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ChewSanLiangvPublicProsecutor

[2003]SGDC199
CaseNumber

DecisionDate

Tribunal/Court

Coram

CounselName(s) :
Parties

DAC22324/2003&ors,MA158/2003
28August2003
DistrictCourt
AudreyLimYoonCheng
MrDavidKhooforthePublicProsecutorMrPhilipFongfortheAccused
ChewSanLiangPublicProsecutor

1Theaccused,Chew,pleadedguiltytotwocountsunder s336 ofthe PenalCode (Cap224).Sometimein


August2002,ChewdidarashactastoendangerhumanlifebythrowingoneKimup and downaspinningceilingfan
(the1stcharge).HealsocommittedarashacttoendangerhumanlifebyturningKimupsidedown and danglingher
by her legs outside the balcony of the 7th floor flat (the 2nd charge). Kim was then three and a half years old.
Initially,theprosecutionproceededunders5(1)oftheChildren and YoungPersonsAct(Cap38),punishableunders
5(5)(b) with a maximum fine of $4,000 or four years imprisonment or both. The punishment under s336 of the
PenalCode islesssevere,beingamaximumfineof$250 or threemonthsimprisonment or both.
2Twootherchargesweretakenintoconsiderationforthepurposesofsentencing.Chewhadvoluntarilycaused
hurttoKimbyslappingherrightcheek,punishableunders323ofthePenalCode(the3rdcharge), and threatened
and causedheralarmbysayingIwillcomeback and killyou,punishableunders13A(1)(a)oftheMiscellaneous
Offences(PublicOrder and Nuisance)Act(Cap184)(the4thcharge).Thesetwooffencesoccurredonaseparate
occasion,on14October2002.
3IconvictedChew and sentencedhimtothreemonthsimprisonmenteachonthefirst and secondcharges
and orderedthemtorunconcurrently.Chew,beingdissatisfied,filedanappealagainstthesentenceon22August
2003.
Thefacts
4Atthematerialtime,Chewwasafreelancefitnesstrainer and theboyfriendofoneMadamChew(SK),who
was Kims mother. Sometime in August 2002, whilst SK was at work, Kim was left at home with Chew and SKs
Filipinomaidontheseventhfloorflat.WhilstthemaidwasfeedingKim,ChewapproachedKim and toldher,You
bettereatquickly,otherwise,Iwouldthrowyouup.ChewthenthrewapillowatKimwhereuponKimstartedtocry.
ChewthencarriedKim and rashlythrewherup and downunderaspinningceilingfan(the1stcharge).Afterthat,he
heldKimonbothherlegs,turnedherupsidedown and dangledheroutsidethebalcony.Chewstoppedhisactwhen
Kimcriedoutforthemaid(the2ndcharge).
Accusedssubmissions

5Defencecounsel,MrFong,tenderedawritten mitigation .Inbrief,heurgedthecourttoimposeafine and not

5Defencecounsel,MrFong,tenderedawritten mitigation .Inbrief,heurgedthecourttoimposeafine and not


acustodialsentence, and reliedontherecentdecisioninNgSoKuenConnievPP[2003]SGHC164.Hesubmitted
thattheoffenceswerenotpremeditatedasChewwassufferingfromimmensestresspriortotheoffences.Insupport
of this, two medical reports were tendered. Mr Fong admitted that as a matter of public policy, killer litter cases
wouldgenerallyattractacustodialtermasastartingpoint,toprotectthemajorityofthepopulationwholiveinflats.
Howeverthepublicpolicyconsiderationwasabsentinthepresentcase.
6Chewwasalsoafirstoffender,whohadpleadedguiltyatanearlyopportunity.Hewasnotaviolentperson
and wasunlikelytoreoffend.Healsohadanunblemishedrecord, and hascontinuedtomaintainagoodrelationship
withSK and Kimaftertheincidents.MrFongfurthersubmittedthatacustodialtermwouldbedetrimentaltoKims
condition, and heenclosedpersonalpleasfromSK and Kimnottobreakupthefamilyrelationshipthattheywere
enjoyingwithChew,byimposingacustodialsentence.
Prosecutionssubmissions
7Prosecutioncounsel,MrKhootenderedthecaseofPPvLohLanSiang[2003]SGMC27,atparas28 and 29,
tohighlighttothecourttheprinciplestobetakenintoaccountforoffencesunder s336 ofthe PenalCode . As a
starting point, an offence under the rash limb would usually attract an imprisonment term, as opposed to an offence
underthenegligencelimb.Inthepresentcase,Chewdidnotfaceone,buttwochargesunders336, and hadtwo
otherchargestakenintoconsideration.
8Inexceptionalcircumstances,afinemaybeimposedforanoffenceundertherashlimb,asinthecaseofNg
So Kuen Connie. However, the present case should be distinguished from Ng So Kuen Connie. In the latter, the
accused was unable to fully appreciate the consequences of her actions due to her serious psychiatric condition,
althoughshewasawareofwhatshewasdoing.Inthepresentcase,Chewwasmerelysufferingfromstress, and this
couldnotbeequated or comparedtotheaccusedsconditioninNgSoKuenConnie.Moreover,thepresentoffences,
especiallythe2ndcharge,clearlyposedanextremedangertothechildslife, and Chewknewwhathewasdoingat
thetimeoftheoffences.MrKhooalsopointedoutthatinLohLanSiang,wheretheoffencewasundertherashlimb
and danger was posed to human life, the judge stated that the current sentencing tariff would be two months
imprisonmentasastartingpoint.
Mydecisiononsentencing
9InsentencingChewtoatotalofthreemonthsimprisonmentwithbothchargestorunconcurrently,Itookinto
accountthefollowingmatters.Iamawarethat s336 ofthe PenalCode givesthejudgethediscretiontometeouta
custodial sentence or a fine or both, regardless of whether the mens rea was one of rashness or negligence,
althoughacustodialtermhasgenerallybeenimposedforoffencesundertherashlimbseeNgSoKuenConnie.
10InNgSoKuenConnie,adoptingtheapproachinRvWiskich[2000]SASC64,theChiefJusticedealtinsome
lengthontheissueofpsychiatric and mentalcondition and howthiscouldaffectthesentence.Asastartingpoint,
the consideration is whether the accused was belabouring under a serious psychiatric condition at the time of the
incident.Theelementofgeneraldeterrencecanreadilybegivenconsiderablylessweightinthecaseofanoffender
suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists
betweenthementaldisorder and thecommissionofsuchanoffence.Hence,factorssuchastheseriousnessofthe
mentalcondition,thelikelihoodoftheaccusedrepeatingtheoffence, and theseverityofthecrimearetobetakeninto
accountindeterminingtheappropriatesentence.TheChiefJusticefurtheraddedthatgeneraldeterrencewouldnot
be met by meting out an imprisonment term to a patient suffering from a serious mental disorder which led to the
commissionoftheoffence.
11Bearingtheaboveprinciples and guidelines in mind, I was of the view that the present case could not be
equated with the situation in Ng So Kuen Connie. In that case, the appellate court accepted the two psychiatrists
opinion(ofwhomonewastheprosecutionswitness,DrTan)thattheaccusedwassufferingfromhypomaniaatthe
timeoftheincident and hadbeenmentallyunwellforafewweeksbeforetheincident.Moreover,afterherarrest,she

was hospitalised at the IMH and her condition developed into depression, which, if she was imprisoned, might
worsen.TheappellatecourtwaspersuadedbyDrTansviews,whowasanindependentwitnesscalleduponbythe
prosecution and wasnotanexpertwhomtheaccusedhadconsultedinanattempttoappealforalightersentence.
12 In the present case, looking at the two psychiatrist reports tendered by the defence, I was of the view that
Chewsmentalconditionwasnotsoserious and asignificantmentaldisorderastheaccusedinNgSoKuenConnie,
whichwouldpersuademetoexercisemydiscretiontoimposeafineinsteadofacustodialterm.Inthatcase,DrTan
opined that the accused was unable to control her actions and did not fully appreciate the consequences of her
actions at the time of the commission of the offence. Dr Lim, the defence expert, similarly viewed that the accused
couldnotformanintentforherbehaviourbecauseofherillness and wasincapableofunderstandingherbehaviour
themomentwhenittookplace.
13However,thiswasnotthesituationinthepresentcase.Chewwasmerelysufferingfromstress and fatigue.
ThetwopsychiatristreportsdidnotstatethatChewwasunabletocontrolhisactions or thathedidnotfullyappreciate
theconsequencesofhisactionsatthetimeofthecommissionoftheoffences.NeitherwasChewunabletoforman
intentforhisbehaviournorincapableofunderstandinghisownbehaviouratthematerialtime.UnlikeinNgSoKuen
Connie,noneofthepsychiatristsinthepresentcasealsoopinedthatChewsconditionwouldworsenifheweretobe
imprisoned.
14MoreoverthelasttimeChewconsultedDrNgwasattheendof1995toFebruary1996 and wasatthattime
diagnosedwithmilddepressivedisorder.Thereafter,itdidnotappearthatChewcontinuedtoconsultadoctor or
psychiatristforanymentalconditionuntilthesefourincidentsbecameapolicecase.Infact,DrNgnotedinhisreport
that Chew had a longstandingproblem of losing control of his temper. Chews temperament in this regard cannot
surelybea mitigating factor,especiallywhereaveryyoungchildwasinhiscare.Indeed,itshouldberemembered
that Chew had not only lost his cool with the child in August 2002 (the 1st and 2nd charges) but on a subsequent
occasioninOctober2002(the3rd and 4thcharges)wherehehadthreatenedKimthathewouldkillher.
15 The next factor which I considered was the seriousness of the offences committed. Unlike in Ng So Kuen
Connie where it was litter that was thrown from the seventhfloor apartment, the present offences involved a very
youngchildofthree and ahalfyearsold,whofirsthadapillowthrownatherwhichcausedhertocry,thenthrownup
and downunderaspinningceilingfan and subsequentlydangledupsidedownfromthebalconyoftheseventhfloor.
Thelasttwoacts(the1st and 2ndcharges)were,inmyview,veryserious and clearlyendangeredherlife.Moreover,
givenheryoungage,shewouldnothavebeeninapositiontodefend or protectherselffromChewsactions.
16AsforDrLimsreport,hemerelystatedthatKimdidnotappeartobetraumatizedbytheevent.Itwouldseem
fromhisreportthathehadobservedKimononlyoneoccasion, and didnotmakeanyobservations or conclusions
on the possibility of any longterm effects, such as the emotional and psychological trauma, that the incidents may
haveonher.Inanyevent,althoughthechildmaynothaveappearedtosufferanytraumacannotberegardedasa
mitigating factor.Onthecontrary,ifthechildhadsufferedtrauma,Iwouldhaveconsideredthatasanaggravating
factor.
17 The seriousness of the offences was further compounded by the fact that there were two more incidents
subsequentlyon14October,whereChewslappedKim and threatenedtokillher.Hencethepresentoffenceswasnot
aoneoffincident,asinNgSoKuenConnie or theothercasescitedbydefencecounsel.Inaddition,Ialsotookinto
accountthatChew,beingakintoasurrogatefather or fatherfiguretoKim,wasinapositionoftrusttoher and had
abusedhisposition.
18Defencecounselarguedstrenuouslythatinkillerlittercases,suchasinLohLanSiang and NgSoKuen
Connie,thestartingpointisusuallyanimprisonmenttermforpublicpolicyreasons.Themajorityofthepopulationin
Singaporeliveinflats and apartments and thereisaneedtoprotectthemfromharmfromobjectsindiscriminately
thrownfromabove.Defencecounselarguedthatthepresentcasewasnotakillerlittersituation and hencepublic
policy considerations were absent. As such, a fine would be appropriate. I was unable to agree with this. In
situations involving the illtreatment of young children, the cases under the Children and Young Persons Act have
shownthatthoseentrustedwithyoungchildrenmustknowthatthecourtswouldseverelypunishseriousassaults or

illtreatment whatever the pressures which might have led to them PP v Tan Meow Eng (DAC 25526/97)
(unreported). In the Practitioners Library, Sentencing Practice in the Subordinate Courts (2nd Ed.) at pg 121, the
authorsstatedthat:
Thecourtstakeaseriousviewofsuchoffenceshavingregardtothevulnerabilityofchildren and theprofoundbreach
oftrustinvolvedintheabuse,aschildrenareentitledtolookforprotectiontotheirparents or tothoseinwhosecare
theyareentrusted.Substantialtermsofimprisonmentwillinvariablybeappropriateforoffenders.
19AlthoughthemaximumpenaltyundertheChildren and YoungPersonsActismoreseverethanthatunder s
336 ofthe PenalCode ,neverthelessthesameconsiderationsshouldapplyinthelatterasintheformer,whereill
treatment of young children are concerned. Indeed, the prosecution had originally proceeded on charges under the
Children and YoungPersonsActbeforetheydecidedtoreducethechargestounder s336 ofthe PenalCode .
20Inthecircumstances,Iwasoftheviewthatafinewouldbeinappropriate.Thisisinlightoftheseverityofthe
offences, the age of the child, the position of trust of the offender visvis the child, and that it was not a oneoff
situation but occurred on two separate occasions. While I sympathised with the fact that the accused was under
considerable stress at the material time, he could not be said to be suffering from a significant or severe mental
disorderwhichwouldcountasanexceptionalcircumstanceformetodepartfromacustodialnorm.Thisisespecially
so,bearinginmindthatthevictimwasaveryyoungchild.NgSoKuenConniewasasadcasewithspecialfacts
and theChiefJusticestressedthat:
thisdecisiondoesnotstandforthepropositionthatallpersonswithdisturbedmindsatthetimeofthecommission
ofanoffenceunder s336 ofthe PenalCode aretobeexcusedfromacustodialsentence.Whileadiscretionexists
unders336tometeouteitheracustodialsentence or afine( or both)regardlessofthemensrea,thesentencing
judgehastoexercisethatdiscretionbyconsideringallthefacts and circumstancesofeachcase.Theseincludethe
seriousnessofthementalcondition,whethertheaccusedpersonislikelytorepeattheoffence and theavailable
evidencefromthepsychiatrists(particularlythepsychiatristfortheprosecution).
21 Moreover any adverse impact to the relationship which Chew shares with SK and Kim would not be a
mitigating factortopersuademetoimposeafineinsteadofacustodialterm.Suchhardshipisregardedasanormal
concomitantofimprisonmentseePPvTanFookSum[1999]2SLR523LimChoonKangvPP[1993]3SLR927R
vIngham(1980)2CrAppR(S)184.
22 In considering the appropriate custodial term to be imposed, I was at first minded to impose the maximum
possibleofsixmonths(namelythreemonthsperchargewithbothtorunconsecutively)inviewoftheabovefactors.
However, I accepted certain mitigating factors in the present case and decided to impose the maximum of three
months imprisonment per charge (to show disapprobation of such offences) but ordered the two sentences to run
concurrently instead. I accepted that the accused had pleaded guilty at an early opportunity and that he had no
antecedents.Ialsoconsideredthathehadallalong and stillmaintainedagoodrelationshipwithSK and Kim and
hadmadesubstantialcontributionstobeaparenttoKim and apillarofsupporttothem.

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