Lim Choon Beng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 05 June 2023
• Neutral Citation: [2023] SGCA 18
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 18 of 2023
• Hearing Date: 22 May 2023,29 May 2023
• Citation: [2023] SGCA 18
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Selene Yap and Ashley Poh (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal Review,Permission for review,Criminal Law,Statutory offences,Sexual offences
• Published date: 05 June 2023

Tay Yong Kwang JCA: Introduction

This is an application under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) for permission to make an application to review an earlier decision of the Court of Appeal. The applicant, who is 37 years old, acts in person. He is currently serving his imprisonment sentence.

In 2016, the applicant pleaded guilty to and was convicted by the High Court on four charges involving sexual offences. He consented to having four other charges taken into consideration for sentencing. In the High Court, Foo Chee Hock JC (“the Judge”) imposed a global sentence of 16 years, ten months and two weeks’ imprisonment and 22 strokes of the cane. The Judge’s grounds of decision are set out in PP v Lim Choon Beng [2016] SGHC 169 (“Lim Choon Beng (HC)”).

The applicant appealed against his sentence. The Court of Appeal (comprising Sundaresh Menon CJ, Chao Hick Tin JA and myself) dismissed his appeal with a brief oral judgment on 29 November 2016 (“Lim Choon Beng (CA)”).

In this application, the applicant contends that there is “a gross miscarriage of justice” in the sentence imposed by the Judge. He seeks, in substance, a reduction of almost two years of his global sentence to 15 years’ imprisonment. This is on the sole basis that the Judge had referred to an earlier High Court decision, Public Prosecutor v Chang Kar Meng [2015] SGHC 165 (“Chang Kar Meng (HC)”), in his deliberations on the sentence to be imposed for the rape charges. In Chang Kar Meng (HC), the High Court imposed a sentence of 12 years’ imprisonment and 12 strokes of the cane for a rape charge and the minimum sentence of 5 years’ imprisonment and 12 strokes of the cane for a robbery with hurt charge. On appeal, the Court of Appeal reduced the sentence of 12 years’ imprisonment for the rape charge to ten years’ imprisonment (see Chang Kar Meng v Public Prosecutor [2017] 2 SLR 68 (“Chang Kar Meng (CA)”)). As the Court of Appeal’s decision was delivered after the conclusion of the applicant’s appeal, he submits that this constituted a change in the law within the meaning of s 394J(4) of the CPC.

Factual background Proceedings before the High Court The charges

The applicant pleaded guilty to four charges on 22 September 2016. The four charges are set out as follows:

The second charge (the “OM Charge”)

... on 9 February 2013, sometime around 3.15 a.m., along Martin Road, in front of the ‘Watermark’ condominium located at No. 1 Rodyk Street, did use criminal force to one [xxx] (Date of Birth: [xxx]), intending to outrage her modesty, to wit, by grabbing and kissing her left breast, and in order to facilitate the commission of this offence, you voluntarily caused wrongful restraint to the said [xxx] by sitting on her body, and you have thereby committed an offence punishable under Section 354A(1) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

The third charge (the “First Rape Charge”)

... on 9 February 2013, sometime around 3.25 a.m., along Martin Road, in front of No. 100 Robertson Quay, did commit rape of one [xxx] (Date of Birth: [xxx]), to wit, you penetrated the vagina of the said [xxx] with your penis without her consent, and you have thereby committed an offence under Section 375(1)(a) and punishable under Section 375(2) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

The sixth charge (the “Second Rape Charge”)

... on 9 February 2013, sometime around 3.35 a.m., along River Valley Close, near lamp post no. 16, did commit rape of one [xxx] (Date of Birth: [xxx]), to wit, you penetrated the vagina of the said [xxx] with your penis without her consent, and you have thereby committed an offence under Section 375(1)(a) and punishable under Section 375(2) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

The seventh charge (the “Penile-Oral Charge”)

... on 9 February 2013, sometime around 3.35 a.m., along River Valley Close, near lamp post no. 16, did penetrate the mouth of one [xxx] (Date of Birth: [xxx]) with your penis without her consent, and you have thereby committed an offence under Section 376(1)(a) and punishable under Section 376(3) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

I refer to the First Rape Charge and the Second Rape Charge collectively as the “Rape Charges”.

The accused also consented to have four other charges taken into consideration for the purposes of sentencing. Of the four charges taken into consideration, three pertained to sexual offences committed by the applicant against the same victim, consisting of one count of rape, one count of digital-vaginal penetration and one count of penile-oral penetration. The last charge was for the possession of obscene films.

Facts pertaining to the proceeded charges

The full facts of the proceeded charges are set out in Lim Choon Beng (HC). In brief, the applicant raped and sexually assaulted the victim, a Chinese national who was then 24 years old, successively at three locations along public roads in February 2013. The applicant approached the victim while she was walking home by herself and spoke to her. When the victim did not reply and walked away, he grabbed her buttocks. She pushed him away and continued walking. A while later, the applicant grabbed her shoulders and pushed her backwards. When the victim fell, he sat on her lower body. He then pulled at her dress, pulled down her bra, grabbed her left breast and kissed it. This was the subject of the OM Charge.

On seeing some cars passing by, the applicant got off the victim and pulled her across the street. He hit her head against a wall and then pinned her to the ground. He then penetrated the victim’s vagina with his penis even though she had informed him that she was having her menses. This was the subject of the first Rape Charge.

After some time, the applicant withdrew his penis and put on his trousers. The applicant told the victim that he wanted to bring her home. In a bid to seek help from the security guard in her apartment building, the victim told the applicant that they could go to her home instead. When they reached a grass patch, the applicant suddenly pinned the victim to the ground. He inserted his penis forcefully into her mouth. After some time, the applicant inserted his penis into her vagina. This was the subject of the second Rape Charge and the Penile-Oral Charge.

The applicant only stopped when a taxi stopped near them. As the applicant stood up to wear his trousers, the victim managed to escape to seek help.

Sentences imposed by the Judge

In respect of each of the charges, the Judge imposed the following sentences: For the OM Charge, 30 months’ imprisonment and four strokes of the cane. For the Penile-Oral Charge, three years, ten months and two weeks’ imprisonment and four strokes of the cane. For each of the two Rape Charges, 13 years’ imprisonment and seven strokes of the cane. The Judge ordered the imprisonment terms for the First Rape Charge and the Penile-Oral Charge to run consecutively. The total sentence was therefore 16 years, ten months and two weeks’ imprisonment and 22 strokes of the cane.

For each of the Rape Charges, the Judge considered (a) the relevant aggravating and mitigating factors; (b) three sentencing precedents, one of which was the decision in Chang Kar Meng (HC); (c) the four charges taken into consideration for the purposes of sentencing and (d) the totality principle. It was only in this context that the Judge considered Chang Kar Meng (HC) to be comparable to the applicant’s case given the similarities between the two cases (such as the commission of the offences in public and near the victim’s residence) and the aggravating factors.

Proceedings before the Court of Appeal

The applicant appealed against his sentence. On 29 November 2016, the Court of Appeal dismissed his appeal with the following oral judgment:

This is our judgment. We dismiss the appeal. A total of eight charges were brought against the appellant. Of these, the appellant pleaded guilty to four charges: one count of aggravated outrage of modesty, two counts of rape, one count of penile-oral penetration. The appellant also consented for four other charges to be taken into consideration for the purposes of sentencing. These were for: one count of rape, one count of digital-vaginal penetration, one more count of penile-oral penetration, and one count of the possession of obscene films.

We are satisfied that the individual sentences were well within the range for offences of this nature. Taking the rape charges, the Judge, if anything, had been lenient in classifying this as Category 1 offences under the Public Prosecutor v NF [2006] 4 SLR(R) 849 framework. Having regard to the aggravating factors, including those he mentioned at [66] of the Grounds of Decision, namely the fact that the rape at the second location occurred in public, near the victim’s home and with a substantial degree of violence, as well as having regard to the other charges which the Judge was entitled, indeed obliged, to take into consideration for the purposes of sentencing, the sentence of 13 years’...