The High Court has dismissed appeals by the prosecution and also by a "defiant" doctor against his sentence for selling codeine cough mixture, even while he was under investigation for doing so.
Tan Gek Young was fined $130,000 and will begin serving his sentence of two years' jail on Sept 4, after his request for a deferment was granted.
Although the total sentence remained, Judge of Appeal Chao Hick Tin varied the individual jail terms for some of the charges in his decision yesterday.
Tan, 61, a Singapore permanent resident, sold more than 2,300 litres of cough mixture at his Bedok clinic between January 2014 and June 2015. This was one of the highest quantities among such illegal sales. It was also the first case of its kind to reach the High Court on appeal.
Both Tan and the prosecution appealed against the sentence, with prosecutors also urging the court to lay down a sentencing framework.
But Judge Chao said yesterday that there were insufficient precedents at the moment, making it difficult for the court to formulate detailed sentencing guidelines.
Litres of codeine cough mixture sold at Tan's Bedok clinic between January 2014 and June 2015.
He cited how six previous similar cases were prosecuted under different criminal provisions in the Poisons Act and Medicines Act.
However, Judge Chao agreed that the illicit sale of codeine cough mixture has become a "prevalent problem", citing figures by the Health Sciences Authority. The number of cases investigated reached a high of 67 in 2015, compared with between 43 and 61 in the three preceding years. There were 53 cases last year till November.
Deterrence should be the primary sentencing consideration, he said. In his written judgment, he raised several issues with the sentencing range proposed by the district judge, which would increase in proportion to the quantity of codeine cough mixture involved.
The prosecution had also suggested that a jail term and fine must be imposed on doctors who profited from such illicit sales, even if the quantity supplied was small.
In addition, a stiffer sentence is required if the quantity sold indicates that it is for the purpose of resale.
For instance, the prosecution had said that the sale of a 3.8-litre canister of cough mixture must be for the purpose of resale, while a 900ml bottle would not suggest this.
Judge Chao said it was unclear why this must be so, adding that it would not be "wise" to lay down sentencing bands tied to the quantity of codeine cough mixture supplied, as suggested by the district judge and prosecution. "Whether a transaction was for resale would depend both on the quantity involved and the way the transaction was carried out," he added.
However, Judge Chao listed aggravating factors that may be relevant for sentencing, such as the offender's role, whether the offences took place during investigations, and the amount of profit made.
Thus, an offender who sold codeine cough mixture to buyers, who in turn resold them to individual abusers, is more culpable than one who sold them only to individual abusers, he added.