PP v Firdaus bin Abdullah

• Jurisdiction: Singapore
• Judgment Date: 17 March 2010
• Date: 17 March 2010
• Docket Number: Magistrate's Appeal No 144 of 2009
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Firdaus bin Abdullah

Defendant

[2010] SGHC 86

Chan Sek Keong CJ

Magistrate's Appeal No 144 of 2009

High Court

Criminal Procedure and Sentencing—Sentencing—Accused voluntarily caused grievous hurt leading to victim's death—Attack on child's genitalia—Ill-treatment of child under s 5 (5) (b)Children and Young Persons Act (Cap 38, 2001 Rev Ed)—Whether sentence manifestly inadequate—Whether maximum sentence should be imposed—Whether one transaction rule applied

The respondent cohabited with the biological mother of the victim, a three-year-old child (“the child”). He was responsible for taking care of the child when the child's mother was not around. On 12 January 2008, the respondent punched the child on the back of his head in a fit of anger over the child's persistent crying. Two days later, the child again cried persistently when his mother left him alone with the respondent in the flat. The respondent made several attempts at placating the child but to no avail. Enraged, the respondent began slapping and shouting at the child. When the child continued to cry, the respondent punched the child in the face several times before slamming the child into the wall. The respondent continued to hit the child on the back until he eventually stopped crying. At this point, the respondent took the child into the bedroom and pulled out the child's genitalia. The respondent proceeded to shake, grab and bite the child's genitals, stomach and nose. Following the assault, the child was taken to the hospital by an ambulance where the attending doctor found multiple injuries of various ages on the child's face, head, trunk, limbs, abdomen, genitalia and back. The child died four days later of bleeding over the surface of the brain, or intracranial haemorrhage. The autopsy report showed a total of 31 injuries to the child.

After an eight-day trial, the district judge convicted the respondent of three charges. The first charge was for voluntarily causing grievous hurt by causing the child to sustain a head injury of intracranial haemorrhage which endangered his life, an offence punishable under s 325 of the Penal Code (Cap 224, 1985 Rev Ed) which prescribed a maximum sentence of seven years' imprisonment and a fine or caning. The respondent was sentenced to six years' imprisonment and 12 strokes of the cane. The second charge was for ill-treating the child by punching the child in the head with great force on 12 January 2008, while the third charge was for ill-treating the child by grabbing, shaking and biting the child's genitalia, both punishable under s 5 (5) (b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) which prescribed a maximum punishment of a fine up to $4,000 or four years' imprisonment or both. The respondent was sentenced to one year's imprisonment for each of the second and third charges. The districtjudge ordered the sentences for the first and third charges to run concurrently on the basis that it fell within the “one transaction” rule, but the sentence for the second charge to run consecutively. In total, the respondent was sentenced to seven years' imprisonment and 12 strokes of the cane. The Prosecution appealed on the basis that the sentences imposed were manifestly inadequate.

Held, allowing the appeal:

(1) The respondent was supposed to be the care-giver and guardian of the child in the absence of the child's biological mother, yet he repeatedly attacked the child, causing an injury which led to the child's death. There were no mitigating factors such as mental retardation or a plea of guilt. The respondent should be sentenced to the maximum sentence under the first charge because this case fell within the worst category of cases of causing grievous hurt: at [21] and [22].

(2) The sentence imposed for the second charge, namely, the respondent's punching of the child, was not manifestly inadequate as it was a one-off instance of abuse. However, the respondent's shaking, grabbing and biting of the child's private parts was an especially perverse form of child abuse given the vulnerability of a child's genital area. The respondent should be sentenced to the maximum sentence for the third charge because his conduct revealed a senseless brutality which was one of the worst cases of its kind: at [24] and [25].

(3) The “one transaction” rule was not a rigid rule; it was a pragmatic device to limiting the overall sentence rather than a reflection of a sharp category distinction. In that sense it was really another way of formulating the totality principle. Both principles were guides to whether the court should impose consecutive or concurrent sentences when the same offender committed a plurality of offences. A related principle was that the overall sentence should reflect the offender's role and culpability in the incident as a whole rather than for each offence: at [27] and [28].

(4) While the conduct forming the first and third charges were close in time and similar in nature, they were nonetheless distinct offences because they arose from different facts. The first charge concerned acts which endangered the child's life eventually leading to his death while the third charge concerned the separate injuries to the child's genitalia. The child had stopped crying after being hit on the head and there was no fresh grievance which could have sparked off the respondent's subsequent attack on the child's genitalia. Therefore, at the moment the respondent failed to stop, his subsequent actions should not be viewed as part of the same set of facts. Moreover, characterising the respondent's actions as one transaction would be a disincentive to a similar offender in the same position because such further attack would not attract a further imprisonment term. In any case, even if the offences appeared to be part of the same transaction, the numerous grave and perverse injuries inflicted on the child over a period of time justified the imposition of consecutive rather than concurrent sentences: at [35] to [38].

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

Cindy Chandra v PPMA 293/1996 (refd)

Jeffery bin Abdullah v PP [2009] 3 SLR (R) 414; [2009] 3 SLR 414 (refd)

Kanagasuntharam v PP [1991] 2 SLR (R) 874; [1992] 1 SLR 81 (refd)

Mohamad Iskandar bin Basri v PP [2006] 4 SLR (R) 440; [2006] 4 SLR 440 (distd)

Mohd Iskandar bin Abdullah v PPMA 187/1998 (refd)

PP v Fazely bin Rahmat [2003] 2 SLR (R) 184; [2003] 2 SLR 184 (refd)

PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (refd)

PP v Lee Cheow Loong Charles [2008] 4 SLR (R) 961; [2008] 4 SLR 961 (refd)

PP v Rosnani bte IsmailDAC 19936/2000 (distd)

PP v Tan Meow EngDAC 25526/1997 (refd)

PP v Teo Chee Seng [2005] 3 SLR (R) 250; [2005] 3 SLR 250 (refd)

Purwanti Parji v PP [2005] 2 SLR (R) 220; [2005] 2 SLR 220 (refd)

R v Peter John Kastercum (1972) 56 Cr App R 298 (refd)

R v Torr [1966] 1 WLR 52; [1966] 1 All ER 178 (refd)

Sim Gek Yong v PP [1995] 1 SLR (R) 185; [1995] 1 SLR 537 (refd)

Subagio Soeharto v PPMA 505/1993 (refd)

Tse Po Chung Nathan v PP [1993] 1 SLR (R) 308; [1993] 1 SLR 961 (refd)

V Murugesan v PP [2006] 1 SLR (R) 388; [2006] 1 SLR 388 (distd)

Yap Seow Cheng v PP [2002] SGDC 261 (refd)

Children and Young Persons Act (Cap 38, 2001 Rev Ed) ss 5 (1) ,5 (5) (b)

Criminal Procedure Code (Cap 68,1985 Rev Ed) s 18

Penal Code (Cap 224,1985 Rev Ed) ss 325, 326

Lau Wing Yum and Chan Huimin (Attorney-General's Chambers) for the appellant

Derek Kang Yu Hsien (Rodyk & Davidson LLP) for the respondent.

Chan Sek Keong CJ

1 This was an appeal by the Prosecution against the sentences imposed by the district judge (“the District Judge”) on the respondent for three offences for which he was convicted on 19 May 2009.

2 The first charge, DAC 40614/2008, was for voluntarily causing grievous hurt to a three-year-old boy (“the child”) on 14 January 2008, punishable under s 325 of the Penal Code (Cap 224, 1985 Rev Ed), by causing the child to sustain head injury of intracranial haemorrhage which endangered his life. In fact, the child died from this injury. Prior to the 2007 amendments to the Penal Code which came into effect on 1 February 2008 (ie, after the date of the offence), the prescribed punishment for this offence was imprisonment for a term which might extend to seven years and a fineor caning. The respondent was sentenced to six years' imprisonment and 12 strokes of the cane on this charge.

3 The second charge, DAC 40615/2008, was for ill-treating the child by punching the child in the head with great force on 12 January 2008, an offence under s 5 (1) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“the CYPA”) and punishable under s 5 (5) (b) of the same. The prescribed punishment for this offence was a fine of up to $4,000 or imprisonment for a term not exceeding four years or to both. The respondent was sentenced to one year's imprisonment on this charge.

4 The third charge, DAC 40616/2008, was also under s 5 (1) of the CYPA and punishable under s 5 (5) (b) of the same, and was for ill-treating the child by grabbing, shaking and biting the child's penis and scrotum on 14 January 2008. The respondent was sentenced to one year's imprisonment for this charge.

5 The District Judge ordered the sentences for the first and third charges to run concurrently but the sentence for the second charge to run consecutively. Thus, in total, the respondent was sentenced to seven years' imprisonment and 12 strokes of the cane. The Prosecution was dissatisfied with the sentences imposed and appealed on the ground that they were manifestly inadequate. I allowed the appeal in part on 6 October 2009 and now give my reasons for doing so.

Background facts

6 The respondent was a 27-year-old Singapore citizen with no prior criminal record. The child was born on 14 January 2005. His biological father abandoned...