Public Prosecutor v Tan Jia Jun Shawn [2022] SGHC 76

Introduction

To err is human, to forgive divine. In the eyes of the law, however, forgiveness is often eclipsed by the strong societal interests in punishing offenders for the crimes they have committed. This is reflective of our State-centred system of criminal justice where little emphasis is placed on the traditions of restorative justice. Despite this, it has been recognised that in certain limited circumstances, forgiveness may be relevant in the court’s sentencing calculus. But just how much weight should be placed on it? This appeal presents a timely opportunity to revisit the issue of the role of forgiveness in our sentencing jurisprudence.

In the court below, the respondent pleaded guilty to a charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) for committing acts of violence against the victim with whom he was in a romantic relationship at the material time. The victim was about nine weeks’ pregnant. The respondent punched the victim’s face and punched and kicked her abdominal area multiple times, intending to cause hurt to her. The District Judge (“DJ”) sentenced the respondent to a fine of $3,500 and in default, two weeks’ imprisonment. The DJ’s grounds of decision may be found in Public Prosecutor v Shawn Tan Jia Jun [2021] SGMC 87 (“GD”).

This is an appeal by the Prosecution against the sentence of a fine imposed on the respondent.

The facts

At the material time, the respondent and the victim were about 24 years old and in a romantic relationship with each other. Shortly before the incident, they visited a clinic and discovered that the victim was about nine weeks’ pregnant. They were advised by a doctor to decide, within a week, between proceeding with the pregnancy or opting for an abortion, as there would be a further risk of medical complications if the victim delayed the decision to undergo an abortion. A few days after visiting the clinic, the victim stayed overnight at the respondent’s home. However, the next day, they got into an argument while discussing what should be done about the victim’s pregnancy. The argument became heated. The respondent pushed the victim onto his bed and punched and kicked her abdominal area multiple times, and punched her face multiple times, intending to cause hurt to her. Upon hearing the commotion, the respondent’s mother intervened and managed to stop the respondent from further assaulting the victim.

Later that day, the victim was treated at the Department of Emergency Medicine at the National University Hospital. She reported suffering pain on the right side of her face, the anterior chest, and her suprapubic region (this being the abdominal region located below the umbilical region); and multiple bruises over her upper and lower limbs. The victim was found to have the following injuries upon examination, which were caused by the respondent:

(a) Right- and left-sided redness over the face, associated with right-sided inferior orbital and maxillary bony tenderness on palpation;

(b) Anterior chest redness with no significant bruising or deformity;

(c) Mild tenderness over the midline of the thoracic (upper) spine;

(d) Grab marks over the right arm with dark red bruises over the dorsum of the right hand; and

(e) Multiple dark red bruises seen over the left arm, dorsum of the left hand, bilateral knees and bilateral shins.

The medical opinion was that the victim sustained a right facial contusion with possible underlying maxillary bone fracture and multiple superficial injuries. She did not undergo a formal radiograph to confirm the possibility of a maxillary bone fracture due to her ongoing pregnancy and the risk of exposing the foetus to radiation. She was discharged on the same day with medication and was subsequently issued one day of medical leave.

The decision below

In the court below, the Prosecution sought a sentence of at least two weeks’ imprisonment. The respondent urged the court to impose a fine of $3,500 or in the alternative, an imprisonment term not exceeding one week. The DJ ultimately imposed a fine of $3,500 with two weeks’ imprisonment in default.

In summary, the DJ’s reasons were that:

(a) the facts of the present case were unusual and did not “fall within the usual pattern of violence against domestic partner cases” as the incident of abuse was a singular event committed during a heated and emotional argument;

(b) the victim’s injuries were minor;

(c) the precedents concerning domestic violence cited by the Prosecution were more aggravated than the present case, either because they involved offenders who had breached protection orders by committing the offences they were charged with; or faced multiple charges ; and/or had similar antecedents;

(d) the acts of violence were committed on impulse and the physical altercation between them was not premeditated; and

(e) the victim had forgiven the respondent as seen from her letter to the court and her decision to marry him, and that both exceptions in Public Prosecutor v UI [2008] 4 SLR(R) 500 (“PP v UI”) at [56]–[57] applied to the facts of the present case.

The appeal

Both the Prosecution and the respondent agree that the sentencing framework for offences under s 323 of the Penal Code laid down in Public Prosecutor v Low Song Chye [2019] 5 SLR 526 (“Low Song Chye”) and reproduced below applies. Additionally, they agree that as a starting point, the harm caused to the victim would place the offence within Band 1 of the framework.

However, the Prosecution submits that the custodial threshold has been crossed and in sentencing the respondent to a fine, the DJ erred by:

(a) failing to take into account the sentencing consideration of general deterrence which is called for in cases of violence committed in the context of intimate relationships;

(b) failing to accord due weight to the aggravating factors such as: (i) the sustained nature of the assault; and (ii) the potential harm to the victim’s foetus and the victim’s physical vulnerability; and

(c) placing undue weight on the victim’s forgiveness of the respondent.

Accordingly, the Prosecution submits that a sentence of two weeks’ imprisonment is more appropriate on the facts of the case.

Conversely, the respondent argues that the fine of $3,500 imposed by the DJ is appropriate. The assault was not premeditated, particularly violent or protracted in nature. Further, it was a “singular event”, and the respondent did not have any prior history of using violence against the victim. Importantly, he emphasises that they have since reconciled and plan to get married after the conclusion of this appeal. Therefore, a custodial sentence would aggravate the victim’s distress, and result in the victim being “victimised again”. In this connection, the respondent refers to the victim’s letter tendered in the court below, where she urged the DJ to be mindful that any sentence “might significantly hurt [them] in the planning of [their] future together”. Finally, the respondent argues that “the victim’s forgiveness (of the respondent) is relevant to the determination of harm suffered as a result of the offence.” In effect, that the victim’s forgiveness demonstrates that the damage done by the offence to her is less than what would normally be the case.

My decision

Deterrence as the predominant sentencing consideration

The Prosecution submits that the DJ erred in failing to recognise and give sufficient weight to the public interest in deterring domestic violence and violence committed in the context of intimate relationships.

Before I consider this submission in detail, it bears emphasising the function of deterrence (specifically, general deterrence) as a sentencing principle. In Tan Kay Beng v Public Prosecutor [2006] 4 SLR(R) 10 at [31], V K Rajah J (as he then was) opined as follows:

The Prosecution relies on this court’s decision in Public Prosecutor v Satesh s/o Navarlan [2019] SGHC 119 (“Satesh”) to argue that a deterrent sentence in the form of a custodial term is warranted, as the present case involves violence committed in the context of an intimate relationship. In Satesh, Tay Yong Kwang JA observed that:

It is important to recognise precisely what the law is concerned with when calling for deterrent sentences in cases involving domestic violence and violence between parties in an intimate relationship. To my mind, deterrence is warranted in such situations because there has been an abuse of the bonds of trust and interdependency that exist between the parties. Thus, the courts seek to uphold the public interest in preventing such abuse by imposing deterrent sentences as a signal of society’s opprobrium. This is clear from the passage in Satesh quoted earlier (at [15]). In fact, this too was acknowledged by Parliament to be the driving force behind the introduction of ss 74C and 74D of the Penal Code, which provide for enhanced penalties where specified offences under Chapter 16 (ie, offences affecting the human body) are committed against persons in intimate or close relationships. During the Second Reading of the Criminal Law Reform Bill, Minister for Home Affairs, Mr K Shanmugam stated:

The law is thus not primarily concerned with deterring violence between parties in certain categories of relationships per se. Rather, the underlying inquiry is whether there has been an abuse of trust and interdependency associated with the relationship between the parties. Invariably, where violence is committed between parties in certain categories of relationships, for example, familial relationships, there is almost always an abuse of trust and interdependency. However, in other cases, whether such abuse has been occasioned is a fact-specific inquiry.

Although the respondent and the victim were in a romantic relationship at the time, I do not think that a deterrent sentence is specifically warranted on account of this relationship. The respondent’s violent outburst arose out of a heated argument between him and the victim over the decision of whether to proceed or terminate the latter’s pregnancy. I accept that it was unplanned and out of character. The facts did not disclose any abuse of trust and interdependency of the victim on the part of the respondent. The public interest of protecting victims of violence whose trust has been exploited does not, in my view, apply here.

Nonetheless, in such situations of unprovoked violence against a vulnerable victim, it is plain that general deterrence is still the paramount sentencing consideration. The reason for this is simple and captured succinctly in the dicta of Woo Bih Li J in Public Prosecutor v BPK [2018] 5 SLR 755 at [11]:

One can appreciate that such a critical decision as to whether to proceed or terminate a pregnancy must have been immensely stressful for the respondent and the victim. However, that is no legitimate excuse for the respondent to respond with violence, especially against the victim who would have been disproportionately affected by the consequence of their decision.

Custodial threshold is crossed

I now turn to address the main contention in this appeal, namely, whether the custodial threshold has been crossed.

As I observed earlier, both the Prosecution and the respondent agree that the sentencing framework for voluntarily causing hurt offences as laid down in Low Song Chye applies. I see no reason to depart from this. I only note that the range of sentences in Low Song Chye will have to be adjusted to take into account the increase in the prescribed punishment range for offences under s 323 of the Penal Code, consequent to the amendment introduced by s 95 of the Criminal Law Reform Act 2019 (Act 15 of 2019), which increased the maximum custodial term from two to three years’ imprisonment. However, for the avoidance of doubt, I do not think that the failure of the Prosecution or the respondent to raise this has any material impact on the sentence to be imposed.

Having considered the relevant sentencing factors and the importance of general deterrence, I am of the view that the fine imposed on the respondent is manifestly inadequate, and the custodial threshold has necessarily been crossed in the present case.

Harm

At the first stage of the sentencing inquiry, the court considers the hurt caused by the offence in determining the appropriate sentencing band and identifying where the particular case falls within the applicable indicative sentencing range (see Low Song Chye at [78(a)]). The harm assessed at this stage is limited to actual harm, and potential harm is to be considered at the second stage of the inquiry (see Low Song Chye at [79]).

It is undisputed by the parties that the harm caused to the victim in the present case falls within Band 1 of the Low Song Chye framework. I agree. Based on this factor alone, a fine is the appropriate indicative starting point. However, it is clear that there are several culpability enhancing factors which the DJ failed to appreciate in arriving at her decision not to impose a custodial sentence. It is to these factors that I now turn to analyse.

Culpability

The Prosecution submits that the DJ erred by failing to have regard to two main culpability enhancing factors: (a) the sustained nature of the assault; and (b) the potential harm to the victim’s foetus and the victim’s physical vulnerability. For reasons I will elaborate on later, I am satisfied that the DJ made several errors in her assessment of the respondent’s culpability.

(1) Sustained and vicious nature of the assault

First, I am of the view that the DJ erred in failing to consider the sustained and vicious nature of the respondent’s assault. In the court below, the DJ accepted the respondent’s explanation that his acts of violence were committed in the context of his struggle to leave the room in order to end the argument with the victim. On the respondent’s account, the victim had held onto him and refused to let him leave. In this appeal, the respondent similarly urges the court to take cognisance of this context when assessing his culpability.

Yet, even if I accept this to be an accurate account of the events as they unfolded, the respondent’s attempted justification for his assault does little to minimise his culpability. His resort to violence was a wholly disproportionate response to the situation. Not only did he admit to delivering multiple punches to the victim’s face and punching and kicking her abdominal area, but it is also clear that he had inflicted more extensive injuries to the rest of her body, including her chest, spine and limbs, as evidenced by the medical report (Exhibit P1). It is also notable that the respondent directed blows at the victim’s face which is a vulnerable part of her body.

Moreover, as the Prosecution rightly observed, the respondent did not merely deliver a one-off blow, but instead engaged in a continuous and persistent assault against the victim, with each strike delivered with the intention to cause hurt to her. Crucially, the respondent did not desist of his own accord, but only ceased his violence after his mother overheard the commotion and intervened. To this end, it is unconscionable that the respondent now seeks to downplay his culpability by arguing that his offending conduct was not protracted in nature and that his acts were not especially violent. This raises a doubt as to whether he is truly as remorseful as he claims in his letter tendered to the court below.

Unfortunately, the DJ did not address the aggravating circumstances of the respondent’s act of violence against the victim in her GD. Moreover, to the extent that the DJ accorded any mitigating weight to the fact that the acts of violence by the respondent were committed on “impulse” and without premeditation, I find this to be entirely misconceived. It is trite that while premeditation is an established aggravating factor, its absence operates only as a neutral factor and carries no mitigating value at all.

(2) Vulnerable victim and potential harm to the foetus

Second, I am of the view that the respondent’s culpability is further heightened due to the victim’s physical and emotional vulnerability, as well as the potential harm to the foetus.

It cannot be ignored that the victim in the present case was particularly vulnerable. At the material time, she was about nine weeks’ pregnant, and the respondent was well-aware of that. Yet, he had deliberately and viciously directed multiple punches and kicks at the victim’s abdominal area. In this regard, I accept the Prosecution’s submission that the potential harm to the foetus that could have resulted is a relevant factor that should have been taken into account in the sentencing analysis. It did not matter in the slightest that the respondent and the victim eventually decided to terminate the pregnancy.

Moreover, I find that there is an additional dimension of vulnerability unique to pregnant victims who suffer from acts of violence perpetrated against them – this being the emotional distress arising out of the fear for the potential loss of their unborn child. At the time, the respondent and the victim had yet to arrive at a decision on whether to proceed with the victim’s pregnancy. As the respondent inflicted blow after blow on the victim, she must not only have feared for her own safety, but also for the safety of the child in her womb.

Based on an examination of the GD, I am not satisfied that the DJ fully appreciated the extent of the respondent’s culpability in view of the victim’s vulnerability and the potential harm to the foetus.

Therefore, it is patently clear to me that after an assessment of the seriousness of the offence, the custodial threshold has undoubtedly been crossed in this case.

Forgiveness as a mitigating factor

Lastly, the Prosecution submits that the DJ wrongly regarded the victim’s forgiveness as a mitigating factor. In the alternative, that the DJ had placed undue weight on forgiveness in arriving at the sentence imposed on the respondent.

Before I address the Prosecution’s arguments, I first proceed to consider the treatment of forgiveness as a mitigating factor as established by case law.

In PP v UI, the Court of Appeal set out the starting point that forgiveness should not ordinarily be regarded as a mitigating factor capable of affecting the sentence to be imposed on an offender:

However, the Court of Appeal went on to opine that this was subject, possibly, to the two following exceptional situations (see PP v UI at [57]):

(a) situations where the sentence imposed on the offender would aggravate the victim’s distress; and

(b) situations where the victim’s forgiveness provided evidence that his or her psychological and/or mental suffering as a result of the offender’s criminal conduct must be very much less than would normally be the case.

Bearing in mind the Court of Appeal’s observations, it is clear that the question for determination is whether either or both of the two exceptional situations listed above are demonstrated on the facts. In the court below, the DJ answered this question in the affirmative, relying primarily on a handwritten letter by the victim which was tendered to the court.

However, having carefully considered the victim’s letter, I respectfully disagree with the DJ’s findings in this regard. I find that the DJ failed to explain precisely how the quotations she reproduced from the victim’s letter constituted evidence which satisfied the two exceptional situations set out in PP v UI.

In relation to the first situation, I am of the view that there is insufficient evidence to prove that the victim’s distress would be aggravated by the imposition of a custodial term of the length submitted by the Prosecution. The main tenor of the victim’s letter was to express her belief in the respondent’s capacity for change. It went no further than to demonstrate her forgiveness and concern for him. For instance, she wrote: “I do not wish for this charge to have a negative impact on his future, academically and socially.” However, the respondent argues that the victim’s request for the court to have consideration to the impact on the sentence passed as “it might significantly hurt [them] in the planning of [their] future together”, necessarily leads to the inference that she did not wish for the respondent to receive a custodial sentence and that such a sentence would aggravate her distress. I am unable to accept this argument. In my view, this request did not clearly indicate that the victim’s distress would be aggravated on account of the imposition of a short custodial sentence. First, any negative impact which was to be suffered by the victim was framed in tentative terms. Second, the victim did not expressly explain how a short custodial sentence would specifically aggravate her distress, as opposed to any other sentence imposed. Third, I note that the victim herself acknowledged that the respondent had “broke the law” and she “[did] not believe that he should get off without any punishment”.

I acknowledge that imposing a custodial sentence on the respondent may be of some concern to the victim, but it certainly would not aggravate her distress such as to satisfy this exception. I should add that, in the absence of a clear and unequivocal indication that a victim’s distress would be significantly aggravated, this exception is unlikely to be satisfied. A finding that a victim’s distress would be aggravated is more likely to be arrived at in a situation where the sentence to be imposed on the offender is an especially onerous one, for example, where the custodial term is of a considerable length. This high threshold for the application of the exception is, in my view, consistent with the recognition of the general principle that forgiveness should ordinarily not factor into the court’s deliberation of the appropriate sentence to impose in criminal cases.

In relation to the second situation, I note that the Court of Appeal in PP v UI at [60], had regard to a case commentary in the Criminal Law Review (see [1996] Crim L R 210 at 212) by Lord Bingham CJ of the decision in R v James Kevin Hutchinson (1994) 15 Cr App R (S) 134, which restricted its application to a “limited range of offences only”. In PP v UI itself, the Court of Appeal at [60], held that this limited range of offences would not include the offence of rape committed against a young girl. This was so especially if the victim is the offender’s own child, as public interest requires that the offender be punished with what he deserves, regardless of whether or not the victim displays a relative lack of suffering. I similarly find that this “limited range of offences” does not include the offence committed in the present case. In my view, public interest requires that the respondent be punished in a manner that is commensurate with the seriousness of his criminal conduct, due to the factors discussed above at [27]–[35].

In any event, it bears emphasis that where forgiveness is relevant as a mitigating factor, it merely serves as a moderating influence on the severity of the sentence; it should not in any way determine the type of sentence to be imposed. Ultimately, what should determine the type of sentence to be imposed is the gravity of the offence committed, reflecting the harm caused to the victim, the culpability of the offender and other relevant sentencing principles. Thus, where the custodial threshold has been crossed based on an assessment of these factors, the victim’s forgiveness cannot, and should not, be accorded such significant weight as to justify the imposition of a fine instead.

Conclusion

A custodial sentence is unquestionably warranted in this case. Such a sustained and vicious act of violence committed against a pregnant victim must be visited with a condign punishment which reflects the gravity of the offence. The criminal justice system functions to protect those who have been or may be victims of violence. The sentence to be imposed must send an unequivocal message to would-be perpetrators that such behaviour is totally unacceptable and will not be tolerated by our courts. The sentence must give emphasis to the need for specific and general deterrence, punishment and to reflect society’s strong disapprobation of such conduct.

Having considered the other mitigating factors present, including the respondent’s plea of guilt and his lack of antecedents, I allow the Prosecution’s appeal against sentence. Although the Prosecution had sought a sentence of at least two weeks’ imprisonment in the court below, I note that the Prosecution has in this appeal submitted a sentence of two weeks’ imprisonment. While I am of the view that a slightly higher imprisonment sentence is justified in this case, I will refrain from imposing it given the adversarial nature of our criminal justice system.

The respondent is still young, and he has a long road ahead of him. He has expressed a positive desire to change for the better, and I hope that he will learn from this unfortunate experience and become a better person, not only for himself but also for the victim whom he is to marry. Nonetheless, it is equally important that he is adequately punished for his actions, to serve as a reminder to him and to others in similar situations that the courts will not hesitate to take a firm stance against such acts of violence.