Public Prosecutor v Hsu Yisong

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 30 May 2016
• Neutral Citation: [2016] SGDC 128
• Court: District Court (Singapore)
• Docket Number: DAC 919045/15, MA 9092/2016/01
• Year: 2016
• Published date: 03 June 2016
• Hearing Date: 28 April 2016,27 April 2016,11 May 2016,29 April 2016
• Plaintiff Counsel: Sruthi Boppana
• Defendant Counsel: Mathew Kurian (Regent Law LLC) (April 2016) Dilip Kumar (Gavan Law Practice LLC) (May 2016)
• Subject Matter: Criminal Law,Offences,Penal Code,Section 354A
• Citation: [2016] SGDC 128

District Judge Shawn Ho: INTRODUCTION

We are defined by the company we keep. Golden is this wise adage, which is relevant for the present offence of aggravated outrage of modesty under section 354A of the Penal Code. Let me elaborate.

Parliament Takes a Very Serious View of Section 354A Penal Code Offences

Internationally Protected Persons Act (Cap. 145A)

Parliament takes a very serious view of aggravated outrage of modesty under section 354A of the Penal Code. This is seen from the First Schedule to the Internationally Protected Persons Act (“IPPA”),¹ where section 354A² sits beside neighbours such as murder and kidnapping (viz. very serious offences).

At the second reading of the Internationally Protected Persons Bill, the Senior Minister of State for the Ministry of Foreign Affairs expressly stated that section 354A is sufficiently serious to warrant inclusion in the First Schedule (Singapore Parliamentary Debates, Official Report (6 March 2008) vol. 84 at col 2462 to 2463):

On the question of outraging of modesty, the offence of outraging of modesty simpliciter (by itself) is not included in the First Schedule. What is included here is the offence of outraging of modesty under aggravated circumstances under section 354A of the Penal Code, ie, voluntarily causing or attempting to cause death, or hurt, or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint in the process of; or to facilitate the outrage of modesty. It may not be outrage of modesty directly, but acts that could lead to other more serious crime. We feel this offence is sufficiently serious to warrant inclusion in the First Schedule.

(emphasis added)

I fully appreciate that the offences of murder and kidnapping bestride the First Schedule of the IPPA with their gravity and timbre. But this does not lessen the moment with regard to Parliament specifically selecting aggravated outrage of modesty as part of an ensemble of very serious offences in the First Schedule. In sum, section 354A is defined by the company it keeps in the First Schedule, and Parliament takes a very serious view of section 354A offences.

Statutory Maximum Sentence & Mandatory Minimum Imprisonment with Caning

Bringing this into sharper focus is the fact that section 354A offences have a statutory maximum sentence of 10 years’ imprisonment and caning. The statutory maximum sentences for offences signal the gravity in which the public, through Parliament, views offences of aggravated outrage of modesty: Court of Appeal in Public Prosecutor v Kwong Kok Hing [2008] 2 SLR (R) 684 at [44], and endorsed by Chan Seng Onn J in Public Prosecutor v Wong Yew Foo [2013] 3 SLR 1198 at [26] and the Three-Judge Panel in Public Prosecutor v Hue An Li [2014] 4 SLR 661 at [58].

Additionally, section 354A offences have a mandatory minimum imprisonment term of 2 years and caning, which I will elaborate on at [17] to [53] below.

Pulling together the various strands, it is clear that Parliament takes a very serious view of section 354A offences. Against this backdrop, I turn to the facts of the present case.

Facts of the Present Case

In the still of night, at 3.30a.m., the Accused restrained the victim by placing her in a neck-lock from behind. She almost could not breathe. She did not know him. He had followed the victim into an open-air carpark along Mackenzie Road. She was on her way home after work.

Shackled in a neck-lock, the victim had her top lifted by the Accused, who forcefully grabbed her breast with his hand. The victim shouted for help, and tried to push his hand away. The Accused then tried to pull down the victim’s shorts. He was unable to do so as her shorts were tight. The victim put up a struggle. She eventually managed to break free after she bit him on his arm.

The Accused ran away. He nearly stole away scot-free by flagging and boarding a taxi. Two passers-by gave chase and caught up with him. They managed to detain him, and called for the police: see the Amended Charge and Statement of Facts at Annexes A and B respectively.

An ambulance conveyed the victim to Tan Tock Seng Hospital. The medical report indicated three scratch marks on her lower abdomen, and small bruising over both upper arms. Her right thumb was tender with limited range of movement.

The Accused claimed trial. Consequently, the victim was made to testify, and subjected to the rigours of cross-examination. A gag order is in force. The Accused pleaded guilty on the second day of trial to one count of section 354A. I sentenced the Accused to the mandatory minimum imprisonment term of 2 years and 3 strokes of the cane. He has appealed against his sentence.

These are the reasons for the sentence.

SENTENCING Prosecution’s Submissions on Sentence

The Prosecution stated the following points: The Prosecution was content to leave the sentence to the Court. The starting point for plead guilty cases for section 354A where the Accused had no prior antecedents, is 2 years’ imprisonment and 6 strokes of the cane. Any discount to the sentence for his plea of guilt should be minimal, given that the victim had to testify in court. The victim was made to relive her ordeal. The Accused had heard the Prosecution’s case before deciding to plead guilty on the second day of trial. The offence was committed in the early hours of the morning. The Accused used significant force on the victim’s private parts. It is fortuitous that witnesses were present and able to intervene to detain the Accused. This incident has impacted the victim substantially. She was crying all the way until she reached the hospital. In her day-to-day life, she continues to fear walking alone or when she senses somebody is following her. The Accused’s character references need to be considered in light of the aggravated nature of the offence before the Court.

Defence’s Mitigation Plea

The Defence highlighted the following points: The Accused is remorseful and contrite.³ He has no prior antecedents.⁴ He fully cooperated with the authorities.⁵ Character references from his national service superiors and friends were tendered to the Court.⁶

Both the Prosecution and the Defence did not refer to any cases.

Prescribed Punishment for the Offence

The prescribed punishment for section 354A of the Penal Code is: Imprisonment for a term of not less than 2 years and not more than 10 years, and Caning.

Two elements underlie a sentence for section 354A – mandatory imprisonment and mandatory caning. I will deal with them in turn.

Mandatory Minimum Imprisonment Term of 2 Years

There is a mandatory minimum imprisonment term of 2 years under section 354A.

Can the Defence argue that the charge against the Accused ought to be under section 354 (molest simpliciter) instead of section 354A of the Penal Code?

Doubtless, ‘No’. The charge to be preferred is a matter of prosecutorial discretion.⁷ This case is vastly different from the criminal revision in Public Prosecutor v Than Lwin [1997] 2 SLR(R) 278 at [2], where the High Court substituted a conviction under section 354A with section 354 and reduced the accused person’s sentence.⁸ This was because the accused person and the victim were actually engaged to be married (and he had every intention of marrying her), the scuffle on the footpath appeared to be more in the nature of a tiff over the degree of physical contact to be allowed in their relationship, and the accused person did not try at any stage to touch her private parts.⁹

I pause here to note that a Court does not have the power to go below a mandatory minimum sentence, even for cases of judicial mercy: Court of Appeal in Zainon Binti Osman v Public Prosecutor (Criminal Motion No. 8 of 2016, 10 May 2016).¹⁰

(For completeness, see Chan Wing Cheong, No Punishment Without Fault: Kindling a Moral Discourse in Singapore Criminal Law (2013) 25 SAcLJ 801 at [35] to [47], for a critique of ‘mandatory minimum sentences’.)

In the present case, a two-year imprisonment term was given, which is the mandatory minimum imprisonment term.

Mandatory Caning

Caning is mandatory under section 354A. (See Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: 2015; Binder 3, Loose-leaf) at [204]-[303] for the specifics of caning).

The benchmark for section 354A was laid down by the High Court in Seow Fook Thiam v Public Prosecutor [1997] SGHC 218 at [36] (applied in Public Prosecutor v Muhammad Shafie bin Ahmad Abdullah and others [2010] SGHC 274 at [9]):

The norm for offences under this section is 30 months’ imprisonment and six strokes of the cane.

(Emphasis added)

In Seow Fook Thiam, at the second floor staircase landing of the victim’s residential block, the accused person caught hold of her left hand from the back and hugged her from behind. He put his arms around her and used both hands to squeeze her breasts.¹¹ The wrongful restraint was not prolonged as the accused person had let the victim go, almost immediately upon her shouts to be released.¹²

Our present facts are more aggravated. The Accused had used his right arm to restrain her from behind in a neck lock. Shackled in a vice-like grip, the victim almost could not breathe because of the degree of force applied by the Accused. Notably, when he forcefully grabbed her breast with his hand, the victim shouted for help and tried to push the Accused's hand away, to no avail. The Accused then tried to pull down the victim’s shorts. The victim put up a struggle. In fact, she only managed to break free from her trammels after biting the Accused on his arm.¹³

From the Sentencing Practice in the Subordinate Courts (LexisNexis, Third Edition, Volume 1, 2013) at pages 535 to 540, caning of 3 to 6 strokes was meted out for all the cases profiled (save for one case) involving section 354A, with the remaining case¹⁴ containing aggravated facts reflecting...