Chang Kar Meng v Public Prosecutor

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date30 March 2017
Neutral Citation[2017] SGCA 22
Plaintiff CounselSunil Sudheesan and Ngiam Hian Theng Diana (Quahe Woo & Palmer LLC)
Date30 March 2017
Docket NumberCriminal Appeal No 15 of 2015
Hearing Date16 August 2016
Subject MatterOffences,Rape,Prospective overruling of court judgments,Court judgments,Courts and Jurisdiction,Criminal Law
Year2017
Defendant CounselSellakumaran s/o Sellamuthoo and Nicholas Lai (Attorney-General's Chambers)
CourtCourt of Appeal (Singapore)
Citation[2017] SGCA 22
Published date04 April 2017
Sundaresh Menon CJ (delivering the judgment of the court): Introduction

Chang Kar Meng (“the Appellant”) pleaded guilty to and was convicted of one charge of rape under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) and one charge of robbery with hurt under s 394 of the Penal Code. The High Court judge (“the Judge”) sentenced him to 12 years’ imprisonment and 12 strokes of the cane for the rape charge, and five years’ imprisonment and 12 strokes of the cane for the robbery with hurt charge. The sentences were ordered to run consecutively, and the Appellant accordingly received an aggregate sentence of 17 years’ imprisonment with effect from 21 August 2013 (the date of his arrest) and 24 strokes of the cane.

The appeal before us is solely against sentence. The Appellant submits, among other things, that the sentence meted out by the Judge is manifestly excessive, having regard, in particular, to: (a) the mitigating factors; and (b) the range of sentences meted out in previous cases involving rape and robbery.

Having considered the circumstances of the Appellant’s offences, we are satisfied, on the one hand, that the sentence which he received befits the heinous nature of his crimes and cannot be said to be manifestly excessive. However, we accept the Appellant’s submission that his sentence is out of line with the relevant precedents and the sentences previously imposed in broadly similar circumstances. Although we are of the view that the sentences meted out in several of these precedents were inadequate and/or premised on errors of law, nonetheless, in fairness to the Appellant, the sentencing approach which we set out in this judgment for cases of rape and robbery will only take effect prospectively and will not apply to him. At the time of his sentencing, the Appellant would have harboured the expectation that a term of between 11 and 15 years’ imprisonment would fall within the normal range of sentences for cases of rape and robbery. Hence, we hold that his aggregate sentence should be reduced to 15 years’ imprisonment with 24 strokes of the cane.

Background facts

The Appellant is a 29-year-old Malaysian male. The victim (“the Victim”) is a 37-year-old Vietnamese female. The two offences which are the subject of the present appeal took place in the early morning of 8 March 2013, at or about 1.30am, near the Victim’s flat.

At about 1.00am on that day, the Appellant was on his way to meet his girlfriend when she called him to say that she was not going to wait for him any longer and would be going home. The Appellant then headed home. At about 1.30am, he was crossing an overhead bridge when he saw the Victim, who was returning home from work, at the lift lobby of her HDB block, and noticed that she had a sling bag and a mobile phone in her hand.

The Appellant observed that there was no one else around and decided to rob the Victim as he was short of money. After descending from the overhead bridge, he removed his slippers, placed them in the bushes near the bridge, and walked quietly towards the ground floor lift lobby. Approaching the Victim from behind, the Appellant covered her mouth with his left hand to prevent her from shouting and used his right hand to hit the back of her neck near her right shoulder so as to knock her unconscious. The Victim became dizzy after the first blow and felt the Appellant hit her a few more times at the same spot. She then fainted and collapsed to the ground.

At this point, the Appellant noticed that the lift was approaching the ground floor and wanted to drag the Victim to the right of the lift entrance so as to avoid being captured on the closed-circuit television (“CCTV”) installed inside the lift. However, the lift door opened just as the Appellant was about to drag the Victim away and he lowered his head to prevent his face from being captured by the CCTV. The footage that was later retrieved from the CCTV showed the Victim lying on the ground outside the lift, with the Appellant kneeling beside her and pinning her down. It was only after the lift doors closed that the Appellant half-carried and half-dragged the Victim to the right of the lift entrance. He then took the Victim’s sling bag and her mobile phone from her hand.

As the Appellant lifted the Victim, he came into contact with her body and became aroused. Observing that the Victim was unconscious, and after looking around to confirm that no one was in the vicinity, the Appellant half-carried and half-dragged the Victim to a grass patch about 13m away. He placed her under a small tree at the grass patch, and lifted up her shirt and bra. He took photographs of the Victim’s exposed breasts and starting fondling them.

At this point, the Victim regained consciousness. She felt the Appellant touching her breasts, but was too afraid to shout for help and thus pretended to remain unconscious. She opened her eyes slightly at various times during the incident and was aware of what the Appellant was doing to her.

The Appellant pulled the Victim’s jeans and panties down to her knees and raped her. He was not wearing a condom when he did so. Throughout this, the Victim was too afraid to resist or fight back; she feared that the Appellant would hurt or kill her if he realised that she was conscious or if she tried to resist him. The Appellant eventually ejaculated outside the Victim.

After raping the Victim, the Appellant used his T-shirt to clean himself and the Victim. He took more photographs of the Victim’s bare breasts before dressing her and rummaging through her sling bag. He placed her work permit, prayer card and house key into her jeans pocket, and walked away with her sling bag and her mobile phone. (The Appellant later threw away the SIM card in the mobile phone and gave the mobile phone to his girlfriend.)

At that point, the Victim wanted to flee, but she heard the Appellant walking back towards her. She therefore continued to pretend to be unconscious. The Appellant came back and carried the Victim to the staircase landing between the first and second floors of her HDB block. There, he laid her on a discarded mattress and took a photograph of her clothed body. He then left the scene with the Victim’s sling bag and her mobile phone after retrieving his slippers. The Victim thereafter returned home crying. Shortly after, her husband reported the incident to the police.

The Appellant was apprehended some five and a half months later and charged. He eventually decided not to contest the charges and, admitting to the Statement of Facts, pleaded guilty. The only issue before us is therefore that of sentence.

The charges against the Appellant

As mentioned at [1] above, the Appellant was convicted of one charge of rape under s 375(1)(a) of the Penal Code and one charge of robbery with hurt under s 394 of the Penal Code. The charges are reproduced below:

That you, CHANG KAR MENG,

1ST CHARGE

on the 8th day of March 2013, at or about 1.30a.m., at the grass patch in the vicinity of [address redacted], Singapore, did penetrate with your penis, the vagina of one [V], female / 33 years old (D.O.B: [xxx]), without her consent, and you have thereby committed an offence under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed), punishable under s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed).

2ND CHARGE

on the 8th day of March 2013, at or about 1.30a.m., at the ground floor lift landing of [address redacted], Singapore, did commit robbery of the following items: one gold necklace with a jade pendant valued at approximately S$760; one Samsung Galaxy S3 mobile phone valued at approximately S$500; cash amounting to approximately S$300; one silver ring valued at approximately S$250; one brown sling bag valued at approximately S$100; one red Casio watch valued at approximately S$90; one pair of gold earrings valued at approximately S$70; one brown ‘Toscano’ purse valued at approximately S$60; one pair of spectacles valued at approximately S$60; one EZ-link card with a stored value of approximately S$10; and cosmetics valued at approximately S$10

with a total approximate value of S$2,210 from the possession of one [V], and in committing the said robbery, did voluntarily cause hurt to the said [V], to wit, by hitting her a few times on the back of her neck near her right shoulder with your hand, and you have thereby committed an offence punishable under s 394 of the Penal Code (Cap 224, 2008 Rev Ed).

The High Court’s sentencing decision

Before the Judge, the Prosecution submitted that the court should impose an aggregate sentence of 18 years’ imprisonment and the maximum 24 strokes of the cane (see Public Prosecutor v Chang Kar Meng [2015] SGHC 165 (“the GD”) at [6]). The Defence, on the other hand, submitted that the appropriate sentence would be a global sentence of around ten years’ imprisonment together with caning.

In sentencing the Appellant to a total of 17 years’ imprisonment and 24 strokes of the cane, the Judge held as follows: The facts of the case warranted a deterrent sentence (see the GD at [23]). The Appellant’s audacity was amply demonstrated by the acts which he committed against a helpless female within metres of her home (see the GD at [23]). The Appellant’s actions, both before and after the offences were committed, spoke of “a clear and determined mind” that suggested premeditation, notwithstanding any depressive disorder that he might have been suffering from at or around the time of the incidents (see the GD at [24]).

Specifically, the Judge highlighted the following factors (see the GD at [24]): the Appellant knew he had to remove his slippers and move quietly if he wished to attack the Victim by surprise; the Appellant knew how to render the Victim unconscious; the Appellant was mindful of the danger of being captured on the CCTV...

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