TIEN KIAT CHONG v PUBLIC PROSECUTOR

Facts

The appellant, Tien Kiat Chong, used his mobile phone to film up the skirts of young women he did not know on 19 occasions, on escalators in public places, at an MRT station and in a shop. He pleaded guilty to one amalgamated charge under the now-repealed s 509 of the Penal Code, and a further charge of possessing 37 obscene films was taken into consideration. He was 27.

The District Judge refused probation, finding that he had shown some, but not an extremely strong, propensity for reform and that deterrence was the dominant concern. He was sentenced to 12 weeks' imprisonment. On appeal in Magistrate's Appeal No 9164 of 2022, he asked for probation, relying on nearly three years of rehabilitation efforts since his arrest, including psychological treatment and more than a year of counselling. In the alternative, he argued that the jail term was manifestly excessive.

Issues

1. Whether an offender above 21 can be placed on probation, and whether this appellant showed the extremely strong propensity for reform needed to make rehabilitation the dominant sentencing aim.
2. Whether deterrence would have remained the dominant consideration for this voyeurism offending in any event.
3. Whether 12 weeks' imprisonment was manifestly excessive.

Holding

Vincent Hoong J dismissed the appeal against sentence in an ex tempore judgment. Probation was not suitable, and the 12-week jail term was not manifestly excessive.

Reasoning

There is no statutory age limit on probation for an offence like this one, but for an adult, rehabilitation is the dominant aim only if the offender shows an extremely strong propensity for reform or there are exceptional circumstances. The court applied the three-step framework in Public Prosecutor v Siow Kai Yuan Terence [2020] 4 SLR 1412.

On the desire to change, the judge thought the District Judge should have given more credit for the appellant's substantial counselling and his frank admissions, and was wrong to discount steps taken only after arrest, since the inquiry is about conduct after the offence. Still, the overall finding of only a fair degree of resolve stood. The appellant had denied filming when first confronted and in his first statement, confessing only after police seized his phone, and a psychological assessment showed a strong tendency to give socially desirable answers. On his support network, positive influences such as his studies had existed while he offended, and family supervision is of limited use for offences committed in private.

In any event, following Nicholas Tan Siew Chye v Public Prosecutor [2023] SGHC 35, deterrence is generally dominant for this kind of offending by adults, and the court applied that principle to the old s 509 offence too. Upskirt filming is common, easy to commit and hard to detect; here there were 19 videos over 100 days, at least one on public transport, and he watched them at home. Compared with Public Prosecutor v Chong Hou En [2015] 3 SLR 222, where filming one stranger in a mall drew 12 weeks, the sentence was if anything lenient.

From the judgment