Don Weng Kai Jun v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Prem Raj Prabakaran
• Judgment Date: 08 December 2023
• Neutral Citation: [2023] SGMC 100
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Arrest Case No 902457 of 2023 and 1 Other, Magistrate’s Appeal No 9206-2023-01
• Hearing Date: 12 September 2023,19 October 2023
• Citation: [2023] SGMC 100
• Year: 2023
• Plaintiff Counsel: Cai Chenghan and Quek Lu Yi (Attorney-General's Chambers)
• Defendant Counsel: Foo Cheow Ming (Foo Cheow Ming Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Section 292(1)(a) of the Penal Code 1871
• Published date: 16 December 2023

District Judge Prem Raj Prabakaran: Introduction

Don Weng Kai Jun (the “accused”) and the Victim first got acquainted with each other sometime in November 2022 through a dating application. He was 23 years old. She was two years younger, at 21. They then met, once, for dinner. But they stopped contacting each other thereafter – though this was not triggered in any way by any dispute between them.¹ Some three months later, he sent five of her photos (which he had selected and saved from her Instagram profile) and a 76-second-long pornographic video of another female having sex (the “Porn Video”) to a 25,000 strong Telegram channel where sexually explicit content was regularly shared (the “Sex Channel”).²

At least three of the photos chosen by the accused were full-length ones that clearly showed the Victim’s entire face and body. The accused knew that his actions would cause the many members of the Sex Channel to think that the Victim was in fact the female featured in the Porn Video. Yet he persisted in his callous actions to supposedly quell his “Fear of Missing Out” for not contributing sexually explicit content to the Sex Channel. But he failed to explain why: (a) he could not have assuaged his “Fear of Missing Out” by simply forwarding only the Porn Video to the Sex Channel; and (b) he had to go further and link the Porn Video to the Victim’s photos. Indeed, his calculated decision to do so had distressing consequences for the Victim. As it is in the online word, the members of Sex Channel were able to quickly identify the Victim and they soon disclosed her Telegram contact information on the Sex Channel. The Victim thus suffered beyond the anguish she felt when she first saw the accused’s post on the Sex Channel. This was because the disclosure of her contact information led to her being propositioned by four to five strangers, who all asked her how much it would cost to have sex with her for a night.

The accused’s indifferent actions led to him being charged with two offences: one punishable under s 292(1)(a) of the Penal Code 1871 (the “Penal Code”); and another punishable under s 4(2) of the Protection from Harassment Act 2014 (the “PHA”). He pleaded guilty to both charges. The particulars of these charges and the sentences imposed are set out in the table on the next page.

Charge	Sentence imposed
“Penal Code Charge” MAC-902457-2023: “that you…did transmit an obscene object by electronic means…[when you sent a] video showing a nude female engaging in sexual intercourse…to a Telegram Channel, “Local SG Leaks”, using your iPhone, and you have thereby committed an offence punishable under Section 292(1)(a) of the Penal Code…”.	2 weeks’ imprisonment
“PHA Charge” MAC-902458-2023: “that you…did make an insulting communication which was seen by [the Victim], a person likely to be caused harassment…[when you used] your iPhone to send the following to the Telegram Channel, “Local SG Leaks”: (a) 1 video showing a nude female engaging in sexual intercourse; and (b) 5 photos of the [Victim] that you saved from the [Victim’s] public Instagram account, and in so doing [gave] the impression that the [Victim] was the female in the…video, resulting in [her] receiving harassing messages, and you have thereby contravened s 4(1)(b) of the [PHA], which contravention is an offence punishable under s 4(2) of the PHA.”	$3,500 fine

The accused paid the fine of $3,500 that was imposed for the PHA Charge, in full, on the day he was sentenced. But he appealed against the sentence of 2 weeks’ imprisonment that was imposed for the Penal Code Charge. His counsel, Mr Foo Cheow Ming (the “Defence”), had sought a fine of between $1,000 and $3,000 for this charge.³ The execution of the sentence of imprisonment that was imposed for the Penal Code Charge was thus stayed pending the hearing of the accused’s appeal, and the accused remains on bail. These are my grounds of decision.

Facts admitted to by the accused

The accused was a member of a Telegram channel, “Local SG Leaks” (that is, the “Sex Channel”). Members of the Sex Channel would share sexually explicit pictures and videos with each other on this channel. Until 3 February 2023⁴, the accused had been consuming the contents shared on the Sex Channel, but he had never posted anything on the channel.⁵

Accused shared porn & selected photos of the Victim online

On 3 February 2023, the accused was watching a pornographic video (that is, the “Porn Video”) on a website. The 76-second-long video showed the back view of naked female with long hair. She was crouched on all fours and engaging in sexual intercourse. The female’s face could not be seen because of the position she was in, but all of her bare back and her buttocks were visible.⁶

As the accused watched the Porn Video, he was reminded of the Victim. This was because the female in the Porn Video and the Victim both had nails that were painted white. The accused then went to the Victim’s Instagram profile. From there, he saved five of her photos (the “Photos”).⁷ These Photos comprised: (a) three full-length photos which clearly showed the face and body of the Victim (who, like the female in the Porn Video, had long hair); and (b) two photos where the Victim’s face was partially obscured, but her hands (and nails) were visible.⁸ Using his mobile-phone, the accused then sent the Victim’s Photos and the Porn Video, collectively, to the Sex Channel at the same time (at about 10:25pm) – thus giving the false impression that the Victim and the female featured in the Porn Video were one and the same person. The Sex Channel had a total of 25,930 members at this time, of whom 3,298 were online.⁹ No captions were added by the accused to the Victim’s Photos or the Porn Video.¹⁰ In the course of the proceedings, the Defence confirmed that at the time the accused sent the Victim’s Photos and the Porn Video to the Sex Channel (collectively, the “Obscene Post”), the accused had reason to believe that the Obscene Post made by him would be seen by the Victim.¹¹

The accused claimed that he sent the Victim’s Photos and the Porn Video to the Sex Channel because he had a “Fear of Missing Out” for not having contributed to the Sex Channel. He admitted that he knew that his actions would cause others to have the misconception that the Victim was in fact the female featured in the Porn Video.¹²

Victim’s discovery of the accused’s online post

One of the Victim’s friends, who was also a member of the Sex Channel, saw the Victim’s Photos and the Porn Video (that is, the Obscene Post) and informed her accordingly. The Victim’s friend also took a screen recording of the Obscene Post and the username of the individual who had made it and sent it over to the Victim.¹³ The Victim recognised this username to be the accused’s username as he had also used it when they previously chatted on Telegram.¹⁴

Accused removed his post only after he was confronted

About one week after the accused made the Obscene Post on the Sex Channel, the Victim messaged the accused and asked him why he had sent her Photos to the Sex Channel. The accused did not reply to the Victim’s message. Instead, he deleted the Obscene Post (that is, the Victim’s Photos and the Porn Video) from the Sex Channel. The accused also deleted his Telegram account.¹⁵

Victim was propositioned by four to five strangers

Following the accused’s Obscene Post on the Sex Channel¹⁶, other members of the channel identified the Victim and provided her Telegram contact information.¹⁷ As a result of the accused’s actions, the Victim received messages from about four to five strangers on Telegram – all asking her if she was indeed the person in the Porn Video and how much it would cost to have sex with her for a night.¹⁸ The Victim felt harassed, and called the police on 16 February 2023 to report the accused’s actions in the following terms:¹⁹

My photos [were] tagged to a leaked porn tape online on a telegram channel “LOCAL SG LEAKS”. But the person in the leaked tape [is not] me. I only met the guy once for dinner. [His] name is Don Weng, and he works in the Navy as a regular. Phone number [redacted].

Victim was troubled by the harm to her reputation

Troubled by the harm to her reputation (as a result of the accused’s Obscene Post on the Sex Channel), the Victim felt it necessary to make a post on her Instagram profile on 17 February 2023 to clarify that she was not in fact the female in the Porn Video.²⁰

Accused apologised only after investigations began

On 8 March 2023, after the accused was called up by the Police for investigations, he realised the severity of the matter and messaged the Victim on Telegram to admit to his actions and to apologise for them.²¹

Arrested on 31 March 2023

The accused was arrested on 31 March 2023.²² He was released on bail later that same day.

Accused’s admissions to the charges against him

The accused admitted he had committed the following two offences: An offence punishable under s 292(1)(a) of the Penal Code, when he sent the Porn Video, an obscene object, by electronic means to the Sex Channel (that is, the “Penal Code Charge”²³).²⁴ An offence punishable under s 4(2) of the PHA, when he made an insulting communication on the Sex Channel (that is, the Obscene Post) which: (i) was seen by the Victim, a person likely to be caused harassment; and (ii) implied that the Victim was the female featured in the Porn Video, resulting in the Victim receiving “harassing messages” (that is, the “PHA Charge”²⁵).²⁶

ADDRESS ON SENTENCE BY THE PROSECUTION

The table below sets out the sentences sought by the Prosecution²⁷ and the sentences that were eventually imposed:

Charge	Sentence sought	Sentence imposed
PHA Charge	$4,000 fine	$3,500 fine
Penal Code Charge	3 to 4 weeks’ imprisonment	2 weeks’

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