DAN v PUBLIC PROSECUTOR

Facts

The appellant, DAN, a former auxiliary police officer, was the primary caregiver of his two young children from his first marriage, Ayeesha and her younger brother R, who came to live with him and his second wife in early 2015. Over about two years he and his wife abused them. He cut their meals, so that they ate their own faeces and the stuffing of their mattress; confined them, watched by CCTV, first to a corner of a bedroom measuring about 90cm by 90cm and then, naked, to the flat's only toilet for almost 10 months; and beat them repeatedly. On 10 August 2017 he slapped Ayeesha across the face some 15 or 20 times, and in the early hours of 11 August 2017 he punched, kicked, stamped on and slapped her again. She was found dead that evening, aged five, from a head injury, severely undernourished. He disposed of evidence and lied to the police in five false statements.

Before the High Court he pleaded guilty mid-trial to six charges, including culpable homicide not amounting to murder under s 304(a) of the Penal Code and four charges of ill-treatment under the Children and Young Persons Act (CYPA), with 20 other charges taken into consideration. He received an aggregate of 34 and a half years' imprisonment plus six months in lieu of caning. He appealed in Criminal Appeal Nos 11 and 13 of 2024. The Court of Appeal invited the parties to address whether the culpable homicide sentence of 15 years should be raised to life imprisonment, although the Prosecution had not appealed.

Issues

1. Whether the sentence for culpable homicide should be enhanced to life imprisonment as one of the worst types of the offence
2. Whether the maximum term of four years' imprisonment was warranted for each of the four CYPA charges
3. Whether imprisonment should have been imposed in lieu of caning when the appellant was found unfit to be caned

Holding

The Court of Appeal dismissed both appeals and, exercising its own power, enhanced the sentence for the culpable homicide charge to life imprisonment, keeping the 12 strokes of the cane ordered. The sentences for the other offences were affirmed but ordered to run concurrently with the life term under s 307(2) of the Criminal Procedure Code 2010.

Reasoning

The court held that it may enhance a sentence on appeal without a Prosecution appeal where the sentence is manifestly inadequate, and that the offender's expectations are irrelevant. Where culpable homicide is charged without any partial defence, there is no presumption against life imprisonment, and the Hodgson criteria are only an alternative route. The question is whether the case's defining features make it one of the worst types of the offence. Five features did so here: the cruelty of the fatal attacks on a child already lying or squatting on the floor; the two-year escalation of abuse culminating in death; her special vulnerability, being undernourished and injured; his abuse of the trust of a father and primary caregiver; and the absence of mitigation. The guilty plea showed no remorse, coming only after he was confronted with footage and the charge was reduced, and the public interest exception to the guilty plea guidelines applied. The 15-year term was manifestly inadequate.

On the CYPA charges, the court found the precedents relied on, Azlin and BDB, of limited value because their analysis focused on graver charges. The 12th charge, a 16-minute beating of Ayeesha with at least 80 blows, and the 19th and 20th charges, the prolonged confinement in the toilet, each warranted the maximum. The 17th charge, caning R, might alone have attracted about one and a half years, but the totality of more than two years of abuse and the charges taken into consideration justified the maximum.

The appeal on imprisonment in lieu of caning was moot, but the court would have upheld it given the emphasis on deterrence and retribution and the vulnerable victims.

From the judgment