Public Prosecutor v Ryan You Jun Chao

• Jurisdiction: Singapore
• Judge: Adam Nakhoda
• Judgment Date: 04 September 2020
• Neutral Citation: [2020] SGMC 42
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Arrest Case No 901837 & 901839 of 2019
• Published date: 07 January 2021
• Year: 2020
• Hearing Date: 28 February 2020,29 June 2020
• Plaintiff Counsel: DPP Pavithra Ramkumar (Attorney-General's Chambers)
• Defendant Counsel: Mr Raphael Louis (Ray Louis Law Corporation)
• Subject Matter: Criminal Procedure And Sentencing,Sentencing,Insulting modesty of a woman,Penal Code Cap 224, 2008 Rev Ed,Criminal Procedure Code Cap 68, 2012 Rev Ed,Short Detention Order
• Citation: [2020] SGMC 42

District Judge Adam Nakhoda: Introduction

The Accused, a student at the National University of Singapore and resident at one of the university’s residential halls on two separate occasions entered a common female toilet (the female toilet) located in the residential hall in order to photograph women who were using the toilet.

The Accused pleaded guilty to two charges under s 509 of the Penal Code (PC). I sentenced the Accused to seven weeks’ imprisonment for each charge and ordered that both sentences were to run concurrently. The Accused being dissatisfied with the sentence has appealed. He is currently on bail pending the hearing of the appeal.

Charges

The details of the two charges are as follows:

MAC 910837 of 2019

You, Ryan You Jun Chao, are charged that you, on 14 February 2019 between 7.10 am and 7.22 am, at the common female toilet located at level 9 of [residential hall], University Town, National University of Singapore, 18 College Avenue East, Singapore, intending to insult the modesty of one ABC (F/23 years old), did intrude upon her privacy, to wit, by using your Oppo mobile phone to take photographs of the said ABC while she was showering, and you have thereby committed an offence punishable under Section 509 of the Penal Code (Cap 224, 2008 Rev Ed).

MAC 910839 of 2019

You, Ryan You Jun Chao, are charged that you, on 5 March 2019 between 1.45 am and 2.00 am, at the common female toilet located at level 9 of [residential hall], University Town, National University of Singapore, 18 College Avenue East, Singapore, intending to insult the modesty of one XYZ (F/23 years old), did intrude upon her privacy, to wit, by using your Oppo mobile phone to take photographs of the said XYZ while she was showering, and you have thereby committed an offence punishable under Section 509 of the Penal Code (Cap 224, 2008 Rev Ed).

Facts

The Accused is Ryan You Jun Chao, a 25-year-old male Singaporean. The Accused and the victims ABC and XYZ were residents at an NUS residential hall and their rooms were located on the same level of the residential hall.

Facts pertaining to MAC 901837 of 2019

On 14 February, at some time before 7.10 a.m., the Accused awoke and was tempted to check and see if there were any women showering in the female toilet. He walked over the female toilet, observed that the door was held open by a stopper and heard showering sounds from inside the female toilet. The Accused entered the female toilet and noticed that someone was using the first cubicle. He then took out his Oppo mobile phone (mobile phone), switched it to camera mode, held it over the cubicle partition and took photographs of the ABC as she showered.

Whilst the Accused was taking photographs, ABC noticed a shadow outside her cubicle. She then looked up and spotted the mobile phone held above the cubicle partition. ABC shouted and pushed the mobile phone away. The Accused panicked and fled out of the female toilet and went to the male toilet. ABC reported that she felt uncomfortable as a result. The photographs of ABC recovered from the Accused’s mobile phone showed that she was fully nude.

Facts pertaining to MAC 910839 of 2019

Approximately two to three weeks after the incident, on 5 March, in the early hours of the morning, as Accused was walking along the hallway to his room he was again tempted to check to see if there were any women showering in the female toilet. He then walked to the female toilet and observed that the door of the toilet was held open by a stopper. Hearing showering sounds from within the female toilet, the Accused entered and saw that someone was using the first cubicle.

The Accused then took out his mobile phone, switched it to camera mode, held it over the partition and took photographs of XYZ showering. The Accused then left the female toilet and went to the pantry to check the photographs. Having done this, the Accused returned to his room.

During her shower, XYZ had noticed a shadow outside her cubicle and had seen part of the Accused’s hair above the cubicle door. XYZ stopped her shower, wrapped herself in a towel and waited for other women to enter the female toilet before she felt it was safe enough for her to continue her shower. After leaving the female toilet, she noticed the Accused at the pantry. XYZ reported that she felt uncomfortable and unsafe and that, since the incident, she avoided using the female toilet. The photographs of XYZ recovered from the Accused’s mobile phone showed that she was fully nude.

Other facts

The Accused admitted that he had committed the offences described above and that he had deleted the photographs prior to surrendering his phone to the police for investigations. It would appear that the police managed to recover the photographs of ABC and XYZ and this showed that the Accused had photographed both victims whilst they were nude.

Charges taken into consideration for the purposes of sentencing

The Accused admitted to and consented to two charges of criminal trespass under section 447 of the PC being taken into consideration for the purposes of sentencing.

Issues to be determined

The issues to be determined were: Whether a Community Based Sentencing (CBS) order or combination of orders was appropriate; and If CBS was not appropriate, then on the facts and circumstances of the case, whether the Court should impose a fine rather than a custodial sentence.

Sentencing Prescribed Penalties

S 509 is punishable with a fine not exceeding $20,000 or with imprisonment for a term not exceeding one year or to both.

Antecedents

The Accused had no antecedents.

Prosecution’s Submissions on Sentence

The Prosecution sought a sentence of eight weeks’ imprisonment for each charge and for the sentences to run concurrently.

Appropriateness of CBS options

In oral submissions, the Prosecution objected to the calling of a pre-sentence report for CBS. The Prosecution submitted that in GCX v PP [2019] 3 SLR 1325, See J held, at [32] and [33], CBS options were introduced to give the courts more tools to respond to the sentencing principle of rehabilitation and if an offender possessed no rehabilitative potential then a CBS would be ineffective and inappropriate. The inquiry into whether the Accused possessed rehabilitative potential should “not take place in a vacuum, with a single-minded focus only on [the Accused’s] prospects for rehabilitation, ignoring the presence of other sentencing principles”. Therefore, the Prosecution submitted, that there needed to be a balancing of the principles of deterrence, retribution, prevention and rehabilitation.

The Prosecution submitted that the facts of the case demonstrated that deterrence was the key sentencing consideration. The Prosecution pointed to the fact that the Accused was 24-years old at the time of the offence and was not a young offender. The Prosecution argued that Accused had brazenly trespassed into the female toilet on two occasions to commit the offences. He had demonstrated voyeuristic ways and a disregard for the modesty and privacy of his victims. The Prosecution submitted that the fact that the Accused had attempted to delete the photographs should evinced an intention to destroy the evidence.

Referring to the Institute of Mental Health (IMH) report tendered by the Defence¹, the Prosecution submitted that there was no proven causal link between the Accused’s diagnosis of Adjustment Disorder and the offences. The Prosecution submitted that I should give no weight to the report.

The Prosecution submitted, on the authority of Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755, that I should not give any mitigating weight to the submission that a custodial sentence would likely have a deleterious effect on the Accused’s future prospects.

The Prosecution submitted that even if the Accused had the propensity for reform this was clearly eclipsed by the need for general and specific deterrence. The Prosecution submitted that there was an increasing number of voyeurism offences being committed especially on university campuses. The Accused had used a recording device to commit the offences and on the authority of Public Prosecutor v Chong How En [2015] 3 SLR 222 the Prosecution submitted that on this fact the principle of general deterrence applied.

Submission on sentence

In addition, to the aggravating factors referred to above, the Prosecution submitted that the degree of intrusion was high, as the Accused had photographed the victims when they were fully nude. The Prosecution emphasised that it was an aggravating factor that the Accused deleted the photographs.

The Prosecution referred to its table of sentencing precedents as a guide to the sentences imposed on Accused charged with similar s 509 offences. The Prosecution argued that I should not draw a distinction between offenders who photographed their victims and offenders who filmed their victims as both types of recording required the use of recording devices. The Prosecution submitted that the case precedents relied upon by the Defence, in particular GCO v Public Prosecutor [2019] 3 SLR 1402 and Public Prosecutor v Yee Chun Wei [2015] SGDC 15 were distinguishable.

Mitigation Circumstances of the offences

The Defence portrayed the Accused’s offending conduct as a momentary lapse of judgment. The Defence submitted that there was no planning or premeditation on the part of the Accused and instead that the Accused had acted impulsively and had given in to a sudden urge to look at the victims in the female toilet.

Mitigating factors

The Defence submitted that the Accused was ashamed of his actions and that he was genuinely remorseful and contrite. The Accused had sought to apologise to the two victims and to this end, he had drafted letters of apology that he hoped the victims would receive. However, he was unable to send the letters to the victims as the...