NS defaulter with dual citizenship: Court raises jail term to 13 months after prosecution appeal

SINGAPORE - A 32-year-old man with dual citizenship who evaded national service (NS) for nearly 13 years had his jail term increased from 10 months to 13 months on Monday (Oct 22) after the High Court allowed an appeal by the prosecution for a heavier sentence.

The court agreed with prosecutors that the district judge who sentenced Douglas Tan Chin Guan in June had wrongly applied the landmark sentencing benchmarks for NS defaulters laid down last year.

At the same time, Justice Hoo Sheau Peng did not buy Tan's arguments that he was unaware of his NS obligations, as he believed that he was a Malaysian citizen and nothing more. She dismissed his appeal for a fine.

"The accused held a Singapore passport until he was 11 years old, and thereafter used a right of entry stamp on his Malaysian passport, which allowed him to enter Singapore as a Singapore citizen - a privilege he had exercised repeatedly," she said.

The judge added that Tan studied at the Anglo-Chinese School (Independent) when he was 14 and 15 without the need for a student visa, paid subsidised school fees for local students, and took up a Music Elective Programme scholarship which is open to Singapore citizens only.

"Further, it is in my view inconceivable that, having studied in Singapore for two years in an all-boys school, he would not have been exposed to the fact that male Singapore citizens have to serve NS," she said.

Tan's parents lived in Malaysia but he was born in Singapore after his Malaysian father was posted here for work. He was three weeks old when his Singaporean mother moved back with him to Malaysia.

While he was reading law at the University of Nottingham, his parents received two notices for him to register for NS. His father asked for a deferment but the request was rejected.

Tan, who has a Malaysian birth certificate, passport and identity card, argued that his parents kept him in the dark and took it upon themselves to resolve the matter with the Ministry of Defence in Singapore. Tan has a Singapore birth certificate as well.

He said it was only when he returned from Britain in 2008, when he was 22 years old, that his parents told him he was liable to serve NS and that he had defaulted on his obligations for years.

Tan eventually surrendered in 2016, and for the first time, got a Singapore identity card for the purpose of NS registration. He has completed his full-time NS with the Singapore Civil Defence Force.

On June 8, he pleaded guilty to two charges of remaining outside Singapore without a valid exit permit from March 12, 2003, to Feb 29, 2016.

Two charges were brought because his period of default crossed the date on which certain amendments to the Enlistment Act came into force.

Applying the sentencing framework to Tan's total period of default, this would result in a starting point of 17 months' jail, said Justice Hoo. She gave him a discount of four months for voluntarily surrendering, and imposed 13 months' jail.

In explaining why the district judge was wrong in applying the framework, Justice Hoo noted that longer periods of default are pegged to longer jail terms.

However, the rate of increase is not linear but "amplified" with longer periods of default.

This was meant to reflect the decline in a person's physical fitness with age, and hence his ability to serve NS, and to create a progressive disincentive for NS defaulters to delay their return to resolve their offences.

There is also a spike - a sudden six-month increase - after the 10-year mark to reflect the fact that such offenders would not be able to complete their reservist obligations before they reach the age of 40.

Justice Hoo said the district judge in Tan's case erred by applying the benchmarks to each of the two periods of default individually, instead of the total period of default.

By doing so, the spike, as well as the progressive amplification of the rate of increase in sentence were avoided, resulting in an overall sentence that was manifestly inadequate.

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