What was the outcome of Ang Boon Han v Public Prosecutor [2024] SGHC 221?

In Ang Boon Han v Public Prosecutor [2024] SGHC 221, Sundaresh Menon CJ dismissed the appellant's appeal against his eight weeks' imprisonment sentence for an offence under s 323A of the Penal Code, and furnished detailed grounds setting out an approach to guide the lower courts.

Why was a Young Independent Counsel appointed in Ang Boon Han v Public Prosecutor [2024] SGHC 221?

In [2024] SGHC 221, because the court was faced with the prospect of developing a sentencing framework for an offence under s 323A of the Penal Code, a Young Independent Counsel, Mr Tan Jun Hong, was appointed to assist Sundaresh Menon CJ with the appeal.

[2024] SGHC 221 — ANG BOON HAN v PUBLIC PROSECUTOR

SUPREME COURT OF SINGAPORE

30 August 2024

Case summary

Ang Boon Han v Public Prosecutor [2024] SGHC 221

Magistrate’s Appeal No 9181 of 2023

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Decision of the General Division of the High Court (delivered by Chief Justice Sundaresh Menon):

Outcome: The General Division of the High Court (the “Court”) dismisses the appellant’s appeal against sentence, disagreeing with the appellant’s contention that the sentence imposed in the court below was manifestly excessive. The Court sets out a sentencing framework for offences under s 323A of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”).

Pertinent and significant points of the judgment

• A three-step approach ought to be adopted when sentencing an offender under s 323A of the Penal Code:

o At the first step, the sentencing court should determine an indicative starting point, having primary regard to the seriousness of the injury caused to the victim. This should be assessed along a spectrum, having regard to the nature and permanence of the injury. The sentencing court should then consider whether the indicative starting point should be adjusted either upwards or downwards to arrive at a notional sentence based on the extent of asymmetry between the fault element (this being the offender’s intention to cause simple hurt, or knowledge that the offender is likely to cause such hurt) and the physical element (this being the grievous hurt that actually resulted) of the offence: at [50]–[52].

o At the second step, the sentencing court should consider whether any adjustments ought to be made to the notional sentence based on the specific aggravating and mitigating factors which feature on the facts. Aside from the common factors, such as relevant antecedents or other prior interventions by the authorities, the other relevant aggravating factors to be considered include: (a) the extent of deliberation or premeditation; (b) the manner and duration of the attack; (c) the victim’s vulnerability; (d) the use of any weapon; and (e) whether the attack was undertaken by a group. Relevant mitigating factors include the offender’s mental condition and any other factors that diminish his culpability or evidence his genuine remorse. The offender’s plea of guilt, if any, should not be considered at this stage: at [53]–[55].

o At the third step, if the offender has pleaded guilty, this should be taken into account. In considering the offender’s plea of guilt, the court may consider the Guidelines on Reduction in Sentences for Guilty Pleas issued by the Sentencing Advisory Panel (the “PG Guidelines”) and assess appropriate reductions to be imposed based on the stage of court proceedings when the offender pleads guilty to the charge: at [56].

Background

1 The appellant pleaded guilty in the court below to a charge under s 323A of the Penal Code for an offence of voluntarily causing hurt with the intention to cause hurt which was not grievous, but which actually caused grievous hurt.

2 Briefly, shortly after alighting from a bus at a bus stop together with the victim and a witness, the appellant rode a personal mobility device (“PMD”) and found himself behind the victim and the witness, who were walking along the pavement away from the bus stop. The appellant sounded his horn repeatedly in a bid to alert the victim, the witness and other pedestrians to make way for him, but the victim failed to notice the horn and so did not move out of the appellant’s way. The appellant then overtook the victim before confronting the victim for failing to give way to him. A dispute ensued, and, in anger, the appellant got off his PMD and used both his hands to push the victim once on the chest. The victim fell backwards as a result. The appellant got back on his PMD, and left the scene after seeing the victim fall backwards.

3 The victim sought medical attention and was diagnosed with fractures of both the distal radius and scaphoid at his right wrist. The victim was discharged with 14 days of hospitalisation leave. According to a medical report, at the time of the victim’s last medical review about three months after the incident, the victim continued to suffer from stiffness of the fingers, though the physician thought that this would improve with time.

4 In the court below, the district judge (the “District Judge”) imposed a sentence of eight weeks’ imprisonment, applying the two-step sentencing framework set out by the District Court in Public Prosecutor v Loi Chye Heng [2021] SGDC 90 (“Loi Chye Heng”). The District Judge considered that the Loi Chye Heng framework was appropriate for offences under s 323A of the Penal Code because it was modelled after the sentencing frameworks set out in the decision of the High Court in Low Song Chye v Public Prosecutor and another appeal [2019] 5 SLR 526 for offences under s 323 of the Penal Code and of the Court of Appeal in Public Prosecutor v BDB [2018] 1 SLR 127 (“BDB”) for offences under s 325 of the Penal Code.

5 The appellant appealed against the sentence imposed by the District Judge, arguing that it was manifestly excessive. The appellant also contended that the District Judge had erred in relying on the sentencing framework in Loi Chye Heng. Instead, the appellant submitted that a sentencing framework modelled on the sentencing approach in BDB ought to be adopted.

6 A Young Independent Counsel, Mr Tan Jun Hong (“Mr Tan”), was appointed to assist with the appeal. The Prosecution and Mr Tan both agreed that the sentencing framework in Loi Chye Heng was inappropriate for offences under s 323A of the Penal Code. They also agreed that the sentencing framework for offences under s 323A of the Penal Code should be aligned with the sentencing approach for the offence under s 325 as laid down in BDB.

7 Parties, however, suggested different approaches on how the sentencing approach in BDB ought to be adapted for offences under s 323 of the Penal Code.

Decision

The applicable sentencing framework

8 The Court agreed with the parties that the sentencing framework set out by the District Court in Loi Chye Heng for an offence under s 323A of the Penal Code was inappropriate as it was inconsistent with the established position that it was inappropriate to set out a range of indicative starting points or to categorise grievous hurt into broad categories: at [30].

9 The appropriate sentencing framework for s 323A offences was one modelled on the two-step sentencing approach in BDB for offences under s 325 of the Penal Code. The seriousness of the injury caused underscored the inherent mischief targeted by both s 323A and s 325 of the Penal Code and would therefore be a good indicator of the gravity of the s 323A offence and could guide the court in determining the indicative starting point for sentencing. Section 323A encompassed a broad spectrum of different forms of grievous hurt and such injuries needed to be assessed along a spectrum of severity: at [32]–[33].

10 In adapting the sentencing framework in BDB for offences under s 323A, it was inappropriate to simply halve the BDB indicative starting points in all cases, because this assumed that, as long as the same injury is caused, the asymmetry between the fault element (this being the offender’s intention to cause simple hurt, or knowledge that the offender was likely to cause such hurt) and the physical element (this being the grievous hurt that actually resulted) would always be the same. This could not be true, since different offenders may have intended to cause hurt of differing severity or have intended to cause hurt in different ways such that the likelihood of more serious injury ensuing should have been anticipated. Further, an offender who intended to cause a type of non-grievous hurt would generally be more culpable than an offender who only knew it to be likely that he would cause that type of non-grievous hurt: at [39]–[40].

11 While there may be cases where there were insufficient facts on the record to adequately identify the hurt that was intended or known to be likely so as to precisely gauge the asymmetry between the fault and physical elements, in determining whether an injury was intended or known to be likely, an inference may be drawn from the objective acts and circumstances of the offence as these would rarely be neatly spelt out in the statement of facts: at [41].

12 Further, in assessing the degree of asymmetry between the fault element and the physical element of an offence under s 323A of the Penal Code for the purposes of sentencing, the court is entitled to consider whether the grievous injury that was caused was reasonably foreseeable based on the objective acts and circumstances of the offence: at [42]–[46].

13 A three-step approach, modelled on the sentencing framework in BDB, was to be adopted when sentencing an offender under s 323A of the Penal Code:

a. At the first step, the sentencing court should determine an indicative starting point, having primary regard to the seriousness of the injury caused to the victim. This should be assessed along a spectrum, having regard to the nature and permanence of the injury. The sentencing court should then consider whether the indicative starting point should be adjusted either upwards or downwards to arrive at a notional sentence based on the extent of asymmetry between the fault element and the physical element of the offence. In considering the asymmetry between the fault element and the physical element of an offence under s 323A of the Penal Code, the sentencing court should also inquire into whether the actual injury caused was reasonably foreseeable based on the objective acts of the offender and circumstances of the offence: at [50]–[52].

b. At the second step, the sentencing court should consider whether any adjustments ought to be made to the notional sentence based on the specific aggravating and mitigating factors which feature on the facts. Aside from the common factors, such as relevant antecedents or other prior interventions by the authorities, the other relevant aggravating factors to be considered include: (a) the extent of deliberation or premeditation; (b) the manner and duration of the attack; (c) the victim’s vulnerability; (d) the use of any weapon; and (e) whether the attack was undertaken by a group. Relevant mitigating factors include the offender’s mental condition and any other factors that diminish his culpability or evidence his genuine remorse. The offender’s plea of guilt, if any, should not be considered at this stage: at [53]–[55].

c. At the third step, if the offender has pleaded guilty, this should be taken into account. In considering the offender’s plea of guilt, the court might consider the PG Guidelines and assess appropriate reductions to be imposed based on the stage of court proceedings when the offender pleaded guilty to the charge: at [56].

Application of the framework to the present case

14 The Court rejected the appellant’s suggestion that the injuries caused in the present case were comparable to those suffered by the victim in Arumugam Selvaraj v Public Prosecutor [2019] 5 SLR 881 (“Arumugam”), which attracted a six-month indicative starting sentence for an offence under s 325 of the Penal Code. The injuries which were sustained by the victim as a result of the appellant’s conduct were more serious than the single fracture and bruising sustained by the victim in Arumugam. Accordingly, had the present case involved a s 325 offence, the Court would have arrived at an indicative starting point of between seven and eight months’ imprisonment at the first step of the sentencing framework. However, as the Appellant faced a s 323A offence, after taking into account the overall severity of the injury suffered by the victim in this case and the full range of sentences available under s 323A, the Court would have arrived at an indicative starting point of three and a half months’ imprisonment, or about 14 weeks’ imprisonment: at [58]–[60].

15 No further adjustment to the indicative starting point of 14 weeks’ imprisonment was necessary as the alignment between the fault element and the physical element in the present case was high. From the psychiatric report, it appeared that the appellant intended to knock the victim to the ground. It was entirely foreseeable that, in pushing a 71-year-old elderly person with sufficient force to make him sustain an uncontrolled fall, he would instinctively break his fall and in the process fracture his wrist: at [61].

16 The Court did not place weight on the appellant’s mental condition of Persistent Depressive Disorder as a mitigating factor at the second step of the sentencing framework. There was no evidence which suggested a causal link between any mental health issue that the appellant was suffering from at the relevant time and his actions on the night in question: at [64].

17 Instead, the Court found that the starting sentence should be enhanced in the second step to around 18 weeks’ imprisonment in light of the victim’s vulnerability as well as the fact that the assault was unprovoked and that the appellant’s conduct resembled road rage: at [65].

18 In the third step, having regard to the fact that the appellant pleaded guilty and taking into account the PG Guidelines that recommend an appropriate discount though they did not apply in the appellant’s case, a discount of the sentence to around 13 weeks’ imprisonment would have been appropriate: at [66].

19 It was evident that the sentence of eight weeks’ imprisonment that was imposed by the District Judge was not manifestly excessive, but lenient, if at all: at [67].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

ANG BOON HAN v PUBLIC PROSECUTOR

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Case Significance

Summary

What was the outcome of Ang Boon Han v Public Prosecutor [2024] SGHC 221?

Why was a Young Independent Counsel appointed in Ang Boon Han v Public Prosecutor [2024] SGHC 221?

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Statutes interpreted in this judgment

Sentencing outcomes for this offence

Judgment