Public Prosecutor v Buergin Juerg

• Jurisdiction: Singapore
• Judge: Eddy Tham Tong Kong
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] SGDC 143
• Court: District Court (Singapore)
• Hearing Date: 30 April 2013,20 March 2013,08 May 2013,19 March 2013,28 March 2013,25 March 2013
• Docket Number: DAC No. 13762/2012 & Others
• Plaintiff Counsel: Deputy Public Prosecutor Ms Kavita Uthrapathy and Ms Elizabeth Chua
• Defendant Counsel: Defence Counsel Selva K Naidu (M/s Liberty Law Practice LLP)
• Published date: 31 May 2013

District Judge Eddy Tham:

The Accused was convicted before me after a trial on 30 April 2013 on two charges under section 376B(1) of the Penal Code. He was subsequently sentenced on 8 May 2013 to imprisonment of 4 months and 3 weeks on each charge with both sentences to run concurrently after taking into account the period he had served in remand. The Accused commenced his sentence of imprisonment immediately. On 13 May 2013 he filed a notice of appeal against conviction. He has not applied for bail pending appeal.

With respect to the grounds of decision, I had delivered one for conviction on 30 April 2013 and another one for sentence when the Accused was sentenced on 8 May 2013. For completeness, I now reproduce both with some minor editorial changes:

Grounds of Decision in respect of conviction

The Accused stands before me charged with 2 counts of an offence under section 376B(1) of the Penal Code, Chapter 224.

The Accused had claimed trial to both charges.

The charges are similar in that the Accused was alleged to have committed an offence of obtaining for consideration the sexual services of one person whose moniker is known as Chantelle, who was under 18 years of age on the material dates of the two charges i.e. 29 September 2010 and 3 January 2011. As a gag order under section 7 of the Subordinate Courts Act, Chapter 321 has been granted in respect of the identity of the person who had provided sexual services, I shall refer to her by her moniker Chantelle in the rest of this judgment.

The issues before the Court

The Defence essentially raised two issues, one an issue of law and the other an issue of fact. The issue of law submitted is that the offence under section 376B(1) is not one of absolute liability and therefore would require the prosecution to prove not just that Chantelle was below 18 but that additionally the Accused had possessed the requisite mens rea of knowing that Chantelle was below 18 at the material time of the two charges.

The second issue raised is that of whether “sexual services” had been provided by Chantelle to the Accused. “Sexual services” has been defined under subsection (4)(b) of s 376B to mean any sexual services involving “sexual penetration of the vagina or anus, as the case may be, of a person by a man’s penis.” The Accused’s position is that he had engaged the services of a number of social escorts including Chantelle and that sexual intercourse did not take place on every occasion and hence he was not able to recall if sexual intercourse did take place between him and Chantelle on the two occasions set out in the charges.

The undisputed facts

I will now set out the largely undisputed facts which are relevant to the two issues before the court. It is not disputed that Chantelle had been recruited by a pimp, one Tang Boon Thiew (hereinafter referred to as “Tang”) some time in September 2010 as a social escort who would provide companionship and sexual services to clients secured by Tang. Tang was the person who had given this working moniker “Chantelle” to her. Tang had entered into an agreement with Chantelle whereby Tang would secure bookings of clients for Chantelle and Chantelle would then pay over half of what she is paid by the clients after each booking to Tang. Tang would fix the price directly with the clients.

Tang secured about 80 bookings for Chantelle to whom she provided sexual services at a rate of between $450 and $850 for each session between 23 September 2010 and 18 February 2011.

In order to secure clients for his social escorts, Tang had, amongst other avenues, set up a website under the name of VIE Models, where he provided the monikers, photographs and description of various social escorts including Chantelle. Tang, over the period when Chantelle was working for him, had used two screenshots of Chantelle. In both screenshots, Chantelle was described as an 18-year old. This representation was false as her date of birth is xx xxxx xxxx and hence during the entire period of September 2010 to February 2011, she was actually below 18 years of age. She would only turn 18 on xx xxxx xxxx.

Accordingly, on the dates set out in the 2 charges, Chantelle would have been below 18 years old. She was 17 years and 6 months on the date of the first charge and 17 years and 9 months during the time of the second charge.

The circumstances leading to the two charges

It is not disputed that the Accused had after viewing the website of VIE Models contacted Tang by sending him a text message to the phone number given in the website to enquire about the services of the social escorts advertised on the website. There was a preponderance of incontrovertible evidence tying the Accused to the booking of Chantelle on the 2 occasions set out in the charges.

Tang’s phone had been seized by the police during investigations which revealed text messages between Tang and the Accused who was using a false name ‘Robert James’. The phone number of Robert James was traced to then employer of the Accused, UBS Bank, which had assigned that line to the Accused. The text messages between Tang and ‘Robert James’ set out clearly that the Accused had eventually agreed to engage Chantelle’s services on both the occasions on the dates and times as set out in the two charges. For the first occasion, the agreed price for one and half hour session was $600 and for the second occasion, for one and half hour session, it was agreed at $650.

The phone text messages between Tang and Chantelle were also tendered as evidence which contents and timings corresponded with the appointments made with the Accused. Prosecution also tendered the hotel records evidencing the check-in details which confirmed that the Accused was a guest at those hotels at the material time. The Accused did not challenge the contents of the messages and accepted that he was the author of the messages emanating from ‘Robert James’ a false name he had assumed to hide his identity and protect his reputation.

The Accused therefore accepted that he did meet Chantelle on the 2 occasions and had brought her up to his hotel room. He also accepted that he had paid her on the two occasions the amount of $600 and $650 as stated in the text messages between him and Tang.

Essentially, the Accused accepted the following ingredients set out in the 2 charges: (in respect of the first charge) On 29 September 2010, Chantelle was below 18 years of age; Chantelle was together with him in Room 870 of Shangri-La Hotel located at Orange Grove Road, Singapore; and He had paid her $600 as consideration for her services as a social escort; (in respect of the second charge) On 3 January 2011, Chantelle was below 18 years of age; Chantelle was together with him at Room 838 of Mandarin Oriental Hotel located at Raffles Ave, Marina Square, Singapore; and He had paid her $650 as consideration for her services as a social escort.

The issue of law

I will now address the issue of law on the construction of section 376B(1) of the Penal Code. The Defence has submitted that there is a presumption of mens rea as an essential element in a statutory offence. This principle had been enunciated in the case of Lim Chin Aik v The Queen [1963] AC 160, where the element of mens rea has been described as “knowledge of the wrongfulness of the offence”. The case further held that this presumption can be displaced either by the words of the statute creating the offence or by the subject matter with which it deals with and both had to be considered. The Privy Council further affirmed the principle that “It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind”.[see page 165 of the judgment].

Applying this principle to the present issue of construction of section 376B, the question therefore to be asked is whether the presumption of mens rea has been displaced either by the words of the section or by necessary implication. In interpreting this section, I found guidance also in a recent case of our Court of Appeal in the case of Dorsey James Michael v World Sport Group Pte Ltd [2013] SGCA 31 where it was held that the purposive approach should be mandated in every case of statutory interpretation. The Court of Appeal set out this approach at [16-22]: “16 In Singapore, any discussion on statutory interpretation must take place against the backdrop of s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the Interpretation Act”): see Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803 (“Constitutional Reference No 1 of 1995”) at [44]; Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR(R) 669 (“Planmarine AG”) at [22]; Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 (“Low Kok Heng”) at [39].

Section 9A of the Interpretation Act provides as follows:

9A.— (1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

(2) Subject to subsection (4), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material – (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or (b) to ascertain the meaning of the provision...