Public Prosecutor v Chong Hou En

Chan Seng Onn J:

[1] This appeal highlights the challenging task faced by the courts when sentencing an offender diagnosed with a psychiatric condition. The condition is insufficient to constitute a full defence to the criminal conduct perpetrated by the accused but is nevertheless relevant when the particular individual is sentenced. The multi-faceted task of tailoring the sentence to the offender becomes further vexed by the complexities of the human mind. It is most certainly an unenviable task.

[2] The respondent, Chong Hou En, a 29-year-old male, pleaded guilty to five charges under s 509 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and a single charge under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) (“Films Act”). The district judge (“the Judge”) was of the view that a probation order was appropriate and ordered accordingly. The Prosecution successfully applied for a stay of sentence and now appeals against the sentence on the ground that it is manifestly inadequate.

[4] The victim and her husband were at the Giant Hypermarket of the same shopping mall. While they were at the Fresh Fruits section, the respondent came up from behind the victim and placed his foot underneath the skirt of the victim in order to film an “Up Skirt” video. The respondent attempted to flee the scene after he was noticed by the husband of the victim. He was detained by the victim’s husband with the help of a passer-by after a brief struggle. He was subsequently arrested by the police.

[5] In the course of investigations, the respondent’s computers, laptops, mobile phone, flash drives, memory cards, hard drive and pinhole cameras were seized. A few thousand videos were found in his computer and hard drive. The Board of Film Censors of the Media Development Authority certified that 10,574 video films were obscene.

[6] Further investigations of his computer equipment also revealed videos of females showering in his girlfriend’s parents’ home. The respondent had, from August 2010, through a series of carefully planned episodes, recorded his girlfriend’s family members in the shower. The respondent knew that they would take a shower once they had switched on the water heater. He would then enter the toilet to place a digital camera (that was cleverly disguised as a lighter to avoid detection) there. After the family members of his girlfriend had finished their showers, the respondent would retrieve the camera and access the videos.

[7] Through these steps, the respondent filmed the older sister of his girlfriend (aged 30 at the time of the offence) and his girlfriend’s two young nieces (aged 12 and ten at the time of the offence). His girlfriend’s sister-in-law (aged 31 at the time of the offence), who was the mother of the two nieces, was also filmed. These obscene videos captured the victims fully nude with moving images of their breasts and vulvas. The respondent would watch these videos and masturbate to them.

[8] The respondent was thus charged and convicted of five counts of insulting the modesty of a woman by intruding upon her privacy under s 509 of the Penal Code with respect to the victim at IMM shopping mall and the four victims in his girlfriend’s parents’ home. He was also charged and convicted of one count of possession of 10,574 obscene films under s 30(1) of the Films Act. The respondent consented to ten other charges of insulting the modesty of a woman under s 509 of the Penal Code and one charge of possession of 578 video films without a valid certificate under s 21(1)(a) of the Films Act to be taken into consideration for sentencing.

[9] The Judge was of the view that the main sentencing consideration should be rehabilitation. Noting that the maximum penalty prescribed was one years’ imprisonment and a fine for an offence under s 509 of the Penal Code and that an offence under s 30(1) of the Films Act brought a maximum punishment of six months’ imprisonment and a $20,000 aggregate fine, the Judge concluded that the offences were not serious offences. The Judge also placed considerable weight on the medical evidence which stated that the accused was suffering from voyeurism. He concluded that deterrence “should not take precedence over rehabilitation as the offender was labouring under a serious psychiatric condition or mental disorder at the time of the incident”.

[10] The Judge also concluded that the aggravating factors highlighted by the Prosecution, which included the use of recording devices, multiple victims including children, premeditation and elaborate planning, and the fact that the private parts of the victims were captured, should “be given little weight in light of the fact that the accused was suffering from a psychiatric condition at the material time.”

[11] According to the Judge, imprisonment would hamper the treatment programme of the respondent. Furthermore, the Judge was persuaded by the “exceptional support” of the respondent’s loved ones, including his girlfriend, whose family had also stood by and forgiven him, and his commitment to secure his own recovery and rehabilitation. The Judge also attached weight to the fact that the respondent had voluntarily undergone treatment for three years and that he had not reoffended since the commission of these offences. The Judge opined that there was no need to punish the respondent further in the light of the fact that he was “currently suffering from significant depressive and anxiety symptomatology” related to the shame and stress from his commission of the offences.

[12] With all of the above factors in mind, the Judge ordered the respondent to undergo 30 months’ split probation (three months’ intensive and 27 months’ supervised) with the following conditions:

(a) to undergo psychiatric and psychological follow-up as required by the Institute of Mental Health (“IMH’), psychiatrist Dr Tommy Tan and psychologist, Mr James Tan, and to take medication as prescribed;

(b) to attend counselling with a qualified counsellor to address his relationship difficulties with his girlfriend and his parents;

(c) to be prohibited from possessing any electronic devices with camera facilities and to be supervised closely when accessing websites; and

(d) his parents and girlfriend to be bonded for $5000 to ensure his good behaviour.

[13] In arguing that a custodial sentence is warranted, the Prosecution does not challenge the diagnosis of voyeurism and fetishism. Instead, they argue that the starting point for offences under s 509 of the Penal Code which involve the use of recording devices should be custodial. The Prosecution relies on the case of PP v Tay Beng Guan Albert [2000] 2 SLR(R) 778 (“Albert Tay”) in support of this proposition. I shall return to this case later.

[14] The Prosecution also submits that the severity of the offences and the aggravating factors point towards a strong public interest in imposing a custodial sentence. The Prosecution submits that the learned Judge erred in finding that the offence under s 509 was not a serious offence. The prosecution also highlights the following facts, which it argues are aggravating:

(a) there was a high degree of intrusion into the privacy of victims since some victims were recorded fully naked;

(b) there were multiple victims;

(c) some of the victims were young;

(d) a video-camcorder was used; and

(e) there was a high degree of planning and premeditation.

[15] The Prosecution also points to an observation that there has been an annual increase in the number of offences under s 509 of the Penal Code (“Dealing with Mentally Ill Offenders”, The Straits Times, (7 July 2012)). The prosecution submits that the offences under s 509 of the Penal Code are a concern to public safety since camera phones are now ubiquitous and it is not uncommon to find miniature cameras disguised as smoke detectors, pens, cigarette lighters, mirror clocks, car alarm key chains or even clothing hooks. A deterrent sentence is therefore warranted to send a stern message to potential offenders.

[16] The Prosecution submits that rehabilitation should not override the other penal objectives of deterrence and retribution. According to the Prosecution, the Judge had placed excessive weight on the causal link between the respondent’s condition of voyeurism and his commission of the offences. The concept of general deterrence should also feature as an important sentencing consideration, while the concept of retribution is also relevant. The Prosecution points out that the intrusion into the privacy of the victims by the respondent was grave. There is also a high degree of culpability displayed by the significant degree of planning and premeditation. Furthermore, some of these offences involved the recording of victims in their very own homes thus violating the safety and security that the victims would expect from being in their own home.

[17] Given all these factors, the Prosecution submits that the sentence of probation is manifestly inadequate and seeks a custodial sentence of more than four weeks’ imprisonment per charge in respect of the offences under s 509 of the Penal Code.

[18] Counsel for the respondent argues that the Prosecution has failed to show how the sentence of probation, which was imposed after a very careful consideration of all the circumstances of the offences and the offender, is either wrong in principle or manifestly inadequate. Counsel submits that there is a causal link between the mental condition of voyeurism and fetishism and the commission of the offences. Accordingly, the sentencing principle that assumes central importance must be rehabilitation. Counsel points to the following facts in aid of this submission:

(a) The respondent was 28 years old at the time of the offences, had no antecedents and has not reoffended.

(b) The respondent comes from a good family and has a bachelor’s degree in business management. He has put his further education on hold because of this episode.

(c) The respondent is truly remorseful and has made a full confession. Most of the offences were only discovered because of his cooperation with the police and his confessions.

(d) The respondent was arrested more than three years ago and has successfully sought medical treatment for his condition in the interim period.

(e) There were no adverse effects on any of the victims. The children affected did not know about the incident and their pictures have not been circulated in any way. Furthermore, the respondent’s girlfriend’s family has been forgiving and supportive of the respondent.

(f) The whole episode has taken its toll on the respondent. However, he has continued with his treatment and was cooperative with the probation officer before his sentence of probation was stayed.

[19] Counsel for the respondent also argues that the Prosecution’s reliance on Albert Tay is inappropriate because it was decided in 2000, before the introduction of community-based sentencing. Furthermore, Albert Tay did not involve an accused with a mental disorder. On this basis, counsel seeks to distinguish Albert Tay from the present case. Furthermore, counsel argues that if the court establishes a norm that a custodial sentence is warranted in cases under s 509 of the Penal Code, it would “come very close to legislating a mandatory minimum sentence”. Counsel also relies on the case of PP v Tan Huat Heng (Magistrate’s Appeal 25 of 2012 (unreported)) (“Tan Huat Heng”) where the court set aside a custodial sentence and imposed a term of probation on the appellant who was convicted of four counts under s 509 of the Penal Code.

[20] Counsel submits that the Judge did not err in holding that rehabilitation was the dominant principle in this case. Counsel points to the fact that the respondent has been diligent in his treatment and has taken a lot of corrective steps to ensure that he will not be tempted or inclined to commit these kinds of offences again in the future. Imposing a term of imprisonment will ruin the efforts taken by the respondent to secure his rehabilitation. No significant public interest will be served by sending the respondent to prison. Accordingly, he submits that the sentence imposed by the Judge is not manifestly inadequate and that this appeal should be dismissed.

[21] The Prosecution relies on diagnostic criteria to show that voyeurism and fetishism are classed separately from impulse control disorders which include disorders such as kleptomania and pyromania. The Prosecution submits that the present case is different, given the high level of planning and premeditation; it is not a situation where the acts were done on the spur of the moment. The underlying suggestion of the Prosecution appears to be that a person diagnosed with a voyeurism disorder is nevertheless able to control his acts of voyeurism. However, in my view, this must be substantiated by expert evidence. The Prosecution then applied under s 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) for further evidence to be taken by this court in respect of expert evidence in relation to the nature of voyeurism and whether it deprives a person suffering from the disorder of control over his actions. I granted the application. Both the Prosecution and the respondent called expert witnesses to testify on the nature of voyeurism. I will deal with the expert testimonies and my findings in relation to them below.

[22] The principles with regards to appeals on sentence are trite. In Public Prosecutor v UI [2008] 4 SLR(R) 500 (“PP v UI”), the Court of Appeal reiterated the principles in the following manner:

[23] The Court of Appeal has recently dealt with the relevant principles when sentencing an offender with a mental disorder falling short of unsoundness of mind. In Lim Ghim Peow v Public Prosecutor [2014] 4 SLR 1287 (“Lim Ghim Peow”), Chao Hick Tin JA neatly summarised the principles at play as follows:

[24] While the court will always be cognisant of the need for rehabilitation in cases where the accused person is suffering from a mental disorder, the principles with regards to sentencing an accused with a mental disorder can be distilled, for present purposes, as follows:

(a) The existence of a mental disorder on the part of the offender is always a relevant factor in the sentencing process.

(b) The manner and extent of its relevance depends on the circumstances of each case, in particular, the nature and severity of the mental disorder.

(c) The element of general deterrence may still be accorded full weight in some circumstances, such as where the mental disorder is not serious or is not causally related to the commission of the offence, and the offence is a serious one.

(d) In spite of the existence of a mental disorder on the part of the accused, specific deterrence may remain relevant in instances where the offence is premeditated or where there is a conscious choice to commit the offence.

(e) If the serious psychiatric condition or mental disorder renders deterrence less effective, where for instance the offender has a significantly impaired ability to appreciate the nature and quality of his actions, then rehabilitation may take precedence.

(f) Even though rehabilitation may be a relevant consideration, it does not necessarily dictate a light sentence. The accused could also be rehabilitated in prison.

(g) Finally, in cases involving particularly heinous or serious offences, even when the accused person is labouring under a serious mental disorder, there is no reason why the retributive and protective principles of sentencing should not prevail over the principle of rehabilitation.

[25] Given that the presence of a diagnosis of a mental disorder is in most cases a mitigating factor which the court may take into account when sentencing the offender, its significance in terms of mitigating value depends on the factors and principles enumerated above. These include specifically factors such as the causal link, the nature and severity of the mental disorder and the offender’s ability to make conscious choices and to appreciate the nature and quality of his actions. As explained at length, these are particularly important when determining the appropriate sentencing principles which should be engaged in the sentencing exercise.

[26] In fact, the court must pay particular attention to the nature of the mental disorder when the disorder is one which invariably manifests itself in the doing of the very act which is criminalised. If the very diagnostic criteria include the invariable manifestation of an act which is criminalised, a causal link, however tenuous, would almost certainly be present. It may even be circular to speak of causation, simply on that premise – the diagnosis is based on the acting out of the criminal behaviour while the criminal behaviour is explicable by the presence of the mental disorder. The prosecution ably demonstrates the difficulty in such cases since it would mean the more a person engaged in the criminal behaviour, the more serious the disorder is and the greater the mitigating value the disorder carries. This cannot be correct.

[27] Therefore, in this particular genus of mental disorders, the concept of a causal link may not be particularly useful, or even that relevant for determining the mitigating value to be ascribed to the mental disorder. In my view, where the “severity” of the mental disorder in an individual is assessed with respect to the “frequency” of the criminal act and there is a positive correlation between the “severity” and the “frequency”, then the severity and nature of the individual’s mental disorder ought not to be regarded as a mitigating factor without first examining in detail the nature of the mental disorder, in terms of how it has affected the individual’s ability or capacity to control or refrain himself from committing the criminal acts and whether punishment will be able to instil fear in him and deter him from committing the same criminal acts in future.

[28] If the nature of the mental disorder is such that the individual retains substantially the mental ability or capacity to control or refrain himself when he commits the criminal acts but he instead chooses not to exercise his self-control, and if it is also shown that punishment will be effective in instilling fear in him and thereby deter him from committing the same criminal acts in the future, I will attribute very little or no mitigating value to the presence of the mental disorder.

[29] If there is evidence to show that the individual is not able or is substantially not able to control or refrain himself from committing the criminal acts because of the mental disorder and similarly, punishment is unlikely to be effective in instilling fear in him and to deter him from committing the same criminal acts in future because of the mental disorder, then the principle of deterrence may be given less weight and rehabilitation may well take precedence provided that the treatment mandated as part of his rehabilitation is going to be effective in treating the mental disorder and in reducing the risk of recidivism. Nevertheless, if the criminal offences committed are just too serious in nature, the principle of rehabilitation may well have to give way to the principle of retribution and protection of the public at large. Ultimately, the factual circumstances will govern how all these different factors, pulling in different directions, are going to interact. The court must judiciously weigh these various factors and arrive at a fair and just sentence that is appropriate in all the circumstances of the case.

[30] A few illustrations of the judicial treatment of different mental disorders will be useful to elucidate the appropriate approach to take in the present case.

[31] In Public Prosecutor v Goh Lee Yin [2008] 1 SLR(R) 824 (“Goh Lee Yin”) V K Rajah JA dealt with the applicable principles when sentencing a person diagnosed with kleptomania. Rajah JA in his analysis examined the nature of kleptomania as follows:

In the context of the appropriate place for specific deterrence when sentencing kleptomaniacs, Rajah JA said:

Dealing with general deterrence, Rajah JA said at [92]:

[32] In Lim Hock Hin Kelvin v Public Prosecutor [1998] 1 SLR(R) 37 (“Kelvin Lim”), Yong Pung How CJ, dealing with paedophilia, stated at [31]:

[33] From the foregoing, it is clear that both Goh Yee Lin (explicitly) and Kelvin Lim (implicitly) had examined the nature of kleptomania and paedophilia respectively before deciding on the mitigating value to be attached to the disorder. Both kleptomania and paedophilia manifest themselves in the very act criminalised. The High Court in Goh Yee Lin and the Court of Appeal in Kelvin Lim came to different conclusions on the nature of kleptomania and paedophilia respectively and thus ascribed differing mitigating values to each of the mental disorders. The High Court attached significant mitigating value to the diagnosis of kleptomania because of the “undeterribility” of the disorder given that it is an impulse control disorder and the “sufferer may not be fully able to control his or her actions prior to and while committing the offence”. In the light of this, deterrence was rendered less effective and rehabilitation formed the primary focus. The Court of Appeal, on the other hand, attached little or no weight to the disorder of paedophilia since it rejected any “suggestion that the sufferer cannot help it and therefore carries only a diminished responsibility for his actions”. The Court of Appeal further concluded that there was “no evidence that paedophiles cannot exercise a high degree of responsibility and self-control”. Both the High Court and Court of Appeal were focused on the self-control or lack thereof of the sufferer of the disorder. This to my mind is also the correct inquiry. In addition, if a significant lack of control is established, the circularity discussed above at [26], in the context of the causal link for disorders which invariably manifest themselves in criminalised conduct, disappears. A proper causal link, free from circularity, from the disorder to the commission of the offence, is thus established.

[34] However, I must add that these observations should generally be confined to cases where the disorder is one which invariably manifests itself in criminal conduct (psychiatric descriptive labels of criminal/deviant conduct). Where the disorder is one which may manifest itself in different ways, some of which are criminal and others perhaps not, the concept of a causal link is still relevant and useful. In Lim Ghim Peow, the appellant who was suffering from major depressive disorder at the time of the offence, had doused his girlfriend with petrol and set her ablaze with a lighter. The appellant was charged and convicted of a charge of culpable homicide not amounting to murder under s 304(a) of the Penal Code and sentenced to 20 years’ imprisonment. In dismissing the appeal against conviction the Court of Appeal made the following observations:

The major depressive order in Lim Ghim Peow amounted to an abnormality of mind and there was a significant impairment of his decision-making capacity with regard to the offence (at [42]). This, coupled with the appellant’s already violent and impulsive propensity related to his personality attributes, resulted in him committing the offence. It would be meaningful to speak of a causal link here to determine the correlation between the disorder and the commission of the offence since it is not riddled with the same circularity issues mentioned above at [26]. However, as seen from the above passage, the presence of the causal link in Lim Ghim Peow was not a sufficient condition to the disorder being given significant mitigating value in the light of the particularly heinous nature of the crime.

[35] With the above in mind, I now turn to the expert evidence on the nature of voyeurism.

[36] The Prosecution’s expert is Dr Stephen Phang Boon Chye (“Dr Phang”). He is currently a senior consultant at the Department of General and Forensic Psychiatry at Institute of Mental Health, Woodbridge Hospital. He is also an adjunct assistant professor at Duke-NUS Graduate Medical School and was until July 2013, a clinical senior lecturer at the Yong Loo Lin School of Medicine, National University of Singapore.

[37] Dr Phang refers primarily to the diagnostic criteria contained in both the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5 Ed, 2013) (“DSM-5”) and The ICD-10 Classification of Mental and Behavioural Disorders (World Health Organisation, 1993) (“ICD-10”) to form his opinion. Dr Phang also produces various secondary materials in support of his expert opinion. Dr Phang’s expert opinion is summarised neatly in his medical report dated 13 June 2014 as follows:

[38] Dr Phang testifies that voyeurism forms part of a general family known as paraphilias. Paraphilias include, for example, paedophilia, voyeurism and exhibitionism. According to Dr Phang:

There are three general characteristics common to all paraphilias. Firstly, there is a longstanding, unusual and highly arousing erotic preoccupation which is dehumanised for most of the adolescent and adult life of the person. The fantasy is often associated with preoccupying arousal and relies heavily on the image of a partner who does not possess personhood. The paraphilic fantasies are conscious and clearly known to the individual. Secondly, there is an urge to act out the fantasy or “to play out the imagined erotic scenario, which in more intense forms is described as an urge to act out the imagined fantasy in sexual behaviour”, usually in masturbation. The acting out of the sexual fantasy is fundamentally motivated by a sexual behavioural aberration and is not driven by any form of irresistibility. “[T]he mental capacity to effect a behavioural choice always remains intact. It is basically a disordered sexual preference, or, in simple layman parlance, a sexual deviancy.” [emphasis in original]. Thirdly, there is often significant, or even severe sexual dysfunction involving normal desire, arousal or orgasm with a partner, especially so in married individuals. “Paraphilias are sexual identity disorders that render normal eroticism and sexual love unattainable.” [emphasis in original].

[39] Dr Phang attests that the diagnostic criteria for voyeurism (based on the ICD-10 and DSM-5) are:

(a) Over a period of at least six months, recurrent and intense arousal from observing an unsuspecting person who is naked, in the process of disrobing, or engaging in sexual activity, as manifested by fantasies, urges, or behaviours.

(b) The individual has acted on these sexual urges with a non-consenting person, or the sexual urges or fantasies cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

(c) The individual experiencing the arousal and/or acting on these urges is at least 18 years of age.

[40] Dr Phang also states that the diagnostic criteria for voyeurism apply if the disclosing individual “also reports subjective distress (guilt, shame, intense sexual frustration, loneliness), psychological problems, sexual impulsivity, or hypersexuality as a consequence of their voyeuristic sexual preferences”. [emphasis added]. Although Dr Phang states that there is some form of sexual impulsivity, he clarifies that this impulsivity is a symptom and the presence of some form of impulsivity on the part of the person diagnosed with voyeurism does not make voyeurism a form of impulse-control disorder. Dr Phang explains that the “inability to resist the impulse is by definition the common core of all impulse-control disorders.” [emphasis in original]. The impulsivity is defined as the rapid and sudden expression of unplanned behaviour and the primary connotation of impulsivity is the irresistibility of the urge to act. According to Dr Phang, the mental faculties of a person diagnosed with voyeurism are “often extremely nimble, with the unfettered ability to cogitate and plan coherently and deliberately” and in fact, in “order to successfully carry out the voyeuristic fantasy, the individual is generally obliged to plan quite extensively, such as purchasing the requisite paraphernalia, and then carefully (and often creatively) facilitating the filming, or recording of voyeuristic images”.

[41] The following exchange also helps illuminate Dr Phang’s expert opinion:

[42] Therefore, Dr Phang is clear that voyeurism does not deprive a person of self-control. Any impulsivity a person feels as a result of his voyeuristic tendencies is a symptom. This does not, however, make voyeurism an impulse-control disorder which is the specific diagnostic umbrella in the DSM-5 for disorders which deprive a person of self-control. The following disorders are listed, inter alia, in the DSM-5 under the umbrella of impulse-control disorder: oppositional defiant disorder, intermittent explosive disorder, conduct disorder, antisocial personality disorder, pyromania and kleptomania.

[43] Dr Phang then concludes in his report that voyeurism is merely a descriptive diagnostic label for what is basically a perversion, or perverse form of behaviour which deliberately and wilfully intrudes into the inviolable sanctity and privacy of others. He stresses that it is not a mental illness which is beyond the conscious voluntary control of the individual concerned.

[44] The expert for the defence is Dr Tommy Tan Kay Seng (“Dr Tan”). He is currently a consultant psychiatrist in Novena Psychiatric Clinic, Novena Medical Centre. He was previously a senior consultant at Woodbridge Hospital. He was also a visiting consultant at the Department of Psychiatry, Changi General Hospital, between 2012 and 2014.

[45] Dr Tan agrees with Dr Phang on several aspects including the diagnostic criteria for voyeurism and the fact that it is not classified as part of the family known as impulse-control disorders. However, Dr Tan states in his expert report that patients “with paraphilias are compelled to plan and to execute these acts.” [emphasis in original]. According to his report, the patient is compelled to plan and execute his acts in order to obtain sexual arousal. He specifically states in his report that the respondent “was in a position that he was not able to control his actions due to his mental disorder” and that he “was compelled to buy the equipment or else he would not be able to obtain his sexual arousal and satisfaction.” Dr Tan also opines that the “causal link between a mental disorder and an offence need not necessarily be an inability to control an impulse such as in kleptomania or pyromania”; it could also be a compulsion.

[46] Dr Tan also refers to psychiatric literature which alludes to the impulsivity associated with those diagnosed with paraphilias. Dr Tan finally disagrees with Dr Phang’s description of voyeurism as a perverse behavioural option in that, according to him, Dr Phang’s analysis seems to suggest that voyeurism is not a mental disorder “but a behaviour that a person can choose to have or not to have.”

[47] Having had the benefit of reading the expert reports and hearing both experts give oral testimony in court on 4 and 5 November 2014, I prefer the expert opinion of Dr Phang as I find that it is more logical, and is corroborated by psychiatric literature and by another doctor who examined the respondent. I also find that Dr Tan and Dr Phang are in agreement in many respects.

[48] In choosing between the two experts, I am aware that Dr Phang did not at any point examine the respondent but Dr Tan has had the benefit of examining the respondent. However, this point is irrelevant since the prosecution does not seek to challenge the diagnosis of voyeurism. The experts were engaged in order to assist the court in shedding light on the nature of voyeurism – specifically whether it deprives a voyeur of his exercise of self-control at the various stages of preparation to the stage when he acts out his fantasies.

[49] Dr Phang has also stated the following in his evidence-in-chief which demonstrates his clinical expertise when it comes to paraphilias in general:

[50] In terms of credentials and relevant experience, both Dr Phang and Dr Tan have impressive curricula vitae with vast clinical experience in their fields and have held high-level appointments. They have appeared as experts to assist the court in psychiatry-related matters over the years.

[51] Dr Phang has emphasised that a person with voyeurism remains in full control of his actions. Dr Phang however acknowledges that there could be symptoms of impulsivity on the part of the person diagnosed with voyeurism but the person at all times retains control over his actions. Dr Phang explains the concept of impulsivity in his evidence-in-chief as follows:

[52] Dr Tan, as mentioned above, has stated that a person suffering from voyeurism is compelled to perform the acts to relieve the intense urges to perform sexual acts and feel a release of tension after the act. However, when questioned further, Dr Tan seems to accept the distinction between impulsivity and a loss of control which characterises an impulse-control disorder:

[53] This shows that both Dr Phang and Dr Tan are in general agreement about what a proper loss of control entails and that voyeurism does not amount to this. In so far as Dr Tan is speaking about a person being compelled to act in a certain way, including the preparatory phases to facilitate the commission of the voyeuristic act, Dr Phang accepts this impulsivity as a symptom. I am convinced by the explanation given by Dr Phang that the compulsion here is not used in the strict clinical sense to mean a loss of control. In his report, Dr Phang states:

[54] I find greater logical force in the opinion by Dr Phang. I find it difficult to accept that a person remains in a constant state of arousal due to voyeurism even throughout the preparatory phases which include the purchasing of the paraphernalia and the attaching of a recording device to his body or placement of the recording device in an inconspicuous location to avoid detection. Such elaborate planning over a relatively long period of time cannot be said to be done under compulsion, in the sense that it entails a total or even a significant and continuous loss of control throughout the preparatory stages to the eventual voyeurism acts that constitute the offences in question. Dr Phang convincingly states during cross-examination:

[55] Dr Phang reiterates that voyeurism is not a mental illness and is only a mental disorder insofar as it is included in the pages of the DSM-5. According to Dr Phang, it is a disorder insofar as it represents a clinical description of an individual who is seriously irresponsible, and who repeatedly transgresses against societal norms, rules and regulations. Dr Phang repeats in his report that voyeurism is merely a descriptive diagnostic label for what is basically a perversion, or perverse form of behaviour which deliberately and wilfully intrudes into the inviolable sanctity and privacy of others. Basically, acts of voyeurism are the result of conscious choices made by the voyeur to satisfy a deviant desire. He stresses that it is not a mental illness nor it is a disorder beyond the control of the individual concerned.

[56] Dr Phang accepts that voyeurism is mentioned in the ICD-10 and DSM-5 but further explains that the ICD-10 and DSM-5 are operationalised diagnostic criteria developed to meet the needs of clinicians and research investigators, rather than the technical needs of the courts and legal professionals. He derives support for this from the following excerpt from the “Cautionary Statement for Forensic Use of DSM-5” (reproduced in his report as follows):

[57] Dr Tan states in his report in reply to Dr Phang that psychiatrists and other mental health professionals can still use the DSM-5 and/or ICD-10 to diagnose mental disorders. With the aid of the diagnostic criteria, psychiatrists can confidently diagnose a person and also communicate that diagnosis to another health professional. However, he alleges that Dr Phang has chosen to quote a limited portion from the cautionary statement of the DSM-5 and this may result in a reader being misled to conclude that psychiatrists should not use the DSM-5 or ICD-10 in diagnosing a mental disorder but only as a clinical guide when writing a forensic report.

[58] I think this is hardly the case. In fact, Dr Phang and Dr Tan are again in agreement. Dr Phang is essentially saying that the DSM-5 and ICD-10 are primarily used for the purpose of diagnosis which is in complete congruence with what Dr Tan is saying. Dr Phang is not saying, as Dr Tan alleges, that the DSM-5 and ICD-10 should not be used for purpose of diagnosis. What Dr Phang does say is that one must be aware and cognisant of the fact that DSM-5 and ICD-10 are developed to primarily aid clinicians in diagnosis. Therefore, Dr Phang warns that care must be taken before these diagnostic labels are applied in a court of law. To me this is only logical. When a clinician diagnoses, he does so primarily for the purpose of treatment of the individual. A court of law, when sentencing an individual, is concerned with the appropriate punishment to be imposed given all the circumstances of the case, including the psychiatric condition of the individual. Since there is a difference of purpose, Dr Phang warns against the direct importation of these diagnostic criteria into a court of law for forensic purposes. What this essentially means is that just because a disorder is stated or described in DSM-5 or ICD-10 does not automatically lead to it being a mitigating factor. This point, Dr Tan does not address. Moreover, Dr Tan has constantly referred to voyeurism as a disorder because it is referred to in the DSM-5 and ICD-10. He seems to have taken it for granted that just because voyeurism is mentioned in the DSM-5 and ICD-10, it is automatically a mitigating factor per se without the need to further establish whether or not the voyeur is able to control himself when he plans, takes preparatory steps and eventually commits the acts of voyeurism. This is not correct. Counsel for the respondent has also missed this point. In his written submissions, counsel argues that “if Dr Phang is not prepared to hold Voyeuristic Disorder as a mental disorder, then it follows that all other disorders classified under the DSM would also not be disorders, and this would include ‘impulse control disorder[s]’”. At the risk of repetition, I must stress that just because a disorder is included within the pages of the DSM-5 and ICD-10 does not automatically mean a court of law will attribute weight to the disorder as a substantial mitigating factor for the reasons stated above. The diagnosis must be supported by a clinical expert’s opinion on the nature of the disorder and how it affects an individual.

[60] Finally, Dr Phang’s opinion is supported by Dr Ravichandran Nigila (“Dr Nigila”) of the Institute of Mental Health, Woodbridge Hospital who had interviewed the respondent. Dr Nigila opines in her report dated 15 July 2014 that the respondent was diagnosed with paraphilia but that he “did not have any mental disorder and was not in a position where he could not control his actions at the time the events happened”. This undergirds Dr Phang’s opinion that voyeurism (although mentioned in the DSM-5 and ICD-10) is merely a descriptive label for a perverse form of behaviour. Counsel for the respondent claims that Dr Nigila’s report is contradictory to the previous two reports prepared by Dr Nigala (dated 21 December 2012 and 7 February 2013). I do not agree. Dr Nigila’s report on 15 July 2014 merely clarifies her earlier reports. Dr Nigila has maintained that the respondent was diagnosed with voyeurism but in the report dated 15 July 2014 explains that voyeurism is not a mental disorder nor does it deprive the person diagnosed with voyeurism control over his actions.

[61] In sum, I accept Dr Phang’s testimony that voyeurism is merely a clinical description of what is essentially a perverse behavioural option and that it does not deprive a person of his self-control in the way that an impulse control disorder does. I am thus satisfied that the respondent had full control over his actions in the light of his high degree of planning and premeditation when committing the offences.

[62] Before I leave this point, counsel for the respondent has made much of the fact that Dr Phang did not produce literature in support of his opinion when Dr Phang was giving his oral testimony. Dr Phang explained that these principles were to his mind elementary but could nevertheless produce the literature in support of his opinion. Dr Phang produced 13 secondary materials in support of his opinion on the very next day. Counsel did not raise any more questions in relation to the literature produced by Dr Phang. However in his written submissions, counsel has taken issue with Dr Phang’s reliance on some of his literature. On the assumption that counsel is now allowed to challenge the reliance on the literature when he did not raise these questions to Dr Phang during cross-examination, I find that his individual nit-picking at the literature that Dr Phang has produced does not detract from my assessment of his evidence. I agree that the literature produced does not unequivocally support Dr Phang’s view but it also does not unequivocally support Dr Tan’s view. Counsel has tried to show that Dr Phang is the only one in the world to hold his view. I find that this is not borne out by his submissions. The literature shows that there is some support for both Dr Phang’s and Dr Tan’s view when it comes to the nature of paraphilias. However it must be remembered that when the court assesses expert evidence, the court is scrutinising the expert witness as a whole including his credentials, relevant experience, bases for the opinion and the consistency and logic of his opinion (see Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR(R) 983 at [74]–[76]). It is a holistic assessment of the expert witnesses and their evidence and it is on this basis that I prefer Dr Phang’s evidence.

[63] It is pertinent to note that my conclusion on the nature of voyeurism, ie, it is merely a clinical description of what is essentially a perverse behavioural option and it does not deprive a person of his self-control, is in line with the Court of Appeal’s assessment of paedophilia as a mitigating factor in Kelvin Lim. As mentioned above at [38], voyeurism and paedophilia are both paraphilias.

[64] In the light of this, I am of the view that the Judge had erred in attributing significant weight to the fact that the respondent was suffering from voyeurism such that the principles of deterrence were overridden. The Judge had also erred in finding that the aggravating factors present should be accorded little weight in the light of the respondent’s diagnosis of voyeurism. Before dealing with the relevant aggravating and mitigating factors, I turn first to the two most relevant sentencing principles – deterrence and rehabilitation.

[65] Both general and specific deterrence are principles which should feature in the final sentence to be meted out. For the reasons submitted by the prosecution (see above at [15]), I am in agreement that general deterrence is particularly relevant. Given the fact that mobile phones with camera functions are now ubiquitous and that cameras with recording functions come in all shapes, sizes and disguises and are getting cheaper to acquire, the perverse now find it easier to prey on unsuspecting women almost anywhere. As this case has demonstrated, even a home, which is often considered a sanctuary, is not free from the machinations of one determined to satisfy his deviant sexual fantasies. As shall be observed, these were considerations that the court in Albert Tay took into account when allowing the Prosecution’s appeal against sentence. The need for general deterrence is even more pressing now than during the time that Albert Tay was decided, given how far technology has advanced. Cameras have shrunk remarkably in size while the clarity with which images are captured has improved. The miniaturisation of cameras has made it increasingly easier for them to be concealed and harder for victims to detect, thereby encouraging voyeurs to take more risks. This may in part explain why voyeurism offences are rapidly on the rise. In addition, the ease with which videos can be uploaded onto the Internet for dissemination in this day and age further warrants the need for general deterrence. Unimaginable shame and distress to the victims may be caused if the videos are disseminated worldwide via the Internet. Although in this case no videos were uploaded and disseminated, the danger, which is not fanciful but very real, that it could have happened is sufficient to warrant a deterrent sentence. I am in full agreement that a strong message should be sent to those who harbour thoughts of abusing these advancements in technology.

[66] Specific deterrence is also relevant given that I have found that voyeurism merely represents a descriptive label for a perverse behavioural option and that it does not deprive the person diagnosed of his self-control. In any event, even Dr Tan has stated in cross-examination that those diagnosed with voyeurism can be deterred by the threat of punishment.

[67] Rehabilitation is also relevant given that even Dr Phang has testified that a person diagnosed with voyeurism can be treated. Dr Phang explains the treatment methods as follows:

Dr Tan has also testified that the respondent has responded well to medical and psychological treatment and has not re-offended since his arrest. The Judge was of the opinion that incarceration would be detrimental to the rehabilitation of the respondent and would “destroy the very last hope of… recovery”. I do not quite agree for the same sentiments expressed by the Court of Appeal in Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [37] (see [23] above). There is similarly no suggestion here that rehabilitation cannot take place in prison and continue even after imprisonment. Therefore, even though rehabilitation is a relevant sentencing principle, it does not automatically mandate a lighter sentence. However, particular care must be taken when the global sentence imposed is calibrated such that it is not such a crushing sentence that may destroy any hope of recovery and reintegration of the respondent.

[68] I agree with the prosecution that the factors listed above at [14] are aggravating factors. It is trite that the presence of multiple and young victims are aggravating factors. Prof Andrew Ashworth explains succinctly in the following passage why planning and premeditation is considered an aggravating factor (Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 5th Edition, 2010) at p 164):

The respondent had gone to great lengths in order to commit these offences. He had to purchase paraphernalia including mini-cameras and Blu-Tack. He then attached the camera to his shoe and came up from behind the unsuspecting victim at “Giant Hypermarket” in order to capture the “Up Skirt” video. To commit the offences at his girlfriend’s home, he had to purchase a camera which was cleverly disguised as a lighter to avoid detection. He would wait for them to switch on the water heater before planting the camera in the toilet and would later retrieve the camera after they showered. His commitment to the criminal conduct was demonstrated by the fact that he did this on more than one occasion and was also keen on avoiding detection. In fact, he attempted to abscond when the husband of the victim at Giant Hypermarket shouted at him. The level of consideration and planning to commit the offences and to avoid detection is clearly an aggravating factor. The high degree of intrusion is also aggravating. Not only did the respondent record some of the victims fully nude with moving images of their breasts and vulvas, it was done in the victims’ home, where he was a guest and where the victims would least expect to have their modesty violated. This conduct constitutes a gross intrusion into the privacy of the victims and should be given its due weight as an aggravating factor.

[69] As for the use of a recording device, I have noted earlier that the advancements in technology warrant a deterrent sentence because of the ease with which such offences may be committed and the ever present danger of the dissemination of the videos. The use of a recording device is an aggravating factor here for a different reason; mainly that the videos can be replayed and the “fruits” of the criminal conduct can be constantly revisited by the respondent. This again is clearly aggravating.

[70] The mitigating factors highlighted by the counsel for the respondent are listed above at [18]. I agree that the lack of antecedents is a mitigating factor. The fact that the respondent comes from a good family, has a bachelor’s degree in business management and has put his further education on hold because of this episode is neither mitigating nor aggravating.

[71] I do not agree that the lack of adverse effects on any of the victims and the fact that there was no circulation of the videos are mitigating. While adverse effects on the victims and circulation of the videos are definitely aggravating, the lack of these factors is not mitigating but neutral at best. The respondent also relies on the fact that his girlfriend’s family has been forgiving. The Court of Appeal in PP v UI has stated that forgiveness expressed by the victim is a private matter between the offender and the victim and generally should not affect the appropriate sentence to be imposed by the court (see PP v UI at [56]–[57]). Therefore, I do not consider the forgiving attitude of the respondent’s girlfriend and her family as mitigating.

[72] The most significant mitigating factor in favour of the respondent is the remorse that he has shown since the commission of the offences. The respondent has made a full confession and has cooperated with the police in the course of their investigations. He has also pleaded guilty to the charges. I also note that the Judge had stated that the respondent was suffering from significant depressive and anxiety symptomatology related to the shame and stress from his commission of the offences (see [11] above). While I do not agree with the Judge that this means that there is no need to punish the respondent further, I am of the opinion that the degree of shame and stress suffered is indicative of the extent of the remorse shown by the respondent. Furthermore, the respondent has shown commendable commitment towards securing his own rehabilitation by seeking treatment and counselling since his arrest. As the Judge noted, he had undergone regular treatment for three years since his arrest and has been responding well to treatment. This is part of the reason why the respondent has not reoffended since his arrest (the other reason as noted above was the threat of legal proceedings). In the light of this, I attach significant weight to the high degree of remorse shown by the respondent.

[73] In Albert Tay, the respondent pleaded guilty to two charges of intruding upon the privacy of a woman under s 509 of the Penal Code. He placed a video camcorder in his bathroom to film, on separate occasions, the private moments of two female colleagues while they used the bathroom. The respondent was convicted and a fine was imposed for each of the two charges by the magistrate. The magistrate had referred to the earlier case of Tan Pin Seng v PP [1997] 3 SLR(R) 494 (“Tan Pin Seng”) where a fine was imposed on an offender who was convicted of an offence under s 509 of the Penal Code for peeping at a lady taking a bath through a hole he had made in the bathroom door. In Tan Pin Seng, Yong CJ had reduced the one-month jail term imposed by the district court to a fine of $2000. In Albert Tay, Yong CJ distinguished his earlier decision of Tan Pin Seng and allowed the Prosecution’s appeal against sentence. In addition to the fine imposed by the magistrate, Yong CJ sentenced the respondent to one month’s imprisonment per charge to run consecutively. In his decision, Yong CJ explained as follows:

As was alluded to above, the court in Albert Tay noted the need for a deterrent sentence given the ready availability of video camcorders then. I have already found that the need for a deterrent sentence is even more pressing today given the advancements in modern technology. The court was also of the view that a custodial term was more appropriate given the high degree of planning involved.

[74] In Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Liton”), the respondent was convicted of, inter alia, a charge of insulting the modesty of a woman under s 509 of the Penal Code by taking four photographs of her in the nude. The trial judge had sentenced the respondent to three months’ imprisonment for that particular charge. In dismissing the appeal against sentence brought by the Prosecution in respect of that particular charge, the Court of Appeal noted as follows:

A few observations are apposite. The Court of Appeal referred to Albert Tay as an established benchmark. The Court of Appeal also accepted that imprisonment is appropriate where the offence was carried out with the use of modern technology in order to record a victim’s private moments.

[75] In Tan Huat Heng, the accused person pleaded guilty to four charges under s 509 of the Penal Code with four other charges consented to being taken into consideration for the purpose of sentencing. The accused had used his camera in his iPhone to take an “Up Skirt” video of a woman but was spotted by an off-duty police officer. The victim was apparently unaware of what happened and had left the scene. The mobile telephone was seized and the “Up Skirt” video clip was found. Another mobile phone was seized from the accused and more “Up Skirt” videos were found which formed the basis for the other charges. The magistrate considered the cases of Albert Tay and Liton and imposed a sentence of two weeks’ imprisonment for each of the four proceeded charges and ordered that the sentences for two charges run consecutively. On appeal to the High Court, Chan Sek Keong CJ set aside the sentence imposed by the magistrate and imposed a 12-month term of probation with certain conditions. However, no written grounds were issued by the court.

[76] Counsel for the respondent argues that Tan Huat Heng has signalled a change in the sentencing philosophy when it comes to offences under s 509 of the Penal Code. I do not agree. There was no evidence of a high degree of planning and premeditation in Tan Huat Heng. Furthermore, the videos did not involve the same degree of intrusion into the privacy of the victim as compared to Albert Tay and Liton where the victims were captured fully naked. The aggravating factors present in Albert Tay and Liton were absent in Tan Huat Heng which may explain why the court imposed a term of probation and not a custodial sentence.

[77] On the other hand, the Prosecution submits that the starting point for offences under s 509 of the Penal Code involving the use of a recording device should be a custodial sentence. I am of the opinion that establishing a custodial benchmark along such lines may not be appropriate given the myriad of ways that offences under s 509 of the Penal Code may be committed with a recording device. Albert Tay involved planning and premeditation in the commission of the offence. Both Albert Tay and Liton had a high degree of intrusion into the privacy of the victim. While I am generally in agreement that a custodial sentence is warranted where the aggravating factors such as multiple victims or young victims or the aggravating factors in Albert Tay or Liton are present, I would be chary in concluding that a custodial sentence should be the starting point the moment a recording device is used. While I note that the use of a recording device allows the repeated viewing of the victim’s private moments, all other factors should be considered before the final sentence is calibrated. Therefore, where there is no planning and premeditation and the intrusion upon the privacy is not as grave as in Albert Tay and Liton, and where multiple victims or young victims are not involved, such as in Tan Huat Heng, a custodial term may not be warranted. At the end of the day, each set of facts must be considered as a whole by the judge in determining the appropriate sentence to be imposed.

[78] On the facts of the present case, due to the presence of the aggravating factors mentioned above at [14], especially the fact that (a) there was a high degree of planning and premeditation; (b) the intrusion into the privacy of some victims was grave and at the home of the victims; (c) there were multiple victims and young victims; and (d) a miniature recording device was used, and given that the need for general deterrence is greater now than before due to the advancements in technology (see above at [15]), I am of the opinion that a term of four months’ imprisonment (which is approximately 18 weeks’ imprisonment) per charge under s 509 of the Penal Code is appropriate. However, because of the mitigating facts (see above at [72]) and in particular the fact that he had pleaded guilty and has shown considerable remorse with a keen desire not to commit the offences again and to be fully rehabilitated, I impose a sentence of 12 weeks’ imprisonment per charge. I now deal with the conviction under s 30(1) of the Films Act.

[79] In Lui Chang Soon v Public Prosecutor [1992] 1 SLR(R) 229, the appellant pleaded guilty to, inter alia, one charge of possession of 14 obscene videotapes under s 29(1)(a) of the Films Act (Cap 107, 1985 Rev Ed). The magistrate had sentenced the appellant to a fine of $500 per tape ($7000 fine in total). The High Court dismissed the appeal against sentence in respect of above charge. The High Court also found that punishment should be related to the number of films involved and not the number of tapes containing the films.

[80] The following passage from Practitioners’ Library: Sentencing Principles in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) at page 627–628 is useful:

[81] In Public Prosecutor v Tan Hiap Hua [2010] SGDC 322 (“Tan Hiap Hua”), the accused pleaded guilty to a single charge of possession of 38 obscene films under s 30(1) of the Films Act. The 38 obscene films were found in his mobile phone. In sentencing the accused to three months’ imprisonment, the district judge noted that the number of films was large and that it was “certainly unusual to store 38 obscene films in a handphone for private viewing”. The district judge also considered that the long list of antecedents of the accused including offences of possession of obscene films for which he was sentenced to five years of corrective training. On appeal, V K Rajah JA allowed the appeal against sentence and reduced the sentence to one of six weeks’ imprisonment. No written grounds were issued.

[82] In Public Prosecutor v Yang Qiuyu [2010] SGDC 51, the accused pleaded guilty to one charge of possession of 204 digital video discs containing 179 films without a valid certificate approving the exhibition of the films under s 21(1)(a) and one charge of possession of 96 films which were obscene under s 30(1) of the Films Act. The accused had various antecedents including a conviction under s 29(3)(a) of the Films Act (for distributing obscene films or having them in possession for the purposes of distributing). In sentencing the accused to the minimum specified penalty of $100 for each film without a valid certificate ($17,900 in total) and $500 for possession of each obscene film (amounting to $20,000 as capped by law), the court noted that the number of films was certainly not on a small or low scale and that a custodial sentence for the offence under s 30(1) of the Films Act would ordinarily be meted out. Nevertheless, the court was minded not to impose a custodial sentence as the obscene DVDs “were not on display blatantly but contained in a haversack”.

[83] In Public Prosecutor v Mohamad Hanafi Bin Abdol Hamid [2007] SGDC 247, the accused, who was a police officer, had pleaded guilty to four charges including one charge under s 30(1) of the Films Act for possession of two digital discs containing two obscene films and one charge under s 30(2)(a) of the Films Act for possession of nine films known by him to be obscene. The district judge noted that the number of films involved was small and that a fine would be appropriate in the circumstances. The sentenced imposed was the minimum specified sentence of $500 per film ($1000 in total) under s 30(1) and $1000 per film ($9000 in total) under s 30(2)(a) of the Films Act.

[84] Finally, in the case of Public Prosecutor v Chandran s/o Natesan [2013] SGDC 33, the accused pleaded guilty to various charges including one charge of possession of 291 obscene films under s 30(1) of the Films Act. Initially, the accused was found suitable for a mandatory treatment order (“MTO”) and thus ordered to undergo a MTO for psychiatric treatment for one year. However, the MTO was revoked by the district judge who found that the accused had breached the requirement of attending before the IMH doctor as required under the MTO and that the accused was not compliant with his medication. The district judge then considered the accused’s delusional disorder, his plea of guilt and discounted his antecedents as they were dated and not of a similar nature, before sentencing the accused to a $500 fine per film (capped at $20000). The sentences for all the other offences were fines as well.

[85] In the instance case, it is unclear from the statement of facts, whether the 10,574 obscene films were merely short video clips or full-length obscene movies. The fact that they were all on his computer and hard drive suggests to me that they were more likely to be short video clips as I doubt that 10,574 full-length obscene movies could be stored on the computer hard disk and one external hard drive. Having 10,574 short obscene video clips would be much less serious than having the same number of full-length obscene films.

[86] Giving the respondent the benefit of the doubt that they were all short video clips and taking into account his plea of guilt, the extent of the remorse that he has shown and the fact that he did not exploit them for any commercial gain, I am of the view that the appropriate sentence for the charge under s 30(1) of the Films Act is an imprisonment term of four weeks. A fine would not be adequate because of the very large number of video clips involved. If the respondent had not pleaded guilty and shown the degree of remorse that he did, a stiffer custodial sentence of six weeks’ imprisonment would have been meted out. It may be pertinent to note here that had I sentenced the respondent to a fine for this charge under the Films Act instead of a term of imprisonment, the respondent would be worse off as his total imprisonment sentence would be much higher as I would have no alternative but to order, pursuant to s 307 of the CPC, that at least two sentences for the offences under s 509 of the Penal Code to run consecutively (see [88] below). These are heavier imprisonment sentences than the sentence I have imposed for the Films Act offence. On top of the extended global term of imprisonment, the respondent would also have to pay a fine, which would not have been insubstantial.

[87] I also note that the accused in Tan Hiap Hua had been sentenced to an imprisonment term of six weeks for possession of 38 obscene films. However, the accused in Tan Hiap Hua had been previously convicted of offences of possession of obscene films for which he was sentenced to five years of corrective training. The respondent here had no such related antecedents.

[88] Having decided that the appropriate sentence for the each of the offences under s 509 of the Penal Code and s 30(1) of the Films Act is 12 weeks and four weeks respectively, I now consider which sentences should run consecutively. I am bound to order at least two terms of imprisonment to run consecutively pursuant to s 307 of the CPC. In Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998, Sundaresh Menon CJ explained that the “sentencing judge is vested with considerable discretion, but this must be exercised judiciously and with regard to two principles in particular, namely, the one-transaction rule and the totality principle, as well as a number of ancillary principles” (at [25]). In this case, I am of the view that there is no need to order more than two sentences to run consecutively, or to order two sentences under s 509 to run consecutively, which would then have raised the total sentence to 24 weeks. I therefore order that one charge under s 509 of the Penal Code (namely MCN 686 of 2012) and one charge under s 30(1) of the Films Act (namely MCN 692 of 2012) are to run consecutively. The remaining sentences will run concurrently. The global sentence imposed on the respondent is a term of imprisonment of 16 weeks.

[89] Finally, I also note that both the Prosecution and the respondent have submitted in the court below that the punishment prescribed under s 30(1) of the Films Act is not one which is fixed by law, nor a mandatory minimum sentence or a specified minimum sentence. However, this was before the case of Mohamad Fairuuz bin Saleh v Public Prosecutor [2015] 1 SLR 1145 (“Fairuuz”) where the High Court explained the proper interpretation of those phrases as they appear in s 5 of the Probation of Offenders Act (Cap 252, 1985 Rev Ed) (“POA”).

In Fairuuz, Menon CJ explained the proper interpretation of s 5 of the POA:

[90] At this juncture it would be useful to set out s 30(1) of the Films Act:

In my opinion, s 30(1) of the Films Act has a specified minimum sentence. The court when sentencing under s 30(1) of the Films Act has the discretion to choose between a fine, a term of imprisonment or both. Thus, the imposition of a fine is not mandatory but if the court does choose to impose a fine, there is a minimum quantum of $500 which is prescribed and which must be imposed by the court. Therefore, probation can only be ordered if the two conditions encapsulated in subsections (a) and (b) of s 5 of the POA are satisfied. The respondent in this case was 29 years old at the time of his conviction. He has therefore not satisfied subsection (a) of s 5 of the POA and probation is not available as a sentencing option. In this regard, the sentence imposed by the Judge was also a sentence which was wrong in law.

[91] This leads to a final question of whether probation is nevertheless available as a sentencing option for the respondent for the other five charges under s 509 of the Penal Code. This pertains to a more general question – if a person is convicted of multiple charges in which one of the offences does not allow for probation as a sentencing option, can the court nevertheless order probation for the rest of the convictions where probation is available. However, since I have not had the benefit of argument on this issue and I have found that a sentence of probation for the charges under s 509 of the Penal Code is manifestly inadequate in this case, I leave the question open for reconsideration at a more appropriate juncture.