Public Prosecutor v UI

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 28 August 2007
• Neutral Citation: [2007] SGHC 139
• Docket Number: Criminal Case No 19 of 2007
• Date: 28 August 2007
• Year: 2007
• Published date: 30 August 2007
• Plaintiff Counsel: Peter Koy (Attorney-General's Chambers)
• Citation: [2007] SGHC 139
• Defendant Counsel: S Balamurugan (B M Selvarajan & Co) and Paul (Sim & Wong LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether other aggravating factors existing for rape besides those provided by Legislature,Cases as guidelines for sentencing,Principles,Prosecutorial discretion to proceed with certain charges,Aggravating factors for rape,Whether forgiveness by victim mitigating factor,Sentencing,Section 18 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Distinction between rape simpliciter and aggravated rape,Sections 376(1), 376(2) Penal Code (Cap 224, 1985 Rev Ed),Criminal Procedure and Sentencing

[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]

28 August 2007

Choo Han Teck J:

1 The accused was 55 years old and married with a 20 year old son. The accused did not divorce. In 1990, he became intimate with Madam B who used to be his colleague in a construction business in 1981 or 1982, neither of them appeared to be able to recall the exact year. The accused and Madam B rented a flat and lived together “like husband and wife” and Madam B gave the impression to her parents that they were married. She gave birth to a daughter, C, on 11 September 1992. At that time Madam B had a business providing workers to commercial companies and the accused worked with her. However, this business failed in 1994 and Madam B decided to be unemployed in order to look after C. The accused then had to hold down two jobs to manage. He was a security guard as well as a despatch rider. About a year later, they moved to a new flat and Madam B started working again, this time in a child care centre. She gave birth to their second daughter. The accused then began to change jobs frequently. In 2002, Madam B bought a flat in Jurong West Street 42. She and the accused occupied the master bedroom and their two daughters shared another room. C slept on the top of a double decker bed and her younger sister on the lower deck.

2 In December 2006, C quarrelled with a young cousin and in the course of settling that dispute, C told her maternal aunt that she did not like the love her father gave her, and that led to the disclosure that the accused had molested and had sex with C at various times from 2002 to November 2006. The first rape took place in 2005. The aunt told Madam B and after some deliberation, she reported the accused to the police. The accused was subsequently charged with five charges of molest under s 354 of the Penal Code (Cap 224, 1985 Rev Ed) and five charges of rape under s 376(2) of the Penal Code. He pleaded guilty to three of the rape charges and agreed to have all the other charges taken into consideration for the purposes of sentencing.

3 The accused had no antecedents and appeared to have worked hard to sustain his two families. Defence counsel said in mitigation that the acts were made with no violence, and no threat was used to coerce C. C told the examining doctor that “no physical force was ever used upon her, she was never threatened, and she never put up a struggle”. Counsel stated in mitigation that the accused had a hard life and was under a great deal of stress coping with his jobs and maintaining his two families. He had expressed his remorse through counsel, and has done so personally to C and Madam B. They have forgiven him and still regard him as part of the family. They have written several unsolicited letters expressing their support for him and pleading for leniency to be shown to him. They wrote a joint letter on 14 March 2007. Madam B wrote two individual letters, one to the Public Prosecutor and one to the Registrar of the Supreme Court, and C wrote a personal letter addressed to the court. She wrote to say:

I am writing this letter to appeal for leniency to be granted to my father, UI. He has been a loving and concerned father and I totally forgive him for what he has done as he has apologised for his mistake.

I feel very sorry and sad for him when I saw him in court on 21 June at the Preliminary Inquiry as he had grown so thin and looked frail and weak. I do not wish for him to stay in prison for many many years as he is already old.

Thank you and I hope my appeal will be considered.

4 The range of sentence for this offence is imprisonment for not less than eight years and no more than 20 years, and with caning of not less than 12 strokes. The accused was spared caning because he was more than 50 years old. The DPP addressed the court and asked the court to take into account “several aggravating factors”. He submitted that the offences had taken place over a period of four years, and he cited a number of cases involving s 376(2) which he said might “serve as useful guides” in sentencing the accused. The cases cited involved sentences of 12 to 15 years imprisonment for each of the charges there concerned. The DPP submitted that

… even though the Prosecution has not been able to adduce direct evidence of any post offence trauma suffered by the victim… the court should take into account the emotional and psychological harm that the offences had caused to the victim by the very nature of the offences.

The DPP then asserted that “[in] fact, it would appear that there has been some manifestation of such harm on the victim”. He referred to the report of Dr Cai reporting a change of behaviour in C in the second half of 2005 in that she “cut her hair short and bind her breasts down. In June 2006, she cut her wrist and would not disclose to the mother the reason. In September 2006, she stole money from her classmate”. The DPP, however, conceded that neither Dr Cai, nor C, nor Madam B had attributed the “change of behaviour” to the accused’s conduct. Nonetheless, the DPP asserted that there “is always the possibility that the effects of the harm caused to the victim by the offences manifesting more clearly in the future and recurring to affect the victim when she grows older.” The DPP submitted thus that there was a need for a deterrent sentence.

5 The list of cases cited by the DPP as guides are useful so far as guides go and I have no criticism for any of the cases in particular or to guidelines in general. If there were any inadequacy, it is guidelines on how to use guidelines that are lacking. Guidelines or precedents can never replace the statutory range set by the legislature. If Parliament had set the range between...