Annis bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 March 2004
• Neutral Citation: [2004] SGHC 52
• Docket Number: Magistrate's Appeal No 208 of 2003,
• Date: 05 March 2004
• Year: 2004
• Published date: 09 March 2004
• Plaintiff Counsel: S S Dhillon and Terence Hua (Dhillon Dendroff and Partners)
• Citation: [2004] SGHC 52
• Defendant Counsel: Khoo Oon Soo and Seah Kim Ming Glenn (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Whether disparity between sentences imposed in respect of each of these offences overly large,Judges,Whether High Court has power to amend,Criminal Procedure and Sentencing,Whether protection of public an exception to general rule that plea of guilt will entitle accused to discount of sentence,Alteration,Power,Ordinary sexual intercourse offences and those involving unnatural sexual intercourse by way of fellatio,Statement of facts,Whether deterrent sentence should be imposed where police officer commits offence outside scope of his official duties,Mitigation,Courts and Jurisdiction,Benchmark sentences,Section 256 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Principles,Powers of High Court to amend charge and to convict accused on amended charge,Sentencing,Section 377 of the Penal Code (Cap 224, 1985 Rev Ed),Whether plea of guilt should be accorded mitigating weight,Governing principles,Adducing fresh evidence,Section 377 Penal Code (Cap 224, 1985 Rev Ed),Whether deterrent sentence should be imposed where initial contact between sex offender and victim is via the Internet,Offences,Carnal intercourse against the order of nature by engaging in fellatio,Plea of guilt,Whether sexual promiscuity of young victim relevant in sentencing,Whether conditions of non-availability, relevance and reliability satisfied,Unnatural offences,Charge,Section 377 Penal Code (Cap 224, 1985 Rev Ed), s 140(1)(i) Women's Charter (Cap 357, 1997 Rev Ed),Whether hardship caused to accused's family as result of imprisonment a mitigating factor,High court,Criminal Law,Appeal

5 March 2004

Yong Pung How CJ:

1 The appellant pleaded guilty before District Judge Wong Keen Onn in the District Court to one charge of having carnal intercourse against the order of nature under s 377 of the Penal Code (Cap 224, 1985 Rev Ed), and was sentenced to 24 months’ imprisonment.

2 The charge against the appellant is set out below:

You, Annis bin Abdullah, Male/27 years old, NRIC No. S/7616484/C, are charged that you, on or about the 23^rd day of April 2002, at about 10.00pm, at Chinese Garden Road, Singapore, had carnal intercourse against the order of nature with [the victim], female 16 years old, DOB 16 April 1986, to wit, by engaging in the act of fellatio with [the victim] and you have thereby committed an offence under section 377 of the Penal Code, Chapter 224.

3 The statement of facts presented by the Prosecution also stated that the victim was 16 years old at the time of the offence.

4 After the appellant was sentenced, it was discovered that the victim was only 15 years old at the time of the offence and that the Prosecution had made an error when preparing the charge and the statement of facts. The Public Prosecutor brought an application for criminal revision pursuant to s 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), seeking an amendment of the charge and of the statement of facts to reflect the true age of the victim at the time of the offence.

5 The appellant appealed against his sentence on the ground that it was manifestly excessive. He also filed a motion for leave to adduce fresh evidence at the hearing of his appeal.

6 I heard the appeal, the motion and the petition for criminal revision on 17 February 2004. At the end of the hearing before me, I granted the petition for criminal revision. I dismissed the motion and allowed the appeal against sentence. I now give my reasons.

Background facts

7 In March 2002, the appellant met the victim online in an Internet Relay Chat (“IRC”) chatroom. They subsequently met at a barbecue gathering hosted by a mutual friend for Internet enthusiasts. After this meeting, the appellant and the victim kept in touch by way of telephone and IRC chatroom conversations. The victim later initiated a date with the appellant.

8 This date took place on 23 April 2002. At about 9.30pm that day, the appellant met the victim at the Jurong Entertainment Centre and the victim suggested that they go for a drive in the appellant’s car. The appellant drove to Chinese Garden Road and parked his car there. The appellant and the victim remained in the car and they eventually became intimate. The appellant asked the victim whether she wanted to have sexual intercourse with him, but she indicated that she did not wish to do so. The accused then asked the victim to fellate him and she agreed. She performed fellatio until the appellant ejaculated and the appellant then drove her home.

9 The appellant and the victim did not meet again. The victim was later encouraged by friends to make a police report about this incident and a police report was lodged on 1 May 2002.

10 The appellant was 25 years old at the time of the offence. He was a police sergeant attached to the Police Coast Guard.

The decision below

11 The district judge noted that the Court of Appeal had established in PP v Kwan Kwong Weng [1997] 1 SLR 697 that fellatio performed as a substitute for natural sexual intercourse constituted an offence under s 377 of the Penal Code. The district judge noted that the appellant had admitted to all the essential ingredients of the offence and convicted him accordingly.

12 In sentencing the appellant, the district judge noted that the appellant had sought out the teenage victim via the Internet to satisfy his lustful desires. In addition, the district judge was of the view that there were several aggravating factors present in this case, including the following:

(a) The appellant was a mature adult some ten years older than the victim;

(b) The victim was a teenager attending secondary school;

(c) The appellant had used the Internet as a medium to meet the victim and to engage in a criminal act which contributed to the victim’s moral corruption; and

(d) The appellant was a serving police sergeant in the Singapore Police Force when he committed the offence.

13 The district judge also took into account a number of mitigating circumstances in the appellant’s favour. The district judge noted that the appellant was a first offender and had pleaded guilty at the first opportunity. The district judge also noted that the appellant did not use trickery or force to coerce the victim into performing the act of fellatio.

14 On balance, the district judge was of the view that the aggravating factors in the present case outweighed the mitigating factors such that a substantial custodial sentence was justified. In light of this, the district judge imposed a sentence of 24 months’ imprisonment on the appellant.

The petition for criminal revision

15 I now turn to the Public Prosecutor’s petition for criminal revision.

Principles of revision

16 The revisionary powers of the High Court are conferred by s 23 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and s 268 of the CPC. Section 268 of the CPC provides that the High Court may, in an application for criminal revision, exercise, inter alia, its powers under s 256 of the CPC.

17 Section 256 provides, inter alia, that:

At the hearing of the appeal the court may, if it considers there is no sufficient ground for interfering, dismiss the appeal or may —

(a) …

(b) in an appeal from a conviction —

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or committed for trial;

(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the sentence; or

(iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the sentence;

(c) …

(d) …

Whether the High Court’s revisionary powers include the power to amend the charge and the statement of facts

18 It is established law that the High Court’s powers under s 256(b) of the CPC include the power to amend a charge and consequently convict an accused person on the amended charge: Garmaz s/o Pakhar v PP [1996] 1 SLR 401. The Court of Appeal noted in Garmaz, however, that such power is not unlimited and has to be exercised with great caution and not to the prejudice of the accused. The Court of Appeal further held that the test laid down by Cussen J in Ng Ee v PP [1941] 1 MLJ 180 was applicable in this regard. In Ng Ee v PP, Cussen J stated at 181 that the power to amend a charge on appeal was:

… a power to be exercised with great caution, and only where it is clear beyond all doubt, from the nature of the offence and the record of evidence in the case, that to do so can in no way prejudice the case of the accused; it must be clear that … the proceedings at the trial would have taken the same course, and the evidence recorded been the same – that the [Prosecution’s] evidence would have been unchanged (substantially) and the accused’s defence the same.

19 In PP v Koon Seng Construction Pte Ltd [1996] 1 SLR 573 at 579, [21], I stated, in the context of the court’s revisionary powers to amend a charge to which the accused person had pleaded guilty, that:

The power of amendment is clearly not unfettered. It should be exercised sparingly, subject to careful observance of the safeguards against prejudice to the defence … The court must be satisfied that the proceedings below would have taken the same course, and the evidence recorded would have been the same. The primary consideration is that the amendment will not cause any injustice, or affect the presentation of the evidence, in particular, the accused’s defence. These safeguards must be rigorously observed.

20 I should highlight here that the Public Prosecutor was applying to amend not only the charge, but also the statement of facts. Thus, the issue before me was whether the High Court’s powers under s 256(b) of the CPC include the power to amend the statement of facts.

21 I was of the view that the High Court’s powers under s 256(b) of the CPC were sufficiently broad to encompass the power to amend the statement of facts. In Garmaz, the Court of Appeal took pains to reject a strict and literal construction of s 256(b) of the CPC, holding at [28] that:

[S]uch a construction would lead to incongruous results: on the one hand the court by that section is given extensive powers in respect of conviction, sentence and findings, and yet on the other it has no power to amend the charge, and the consequence of this is that it has no power even to correct any errors appearing in the charge. Such a position is untenable. Further, the High Court has the revisionary powers under ss 266–268 of the CPC. In view of these extensive express powers, it is inconceivable that it was the intention of the legislature that the High Court, in the exercise of its appellate jurisdiction, should not have the power to amend the charge preferred against the accused and set the record straight. A more purposive construction should in our view be adopted.

[emphasis added]

22 While I noted that the question that was before the Court of Appeal in Garmaz related to the charge preferred against the accused, and not the statement of facts, I was of the view that a purposive construction of s 256(b) of the CPC should be adopted. This is because, following the Court of Appeal’s decision in Mok Swee Kok v PP [1994] 3 SLR 140, it is clear that the court has a legal duty to record a statement of facts and to scrutinise it to ensure that all the elements of the charge are made out therein. In light of this, I did not feel that the drafters of the CPC could have intended that the court should not have the power to amend the statement of facts. I was of the view that it...