Tay Kim Kuan v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 28 August 2001
• Date: 28 August 2001
• Docket Number: Magistrate's Appeal No 65 of 2001
• Court: High Court (Singapore)

Tay Kim Kuan

Plaintiff

and

Public Prosecutor

Defendant

[2001] SGHC 241

Yong Pung How CJ

Magistrate's Appeal No 65 of 2001

High Court

Criminal Procedure and Sentencing–Sentencing–Carnal connection with underaged girl–Internet sex case–Relevance of English authorities–Difference in social and moral considerations–Whether consent a mitigating factor–Whether sentence manifestly inadequate–Whether need for deterrent sentence–Whether sentence to be enhanced–Section 140 (1) (i) Women's Charter (Cap 353, 1997 Rev Ed)

The appellant pleaded guilty to a charge under s 140 (1) (i) of the Women's Charter (Cap 353, 1997 Rev Ed) of having carnal connection with the complainant, who was at the material time under 16 years of age. The appellant, a 45-year-old married man, had met the complainant on an Internet chatroom and was aware that the complainant was only 15 years old. The appellant was sentenced to nine months' imprisonment, which he appealed against on the ground that it was manifestly excessive. Counsel for the appellant highlighted several English cases dealing with similar cases where lower sentences were imposed. It was also emphasised that the complainant, who had a long history of sexual experience with older men, had consented to the sexual activity.

Held, dismissing the appeal and enhancing the sentence to 12 months' imprisonment and a fine of $10,000:

(1) The reliance on English authorities was wholly misguided for the purposes of the present case. First, English cases, though useful and sometimes highly persuasive, were not technically binding on Singapore courts. Second, and more importantly, the English statutes used in the cases referred to, provided for a much lower maximum sentence for a similar offence as compared to the Singapore legislation. Furthermore, different social and moral considerations required different sentencing guidelines to apply: at [10] and [11].

(2) The consent of the girl was not a mitigating factor as issues of consent were irrelevant to offences under s 140 (1) (i), the policy of which was to afford blanket protection to young girls who were deemed mentally and emotionally unprepared to handle relationships of a sexual nature. The onus was on the male to exercise restraint and discipline, and men who engaged in sexual intercourse with girls under 16 did so at their own peril. In any event, consent could not be a mitigating factor since a lack of consent would have attracted the more serious charge of rape: at [13] and [16].

(3) In view of the easy availability of the Internet and the need to curb the rising trend of such Internet sex cases, a deterrent sentence was warranted in cases such as the present. In such circumstances, the sentence imposed was manifestly inadequate and was enhanced to 12 months' imprisonment and a fine of $10,000: at [18].

R v Asher Lloyd Alston (1995) 16 Cr App R (S) 708 (refd)

R v Lane David Robert [1999] 1 Cr App R (S) 415 (refd)

R v Taylor [1977] 1 WLR 612; [1977] 3 All ER 527 (refd)

Penal Code (Cap 224, 1985 Rev Ed)

Women's Charter (Cap 353, 1997 Rev Ed) s 140 (1) (i) (consd)

Sexual Offences Act 1956 (c 69) (UK)

Jimmy Yim SC and Suresh Divyanathan (Drew & Napier) for the appellant

Anandan Bala and Thong Chee Kun (Deputy Public Prosecutors) for the respondent.

Yong Pung How CJ

1 This was the first case to reach the High Court in a recent series involving the engaging by adult men in sexual intercourse with young, teenage girls whom they had met over the Internet. The appellant in the present case was charged under s 140 (1) (i)of the Women's Charter (Cap 353, 1997 Rev Ed) with one count of having carnal connection with the complainant who was at the material time under 16 years of age. He pleaded guilty to the charge, and after hearing submissions on sentence, the district judge sentenced him to nine months' imprisonment. At the end of the hearing before me, I dismissed his appeal against sentence and ordered that the sentence be enhanced to a term of 12 months' imprisonment instead. I also slapped the appellant with the maximum fine of $10,000 to demonstrate the severity and abhorrence with which the court viewed his actions. I now give my reasons.

Brief facts

2 The salient facts of this case were not disputed and were in fact admitted to by the appellant in the court below without qualification. They were as follows. The appellant was a 45-year-old salaried director of a construction cost consultancy company. Sometime in April or May 2000, he met the complainant, then a 15-year-old secondary school student, online via the Internet relay chat (“IRC”) function in a chatroom called “Singapore 30+”. Although the chatroom was principally intended for users in their thirties, the complainant told the appellant specifically that she was only 15 years old. Thereafter, the appellant and the complainant kept in touch via both the IRC and the telephone.

3 Subsequently, on an afternoon in June 2000, the appellant picked the complainant up from the void deck of the block of flats in which she lived and drove her to the car park of the old Changi Hospital at Halton Road whereat they engaged in sexual intercourse. He then sent the complainant home.

4 Thereafter, the appellant continued to keep in touch with the complainant, although they did not meet again. On 8 November 2000, the complainant invited the appellant over to her place, but before he could make it there, he was arrested by a team of police officers at the car park.

The decision below

5 In sentencing the appellant to nine months' imprisonment, the district judge took into account his plea of guilt, which undoubtedly saved the complainant from the trauma and embarrassment of having to testify in court. While he was further mindful of the...