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Suit No:	DAC 58740/2008 and ors, MA 430/2009
Decision Date:	17 Dec 2009
Court:	District Court
Coram:	Paul Quan
Counsel:	DPP Imran Abdul Hamid for the prosecution, Robert Toc (Rodrigo Tock & Wilson) and John Tan for the accused

Judgment

District Judge Paul Quan:

1          The Accused pleaded guilty before me to ten charges of unauthorised access to computer material under Section 3(1) of the Computer Misuse Act, Cap 50A (“the Act”).[note: 1] I convicted him of all the charges and imposed a total sentence of 14 months’ imprisonment.  Since this case concerned the misdemeanours of a senior police officer, I indicated to parties that I would, as a matter of public interest, issue written grounds of decision in due course.  The Accused has since appealed against the sentence.  I now set out the reasons for my decision.

2          The Accused indicated that he wished to plead guilty on the first day of the trial, after having sight of his previous statements to investigations from the Corrupt Practices Investigation Bureau.  I directed the Prosecution to prepare the statement of facts as I had intended to take the Accused’s plea that same day.  Unfortunately, owing to inadvertence on the part of the Defence, the Accused’s plea could only be taken the next day.  However, due credit should be given to the Prosecution for ably preparing a detailed statement of facts[note: 2] on the first day of the trial itself despite being put on short notice.  Subsequently, the Accused pleaded guilty and admitted to the statement of facts without qualification the next day.  It would be helpful to highlight the salient facts relating to the charges.

3          At the time when the offences were committed, the Accused was in the Singapore Police Force (“SPF”) and held the senior rank of Inspector.  He was also the Officer-in-Charge (“OC”) of the Commercial Crimes Section of Bedok Police Divisional Headquarters.  Investigations revealed that in the months of February 2005, March 2005, April 2005 and August 2005, the Accused had, on ten occasions, accessed the confidential SPF database, known as the Crimes Records Office Screening System (“CROSS”), and screened three persons, namely Nicolas Liza Choong Shamen (“NLCS”), Ow Sam Tham (“OST”) and Li Sew Lan (“LSL”) for their latest known address and criminal records.  The Accused had screened NLCS on eight occasions and on one occasion each in respect of OST and LSL.  For all these screenings, the Accused entered the case file reference G/RT/00488/2004 when in fact none of the three persons were persons of interest or relevance to the investigations of that case file.

4          The Accused admitted that NLCS was not the subject of any investigations he was involved in at the material time.[note: 3]  He conceded that he had accessed CROSS and performed an illegal screening on NLCS on 26 August 2005, thereby committing an offence under the Act.[note: 4]  In connection with this, the result of the screening on NLCS of even date was found in the Accused’s possession.[note: 5]  However, when asked pointedly whether he had screened NLCS or any other person on any other occasion for personal reasons, he denied this.[note: 6]  When the Accused was confronted with the audit log report detailing his CROSS access history confirming that he had indeed done so,[note: 7] he stated baldly that he did not have a response.[note: 8]

5          The Accused was only given authority to access CROSS for official purposes.  In this regard, the SPF’s “[Standard Operating Procedure] on Computerised Investigation Management System (CRIMES)” (“the CRIMES SOP”) clearly prohibits the abuse of screening facilities such as in the present case.[note: 9] The Accused was clearly aware that he could only access CROSS to obtain information for formal investigations or other official police business and not for personal or private purposes.[note: 10]

Antecedents

6          The Accused was a first offender and has no previous antecedents.

Mitigation

7          On Counsel’s application, the Court adjourned hearing the mitigation till a week later after the Accused’s plea was taken.  When the Court re-convened subsequently, Counsel tendered a written mitigation plea that sought to explain the circumstances surrounding the offences.[note: 11]  In respect of NLCS, the Accused did the screenings on her because she had owed him a sum of $35,000 since December 1996 and could not be contacted in 2005.  The Accused wanted to know her whereabouts so that he could initiate legal action against her to recover the outstanding debt.  Counsel alluded to the Accused’s desperation, which was exhibited by the fact that he screened NLCS on eight occasions – seven from February to April 2005 and once in August 2005.[note: 12]

8          As for the screenings done on OST and LSL, Counsel explained that the Accused knew in the early 1990s that OST was wanted by the police and that OST subsequently left Singapore.  When the Accused received information from OST’s family that OST had returned to Singapore, he felt that having OST arrested would be a feather in his cap since OST had eluded arrest for a long time.  Therefore, the Accused proceeded to screen OST.  Because the Accused knew that LSL was married to OST, he also screened her to see if she could be jointly concerned in any of OST’s activities.

9          Counsel summed up by submitting that:

(a)        The Accused’s actions did not cause any loss nor hurt to any individual;

(b)        There was nothing suffered by the victims, monetary or otherwise;

(c)        The offences were technical in nature where there was no possibility of future loss or damage to any one or any party, including the SPF;

(d)        The purpose of the Accused was not sinister in nature; and

(e)        The Accused did not profit from committing the offences.

Prosecution’s address on sentence

10        Before addressing the Court on sentence, the Prosecution informed the Court that the explanation proffered by the Defence for the screenings done on OST and LSL was not entirely complete.  The Prosecution had been previously informed that the screenings were done at the behest of Ow Sam Chuan (“OSC”), who was OST’s brother and also a friend of the Accused.[note: 13]

11        In its written submissions,[note: 14] the Prosecution sought to persuade the Court to impose a deterrent sentence on the Accused on the following grounds:

(a)        At the material time, the Accused was a senior police officer in the SPF and then OC of the Commercial Crime Section of Bedok Police Divisional Headquarters;

(b)        The breaches were committed while the Accused was officially engaged and therefore the offences were inextricably linked to his appointment;

(c)        The misconduct had corroded the internal confidence reposed by the SPF in the Accused and if the situation was not resolutely addressed, this could potentially undermine public confidence in officers like the Accused and the SPF as a whole severely;

(d)        The Accused had betrayed public trust;

(e)        The offences were premeditated;

(f)         The confidential data accessed were not readily available in the public domain;

(g)        Although the Accused pleaded guilty eventually, he did so at the eleventh hour and the Prosecution also had little problems proving the case against the Accused; and

(h)        The Accused was not genuinely contrite because of the previous position he had taken during investigations as evident from his statements.

As for the appropriate sentence to be imposed, the Prosecution referred the Court to the cases of Royston Sim Bok Kuat v PP (Magistrate’ Appeal 107 of 2000) and Lim Siong Khee v PP [2001] 1 SLR(R) 631.  Based on the latter case, the Prosecution submitted that the starting point for the present case should be 12 months’ imprisonment per charge and urged the Court to run three imprisonment terms imposed for the charges consecutively.

Defence’s reply

12        The Defence disputed that the Accused performed the screenings on OST and LSL on OSC’s request.[note: 15]  Initially, the Prosecution responded by saying that it would not pursue the point and that in any event, the crux of the Prosecution’s submissions was that the Accused had essentially accessed confidential information to advance his own private interests.[note: 16]

13        The Defence also took issue with the Prosecution’s submissions that the Accused had lied in his statements and submitted that this was attributable to memory lapses and also the way the interrogation was conducted – the questions posed to the Accused were open-ended and not specific.  As such, it would not be fair to say that the Accused had lied in the circumstances.[note: 17]

14        As for the 12 months’ imprisonment starting point suggested by the Prosecution, Counsel submitted that the positive seriousness indicators for such an offence as stated in Sentencing Practice in the Subordinate Courts (2nd ed, 2003)[note: 18] were absent.  Counsel also submitted that in respect of the screenings done on NLCS, the Accused’s conduct was not so much to “advance” but rather to “protect” his interests;where the screenings done on OST and LSL were concerned, the Accused was merely being proactive in wanting to secure OST’s arrest if he were wanted.[note: 19]

Newton hearing

15        The matter was then adjourned for a week for the Court to deliberate on sentence.  When the Court re-convened to pass sentence, the Prosecution informed the Court that it was disputing the Defence’s explanation in paragraph 3(b) of the mitigation plea as to why the screenings on OST and LSL were conducted.  This was because the Defence’s explanation was contradictory to what it had previously communicated to the Prosecution in its letter of representations (“P8”).  The Prosecution prepared detailed submissions to assist the Court in deciding whether it was proper to admit P8 into evidence which was privileged in nature.[note: 20]  As it turned out, I did not have to rule on this because the Accused waived privilege and consented to have P8 admitted into evidence.

16        The Prosecution drew the Court’s attention to paragraph 5 of P8, which stated that:

The Accused says that he accessed into the system because [LSL] is the wife of [OST] who is the brother of [OSC].

[OSC] (a friend of the Accused) informed the Accused that his brother, [OST] may be wanted by the Police and he wanted to know the status of his brother, [OST] and [LSL].

If the said OST is indeed wanted by the Police, [OSC] would not want to house [OST] and [LSL].

For the above reason, the Accused went into the system for verification of the status of [OST].

In view of the contradiction, the Prosecution urged me to convene a Newton hearing.  On the face of it, paragraph 5 of P8 did appear divergent from paragraph 3(b) of the mitigation plea, which essentially stated that it was the Accused’s curiosity, as well as the desire to see that OST was arrested if he were wanted and to be able to claim credit for his arrest, that led him to perform the screenings on OST and LSL.

17        In deciding whether it was appropriate to convene a Newton hearing, I had regard to the recent decision of PP v Soh Song Soon [2009] SGHC 249, where Choo Han Teck J expressed the view at [4] that:

A Newton hearing should not be convened unless the court is satisfied that it would be helpful in resolving a difficult question of divergent facts which would be crucial in the court’s determination of sentence.

I was also assisted by the very helpful analysis of District Judge Kow Keng Siong (as he then was) in PP v Chan Yoke Ling Catherine [2004] SGDC 108 where similar views were expressed: see [42] and [43].  I was not prepared to accept Counsel’s submission from the bar that the mitigation plea did not contain the full picture and that consequently, P8 did not contradict the mitigation plea.[note: 21] In my view, it was difficult to reconcile and resolve the divergent facts without the benefit of hearing formal evidence in this regard, in particular the Accused’s explanation for the apparent divergence.  Indeed, the facts as stated in paragraph 5 of P8 changed the whole complexion of the circumstances surrounding the screenings done on OST and LSL by the Accused.  It was no longer merely a case of unauthorised access to obtain information solely for personal gain, and this in turn had significant bearing on sentencing.  In the circumstances, I was satisfied that convening a Newton hearing would be appropriate and proceeded to do so.  Only the Accused was called as a witness for the hearing.

Evidence in chief

18        In his evidence-in-chief, the Accused gave evidence that there was no contradiction between P8 and the mitigation plea, but there was an omission in that the “request from OSC that OST might be wanted by the police and he wanted to know the status of his brother” was missing from the mitigation plea.[note: 22]  However, the Accused claimed that he had alluded to this in the mitigation plea where it stated that he had received information from OST’s family.[note: 23]

Cross examination

19        During cross-examination, the Accused:

(a)        clarified that it was not a request from OSC in the sense that OSC was not expecting a reply from him;[note: 24]

(b)        agreed that the phrase “family of Ow Sam Tham” in paragraph 5 of P8 was an oblique reference to OSC,[note: 25] as opposed to a clear and explicit reference to OSC in the mitigation plea;[note: 26]

(c)        gave evidence that the idea that he was curious about OST’s status was not so obvious in P8[note: 27] and that P8 also did not mention that arresting OST would prove to be a feather in his cap as a police officer;[note: 28]

(d)        explained that the phrase “for the above reason” in paragraph 5 of P8 meant whatever preceded that phrase, which narrowed to determining whether OST was still wanted;[note: 29] and

  (e)       explained that he instructed Counsel to dispute the point raised by the Prosecution of OSC’s involvement that led him to commit the offences because the reason why screening was done on OST was to determine if OST was still wanted and if so, to take necessary follow-up action.[note: 30]

Re-examination

20        During re-examination, the Accused clarified that the mitigation plea was an extrapolation of P8 which contained minimum bare facts and that the mitigation plea went in depth into the matters at hand.[note: 31]  He also confirmed that he only received information from OSC that OST had returned to Singapore.  OSC did not ask him for information about whether OST was wanted by the police; neither did the Accused give him any such information.[note: 32]

Findings

21        Upon the parties’ application, the matter was further adjourned for parties to put in written submissions as well as their respective replies in respect of the Newton hearing.  No replies were eventually filed.  The Prosecution submitted in the main that based on P8, the Accused performed the screenings on OST and LSL because of OSC’s request.[note: 33]  The Defence submitted that there was no material contradiction between paragraph 3(b) of the mitigation plea and paragraph 5 of P8.[note: 34]

22        Having carefully considered the evidence adduced during the Newton hearing as well as parties’ submissions, I was not persuaded that the Accused was led by personal motivation alone to screen OST and LSL as he had so claimed.  In this regard, I was satisfied that at the very least, OSC’s request formed part of his decision to do the screenings.  This was evident from the Accused’s attempts to distance himself from OSC and/or downplay OSC’s involvement.  First, whilst there was direct mention of OSC in P8, there was, at best, only an oblique reference to OSC in the mitigation plea.  Secondly, the Accused’s explanation in court as to the purport of paragraph 5 of P8, ie as conveying the idea that the reason for the screening was to determine whether OST was wanted, was highly unconvincing.  Had that been the true and only meaning of that paragraph, there was no need to be circuitous and make unnecessary reference to (a) OSC wanting to know his brother (OST)’s status; and that (b) OSC did not want to house OST and LSL if OST was wanted.  Thirdly, I found it odd that the position that the Defence took in its mitigation plea, ie that it was the Accused’s curiosity as well as desire to see that OST was arrested if he were wanted and claim credit for it, which led him to do the screenings on OST and LSL, was not made known to the Prosecution in P8.  Surely, if the intention was for the Prosecution to withdraw the charges, this ought to have been the position to be conveyed as it did not involve a third party which has an added complexion.  I therefore found it difficult to understand Counsel’s submissions in this regard that the contents of P8 and the mitigation plea were as such because each was crafted with different objectives in mind.[note: 35]   In the circumstances, I concluded that whilst the Defence might have been candid and forthright in P8, it has been regrettably economical with the true state of affairs during mitigation, particularly with OSC’s role and involvement, which was relegated to a mere passing and nondescript reference.

23        The court was led to believe that the mitigation plea represented the true state of affairs in its entirety and it was not until the Prosecution challenged certain facts in the mitigation plea that Counsel then submitted that the mitigation plea did not contain the full picture.  This was however roundly contradicted by the Accused’s evidence in court that the mitigation plea was an extrapolation of P8 which contained minimum facts and that the mitigation plea went into depth into the matters at hand.  In any event, none of the matters mentioned in P8 were elaborated upon in the mitigation plea.  It was also difficult to see how the Accused could say that the mitigation plea was an extrapolation of P8 when he agreed during cross examination that the points raised in the mitigation plea and P8 were not exactly the same.[note: 36]

24        Although I was convinced of OSC’s involvement that led the Accused to perform the screenings, I could not, however, say with any certainty that the screenings were done solely upon OSC’s request.  On the face of P8, this seemed to be the case but regrettably, OSC was not called as a witness, which would have gone some way towards establishing the extent of his involvement.  All in, I found that OSC’s request played a role in the Accused’s decision to screen OST and LSL.  The involvement of a third party as such made the screenings done on OST and LSL quite different from the screenings done on NLCS.

Prescribed punishment

25        The prescribed punishment for an offence of unauthorised access to computer material under s 3(1) of the Act for a first offender is a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years, or to both.  Parliament has seen it fit to revise the fine penalty upwards from $2,000 to $5,000 in 1998 to increase the deterrent effect of the penalty: see the second reading of the Computer Misuse (Amendment) Bill in Singapore Parliamentary Debates, 30 June 1998, vol 69 at col 395.

Sentencing considerations

26        The issue I had to consider was essentially whether a fine or a custodial sentence ought to be imposed.  Upon careful deliberation, I was satisfied that the custody threshold has been crossed in the present case and imposing an imprisonment term would be more appropriate as such, for reasons which I now turn to discuss.

Nature of the offences

27        Parliament’s intent in enacting Section 3(1) of the Act was to deal with ‘hacking’ cases: see the second reading of the Computer Misuse Bill in Singapore Parliamentary Debates, 28 May 1993, vol 61 at col 301.  The present case is not, strictly speaking, such a case.  In the present case, the Accused had authorised access to CRIMES but had abused such access to conduct searches for non-official purposes.  Be that as it may, such conduct nevertheless attracts criminal liability under Section 3(1) of the Act because it can be properly deemed to be unauthorised access.  This is on the basis that the Accused had exceeded his authority by accessing CRIMES for personal and non-official police business, when he was in fact only given authority to assess CRIMES for official purposes.  Support for such an interpretation (that access for unauthorised purposes constitutes unauthorised access) can be found in the second reading of the Computer Misuse (Amendment) Bill in 1998 (supra), where the Minister for Home Affairs Mr Wong Kan Seng expressed the view at cols 412-413 that:

By updating the Act, we are not trying to put obstacles in people's path in their use of computers by making them unauthorised users just because they have been authorised to do something but, if they were to use it for some unauthorised purposes, they will be acting against the law.

Let me assure Members that anybody who uses the computer with authority for a lawful purpose will not be caught under this Bill. So have no fear if you are using it for a proper and lawful purpose, with no intent to commit a crime [Emphasis added].

I have also been referred to the case of PP v Loh Chai Huat [2001] SGDC 174, a case involving a police officer who accessed CRIMES to screen the birth date of an individual at his colleague’s request, who in turn then put the information to his private and personal use.  In that case, District Judge Hoo Sheau Peng held the view that authority to access may be defined by the purpose for access: at [70].  Where specific authority is given to access the computer and access exceeds such authority, there is no reason why Section 3(1) of the Act should not be invoked: at [85].  Having decided that the authority given to the police officer in question was to access CRIMES for official purposes only, access for a private purpose would exceed his authority: at [93].

28        Whilst I accept that the present case might not fit the typical profile of ‘hacking’ cases which is the mischief that Section 3(1) of the Act was intended to cure, this does not give the case a less serious complexion.  It bears noting that at the time of the offences, the Accused was a police officer.  In deciding whether I should view such a status as an aggravating factor, I found the case of PP v Loqmanul Hakim bin Buang [2007] 4 SLR(R) 753 to be most instructive.  In that case, V K Rajah JA agreed at [37] that generally, whilst it may be true that an accused’s status as a police officer at the time when the offence was committed, without more, should not be an aggravating factor, it was not always the case where such status:

must, as a matter of principle, only be relevant in instances where the offences were, strictly speaking, committed in the commission or discharge of his duties [Emphasis in original].

This was so because:

the rationale underlying the imposition of a deterrent sentence where an accused party is a police officer… is the need to reflect the damage that may be inflicted on the institutional credibility of security agencies, damage to the standing of their officers and the court’s concern abut the abuse of the trust and responsibility that has been reposed in a police officer… [S]uch a sentence also serves as a salutary reminder to other serving officers, that transgressions by them will not be condoned [Emphasis added].

The real issue that is relevant and falls to be determined is whether there has been an abuse of trust and reliance placed on the officer concerned in the commission of the crime in question: at [40].

29        I was of the view that in the present case, the Accused committed the offences during the course of duty, not least because the Accused had performed the illegal screenings on his CRIMES2 terminal using his official user ID and password on workdays during normal working hours.  Whilst Rajah JA opined at [40] that not every offence committed during the course of duty would invariably be an abuse of the trust and authority that is reposed in such officers, I was satisfied that there was indeed such an incidence of abuse in this case.  A high level of trust and reliance has been reposed in the Accused qua senior officer of the force holding the rank of Inspector.  He was not only expected to conduct himself in a manner that would not bring disrepute to the SPF; he was also expected to lead by exemplary conduct.  This was all the more so because he also held an OC appointment that required him to perform a supervisory and mentoring role to junior police officers.  By his persistent criminal conduct, he had betrayed the trust and reliance that had been placed in him.  He had also blatantly abused the authority conferred upon him by virtue of his office and appointment to access CRIMES, by performing illegal screenings on no less than ten occasions to achieve his own personal and private ends.

30        The sentencing principle of deterrence is therefore applicable in the present case.  The risk of re-offending by the Accused is likely to be low since his access rights is expected to be curtailed, if not removed altogether.  As it is, Counsel has informed the Court that the Accused has already been suspended from duty.  Considerations of specific deterrence may not feature strongly as such, but I was of the view that general deterrence alone warrants the imposition of a custodial sentence.  Whilst it is hoped that officers like the Accused are few and far between, a single black sheep is one too many.  The imposition of a custodial sentence will serve as an appropriate reminder to serving and would-be officers that any involvement in criminal activity by them will be met with severe penal sanctions and that they would do well not to stray from the straight and narrow.

31        There is also considerable public interest in imposing a custodial sentence.  With every misdemeanour that a public servant commits, it lowers, in the eyes of the public, the standing of the institution from which he serves and unfairly casts a negative light on the public service as a whole.  With every public servant’s fall from grace, much would have to be done to regain the public’s confidence that has been dented.  Far from being innocuous or technical, the offences committed by the Accused in the present case have serious ramifications and strikes at the very heart of public confidence in an integral public institution such as the SPF, tarnishing the good name that other upright members of the force had painstakingly built by scrupulously enforcing law and order.  Imposing a custodial sentence also sends the correct message that no one is above the law and that public servants, like all other offenders who come before the court, will be duly punished for their misdemeanours regardless of their seniority.  This will give a resounding answer to the question quis custodiet ipsos custodes (who guards the guardians).

32        The Government’s commitment in protecting the privacy of individuals and their personal data has been recently reiterated in Parliament: see “Law on Protection of Privacy of Individual and Personal Data (Introduction)” in Singapore Parliamentary Debates, 19 January 2009, vol 85.   The public should be similarly assured that the courts take incidence of brazen breaches of privacy such as the present case very seriously so as to ensure that the confidential information and data of private citizens and individuals are properly safeguarded.

33        I also took into account the fact that the offences were easy to commit but hard to detect.  Although all screenings performed in CRIMES are logged, only random checks are conducted on the audit log to detect any unauthorised screening.[note: 37]  The difficulty in detection was exacerbated by the fact that the screenings were performed by the Accused who was a senior police officer at the material time, and that he entered an actual file reference for the illegal screenings, which gave some semblance of legitimacy and propriety.  This probably explained why the offences were committed in 2005 but only came to light fortuitously in late 2006 when unrelated investigations into other offences commenced against the Accused.

Culpability of Accused

34        Counsel sought to persuade the Court that what the Accused did would be at the lowest rung in terms of culpability.  With respect, I could not agree.  Counsel explained that the Accused resorted to screening NLCS on the sly because first, he was afraid of being embarrassed by the fact that he was cheated despite being a senior police officer;[note: 38] and secondly, he wanted to obtain the whereabouts of NLCS so as to commence legal action against her.  I found this difficult to comprehend.  On the one hand, the Accused apparently wanted to keep the folly of lending money to NLCS under wraps so that the world at large would not come to know that he, an Inspector of Police no less, had been cheated; on the other hand, he wanted to commence formal proceedings against NLCS, which would surely have outed the matter into the public domain.  If he had sought legal advice, he need not have worried about communication with his lawyer coming to haunt and embarrass him, since such communication would be privileged and therefore could not ordinarily be disclosed to third parties.  His lawyer could then have ascertained by proper means the whereabouts of NLCS through various paid searches.

35        I also had some doubts as to the extent of the desperation, which Counsel had alluded to that drove the Accused to screen NLCS on multiple occasions.  According to the mitigation plea, the Accused extended the loans to NLCS in December 1996.  NLCS only repaid $100-$200 to him subsequently and in 2005, the Accused tried to contact her about the loans without success, which then prompted the screenings.  The Court was not apprised of any effort undertaken by the Accused prior to 2005 in recovering the debt.  It was curious indeed that the Accused did not see it fit to take any significant action against NLCS until in 2005 when he could not locate her as she had been incarcerated.  It was entirely plausible that the Accused did the screenings on multiple occasions not out of desperation but because it was easy and convenient to do so as obtaining information on NLCS was merely at his fingertips.  In the process, the Accused had flagrantly disregarded and breached the CRIMES SOP on multiple occasions.  Counsel pointed out that the end which the Accused wanted to achieve (presumably the recovery of the debt) was perfectly legitimate.  However, regardless of how legitimate or even altruistic the ends might be, they do not justify the illegal means that were used to achieve them.

36        Some degree of controversy surrounds the screening done on OST and LSL.  The end was less than altruistic, even by the Accused’s own account.  Indeed, it was candidly stated that the Accused was motivated by the fact that this would be something for which he could claim credit and to add a feather to his cap.  As I have stated earlier, having had the benefit of the evidence adduced during the Newton hearing, I found that OSC’s request formed part of the Accused’s decision to screen OST and LSL.  The Accused’s conduct was reprehensible in that he had allowed himself to be influenced and compromised in such a manner at the expense of his office.

37        I was also disturbed by the fact the Accused had actually used a file reference in all of the searches when he knew the screenings had nothing to do with that case file.  For the screenings done in respect of OST and LSL, I was not convinced by the Accused’s claim that he had used the file reference out of mere convenience, especially when he knew specifically that OST was wanted for a cheating case with Ang Mo Kio Police Division,[note: 39] but neither liaised with Ang Mo Kio Police Division in this regard nor obtained the proper file reference for OST’s case.  In the circumstances, I agreed with the Prosecution that the Accused had used the file reference to mask the illegal screenings and give a false semblance of legitimacy and propriety.  It is also noteworthy that during the recording of his statement, when he was given an opportunity to explain his conduct in this regard, he failed to offer any explanation.[note: 40]

38        A plea of guilt can be taken into consideration in mitigation when it is motivated by genuine remorse, contriteness or regret and/or a desire to facilitate the administration of justice: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77].  Although the Accused pleaded guilty in this case, I was more inclined to believe that the plea was merely tactical in that he realised he had little choice but to do so because he knew his game was up.  This was consistent with the fact that he pleaded guilty at the eleventh hour during the first day of trial after having sight of his previous statements.  It is noteworthy that he was not forthcoming in his statements about all the illegal searches that he had performed and failed to give any explanation when confronted with his access records into CROSS (see [5], above).  I noted that he denied the charges and claimed he was falsely accused in all of his cautioned statements.[note: 41]  On balance, I was not satisfied that he pleaded guilty because he was genuinely remorseful or contrite.

39        As for the fact that he was a first offender, his clean record was unexceptional by virtue of the fact that he was a police officer.  It was to be expected that he would lead an exemplary crime-free life, which he did until he committed the present offences.

The sentence

40        Having decided that it would be proper to impose a custodial sentence, I next had to consider the appropriate length of imprisonment.  I did not think that the starting point ought to be 12 months’ imprisonment.  I was referred to the case of Lim Siong Khee (supra) but the facts of that case, where the sentence of five months’ imprisonment was enhanced to 12 months’ imprisonment on appeal, was aggravating in that there was malicious intent involved.  The Accused in that case accessed the victim’s email account and used that information to stalk and harass the victim.  He even sent out an email from the victim’s account containing lurid details of her purported intimate relations with the Accused to three of the victim’s friends.  On that basis, that case was therefore distinguishable from the present case.  I would have been minded to impose a heavier sentence on the charges relating to the searches done on OST and LSL had I been able to ascertain that the searches were performed solely on OSC’s request and for his benefit, and/or that information on OST and LSL was subsequently conveyed to OSC.

41        As a matter of general guidance as well as having regard to the principle of ordinal proportionality in sentencing, which essentially measures the seriousness of the present offences against other offences (see generally Xia Qin Lai v PP [1999] 3 SLR(R) at [28]), I also paid heed to other cases involving public officers who have been sentenced for committing various other crimes.  I noted that the case of Royston Sim Bok Kuat (supra) had been cited to me, albeit in relation to the offence under Section 3(1) of the Act.  This case is perhaps known more for being one in the ‘Ah Long San’ series of cases involving police officers accepting gratification from the notorious illegal money-lender, Chua Tiong Tiong, in return for using their positions as police officers to assist in his affairs: see Sim Bok Huat Royston [2001] 1 SLR(R) 588.  In that case, a police inspector was convicted after a trial of one charge of accepting such gratification under Section 6(a) of the Prevention of Corruption Act, punishable with a fine not exceeding $5,000 or with imprisonment not exceeding five years or both.  On appeal, the conviction was upheld and the Accused’s sentence was enhanced at the instance of the High Court from nine months’ imprisonment to 18 months’ imprisonment.  I note in passing that similar sentences were also meted out and upheld in the related cases of Hassan bin Ahmad v PP [2000] 2 SLR(R) 567 and Fong Ser Joo William v PP [2000] 3 SLR(R) 12, where the accused persons were sentenced to between nine to 18 months’ imprisonment after being convicted of between two to four charges of a similar nature.

42        The case of Loqmanul Hakim bin Buang (supra) was also cited to me.  I that case, a CISCO auxillary officer pleaded guilty to three counts of theft in dwelling under Section 380 of the Penal Code, punishable with a mandatory imprisonment term of up to 7 years and also liable to a fine.  On appeal, the sentence of 14 weeks’ imprisonment was enhanced to 18 months’ and 2 weeks’ imprisonment, given the aggravating facts of the case.  In PP v Gurmit Singh s/o Jaswant Singh [1999] 1 SLR(R) 82, a case referred to in Loqmanul Hakim bin Buang (supra), a police corporal pleaded guilty to three charges of using as genuine a forged document under Section 471 punishable under Section 465 of the Penal Code with a fine or imprisonment of up to 2 years or both, with seventeen similar charges taken into consideration for the purpose of sentencing.  On appeal, a custodial sentence of six months’ imprisonment was imposed, in addition to a total fine of $24,000, in default 24 weeks’ imprisonment, already imposed by the court below.

43        For the reasons I have discussed, I imposed a sentence of four months’ imprisonment in respect of each of the eight charges relating to the searches done on NLCS[note: 42] and a sentence of five months’ imprisonment each in respect of the two charges relating to the searches done on OST and LSL respectively.[note: 43]  By virtue of Section 18 of the Criminal Procedure Code, Cap 133, at least two of the sentences of imprisonment had to be ordered to run consecutively.  I ordered the sentences in respect of three of the charges[note: 44] to run consecutively, making a total sentence of 14 months’ imprisonment.

44        In ordering three sentences to run consecutively instead of the minimum two sentences as required by Section 18 of the Criminal Procedure Code, I had regard to the recent Court of Appeal decision of ADF v PP [2009] SGCA 57, wherein V K Rajah JA expressed the view at [146] that an order for more than two sentences to run consecutively ought to be given serious consideration in dealing with distinct offences when there is a pressing public interest concern in discouraging the type of criminal conduct being punished.  I was of the view that the present case was one such case.  In any event, I was of the view that the aggregate sentence imposed did not offend the totality principle in that it is not more than the maximum imprisonment term of two years for a single offence under Section 3(1) of the Act, nor is it a ‘crushing’ sentence not in keeping with the Accused’s records and prospects.  As for the ‘one transaction’ rule, although two out of the ten offences were committed on the same day within a minute of each other, V K Rajah JA has pointed out that there is no rule or principle of sentencing that distinct offences committed on the same day or in the same criminal episode must be made to run concurrently.

45        The Accused is presently out on bail pending appeal.  It remains for me to thank parties for their assistance, in particular the Prosecution.  I have found the manner in which the prosecution has been conducted to be fair, measured and even-handed and its submissions well-prepared and helpful.

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