On 29 October 2024, the Singapore Court of Appeal clarified sentencing procedure by ruling that jail time already served cannot offset fines imposed on appeal.
The unanimous decision from the judges arose from the case of Xu Yuan Chen, also known as Terry Xu, and addressed a legal query from the Attorney-General’s Chambers (AGC) on the nature of sentencing offsets when an initial custodial sentence is later varied to a fine.
The AGC had questioned whether an offender who serves a jail term without seeking a stay of execution could count that time toward a fine imposed later by the High Court.
The Court of Appeal answered unequivocally: “No”—prior jail time cannot offset fines imposed in place of that sentence on appeal. This ruling reinforces procedural distinctions between custodial terms and fines within Singapore’s legal framework.
Case Background and Initial Ruling
Xu, who served as director of The Online Citizen (TOC), faced a charge of criminal defamation relating to an article published on the TOC website in September 2018.
This article, attributed to “Willy Sum” but written by Xu’s co-accused, Daniel De Costa, contained statements such as “corruption at the highest echelons,” allegedly accusing Singapore Cabinet members of corruption.
Both Xu and De Costa were charged under Sections 499 and 500 of the Penal Code.
Initially, Xu received a three-week imprisonment sentence in April 2022. However, instead of applying for a stay of execution, Xu chose to serve the sentence immediately, partly due to his plans to relocate to Taiwan. He subsequently appealed both the conviction and sentence.
In May 2023, the High Court upheld Xu’s conviction but reduced his sentence to an S$8,000 fine with an additional two-week default imprisonment if unpaid, finding the original jail sentence for defamation “manifestly excessive.”
Justice Aedit Abdullah noted a difference in gravity between “saying the Cabinet members were corrupt” and suggesting they allowed corruption to persist through incompetence.
In response to the AGC’s objection to counting Xu’s served sentence as satisfying the two-week default imprisonment for the fine, Justice Abdullah ruled in August 2023 that the three-week jail term Xu had already served should be considered sufficient to meet the default imprisonment associated with the fine imposed.
Following this ruling, the AGC raised a public interest question to the Court of Appeal in October 2023, contending that Xu’s completed jail time should not be credited toward the newly imposed fine.
Prosecution’s Position
The AGC argued that Section 319 of the Criminal Procedure Code (CPC), which addresses fines, does not support applying served jail time to satisfy fines imposed on appeal.
The AGC’s legal team highlighted that default imprisonment for unpaid fines operates as a “prospective” consequence, triggered only if an offender fails to pay the fine. As such, they argued that served custodial time cannot retrospectively satisfy fines that replace jail terms.
The AGC underscored that default imprisonment exists to “prevent evasion of fines and enforce payment, rather than to substitute a primary custodial sentence.” Allowing credit for prior jail time would, they argued, remove the deterrent effect, as defendants might serve short jail terms to avoid paying fines altogether.
Defence’s Arguments
Xu’s counsel, Remy Choo Zheng Xi of RCL Chambers Law Corporation, argued that Xu’s completed jail term, which was equivalent to or exceeded the High Court’s two-week default sentence, should discharge his liability for the fine.
They cited Sections 318 and 319 of the CPC, contending that these provisions allow flexibility to credit served jail time toward imposed fines. Xu’s legal team argued that since the fine replaced a completed jail sentence, he should not have to pay or serve an additional term in default.
The defence also argued that this interpretation would address procedural fairness, as Xu would otherwise be penalised twice for the same offence despite having already served an initial term. They claimed that default imprisonment should be treated similarly to a primary custodial sentence, with options for the Court to consider the offender’s circumstances.
Court of Appeal’s Rationale
The Court of Appeal, led by Chief Justice Sundaresh Menon, ultimately sided with the AGC’s interpretation, emphasising the legal separation of fines and imprisonment in sentencing.
The Court ruled that allowing prior jail time to satisfy a fine imposed on appeal would contradict the purpose of default imprisonment, which is “to enforce payment of fines by deterring non-payment,” rather than substituting for prior custodial sentences. The ruling stated:
“Where an offender…elects to serve such imprisonment term…and the sentence is subsequently varied on appeal to a fine, the imprisonment term imposed in default of the payment of the fine cannot be satisfied by the imprisonment term that was earlier served.”
The Court explained that default imprisonment terms should not be treated as interchangeable with primary custodial sentences. Default terms operate “prospectively,” taking effect only if the offender fails to pay the fine, and are not intended to substitute for the original punishment. The Court further remarked:
“In the unique circumstances of the present case, we are of the view that the proper course for the Judge would have been to find that the custodial threshold was not crossed, that a fine would have been the appropriate sentence but decline to interfere with the sentence imposed by the DJ on the basis that the respondent had elected to serve the imprisonment term although he had appealed against conviction and sentence.”
Significance of Stay of Execution
The judgment underscored procedural expectations when custodial sentences are appealed. Xu’s choice to serve his sentence without seeking a stay limited the Court’s ability to alter the sentence on appeal.
Citing past cases, the Court stated that a stay of execution is crucial for preserving appellate discretion, noting:
“Our courts have emphasised the importance of seeking a stay of execution of sentence pending appeal…to ensure that the discretion of the appellate court is not curtailed by the offender having served their original sentence.”
The Court clarified that offenders who choose to serve sentences immediately bear responsibility for those decisions. Xu’s voluntary choice to serve his term, intended to facilitate his relocation, effectively bound him to accept the outcomes of that choice.
However, the Court of Appeal ultimately vacated the High Court’s S$8,000 fine and dismissed Xu’s appeal regarding the sentencing modification, affirming his original three-week imprisonment as his final sentence.
This ruling sets a precedent on Singapore’s stance regarding sentence modification and sentencing offsets, emphasising the distinct roles of fines and custodial sentences and reinforcing judicial expectations for defendants who appeal custodial terms.
