Public Prosecutor v Ng Wei Long

• Jurisdiction: Singapore
• Judge: Chua Wei Yuan
• Judgment Date: 23 December 2019
• Neutral Citation: [2019] SGMC 78
• Court: Magistrates' Court (Singapore)
• Docket Number: MCN-901130-2019
• Year: 2019
• Published date: 05 March 2020
• Hearing Date: 11 November 2019,29 October 2019,25 November 2019
• Plaintiff Counsel: DPP Thiagesh Sukumaran (Attorney-General's Chambers)
• Defendant Counsel: and the accused in person.
• Citation: [2019] SGMC 78

Magistrate Chua Wei Yuan:

The accused, Ng Wei Long, (“Mr Ng”) pleaded guilty on the first day of trial to the following charge of unlawful stalking under s 7(1) of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“PHA”):

You … are charged that you, between 14th March 2017 and 23rd February 2018, did unlawfully stalk [V] in Singapore, by engaging in a course of conduct which involved acts associated with stalking that caused harassment to [V], which the accused ought reasonably to know that the said course of conduct were likely to cause harassment to [V] and you have thereby committed an offence under [s 7(1) PHA], punishable under [s 7(6) PHA].

Particulars of the acts associated with unlawful stalking: a) Sending her sexual explicit messages, a picture of a pair of breasts and a picture of a penis on the Facebook messenger platform; b) Sending her sexually explicit messages, and a picture of a penis on the Instagram messenger platform; c) Sending her sexually explicit messages on the Whatsapp messenger platform; and d) Sending her sexually explicit text messages[.]

I sentenced Mr Ng to 5 months and 2 weeks’ imprisonment. My reasons follow.

Brief Facts

Here, I recount the brief facts based on the Statement of Facts (“SOF”) and its annexes, to which Mr Ng admitted without qualification.

On 11 March 2017, Mr Ng (then aged 29) asked to be a friend of the victim (“V”) (then 14 years 4 months old) on Facebook, a social media platform.

Immediately after V accepted the request, Mr Ng asked V to be his girlfriend. Between 11 March and 13 March, Mr Ng sent lewd and sexually explicit messages and asked for a variety of sexual favours, even though he knew V to be too young to have sexual intercourse (V disclosed that she was aged 15). Mr Ng also asked V to meet him at a shopping mall—while V agreed on the night of 12 March to meet him the next day, the meeting did not materialise as V changed her mind later. By 13 March, it was clear that V had rejected Mr Ng’s advances, stating that he was too old for her and she did not want a relationship with him or to engage in sexual acts with him. Since then, Mr Ng should reasonably have known that sending V further messages of this sort would have caused her harassment.

Nonetheless, on and after 14 March, Mr Ng continued to send V messages and ask for sexual favours (which only got more explicit and depraved); these caused V harassment. The final straw for V came on 20 August 2017, when Mr Ng sent V a picture of a penis; she blocked him on Facebook.

However, in February 2018, Mr Ng managed to find out V’s phone number. Between 20 and 23 February 2018, he began calling her, and sending her more sexually explicit messages and requests via text message, WhatsApp messenger, and the Instagram messaging platform.

On 24 February 2018, V filed a police report on the advice of a teacher in whom she had confided these matters. This led to Mr Ng’s arrest.

Mr Ng sent these messages because he wanted to befriend V and because he felt “horny” thinking about it.

Preliminary comments on sentencing under s 7 PHA

The sentencing of offenders under s 7 of the PHA has been the subject of 3 recent High Court decisions. In chronological order, they are: Tan Yao Min v Public Prosecutor [2018] 3 SLR 1134 (“Tan Yao Min (HC)”), Lim Teck Kim v Public Prosecutor [2019] SGHC 99 (“Lim Teck Kim (HC)”) and Sim Kang Wei v Public Prosecutor [2019] SGHC 129 (“Sim Kang Wei (HC)”). These decisions are at odds in some ways. Briefly, Lim Teck Kim (HC) prescribed a points-based framework that in some ways disagreed with Tan Yao Min (HC) (among other decisions), while Sim Kang Wei (HC) explicitly eschewed that framework in favour of reasoning from decided cases, without prescribing an alternative framework.

I would have preferred to adjourn sentencing in view of an appeal pending before a 3-judge High Court in which the sentencing framework for this offence might be more definitively ruled upon. However, Mr Ng had been on remand and, on a preliminary view, there had been a risk—which I could not overlook—that such an adjournment would cause Mr Ng’s period of remand to exceed any imprisonment term to which he might be sentenced. Neither was I inclined to relax the terms offered for bail beyond what had been initially offered to Mr Ng, since neither party broached this and, all things equal, he was no less a flight risk (in fact, he had been remanded for a prior failure to attend court). In view of the prejudice to Mr Ng, I sentenced him after a short adjournment to consider the submissions on sentence, this being what I considered to be the least imperfect approach in my circumstances.

Sentencing submissions

The Prosecution submitted that: having regard to the precedents, the appropriate sentence was 8 months’ imprisonment because: the present case was as aggravated as Moh Yan Chung and Tan Yao Min (HC), where 6 months’ and 8 months’ imprisonment were imposed respectively for the unlawful stalking charge,¹ as it featured 4 aggravating factors: Mr Ng pursued a sexual relationship with V despite knowing that she was a minor;² Mr Ng’s conduct was prolonged and extremely persistent;³ the sexually depraved content of the messages led to V feeling increasingly harassed;⁴ and Mr Ng showed little remorse;⁵ and the court has imposed at least 5 months’ imprisonment where a minor is involved;⁶ but if the points system were applied, Mr Ng should be sentenced to 3.2 months’ imprisonment (which would, however, be manifestly inadequate given the aggravating facts),⁷ being the sentence recommended for a case with 9 points attributed as follows: in terms of the offence-specific factors: the duration/frequency of stalking should attract 4 out of 5 points for its length and persistence; the intrusiveness, which was low, should attract 1 out of 3 points; V’s vulnerability as a minor should attract the maximum 3 points by default; and V suffered no lasting harm (apart from a fear of being raped by Mr Ng), and this should attract 1 out of 3 points; and in terms of offender-specific factors, the guilty plea should merit no discount; and reasoning from precedents was preferable to applying the points system, because: the points system in Lim Teck Kim (HC) was problematic;⁸ and the court could discern a sentencing pattern from decided cases.⁹

Mr Ng, apart from an oral mitigation, had no submissions on sentence.

Reasoning Part 1: The approaches to sentencing under s 7 PHA

Strictly speaking, I do not consider myself bound by either Lim Teck Kim (HC) or Sim Kang Wei (HC) insofar as there is a conflict because they are equally binding decisions from higher courts of coordinate jurisdiction (Chan Yat Chun v Sng Jin Chye and another [2016] SGHCR 4 at [10] and Public Prosecutor v Joseph Chin Saiko [1972] 2 MLJ 129 (HC, Malaysia) per Lee Hun Hoe J; see also Lim Quee Choo (suing as co-administratrix of the estate of Koh Jit Meng) and another v David Rasif and another [2008] SGHC 36 at [59]). And, respectfully, I am not fully persuaded by either approach.

Concerns with the points system in Lim Teck Kim (HC)

In my understanding, Lim Teck Kim (HC) essentially posits the following: The sentencing of offenders under s 7 PHA should, in accordance with Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (CA) (“Terence Ng (CA)”), proceed in two stages. At the first stage, the court should have regard to offence-specific factors that relate to both the degree of harm caused and the degree of culpability. To refine the Terence Ng (CA) methodology, there should be a points system, where the sentencing court would assign points to the case at hand depending on its seriousness. In this regard, there are generally 7 offence-specific factors attracting up to 3 or 5 points each. The total points would determine a notional, indicative starting sentence (“first-stage sentence”), as follows: $1,000 per point, for cases assigned 1–5 points; and 0.8 months’ imprisonment for every point beyond 5 points, for cases assigned more than 5 points (Lim Teck Kim (HC) at [21] and [27]–[39]). At the second stage, the court should have regard to and place weight on each offender-specific factor as appropriate in its discretion, and calibrate the sentence to best fit the offender’s circumstances (Lim Teck Kim (HC) at [43]–[46]).

Many interrelated critiques of the points system were offered by the Prosecution and in Sim Kang Wei (HC)—broadly, they could be categorised into those concerning the idea of a points system in general, the amenability of this offence to a points system, and this points system in particular. I thought that the two former categories were not necessarily death knells for a points system (or, at least, a systematic sentencing framework). However, my strongest reservation toward applying the points system in its entirety stemmed from my view that there were still concerns with this points system that could not be immediately and satisfactorily resolved.

Whether points systems in general are problematic

The foremost category of critiques can be said to be directed at points systems in general. Supposedly, in this regard: First, the reason for developing the points system (ie, that Terence Ng (CA) has an overt focus on the number of aggravating factors and does not address the issue of weight ascribed to each (Lim Teck Kim (HC) at [26])) is false, since Terence Ng (CA) does require the court to consider both the number of factors and the intensity of each (Sim Kang Wei (HC) at [35]). Second, a points system reflects the qualitative exercise of sentencing in quantitative terms (Sim Kang Wei (HC) at [44]). Third, the points system contradicts the principle that sentencing is not a formulaic or mechanistic process but a multi-layered determination of what is just in the circumstances (Edwin s/o Suse Nathen v Public...