Public Prosecutor v Low Ji Qing

• Judge: Sundaresh Menon CJ
• Judgment Date: 26 July 2019
• Neutral Citation: [2019] SGHC 174
• Citation: [2019] SGHC 174
• Court: High Court (Singapore)
• Published date: 31 July 2019
• Docket Number: Magistrate’s Appeal No 9311 of 2018
• Plaintiff Counsel: Tan Wen Hsien and Kong Kuek Foo (Attorney-General's Chambers)
• Defendant Counsel: Chooi Jing Yen (Eugene Thuraisingam LLP)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Principles,Principle of escalation,Proportionality,Mentally disordered offenders,Mandatory treatment order
• Hearing Date: 18 April 2019

Sundaresh Menon CJ: Introduction

This appeal concerns a fundamental principle of sentencing – proportionality, which requires, in essence, that “an offender should only receive a punishment that is in line with what the offence he had committed deserves, and no more”: see Public Prosecutor v Saiful Rizam bin Assim and other appeals [2014] 2 SLR 495 (“Saiful Rizam bin Assim”) at [29]. In 1938, Émile Durkheim observed in The Rules of Sociological Method that “There is no society where the rule does not exist that the punishment must be proportional to the offence”: V. Prakashan (ed), (Nine Books, 2015), at p 112.

Although the principle is easily understood, it is not always as easily applied. Tensions can manifest, for instance, when proportionality is juxtaposed against the seemingly conflicting principle of specific deterrence. In particular, where the court is faced with a habitual offender, specific deterrence might invite the invocation of another principle of sentencing – that of escalation. I have said that the principles ‘seemingly’ conflict, because there is a tendency in some cases, such as the present, to suggest that specific deterrence and the principle of escalation ought to eclipse or displace the quest for proportionality. But properly understood, the principles are not in conflict; rather, they are complementary to one another. The task of a sentencing court is to elicit the relevant principles in each case, and to balance them fairly, sensitive to the crime and the relevant circumstances: see Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [61]–[62]. In my judgment, the district judge (“the District Judge”) in the present case had balanced the principles appropriately in imposing a global sentence of 10 months’ imprisonment. Accordingly, I dismissed the Prosecution’s appeal against sentence. I gave a brief oral judgment at that time, and now furnish detailed reasons.

Background

This appeal concerned three charges of simple theft under s 379 of the Penal Code (Cap 224, 2008 Rev Ed). The offences were committed in somewhat unusual circumstances. The Prosecution proceeded against the respondent, Mr Low Ji Qing, on two of these charges, with the remaining charge taken into consideration for the purposes of sentencing. Each of these charges involved the theft of wallets from female victims. It was undisputed that part of the respondent’s motivation for stealing these wallets stemmed from his fetishistic disorder, specifically an abnormal sexual preference involving the wallets of women, which he then smelt in order to get a sense of euphoria and to feel sexually aroused.

The 1st Charge taken into consideration

On 11 May 2017, the respondent stole a wallet from a female victim at the ION Sephora outlet. The total value of the wallet and its contents was $376.29. The respondent was later charged (“the 1st Charge”) and released on court bail. This was taken into consideration for the purposes of sentencing.

No further details about the offence were provided in the statement of facts (“SOF”), but the respondent’s counsel, Mr Chooi Jing Yen (“Mr Chooi”), drew upon a report from the Institute of Mental Health (“IMH”) dated 12 October 2017, in which the respondent had recounted to Dr Christopher Cheok Cheng Soon (“Dr Cheok”) that he had lost his job in March 2017 shortly before the date of the offence and was feeling stressed and depressed at the material time. The respondent had been contemplating stealing a wallet in response to his mood and circumstances. On the day in question, he noticed that the victim’s wallet was unattended and he then stole it and walked away. He smelt the wallet and got an intense euphoria. The respondent told Dr Cheok that once he smelt the wallet, his stress was relieved and he immediately realised his mistake. He then returned the wallet to the information counter.

Dr Cheok diagnosed the respondent with an “adjustment disorder with depressed mood and fetishistic disorder” at the time of the 1st Charge. According to Dr Cheok, the respondent was “depressed around the time of the offence and he knew that his fetish for women’s wallets when fulfilled would give him a temporary euphoria relieving his depressed mood [for a time]. His depressed mood affected his judgment predisposing him to stealing”.

The Prosecution did not contest that account of the offence; nor did it dispute Dr Cheok’s diagnosis. The Prosecution accepted that the wallet had been returned to its owner.

In September 2017, the respondent commenced a course of 20 fortnightly sessions consisting of psychotherapy and mindfulness with Dr Cheok, and 10 further sessions with an IMH psychologist. In a follow-up report on 20 June 2018, Dr Cheok stated that the respondent had been able to control his impulse to steal, which was typically triggered by poor mood or stress.

The 2nd Charge proceeded

Unfortunately, despite the fact that he had begun psychotherapy sessions, the respondent stole again on 17 October 2017, giving rise to the offence in the 2nd charge which was proceeded with by the Prosecution (“the 2nd Charge”). On this occasion, the respondent loitered near a female victim who was pushing her child’s pram at the Takashimaya department store. When she was momentarily distracted, he took her wallet from the pram. The total value of the wallet and its contents was $637.95. The respondent hid the wallet in his pants and moved to an adjacent shelf. He loitered there until the store’s security officers arrived. The respondent struggled when confronted, and only surrendered the wallet when police officers arrived at the scene. The wallet was returned to its owner.

The respondent was again assessed at the IMH, this time by Dr Yeo Chen Kuan Derrick (“Dr Yeo”). Dr Yeo stated that according to the respondent, he had been mentally stable, but on 15 October 2017 he experienced multiple concurrent stressors. He told Dr Yeo that he had initially intended to take the wallet to get sexually aroused, but after taking the wallet he started to feel guilty and to regret his actions. He therefore did not leave the scene or take steps to get sexually aroused. Instead, he remained in the area for the next 15 minutes while he contemplated returning the wallet. Before he could do so, he was confronted by the security officers. In mitigation, his counsel, Mr Chooi, elaborated that the respondent had remained in the vicinity because he was “facing an internal conflict and was trying to resist the impulse.”

Dr Yeo’s diagnosis was similar to Dr Cheok’s diagnosis in relation to the 1st Charge. Dr Yeo diagnosed the respondent at the material time (of the 2nd Charge) as follows:

The accused suffers from Fetishism, which is a form of abnormal sexual preference where he has recurrent sexual urges and behaviours involving the use of a non-living object (in this case, female wallets). However, his fetishism did not meet the criteria for a paraphilic disorder per se. The accused also had a secondary diagnosis of an Adjustment Disorder with depressed mood at the time of the index offence.

Additionally, his Fetishism had no substantive contributory link to his criminal responsibility for the index offence as both his cognitive functioning and his volitional/emotional capability to break the law in order to act on his sexual desires was not significantly impaired. His tendency to opportunistically steal the female wallet, with the secondary intention to use it for his Fetishism, is likely a maladaptive style of coping with stress in his life.

[Emphases in original.]

The Prosecution again did not dispute Dr Yeo’s diagnosis. In fact, it relied on Dr Yeo’s view that there was no substantive contributory link between the respondent’s fetishism and his criminal responsibility. However, the Prosecution did contest the respondent’s account to Dr Yeo of the circumstances surrounding the offence. It submitted that there was in fact nothing to indicate remorse or contrition, and contended that the respondent had only surrendered the wallet when the police officers arrived at the scene. In its view, this was an accused person who “resented being caught with his hand in the cookie-jar”. I will return to this point later on, as it assumes some factual significance.

The 3rd Charge proceeded

On 25 July 2018, the respondent committed the third theft at the Don Don Donki store at Orchard Central (“the 3rd Charge”). A store assistant noticed the respondent closely following a female victim as she pushed a pram. When the victim was distracted, the respondent removed a wallet from her bag. Realising that he was being watched, the respondent went to the counter, handed the wallet to the cashier and left the store. The victim retrieved her wallet from the cashier counter, and found there was nothing missing. The store assistant lodged a police report and the respondent was arrested about a month later. This offence gave rise to the 3rd Charge against the respondent, which the Prosecution proceeded with.

The respondent’s antecedents and psychosexual history The respondent’s prior offending

The respondent is traced with many theft and theft-related offences. He was 54-years-old at the time of the plead guilty mention, but his antecedents date back to when he was 21-years-old. He has been sentenced in 13 court sittings, 11 of them pertaining to property-related offences. The respondent told Dr Cheok that his various theft offences stemmed from his fetish for the wallets of women.

The relevant antecedents are set out in the table below. Notably, the respondent had previously been sentenced to 10 years’ preventive detention for property-related offences (s/no. 7), and had breached a probation order twice (s/nos. 9 and 10).

No.	Charges	Date of Sitting	Sentence
1	One charge of theft in dwelling (s 380 of the Penal Code)	26 December 1985	One day’s

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