Chan Chun Hong v Public Prosecutor

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 April 2016
• Neutral Citation: [2016] SGHC 75
• Citation: [2016] SGHC 75
• Docket Number: Magistrate’s Appeal No 9041 of 2015
• Hearing Date: 08 October 2015
• Subject Matter: Criminal procedure and sentencing,Sentencing,Sexual Offences
• Plaintiff Counsel: Rajan Nair, Mimi Oh and Lin Jiemin (Ethos Law Corporation)
• Date: 20 April 2016
• Published date: 26 April 2016
• Defendant Counsel: Ng Cheng Thiam and Marcus Foo (Attorney General Chambers),Jerald Foo (Cavenagh Law LLP) as young amicus curiae.

Sundaresh Menon CJ: Introduction

Child sex tourism has given rise to a global human rights crisis. It is an industry that caters primarily to paedophiles who travel, usually to developing countries, to engage in commercial sex with the world’s poorest children. The former United States (“US”) Secretary of State Colin Powell has described it as “a sin against humanity and … a horrendous crime”: see Kelly M. Cotter, “Combating Child Sex Tourism in Southeast Asia” (2009) 37 Denv. J. Int’l. L. & Pol’y. 493 at 504.

The cross-border nature of the problem demands a transnational response. As part of this response, several developed countries have acceded to international conventions and treaties that seek to protect the rights of children and have enacted complying domestic legislation targeted at deterring the demand for child sex tourism from within their borders. In 2007, Singapore followed this path by introducing two provisions into the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The first of these provisions, s 376C, gives extra-territorial effect to the offence of engaging in commercial sex with minors. The second provision, s 376D, separately criminalises acts that facilitate or promote the commission of an offence under s 376C. The subject matter of this appeal pertains to s 376D.

The present appeal has been brought by Chan Chun Hong (“the Appellant”) against the decision of the district judge (“the District Judge”), which is reported as Public Prosecutor v Chan Chun Hong [2015] SGDC 125 (‘the GD”). In the proceedings below, the Appellant pleaded guilty to and was convicted of 12 charges which, amongst other offences, included one charge under s 376D(1)(a) of the Penal Code and three charges under s 376D(1)(c) of the Penal Code. The offence under s 376D(1)(a) pertains to the Appellant having made travel arrangements for a subject to engage in commercial sex with minors overseas. The offences under s 376D(1)(c) pertain to the Appellant having acted to promote commercial sex with minors overseas. The District Judge sentenced the Appellant to a term of 36 months’ imprisonment for the offence under 376D(1)(a) and 20 months’ imprisonment for each of the offences under s 376D(1)(c). The Appellant was convicted of seven other offences under s 292(1)(a) of the Penal Code for which he was sentenced to two months’ imprisonment for each charge, and an offence under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) for which he received a S$8,000 fine. The District Judge ordered the sentence for the offence under s 376D(1)(a) and for one of the offences under s 376D(1)(c) to run consecutively, giving an aggregate imprisonment term of 56 months. The Appellant contends on appeal that the sentence meted out for each of the four offences under s 376D is manifestly excessive, and in any case, that the aggregate sentence too is manifestly excessive. The sentences imposed in respect of the other offences which the Appellant was convicted of were not appealed against. Accordingly, the sentences imposed in respect of the s 376D offences are the sole focus of this appeal.

The appeal came before me on 8 October 2015. I reserved judgment at the end of the hearing to consider the questions arising from this appeal in greater detail. Having considered the matter, I am satisfied that save in one respect, which has no bearing on the ultimate outcome of the appeal, the sentences imposed by the District Judge were not manifestly excessive. In the circumstances, the appeal is dismissed save that I order the sentence for one of the offences to be reduced. As the reduced sentence is to run concurrently with two other sentences which I order to run consecutively, there is no effect on the aggregate sentence that was imposed by the District Judge. Finally, I consider that two of the sentences could have been even higher than the sentence imposed by the District Judge. However, I did not interfere because there was no appeal by the Prosecution and also because I am satisfied that an aggregate term of 56 months’ imprisonment is reasonable. I now give my detailed reasons.

The charges

The charges that were proceeded with and the corresponding sentences imposed by the District Judge are summarised in the following table:

Charge No.	No. of charges	Provision	Offence	Imposed sentence
MAC 900841, 900843, 900854, 900976, 900978, 900998 and 901001 of 2014	7	s 292(1)(a) of the Penal Code	Transmitting any obscene object by electronic means	2 months’ imprisonment per charge (to run concurrently)
DAC 903310 of 2014	1	s 376D(1)(a) of the Penal Code	Making travel arrangements for a person to facilitate the commission of an offence under s 376C	36 months’ imprisonment (to run consecutively with DAC 903313/2014)
DAC 903313, 903314, 903318 of 2014	3	s 376D(1)(c) of the Penal Code	Distributing information to promote conduct that would constitute an offence under s 376C	20 months’ imprisonment per charge (DAC 903313/2014 to run consecutively)
MAC 901049 of 2014	1	s 30(1) of the Films Act	Having possession of obscene films	$8,000 fine (in default 4 weeks’ imprisonment)

The Appellant consented to the following 133 charges being taken into consideration for the purposes of sentencing: 128 further charges of transmitting obscene materials by electronic means under s 292(1)(a) of the Penal Code; four further charges of distributing information to promote the conduct of commercial sex with a minor outside Singapore under s 376D(1)(c) of the Penal Code; and one charge of being in possession of films without a valid certificate under s 21(1)(a)(i) of the Films Act.

As s 376D of the Penal Code is the focus of this appeal, I set out the provision in full:

Tour outside Singapore for commercial sex with minor under 18

376D.—(1) Any person who — (a) makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the commission by that other person of an offence under section 376C, whether or not such an offence is actually committed by that other person; (b) transports any other person to a place outside Singapore with the intention of facilitating the commission by that other person of an offence under section 376C, whether or not such an offence is actually committed by that other person; or (c) prints, publishes or distributes any information that is intended to promote conduct that would constitute an offence under section 376C, or to assist any other person to engage in such conduct,

shall be guilty of an offence.

(2) For the purposes of subsection (1)(c), the publication of information means publication of information by any means, whether by written, electronic, or other form of communication.

(3) A person who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 10 years, or with fine, or with both.

The facts

The Appellant first encountered child pornography in 2009. While researching child sex crimes and child abuse, he chanced upon sexually explicit images of child victims. Over time, he found himself attracted and then addicted to child pornography. His interest in child pornography intensified and he turned to internet platforms on which child pornography is distributed and shared amongst its users.

From December 2011 to early September 2012, the Appellant exchanged child pornographic material with other internet users by email. He typically saved the obscene materials onto his portable hard disk and then transmitted them to other users in exchange for which they would furnish him with new child pornographic materials. He was particularly interested in pornography involving children below the age of 12 years. By the time of his arrest, the Appellant had transmitted hundreds of sexually explicit photographs and videos of young girls to other users by email. The 135 charges under s 292(1)(a) that were preferred against the Appellant were in connection with the transmission of such obscene materials over the internet. Seven of the emails containing photographs and videos of young girls performing sexual acts formed the subject matter of the seven charges under s 292(1)(a) that the Prosecution proceeded with.

The level of the Appellant’s involvement in trading items of child pornography was such that it caught the attention of the US Federal Bureau of Investigation (“FBI”). On 30 January 2013, the Singapore Police Force (“SPF”) was tipped off by the FBI that the Appellant had been distributing child pornography. The FBI also passed on information suggesting that the Appellant had engaged in child sex tourism in some South-East Asian countries including Indonesia, Cambodia and Philippines. A string of emails that he exchanged with a person called “Mike Timothy” beginning on 20 May 2012 revealed the following: The Appellant asked to trade pornographic pictures and videos of young girls with Mike Timothy. The Appellant suggested that Mike Timothy and the Appellant visit Thailand, Philippines, Vietnam or Cambodia together to have sexual intercourse with girls under the age of 14. The Appellant revealed that the youngest girl he had had sexual intercourse with was a 15-year-old girl in Phnom Penh, Cambodia. The Appellant informed Mike Timothy that he wanted to look for girls between the ages of 8 and 12 in Cambodia. The Appellant wanted to join Mike Timothy on a short weekend trip to Cebu, Philippines sometime in January or February 2013 to engage in sexual intercourse with young girls, preferably between the ages of 10 and 14. During the trip to Cebu, Philippines, the Appellant also intended to do a photo shoot of nude young girls holding sexy poses. The Appellant in fact travelled to Cebu, Philippines in January 2013 to meet Mike Timothy. The photo shoot was carried out...