2 August, 2016
INTRODUCTION
The requirement for the Prosecution to set out adequate facts in the Statement of Facts (“SOF”) tendered to Court was examined by the High Court (“HC”) in the recent case of PP v Andrew Koh Weiwen [2016] SGHC 103 (“Andrew Koh”).
In particular, the HC in Andrew Koh highlighted that the consequence of not resolving disputed facts relevant to sentencing during
the plead guilty hearing is to allow room for diSerent versions of facts to emerge at sentencing. If parties are unable to agree, the only solution will be for the disputed facts to be resolved at a Newton hearing. In this article, the analysis made by the HC on the issue of an adequate SOF shall be examined, and the likely practical implications Andrew Koh would have on future criminal proceedings.
SUMMARY OF FACTS AND DECISION
In Andrew Koh, the Prosecution appealed against the respondent’s sentence for an oSence of voluntarily causing hurt under s 323 of the Penal Code. According to the SOF tendered by the Prosecution, the respondent had approached and hit the victim, who was waiting for a taxi, on the head with a Martell glass bottle after drinking with his friends. The victim suffered two superficial lacerations as a result of the respondent’s unprovoked attack. The respondent admitted to the SOF without qualification and subsequently pleaded guilty to the charge at the Xrst instance hearing. He was convicted by the District Judge who imposed an imprisonment term of two days and a fine of $5,000.
After considering the parties’ submissions and precedent cases, the HC found the original sentence to be “manifestly inadequate having regard to all the material facts and circumstances of the case”,1 and enhanced the sentence to four weeks’ imprisonment.
Significantly, the HC emphasised that “attacks and oSences against people travelling on or waiting to use public transport should be viewed as an aggravating factor in sentencing”2 as such offences “directly affect public safety and security”.3
The HC also underscored the necessity of general deterrence in such situations due to strong public interest, in that “people should be able to go about their daily aSairs without any fear of physical violence.”4
ADEQUACY OF THE SOF
In its decision, however, the HC commented that the admitted SOF was “inadequate and bare”,5 as it did not contain several disputed facts including, inter alia, the surrounding circumstances immediately prior to the fracas and whether other people were involved in the commotion, which were relevant to the court’s consideration in sentencing and were not resolved by parties at the Jrst instance hearing. The HC noted that it had advised parties from both sides to come to an agreement on what
had actually happened and eventually, both sides agreed that: 6
(a) there was only a verbal and not a physical fracas which led to the incident (the HC highlighted that it would have been more
aggravating if it were a random attack on a stranger waiting for a taxi);
(b) the Martell bottle broke upon impact with the victim’s head;
(c) the respondent was injured and bloodied himself due to the physical fracas that ensued; and
(d) other people joined in the physical fracas after the respondent’s sudden physical attack on the victim.
Had the parties not come to an agreement as above, the HC pointed out that it would have remitted the case back to the District Judge for a Newton hearing, so as to make a Jnding based on accurate facts to do justice and sentence the offender.
The HC’s starting point for reviewing the adequacy of the SOF issues was premised on Chief Justice Sundaresh Menon’s comments in the case of Public Prosecutor v Aniza bte Essa [2009] 3 SLR(R) 327 at [61] in relation to simplifying the mitigation process, that where the Prosecution:
1. objects to any unsubstantiated assertions in the mitigation speech, the Defence will either have to withdraw the statements, provide proof acceptable to the Prosecution, or call evidence (i.e. convene a Newton hearing); and
2. does not object to the assertions made by the Defence, the Court is entitled to accept them and give such weight to them as it thinks Jt.
Accordingly, the SOF is crucial in setting out the admitted facts for the Court’s consideration during sentencing in plead guilty cases and coupled with the charges form the “four corners of the case against [the accused person]”7.
To that end, the “Prosecution cannot introduce new aggravating facts beyond the admitted facts by the back door in its submissions on sentence, whether at the hearing [of the Court of first instance] or subsequently at the appeal.”8
Similarly, the Defence “cannot slip in new unsubstantiated mitigating facts by the back door through its submission on sentence, at the appeal or by relying on disputed mitigating facts in its mitigating plea which remain unresolved at the hearing below”.9
In this regard, the HC noted See Kee Oon JC’s observation in Public Prosecutor v Development 26 Pte Ltd [2015] 1 SLR 309 that where no SOF was tendered and the parties merely relied on the facts as per the charges of which the respondent pleaded guilty to, the subsequent appeal “should be confined to the facts that the accused person had admitted to, and that the Prosecution could not seek to alter the entire factual basis for the plea of guilt by adducing additional evidence on appeal”.10
Ultimately, the HC held that it is a basic tenet of law that the Prosecution is duty-bound to assist the court to make a decision on sentencing, and the importance of the Prosecution discharging the duty is made even more important by the fact that the Court often relies on material facts presented in the SOF and mitigation plea for it to determine a sentence to impose on the accused. The HC pointed out that in practice, prosecutors may sometimes furnish a brief SOF to clear cases quickly, as was the case in Andrew Koh, where the SOF was “very brief” and “[did] not paint a full picture of what had occurred”,11 especially in giving the impression that there were no other persons involved.
Therefore, the HC clarified that subject to “the plea bargaining process or other valid practical reasons”, the SOF “ought to paint a fuller picture and flesh out the relevant facts material to both guilt and sentence to assist the judge given that the factual circumstances in each case can vary greatly and the sentencing range for the oence is fairly wide”.12
However, where a plea of guilt is taken on the basis of a brief SOF where the material facts, but not the elements of the charge, are disputed , the disputed factual matters may subsequently be decided at a separate Newton hearing to save the Court’s time.13
If parties do not consider a Newton hearing necessary and proceed to deal with all matters in relation to conviction and sentencing in a single proceeding when the accused person pleads guilty, they must first “agree on the facts relied upon in support of conviction, including those material facts to be relied upon as aggravating or mitigating facts by the respective parties for the purpose of sentence”.
CONCLUSION
Generally, the implications of Andrew Koh on future criminal proceedings in relation to the issue of adequacy of SOFs may not be as serious as some may think given the rarity of the Court Lnding fault with the Prosecution in this area.
Nonetheless, a likely development which would follow is that parties in criminal proceedings, be it the Prosecution or the accused person, would be more informed of the adequacy of materials to be submitted to court for sentencing purposes, and the courts should see fewer of such cases relating to SOFs emerging again given the instructive observations in Andrew Koh.
On the other hand, where parties cannot come to an agreement with respect to the material facts that they wish to rely on for the purpose of sentencing, a Newton hearing ought to be carried out so that material facts affecting the gravity of the sentence can be established. Although a Newton hearing should be rarely conducted, it is necessary if there are opposing versions of the facts. Only then will all the relevant considerations be given to a Court to determine an appropriate sentence.
1 Andrew Koh at [2].
2 Andrew Koh at [27].
3 Ibid.
4 Ibid .
5 Andrew Koh at [16].
6 Andrew Koh at [18].
7 Public Prosecutor v Development 26 Pte Ltd [2015] 1 SLR 309 at [16].
8 Andrew Koh at [14].
9 Ibid .
10 Andrew Koh at [15].
11 Andrew Koh at [17].
12 Andrew Koh at [36].
13 Andrew Koh at [19].
14 Andrew Koh at [37].
For further information, please contact:
Eng Hui Chua, Partner, RHTLaw TaylorWessing
