BPH v Public Prosecutor and another appeal

• Judge: Sundaresh Menon CJ
• Judgment Date: 13 November 2019
• Neutral Citation: [2019] SGCA 64
• Citation: [2019] SGCA 64
• Court: Court of Appeal (Singapore)
• Published date: 16 November 2019
• Docket Number: Criminal Appeal No 29 of 2018 and Criminal Appeal No 19 of 2019
• Plaintiff Counsel: Derek Kang Yu Hsien and Chu Weng Yan Kathy (Cairnhill Law LLC)
• Defendant Counsel: The appellant in Criminal Appeal No 19 of 2019 in person,Mohamed Faizal, Winston Man and Yvonne Poon,Mohamed Faizal, James Chew and Selene Yap
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Sexual assault by penetration
• Hearing Date: 04 July 2019

Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction

In Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”), this Court set out the sentencing framework for sexual assault by way of digital-vaginal penetration, an offence under s 376 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). However, we left open the question of whether the Pram Nair framework should apply to other forms of sexual penetration such as digital-anal penetration and fellatio. Several cases in the High Court have since discussed this issue. Some judges took the view that some forms of sexual penetration are more serious than others. This was the view taken by Pang Khang Chau JC (as he then was) (“the Judge in BPH”) in Public Prosecutor v BPH (Criminal Case No 90 of 2017) (“BPH”), who adjusted the Pram Nair sentencing bands accordingly in his oral judgment. Other judges were of the opinion that no meaningful distinction could be drawn among the various forms of sexual penetration and they applied the Pram Nair framework broadly to all forms of sexual penetration set out in s 376 of the Penal Code. This was the view taken by Hoo Sheau Peng J (“the Judge in BVZ”) in Public Prosecutor v BVZ [2019] SGHC 83 (“BVZ”).

The above two cases came up on appeal before us on the same day but were heard at different sittings. BPH was heard in the morning followed by BVZ in the afternoon. At the conclusion of the hearings, we dismissed the respective appeals against sentence. While the facts of both appeals were unrelated, they raised the same related questions of principle: whether the Pram Nair sentencing framework applies to all permutations of sexual penetration in s 376 of the Penal Code; and whether there is a hierarchy of severity for the various permutations of sexual penetration in s 376 of the Penal Code.

We decided to issue these joint grounds of decision for both appeals as both accused persons pleaded guilty to their respective charges and the facts in both cases were undisputed.

Background BPH

BPH is a 65-year-old male Singaporean. At the time of the offences set out below, he was between 60 and 62 years old. He is the maternal grandfather of the victim, an 11-year-old boy, whom we shall refer to as “VB”. VB was between seven and eight years old at the time of the offences. VB resided with his maternal grandparents, his parents and a domestic helper in a three-bedroom flat. BPH and his wife occupied one bedroom which had an adjoining toilet. VB and his parents occupied the other two bedrooms.

Sometime in February or March 2015, VB was watching television when BPH asked him to follow him to BPH’s bedroom. VB, who was seven years old then, complied. When they were in BPH’s bedroom, both of them lay down on the bed, with VB on BPH’s right. After a short chat, BPH pulled VB towards himself and kissed VB’s face and neck before slipping his hand into VB’s shorts and fondling VB’s penis. VB did not consent to the touching. BPH then undressed VB completely and proceeded to undress himself completely as well. He put his thigh across VB such that it made contact with VB’s penis. BPH then fondled VB’s penis again. Finally, BPH positioned VB’s body to cause VB’s back to face him and he then grabbed VB’s buttock. At this point in time, the domestic helper called for VB and BPH panicked. BPH dressed up quickly and told VB to put on his shorts. Before VB left the bedroom, BPH told VB not to tell anyone about this incident.

Between 1 December 2015 and 18 September 2016, BPH did not live in the flat because he was confined in the Drug Rehabilitation Centre. He was released on a temporary release scheme on 19 September 2016 and returned to live in the flat. In the afternoon of 28 September 2016, at about 3pm, only BPH and VB (now 8 years old) were in the flat. BPH asked VB to follow him into his bedroom and VB complied. They lay in bed together. BPH undressed VB and then himself. When they were both naked, BPH hugged VB and positioned VB so that he was on top of BPH’s body and facing BPH. In this position, BPH inserted his right middle finger into VB’s anus. VB did not consent to the act. As BPH did this, he whispered to VB, “Fuck you”. Upon being digitally penetrated by BPH, VB’s body jerked in pain and he voiced his discomfort. However, BPH told VB to wait and he continued with the act. He only removed his finger from VB’s anus when he felt faecal matter on his finger. BPH then hugged VB and instructed him not to tell anyone about the incident. VB remained on the bed while BPH went into the adjoining toilet to wash his finger. After leaving the bedroom briefly, BPH went back to the said toilet and masturbated, ejaculating into the toilet bowl.

The offences came to light on the night of 22 October 2016 when VB told his mother (BPH’s daughter) that he did not want to be alone with BPH the next day because BPH had molested him. The mother was shocked and confronted BPH in her bedroom in the presence of BPH’s wife. BPH admitted his wrongdoing and asked his daughter for forgiveness. VB overheard the conversation and started crying. VB’s father heard the boy crying and went to find out what was happening. VB’s mother informed VB’s father that BPH had touched VB inappropriately. VB’s father told his wife to make a police report. She did so the following afternoon.

BPH was eventually charged. He was represented by counsel in the High Court when he pleaded guilty to the following two charges: Sexual assault by penetration (digital-anal) of a person under 14 years of age punishable under s 376(2)(a) read with s 376(4)(b) of the Penal Code. This was in relation to the incident on 28 September 2016: see [5] above. Outrage of modesty of a person under 14 years of age punishable under s 354(1) read with s 354(2) of the Penal Code. This was in relation to the incident in February or March 2015: see [4] above.

The following three charges were admitted and taken into consideration (“TIC”) for the purpose of sentencing: Two charges of exhibiting an obscene object (a pornographic video) to VB, offences punishable under s 293 of the Penal Code; and One charge of outrage of modesty (hugging, kissing VB’s cheeks and neck and fondling VB’s penis) of a person under 14 years of age punishable under s 354(1) read with s 354(2) of the Penal Code.

The Judge in BPH decided as follows: Digital-anal penetration is less serious than digital-vaginal penetration. Since this case involved the former, one year’s imprisonment ought to be deducted from the Pram Nair sentencing bands to reflect the lower severity of the offence. The aggravating factors were abuse of trust, the young age of the victim and moral corruption. BPH’s plea of guilt and lack of antecedents were mitigating factors. BPH’s lack of premeditation, his heterosexuality and the assessment that he was not a paedophile were not mitigating factors. The appropriate sentence was 11 years’ imprisonment for the sexual penetration charge and 30 months’ imprisonment for the outrage of modesty charge. Nevertheless, the sentences should be reduced to ten years’ imprisonment and two years’ imprisonment respectively on account of the totality principle. Both sentences should run consecutively with effect from the date of remand on 1 June 2017, yielding an aggregate sentence of 12 years’ imprisonment.

BVZ

BVZ, a Singaporean, is now 50 years old. He was 49 when we dismissed his appeal against sentence which included 16 strokes of the cane. At the dates of the offences against the four female victims, he was 47 years old. The four female victims, whom we shall refer to as “V1”, “V2”, “V3” and “V4” were all 14 years old at the time of the offences in 2016 and in 2017. V3 is BVZ’s biological daughter. All four victims were friends from primary school and would often spend time in V3’s home and sometimes would stay over for the night. BVZ lived with his wife and V3 in a flat. At the material times, his wife worked the night shift and would only return home in the morning.

Facts relating to the first sexual penetration charge (The first charge)

Sometime one night in September 2016, V1 went to V3’s flat to get some instant noodles from her. V3 and her mother were not at home. Only BVZ was. BVZ opened the door of the flat for V1. V1 went inside to collect the instant noodles from the living room of the flat. As V1 was about to leave, BVZ told her there was “something” outside the flat and told her not to go home yet. V1 therefore waited a while in the flat.

After some time, V1 wanted to go home. BVZ went to open the door for her. As he approached the door, he pretended to be spiritually possessed suddenly by “acting strangely, performing ‘silat’ moves and speaking in a deep voice”. BVZ removed his t-shirt and pulled down his jeans and told V1 that if she wanted him to “become normal” again, she had to give him a “blow job” (ie, fellatio).

V1 felt very afraid and sat on the floor against the wall with her eyes closed. BVZ proceeded to kneel in front of her. V1 opened her eyes and saw that BVZ was completely naked, with his penis erect. BVZ asked V1 to open her mouth but she refused. BVZ continued to ask her to open her mouth. Out of fear, V1 relented and opened her mouth. BVZ then put his penis in her mouth and instructed her to suck his penis as he moved his penis in and out of her mouth. This continued for a few minutes until BVZ ejaculated in her mouth. BVZ instructed V1 to swallow his semen, which she did.

BVZ then ran out of the flat. When he returned, he pretended that he was normal again and asked V1 what had happened. BVZ got dressed and gave V1 a cup of water and apologised to her. He also told her not to tell anyone what had happened. After some time, BVZ brought V1 back to her home which was one floor above his flat.

Facts relating to the outrage of modesty charge (The eighth charge)

Sometime...