Chelsea Tan Yan Qi v PP – Sentencing Principles on imposing fines for Indigent Offenders

Chelsea Tan Yan Qi v Public Prosecutor [2022] SGHC 275

1. Should fines be imposed on indigent offenders who are unable to pay?

Is it appropriate to impose a fine on indigent offenders who are genuinely unable to pay their fines? This was the central question in the Magistrate’s Appeal before the Honourable High Court in Chelsea Tan Yan Qi v Public Prosecutor [2022] SGHC 75 (the “Judgment”).

On 2 November 2022, the Honourable Justice Vincent Hoong allowed the Defence’s appeal and took the opportunity to address this issue. Chelsea Tan Yan Qi (“Chelsea”) was represented on a pro-bono basis by Defence counsels Suang Wijaya and Shirin Chew of Eugene Thuraisingam LLP. Deputy Attorney-General Tai Wei Shyong SC and Ruth Teng appeared for the Attorney-General’s Chambers.

The Defence successfully persuaded the Honourable Hoong J to set aside the fines and lengthy in-default imprisonment term imposed by the Learned Senior District Judge Bala Reddy (the “DJ”) in Public Prosecutor v Chelsea Tan Yan Qi [2022] SGDC 142 (the “GD”) and impose shorter custodial sentences instead. The Judgement, which will be summarised in this article, provides useful guidance for Defence counsels and future sentencing Courts who may deal with indigent offenders facing a fine.

2. Salient facts and the decision below

Chelsea faced 6 charges under the Tobacco (Control of Advertisements and Sale) Act (Cap 309, 2011 Rev Ed) (“TCASA”). In respect of the TCASA offences, the DJ sentenced Chelsea to a global fine of SGD 23,000 and an in-default imprisonment term of 50 days’ imprisonment.

During sentencing at first instance, the Defence advanced an argument that Chelsea should not be sentenced as she would not be able to pay any fines imposed on her. Both the Prosecution and the Defence agreed that Chelsea would not be able to pay her fine, and this agreement was noted by the DJ (GD at [42] to [44]).

In support of its argument, the Defence cited the Honourable Chief Justice Yong Pung How’s (as he then was) decision in Low Meng Chay v Public Prosecutor [1993] 1 SLR(R) 46, where the Court held that where it is unambiguously clear that an offender cannot pay a fine, the fine should not be imposed even though the court would have preferred to impose a fine rather than a short term of imprisonment (at [13]).

However, the DJ ultimately declined to impose custodial sentences on the appellant as “no clear evidence regarding the Chelsea’s financial situation” was placed before the Court (GD at [44]).

3. The High Court’s decision

The Honourable Vincent J found that the DJ had erred in imposing fines on Chelsea for the charges under the TCASA.

His Honour observed that the DJ “accorded insufficient weight to the fact that the Prosecution unequivocally accepted that the appellant was unable to pay the global fine it sought, which, I note, was the sum eventually imposed by the DJ.” Further, any “lack of evidence” must be viewed and understood in light of the common position adopted by parties of Chelsea’s inability to pay her fine.

In this particular circumstance, it is overly onerous to demand that the offender adduce further evidence of her inability to pay a potential fine.

His Honour stressed that this decision “does not stand for the wider proposition that an offender who proffers a bare assertion that he is impecunious and unable to pay a potential fine must invariably be sentenced to imprisonment, as compared to fines.

By way of an example, His Honour observed that the fact that an accused person was remanded or represented by counsel acting pro bono to assist her case do not, in and of themselves, show that an offender is unable to pay a potential fine (Judgment at [24]).

In deciding the appropriate custodial sentence to be passed on an offender who is facing a custodial sentence as a consequence of their inability to pay a fine, His Honour noted that:-

The court must be alive to the reality that the custodial sentence is imposed because of the offender’s indigence and not because the egregiousness of the offence independently calls for a custodial sentence. In my view, this acts as a moderating influence on the length of the custodial sentence to be meted out on such an offender.

(Emphasis in bold underline ours)

The fines imposed by the DJ on Chelsea for the charges under the TCASA were set aside and the Honourable Vincent J imposed short sentences of imprisonment ranging from one to two weeks’ imprisonment instead for each of the 6 charges.

4. Conclusion

We welcome the Appellate Court’s guidance in respect of sentencing principles for indigent offenders who face potential fines. In particular, the clarity in relation to the relevant evidential threshold to establish that an indigent offender is unable to pay their fines will be useful for future Courts, Public Prosecutors, and Defence Counsels. Further, a sentencing framework and guideline sentencing benchmarks would be a welcomed development to structure the imposition of short imprisonment terms for impecunious offenders who were originally sentenced to a fine.

Although the issues raised regarding the methodology of calibrating in-default sentences were ultimately rendered academic due to the Honourable Vincent J’s decision to set aside the fines imposed by the DJ, we hope that the opportunity for further clarity would arise in a future and more appropriate case.

We are pleased that we have succeeded in our appeal against Chelsea’s sentence. We wish her all the best in her future endeavours.

You may read the Honourable Vincent J’s decision in full at this link.