Public Prosecutor v AFR

Lee Seiu Kin J:

[1] The accused was charged with the murder of his daughter some 22 days before her second birthday. The charge states as follows:

[2] At the end of the trial I reserved judgment and gave my decision on 17 March 2010. I acquitted the accused of the charge of murder but convicted him of the charge of culpable homicide under s 299 and punishable under s 304(b) of the Penal Code (Cap 224, 2008 Rev Ed)(“the Act”). Submissions on sentence were made by the prosecution and defence counsel on 19 April 2010, at the end of which I sentenced the accused to six years’ imprisonment with effect from the date of his arrest. The Public Prosecutor has appealed against the sentence and I now give the grounds for my decision on the sentence.

[3] The deceased had died as a result of a rupture to the inferior vena cava (“IVC”), a large vein that carries de-oxygenated blood from the lower half of the body into the heart. The severe bleeding that followed the rupture caused her heart to fail within minutes. The accused had subjected the deceased to a severe beating with blows from his fists and possibly his feet to her back, head and arms. I found that those blows had caused the rupture to the IVC although the evidence was unclear as to the exact mechanism. This was because the pathologist had testified that such rupture was more commonly seen in high speed collisions, yet the blows were not severe enough to cause any fracture to the ribs of the deceased. Nevertheless, the multiple blows on the trunk had caused bleeding in the left lung and caecum and the rupture to the IVC could only be caused by the beating inflicted on the deceased by the accused. The full findings of fact are set out in my judgment in [2010] SGHC 82 dated 17 March 2010 and I do not propose to repeat them here, save to reproduce parts of [41] and [42] of that judgment which distil the essential facts:

[4] The punishment prescribed under s 304(b) of the Act is imprisonment for a term which may extend to ten years, or with fine, or with caning, or with any combination thereof. The facts of the present case do not merit caning nor any fine. An appropriate term of imprisonment would suffice to fulfil the requirements of justice and public policy. Such term may range from a day to ten years, depending on the circumstances of each individual case. The authorities show that a wide range of sentences have been meted out for convictions under s 304(b) even though they all necessarily involve the accused causing the death of a human being. This is as it should be because there is a wide spectrum of circumstances under which this offence may be committed and the punishment must fit the crime. In Public Prosecutor v Tan Kei Loon Allan [1998] 3 SLR(R) 679 the Court of Appeal said at [33]:

[5] I turn to examine the precedents. At one end of the spectrum, the maximum of ten years’ imprisonment has been imposed in the most egregious cases. In Public Prosecutor v McCrea Michael [2006] 3 SLR(R) 677, the accused (“McCrea”) had killed his driver and his driver’s girlfriend. The driver had called McCrea’s mistress a “slut”, which made McCrea lose his temper. McCrea rained punches on the driver’s face until it was swollen and stopped only when the driver became motionless. The autopsy revealed extensive injuries all over the driver’s body; his face, arms and legs were bruised, three ribs were fractured as were both the superior thyroid horns (around the larynx). Death was caused by strangulation. The driver’s girlfriend had come to his assistance while McCrea was beating him up. She used a knife and stabbed McCrea with it, but he kicked and punched her and dislodged the knife from her hand. After the driver died, the girlfriend tried to leave but McCrea prevented this. Subsequently, for reasons that are not given, she lost consciousness. McCrea then wrapped plastic bags round her head and secured them tightly around the neck with a necktie. She died from suffocation. McCrea had told another person that he “had to ‘silence’ the girlfriend as she had witnessed the incident”. The court imposed the maximum of ten years’ imprisonment for each of the charges and ordered the sentences to run consecutively. McCrea also faced a third charge of causing disappearance of evidence under s 201 of the Act and he was sentenced to a term of four years. This was also to run consecutively to the two offences under s 304(b).

[6] In Tan Chun Seng v Public Prosecutor [2003] 2 SLR(R) 506, the appellant (“Tan”) was parking his car when the deceased and his friend (“Chandrasegaran”) approached. The deceased and Chandrasegaran had been drinking earlier. Chandrasegaran hit the window of the front passenger seat. They then went to the rear of the car and Chandrasegaran gestured to Tan to get out of the car. After parking his car, Tan got out to confront Chandrasegaran. However Tan could not find him, and only managed to see the deceased walking down the road. Tan shouted at him, asking why his friend had hit Tan’s car. Unknown to Tan, the deceased was a deaf mute and therefore could not hear him. The deceased continued walking, not knowing that Tan was behind. This angered Tan further and he hurled Hokkien vulgarities at the deceased. When Tan neared the deceased, the latter turned around and stood his ground. Tan advanced, pouring verbal abuse and gesticulating with his hands. When Tan came close, the deceased gave him a push. As the deceased was of large physical build, the push caused Tan to fall. When on the ground, Tan spotted a wooden pole some distance away. Realising that he would not be able to overpower the deceased with his bare hands, he grabbed the pole, ran to the deceased and hit him numerous times with it. One of the blows was delivered to the head and it proved fatal. The deceased fell to the ground, motionless. Tan threw the pole away and fled. He was convicted of murder by the trial court but the Court of Appeal found the defence of sudden fight made out and convicted him of culpable homicide under s 304 of the Act. At that time, s 304(a) provided for life imprisonment or imprisonment up to ten years. The Court of Appeal was of the view that the appropriate sentence was more than ten years, but in view of the fact that the s 304(a) did not provide for an intermediate period between ten years and life imprisonment, Tan was sentenced to ten years’ imprisonment under s 304(b). The Court of Appeal did not explain why it chose this limb over s 304(a) which, technically, would have been the appropriate limb as the charge was reduced on account of the successful defence of sudden fight.

[7] Sentences at the high end – nine years – were given in Soosay v Public Prosecutor [1993] 2 SLR(R) 670 and Public Prosecutor v Aw Teck Hock [2003] 1 SLR(R) 167. They both involved fights of various sorts. A sentence of eight years was imposed in Tan Chee Hwee and another v Public Prosecutor [1993] 2 SLR(R) 493, where a maid was strangled during a botched burglary. In Public Prosecutor v Leong Soon Kheong [2009] 4 SLR(R) 63 the accused received a sentence of seven years’ imprisonment for his role as ringleader in an unprovoked group attack on the deceased.

[8] Sentences in the mid-range, around five years, have been meted out in convictions under s 304(b). In Public Prosecutor v Wan Chin Hon [2005] SGHC 121, the accused (“Wan”) was a taxi driver. The deceased was riding a motorcycle and the two (Wan and the deceased) had somehow gotten into a disagreement on the road which led to some high-speed antics, which resulted in the tragic death of the motorcyclist. Wan was found to have deliberately swerved the taxi into the path of the motorcycle at high speed, causing the deceased to lose control and crash. He was sentenced to four years’ imprisonment. In Public Prosecutor v Oon Oon Sang Tee (Criminal Case No 11 of 2006), the accused (“Oon”) was sentenced to four years and six months for strangling his wife to death. Oon was upset that his wife had been conducting an extramarital affair and tried to reconcile with her. But his wife told Oon that she could not change the way she felt and intimated that she would divorce him. This caused Oon to lose control and strangle her. There was no premeditation and no weapon used. However Oon had an underlying psychiatric condition.

[9] Sentences as low as two and a half years have been imposed in convictions under s 304(b). In Public Prosecutor v Lim Ah Seng [2007] 2 SLR(R) 957, the accused (“Lim”) had caused the death of his wife by strangulation. However the trial court considered the following mitigating factors to be sufficient to sentence him to a prison term of only two years and six months:

[10] Finally I turn to consider cases involving very young victims. In Public Prosecutor v Teo Chee Seng [2005] 3 SLR(R) 250 the appellant (“Teo”) was sentenced to seven years’ imprisonment for causing the death of his lover’s seven-month old infant. The facts are summarised in [2]–[5] of the judgment of the Court of Appeal, as follows:

[11] The trial court had sentenced Teo to four years’ imprisonment and the Court of Appeal increased it to seven years. One of the reasons for the increased sentence was that insufficient weight had been given to the fact that the victim was only seven months old and in Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220, the Court of Appeal had recognised the need to protect vulnerable and defenceless persons. The Court of Appeal then reviewed the cases involving young victims in [12]–[14] of its judgment, as follows:

[12] In the authorities reviewed in the foregoing paragraphs, the sentences imposed in convictions under s 304(b) of the Act range from two and a half years to the maximum of ten years. Where very young victims were involved, the sentences ranged from five to seven years with ten years being imposed in an egregious case involving a three month old infant. In the present case, the deceased was the natural daughter of the accused, the oldest of three girls and, as was clear from the evidence, one whom he loved dearly. Indeed the offence was committed just after he had returned home from a shopping trip during which he had decided at the spur of the moment to buy her a doll for her upcoming second birthday. The knowledge that, in that moment of uncontrolled anger, he had brought this tragedy upon the deceased and his wife and above all, to himself, will never be erased from his conscience no matter how many years he is imprisoned as punishment. That is a burden he will bear for the rest of his life and no punishment meted out by this court can be greater than that. It was nevertheless necessary for society to manifest its abhorrence for such loss of control by the accused and the degree of violence that he visited on the young innocent that was his own daughter. Bearing in mind the range of sentences imposed in the authorities considered above, the fact that the accused will have to live with the knowledge that he had caused the death of a child he had loved, and the need for the court to impose a sentence that will punish him for his lapse, I imposed a sentence of six years’ imprisonment, against which the Public Prosecutor is now appealing.