PP v Ong Jack Hong

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 25 August 2016
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9023 of 2016
• Date: 25 August 2016

Public Prosecutor

and

Ong Jack Hong

[2016] SGHC 182

Sundaresh Menon CJ

Magistrate's Appeal No 9023 of 2016

High Court

Criminal Procedure and Sentencing — Sentencing — Seventeen-year-old sexually penetrated 14-year-old minor after meeting her at bar — Offender having unrelated antecedents — Whether probation or reformative training appropriate — Section 376A(1)(a) Penal Code (Cap 224, 2008 Rev Ed)

Facts

The Prosecution appealed against the sentence of probation imposed by the learned district judge on the 18-year-old respondent for an offence of sexual penetration of a minor under s 376A(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed). It argued that the sentence was manifestly inadequate and that a term of reformative training was necessary in the light of the need for deterrence and the respondent's antecedents.

The respondent, who was 17 years old at the material time, met the 14-year-old minor (‘the victim’) at a bar for the first time on the date that the offence took place. The respondent and his friends approached the victim who was drinking alone and chatted with her for a while. The victim left for the toilet and when she emerged again, she was approached by the respondent, who started hugging and kissing her on the lips. After they kissed for a while, the respondent carried the victim to a stairwell, closed the door, turned the victim to face the wall and then penetrated her, without a condom, while she was bending down. He stopped when he heard a noise, and the two of them dressed up before leaving the stairwell.

The district judge sentenced the respondent to a term of 24 months' split probation. The Prosecution appealed against the sentence, arguing that it was manifestly inadequate and that at the very least, the district judge should have called for a reformative training suitability report before he made his decision.

Held, allowing the appeal:

(1) The criminalisation of sex with a minor rested on the notion that minors were vulnerable to such a degree that they were taken to be incapable of consenting. While the High Court in PP v AOM[2011] 2 SLR 1057 recognised that consent might be relevant as a mitigating factor to sentencing in such cases, it was clear from the manner in which the point was made that this would be so only in exceptional cases. Consent would come into play primarily in circumstances where it could be shown that there was a settled relationship of sorts between the parties, or where the minor was not really vulnerable in all the circumstances. In the present case, the gravity of the offence could not be alleviated by any purported consent because the victim was not only vulnerable by reason of her age, but further, because she was drunk: at [8] and [9].

(2) The imposition of reformative training remained within the range of sentencing options for young offenders where the focus was on rehabilitation. The district judge came close to suggesting that he did not have to consider reformative training because he felt rehabilitation was the primary sentencing consideration. In so far as such an understanding of his decision was correct, the decision and approach were wrong in principle: at [11].

(3) While the court took cognisance of the fact that the respondent was a young offender and did not treat him in the same way as an older offender, that did not take matters very far. Had he been appreciably older, the sentence in question would have been a term of imprisonment and that term – in circumstances that were otherwise identical – would have been lengthy because there would have been no consideration given to the immaturity of a young offender and a finding would have been made that such an offender was deliberately and cynically taking advantage of the youthfulness and drunken state of the victim. But discounting those factors and accepting that he was a young offender more prone to impulse and arguably less focused on exploiting the vulnerability of the victim, the focus remained on rehabilitative sentencing options: at [15].

(4) Little, if any, weight could be placed on the suggestion of the defence that the culpability of the respondent was in some way mitigated because he found the victim in a bar and might have thought she was over the age of consent. The offence was one of strict liability. Further, the Respondent was himself drinking even though he was under-aged, and indeed there was even a suggestion that he might have been drunk. It was not evident how he could reasonably have formed any view of her age on the supposition that she would act in accordance with law, when he himself was not doing so. In any case, there was no evidence before the court to suggest that such an assumption would have been reasonable: at [16].

(5) No relevance was placed on the argument that the offence was committed opportunistically rather than in a premeditated way. Had the offence been committed in a deliberate and premeditated manner, that would have been a serious aggravating factor that might well have displaced the focus on rehabilitation altogether in favour of other sentencing interests such as deterrence and retribution: at [17].

(6) The recounting of the events in the statement of facts, which the respondent had admitted to, showed that the respondent was in control of the situation over the victim, who was in a drunk and vulnerable state. This was a factor that made the offence graver. While it was accepted that the victim was neither unconscious nor wholly without control of her faculties, that did not materially advance the respondent's case because the fact that she was drunk and vulnerable was, by itself, sufficient to aggravate the offence: at [18].

(7) The argument that the progress an offender had achieved would be undone if he were to be sentenced to reformative training was not helpful. The focus and purpose of reformative training was to reform and rehabilitate an offender within a rigorous and structured environment. Further, if the progress that an offender had ostensibly achieved prior to the disposition of the question of sentence could be so easily undone or undermined by a sentence of reformative training, this would raise the concern that such progress might be unduly fragile and might perhaps not be reflective of real change but might be born of a desire to avoid a more onerous sentence: at [19].

(8) The arguments advanced on the respondent's behalf failed to consider, to a sufficient extent, the seriousness of the offence, the harm done to the victim and, most importantly, the public interest in deterring such conduct. A degree of deterrence was necessary in the present case. It was important that other like-minded youths who found themselves in a similar situation understood that the consequences of engaging in such conduct was likely to be a stint of reformative training, if not worse. There was also a need for specific deterrence. While the respondent's antecedents were of a different nature from the present offence, the fact that he had a history of offending supported the view that he would benefit from undergoing a stint in the structured environment of reformative training where he could undertake serious efforts at making a fresh start: at [20] and [21].

(9) While the fact that the respondent's father was dying was undoubtedly tragic, it did not, in the final analysis, affect the court's decision. What was critical was to focus on the best interests of the respondent. He might well have preferred not to spend the next period of his life in the structured environment of reformative training away from his father but, in the court's judgment, that was the best course for his reform and rehabilitation: at [22].

(10) The reference made by counsel for the respondent to the fact that the victim had sexual relations with her boyfriend before was not in any way helpful. Counsel suggested that all that was being put forward was that the victim had not been traumatised by the incident. That was not a conclusion that could fairly be drawn in all the circumstances. Further, there was no basis for comparing, much less equating, a 14-year-old's reaction to one or more sexual encounters with her boyfriend, with whom she appeared to be in a...