Public Prosecutor v Andrew Koh Weiwen

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 24 May 2016
• Neutral Citation: [2016] SGHC 103
• Court: High Court (Singapore)
• Hearing Date: 01 April 2016
• Docket Number: Magistrate’s Appeal No 9188 of 2015/01
• Plaintiff Counsel: Mohamed Faizal and Ho Lian-Yi (Attorney-General's Chambers)
• Defendant Counsel: Eddie Koh (S H Koh & Co)
• Subject Matter: Criminal Law,Statutory offences,Penal Code,Offences,Hurt,Public safety Criminal Procedure and Sentencing,Sentencing,Principles,Criminal Procedure and Sentencing,Appeal,Plea of guilty,Mitigation
• Published date: 05 August 2016

Chan Seng Onn J: Introduction

This is the Prosecution’s appeal against the sentence of the Respondent in respect of one charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed). Upon his plea of guilt, the Respondent, a 27 year old male Singaporean, was convicted by the District Judge and sentenced to a term of two days’ imprisonment and a fine of $5,000.00 (with four weeks’ imprisonment in default of payment) (see the District Judge’s grounds of decision at Public Prosecutor v Andrew Koh Weiwen [2015] SGMC 33 (the “GD”)).

Although this is a simple offence of voluntarily causing hurt, disputed facts relevant to sentence were inconclusively dealt with at the proceedings below. The admitted Statement of Facts (“SOF”) tendered by the Prosecution provided scant details of the events immediately preceding the physical attack, which allowed room for different versions of facts to emerge. Fortunately, the Prosecution and the Respondent managed to resolve their differences after a short adjournment was granted to them. After considering the submissions of the parties and the precedent cases, I am of the view that the sentence imposed by the District Judge is manifestly inadequate having regard to all the material facts and circumstances of the case. I allow the appeal, and order the Respondent’s sentence to be enhanced to four weeks’ imprisonment instead.

Background The facts

The victim, Mr Lai Yongwen (“Mr Lai”), was waiting for a taxi with two other friends in the early morning at or around 6 am on 6 July 2014 in front of St James Power Station, a nightlife venue along Sentosa Gateway. The Respondent was in the vicinity with a glass bottle of liquor (the “Martell bottle”) after drinking with his friends at a nightclub in the area. The Respondent approached Mr Lai and suddenly hit him on the head with the Martell bottle. The Respondent also elbowed Mr Lai on the nose in the subsequent fracas while Mr Lai was attempting to stop the Respondent from attacking him further. As a result, Mr Lai sought medical treatment at Singapore General Hospital. His medical report dated 30 July 2014 indicated that he had suffered two superficial lacerations: one over the scalp measuring 3 cm, and the other over his nose measuring 0.5 cm.

The Respondent, a first-time offender, pleaded guilty to the offence at an early stage, and had offered compensation to Mr Lai.

The proceedings below

After the Respondent was convicted, the Prosecution addressed the court on sentence and sought a custodial sentence of four weeks’ imprisonment. The Prosecution pointed out that the glass bottle used was a “dangerous weapon” and opined that it was “fortunate that the victim suffered only lacerations” (see [12] of the GD). In the written mitigation plea, it was brought up that counsel for the Respondent was instructed that the Respondent had witnessed a verbal fracas that morning and had seen his friend surrounded by a group of people, before he had joined in to “help his friend” who was being assaulted by the group. He then used the Martell bottle he had to hit Mr Lai. It was not anticipated that the Respondent would be involved in a fight but he “had used the bottle as he was fighting with the group of people”. As a result, the Respondent “suffered facial cuts and bruises to his face and body with blood streaming down from his face”. In response, the Prosecution stated that the scenario painted by the Respondent where he was there to help a friend being assaulted was not borne out by investigation as there was only a verbal fracas with no physical contact between the parties until the Respondent hit Mr Lai with the Martell bottle.

The decision below

The District Judge sentenced the Respondent to a very brief term of imprisonment of only two days and a fine of $5,000.00 (with four weeks’ imprisonment in default of payment). He noted the fact-specificity of sentencing under s 323 of the Penal Code and emphasised the norm that where only minor injuries were caused, the offence was dealt with by the imposition of a fine. The District Judge then proceeded to compare Mr Lai’s injuries (of two superficial lacerations) to the victims’ injuries in five cases under s 323 where only fines were imposed, and concluded that Mr Lai’s injuries were much less serious than the victims’ in those five cases (see [33] of the GD).

The District Judge also noted that (a) Mr Lai was not a “vulnerable victim”; (b) the Respondent did not have a record of violence and was not in a position of authority; (c) the attack was not racially motivated; (d) the Respondent acted on impulse; and (e) there was no provocation (see [31] of the GD). The District Judge inferred genuine remorse on the part of the Respondent, based on his plea of guilt and his offer of compensation to Mr Lai (which was rejected as Mr Lai’s medical expenses were settled by his insurance).

Lastly, the District Judge was of the view that the “singular” aggravating factor in the case was the fact that the Respondent had used a weapon, the Martell bottle, to hit Mr Lai once on the head. The District Judge also apparently disregarded Mr Lai’s second laceration over his nose on the basis that it was not caused by the Martell bottle, but by the Respondent’s elbow (see [35] of the GD).

The appeal

The crux of the Prosecution’s appeal lies in its case that the present matter involves an unprovoked and unrelenting attack that employed the use of a dangerous weapon on a particularly vulnerable part of the victim’s body. The attack was a continuing one, as evidenced from the fact that the victim had to stop the Respondent from further attacks. The Prosecution submits that the District Judge had wrongly emphasised the absence of certain aggravating factors, as opposed to focusing on the aggravating factors that were in fact present. Further, the Prosecution submits that the District Judge appeared to have aligned the sentencing in this case to other cases that had materially different factual matrices, and ignored other s 323 precedents where substantial imprisonment terms were imposed in cases where weapons had been used, however minor the extent of injuries caused to the victims. Based on the various sentencing precedents, the Prosecution submits that the sentence imposed on the Respondent should be enhanced to four weeks’ imprisonment.

Disputed/unascertained facts relevant to sentence

Despite the SOF having been admitted without qualification by the Respondent before his conviction on his plea of guilt, there were several facts (some disputed) relevant to sentence that were not ascertained or resolved at the proceedings below as could be seen from a perusal of the GD and notes of evidence: What were the surrounding circumstances immediately prior to the Respondent suddenly approaching Mr Lai and hitting him on the head with the Martell bottle? Were there other people involved? Did the Martell bottle break upon impact? Was the Respondent injured in the incident, and if so, how?

From my examination of the proceedings below, I have two observations to make: (i) if the Prosecution objects to or disputes certain factual assertions made in the course of mitigation which have a material impact on sentence, the Defence must either withdraw those statements, provide proof or call evidence via a Newton hearing; and (ii) any aggravating facts that the Prosecution wishes to rely on in its submission on sentence should be included in the SOF to minimise any subsequent dispute and the need for a Newton hearing.

In the mitigation plea at the hearing below, it was asserted by the Respondent that he had joined in to “help his friend” who was being assaulted by the group. However, the Prosecution had objected to this and categorically stated its position that this was not “borne out by investigation”. However, it seems that the Respondent is still taking the position during the appeal before me that he had helped his friend, and that there was a physical fracas before he used the Martell bottle to hit the victim. Chan Sek Keong CJ’s comments in Public Prosecutor v Aniza bte Essa [2009] 3 SLR(R) 327 at [61] on the mitigation process in plead guilty proceedings are instructive here:

The existing practice of the Prosecution in tendering to the court an agreed statement of facts and of defence counsel in providing the Prosecution with a copy of the mitigation speech before the sentencing hearing has made the mitigation process simple. This practice minimises any dispute between the Prosecution and the Defence on what mitigation statements are to be admitted without proof. This practice has rendered a Newton hearing (see R v Robert John Newton (1982) 4 Cr App R (S) 388) a rarity in our courts. Where the Prosecution objects to any unsubstantiated assertions in the mitigation speech, the Defence will either have to withdraw the statements, provide proof acceptable to the Prosecution or call evidence. This may be regarded as an analogous form of the Newton hearing, which is also rare in our sentencing practice. If the Prosecution does not object to the assertions made by the Defence, the court is entitled to accept them and give such weight to them as it thinks fit.

[emphasis added]

As the Prosecution had clearly objected to the fact that the Respondent had to help his friend who was already involved in a physical fracas and the Defence had not responded appropriately at the hearing below to back up this assertion not found in the admitted SOF, I am not minded to allow the Respondent to continue asserting this disputed fact at this stage. All disputed facts relevant to sentence should have been resolved at the hearing below.

Thus, the SOF tendered by the Prosecution and admitted by an accused person, along with the charge(s), are crucial in setting out the admitted facts for the court’s consideration during sentencing in plead guilty cases....