Lim Teck Kim v Public Prosecutor

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chan Seng Onn J
• Judgment Date: 18 April 2019
• Neutral Citation: [2019] SGHC 99
• Citation: [2019] SGHC 99
• Hearing Date: 22 March 2019
• Year: 2019
• Published date: 24 April 2019
• Docket Number: Magistrate’s Appeal No 9321 of 2018/01
• Plaintiff Counsel: Kishan Pratap (Kishan Law Chambers LLC)
• Defendant Counsel: Stephanie Koh (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Protection from Harassment Act,Unlawful stalking,Sentencing framework

Chan Seng Onn J: Introduction

Stalking is the label given to a series of acts repeated with unreasonable frequency, with the effect that the recipient of such unsolicited attention feels that his privacy is violated, or, worse still, feels that his personal safety is threatened.

To curb such antisocial conduct, the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”) was enacted in 2014, with s 7 of POHA specifically targeted at acts of unlawful stalking.

Since then, there have been multiple cases of stalking prosecuted under s 7 of POHA. In each case, the severity of the stalking, as well as the harm caused to the victim(s), were of varying degrees. Having amassed a sufficient number of cases from which a rough sentencing trend may be derived, it is now apposite to provide a sentencing framework so as to ensure greater clarity, coherence and consistency in sentencing offenders convicted for such offences (see Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [37]).

Background

Lim Teck Kim, the appellant in this case, was the jilted ex-boyfriend of the victim. In his fruitless attempt to rekindle his relationship with her, he committed two offences, namely criminal trespass and unlawful stalking. He pleaded guilty to both offences and he was sentenced to a $500 fine and three months’ imprisonment respectively by the District Judge.¹

The appellant appealed against the three months’ imprisonment term which he received for the unlawful stalking charge (under s 7 of POHA) on the basis that it was manifestly excessive.

Having considered the cases and developed a sentencing framework, I allow his appeal, and reduce his sentence for the unlawful stalking charge to a $5,000 fine (in default two weeks’ imprisonment).

Facts

Sometime in December 2016, the victim broke up with the appellant. Later, in mid-2017, the victim informed her condominium security officers not to let the appellant enter the condominium.²

The criminal trespass charge

On 12 March 2018, the appellant rode his e-scooter through the ‘In’ driveway reserved for residents of the victim’s condominium. He then waited for the victim in the basement carpark. A security officer went to the basement carpark to confront the appellant. When the appellant saw the security officer, he fled the premises on his e-scooter.³

This formed the substance of his criminal trespass charge under s 447 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), for which he was fined $500 by the District Judge.⁴ He did not appeal against the fine.

The unlawful stalking charge

The unlawful stalking charge under s 7 of POHA related to the following acts committed by the appellant with intent to cause harassment and alarm to the victim during the period of 23 February 2018 to 13 March 2018 (about three weeks).

The incidents on 23 February 2018

On 23 February 2018, at about 1.30am, at the victim’s residence, the appellant was upset after quarrelling with the victim. He therefore self-inflicted bruises on his face and showed them to the victim, blaming her for making him hit himself. She was appalled and tried to pacify him. She then let him stay over because she was afraid of further backlash if she tried to make him leave.⁵

Later the same day, the victim returned home from work early at the appellant’s insistence. At about 6.30pm, when the victim said that the appellant’s bruises looked better, the appellant threatened to hurt himself if she made him leave the house or if she left him. He then began hitting himself on the face and throwing around items in her house. He also spat the blood in his mouth onto her side table. She felt afraid and told her domestic helper to ask security to call the police.⁶

On the same day, at about 7.45pm, at the victim’s residence, before the police arrived, the appellant shouted at the victim that he would rather kill himself than end their relationship.⁷

Upon the arrival of the police, the appellant was arrested for an offence of attempted suicide under s 309 of the Penal Code;⁸ such a charge does not however appear to have been preferred against him in this case.

Acts of stalking after 23 February 2018 to 13 March 2018

After being released on bail, between 23 February 2018 and 6 March 2018, the appellant made and attempted to make communication through mobile messaging applications (iMessage and WhatsApp) to the victim, pleading with the victim to see him in person.⁹

Between 4 March 2018 to 13 March 2018, the appellant also loitered around the victim’s condominium and the vicinity, pleading for her to rekindle her relationship with him.¹⁰ For example, on 6 March 2018, the appellant was aware that the victim had a chiropractor’s appointment at Bukit Timah Shopping Centre (“the shopping centre”). Armed with such knowledge, he approached her at the carpark of the shopping centre, and attempted to initiate a conversation with her, despite her informing him that she wanted nothing to do with him.¹¹

On 15 March 2018, the victim obtained an Expedited Protection Order pursuant to s 13(1) of POHA against the appellant.¹² Thereafter, the statement of facts do not disclose any further acts of harassment by the appellant.

This appeal relates to the three months’ imprisonment which he received for his unlawful stalking offence that flowed from the above facts.

Sentencing framework for unlawful stalking under s 7 of POHA

As alluded to above, I have developed a sentencing framework for cases of unlawful stalking, which is an offence punishable with a fine not exceeding $5,000 or with imprisonment for a term not exceeding 12 months or to both (s 7(6) POHA).

This framework draws from the two-step sentencing framework developed by the Court of Appeal in Terence Ng. The court first identifies the offence-specific factors to determine the appropriate sentencing band for the particular offence. Thereafter, the court considers the aggravating and mitigating factors specific to the offender to calibrate a sentence that is appropriate for that offender (Terence Ng at [39]). This two-step sentencing framework has since been followed in other criminal cases (see, eg, Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) and GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048).

However, the framework proposed herein seeks to refine the methodology which was developed in Terence Ng.

The points system to determine the appropriate sentencing band

In Terence Ng, the Court of Appeal considered several offence-specific factors which go towards the aggravation of the offence. In the context of rape, which was the offence before the court in Terence Ng, such offence-specific factors included the abuse of position and breach of trust, premeditation, and the use of violence (Terence Ng at [44]).

After considering the aggravating offence-specific factors in the case, the sentencing judge would be able to determine the appropriate band which the accused’s offence fell within.

Cases which presented no offence-specific factors or where the factors were only present to a very limited extent were classed as Band 1 cases, which were punishable with ten to 13 years’ imprisonment, with six strokes of the cane. Cases with two or more aggravating factors fell under Band 2, and were punishable with 13 to 17 years’ imprisonment, with 12 strokes of the cane. Finally, extremely serious cases of rape, which, “by reason of the number and intensity of the aggravating factors”, were classed as Band 3 cases, for which the appropriate punishment was 17 to 20 years’ imprisonment, with 18 strokes of the cane (Terence Ng at [47]).

In Kunasekaran at [47], I observed that the “two-step sentencing bands” approach has much to commend it, and that it is a reliable methodology which improves clarity, transparency, coherence and consistency in sentencing.

Nonetheless, a problem which arises from the two-step sentencing band approach is that there is an overt focus on the number of aggravating factors. Hence, in Terence Ng, once there were two or more aggravating factors, the case inevitably tipped out of Band 1 into Band 2. I understand that it is possible to adjust beyond the sentencing range prescribed for the band when considering the appropriate sentence at the second stage of the framework (ie, offender-specific factors stage) (see Terence Ng at [62]). However, this does not curb the problem identified, which relates to the excessive or inadequate weight which may be given to offence-specific factors (the first stage). Given the inevitable focus on the sheer number of offence-specific factors present, the current two-step sentencing band approach implicitly assumes that each offence-specific factor carries the same weightage. This disregards the possibility that each of these offence-specific factors may carry different aggravating weights in influencing the sentence.

To more accurately evaluate the appropriate amount of weight to be ascribed to each offence-specific factor, I therefore propose a points system, whereby each offence-specific factor is given a range of points, allowing the sentencing judge to determine the appropriate number of points to be ascribed based on the intensity of the aggravating factor. Once the total number of points from the offence-specific factors are tallied, the indicative starting sentence, based on the sentencing band, can be determined. The sentencing band which the accused’s offence falls under will therefore be determined not primarily by the number of offence-specific factors present, but by the combined intensity of all the offence-specific factors present, as reflected by the aggregated number of points. This takes into account not only the number of offence-specific factors present but also the different weightage that each of these offence-specific factors may have.

I now...