Public Prosecutor v Siow Kai Yuan Terence

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 April 2020
• Neutral Citation: [2020] SGHC 82
• Plaintiff Counsel: Kristy Tan, Gail Wong and Benedict Chan Wei Qi (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 9232 of 2019/01
• Date: 27 April 2020
• Hearing Date: 10 March 2020,30 March 2020
• Subject Matter: Sentencing,Adult offenders,Extremely strong propensity for reform,Criminal Procedure and Sentencing
• Published date: 30 April 2020
• Defendant Counsel: Raphael Louis (Ray Louis Law Corporation)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 82
• Year: 2020

Sundaresh Menon CJ: Introduction

The aim of criminal justice, subject to some exceptions, is ultimately to secure the rehabilitation, reform and reintegration into society of all offenders, without undermining broader societal goals of preserving law and order. This objective guides sentencing judges when they consider the range of sentencing options at their disposal in a given case. To that end, sentencing judges may consider a variety of considerations and assess which have pre-eminence in a given case. In some instances, the judge might conclude that what will work best for the particular offender before her, without undermining those broader societal goals, is a sentence that minimises the disruption to the offender’s life, such as probation. In many, if not most, instances, the judge will conclude that a dose of deterrence is called for, directed not only at the offender at hand, but also to other like-minded would-be offenders. Such sentences may also secure retributive ends. In each case, the judge must examine the circumstances of the offence and the relevant characteristics and background of the offender. But in considering those characteristics and that background, the court is never concerned with the offender’s social status, wealth or other indicia of privilege and position in society. Justice exists for all and no judge worthy of the office would ever consider it appropriate to pass a sentence based on such extraneous considerations. A judge is bound by her Oath of Office to do right to all manner of people after the laws and usages of the Republic of Singapore without fear or favour, affection or ill-will to the best of her ability, as well as to preserve, protect and defend the Constitution of the Republic of Singapore. Yet, although judges endeavour to explain their decisions with care and attention to detail, it can sometimes be the case that those who read their judgments overlook the nature of this quintessential judicial mission. That mission is premised on objective and relevant legal criteria, and its ultimate aim (in the context of sentencing) is to balance a myriad of factors, which are often in tension with each other.

The present case concerned an offender who outraged the modesty of a victim while using the public transport network. He was, and remains, a university undergraduate with a seemingly bright future. The learned District Judge (“DJ”) sentenced him to probation and rejected the Prosecution’s submission for a six-week custodial sentence. The DJ explained her decision in a judgment spanning 16 pages. Among the principal factors she took into account in preferring a non-custodial sentence were the relative gravity (or lack thereof) of the offences committed and the fact that because of the offender’s academic record and potential, the chances were high that he could be successfully rehabilitated.

In doing this, the DJ was not adopting an approach that was unprincipled. Nor was it especially remarkable. She was certainly not suggesting that undergraduates were a privileged class immune from the usual consequences visited upon those who break the law. Unfortunately, that is how some have interpreted her decision. This is regrettable, to say the least, because there are few things more corrosive of the legitimacy of the judiciary, upon which the justice system is founded, than the perception that it is stacked in favour of any individual or class. And, that is especially regrettable, where, as is the case here, it is wholly without basis.

On the same day I heard this appeal, I also dealt with the appeal of one Abdul Qayyum bin Abdul Razak, who was not a graduate, but a young offender raising four children and struggling to turn his life around. I sentenced Abdul Qayyum to a community-based sentencing regime and dismissed the Prosecution’s submission that he should be incarcerated for at least three months (see Public Prosecutor v Abdul Qayyum bin Abdul Razak and another appeal [2020] SGHC 57 (“Abdul Qayyum”)). That case did not attract any public comment or media interest, which is unsurprising, but for the contrast with the media interest in the arguments made in this appeal, minutes after I had given my decision in Abdul Qayyum. Each and every day, judges in our courts dispense sentences that are ultimately directed at doing justice, advancing law and order, and securing the best chances of rehabilitating and reintegrating offenders into society. Both the case at hand and Abdul Qayyum are relevant to the broader point that the rehabilitative goals of the criminal justice system are indifferent to the economic, educational or other status of those who come before us. Unfortunately, the different ways in which these cases are viewed or reported in the public space can influence public perceptions and result in regrettable and avoidable misconceptions, when broader points, such as the nature of the judicial mission and task, are overlooked or ignored.

On the specific relevance of an offender’s educational background, I can do no better than to refer to these observations of Steven Chong JA in Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 (“Praveen”) at [45]:

[T]he quest for academic qualifications is merely one indicator of rehabilitative capacity. Although it usually helps that young offenders are good students as it stands them in better stead and fortifies their chances of reform…, the issue is not ultimately whether the offender is academically promising. Rather, the relevant question is whether he has demonstrated a positive desire to change and whether there were conditions in his life that were conducive to helping him turn over a new leaf. In this regard…, scholastic mediocrity or the fact that the offender is no longer in school should not be reasons by themselves to conclude that the offender is incapable of rehabilitation. Other avenues, such as vocational training or employment, would also be pertinent in assessing the offender’s prospect for reform. [emphasis in original]

The question in each case is ultimately the same: what is the most appropriate sentence that fits the circumstances of the particular offender and the particular offence before the court. As I have already noted, judges are there to balance considerations that can, and often do, pull in different directions, in an endeavour to reach what they hope will be the right answer in each case. But, in seeking that answer, the social status of the offender is invariably irrelevant because in the eyes of the law, all are equal before it.

Facts

The facts in this matter are relatively simple and not in dispute. Terence Siow Kai Yuan (“the Respondent”) was 22 years of age when he saw the victim taking a seat on the train. He decided to sit beside her and, feeling an urge, used his left hand to touch the side of the victim’s right thigh. The victim shifted away from the Respondent, and crossed her right thigh over her left leg. Undeterred, the Respondent again used his left hand to touch the side of the victim’s right thigh.

The victim then moved one seat away from the Respondent. When she alighted at her station, the Respondent alighted with her. It is not disputed that this was not done with a view to stalking the victim as the Respondent had intended to alight at the station in any event.¹

After alighting, the Respondent followed the victim. Again, he felt the urge to touch her. While they were ascending the escalator, he stood behind the victim and used his finger to touch her buttocks over her shorts.

The victim immediately turned around and saw the Respondent. She shouted at him, and he quickly walked towards the control station. The victim then informed the station officer that she had been molested, pointing to the Respondent. Meanwhile, the Respondent hastened to the exit and left the station. The police were notified, and the victim duly made a police report.

Following investigations, the Respondent was arrested and eventually charged with offences arising out of these acts against the victim. By the time he entered his plea, the Respondent was 23 years of age. He pleaded guilty to one charge of outraging the victim’s modesty by touching her buttocks over her shorts with his finger while on the public transport network (“the proceeded charge”). He consented to two other charges, concerning his touching of the victim’s thigh, being taken into consideration for the purpose of sentencing (“the TIC charges”). At the time of sentencing, the Respondent was untraced.

Conduct of proceedings below

In her submissions on sentence, the learned Deputy Public Prosecutor Deborah Lee (“DPP Lee”) sought a custodial term of at least six weeks’ imprisonment. This was arrived at by the application of the offence-specific and offender-specific factors that were identified in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) (at [45]), being factors that are relevant when sentencing for outrage of modesty offences under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). In DPP Lee’s view, the present case fell within the higher end of Band 1 of the Kunasekaran framework.

In mitigation, counsel for the Respondent, Mr Raphael Louis (“Mr Louis”), made a number of points that can broadly be grouped into three main points: The Respondent was only 22 years old at the time of the offence, which was a year past the age of majority. Mr Louis suggested that in these circumstances, the court should give due consideration to the fact that he was just past the age at which a primarily rehabilitative sentencing option, such as probation, would have been presumptively applied. The Respondent was still in university with a strong academic record and this suggested that he had a strong propensity for reform and rehabilitation. Consideration should be given to avoiding further unnecessary disruption to his...