SINGAPORE: Former actor Ian Fang was sentenced to 40 months' jail on Monday (May 19) after pleading guilty to sexual offences involving a then 15-year-old minor.
The 35-year-old pleaded guilty to three charges of sexual penetration of a girl aged under 16.
Three similar charges were taken into consideration for sentencing, along with one count of obstructing justice and one count of stalking.
Social media users commenting on the case have asked why Fang did not receive caning.
Lawyer Sanjiv Vaswani of Vaswani Law Chambers noted that Fang pleaded guilty to two counts under Section 376A(1)(a) and one count under Section 376A(1)(b) of the Penal Code.
The punishment provisions under this section fall under 376A(2) and 376A(3), which take into account different factors.
Section 376A(3) provides the maximum penalty for a person who offends against a minor below 14 years old. The punishment in this case can be up to 20 years' jail, and a fine or caning.
This section does not apply to Fang as the victim was 15 years old at the time of the offences.
The applicable Section 376A(2) has two subsections - 376A(2)(a) and 376A(2)(b) - which provide the maximum penalties for those who commit offences against victims between 14 and 16 years old.
The difference between them, however, is that Section 376A(2)(a) applies to an offender who was in a relationship exploitative of the victim. If sentenced under this provision, an offender can be jailed for up to 20 years and fined or caned.
Fang was not sentenced under this.
He was sentenced under Section 376A(2)(b), which excludes the element of an exploitative relationship.
The maximum penalty under this section is a jail term of up to 10 years or a fine, or both. This section does not include caning.
Asked why Fang was not dealt with under Section 376A(2)(a), lawyers said it was a matter of prosecutorial discretion.
But they pointed to Section 377CA for guidance on what is considered an exploitative relationship.
This section outlines the meaning of such a relationship and calls on the court to determine the circumstances of each case.
In doing so, the court must consider these factors:
Section 377CA(2) then goes further to give examples of relationships that are presumed to be exploitative.
These include relationships between a parent and child; teacher and student; and doctor and patient, Mr Vaswani told CNA.
"In the present case, notwithstanding the fact that the prosecution submitted before the court that Fang had engaged in a high degree of exploitation of the victim, it appears that they did not form the view that the relationship itself was an exploitative one," the criminal lawyer added.
"Ultimately their assessment of this issue is a matter of prosecutorial discretion, and such an assessment would undoubtedly have taken into consideration all the facts, circumstances and evidence in the case known to them at the time, some of which may not be publicly available."
Referring to published details of the case, such as how the victim met Fang at an entertainment event, Mr Chooi Jing Yen of his eponymous law firm said the prosecution may have found it difficult to fit the case within Section 377CA, based on the facts.
He noted that parliament had previously set out what was considered exploitation, during Law and Home Affairs Minister K Shanmugam's second reading of a Criminal Law Reform Bill in 2019.
A key factor in determining exploitation is the presence of a power imbalance between the accused person and the minor, Mr Shanmugam had said then.
Lawyer Cory Wong of Invictus Law Corporation said sentencing precedents - or past cases - showed that caning was meted out more for when the victim was aged under 14.
"The section in Ian Fang's case appears to be under the 'lighter' section of 'from 14 to under 16', he added.
Noting that punishment is premised upon the principles of deterrence and retribution, Mr Wong said: "Caning reflects one of the highest condemnations the law can have for certain serious offences."
Apart from the abovementioned provisions in Section 376A, sexual offenders could be caned in cases with other aggravating factors.
These include lack of consent; use of force or violence or deception; and causing an unwanted pregnancy or a sexually-transmitted disease, he said.
Judicial caning is also a sentencing option for more than 30 offences under the Penal Code, including rape, kidnapping, extortion, rioting, drug trafficking and illegal money-lending.
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The 35-year-old pleaded guilty to three charges of sexual penetration of a girl aged under 16.
Three similar charges were taken into consideration for sentencing, along with one count of obstructing justice and one count of stalking.
Social media users commenting on the case have asked why Fang did not receive caning.
Which specific penalties does he face?
Lawyer Sanjiv Vaswani of Vaswani Law Chambers noted that Fang pleaded guilty to two counts under Section 376A(1)(a) and one count under Section 376A(1)(b) of the Penal Code.
The punishment provisions under this section fall under 376A(2) and 376A(3), which take into account different factors.
Section 376A(3) provides the maximum penalty for a person who offends against a minor below 14 years old. The punishment in this case can be up to 20 years' jail, and a fine or caning.
This section does not apply to Fang as the victim was 15 years old at the time of the offences.
The applicable Section 376A(2) has two subsections - 376A(2)(a) and 376A(2)(b) - which provide the maximum penalties for those who commit offences against victims between 14 and 16 years old.
The difference between them, however, is that Section 376A(2)(a) applies to an offender who was in a relationship exploitative of the victim. If sentenced under this provision, an offender can be jailed for up to 20 years and fined or caned.
Fang was not sentenced under this.
He was sentenced under Section 376A(2)(b), which excludes the element of an exploitative relationship.
The maximum penalty under this section is a jail term of up to 10 years or a fine, or both. This section does not include caning.
Related:
Was there no "exploitative relationship"?
Asked why Fang was not dealt with under Section 376A(2)(a), lawyers said it was a matter of prosecutorial discretion.
But they pointed to Section 377CA for guidance on what is considered an exploitative relationship.
This section outlines the meaning of such a relationship and calls on the court to determine the circumstances of each case.
In doing so, the court must consider these factors:
- The age of the minor
- The difference between the age of the accused person and the minor
- The nature of the relationship
- The degree of control or influence exercised by the accused person over the minor
Section 377CA(2) then goes further to give examples of relationships that are presumed to be exploitative.
These include relationships between a parent and child; teacher and student; and doctor and patient, Mr Vaswani told CNA.
"In the present case, notwithstanding the fact that the prosecution submitted before the court that Fang had engaged in a high degree of exploitation of the victim, it appears that they did not form the view that the relationship itself was an exploitative one," the criminal lawyer added.
"Ultimately their assessment of this issue is a matter of prosecutorial discretion, and such an assessment would undoubtedly have taken into consideration all the facts, circumstances and evidence in the case known to them at the time, some of which may not be publicly available."
Referring to published details of the case, such as how the victim met Fang at an entertainment event, Mr Chooi Jing Yen of his eponymous law firm said the prosecution may have found it difficult to fit the case within Section 377CA, based on the facts.
He noted that parliament had previously set out what was considered exploitation, during Law and Home Affairs Minister K Shanmugam's second reading of a Criminal Law Reform Bill in 2019.
A key factor in determining exploitation is the presence of a power imbalance between the accused person and the minor, Mr Shanmugam had said then.
Related:
In what cases would an offender be caned?
Lawyer Cory Wong of Invictus Law Corporation said sentencing precedents - or past cases - showed that caning was meted out more for when the victim was aged under 14.
"The section in Ian Fang's case appears to be under the 'lighter' section of 'from 14 to under 16', he added.
Noting that punishment is premised upon the principles of deterrence and retribution, Mr Wong said: "Caning reflects one of the highest condemnations the law can have for certain serious offences."
Apart from the abovementioned provisions in Section 376A, sexual offenders could be caned in cases with other aggravating factors.
These include lack of consent; use of force or violence or deception; and causing an unwanted pregnancy or a sexually-transmitted disease, he said.
Judicial caning is also a sentencing option for more than 30 offences under the Penal Code, including rape, kidnapping, extortion, rioting, drug trafficking and illegal money-lending.
Want an issue or topic explained? Email us at digitalnews [at] mediacorp.com.sg. Your question might become a story on our site.
Continue reading...