Case Summaries

Chan Chun Hong v Public Prosecutor

20 April 2016

Media Summary

High Court Magistrate’s Appeal No 9041 of 2015

Chan Chun Hong v Public Prosecutor [2016] SGHC 75

Background to the application

1 Child sex tourism has given rise to a global human rights crisis. The cross-border nature of the problem demands a transnational response. As part of this response, countries have acceded to international conventions and treaties that seek to protect the rights of children and have enacted domestic legislation targeted at deterring the demand for child sex tourism from within their borders. Singapore followed this path by introducing two provisions into the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”): s 376C which gives extra-territorial effect to the offence of engaging in commercial sex with minors, and s 376D which separately criminalises acts that facilitate or promote the commission of an offence under s 376C.

2 The subject matter of the appeal pertained to s 376D. This was an appeal brought by the Appellant against the decision of the District Judge sentencing the Appellant to an aggregate imprisonment term of 56 months. The Appellant pleaded guilty to 12 charges of which four were the focus of the appeal: one of organising a child sex tour (s 376D(1)(a)) and three of distributing information to promote child sex tourism (s 376D(1)(c)). The District Judge sentenced the Appellant to 36 months’ imprisonment for the s 376D(1)(a) charge, and 20 months’ imprisonment for each s 376D(1)(c) charge. The sentences for the s 376D(1)(a) offence and for one of the s 376D(1)(c) charges were ordered to run consecutively. The Appellant contended that the sentence for each of the offences was manifestly excessive, and in any case, that the aggregate sentence too is manifestly excessive.

Facts

3 The Appellant first encountered child pornography in 2009 and from December 2011 to early September 2012, exchanged child pornographic material with other Internet users by email. For transmitting such obscene material by electronic means, a total of 135 charges were brought against the Appellant – seven were proceeded with against the Appellant and the remaining 128 charges were taken into consideration for the purpose of sentencing. The level of the Appellant’s involvement in trading child pornographic material was such that it caught the attention of the United States Federal Bureau of Investigation (“FBI”) who in turn informed the Singapore Police Force (“SPF”).

4 Following the FBI’s tip-off, the SPF deployed an undercover police officer who used a moniker “Teo Dennis” to interact with the Appellant from November 2013 to February 2014 to carry out investigations against the Appellant. In the course of their interactions, the Appellant shared information on places to visit overseas to engage in child sex tourism, and his own experiences. The Appellant also offered to organise a child sex tour for Teo Dennis and accompany him if Teo Dennis would pay for his return air ticket to Cambodia. After Teo Dennis transferred the sum of money to the Appellant, the Appellant purchased the air tickets and contacted a local guide to bring them to brothels during their trip. The proposed trip never materialised as the Appellant was arrested prior to the trip.

Judgment

5 The conclusion of the High Court (“the court”) was that save in one respect, the sentences imposed by the District Judge were not manifestly excessive and the appeal was dismissed. The sentence for one of the offences was reduced, but as it was to run concurrently with two other sentences ordered to run consecutively, this did not impact the aggregate sentence ordered by the District Judge.

Reasons for the judgment

6 The court emphasised that a strong deterrent message must be sent to all would-be offenders from participating in the child sex trade in any way to protect vulnerable child victims from suffering irreparable harm as a result of being trapped in the trade. The acts of engaging in commercial sex with minors abroad and the related offence of facilitating or promoting this contribute to such evils as child trafficking, child pornography, physical abuse and coercion of child-victims. These are evidently serious offences. “Sending countries” must curb demand for child sex tourism from within their borders through legislation and robust enforcement. The difficulties of detecting such offences call for the courts to adjust the punishment so as to ensure that would-be offenders are sufficiently discouraged from running the risk in the hope that they might successfully evade arrest.

7 Before considering the appropriate sentence to be given, the court considered a few arguments made for the reduction of any sentence imposed in this case. The court considered whether entrapment was relevant as a mitigating factor in sentencing and rejected it on the facts of the case. The key question in each case would be the extent to which the element of entrapment can be shown to have actually diminished the culpability of the offender. If the agent provocateur provides nothing more than an unexceptional opportunity for the crime to be committed, entrapment would not have mitigating value. The court concluded on the facts that Teo Dennis had merely provided an unexceptional opportunity for the present offences to be committed.

8 The court affirmed that a mental condition like paedophilia will not be a mitigating factor if it has little bearing on the offender’s ability to appreciate the nature and consequences of his actions, or if it has not affected the offender’s ability to stop himself from committing the criminal act. In either of these circumstances, the offender is capable of being deterred by punishment and should therefore face the consequences imposed by the law. The general understanding of paedophilia and the Appellant’s IMH Report both support the conclusion that the Appellant’s mental condition had neither impacted his understanding of the offence nor diminished his ability to control his impulses.

9 The court considered that it was permissible for a sentencing court to have regard to relevant decisions of foreign courts in order to discern sentencing principles and considerations. However, the precise sentence should not be derived unthinkingly from the decisions of foreign courts. This is because sentencing, and in particular, a deterrent sentence such as that necessitated by the facts of the present case, is founded on, and an expression of, important public policy considerations which may be unique to our society. In the present context, the court concluded that the foreign sentencing precedents were relevant because there was no local sentencing precedent applicable to the offences before the court, and the foreign precedents cited were enacted to give effect to similar obligations arising under international treaties or conventions.

10 In determining the appropriate sentence in the case, the court drew a distinction between the full-fledged commercial operator driven by profit and the ad-hoc offender whose acts are opportunistic and not driven primarily by financial returns. For the offence of organising a sex tour under s 376A(1)(a) of the Penal Code, the court set a benchmark sentence of two years’ and six months’ imprisonment as a starting point for an ad-hoc or opportunistic organiser who knowingly makes travel arrangements for a prospective child tourist in circumstances such as the present where there was no profit motive.

11 The next stage of the inquiry would involve the court determining whether the benchmark sentence should be adjusted based on applicable aggravating or mitigating circumstances. The court identified some relevant factors specific to offences under s 376A(1)(a):

(a) Whether the offence was committed in the context of the offender being approached to do so by the recipient;

(b) The extent to which the offender had facilitated the proposed trip;

(c) Whether the proposed trip has in fact taken place;

(d) The age of the victims in the “destination country” that might be involved in the proposed trip; and

(e) The number of child victims that might possibly be targeted in the proposed sex tour.

12 The court found that the Appellant did not merely arrange the bare logistics of the trip but had held himself out as a seasoned companion who would ensure that the trip would be a fruitful and safe venture. The Appellant had also targeted girls of a very young age, and had engaged a local guide well-versed in the hotspots for child sex tourism. These factors materially enhanced the personal culpability of the Appellant, calling for a sentence higher than the starting point of two years’ and six months’ imprisonment. In these circumstances, the court did not consider the sentence imposed by the District Judge of three years’ imprisonment as excessive.

13 For the offence of distributing information to promote child sex tourism, the court classified the spectrum of offending conduct into categories of ascending levels of seriousness:

(a) At the lowest end of the spectrum, there is general information it he reportage provided to like-minded individuals. A sentence not more than nine months’ imprisonment would as a general rule be appropriate.

(b) The transmission of detailed knowledge about specific locations or particular contacts, but conveyed to like-minded individuals would be more serious. A starting point of 12 to 30 months’ imprisonment is appropriate.

(c) The offender’s culpability increases sharply when he has encouraged the recipient to embark on a venture that the recipient was not already intending to embark on. Both the nature of the information and the effect on the initial inclinations of the recipients can aggravate the offence and where this is the case, a sentence in excess of 36 months’ imprisonment may be considered as a starting point.

14 At the next stage of the inquiry, the court will consider where in the spectrum between the ad-hoc facilitator and the commercial sex tour operator the offender falls. The court recognised that the closer the offender is to a sophisticated and large-scale commercial operation, the greater the case for imposing a more serious sentence falling outside the ranges suggested. The court identified some relevant factors specific to offences under s 376D(1)(c):

(a) How wide the reach of the information is;

(b) The nature of the information and the impact that it is likely to have on the recipient;

(c) Whether the information is difficult to obtain freely from the public domain;

(d) The extent to which the offender provided any form of encouragement to the recipient.

15 The court recognised that all three charges fell within the moderate range of offending conduct, but imposed different sentences for each of them. The court set aside the District Judge’s sentence of 20 months’ imprisonment for the 134th charge because the information distributed was not unavailable in the public domain, and imposed a 12 months’ imprisonment sentence instead. The court upheld the District Judge’s sentence of 20 months’ imprisonment for the 135th charge. For the last charge which the court viewed as the most serious amongst the three, noting that the Appellant had sent explicit photographs of young girls. Given the severity of the offending conduct in question, the court considered that a sentence of around 30 months’ imprisonment would not have been out of place. However, no appeal had been lodged by the prosecution and the court did not interfere with the sentence imposed.

16 Lastly, the court observed that s 376D(1)(a) and s 376D(1)(c) did relate to the same legally protected interest but considered that the 135th charge and the charge under s 376D(1)(a) related to separate violations of the legal interest of preventing child sex. The 135th charge did not relate to the organising of a child sex tour, but concerned the encouragement of a more egregious variety of underaged sex. There was nothing wrong in principle in ordering the sentences for these two offences to run consecutively and the court was satisfied that this would not be disproportionate or involve any mismatch between the overall culpability of the Appellant and the aggregate sentence. The court thus upheld the aggregate sentence imposed by the District Judge of 56 months’ imprisonment and dismissed the appeal.

 

*This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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