Public Prosecutor v ACI

Lee Seiu Kin J:

[1] The accused is a 52 year old male. On 22 September 2009, the accused pleaded guilty to two charges as follows:

[2] The accused agreed to the following statement of facts tendered by the prosecution:

[3] After I convicted him of the two charges, his counsel submitted the following written plea in mitigation:

[4] The deputy public prosecutor, Mr Amarjit Singh (“Mr Singh”), tendered a written submission on sentence. The first point was that the charge against the accused had been reduced from attempted murder under s 307 Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) to one of attempted culpable homicide under s 308 on account of the accused suffering from a major depressive disorder at the time of the offence. Therefore the fact of the mental illness of the accused should not be relevant in the consideration of the appropriate sentence for the offence under s 308. With respect, I do not agree with this submission. The court must take into consideration all factors relevant to the case and the fact of the mental illness of the accused at the time he committed the offence must be a relevant one. The charge against the accused may have been reduced by the prosecution from attempted murder, but that is a decision of the prosecution which may be made for a variety of reasons, including the availability or otherwise of evidence to prove the charge. The court does not consider how the Public Prosecutor has exercised his discretion on the charge. In a trial, the court may only look at the evidence before it in relation to the charge to see if the offence is made out. In considering the sentence the court looks at the facts proved or agreed in the statement of facts, and imposes a sentence that is most appropriate on a consideration of all relevant factors in the case.

[5] Mr Singh’s next submission is that the punishment for s 308 Penal Code had, from 1 February 2008, been increased (where hurt is caused) from a maximum of seven years’ imprisonment, with or without fine, to a maximum of 15 years, or fine, or caning, or any combination thereof. He pointed out that the reason provided in Parliament by the minister at the second reading of the amendment bill was that a maximum of seven years’ imprisonment was “grossly inadequate”. Mr Singh submitted that this meant that Parliament had intended that the sentences for such cases should be increased accordingly. If I accept this submission, it would mean that if a person who had committed an offence under s 308 before 1 February 2008 was sentenced to three years’ imprisonment out of a maximum of seven years, the same person, had that offence been committed after 1 February 2008, would be sentenced to a higher term of imprisonment on account of Parliament increasing the maximum to 15 years. With respect, I cannot see the logic in this submission and disagree that such was what Parliament had intended. This is not a regulatory offence in which the maximum sentence provides guidance as to its severity. It pertains to an offence under Chapter XVI of the Penal Code dealing with offences affecting the human body. In my view, Parliament had intended to provide for a higher maximum imprisonment term in recognition of the fact that a maximum of seven years is inadequate in the most egregious cases, where the court would be constrained to impose the maximum seven years. That the maximum of seven years is somewhat inadequate is obvious when this is contrasted to the maximum of ten years or life imprisonment provided in s 326 (before 1 February 2008) where an intention to kill is not a required element of the offence.

[6] In determining the appropriate sentence, I have to bear in mind the fact that the punishment for an offence under s 308 Penal Code is imprisonment up to 15 years, or fine, or caning, or any combination thereof. The salient facts are as follows. The accused had engaged in a quarrel with Victim 1 over money as well as over their sexual relationship, a volatile combination. Victim 1 threw a padlock at the accused and although this missed him, it infuriated him to the extent that he lost control of himself. The accused went to the kitchen, took a chopper and approached Victim 1. She ran out of the flat and the accused chased her, chopper in hand. He caught up with her and as she cowered against the parapet wall of the corridor, the accused held her by the hair and hacked her on the head with the chopper. Victim 1 raised her hand defensively. She suffered deep cuts in her right hand as well as her scalp as a result. Her son, Victim 2, pleaded with the accused not to hurt Victim 1 but was ignored. Out of desperation, Victim 2 used his hand to stop the accused from hacking Victim 1. But the accused was so intent on attacking Victim 1 that he carried on hacking, as a result of which Victim 2 suffered two deep cuts on the forearm and wrist. Considerable force had been used to inflict these injuries. The accused then threw down the chopper and lifted Victim 1 by her upper thighs and flipped her over the parapet, from where she fell two levels to the ground below. Fortuitously Victim 1 managed to land on her feet, otherwise she could have died from the fall. Nevertheless, the injury was severe because she had fractures in three spinal vertebrae. She had to undergo emergency spinal surgery. After tossing Victim 1 over the parapet, the accused returned to the flat, packed his belongings, took Victim 1’s mobile phone and left the scene. He surrendered to the police three days later.

[7] The first point to be noted is that Victim 1 could easily have died from the fall. The degree of violence in this case is high: first the accused hacked away at Victim 1 with a chopper inflicting deep cut wounds on her head and wrist, ignoring Victim 2’s pleas to stop. He went about this with such single-minded intensity that he did not stop hacking even when Victim 2’s hands got in the way, as a result of which Victim 2 suffered two deep cuts. He then threw down the chopper and lifted Victim 1 over the parapet to toss her off the third storey. This would have required considerable effort as the accused is not of large build, and Victim 1 is not of small build.

[8] The next point to be noted is the severity of the injuries. The cuts caused by the chopper were deep, and had he continued to hack away, Victim 1 could have died from bleeding. For some reason he stopped hacking at her, perhaps due to Victim 2’s intervention, but decided to finish the task by tossing her off the balcony. It is such an extreme act that the only inference in the circumstances is that it was done with the intention to cause death.

[9] A further factor is that after the accused threw Victim 1 off the balcony, he was not overcome with remorse by the realisation of what he had done. Instead he returned to the flat to pack his belongings, and even had the presence of mind to take Victim 1’s mobile phone as he left. It took him three days to surrender.

[10] The main factor in the accused’s favour is the fact that he was suffering from a major depressive disorder at the time. This had started some three months before the incident, due to the pressures of the situation he landed himself in – he had acquired a mistress whom he had to support along with her children, he had to keep this affair a secret from his wife, his business had turned bad and Victim 1 started pressuring him not only for money but also to marry her. As a result, he became depressed, socially withdrawn, suffered loss of appetite and entertained thoughts of suicide. He turned to alcohol to drown his sorrows.

[11] Mr Singh cited the following precedents for the offence under s 308 Penal Code:

(a) Public Prosecutor v Chot Saik Kam (“Chot Saik Kam”) [1990] SLR 756, in which the accused pleaded guilty to one count of culpable homicide not amounting to murder under s 304(a) Penal Code and one count of attempted culpable homicide not amounting to murder under s 308. He was sentenced to ten years’ imprisonment in respect of the charge under s 304(a) and three years’ imprisonment for the s 308 charge. Both sentences were ordered to run consecutively. The accused there, who had been diagnosed with depression not amounting to unsoundness of mind, stabbed his two female flatmates after a quarrel with one of them. After the initial quarrel with one of the victims, the accused took a knife from the kitchen and approached the room where the two victims were watching a video. When they opened the door for him, the accused attacked the victims with the knife, one after the other. The surviving victim managed to lock herself in the room when the accused turned his attention to the deceased who was trying to escape.

(b) Public Prosecutor v Low Ah Fatt (“Low Ah Fatt”) (CC 36 of 1992, unreported), in which the accused was sentenced to 42 months’ imprisonment on a charge under s 308 Penal Code. The accused was infuriated when he was handed an eviction letter by the one of the two victims. He tried to attack both victims with a knife but they managed to lock themselves in the bedroom. He then poured flammable liquid through the bedroom door and lit it. One of the victims sustained 13% burns on his body. The prosecution proceeded against the accused on only one charge with the other charge taken into consideration for sentencing.

(c) Public Prosecutor v A Aziz Bin A Wahid (“A Aziz Bin A Wahid”) (CC 37 of 2001, unreported), where the accused was charged under s 308 Penal Code for stabbing his wife. The accused and his wife had been having matrimonial problems and on the day of the offence, the Syariah Court informed the accused that his wife would not be returning to him. The accused took a knife from his home and went to the place of work of his wife. There he stabbed her three times, inflicting severe stab wounds. He was sentenced to three years’ imprisonment.

(d) Public Prosecutor v Ong Kim Geok (“Ong Kim Geok”) (CC 16 of 2002, unreported), in which the accused was charged under s 308 Penal Code for throwing her 8-year-old daughter down the rubbish chute from her fifth floor residence. The accused became annoyed when she saw the victim consuming cold leftover food. The accused slapped the victim, caned her and pinched her thigh and directed her to go back to sleep. However, the victim was unable to fall asleep as she was hungry. At about 5am, when the accused saw the victim awake, she dragged her to the kitchen and threw her down the rubbish chute. The victim was only rescued from the base of the rubbish chute at 8.00am by a cleaner clearing the rubbish chute. In sentencing the accused to two years and six months’ imprisonment, the court took into account the fact that the accused had been suffering from hypothyroidism, a condition characterised by markedly agitated and aggressive behaviour. In this case too, the prosecution had proceeded against the accused on only one charge. A second charge under s 4(6) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) was taken into consideration for the purposes of sentencing.

(e) Public Prosecutor v Kwong Kok Hing (“Kwong Kok Hing”) [2008] 2 SLR 684, in which the accused was charged under s 308 Penal Code for pushing the victim, his ex-girlfriend, into the path of an oncoming train at a mass rapid transit (“MRT”) station. Fortunately, the victim landed on the tracks in a crouching position and managed to dash to safety on the other side of the track with less than a second to spare before the train would have hit her. The accused, who was suffering from depression at the time of the offence, pleaded guilty and was initially sentenced to one year’s imprisonment in the High Court. On the public prosecutor’s appeal, the Court of Appeal enhanced the sentence of imprisonment to three years.

[12] In Chot Saik Kam, in which the accused was sentenced to three years’ imprisonment on the s 308 charge, the court had considered that he did not have the intention to cause death or such bodily injury as is likely to cause death – which is, in effect, limb (b) of s 304 Penal Code. At [28] of his judgment, Punch Coomaraswamy J said:

There appears to be an error in the report as the limb in s 304 that pertains to a lack of intention to cause death is limb (b). In the present case I had considered at [8] that the accused had intended to cause the death of Victim 1.

[13] In Low Ah Fatt, one victim did not suffer any physical injury while the injury of the second, who had 13% burns on his body, was not caused by a direct attack by the accused but by his reckless act of setting fire to the bedroom. The fire itself did not appear to be a large one as it took quite a while for them to be rescued. It would appear that the sentence was based on limb (b) of s 304 Penal Code, as in Chot Saik Kim. In the present case, severe injuries were inflicted directly by the accused on Victim 1 with a chopper before he threw her off the balcony.

[14] In A Aziz Bin A Wahid, the accused inflicted three stab wounds on the victim, who was his wife and with whom he was undergoing a divorce. The stab wounds were serious and it was fortuitous that the incident took place at a hospital and immediate treatment was available. The main differences between this and the present case are that (a) the accused did not go further and throw the victim off a height, and (b) he did not injure any other person in the course of committing the crime.

[15] Ong Kim Geok involved a mother who threw her 8-year daughter down a rubbish chute. On any analysis, this tragic case is special on its facts.

[16] In Kwong Kok Hing, the trial judge had taken into consideration the fact that the victim’s physical injuries were minor and, taking into account the other factors in the case, sentenced the accused to one year’s imprisonment. On appeal the Court of Appeal held that the word “hurt” in s 308 Penal Code included emotional trauma, which the victim had suffered greatly. The Court of Appeal also considered that it was necessary to impose a deterrent sentence as the incident took place in an MRT station. In enhancing the sentence to three years’ imprisonment, the court said at [46]:

[17] Hence it was based on two mitigating factors: (a) the potential for rehabilitation; and (b) the fact that the accused had already served the one-year imprisonment imposed by the trial judge, had been released for more than six months and would have to undergo the trauma of returning to prison, that the court imposed a sentence of three years. In the present case, although tossing a person off the third storey is as bad as pushing someone into the path of an incoming train, there are two aggravating factors: (a) the accused had caused severe injuries with a chopper on Victim 1 as well as Victim 2 who tried to stop him; and (b) the accused had tossed Victim 1 off the balcony, using great force to lift her off the ground in order to get her over the parapet.

[18] It is appropriate at this point to address Mr Singh’s submission that, following the decision in Kwong Kok Hing, I should also impose a deterrent sentence. In determining the appropriate sentence, the court bears in mind the principles of sentencing, which are generally considered to be retribution, deterrence, prevention and rehabilitation (see Kwong Kok Hing at [17]). The degree to which each of these principles affects the sentence depends on the nature of the offence and the particular facts of the case. In asking for a deterrent sentence, I took it to mean that I should give more weight to the deterrence factor in deciding on the appropriate sentence, or that a sentence that is based mainly on the other factors, namely retribution, prevention and rehabilitation, would not result in a punishment that would deter like-minded persons from committing similar offence. With respect, I cannot see the logic of this submission for the present case. This is a crime of passion, committed without premeditation in the heat of a sudden quarrel. The accused had caused grievous injury to Victim 1 in the course of attempting to kill her. He must be punished appropriately for the gravity of his crime and the degree of harm he had inflicted on the victims. I cannot see how, by imposing a sentence harsher than what retributive principles would call for, this could deter similar crimes of passion. Such crimes, by their very nature, do not involve calm deliberation on the part of the perpetrators. General deterrence works well for offences where there is some degree of premeditation so that the threat of severe punishment could dissuade potential offenders from committing them. Or it may be justified where detection is difficult or there is a prevalence of such offences and there is a need to stamp it out. In these instances there is a greater public good achieved in making an offender undergo a more severe punishment than what the gravity of the crime would otherwise require. The point is that there must be a good basis for the court to pronounce a harsher sentence that what it would otherwise impose if the deterrence were not an important factor. To do so simply because the offence is grave is not a good basis because it does not address the need for the additional punishment.

[19] In Kwong Kok Hing, the Court of Appeal considered that a deterrent sentence was called for not because of the nature of the offence but because it was located in an MRT station which requires special consideration. The court said at [39]–[41]:

[20] I return to my consideration of the precedents. The three years’ imprisonment imposed in Kwong Kok Hing was due to the special circumstances there, in the absence of which a higher sentence would be called for. The sentences in Low Ah Fatt and A Aziz Bin A Wahid ranged from three to three and a half years, but the facts there were less aggravating than the present case. The accused here had launched a vicious attack with a chopper on Victim 1, injured Victim 2 in the process, before throwing Victim 1 off the balcony. Victim 1 had mercifully survived the fall but had sustained severe injuries. Taking into consideration the factors raised in the mitigation plea, I was of the view that the appropriate sentence would be a term of imprisonment of five years.

[21] In relation to the second charge under s 326 of the Penal Code, as I have pointed out in [5] above, it is curious that it provides a maximum of life imprisonment or for a term up to 15 years, which is much more than that for s 308 even though an intention to cause death is not an element of the charge. In view of the fact that the accused’s acts were directed at Victim 1 and that he had only injured Victim 2 when the latter tried to protect her, I was of the view that a sentence of one year’s imprisonment would be appropriate.

[22] Mr Singh asked that the sentences be ordered to run consecutively. However both offences were committed in the same transaction. Indeed the second offence under s 326 Penal Code was committed incidentally to the first. Furthermore, I had considered the fact that the accused had single-mindedly gone about hacking Victim 1, in the course of which he injured Victim 2, as an aggravating factor in the first offence. Finally, the principle of totality of sentence must be borne in mind and I was of the view that the appropriate punishment for the accused for both offences would be five years. I therefore ordered the sentences to run concurrently.