Public Prosecutor v ADW

• Jurisdiction: Singapore
• Judge: Paul Quan
• Judgment Date: 16 December 2009
• Neutral Citation: [2009] SGDC 486
• Court: District Court (Singapore)
• Published date: 04 January 2010
• Citation: [2009] SGDC 486
• Plaintiff Counsel: DPP Adrian Loo
• Defendant Counsel: Julian Lim (Asia Ascent Law Corporation)
• Year: 2009

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

16 December 2009

District Judge Paul Quan:

1 The Accused faced four charges of outraging the modesty of a (then) 13-year-old male victim under Section 354 of the Penal Code, Cap 224 (1985 Rev Ed).[note: 1] On the first day of trial, he pleaded guilty before me to the third and fourth charges and consented to have the remaining charges taken into consideration for the purpose of sentencing (“TIC charges”). I convicted him of both charges and imposed a total sentence of 16 months’ imprisonment and three strokes of the cane. The Accused has appealed against the sentence imposed. I now set out the reasons for my decision.

Facts

2 The Accused admitted to the statement of facts without qualification.[note: 2]

3 The facts relating to the third charge are that the victim was playing games on the computer in the Accused’s room on 28 November 2007 at about 9.00am, when the Accused asked the victim to stroke his (the Accused’s) penis. The Accused proceeded to undress himself and thereafter, he grabbed the victim’s right hand to stroke his (the Accused’s) exposed penis.

4 As for the fourth charge, the facts are that the Accused joined the victim and a group of friends who were swimming at the beach on 24 November 2007 sometime after 12.00pm. Whilst in the water, the Accused pulled down the victim’s shorts and underwear and squeezed the victim’s penis. A while later, the Accused returned the victim’s shorts and underwear to him.

Antecedents

5 The Accused was a first offender and has a hitherto clean record.

Mitigation

6 Counsel tendered a written mitigation[note: 3] and also addressed the Court orally. The main thrust of the mitigation was to urge the Court not to impose a sentence of caning on the Accused and to impose only a custodial sentence or a fine. To this end, Counsel referred the Court to several cases that have departed from the usual sentencing tariff for outrage of modesty cases and sought to draw parallels between these cases and the present case.

7 For the third charge, Counsel submitted that just as the Accused in Kwan Peng Hong v PP [2000] SGHC 164, who touched the victim’s breast because he “just got excited”, the Accused in the present case also committed the offence because he got excited when he saw a reaction from the victim. The incident also lasted for a short time. This was contrasted with the aggravated facts in Tok Kok How v PP [1995] SGHC 44. First, the Accused in that case did not heed the victim’s warning to keep his hands to himself. Secondly, after the victim broke free from his grip, the Accused caught up with the victim and touched her again. Thirdly, the Accused persisted in his actions in that he outraged the victim’s modesty four times. Counsel also submitted that just as the Accused in Wong Soon Lee v PP [2002] SGHC 216 was in a state of “high” at the time of the incident because he was intoxicated, the Accused in the present case could also be said to be in a state of “sexual high” upon seeing the victim’s reaction.

8 As for the fourth charge, Counsel relied on Kwan Peng Hong (supra) and submitted that the offender’s behaviour after the incident was also a relevant consideration. In the present case, the Accused returned the victim’s shorts and underwear. This, according to Counsel, was a sign that the Accused felt guilty as opposed to being belligerent or unremorseful.

9 Counsel also referred me to an extract from Kow Keng Siong’s Sentencing Principles in Singapore (2009 ed) wherein the learned author opined that there have been instances where the courts did not impose caning where caning is discretionary, or ordered a lesser number of strokes on an offender who pleaded guilty or showed that he was remorseful. By pleading guilty in this instance, Counsel submitted that the Accused had saved the Court, the Police/Prosecution valuable time, expense and trouble and had obviated possible trauma to the victim of going through a protracted trial and/or having to give evidence.

10 Two testimonials, one from the Accused’s student and another from a student’s parent, were also tendered to attest to the Accused’s good character.[note: 4]

Prosecution’s address

11 To assist the Court, the Prosecution suggested that for the third charge, the sentence should be six months’ imprisonment upwards considering that there was prolonged and direct contact. As for the fourth charge, although private parts were involved, it was a brief touch and the sentence ought to be three months’ imprisonment.

12 The Prosecution also highlighted the following sentencing considerations that should be taken into account for the present case:

(a) The victim’s genitals were molested;

(b) There was skin-on-skin contact for the third and fourth charges;

(c) Force was used in respect of the fourth charge in that the victim’s shorts and underwear were pulled down;

The offences took place over a week on two occasions for the third and fourth charges;

(e) The Accused was in a position of trust and authority vis-à-vis the victim although the victim was not his student, and the Accused had abused that position; and

(f) The victim was below the age of 14 at the time of the offence.

13 Point (e) was a bone of contention for the Defence. In this regard, Counsel submitted that no relationship of trust and authority had been established as the victim was not the Accused’s student but merely tagged along with his friends who were the Accused’s students when they had their tuition sessions with the Accused. Nevertheless, the Accused would also make the victim study with the group so that he would spend his time meaningfully. However, the Prosecution argued that it did not lie in the Accused’s mouth to say that he made the victim study with the group and yet say in the same breath that no relationship of trust and authority was formed. In response, the Defence submitted that such a relationship must be an express one and it could not be a quasi-relationship as the Prosecution had suggested.

Sentencing considerations

14 It would be appropriate for me to set out the sentencing considerations that I had taken into account in arriving at the sentence which I imposed.

Age of victim

15 The Accused has been charged under Section 354 of the Penal Code, which is punishable with a maximum imprisonment term of two years, or with fine, or with caning, or with any two of such punishments. Because the present offences were committed in 2007, the post-2008 amendments to this Penal Code offence did not apply, although it is noteworthy that the new Section 354(2) of the Penal Code now expressly carries a heavier penalty for outrage of modesty simpliciter committed against victims below the age of 14.

16 Be that as it may, it is a given that protection has always been afforded to young victims of molest. The need to protect minors has been reiterated in Parliament. For instance, prefacing the introduction of the Penal Code amendments to protect minors from sexual abuse, the Senior Minister of State for Home Affairs Assoc Prof Ho Peng Kee expressed the view that (Singapore Parliamentary Debates, 22 October 2007 vol 83 at col 2175):

[W]hilst the Penal Code protects society generally, we should be mindful that some amongst us are more vulnerable to crimes than others. These include persons of a young age and persons with mental disability.

Indeed, even prior to the 2008 Penal Code amendments, a heavier penalty would apply if aggravated outrage of modesty was committed against young victims below the age of 14: see Section 345A(2)(b) of the Penal Code. The courts have also long regarded any acts of molest perpetrated against a young victim as an aggravating factor: see eg Lee Kwang Peng v PP [1997] SGHC 201 at [140]. This is justified on the basis that this class of vulnerable victims is in need of especial protection against sexual exploitation because they are generally wanting in the ways of the world and are sexually immature due to their tender age, as well as protection against moral corruption during the important formative years of their development.

17 In the present case, the victim was 13 years old and the Accused was nearly three times his age at the time of the offences. The fact that the Accused, as a mature adult, had outraged the modesty of a young victim was an aggravating factor which I could not ignore. In Lim Hock Hin v Kelvin v PP [1998] SGCA 1, the Court of Appeal expressed the view at [21] that:

Paedophilic offences are by their nature unpleasant and most distressing and the society has to express its marked disapproval for such harm to the young and vulnerable victims. The presumption is that the safety of the child must be paramount…

Although the Court had used the words “child” and “children” in its judgment, it was clear that the Court had in mind the protection of persons below the age of 14: see [24]. In the present case, the Accused’s display of (borderline) paedophilic tendencies was alarming to say the least, especially in light of his profession as an educator of young persons, and something for which the Court had to show its disapprobation.

Aggravating features of the present case

18 The more egregious acts of molest are those committed against (a) young victims involving (b) multiple prolonged and direct intrusions of (c) private parts with (d) some degree of violence (e) by a perpetrator in a position of trust or authority known to the victim. The present case has shades of these features, to which I now turn to discuss.

The fourth charge

19 In the recent decision of PP v Heng Swee Weng [2009] SGHC 275, V K Rajah JA endorsed the considerations laid down by District Judge Kow Keng Siong (as he then was) in PP v QO [2006] SGDC 250 as a...