Lee Shing Chan v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] SGHC 41
• Docket Number: Magistrate’s Appeal Nos 9088 and 9089 of 2019
• Date: 28 February 2020
• Published date: 03 March 2020
• Plaintiff Counsel: The appellants in MA 9088/2019 and MA 9089/2019 in person
• Defendant Counsel: Wong Woon Kwong, Jason Chua, Norine Tan and Daphne Lim (Attorney-General's Chambers),Leong Yi-Ming (Allen & Gledhill LLP) as Young Amicus Curiae.
• Court: High Court (Singapore)
• Hearing Date: 07 February 2020
• Subject Matter: Statutory Offences,Protection from Harassment Act,Criminal Law

Tay Yong Kwang JA (delivering the grounds of decision of the court):

The appellants, Mr Lee Shing Chan (“Lee”) and Mr Tan Ah Lai (“Tan”), were each charged with one count of using abusive words towards a public servant in relation to the execution of his duty as such public servant, an offence under s 6 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”). They were also each charged with one count of unlawful stalking with the common intention to cause alarm, an offence under s 7 of POHA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed).

The s 6 POHA charges involved the appellants shouting vulgarities in the Hokkien dialect at a National Environment Agency (“NEA”) officer while the s 7 POHA charges alleged that the appellants, together with one Mr Chow Yong Heng (“Chow”), in furtherance of the common intention of all of them, followed in a lorry two NEA officers, who were travelling in a van (with two other men) to various places for over three hours. Lee pleaded guilty to the s 6 charge and claimed trial in respect of the s 7 charge. Tan claimed trial for both his charges. The appellants were tried jointly and conducted their own defences. Chow had pleaded guilty in earlier proceedings to his s 7 charge and was sentenced to undergo three months’ imprisonment. At the time of the hearing before us, Chow had already served his sentence.

In the State Courts, the Magistrate (“the Magistrate”) convicted the appellants on all the charges against them. Lee was sentenced to one week’s imprisonment for the s 6 charge and four months’ imprisonment for the s 7 charge. Tan was sentenced to nine days’ imprisonment and four months’ imprisonment for the corresponding charges. The Magistrate ordered the sentences for each appellant to run consecutively. Lee and Tan appealed against their convictions and sentences in respect of the s 7 charges.

After hearing the parties, we dismissed the appeals against conviction but allowed the appeals against sentence. We set aside the sentences of four months’ imprisonment that the Magistrate imposed for the s 7 charges and substituted them with two weeks’ imprisonment. We further ordered the sentences for the s 6 and s 7 charges to run concurrently. The result was that each appellant would serve an aggregate sentence of two weeks’ imprisonment.

Facts

Lee and Tan were unlicensed fruit hawkers. On 6 June 2016 at about 6.45pm, they were spotted selling fruits illegally near Yew Tee MRT station by two NEA officers, Mr Mohamed Shammir s/o Thirunauc Karasu (“Shammir”) and Mr Siow Chee Tseng (“Siow”). At that time, Lee and Chow were arranging boxes of fruits near Lee’s silver Nissan lorry (“the Lorry”). Tan was issued a summons for being an unlicensed hawker. The fruits and two wooden planks that formed part of a makeshift display table were seized. After issuing the summons, the NEA team – comprising Shammir, Siow, Mr Nagalingam Chilvarajo (“Nagalingam”) who was the driver and Mr Yasothaaran Thessaruva (“Yasothaaran”) who was a CISCO auxiliary police officer (“APO”) – left in a van (“the NEA Van”).

The appellants and Chow then got into the Lorry and followed the NEA Van to various destinations over the span of about three hours: From Yew Tee MRT to Lakeside MRT where the NEA team went to collect other seized items. Along the way, Shammir observed that the Lorry appeared to be following them and instructed Nagalingam to drive into a dead-end slip road to see if the Lorry would follow. The Lorry did. From Lakeside MRT to a carpark near Pioneer MRT where the NEA team went to collect more seized items. Siow and Shammir decided to test again if the Lorry was deliberately following them by relocating to a different car park. The Lorry followed. From the carpark, the Lorry followed the NEA Van to a petrol station when the NEA team went there for a toilet break. From the petrol station, the Lorry followed the NEA Van to the NEA North East Regional Office (“NEA office”) where the NEA Van went to dispose of all the seized items. Lee, Tan and Chow looked at the NEA team as they unloaded the seized items. From the NEA office to a McDonald’s restaurant where the NEA Van was driven to for the purpose of testing again whether the Lorry was following it around. The Lorry stopped along the main road when the NEA Van entered the drive-through at the McDonald’s restaurant. From the McDonald’s restaurant to an open carpark near Seah Im food centre (“Seah Im carpark”) where the Lorry parked about two lots away from the NEA Van. Siow alighted from the NEA Van to take photographs of the Lorry. Lee, Tan and Chow then alighted from the Lorry and Lee demanded to see Siow’s warrant card. When Siow refused to produce his warrant card, Lee and Tan hurled vulgarities in the Hokkien dialect at Siow. These formed the subject matter of the s 6 charges against Lee and Tan. Shammir and Yasothaaran alighted from the NEA Van and when they and Siow tried to get back into the NEA Van, Lee stood in front of it and held onto its doors. Chow did not take part in this confrontation and hence did not face a s 6 charge. From the Seah Im carpark back to the NEA office.

On his manager’s advice, Shammir made a police report at 10.06pm. The first information report stated:

I AM CALLING FROM NEA. EARLIER AT 7PM I HAD BOOKED OFFENDER AT YEW TEE MRT STATION. NOW A CAR IS FOLLOWING MY VEHICLE. I AM ON THE WAY BACK TO MY OFFICE AND WILL ARRIVE IN 10 MINUTES TIME

The manager also advised the NEA team not to enter the office premises but to park at the car park at Sin Ming Drive. The NEA team complied. The Lorry parked along the main road just outside the car park. A police car arrived soon thereafter and the police interviewed Lee, Tan and Chow. Later, the police went into the NEA office to interview Shammir. Lee, Tan and Chow left in the Lorry.

Arguments and decision in the Magistrate’s Court Conviction under s 7 of the POHA

The Prosecution submitted that Lee and Tan were unhappy that enforcement action had been taken against their illegal hawking. They intended to cause alarm to the NEA officers, as seen from the way they followed the NEA officers from place to place. They did not conceal their presence but followed the NEA Van closely to ensure that the NEA officers knew they were being followed. Any reasonable person would have thought the appellants’ conduct would cause alarm to the NEA officers and alarm was indeed caused. Siow and Shammir testified that they were alarmed and worried for their safety, including being concerned about being followed to their homes. This caused them to inform their manager and to call the police. Finally, the appellants’ course of conduct was unreasonable. They knew they would not have been allowed to retrieve the items. They claimed that Shammir had waved at them to follow but Shammir denied doing that. The Prosecution argued that it was nonsensical for the appellants to say they were following the NEA Van in order to ask the NEA officers to call the police.

The appellants admitted that they decided to follow the NEA officers. However, there was nothing sinister in their motive and they took no steps to conceal themselves. Their actions were unlikely to cause harassment, alarm or distress because there was an APO in the NEA Van who could act against the appellants if necessary. The appellants’ actions were also reasonable as they only wanted to retrieve their goods. In any case there was no course of conduct as the appellants’ actions on that single occasion were not protracted.

The Magistrate held that the offence of unlawful stalking was made out. It was undisputed that the appellants’ conduct of following the NEA officers was an act associated with stalking. The Magistrate held that there was a course of conduct because the stalking took place over a few hours and that the appellants intended to cause alarm to the NEA officers. She rejected their explanations for their conduct: The appellants claimed that they followed the NEA Van to retrieve the seized items but this was inconsistent with their testimony that they would not be allowed to retrieve the items and their conduct of alerting the NEA officers of their presence would have been self-defeating. Lee agreed that he was following in such a manner that the NEA officers would be able to see and know that they were being followed. The appellants claimed that after the NEA Van arrived at the NEA office on the first occasion to off-load the seized items, Shammir waved at the Lorry to indicate that the Lorry should follow the NEA Van. However, the appellants gave no reason why Shammir would do that and they did not ask Shammir why he waved despite having had the chance to do so. In any case Shammir denied waving at them. The appellants alleged that they followed the NEA Van because they wanted to stop the NEA officers to ask them to call the police. The Magistrate rejected this as an illogical response.

The Magistrate held that the appellants’ conduct had the effect of alarming the NEA officers as seen from Siow’s and Shammir’s testimony and their conduct of informing their manager and calling the police. The allegation that Siow and Shammir could not have been alarmed because an APO was present was an afterthought as that was not put to the witnesses at trial. In any event, it could even be said that the appellants’ boldness in following the NEA Van despite the presence of an APO would give cause for alarm.

Sentence

Before the Magistrate, the Prosecution sought a sentence of at least four months’ imprisonment. An outcome of four months would be reached applying Chan Seng Onn J’s framework in Lim Teck Kim v Public Prosecutor [2019] 5 SLR 279 (“Lim Teck Kim”). Two additional considerations were parity of sentences and the need for deterrence. Chow, who was in the Lorry with Lee and Tan, was sentenced to three months’ imprisonment on 26 July 2018 on...