Ng Chun Hian v PP

• Jurisdiction: Singapore
• Judgment Date: 19 February 2014
• Date: 19 February 2014
• Docket Number: Magistrate's Appeal No 183 of 2013
• Court: High Court (Singapore)

Ng Chun Hian

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 31

Sundaresh Menon CJ

Magistrate's Appeal No 183 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Newton hearing—Conflicting psychiatric reports—Whether appellant's mental condition a relevant sentencing consideration—Whether case advanced on behalf of appellant was absurd or obviously untenable

This was an appeal against a sentence of 12 years corrective training and six strokes of the cane imposed by the district judge. The appellant had been charged with and pleaded guilty to one charge of housebreaking under s 454 Penal Code (Cap 224, 2008 Rev Ed) and also consented to two other charges being taken into consideration for sentencing.

Two conflicting psychiatric reports were presented before the district judge for the purpose of sentencing. One report by a psychiatrist from IMH diagnosed the appellant with an antisocial personality disorder but concluded that the appellant was not suffering from a mental illness. The other report by a private psychiatric diagnosed the appellant with kleptomania. The district judge did not hold a Newton hearing but held that less weight should be accorded to the private psychiatric report.

Held, allowing the appeal and remitting the case for a Newton hearing:

(1) A Newton hearing was the exception rather than the norm. It should not ordinarily be convened unless the sentencing judge was satisfied that it was necessary to do so in order to resolve a difficult question of fact that was material to the determination of the appropriate sentence. However, the sentencing judge might decline to hear evidence where the case advanced on the defendant's behalf was absurd or obviously untenable. In such a case, the sentencing judge should explain his conclusion: at [24] .

(2) The appellant's alleged diagnosis of kleptomania would be material to the determination of the appropriate sentence to be imposed and whether it should be coupled with a suitable mental health treatment and rehabilitation regime. It was well established that rehabilitation was the foremost sentencing consideration when dealing with a mentally-disordered offender suffering from kleptomania where this was found to have caused the commission of the offence at hand. Further, in light of his constant re-offending, if the appellant was not found to be suffering from a diagnosis of kleptomania this could potentially be relevant to the question whether the appellant was beyond redemption and too recalcitrant for reformation such as to warrant the imposition of a sentence of preventive detention: at [26] , [27] and [32] .

(3) It was undoubtedly the case that the psychiatric diagnosis of kleptomania was contested, with two divergent psychiatric opinions. The court was in no position to dismiss the private psychiatric report as being patently untenable or absurd: at [34] and [35] .

(4) The district judge erred in concluding that the private psychiatric report had failed to attest to a causal link between the appellant's alleged psychiatric condition and the commission of the present offences. Read fairly and in context, it was clear that the private psychiatric report evinced a causal link between the diagnosis of kleptomania and the commission of the present offences: at [37] .

(5) The severity of the appellant's criminal tendencies whilst potentially relevant to the question of the length of any period of incarceration could not render the appellant's mental condition irrelevant as a sentencing consideration; this was especially so where the court had to choose from a variety of alternative sentences: at [38] .

G Ravichander v PP [2002] 2 SLR (R) 665; [2002] 4 SLR 587 (folld)

Goh Lee Yin v PP [2006] 1 SLR (R) 530; [2006] 1 SLR 530 (refd)

Ng So Kuen Connie v PP [2003] 3 SLR (R) 178; [2003] 3 SLR 178 (folld)

PP v Aniza bte Essa [2009] 3 SLR (R) 327; [2009] 3 SLR 327 (refd)

PP v Goh Lee Yin [2008] 1 SLR (R) 824; [2008] 1 SLR 824 (refd)

PP v Rosli bin Yassin [2013] 2 SLR 831 (folld)

PP v Soh Song Soon [2010] 1 SLR 857 (folld)

PP v Wong Wing Hung [1999] 3 SLR (R) 304; [1999] 4 SLR 329 (refd)

R v Kevin John Underwood [2005] 1 Cr App R (S) 90 (folld)

R v Robert John Newton (1982) 4 Cr App R (S) 388 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 304 (1) , 304 (2)

Penal Code (Cap 224, 2008 Rev Ed) ss 454, 458A, 511

Gurdaib Singh (Gurdaib, Cheong & Partners) for the appellant

Andrew Tan and Krystle Chiang (Attorney-General's Chambers) for the respondent.

Sundaresh Menon CJ

1 The accused, Ng Chun Hian (‘the appellant’), appealed against the decision of the district judge (‘the DJ’) sentencing him to 12 years' corrective training and six strokes of the cane for a conviction in respect of one charge of housebreaking under s 454 of the Penal Code (Cap 224, 2008 Rev Ed) (‘Penal Code’) punishable under s 458A Penal Code, with two ot her charges being taken into consideration for the purposes of sentencing. The appellant submitted that the DJ had erred in failing to have regard to his mental condition, which he contended had directly contributed to his commission of the offence.

2 At the conclusion of the appeal, I set aside the appellant's sentence and remitted the case to the DJ for a Newton hearing. I now give my reasons.

Background

The appellant

3 The appellant is 35 years old. He was unemployed when he committed the present offences. His parents divorced when he was seven years old and he lived with his mother and sister until he was sent to the Singapore Boys Home in 1992. The appellant had a long history of antecedents. Shortly before the commission of the present offences, he completed a ten-year sentence of corrective training for housebreaking and theft and was released from prison on 26 September 2012.

The charges

4 On 14 June 2013, the appellant pleaded guilty to one charge of housebreaking (DACNo 39172 of 2012) under s 454 Penal Code, for breaking into and entering a dwelling unit on 8 October 2012 at about 2.00 pm in order to commit theft of S$1,900 in cash and about S$1,000 in foreign currency. As an offender with a previous conviction under s 454 Penal Code, the appellant was additionally liable to be punished under s 458A Penal Code, which prescribes a mandatory sentence of caning:

Punishment for subsequent offence under section 454 or 457

458A. Whoever, having been convicted of an offence under section 454, 455, 457 or 458, commits an offence under section 454 or 457 shall be punished with caning in addition to the punishment prescribed for that offence.

5 According to the Statement of Facts, which the appellant admitted without qualification, the stolen items were not recovered as the appellant had spent all the money.

6 The appellant also consented to two other charges being taken into consideration for the purposes of sentencing:

(a) one charge of housebreaking under s 454 read with s 458A Penal Code (DACNo 37985 of 2012) for the theft of goods with a total...