Public Prosecutor v Chong Hou En

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 16 March 2015
• Neutral Citation: [2015] SGHC 69
• Plaintiff Counsel: Wong Kok Weng and Tang Shangjun (Attorney General's Chambers)
• Docket Number: Magistrate’s Appeal No 290 of 2013
• Date: 16 March 2015
• Hearing Date: 11 April 2014,04 November 2014,27 January 2015,05 November 2014
• Subject Matter: Mentally Disordered Offenders,Criminal Procedure and Sentencing,Sentencing
• Year: 2015
• Citation: [2015] SGHC 69
• Defendant Counsel: Narayanan Vijay Kumar (Vijay and Co)
• Court: High Court (Singapore)
• Published date: 20 March 2015

Chan Seng Onn J: Introduction

This appeal highlights the challenging task faced by the courts when sentencing an offender diagnosed with a psychiatric condition. The condition is insufficient to constitute a full defence to the criminal conduct perpetrated by the accused but is nevertheless relevant when the particular individual is sentenced. The multi-faceted task of tailoring the sentence to the offender becomes further vexed by the complexities of the human mind. It is most certainly an unenviable task.

The respondent, Chong Hou En, a 29-year-old male, pleaded guilty to five charges under s 509 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and a single charge under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) (“Films Act”). The district judge (“the Judge”) was of the view that a probation order was appropriate and ordered accordingly. The Prosecution successfully applied for a stay of sentence and now appeals against the sentence on the ground that it is manifestly inadequate.

The Facts

The respondent admitted without qualification to the following facts.¹ The respondent graduated from Royal Melbourne Institute of Technology (Singapore Institute of Management) in 2008 and worked as a labour relations officer. He was arrested on 6 January 2011 at IMM shopping mall at Jurong East Street 21. The respondent had gone to the shopping mall with the purpose of capturing “Up Skirt” videos. To facilitate this, he had purchased a mini-camera costing about $40 from an online store. He attached the mini-camera to the tip of his shoe with Blu-Tack.

The victim and her husband were at the Giant Hypermarket of the same shopping mall. While they were at the Fresh Fruits section, the respondent came up from behind the victim and placed his foot underneath the skirt of the victim in order to film an “Up Skirt” video. The respondent attempted to flee the scene after he was noticed by the husband of the victim. He was detained by the victim’s husband with the help of a passer-by after a brief struggle. He was subsequently arrested by the police.

In the course of investigations, the respondent’s computers, laptops, mobile phone, flash drives, memory cards, hard drive and pinhole cameras were seized. A few thousand videos were found in his computer and hard drive. The Board of Film Censors of the Media Development Authority certified that 10,574 video films were obscene.

Further investigations of his computer equipment also revealed videos of females showering in his girlfriend’s parents’ home. The respondent had, from August 2010, through a series of carefully planned episodes, recorded his girlfriend’s family members in the shower. The respondent knew that they would take a shower once they had switched on the water heater. He would then enter the toilet to place a digital camera (that was cleverly disguised as a lighter to avoid detection) there. After the family members of his girlfriend had finished their showers, the respondent would retrieve the camera and access the videos.

Through these steps, the respondent filmed the older sister of his girlfriend (aged 30 at the time of the offence) and his girlfriend’s two young nieces (aged 12 and ten at the time of the offence). His girlfriend’s sister-in-law (aged 31 at the time of the offence), who was the mother of the two nieces, was also filmed. These obscene videos captured the victims fully nude with moving images of their breasts and vulvas. The respondent would watch these videos and masturbate to them.

The respondent was thus charged and convicted of five counts of insulting the modesty of a woman by intruding upon her privacy under s 509 of the Penal Code with respect to the victim at IMM shopping mall and the four victims in his girlfriend’s parents’ home. He was also charged and convicted of one count of possession of 10,574 obscene films under s 30(1) of the Films Act. The respondent consented to ten other charges of insulting the modesty of a woman under s 509 of the Penal Code and one charge of possession of 578 video films without a valid certificate under s 21(1)(a) of the Films Act to be taken into consideration for sentencing.

The decision of the Judge

The Judge was of the view that the main sentencing consideration should be rehabilitation. Noting that the maximum penalty prescribed was one years’ imprisonment and a fine for an offence under s 509 of the Penal Code and that an offence under s 30(1) of the Films Act brought a maximum punishment of six months’ imprisonment and a $20,000 aggregate fine, the Judge concluded that the offences were not serious offences. The Judge also placed considerable weight on the medical evidence which stated that the accused was suffering from voyeurism. He concluded that deterrence “should not take precedence over rehabilitation as the offender was labouring under a serious psychiatric condition or mental disorder at the time of the incident”.

The Judge also concluded that the aggravating factors highlighted by the Prosecution, which included the use of recording devices, multiple victims including children, premeditation and elaborate planning, and the fact that the private parts of the victims were captured, should “be given little weight in light of the fact that the accused was suffering from a psychiatric condition at the material time.”

According to the Judge, imprisonment would hamper the treatment programme of the respondent. Furthermore, the Judge was persuaded by the “exceptional support” of the respondent’s loved ones, including his girlfriend, whose family had also stood by and forgiven him, and his commitment to secure his own recovery and rehabilitation. The Judge also attached weight to the fact that the respondent had voluntarily undergone treatment for three years and that he had not reoffended since the commission of these offences. The Judge opined that there was no need to punish the respondent further in the light of the fact that he was “currently suffering from significant depressive and anxiety symptomatology” related to the shame and stress from his commission of the offences.

With all of the above factors in mind, the Judge ordered the respondent to undergo 30 months’ split probation (three months’ intensive and 27 months’ supervised) with the following conditions: to undergo psychiatric and psychological follow-up as required by the Institute of Mental Health (“IMH’), psychiatrist Dr Tommy Tan and psychologist, Mr James Tan, and to take medication as prescribed; to attend counselling with a qualified counsellor to address his relationship difficulties with his girlfriend and his parents; to be prohibited from possessing any electronic devices with camera facilities and to be supervised closely when accessing websites; and his parents and girlfriend to be bonded for $5000 to ensure his good behaviour.

Arguments of the parties The appellant’s arguments

In arguing that a custodial sentence is warranted, the Prosecution does not challenge the diagnosis of voyeurism and fetishism. Instead, they argue that the starting point for offences under s 509 of the Penal Code which involve the use of recording devices should be custodial. The Prosecution relies on the case of PP v Tay Beng Guan Albert [2000] 2 SLR(R) 778 (“Albert Tay”) in support of this proposition. I shall return to this case later.

The Prosecution also submits that the severity of the offences and the aggravating factors point towards a strong public interest in imposing a custodial sentence. The Prosecution submits that the learned Judge erred in finding that the offence under s 509 was not a serious offence. The prosecution also highlights the following facts, which it argues are aggravating: there was a high degree of intrusion into the privacy of victims since some victims were recorded fully naked; there were multiple victims; some of the victims were young; a video-camcorder was used; and there was a high degree of planning and premeditation.

The Prosecution also points to an observation that there has been an annual increase in the number of offences under s 509 of the Penal Code (“Dealing with Mentally Ill Offenders”, The Straits Times, (7 July 2012)). The prosecution submits that the offences under s 509 of the Penal Code are a concern to public safety since camera phones are now ubiquitous and it is not uncommon to find miniature cameras disguised as smoke detectors, pens, cigarette lighters, mirror clocks, car alarm key chains or even clothing hooks. A deterrent sentence is therefore warranted to send a stern message to potential offenders.

The Prosecution submits that rehabilitation should not override the other penal objectives of deterrence and retribution. According to the Prosecution, the Judge had placed excessive weight on the causal link between the respondent’s condition of voyeurism and his commission of the offences. The concept of general deterrence should also feature as an important sentencing consideration, while the concept of retribution is also relevant. The Prosecution points out that the intrusion into the privacy of the victims by the respondent was grave. There is also a high degree of culpability displayed by the significant degree of planning and premeditation. Furthermore, some of these offences involved the recording of victims in their very own homes thus violating the safety and security that the victims would expect from being in their own home.

Given all these factors, the Prosecution submits that the sentence of probation is manifestly inadequate and seeks a custodial sentence of more than four weeks’ imprisonment per charge in respect of the offences under s 509 of the Penal Code.

The respondent’s arguments

Counsel for the respondent argues that the Prosecution has failed to show how the sentence of probation, which was imposed after a very careful consideration of all the circumstances of the...