Ng So Kuen Connie v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 August 2003
• Neutral Citation: [2003] SGHC 164
• Date: 01 August 2003
• Subject Matter: Mens rea,Offences,Weight of expert opinion,"Killer litter",Criminal Procedure and Sentencing,General exceptions,Elements of crime,Mentally disordered offenders,Whether accused person suffering from serious mental condition, but certified to be of sound mind, exonerated under Penal Code,Penal Code (Cap 224, 1985 Rev Ed) s 336,Whether trial judge entitled to reject conclusion of expert witnesses on issue of mens rea,Whether accused person suffering from serious mental condition was capable of possessing mens rea of rashness,Rashness,Expert evidence,Admissibility of evidence,Evidence,Sentencing,Whether custodial sentence appropriate,Unsoundness of mind,Weight of deterrent element in sentencing,Criminal Law
• Docket Number: Magistrate's Appeal No 314 of 2002
• Published date: 03 October 2003
• Defendant Counsel: David Chew Siong Tai (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Shashi Nathan and Cho Peilin (Harry Elias Partnership)

1 The appellant was convicted in the magistrate’s court for an offence under s 336 of the Penal Code and was sentenced to two months’ imprisonment. She appealed against both conviction and sentence. I dismissed the appeal against conviction but allowed the appeal against sentence in part. I set aside the imprisonment term and substituted it with a fine of $250. I now give my reasons.

Facts

2 The appellant is a 42 year-old female who claimed trial to the following charge:

You, … are charged that you on the 26th day of February, 2002 at or about 6.30 pm at Blk 52 Bayshore Road #07-05, Singapore, did a certain act, to wit, by throwing down from your unit #07-05, 5 video tapes in a box, 5 bottles of protein powder, two pillows, one dumbbell weighing 3LB, one hanger, one glass, some clothing, new year decorations, few VCD’s, two small soft toys, a pair of slippers, two large hangers and a few magazines, which act was so rash as to endanger human life and you have thereby committed an offence punishable under Section 336 of the Penal Code, Chapter 224.

3 The actus reus of the offence was not in dispute. At the trial below, the only issue was whether the appellant possessed the requisite mens rea of rashness for the offence.

Testimony of the complainant Eugene Tan

4 The complainant was one Eugene Tan Thiam Hee (‘Eugene’). At the material time, he was the property manager of Bayshore Park condominium. On the evening of 26 February 2002, Eugene was informed that someone was throwing things from a unit at one of the blocks. When he went to the scene, he saw things being thrown down from the seventh floor of that block. Subsequently, Eugene went up to the seventh floor. After ascertaining that the items were being thrown down from unit 07-05, he knocked on the door of the unit. Initially, there was no reply. He testified that at that point he could hear shouting inside the apartment, but he could not ascertain what the shouting was about.

5 Then the appellant answered the door. She repeatedly told Eugene that she was cleaning the house. Eugene told her that, even though she was cleaning the house, she should not be throwing things down. To Eugene, the appellant appeared to be very agitated and was speaking very fast. He also testified that, even though he had heard shouting, there was no one in the apartment with the appellant. Under cross-examination, Eugene said that, in his lay opinion, there was ‘something wrong’ with the appellant.

6 Eugene then went into the neighbouring unit where he was told by the appellant’s neighbours that they were trying to contact the appellant’s husband who was overseas. Eugene testified that whilst he was in the neighbour’s unit, he continued to hear shouting from the appellant’s unit. He also testified that by communicating with the security guards downstairs through a walkie-talkie, he knew that more items were being thrown from the appellant’s unit.

7 Eugene eventually called the police and the appellant was arrested. After her arrest, the appellant was sent to the Institute of Mental Health (‘IMH’) the next day (27 February 2002) and was discharged nine days later on 8 March 2002.

The appellant’s evidence

8 At the trial below, the appellant elected to give evidence. Under examination-in-chief, she raised the following as events leading up to the day of the incident:

(a) Her younger sister was diagnosed with leukaemia in September 2001 and she had been making frequent trips to Hong Kong to visit her sister (her sister eventually passed away in August 2002);

(b) She was experiencing stress from her work; and

(c) In January 2002, her husband had to undergo an emergency circumcision operation because of an infection and this operation was not successful, resulting in the husband suffering from pain and frequent bleeding. The relationship with her husband also became strained.

9 She testified that on the day of the incident, she sent her husband to the airport when he left for a business trip to the United States. Thereafter, her testimony did not adhere to a coherent timeline. She made the following points about what happened on the day of the incident:

(a) She went to the two hospitals that had treated her husband with the aim of lodging complaints against their poor service;

(b) She then proceeded to the Television Corporation of Singapore at Caldecott Hill in an attempt to purchase air time to express her grievance to the public about the state of the health care system in Singapore;

(c) She gave out $50 notes (with her name and date written on the notes) to taxi drivers, passers-by and the security guard at her condominium because she wanted to do good deeds so that her husband could come back safely;

(d) She intended to go to Hong Kong to visit her sister but her mother-in-law suggested that she should go to the United States to join her husband. So, she started packing to go to the United States;

(e) Her neighbour, one Mrs Wong, came to visit her with a friend and tried to evangelize her. She recalled that she was very angry, agitated, confused and wanted them to leave;

(f) She had two friends visiting her and she asked them to help her to pack for her impending trip; and

(g) She thought she was her younger sister who was ill and throwing tantrums at that time and that she imagined herself being her little sister and started throwing a tantrum in the house.

10 She testified that after her arrest she thought she was talking to Mr Lee Kuan Yew when she was in police custody. She also testified that when she was in the patrol car, she thought she was on a flight to Hong Kong. She thought that there was a camera shooting at her when she was being questioned by the police. When she was in the IMH subsequently, she thought she was in the labour room, waiting for her sister-in-law to give birth.

11 In her examination-in-chief, she repeatedly said that she could not remember why she threw the things down. This was largely her stance under cross-examination as well. However, this was undermined by one important part of her examination-in-chief where she stated:

At the material time, I did not have any intention to hurt anybody. I did not have any intention to throw these items down and to injury anybody. The fact was that these things landed on the ground. I suspect that I was my younger sister at that time. She was ill and throwing tantrums. I tried to recall what had happened. I thought I was my younger sister. I threw the things down to show Mrs Wong that I was helpless at that time. I had no intention to hurt anybody. I was very irritated when Mrs Wong visited me. (emphasis added)

Evidence from prosecution witness Dr Tommy Tan

12 Two psychiatrists were called to give evidence at the trial below. The prosecution’s witness, one Dr Tommy Tan (‘Dr Tan’), was the consultant psychiatrist at the IMH who had been treating the appellant since her admission. Dr Tan testified that at the time of the incident, the appellant was suffering from a condition known as hypomania or more commonly known to a lay person as a nervous breakdown.

13 In his letter to the Investigation Officer (‘the first letter’), Dr Tan stated that the appellant had been mentally unwell for a few weeks before she was admitted to the IMH. More importantly, he added that “she [the appellant] knew what she was doing but she did not appreciate the consequences of her action then.” In another letter from Dr Tan to the appellant’s former solicitor (‘the second letter’), Dr Tan wrote:

She was mentally unwell when she threw the several objects out of her house. However, she was not of unsound mind in the strict legal sense. Although she knew what she was doing, she was unable to control her actions then and did not appreciate the consequences of her actions.

14 In a subsequent letter to the appellant’s former solicitor (‘the third letter’), Dr Tan stated that the appellant’s condition had progressed to one of depression. He also stated, that if she is imprisoned, her depression may worsen.

15 Under cross-examination, Dr Tan gave the following testimony:

Q: You said that she knew what she was doing but she did not fully appreciate the consequences of her actions?

A: Yes.

Q: When she was throwing things out of her window, she was conscious of doing it?

A: Yes. […]

Q: Could she at that time, realise that what she was doing was dangerous and could hurt other people?

A: Yes, she could have. […]

Q: The charge she is facing is one of doing a rash act so as to endanger life […] Could you tell if she acted in a rash manner?

A: Not in my opinion. By your definition, it would suggest a person has some degree of control over herself. A person could choose or choose not to commit the rash act. In her case, she had no control over herself at all. [emphasis added]

16 In the first letter, Dr Tan stated that in his opinion, the appellant did not appreciate the consequences of her action then. However, at trial, Dr Tan testified that in his opinion, she did not fully appreciate the consequences of her action at that time. Under re-examination, Dr Tan gave the following clarification of what he meant when he added the word ‘fully’:

Q: Earlier on, you added that she did not fully appreciate?

A: She might have known what consequences. Because of her mental state, she might have realised the consequences. At the same time, she might not have realised the consequences. That was why I amended my report to ‘fully’.

Evidence from defence witness Dr Lim Yun Chin

17 The other psychiatrist who gave evidence was one Dr Lim Yun Chin (‘Dr Lim’) who was a defence witness. Dr Lim concurred with Dr Tan that the appellant was suffering from hypomania. He was of the opinion that at the time when she threw the things down, she could not form an intent for her behaviour because of her illness. Under cross-examination, Dr Lim also testified that the appellant was incapable of understanding her behaviour at the moment when it took place. Further, he...