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Grounds publishedDecided 1 Dec 2022
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General Division of the High Court

Public Prosecutor v GED and other appeals

[2022] SGHC 301Case no. General Division of the High Court — Magistrate’s Appeal No 9280 of 2021 and Magistrate’s Appeal No 9008 of 2022 Sundaresh Menon CJ, Steven Chong JCA and Vincent Hoong J 21 July 2022

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  1. Introduction

  2. [1] Introduced by s 120 of the Criminal Law Reform Act 2019 (Act 15 of 2019) with effect from 1 January 2020, s 377BE(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) specifically criminalises – for the first time in our law – the distribution of intimate images or recordings of another person without that person’s consent. The creation of this specific, standalone offence had been recommended by the Penal Code Review Committee in its August 2018 report, which had noted that a “stronger and more consistent response” was needed to address this social ill as the reliance on a “patchwork of existing provisions” had created the risk of inconsistent legal responses to similar cases. This “patchwork” comprised, for example, s 292(a) of the Penal Code, which criminalised the distribution of obscene books; s 383 of the Penal Code, which provided for the offence of extortion; and s 503 of the Penal Code, which provided for the offence of criminal intimidation (Penal Code Review Committee, Report (August 2018) at pp 81–85). Recognising that the distribution of intimate images “ha[s] the potential to cause great harm” to victims, particularly in cases where such distribution is facilitated by modern technology, Parliament enacted s 377BE alongside a host of other specific offence-creating provisions with the intention of “provid[ing] proper framing for such offences and adequate punishments” (Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (K Shanmugam, Minister for Home Affairs)).

  3. [2] In Wong Tian Jun De Beers v Public Prosecutor [2021] SGHC 273 (“Wong Tian Jun De Beers”) at [56] and [58], the General Division of the High Court stressed the importance of utilising the full range of sentences prescribed by s 506 of the Penal Code for the offence of criminal intimidation. The court noted that these observations would apply equally to s 377BE of the Penal Code, for which a sentencing framework should be considered more fully when the opportunity arose in an appropriate case. The Magistrate’s Appeals presently before this court – HC/MA 9280/2021 (“MA 9280”) and HC/MA 9008/2022/01 and HC/MA 9008/2022/02 (“MA 9008”) – provide us with such an opportunity. At present, there is a dearth of reported and reasoned decisions on sentencing for such offences, and the prevailing sentences have tended to be clustered around the lower end of the statutorily prescribed range. We therefore think it important to provide some guidance as to the appropriate sentencing approach and framework that should be applied for the offence under s 377BE(1) (and punishable under s 377BE(3)), which we refer to as “the Actual Distribution Offence”. These appeals also usefully illustrate the variety of circumstances in which the Actual Distribution Offence may be committed, and which the sentencing framework to be adopted must be capable of taking into account.

  4. [3] We begin by setting out the relevant background in respect of MA 9280 and MA 9008. We will then turn to consider the appropriate sentencing framework for the Actual Distribution Offence, before giving our decision on the various issues raised in each appeal.

  5. Background

  6. MA 9280

  7. Facts

  8. [4] The offender in MA 9280 (“GED”) was just under 26 years old at the material time. He was married to the victim (“V1”) but had, by the time of the offences, moved out of their matrimonial home.

  9. [5] On 6 February 2020, GED went to V1’s home (formerly their matrimonial home) and, with V1’s permission, used the toilet. V1 was using her mobile phone in the master bedroom at the time. When GED exited the toilet, he snatched V1’s mobile phone from her without her consent and ran out of the house. He did this because he suspected that V1 was having an extramarital affair, and he wanted to search for pictures and messages that might confirm his suspicions. Upon accessing V1’s mobile phone, he found several intimate images and video recordings of her, and he used his own mobile phone to take photographs and video recordings of these images and videos. He also took images of text conversations between V1 and her supervisor at work (“the Supervisor”). Thereafter, he went back to V1’s home to return her mobile phone to her, but did not tell her that he had taken copies of the intimate images and recordings. The intimate images and recordings in GED’s possession were as follows:

  10. (a) a four-second recording of V1’s bare breasts, with her face partially visible;

  11. (b) a 16-second recording of V1 fully naked, with her bare breasts and vagina fully visible; and

  12. (c) an image of V1 and the Supervisor engaging in sexual intercourse. V1 was fully naked and her breasts were visible, and the faces of both V1 and the Supervisor were fully visible (“the Image”).

  13. [6] On 12 February 2020, at around 8.00am, GED posted the Image on his Facebook page under the “Public” setting, together with the Supervisor’s name and occupation. He described the Supervisor as a homewrecker and warned people to be aware of him. He also included other images in the post, including photographs of the Supervisor and the images of text conversations between V1 and the Supervisor. We refer to this as “the First Facebook Post”.

  14. [7] After the First Facebook Post was published, both V1 and the Supervisor were separately told about it by their friends. The First Facebook Post also went “viral”. When GED accessed his Facebook account at around 4.00pm that day, it had attracted about 1,000 comments and 3,000 “likes”, and it had been shared about 2,000 times by other Facebook users. Upon seeing this, GED decided to remove the First Facebook Post as he had not expected it to receive so much attention. However, because he wanted to draw the attention of the public to what the Supervisor had done, GED decided to publish a new post on his Facebook account containing an edited version of the Image, in which V1’s face was blurred but her breasts and the Supervisor’s face were fully visible (“the Second Facebook Post”). The Second Facebook Post was removed one day later.

  15. The proceedings and decision below

  16. [8] On 21 September 2021, GED pleaded guilty to two charges:

  17. (a) one charge of theft in dwelling under s 380 of the Penal Code, by taking V1’s mobile phone without her permission on 6 February 2020 (DAC-904515-2021) (“the Theft Offence”); and

  18. (b) one charge of distributing an intimate image under s 377BE(1) and punishable under s 377BE(3) of the Penal Code, by publishing the First Facebook Post (containing the Image with V1’s face visible) on 12 February 2020 (DAC-904516-2021).

  19. [9] GED consented to two other charges being taken into consideration for the purposes of sentencing:

  20. (a) one charge of possession of intimate images and recordings under s 377BD(1)(b) and punishable under s 377BD(2) of the Penal Code, by taking pictures and videos of V1’s intimate images and videos without her permission on 6 February 2020; and

  21. (b) one charge of distributing an intimate image under s 377BE(1) and punishable under s 377BE(3) of the Penal Code, by publishing the Second Facebook Post (containing the edited Image with V1’s face blurred) later on 12 February 2020.

  22. [10] On 3 December 2021, the District Judge (“the DJ”) sentenced GED to 12 weeks’ imprisonment for his Actual Distribution Offence and one week’s imprisonment for the Theft Offence, to run consecutively, such that the aggregate sentence was 13 weeks’ imprisonment: see Public Prosecutor v GED [2022] SGDC 6 (“the 9280 GD”).

  23. [11] With regard to the Actual Distribution Offence, the DJ observed that general deterrence had to feature as a dominant sentencing consideration, given the context in which s 377BE was enacted. Further, a retributive element could also be relevant where serious harm was caused to the victim (see the 9280 GD at [32]). The DJ accepted that the offence-specific and offender-specific factors that the Prosecution had proposed in Public Prosecutor v Shahrul Nizam Bin Kharuddin [2021] SGDC 67 (“Shahrul Nizam”) were relevant to sentencing, alongside several other sentencing factors. These factors “had to be weighed and balanced to arrive at a properly calibrated sentence on the facts of each case” (see the 9280 GD at [33]–[35]). The DJ noted that more harm was caused in the present case than in Shahrul Nizam because the Image was distributed to a large number of users on Facebook, but held that it was not so much more egregious that it warranted a sentence of 18 months’ imprisonment, which the Prosecution sought and which was more than seven times the sentence of ten weeks’ imprisonment imposed in Shahrul Nizam. The DJ then considered five unreported cases where offenders had been sentenced under s 377BE(1), and where the imprisonment terms had ranged from five weeks to 27 weeks. Although he accepted that unreported cases had “little or no precedential value”, he found them helpful for “comparative purposes” in “deriving a broad sensing of what an appropriate sentencing range in the present case might be”, in the absence of any reported decisions on s 377BE(1) or any authoritative sentencing guidelines. The DJ concluded in the circumstances that the present case was not so much more egregious than these five cases as to warrant the much higher sentence sought by the Prosecution, which seemed manifestly excessive (see the 9280 GD at [38]–[46]).

  24. [12] The DJ went on to consider the relevant sentencing factors, beginning with four aspects of this case which increased GED’s culpability and the potential harm to V1: (a) that the Image itself was highly intrusive; (b) that V1’s face was fully visible in the Image and she was easily identifiable; (c) that the Image was distributed to a large number of people; and (d) that GED re-posted the Image with V1’s face blurred in the Second Facebook Post, which was only taken down a day later. However, the DJ rejected the Prosecution’s submission that the court should also have regard to the harm caused to the Supervisor, noting that there was no charge under s 377BE(1) against GED in relation to the Supervisor. The DJ also found that the Prosecution’s submission that GED had acted out of malice, and had intended to cause maximum humiliation to V1, was not borne out by the evidence (see the 9280 GD at [48]–[50]).

  25. [13] In GED’s favour, the DJ accepted that he was a person who was otherwise of good character. He had no antecedents and his offences were a one-off aberration committed under very acute circumstances when he was in despair over V1’s infidelity. His offences therefore did not call for specific deterrence. The DJ also took into account: (a) GED’s early plea of guilt; (b) the fact that his motivation in posting the Image was not to spite V1 or extort any concession from her, and he did not seek to cause her maximum humiliation; (c) that what was distributed was an image and not a video recording; and (iv) that the present offence did not involve a breach of trust by GED (see the 9280 GD at [51]).

  26. [14] Weighing the various offence- and offender-specific factors, and comparing the sentences imposed in past cases, the DJ concluded that an appropriate sentence for GED’s Actual Distribution Offence in this case was 12 weeks’ imprisonment (see the 9280 GD at [54]). On 8 December 2021, the Prosecution appealed against this sentence. No cross-appeal was filed by GED.

  27. MA 9008

  28. Facts

  29. [15] The offender in MA 9008 (“GEH”) was 38 years old at the material time. He and his wife (“B”) were undergoing divorce proceedings at the time of the offence. GEH suspected that B was having an extramarital affair.

  30. [16] On 7 February 2020 at approximately 10.00pm, GEH and three other persons (whom we refer to as “C”, “D” and “E”) went to B’s home and followed her when she left her home and boarded a car driven by the victim (“V2”). Suspecting that B and V2 were in a relationship, GEH, C, D and E followed V2’s car in their respective vehicles. GEH and E then coordinated a driving manoeuvre to trap V2’s car. They then alighted from their vehicles to confront V2. V2 did not initially want to step out of his car but he eventually complied after GEH kicked the side mirror of his car and shouted at him. The parties then proceeded to a grass patch by the side of the road.

  31. [17] There, GEH and E (later joined by D) attacked V2 for about half an hour, including by punching and kicking his face and body numerous times while E pinned V2 to the ground in a chokehold. As a result of the attack, V2 suffered the following injuries: a facial contusion, a right floor of orbit fracture, a right maxillary hemoantrum, a right periorbital hematoma, a right clavicle fracture and a minor head injury.

  32. [18] While the attack was ongoing, GEH, D and E decided to humiliate V2 further by pulling down his pants and underwear to expose his genitals, hurting him further when he attempted to resist. GEH then used V2’s mobile phone without his consent to take a 55-second-long video recording both V2’s injured face and exposed penis at length while insulting him verbally (“the Video”). At this point, on D’s suggestion, GEH sent the Video to more than 500 of V2’s contacts by WhatsApp. The recipients included V2’s colleagues, friends, neighbours and sporting teammates. This was designed to humiliate him. GEH also sent a copy of the Video to E. There is also video evidence, which GEH does not challenge, of GEH sending a follow-up voice message using V2’s phone stating “Please forward to all people! Right? Forward to all everyone!” (“the Follow-up Message”).

  33. [19] The police received a call alerting them to the situation at about 11.21pm that night, and they subsequently arrived on the scene. Even upon being told by the police officers to calm down and to stop behaving in a rowdy fashion, GEH, D and E continued to conduct themselves in a disorderly manner by shouting derogatory insults at B and singing “happy birthday” loudly to mock her, while standing along a public road. They only stopped shouting at B when they were placed under arrest.

  34. The proceedings and decision below

  35. [20] On 18 October 2021, GEH pleaded guilty to three charges:

  36. (a) one charge of voluntarily causing grievous hurt with common intention under s 325 read with s 34 of the Penal Code, by punching and kicking V2’s face and body multiple times, together with D and E (DAC-913702-2020) (“the VCGH Offence”);

  37. (b) one charge of distributing an intimate recording under s 377BE(1) and punishable under s 377BE(3) of the Penal Code, by sending the Video of V2 to E and more than 500 of V2’s contacts by WhatsApp (DAC-913704-2020); and

  38. [21] GEH consented to three other charges being taken into consideration for the purposes of sentencing:

  39. (a) one charge of criminal intimidation with common intention under s 506 read with s 34 of the Penal Code, by threatening to circulate videos online of V2 being beaten and stripped unless he admitted that he was a party to an extramarital affair;

  40. (b) one charge of insulting B’s modesty under s 377BA of the Penal Code, by shouting vulgarities relating to B’s genitals; and

  41. (c) one charge of insulting modesty with common intention under s 377BA read with s 34 of the Penal Code, by taking videos of V2’s exposed penis without his consent (together with D and E).

  42. [23] In relation to GEH’s Actual Distribution Offence, the PDJ reasoned as follows:

  43. (a) As both parties agreed that the offence-specific and offender-specific factors set out in Shahrul Nizam were a useful guide, the PDJ proceeded on this basis (see the 9008 GD at [98]–[99]). The PDJ rejected GEH’s submission that s 377BE was enacted mainly to tackle “revenge pornography” as this was “nothing more than a convenient label pertaining to a certain fact situation and [did] not necessarily cover the whole spectrum of offences contemplated under [s] 377BE(1)”. The PDJ also rejected GEH’s submission that a video of the victim engaged in sexual activity fully nude would always rank worse, in terms of harm, than a video of the victim partially nude as in the present case. Having regard to the offence-specific factors, the PDJ identified 21 months’ imprisonment as the starting point (see the 9008 GD at [106]–[109]).

  44. (b) As for the offender-specific factors, the PDJ regarded the two related charges against GEH that were taken into consideration as an aggravating factor. However, the PDJ viewed GEH’s plea of guilt, letter of apology and offer of compensation to V2 as mitigating factors (see the 9008 GD at [110]–[111]).

  45. (c) The PDJ rejected the Prosecution’s submission that caning should be imposed for GEH’s Actual Distribution Offence on the basis that the facts disclosed an offence under s 354A of the Penal Code (which attracted mandatory caning). The PDJ noted that GEH had not been charged with any offence under s 354A. In any event, as four strokes of the cane had been imposed for GEH’s VCGH Offence (as to which see [24] below), the PDJ did not see the need to impose a further sentence of caning for GEH’s Actual Distribution Offence (see the 9008 GD at [113]).

  46. [24] For GEH’s VCGH Offence, the PDJ applied the two-step sentencing framework set out by the Court of Appeal in Public Prosecutor v BDB [2018] 1 SLR 127 (“BDB” and “the BDB Framework”). First, having regard to the seriousness of the injuries suffered by V2 and the sentencing precedents, the PDJ identified 15 months’ imprisonment as the indicative starting point (see the 9008 GD at [74]–[90]). After taking into account the relevant aggravating and mitigating factors, the PDJ held that an uplift of three months’ imprisonment was appropriate (see the 9008 GD at [91]–[94]). The PDJ did not think there were any exceptional circumstances warranting a departure from the starting point of caning for GEH’s VCGH Offence and held that four strokes of the cane would be appropriate (see the 9008 GD at [97]).

  47. [25] Finally, for GEH’s MOA Offence, the PDJ noted that it had been held in Public Prosecutor v Gao Zhengkun [2019] SGDC 241 (“Gao Zhengkun”) that the usual sentencing tariff for such offences was a fine. The PDJ was of the view that there was no reason to depart from the starting point of a fine, and that a fine of $1,500 (in default, six days’ imprisonment) was appropriate in the circumstances (see the 9008 GD at [114]–[117]).

  48. [26] On 13 and 14 January 2022 respectively, GEH and the Prosecution filed cross-appeals against the PDJ’s decision. GEH’s appeal relates to the sentences imposed for his Actual Distribution Offence, VCGH Offence and MOA Offence, while the Prosecution’s appeal relates only to GEH’s Actual Distribution Offence and VCGH Offence.

  49. Subsequent events leading up to the hearing of these appeals

  50. [27] On 9 March 2022, the Prosecution requested that MA 9008 be heard together with MA 9280 as similar issues would be canvassed in both Magistrate’s Appeals. In view of the overlap in the issues to be decided and the novel legal questions raised, the court directed that MA 9280 and MA 9008 be heard together before a three-Judge coram pursuant to s 386(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“the CPC”). A Young Amicus Curiae (“YAC”), Mr Victor Yao Lida, was also appointed to address us on the appropriate sentencing framework.

  51. The parties’ cases on appeal

  52. MA 9280

  53. [28] The Prosecution submits that the sentence of 12 weeks’ imprisonment imposed on GED for his Actual Distribution Offence is manifestly inadequate. It contends, as it did before the DJ, that a sentence of at least 18 months’ imprisonment should have been meted out for this offence. The Prosecution places emphasis on the high degree of humiliation, alarm or distress suffered by V1, as well as GED’s malice in seeking to cause maximum humiliation to V1. The Prosecution also highlights, as aggravating factors, the fact that GED committed related offences which were part of the same course of conduct, and GED’s lack of remorse after the First Facebook Post went “viral”.

  54. [29] GED, on the other hand, submits that the DJ’s decision should be upheld. GED argues that the DJ correctly rejected the Prosecution’s submission that he had acted out of malice and had intended to cause maximum humiliation to V1, and correctly found that GED was a person of good character and that the offence was a one-off aberration, committed under acutely distressing circumstances when he was in despair at V1’s infidelity. Further, GED submits that the sentencing principles of retribution and deterrence are significantly diminished when the present case is approached holistically, and that V1’s “morally revolting conduct” should be “condemned”. Finally, GED submits that the DJ was correct to reject the Prosecution’s submission that the harm to the Supervisor was an aggravating factor in this case.

  55. MA 9008

  56. The Prosecution’s case

  57. [30] In GEH’s case, the Prosecution contends that the sentences of 18 months’ imprisonment for his Actual Distribution Offence, and 18 months’ imprisonment and four strokes of the cane for his VCGH Offence, are manifestly inadequate.

  58. [31] For GEH’s Actual Distribution Offence, the Prosecution submits that a sentence of at least 36 months’ imprisonment and three strokes of the cane should have been imposed. The Prosecution contends that severe harm was caused to V2, given the high degree of humiliation, alarm and distress caused; the tangible financial loss suffered; and the fact that he was in a highly vulnerable position when the offence was committed against him. With regard to GEH’s culpability, the Prosecution highlights his motivation of revenge in committing the offence and the fact that his offending involved a direct, lengthy and forcible confrontation.

  59. [32] For GEH’s VCGH Offence, the Prosecution submits that the PDJ erred in applying the BDB Framework in two respects. First, the PDJ erred in calibrating the indicative starting point of 15 months’ imprisonment, by inaccurately holding that the injuries in the present case were less serious than those in the precedents referred to. Second, the PDJ failed to give due weight to the aggravating factor that the offence was committed in a public place, for which an uplift of at least six months was appropriate. The Prosecution therefore submits that a sentence of at least two years and six months’ imprisonment (together with four strokes of the cane) should be imposed for this offence.

  60. [33] Taking into account the totality principle, the Prosecution argues (as it did before the PDJ) that an aggregate sentence of at least four years and six months’ imprisonment and six strokes of the cane would be appropriate.

  61. GEH’s case

  62. [34] GEH, on the other hand, argues that the sentences imposed on him by the PDJ are manifestly excessive based on past precedents. He contends that the PDJ did not place enough weight on all the mitigating factors in his case, such as his letter of apology to V2; his attempt to pay V2 compensation; his decision to plead guilty at the first instance and not to question the veracity of V2’s victim impact statement; and the fact that he is a first-time offender who co-operated fully with the authorities. GEH also urges the court to take cognisance of the extent to which his mental and emotional state was affected when the offence was committed. In this regard, GEH highlights that he was enraged and shattered by his discovery of evidence of V2 and B’s affair (such as B’s lingerie found in V2’s car and the intimate exchanges between B and V2 in V2’s mobile phone) and by their continued denial of the affair. In the circumstances, GEH submits that the aggregate sentence should be nine months’ imprisonment with a $500 fine (in default, one day’s imprisonment), comprising the following individual sentences: (a) six months’ imprisonment (and no caning) for his VCGH Offence; (b) three months’ imprisonment for his Actual Distribution Offence; and (c) a fine of $500 (in default, one day’s imprisonment) for his MOA Offence.

  63. Issues to be determined

  64. [35] MA 9280 and MA 9008 raise two broad issues for our determination:

  65. (a) First, what is the appropriate sentencing framework for the Actual Distribution Offence under s 377BE(1) and punishable under s 377BE(3) of the Penal Code?

  66. (b) Second, applying that framework, what are the appropriate sentences for GED in MA 9280 and GEH in MA 9008? It should be noted that in MA 9008, the appropriate sentences for GEH’s VCGH Offence and MOA Offence will also need to be considered.

  67. [36] These issues will be addressed in turn.

  68. The appropriate sentencing framework for the Actual Distribution Offence

  69. [37] We begin by setting out the text of s 377BE of the Penal Code in full:

  70. [38] As we have already stated, we consider it appropriate to establish a sentencing framework for the Actual Distribution Offence. This is a relatively new offence, s 377BE having come into force only on 1 January 2020. A sentencing framework would assist in providing structure and guidance for future sentencing courts and assist in the “quest for broad parity and consistency in sentencing” (Abdul Mutalib bin Aziman v Public Prosecutor and other appeals [2021] 4 SLR 1220 at [40]), while also helping to ensure that the full range of sentences prescribed in s 377BE(3) of the Penal Code is adequately utilised.

  71. [39] Before we turn to consider the individual components of this sentencing framework, we make two preliminary points regarding the scope and overall form of this framework.

  72. Preliminary points

  73. Scope of the sentencing framework

  74. [40] One of the questions posed to the YAC was whether the sentencing framework developed for the Actual Distribution Offence should also apply to the offence of threatening to distribute intimate images or recordings under s 377BE(2) and punishable under s 377BE(3) of the Penal Code (which we refer to as “the Threatened Distribution Offence”). The YAC suggested that the same sentencing approach and matrix should be adopted for both the Actual Distribution Offence and the Threatened Distribution Offence. This was also the view of the Prosecution and GED.

  75. [41] As we explained to counsel at the hearing, we disagree. We recognise that s 377BE(3) prescribes the same sentencing range for both the Actual Distribution Offence and the Threatened Distribution Offence, and that – depending on the precise facts and circumstances – the harm and culpability involved in a case of threatened distribution may be similar to, or even greater than, in a case of actual distribution. In other words, neither offence is inherently or invariably more or less serious than the other. In that regard, we do not agree with the District Judge’s observations at [35] of Shahrul Nizam that cases involving a threat to distribute, and where there is no actual distribution, would generally fall into the slight harm-low culpability category. That said, we do not think it would be appropriate for us to lay down a sentencing framework for the Threatened Distribution Offence in the present case, for reasons of practicality. It would also generally be undesirable as a matter of principle for us to do this. Taking the latter point first, it is not the role of the court – being a judicial rather than legislative or quasi-legislative body – to lay down sentencing frameworks for offences that are not before it. Both MA 9280 and MA 9008 involve the Actual Distribution Offence, and no question of sentencing in relation to the Threatened Distribution Offence arises in either appeal. More importantly in this case, as a matter of practicality, we do not think that these appeals provide a suitable forum for making any determination as to the sentencing framework that should apply to the Threatened Distribution Offence, because any submissions on this point would be hypothetical and neither relevant to nor necessary for the disposal of the cases at hand. The possible factual matrices in which the Threatened Distribution Offence may be committed are highly varied. Without the facts of an actual case involving the Threatened Distribution Offence before us, it would be difficult to anticipate how the various considerations might or should feature in the court’s approach to sentencing, or what significance should be accorded to those considerations, in that context.

  76. [42] We therefore leave the sentencing framework for the Threatened Distribution Offence to be decided in an appropriate future case where it arises squarely for determination. In so far as the sentencing framework and considerations that we will set out in respect of the Actual Distribution Offence are thought to be relevant in a future case involving the Threatened Distribution Offence, it will be open to the parties to make the necessary submissions to the court dealing with that issue as to whether and how the framework we lay down here could be modified and applied.

  77. [43] For similar reasons, we reject the suggestion made by counsel for GED, Mr Wee Hong Shern (“Mr Wee”), that for the purposes of determining the appropriate sentencing framework for the Actual Distribution Offence in s 377BE(1) and punishable under s 377BE(3), a conceptual distinction ought to be drawn between cases involving victims who are 14 years of age or above, and cases involving victims below the age of 14. Mr Wee submitted that the sentencing framework laid down by this court should provide for a significantly lower starting point for offences involving victims above 14 years of age; that an imprisonment term “is only a certainty when the victim is below 14 years old”; and that the statutory maximum imprisonment term of five years “would realistically only be met in egregious cases involving victims below the age of 14”. This suggestion fails to take account of the fact that the commission of either the Actual Distribution Offence or the Threatened Distribution Offence against a victim who is below 14 years of age has its own distinct sentencing range under s 377BE(4) of the Penal Code. Under s 377BE(4), although the same maximum imprisonment term of five years applies, there is a mandatory requirement of a term of imprisonment, which may also be accompanied by a sentence of a fine or caning. The fact that the victim of an Actual Distribution Offence is 14 years of age or above should not constrain the courts’ utilisation of the full sentencing range prescribed by s 377BE(3) for that offence, and nor should the mere fact that s 377BE(4) prescribes the same maximum imprisonment term as s 377BE(3) for a presumptively more aggravated category of offences (see, in this connection, Wong Tian Jun De Beers at [58]). The sentencing framework for offences under s 377BE(4), as with the Threatened Distribution Offence, should be reserved for consideration and development in an appropriate future case. In the present appeals, no offence under s 377BE(4) is before the court since the victims in both cases were above 14 years of age.

  78. Overall form of the sentencing framework

  79. [44] As for the overall form of the sentencing framework for the Actual Distribution Offence, it is largely common ground between the YAC and the parties that this framework should be modelled on the two-stage, five-step sentencing framework set out in Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609 (“Logachev”). We agree. In our judgment, such a framework would best accommodate the wide variety of the circumstances in which the Actual Distribution Offence can be committed and also of the consequences of such offences. Such a framework would also facilitate the qualitative and contextual analysis of both harm and culpability that is required to assess the gravity of these offences, and would provide a structured framework for determining the appropriate sentence in each case.

  80. [45] With these preliminary points in mind, we now turn to consider the individual components of the sentencing framework to be laid down for the Actual Distribution Offence, which correspond to the five steps of the framework adopted in Logachev.

  81. Step 1: Offence-specific factors

  82. [46] At the first step, the court will have regard to the relevant offence-specific factors and identify: (a) the level of harm caused by the offence, and (b) the level of the offender’s culpability (see Logachev at [76]). Various non-exhaustive lists of offence-specific factors going towards harm and culpability have been suggested by the YAC and by the parties. These are largely uncontroversial, but – as we indicated to counsel during the hearing – we prefer a more structured approach to harm and culpability. We deal with the offence-specific factors going towards harm and culpability in turn.

  83. Factors going towards harm

  84. [47] As alluded to at [1] above, the harm caused to victims is a critical element of the mischief targeted by the Actual Distribution Offence. The central focus of the inquiry into harm is on the “humiliation, alarm or distress” caused to the victim by the distribution of the intimate image or recording (see s 377BE(1)(c) of the Penal Code). In our judgment, this inquiry can be helpfully structured with reference to four broad categories: (a) objective aspects of harm; (b) subjective aspects of harm; (c) other related harm; and (d) other factors relevant to harm. Of these, the first two categories – namely, the objective and subjective aspects of harm – will usually be the dominant considerations.

  85. [48] Before we elaborate on each of these categories, we deal with the submission made by counsel for GEH, Mr Luke Netto (“Mr Netto”), that the nature of intimate images and recordings can be placed on a spectrum corresponding to different levels of harm, as set out below:

  86. (1) Objective aspects of harm

  87. [50] We deal first with the objective aspects of harm. Such objective aspects would include, but would not be limited to, the matters set out below.

  88. [51] The first objective aspect of harm is the nature of the image or recording. This entails a consideration of: (a) what parts of the victim’s body were shown, and how exposed the body parts were (whether bare or covered); (b) what acts were depicted; and (c) the medium used (whether a still image or a video recording). With regard to (a) and (b), the more intrusive and the more overtly sexual the nature of the acts (and/or the victim’s body parts) shown in the intimate image or recording, the higher the degree of objective harm that will generally be caused, all else being equal. For example, more harm is likely to be caused by a recording of the victim engaged in penetrative sexual intercourse while fully nude and with his or her genitalia exposed. As for (c), in capturing movement and sound, a video recording is, by its nature, capable of containing more information that is intrusive and distressing compared to a still image. But no generalisation can be made as to the relative harmfulness of the two media; instead, the harmfulness of each image or recording must be individually evaluated based on its content.

  89. [52] The second objective aspect of harm is the degree of identifiability of the victim. The more identifiable the victim, the higher the degree of harm that will generally be caused. Ascertaining the degree of identifiability would require a consideration of whether the victim’s face or any other identifying features are shown in the image or recording, and whether the victim’s name, online profiles, or other forms of identification are disclosed in (or together with) the image or recording.

  90. [53] The third objective aspect of harm is the nature and extent of the distribution. This will require the court to consider: (a) how widely the intimate image or recording was distributed; (b) whether the image or recording was distributed to certain recipients known to the victim; and (c) how long the image or recording was left accessible for. With regard to (a) and (b), the precise impact of the number and identity of recipients on the harm caused will depend on the circumstances of each case. The more widely the image or recording is distributed, the more harm is generally likely to be caused. However, the distribution of the image or recording to specific recipients known to the victim would also, in most cases, aggravate the harm caused to the victim. For example, targeted distribution to the victim’s family, friends and colleagues may cause just as much (if not more) harm to the victim than distribution to a large number of strangers on a pornography website. With regard to (c), all other things being equal, an image or recording that is made available for a longer period can be viewed more times or by more people, which would generally aggravate the harm caused to the victim.

  91. [54] We add that it is the nature and extent of the actual or eventual distribution of the intimate image or recording that is relevant to the analysis of harm, rather than the manner and extent of distribution that the offender may have originally intended or known was likely to result. For example, if the image or recording is widely shared and goes “viral” for reasons beyond the offender’s direct control, this would generally cause far greater harm to the victim which should be taken into account, even if this was not anticipated or intended by the offender. This follows from the fact that the offender’s initial actions have made the wider circulation possible, even if that wider circulation was not specifically intended.

  92. (2) Subjective aspects of harm

  93. [56] As for the subjective aspects of harm, these may be either disclosed by the victim or inferred from the circumstances, and may in appropriate cases need to be corroborated by evidence (including expert evidence). The subjective aspects of harm include any particular aspects of the victim’s suffering that would shed light on the degree of humiliation, alarm or distress subjectively experienced by the victim as a result of the offence, including any impact on the victim’s mental health (such as the development of conditions like depression or post-traumatic stress disorder). In this regard, evidence in the form of victim impact statements and medical reports will be useful.

  94. [57] Mr Wee rightly acknowledged, on GED’s behalf, the importance of taking into consideration how the particular victim may have been subjectively affected by the commission of the offence. However, he went on to suggest that the degree of harm inferred from the objective indicia outlined above should be calibrated downwards where no evidence is adduced of how the specific victim was subjectively affected. We reject this suggestion. In our judgment, the typical harms caused by the Actual Distribution Offence are objectively appreciable, and evidence of the subjective aspects of harm suffered by an individual victim should generally only go towards enhancing the degree of harm that is objectively inferred from the circumstances of a particular case.

  95. [58] The need to take into consideration the circumstances and sensitivity of the particular victim may be usefully illustrated by the facts of the English case of R v Bostan (Amar) [2018] EWCA Crim 494 (“Bostan”), where the offender sent a single still image of the victim, who had just turned 18 years of age, to her mother. In the image, the victim was naked above the waist only and she was not doing anything overtly sexual. She had allowed the offender to have the photograph as a private matter in the context of their romantic relationship. The appellant knew that the victim was from a conservative family and that her mother would be shocked and ashamed that her daughter had allowed the offender to have such a photograph of her (see Bostan at [14]–[15]). In such a case, the objective considerations – such as the fact that the nature of the acts depicted in the photograph were not especially intrusive or sexual, the fact that only a single still image was distributed, and the fact that the extent of distribution was limited to the victim’s mother – would have to be considered alongside the greater subjective harm that may have been suffered by this particular victim owing to her family background and circumstances, where there is sufficient evidence of these subjective aspects of harm.

  96. [59] In cases involving the Actual Distribution Offence, other related harm of at least two forms may be suffered by the victim. The first is consequential harm other than the emotional and psychological consequences of the distribution of the intimate image or recording, including loss of employment and other economic consequences (such as where the victim expends sums of money in an attempt to take down the intimate image or recording, as contemplated by the UK Law Commission in Intimate Image Abuse, Consultation Paper 253 (26 February 2021) at paras 5.47–5.50). These consequential harms should be taken into account in assessing harm in so far as a sufficient causal link can be established between the distribution and the consequential harm suffered.

  97. (4) Other factors relevant to harm

  98. [61] Beyond considering the three aspects of harm set out above, the court ought also to consider any other factors that further aggravate those aspects of harm. This may include considerations such as the vulnerability of the victim, which may arise if the victim is young, has any pre-existing mental health conditions, or has a relationship with the offender that renders the victim susceptible to being manipulated or taken advantage of.

  99. Factors going towards culpability

  100. [62] We turn to the offence-specific factors going towards the offender’s culpability. As with the inquiry into harm, we structure the inquiry into culpability with reference to three broad categories: (a) the offender’s motive for committing the offence; (b) the offender’s method of obtaining the intimate image or recording; and (c) other aspects of the offender’s culpability.

  101. (1) Motive for committing the offence

  102. [63] First, the offender’s motive for committing the Actual Distribution Offence will be relevant in ascertaining his culpability. This refers to why the offender committed the offence, and ought not to be confused with the offender’s mens rea in doing so (see Ye Lin Myint v Public Prosecutor [2019] 5 SLR 1005 (“Ye Lin Myint”) at [52]).

  103. [64] In Ye Lin Myint, a case involving criminal intimidation by anonymous communication punishable under s 507 of the Penal Code, the High Court considered how the offender’s motive would be analysed as a factor going towards culpability, and observed, with reference to the relevant authorities, that an offender who acts out of self-interest, greed, malice or spite is likely to be regarded as more culpable, while one who commits the offence due to fear or pressing financial need may be regarded as less blameworthy (see Ye Lin Myint at [51]). In the context of the Actual Distribution Offence, there are two principal considerations which, in our view, warrant special note.

  104. [66] The second consideration is whether the offender acted for the purpose of harming the victim, and in particular whether his actions were calculated to inflict such harm. The Actual Distribution Offence may be committed if the distribution is done “intentionally or knowingly”, with an offender who “knows or has reason to believe” that the distribution will or is likely to cause humiliation, alarm or distress to the victim (see ss 377BE(1)(a) and s 377BE(1)(c) of the Penal Code). Acting “intentionally” refers to acting deliberately (see s 26C(1) of the Penal Code), while acting “knowingly” means to act with awareness that a circumstance exists or that an effect will be caused, or being “virtually certain” that this will be the case, and this includes wilful blindness (see ss 26D(1)–26D(3) of the Penal Code). These provisions therefore encompass a few different mental states on the part of the offender. Where the distribution is done not only with the knowledge that the distribution will or is likely to cause the victim humiliation, alarm or distress, but is done with the intention and indeed for the purpose of causing such harm to the victim, it follows that the offender will be regarded as more culpable.

  105. [67] Whether the offender did indeed act for such a purpose will often be clear from the circumstances of the offence. For example, where the distributed image or recording is accompanied by abusive or degrading captions or commentary about the victim, or by or exhortations to others to harass the victim further, it will be readily inferred that the offender acted for the purpose of harming the victim. This will also be the case where the offender has chosen a particular platform or targeted particular recipients in distributing the intimate image or recording, knowing or believing that distribution on that platform or to these recipients will cause greater humiliation, alarm or distress to the victim.

  106. [68] We digress to note that s 74(1) of the Penal Code (read with s 74(2)(a)) provides that, where the commission of an offence under s 377BE is racially or religiously aggravated (including where the offence is motivated by hostility towards members of a racial or religious group), the court may sentence the offender to one and a half times the amount of punishment to which he would otherwise have been liable for the offence. Where such motivations form part of the offender’s motive for committing the Actual Distribution Offence, and this provides the factual basis for the statutory mechanism in s 74(1) for the enhancement of the sentence, these motivations should not be separately taken into account again in assessing the offender’s motive as a factor going towards his culpability for his Actual Distribution Offence. To do otherwise would offend the rule against double counting: see Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen Balakrishnan”) at [85].

  107. (2) Method of obtaining the intimate image or recording

  108. [69] Second, the offender’s method of obtaining the intimate image or recording in question will be relevant to his culpability. Although the Actual Distribution Offence is an offence centred around the distribution of an intimate image or recording, the offender’s method of obtaining the intimate image or recording is a precondition to its distribution and is fundamental to a holistic assessment of the offender’s culpability in relation to the offence. In our view, the analysis of this factor can be helpfully organised in the following manner, with reference to the victim’s consent (or lack thereof) at three different stages: the capture of the image or recording; the offender’s possession of that image or recording; and the offender’s distribution of that image or recording.

  109. [70] The base or paradigmatic case is where the image or recording is captured with the victim’s consent, and the victim also consents to the offender being in possession of the same, but the offender then goes on to distribute the image or recording without the victim’s consent. These cases will almost invariably involve a breach of the trust placed in the offender by the victim, and the typical case will be one where the victim and the offender have had an intimate relationship and the victim has entrusted the offender with possession of the intimate images or recordings. An example is Shahrul Nizam (albeit that this case involved the Threatened Distribution Offence), where in the course of their romantic relationship, the victim had consented to the offender recording three video clips of the victim masturbating herself and fellating the accused, but the parties agreed that these recordings were to be kept between themselves. After the parties’ relationship ended, the offender threatened to distribute these recordings to the victim’s family, her friends, and her ex-husband and his family (see Shahrul Nizam at [4]–[6] and [40]).

  110. [71] Although such cases undoubtedly involve a serious violation of the victim’s trust, we regard this as the base or paradigmatic case because the victim’s lack of consent to the distribution is a necessary element of the offence under s 377BE(1)(b) of the Penal Code. The offender’s culpability would then be aggravated in cases involving departures from this base or paradigmatic case, where the victim’s consent to the capturing of the image or recording and/or the offender’s possession of the same is also absent or vitiated. These departures can be visualised as concentric circles emanating from this base or paradigmatic case, each increasing the gravity of the offence.

  111. [72] We begin with the category of cases where the image or recording has been captured with the victim’s consent (or indeed voluntarily created by the victim himself or herself) and kept among the victim’s private files, and the image or recording later comes into the offender’s possession without the victim’s consent. Cases within this category where the offender will be regarded as more culpable include: where the offender surreptitiously extracts the intimate image or recording without the victim’s knowledge, or otherwise obtains it through theft; where the offender deceives or blackmails the victim into providing it to him; and where the offender obtains possession of the image or recording by using violence.

  112. (3) Other aspects of culpability

  113. [75] Other than the offender’s motive and method of obtaining the intimate image or recording, there are several further considerations which may shed light on his culpability. These primarily go towards showing the offender’s commitment to offending and to evading detection.

  114. [76] The first is the degree of planning, preparation and premeditation displayed by the offender. An offence committed with planning and premeditation will generally be more aggravated than one which is committed opportunistically or on impulse because the presence of planning and premeditation “evinces a considered commitment towards law-breaking and therefore reflects greater criminality”: see Logachev at [56], citing Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) at [44(c)]. An illustrative example of facts that would disclose a high degree of planning and premeditation in the present context may be found in the Canadian case of R v JB (2018) ONSC 4726 (“JB”), where the offender had created a fake Facebook profile using the victim’s full name and photograph, and then sent Facebook “friend” requests from that fake profile to at least 96 of the victim’s friends, family members and co-workers, so that they could view the intimate images he had posted on that profile. As the Ontario Superior Court of Justice noted, this “clearly involved sustained planning and effort” (see JB at [13] and [44(iv)]).

  115. [77] The second is the level of sophistication employed by the offender in obtaining the image or recording (particularly where this was done surreptitiously) and distributing the image or recording thereafter. All other things being equal, an offence committed by sophisticated means (for example, if the offender makes carefully orchestrated efforts and takes elaborate steps to avoid detection) will be more aggravated than one which is committed simplistically: see Logachev at [57].

  116. [78] The third is the duration and persistence of the offending behaviour. An offence perpetrated over a sustained period of time will generally be more aggravated than a one-off offence: see Logachev at [59]. This will include, as suggested by the Prosecution, the offender’s repeated efforts to keep the intimate image or recording available for viewing – a factor expressly taken into account by the UK Sentencing Council in its guidelines on the offence of disclosing private sexual images under s 33 of the Criminal Justice and Courts Act 2015 (c 2) (UK).

  117. [79] The fourth is whether there was any abuse of position by the offender in committing the offence, such as where the offender takes advantage of a victim who is disadvantaged in relation to the commission of the offence by reason of his or her age, relationship to the offender, or any imbalance in power and authority between them. In particular, this will apply if the offender is in a position of responsibility towards the victim – for example, parents and their children, medical practitioners and their patients, or teachers and their pupils – or where the offender is a person in whom the victim has placed trust by virtue of his office of employment (for example, policemen or social workers). Where such an abuse of position is present, this will aggravate the offender’s culpability: see Terence Ng at [44(b)] and Logachev at [62].

  118. [80] The fifth is the use of anonymity by the offender. In Ye Lin Myint, in the context of the offence of criminal intimidation by anonymous communication punishable under s 507 of the Penal Code, the High Court explained that the use of anonymity is aggravating because the recipient of the threat suffers a heightened sense of unease from being unable to identify the person behind the threat, and consequently to assess its gravity or when and how it might manifest. In the present context, the use of anonymity may enhance the offender’s culpability in two ways: the offender may have deliberately concealed his identity to heighten the alarm and distress caused to the victim, and/or the offender may have taken steps to hide behind a veil of anonymity in an attempt to evade detection and avoid being held accountable for his actions.

  119. [81] We highlight one further aspect of culpability which is of particular relevance in relation to the Actual Distribution Offence, and which runs through both the offender’s motive for and his method of committing the offence. If there is evidence of cruelty on the part of the offender in relation to his offending, this will be regarded as aggravating. This relates especially to cruelty in how the intimate image or recording was obtained, and how it was used and distributed.

  120. Uncharged adjacent offending

  121. [82] We next deal with the more conceptual question of how uncharged adjacent offending should be taken into account by the sentencing court in assessing the harm and culpability involved in the offence. By “uncharged adjacent offending”, we mean the facts surrounding the commission of the Actual Distribution Offence which could have given rise to separate charges against the offender, but in respect of which no charges were brought by the Prosecution.

  122. [84] However, the position set out above is subject to two important qualifications. First, the court cannot and must not impose a sentence that is aimed at punishing the offender for an offence that he has not been charged with, even if such an offence is disclosed on the facts. In other words, as we explained during the hearing, the taking into account of the uncharged adjacent offending cannot in effect allow the Prosecution to achieve the effect of aggregating the sentences imposed for both the offence with which the offender has been charged and another with which he has not. Second, as a matter of fairness to the offender, any enhancement on this basis would need to be balanced against the extent to which the offender could have been punished had a separate charge been brought (see Cheang Geok Lin at [27] and [31]; see also Suzanna Bong at [64]).

  123. [85] In the context of the Actual Distribution Offence, there are at least two ways in which uncharged adjacent offending may be in issue.

  124. [86] The first is where the intimate image or recording in question depicts more than one person who has not consented to the distribution, and in respect of which the other elements of the Actual Distribution Offence are satisfied – in other words, where there is more than one victim of the Actual Distribution Offence. In such cases, separate charges under s 377BE(1) could have been brought for each person depicted. However, where the Prosecution chooses not to bring any charges in respect of one or more of those persons, the position is less straightforward and the court will then need to consider how these facts (assuming they are admitted or proved) should be taken into account. For convenience, we refer to the victim who is named in the charge as the “primary victim” and a victim who is not so named as a “secondary victim”.

  125. [87] In our judgment, where an offender is charged with an Actual Distribution Offence against a primary victim, and the intimate image or recording that forms the subject of that charge also depicts a secondary victim, there is plainly a sufficient nexus between the charged offence and the uncharged offending against the secondary victim. In these circumstances, the charged offence and the uncharged offending should be regarded as part of a single indivisible transaction as it would be wholly artificial to ignore the presence of the secondary victim in the intimate image or recording. This will generally go towards enhancing the offender’s culpability for the Actual Distribution Offence, in so far as the offender will have knowingly or intentionally set out to cause harm to more than one person in committing the offence at hand. The fact that more than one victim is depicted in the intimate image or recording will generally also aggravate the harm caused by the offence at two levels. First, the harm suffered by the secondary victim will need to be borne in mind in assessing the overall harm caused by the offence. Second, in so far as the presence of the secondary victim means that the acts depicted are more overtly sexual in nature, and may constitute a greater intrusion into the primary victim’s privacy by revealing his or her relationship with the secondary victim, the harm suffered by the primary victim will usually also be aggravated.

  126. Adjacent offending which forms the subject of a separate charge

  127. [89] A related difficulty arises where facts which feature as sentencing considerations for the Actual Distribution Offence are the subject of separate charges against the offender. This situation is the obverse of that discussed at [88] above. In such cases, the court will need to guard against the risk of double counting. We elaborate.

  128. [90] As was explained in Raveen Balakrishnan at [91], “the central concern of the rule against double counting is that a sentencing factor should be given only its due weight in the sentencing analysis and nothing more”; and if a particular factor already forms the basis of a separate charge framed against the offender, the “due weight” that should be given by the court to that factor in sentencing will generally be “none”. The rule against double counting applies across all stages of the sentencing analysis and underlies all aspects of sentencing (Raveen Balakrishnan at [92] and [98(d)]).

  129. [92] In the present context, one category of cases in which the risk of double counting is likely to arise are cases where the offender’s acts of forcibly obtaining the intimate image or recording from the victim form the subject of a separate charge against the offender for a hurt offence. The applicable sentencing frameworks for the offences of voluntarily causing hurt under s 321 (and punishable under s 323) of the Penal Code and voluntarily causing grievous hurt under s 322 (and punishable under s 325) of the Penal Code both take the seriousness of the hurt caused as their primary reference point:

  130. (a) For the offence of voluntarily causing hurt, the court will first situate the offence within one of three broad sentencing bands based on whether the hurt caused was low, moderate, or serious. The court will determine where the particular case falls within the corresponding indicative sentencing range, again with reference to the hurt caused by the offence, to arrive at the appropriate indicative starting point. Next, the court will make the necessary adjustments to the indicative starting point sentence based on its assessment of the offender’s culpability as well as all other relevant factors (see Low Song Chye v Public Prosecutor [2019] 5 SLR 526 at [77]–[78]).

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