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Public Prosecutor v Tay Kok Heng - [2013] SGDC 226 (30 July 2013)

30 July 2013

District Judge Lim Tse Haw:

The accused, Tay Kok Heng (male of 49 years of age), a Singapore Citizen faced a total of three (3) charges. He pleaded guilty before me to the following two (2) charges:

i one (1) charge of consumption of a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (“MDA”), namely morphine, without any authorisation under the MDA or Regulations made thereunder, an offence under s 8(b)(ii) of the said Act, and because he was previously admitted to an approved institution (Sembawang Drug Rehabilitation Centre (“DRC”) on 15 December 1994 ) for consumption of morphine pursuant to an order made by the Deputy Director of the Central Narcotics Bureau (“CNB”), and was also convicted on 21 October 1997 of an offence of consumption of morphine (deemed to be a previous conviction for an offence of consumption of a specified drug), the accused was liable to be punished with enhanced punishment under section 33A(1) of the said Act, i.e. the mandatory minimum of 5 years’ imprisonment and 3 strokes of the cane ^{[note: 1]} ;

ii one (1) charge of attempted housebreaking by day by using a screwdriver to attempt to pry open the window of unit #12-273 at Block 635, Choa Chu Kang (“CCK”) North 6, an offence punishable under section 453 read with section 511 of the Penal Code ^{[note: 2]}

The remaining charge, also for an offence of attempted housebreaking by day under section 453 read with section 511 of the Penal Code, was taken into consideration for the purpose of sentencing with the accused’s consent.

2 Having considered all relevant sentencing factors, I sentenced the accused to Nine (9) years of Corrective Training in lieu of imprisonment and the mandatory minimum of three (3) strokes of the cane

3 Being dissatisfied with the sentence imposed, the accused has appealed against the same.

4 On 11 February 2013 at about 12.30pm, the accused bought a screwdriver from a provision shop at Yew Tee MRT Station. He intended to use the screwdriver to commit housebreaking and theft somewhere in CCK. The accused was short of money because he had not been working for the past few months and had also relapsed to abusing drugs. The accused hid the screwdriver in the pocket of his pants and tucked out his T-shirt to conceal the screwdriver.

5 On the same day at about 1 pm, the accused went to the 12th floor of Block 635, CCK North 6 to look for a suitable unit to break into and commit theft. He walked to unit #12-273. He pressed the doorbell of the unit to make sure that no one was inside. When the accused saw that a male person from the adjacent unit was peeping at him, the accused shouted “William”, pretending that he was calling out to someone living in the unit. After the male person stopped looking at the accused, the accused continued pressing the doorbell of the unit several times. When the accused was convinced that no one was in the unit, he took out the screwdriver and used its metal tip in an attempt to prise open the latch between the sliding windows on one side of the main door. This attempt was unsuccessful.

6 The accused then moved to the sliding windows on the other side of the main door. When the accused tried to prise open the windows, the screwdriver slipped and broke the glass panel of the window. The accused sustained a cut on one of the fingers on his right hand. He used a yellow towel to bandage his injured finger which was bleeding. The accused decided to flee from the scene before being caught. On the ground floor of the block of flats, the accused threw the screwdriver and the yellow towel away.

7 On 3 April 2013 at about 4.20pm, the accused was arrested by a party of CNB officers at the void deck of Block 390 Yishun Avenue 6, Singapore. The accused was brought to Ang Mo Kio Police Division Headquarters (“AMKPDH”) for further investigations. The accused’s urine samples were taken. They were analysed by the Health Sciences Authority (HSA). The samples were tested positive for morphine, which is a specified drug listed in the Fourth Schedule to the MDA.

8 Investigations revealed that prior to his arrest, the accused smoked “ peh hoon” (street name for diamorphine) on 2 April 2003. He placed some diamorphine on an aluminium foil and heated the bottom of the foil. Using a rolled-up piece of paper, the accused then inhaled the fumes that was produced. This resulted in the accused’s urine samples being tested positive for morphine.

9 As the accused had previously been admitted to an approved institution (Sembawang DRC) on 15 December 1994 for consumption of morphine pursuant to an order made by the Deputy Director of the CNB, and was also convicted on 21 October 1997 of an offence of consumption of morphine (deemed to be a previous conviction for an offence of consumption of a specified drug), he was liable to enhanced punishment of a minimum of five (5) years imprisonment and three (3) strokes of the cane under section 33A(1) of the MDA.

10 The accused admitted to the above facts without any qualification and consented to the remaining second charge ^{[note: 3]} being taken into consideration for the purpose of sentencing.

11 The accused has an illustrious criminal records dating back to 1982 when he was only 18 years-old. As the records ran into 8 pages long ^{[note: 4]} , I will only set out the relevant ones as follows:

i On 1 March 1990, he was sentenced to a total of 3 years 30 months (or 5½ years) of imprisonment for six (6) charges of housebreaking and theft by day under section 454 read with section 34 of the Penal Code. His appeal against sentence was dismissed;

ii On 21 October 1997, he was sentenced to a total of 8 years of imprisonment and 24 strokes of the cane for a total of 10 charges, for offences ranging from housebreaking (6 charges), drug consumption (morphine- 1 charge) to failure to report for urine test (3 charges);

iii On 26 February 2004, he was sentenced to 8 years of Corrective Training (“CT”) and 30 strokes of the cane (subject to the maximum of 24 strokes being inflicted) for 5 charges of housebreaking.

12 In mitigation, the accused, who was not represented, pleaded for a light sentence and for the sentences to run concurrently. He informed me that he had been in remand since 12 April 2013. The accused pointed out that the housebreaking offences were only “attempted” cases as he realised his mistake in the midst of committing the offences. As the accused had clearly admitted to the statement of facts when the same was read to him, which stated that the accused only abandoned his attempt to break into the flat because his screwdriver broke and he cut his finger, I placed little weight on this aspect of his mitigation.

13 The prosecution submitted that CT and Preventive Detention (“PD”) report should be called for the purpose of sentencing in view of the accused’s bad criminal records. Further, the amended first and second charge were also for housebreaking offences, which were similar to that for which he was placed on 8 years of CT in 2004.

14 In view of the accused’s bad criminal record and the fact that the offences that he pleaded guilty to were similar to those for which he was sentenced to CT in 2004, I was of the view that the sentencing principle of specific deterrence should take precedent in the accused’s case. Hence I called for both CT and PD report on the accused before deciding on the appropriate sentence to be imposed on the accused.

15 In the Report dated 11 July 2013, the accused was certified by the Medical Officer of Cluster B, Changi Prison Complex to be physically and mentally fit to undergo CT and PD. ^{[note: 5]} The following findings were also made in the Report:

i His criminal history revealed a pattern of relapses mostly within a year. He was released on licence from his last CT sentence in November 2011. He only managed to stay crime free for about 13 months before he committed the offence in the amended third charge on 14 December 2012 ^{[note: 6]} ;

ii Risk Factors- the followings were assessed to be risk factors for the accused:

a Financial situation: He ran into financial difficulty after he stopped working in December 2012 as there was no more painting job for him. The problem was further exacerbated by his drug use, which subsequently led to his offending ^{[note: 7]} ;

b Companion: His continued association with friends involved in drugs facilitated the resumption of drug abuse by the accused. The accused informed that he met these friends to buy drugs ^{[note: 8]} ;

c Drugs: The accused started taking heroin from July 2012 onwards. He attributed his offending to financial difficulties brought on by his drug use ^{[note: 9]} ;

d Attitude: the accused seemed to possess an attitude that justified his offending. He was observed to minimise the seriousness of his actions by highlighting that he only attempted to commit housebreaking. ^{[note: 10]}

iii Risk Findings: ^{[note: 11]}

a General risk of criminal recidivism- the accused was assessed to be in the moderate risk/need category of criminal re-offending. He belonged to the group of prisoners with a 35% to 46% probability of recidivism within 2 years of release;

b Specific risk of offending- the accused’s risks of offending came from both personal and environmental factors. His accounts of the events suggested a tendency on his part to turn to drugs which led to financial difficulties and his subsequent offending. He also presented himself as an individual who minimised his responsibility in the offences. The situation was also exacerbated by his unhealthy association with friends who are involved in drugs and his inability to spend his time more constructively.

iv Protective factors: the only positive factor in the accused’s favour was his supportive family that might mitigate his risk of re-offending. ^{[note: 12]}

16 In sentencing the accused, I took into consideration the following aggravating factors in this case:

i The accused was sentenced to 8 years CT and 30 strokes of the cane for the offence of housebreaking in February 2004. He was released from prison on licence in November 2011. However, barely 1 year after he was released, the accused committed the offence in the amended second charge on 14 December 2012 , followed by that in the amended first charge on 11 February 2013 and finally on 3 April 2013 , he committed the offence in the amended third charge. This shows that the accused is a recalcitrant and has not learnt anything from the CT he had received in 2004 or the punishment before that;

ii The accused has again committed the offences of housebreaking and drug consumption, offences which were similar to his previous criminal records and for which he was sentenced to 8 years CT and 30 strokes of the cane in February 2004. It was clear to me that that sentence was not sufficient to deter the accused from committing similar offences again.

17 The CT and PD Report has identified many risk factors concerning the accused as stated in paragraph 15 above. Most importantly, the accused was assessed to be in the moderate risk/need category of criminal re-offending. He belonged to the group of prisoners with a 35% to 46% probability of recidivism within 2 years of release. What this means is that there is a ⅓ to almost a one in two chance that the accused will re-offend within 2 years of release. Further, the offence that the accused had habitually and repeatedly committed, i.e. housebreaking, affects the safety and security of the households of the public at large. The public need protection from a recalcitrant like the accused. Therefore the principle of specific deterrence in sentencing must take precedent against the accused in this case.

18 In sentencing the accused, I have taken into consideration the fact that the accused had pleaded guilty to the charges and the period of remand of about 3 months that he had already served. The prosecution has asked for 10 years of PD in view of his bad criminal records and recidivism risk. Having considered the sentencing factors discussed above, and in particular the accused was in the moderate risk category of recidivism, I sentenced the accused to nine (9) years of CT in lieu of imprisonment , and the mandatory three (3) strokes of the cane for the drug consumption charge under LT1 punishment. ^{[note: 13]}

19 The accused, being dissatisfied with the above sentence, has lodged an appeal against the same. He is currently serving his sentence.

Context

^{[note: 1]} The amended 3 ^rd charge- DAC 12117/2013

^{[note: 2]} The amended 1 ^st charge- DAC 12078/2013

^{[note: 3]} The amended 2 ^nd charge- DAC 13410/2013

^{[note: 4]} See Exhibit P1

^{[note: 5]} Page 3, Part VI, 1 ^st paragraph of the Report

^{[note: 6]} Page 2 of the Report, Part IV

^{[note: 7]} Page 3 of the Report, Part VI, under “Finances”.

^{[note: 8]} Page 4 of the Report, 1 ^st paragraph

^{[note: 9]} Page 4 of the Report, 3 ^rd paragraph

^{[note: 10]} Page 4 of the Report, 4 ^th paragraph

^{[note: 11]} Page 4 of the Report, Part VII

^{[note: 12]} Page 5 of the Report, 2 ^nd paragraph

^{[note: 13]} DAC 12117/2013

Context