Ng Chun Hian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 19 February 2014
• Neutral Citation: [2014] SGHC 31
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 183 of 2013
• Year: 2014
• Published date: 25 February 2014
• Hearing Date: 03 October 2013,23 January 2014
• Plaintiff Counsel: Gurdaib Singh (Gurdaib, Cheong & Partners)
• Defendant Counsel: Andrew Tan and Krystle Chiang (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Newton hearings
• Citation: [2014] SGHC 31

Sundaresh Menon CJ:

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 house-breaking 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.

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

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 house-breaking and theft and was released from prison on 26 September 2012.

The charges

On 14 June 2013, the appellant pleaded guilty to one charge of house-breaking (DAC No 39172 of 2012) under s 454 Penal Code, for breaking into and entering a dwelling unit on 8 October 2012 at about 2.00pm 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.

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.

The appellant also consented to two other charges being taken into consideration for the purposes of sentencing: one charge of house-breaking under s 454 read with s 458A Penal Code (DAC No 37985 of 2012) for the theft of goods with a total value of S$1,820 from a flat on 11 October 2012; and one charge of attempted house-breaking under s 454 read with s 511 (DAC No 39171 of 2012) for an attempt to enter a dwelling unit in order to commit theft on 11 October 2012.

The three offences were committed over the course of four days. The first of these occurred less than two weeks after his release from prison following the completion of a ten-year sentence of corrective training.

The psychiatric reports

Two psychiatric reports were presented before the DJ for the purpose of sentencing. The Prosecution submitted a report dated 5 November 2012 from Dr Jerome Goh Hern Yee (“Dr Goh”) from the Institute of Mental Health (“IMH”). Counsel for the appellant submitted a psychiatric report dated 20 June 2013 from Dr Lionel Lim Chee Chong (“Dr Lim”) of L P Clinic Pte Ltd, who was in private practice.

The IMH report

The appellant was remanded at the IMH from 19 October 2012 to 5 November 2012 following his arrest for the above offences. Dr Goh examined the appellant on three occasions on 23 October 2012, 31 October 2012 and 2 November 2012. In addition, Dr Goh relied on the following sources of information to prepare his report: an interview with the appellant’s father on 30 October 2012; documented observations by IMH nursing staff during his remand; a report on the appellant prepared by IMH’s Medical Social Worker; the appellant’s IMH clinical notes; the charge sheets; and the report and summary of facts prepared by the investigating officer.

In his report, Dr Goh noted the appellant’s claims that he had started hearing “voices” upon his recent release from prison and that the “voices” were inside his head, telling him that he would not get caught. However, these voices did not specifically instruct him to do anything in particular or to commit the house-breaking offences. The appellant also said that he did not hear the “voices” when he committed the offences. The appellant also claimed that house-breaking was to him “just a game”; that he “just enjoyed it” and that he felt very happy when he was committing house-breaking. Finally, the appellant also said that he kept thinking about house-breaking and could not stop himself once he started house-breaking.

Dr Goh diagnosed the appellant with an antisocial personality disorder, but concluded that the appellant was not suffering from a mental illness. Dr Goh thought that the “voices” described by the appellant were not consistent with auditory hallucinations of a psychotic nature. He further opined that the appellant was not of unsound mind at the time of the alleged offences and was fit to plead in court.

Dr Lim’s report

The appellant was interviewed by Dr Lim on 21 March 2013. In addition to this interview, Dr Lim also relied on other sources of information, including the following, to prepare his report: interviews with the appellant’s father, sister and long-time pen friend; the charge sheets; the IMH psychiatric report; and the Prison medical report dated 8 May 2013.

The appellant was recorded as informing Dr Lim that he started to experience an urge to break into houses two days after his release from prison and that he finally yielded to these impulses on 8 October 2012. The appellant also claimed that he felt “very excited” when committing house-breaking and described the urge as akin to an addiction. He said that he would experience a sense of great relief and a release of inner tension once he had committed a house-breaking offence. The appellant also told Dr Lim that he had thrown away the items that he had stolen, including a laptop, a handphone and a walkman.

Dr Lim concluded that the appellant was suffering from kleptomania, a psychiatric disorder. I set out the more significant extracts from his report as follows: 1. Chun Hian suffers from Kleptomania, an Impulse-Control Disorder. This disorder may be associated with compulsive behaviour. …

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3. Chun Hian’s psychological disorder was previously undiagnosed. His psychological condition started some years back and he continued to experience these symptoms during his imprisonment. The symptoms probably contributed to his insomnia.

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5. The psychiatric medication that he received from the prison psychiatrists was not consistent with a diagnosis of Antisocial Personality Disorder As stated previously, he was on one antipsychotic, one anti-itch/anti-anxiety and two antidepressant medication. Indeed, if Chun Hian has antisocial personality disorder and does not have a mental illness …, then it is difficult to understand why treatment was given to him during and after his imprisonment. 6. The medication that he received in prison unwittingly treated the symptoms of Impulse-Control Disorder This probably explained for the recurrence of his compulsive house breaking behaviour when he erroneously stopped the treatment after his release from prison.

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Relying on Dr Lim’s diagnosis of kleptomania, counsel for the appellant urged the DJ to impose a short custodial sentence to enable the appellant to receive treatment for his medical disorder.

In response, the Prosecution submitted that this was not appropriate given the different diagnoses put forward by the psychiatrists. The Prosecution observed that there were some discrepancies in the version of events given by the appellant to each psychiatrist and submitted that the police statement which was given by the appellant four days after the commission of the offence should be given more weight than what he told Dr Lim months after the offence. The Prosecution also submitted that contrary to the first of the five diagnostic criteria for kleptomania stated in the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, text revision, 2000) (“the DSM-IV-TR”), the Accused had stolen items of value.

The corrective training report

The DJ called for a...