PP v Ong Chee Heng

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 28 August 2017
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9303 of 2016
• Date: 28 August 2017

Public Prosecutor

and

Ong Chee Heng

[2017] SGHC 213

Chao Hick Tin JA

Magistrate's Appeal No 9303 of 2016

High Court

Criminal Procedure and Sentencing — Sentencing — Appeals — Respondent was off-duty manager of pub — Respondent's friend punching and elbowing victim in smoking room of pub — Respondent also throwing several punches at victim but without himself causing substantial injury — Possibility of blindness in victim's eye as a result of assault — Whether custodial threshold crossed in relation to respondent — Whether, and if so when, group element would be aggravating factor in sentencing — Whether district judge failed to take into account respondent's responsibilities as manager and assault of victim in public place — Whether respondent should be given credit for guilty plea — Section 323 Penal Code (Cap 224, 2008 Rev Ed)

The respondent was a manager at a pub where the victim was drinking with a group of friends. One of the victim's friends got into a dispute with Mr Freddy Lee, the respondent's friend. The victim intervened and suggested to Mr Lee that they go to the smoking room of the pub to resolve their dispute. The respondent entered the smoking room after them. While they were in the smoking room, Mr Lee directed a flurry of punches at the victim's head or face. The respondent also threw a punch at the victim, although it was not clear if the punch landed. The victim was floored by one of Mr Lee's blows. The respondent tugged at the back of Mr Lee's shirt in a futile attempt to pull Mr Lee away from the victim. Mr Lee then forcefully punched the victim again, causing the victim to once again fall onto the floor. The victim's wife intervened by pushing Mr Lee away from the victim. At this time, the respondent simply continued to smoke his cigarette. The victim was eventually ushered out of the smoking room by a patron of the pub, although the victim's wife remained there.

The respondent and Mr Lee left the smoking room shortly thereafter. Realising that his wife was still in the room, the victim returned and went to tend to her. The respondent and Mr Lee later re-entered the smoking room. The victim did not turn his attention to them, continuing instead to tend to his wife. The respondent punched the victim once on the face, causing him to reel backwards and fall onto the floor. The respondent and Mr Lee then pointed repeatedly at the victim. The victim attempted to get back onto his feet, but Mr Lee elbowed him. The respondent threw another punch at the victim and that blow appeared to have landed. He swung at the victim several more times but there did not seem to be any further impact. Mr Lee sought to hit the victim with a chair but was separated from the victim by other patrons. The victim was then ushered out of the smoking room again by those patrons.

The victim sustained permanent damage to his right eye structures as a result of the assault. He would require follow-up treatment for at least two years if his condition stabilised, as well as other surgical procedures. As his right eye pressure was very low, there was a possibility of that eye shrinking, leading possibly to blindness.

The respondent and Mr Lee each pleaded guilty to separate charges for voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). A district judge (“the DJ”) sentenced Mr Lee to 20 weeks' imprisonment but merely imposed a fine of $4,000 on the respondent. The Prosecution appealed against the imposition of a fine on the respondent, arguing that a custodial sentence of between three and four weeks was warranted.

Held, allowing the appeal and sentencing the respondent to two weeks' imprisonment:

(1) The sentencing court ought to have careful regard to the facts and circumstances of a given case in determining whether there was in existence a group element and, if so, whether that element aggravated or had the potential to aggravate the offence committed. The court had to consider, for instance, whether the fact that more than one offender was present (a) resulted in a higher degree or a greater likelihood of fear to the victim; (b) had the effect of encouraging, facilitating or perpetuating the continued commission or escalation of the offence; and/or (c) resulted in a higher degree of actual and potential harm to the victim: at [34].

(2) The mere fact that there was a group element in the facts and circumstances of the offence did not mean that the commission of the offence was necessarily aggravated. The court had to determine whether the existence of the group element had, in point of fact, the effect of elevating the fear, harm or other aggravating characteristics of the offence. In a case where the offender had not even been charged with a common intention or common object offence, the court had to first satisfy itself that there was in fact a group element to the criminal conduct, before considering how the existence of such an element served to aggravate the commission of the offence (if at all): at [36].

(3) The respondent's attempt, at the start of the altercation, to throw a punch at the victim was aggravating. Although it was not clear if the punch actually landed, this was a clear demonstration of antagonism and likely had the effect of generating greater animosity towards the victim and encouraging Mr Lee to continue his attack. The DJ therefore erred in finding that the respondent did not participate in the assault when Mr Lee was first attacking the victim: at [38].

(4) The respondent's attempt to pull Mr Lee from the victim was cursory at best and not of any mitigating value. His general nonchalance was also reflected in the fact that he generally stood around smoking his cigarette while Mr Lee persisted in his assault on the victim: at [38].

(5) It was clear by the time of the second assault that both Mr Lee and the respondent were seeking to cause hurt to the victim. This was demonstrated by the fact that both of them pointed repeatedly at the victim while he was on the floor, indicating their ill intent towards the victim: at [39].

(6) The DJ did not appear to take into account the fact that the respondent's behaviour in all likelihood served to encourage Mr Lee in continuing his violence towards the victim. The victim had to fend off two attackers and this undoubtedly also enhanced the fear and helplessness he felt. The DJ's approach did not adequately reflect the gravity of the respondent's acts even though his punches per se did not cause serious hurt to the victim: at [40].

(7) The respondent's attack on the victim appeared, to all intents and purposes, to be unprovoked. In addition, the respondent was an off-duty manager of the pub and therefore should have acted as a peacemaker instead of fanning the flames of violence. His actions also had to be seen in the light of the fact that the victim was a patron of the pub. This was an important aggravating factor which the DJ did not appear to have taken into account: at [41] and [42].

(8) The fact that an offence – particularly a violence-related offence – was committed in a public place would be an aggravating factor if it caused public fear and alarm, and/or if it posed a threat to the health and safety of the public. What was required was an assessment as to whether, on the facts and circumstances of the case, and having regard to the nature of the offence committed, the conduct of the accused had the potential to cause fear and alarm and/or to pose a danger to the public given the particular location at which it occurred. The fact that an offender chose to commit the offence in a public place was also a factor that might enhance his culpability in so far as it demonstrated the brazenness of his conduct and his blatant disregard for law and order: at [45].

(9) The commission of the offence in a public place such as the pub was a clear aggravating factor. There were several other patrons in the smoking room at the time the altercation occurred: at [46].

(10) The evidence against the respondent was of such a quality and extent as to make it implausible that the respondent would be able to deny the charge with any credibility. His claim in mitigation, that all he had desired to do was to prevent the victim from “call[ing] people down” and to make him leave the premises, was thoroughly implausible. The DJ should have found that, in seeking to shift the blame for his actions onto the very person on whom he inflicted physical harm, the respondent demonstrated little to no remorse for his actions. Therefore the respondent should not be given much, if any, credit for his guilty plea: at [48] and [49].

(11) In the circumstances, the custodial threshold was crossed. Chief among the aggravating factors was that the respondent had not carried out his attack on the victim in isolation but had done so alongside Mr Lee, and their respective conduct had the effect of reinforcing and strengthening each other's antagonism towards the victim. A custodial sentence was necessary both in the interests of deterrence as well as retribution: at [50].

(12) A custodial sentence of two weeks' imprisonment was apposite. It suitably reflected the respondent's culpability given his participation in an ongoing violent assault, as well as the opportunistic manner in which he attacked the victim and his added culpability of not acting responsibly as an off-duty manager of the pub. If there had been medical evidence to show that the respondent's actions contributed in any substantial degree to the injuries suffered by the victim, the custodial term would have been enhanced beyond two weeks' imprisonment: at [60].

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

Biplob Hossain Younus Akan v PP [2011] 3 SLR 217 (refd)

Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334; [2003] 2 SLR 334 (refd)

Koh Jing Kwang v PP [2015] 1 SLR 7 (refd)

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