Thursday, 27 April 2017

MINDEF on NS defaulters: National service has to be universal and fair to ensure Singaporeans' support; High Court sets out punishment guidelines for NS dodgers

Letting those abroad avoid it or choose when to serve would undermine institution, it says
By Selina Lum and Aaron Chan, The Straits Times, 27 Apr 2017

National service duties must be applied to all Singapore men fairly and equitably, the Ministry of Defence (MINDEF) made clear in a statement yesterday after a court ruling to enhance the punishment of three men who had defaulted on their NS obligations.

"If we allow Singapore citizens who are overseas to avoid NS or to choose when they want to serve NS, we are not being fair to the vast majority of our national servicemen who serve their country dutifully, and the institution of NS will be undermined," said a MINDEF spokesman.

The principles were spelt out by then Defence Minister Teo Chee Hean in 2006 following public debate over the punishment meted out to defaulters who evade their NS obligations. Mr Teo had noted that only about 0.5 per cent of those liable for NS each year fail to register for NS. An average of 12 NS defaulters a year are charged in court.

On Tuesday, the High Court panel referred to the principles when it allowed the prosecution's appeal for harsher sentences for the three men, one of whom got close to the maximum of three years' jail for completely evading his obligations.

The court decision was met with approval by parents whose sons are due to enlist.

Mrs Tricia Koh , 46, who has two teenage sons, said: "I feel it's harsh, but it does send a strong message, especially to the parents... Parents have to take responsibility in ensuring that their children know the severity of the situation if they default."

Ms Stephanie Lim, 52, said her 18-year-old son, now in a boarding school in Britain, will return to enlist next year.

"We have not considered any option other than for him to come back," said the homemaker, whose older son had returned to serve NS while the family was in Hong Kong.

Parents of boys who are studying overseas for two years or more have to provide a bond for $75,000 or an amount equivalent to half the combined annual gross income of both parents, whichever is higher.

However, others say harsher penalties will likely deter defaulters who are overseas from returning to Singapore to face the music.

The mother of a 23-year-old NS defaulter was certain her son will not return to Singapore following the ruling. The 55-year-old general manager of a pharmaceutical company, who wanted to be known only as Madam Tan, has lived in Hong Kong for nearly 30 years.

An older son, now 27, also did not serve NS.

Lawyer Laurence Goh is acting for three NS evaders who have been awaiting the outcome of the appeals before deciding whether they want to return to Singapore.

One of them, who is still able to serve NS, wants to return but his parents want him to finish his degree in Australia, said Mr Goh.

The other two, who are no longer liable for NS as they are past the age of 40, have good jobs overseas but want to return to see their aged parents.

"It's a Catch-22 situation. It is deterrence for those thinking of defaulting, but also for those who are already overseas," said Mr Goh.

Lawyer Amolat Singh noted that with the new ruling, some factors previously thought to be relevant in sentencing no longer carry as much weight.

For instance, defaulters used to get sentencing discounts if they perform well during their eventual NS stint. However, Mr Singh said he will still cite these factors "because it's a plus point".

Mr Singh said he has no soft spot for overseas defaulters in a dilemma about coming back. "You live with your choices," he said.

Additional reporting by Abigail Ng

High Court imposes heavier sentences on 3 NS defaulters
Chief Justice highlights deterrence as key sentencing focus to ensure those called to serve do not evade duty
By Selina Lum, The Straits Times, 26 Apr 2017

In a clear signal that the courts will not tolerate national security being undermined by those who ignore the call to serve national service (NS), the High Court ruled that the "worst" category of NS defaulters - those who do not serve their obligations at all - will face close to the maximum of three years' jail.

This came as a three-judge panel allowed the prosecution's appeals for heavier sentences for three men, two of whom are brothers, who had dodged NS for varying durations.

Singaporean men have to register for national service when they reach the age of 16½ years and are obliged to serve up to the age of 40.

Ang Lee Thye, 43, who evaded NS for 23½ years - the longest possible under the Enlistment Act - was jailed for two years and nine months. He is serving his original two-year jail term and will now have to serve a longer one. He was 41 when he returned to Singapore from the US and was therefore no longer subjected to the Enlistment Act.

Sakthikanesh Chidambaram, 26, who evaded NS for five years, six months and 17 days, was jailed for 10 weeks, up from three weeks.

Vandana Kumar Chidambaram, 23, who evaded NS for three years, four months and two days, was jailed for seven weeks. His initial sentence was a $6,000 fine.

Both brothers completed serving full-time NS last year.

In response to queries on the cases, the Ministry of Defence (MINDEF) said on Wednesday that it takes a firm stand on those who commit offences under the Enlistment Act, adding that each case comes with its own circumstances which the Court will consider in deciding on the sentence.

"It is important that NS has the support and commitment of all Singaporeans. To achieve this, we have to adhere to the fundamental principles of universality and equity in NS," said a MINDEF spokesman.

"If we allow Singapore citizens who are overseas to avoid NS or to choose when they want to serve NS, we are not being fair to the vast majority of our national servicemen who serve their country dutifully, and the institution of NS will be undermined.”

The spokesman also touched briefly on the three cases.

For Ang, MINDEF said that despite being advised to return to resolve his offences, the defaulter "chose to return to Singapore at an age when he could no longer be called up for NS at all, evading his NS obligations completely".

For the brother, MINDEF said Sakthikanesh said he was aware of his NS obligations but chose to complete his university studies in India before returning to serve NS while Vandana was similarly aware of his NS obligations, as his father was in contact with the Ministry of Defence.

"Despite being aware of their NS obligations, they chose to evade NS to pursue their studies first," said the spokesman.

In considering the appeals, Chief Justice Sundaresh Menon said a key sentencing focus is deterrence to ensure those required to serve NS "do not evade their obligations or opt to postpone them to a time or on terms of their own choosing or convenience".

"Were it otherwise, over time, the attitude that national service can be done on one's own terms will weaken our national security and this is simply intolerable," he said.

The court said it will adopt, in a modified form, the sentencing approach suggested by the prosecution. Details of the framework will be elaborated on in due course.

The prosecution, represented by Solicitor-General Kwek Mean Luck, argued: "Lenient treatment of NS defaulters can invoke strong feelings of unfairness on the part of those who serve when called upon, and undermine public commitment to the institution of NS." He called for a signal to be sent to those who "game the system" that NS evasion will be met with stiff penalties.

He suggested a sentencing framework based on three categories. In cases where the default period exceeds two years but the defaulter is able to serve full-time NS in a combat role and reservist in full, he suggested a starting point of two to three months' jail.

At the other end, for those who evade NS for more than 20 years and are unable to serve full- time NS and reservist, he suggested a starting point of three years. For a default period of about 10 years or if the defaulter is unable to serve full-time NS in a combat role and reservist in full, he suggested two years' jail.

The court said that even if a defaulter performs well when he eventually serves NS, it is not a strong factor to get a shorter sentence.

The NS defaulters
The Straits Times, 26 Apr 2017


He left Singapore with his family for the United States at the age of 14 in 1987. He did not respond when told to register for national service.

In 2009, he told the Central Manpower Base (CMPB) he would return only if he received "reasonable fines". In 2013, a month before his 40th birthday, he said he wished to return. He reported to the CMPB in January 2015 at the age of 41.

Default period: 23½ years
Initial sentence: Two years' jail
Current sentence: Two years and nine months' jail


Their Singaporean mother, who settled down in India, came back to Singapore to give birth to them in 1991 and 1993 respectively.

She took them back to India when they were still infants. They visited Singapore occasionally.

In 2008, Sakthikanesh was told to register for national service, but he left for university education in India. He returned to Singapore in April 2014 after completing his studies, and enlisted for NS in September that year. He has since completed his NS.

Default period: Five years, six months and 17 days
Initial sentence: Three weeks' jail
Current sentence: 10 weeks' jail

In May 2010, Vandana was told to register for NS. However, he returned to Singapore only in June 2014. He enlisted for NS in August that year. He has since completed his NS.

Default period: Three years, four months and two days
Initial sentence: $6,000 fine
Current sentence: Seven weeks' jail

Congrats on your baby boy... and here's a letter on his NS duty
By Adrian Lim, The Sunday Times, 28 May 2017

It may be another 18 years before their sons become soldiers, but parents of newborn boys are getting an early reminder from the Government about the importance of national service.

Along with the baby's birth certificate when they register the birth, parents now receive a letter from the Ministry of Defence (Mindef).

The letter touches on NS policies, such as applying for exit permits and deferment for full-time studies. It also states that the Government may withhold an individual's renunciation of citizenship if his NS liabilities are not fulfilled.

The Sunday Times understands that Mindef started giving out the letters early this year.

Mindef said that the new initiative was "implemented in response to feedback from some parents that enlistment information would be useful to them when their children were very young".

It is an "additional touch point" to parents, on top of the letters which the ministry sends out when their sons turn 13 and 16 ½.

The first, at age 13, is to inform the family that an exit permit is required if their son travels overseas for three months or more, and the second, to register for NS.

"As part of Mindef's ongoing engagement efforts to enhance awareness and understanding of NS commitments, we reach out to parents and pre-enlistees at various touch points to provide information on NS policies," a spokesman said.

Not all parents think that the letter at birth is necessary. Operations manager J.Y. Lim, 30, whose son was born last month, said: "It's kind of too early to inform us about NS, since the baby is just born, but I believe Mindef has its reasons."

Teacher Lim Lee Choon, 32, who also had a baby boy last month, felt the letter was informative. While she knew that every male Singaporean would need to serve NS, she "never knew that implications come on from as early as when they are 13", until she read the letter.

IT manager Andy Lee, 43, who has three sons aged 10, 12 and 14, said: "Some parents may find it a turn-off to be informed of their son's NS liability at such a young age.

"Still, I think there's no harm done. Some parents may have been thinking of relocating overseas with their children at an early age to help them avoid NS."

The issue of NS evasion was cast in the spotlight last month, when the High Court imposed harsher sentences for three NS defaulters, allowing the prosecution's appeal for a tougher punishment.

Among them was Ang Lee Thye, 43, who evaded NS for 231/2 years, and was jailed for two years and nine months - up from the initial sentence of two years.

Lawyer Laurence Goh, who has acted for NS defaulters, said the letter can help clear misconceptions.

"There are many who moved overseas at a young age and lived there for a long time. Maybe they got married with children and hold another country's citizenship," he said.

"But as long as they have not fulfilled their NS obligations, they can't renounce the Singapore citizenship." With the letter, parents cannot claim ignorance as an excuse, he added.

"They have to be fair to their children to ensure that they do not get into unnecessary trouble with the law," said Mr Goh.

MP Cedric Foo, a member of the Government Parliamentary Committee for Defence, said: "I see the letter at birth as a good reminder to parents about their sons' NS duties and key milestone dates...

"More information cannot be bad. Is it premature? I think not. It actually obviates the need for parents to do research on NS."

* High Court sets out punishment guidelines for NS dodgers
4 sentencing bands based on length of default; exceptional service not a mitigating factor
By Selina Lum, Law Correspondent, The Straits Times, 26 Jul 2017

How well a national service (NS) defaulter performs in his duty when he eventually serves should have no bearing when deciding his punishment.

This was made clear yesterday by the High Court as it laid down fresh sentencing benchmarks for NS dodgers. The benchmarks also "amplified" punishments for those who default for longer periods as it affects their fitness for service and the time they can serve as reservists.

The three-judge panel, led by Chief Justice Sundaresh Menon, set out four sentencing bands based on the length of default.

For those who evade NS for two to six years, the starting point is two to four months in jail; for seven to 10 years, it is five to eight months in jail; and for 11 to 16 years, it is 14 to 22 months in jail. For the worst cases involving those who evade their duty for 17 to 23 years or more, the default jail term kicks off from two years to the maximum of three years in jail.

The grounds of decision were related to the cases of three defaulters, who were given heavier sentences in April after the prosecution appealed.

Explaining its decisions yesterday, the three-judge panel rejected several key parts of the sentencing benchmarks laid out by Justice Chan Seng Onn in February last year, when he sentenced a 25-year- old to three months in jail for defaulting for more than six years, and then gave a 1½-month discount for his good performance in NS.

The three-judge panel agreed with Justice Chan that the main factor in determining an NS dodger's culpability is the length of time he defaulted, and anything over two years should mean a jail term. This, the court explained, is because he would start serving only after his peers already completed their duty.

But, among other things, the court disagreed that the sentence should be calibrated based on whether the defaulter has a substantial connection to Singapore, that a discount should be given on the accused pleading guilty instead of claiming trial, and that exceptional NS performance should be a mitigating factor.

On the last point, the court explained that exceptional NS performance reduces neither the defaulter's culpability nor the harm he had caused by his offence - such as affecting the operational readiness of the armed forces and affecting morale of those who serve on time. "Indeed, it is the obligation of every male Singaporean to do his best in his NS... It seems to us wrong for a defaulter who does no more than that... should be rewarded in this way," wrote Judge of Appeal Chao Hick Tin.

To recognise good NS performance in sentencing could also prejudice defaulters who are less fit and cannot perform as well, and might send a message to potential defaulters that they could defer their NS obligations and try to make up for it later.

However, the three judges, who also included Justice See Kee Oon, said there was room to recognise "exceptional" acts of valour, such as saving another soldier's life.

Any sentence should also not be calibrated based on whether an NS defaulter has left the country at a young age and reaped fewer benefits as a citizen. Whether someone has a substantial connection to Singapore and so has to serve is a matter of policy within the prerogative of the Defence Ministry (Mindef).

"As long as Mindef had issued the enlistment papers to a male Singaporean, that person would need to serve NS and he would be liable for an offence... if he failed to comply," wrote Justice Chao.

Any less than maximum sentence for 'worst' dodgers inadequate: Court
By Selina Lum, Law Correspondent, The Straits Times, 26 Jul 2017

To adopt anything less than the statutory maximum sentence as the starting point for the "worst" type of national service defaulters who completely dodge their obligations would be inadequate.

The High Court said this as it set out written reasons for why NS dodgers who return to Singapore past the age of 40 should get sentences close to three years in jail, the maximum prescribed by law.

Singaporean men have to register for NS when they reach the age of 16 1/2 years, and are obliged to serve up to age 40.

The court said the conduct of a person who defaulted for a long period of time, such as when he returned past the age of 40 and it was no longer possible for him to serve any of his NS obligations, fell within the most serious instances of the offence.

Currently, every Singaporean male has to serve two years of full-time NS as well as reservist obligations. According to the Ministry of Defence (Mindef), reservist obligations may potentially add up to 400 days of service during peacetime, based on 10 years of reservist cycles and a maximum annual call-up of 40 days.

At the same time, the court rejected the view that the sentence to be meted out to an NS defaulter should be based on whether he has a "substantial connection" to Singapore or the amount of benefits he has enjoyed as a citizen.

Last year, Justice Chan Seng Onn took the view that the longer a defaulter stays away from Singapore, the lower his culpability.

He based this on the "fair share argument", that the defaulter who returned later would prospectively enjoy fewer benefits of citizenship than one who returned earlier.

But Judge of Appeal Chao Hick Tin, penning the views of the three- judge panel, disagreed.

"In our view, the determination of whether a male Singaporean has a substantial connection to Singapore and so should be required to serve NS was a matter with policy implications that was within the prerogative of Mindef."

As long as Mindef has issued the enlistment papers, that person would need to serve NS and would be liable for an offence if he fails to comply, said the court.

"Questions as to how he had been connected to Singapore, how long he had been away from Singapore or the extent to which he had benefited from Singapore citizenship would generally be irrelevant to the sentencing of him as an NS defaulter," said the court.

"Any other view would severely undermine the principle of universality and equity by differentiating between classes of Singapore citizenship, when in truth, no such differentiation exists."

Exceptional NS performance 'not relevant to sentencing'
By Selina Lum, Law Correspondent, The Straits Times, 26 Jul 2017

Whether a national service defaulter performs exceptionally well when he eventually returns to serve is irrelevant to the sentence he should get for the wrong he has done, said the High Court.

"It is the duty of every national serviceman to perform well," said the three-judge panel in disagreeing with Justice Chan Seng Onn, who ruled last year that exceptional NS performance by a defaulter was a mitigating factor.

Defaulters can harm the operational readiness of the armed forces and the morale of citizens who serve when called to do so. Even if they perform exceptionally well in NS later, it does not undo this harm.

Neither would it reduce the defaulter's culpability because the fact remains that he gains an unfair advantage over his peers in terms of the timing of his service.

"In our judgment, treating exceptional NS performance as a mitigating factor could in fact fuel feelings of inequity and resentment that law-abiding male Singapore citizens who had made personal sacrifices to serve NS might have," said the panel.

Giving a sentencing discount to a defaulter because he performed well when he finally decided to serve might be tantamount to giving preferential treatment to individuals with innate abilities such as physical fitness, it said.

It could create a "perverse incentive" for the physically fit to choose to serve NS later, when they are in fact the ones most needed to enlist when required.

But the court left open the possibility that truly exceptional acts, such as saving another soldier's life, may be taken into consideration.

It also discussed other possible mitigating factors. Voluntary surrender could be accepted as a mitigating factor to encourage defaulters to surrender early.

A plea of guilt, however, has very limited mitigating value, because defaulters have little choice as such offences are easily proved.

Lawyer Tan Chee Meng 'heartbroken' but takes responsibility for 2 sons' NS evasion
Top lawyer's 2nd son jailed for NS evasion
Younger son to spend 12 weeks in prison; older son was jailed for similar offence in Feb
By Shaffiq Idris Alkhatib, The Straits Times, 12 Oct 2017

It is "heartbreaking" to see his two sons go to jail for evasion of national service obligations, but Senior Counsel Tan Chee Meng says he is taking responsibility for what happened and letting the law take its course.

In a statement issued after his younger son was sentenced yesterday, Mr Tan said the decision by him and his wife to uproot the family and migrate to Canada in 2000 was made in their sons' best interest.

The court had heard earlier that the sons were unable to cope with the Singapore education system's policy of having a compulsory mother tongue language to study and that the younger one suffered a form of eczema that is worsened by the hot and humid weather here.

"NS was the last thing on our minds, let alone evasion. It was not an easy decision," added Mr Tan, who is deputy chairman of WongPartnership law firm.

But he said his sons later decided on their own in 2015 that they wanted to serve NS, a decision that the father said he is "very proud of".

The decision led to both sons - Jonathan Tan Huai En, 28, and Isaac Tan Yang En, 25 - being convicted and jailed for NS evasion.

The younger son was sentenced yesterday to 12 weeks' jail for evading NS for about six years, while the elder was sentenced to 16 weeks' jail in February for a similar offence involving a 10-year default period.

"As a father, it is heartbreaking to see my sons go to jail in circumstances such as these. I take responsibility for what happened and the law has to take its course.

"The past 21/2 years have not been easy but we will get through this as a family," said Mr Tan.

Isaac Tan, who is now serving his NS and will complete it later this month, pleaded guilty last Friday to one count of remaining outside Singapore without a valid exit permit. A second charge for a similar offence and one count of failing to comply with a Further Reporting Order to report for NS registration, pre-enlistment documentation and medical screening were taken into consideration during sentencing.

Brother Jonathan Tan surrendered himself last week to begin his jail term after withdrawing an appeal against his sentence.

On Dec 1, 2000, Isaac Tan migrated to Canada with his mother, older sister and brother. He returned to Singapore in August 2015 after completing his university studies in Canada, and began full-time NS two months later.

District Judge Marvin Bay said yesterday Isaac Tan had shown "no evident urgency" despite being told in October 2014 that he was classified as an NS defaulter and had to return to Singapore to respond to the offences and fulfil his NS duty.

Judge Bay said NS is a critical obligation and cannot be relegated to a task to be performed at a time of one's own convenience. He added that punishment must aim at deterring potential offenders from gaming the system or thinking that the reward for postponing their NS obligations can outweigh the costs of the legal punishment.

In July, a High Court panel led by Chief Justice Sundaresh Menon set a new sentencing framework for NS defaulters, comprising four bands based on the default period.

For periods of two to six years, the starting point is two to four months in jail; for seven to 10 years, it is five to eight months in jail; and for 11 to 16 years, it is 14 to 22 months in jail.

For the worst cases lasting 17 to 23 years or more, the default jail term starts from two years to the maximum of three years in jail.

MINDEF reply to ST Media Query On Enlistment Act Offenders -26 Apr 2017

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