Tan Kay Beng v Public Prosecutor

• Judge: V K Rajah J
• Judgment Date: 07 July 2006
• Neutral Citation: [2006] SGHC 117
• Citation: [2006] SGHC 117
• Defendant Counsel: Lee Lit Cheng (Deputy Public Prosecutor)
• Published date: 10 July 2006
• Plaintiff Counsel: Subhas Anandan and Sunil Sudheesan (Harry Elias Partnership)
• Date: 07 July 2006
• Docket Number: Magistrate's Appeal No 12 of 2006
• Court: High Court (Singapore)
• Subject Matter: Whether court should employ extreme caution in relying on sentencing considerations not tested in argument,Whether restoration of status quo may be sentencing consideration,Whether offence taking place in public place an aggravating factor,Appeals,Criminal Procedure and Sentencing,Whether group offence aggravating factor suggesting act of organised violence,Whether court should explain reason for applying deterrence as sentencing consideration,Mitigation,Whether deterrent sentence warranted,Whether criminal antecedent for gaming in common gaming house relevant consideration in sentencing,Deterrence,Due process,Appeal against sentences for theft and criminal intimidation on ground sentences manifestly excessive,Whether stock phrases to be avoided,General and specific,Sentencing,Weight to be accorded to plea of guilt and restitution when deciding on appropriate sentences,When to apply,Restitution

7 July 2006

V K Rajah J:

1 The appellant, Tan Kay Beng (“Tan”), pleaded guilty to a charge of theft under s 379 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”), as well as to another charge of criminal intimidation under the second limb of s 506 of the PC. The victim in both instances was Wong Loke Hoon (“Wong”), and both offences were committed on the evening of 8 February 2004. The district judge sentenced Tan to 12 months’ imprisonment on the theft conviction and to 21 months’ imprisonment on the conviction of criminal intimidation. Tan appealed against both sentences on the ground that they were manifestly excessive.

2 It is noteworthy that when the appeal came up for hearing, the prosecution neither justified nor defended the sentence meted out for the theft charge. It did however attempt to justify the sentence for the conviction on criminal intimidation although conceding in the concluding submissions that a sentence of 12 months’ imprisonment might be more appropriate. I allowed the appellant’s appeal against both sentences on the basis that they were manifestly excessive. For the theft conviction, I substituted a fine of $1,000 (in default, two weeks’ imprisonment) for the original term of imprisonment. For the conviction of criminal intimidation, I substituted a term of imprisonment of three months for the original sentence of 21 months. I now set out my reasons.

The facts

3 Tan, 41 years of age, is the sole proprietor of “Tiong Poh & Co” a business which supplies traditional Chinese paraphernalia for funerals, weddings, and prayers. His business is stable and he does not have any current financial problems.

4 At some point in October 2003, Wong requested that Tan supply 20 pieces of “Japan Velvet” silk screens. The price for these items was agreed at $880 and Wong placed a deposit of $80 with Tan. This order was purportedly placed on behalf of the management of OP KTV, Wong’s principal. Tan promptly processed the order. However, just prior to the delivery of the items, OP KTV ceased business. Wong then pointedly refused to pay Tan for the screens, insisting that Tan should claim payment from his “boss”. He told Tan that as far as he was concerned he had neither any further interest nor any remaining responsibility for the outstanding debt. Upset by his nonchalant stance, Tan insisted that Wong remain responsible for payment. To no avail. Wong insouciantly ignored all his requests for payment.

5 This impasse prevailed until Tan met, by pure chance on 8 February 2004, John, a former customer of his, at a food centre. Tan bitterly complained to John about Wong’s cavalier attitude towards the outstanding debt. John offered to assist Tan in collecting the outstanding amount and to meet Wong. Tan then contacted Wong asking if they could meet. Wong agreed, informing Tan where he was. Tan thereafter proceeded to the coffee shop, accompanied by John and the latter’s companion. It bears emphasis that the prosecution did not intimate that Tan had any preconceived plan on how he or John intended to persuade Wong to effect payment. There was no prior discussion to threaten or intimidate Wong.

6 Tan and John attempted to reason with Wong that he ought to make payment for the silk screens but were unable to make any headway in reaching an amicable resolution. Suddenly out of frustration Tan banged the table. Wong in turn immediately stood up and held up his beer mug in a menacing posture.

7 In response to Wong’s aggressive reaction, John immediately procured a bread knife from the coffee shop kitchen and pointed it at Wong’s neck. He demanded that Wong put down the beer mug but the latter initially refused to do so. With the knife pointed at Wong’s neck, John then demanded that Wong hand over his possessions in order to settle the debt due to Tan. Wong complied by placing his waist pouch on the table. Tan opened the pouch, removing cash amounting to $166 and a Nokia 8210 mobile phone that has been valued at $100. Tan however returned the SIM card to Wong.

8 John’s companion then duly returned the bread knife to the coffee shop kitchen, after which Tan and his two companions then left the scene. Throughout this brief incident the other patrons in the coffee shop appeared unaffected and carried on with their meals. Subsequently, the police apprehended Tan and the items he took from Wong were duly recovered. John and his friend remain at large and have not been prosecuted.

Decision of the District Court

9 The learned district judge observed in his decision ([2006] SGDC 25) that while Tan had no prior record for theft or criminal intimidation, he had an antecedent for gaming in a common gaming house for which he had been fined $1,000. The learned district judge appeared, without any adequate explanation, to have taken into account as a sentencing consideration this prior conviction of gaming. He stated rather cryptically at [12] that, “[t]hough the accused had no prior criminal record for theft and criminal intimidation, this was not the accused’s first [brush] with the law”. He also seemed to have adopted an uncompromising view that while Tan had pleaded guilty to both charges at the first opportunity, the offences committed were serious and attracted severe penalties.

10 The learned district judge noted that the confrontation that evening “was a confrontation of one person by a group of three”. In his view the number of persons could have resulted in the greater likelihood of harm especially since one member of the group was armed. He stated at [11]:

It is accepted that group pressure and group dynamics may make the offence less likely to be abandoned and could lead to greater harm being caused to the victim or damage being caused. In PP v Tan Fook Sum the Hon Chief Justice held –

14 … Any participation whatsoever, irrespective of its precise form, in an unlawful assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful object. The law of this country has always leaned heavily against those who, attain such purpose, use the threat that lies in the power of numbers. See also Caird (1970) 54 Cr App R 499 at page 507, and Mac Cormack [1981] VR 104 at page 108”

and again, further, at [13]:

… The manner in which the offence was committed smacked of organization. The accused clearly played an active and prominent role in the commission of the commission [sic] of the theft. … It could not be ignored that the theft was committed under threatening circumstances as Wong was held at knifepoint was told to remove his waist pouch [sic]. The knife, if used as a weapon of offence, could cause serious injury or death. The fact that a knife was threateningly used also aggravated the nature of the offence of criminal intimidation.

11 He then relied on the decision on PP v Luan Yuanxin [2002] 2 SLR 98 (“Luan Yuanxin”) as the benchmark authority for the proposition that the use of a weapon invariably justified a deterrent custodial sentence. In that case, a distinction was drawn between criminal intimidation simpliciter and aggravated intimidation emphasising that “the presence of a weapon serves not only to make the threat more menacing, but also goes towards proving the maker’s intent to cause alarm to his victim.”

12 The learned district judge further assessed the fact that the offences were committed in a public place as an important sentencing consideration; see [17]:

[I]t is foreseeable that acts of breaching the public peace in a public place in full view of members of the public would have caused alarm and fear to those who witnessed the incident. The Court also took into consideration this fact in determining sentence. The place of the commission of the offence was taken into consideration in sentencing by the learned Senior District Judge in PP v Diki Zulkarnaini. He stated –

“16. Account may be taken, for the purpose of sentencing of the nature of the premises and scene where the incident took place. See Director of Public Prosecutions v Cotcher (1992) The Times, 29 December 1992.”

13 The learned district judge’s concluding remarks appear to have been profoundly influenced and engendered by what he perceived as wider public interest considerations meriting a deterrent sentence “necessary to deter the accused and like minded offenders from taking matters into their own hands and to [sic] resorting to openly committing offences”.

The purported aggravating factors

Antecedents

14 An antecedent is a relevant and important sentencing consideration if it is similar to the pending charge. It may then reflect a pattern or tendency for repeat offending. Both general and specific deterrence could then become almost inexorable sentencing considerations. However, dissimilar antecedents are by and large of no relevance. In Roslan bin Abdul Rahman v PP [1999] 2 SLR 211, the appellant pleaded guilty to a charge of robbery causing death under s 394 read with s 397 of the PC. In sentencing, the trial judge took into account as a sentencing consideration the appellant’s drug-related antecedents. The Court of Appeal unhesitatingly held that the trial judge should not have done so. Karthigesu JA observed at [14]:

The learned trial judge had proceeded on wrong principles. The appellant’s drug-related antecedents should have no bearing on the present trial as it was completely unrelated to the offence the appellant was charged with. The appellant had no antecedents of offences related to the type of offence he was charged with. The fact that the appellant was a drug addict did not necessarily imply that he was more prone to commit the offence of armed robbery with hurt.

15 Thomas, in Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (Heinemann, 2nd Ed, 1979), explains at p 203:

The existence of a difference between the immediate offence and those recorded against the offender in the past … can be seen,...