Ho Mei Xia Hannah v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 10 September 2019
• Neutral Citation: [2019] SGHC 211
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9166 of 2017 and Criminal Motion No 22 of 2018
• Year: 2019
• Published date: 17 September 2019
• Hearing Date: 16 July 2019,01 October 2018,16 May 2018,06 December 2018,14 February 2018,03 May 2019,06 April 2018,22 February 2019
• Plaintiff Counsel: Lim Kia Tong (Hin Tat Augustine & Partners)
• Defendant Counsel: Hri Kumar Nair SC, Tan Wen Hsien, Li Yihong and Goh Yi Ling (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Newton hearings,Sentencing,Mentally disordered offenders,Young offenders
• Citation: [2019] SGHC 211

See Kee Oon J:

This was an appeal against the sentences imposed by the District Judge in Public Prosecutor v Hannah Ho Mei Xia [2017] SGDC 180 (the “GD”) on the basis that they were manifestly excessive and wrong in principle.

Two main issues arose for determination in this appeal: first, whether the appellant’s Persistent Depressive Disorder (“PDD”) had a causal or contributory link to the commission of the offences, and, second, what the dominant sentencing consideration was in the present case.

The first issue arose following the appellant’s Criminal Motion to admit a psychiatric report prepared by Dr John Bosco Lee (“Dr Lee”) as well as the psychiatric reports from the Institute of Mental Health which had been applied for as of 24 April 2018. I admitted the evidence as I found that sufficient reasons had been provided as to why the documents had not been produced earlier and they appeared to be relevant and credible. Subsequently, the respondent tendered a report by Dr Derrick Yeo (“Dr Yeo”) from the Institute of Mental Health (“IMH”) which I admitted in evidence as well. The two psychiatrists diagnosed the appellant to be suffering from PDD but diverged in their conclusions on whether there was a causal or contributory link between her PDD and the commission of the offences. As such, a Newton Hearing was convened and both psychiatrists underwent cross-examination on 22 February and 3 May 2019.

Having heard the psychiatrists and considered the evidence before me, I dismissed the appeal on 16 July 2019. I set out the grounds for my decision below.

Facts

The appellant pleaded guilty to three charges, which comprised a charge under each of the following provisions: s 20 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”) for disorderly behaviour (enhanced) (“the s 20 MOA charge”); s 332 of the Penal Code (Cap 224, 2008 Rev Ed) for voluntarily causing hurt to a public servant (“the s 332 Penal Code charge”); and s 6(3) of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”) for using abusive words towards a public servant (“the s 6(3) POHA charge”).

The District Judge sentenced the appellant to imprisonment terms of one week, 20 weeks, and two weeks respectively. The one week and 20 weeks’ imprisonment terms were ordered to run consecutively, for a total of 21 weeks’ imprisonment. Two other charges for voluntarily causing hurt to a public servant under s 332 of the Penal Code were taken into consideration for the purposes of sentencing.

All five offences took place at St James Power Station located at 3 Sentosa Gateway between 5.55am and 6.05am on 3 July 2016. The appellant shouted at the top of her voice and gestured wildly at another group of party-goers. This attracted the attention of Sgt Nasharhrudin bin Fasulludi (“Sgt Din”), who told the appellant to calm down. However, she continued shouting and behaving in a disorderly manner. This was the subject of the s 20 MOA charge. The appellant had been previously convicted under the same provision on 25 April 2016 and was therefore liable for enhanced punishment.

When she started to approach the group of party-goers she had been shouting at, Sgt Din intervened and told her that he was placing her under arrest for disorderly behaviour. As he attempted to handcuff her, she punched him, causing him to sustain a bruise that was 1cm in diameter over the left infraorbital region. This was the subject of one of the s 332 Penal Code charges which was taken into consideration for the purposes of sentencing.

Sgt Wilson Tang (“Sgt Tang”) and his partner then assisted Sgt Din in handcuffing the appellant. While they were doing so, the appellant kicked Sgt Tang on the thigh and bit him on his right shoulder. Sgt Tang sustained a 2cm by 2cm hematoma over his right shoulder. The appellant’s acts in voluntarily causing hurt to Sgt Tang constituted the offence in the s 332 Penal Code charge.

Thereafter, the appellant was handcuffed and handed over to Sgt Andy Tan Yong Hao (“Sgt Tan”), who was tasked to transport her to the police station. She continued shouting and Sgt Tan told her to keep quiet. She then kicked him on his left thigh with her right leg. This was the subject of the other s 332 Penal Code charge that was taken into consideration for the purposes of sentencing.

The appellant then uttered the abusive words “ni na bei chee bai”, meaning “your mother’s vagina”, to Sgt Tan. This was the subject of the s 6(3) POHA charge.

After the appellant was placed in the police vehicle, she went on to say the following to Sgt Tan: “Blue shirt pui!” “Government dog!” “Earn 3k, can survive meh?” “Ni na beh chee bye!”, meaning “your mother’s vagina”. “You drive so recklessly hope your mother and father die from your driving!” “Eh pull up my jacket la rapist!”

Decision below

The appellant was 20 years of age when she committed the offences and when she was convicted of the three charges. The District Judge observed that if the appellant’s age had been the sole consideration, the predominant sentencing principle would be that of rehabilitation. However, the District Judge applied the framework set out in Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”) and went on to consider the nature of the offence and the offender: GD at [35].

On the nature of the offence, the District Judge held that the appellant’s offences against police officers had to be viewed with grave disapprobation. Taking a firm response in cases involving violence against police officers would be in the public interest. The need for greater deterrent effect was additionally indicated by the prevalence of offences involving abuse of Home Team officers, which was evidenced by the statistics highlighted by the respondent: GD at [36] and [37].

The s 332 Penal Code offence involved the biting of an officer. Such assaults should be viewed as on the higher end of the spectrum in terms of severity and should warrant a heavier sentence. This was borne out by the precedents tendered by the respondent, in which the sentences imposed ranged from five to ten months’ imprisonment. The District Judge placed weight on the number of offences involved as well: the appellant had assaulted three officers and was verbally abusive to Sgt Tan even after she had been physically subdued. She “displayed a complete disregard and almost contempt for the police officers”: GD at [38], [39] and [43].

The appellant’s previous conviction for disorderly behaviour was similar in that it too involved an encounter with police officers. She had been convicted on 25 April 2016 and sentenced to a fine of $1500. She committed the present set of offences barely two months later. Considering how quickly the appellant had reoffended and the escalated seriousness of the fresh offences, the District Judge concluded that the principles of general and specific deterrence “far outweighed” that of rehabilitation. Accordingly, the District Judge held that a term of imprisonment should be imposed: GD at [46] to [51].

The respondent sought a term of eight months’ imprisonment for the proceeded s 332 Penal Code charge. The District Judge observed that the present case of biting did not fall into the more severe category, where the offender is a carrier of a serious infectious disease or where an open wound injury was caused. The sentence should therefore be within the lower end of the five to six-month range. On the other hand, the District Judge took into account the fact that the appellant had kicked and punched three officers, as well as her previous conviction for disorderly behaviour. Balancing this against the appellant’s plea of guilt, young age, and the fact that this would be the appellant’s first period of incarceration, the District Judge imposed a sentence of 20 weeks’ imprisonment for the s 332 Penal Code charge: GD at [52] to [54].

A sentence of one week’s imprisonment was imposed for the s 20 MOA charge, for which the appellant was liable to enhanced punishment. With regard to the s 6(3) POHA charge, the District Judge observed that the appellant had directed her abusive words at a police officer for a protracted period and had shown no remorse despite being arrested. The precedents tendered by the respondent showed sentences which ranged from a fine of $3000 to two weeks’ imprisonment. Two weeks’ imprisonment was imposed, to run concurrently with the other sentences. The total sentence was therefore 21 weeks’ imprisonment: GD at [55] to [57].

The Newton hearing

While both Dr Yeo and Dr Lee diagnosed the appellant with PDD, they disagreed on whether there was a causal or contributory link between her condition and her commission of the offences. For present purposes, I briefly summarise their respective positions, which will be set out in greater detail below.

Dr Yeo characterised the appellant’s PDD as mild. He stated in his report that “there was no substantive contributory link between [the appellant’s PDD] and the commission of the alleged five offences”. When questioned by the court, he clarified that his opinion was that there was no contributory link.

In Dr Yeo’s view, the appellant’s PDD would not have affected her cognitive ability to know what she was doing, or her volitional control of her actions. Indeed, the circumstances at the time of the offence showed that she was aware of both the nature and the wrongfulness of her actions. This was indicated both by the account provided by the appellant to Dr Yeo, as well as the Statement of Facts (“SOF”) she pleaded guilty to.

On the other hand, Dr Lee concluded that the appellant’s aggressive behaviour towards the police officers was significantly caused by the emotional lability and irritability of her mental disorder. According to his report, the appellant claimed that her anger had overwhelmed her at the...