Ng Jun Xian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 29 December 2016
• Neutral Citation: [2016] SGHC 286
• Date: 29 December 2016
• Docket Number: Magistrate’s Appeal No 9179 of 2015
• Published date: 04 January 2017
• Plaintiff Counsel: A Rajandran (M/s A Rajandran) and Tan Gee Tuan (M/s Gee Tuan Tan)
• Defendant Counsel: Mohamed Faizal and James Chew (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Hearing Date: 29 June 2016,05 July 2016
• Subject Matter: Sentencing,Sexual assault by penetration,Criminal Procedure and Sentencing,Appeal

See Kee Oon JC: Introduction

These were cross-appeals against the sentence imposed on the offender, Ng Jun Xian, for various offences, including an offence of sexually assaulting a 23-year old female by way of penetration under s 376(2)(a) punishable under s 376(3) of the Penal Code (Cap 224, 2008 Rev Ed) (“the sexual assault charge”). The offender appealed on the basis that a term of reformative training was more appropriate, while the Prosecution argued that the sentence of seven years’ imprisonment and three strokes of the cane imposed by the learned District Judge for the sexual assault charge was manifestly inadequate and that a sentence of nine years’ imprisonment and six strokes of the cane should have been meted out instead.

After hearing the parties’ submissions, I dismissed the offender’s appeal and allowed the Prosecution’s appeal, enhancing the sentence for the sexual assault charge to eight years and six months’ imprisonment and six strokes of the cane. I gave brief reasons orally for my decision at the hearing on 5 July 2016, and I now set out my full grounds so as to cover several issues that were raised in the course of the appeals.

Background The charges

The offender pleaded guilty to the following three charges before the District Judge on 12 August 2015, a day before he turned 21 years old: the sexual assault charge; a charge of attempted rape under s 375(1)(a) punishable under s 375(2) and s 511 of the Penal Code (“the attempted rape charge”); and a charge of riotous behaviour under s 20 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the riotous behaviour charge”).

Additionally, the offender consented to two further charges being taken into consideration for the purpose of sentencing. These two charges were a charge of outrage of modesty under s 354(1) of the Penal Code (“the outrage of modesty charge”) and a charge of voluntarily causing hurt under s 323 of the Penal Code (“the VCH charge”). All the charges except the riotous behaviour charge concerned the same victim.

The District Judge sentenced the offender to (a) seven years’ imprisonment and three strokes of the cane for the sexual assault charge; (b) four years’ imprisonment and three strokes of the cane for the attempted rape charge; and (c) two weeks’ imprisonment for the riotous behaviour charge. The District Judge ordered the sentence for the sexual assault charge and the riotous behaviour charge to run consecutively, making the total sentence seven years and two weeks’ imprisonment and six strokes of the cane. The appeals concerned only the sentence for the sexual assault charge.

The facts

The offender was 20 years old and was serving national service at the time of the offences, which took place in November 2014. He admitted to the Statement of Facts (“SOF”) without qualification at the time he pleaded guilty.

According to the SOF, the victim is a 23-year old female from Taiwan. At the material time, she was a tourist on a social visit pass, and was in Singapore to visit her boyfriend.

The offender and the victim first met while they were drinking with their respective friends in a club located along Orchard Road (“the Club”). They exchanged telephone numbers. A few weeks later, on 8 November 2014, the offender sent the victim a text message sometime before 2.30am and asked to meet her at the Club. The victim agreed and proceeded to the Club to meet the offender and his friend, Ng Chee Ngee (“Ng”).

The three of them had some drinks at the Club until about 4am, when the victim said that she wanted to return to the hostel that she was staying at. The offender offered to send her to a hotel instead so that she may rest there. The victim initially hesitated but eventually obliged after the offender assured her that she would be left alone in the hotel room to sleep.

Thereafter, the victim, the offender and Ng left in a taxi for the hotel, located at Lavender Street. When they arrived at the hotel, the offender told Ng to wait at the lobby while he went up to the hotel room with the victim. When the offender and the victim reached the hotel room, the victim lay on the bed and asked the offender to leave because she wanted to rest. The offender did not leave, but tried to kiss her on the lips. The victim was shocked and bit his lip in response. The offender also touched the victim’s buttocks twice, and pushed the victim onto the bed before forcefully taking off her brassiere and squeezing her left breast.

The victim put up a hard struggle and kept shouting “bu yao, bu yao, bie peng wo” in Mandarin, translated as “don’t want, don’t want, don’t touch me”. During the struggle, the victim also bit various parts of the offender’s body. The victim’s cries were heard by Ng, who proceeded to the hotel room after smoking outside the hotel. Ng repeatedly knocked on the room door and shouted the offender’s name but there was no response from the offender.

The offender tried to cover the victim’s mouth with his hand and sat on top of her in order to prevent her from escaping. Thereafter, he turned the victim’s body around such that she lay face down on the bed. He continued his assault by grabbing her waist and forcefully pulling down her pants and panties, before using the index and middle fingers of his left hand to penetrate the victim’s vagina two to three times. He then unzipped his jeans and attempted to insert his penis into the victim’s vagina with a view to having non-consensual sexual intercourse with her. The victim felt the offender’s penis rubbing and thrusting towards the outside of her vagina from the back, but he did not successfully penetrate her with his penis.

The victim continued struggling and eventually managed to push the offender off the bed. As a result of the struggle, the victim suffered several bruises on her hands, face, arms and legs. After she broke free, she ran towards the door in an attempt to escape. The offender caught her before she managed to do so, and slapped her hard on her left cheek. The victim felt giddy, and was pushed onto the bed by the offender. They continued struggling until the victim managed to grab hold of a coffee cup and threw it at him.

Shortly after this, the offender stopped struggling with her and suddenly knelt down and apologised to her. The victim took this opportunity to escape after putting on her clothes. The hotel staff at the lobby saw the victim coming out of the lift alone and noticed that she was crying and that her face was red and swollen. That same morning, at about 8.29am, the victim lodged a police report about the incident. The offender was arrested later that day, and was charged with the sexual assault charge, the attempted rape charge, the outrage of modesty charge and the VCH charge.

The victim was examined at KK Women’s and Children’s Hospital on the same day, and was found to have sustained the following injuries: bruising over her left cheek; a chipped left front tooth; a 4-cm cut over her left upper arm; skin excoriation (chafing) on her fourth interphalangeal joint (her finger); and bluish discolouration on her shins and her left knee.

Two weeks later, on 22 November 2014, the offender was arrested for the riotous behaviour charge. The offender and some of his friends got into a fight with another group of patrons at about 12.10am while they were drinking at JD Pub, located at Golden Mile Complex. The offender behaved in a riotous manner by throwing a chair at one of his opponents and punching another person.

The proceedings below

The sexual assault charge and the attempted rape charge involved offences that are ordinarily triable in the High Court (pursuant to the First Schedule of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”)). The offender did not object to the Prosecution’s application under s 9(3) of the CPC for the matter to be tried in the District Court.¹

The offender pleaded guilty and was convicted of the charges on 12 August 2015, a day before he turned 21. He was thus still eligible for reformative training pursuant to s 305(1)(a) of the CPC. On the request of counsel for the offender and in spite of the Prosecution’s objection, the District Judge called for a reformative training suitability report. The report that was eventually prepared by the prison authorities reflected that the offender was suitable for reformative training.²

The parties’ submissions on sentence

The Prosecution submitted that reformative training was not an appropriate or sufficiently severe sentence given the nature of the offences and the need for deterrence. The Prosecution further highlighted the offender’s pattern of criminality, pointing out that (a) the offender had reoffended and committed the riotous behaviour offence while on bail; and that (b) he had antecedents, one of which involved violence. The details of the offender’s antecedents can be summarised as follows: Slightly more than four years before the present offences, in May 2010, the offender was convicted of a charge of robbery with common intention under s 392 read with s 34 of the Penal Code. A further charge of theft with common intention under s 379 read with s 34 of the Penal Code was taken into consideration for the purposes of sentencing. The offender was 15 years old then. He was sentenced to a term of 24 months’ probation with conditions imposed. Slightly less than half a year before the present offences, in June 2014, the offender, who was then 19 years old, was convicted of a charge of cheating and dishonestly inducing the delivery of property under s 420 of the Penal Code and a further charge of dishonest misappropriation of the property of the Singapore Armed Forces (“SAF”) under s 43(a) of the Singapore Armed Forces Act (Cap 295, 2000 Rev Ed). He was court-martialled and sentenced to four weeks’ military detention for the offences.

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