Public Prosecutor v ADW

Suit No:	DAC 10955/2009 and anor, MA 417/2009
Decision Date:	16 Dec 2009
Court:	District Court
Coram:	Paul Quan
Counsel:	DPP Adrian Loo for the prosecution, Julian Lim (Asia Ascent Law Corporation) for the accused

[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]

1 The Accused faced four charges of outraging the modesty of a (then) 13-year-old male victim under Section 354 of the Penal Code, Cap 224 (1985 Rev Ed).[note: 1] On the first day of trial, he pleaded guilty before me to the third and fourth charges and consented to have the remaining charges taken into consideration for the purpose of sentencing (“TIC charges”). I convicted him of both charges and imposed a total sentence of 16 months’ imprisonment and three strokes of the cane. The Accused has appealed against the sentence imposed. I now set out the reasons for my decision.

2 The Accused admitted to the statement of facts without qualification.[note: 2]

3 The facts relating to the third charge are that the victim was playing games on the computer in the Accused’s room on 28 November 2007 at about 9.00am, when the Accused asked the victim to stroke his (the Accused’s) penis. The Accused proceeded to undress himself and thereafter, he grabbed the victim’s right hand to stroke his (the Accused’s) exposed penis.

4 As for the fourth charge, the facts are that the Accused joined the victim and a group of friends who were swimming at the beach on 24 November 2007 sometime after 12.00pm. Whilst in the water, the Accused pulled down the victim’s shorts and underwear and squeezed the victim’s penis. A while later, the Accused returned the victim’s shorts and underwear to him.

6 Counsel tendered a written mitigation[note: 3] and also addressed the Court orally. The main thrust of the mitigation was to urge the Court not to impose a sentence of caning on the Accused and to impose only a custodial sentence or a fine. To this end, Counsel referred the Court to several cases that have departed from the usual sentencing tariff for outrage of modesty cases and sought to draw parallels between these cases and the present case.

7 For the third charge, Counsel submitted that just as the Accused in Kwan Peng Hong v PP [2000] SGHC 164, who touched the victim’s breast because he “just got excited”, the Accused in the present case also committed the offence because he got excited when he saw a reaction from the victim. The incident also lasted for a short time. This was contrasted with the aggravated facts in Tok Kok How v PP [1995] SGHC 44. First, the Accused in that case did not heed the victim’s warning to keep his hands to himself. Secondly, after the victim broke free from his grip, the Accused caught up with the victim and touched her again. Thirdly, the Accused persisted in his actions in that he outraged the victim’s modesty four times. Counsel also submitted that just as the Accused in Wong Soon Lee v PP [2002] SGHC 216 was in a state of “high” at the time of the incident because he was intoxicated, the Accused in the present case could also be said to be in a state of “sexual high” upon seeing the victim’s reaction.

8 As for the fourth charge, Counsel relied on Kwan Peng Hong (supra) and submitted that the offender’s behaviour after the incident was also a relevant consideration. In the present case, the Accused returned the victim’s shorts and underwear. This, according to Counsel, was a sign that the Accused felt guilty as opposed to being belligerent or unremorseful.

9 Counsel also referred me to an extract from Kow Keng Siong’s Sentencing Principles in Singapore (2009 ed) wherein the learned author opined that there have been instances where the courts did not impose caning where caning is discretionary, or ordered a lesser number of strokes on an offender who pleaded guilty or showed that he was remorseful. By pleading guilty in this instance, Counsel submitted that the Accused had saved the Court, the Police/Prosecution valuable time, expense and trouble and had obviated possible trauma to the victim of going through a protracted trial and/or having to give evidence.

10 Two testimonials, one from the Accused’s student and another from a student’s parent, were also tendered to attest to the Accused’s good character.[note: 4]

11 To assist the Court, the Prosecution suggested that for the third charge, the sentence should be six months’ imprisonment upwards considering that there was prolonged and direct contact. As for the fourth charge, although private parts were involved, it was a brief touch and the sentence ought to be three months’ imprisonment.

12 The Prosecution also highlighted the following sentencing considerations that should be taken into account for the present case:

The offences took place over a week on two occasions for the third and fourth charges;

(e) The Accused was in a position of trust and authority vis-à-vis the victim although the victim was not his student, and the Accused had abused that position; and

13 Point (e) was a bone of contention for the Defence. In this regard, Counsel submitted that no relationship of trust and authority had been established as the victim was not the Accused’s student but merely tagged along with his friends who were the Accused’s students when they had their tuition sessions with the Accused. Nevertheless, the Accused would also make the victim study with the group so that he would spend his time meaningfully. However, the Prosecution argued that it did not lie in the Accused’s mouth to say that he made the victim study with the group and yet say in the same breath that no relationship of trust and authority was formed. In response, the Defence submitted that such a relationship must be an express one and it could not be a quasi-relationship as the Prosecution had suggested.

14 It would be appropriate for me to set out the sentencing considerations that I had taken into account in arriving at the sentence which I imposed.

15 The Accused has been charged under Section 354 of the Penal Code, which is punishable with a maximum imprisonment term of two years, or with fine, or with caning, or with any two of such punishments. Because the present offences were committed in 2007, the post-2008 amendments to this Penal Code offence did not apply, although it is noteworthy that the new Section 354(2) of the Penal Code now expressly carries a heavier penalty for outrage of modesty simpliciter committed against victims below the age of 14.

16 Be that as it may, it is a given that protection has always been afforded to young victims of molest. The need to protect minors has been reiterated in Parliament. For instance, prefacing the introduction of the Penal Code amendments to protect minors from sexual abuse, the Senior Minister of State for Home Affairs Assoc Prof Ho Peng Kee expressed the view that (Singapore Parliamentary Debates, 22 October 2007 vol 83 at col 2175):

[W]hilst the Penal Code protects society generally, we should be mindful that some amongst us are more vulnerable to crimes than others. These include persons of a young age and persons with mental disability.

Indeed, even prior to the 2008 Penal Code amendments, a heavier penalty would apply if aggravated outrage of modesty was committed against young victims below the age of 14: see Section 345A(2)(b) of the Penal Code. The courts have also long regarded any acts of molest perpetrated against a young victim as an aggravating factor: see eg Lee Kwang Peng v PP [1997] SGHC 201 at [140]. This is justified on the basis that this class of vulnerable victims is in need of especial protection against sexual exploitation because they are generally wanting in the ways of the world and are sexually immature due to their tender age, as well as protection against moral corruption during the important formative years of their development.

17 In the present case, the victim was 13 years old and the Accused was nearly three times his age at the time of the offences. The fact that the Accused, as a mature adult, had outraged the modesty of a young victim was an aggravating factor which I could not ignore. In Lim Hock Hin v Kelvin v PP [1998] SGCA 1, the Court of Appeal expressed the view at [21] that:

Paedophilic offences are by their nature unpleasant and most distressing and the society has to express its marked disapproval for such harm to the young and vulnerable victims. The presumption is that the safety of the child must be paramount…

Although the Court had used the words “child” and “children” in its judgment, it was clear that the Court had in mind the protection of persons below the age of 14: see [24]. In the present case, the Accused’s display of (borderline) paedophilic tendencies was alarming to say the least, especially in light of his profession as an educator of young persons, and something for which the Court had to show its disapprobation.

18 The more egregious acts of molest are those committed against (a) young victims involving (b) multiple prolonged and direct intrusions of (c) private parts with (d) some degree of violence (e) by a perpetrator in a position of trust or authority known to the victim. The present case has shades of these features, to which I now turn to discuss.

19 In the recent decision of PP v Heng Swee Weng [2009] SGHC 275, V K Rajah JA endorsed the considerations laid down by District Judge Kow Keng Siong (as he then was) in PP v QO [2006] SGDC 250 as a guideline for sentencing in outrage of modesty cases:

(e) Were the circumstances in which the offence was committed inherently reprehensible?

In the present case, the victim’s genitals were intruded upon (factor (a)). The Accused did not only touch the victim’ genitals but squeezed them and it was direct skin-on-skin contact (factor (b)). The circumstances under which the offence was committed was also wholly reprehensible (factor (e)) for several reasons. First, the Accused had the audacity to molest the victim, who was in the company of his friends, in a public place, albeit under the cover of water. Secondly, there was some degree of violence used in that he not only pulled down the victim’s shorts but also his underwear and squeezed his genitals. Thirdly, the fact that the Accused had to subsequently return the victim’s shorts and underwear spoke volumes about the extent to which he had undressed the victim.

20 In light of the above as well as the victim’s age, the fact that the molestation was brief (factor (c)) and might have been committed on the spur of the moment (factor (d)), as well as the fact that he was neither a recidivist nor suffering from any mental or intellectual disability (factors (f) and (g)) did little to mitigate the gravity of the offence that the Accused had committed.

21 Although the Accused did not touch the victim on this occasion, he nevertheless corrupted the victim by making him perform a lewd sexual act, viz he grabbed the victim’s hand to stroke his (the Accused’s) penis. I was of the view that this could not have been a completely spontaneous incident. The manner in which the offence was committed was deliberate and methodical. He first asked the victim to stroke his penis. He then proceeded to undress himself, after which he grabbed the victim’s hand to stoke his exposed penis. What was aggravating was that prior to this incident, the Accused had already molested the victim earlier on the same day at his house by putting his hands into the victim’s underwear and rubbing his genitals,[note: 5] as well as at the beach four days earlier.[note: 6] The Accused also took advantage of the fact that the victim was playing games on the computer in his (the Accused’s) room and outraged the victim’s modesty within the confines of his (the Accused’s) room.

22 Although the victim was not the Accused’s student, I was satisfied that he was nevertheless in a position of trust and authority vis-à-vis the victim. The written testimonials that have been tendered from a student and a parent bear testament to the level of trust and confidence reposed in the Accused. The victim had no reason to do otherwise or to see the Accused in any lesser light, especially since the Accused was also his friends’ tutor. If the Accused were not in that unique position, it was difficult to see how he could have gotten the victim to study with the group since he was but a tag-along who need not have listened to the Accused’s instructions. The third charge revealed that the victim was not only in the Accused’s house but in his room playing games on the computer. The second charge further revealed that the victim was at the Accused’s house during the wee hours of the morning. Both these charges gave an insight as to the closeness of the relationship between the Accused and the victim and the corresponding level of trust that the victim had reposed in the Accused.

23 I could not ignore the fact that the Accused’s offending behaviour was not one-off. He had in fact outraged the modesty of the victim on four different occasions. This was borne out by the TIC charges that were of similar nature and also involved intrusions of the victim’s private parts. The second charge took place in the wee hours of the morning in the Accused’s house whereas the first charge took place in another public place. It is trite that the effect of TIC charges is to enhance the sentence that would otherwise be awarded: PP v Mok Ping Wuen Maurice [1998] SGHC 306 at [19]. To my mind, the TIC charges, when viewed together with the proceeded with charges, showed a clear pattern of systematic abuse by the Accused.

24 It remains for me to address Counsel’s arguments during mitigation which I have outlined earlier (see [7] and [8] above). Reliance was placed on several cases to buttress Counsel’s submission that the present case did not call for the usual sentencing tariff to be applied, in particular the sentence of caning. With respect, I did not agree with the parallels that the Defence sought to draw between those cited cases and the present case.

25 In respect of the third charge, I was not at all impressed by the claim that the Accused got excited upon seeing a reaction from the victim. In Kwan Peng Hong (supra), the Accused had succumbed to human frailty resulting from the laws of physical attraction between adults (which in any event is also not an excuse for outraging another person’s modesty). In the present case, the fact that the offences are paedophilic in nature gives them a very different complexion. The victim was a budding teenager as compared to the Accused who was a mature adult nearly three times his age. The Accused not only allowed himself to get aroused but what was even more damning was that he then proceeded to act upon such feelings of arousal. I was also unable to agree with Counsel that following Wong Soon Lee (supra), the non-imposition of caning could be justified because the Accused could be said to be in a state of “sexual high”. In my view, this so-called heightened state of arousal is very different from a state of intoxication in Wong Soon Lee and the two ought not to be conflated. The former is objectionable per se because it was derived from a wholly improper encounter with a young and unsuspecting victim.

26 As for the fourth charge, I could not see how returning the victim’s shorts and underwear by the Accused after the incident could be properly regarded as a redeeming factor in any way. In my view, this argument was neither here nor there. Just as such behaviour could be couched as an indication of guilt or remorse, it could also be said that such behaviour was consistent with the Accused’s efforts in trying to cover up his dirty deed. If he did not and the victim emerged from the beach in a state of undress, this would certainly have attracted the attention of and questioning by the victim’s friends. The Accused must have known that if that were to happen, he ran the risk of the victim pointing the finger at him for his embarrassing predicament.

27 All considered, I found myself constrained to say, with respect, that Counsel’s arguments and his reliance on the cases cited by him were regrettably misconceived.

28 The sentencing tariff where the victim’s private parts are intruded upon is nine months’ imprisonment with caning: Chandresh Patel v P [1995] 1 CLAS News 323. The case of Lee Kwang Peng (supra) makes it clear that the gender of the victim is irrelevant and the same tariff will apply whether a male or female victim is involved. Lee Kwang Peng merits further discussion because it also involved a male adult accused person outraging the modesty of young male victims.

29 In that case, the 33-year-old Accused was charged with six counts of outraging the modesty of two of his taekwondo students by fondling the penis of one of them and massaging the testicles of the other. The victims were aged between 12 to 14 at the time of the offences. The Accused was convicted of all the charges after a trial and was sentenced to four months’ imprisonment per charge, with three imprisonment terms to run consecutively, making a total sentence of 12 months’ imprisonment. No caning was imposed. On appeal, having regard to the victims’ age and the fact that the Accused had abused the trust reposed in him by the victims and their parents, the High Court adopted the sentencing tariff of nine months’ imprisonment and enhanced the sentences of all six charges from four to nine months’ imprisonment, with two imprisonment terms to run consecutively, making a total sentence of 18 months’ imprisonment.

30 Although the trial judge’s decision not to impose caning was undisturbed on appeal, I was of the view that this case cannot be safely relied upon for the proposition that non-imposition of caning can be justified for similar molest cases involving young male victims, such as the present case. The High Court merely noted that no caning was imposed by the trial judge and nothing more. Without the benefit of further explicit explanation or elaboration as to why this aspect of the trial judge’s decision was not disturbed, it would not be right to conclude that based on this case, I was justified in departing from the usual sentencing tariff which attracts a sentence of caning. This case is also distinguishable from the present case in that at the time of the offences, the Accused in the present case was older than the Accused in Lee Kwang Peng and therefore should possess a greater level of maturity. The age-gap between the Accused and the victim in the present case is also greater, which made the exploitation and moral corruption of the victim more serious and therefore the molest more aggravated. In Tay Kim Kuan v PP [2001] SGHC 241, a case of a 45-year-old male accused having carnal connection with a 15-year-old female complainant, Yong Pung How CJ (as he then was) expressed the view at [13] that:

In particular, where the age difference between the parties is significant, the [Accused] can be expected to be punished more severely as his offence can then no longer be regarded as merely the result of the false steps of youth but rather the conscious and calculated decision of a mature adult.

31 I therefore adopted the sentencing tariff of nine months’ imprisonment with caning as the starting point. For the reasons discussed above, I imposed a sentence of 12 months’ imprisonment and three strokes of the cane for the fourth charge. As for the third charge, I imposed a sentence of four months’ imprisonment. I would have been minded to impose heavier sentences, but for the fact that the Accused had pleaded guilty and owned up to what he did. In so doing, he had spared the victim the trauma of having to give evidence in court and to recount the events. The victim’s anxiety was borne out by the fact that he changed his mind about giving evidence in person and requested to give evidence via video-link facilities instead.

32 As the two charges proceeded with involved separate and distinct incidents on different occasions, I ordered the sentences of imprisonment for both charges to run consecutively. The aggregate sentence was therefore 16 months’ imprisonment and three strokes of the cane. In so doing, I was mindful of the totality principle (see Kanagasuntharam v PP [1991] SGCA 44 at [13]; PP v Law Aik Meng [2007] SGHC 33 at [57]-[60].) The aggregate sentence imposed in this case did not exceed the maximum sentence prescribed for a single Section 354 offence. In any event, I was of the view that the aggregate sentence accorded with the gravity of the offences committed as well as the Accused’s level of culpability. I was also of the view that I did not impose a ‘crushing sentence’ not in keeping with the Accused’s records and prospects. In this regard, it bears repeating the nature of the offences and the Accused’s conduct. The Accused had outraged the modesty of the victim on no less than four occasions and had on three of those occasions intruded upon the victim’s private parts. The victim was young, being only 13 years old at the time of the offences, whereas the Accused was a mature adult nearly three times his age, who stood in a position of trust and authority which had been abused.

33 I was also of the view that considerations of general deterrence and to a certain extent, specific deterrence, were also applicable in this case. Like-minded individuals have to be suitably deterred from engaging in similar paedophilic offences and a sentence of caning is often an effective deterrent. Indeed in Law Aik Meng (supra), V K Rajah J (as he then was) articulated the view at [24] that:

Offences against vulnerable victims often create deep judicial disquiet and general deterrence must necessarily constitute an important consideration in the sentencing of perpetrators. In PP v NF [2006] 4 SLR 849, [42], I stated as follows:

[O]ur courts would be grievously remiss if they did not send an unequivocal and uncompromising message to all would-be sex offenders that abusing a relationship or a position of authority in order to gratify sexual impulse will inevitably be met with the harshest penal consequences. In such cases, the sentencing principle of general deterrence must figure prominently and be unmistakably reflected in the sentencing equation. [Emphasis in original]

34 As for the need to deter the Accused from engaging in similar conduct in future, Counsel’s submission that that the Accused would no longer be able to “continue with the task (and livelihood) of educating and caring for children” and that there was no risk of the Accused re-offending was perhaps somewhat of an overstatement. It was clear that despite being convicted of the offences, there was at least one student and a parent who were willing to vouch for the Accused’s character. It was not unreasonable to expect this student to continue interacting with the Accused and also for the parent to continue to entrust her child in the Accused’s care. There is also no stopping the Accused from starting afresh upon his release, and continuing from where he left off educating and interacting with new students in his capacity as a private tutor. Indeed, as highlighted by Counsel, this was a task for which the Accused feels so much “natural affection”. In the circumstances, I have imposed a substantial period of incarceration and caning in the hope that this will serve as a constant reminder to the Accused of his dastardly acts and that he would do well never to repeat them, or suffer the consequences of even heavier penal sanctions.

35 On the Prosecution’s application, I granted an order under Section 7(3) of the Subordinate Courts Act, Cap 231, not to publish any thing in these proceedings likely to lead to the identification of the victim. The Accused is currently serving sentence at Singapore Changi Prison and his earliest date of release is 21 October 2010.

[note: 1]Exhibit C1A-C4A.

[note: 2]Exhibit PS1.

[note: 3]Exhibit DS1.

[note: 4]See Annexes A and B of Exhibit DS1.

[note: 5]Exhibit C2A.

[note: 6]Exhibit C4A.