Public Prosecutor v Soh Lip Yong

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 September 1999
• Neutral Citation: [1999] SGHC 242
• Docket Number: Magistrate's Appeal No 142 of 1999
• Date: 13 September 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Kan Shuk Weng and Gilbert Koh (Deputy Public Prosecutor)
• Citation: [1999] SGHC 242
• Defendant Counsel: SK Kumar (SK Kumar & Associates)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Factors to be taken into consideration,Whether sentencing cap of district court should be an additional factor,Sentencing,Rape,Underaged victim

: The respondent was charged with and pleaded guilty to the offence of rape under s 376(1) of the Penal Code (Cap 224) in the District Court. He also pleaded guilty to two other charges of riding a motorcycle without the relevant licence and insurance coverage. The latter charges however are not the subject matter of the present appeal.

The charge under s 376(1) of the Penal Code read as follows:

You Soh Lip Yong, Male/19 years old NRIC No S7917577-C Nationality: Singapore Citizen Address: Blk 206 Bishan Street 23 [num ] 06-409 are charged that you on 17 October 1998, at or about 8.40pm, at Blk 206 Bishan Street 23 [num ]06-409, Singapore, committed rape on one female aged 12 years and you have thereby committed an offence punishable under s 376(1) of the Penal Code (Cap 224).

The matter was dealt with by district judge FG Remedios in the district court, instead of in the High Court which is where an offence under s 376 is usually heard, pursuant to s 7(2) of the Criminal Procedure Code (Cap 68). This is permitted under the section provided the Public Prosecutor applies for it, the accused consents and the offence that the accused is charged with is not punishable with death.

The respondent was sentenced to five years` imprisonment for the offence. The prosecution appealed against the sentence imposed by the district judge. I allowed the appeal and enhanced the sentence to seven years` imprisonment and six strokes of the cane. I now give my reasons.

Background

In his plea of guilt, the respondent admitted unreservedly to the following statement of facts.

The respondent, the victim and one Tan Ah Peng (`Tan`) met each other at Kallang MRT Station on the afternoon of 17 October 1998. Later on that evening at around 6pm, the respondent invited them to his home in Bishan to play computer games. In the respondent`s bedroom, the respondent and the victim sat on the bed and chatted while Tan was playing computer games. During the course of their conversation, the respondent asked the victim to be his steady girlfriend but she declined. The victim became upset by the topic of conversation and explained her refusal by saying that she had just broken up with her ex-boyfriend. While the respondent was consoling her, he made her lie down on his single-sized bed which he also occupied. Tan at this point turned off the computer game he was playing and went to sleep on the floor next to the bed.

The respondent began touching and kissing the victim and tried to remove her clothes. Despite her resistance, the respondent managed to remove her blouse and brassiere. He also tried to pull down her pants. The victim pretended that she was having an asthma attack in the hope that it would stop the respondent from going any further. However, the respondent merely woke Tan up and asked him to go to a nearby pharmacy to buy an inhaler for the victim.

After Tan left, the respondent managed to remove the victim`s pants and panties. Although she resisted and told the respondent to stop, he persisted and managed to have sexual intercourse with her for about 15 to 20 minutes.

The victim told her parents that she had been raped when she got home later that night. The police were called and the respondent arrested. The victim was sent to the hospital for a medical examination whereupon it was found that she had two fresh hymenal tears. The victim was 12 years old when the incident took place.

In mitigation, counsel for the respondent submitted that the respondent had pleaded guilty at the earliest opportunity after the charge and the facts of the case had been reviewed by the prosecution. The victim also knew the respondent prior to the incident, there was no injury caused to her, she had paged the respondent and arranged the meeting on 17 October 1998, the respondent`s only intention towards the victim when inviting her to his place was to ask her to be his steady girlfriend, this was a one-off incident and the age gap between the victim and the respondent was not very wide.

The decision below

In deciding to impose a sentence of five years` imprisonment on the respondent, the district judge took into account what he considered to be the mitigating factors present. These were the respondent`s early plea of guilt, the fact that there had been no use of violence or force on the victim other than removing her clothes against her will, and that the victim had gone into the respondent`s room and sat on his bed willingly.

Despite noting that a major aggravating factor here was the fact that the victim was only 12 years old when the offence was committed, the district judge was of the view that it would not be inappropriate to deviate from the benchmark sentence for rape convictions prescribed by the Court of Criminal Appeal in Chia Kim Heng Frederick v PP [1992] 1 SLR 361 due to the mitigating factors present. The district judge was furthermore influenced by the fact that the maximum sentence which he could impose was seven years` imprisonment and 12 strokes of the cane. As there was no evidence that the respondent had held the victim in his bedroom against her will, the district judge decided not to impose a sentence of caning.

The appeal

The prosecution contended that the district judge had erred in fact and law in coming to his decision to impose a sentence of five years` imprisonment without any caning. This was manifestly inadequate given the circumstances of the case.

First, the prosecution submitted that the district judge failed to appreciate that the offence of rape, by its very act contained an element of violence and should thus attract a sentence of at least six strokes of the cane: Chia Kim Heng Frederick v PP . Secondly, the district judge did not attach sufficient weight to the fact that the victim had resisted the respondent`s advances and was only 12 years old at the time of the offence. Thirdly, the finding of fact that the victim was not held by the respondent in his bedroom against her will could not be right given the victim`s behaviour which involved feigning an asthmatic attack in her attempt to dissuade the respondent from persisting in his advances. Finally, the district judge had erred in inferring that the victim had gone to the respondent`s house for more than just computer games. This inference had been drawn by the district judge from the fact that she had gone there willingly and had sat on the respondent`s bed. The prosecution asserted that this inference was totally unsupported by the facts and had clearly influenced the district judge to impose a sentence that was manifestly inadequate.

The benchmark sentence for the offence of rape

The definition of rape is found in s 375 of the Penal Code which reads:

A man is said to commit `rape` who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the 5 following descriptions:

(a) against her will;

(b) without her consent;

(c) with her consent, when her consent has been obtained by putting her in fear of death or hurt;

(d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent;

(e) with or without her consent, when she is under 14 years of age.

The punishment for rape is found in s 376 of the Penal Code and reads:

(1) Subject to subsection (2), whoever commits rape shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

(2) Whoever, in order to commit or to facilitate the commission of an offence of rape against any woman -

(a) voluntarily causes hurt to her or to any other person; or

(b) puts her in fear of death or hurt to herself or any other person,

and whoever commits rape by having sexual intercourse with a woman under 14 years of age without her consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.

In Chia Kim Heng Frederick v PP , I clarified the sentencing guidelines for the offence of rape, which can be seen from the above to be a very serious offence. This case concerned a 16 year old victim who was being driven home by the offender in his car after a night out. As the victim was a girlfriend of the offender`s girlfriend`s nephew, the offender was in a position of trust and responsibility in relation to her as he had been entrusted to send her home safely.

The approach to the sentencing principles in regard to such an offence are evident from the following passage in the case:

In our opinion, even the offence of rape under s 376(1), without any aggravating or mitigating factors, in which sexual intercourse with a woman is

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