Close | Public Prosecutor v AEV [2009] SGDC 513 |
| DAC 39273/2009, MA 384/2009 | |
| 30 Dec 2009 | |
| District Court | |
| Hamidah Bte Ibrahim | |
| Ang Feng Qian (DPP) for the prosecution, B Ganesh (Cornerstone Law LLP) for the accused |
Judgment
[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter] 30 December 2009 District Judge Hamidah Ibrahim: 1 The accused person pleaded guilty to the following charge: DAC 39273/2009 (P1) You, are charged that you on the 10th day of July 2009, at or about 3.00 pm, at Block xxx, Singapore, did voluntarily cause hurt to one B, Female/9 years old, to wit, by means of heated substance, to wit, by splashing hot water onto her, knowing it to be likely to cause hurt, and you have thereby committed an offence punishable under Section 324 of the Penal Code, Chapter 224. The Facts 2 The complainant is Mdm Chng. F/47 yrs. She is the School Counsellor in xxx Primary School. 3 The witnesses are: A1) Ms Siti , F/28 yrs. She is a teacher in xxx School and the form teacher of the victim. A2) Ms Lim, F/29 yrs. She is a teacher in xxx Primary School. She is the Second Language teacher of the victim. A3) Mdm Ng , F/32 yrs. She is the accused’s wife and the step-mother of the victim. 4 The victim is B, female, 9 years old, residing at, Block xxx Singapore. She is the daughter of the accused, and was a Primary 4 student in xxx Primary School at the time of the incident. The accused is AEV, Male 34 years old, Singapore. He is the father of the victim. He was self-employed at the time of the incident. First Information Report 5 On 17 July 2009 at about 2.29pm, the complainant brought the victim to Kandang Kerbau Hospital (KKH) and reported to the staff of the aforesaid hospital that the accused had poured hot water on the victim. The case was eventually referred to police. Investigations 6 Investigations revealed that the accused had called A2 between 1-2pm on 10 July 2009 via phone, asking if A2 had made the victim stay back at home. A2 replied that she did not do so. About an hour later, the accused called A2 again, and stated that he had caught the victim lying. At or about 3.00pm on the same day, the accused returned home to the abovementioned address. The accused proceeded to boil some water in a stainless steel mug on the stove. The accused started to scold the victim for lying to him, concerning the victim having to stay back in school, when that was not the case. The accused then told the victim to open her school bag, and checked her homework and school assessments. While checking the victim’s school bag, the accused found three correction tapes and a Chinese exercise book that did not belong to the victim. 7 The accused therefore questioned the victim as to the origin of the 4 items. The victim replied that she had taken a 50 cents loan from A2 and bought the exercise book thereafter. The victim also stated to the accused that she found one of the correction tapes at a bus-stop near her school and obtained the other correction tapes from a tuition mate. 8 The accused therefore contacted A2 via phone, and established that the latter did not give any loan to the victim. As the accused was talking to A2 on the phone, he took a white mug and filled it with hot water that he obtained from an electrical hot water flask. The accused then scolded the victim, and told her that A2 did not give the victim the 50-cent loan. 9 The victim then said that she had taken the 50-cent loan from A1. The accused then messaged A1 via SMS to ask if that was the case. A1 replied that she did not give any loans to the victim. The accused then continued scolding the victim for lying, and demanded to know which hand the victim had used to steal from the bookshop. The victim did not reply, but placed her left hand on the washing basin in the kitchen. 10 The accused scolded the victim that he would use the hot water in the white mug he was holding to pour on the victim’s left hand, such that she would remember not to steal again, but the victim retorted that the accused did not buy the victim what she wanted. The accused became very angry, and tried to pour the hot water on the victim’s left hand, but the victim tried to run away to the kitchen’s bathroom. The accused went after the victim, and splashed hot water on the victim’s body while the victim was running to the kitchen bathroom. The victim then ran into the kitchen bathroom and locked the door. 11 The victim apologized to the accused for making the mistake from inside the bathroom, but the accused said that this was not the first time the victim had made major mistakes. At this point, the accused saw the stainless steel mug filled with by-now boiling water, which he had placed on the stove earlier. The accused took the stainless steel mug, and splashed the hot water over the kitchen bathroom door, which landed on the victim who was in the toilet. The victim shouted in pain, and the accused then forced the bathroom door open. 12 The accused then questioned the victim further on what other items the victim had stolen. The victim admitted that she had taken two cash cards from the accused’s van without the accused’s permission. Thereafter, the victim brought the accused to her room and took two cash cards out from her cupboard. 13 The accused got even angrier, and hit the victim’s left hand and back of the victim’s body with a cane. A3 intervened and told the accused to stop hitting the victim. The accused complied and left the house. After that, the accused went to a shop and bought ‘Hazeline’ cream and a cream used for burns treatment. The accused then went home and gave the medicine to the victim. The accused told the victim to use the medicine and not to go to school from 11 July 2009 to 16 July 2009. 14 On 17 July 2009, the victim went back to school. On the same day at about 6.45am in xxx Primary School, A2 saw that there was swelling on the victim’s left face. A2 therefore spoke to the victim, and was told by the victim that the accused had splashed hot water on her on 10 July 2009. 15 A2 therefore notified A1 at about 7.15am in the staff room. A1 went to the victim’s classroom, and saw the injuries on the victim. A1 also asked the victim how she had sustained the injuries. The victim revealed to A1 again that the accused had splashed hot water on her, after she was brought to the staff room. The latter then reported the matter to the complainant and the school principal. 16 The complainant interviewed the victim, and contacted the Ministry of Community Development, Youth and Sports (MCYS) thereafter. The complainant was advised to bring the victim to KKH for medical attention. Accordingly, the complainant and A1 brought the victim to KKH for medical treatment on the same day. 17 Dr Tan Hung Tiong Justin, Registrar at KKH, issued a medical report dated 11 August 2009, which stated that the victim had sustained the following injuries: a) Left cheek - Desquamated burn wound, affecting tips of tragus measuring 7 cm in length. b) Left upper arm - 6cm linear cane marks + ecchymosis 4 cm. c) Waist (left side) – Dry/pigmented healed superficial burnt skin measuring 12 cm in length stretching from the front to the back of the body. d) Right lower arm – Dry, pigmented healed superficial burnt wounds. e) Right thigh – 2 cm ecchymosis. f) Front of the body – desquamated burn wounds – red/raw, measuring 20 cm × 10 cm, 15 cm, 5 cm and 5 cm respectively. g) Back of the body – Linear superficial lacerated cane marks. 18 Upon the admission of the accused to the above statement of facts without any qualification, I found him guilty and convicted him on the charge. The prosecution informed me that the accused has no antecedent. Mitigation 19 Counsel for the accused tendered a written plea in mitigation wherein it was stated that the accused was angry with the victim for having lied to him 3 times in a row on the day of the offence. In complete frustration and anger with the victim he poured the hot water over the bathroom door. He had brought her up as a single parent since her mother left the both of them when the victim was only 5 days old. On the 15th of May, 2004 he and the victim’s mother were divorced. The accused has remarried in 2005and has a 4 year old son and a 4 month old daughter from his second marriage. His wife loves the victim and his son gets along very well with the victim. 20 In urging the court to be innovative and call for a probation report on the accused, since he was a first offender, counsel submitted that this would help to rebuild the relationship between the accused and his daughter which would be in the interest and welfare of the child. If the accused is sent to prison it would affect the family unit and the victim would feel guilty that she has sent her father to jail. His wife can be a check and balance. Prosecution’s Position 21 The prosecution objected strenuously to probation. They highlighted various aggravating factors including the fact that the victim was in hospital for 17 days because of the injuries which she sustained. Her injuries as reflected in the photographs speak for themselves. I was informed that after her discharge the Child Protection Service (CPS) from MCYS intervened and placed the victim in foster care. CPS also sent the victim for an assessment of her emotional state and the impact of the physical abuse by a psychologist of the psychological services unit. The reports from the CPS and the psychologist were tendered in court. 22 The prosecution disagreed with the defence counsel that the accused’s wife could be a check and balance as it would appear from the reports that the victim lacked a protective figure in the home as the accused’s wife only intervened when the victim screamed. After she was placed in foster care, the foster mother observed that the victim displayed anxiety symptoms when she sees hot water. The psychologist assessed her to be very fearful of the accused and had negative emotions towards him and as a result of harsh physical discipline by him, she had symptoms of trauma and depression. The prosecution stressed that probation was inappropriate and that a custodial sentence ought to be imposed. The Sentence 23 In determining the appropriate sentence, I noted that the prescribed punishment for the offence of causing voluntary hurt by means of any heated substance under section 324 of the Penal Code is imprisonment for a term which may extend to 7 years or with fine or with caning or with any 2 of such punishments . The gravity of such offences is therefore reflected in the maximum provided of up to 7 years imprisonment and caning. 24 With regard to the guiding principles applicable for offences under section 324, I relied on the following passage at page 150 from the book titled The Practitioners’ Library Sentencing Practice in the Subordinate Courts (2nd Edition): “ This is an aggravated form of the offence of simple hurt because it involves the use of weapons or other wicked means. The factors which would influence the sentencing disposition and length of sentence would be similar to the offence of hurt simpliciter except that the court have to throw in the balance the very significant factor of the use of the weapon or heated substance, etc. As regards the weapon or the other means, the court would note in particular its nature and the degree of premeditation involved in procuring it. Absent exceptional circumstances, imprisonment appears to be the norm.The actual length of the sentence would turn very much on its own unique set of circumstances. The obvious aggravating factors would be premeditation, the use of a deadly weapon, or wicked means like fire, corrosive substance or poison and previous convictions.” (The emphasis is mine.) The other factors affecting sentence mentioned in the same book included serious injuries and vulnerable victim. 25 While this was a case of voluntarily causing hurt under section 324 of the Penal Code, I was of the view that this case would also be similar to offences under the Children and Young Persons Act, Chapter 338 since the accused is the natural father of the victim and has wilfully caused unnecessary injury to her health. As such, the sentencing principles for cases of this nature as indicated in the same book at page 121 would also be useful. This is reproduced below: “The courts take a serious view of such offences having regard to the vulnerability of children and the profound breach of trust involved in the abuse, as children are entitled to look for protection to their parents or to those in whose care they are entrusted. Substantial terms of imprisonment will invariably be appropriate for offenders. The District Court in PP v Tan Meow Eng @ Siti Zahrah bte Abdullah (DAC 25526/97) stated: The court should make it clear that young children, like the victim must be protected. Any violence towards a child...........is bound to evoke severe condemnation and will inevitably lead to a custodial sentence. Those who have entrustment of young children must know that the courts would severely punish serious assaults or ill treatment whatever the pressures which might have led to them.” 26 Turning to the facts of this case, while indeed the accused is a first offender who has pleaded guilty to the charge, these mitigating factors paled in comparison and must be given little weight when the circumstances of the offence are considered. In this regard, I agreed with the prosecution that there were many aggravating factors. First and foremost, the accused is the father of the victim who was only 9 years old at the material time and as her father he was the person expected to protect and look after her. He breached this position of care and trust when he poured the hot water and committed an act of violence against her. Secondly, the victim has suffered serious injuries and was hospitalised for 17 days in the hospital. These injuries, as elaborated in the medical report, included burn wounds on her face which would be a sensitive area for a young girl. Further, the photographs taken of her injuries 7 days after she sustained them speak for themselves. 27 While there was only 1 charge preferred against him for pouring the hot water, I observed from the statement of facts to which he admitted unreservedly, he had also splashed hot water from his white mug (water taken from the flask) on the victim when he chased after her while she ran to the bathroom. After she locked herself in the bathroom and apologised, he reached for the stainless steel mug of by now boiling water on the stove and splashed it over the bathroom door which landed on the victim. In actuality therefore, there were 2 acts of pouring of hot water. 28 I found it difficult to accept and understand the accused’s claim in his mitigation plea that the act of pouring hot water was an error of judgment. He had a choice of not using violence against his daughter when he disciplined her but he chose to do so. In fact, from the particulars in the statement of facts there was some deliberation on his part. Firstly, when he spoke to the victim why was there a need to boil water in a stainless steel mug on the stove. Secondly, when he spoke to her second language teacher why was there a need to fill a white mug with hot water from a flask. His intention was then clearly revealed (in paragraph 10) when he told the victim he would pour the hot water in the white mug on her left hand. By no stretch of the imagination can these acts be described as mere errors of judgment. 29 A stark aggravating factor was the utter lack of remorse on the accused’s part after throwing the hot water over the bathroom door and his conduct following this act. His daughter had shouted in pain but he ignored her shout. He was more concerned with questioning her further after he forced the bathroom door open rather than attending to her injuries. He proceeded to cane her when she produced the 2 cash cards. He did not bother to seek medical treatment for her from a doctor or send her to the hospital. He then kept her away from school for 6 days obviously because he did not want the school authorities to find out what he had done. 30 It appeared to me too that the accused did not seem to realise the seriousness of his offence as his counsel also stressed that the accused was under the impression that the water was not that hot. This was an incredible claim since he was the person who had boiled the water in a stainless steel mug on the stove. From the statement of facts he saw the stainless steel mug filled with boiling water, he took it and threw it over the bathroom door. For him therefore to say that he was under the impression that the water was not that hot was an example of the accused trivialising the cruel act he had perpetrated on his daughter. 31 In urging the court to consider probation for the accused, his counsel said that the wife could provide a check and balance. However, this was contradicted by the CPS report which concluded that the victim did not have a protective adult figure in the home. This must have been the case as the wife did nothing when the victim shouted in pain and only came into the picture when the accused was hitting her with a cane. It did not escape my attention too that as the only other adult in the household the wife did not make any effort to get medical treatment for the victim during the 6 days that she was kept away from school. While there were no reasons offered for her failure to do so, it would be fair for me to conclude that it was probably either indifference or she just left the matter completely for the accused to decide. Whatever the reason, it did not appear that the wife could fulfil this role of ensuring the safety of the victim in view of the fact that she has 2 young children of her own to look after and was confused and ambivalent towards the incident. She had also expressed that she was not ready to have access to the victim. 32 When considering the sentence to be imposed, I also considered the impact on the victim, as indicated in the psychological reports. She has suffered not only physically but also emotionally. She has symptoms of trauma and depression. She has displayed anxiety symptoms at the sight of hot water and is very afraid of the accused. Counsel had opined that the victim would feel guilty if the accused was to be sent to jail. This was purely speculative and in itself was not a reason to consider probation. In any event, whether victims feel guilt or otherwise when a parent goes to jail, the law must take its course in serving public interest in ensuring that persons who commit serious crimes are punished so as to send a clear and unequivocal message to all that persons who resort to violence against a vulnerable victim, like a 9 year old child, must face the full brunt of the law. The main sentencing consideration will be that of general deterrence with a distinct element of denunciation. 33 The sentencing norm, as stated in the earlier paragraphs, would be imprisonment unless there are exceptional circumstances. Counsel for the accused said there were special circumstances but did not elaborate on what these special circumstances were which would justify a departure from the norm. He added that his client needed to undergo parenting courses. While this was commendable, I would venture to say that even without undergoing any parenting course, he ought to have realised that he cannot used hot water to discipline his 9 year old daughter regardless of whatever misdemeanour she has committed. It was troubling that the accused did not appreciate the seriousness of what he had done in the light of his opinion that in other countries he would have received a warning letter instead of a possible prison sentence. 34 In conclusion, having regard to the aggravating circumstances of this offence, I was of the view that a substantial custodial sentence with caning was fully justified. While giving due consideration to all the mitigating factors which his counsel raised on his behalf and other points in his oral address, they were not sufficiently persuasive for me to be innovative to call for a pre-sentence report for the purposes of probation for an adult offender. I therefore sentenced the accused to 18 months imprisonment and 3 strokes of the cane. 35 The accused, being dissatisfied, is now appealing against his sentence. He is now on bail pending the hearing of his appeal.
AEV
Male/34 YEARS OLD (D.O.B:14/06/1975)
SINGAPORE Citizen
