Understanding the Rationale and Impact of the Sentencing Advisory Panel (SAP) Sentencing Guidelines for Scam-Related Offences

I. INTRODUCTION

Between 2022 and 2023 alone, the number of reported scam cases rose by nearly 50%, involving a total amount of $651.8 million. Over the past five years, there has been more than a sevenfold rise in scam cases, accompanied by a fourfold increase in financial losses. 

In response, Parliament enacted amendments to the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and the Computer Misuse Act 1993 (“CMA”) in 2023 to tackle the rising threat of scams. In addition, the Sentencing Guidelines for Scam-Related Offences (“the Guidelines”) was published by the Sentencing Advisory Panel (“SAP”) on 21 August 2024 to clarify the appropriate sentencing framework for these offences and to send a stronger deterrent message to potential offenders. The SAP Guidelines advocate for custodial sentences as the default punishment for all offenders involved in scam-related offences regardless of whether the offence attracts a fine. This excludes juvenile offenders who are dealt with in the Youth Court.

This article seeks to provide a comprehensive overview of the guidelines, explore their underlying rationale, and assess their practical implications in legal practice. In particular, it critically evaluates the underlying principles for the sentencing uplift imposed on scam offences. 

II. OVERVIEW & RATIONALE OF THE GUIDELINES

The new guidelines play a pivotal role in combating the rise of scams in Singapore. Its stringent approach aims to curb the abuse of bank accounts and Singpass credentials in facilitating scam-related offences. 

A. SCAM OPERATIONS: THE NEED FOR INTERVENTION

In typical cases, scammers treat bank accounts as expendable tools, constantly requiring a fresh supply to replace those that have been shut down. They receive money from victims via bank accounts and quickly transfer the funds out of Singapore through online channels, making them inaccessible to local authorities. The funds are often dispersed by the time a police report is made and the bank accounts are frozen by authorities. Once frozen, scammers require new bank accounts to continue receiving money from subsequent victims. Scammers obtain new bank accounts while avoiding detection by paying individuals or offering them other forms of compensation to “buy” or “rent” their bank accounts. The same is done to acquire Singpass credentials, which enable them to open additional bank accounts for receiving illicit funds. 

As observed, Singaporeans who relinquish control over their bank accounts and divulge their Singpass credentials to others contribute significantly to the facilitation of money laundering by scammers. Accordingly, the guidelines were created to deter Singaporeans who facilitate such scams via the imposition of harsh penalties, especially since many scammers are usually based overseas and cannot be identified and prosecuted. The guidelines aim to disrupt scam operations by cutting off the supply of disposable bank accounts, which are essential for these operations.

B. THE RATIONALE BEHIND STRINGENT SENTENCING

Against this backdrop, the primary sentencing principle underpinning the guidelines is deterrence, ensuring that the opportunity cost of facilitating such crimes is sufficiently high to deter potential offenders from becoming “money mules” for easy financial gain. The stringent sentences for these offences are meant to correspond with the harm suffered by the victims. Losses suffered by victims extend beyond financial deprivation, often causing significant psychological harm as well. 

The harm resulting from scam-related offences may also have broader implications on society as a whole and far-reaching consequences globally. It may result in the deterioration of public confidence in governmental and financial institutions, as well as in the reliability of electronic transactions. This is especially crucial considering Singapore’s prominence in Asia-Pacific as a leading international financial hub with a strong private banking and asset management sector. Further, the prevalence of such offences may subvert the rule of law and legal systems, threaten the integrity of financial markets and tarnish a country’s reputation if left unaddressed. Therefore, scam-related offences also present a significant threat to both national and international security. 

III. IMPLICATIONS OF GUIDELINES IN LEGAL PRACTICE

A. THREE-STAGE FRAMEWORK FOR APPLICATION

The guidelines set out a three-stage framework to guide its application. The first step entails identifying the appropriate starting sentence with reference to the relevant CDSA and/or CMA offence. The second step requires the adjustment of the sentence in accordance with offence-specific and offender-specific factors. In the third step, the use of a disgorgement fine in addition to imprisonment should be considered. 

• STEP ONE

It is noted that there is currently no existing case law interpreting the amended provisions of the CDSA and CMA. However, following the publication of the sentencing guidelines, there has been a wealth of case law whereby the sentencing guidelines have been extrapolated to other offences, particularly the following three: (a) s 417 read with s 109 PC; (b) s 3(1) read with s 12 CMA; and (c) s 8 CMA.

(a) s 417 read with s 109 PC
S 417 PC explicitly prohibits cheating. In the context of scam-related offences, s 417 PC criminalises the cheating of banks into opening new accounts under the guise of legitimate personal banking needs, when the true intention is to relinquish control of these accounts.

Similar to s 417 PC, s 55A CDSA makes it an offence to enter into, or be otherwise concerned in, an arrangement by handing over control of bank accounts. Hence, in deciding the starting sentence for s 417 PC offences, the courts extrapolated from the recommended sentence for section 55A CDSA, scaling it down linearly from six months to four months imprisonment. This is regardless of the fact that s 417 PC prescribes a higher maximum imprisonment term of three years.

(b) s 3(1) read with s 12 CMA

S 3(1) CMA stipulates that any individual who intentionally causes a computer to perform a function to gain unauthorized access to any program or data stored in a computer commits an offence. In the context of scam-related offences, s 3(1) CMA makes it an offence to hand over control of one’s bank account to an unauthorised individual. 

The courts deemed s 55A CDSA to be similar to s 3(1) CMA in that both targeted the mischief of relinquishing control over bank accounts. Hence, in deciding the starting sentence for s 3(1) CMA offences, the courts extrapolated from the recommended sentence for section 55A CDSA, scaling it down linearly from six months to four months’ imprisonment due to the difference in the maximum punishments prescribed by both offences. Under s 3(1)(a) CMA the maximum punishment is two years whereas under s 55A CDSA it is three years.

(c) s 8 CMA

Under s 8(1) CMA, it is an offence for any individual to knowingly and without authorization disclose a password, access code, or any other means of accessing data or programs stored in a computer if the disclosure is made: (a) for wrongful gain; (b) for an unlawful purpose; or (c) with knowledge that it is likely to result in wrongful loss to another person.

Similarly, s 8A CMA applies when an offender discloses their own Singpass credentials without taking reasonable steps to verify the recipient’s identity or the intended use of the credentials. Further, both offences carry the same prescribed punishment of a fine not exceeding $10,000 or imprisonment not exceeding three years or both. Thus, the courts have decided that it would be appropriate for the starting sentence for s 8(1) CMA to be the same as s 8A CMA, which is 6 months’ imprisonment.

• STEP TWO

At the second stage of the sentencing framework, the court adjusts the starting sentence by considering both offence-specific and offender-specific factors. These factors serve to distinguish the case at hand from an archetypal case, ensuring that the final sentence reflects the culpability of the offender. Some offence and offender specific factors include the following: 

• STEP THREE

In the third step, the guidelines recommend that the court should consider  imposing a disgorgement fine in addition to the custodial sentence to deprive the offender of any illicit gains if the offender has financially benefited from the offence.

B. SENTENCING PRINCIPLES ENUNCIATED

(1) Youth is Not a “Get Out of Jail Card”

In line with deterrence being the predominant sentencing principle undergirding the guidelines, it was highlighted by the courts in Public Prosecutor v Cheah Bernice and Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy that youth is not a “Get Out of Jail Card” in serious scam-related cases. In the aforementioned cases, the offenders were 18 and 21 respectively at the time the offences were committed. While rehabilitation is usually the main sentencing principle in cases where the offender is 21 years old or below, the courts take the strong view that where the harm caused is severe, this emphasis on rehabilitation is diminished, if not eclipsed, by considerations of deterrence and retribution. Conversely, in cases where the offender is considered a youth but the harm caused is not as severe, such as in Public Prosecutor v Damian Eiyuu Ang, the courts will be likely to adjust the sentence downwards.

(2) Financial Hardship is Not a Mitigating Factor

Further, it has been outlined in the guidelines as well as underscored by the court in Public Prosecutor v Cheah Bernice that dire financial circumstances is not an excuse for committing scam-related offences and does not avail one to the benefit of leniency. Financial hardship typically does not hold any mitigatory value except in “exceptional or extreme circumstances”, which has yet to be properly defined but is recognised to only arise in extremely rare cases. This also does not extend to cases whereby the offender is a scam victim themself and trying to recoup their losses.

(3) Courts Must Remain Judicious

Ultimately, despite the stringent approach encouraged by the guidelines, the courts have emphasised the need to remain judicious in making sure that the final sentence meted out is not excessive and disproportionate to the offence. For instance, the courts caution against adopting a strictly mathematical approach in determining sentences for cheating offences based solely on the amount of criminal proceeds involved as such an exercise disregards the complexities of each case, and would ultimately be unproductive.

IV. EVALUATING THE UPLIFT FOR SCAM OFFENCES

This paper will examine a key factor that contributes to heightened punishment: vulnerable persons as victims. 

A. ENHANCED PUNISHMENT WHEN VULNERABLE VICTIMS ARE INVOLVED

The guidelines advocate for enhanced sentencing in cases where the funds channeled through the account are connected to a scam victim classified as a vulnerable person. Following the SAP Guidelines, “vulnerable persons” are defined as persons: 

The guidelines recommend an uplift of at least 50% in the sentence if the offender specifically targeted vulnerable persons, and an uplift of at least 25% in the sentence even if vulnerable persons were not specifically targeted and if the offender did not know that vulnerable persons would be affected. 

B. RATIONALE UNDERLYING THE ENHANCED PUNISHMENT 

This section focuses specifically on the scenario where a 25% uplift will be imposed on the accused when vulnerable persons are affected by the scams. Crucially, this applies even if vulnerable persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected. 

Notably, the SAP has explicitly included age (65 and above) as a criterion for vulnerability, as the statutory definition under section 74A(5) of the Penal Code only refers to the latter category (b) of mental or physical infirmity. This is despite the fact that they are the smallest age group of scam victims, making up only 7.2% of scam victims. This expansion acknowledges the heightened risks and severe consequences that scam-related offences canvassed in the Guidelines can have on older individuals. 

This sentencing uplift reflects the severe and disproportionate impact that scams have on vulnerable victims. As established in PP v Yip Kong Fai Clement, this uplift applies even when the charges relating to a vulnerable victim are taken into consideration. This is indicative of the particularly dire consequences for the elderly in such scam-related offences, as they are likely to have lost their life savings and are unable to recover the monies due to old age.

V. SENTENCING UPLIFTS FOR SCAM OFFENCES: A JUSTIFIED APPROACH?

One might argue that this approach is unfair, given that the accused neither specifically targeted nor knew that vulnerable persons would be affected. On this basis, an uplift in sentencing should not be imposed, as the accused did not deliberately exploit or take advantage of a “vulnerable person” per se.

However, this argument disregards the overarching sentencing principle of deterrence, which the SAP has emphasised in its guidelines for scam-related offences. Additionally, this paper contends that the issue of “knowledge” is adequately addressed through the difference in uplift percentages. If the accused had intentionally targeted vulnerable persons, the uplift would be 50%, whereas in cases where such intent is absent, the uplift stands at 25%. 

Furthermore, a lack of knowledge regarding who will be affected or how much money will pass through the account is unlikely to serve as a strong mitigating factor. This is because the accused knowingly relinquished control of their bank account or Singpass details to another party. As such, no argument should be made in favor of reducing the uplift on these grounds.

VI. MOVING FORWARD 

At the time of writing, Singapore has taken active steps to combat the rise in scam-related offences.In light of the escalating severity of these crimes, there have been discussions about introducing caning as a punishment for certain scam offences, given the record-high scam losses in 2024. A call has been made to the Ministry of Home Affairs (“MHA”) to consider caning for scam offences by drawing a parallel to the Moneylenders Act (“MLA”).

Under section 19(1) read with section 19(7) of the MLA, if an individual’s bank account is used to facilitate unlicensed moneylending, they are presumed to have assisted in the offence. A first-time offender under this provision faces a fine between $30,000 and $300,000, imprisonment of up to four years, and up to six strokes of the cane.

Given the principle of deterrence and the unprecedented rise in scam-related crimes, it is compelling for the new offences under the CDSA and CMA to align with the penalties under the MLA. Strengthening sentencing frameworks in this manner would reinforce the gravity of such offences and send a clear signal that those who facilitate scams will face severe consequences.

VII. CONCLUSION

The Guidelines aim to bring clarity to how the new CDSA and CMA offences should be sentenced. Notably, while the guidelines are non-binding, they have been cited in court, and subsequent sentencing decisions have largely aligned with the SAP’s recommendations.

This is a step in the right direction, as it enhances consistency and predictability in sentencing, reinforcing the deterrent effect against scam-related offences. As scams continue to evolve in sophistication, legal measures must keep pace to protect the public. By upholding stringent penalties and promoting vigilance in the use of bank and Singpass accounts, Singapore can strengthen its defences against financial crime and ensure that individuals think twice before relinquishing control of their accounts—especially when the true nature of the transactions remains unknown. A strong and consistent sentencing framework not only deters would-be offenders but also reinforces the message that accountability and vigilance are paramount in safeguarding Singapore against the ever-growing threat of scams.

Written by: Bethany Chew and Jolene Tan 
Edited by: Amy Marsh