Iskandar bin Muhamad Nordin v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 04 November 2005
• Date: 04 November 2005
• Docket Number: Magistrate's Appeal No 90 of 2005
• Court: High Court (Singapore)

Iskandar bin Muhamad Nordin

Plaintiff

and

Public Prosecutor

Defendant

[2005] SGHC 207

Yong Pung How CJ

Magistrate's Appeal No 90 of 2005

High Court

Criminal Procedure and Sentencing–Appeal–Plea of guilty–Appeal against sentence imposed for conviction on offence of outrage of modesty–Existence of aggravating factors–Whether mitigating factors warranting reduction in sentence existing–Section 354 Penal Code (Cap 224, 1985 Rev Ed)

The appellant, who had a mild intellectual disability, pleaded guilty to one charge of outrage of modesty under s 354 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Offence”). He was convicted and sentenced to nine months' imprisonment and three strokes of the cane. Prior to the commission of the Offence, the appellant already had several previous brushes with the law, including a similar charge for outrage of modesty for which he was given a discharge amounting to an acquittal after compounding that offence. Further, the appellant had committed the Offence on the day of his release from prison for committing offences of theft in dwelling. He appealed against his sentence.

Held, dismissing the appeal and enhancing the sentence:

(1) The appellant's mild intellectual disability did not preclude him from being criminally culpable for his actions. Similarly, offenders of low intellect did not receive differentiated treatment in sentencing unless it was justified on the facts. The weight to be attached to the low intellectual capacity of such offenders as a mitigating factor, if any, would depend on the particular circumstances of the case: at [8], [9] and [14].

(2) Case law had established that the tariff sentence in respect of offences under s 354 of the Penal Code where the victim's private parts or sexual organs had been intruded upon applied even where the accused person was of low intellect: at [10] to [13].

(3) On the facts, the appellant's intellectual disability was not such that any significant mitigating weight should be given in sentencing. It was clear that his reduced intellectual faculty did not impair his ability to gain insight into his actions as well as the consequences of those actions: at [18].

(4) On the contrary, the aggravating factors present called for a heavier sentence. The appellant who had a string of recent antecedents had committed the Offence almost immediately after his release, within a stone's throw from the prison gates. The abominable manner in which the appellant had preyed on the victim also inflicted a traumatic ordeal upon her. Both the appellant's past experiences of incarceration and the second chance given to him for the similar offence of outrage of modesty had failed abysmally to make him mend his ways. Taking into account the pillars of sentencing, his sentence was enhanced to 24 months' imprisonment with nine strokes of the cane: at [19] to [22].

[Observation: The requirements under s 232 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) served as a safeguard against the execution of the punishment of caning without proper regard for the offender's welfare. Even where the courts decided that an offender should suffer the punishment of caning, it was still for the medical officer referred to in s 232 of the CPC to determine, at the post-sentence stage, if an offender was fit to undergo such punishment: at [24].]

Balasubramanian Palaniappa Vaiyapuri v PP [2002] 1 SLR (R) 138; [2002] 1 SLR 314 (folld)

Chandresh Patel v PP [1995] 1 CLAS News 323 (folld)

Chou Kooi Pang v PP [1998] 3 SLR (R) 205; [1998] 3 SLR 593 (folld)

Chua Tiong Tiong v PP [2001] 2 SLR (R) 515; [2001] 3 SLR 425 (folld)

Ng Chiew Kiat v PP [1999] 3 SLR (R) 927; [2000] 1 SLR 370 (folld)

PP v Huang Rong Tai [2003] 2 SLR (R) 43; [2003] 2 SLR 43 (folld)

PP v Mohamad Zaffinoor bin Mohamad KassimMagistrate's Appeal No 224 of 1999 (folld)

PP v Ng Bee Ling Lana [1992] 1 SLR (R) 448; [1992] 1 SLR 635 (folld)

PP v Rozman bin Jusoh [1995] 2 SLR (R) 879; [1995] 3 SLR 317 (folld)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (folld)

R v J (H) [2002] CarswellOnt 5962 (refd)

R v Rundle (1983) 24 Man R (2d) 252 (refd)

R v Sargeant (1974) 60 Cr App R 74 (folld)

Tan Eng Chye v Director of Prisons [2004] 2 SLR (R) 640; [2004] 2 SLR 640 (folld)

Tok Kok How v PP [1995] 1 SLR (R) 292; [1995] 1 SLR 735 (folld)

Wong Churn Hoong v PPMagistrate's Appeal No 250 of 1998 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 232

Penal Code (Cap 224,1985 Rev Ed)s 354 (consd)

The appellant in person

Christina Koh (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal against the decision of District Judge Siva Shanmugam. In the court below, Iskandar bin Muhamad Nordin, the appellant, pleaded guilty to one charge of outrage of modesty, an offence punishable under s 354 of the Penal Code (Cap 224, 1985 Rev Ed). The appellant was convicted and sentenced to nine months' imprisonment and three strokes of the cane. I dismissed his appeal against sentence and enhanced the sentence. I now set out the reasons for my decision.

The facts

2 The Statement of Facts presented in the court below disclosed that on 29 April this year at about 9.30pm, the victim...