Public Prosecutor v Lye Chun Shern

• Jurisdiction: Singapore
• Judge: Soh Tze Bian
• Judgment Date: 15 February 2011
• Neutral Citation: [2011] SGDC 52
• Court: District Court (Singapore)
• Docket Number: DAC 15651/2010; Magistrate’s Appeal No. 034-2011-01
• Year: 2011
• Published date: 21 February 2011
• Hearing Date: 14 February 2011,20 September 2010,17 December 2010,11 October 2010
• Plaintiff Counsel: Deputy Public Prosecutor, Darren Goh and Assistant Public Prosecutor, Charlene Yang
• Defendant Counsel: Gopinath Pillai and Aloysius Tan (Eldan Law LLP)
• Citation: [2011] SGDC 52

District Judge Soh Tze Bian: The Charge and Sentence

This is an appeal against sentence filed by the accused on 14 Feb 11. The accused, male/18 years of age, pleaded guilty before me to a charge in DAC 15651/2010 that he, on the 10th day of April 2010, at or about 4.45am, near No. 17 Siglap Road, Singapore, together with one Tan Wei Ke, Jason, Male/19 years old, and in the furtherance of the common intention of both of them, did commit robbery of one black Nokia 1202 mobile phone with a Singtel Hi Card valued at about S$100/-, in the possession of one Kheng Kim Tjoean @ Kelvin, Male/53 years old, and during the time of the said robbery, did voluntarily cause wrongful restraint to the said Kheng Kim Tjoean @ Kelvin by obstructing him from leaving his taxi, which he had the right to do. This was an offence punishable under section 392 read with section 34 of the Penal Code (Cap 224) with imprisonment for a minimum term of 3 years and up to a maximum term of 14 years plus mandatory caning of not less than 12 strokes.

I sentenced the accused to undergo reformative training at a reformative training centre which would be for a period of not less than 18 months and not more than 3 years. The accused was granted bail pending his appeal against the sentence.

Statement of Facts

The statement of facts, admitted by the accused without qualification, read as follows:

“The complainant is Saini Bin Arab, Male/37 years old, a Singapore citizen.

2. The victim is Kheng Kim Tjoean @ Kelvin, Male/53 years old, a Singapore citizen who is employed as a taxi driver. His motor taxi's registration number is SH9626 T. 3. Witness (1) is James Lie Siang Loong, Male/19 years, a Malaysian citizen who is a student with the Nanyang Academy of Fine Arts. He is a friend of the second accused, B2. 4. Witness (2) is Sim Wee, Jarius, Male/20 years, a Singapore citizen who is currently serving his National Service at Sungei Gedong Camp. He is a friend of both Witness (3) and the second accused, B2. 5. The arresting officer is Mahmud Bin Mohamad Amin Male/24 years, who is a Sergeant in the Singapore Police Force performing the duties of a Patrol Officer. He and his colleagues attended to the above case and subsequently arrested the accused persons. 6. The first accused ("Bl") is Tan Wei Ke, Jason Male/19 years old, a Singapore citizen. He is serving his National Service as a storeman at the Transport Hubwest, Jurong CCamp 1. 7. The second accused ("B2") is Joshua Lye Chun Shern, Male /18 years old, also a Singapore citizen He is working as a telemarketer at a shop located at Sims Lane.

Facts Relating to DAC 15651-2010

8. On 10 April 2010 at about 4.49am, the complainant called the Police, stating "There is a taxi driver being assaulted by two boys here and they are using bottles to hit him. He needs ambulance." The location was given as near No. 17 Siglap Road. 9. Investigations revealed that on 10 April 2010 at about 12am, Bl and B2 went to a Thai discotheque called "Sun City" located at Taman Jurong. Thereafter, Bl and B2 contacted Witnesses (1) and (2), and agreed to join Witnesses (1) and (2) at a party at a friend's place, located at No. 24 Fernwood Towers #11-04 ("the Fernwood Towers unit"). B1 and B2 thus left Sun City, with B2 carrying with him an unfinished bottle of Martell VSOP ("the Martell bottle"). 10. Bl and B2 arrived at the Fernwood Towers unit at about 3am, and joined Witnesses (1) and (2) at the party. While at the Fernwood Towers unit, Bl told B2 that Bl felt like doing something mischievous. B2 also complained to Bl that B2 was short of cash. B1 and B2 then agreed to rob a taxi driver. 11. At about 4,45am on 10 April 2010, Bl and B2 left the Fernwood Towers unit together with Witnesses (1) and (2). At this time, B2 was still holding on to the said Martell bottle. The group walked together to Siglap Road. There Witnesses (1) and (2) parted ways with Bl and B2, with Witnesses (1) and (2) walking towards Marine Parade Road, and Bl and B2 walking towards East Coast Road. 12. About a minute after the group had parted ways, at about 4.45am, B2 noticed a motor taxi (registration number SH 9626T) driven by the victim pulling over to the opposite side of the road near No. 17 Siglap Road. B2 then signalled to Bl, and both of them walked towards the victim's taxi. Bl opened the taxi door next to the front passenger seat and, on the pretext of enquiring about taxi fares, distracted the victim. 13. Whilst Bl was talking to the victim, B2 approached the driver's door, opened it and then proceeded to hit the victim with the Martell bottle. The victim attempted to get out of his taxi, but was prevented from doing so by B2's blows. As the victim was fending off B2's blows with his arms, B1 searched the taxi for valuables, but found none. B1 then retrieved a black Nokia 1202 mobile phone (together with a Singtel Hi Card valued at about S$100/-) from the front passenger seat. Bl then waved the said mobile phone at B2, and shouted at B2 to move off. B1 and B2 then fled on foot towards some blocks of flats along Marine Parade Road. 14. At the same time, Witnesses (1) and (2) (who were still within earshot) heard from behind them the opening of a vehicle's door, and the sound of smashing glass. They turned around, and saw B1 and B2 running away from a taxi (SH 9626 T), towards Witnesses (1) and (2). Bl and B2 ran past Witnesses (1) and (2) without a word. Witnesses (1) and (2) then approached the said taxi, and saw the victim emerging from the taxi. They noticed that the victim was bleeding from his mouth, and was in a daze. 15. The complainant, who was a short distance away from the said taxi, also witnessed B2 hitting the victim. He called the Police, giving a description of Bl and B2. 16. Investigations further revealed that while fleeing, Bl threw away the victim's mobile phone in the vicinity of a block of flats. B1 and B2 then hid for a short while at the 11th floor of an unknown block of flats, before walking back to Siglap Road. There, they were spotted by the arresting officer and his colleagues. Bl and B2 matched the description given by the complainant to the Police, and were also positively identified by the victim. B1 and B2 were thus arrested. The stolen mobile phone could not be recovered. 17. Bl and B2 have thereby each committed an offence of robbery with common intention under Section 392 read with Section 34 of the Penal Code, Cap. 224. They have both admitted to the respective offences, and are charged accordingly. 18. On 26 August 2010, Bl made restitution to the victim in the sum of S$2,277/-, which is half of the total amount of the victim's medical expenses as well as the value of the stolen mobile phone and Singtel Hi Card. 19. On 09 September 2010, B2 made restitution to the victim in the sum of S$2,277/- which is half of the total amount of the victim's medical expenses as well as the value of the stolen mobile phone and Singtel Hi Card.” (emphasis mine) Mitigation

The defence counsel for the accused had in his written and oral mitigation pleaded for leniency and urged the Court to give him a last chance and place him on probation for the following reasons. The accused was remorseful as he had cooperated with the police investigations, admitted to the offence at the first available opportunity and made restitution of his share of the value of the stolen property and medical expenses to the victim. He is a first offender with no antecedents and will be serving his national service soon and the national service stint is likely to inculcate in him values of discipline and responsibility. Despite coming from a single parent family, the accused’s parents have been offering their best support to manage him. He has a good personality and good school as well as work record. He is not the incorrigible and recalcitrant offender who merits a tough punishment. This was an isolated and independent incident which exhibits him being totally out of character. He had just broken up with his girlfriend not long before the incident and had gone for drinks with his friends and was fairly intoxicated at the time of the offence. The defence counsel made particular references to: (i) R v Toomey (as reported in the Criminal Law Review 1964 at p. 419) where the English Court of Appeal reduced the original 6 years imprisonment imposed on the offender to 4 years imprisonment as the trial judge in passing sentence had referred to the violence which caused the victim’s injuries of seven broken ribs in order to conform to the plea of simple robbery as the offender’s plea of not guilty to robbery with violence had been accepted; and (ii)The Queen v De Simoni 147 C.L R. 383 where a majority of the High Court of Australia had held that where an indictment does not refer to particular circumstances of aggravation, a judge in imposing sentence may have regard to those circumstances only if they would not render the accused liable to a greater punishment pursuant to the Criminal Code, and accordingly, where an accused had been convicted of robbery in the course of which he wounded the victim and the indictment charged that he used actual violence to a person, the judge was entitled to take the actual violence into account but not any wounding caused by the violence, for the wounding was a circumstance of aggravation and not an element of robbery itself.

Prosecution’s submission

The prosecution urged the Court to call for a report on the accused’s physical and mental condition and his suitability for reformative training and to sentence the accused to reformative training to reflect the need for deterrence based on the following grounds: the present offence was a serious offence as it was committed at or...