Public Prosecutor v Kwong Kok Hing

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 10 March 2008
• Neutral Citation: [2008] SGCA 10
• Docket Number: Criminal Appeal No 8 of 2007
• Date: 10 March 2008
• Published date: 13 May 2008
• Year: 2008
• Plaintiff Counsel: Walter Woon SC and Stanley Kok (Attorney-General's Chambers)
• Citation: [2008] SGCA 10
• Defendant Counsel: Shashi Nathan and Adrian Wee (Harry Elias Partnership)
• Court: Court of Appeal (Singapore)
• Subject Matter: Section 308 Penal Code (Cap 224, 1985 Rev Ed),Offender having been released from prison,Whether "denunciation" a separate sentencing objective,Sentencing,Attempt to commit culpable homicide,Evidence,Sentencing considerations,Functions of judge,Whether definition of "hurt" extending to non-physical injury,Principles,Criminal Law,Section 319 Penal Code (Cap 224, 1985 Rev Ed),Psychiatric opinion,Offences,Range of possible sentences,Duty of both psychiatrist and counsel to ensure evaluation is accurate,Judge should resolve any inconsistency,Offender's act among worst conceivable conduct,Definition of "hurt",Offender's psychiatric condition,Criminal Procedure and Sentencing,Whether sentence manifestly inadequate,Mitigating factors

10 March 2008

V K Rajah JA (delivering the grounds of decision of the court):

Introduction

1 The respondent, Kwong Kok Hing, was charged with attempting to commit culpable homicide pursuant to s 308 of the Penal Code (Cap 224, 1985 Rev Ed) for pushing his ex-girlfriend (“the victim”) into the path of an oncoming train at a Mass Rapid Transit (“MRT”) station. On 23 May 2007, he pleaded guilty to the charge in the High Court. The trial judge (“the Judge”) sentenced the respondent to one year’s imprisonment and backdated the sentence to his date of remand: see PP v Kwong Kok Hing [2007] SGHC 86 (“the GD”). As a result, the respondent was released on the same day. Upon his release, he promptly returned to his home in Malaysia. Dissatisfied with the sentence, the Prosecution subsequently appealed. We allowed the appeal. The sentence of one year’s imprisonment imposed by Judge was substituted with a sentence of three years’ imprisonment. This sentence of three years’ imprisonment included the period the respondent spent in remand from 16 September 2006 to 23 May 2007.

Preliminary observations

2 We were only informed at the commencement of the hearing of the appeal that the respondent would not be present. This was a rather unfortunate situation that transpired in part because of the unusual circumstances of the case, which were that the respondent, a Malaysian, was released from prison before the appeal could be heard. Two suggestions are offered for the conduct of similar matters in future.

3 First, the Prosecution should consider applying immediately to the Court of Appeal for directions pending an appeal. In the event the release of the offender is scheduled to take place on the same day, the Prosecution can request for it to be deferred until the Court of Appeal considers the appropriate modalities to be adopted in the particular matter. The Registry should arrange for such matters to be heard on a very urgent basis as the liberty of an individual is at stake. Such an application by the Prosecution in the present case, if granted, could have led to two possible results. In the first scenario, the respondent could have been released on bail, thus providing some measure of assurance that he would be present for the appeal. This was of particular importance in the present case, as the respondent was a foreigner and promptly returned home for medical treatment. In the second scenario, the Court of Appeal could have heard the appeal on its merits on the same day or as soon thereafter as was possible. In any event, it is critical in such cases that both the Prosecution and the Defence act promptly to mitigate any possible injustice caused by delay. The respondent was released on 23 May 2007, but the appeal was not heard until 13 November 2007. This six-month delay was unfortunate, and perhaps, with the benefit of hindsight, avoidable. As Yong Pung How CJ advised in PP v Siew Boon Loong [2005] 1 SLR 611 (“Siew Boon Loong”) at [29]:

Finally, I noted that the respondent had long finished serving his sentence on 8 December 2004 before this appeal was heard. The Prosecution informed me that it had kept to the prescribed time-lines, and that there was no delay on its part. For such future appeal cases, it may be prudent for the Prosecution to highlight to the Registry that the accused is serving a very short sentence, and is expected to be released before the appeal is heard, so that a decision can be made as to whether the appeal should be re-scheduled to be heard on an expedited basis. [emphasis added]

4 In PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR 334 (“Fernando Payagala”), the High Court also observed at [14]:

[I]t is highly desirable that the relevant court registries and counsel involved in criminal cases pertaining to foreigners sentenced to short terms of imprisonment use their best endeavours to ensure that the appeals are expedited: see also the observations of Yong Pung How CJ in PP v Siew Boon Ling [2005] 1 SLR 611 at [29]. Indeed, the written appeal submissions and possibly the trial judge’s detailed grounds of decision may be dispensed with or alternatively replaced by short skeletal submissions/grounds of decision. In cases such as this, time is of the essence in ensuring that the legitimate expectations about the administration of justice are not unnecessarily undermined. Where the liberty of an individual is at stake, certainty should always replace uncertainty as a matter of urgency and priority. I single out foreigners because they may be hard put to raise adequate security for bail in this regard. Similar considerations should also apply to impecunious Singaporeans and permanent residents. [emphasis added]

5 Second, prior or earlier notification to the Registry should have been given by defence counsel once they learnt that the respondent did not intend to appear at the hearing. The appeal could perhaps then have been rescheduled to ensure the respondent’s presence. As it was, in the light of the respondent’s absence at the hearing, we subsequently directed the respondent to surrender himself to the prison authorities by 3 December 2007. In this connection, we note that the respondent indeed returned to Singapore and surrendered himself to the relevant authorities on 3 December 2007.

The facts

6 The respondent and the victim had been dating for approximately two years prior to the offence. The couple had a somewhat turbulent relationship and several days before the incident, the victim informed the respondent that she wanted to end their relationship. On 14 September 2006, the day of the incident, the respondent visited the victim at her workplace at Clementi Post Office (“the Post Office”) in the afternoon to plead for the resumption of their relationship. As the victim was busy, the respondent did not have an opportunity to have a meaningful conversation with her. He then waited for several hours at the Post Office until the victim left for home.

7 As the victim left the Post Office just after 6.00pm, the respondent again approached her and a heated quarrel ensued. The victim reiterated her decision to end the relationship, but the respondent petulantly insisted that she give the relationship another chance. In the course of the quarrel, the victim made a telephone call to her elder sister, and the latter agreed to meet her at Clementi MRT station (“the station”) to accompany her home. The victim then proceeded to the station to wait for her sister, with the respondent trailing and quarrelling with her along the way. On arriving at the train platform of the station, they both stood against part of the parapet wall fronting the westbound side of the train platform and continued with their row.

8 At about 6.58pm, a westbound train travelling at 50–60km/h approached the station. All of a sudden, the respondent, knowing that the train was approaching, grabbed the victim by her shoulders and shoved her toward the edge of the platform. Not content with this, he then forcefully pushed her a second time, causing her to fall off the platform onto the tracks below. The victim fell onto the middle of the train tracks, directly in the path of the fast approaching train.

9 Fortunately, the victim managed to land on the tracks in a crouching position. She then showed great presence of mind in picking herself up and racing to the far side of the tracks, before vaulting over the parapet wall to the safety of the walkway. All this transpired just split seconds before the train hurtled past her and came to a stop in the station.

10 After pushing the victim onto the train tracks, the respondent wandered around the train platform aimlessly. Later, he was detained by several commuters as he made his way back toward the westbound train at the platform. He was subdued after a scuffle, in the course of which he suffered some minor injuries. The police were then notified and the respondent was arrested.

The decision of the Judge

11 In sentencing, the Judge took into consideration reports on the respondent’s psychiatric illness, the respondent’s lack of antecedents as well as the fact that the victim had survived the incident. He remarked at [9] of the GD:

It is true that [the victim] was fortunate to be alive. Her good fortune is thus also the good fortune of the accused. He might otherwise have faced a murder charge. The danger of the act was inherent in the charge and therefore should not be expanded to the extent that we punish the offender for what might have been instead of what was the fact. Dr Tan’s opinion of the accused person’s state of mind at the time of the offence must be considered in the context of the charge. Dr Tan stated that the accused “had behaved impulsively at the time of the alleged [offence] because of his mental disorder”. He did not think of the possible consequences of what he had done.” That behaviour was, in his view, connected to the depressive illness that the accused had at the time. I think that a sentence of one year’s imprisonment is sufficient punishment for this accused, a first offender. [emphasis added]

The appeal against sentence

12 On appeal, the Prosecution submitted that the Judge had erred both in law and in fact by, inter alia:

(a) placing undue weight on the fact that the victim survived, when it was completely fortuitous that she did, and her survival could hardly be a mitigating factor when it was in no way attributable to the respondent;

(b) placing undue weight on the respondent’s psychiatric condition; and

(c) failing to place sufficient weight on the aggravating factors surrounding the commission of the offence, viz, the fact that the respondent had seen the train approaching the station before grabbing and shoving the victim into the path of the train.

Appellate intervention in sentencing

13 It is trite law that an appellate court has only a limited scope for appellate intervention apropos sentences meted out by a lower court. This...