Public Prosecutor v Tan Fook Sum

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 April 1999
• Neutral Citation: [1999] SGHC 80
• Docket Number: Magistrate's Appeal No 170 of 1998
• Date: 01 April 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Sowaran Singh and Toh Han Li (Deputy Public Prosecutor)
• Citation: [1999] SGHC 80
• Defendant Counsel: Respondent absent
• Court: High Court (Singapore)
• Subject Matter: Applicable principles,Mitigation,Sentencing,Whether court has discretion to award deterrent sentence,Whether respondent can raise audi alteram partem,Retribution, deterrence and public interest,Prosecution's omission to press for deterrent sentence,Prosecution serving appeal papers on respondent,respondent not turning up for hearing,Appeal,'sentence according to law',ss180(n)(ii) & 192(2) Criminal Procedure Code (Cap 68),Whether plea of guilt, financial hardship and clean record to be given due weight on facts of case,Whether custodial sentences with fine warranted,Criminal Procedure and Sentencing,Whether appellate court can proceed with hearing in his absence,Words and Phrases

Judgment:

YONG PUNG HOW CJ

This is an appeal by the Public Prosecutor against sentence.

2.On 27 June 1998, the respondent pleaded guilty before the learned magistrate to and was convicted on the following charge:

You, Tan Fook Sum, male 37 years old, passport no A6199032, are charged that you on or about 23 June 1998 at about 5am on board Singapore Aircraft SQ flight 346 en route to Spain, Madrid, and when the flight is [sic] somewhere in Larnaca, Cyprus wilfully endanger [sic] the safety of the said aircraft and that of 237 passengers and 21 crew members on board the said flight, to wit, by lighting a fire on board the aircraft and you have thereby committed an offence punishable under para 45 of part V of the Air Navigation Order read with para 80(6) of the said Order.

3.Paragraph 45 of the Air Navigation Order (Cap 6, O 2) (`the Order`) provides as follows:

A person shall not wilfully or negligently imperil the safety of an aircraft or any person on board, whether by interference with any member of the flight crew of the aircraft, or by tampering with the aircraft or its equipment or by disorderly conduct or by any other means.

Paragraph 45 is one of the provisions specified in Part B of the Thirteenth Schedule of the Order. The penalty for contravention of para 45 is spelt out in para 80(6) of the same Order, which provides:

If any person contravenes any provision specified in Part B of the Thirteenth Schedule he shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term of one year or to both.

4.The learned magistrate sentenced the respondent to a fine of $2,000 or in default four weeks` imprisonment.

5. The facts

These were contained in the statement of facts (exh A) to which the respondent admitted without qualification. They were as follows.

6.On 22 June 1998 at about 11.30am, the respondent took Singapore Airlines flight SQ346 from Singapore Changi Airport bound for Madrid, Spain via Zurich for a holiday. He was seated in the economy class section of the aircraft. Sometime after midnight, the respondent went to the business class section to rest as that section was not fully occupied. At about 4.45am, the cabin crew approached the respondent and told him to return to his economy class seat. The respondent was unwilling to do so and argued with the cabin crew for not allowing him to remain in the business class section. He later reluctantly returned to his economy class seat. At about 5am, the respondent went to the toilet in the economy class section to urinate. While in the toilet the respondent, overcome with frustration with the cabin crew, took some rolls of tissue paper from the toilet, placed them in the wash basin and used his lighter to set fire to them. After starting the fire, the respondent returned to his seat. The smoke in the toilet triggered off the fire alarm and caused panic among the passengers and crew members. The fire was eventually extinguished by flight stewardess Jean Leong Suit Fun who had smelled the smoke and heard the fire alarm. She also saw the respondent running out from the toilet. She subsequently notified the captain of the flight who reported the matter to the Zurich police authorities. The respondent was repatriated from Zurich and arrived in Singapore at about 8.45am on 25 June 1998.

7.The respondent claimed that he merely wanted to cause inconvenience to the cabin crew. He was not suffering from any mental disorder nor was he drunk at the time of commission of the offence.

8. The magistrate`s grounds of decision

In sentencing the respondent the learned magistrate took into account the following factors: (a). that the respondent had committed the act impulsively on the spur of the moment without premeditated intent;

(b). that the item set alight was not a huge item and the fire was started in the wash basin, thus the possibility of a life-threatening fire occurring was small;

(c). that no one was injured by the respondent`s act nor was there serious damage caused to the aircraft;

(d). that there were no known local or foreign precedents or tariffs for such an offence;

(e). that the prosecuting officer did not make any submissions on sentence; and

(f). that the respondent had pleaded guilty.

As such, the learned magistrate was of the view that the respondent`s conduct did not warrant a custodial sentence although she considered it sufficiently serious to justify the imposition of the maximum fine a magistrate`s court can impose. She therefore sentenced the respondent to a fine of $2,000 or in default four weeks` imprisonment. The respondent paid the fine and returned to Malaysia on 29 June 1998 after serving two days` imprisonment in Queenstown Remand Prison.

9. Grounds of appeal

The Public Prosecutor, being dissatisfied with the sentence imposed, appealed against it. In reply to the factors which the learned magistrate considered mitigatory, the appellant essentially contended: (a). that the respondent`s act of starting the fire was not an act done on impulse but was a calculated and deliberate act of retaliation against the cabin crew;

(b). that it was not correct to say that the item set alight was not a huge item and the fact that the fire was started in the wash basin made the possibility of a life-threatening fire small - the fire did not extinguish itself after burning for some time but grew large enough to trigger off the fire alarm, causing panic among the passengers and crew, and it was only the timely intervention of the flight stewardess that prevented the fire from spreading;

(c). that the fact that there were no known local or foreign precedents or tariffs did not mean that the respondent was entitled to be treated leniently;

(d). that the learned magistrate failed to take into account the fact that the prosecution had proceeded on the more serious limb of para 45 of the Order, namely, the `wilful` limb as opposed to the `negligent` limb;

(e). that cases from other jurisdictions indicated that the courts would not tolerate acts which endangered the safety of passengers and crew on public transport and would pass custodial sentences to reflect this;

(f). that the public expect and should be assured of the highest standards of safety in air travel in view of the vulnerability of aircraft in flight, and that persons who wilfully imperil air safety should be dealt with severely;

(g). that there is no requirement in law for the prosecution to press for a deterrent sentence before a court may consider it in the exercise of its discretion; and

(h). that the respondent`s plea of guilt was not a factor in mitigation as he had effectively been caught red-handed.

Therefore the appeal should be allowed and a substantial custodial sentence imposed on the respondent.

The appeal

10. Preliminary point: non-appearance of the respondent

The respondent was absent when the appeal first came up for hearing on 29 September 1998. I was then informed by the prosecution that it was unable to confirm if the notice of appeal had been served on the respondent. The delay in service was due to the fact that the respondent had, in the course of investigations, given the police his previous address but it later transpired that he no longer resides there. As such, I adjourned the matter for service to be effected on the respondent in compliance with s 254 of the Criminal Procedure Code (Cap 68) (`the CPC`).

11.Subsequently, service of the notice of appeal, petition of appeal, notes of evidence, the learned magistrate`s grounds of decision, the prosecution`s skeletal arguments and the registrar`s notice of the hearing date together with a covering letter from the prosecution was successfully effected on the respondent at his present address. In his affidavit filed on 16 November 1998, the investigating officer, Staff Sergeant Toh Hock Guan (`SSgt Toh`), deposed that on 7 November 1998, the respondent contacted him by telephone in his office. The respondent confirmed that he had received the above-mentioned documents which had been sent by ordinary post. SSgt Toh explained that the Public Prosecutor was appealing against the sentence imposed by the learned magistrate and that the respondent had the right to appoint counsel to defend himself. The respondent, however, informed SSgt Toh that he did not intend to come to Singapore for the hearing of the appeal. SSgt Toh then explained that the High Court had the power to make an order adverse to him in his absence but the respondent maintained that he did not wish to appear at the hearing of the appeal.

12.The respondent was true to his word. I therefore decided to issue a warrant of arrest (HCWA 2/98) against him at the adjourned hearing on 19 November 1998. I also directed that the warrant be executed with the assistance of the Malaysian authorities under the provisions of s 55 of the CPC, and adjourned the matter again until such time as the respondent could be produced before me. Unfortunately, the warrant could not be executed. The prosecution, being desirous of disposing of the appeal, requested that it be re-listed for hearing, notwithstanding the absence of the respondent. The appeal was finally fixed for hearing on 2 March 1999, at which time I proceeded to hear submissions on the merits.

13.Section 254 of the CPC, which provides for the hearing of an appeal in the absence of the respondent, is in the following terms:

(1) If at the hearing of the appeal the respondent is not present and the court is not satisfied that the notice of appeal was duly served upon him, the court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a future day for his appearance and shall issue the requisite notice to him for service through the Registrar.

(2) If service of the last-mentioned notice on the respondent cannot be effected, the court shall proceed to hear the appeal in his...