LIM CHOON BENG v PUBLIC PROSECUTOR

Facts

In 2016 Lim Choon Beng pleaded guilty in the High Court to four sexual offences committed against one woman along public roads on 9 February 2013: aggravated outrage of modesty, two counts of rape and one of penile-oral penetration. Four further charges were taken into consideration. The High Court imposed a global sentence of 16 years, ten months and two weeks' imprisonment and 22 strokes of the cane, including 13 years' imprisonment and seven strokes for each rape charge. The Court of Appeal dismissed his appeal against sentence on 29 November 2016, observing that the judge had if anything been lenient.

In deciding the rape sentences, the High Court had referred to Public Prosecutor v Chang Kar Meng [2015] SGHC 165 among other precedents. In 2017 the Court of Appeal in Chang Kar Meng v Public Prosecutor [2017] 2 SLR 68 reduced the rape sentence in that case from 12 to ten years. Now serving his sentence and acting in person, the applicant brought Criminal Motion No 18 of 2023 under s 394H(1) of the Criminal Procedure Code 2010 for permission to seek a review. He argued that the later decision was a change in the law and sought a reduction of his sentence to 15 years' imprisonment. He also relied on Art 11 of the Constitution.

Issues

1. Whether the appellate decision in Chang Kar Meng was a change in the law relevant to the applicant's sentence
2. Whether there was sufficient material to show a miscarriage of justice in the earlier Court of Appeal decision
3. Whether Art 11 of the Constitution assisted the applicant

Holding

The Court of Appeal, sitting as a single judge, summarily dismissed the application for permission to make a review application under s 394H(7) of the Criminal Procedure Code 2010, without setting it down for hearing.

Reasoning

A review targets the decision of the appellate court, so the question was whether the Court of Appeal's 2016 decision caused a miscarriage of justice. The court found that the reduction in Chang Kar Meng was not because the High Court's rape sentence was wrong; that sentence was held not manifestly excessive. The reduction respected the appellant's expectations based on precedents for rape combined with robbery. The only change in the law it made was a forward-looking statement about rape and robbery cases, which had no bearing on the applicant, whose charges did not involve robbery.

In any event, the High Court had not relied solely or principally on Chang Kar Meng; it considered two other precedents, the charges taken into consideration, totality and the aggravating factors. The Court of Appeal's 2016 decision referred only to the judge's list of aggravating factors and made no reference to Chang Kar Meng. It also regarded the Category 1 classification of the rapes as lenient, suggesting a heavier sentence could have followed. None of the cumulative requirements in s 394J was met.

Art 11 was completely misplaced, as the applicant was not suffering greater punishment than the law prescribed when he offended.

From the judgment