Public Prosecutor v Chang Kar Meng [2015] SGHC 165

The accused is a male Malaysian born on 30 January 1988. He pleaded guilty to the following two charges (with the female victim’s name and particulars redacted):

The maximum punishment provided for rape (first charge) is 20 years’ imprisonment, with the offender also liable to fine or to caning. For the offence of robbery with hurt (second charge), the offender shall be punished with imprisonment of not less than five years and not more than 20 years and shall also be punished with caning of not less than 12 strokes.

The accused admitted the following charge and consented that it be taken into consideration for the purpose of sentence:

I sentenced the accused to undergo imprisonment of 12 years and to receive 12 strokes of the cane for the first charge. For the second charge, I imposed the minimum sentence provided by law, imprisonment for 5 years and 12 strokes of the cane. I also ordered both imprisonment terms to run consecutively with effect from 21 August 2013, the date of arrest. The total sentence was therefore 17 years’ imprisonment and 24 strokes of the cane, the maximum number of strokes permissible by law.

The Statement of Facts

The accused admitted all the facts set out in the following Statement of Facts:

The Prosecution’s submissions on sentence

The accused had no previous convictions. The prosecution urged the court to impose on the accused an aggregate sentence of 18 years’ imprisonment and the maximum 24 strokes of the cane. This comprised suggested sentences of 13 years’ imprisonment and 12 strokes of the cane for the first charge (rape) and of 5 years’ imprisonment and 12 strokes of the cane for the second charge (robbery with hurt).

The prosecution cited Public Prosecutor v NF [2006] 4 SLR(R) 849 where the offence of rape was set out in four broad categories with suggested benchmark sentences for each category. It was submitted that the present case fell within Category 1 which concerns rapes which feature no aggravating or mitigating circumstances. The benchmark for this category is 10 years’ imprisonment and not less than 6 strokes of the cane.

The Prosecution also referred to the Court of Appeal’s decision in Public Prosecutor v Mohammed Liton Mohammed Syeed Malik [2008] 1 SLR(R) 601 which states that apart from considering the aggravating and mitigating factors in each case, the court should also be guided by three broad principles. These principles are the level of culpability of the offender, the degree of harm to the victim and the level of risk posed by the offender to society.

The Prosecution submitted that several aggravating factors here justify a sentence which is longer than the benchmark sentence mentioned in [7] above. The accused’s acts in a residential estate would cause public disquiet and shake the collective sense of safety and tranquillity. Further, he committed rape in an aggravated manner. He knocked the victim unconscious and half-dragged her over a distance of some 13 metres. He took photographs of her exposed breasts. When the victim regained consciousness, she was in fear as she was unaware of who the assailant was and what he could be capable of. She suffered injuries from the accused’s rough handling of her body. The accused had unprotected sex with her, thereby exposing her to the risks of an unwanted pregnancy or some disease. After raping her, the accused degraded the victim further by taking more photographs of her. This would allow repeated viewings and add to the victim’s fear that the photographs could be circulated to others. After the rape, the accused tried to make it look like it did not happen. The accused’s actions in themselves also suggested that he poses a risk to society.

The Victim Impact Statement of 8 March 2015 showed that the victim was affected by the attack even though it happened some two years ago. She changed her job so that she could reach home earlier. She is afraid of taking the lift alone when it is dark and needs her husband to meet her at the void deck to escort her up. She is also wary when walking towards her block. She has unpleasant flashbacks of the incident.

Although the accused has pleaded guilty, he was not truly remorseful as he did not surrender himself and was traced by the police more than five months after the offences. In the psychiatric report dated 24 October 2013 by the Institute of Mental Health, he told the psychiatrist that he could not remember if he actually inserted his penis into the victim’s vagina as he ejaculated almost immediately. His guilty plea also had no mitigation value as the evidence was overwhelming against him.

In the same psychiatric report, he was assessed to be suffering from major depression in and around the time of the offences. The psychiatrist opined that while there was no direct causal link between the major depression and the offences, it was clear that the accused was experiencing tremendous psychological distress and his hitherto fragile self-esteem had been fractured after repeated real and imagined onslaughts. The accused also suffers from fetishistic transvestism. He appeared to have some degree of confusion over his sexual identity. There was no direct causal link between the fetishistic transvestism and the offences in the first two charges. However, it might have driven him to procure lingerie illegally as it was embarrassing for him to do so in a more legitimate fashion. The accused was depressed during his remand and suffered intermittent panic attacks. He was however not of unsound mind at the time of the offences and was aware of what he was doing and that what he was doing was wrong.

The Prosecution argued that the accused’s mental condition should not be accorded undue weight as a mitigating factor. It did not deprive him of his judgment and decision-making ability. All his acts during the offences showed presence of mind. He removed his slippers to avoid making noise, he knew how to subdue the victim and to bring her to a secluded area, he tried to cover his tracks by wiping her private parts and carrying her to the staircase landing and he knew he had to throw away the victim’s mobile phone’s SIM card to avoid detection. In any case, the severity of his offences far outweighed the mitigation value of his mental condition.

The Prosecution cited Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (“Shouffee”) in arguing for consecutive imprisonment terms to be imposed. In that case, Menon CJ held that consecutive sentences would not be appropriate if the various offences involve a single invasion of the same legally protected interest. In the present case, the victim’s right to her bodily integrity and her right to property were violated. Indeed, this case fell within the illustration mentioned at [33] of the case cited above:

While there have been precedents involving rape and robbery which resulted in aggregate imprisonment of between 11 and 15 years, the suggested sentence of 18 years’ imprisonment would still be justified on the facts here. The victims in the precedents were restrained but conscious and had a chance to resist and to plead with the rapist. Here, the victim was attacked from behind and rendered unconscious. By the time she regained consciousness, she had been robbed and her body was being violated in the secluded grass patch. The accused attempted to cover up his crime. He also took photographs of the victim. Although he deleted them later, the victim was not aware of that and had to live with the possibility of circulation of the photographs for more than five months. He remained at large for more than five months, adding to the victim’s fear that her assailant could still be in the neighbourhood.

The Prosecution also informed the court that there were 133 rape cases in 2012, 120 in 2013 and 163 in 2014.

The mitigation plea

Counsel for the accused submitted that the appropriate sentence would be a global sentence of around 10 years’ imprisonment coupled with caning. They highlighted the findings in the psychiatric report (see [11] and [12] above) and contended that the accused’s major depression contributed to his inexplicable offending behaviour. They also cited three precedents which they submitted involved offences which were more aggravated in nature than the present but where the sentences for rape ranged from six to 11 years’ imprisonment and included caning of four to eight strokes.

It was accepted that the present case was a Category 1 rape. Counsel for the accused submitted that the benchmark of 10 years’ imprisonment and caning for this category applies to “contested cases”. Here, the accused has pleaded guilty and has no criminal record. He acted on impulse rather than out of premeditation. The penetration by the accused was brief and he ejaculated outside the victim’s vagina. He is not a risk to society as this was a one-off transgression and he is receiving treatment to cure the root of his problems.

Counsel for the accused submitted that the Prosecution’s suggested 18 years’ imprisonment would be a crushing sentence which offended the totality principle. Even the cases cited by the Prosecution showed that more aggravated factual situations attracted global sentences of up to 15 years’ imprisonment and 24 strokes of the cane.

The accused was remorseful and tendered his apologies in court to the victim. In his handwritten note to the court, he expressed his regret and stated that he was not a “cold-blooded animal”. He did not run away immediately after the offences because he really wanted to help and compensate the victim. He did not have the courage to surrender himself and lived in constant fear of being arrested. When his girlfriend asked him for a new mobile phone, he was in financial difficulties and so decided to give her the one that he had robbed the victim of. Thereafter, he was found out by the police very quickly. After his arrest, he had suicidal thoughts. He helped the police during the investigations by providing “lots of evidence” that were detrimental to himself. His family and his fiancée have forgiven him and he greatly appreciated that. He hoped for a chance to be able to take care of his aged mother.

One of the accused’s elder sisters wrote to inform the court that “this is not the type of person that he is and he is ashamed of himself for what he has done”. She hoped that their mother, who missed the accused very much, could be reunited with him after his sentence.

The accused’s girlfriend wrote to ask the court for leniency for the accused. She and the accused were from the same town in Malaysia. They have been in a relationship for 10 years. Although they were not engaged to each other, they were no different from a married couple. They had frequent quarrels but she described the accused as a very responsible, generous, kind-hearted and caring person who also provided her with financial support. She believed that the accused committed the rape “without a sound mind at that time” and has chosen to forgive him. In her view, “he is definitely not a bad guy” and “he is a boyfriend with grade A in my heart”.

The decision of the court

In sentencing the accused, I was in general agreement with the Prosecution that the facts here warranted a deterrent sentence. The accused’s audacity was amply demonstrated by his acts committed against a helpless female within metres of the flats in the block in question.

All his actions spoke of a clear and determined mind despite whatever depression he was in around the time of the incidents. He knew he had to remove his slippers and move silently if he wanted to attack the victim by surprise. He knew how to render her unconscious. He was mindful of being caught by the CCTV installed in the lift when he saw the lift descending to the ground floor. He toyed with her body and took pictures of her with his mobile phone. He even told the psychiatrist that the flash on the mobile phone was turned off. He was clear minded in cleaning up after the rape. He could decide what he wanted to take of her belongings. He had the presence of mind to take more photographs of her after he had moved her to the staircase landing. He remembered to retrieve his slippers before leaving the scene. He knew he had to dispose of the SIM card in the victim’s mobile phone.

In my opinion, to say that the above acts were the influence of a depressed mind would be contrary to logic and common sense. In any case, depression cannot be used as a licence for someone to harm others and certainly not to rob and rape a helpless female returning home after a day at work.

The offences here fell squarely within the principles justifying consecutive imprisonment terms as enunciated in Shouffee. The overall criminal conduct clearly called for a severe sentence to be imposed. The robbery charge already demanded a minimum sentence of five years’ imprisonment and 12 strokes of the cane.

I would have sentenced the accused to 14 years’ imprisonment for the rape charge had it stood alone. However, I decided to reduce it to 12 years on account of his relative youth at the time of the offences in 2013 (he was 25 years old then) and also because he would be receiving consecutive imprisonment terms and the maximum of 24 strokes of the cane allowed by law for both offences.

For the above reasons, I sentenced the accused as stated in [4] above. The accused has appealed to the Court of Appeal against the sentence imposed.