NICHOLAS TAN SIEW CHYE v PUBLIC PROSECUTOR

Facts

Nicholas Tan Siew Chye, a 24-year-old final-year undergraduate at Nanyang Technological University, pleaded guilty in the State Courts to two charges of voyeurism under s 377BB(4) of the Penal Code, punishable under s 377BB(7). In the first incident, on 19 October 2020, he followed a 20-year-old student (V1) in a hall of residence and used his phone to record an upskirt video of her while she waited for a lift; she turned and saw him. He was arrested and released on police bail. In the second incident, on 25 February 2021, while still on bail, he followed a 17-year-old schoolgirl (V2) into a lift and, as she stepped out, squatted and pointed his phone camera towards her thigh area; she felt him touch her thigh and shouted. He deleted both videos. A criminal trespass charge was taken into consideration.

The appellant initially relied on a psychiatric diagnosis of voyeuristic disorder, but on the day a Newton hearing was due he confirmed he would not rely on it as causing or contributing to the offences. The District Judge imposed three weeks' and four weeks' imprisonment, run consecutively, for an aggregate of seven weeks. He appealed (Magistrate's Appeal No 9121 of 2022/01), seeking a non-custodial sentence. A three-judge panel heard the appeal, and a Young Independent Counsel was appointed to assist on the law.

Issues

1. Whether and when rehabilitation can be the dominant sentencing consideration for adult s 377BB(4) offenders
2. What sentencing framework should apply to s 377BB(4) offences punishable under s 377BB(7)
3. Whether the District Judge erred in treating deterrence as the dominant consideration here
4. Whether the aggregate sentence of seven weeks' imprisonment should stand

Holding

The court allowed the appeal in part. It upheld deterrence as the dominant consideration and kept a custodial sentence, but set aside the sentences below and substituted one week's and three weeks' imprisonment, running consecutively, for an aggregate of four weeks' imprisonment. It laid down a two-stage, five-step sentencing framework for the offence.

Reasoning

On rehabilitation, the court declined to adopt a single presumption approach across youthful offenders, adults with an extremely strong propensity for reform and offenders with causally linked mental conditions. For adults without such a condition, the three-limbed framework in Public Prosecutor v Siow Kai Yuan Terence [2020] 4 SLR 1412 applies, but deterrence will rarely give way. The offence invades privacy, disquiets the public, often causes the victim emotional harm, usually involves furtiveness and planning, is becoming more prevalent with new technology, and Parliament doubled the maximum term compared with the old insult-of-modesty provision. Only a truly exceptional case would shift the emphasis, though rehabilitation remains a subsidiary consideration through the totality principle.

On the framework, the court preferred the harm-and-culpability matrix of Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609 over sentencing bands or the decision tree the Young Independent Counsel first proposed. Harm covers invasion of privacy, physical contact and distress; culpability covers matters such as premeditation, stalking, the equipment used, breach of trust, evasion and motive. The matrix, for a first offender convicted after trial, runs from a fine or up to 4 months' imprisonment for low harm and low culpability, to 18 to 24 months' imprisonment with caning at the top, and the court said most cases will cross the custodial threshold.

On the facts, the appellant had reoffended on bail and pursued the voyeuristic disorder claim only to drop it on the day of the Newton hearing, which the court saw as reluctance to accept responsibility. He showed some, but not an extremely strong, propensity for reform. Both offences were low harm and low culpability, with V2's case more serious because of the touching and her distress. Starting points of three and four weeks were reduced to one and three weeks, with a smaller discount for the second offence because it was committed on bail. The deletion of the videos was treated as neutral.

From the judgment