In February this year, the Singapore High Court created much buzz among the public by handing down a prison sentence for 24-year-old Brian Joseph Chow, who had evaded National Service (“NS”) for six years to pursue further studies in Australia. Brian Chow’s case was one of the few cases in recent years where the Court saw it fit to sentence NS defaulters to a term of imprisonment, when typically, most offenders had been sentenced to pay a fine.
Brian Chow had initially been sentenced to a fine of S$4,500 for the offence. The Prosecution appealed, arguing that the fine was manifestly inadequate. Justice Chan Seng Onn allowed the appeal, setting aside the fine and imposing a term of imprisonment of one-and-a-half months for the offence.
At this stage, it is useful to highlight the legal framework for National Service in Singapore, which is covered by the Enlistment Act and Singapore Armed Forces Act. Cases concerning NS defaulters are primarily dealt with under the Enlistment Act (“the Act”). Section 32(1) in particular, provides that it is an offence for Singapore citizens who are liable to serve NS, to leave Singapore or remain outside Singapore for an extended period of time unless he has a valid exit permit (‘VEP’). Those who do so are deemed as NS defaulters who are liable for an offence that is punishable, under section 33 of the Act, with either a fine not exceeding S$10,000, a term of imprisonment not exceeding 3 years, or both.
Prison sentences justified for NS defaulters
In sending Brian to prison, the court stated the need for deterrence against defaulting on National Service.
The court observed that NS is vital to the security of Singapore and this necessarily entails sacrifices by NS men and their families. As such, NS obligations have to be adhered to or this would compromise the overall effectiveness and efficiency of Singapore’s defence forces. As such, the deterrence of the individual offender as well as others who might be tempted to commit the offence is necessary to advance the public interest. Chan J also stressed that except for the very limited situations where an individual may be exempted from fulfilling his NS obligations, the general policy is that all male citizens of Singapore have to postpone their individual goals in order to fulfil their obligations to the country.
Hence, the law sanctions individuals who defer their NS in order to further their studies or other life pursuits. This is because such individuals are able to gain an unfair advantage over their peers who would have to postpone such pursuits in order to fulfil their NS obligations, thereby violating the principle of universality behind NS policy.
It was on this basis that Chan J suggested that there should be a strong correlation between an offender’s culpability and the number of years he evaded NS by reason of being overseas without a VEP. Hence, “the longer [the offender] is in default, the greater is his violation of the principles of equity and universality”, which undergird NS policy in Singapore.
What determines the length of the prison sentence
The court noted that overseas defaulters who had an insubstantial connection to Singapore were only awarded fines, and according to Chan J, as a starting point, an overseas defaulter who has a substantial connection to Singapore will be sent to prison when he remains overseas without a VEP for more than 2 years. Chan J was also quick to highlight that the sentencing benchmark in this particular case related only to offenders who have a substantial connection to Singapore, thereby leaving open the possibility of a fine, in line with the precedents cited, where it concerns defaulters with an insubstantial connection to Singapore.
Citing factors such as the fact that Brian Chow had completed much of his compulsory education in Singapore, his family resided in Singapore and Brian Chow’s own intention to reside here, Chan J concluded that Brian Chow had, and will reap, the benefits of Singapore citizenship and by delaying his NS obligations, “violated the principles of equity and universality and undermined the fair share agreement.”
With regard to the major aggravating and mitigating factors that would influence the benchmark sentence to be imposed on an offender in cases similar to that of Brian Chow’s, Chan J highlighted the following:
- the number of years the offender evaded NS without a VEP;
- whether the offender voluntarily surrendered or was arrested;
- if he had pleaded guilty or claimed trial; and
- his performance during full-time NS.
On the basis of these factors, Chan J then proceeded to devise a sentencing curve graph to guide the court in determining the appropriate sentence, which is calibrated accordingly to address three hypothetical scenarios involving NS defaulters of varying degrees of culpability. He also set out the “sentencing discount” that may apply to offenders across these three scenarios if they had performed exceptionally well during NS.
In relation to the “sentencing discount” applicable, Chan J stressed that the mitigatory value of an offender’s exceptional performance would correlate with his age – the younger the offender on his return after evading his NS obligations, the greater the mitigatory value. This is because younger offenders would be more physically able to contribute to NS and his reservist obligations than an older offender.
On the basis of these considerations, Chan J concluded that the sentence applicable for Brian Chow would be a benchmark sentence of slightly below three months’ imprisonment. However, in light of his exceptional NS performance, the “sentencing discount” was applied, reducing the sentence to one-and-a-half months’ imprisonment instead.
The Melvyn Tan Case
In 2006, another case of an NS defaulter resulted in public outcry –the infamous Melvyn Tan case. Melvyn Tan, a classical pianist, had gone to England in 1969, when he was 12 years old, to study music. He failed to return after his deferment period ended and subsequently took up British citizenship in 1978 and was allowed to renounce his citizenship in 1980. When he returned to Singapore in 2007 to visit his ageing parents, he was arrested for remaining outside Singapore without a valid exit permit. Melvyn Tan pleaded guilty and was fined S$3,000 for the offence.
Many members of the public expressed outrage at the fact that Melvyn Tan received “too lenient” a sentence for his offence, when there were other cases of NS defaulters who were imposed with the maximum fine or were also sentenced to imprisonment.
In the immediate aftermath of the Melvyn Tan saga, then-Minister for Defence Teo Chee Hean issued a Ministerial Statement. Minister Teo noted that it is in the public interest that NS defaulters face a custodial sentence, unless there are mitigating circumstances. He set out the following guidelines or illustrations which the Ministry of Defence would consider as warranting the imposition of a custodial sentence, namely:
- Where the default period exceeds two years but the defaulter is young enough to serve his full-time and operationally ready NS duties in full, a short jail term would be appropriate;
- Where the defaulter has reached an age where he is no longer able to serve full-time NS in a combat vocation or fulfil operationally ready NS obligations in full, a longer jail sentence to reflect the period of NS which was evaded may be appropriate; and
- Where the defaulter has reached an age when he cannot be called up for NS at all, a jail sentence up to the maximum of three years may be appropriate.
These illustrations were also referred to by the court in Brian Chow’s case. While these illustrations affirm the deterrence principle that undergirds the new sentencing considerations, the courts still have the discretion to mete out the appropriate sentence taking into account both aggravating and mitigating circumstances in each case.
The Seow Wei Sin Case
It is also useful to consider the approach of the Court in the case of Seow Wei Sin in 2010. Seow was a 48-year-old NS defaulter who had pleaded guilty to an offence under section 32(1) of the Enlistment Act for remaining outside Singapore from 1978 to 2001 without a valid exit permit. He had been sentenced to a term of 18 months’ imprisonment and both the Prosecution and the Accused appealed against the sentence. The Court of Appeal allowed the Accused’s appeal and found the imprisonment term imposed to have been manifestly excessive – the court substituted the custodial sentence with a fine of S$5,000 instead.
The court highlighted that the seriousness of the offence under the Act should not be determined purely on the length of period of default, but also taking into account the circumstances surrounding the default, which goes towards determining the culpability of the offender. Having left Singapore at a young age and received his education and subsequently settling down in Malaysia, Seow Wei Sin had no strong or substantial connection to Singapore other than it being the place of his birth. The court there also highlighted the fact that the accused did not fit the typical case of an individual who lived and was brought up substantially in Singapore seeking to evade his NS duties. Hence, a deterrent sentence was not warranted in these circumstances given the accused’s overall low degree of culpability.
Chan J’s judgment in Brian Chow’s case has been lauded by legal practitioners and the public alike for bringing considerable clarity to the sentencing regime for NS defaulters. As a matter of public policy, the judgment also serves as a timely reminder to Singaporeans that NS is not to be taken lightly and individuals who choose to disregard their NS obligations will have to bear the consequences.