndicate, that would be an aggravating factor that would attract a much higher sentence.

For instance, heavy sentences are imposed for cases involving credit card frauds which are both sophisticated and almost always syndicated. In Ong Tiong Poh v PP [1998] 2 SLR 853, the appellant faced, inter alia, eight charges of abetting his accomplices to cheat with fake credit cards. The value of the items set out in the eight charges ranged from $500 to $3,078, which would attract sentences not exceeding four months’ imprisonment per charge. On appeal, the learned Chief Justice held that the appellant was part of a sophisticated syndicate, capable of committing credit card fraud on a large scale and skilled at avoiding detection, and imposed a sentence of 20 months’ imprisonment for each abetment charge and ordered three sentences to run consecutively.

Even if the deception was not in any way sophisticated but is abhorrent in the eyes of the law, the courts will still impose a substantial term of imprisonment because of public interest, even though the quantum of money cheated may not be very significant.

For instance, in Shan Rajagopal v PP (MA 191/96), the appellant was a lawyer convicted on, inter alia, two counts of cheating the victim into believing that he could ask someone in the police force and the Attorney-General’s Chambers to withdraw all the charges against the victim, thereby inducing the victim into handing him two sums of $21,000 and $20,000 meant as bribes. On appeal, the sentences were enhanced to three years’ imprisonment per charge, with two sentences to run consecutively.

Even if a cheating offence does not involve any money, a substantial term of imprisonment would be imposed if the cheating scam was well organised and has far-reaching impact if left unchecked.

For instance, in Jimina Jacee d/o CD Athananasius v PP [2000] 1 SLR 205, the appellant was convicted on four charges of abetting persons to cheat the counter staff at Singapore’s Changi International Airport terminal. The offences arose out of a fraudulent scheme to enable some Sri Lankans to get on board an aircraft bound for Sydney, even though they did not possess the requisite visas to enter Australia. The plan was for the principal offenders, who had the necessary visas, to check in for a flight which was scheduled to depart for Sydney from Singapore, and the boarding passes procured by these principal offenders would subsequently be handed to the Sri Lankans. For her part in the scam, the appellant received a sentence of nine months’ imprisonment per charge, two of which were ordered to run consecutively.

Making Restitution

One of the key considerations in sentencing cheating offenders is whether or not the accused has made restitution to the victim. It is trite law that making restitution is generally considered a mitigating factor that would usually entitle an accused person to a discount in sentencing (see Krishan Chand v PP [1995] 2 SLR 291 and Tan Sai Tiang v PP). The reason is simple: by making restitution, the accused would have disgorged the ill-gotten gains and he would no longer stand to gain financially from the offence.

As regards the sentencing discount given, it would be around one-third off the normal sentencing tariffs. This can be gleaned from Lim Maureen & Anor v PP (MA 133/98). In that case, the appellant cheated two bank officers by applying for hire purchase using false delivery orders and invoices. The first charge involved $25,000 while the second charge involved $25,781. The appellant made full restitution for the second charge but he did not make any restitution for the first charge. The trial judge imposed a sentence of nine months’ and six months’ imprisonment for the first and second charges respectively, even though they involved almost identical sums. The one-third discount for the second charge was obviously credit given to the appellant for the restitution. On appeal, the sentences were affirmed.

Offenders Facing Multiple Charges

It is very common for an offender to face multiple cheating charges, each involving different sums of money. Upon representations, the Attorney-General’s Chambers would usually agree to proceed on a few charges and have the remaining charges taken into consideration, if the accused elects to plead guilty. There are three points to note in such cases.

First, the effect of taking into consideration outstanding offences is to enhance the sentences that would otherwise be awarded (PP v N [1999] 4 SLR 619). In the circumstances, on a per charge basis, the sentences are very likely to increase. Depending on the number of charges taken into consideration and the aggravating factors, the sentences per charge could be several times the normal sentencing tariff.

For instance, in Tan Sai Tiang v PP, the quantum involved in the ten cheating charges proceeded on ranged from $220 to $771.20. Although the tariff sentence for a quantum less than $1,000 is two to four weeks’ imprisonment, the trial judge imposed on the appellant a sentence of six months’ imprisonment per charge, of which four were ordered to run consecutively. On appeal, the sentence of six months’ imprisonment per charge was affirmed, but only three sentences were made to run consecutively, giving a total of 18 months’ imprisonment.

Secondly, in determining the total sentence to be imposed against an offender facing multiple charges, the courts would not look only at the quantum involved in the charges proceeded on. Instead, the courts would usually consider the total quantum involved in all the charges faced by the accused, including those charges that were merely taken into consideration for sentencing. This is because the number of charges that the prosecution decides to proceed on in any given case is strictly a matter of plea bargaining between the parties. The number of charges proceeded on and the quantum involved in those charges would usually not be allowed to detract from the full extent of the financial gains made by the accused.

Tan Sai Siang v PP amply illustrates this point. In that case, the total amount involved in the ten charges proceeded on was $4,431.20. If the appellant had been charged with one single cheating offence involving $4,431.20, the sentencing tariff would have been only two to four months’ imprisonment. Yet, she received a total of 18 months’ imprisonment because the court obviously bore in mind the total quantum involved in the 400 charges was $102,959.80.

Thirdly, the total sentence imposed on an offender convicted of multiple charges would still bear some semblance to the sentence that may be passed in a case where an offender is convicted of a single cheating offence involving the same sum of money. This is due to the fact that from the victim’s viewpoint, the sentences to be imposed should not, logically speaking, depend greatly on whether the victim was cheated a hundred times amounting to a total of $250,000 or cheated once to the tune of $250,000. Having said that, it is also quite clear that an offender who has cheated a victim of small amounts a hundred times over is a serial offender and he would rightly be regarded as being more culpable than an offender who cheated only once, albeit of a large sum. Amalgamating both perspectives, it would appear that the total sentence imposed on the serial cheat would probably be slightly higher than the sentence imposed on an offender convicted of a single cheating offence, if the total quantum cheated is identical in both instances. This point is important because it means that the sentencing tariffs tabulated would still be applicable for cases involving multiple charges.

Multiple Offenders

It is common for cheating scams to involve more than one offender. As a rule, consistency in sentencing is a desirable goal, but it is not an overriding consideration (Yong Siew Soon v PP [1992] 2 SLR 933). In sentencing multiple offenders for a cheating scam, the courts will always consider the culpability of each individual offender and impose different sentences on the various offenders to properly reflect the difference in their culpability if necessary.

For instance, in Gan Bee Hwa & Ors v PP, the first appellant was the real estate agent appointed to sell the victim’s apartment. The second appellant was the one who masterminded the scam. The third appellant was the appointed buyer who bought the apartment from the victim at a lower price. The trial judge sentenced the first and second appellants to 24 months’ imprisonment and the third appellant to 20 months’ imprisonment. On appeal, the learned Chief Justice reduced the first appellant’s sentence to six months’ imprisonment on the ground that she was a new real estate agent with that particular deal being her very first transaction and she was also manipulated by the second appellant.

Conclusion

The sentencing tariffs tabulated based on some decided cases would only be a general guide. Other factors such as whether the accused has shown remorse by pleading guilty and making restitution, the precise way in which the deception occurred, whether the prosecution is asking for a deterrent sentence, the total number of charges proceeded on and taken into consideration, etc, must all be taken into account when advising on the possible sentencing range which an accused faces for his cheating charges.

Lee Teck Leng
Tan Peng Chin & Partners