Chong Han Rui v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] SGHC 25
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9087 of 2015
• Year: 2016
• Published date: 01 March 2016
• Hearing Date: 27 November 2015,08 October 2015
• Plaintiff Counsel: Tan Jia Wei Justin (Trident Law Corporation)
• Defendant Counsel: Tan Wen Hsien and Quek Jing Feng (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Principles
• Citation: [2016] SGHC 25

Sundaresh Menon CJ: Introduction

Consistency in sentencing is a key principle in our criminal justice system. This is rooted in the notion that all are equal before the law (Public Prosecutor v Ng Sae Kiat and other appeals [2015] 5 SLR 167 (“Ng Sae Kiat”) at [76], citing Green v R (2011) 283 ALR 1 at [30]). The principle of parity in sentencing between co-offenders urges that sentences meted out to co-offenders who are party to a common criminal enterprise should not be unduly disparate from each other. To put it simply, those of similar culpability should receive similar sentences, while those of greater culpability should generally be more severely punished.

The present appeal concerned the application of the parity principle. The Appellant, Chong Han Rui, had been sentenced to reformative training by the District Judge (“the DJ”) for the offences which he had been charged with and pleaded guilty to. He appealed the DJ’s decision, seeking probation instead. The DJ’s decision can be found at Public Prosecutor v Chong Han Rui [2015] SGDC 175 (“the GD”).

The appeal was first heard on 8 October 2015. The appeal was initially resisted by the Respondent, the Public Prosecutor. Having heard the submissions, I was particularly troubled that the Appellant’s co-accused, whom I shall refer to as “B”, had been sentenced by a different judge to probation even though he appeared to have a greater degree of culpability than the Appellant. At the suggestion of the Appellant’s counsel, Mr Tan Jia Wei Justin (“Mr Tan”), I adjourned the matter for a supplementary probation report to be tendered so as to assess his suitability for probation. I also requested that the parties tender further submissions on: the relevance to the present appeal of my judgment in Public Prosecutor v Koh Wen Jie Boaz [2015] 1 SLR 334 (“Boaz Koh”), which had not been released at the date of the hearing but was subsequently issued on 26 October 2015, and in which I had laid down certain sentencing guidelines in relation to youth offenders who reoffended while on probation; and the relevance of the parity principle in the present circumstances.

On 18 November 2015, the Respondent wrote to the court, indicating that the Public Prosecutor, having reconsidered the matter, would be submitting that the Appellant should be sentenced to probation with similar conditions to those imposed in B’s case. Having had the benefit of the supplementary probation report and the additional submissions tendered by Mr Tan, coupled with the Public Prosecutor’s reconsidered position, I allowed the appeal on 27 November 2015, and sentenced the Appellant to a term of 27 months split probation (12 months intensive and 15 months supervised), subject to conditions (which are set out at [53]–[54] below). I set out here the detailed grounds for my decision including my observations on the application of the parity principle to an offender in the context of a case such as the present. I also touch on the duty of the Prosecution in such circumstances.

Facts leading to the Appellant’s sentence to reformative training

The Prosecution proceeded on two charges against the Appellant before the DJ. DAC 929249 of 2014 was a charge under s 147 of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”) for rioting (“the Rioting Offence”). DAC 923500 of 2014 was a charge under ss 28(2)(a) and 28(3)(b)(i) of the Moneylenders’ Act (Cap 188, 2010 Rev Ed) (“the MLA”) read with s 34 of the PC (“the Harassment Offence”). I will briefly review the details of each of these two offences.

The Rioting Offence

The Appellant was charged along with nine others in the Rioting Offence. His accomplices included Teo Swee Xiong (“Teo”), See You Teck Wilson (“See”), and B. They were all members of the “Hai Kim” Gang.

The victim in the Rioting Offence, whom I will refer to as “C”, was a secondary school student at the material time. Investigations revealed that B had learnt that a rival gang named “Pak Hai Tong”, which I will refer to as “the PHT Gang”, was recruiting members from B’s school. B informed members of the Hai Kim Gang that the PHT Gang was doing this with the intention to attack them and take over their “territory”. B and his companions then decided to confront the members of the PHT Gang.

At about 7am on 22 April 2013, Teo had a dispute with C, who was a member of the PHT Gang. They challenged each other to a fight, which was to take place later in the day. At about 3pm, the Hai Kim Gang gathered at a coffee shop in Jurong East. B then led them to a nearby basketball court to confront C, who was there with others from the PHT Gang.

As the Hai Kim Gang walked towards their opponents, Teo pulled out a hammer and gestured in the direction of the PHT Gang. The Hai Kim Gang then charged at their opponents, which led the latter to disperse. A chase ensued. C was spotted by Teo, See, B, and one other member of the Hai Kim Gang, who together chased him to a construction site where he was beaten up. A witness called the police and the four attackers fled when the witness shouted at them. Meanwhile, the Appellant chased one other member of the PHT Gang and had a struggle with him, but the other party managed to escape.

C sustained a head injury with a laceration on his scalp and a right ring finger tuft fracture. The Appellant was initially given a conditional warning in lieu of prosecution for the Rioting Offence.

The Harassment Offence

Less than 18 months later, on 23 October 2014, the Appellant met three of his friends, Ong Beng Yee (“Ong”), Lee Wei Jian (“Lee”), and B. They decided to act together on behalf of an unlicensed moneylender named “Adrian” to vandalise the dwelling of a debtor, whom I shall refer to as “H”.

The background to this sequence of events is as follows. Ong contacted B a day before to inform him of the opportunity to carry out a job for Adrian. The job was to harass H by splashing paint on the door of H’s home, locking the gate to the unit and writing offending words on the wall. Ong was to receive $200 from Adrian for harassing H in this manner. Ong, in turn, agreed to pay B $100 for his assistance. B contacted Lee and the Appellant to inform them of this. Lee and the Appellant agreed to participate, and they agreed that B’s $100 share would be split equally among the three of them.

Ong drove to B’s house to pick B and the rest up before driving them to purchase the supplies needed to harass H. They purchased a can of black paint and two cans of red paint, a bicycle chain and lock, and an indelible red ink marker. Ong paid for the items and drove the group to H’s unit. On the way to the unit, their roles were apportioned as follows: Ong would wait in the carpark; Lee would lock the gate using the bicycle chain and lock; B would splash the black and red paint on the door and the gate of the unit; and the Appellant would use the red marker and write the offending words on the wall next to H’s unit and take photographs of the scene using his mobile phone so that they could prove to Adrian that they had accomplished their mission.

At about 1am, H heard noises outside her unit and discovered that her home had been vandalised when she went out to check. There was red and black paint splashed at her unit, her main gate had been locked with a bicycle padlock, and the words “O$P$ ROMEO/ADRIAN #05-445” were written with a red marker on the wall next to her unit. She called the police, who later arrested all the culprits. Upon investigation, it was discovered that after committing the Harassment Offence, the offenders had gone to have supper together. On their way to supper, the Appellant sent photographs of the harassed unit to Ong, who then forwarded them to Adrian. The cans of paint and the marker were disposed of. Ong gave B $50, and promised to pay the remainder subsequently. Of this, a sum of $16 was given to the Appellant, while Lee did not receive anything.

The Appellant was thereafter charged for both the Rioting Offence and the Harassment Offence.

From this brief narrative, the relative roles of B and the Appellant in each of these incidents may be noted as follows: In relation to the Rioting Offence: B had instigated the confrontation by telling members of the Hai Kim Gang that the PHT Gang was seeking to attack them and take over their territory; B had led the Hai Kim Gang to the basketball court to confront C; B had been part of the gang that attacked C causing him the injuries outlined at [10] above. The Appellant was not part of the group that attacked C; and the Appellant had chased another member of the PHT group and had a physical struggle but it appears no injuries were sustained as a result. In relation to the Harassment Offence: Ong had contacted B and asked him to act as his assistant. It was B who then extended this offer to the Appellant and the others. Consistent with this, B was to receive $100 as Ong’s assistant and B would then divide his share with the Appellant and Lee; and the actual roles played by B and the Appellant in the commission of Harassment Offence were not dissimilar. But consistent with the observation in the preceding sub-paragraph, Ong paid B the sum of $50 who then paid the Appellant the sum of $16.

The DJ’s decision

Before sentencing the Appellant, the DJ called for both reformative training and probation reports to be furnished (the GD at [7]). The probation report recommended a total probation term of 27 months split probation (six months intensive and 21 months supervised) with various other conditions. A period of electronic tagging was also recommended. The reformative training report indicated that the Appellant was suitable for reformative training.

The sentencing hearing for the Appellant came before the DJ on 3 June 2015. The Prosecution submitted that in the light of the serious offences committed by the Appellant, a term of reformative...