Close | Public Prosecutor v Wong Yew Dhak [2010] SGDC 16 |
| PSM 919/2009, MA 429/2009 | |
| 15 Jan 2010 | |
| District Court | |
| Sarjit Singh | |
| Terence Chua (DPP) for the prosecution, Kertar Singh for the defence |
Judgment
15 January 2010 District Judge Sarjit Singh: 1. The accused, Wong Yew Dhak, was charged as follows:- PSM 919/2009 You are charged that you on or about the 09 day of November 2008, at or about 7.15am while inside the segregation room at level 1 of Jenaris Home @ Pelangi Village located at No 10, Buangkok Green, Singapore, did voluntarily cause hurt to one Ng Lian San, to wit, by using your hands to hit the said Ng Lian San at his head and using your legs to stamp the said Ng Lian San at his head and body, and you have thereby committed an offence punishable under Section 323 of the Penal Code, Chapter 224. 2. He pleaded guilty to the charge and admitted the facts without qualification. 3. One other charge (PSM 918/2009) was taken into consideration for purposes of sentencing with his consent. 4. The facts are as follows: “The Informant is Ang Boon Han, Male Chinese 43 years old, NRIC S1720290A. He is the ex-superintendent working at Jenaris Home @ Pelangi Village located at No 10, Buangkok Green Singapore 539753 (“the Home”) 2. The witness is Lee Tee Kok, Male Chinese 41 years old, NRIC S1828528B. He was a welfare officer working at the Home at the time of the offence. 3. The victim is Ng Lian San, Male Chinese 51 years old, NRIC S1236814C. He was a resident of the Home at the time of offence. 4. The accused is Wong Yew Dhak, Male Chinese 37 years old, NRIC S7111768E. He was a welfare officer working at the Home at the time of the offence. FIRST INFORMATION REPORT 5. On 15 November 2008 at about 12.05 am, the informant went to Sengkang Neighbourhood Police Centre to lodge a report of assault at the Home. The incident took place on 9 November 2008 at about 6.30 am. CIRCUMSTANCES LEADING TO THE OFFENCES 6. Investigations revealed that on 10 November 2008 a about 9.00 am, the informant went back to his office at the Home and he was informed by the staff about a case of assault by the accused that took place on 9 November 2008. 7. It was revealed that on 9 November 2008 at about 6.30 am, staff members of the Home were preparing breakfast for the residents when the victim came and snatched away some food and drinks. When approached by staff members outside the general office, the victim challenged them to a fight. Victim was subsequently restrained by the accused and other staff and brought to the segregation room. FACTS RELATING TO THE CHARGE 8. In the segregation room, the victim was placed on the floor and he continued to scold the staff. The accused then used his hands to hit the head of the victim several times and used his legs to stamp the head and body of the victim several times. After assaulting the victim, the accused and the other staff left the segregation room. 9. On the same day at about 7:49 am, the witness reported for work and took over duty from the accused. At the segregation room, the witness noticed that the victim was tied up using a restraint rope and lying in a face down position. He was then sent for medical treatment at Changi General Hospital on 20 November 2008. 10. In the medical report by Changi General Hospital, it was revealed that victim was well and not in distressed. Bruises were noted over the right knee. The accused has voluntarily caused hurt to the victim and he is charged in court accordingly.” 4. In Mitigation (Exhibits D1 and D2) his defence Counsel pleaded: (i) a) the accused has no previous convictions or antecedents of any kind whatsoever; b) the accused was genuinely a caring person who, always showed concern for the residents of the Home so much so that he would visit them after his working hours whenever they were hospitalised; c) he fully cooperated with the police; d) he deeply regrets his action and his remorseful; e) he has pleaded guilty; f) “the night before the incident, the accused was driven to the very edge of self-restraint. The accused endured the accumulated stress but the vulgarities uttered which were directed at his mother snapped the elastic that was holding his patience. It was the last straw that broke the camel’s back. With the benefit of hindsight, he realised that what he did was wrong. He is determined that this will never happen again and he is not the type who will get into proverbial trouble again.” (ii) The duties of the accused were highlighted in his mitigation plea as follows: - Providing care to the residents of the Home. - Overseeing and supervising the daily running/routine of the Home. - Carrying out any other tasks instructed by the Superintendent of the Home. - Ensuring that the basic welfare of the residents was taken care of, for example, ensuring that food served to the residents was warm, hygienic and dietary. - Ensuring that the basic personal hygiene of the residents was taken care of, this included the resident’s hair cut, shaving, showers, finger and toe nail cutting and change of fresh clothes. - Conducting simple daily activities for the residents, such as karaoke singing, movies, board and card games, simple ball games and evening brisk walking around the Village. - Interacting with the residents consistently to monitor their general well-being, and to look out for improvements or relapses. - Coordinating monthly outing activities for suitable residents. - Coordinating mass activities at the Home with various volunteer groups, for example, Sengkang Community Centre (Ms Lily, Mobile # 924XXXXX) and Ponggol Community Centre (Mr Pang, Mobile # 902XXXXX). (iii) The mitigation plea also gave a brief background of the victim as follows: “7. The victim was previously a resident at Tembasu Home @ Pelangi Village. We are given to understand that the victim was diagnosed to be suffering from schizophrenia with a history of violence. At the Jenaris Home, the victim was initially quiet but responsive to staff. After counselling by social and welfare officers, he appeared more cheerful and helpful. Gradually he started to settle in the home and interact with fellow residents. Weeks before the incident, the victim’s behaviour seemed to be abnormal. He began acting in a rather domineering manner. He was constantly seeking the attention of the staff and residents. He also seemed to demand for coffee at short intervals. He also complained about the behaviour of the other residents and hurled abuses at them for no apparent reason. Initial attempts by staff to clam him down were successful. Not long after, the victim would abuse the other inmates for no apparent reason. When staff tried to reason with him, they were not spared either. Ever staff walking past him had to hear his remarks. Subsequently a few residents including Tan Kwee Seng and Yim Kim Keong and in house staff Thet Tum started to complain about the victim’s abusive, aggressive and threatening nature.” 5. After considering all the facts and circumstances of his case and his mitigation plea the Court sentenced him to 5 months imprisonment term. 6. The accused now appeal against the sentence. Sentencing Considerations 7. In Public Prosecutor v Kwong Kok Hing “Our criminal law is, in the final analysis, the public’s expression of communitarian values to be promoted, defended and preserved. These communitarian values include the preservation of morality, the protection of the person, the preservation of public peace and order, respect for institutions and the preservation of the state’s wider inertests; see PP v Law Aik Meng What ought the proper penalty be? … [The] classical principles [of sentencing] are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.” 8. In Public Prosecutor v Mohammad Al-Ansari bin Basri “In deciding which of the four principles applies with the greatest effect, it is axiomatic that the principles that are most relevant and have the greatest importance in a case would affect the type and extent of sentence imposed: see PP v Tan Fook Sum 9. In a case such as this where the offender is a welfare officer of a Home and whose primary duty is to look after the interests and welfare of the inmates or residents under his charge in determining sentence the principle of deterrence must form the focus of the Court’s attention. 10. (a) The inmate or resident of a Home needs care and protection. Generally such persons are vulnerable. In this case the victim Ng Lian San who was a mental patient under the care and protection of the Welfare officer was a vulnerable victim. He suffers from schizophrenia. “Offences against vulnerable victims often create deep judicial disquiet and general deterrence must necessarily constitute an important consideration in the sentencing of perpetrators..… Australian Courts have taken a similar stance towards offences against vulnerable groups of victims such as the old, the young, the weak and the disadvantaged: see Kane(1987) 29 ACr R326.”: see PP v Law Aik Meng (b) Page 82 of the book Sentencing Practice in the Subordinate Courts states: “5 Vulnerable Victim The need to protect vulnerable and defenceless victims will be an important consideration which must be reflected in the severity of the sentence imposed …. where an offender commits an offence against a vulnerable victim …… he can expect to be dealt with severely …..” 11. From the facts the first assault on the victim by the accused took place on 9 November 2008 at about 7.00 am outside the general office of the Home (see the TIC charge). But the assault it did not end there and then. About 15 minutes later as disclosed by the proceeded charge, after the victim who was restrained by the accused and taken to the segregation room the accused again assaulted the victim. Since the victim was already segregated and restrained in the segregation room, there was cause for the accused to cause hurt to the victim. The behaviour of the accused is totally inexcusable. He should have realised that his violent outburst was not consistent with his role as a Welfare Officer. It is no justification for the accused to say that he (i.e. the accused) was driven by the behaviour of the victim to commit the offence. The behaviour of the victim who was suffering from mental illness should not have surprise the accused who was in charge of the victim. The conduct of the accused fall far short of his duty as a Welfare officer. 12. Further from the background of the victim as presented in the mitigation plea, after the victim was moved from Tembasu Home @ Pelangi to his current Home at Jenaris Home @ Pelangi, the victim was cheerful and settled in his new Home. However weeks before the present incident there was already a change in the victim’s behaviour. He seem abnormal as “he began acting in a rather domineering manner. He was constantly seeking the attention of the staff and residents. He also seemed to demand for coffee at shot intervals. He also complained about the behaviour of other residents and hurled abuses at them for no apparent reason.” It was clear that there was a noticeable change in the behaviour of the victim well before this incident. This was not a case where the accused was suddenly confronted by the aggressive behaviour on the part of the victim. It was not on the spur of the moment incident but one which developed over a period of time. The proper cause of action for the accused in this case should have been to refer the victim for treatment early and not take matter into his own hands. 13. The accused as a Welfare officer should not have lost sight of the fact that he is in a position of trust vis-à-vis the victim and his (i.e. the accused) duty was to look after the victim and not to abuse him. Abusing a position of trust and responsibility has long been recognised as an aggravation. Andrew Ashworth in Sentencing and Criminal Justice (4th Edition) explained the rationale as follows: “Where breach of trust or abuse of authority is an element in the crime the force of aggravation come from the social context of the offence. The crime may be unplanned, committed by an individual and not involving any violence or threats. But trust is fundamental to many social relationships …. and one of the burdens of trust or authority is an under taking of incorruptibility. Where an offence involves a breach of trust, this is generally treated as an aggravating factor. Its powerful influence is shown by the degree to which it outweighs factors which would normally go in mitigation.” 14. In Mohammed Zairi Bin Mohamed Mohtar v PP (2002) 1 SLR 344, a case involving assault by prison officers on inmates, the High Court stated: “This was the first case I had tried involving SPEAR officers who had acted contrary to their public duty by setting upon a defenceless prisoner to teach him a lesson. They are persons empowered to place prisoners under confinement and who are expected to abide by the law, but yet they had chose to take matters into their own hands. Although both of the appellants had impeccable service records and no prior antecedents, these factors could but have minimal mitigating effect in cases, like the present, when public interest was affected. 47. I was of the view that a clear prison brutality cases will not be condoned and will be met with harsh penalties especially when committed in the course of duty …. Similarly their relatives and the public at large also need to be assured that prison officers will not abuse their positions of trust vis-à-vis the prisoners and the public.” 15. The principle stated in Mohd Zairi Bin Mohamed Mohtar v PP is equally relevant to the present case. Any sort of abuse of residents in Homes will not be tolerated and a clear message had to be sent to potential offenders in charge of inmates/residents that such cases of assault will be met with harsh penalties. And further the relatives and the public at large need to be assured that Homes such as Jenaris @ Pelangi are run properly and welfare officers do not abuse their position of trust and authority. A deterrent sentence was therefore called for. 16. The Court was aware that any deterrent sentence must be tempered by proportionality in relation to the severity of the offence committed as well as the moral and legal culpability of the offender: see Tan Kay Beng v PP 17. After carefully considering the facts and circumstances of the case, the mitigation plea put forth by the defence, I was of the view that a sentence of 5 months imprisonment would be of sufficient deterrence, both at the specific and general level. 18. He now appeals against sentence.
