Public Prosecutor v Soh Song Soon

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 03 November 2009
• Neutral Citation: [2009] SGHC 249
• Docket Number: Criminal Case No 25 of 2009
• Date: 03 November 2009
• Published date: 03 November 2009
• Year: 2009
• Plaintiff Counsel: Shahla Iqbal and Wynn Wong (Deputy Public Prosecutors)
• Citation: [2009] SGHC 249
• Defendant Counsel: Simon Tan Hiang Teck (Attorneys Inc LLC)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Mitigation

3 November 2009 Judgment reserved.

Choo Han Teck J:

1 The accused pleaded guilty to four charges of sexual assault on a 12-year old boy. Two charges were under s 376A(1)(a) and the other two were under s 376A(1)(c) of the Penal Code (Cap 224, 2008 Rev Ed). He was 68 years old at the time of the offence. In two of the charges he committed fellatio on the boy and in the other two he made the boy commit fellatio on him. 11 other similar charges, all concerning the same boy and committed during the same period of time, namely, July to August 2008, were taken into account for the purposes of sentencing. The offences fall into two categories. The learned Deputy Public Prosecutor (“DPP”) did not, and was not, obliged to explain why the prosecution proceeded with four and not two charges in such circumstances. The information leading to the arrest was given by a neighbour who lived in the flat opposite the accused’s flat. She saw him walking naked in his flat and called the police. The police found the boy in his flat when they investigated the complaint. The accused first met the boy in August 2007 at a carnival where the accused was performing as a magician. The boy wanted to learn the art of a magician from the accused and was given permission by his father to do so. The boy would go to the accused’s flat on Saturdays and Sundays and would sometimes stay overnight at the accused’s flat over the weekend. The boy grew close to the accused and addressed him as “godfather”.

2 In mitigation, Mr Simon Tan, counsel for the accused adduced evidence by way of a medical report from Dr Paul Ngui (“Dr Ngui”), a consultant psychiatrist, which stated that the accused suffered from a Stress Disorder prior to his arrest. In response, the DPP applied for a Newton hearing. Dr Lim Boon Leng (“Dr Lim”), the psychiatrist called by the prosecution, was a professional witness but not an expert witness. He told the court that he became a qualified psychiatrist in 2006. Dr Ngui was also not called as an expert witness in this case although he seemed qualified to be one. Dr Lim testified that having examined the accused on two occasions after his arrest and having reviewed the nursing notes, he was of the opinion that the accused did not suffer from any mental illness. His report dated 9 September 2008 was prepared to indicate that the accused was fit to plead; it was not specifically prepared in rebuttal of Dr Ngui’s report, which was dated 28 November 2008. The Newton hearing in this case could have been averted. The point that Mr Tan wanted to make was that the accused was going through a period of emotional stress because his son had informed him that he (the son) was emigrating to Canada. The accused had been very close to his son, and feared that when his son left, he might be forced to live in a home for the aged. In support of this, counsel adduced Dr Ngui’s medical report of 28 November 2008 (exhibit D1) which stated that the accused was suffering from a Stress Disorder. The relevant passage stated that the accused person’s “pre-existing Stress Disorder is a strong contributory factor to his reduced impulse-control when he committed his offence.” I think that the defence adduced Dr Ngui’s medical opinion in abundance of caution and, perhaps, consequently presented a mitigation that the DPP perceived as possibly carrying undue weight. That led to the DPP’s application for the Newton hearing.

3 A Newton hearing takes its name from the case of R v Robert John Newton (1982) 4 Cr App R(S) 388 (“Newton”). The appellant in Newton pleaded guilty to sodomising his wife. In mitigation his counsel stated that the wife had consented to the act, which, if true, would have resulted in a much lower sentence. The prosecution did not accept that the wife had consented. The sentencing court after hearing submissions from both sides, sentenced the appellant to eight years’ imprisonment. The Lord Chief Justice Lane (delivering the judgment of the appeal court) held that a sentencing court has three options when dealing with a divergence of facts between the mitigation and the prosecution’s case. The first option is not relevant in non-jury trials - so I shall only refer to the other two. The second option was that the court may hear evidence from both sides and decide the fact for himself (this was to become known as a “Newton hearing”) and thirdly, he could just hear submissions of counsel and come to a conclusion. The third option had been the conventional and predominant procedure prior to sentencing. It will be appreciated that a Newton hearing should be the exception and not the rule. In the case of sentencing after trial, there would usually be little dispute of fact, so a Newton hearing would, if required, arise in cases where the accused has pleaded guilty. The courts traditionally grant indulgence to the accused, and if the accused is represented, his counsel, to make a speech in mitigation of the offence. All sorts of claims are made by or on behalf of the accused in mitigation. Some would be obviously unmeritorious whilst some may be relevant. The court would normally have little difficulty deciding how much weight if any it would give to the...