Sim Kang Wei v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chua Lee Ming J
• Judgment Date: 21 May 2019
• Neutral Citation: [2019] SGHC 129
• Court: High Court (Singapore)
• Hearing Date: 29 April 2019
• Docket Number: Magistrate’s Appeal No 9337 of 2018
• Plaintiff Counsel: Raphael Louis and Kenii Takashima (Ray Louis Law Corporation)
• Defendant Counsel: Nicholas Khoo and Kang Jia Hui (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Protection from Harassment Act,Unlawful stalking,Criminal Procedure and Sentencing,Sentencing
• Published date: 25 May 2019

Chua Lee Ming J: Introduction

On 18 June 2018, the appellant, Mr Sim Kang Wei, pleaded guilty to, and was convicted on, two charges: theft of an iPhone valued at approximately $100, an offence punishable under s 379 of the Penal Code (Cap 224, 2008 Rev Ed); and unlawful stalking, an offence under s 7(1) of the Protection from Harassment Act 2014 (Cap 265A, 2014 Rev Ed) (“POHA”) and punishable under s 7(6). The acts committed by the appellant were as follows: recording up-skirt videos of the victim without her knowledge; gaining unauthorised access to and making unauthorised modifications to email and social media accounts belonging to the victim; and unsubscribing the victim from courses which she had registered for at the Singapore Management University (“SMU”).

Six other charges were taken into consideration for purposes of sentencing. These six charges comprised the following: two charges under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) for having in his possession obscene films; three charges under s 21(1)(a) of the Films Act for possession of films without a valid certificate; and one charge under s 509 read with s 511 of the Penal Code for attempting to take an up-skirt video of an unknown female subject.

The appellant was born in August 1993. He was 21 years old and a first-year student at SMU at the time he committed the acts stated in the stalking charge. By the time he was charged in court, he was almost 25 years old. His victim, a female student at SMU, was 19 years old at the time of the stalking offence that was committed against her. The appellant and the victim knew each other.

The District Judge called for a probation report. The probation report recommended supervised probation for 18 months, subject to further conditions including curfew time restrictions, 120 hours of community service, attendance at a psychotherapy group programme and a bond to ensure his good behaviour.

However, the District Judge was of the view that deterrence should be the dominant sentencing consideration and decided against probation. He concluded that the appellant “was a spiteful and vindictive adult offender who had systematically conducted a series of unprovoked stalking attacks” against his victim, and sentenced him to three days’ imprisonment for the offence of theft and 10 months’ imprisonment for the offence of unlawful stalking. Both sentences were ordered to run concurrently. The District Judge’s grounds of decision are reported in Public Prosecutor v Sim Kang Wei [2019] SGMC 4 (“GD”). The appellant appealed against the sentences imposed.

The facts

The appellant became acquainted with the victim in 2009. They stopped communicating in 2013 after the victim told the appellant that her then boyfriend did not like the appellant contacting her. Both resumed communicating in 2014 and they separately enrolled in SMU in September 2014 in different courses.

The appellant took a total of 53 up-skirt videos of the victim between January and March 2015, including seven on the victim’s birthday. Another 41 up-skirt videos were attempted but unsuccessful. The appellant claimed that he started to take up-skirt videos of the victim to “understand more about her private life” and he continued to take more up-skirt videos of her “to invade into her private life” as he could not get her attention. The appellant admitted that the last up-skirt videos of the victim on 11 March 2014 were intended to be used to “harass her” by sending them to her anonymously. The appellant did not manage to do so as the police commenced investigations shortly after that.

On 7 March 2015, during an event organised by the SMU judo club (of which both the appellant and victim were members), the appellant stole the victim’s handphone from her bag. The victim discovered the loss and the appellant joined the victim’s friends in the unsuccessful search for the handphone. Later that night, the appellant messaged the victim through Facebook and concocted a fake story about someone possibly having found her handphone. The appellant asked for her passcode purportedly to verify that the handphone was hers. The victim gave him her passcode, after which the appellant lied to her that the handphone that had been found was not hers as her passcode had not worked.

Using the passcode, the appellant unlocked the victim’s phone and went through her photographs. He then used a software to extract the usernames and passwords of the victim’s two Gmail accounts, Hotmail account, Facebook account, Instagram account, SMU student account and the victim’s ex-boy-friend’s Facebook account. The appellant also extracted all of the victim’s photographs and chat history from the phone.

The appellant accessed the victim’s Hotmail account and looked through her inbox. He used the account to send emails (containing URLs of images of the victim) to the victim’s SMU email account and two of the victim’s friends. The appellant then changed the Hotmail account password and downloaded a Hotmail account verification application to the victim’s phone. With the application installed, only the appellant could log into the account.

The appellant next accessed the victim’s Facebook account using his desktop computer. He went through her private messages including her most recent conversations with her ex-boyfriend.

The appellant also accessed the victim’s two Gmail accounts and went through the inboxes but found nothing interesting. He then changed the secondary email for both accounts to that of the victim’s Hotmail account which he now controlled.

The appellant accessed the victim’s Instagram account. He also managed to log into the victim’s Telegram account. However, the victim managed to remotely disconnect the session because she received a notification when the appellant logged into the account. The appellant logged into the account again by getting another access code from the stolen handphone and disconnected the session that the victim had on her own computer.

While going through the victim’s SMSes in the stolen handphone, the appellant saw an SMS from the victim to her sister. In the SMS, the victim said that the appellant had “low EQ” because of a previous incident where despite her reluctance to agree, the appellant insisted on hitching a ride when the victim’s father gave her a ride home.

The appellant was angered by what he saw. On 8 March 2015, he logged into the victim’s SMU student account and de-registered her from one of the modules that she had enrolled in. As there was no immediate reaction from the victim, the appellant used her account to de-register her from another module “to get a reaction from her”.

On 10 March 2015, the appellant logged into the victim’s ex-boyfriend’s Facebook account and used it to send a private message saying “hello” to the victim. The appellant then used his own Facebook account to send a similar private message to the victim, to make her believe that he was also a victim of the same unknown hacker.

As part of his plan to get back at the victim, the appellant created a fake Instagram account with the name “[victim’s name] is here”, mirroring the spelling of one of the victim’s Gmail accounts. The profile picture of the Instagram account was a photograph of the victim. The appellant posted photographs of the victim and her ex-boyfriend with captions that carried sexual innuendos. The Instagram account was set to “public” mode, and these photographs could be viewed by any member of the public.

Meanwhile, on 9 March 2015, the victim reported to SMU that her student account had been hacked and that the hacker had de-registered her from two of her subject modules without her consent. On 10 March 2015, the victim informed the appellant that her SMU student account had been compromised and advised him to change his SMU student password.

On 11 March 2015, the appellant wrote to SMU claiming that he had also been de-registered from one of his subject modules without his consent. SMU investigated and discovered that the IP address which had accessed the victim’s Telegram account without her authority was the same IP address previously tagged to the appellant’s SMU student account.

SMU confronted the appellant on 23 March 2015. He vehemently denied committing the offences and SMU agreed to give him some time to think about it. On the same day, the appellant told the victim that SMU was investigating him and lied to her that he had been threatened by the “harasser” who had sent him up-skirt images of the victim and that he had been extorted into giving the “harasser” $2,000 to stop his actions.

The victim believed the appellant’s lies and accompanied him to meet with SMU staff to try and exonerate the appellant. As the appellant had failed to come clean, the SMU staff informed the appellant that they would leave the investigation to the police.

Sufficiently troubled, the victim went to the police station on 24 March 2015 to make a report about the appellant paying the “harasser” $2,000. The police asked the appellant to give a statement.

In his initial statement, the appellant denied committing any offences. Instead, he concocted a detailed story about how, on 21 March 2015, he received an email from the victim’s Hotmail account attaching a screenshot of a private WhatsApp conversation between the victim and her ex-boyfriend “about masturbating”, together with images of a vagina and the victim lying on the bed.

The appellant said he had been asked to pay the “harasser” $2,000 and that he met a person at 3.00am in Sembawang Park to pass him the money in a white plastic bag. He described the “harasser” as a man “about 1.7 metres tall, Chinese, skinny, wearing jeans, black T shirt, aged around 18”.

The appellant also told the police that on 22 March 2015, he received an email from the victim’s Hotmail account with his home address and was...