Public Prosecutor v Goh Jun Hao Jeremy

• Judge: See Kee Oon J
• Judgment Date: 22 March 2018
• Neutral Citation: [2018] SGHC 68
• Citation: [2018] SGHC 68
• Defendant Counsel: Josephus Tan and Cory Wong Guo Yean (Invictus Law Corporation)
• Published date: 27 March 2018
• Hearing Date: 23 February 2018,11 January 2018
• Plaintiff Counsel: Sarah Shi (Attorney-General's Chambers)
• Date: 22 March 2018
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9299 of 2017
• Subject Matter: Sentencing,Criminal Procedure and Sentencing

See Kee Oon J: Introduction

This was an appeal by the Public Prosecutor against the sentence of a fine in respect of a charge of affray under s 267B of the Penal Code (Cap 224, 2008 Rev Ed). The charge read as follows:

You…are charged that you, on 27 December 2015 at or about 6.10 a.m., outside Club V at 21 Cuscaden Road, Ming Arcade, Singapore, which is a public place, disturbed the public peace by fighting with Heng Weijie Jonathan, to wit, by punching and kicking him, and have thereby committed an offence punishable under Section 267B of the Penal Code (Chapter 224, 2008 Revised Edition).

The respondent pleaded guilty to the charge in the proceedings below and was sentenced to a fine of $2,000, in default two weeks’ imprisonment. Dissatisfied with the sentence, the Public Prosecutor appealed against the sentence.

After hearing submissions from the parties, I allowed the appeal. I delivered a brief oral judgment in doing so. These are the full grounds of my decision.

The facts

On 27 December 2015, Heng Weijie Jonathan (“Heng”), Camoeus Shaun Walter and Tan Chong Hong were standing outside Club V at 21 Cuscaden Road, Ming Arcade, Singapore with some female friends smoking and chatting. They noticed the respondent and one other person, Yap En Hao (“Yap”), staring at their female friends, and sidling up to them from behind. Heng approached the respondent and Yap to ask them to stop staring. The respondent shouted in reply.

Heng turned away and ushered his female friends away from the respondent and Yap. As Heng and his friends were walking away, the respondent ran up to Heng, punched his face and kicked him. Heng retaliated by punching the respondent. As a result, the parties got into an affray. The fight only stopped when bouncers from Club V intervened.

At or about 6.09 a.m. on the same day, the police received a complaint from a member of the public stating “15 Chinese guys beating up 3 guys”. The police arrived shortly after the bouncers intervened.

The respondent caused Heng to sustain a nasal bone fracture and other minor injuries. The respondent himself suffered minor injuries that were most likely caused by a fall.

The proceedings below

The respondent was subsequently charged for an offence under s 267B of the Penal Code and pleaded guilty in the court below. As I noted above, the District Judge sentenced the appellant to a fine of $2,000. The District Judge’s grounds of decision is reported at Public Prosecutor v Jeremy Goh Jun Hao [2017] SGMC 59 (“the GD”).

In the court below, the prosecution submitted for a custodial sentence on the basis that the respondent was the instigator of the affray, causing Heng to sustain a nasal bone fracture, and had undergone two terms of probation previously. To support the submission that the custodial threshold had been crossed, the prosecution further pointed to the similarity between the present offence and the respondent’s antecedent committed in 2012 of being a member of an unlawful assembly, where he had actively sought the victim after a disagreement and got into a physical fight. The prosecution argued that specific deterrence and retribution should be the primary sentencing considerations.

The respondent, on the other hand, submitted for a community-based sentence, specifically a Short Detention Order (“SDO”), to be imposed. In doing so, he highlighted a few offence-specific factors: the offence was not premeditated, no weapons were used, Heng’s nasal bone fracture was a superficial or considerably minor injury that was not life-threatening and left little or no residual injuries, and the others involved in the same affray were administered stern warnings. In the alternative, he submitted for a fine of $500 to be imposed.

The District Judge agreed with the prosecution that specific deterrence and retribution should feature more prominently than rehabilitation as the primary sentencing consideration (at [20] of the GD). This was because the respondent had already undergone a total of 33 months of probation, and his current offence was similar in nature to his 2012 antecedent, in that both offending acts had undermined public order and both fights were initiated by him following relatively minor disagreements. Moreover, the harm sustained by Heng was a fracture of the nasal bone, which was classified as grievous hurt under s 320(g) of the Penal Code. The District Judge placed little weight on the effect of the conviction on the respondent’s career prospects in the banking industry and on the well-being of the respondent’s wife and infant child, since these were the very interests that were disregarded by the respondent when he confronted Heng and got into the affray. The respondent’s Attention Deficit Hyperactivity Disorder (“ADHD”) was also given little weight as the medical assessments of his condition were dated and evidenced no causal relationship with the offence.

In deciding not to impose a community-based sentence, the District Judge considered that if such a sentence was imposed, s 7DA of the Registration of Criminals Act (Cap 268, 1985 Rev Ed) would operate for his community sentence to become spent on the date on which he completed his sentence. This would have undermined the deterrent effect of the sentence on the respondent. Because specific deterrence should feature strongly in the present case, a community-based sentence was not suitable.

The District Judge proceeded to consider the sentencing precedents and held that the custodial threshold had not been crossed. He distinguished the precedents where custodial sentences were imposed, and found the present case to be similar to Public Prosecutor v Ng Jing Hai, Lester (Magistrate’s Arrest Case No 910435 of 2016) (“Lester Ng”), Public Prosecutor v Bu Kiah Koon Andrei (District Arrest Case No 920159 of 2016) (“Andrei Bu”), and Public Prosecutor v Kong Jian Yao Arron (Magistrate’s Arrest Case No 902403 of 2015) (“Arron Kong”). In these three cases, the accused persons had each pleaded guilty to a charge of affray and been sentenced to a fine of $1,000. The brief facts of these three cases are outlined below at [24]–[26].

Having regard to the fines imposed on each of the offenders in Lester Ng, Andrei Bu, and Arron Kong, the District Judge sentenced the respondent to a $2,000 fine since he considered the facts in the present case to be more aggravated than the three precedents. In sentencing the respondent to a fine, the District Judge reiterated the fact that the respondent’s criminal record would only be spent after a crime-free period of five consecutive years by virtue of s 7C(b)(ii) of the Registration of Criminals Act would have a deterrent effect on him.

The appeal

The Prosecution submitted that the sentence of a $2,000 fine was manifestly inadequate, and that the custodial threshold had been crossed, as both the degree of harm caused and the respondent's culpability were on the higher end of the spectrum. The harm consisted of the serious injury of a nasal bone fracture suffered by Heng and the disturbance to the public peace. The culpability of the respondent was high, as he had initiated the fight by going up to Heng, who was by then walking away, and punched and kicked him. Moreover, the respondent had already been placed on probation twice and the present offence was similar to his 2012 antecedent. This showed he had clearly failed to be rehabilitated during the probation stints. Therefore, specific deterrence and retribution were the primary sentencing considerations and little weight should be placed on rehabilitation. Community sentences were not appropriate for the respondent, as these focused on rehabilitation and required the offender to have demonstrated potential for reform. A fine was manifestly inadequate in light of the need to specifically deter the respondent from committing similar offences. The escalation principle should also apply, given his relevant antecedent.

The Prosecution also submitted that the District Judge was wrong to follow the cases of Lester Ng, Andrei Bu and Arron Kong because the circumstances in those cases were clearly distinguishable from those of the present case.

The Prosecution further submitted that the District Judge was wrong to consider the operation of the Registration of Criminals Act in sentencing. The District Judge’s mistaken understanding that the offence of affray was a registrable offence led him to find that the deterrent effect of a fine was greater than the short custodial sentence in the form of a SDO, since he believed that the record would only be spent after five years if the respondent remained crime-free if a fine was imposed while there would be no record if a SDO was ordered. However, s 267B of the Penal Code was not a registrable offence under the Registration of Criminals Act. Hence, there was no question of this criminal record being spent. The Prosecution also argued that on the contrary, the deterrent effect of a SDO order was stronger, given that its effect was incarceration and the deprivation of liberty.

In the alternative, the Prosecution submitted that even if the offence had been registrable, the District Judge was wrong to factor this into his sentencing decision. The mechanism under part IIA of the Registration of Criminals Act for a spent conviction was to provide a second chance to ex-offenders who committed less serious crimes and showed the resolve and ability to remain crime-free. It was not a mechanism for the court to tailor a sentence carrying the appropriate deterrent effect.

In response, counsel for the respondent submitted that the fine imposed by the District Judge was correct in law. He submitted that the District Judge had given due effect to the sentencing principles of specific deterrence and retribution in imposing the fine of $2,000. Counsel further submitted that the respondent, who was the only person charged, was...