Public Interest

New Sentencing Guidelines For Scams-Related Offences

by Samuel Teo /
Criminal in handcuffs

Most people would attest anecdotally to the fact that the number of online scams have increased in recent years. This could be by way of an explosion of scam calls or emails received, or scams perpetrated via other online platforms like Carousell or Facebook. In 2023 alone, over 46,000 scam cases were reported to the police in Singapore, representing the highest number of scam cases since the police started tracking them in 2016. In that year, scam victims in Singapore lost over $650 million.

As part of the broader effort to combat the scourge of scams, the Sentencing Advisory Panel published the Sentencing Guidelines for Scams-Related Offences (Guidelines), to provide clarity on how scams-related offences should be sentenced. The Guidelines recommend a sentencing approach which recognises the devastating impact that scams have on victims, and reflects the need to send a greater deterrent signal to potential offenders. Under the Guidelines, offenders can now expect to receive a stiffer sentence for scams-related offences.

This article will cover the following topics:

What are the New Sentencing Guidelines For Scams-Related Offences?

The Guidelines were published by the Sentencing Advisory Panel on 21 August 2024. The Sentencing Advisory Panel (the ‘Panel’) comprises representatives from various legal and governmental bodies, such as the Judiciary, Ministry of Law, Singapore Police Force, the Attorney-General’s Chambers, and the Bar (i.e. lawyers admitted to practise in Singapore). The main goal of the Panel is to enhance consistency, transparency, and public understanding of sentencing practices. This is done by developing and publishing guidelines that clarify potential sentencing outcomes and the factors that influence them.

Recognising that scams have become a significant and rapidly worsening issue, Parliament introduced new offences under the Corruption, Drug Trafficking and Other Serious Crimes Act (CDSA) and the Computer Misuse Act (CMA) in 2023, which took effect on 8 February 2024. These offences specifically target individuals in Singapore who give control of their bank accounts or share their Singpass credentials with others, enabling scam syndicates to operate and launder their scam proceeds.

The Guidelines complement this effort by providing clarity on sentencing for these new offences, including recommended starting sentences and factors to consider for adjustments. To strongly deter such crimes, the Guidelines advocate for custodial sentences to be the standard for offences involving the transfer of bank account control or disclosure of Singpass credentials, applying to all offenders, including those under 21 years of age (except juvenile offenders in the Youth Court).

According to the Sentencing Advisory Panel, the Guidelines can be raised in criminal proceedings with immediate effect.

To Which Scams-Related Offences Do the Sentencing Guidelines Apply?

The Guidelines apply to the scams-related offences listed below:

  1. Section 51(1) of the CDSA: Assisting another to retain benefits of criminal conduct, by handing over control of one’s bank account knowing or having reason to believe that this would assist the other person to retain criminal benefits.
  2. Section 51(1A) of the CDSA: Rash money laundering, i.e. carrying out a transaction while having suspicions about the transaction, but not making further enquiries to address those suspicions, or negligent money laundering, i.e. continuing with a transaction despite the presence of red flags or suspicious indicators, which would be noticeable by an ordinary, reasonable person.
  3. Section 55A(1) of the CDSA: Assisting another to retain benefits of criminal conduct, by handing over control of one’s bank account without taking reasonable steps to ascertain B’s purpose of accessing, operating, or controlling the account.
  4. Section 8A of the CMA: Disclosing your own Singpass credentials to facilitate an offence.
  5. Section 8B of the CMA: Obtaining or dealing in Singpass credentials to facilitate criminal activities.
  6. Section 420 of the Penal Code: Cheating and dishonestly inducing another to deliver property, where the deception is communicated over the phone, online through a communication platform (e.g. WhatsApp), or via a website.

What Do the Sentencing Guidelines For Scams-Related Offences Recommend?

Custodial sentences are the standard or default position

The Guidelines recommend that for the above scams-related offences, custodial sentences should be the standard or default position. This is even if the offences allow for the imposition of a fine as a sentencing option. Additionally, the Guidelines recommend that this norm should apply to all offenders, even if they are below 21 years of age. The only exception would be if they are juvenile offenders being dealt with in the Youth Court. Broadly speaking, the reasons for this recommendation are that:

  • Scams-related offences are typically committed after planning and deliberation, and are related to organised criminal activity. These are aggravating factors which must be deterred via the imposition of a custodial (i.e. prison) sentence.
  • The sentences must be punitive enough and commensurate with the harm suffered by scam victims, which typically includes devastating financial losses, significant psychological harm, and even harm extending beyond the scam victims and their families (e.g. reduced trust in public institutions).

3-step sentencing approach

The Guidelines recommend a 3-step sentencing approach for scams-related offences:

  1. Step 1: Identify the appropriate starting sentence for the relevant CDSA or CMA offences.
  2. Step 2: Adjust the starting sentence, based on the presence of relevant offence-specific and offender-specific factors.
  3. Step 3: Consider the use of a disgorgement fine in addition to imprisonment.

Step 1: Identify the appropriate starting sentence for the relevant CDSA or CMA offences

For Step 1, the Guidelines prescribe starting imprisonment sentences for each CDSA or CMA offence, which reflect the differing severity of the different offences, as well as the need for deterrence and proportionality.

For example, for an offence of assisting another to retain benefits of criminal conduct by handing over control of one’s bank account without taking reasonable steps to ascertain the purpose of the other’s use of the bank account, the prescribed starting sentence is 6 months’ imprisonment. However, where the assistance was rendered knowing or having reason to believe that this would assist the other person to retain criminal benefits – which is a more serious offence – the prescribed starting sentence is 18 months’ imprisonment.

Step 2: Adjust the starting sentence, based on the presence of relevant offence-specific and offender-specific factors

With regard to Step 2, the Guidelines set out a non-exhaustive list of offence-specific and offender-specific factors which the court should take into account when considering whether to depart from the starting sentence. Offence-specific factors are factors which relate to the circumstances of the offence, whereas offender-specific factors are factors which relate to the particular personal circumstances of the offender instead.

The presence of offence-specific aggravating factors, such as the offence involving an abuse of position or breach of trust, or being motivated by personal gain, or where significant funds (i.e. $100,000 or more) are involved, would warrant an upward adjustment from the starting sentence.

Additionally, the Guidelines recommend that an uplift be imposed in cases where the scam victims are vulnerable persons, i.e. persons of or above 65 years of age, or who suffer from mental or physical infirmity, such as to render them substantially unable to protect themselves from abuse, neglect or self-neglect. If the offender specifically targeted, or knew that vulnerable persons were specifically targeted by the scams, the Guidelines recommend an uplift of at least 50% of the starting sentence. However, even if the offender did not specifically target, or did not know that vulnerable persons were specifically targeted by the scams, the Guidelines still recommend an uplift of at least 25% of the starting sentence.

On the other hand, offender-specific factors can result in upward or downward adjustments, depending on the nature of the factors. For example, voluntary surrender of the crime proceeds by the offender and cooperation with the authorities may lead to a downward adjustment of the starting sentence. If the offender demonstrates a lack of remorse, or has relevant previous convictions, this may warrant an upward adjustment instead.

Step 3: Consider the use of a disgorgement fine in addition to imprisonment

Lastly, in Step 3, if the offender has received a financial gain from his offence, the court should consider imposing a disgorgement fine (i.e. a fine for the offender to surrender the financial gain received from the offence) on top of the imprisonment sentence.

Application of the 3-step sentencing approach to case study

A closer look at the decision of Public Prosecutor v Muhamad Farhan Bin Umar [2024] SGMC 67 illustrates how the 3-step sentencing approach would be applied. In that case, the accused pleaded guilty to a charge under section 8 of the CMA for disclosing his own Singpass credentials knowingly and without authority. Another charge under section 177(1)(a) of the Penal Code for falsely informing the police that he did not furnish his Singpass credentials to anyone else, was taken into consideration for the purpose of sentencing.

At Step 1, the court noted that the Guidelines recommend a starting sentence of six months’ imprisonment for a first-time offender convicted after trial of an offence under section 8A of the CMA. The court considered that the same starting sentence of six months’ imprisonment was appropriate, if the accused had claimed trial.

At Step 2, the court considered that uplifts were warranted for the following factors:

  • The accused was motivated by financial gain to commit the offence.
  • A company was also incorporated using the accused’s Singpass credentials followed by the opening of a bank account for the company.
  • Significant funds amounting to over $130,000 flowed through the bank account which was created for and used to launder scam proceeds.

Taking guidance from the illustrations in the Guidelines, the court found that an uplift of 3 months was appropriate for the first two factors, whereas an uplift of 1.5 months was appropriate for the third factor. After adding the uplifts, the custodial sentence if the accused had been convicted after trial would be 10.5 months’ imprisonment.

At Step 3, the court considered the accused’s plea of guilt and the charge to be taken into consideration for the purpose of sentencing. For the early plea of guilt, the court applied the maximum 30% reduction in sentence recommended in the Sentencing Advisory Panel’s other Guidelines on Reduction in Sentences for Guilty Pleas. That brought the sentence down to 7.35 months’ imprisonment. With the other charge taken into consideration, the court sentenced the accused to an imprisonment term of 7 months and 2 weeks. As the accused did not receive any payment for giving up his Singpass credentials, the court did not impose any disgorgement fine.

Who Can Bring Up the Guidelines and When Would the Guidelines Apply During the Criminal Process?

Both the Prosecution and Defence can refer to the Guidelines during the sentencing stage of the criminal process, i.e. after the accused person is convicted of the offences that he/she is charged with committing.

The accused person’s conviction can follow from a criminal trial, or when the accused person pleads guilty. If the accused person pleads guilty at a sufficiently early stage, then this can be an offender-specific factor to be taken into account in deciding whether to adjust the sentence downwards.

Another point in time when the Guidelines may be relevant would be in the earlier stages of the criminal process. The Defence may also wish to explain the applicability of the Guidelines to accused persons when they are first charged.

In deciding the course of action to take, i.e. whether to plead guilty to the charges or to claim trial, one of the things that accused persons may be interested to know is the likely sentence which may be imposed on them upon conviction. Hence, the applicability of the Guidelines, as well as the recommendation of a custodial sentence as the default position, would be something which the Defence would want to advise accused persons of.

What is the Impact of the Sentencing Guidelines For Scams-Related Offences? 

The Guidelines are not legally binding

The Guidelines are not legally binding. This means that the court retains the discretion to decide whether to follow the Guidelines, and how to apply them. As of the date of this article, the Guidelines have been referred to in four published decisions of the District Court and Magistrates’ Court.

In one of the decisions, the court expressly noted that while the Guidelines are not legally binding, they are nonetheless helpful in providing guidance in passing sentences. If the court ultimately decides not to apply the Guidelines, the court should provide reasons for that.

The court may apply the Guidelines to other non-specified offences 

Additionally, while the Guidelines only recommend a sentencing approach for certain specified scams-related offences (listed above), there is a high chance that the court may apply the Guidelines to other offences, if the court considers the Guidelines to still be relevant. For instance, in all four published decisions mentioned above, the court applied the Guidelines, with the appropriate modifications, to offences which were not expressly listed in the Guidelines – section 417 of the Penal Code, and section 3(1) read with section 12 of the CMA, and section 8 of the CMA.

Section 417 of the Penal Code provides for the punishment for cheating offences. Typically, this is a less egregious form of cheating as compared to section 420 of the Penal Code, which is covered under the Guidelines. Section 3(1) of the CMA criminalises the act of knowingly obtaining unauthorised access to computer data. Lastly, section 8 of the CMA criminalises the disclosure of one’s password or access code for any wrongful gain, unlawful purpose, or knowing that it is likely to cause wrongful loss to anyone.

The court considered that the Guidelines could be applied to section 417 offences, as it was of the view that the broad sentencing principles set out in the Guidelines are, as a matter of logic, equally applicable to section 417 offences involving an offender who has deceitfully procured and thereafter relinquished a bank account that is used to funnel scam proceeds.

As for section 3(1) of the CMA, the court considered that the mischief targeted by section 3(1) of the CMA was the same as that targeted by section 55A of the CDSA, and the intent of both provisions was to deter the unauthorised access and misuse of bank accounts. Furthermore, the nature of the two offences was the same – the crux of the matter was that the offender had given up control of a bank account to another.

Lastly, with respect to section 8 of the CMA, the court noted that the mischief targeted by, and the prescribed punishment for, section 8 of the CMA is the same as section 8A of the CMA, and hence the Guidelines would apply to both provisions.

Thus, while the Guidelines were established in the context of certain specified scams-related offences, the published decisions above demonstrate that the courts may also apply the Guidelines to other non-specified offences. This is especially if the offences are related to scams and cybercrimes.

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In conclusion, the Guidelines recommend a default sentence of imprisonment for scams-related offences, and this applies to all offenders, including offenders below 21 years of age. The recommended 3-step sentencing approach also provides a standardised structure for the sentencing of scams-related offences, which starts from a prescribed starting sentence, before considering upwards or downwards adjustments based on the presence of aggravating or mitigating factors.

If you or your loved ones have been charged with a scams-related offence, you are strongly encouraged to seek further legal advice from a criminal defence lawyer. The criminal defence lawyer will be able to advise you on whether the Guidelines would apply to your specific case, and advise you on the possible sentence that may be meted out in your situation. The lawyer may also represent you in the legal proceedings, if necessary.

If you or your loved ones have fallen victim to a scam, you can also seek further guidance or advice from a lawyer on the next steps to take. A lawyer would also be able to advise you on whether it would be worthwhile or even possible to pursue a civil claim against the scammer, to recover the monies that you have lost.

Samuel Teo
NUS Law graduate keen on writing, travelling, and whipping up tasty meals for friends and family.