GCP v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 26 June 2019
• Neutral Citation: [2019] SGHC 153
• Court: High Court (Singapore)
• Hearing Date: 24 April 2019
• Docket Number: Magistrate’s Appeal No 9229 of 2018 and Criminal Motion No 2 of 2019
• Plaintiff Counsel: Choo Zheng Xi and Priscilla Chia Wen Qi (Peter Low & Choo LLC)
• Defendant Counsel: Peggy Pao and Mansoor Amir (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Infectious Diseases Act,Criminal Procedure and Sentencing,Sentencing,Benchmark sentences
• Published date: 03 July 2019

See Kee Oon J:

The present appeal arises from the District Judge’s decision in Public Prosecutor v GCP [2018] SGDC 220 (“GD”) and pertains to both conviction and sentence. The accused (“the appellant”) was convicted after trial and sentenced to 24 months’ imprisonment for an offence under s 23(1) of the Infectious Diseases Act (Cap 137, 2003 Rev Ed) (“IDA”), punishable under s 23(3) IDA. In this judgment, I set out what I consider to be the correct interpretation of s 23(1)(a) IDA as well as sentencing guidelines for the s 23(1) offence.

Prior to the hearing of the appeal, the Prosecution (“the respondent”) filed Criminal Motion No 2 of 2019, through which it sought to admit additional evidence. This took the form of an affidavit from Dr Ng Oon Tek (“Dr Ng”), a Senior Consultant in the Department of Infectious Diseases at Tan Tock Seng Hospital. In his affidavit filed on 8 January 2019, Dr Ng examined the main factors affecting the risk of human immunodeficiency virus (“HIV”) transmission. The application was not opposed by the appellant, who in fact relied on the affidavit in his submissions. As I considered the information provided therein relevant for the formulation of an informed sentencing framework, I admitted the evidence under s 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

Evidence adduced at trial

The background facts were largely undisputed and an Agreed Statement of Facts was tendered. The appellant had tested positive for HIV infection on 8 November 2011. On 9 December 2011, the appellant was interviewed by Ms Lee Pei Ying Fiona (“Ms Lee”), a Public Health Officer working at the National Public Health Unit. Both Ms Lee and the appellant testified that Ms Lee had told him that he had to inform his partners of his HIV status and obtain their consent if he wanted to engage in any sexual activity.

The appellant engaged in penile-oral and penile-anal intercourse with the victim on five to six occasions at the appellant’s residence. The victim was the receptive party in their sexual encounters, which occurred after the appellant had learnt he was HIV-positive.

The victim testified that none of his sexual partners, including the appellant, had informed him that they were HIV-positive, or that there was a risk of contracting HIV through sexual activities with them. He stated that if he had been informed that the appellant was HIV-positive, he would not have engaged in sexual activity with him. According to the victim, the appellant had only told him he was waiting for results from “some HIV test” towards the middle of the period where they had sexual relations. However, the victim only learnt that the appellant was HIV-positive when he was informed of this by the Investigating Officer (“IO”).

While the victim testified that there were occasions after their first few sexual encounters where the appellant had not used a condom, the appellant maintained at trial that he had always used a condom for penile-anal intercourse. The appellant further testified that he had informed the victim that he was HIV-positive on Grindr, an online communication application, and that he was on medication known as “PrEP” (an acronym for pre-exposure prophylaxis) before their first liaison. The appellant then checked for sores and took twice his usual dose of medication before giving the victim his address. Thereafter, when the victim reached the appellant’s home, the appellant asked the victim to place his things on the table where the appellant’s anti-viral medication was. The appellant then ensured that the victim had read his messages and knew that he was HIV-positive before they engaged in sexual intercourse. Finally, the appellant told the victim that he was waiting for HIV test results but that he was still undetectable at the time.

Decision below

The District Judge held that s 23(1) IDA imposes a positive duty on the appellant to unequivocally communicate to the victim his HIV status prior to engaging in sexual activity. However, merely disclosing one’s HIV-positive status is not sufficient: instead, there is a duty to ensure that the other party understands and appreciates the risk that HIV is transmissible through sexual intercourse. The statutory objective of s 23(1) would be undermined if a person discloses his HIV status only to downplay the risk by assuring his partner there is little or no risk of contracting HIV from him: GD at [36] and [37].

In any event, the District Judge found that the appellant did not inform the victim of his HIV status. There was no reason for the victim to lie, and his evidence was consistent with what he had told both Ms Lee and the IO: GD at [38], [40] and [54] to [58]. While there was no requirement for the victim’s evidence to be “unusually convincing”, it was nevertheless “absolutely credible” and “extremely convincing”. The mere fact that the victim had said he could not recall the appellant telling him a number of things which would have suggested to him that the latter was HIV-positive did not mean he was agreeing to the possibility that these things were in fact said. The victim’s unequivocal testimony was that the appellant had not informed him of his HIV-positive status and the risk of infection. As such, nothing in the victim’s testimony undermined the reliability of his evidence: GD at [59] to [62].

While the victim testified that the appellant had told him that he (the appellant) was waiting for test results “for some HIV test”, this was insufficient. In any event, the victim had only been told of this after they had engaged in sexual activity a few times. While the appellant claimed that he told the victim that the test was to determine his precise viral load, the victim’s “clear impression” was that the appellant had yet to be diagnosed with HIV infection. The District Judge accepted the victim’s account and found that the appellant had in fact concealed his HIV-positive status from the victim: GD at [42] and [43].

The appellant’s case was that the victim might have been distracted when the appellant informed him of his HIV status, or that the victim might have forgotten that this had happened. The District Judge did not accept these arguments. If the appellant had confirmed with the victim that the latter understood he had HIV, as he testified he had done, any suggestion that the victim may have been distracted was untenable. Further, the victim’s testimony was that he would not have engaged in sex with the appellant if he knew that the latter was HIV-positive. While the victim may not have been able to recall the minute details of their online conversation prior to meeting up, the fact that he had agreed to sexual activity with the appellant meant that he had not been informed of the appellant’s HIV status, particularly since the two eventually had unprotected sex: GD at [44] to [47] and [50].

On the other hand, the appellant’s evidence was found to be unreliable, exaggerated and contrived. He had vacillated in his accounts of what he had told the victim. There was a stark contrast between his statement to the IO of a general recollection that he did inform the victim, and his evidence in court of the many times he discussed and impressed upon the victim his HIV status. The District Judge also doubted the appellant’s evidence that he was careful and meticulous when it came to obtaining the prior consent of his sexual partners and that he had taken precautions to ensure he did not infect them. The appellant did not inform the IO of the detailed steps he had taken to communicate his HIV status to the victim. Instead, he told the IO that he was uncertain if he had informed the victim and added tentatively that he could have done so. Moreover, the appellant went on to have unprotected and uninhibited penile-anal and penile-oral sex: GD at [63] to [70]. The evidence of his former partners did not further his defence: GD at [69] and [77] to [81].

Even if the appellant had informed the victim of his HIV status, this disclosure would not have been sufficiently clear and unambiguous as to amount to a discharge of his statutory duty to communicate the risk of contracting HIV from him to the victim. Any communication would also have been nullified by the appellant’s own qualification that his viral load was “undetectable”. The victim would not have appreciated the risk of contracting HIV given that the appellant had downplayed the seriousness of his condition: GD at [75].

Finally, the District Judge rejected the defence of mistake of fact. The issue of mistake of fact did not arise. Instead, the irresistible inference from the appellant’s failure to inform the victim of his HIV status when he had been counselled by Ms Lee to do so was that the appellant intentionally hid the fact of his HIV infection from the victim: GD at [76].

The District Judge therefore found that the appellant had not informed the victim of his HIV status, and that the victim did not agree to accept the risk of contracting HIV from the appellant. Accordingly, he convicted the appellant: GD at [82] and [83].

The District Judge imposed a sentence of 24 months’ imprisonment as sought by the respondent. In doing so, the District Judge considered that the primary sentencing consideration was deterrence, in particular, general deterrence. He held that the sentencing norm for the s 23(1) offence must be a significant custodial term, both because of the serious potential consequences and the high culpability of what he described as a “baseline offender”. The precedents showed that the usual sentence for an offence under s 23(1) IDA where the offender had pleaded guilty and there were no exceptional or unusual mitigating or aggravating factors was around 18 months’ imprisonment: GD at [88] to [94].

The District Judge accepted the sentencing framework proposed by the respondent. He observed that the indicative sentence of up to two...