To what extent can offending conducts committed by an accused person, which may form the subject of separate criminal charges preferred by the Prosecution but not proceeded with, be taken into account by the court for the purposes of sentencing?
This was the key focus in of a criminal reference brought by the Prosecution before the Court of Appeal on Wednesday (10th June) morning, in a bid to overturn the High Court’s decision to reduce the jail term of 48-year-old Suzanna Bong Sim Swan for maid abuse.
Bong was found guilty of a single charge of assaulting her maid, Ms Than Than Soe, who was 27 years old at the material time of the offence in May 2015, by using a glass medicated oil bottle to hit her a few times on her left cheek. She was sentenced to a jail term of one year and eight months, and ordered to compensate the victim $38,000 by the Magistrate’s Court.
Bong and the Prosecution appealed to the High Court in November last year, whereby Justice Chua Lee Ming dismissed Bong’s appeal against conviction but reduced her jail term and compensation order to eight months and $1,000 respectively, and dismissed the Prosecution’s appeal for the jail term and compensation order to be increased.
The Prosecution, lead by Deputy Chief Prosecutor-cum-Senior Counsel Mohamed Faizal, then filed a criminal reference to refer three questions for the Court of Appeal’s determination. Bong, through her lawyers Mr Sui Yi Siong and Ms Flora Koh, had also applied for leave to bring a criminal reference but it was refused by the Court of Appeal in February this year.
At the start of the hearing, which was conducted via video conference, Chief Justice Sundaresh Menon and Judge of Appeal Andrew Phang expressed their views that the first question, which concerns the extent to which the Prosecution must prove a causal link between the criminal act of an offender and the injury caused to the victim, was settled as a matter of law; that the Prosecution must prove the said element beyond a reasonable doubt.
The second and third questions essentially focused on the same issue – whether the court may take into account prior offending conduct by a person as evidence of psychological harm and knowledge of the victim’s vulnerability respectively for the purposes of sentencing.
This issue arose as Justice Chua had disregarded Bong’s previous offending conduct during sentencing, with the reason that if a person cannot be punished for an offence that he has not been charged with, neither could a sentencing court take into account uncharged offences for the purposes of establishing the accused person’s knowledge of the victim’s vulnerability as an aggravating factor, since the accused had not been found guilty of such offences.
Such a ruling, as DCP Faizal argued, had departed from another High Court authority, which ruled that a sentencing court may take into consideration facts with sufficient nexus to the commission of the offence, regardless of whether such facts could be the subject of separate offences for which the accused was not charged.
Mr Sui made brief oral arguments in defending Justice Chua’s ruling, which CJ Menon called it a “peverse sympathy for serial offenders” while Judge of Appeal Tay Yong Kwang expressed the view that it was inconsistent with the principle that a court may take into account prior offending conduct in determining the guilt of an accused person.
Mr Sui also argued that in any event, the second and third questions were not of law, neither did they affect the outcome of the case as Justice Chua did in fact take into account the aggravating factor that Bong was aware of the victim’s worsening eyesight for other reasons.
Before the court reserved judgment, both DCP Faizal and Mr Sui, in response to the court’s query on the consequential orders in the event a ruling was made on the reference, expressed their preference for a further hearing to be convened for submissions on sentence.
Bong currently remains out on bail.