Ng Kean Meng Terence v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Chao Hick Tin JA,Andrew Phang Boon Leong JA
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] SGCA 37
• Date: 12 May 2017
• Docket Number: Criminal Appeal No 16 of 2015
• Published date: 13 June 2017
• Plaintiff Counsel: Subir Singh Grewal and Jasmin Kang (Aequitas Law LLP)
• Defendant Counsel: Rajaram Vikram Raja (Drew & Napier LLC) as amicus curiae.,Francis Ng SC, Charlene Tay Chia, Yvonne Poon, Sarah Shi, Randeep Singh Koonar and Torsten Cheong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 24 October 2016,07 July 2016
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Benchmark sentences

Chao Hick Tin JA (delivering the judgment of the court): Introduction

For the last ten years, courts in Singapore have, for the most part, sentenced rape offenders in accordance with the guidelines laid down by the High Court in Public Prosecutor v NF [2006] 4 SLR(R) 849 (“PP v NF”). Under the framework expounded therein (which we shall refer to as the “NF Framework”), cases are divided into four broad categories of differing levels of seriousness, each of which attracts a different benchmark sentence. This was an approach which was first articulated by the English Court of Appeal in Regina v Billam and others [1986] 1 WLR 349 (“Billam”) and later revised by the same court in Regina v Millberry and other appeals [2003] 1 WLR 546 (“Millberry”). In his judgment in PP v NF, V K Rajah J (as he then was) explained that the English approach “of classifying rape offences into various broad categories [and assigning a benchmark sentence to each category] is both helpful and useful and may be broadly adopted and employed with appropriate adaptation” (at [23]).

By and large, the introduction of the NF Framework has brought a measure of consistency in the sentences imposed in rape offences. This can be seen in the very thorough analysis of the decided cases set out in the Prosecution’s submissions. That said, it has been ten years since the framework was first propounded and the present appeal has provided an opportunity for us to review it, if for no reason other than to ensure that it is still valid in light of subsequent developments in the law. This will also give us an opportunity to address several recurrent problems – many of which are raised in this appeal –in relation to the application of the NF Framework. These include the complaint that the four categories do not adequately cover the full range of circumstances under which the offence of rape could arise, thus leading to a clustering of sentencing outcomes as well as the perception that the NF Framework does not provide adequate guidance in cases of statutory rape.

At the first hearing of this appeal, we notified counsel of our intention to undertake a review of the sentencing framework for the offence of rape and invited further submissions on whether, and if so, how, the NF Framework should be revised. Additionally, we also invited Mr Rajaram Vikram Raja (“Mr Rajaram”) to act as amicus curiae to assist the court. We observe from the outset that while all parties agreed that reform was due, they disagreed as to the direction that the change should take. As will be clear in the course of our judgment, the approach we eventually decided on was informed by, but does not precisely resemble, the approaches urged upon us by the parties.

This judgment will be divided into three parts. The first part will discuss the law and the sentencing practice of the courts at the present moment. We will outline the problems with the NF Framework and set out the case for reform. The second part sets out the revised approach which will replace the NF Framework (“Revised Framework”). We will explain the considerations that we took into account in the design of the Revised Framework and will elaborate how we envisage it will apply in practice, using illustrative examples drawn from previously decided cases. The final part of the judgment will address the appeal brought by the Appellant against the sentence of 13 years’ imprisonment and 12 strokes of the cane imposed on him for the count of statutory rape under s 375(1)(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) which he pleaded guilty to. We will apply the Revised Framework to the case at hand and consider whether the sentence imposed by the Judge is, as argued by the Appellant, manifestly excessive.

The PP v NF Framework and its problems

In order to properly understand the NF Framework, it is necessary to go back to the earlier decision of this court in Chia Kim Heng Frederick v Public Prosecutor [1992] 1 SLR(R) 63 (“Frederick Chia”). After a review of the sentencing practice in the United Kingdom, Malaysia, and Singapore at the time, this court held that “for a rape committed without any aggravating or mitigating factors, a figure of ten years’ imprisonment should be taken as the starting point in a contested case, in addition to caning” (at [20]). Yong Pung How CJ (who delivered the judgment of the court in that case) also added that:

… The court should then consider in turn the mitigating factors which merit a reduction of the sentence, of which a guilty plea which saves the victim from further embarrassment and suffering will be an important consideration and will merit a reduction of one-quarter to one-third of the sentence; and whether there were other factors such as the victim’s youth or the accused person’s position of responsibility and trust towards her, or perversions or gross indignities have been forced on the victim, which justify a longer sentence.

At this point, we pause to note that when Yong CJ used the expression “starting point”, we think what he had in mind was a benchmark sentence that was broadly appropriate for the offence of rape in general, absent consideration of any aggravating or mitigating factors (eg, a plea of guilt). This approach – of beginning with a single benchmark sentence and then considering whether the benchmark sentence should be reduced or enhanced based on a consideration of the aggravating and mitigating factors in the case – was described in a later decision of this court as the “conventional approach” towards sentencing (see Public Prosecutor v UI [2008] 4 SLR(R) 500 (“PP v UI”) at [22]).

The decision in PP v NF

The approach in Frederick Chia held sway for 13 years, until the decision in PP v NF. The facts of the latter case were these. The offender was the father of the victim. He returned home inebriated one day and raped the victim, who was only 15 at the time. A few months later, the victim’s teacher found out about what had happened and reported the matter to the police. The offender surrendered himself to the police and was charged with rape under s 376(1) of the Penal Code (Cap 224, 1985 Rev Ed) (“1985 Penal Code”). After setting out the facts, Rajah J observed that “a disturbing and distinct strand of cases has emerged involving vulnerable victims, where the perpetrator is either the parent of the victim, a close relative or a person occupying a position of trust and authority” (at [18]). The sentencing practice in this area, he noted, was “less consistent”. As a result, he embarked on a review of the sentencing precedents for the offence of rape and proposed the NF Framework to help trial courts to impose sentences for rapes which would have a greater degree of consistency.

The four categories proposed by Rajah J, and the starting points applicable to each, are as follows: “Category 1” rapes are those at the “lowest end of the spectrum” and “feature no aggravating or mitigating circumstances” (see PP v NF at [20]). The benchmark sentence is, following Frederick Chia, a term of 10 years’ imprisonment and six strokes of the cane. “Category 2” rapes are those that feature any one of the seven specific aggravating factors listed at [20] of PP v NF (“Category 2 aggravating factors”). These include, among other things, the rape of a vulnerable victim or rape committed by two or more offenders acting in concert. The “starting point for category 2 rapes” is 15 years’ imprisonment and 12 strokes of the cane (at [36]). “Category 3” rapes are those which involve the rape of the same victim on multiple occasions or the rape of multiple victims. The benchmark sentence is the same as that for Category 2, namely, 15 years’ imprisonment and 12 strokes of the cane. Rajah J explained that there was no need for a higher benchmark sentence to be set for this category because the Prosecution would, in the usual course of things, prefer multiple charges against the offender and the sentencing court could order that two or more of the sentences imposed run consecutively to reflect the overall gravity of the offending conduct (at [37]). “Category 4” rapes are those in which the offender has “manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time” (at [21], citing Billam at 50–51). Rajah J noted that unlike in England, the option of a life sentence for an offence of rape was not available in Singapore. Thus, he considered that the benchmark sentence for Category 4 rapes ought to be the maximum sentence of 20 years’ imprisonment and 24 strokes of the cane.

Apart from the advantages of consistency and predictability, Rajah J held that the promulgation of benchmark sentences would also serve the aim of general deterrence, by informing would-be offenders of the likely punishment facing them (at [39]). However, he stressed that the NF Framework “should never be applied mechanically, without a proper and assiduous examination and understanding of the factual matrix of the case” (at [43]). He explained that the court ought always to have regard to the presence of any “further mitigating or aggravating factors” [emphasis added] which might serve either to enhance or reduce the appropriate sentence for an offender in accordance with his legal and moral culpability (at [45]). The use of the word “further” is deliberate, for it is clear that what Rajah J had in mind were factors other than those which were already considered in his definition of the categories. Examples of such further aggravating factors would include the harm caused to the victim as well as the list of nine aggravating factors set out in Millberry (eg, the use of a weapon, the causing of particularly serious harm, or the use of a drug to overcome resistance from the victim): at [46] and [55]. In closing, he reiterated that the task of sentencing always...