Lim Hock Hin Kelvin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 05 January 1998
• Neutral Citation: [1998] SGCA 1
• Docket Number: Criminal Appeal No 19 of 1997
• Date: 05 January 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Appellant in person
• Citation: [1998] SGCA 1
• Defendant Counsel: Malcolm Tan (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Benchmark sentences,Social danger posed by offender,Sentencing,Court to consider one-transaction rule and totality principle,Chronic paedophiles with propensity to re-offend to be incarcerated for long periods,Starting point of ten years' imprisonment for paedophile committing offence on young children below 14,Regard to gravity of offence and circumstances of commission of offence,Criminal Procedure and Sentencing,General rule that plea of guilt entitled convicted person to discount in sentence,Consideration of gravity of offence,Whether victim young boy or girl relevant factor,Harm suffered by victims -Social danger posed by offender,s 377 Penal Code (Cap 224),Whether protection of public exception to general rule,Mitigation,s 18 Criminal Procedure Code (Cap 68),Harm suffered by victim,Concurrent or consecutive sentences,Principles,Unnatural carnal intercourse,Subsequent consideration of relevant aggravating and mitigating factors to increase or reduce sentence

Judgment:

YONG PUNG HOW CJ

(delivering the grounds of judgment of the court): The facts

1.The appellant pleaded guilty and was convicted by the High Court of ten charges: four charges under s 377 Penal Code (Cap 224) for having carnal intercourse against the order of nature with a certain man (the first charge, fourth charge, seventh charge, and tenth charge), one charge under s 377 read with s 511 Penal Code for attempting carnal intercourse against the order of nature (the 13th charge), and five charges under s 377A Penal Code for committing acts of gross indecency with another male person. The appellant was sentenced to ten years` imprisonment on each of the four charges under s 377 Penal Code, five years` imprisonment on the charge under s 377 read with s 511 Penal Code, and one year`s imprisonment on each of the five charges under s 377A Penal Code. The terms of imprisonment on the four charges under s 377 Penal Code were ordered to run consecutively from the date of conviction, and the terms of imprisonment passed on the remaining six charges were to run concurrently with the terms of imprisonment passed on the four charges under s 377. In all the appellant was sentenced to imprisonment for a total of 40 years with effect from 29 April 1997, the date when he was remanded in prison. For the purposes of sentencing, the learned judge took into consideration, with the consent of the appellant, ten charges under s 377, and 20 charges under s 377A Penal Code. He appealed against the sentences on the ground that the total sentence was manifestly excessive. We dismissed the appeal and confirmed the total sentence of 40 years` imprisonment. We now set out our reasons.

2.The charges arose out of a series of sexual abuses inflicted by the appellant on five young victims. The appellant was a irrepressible paedophile who had repeatedly committed offences of having carnal intercourse against the order of nature and committed acts of gross indecency on five school-going boys between the ages of 8 and 12 years at the time of the commission of the offence. All the boys attended the same primary school. (We will refer to the victims as V1 to V5.) The appellant had accepted all the facts in the statement of facts tendered by the prosecution. The modus operandi of the appellant in the commission of each offence was similar and this was a horrific case of how a paedophile systematically manipulated and abused the trust placed in him by the five naive young boys and then had them subjected to humiliating and unnatural carnal intercourse with him in order to satisfy his perverse sexual instincts.

3. V1 and V2

The 1st, 4th, 16th and 20th charges on which the appellant were convicted related to V1 and V2. They were aged 12 years and 10 years respectively when the offences were committed by the appellant. They were brothers and attended the same primary school. In September 1995, the appellant befriended the two brothers when they were playing computer games at an amusement centre. He subsequently offered to become their informal guardian and the two children regarded him as their `godfather`. During the period of their association with him, the appellant built up their trust by bringing them to fun-filled outings in Sentosa and East Coast and giving them free tuition at their home in an HDB flat. He even approached the boys` father who not only consented to him acting as an informal guardian to the two boys but even allowed him, after some initial reluctance, to stay with the family. (The boys` mother was deceased.) He occupied the servants` room in the flat and this unfortunately facilitated his sexual abuse of the boys. Prior to his moving into the flat, he would visit the boys` flat at the times when their father was not present, and persuade them to engage in sexual acts with him.

4.In respect of the first charge, in October 1995, the appellant had unnatural carnal intercourse in the form of anal sex with V1 at the boys` flat. The appellant visited V1 at the flat when V1 returned home from school in the afternoon, and persuaded him reluctantly to have anal sex in the master bedroom. V2 (V1`s brother) who was at the flat followed the two of them into the master bedroom and witnessed what happened. V1 protested because the acts of intercourse caused him great pain but the appellant ignored him and continued with the act.

5.The circumstances surrounding the 16th and 20th charges (committing acts of gross indecency with another male person) were even more appalling. This also took place in October 1995 after the appellant already had unnatural sexual intercourse with V1. V2 and the appellant were performing oral sex at the victims` flat when V1 came home from school in the afternoon and witnessed the incident. The appellant then persuaded V1 to perform oral sex with him. V1 reluctantly acquiesced and the appellant performed oral sex with him. The appellant then promised the boys that he would purchase gifts of computer games for them as a reward.

6.In respect of the fourth charge, in November 1995, the appellant arranged to bring the two boys to NTUC Chalets at Pasir Ris Close on an outing. This sadly provided an opportunity for the appellant to indulge in his sexual perversions again. The appellant persuaded V2 to have anal sex with him. When the appellant began the act, V2 protested repeatedly that it caused him great pain. However the appellant ignored him and continued with the act.

7.Subsequently, when the appellant moved into the victims` flat, anal intercourse and fellatio continued between the appellant and the two victims until September 1996. Both V1 and V2 were warned not to disclose their sexual relationship with the appellant to anyone else.

8. V3 and V4

V3 and V4 were the complainants in respect of the 7th, 13th, 22nd and 36th charges on which the appellant was convicted. V3 and V4 were brothers, attending the same primary school as V1 and V2. V2 and V3 were classmates. At the time of the commission of the offences, V3 was aged 10 and V4 was aged 8. V2 had invited V3 to V2`s flat to do his homework where V3 met the appellant. V3 gradually got to spend a considerable amount of time with V1, V2 and the appellant. The appellant would bring all the boys to outings at the amusement arcade centres, East Coast and Kallang River. Again he sought the trust and confidence of V3`s parents by first seeking their permission prior to bring V3 on some of the outings. Subsequently the appellant even gave free tuition to V3 with the consent of V3`s parents, who could not have afforded private tuition for their son.

9.In May 1996, V3 was at V1`s flat to complete some homework when he witnessed V1 committing oral sex with the appellant. The appellant then persuaded V3 to perform fellatio on him. V3 reluctantly acquiesced when the appellant promised him that he would be allowed to play with computer games. The first incident of fellatio formed the subject matter of the 22nd charge. After the first incident of fellatio with the appellant, V3 agreed to perform fellatio whenever requested by the appellant, including one forming the subject matter of the 23rd charge. In respect of the 7th charge, on 6 September 1996, the appellant had anal intercourse with V3 after V3 had performed fellatio on him.

10.V4 first met the appellant when his elder brother V3 brought him there for free tuition in May 1996. The first sexual encounter took place when both V3 and V4 spent the night at V2`s flat together with the appellant. It was after midnight when the appellant woke V4 and persuaded V4 to perform fellatio on him. V4 acquiesced after some persuasion. In respect of the 13th charge, the appellant brought V4 to V2`s flat and persuaded him to perform fellatio on him. Whilst performing oral sex, the appellant wanted to have anal intercourse with V4. When V4 refused, the appellant threatened to cane him. V4 eventually agreed on fear on being caned. However, when V4 complained of unbearable pain before the appellant could achieve penetration, the appellant desisted immediately.

11. V5

V5 was aged 11 years and was a classmate of V2 and V3. He was first introduced to the appellant when V5 came to V2`s flat to do his homework. V5 similarly received free tuition from the appellant on the recommendation of V2. In fact the appellant had met V5`s parents who were suitably impressed by him and allowed their son to have tuition from him. It was not long before V5 became one of the victims of the appellant. In late August 1996, after the appellant had brought the victims on an outing, the appellant offered to bathe V5, in spite of the fact that V5 was already 11 years old and was quite capable of taking his bath unassisted. Whilst both were in the bathroom, the appellant persuaded V5 to have unnatural carnal intercourse with him. V5 agreed reluctantly and the appellant performed anal intercourse on him.

12.All these cases of sexual abuse only came to light when one of V2`s classmates learnt about V2`s relationship with the appellant and informed his parents. The classmate`s father lodged a complaint with the school principal who confronted V2. V2 narrated the history of his relationship with the appellant. The principal then sought the assistance of the police and a police report was made. On 6 November 1996, the appellant was arrested and he readily confessed to the offences committed. He was examined by the Registrar of Woodbridge Hospital (Dr Liow Pei Hsiang) who diagnosed him as having paedophilia of the exclusive type and recommended hormonal therapy. The appellant refused hormonal therapy and opted for psychological treatment with a psychologist. However, the appellant discontinued the treatment after four sessions with the psychologist. Against this background, the prosecution pressed for a deterrent sentence against the appellant.

13.The appellant had previous convictions for similar offences. On 7 October 1988, he was...