Sim Wen Yi Ernest v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 29 August 2016
• Neutral Citation: [2016] SGHC 174
• Plaintiff Counsel: Shashi Nathan and Tania Chin (KhattarWong LLC)
• Date: 29 August 2016
• Docket Number: Magistrate’s Appeal No 9128 of 2015
• Hearing Date: 24 June 2016,08 July 2016,29 July 2016,05 July 2016
• Subject Matter: Appeals,Sentencing,Criminal Procedure and Sentencing
• Published date: 03 September 2016
• Defendant Counsel: Prem Raj Prabakaran (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 174
• Year: 2016

See Kee Oon JC: Introduction

In December 2013, the appellant, Sim Wen Yi, Ernest, bought two types of airsoft arms (an airsoft pistol and an airsoft gun) in Thailand and brought them back to Singapore. He was 25 years old then. He first started using these arms to shoot at trees and inanimate objects. This escalated when he began shooting people from his second floor residential unit, taking aim at them as they walked along public areas below. In January 2015 alone, he shot at three unsuspecting persons on four occasions. The hard, non-compressible plastic pellets discharged from these arms even hit one of the victims on her temple, near her eye.

Eight charges under the Arms and Explosives Act (Cap 13, 2003 Rev Ed) (“the AEA”) and the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) were preferred against the appellant. He pleaded guilty to and was convicted of three charges for the following offences: Importation of the airsoft pistol under s 13(1)(b) read with s 13(2)(a) of the AEA for which he was sentenced to a fine of $8,000 (“the Importation Charge”). Possession of the airsoft gun under s 13(1)(a) read with s 13(4) of the AEA for which he was sentenced to a fine of $4,000 (“the Possession Charge”). Voluntarily causing hurt using an airsoft gun, an instrument for shooting under s 324 of the Penal Code for which he was sentenced to seven weeks’ imprisonment (“the s 324 charge”).

The s 324 charge

The arguments on appeal largely concerned the custodial sentence imposed for the s 324 charge. In the proceedings below, the prosecution submitted that an eight-week imprisonment term would be appropriate given that (a) the appellant had targeted and shot at the victim; (b) the offence was premeditated; (c) the offence was committed out of mischief and boredom; (d) the offence could have resulted in serious injury to the victim and (e) the appellant had shot at two other victims as reflected in the three other related charges which were taken into consideration for the purpose of sentencing.

In their written submissions filed for the purposes of the appeal, the prosecution maintained that a custodial sentence would still be warranted for the s 324 charge. However the prosecution changed their position on the appropriate length of the custodial sentence, and submitted instead that a one-week imprisonment term would be sufficient. They highlighted a recent development, namely a test conducted post-sentence by the Health Sciences Authority (“HSA”) that was inconclusive as to the degree of dangerousness posed by the airsoft arms in question¹.

The appellant accepted that the prosecution’s submission was extremely fair but nevertheless implored the court to consider the possibility of a probation order.² The appellant also urged the court to consider exercising its powers under s 390(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) to alter the charge from s 324 of the Penal Code to s 337 or s 352 of the same.³ The principal reason for this was that the prosecution had not clearly established that any serious hurt was caused to the victim.

I did not think that probation was appropriate. However I was persuaded that it would be fair and just to alter the s 324 charge to a lesser charge under s 337 of the Penal Code and I accordingly gave the necessary order. The appellant was thus eligible to be considered for a Community-Based Sentence (“CBS”) or a suitable combination of CBSs. As the appellant was found suitable to perform community service, I concluded that a combination of a Short Detention Order (“SDO”) and a Community Service Order (“CSO”) would be the most appropriate order on the facts.

In allowing the appeal, I delivered a brief oral judgment. I now set out the full grounds of my decision. These grounds will focus primarily on why I altered the s 324 charge and imposed a combination of CBSs (as opposed to probation or some other sentence). I will also make several observations on the correctness of the sentences imposed in relation to the Importation Charge and Possession Charge. This concerned the issue of whether a fine and an imprisonment term were both mandated by law.

Whether the High Court has the power to alter the s 324 charge

Section 390(4) of the CPC permits the appellate court to frame an altered charge (whether or not it attracts a higher punishment), if the court is satisfied that, based on the records before it, there is sufficient evidence to constitute a case which the accused has to answer. A reading of s 390(3) of the CPC confirms that this is a power that applies even where an accused has pleaded guilty and has been convicted on such plea.

This interpretation was not disputed by the prosecution in the course of the hearing of the appeal. It is supported by a recent decision of Sundaresh Menon CJ in Koh Bak Kiang v Public Prosecutor [2016] 2 SLR 574 (“Koh Bak Kiang”). The facts of Koh Bak Kiang are as follows. On 29 November 2007, the accused pleaded guilty to two charges for trafficking in diamorphine and one for the possession of ketamine. He asserted in mitigation through his counsel that he did not know the precise nature of the drug he was trafficking. He had been led to believe that it was a drug other than diamorphine. He nonetheless maintained that he was not qualifying his plea.

Some six and a half years after the accused pleaded guilty, he filed a criminal motion seeking an extension of time to appeal against his convictions. Since his main complaint was that his convictions were unsafe because he had qualified his plea, the matter was remitted to the District Court for it to record evidence on the specific point of whether the accused had knowledge of the nature of the drug he was trafficking in. Subsequently, both the accused and the prosecution were in agreement that the most appropriate course was for the court to substitute, in the place of the earlier convictions, convictions on amended charges. The question that arose was whether the court had the power to substitute the convictions on the disputed charges with convictions on amended charges. The provision that was in issue was s 256(b) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC 1985”), the predecessor of s 390(4) of the CPC, which provided that the court may:

in an appeal from a conviction — (i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or committed for trial; (ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the sentence; or (iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the sentence[.]

CJ Menon referred to the decision of Garmaz s/o Pakhar and another v Public Prosecutor [1996] 1 SLR(R) 95 (“Garmaz”) in which the Court of Appeal confirmed that s 256(b) of the CPC 1985 empowers the High Court, when hearing an appeal from a conviction made after a trial to amend a charge and convict the accused person on the amended charge, subject to the safeguard that the amendment did not cause prejudice to the accused. In Koh Bak Kiang, the prosecution and the appellant agreed that the charge should be amended. CJ Menon drew support from cases in which the power to amend the charge on appeal had been previously exercised where the accused had pleaded guilty in the court below (eg, Public Prosecutor v Henry John William [2002] 1 SLR(R) 274) and held that the High Court’s power to amend the charge in its appellate capacity under s 256(b) of the CPC 1985 extended to situations where the accused had pleaded guilty in the court below (at [55]). It was in this context that CJ Menon observed that any want of clarity in the CPC 1985 has been resolved by s 390 of the present CPC which sets out the powers of an appellate court in hearing an appeal against a sentence imposed following a plea of guilt (at [55]).

Whether the court should exercise its powers to alter the s 324 charge

On the premise that the High Court has the power to amend a charge and convict an accused person on the amended charge in cases where the accused had pleaded guilty in the court below, the next question that arises is whether this power should be exercised. It has been held that the power must be exercised sparingly, subject to careful observance of the safeguards against prejudice to the defence: Public Prosecutor v Koon Seng Construction Pte Ltd [1996] 1 SLR(R) 112 at [21]. Therefore, to avoid injustice and prejudice to the accused, the court must be satisfied that the proceedings below would have taken the same course, and that the evidence recorded would have been the same.

If there is no reason to impugn the correctness of the charge, there would correspondingly be no reason to alter it. Thus, in determining whether the s 324 charge should be altered in the present case, the first question to ask was whether the conviction under s 324 was correct. In my assessment, this question had to be addressed as there were material uncertainties in the prosecution’s case which caused concern: first, whether the airsoft gun was indeed as dangerous as suggested by the prosecution through the literature tendered, in spite of the inconclusiveness of recent HSA tests; and second, whether hurt was in fact caused to the victim (which is a distinct enquiry from whether hurt could potentially have been caused) and the extent of hurt involved.

The airsoft gun was accepted to be a dangerous weapon by definition only because s 324, which creates the offence of causing hurt with a dangerous weapon, defines such a weapon to include “any instrument for shooting”. But on a purely literal reading, without further reference to the requirement that hurt has to be caused in order to satisfy the requirements of s 324, even a “Nerf” gun (ie a toy gun which fires soft foam...