Public Prosecutor v Amayapan Kodanpany

Kan Ting Chiu J:

[1] The accused Amayapan Kodanpany (“the Accused”), who is 59 years old, was originally brought before me on seven charges of offences of carnal intercourse against the order of nature under s 377 of the Penal Code (Cap 224, 1985 Rev Ed) on the same person (“the Victim”).

[2] The Prosecution elected to proceed with three charges for offences which all took place in the early morning of 14 March 2007. The other four charges were stood down and subsequently withdrawn. After the Accused claimed trial on those three charges, the Prosecution called its witnesses, and ten witnesses had concluded their evidence by the end of the second day of hearing. The eleventh witness, the Victim, was giving his evidence in chief when hearing adjourned for the day. He did not continue with his evidence on the following day.

[3] The Prosecution decided not to proceed under s 377, and amended the three charges to charges under s 5(5)(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”).

[4] The three amended charges were that the Accused:

When the charges were amended the Accused immediately changed his plea, and pleaded guilty to them.

[5] The Prosecution then presented a Statement of Facts to which the Accused admitted, and he was found guilty and convicted on the three charges.

[6] The Statement of Facts disclosed:

[7] The psychological report by Dr Cai Yiming states:

[8] Some personal data of the Accused is set out in the Statement of Facts, ie, that he is 59 years old, single and he worked irregularly as an odd job labourer.

[9] After he was arrested, the Accused was examined by psychiatrist Dr Kenneth G W W Koh of the Institute of Mental Health. Dr Koh found that the Accused’s IQ was between 66–74, in the range bordering the upper limit of mild mental retardation and the lower limit of borderline intelligence, and that clinically he appeared to be in the borderline range.

[10] He has a record of convictions between 1968 and 2008 for offences which fell into three categories: (a) offences against property; (b) possession and consumption of drugs; and (c) causing grievous hurt.

[11] Counsel pleaded that:

[12] The Prosecution submitted that there were aggravating factors which should be taken into consideration in sentencing:

(a) The Accused had inflicted extreme physical pain on the Victim on both occasions. The Accused also morally degraded the Victim by teaching him how to perform the revolting act of fellatio on him;

(b) The Accused is a hardened criminal with numerous convictions over 40 years between 1968 and 2008;

(c) The Accused had been eyeing the Victim as a potential target for several days before he moved in to execute his plan of subjecting the Victim to sexual abuse;

(d) The Accused had abused the position of trust of the Victim and exploited the age gap between them; and

(e) The Accused had preyed on a victim who was functioning at the mild mental retardation range of intelligence.

[13] Aggravating factors that are to be taken into consideration for sentencing have to be well-founded, and I have some reservations on some of those mentioned.

[14] Although the Prosecution’s Submissions on Sentence referred to “extreme physical pain”, the term used in the Statement of Facts and by the Victim was “very painful”. Defence counsel also pointed out that there were no physical injuries revealed in the medical report, and no physical injury was mentioned by the Victim when he gave evidence in court.

[15] The Accused’s previous convictions were for offences against property, causing hurt, and drug possession and consumption. There were no convictions for sexual offences or offences against young persons. As V K Rajah J stated in Public Prosecutor v NF [2006] 4 SLR(R) 849 at [69], when he was sentencing an accused person who had previous convictions for housebreaking and theft, and drug trafficking and consumption for rape, previous convictions for dissimilar offences were of no direct relevance for the purpose of sentencing.

[16] The Statement of Facts stated at para 7 that:

It was not alleged that the Accused had been eyeing the Victim as a potential target for several days, and that did not form any part of the case against him.

[17] The Accused may not have been aware of the Victim’s intellectual deficiency because:

(a) According to Dr Cai Yiming’s report, the Victim had impressed him as a “friendly and verbal boy who could give an account of the alleged offence”. I observed the Victim and heard his evidence in court, and he was composed and articulate, and the only problem he encountered was that he was saying “private part” and “backside” when he should have been more specific and say “penis” and “anus”.

(b) As noted by Dr Kenneth G W W Koh, the Accused himself has an IQ in the range bordering the upper limit of mild mental retardation and the lower limit of borderline intelligence. It is doubtful that he was himself able to detect the Victim’s mild mental retardation on the morning of 14 March 2007.

Thus, the Prosecution’s assertion that the Accused had preyed on the Victim, taking advantage of the latter’s low IQ was not made out.

[18] The offences that the Accused admitted to committing involved the sexual abuse of a young person for which the maximum sentence is a fine not exceeding $4,000, or imprisonment not exceeding four years, or both, under s 5(5) of the CYPA.

[19] The CYPA was amended in 2001 and s 5 was introduced through that amendment. Prior to the amendment, acts of cruelty to children and young persons were offences under s 4 of the Act, but that section did not specifically refer to sexual abuse.

[20] A review of the available precedents show that cases of sexual abuse of children and young persons were prosecuted under the old s 377 of the Penal Code which was repealed on 1 February 2008, and not under the old s 4 or the current s 5 of the CYPA. Consequently, there are no sentencing precedents for offences of sexual abuse prosecuted under those sections of the CYPA.

[21] As an act constituting an offence under s 5 of the CYPA may also constitute an offence under the old s 377 of the Penal Code which dealt with the offence of carnal intercourse against the order of nature, the factors to be taken into consideration in sentencing for offences under that provision can also apply to offences of sexual abuse under s 5 of the CYPA.

[22] In Lim Hock Hin Kelvin v Public Prosecutor [1998] 1 SLR(R) 37 which dealt with sentencing tariffs for offences under the old ss 377 and 377A, the Court of Appeal ruled that:

The Court went on to state that:

It is necessary to ascertain if these factors apply in the present case.

[23] The offences did not result in any injury or disability to the Victim, and there was no violence or threat of violence used or directed at him, and he was not found to have suffered any emotional harm.

[24] The psychiatric examination of the Accused and his criminal record did not show him to be a paedophile or a serial sexual offender.

[25] The Accused did not stand in a position of trust and authority in relationship to the Victim. They were strangers before 14 March 2007, and the hold that the Accused had over the Victim was that he had invited him to his flat so that he would not have to spend the night at the playground or void deck. The Victim was not dependent on the Accused in any way, and could have rejected the latter’s offer, or left the flat when he made the overtures.

[26] There is no suggestion that the Victim is now disposed to engaging in anal intercourse or fellatio, or has continued with these practices as a means to obtain money. It was also never part of the Prosecution’s case that the Accused had enticed or cajoled the Victim into engaging in the sexual acts by promising him gifts or money.

[27] The Accused had anal intercourse with the Victim and caused him to perform fellatio on him. The commission of such acts on children and young persons cannot be condoned, and offenders will not be dealt with leniently.

[28] In determining the appropriate sentence, on one hand, I did not consider that sentences at the high end of the range of up to four years’ imprisonment were appropriate because:

[29] On the other hand, I did not think that sentences at the lower end of the range were appropriate because three offences were committed, and anal intercourse and fellatio were performed.

[30] In imposing sentence, I also took into account the fact that the three offences took place in one episode (or “the Sexual Incident”, as it was described in the Statement of Facts in the heading to paras 14 and 15) without any resistance or protest from the Victim.

[31] I sentenced the Accused to 18 months’ imprisonment for each of the three offences with the sentences for the first and second offences of anal intercourse and fellatio running consecutively, and the sentence for the third offence of anal intercourse running concurrently with the first two sentences.

[32] In imposing the sentences, I intended the Accused to serve three years’ imprisonment, which I consider to be appropriate in all the circumstances.