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Chew San Liang v Public Prosecutor

[2003] SGDC 199Case Number :

DAC 22324/2003 & ors, MA 158/2003

Decision Date :28 August 2003

Tribunal/Court :District Court

Coram :Audrey Lim Yoon Cheng

Counsel Name(s) :Mr David Khoo for the Public Prosecutor Mr Philip Fong for the Accused

Parties :Chew San Liang Public Prosecutor

1 The accused, Chew, pleaded guilty to two counts under s 336 of the Penal Code (Cap 224). Sometime in

August 2002, Chew did a rash act as to endanger human life by throwing one Kim up and down a spinning ceiling fan

(the 1 charge). He also committed a rash act to endanger human life by turning Kim upside down and dangling her

by her legs outside the balcony of the 7 floor flat (the 2 charge). Kim was then three and a half years old.

Initially, the prosecution proceeded under s 5(1) of the Children and Young Persons Act (Cap 38), punishable under s

5(5)(b) with a maximum fine of $4,000 or four years imprisonment or both. The punishment under s 336 of thePenal Code is less severe, being a maximum fine of $250 or three months imprisonment or both.

2 Two other charges were taken into consideration for the purposes of sentencing. Chew had voluntarily caused

hurt to Kim by slapping her right cheek, punishable under s 323 of the Penal Code (the 3 charge), and threatened

and caused her alarm by saying I will come back and kill you, punishable under s 13A(1)(a) of the Miscellaneous

Offences (Public Order and Nuisance) Act (Cap 184) (the 4 charge). These two offences occurred on a separate

occasion, on 14 October 2002.

3 I convicted Chew and sentenced him to three months imprisonment each on the first and second charges

and ordered them to run concurrently. Chew, being dissatisfied, filed an appeal against the sentence on 22 August

2003.

The facts

4 At the material time, Chew was a freelance fitness trainer and the boyfriend of one Madam Chew (SK), who

was Kims mother. Sometime in August 2002, whilst SK was at work, Kim was left at home with Chew and SKs

Filipino maid on the seventh-floor flat. Whilst the maid was feeding Kim, Chew approached Kim and told her, You

better eat quickly, otherwise, I would throw you up. Chew then threw a pillow at Kim whereupon Kim started to cry.

Chew then carried Kim and rashly threw her up and down under a spinning ceiling fan (the 1 charge). After that, he

held Kim on both her legs, turned her upside down and dangled her outside the balcony. Chew stopped his act when

Kim cried out for the maid (the 2 charge).

Accuseds submissions

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5 Defence counsel, Mr Fong, tendered a written mitigation . In brief, he urged the court to impose a fine and not

a custodial sentence, and relied on the recent decision in Ng So Kuen Connie v PP [2003] SGHC 164. He submitted

that the offences were not premeditated as Chew was suffering from immense stress prior to the offences. In support

of this, two medical reports were tendered. Mr Fong admitted that as a matter of public policy, killer litter cases

would generally attract a custodial term as a starting point, to protect the majority of the population who live in flats.

However the public policy consideration was absent in the present case.

6 Chew was also a first offender, who had pleaded guilty at an early opportunity. He was not a violent person

and was unlikely to reoffend. He also had an unblemished record, and has continued to maintain a good relationshipwith SK and Kim after the incidents. Mr Fong further submitted that a custodial term would be detrimental to Kims

condition, and he enclosed personal pleas from SK and Kim not to break up the family relationship that they were

enjoying with Chew, by imposing a custodial sentence.

Prosecutions submissions

7 Prosecution counsel, Mr Khoo tendered the case of PP v Loh Lan Siang [2003] SGMC 27, at paras 28 and 29,

to highlight to the court the principles to be taken into account for offences under s 336 of the Penal Code . As a

starting point, an offence under the rash limb would usually attract an imprisonment term, as opposed to an offence

under the negligence limb. In the present case, Chew did not face one, but two charges under s 336, and had two

other charges taken into consideration.

8 In exceptional circumstances, a fine may be imposed for an offence under the rash limb, as in the case of Ng

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,

although she was aware of what she was doing. In the present case, Chew was merely suffering from stress, and this

could not be equated or compared to the accuseds condition in Ng So Kuen Connie. Moreover, the present offences,

especially the 2 charge, clearly posed an extreme danger to the childs life, and Chew knew what he was doing at

the time of the offences. Mr Khoo also pointed out that in Loh Lan Siang, where the offence was under the rash limb

and danger was posed to human life, the judge stated that the current sentencing tariff would be two months

imprisonment as a starting point.

My decision on sentencing

9 In sentencing Chew to a total of three months imprisonment with both charges to run concurrently, I took into

account the following matters. I am aware that s 336 of the Penal Code gives the judge the discretion to mete out a

custodial sentence or a fine or both, regardless of whether the mens rea was one of rashness or negligence,

although a custodial term has generally been imposed for offences under the rash limb see Ng SoKuen Connie.

10 In Ng So Kuen Connie, adopting the approach in R v Wiskich [2000] SASC 64, the Chief Justice dealt in some

length on the issue of psychiatric and mental condition and how this could affect the sentence. As a starting point,

the consideration is whether the accused was belabouring under a serious psychiatric condition at the time of the

incident. The element of general deterrence can readily be given considerably less weight in the case of an offender

suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists

between the mental disorder and the commission of such an offence. Hence, factors such as the seriousness of the

mental condition, the likelihood of the accused repeating the offence, and the severity of the crime are to be taken into

account in determining the appropriate sentence. The Chief Justice further added that general deterrence would not

be met by meting out an imprisonment term to a patient suffering from a serious mental disorder which led to the

commission of the offence.

11 Bearing the above principles 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 psychiatristsopinion (of whom one was the prosecutions witness, Dr Tan) that the accused was suffering from hypomania at the

time of the incident and had been mentally unwell for a few weeks before the incident. Moreover, after her arrest, she

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was hospitalised at the IMH and her condition developed into depression, which, if she was imprisoned, might

worsen. The appellate court was persuaded by Dr Tans views, who was an independent witness called upon by the

prosecution and was not an expert whom the accused had consulted in an attempt to appeal for a lighter sentence .

12 In the present case, looking at the two psychiatrist reports tendered by the defence, I was of the view that

Chews mental condition was not so serious and a significant mental disorder as the accused in Ng So Kuen Connie,

which would persuade me to exercise my discretion to impose a fine instead of a custodial term. In that case, Dr Tan

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 accusedcould not form an intent for her behaviour because of her illness and was incapable of understanding her behaviour

the moment when it took place.

13 However, this was not the situation in the present case. Chew was merely suffering from stress and fatigue.

The two psychiatrist reports did not state that Chew was unable to control his actions or that he did not fully appreciate

the consequences of his actions at the time of the commission of the offences. Neither was Chew unable to form an

intent for his behaviour nor incapable of understanding his own behaviour at the material time. Unlike in Ng So Kuen

Connie, none of the psychiatrists in the present case also opined that Chews condition would worsen if he were to be

imprisoned.

14 Moreover the last time Chew consulted Dr Ng was at the end of 1995 to February 1996 and was at that time

diagnosed with mild depressive disorder. Thereafter, it did not appear that Chew continued to consult a doctor or

psychiatrist for any mental condition until these four incidents became a police case. In fact, Dr Ng noted in his report

that Chew had a long-standing problem of losing control of his temper. Chews temperament in this regard cannot

surely be a mitigating factor, especially where a very young child was in his care. Indeed, it should be remembered

that Chew had not only lost his cool with the child in August 2002 (the 1 and 2 charges) but on a subsequent

occasion in October 2002 (the 3 and 4 charges) where he had threatened Kim that he would kill her.

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 seventh-floor apartment, the present offences involved a very

young child of three and a half years old, who first had a pillow thrown at her which caused her to cry, then thrown up

and down under a spinning ceiling fan and subsequently dangled upside down from the balcony of the seventh floor.

The last two acts (the 1 and 2 charges) were, in my view, very serious and clearly endangered her life. Moreover,

given her young age, she would not have been in a position to defend or protect herself from Chews actions.

16 As for Dr Lims report, he merely stated that Kim did not appear to be traumatized by the event. It would seem

from his report that he had observed Kim on only one occasion, and did not make any observations or conclusions

on the possibility of any long-term effects, such as the emotional and psychological trauma, that the incidents may

have on her. In any event, although the child may not have appeared to suffer any trauma cannot be regarded as a

mitigating factor. On the contrary, if the child had suffered trauma, I would have considered that as an aggravating

factor.

17 The seriousness of the offences was further compounded by the fact that there were two more incidents

subsequently on 14 October, where Chew slapped Kim and threatened to kill her. Hence the present offences was not

a one-off incident, as in Ng So Kuen Connie or the other cases cited by defence counsel. In addition, I also took into

account that Chew, being akin to a surrogate father or father figure to Kim, was in a position of trust to her and had

abused his position.

18 Defence counsel argued strenuously that in killer litter cases, such as in Loh Lan Siang and Ng So Kuen

Connie, the starting point is usually an imprisonment term for public policy reasons. The majority of the population in

Singapore live in flats and apartments and there is a need to protect them from harm from objects indiscriminately

thrown from above. Defence counsel argued that the present case was not a killer litter situation and hence public

policy considerations were absent. As such, a fine would be appropriate. I was unable to agree with this. In

situations involving the ill-treatment of young children, the cases under the Children and Young Persons Act have

shown that those entrusted with young children must know that the courts would severely punish serious assaults or

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BACK TO TOP

ill-treatment 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 (2 Ed.) at pg 121, the

authors stated that:

The courts take a serious view of such offences having regard to the vulnerability of children and the profound breach

of trust involved in the abuse, as children are entitled to look for protection to their parents or to those in whose care

they are entrusted. Substantial terms of imprisonment will invariably be appropriate for offenders.

19 Although the maximum penalty under the Children and Young Persons Act is more severe than that under s

336 of the Penal Code , nevertheless the same considerations should apply in the latter as in the former, where ill-

treatment of young children are concerned. Indeed, the prosecution had originally proceeded on charges under the

Children and Young Persons Act before they decided to reduce the charges to under s 336 of the Penal Code .

20 In the circumstances, I was of the view that a fine would be inappropriate. This is in light of the severity of the

offences, the age of the child, the position of trust of the offender vis--vis the child, and that it was not a one-off

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

disorder which would count as an exceptional circumstance for me to depart from a custodial norm. This is especially

so, bearing in mind that the victim was a very young child. Ng So Kuen Connie was a sad case with special facts

and the Chief Justice stressed that : this decision does not stand for the proposition that all persons with disturbed minds at the time of the commission

of an offence under s 336 of the Penal Code are to be excused from a custodial sentence. While a discretion exists

under s 336 to mete out either a custodial sentence or a fine ( or both) regardless of the mens rea, the sentencing

udge has to exercise that discretion by considering all the facts and circumstances of each case. These include the

seriousness of the mental condition, whether the accused person is likely to repeat the offence and the available

evidence from the psychiatrists (particularly the psychiatrist for the prosecution).

21 Moreover any adverse impact to the relationship which Chew shares with SK and Kim would not be a

mitigating factor to persuade me to impose a fine instead of a custodial term. Such hardship is regarded as a normal

concomitant of imprisonment see PP v Tan Fook Sum[1999] 2 SLR 523 Lim Choon Kang v PP[1993] 3 SLR 927 Rv Ingham(1980) 2 Cr App R (S) 184.

22 In considering the appropriate custodial term to be imposed, I was at first minded to impose the maximum

possible of six months (namely three months per charge with both to run consecutively) in view of the above factors.

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. I also considered that he had all along and still maintained a good relationship with SK and Kim and

had made substantial contributions to be a parent to Kim and a pillar of support to them.

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