Low Gek Hong v Public Prosecutor

• Court: High Court (Singapore)
• Judge: See Kee Oon JC
• Judgment Date: 15 April 2016
• Neutral Citation: [2016] SGHC 69
• Citation: [2016] SGHC 69
• Docket Number: Magistrate’s Appeal No 63 of 2015
• Hearing Date: 15 April 2016,05 February 2016
• Plaintiff Counsel: Diana Ngiam and Sunil Sudheesan (Quahe Woo & Palmer LLC)
• Defendant Counsel: April Phang and Marshall Lim Yu Hui (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Forms of punishment,Mitigation
• Published date: 25 June 2016

See Kee Oon JC:

This is an appeal against sentences imposed by the District Court in respect of six charges under s 323 read with s 73(2) of the Penal Code (Cap 224, 2008 Rev Ed). The appellant had pleaded guilty to these charges and consented to have a further 12 charges involving various related offences taken into consideration for the purpose of sentencing. Nine of these 12 charges were also in respect of offences under s 323 read with s 73(2) of the Penal Code, with the remaining three charges falling under s 352, s 506 and s 509 read with s 73(2) of the Penal Code respectively.

The offences in question all involved the abuse of a foreign domestic worker, Ms Tin War War Khing (“the victim”), who worked in the appellant’s household and was employed by the appellant’s mother. They were committed over a duration of about 3 months, from December 2011 to February 2012. On appeal, the appellant sought to persuade the court to set aside the custodial sentences in favour of Community-Based Sentences (‘CBS”), such as a Mandatory Treatment Order (“MTO”), a Short Detention Order and/or a Day Reporting Order or any suitable combination of CBS.

Background facts

On 3 June 2013, the appellant pleaded guilty in a District Court to the abovementioned six charges. After several adjournments, the District Judge first called for a pre-sentence report to determine her suitability for probation or to comply with a MTO. The probation report (P5) contained a reference to the appellant suffering from major depressive disorder, having regard to a medical report dated 2 April 2013 prepared by Dr Johnson Fam (“Dr Fam”). In the MTO report dated 25 September 2013 (P6), the IMH psychiatrist Dr Leong Oil Ken (“Dr Leong”) noted that she was previously diagnosed (by Dr Fam) to be suffering from major depressive disorder but stated that “there was no direct contributing relationship between her depression and her offences” [emphasis added]. He further observed that the appellant was “under fairly significant caregiver stress” and that could have had “some indirect effect on her level of frustration tolerance”. He stated that he was inclined to recommend a MTO as “one of her sentencing options”.

In a supplementary report dated 21 October 2013 (P7), Dr Leong stated that the major depressive disorder which was diagnosed in April 2012 by Dr Fam “can be considered a contributing factor which could cause [the appellant] to commit the offences” [emphasis added]. As the District Judge evidently took the view that the opinions expressed by Dr Leong in his two reports (P6 and P7) were inconclusive, he decided to convene a post-conviction (Newton) hearing upon the prosecution’s application to question Dr Leong.

The Newton hearing did not commence until 3 January 2014 and the subsequent hearing dates were intermittently distributed over the course of the next ten months or so up to 14 October 2014. All in all, 3½ days were spent hearing evidence as to whether the appellant did suffer from major depressive disorder which could be said to be “a psychiatric condition which is susceptible to treatment” and “one of the “contributing factors for [her] committing the offence(s)”, having regard to the language of s 339(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). After various other adjournments to obtain clarifications and for other reasons, the District Judge ultimately found on 29 April 2015 that she did not suffer from major depressive disorder. The appellant was eventually sentenced to two months’ imprisonment for all the charges except for one (DAC 46283/2012 – which involved pouring hot water onto the victim’s back), for which she received a sentence of five months’ imprisonment. The District Judge’s grounds of decision (“the GD”) is reported at Public Prosecutor v Low Gek Hong [2015] SGDC 192.

The District Judge ordered three of the sentences to run consecutively, resulting in an aggregate sentence of nine months’ imprisonment. He reasoned that the offences were serious and both specific and general deterrence required custodial sentences of substantial length to be imposed. Specifically, he pointed to various aggravating factors including the serious injuries, the sustained duration of the abuse, the number of incidents as well as the egregious nature of many of the instances of hurt caused.

As revealed in the Statement of Facts which the appellant had admitted to without qualification, the victim was made to suffer prolonged and extensive abuse over the duration of three months or so beginning from December 2011. The District Judge summarised these instances of abuse at [65] of the GD, where he noted that the appellant “started to abuse the victim approximately three months into the victim’s employment. The [appellant] used a pair of scissors, a mug filled with hot water, a metal hanger, sandals and a cup to assault the victim. Further, the [appellant] scratched the victim’s face, arms, ears and also bit her on her arms and hands. This abuse went on for 3 months.”

The context of the appellant’s offending conduct however would also merit some elaboration. It was not disputed that the appellant had taken on the role of caregiver to her bedridden father along with her mother, after he had become dependent on a life-support machine in 2009. The victim was engaged as a domestic helper only in September 2011 to assist in household chores and also to take care of the appellant’s father.

My decision The Newton hearing and s 339(9) of the CPC

It is unfortunate that this case has taken considerable time to reach a conclusion after the appellant pleaded guilty in June 2013. The conduct of the Newton hearing...