Leu Xing-Long v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 03 October 2014
• Neutral Citation: [2014] SGHC 193
• Date: 03 October 2014
• Docket Number: Magistrate’s Appeal No 110 of 2014
• Published date: 07 October 2014
• Plaintiff Counsel: Terence Tan Li-Chern and Christine Low (Peter Low LLC)
• Hearing Date: 22 August 2014
• Defendant Counsel: Ramesh Ethan and Crystal Tan (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Mens rea,Criminal law,Elements of crime,Mistake of fact,Accident,General Exceptions

Chan Seng Onn J: Background

The Appellant, Leu Xing Long, was convicted on one charge under s 376B(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) for having commercial sex with a minor under 18 years of age. He was sentenced to 15 weeks’ imprisonment by the District Court. The Appellant appealed against his conviction.

The Appellant admitted to having sexual intercourse with the minor whom he procured from an online vice ring and paid $450 for her sexual services. His defence was that he had taken proper care and caution to ascertain that she was above 18 years of age by asking her for her age and identity card. She lied to him that she was 18 years of age and produced the identity card of her elder sister to prove that she was above the age of 18. He believed her. If he had known that the minor was below 18 years of age, he would not have gone through with the sexual engagement.

Under the circumstances, the Appellant submitted that he was entitled to be acquitted because he had taken all proper care and caution to avoid the commission of the offence. The statutory defence of “Accident in the doing of a lawful act” under s 80 of the PC (“defence of accident”) was available to him as he had satisfied all the elements necessary to make out the defence. The Appellant’s main contention was that the trial judge erred in finding that the defence of accident is inoperable in law in relation to this offence.

Findings of the trial judge

The trial judge held that: under s 377D of the PC, a mistake as to the age of the commercial sex provider cannot be pleaded as a defence where an accused person was 21 and above at the time of receiving the service, regardless of how the mistake came to be made and how reasonable the mistake was; although s 377D makes no direct reference to s 80 of the PC, the defence of accident is inoperable in law for this offence; even if the defence of accident could possibly be invoked, it was not applicable given that he did not act with proper care and caution as required in the provision; and the common law defence of “due diligence” and/or “reasonable care” was similarly inapplicable.

Main Issues

The Appellant raised the following issues of law: Whether there is a presumption that mens rea is an ingredient of an offence under s 376B(1)? If so, has this presumption been displaced? Is s 376B(1) an absolute or a strict liability offence? Can s 80 PC be raised in defence to a charge under s 376B(1)?

My decision Issue 1: Whether there is a presumption that mens rea is an ingredient of an offence under s 376B(1)? If so, has this presumption been displaced?

In M V Balakrishnan v Public Prosecutor [1998] SGHC 169, Yong Pung How CJ observed that where a statutory provision creates an offence, there is a presumption that mens rea is an essential ingredient of the offence (at [8]). This presumption thus imputes a mental fault element where the offence creating provision itself does not expressly indicate a fault element by inclusion of words such as “dishonestly”, “knowingly” and “intentionally”. The courts will have to determine the form and content of that imputed fault element, which the legislature supposedly meant the offence to have. However, this presumption may be displaced expressly or by necessary implication by the language of the statute or by the subject matter with which the statute deals: Thean J in PP v Phua Keng Tong [1986] SLR 168 adopting the approach of the Privy Council in Lim Chin Aik v R (1963) 29 MLJ 50 and the House of Lords in Sweet v Parsley [1970] AC 132.

In Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] 1 AC 1 at 14 (“Gammon v AG of HK”), the House of Lords held that the presumption can be displaced “where the statute is concerned with an issue of social concern, and public safety is such an issue”. Even where the statute is concerned with such an issue, the presumption of mens rea still remains “unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act”.

The nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge (per Lord Pearce in Sweet v Parsley pg 156). The court will dispense with the necessity for mens rea if it is satisfied that Parliament had so intended.

Before analysing Issue 1, it is important to set out the content of the mens rea and actus reus for the following offence of “Commercial sex with a minor under 18” under s 376B(1):

376B. —(1) Any person who obtains for consideration the sexual services of a person, who is under 18 years of age, shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

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(4) In this section, “sexual services” means any sexual services involving —

(a) sexual penetration of the vagina or anus, as the case may be, of a person by a part of another person’s body (other than the penis) or by anything else; or

(b) penetration of the vagina, anus or mouth, as the case may be, of a person by a man’s penis.

Although s 376B(1) is silent on the requisite mental fault elements for the offence, I do not doubt that the presumption applies as it is an offence of a serious criminal nature which carries a prescribed maximum imprisonment term of up to 7 years. The prosecution must therefore prove that the accused had the following mens rea at the material time: the consideration was intended by the accused to be given in exchange for the “sexual services” as defined in s 376B(4); the act of penetration of the vagina, anus or mouth, as the case may be, was done intentionally; and the accused knew that the person was below 18 years of age.

The prosecution must also prove the following actus reus; The consideration was provided; the accused had penetrated the person; and the person was below 18 years of age at the time of the penetration.

However, when the PC amendments were made to criminalise commercial sex with minors under 18 years of age, Parliament found it necessary to enact s 377D specifically to deny accused persons aged 21 years and above from having the benefit of a defence of a reasonable mistake as to the minor’s age. Section 377D provides that:

Mistake as to age 377D.—(1) Subject to subsections (2) and (3) and notwithstanding anything in section 79, a reasonable mistake as to the age of a person shall not be a defence to any charge of an offence under section 376A(2), 376B or 376C.

(2) In the case of a person who at the time of the alleged offence was under 21 years of age, the presence of a reasonable mistaken belief that the minor, who is of the opposite sex, was of or above —

(a) the age of 16 years, shall be a valid defence to a charge of an offence under section 376A(2); or

(b) the age of 18 years, shall be a valid defence to a charge of an offence under section 376B or 376C.

(3) For the purposes of subsection (2), the defence under that subsection shall no longer be available if at the time of the offence, the person charged with that offence has previously been charged in court for an offence under section 376A, 376B, 376C or 376E, or section 7 of the Children and Young Persons Act (Cap. 38) or section 140(1)(i) of the Women’s Charter (Cap. 353).

[emphasis added in bold]

Parliament made it very clear that a mistake as to the age of the minor is no defence for an accused person who is 21 years of age and above, even if the mistake was a reasonable one. Having regard to the clear statutory wording and the obvious purpose behind these provisions, which is to protect children from the sex trade and to curb the commercial exploitation of children for sex, I am satisfied that the mens rea element (c) above has been specifically displaced by statute for an offence under s 376B(1). However, mens rea elements (a) and (b) are not affected by the enactment of s 377D and they remain as essential elements of the offence. In other words, s 377D has not displaced the presumption in relation to the mental elements (a) and (b).

Accordingly, if an accused person is able to show that his payment is intended exclusively for reimbursement of the hotel charges, he may succeed in raising a reasonable doubt that he has obtained the sexual services for consideration. The Prosecution’s case may well fail because the mens rea element (a) is not proved beyond a reasonable doubt.

Consider another hypothetical scenario where an accused person pays a minor to masturbate him with her hands. He has no intention whatsoever to penetrate the minor in any way. Whilst in the very dark room and unknown to him, the minor of her own volition suddenly fellates him. Penetration of the minor’s mouth occurs. However, the accused honestly but mistakenly believes that the minor is still masturbating him. If the accused person manages to show that his penetration is not intentional, the Prosecution may well fail to prove the charge because the mens rea element (b) is not established beyond a reasonable doubt.

Availability of a separate defence under s 79

Section 79 is one of the General Exceptions in Chapter IV of the PC and is applicable by virtue of s 40(2) of the PC to offences which are “punishable under the [Penal Code]” and “any other law for the time being in force”. It provides that:

Act done by a person justified, or by mistake of fact believing himself justified by law 79. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

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