Lian Hoe Heng v Public Prosecutor 

Abuse of Process and the Nullification of the Guilty Plea Discount: Lian Hoe Heng v Public Prosecutor [2026] SGCA 25; [2026] 1 SLR 7

I. Executive Summary

The present case arose against what the Court of Appeal (“CA”) identified as a “worrying trend” of accused persons mounting baseless allegations against participants in the criminal justice system, including their own counsel, whether for tactical reasons or otherwise. Lian Hoe Heng (“Mr Lian”) was charged with four counts of money laundering under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and one count of abetment of drug trafficking under the Misuse of Drugs Act (“MDA”). Mr Lian received a global sentence of 28 years and nine months’ imprisonment. He appealed the judgment on three grounds: (a) that the sentence was manifestly excessive; (b) that the sentence for money laundering was on the higher end of the spectrum considering it was his first offence; and (c) that he received ineffective assistance from his earlier counsel, Mr Choo Si Sen (“Mr Choo”), as Mr Choo had led him to believe that he would only receive a sentence of 23 and a half years’ imprisonment among other things.

The CA dismissed his appeal and instead imposed an uplift, sentencing Mr Lian to 34 years’ imprisonment. The CA increased his sentence because it held that the original sentence was manifestly inadequate. Separately, the CA found Mr Lian’s claims against Mr Choo to be baseless and therefore an abuse of process which warranted a higher sentence This was especially since such claims undermined the integrity of the judicial process, and the court had an interest in deterring accused persons from making baseless allegations against their counsel.

In light of this, the CA outlined how a sentence may be enhanced on the basis of an accused person’s abuse of process (which may affect a sentencing discount accorded the accused in the court below). At the sentencing stage, an accused party may have received a sentencing discount (“PG discount”) for his plea of guilt at first instance. This discount would have been intended to reward him for his conduct in the proceedings below. This discount is granted under the Guidelines on Reduction in Sentences for Guilty Pleas (1 October 2023) (“PG Guidelines”) issued by the Sentencing Advisory Panel, which provides for a sliding scale of reductions in sentence that is tied to the stage in the proceedings at which an accused person indicates an intention to plead guilty. If, however, the court finds that there has been an abuse of process, the court may first consider whether to nullify part or all of PG discount granted for the accused person’s plea of guilt under the PG Guidelines. Second, if the PG discount is nullified in its entirety, the court then considers whether the sentence should be further enhanced to account for the accused person’s abusive conduct.

II. Material Facts 

From 2020 to the time of his arrest in 2023, Mr Lian was a member of a drug syndicate led by an individual known as “Kadi”; his acts during this time formed the basis of the five charges that were proceeded against him. Mr Lian, who was based in Malaysia during the events in question, played a significant role in the syndicate by coordinating the supply of controlled drugs into Singapore. He was paid either in methamphetamine (“Ice”), or a few hundred dollars in cash for each order.

The charge for abetment of drug trafficking arose from one such operation in 2020. A syndicate runner deposited a package containing five packets of Ice weighing approximately 500 grams at a lift lobby in Singapore. After receiving the location of the package, Mr Lian instructed another individual, Tan Guosheng (“Mr Tan”), to collect the package and distribute the Ice to customers in Singapore. Mr Tan then enlisted yet another party to carry out the distribution. Mr Tan was eventually arrested by Central Narcotics Bureau officers and charged with (non-capital) trafficking of less than 249.99 grams of ice. For coordinating this operation, Mr Lian was charged with abetment of Mr Tan’s offence under s 5(1)(a) of the MDA.

Mr Lian’s involvement also extended to laundering of the syndicate’s drug proceeds. Between 2020 and 2021, he laundered over $1 million in drug proceeds through numerous transfers, resulting in four charges under ss 43 and 46 of the CDSA.

Mr Lian pleaded guilty to all the five charges at the earliest stage of the proceedings. The court sentenced Mr Lian to a global sentence of 28 years and nine months’ imprisonment. This incorporated the relevant PG discounts for his charges. Mr Lian thereafter appealed. 

III: Arguments on Appeal

In his appeal, Mr Lian alleged that he received ineffective assistance from his counsel Mr Choo. He claimed that: (a) Mr Choo had promised to deliver a global sentence of 23 years and one month but this did not materialise; (b) on the day of sentencing, he received almost no updates on the sentence and was given the agreed statement of facts only that day; and (c) his mitigation plea was given to him only on 6 January 2025, after his sentencing on 30 December 2024.

Mr Choo denied all of these allegations: (a) He denied making any promises on the sentence that would be imposed as this was strictly a matter for the court to decide. (b) He also denied Mr Lian’s claim that he had not received updates on his matter. Instead, he had visited Mr Lian in prison on four occasions and kept Mr Lian’s sister informed. (c) He had read the draft statement of facts and the draft mitigation plea to Mr Lian. It was only because Mr Lian agreed with both documents that he informed the prosecution of Mr Lian’s agreement to the documents being communicated on 10 December 2024. Further, Mr Choo had sent these documents to Mr Lian who was at Changi Prison by fax and post on 23 December 2024. 

Given Mr Lian’s allegation of inadequate assistance, the CA appointed an independent counsel to address certain questions by the court. In her answers to the court’s questions, the independent counsel submitted that adverse litigation conduct (including baseless or bad faith allegations) may be considered in sentencing. Furthermore, an appellate court may “claw back” a PG discount if Mr Lian’s conduct negated the utilitarian benefits obtained from an early plea of guilt. Additionally, while it would offend the rule against double counting for Mr Lian’s aggregate sentence to be enhanced based on the circumstances of the offending that were already considered by the court in calibrating the individual sentences, the aggregate sentence could be enhanced if the allegations against Mr Choo were baseless and made in bad faith. This may be done either by clawing back the PG discount, or by enhancing individual sentences for lack of remorse.

After the independent counsel gave the above answers, Mr Lian purported to withdraw his allegations against Mr Choo. In his further written submissions, he claimed that he “ha[d] now come to understand the system and how it works” and attempted to play down his allegations as a misunderstanding caused by his lack of “language skills and understanding of the law”.

IV. Issues on Appeal

The CA considered the following issues:

(a) Whether Mr Lian’s allegations against Mr Choo were baseless;
(b) The legal relevance of a finding that the allegations were baseless; 
(c) Whether the sentences imposed were (individually or globally) wrong in principle or manifestly inadequate, having regard to all the circumstances of the case including Mr Lian’s conduct in the appeal.

A.Whether the allegations against Mr Choo were baseless

The CA first emphasised that allegations should not be made lightly that defence counsel failed to discharge his/her duty to the client and to the court. Further, if such allegations are found to be baseless, they may be met with appropriate consequences (as discussed below). While the courts will call out improper or inadequate conduct by defence counsel where appropriate, there must be a legitimate and cogent basis for such serious allegations. Although latitude may be given to self-represented persons who are less familiar with the legal system or who encounter genuine miscommunication or misunderstanding with their former counsel, there is no excuse for contriving allegations with the aim of undermining a conviction or sentence.

The CA then held that Mr Lian’s allegations were baseless and that his explanations for his conduct were neither satisfactory nor credible. First, Mr Lian did not make general assertions about the legal process or system, but specific factual claims that he had not seen the statement of facts or the mitigation plea until either the day of the hearing or after it, thus creating the clear impression that Mr Choo had left him in the dark with respect to the matters set out in those documents. This was comprehensively refuted by Mr Choo. Further, Mr Lian had remained completely silent on this during the court proceedings below, including when the statement of facts was read, when his plea was taken and when sentencing submissions were made. The CA thus considered that his allegations were a complete fabrication.

Moreover, Mr Lian did not explain why he initially alleged in a written submission that Mr Choo had “promised to deliver” a particular outcome, when he later acknowledged, also through written submission, that Mr Choo had merely said that he “would try to” obtain a sentence of 23 and a half years’ imprisonment. 

Further, the timing of Mr Lian’s retraction suggested that it was not due to genuine remorse or contrition, but due to cold feet. Mr Lian maintained his allegations against Mr Choo and only sought to retract them after independent counsel subsequently suggested that an enhancement of his sentence would be warranted if his allegations were baseless. 

The CA considered his retraction a last-ditch effort to avoid the adverse consequences of his allegations, rather than an expression of genuine remorse. This was reinforced by Mr Lian’s failure to apologise to Mr Choo and his decision, even while retracting his earlier allegations, to mount fresh criticism that Mr Choo had failed to explain the divergence between the sentence sought and that ultimately imposed. When viewed in totality, the CA concluded that Mr Lian had raised the allegations to improve his prospects on appeal and withdrew them only upon realising that they could instead prejudice him.

B. Legal relevance of a finding that the allegations were baseless

The CA considered when baseless allegations against defence counsel may amount to an abuse of process and how such conduct should affect sentencing. To that end, the CA considered: 

(i) What constitutes an abuse of process.
(ii) The rationale for considering abuse of process in sentencing.
(iii) The legal basis for enhancing sentences for abuse of process.

Based on these legal considerations, the CA then developed (iv) a two-stage framework for determining an appropriate enhancement in sentencing.

(i) What constitutes an abuse of process

The CA found that where an accused had made baseless allegations against his counsel (or other persons) during legal proceedings which were animated by bad faith, the accused would be guilty of an abuse of process. The four hallmarks of abuse of process as identified by the CA are if the accused:

• acted with a collateral purpose as the allegations would not have been raised bona fide but instrumentalised for the purpose of attacking the integrity of the process;
• used the machinery of the court and the appellate process in a manner which caused or was likely to cause vexation and oppression of the target of the allegations;
• caused the expenditure of resources to address the allegations for no good purpose; and
• attempted to practice deception on the court by raising fictitious or sham allegations.
  

(ii) Rationale for considering abuse of process in sentencing

The abusive conduct of an accused can be considered for the purposes of sentencing, such that it can be a basis on which a sentence (otherwise untouched by error or manifest inadequacy) may be enhanced by an appellate court. There are three reasons why an abuse of process by the accused might justify an enhancement of sentence.

First, where an accused person raises unfounded or baseless allegations against his counsel, this may reflect a lack of remorse and insight into his conduct. Where there is a lack of remorse, considerations of specific deterrence come to the fore. 

Second, there is a need to deter accused persons from making baseless allegations against their counsel. Such allegations are a stain on the reputation and work done by defence counsel and undermine the essential role that they play in the administration of justice. It is also untenable for defence counsel to have to discharge their duties with the fear of their clients turning on them if the clients receive what they perceive to be an unsatisfactory result in their cases. Such allegations would not only compel defence counsel to engage in defensive practices but may also discourage lawyers from volunteering to take up criminal cases. This would ultimately undermine the administration of justice. Counsel must be given deference and latitude in deciding how to conduct their cases that the threshold for making out a complaint of inadequate legal assistance ought to be pegged at the high threshold of “flagrant or egregious incompetence or indifference” or conduct which was “stark and glaring”. This high threshold and its underlying policy should be enforced through sentences, and enhancements to sentences.

The third concerns the importance of safeguarding the integrity of the judicial process. Baseless allegations of inadequate legal assistance could undermine the finality of the criminal justice process, especially since such attacks against court decisions could go on almost indefinitely. Such accusations are collateral attacks in that they do not challenge the decision on its merits but target the more fundamental level of procedural fairness and the integrity of the process. Such persistent unfounded challenges will make nonsense of the principle of finality, and undermine confidence in the judicial process.  

(iii) Legal basis for enhancing sentences for abuse of process

The court found two bases upon which it could enhance a sentence. First, where the accused has pleaded guilty, by reducing the mitigatory weight accorded to the plea of guilt due to the loss of the utilitarian value of the plea and the absence of remorse on the accused person’s part. Second, if the court was satisfied that the accused’s conduct reflected a lack of remorse, by treating the lack of remorse as an aggravating factor that warrants an enhancement of the sentence(s) imposed. 

1. Reduction of mitigatory weight. A plea of guilt is a mitigating factor that can warrant a reduction in the accused’s sentence. This reflects both the utilitarian and remorse-based justifications for the mitigatory weight of a plea of guilt. The utilitarian justification is that: a plea of guilt spares the victim of the ordeal of testifying, thereby saving the victim the horror of re-living the incident, and saves the resources of the state that would otherwise have to be expended if there were a trial. The remorse-based justification is that a plea of guilt can be an expression of genuine remorse and contrition.

The PG Guidelines primarily give effect to the utilitarian value of a plea of guilt by tying the mitigatory weight of a plea of guilt (in terms of a reduction in sentence) to the timeliness of the plea of guilt. However, this does not mean that the utilitarian justification is the exclusive basis for according mitigating weight to a plea of guilt. The PG Guidelines do also accord mitigatory weight to a plea of guilt on the basis that it can be a demonstration of remorse by the accused person, by asking the court to consider demonstrations of remorse other than the plea of guilt as a mitigating factor when determining the sentence(s) to be imposed. 

This does mean that to the extent that the accused may have shown remorse through his plea of guilt, that will be accounted for within the PG discount afforded by the PG Guidelines, and it would be double counting to take this into account as a mitigating factor. Indeed, it might even be said that the PG Guidelines presumptively treats the accused as having demonstrated remorse through pleading guilty and gives him credit for this, without him having to prove that his plea of guilt was in fact animated by remorse.

Seen in this light, where an accused has engaged in abusive conduct such as making baseless allegations in bad faith against his former counsel, the effect of such conduct would be to diminish the mitigatory weight given to his plea of guilt on account of both the utilitarian and remorse-based justifications. On the utilitarian front, the resource savings of the plea of guilt will not have been fully realised; there will have been some wastage of resources engendered by the need to respond to the accused’s allegations. On the remorse front, to the extent that the accused’s conduct suggests that he is in fact not remorseful, it would be wrong to treat him as such by giving him credit on this basis. It does not make sense for the court to not be able to reduce the mitigatory weight of the plea of guilt, if that premise does not hold on the facts.

Thus, when faced with abusive conduct by an accused person, the court is entitled to reduce the mitigatory weight ascribed to his plea of guilt. This can be done by reducing the PG discount that would otherwise apply based on the stage of the proceedings when the accused pleads guilty or removing the PG discount entirely. There is no legal impediment to the court cutting down or not applying the PG discount under the PG Guidelines: the PG Guidelines are not binding on the court, and there is specific provision within the PG Guidelines for reducing the mitigatory weight of a plea of guilt if circumstances warrant.

2. Lack of remorse as an aggravating factor. Separately, an accused’s lack of remorse may itself be an aggravating factor warranting an uplift in sentencing. The CA drew a distinction between an accused failing to show remorse and demonstrating a lack of remorse. The former involves an absence of a mitigating factor. The latter involves a positive finding that the accused is not remorseful (as shown through his words or conduct), such that it is taken adversely against him in sentencing. 

Generally, a lack of remorse will not be inferred merely from an omission or the absence of evidence demonstrating remorse. Instead, there must be positive evidence in the form of some reprehensible conduct, from which the court may infer that the accused is unremorseful. Such conduct may include the making of baseless allegations against former counsel. Where an accused seeks to shift blame to others instead of accepting responsibility for his conduct, he is more likely to be unremorseful as compared to one who accepts the punishment meted out without reservation. 

The aggravating weight of a lack of remorse may be given effect in two ways. First, it may be considered together with all relevant aggravating and mitigating factors when calibrating the individual sentence. Second, where the accused faces multiple charges, it may be considered when calibrating the global sentence under the totality principle. The latter approach will generally be preferable, as it would be more logical for the court to consider the effect of the accused person’s lack of remorse in the round at the aggregate sentence stage, particularly since such conduct would likely be relevant to all the charges against the accused person.

(iv) Two-step framework for determining an appropriate enhancement in sentencing 

The CA then outlined a two-step approach to enhancing a sentence based on an accused person’s abuse of process. 

At the first stage, the court considers whether to nullify part or all of the PG discount provided under the PG Guidelines. The court weighs the utilitarian value of a plea of guilt against the weight of the accused person’s lack of remorse. Where the mitigatory weight of the former outweighs the aggravating weight of the latter, the sentencing discount would not be completely exhausted and the analysis would terminate here with some extent of the discount intact. The court may then either stop at the first stage or, if the accused’s person’s abusive conduct has not been adequately reflected in the sentence, proceed to the second stage and make a further enhancement to the sentence based on the aggravating factor of the accused lack of remorse.

Concerns had been raised by the independent counsel as to the possibility of double counting. In response, the CA further held that the sequential approach does not offend the rule against double counting. An issue of double counting may arise “where two or more nominally different sentencing factors share the same normative substance”. No such concern arises here. First, there is no difficulty in reducing a PG discount under the PG Guidelines both on the basis that the plea of guilt has lost its utilitarian value, and because the court is not satisfied that the plea of guilt is a demonstration of remorse due to the accused person’s conduct. Both strands of reasoning do not share “the same normative substance” even though they flow from the same conduct of the accused person. Second, no issue of double counting arises from the nullifying the mitigatory weight of a plea of guilt based on the accused person failing to show remorse (being the absence of a mitigating factor); and thereafter, enhancing the sentence due to the accused person’s lack of remorse (which is an aggravating factor).

C. Whether the sentences imposed were (individually or globally) wrong in principle or manifestly inadequate, having regard to all the circumstances of the case including Mr Lian’s conduct in the appeal

The CA found that the sentences imposed below on Mr Lian for all charges either to be wrong in principle or manifestly inadequate and enhanced the individual sentences for each charge. In addition, the CA held there was cause to revoke the PG discount given to Mr Lian due to his abusive conduct. This meant that the aggregate sentence to be imposed would also be enhanced.

After reviewing and determining the individual sentences for each of the charges, the CA considered the appropriate PG discount (if any) to be given Mr Lian. Applying the two-stage framework as set out above, it reiterated that Mr Lian’s allegations of inadequate legal assistance by Mr Choo were baseless and completely fabricated. The CA specifically found that Mr Lian’s conduct was cynical and dishonest in that he set out to use Mr Choo to procure a favourable result in his appeal against his sentence. The CA thus found that it was appropriate for the entire PG discount given to him to be revoked. Mr Lian’s conduct was redolent of a lack of remorse, which operated as an aggravating factor. Any remaining utilitarian value of his plea of guilt would be set off and exhausted against the aggravating weight of his lack of remorse. It also held it was unnecessary to make any further upward adjustment to the sentence.

However, the CA considered that the resulting aggregate sentence of 39 years and two months’ imprisonment was disproportionately crushing, and applied the totality principle to reduce the sentences for two charges, bringing the aggregate sentence down to 34 years’ imprisonment.

Written by: Sean Cheng Yishao, 4th Year LLB student, Singapore Management University Yong Pung How School of Law. 

Reviewed by: Ong Ee Ing, Principal Lecturer, Singapore Management University Yong Pung How School of Law.