Public Prosecutor v Tan Kei Loon Allan

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Karthigesu JA
• Judgment Date: 21 October 1998
• Neutral Citation: [1998] SGCA 65
• Citation: [1998] SGCA 65
• Defendant Counsel: Raymond Lye Hoong Yip (E Tay Raymond Lye & Partners)
• Plaintiff Counsel: Francis Tseng, Foo Cheow Meng and Malcolm Tan (Deputy Public Prosecutors)
• Published date: 19 September 2003
• Docket Number: Criminal Appeal No 12 of 1998
• Date: 21 October 1998
• Subject Matter: Culpable homicide Junior offender,Whether to apply benchmark sentence,Whether appropriate to impose life sentence,s 304(a) Penal Code (Cap 224 ),Criminal Procedure and Sentencing,Gang fight,Sentencing,Court's choice should life sentence be excessive

Judgment:

LAI KEW CHAI J

(delivering the grounds of judgment of the court): The respondent pleaded guilty in the High Court to the following charge:

That you, Tan Kei Loon Allan, on or about 25 October 1997, at about 9pm, in front of Dhoby Ghaut MRT station, Singapore, did cause the death of one Png Hock Seng with the intention of causing such bodily injury as is likely to cause death, to wit, by stabbing the said Png Hock Seng with a knife, and you have thereby committed an offence punishable under s 304(a) of the Penal Code (Cap 224).

2.His plea of guilt was accepted and he was duly convicted. Under s 304(a), a person convicted of culpable homicide not amounting to murder may be sentenced to imprisonment for life, or imprisonment for a term which may extend to ten years, and shall also be liable to a fine or caning. Tay Yong Kwang JC sentenced the respondent to seven years` imprisonment and nine strokes of the cane. The Public Prosecutor appealed against that decision. We allowed the appeal and enhanced the sentence to one of ten years` imprisonment and 15 strokes of the cane. We now give our reasons.

3.The respondent admitted to a statement of facts prepared by the prosecution. According to the statement, the respondent is a member of the `Sio Koon Tong` Secret Society. At about 7.30pm on 25 October 1997, the respondent and his friends were assaulted at Bugis Junction, Singapore, by a group of youths who claimed to be members of the `Sio Gi Ho` Secret Society. As they were outnumbered, the respondent and his friends dispersed and ran.

4.The respondent proceeded to Takashimaya Shopping Centre, which is the base of operations for the `Sio Koon Tong` Secret Society, and there met one Stanley Chin Jia Chun and one Andy Ng Guo Hua, amongst others. The respondent was contacted by the other group members who had been assaulted, and it was agreed that they would reconvene at the Dhoby Ghaut MRT Station.

5.On the way to Dhoby Ghaut, the respondent purchased two knives from the Metro Department Store at Paragon Shopping Centre. He retained one knife and gave the other to Andy Ng.

6.Meanwhile, at around 9pm, four of the members of the group assaulted at Bugis Junction, namely, Yeo Hsi Tsung, Benedict Koh Lian Teck, Ong Kiang Heng and Martin Koh Boon Wei, arrived at Parklane Shopping Centre, which is adjacent to the Dhoby Ghaut MRT Station.

7.The deceased and two friends arrived at the pedestrian mall outside Parklane Shopping Centre in a taxi. Benedict, Kiang Heng and Martin confronted the deceased and asked him what gang he belonged to. The deceased replied he was a `Sio Gi Ho` SS member. Thereupon, Benedict, Kiang Heng and Martin started to assault the deceased. Hsi Tsung stood guard and warned the deceased`s two friends not to interfere. They obliged and were not harmed. The same, however, could not be said for the deceased.

8.At this point, Stanley Chin Jia Chun and Andy Ng Guo Hua arrived on the scene and joined in the others in assaulting the deceased. The deceased fell to the ground and covered his head.

9.The respondent, armed with a knife, then came running and called to the others to clear a way for him. He rushed in and stabbed the deceased once in his lower back, inflicting a deep wound which penetrated the spleen, left kidney, liver and several veins and arteries. The deceased died from the injury en route to the hospital.

10.There was no evidence that the deceased had participated in the earlier attack on the respondent and his friends at Bugis Junction.

11. The sentence in the court below

In the court below, the DPP asked for a deterrent sentence on the grounds that (1) the injuries were very serious (2) there was no provocation by the deceased (3) the attack took place in public, (4) the deceased was outnumbered and defenceless, (5) the respondent was an SS member, (6) he had been armed with a dangerous weapon and (7) though he had pleaded guilty, the protection of the public was an important exception to the one-third discount rule. Accordingly, the DPP urged the learned judicial commissioner to impose the maximum permissible sentence, ie life imprisonment and 24 strokes of the cane.

12.In mitigation, it was said that the respondent had dropped out of school after his father had died of throat cancer in 1995. That same year he failed his `N` Level examinations, and was too depressed to complete the repeat year (1996). In July 1997 his mother lost her job as a hawker and his younger brother was now dependent on his relatives. He skipped between jobs and settled as a waiter in Boat Quay where he made friends and was persuaded to join the gang so he could be `protected`.

13.The learned judicial commissioner took the view that a life sentence was too lengthy in view of the Court of Appeal`s ruling in Abdul Nasir bin Amer Hamsah v PP [1997] 3 SLR 643 . Before that decision, a prisoner sentenced to life imprisonment would serve a sentence of 20 years, with the possibility that his sentence might be commuted by one-third for good behaviour. In Abdul Nasir , we ruled that a sentence of life imprisonment was not properly subject to Prisons Regulations relating to the remission of sentences. We said that:

It was not possible to pay lip service to life imprisonment as meaning the remaining natural life of the prisoner, and yet maintain that it was purely an administrative discretion to equate it with 20 years for purposes of remission in the absence of some clear law empowering the executive to do so. To allow that would be going against the will of Parliament.

14.Accordingly, we held that a sentence of life imprisonment condemns a prisoner to incarceration for the remainder of his natural life. The learned judicial commissioner was impressed with the argument that, assuming the 18-year-old respondent lived to the age of 74 (which we take to be the average life expectancy of a Singaporean male), this would have meant that the accused would have effectively received a sentence of some 56 years.

15.The learned judicial commissioner took into account the absence of antecedents, the fact that the accused had surrendered himself to the police (albeit three months after the offence) and his plea of guilt. His accomplices were charged with rioting and were sentenced to between 18 and 30 months` imprisonment and five strokes of the cane. He also reasoned (at [para ] 19 of his grounds of decision) that:

...it was essentially a gangland settlement of scores. This is demonstrated by the fact that the deceased`s two friends, presumably not members of the gangs in question, were told to keep out of the conflict and were apparently not harmed. I do not say for one moment that gangland vengeance attacks are justified in any way. Such senseless, internecine warfare by one gang against another can only lead to tragedy ... [and] must also meet with severe disapproval but they should not be equated with situations where hoodlums loot and shoot completely innocent bystanders without giving a hoot.

16.He considered a sentence of life imprisonment too out of proportion with the seriousness of the crime committed and, having considered the factors we have stated, sentenced him to seven years` imprisonment and nine strokes of the cane accordingly.

17. The appeal against sentence

The PP urged us to enhance the sentence to imprisonment for life and 24 strokes of the cane. The first argument put forth was that a benchmark ought to be set for culpable homicide cases, and the maximum sentence (bar life) of ten years, together with 12 strokes of the cane, was suggested. It was submitted that a benchmark of ten years was suitable because this was the same benchmark adopted for cases of simple rape under s 376(1) of the Penal Code in Chan Kim Heng Frederick v PP [1992] 1 SLR 361 . It was argued that the `tariff` for culpable homicide not amounting to murder ought not to be less than that as culpable homicide was an offence equally, if not more, serious than rape. The present case, it was said, should be treated more seriously than a `benchmark` case because it involved secret society activities, use of a dangerous weapon and a crime committed in a public place. It was therefore said to be a case in which the protection of the public was an important consideration, and where the maximum sentence ought to be imposed.

18.Secondly, it was argued that the learned judicial commissioner erred in failing to take into account R119A of the Prisons Regulations, which was passed after our decision in Abdul Nasir `s case. Under R119A, the Life Imprisonment Review Board reviews the suitability of release of prisoners sentenced to life imprisonment after the prisoner has served 20 years of his sentence, and at intervals of 12 months thereafter. It was therefore said that had the learned judicial commissioner been apprised of R119A, he would not have viewed a sentence of life imprisonment so...