Public Prosecutor v Shaw Chai Li Howard

• Jurisdiction: Singapore
• Judge: See Kee Oon
• Judgment Date: 24 August 2012
• Neutral Citation: [2012] SGDC 319
• Court: District Court (Singapore)
• Docket Number: District Arrest Case 13759 of 2012
• Year: 2012
• Published date: 06 September 2012
• Hearing Date: 27 June 2012,30 July 2012,24 August 2012
• Plaintiff Counsel: Mr Sellakumaran Sellamuthoo with Mr Ramesh Ethan and Andrew Tan (Deputy Public Prosecutors)
• Defendant Counsel: Mr Harpreet Singh Nehal SC with Ms Simran Kaur Toor and Mr Jared Chen (Wong Partnership LLP)
• Citation: [2012] SGDC 319

Senior District Judge See Kee Oon:

The accused pleaded guilty to a charge under s 376B(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) for obtaining, for consideration, the sexual services of an underage female. The matter was adjourned for further submissions after he was convicted on his plea of guilt on 27 June 2012. He was sentenced to 12 weeks’ imprisonment on 30 July 2012. As he has appealed against his sentence, I shall set out the full grounds for my decision, incorporating the brief reasons I had outlined orally before passing sentence.

The Background Facts

The accused admitted the facts set out in the Statement of Facts (‘SOF’) without qualification. At the material time, the minor, who shall be referred to as ‘B’, was not yet 18 years of age when the accused had sex with her, paying $500 for her services. She was 17 years and 7 months old when they had their liaison at Hotel 81 Bencoolen on 30 October 2010. He was 40. No further details which may lead to her identification will be disclosed here as she was a minor at the time of the offence.

The accused came across ‘B’s’ details on an Internet website in which her profile was published. On contacting her pimp via SMS, arrangements for their liaison at Hotel 81 Bencoolen were made at the agreed rate of $500 per hour. The accused proceeded to book a room at the hotel. He then informed ‘B’s’ pimp of the room number. He did not ask ‘B’ or her pimp about her age at any point in time.

Mitigation

The accused contended that while he had not made any effort to check or verify ‘B’s’ age, he had not knowingly committed the offence. He did not deliberately seek out commercial sex with an underage girl. Rather, he had made an honest and reasonable mistake in engaging in paid sex with her, as a consequence of the misrepresentation about her age on the website. He had been deceived about ‘B’s’ age as the website intimated that she was 18 years old. He also put forward various testimonials attesting to his good character and social standing and his contributions to the environmental cause as Executive Director of the Singapore Environment Council over the years.

Counsel submitted that the accused ought to be given a conditional discharge or a nominal fine at most. He did not deserve an imprisonment term, which would be ‘absurdly draconian’ and wholly disproportionate to his culpability given that this was a strict and absolute liability offence and he was a first offender. In particular, counsel suggested that I should revisit the premises on which I had earlier dealt with the related matter of PP v Lee Lip Hong [2012] SGDC 231, involving the same minor ‘B’. Counsel contended, inter alia, that there was no basis to impose a ‘legal obligation’ to check the minor’s age. He suggested that had the correct approach been adopted, the outcome for Mr Lee Lip Hong ought to have been different. [Note: there was no appeal against the 9-week imprisonment term I imposed by either the prosecution or the defence in PP v Lee Lip Hong. Mr Lee has since served his sentence.]

The Prosecution’s Submissions

The prosecution submitted that while mistake can be a valid mitigating factor in certain circumstances, the accused had not met the threshold requirements to avail himself of this argument. He had not even asked about ‘B’s’ age. It may not have been clear that she was obviously below 18 but it would still have been incumbent on the accused to exercise due diligence to attempt to ascertain her age if he could be said to have mitigated the offence. Only then could he contend that despite his best efforts and vigilance, he had inadvertently and unknowingly committed a strict and absolute liability offence and merit consideration for the lowest possible sentence or even a conditional discharge.

In any event, the prosecution pointed out that in enacting s 376B(1) as an absolute liability offence, Parliament had consciously removed the ‘reasonable mistake’ defence which was available in some other Commonwealth jurisdictions (eg. England and Canada). In turn, Parliament had not enacted mandatory minimum sentences or even mandatory imprisonment. The accused would still have to show that there was a reasonable basis for his mistaken belief. To be able to claim that he had done enough in mitigating the offence to bring himself below the threshold of a custodial sentence, he would still have to show what he had actually done to avoid committing the offence in the first place.

A higher standard of care is imposed to ensure that inadvertent breaches do not occur, consistent with the nature of strict and absolute liability offences. Given that the accused had done nothing at all to ascertain ‘B’s’ age, the prosecution submitted that he had he had not met that standard and a sentence higher than that imposed on Mr Lee Lip Hong would be justified. A sentence of three months’ imprisonment was thus proposed.

Reasons for Sentence ‘Due diligence’: relevance in mitigation

In Lee Lip Hong’s case, I had noted in my oral grounds that the accused ought to have attempted to verify ‘B’s’ age. If she had refused to permit verification, he ought to have walked away from the transaction. My observations were construed by counsel in the present case to mean that I had imposed a ‘legal obligation’ for verification of the minor’s age. With respect, this so-called ‘legal obligation’ had been miscast by the defence. There is no ‘obligation’ per se, since there is no offence arising from a mere failure to check and ascertain her age. It is neither an illegal omission nor an aggravating consideration by itself.

I should clarify that when I commented in that case on the extent of the accused person’s ‘duty’ to check and verify ‘B’s’ age, this was in the context of whether his conduct in the circumstances had mitigated the seriousness of his offence. It is entirely within the sentencing court’s purview to determine what would amount to relevant mitigating conduct for a particular offence.

Section s 376B(1) is a strict and absolute liability offence and the prosecution need not specifically prove intention to commit the offence. The extent to which the accused had made efforts to check and verify the minor’s age in order to avoid falling foul of s 376B(1) can be a relevant and very material consideration in sentencing. This is clearly set out in the guideline judgment of the High Court in Tan Chye Hin v PP [2009] 3 SLR(R) 873. It ought to be clarified as well that s 376B(1) does not allow for any statutory defence and would thus be properly characterised as an absolute liability offence.

Having had the benefit of hearing detailed submissions in the present case, I had given the matter my full consideration but I was not persuaded that I should depart from my earlier views as expressed in my oral grounds in Lee Lip Hong’s case. I accepted the prosecution’s submission that strict liability offences (and more so where they create absolute liability) by their very nature would impose higher standards of care on those who choose to engage in conduct which might give rise to potential penal consequences. The observations of Lord Diplock in Sweet v Parsley [1970] AC 132 at [163] are apposite:

[W]here the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. [Emphasis mine]

Similar views were expressed by the Privy Council in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1. In the present context, commercial sex with minors has been criminalised by the enactment of s 376B(1) because such activities offend societal norms, community mores and moral standards. The court’s views about the morality of commercial sex with minors are irrelevant to that extent. In any event, the court’s views would be no more than a reflection of Parliament’s intent in criminalising such offences.

Some 30 years ago, it had already been recognised in English law that ‘in general, we have arrived at a regime of fault which, based on statute, exculpates the diligent and careful defendant’: L H Leigh, Strict and Vicarious Liability (1982) at 103. If the required standard of care is met, then it must follow that there can be no liability, since the potential offender would have exercised diligence and care and taken the necessary measures to prevent the prohibited act. If there is evidence of prudence and vigilance in the exercise of due diligence to ensure compliance, this will be highly relevant in mitigation. It diminishes the offender’s culpability (or fault) by showing that the breach was clearly not deliberate or foreseeable, and allows the court to assess how close he came to avoiding liability.

I should add that in oral submissions, the defence had actually accepted the need for the accused to be ‘a bit more vigilant in Singapore if you want to avoid breaking the law’ as a ‘rule of prudence’. Curiously, in spite of this acknowledgment, the defence submissions were aimed primarily at justifying the accused’s failure to exercise any due diligence and to demonstrate that he was in fact the ‘victim’ of strict enforcement of an ‘over-inclusive’ law as well as the ‘entrapment, deceit and trickery’ perpetrated on him. I will deal with these points more fully at a subsequent juncture in these grounds.

As demonstrated in the facts in Tan Chye Hin’s...