… First, the court must ask itself whether rehabilitation can remain a predominant consideration. If the offence was particularly heinous or the offender has a long history of offending, then reform and rehabilitation may not even be possible or relevant, notwithstanding the youth of the offender. In this case, the statutorily prescribed punishment (in most cases a term of imprisonment) will be appropriate.

However, if the principle of rehabilitation is considered to be relevant as a dominant consideration, the next question is how to give effect to this. In this respect, with young offenders, the courts may generally choose between probation and reformative training. The courts have to realise that each represents a different fulcrum in the balance between rehabilitation and deterrence. In seeking to achieve the proper balance, the courts could consider the factors I enumerated above …, but must, above all, pay heed to the conceptual basis for rehabilitation and deterrence.

[emphasis added]

… that rehabilitation is presumed to be the dominant sentencing objective for young offenders unless otherwise shown … is a reflection of (a) young offenders’ generally lower culpability due to their immaturity; (b) their enhanced prospects of rehabilitation; (c) society’s interest in rehabilitating them; and (d) the recognition that the prison environment may have a corrupting influence on young offenders, who are more impressionable and susceptible to bad influence than older offenders …

… rehabilitation is neither singular nor unyielding. The focus on rehabilitation can be diminished or even eclipsed by such considerations as deterrence or retribution where the circumstances warrant. Broadly speaking, this happens in cases where (a) the offence is serious, (b) the harm caused is severe, (c) the offender is hardened and recalcitrant, or (d) the conditions do not exist to make rehabilitative sentencing options such as probation or reformative training viable. [emphasis added]

… It must be acknowledged that rape is an inherently odious and reprehensible act that almost invariably inflicts immeasurable as well as irreparable harm on a victim because it destroys two central facets of his or her life. First, it cannot be gainsaid that respect for the dignity, privacy and free will of a person must surely include his or her inalienable right not be a victim of predatory sexual aggression. An act of rape violates a person’s autonomous choice in sexual matters: see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 4th Ed, 2005) at p 128. This intrusion of a person’s body is infinitely far more heinous, egregious and profound than simply trespassing on or damaging property. As Prof Ashworth incisively observes in Principles of Criminal Law (Oxford University Press, 3rd Ed, 1999) at p 349:

[S]exuality has a certain uniqueness which is absent from much property: sexuality is an intrinsic part of one’s personality, it is one mode of expressing that personality in relation to others, and it is therefore fundamental that one should be able to choose whether to express oneself in this way – and, if so, towards and with whom. The essence of such self-expression is that it should be voluntary, both in the giving and in the receiving. Thus, even where a sexual assault involves no significant physical force, it constitutes harm in the sense that it invades a deeply personal zone, gaining non-consensually that which should only be shared consensually.

[original emphasis omitted]

… our courts have always said that rape is generally regarded as ‘the most grave of all the sexual offences’ (see Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 at [9]). This court in that case quoted a passage from a Criminal Law Revision Committee which it felt was consonant with its views:

Rape involves a severe degree of emotional and psychological trauma. It may be described as a violation which in effect obliterated the personality of the victim. Its physical consequences equally are severe: the actual physical harm occasioned by the act of intercourse; associated violence or force and in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy. We do not believe this latter fear should be underestimated, because abortion would usually be available. This is not a choice open to all women and it is not a welcome consequence for any. Rape is also particularly unpleasant because it involves such intimate proximity between the offender and victim. We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another, and to which as a society we attach considerable value.

In our opinion, even the offence of rape under s 376(1) [of the Penal Code (Cap 224, 1985 Rev Ed)], without any aggravating or mitigating factors, in which sexual intercourse with a woman is constituted by penetration against her will, must by its very act contain an element of violence and a sentence of caning of not less than six strokes should normally be imposed in addition to a term of imprisonment. Any degree of violence amounting to hurt used in the commission of rape will render the rapist liable to a higher punishment under s 376(2), if he is charged thereunder. [emphasis added]

(2) Theft is ‘robbery’ if, in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.

On a more general level, the seriousness of the offence, viz, robbery, must be taken into account. As I have said (at [72]), there are certain categories of offences in respect of which even young offenders must expect to be visited, almost as a matter of course (though, it must be stressed, not invariably), with a period of incarceration. Rehabilitative efforts, in such cases, can then be conducted in a more structured environment. This will have a beneficial effect on the particular offender and be also concurrently interpreted as an unequivocal sign that society and the courts will take an uncompromising view in relation to the commission of certain types of offending conduct. Almost invariably included in these categories of offences must be those inherently involving gratuitous violence and/or the preying upon of vulnerable victims. All who participate in such offences must be firmly dealt with, in conjunction with any rehabilitative efforts that have been found to be appropriate. I will not attempt in these grounds of decision to exhaustively list out the offences which I think are serious enough to warrant such treatment; suffice to say, the punishment prescribed for the offence would play an essential role in determining the seriousness of the offence concerned. A sentencing court should take particular note of the existence of a mandatory custodial sentence that Parliament may have prescribed. This is, of course, not to say that all instances of robbery involving young offenders will be treated alike. [original emphasis omitted]

Our criminal law is, in the final analysis, the public’s expression of communitarian values to be promoted, defended and preserved. These communitarian values include the preservation of morality, the protection of the person, the preservation of public peace and order, respect for institutions and the preservation of the state’s wider interests; see PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24]–[29]. Sentences must protect the fabric of society through the defence of these values. Community respect is reinforced by dint of the prescription of appropriate sanctions to proscribe wrongful conduct. A sentence must therefore appropriately encapsulate, in any given context, the proper degree of public aversion arising from the particular harmful behaviour as well as incorporate the impact of the relevant circumstances engendering each offence. …

One example of a case where rehabilitation yielded its usual primacy in the sentencing of a youthful offender is PP v Mohamed Noh Hafiz bin Osman [2003] 4 SLR(R) 281 (‘PP v Mohamed Noh Hafiz’). The offender there was a 17-year-old male who had on separate occasions followed prepubescent girls into the lifts of public housing estates as they were returning home alone. When the girls emerged from the lifts, he approached them from behind, covered their mouths and dragged them to a staircase landing. He then attacked and molested them violently. The offender faced four charges of aggravated outrage of modesty, two of rape, three of unnatural sex offences and a robbery charge which arose from an incident where the offender forcibly took a mobile phone from a girl’s pocket after he accosted her. The offender pleaded guilty to the ten charges. In mitigation, counsel for the offender asked for a sentence of reformative training to be imposed. The counsel emphasised that the offender was young and willing to change, and that he had a difficult childhood and had suffered emotional scars.

Tay Yong Kwang J sentenced the accused to 20 years’ imprisonment and 24 strokes of the cane. Tay J held that reformative training was inappropriate in the light of the number and seriousness of the offences. The accused had been shockingly audacious in committing most of the attacks in the day, near the homes of his victims. Eleven young girls had been subject to intense emotional trauma and indelible hurt by his despicable acts. PP v Mohamed Noh Hafiz was a clear example of a case where the offences were sufficiently serious and the actions of the offender were sufficiently outrageous that rehabilitation had to yield to other sentencing considerations.

The respondent’s counsel had obliquely suggested that offences against sex workers should perhaps not be viewed as seriously, given their willingness to participate in a dangerous and unpleasant line of work. This was a preposterous suggestion. Such persons are no less deserving of the protection that the law accords to all other individuals. Indeed, the courts often consider such persons to be vulnerable victims, given their reluctance to come forward when offences are committed against them, for fear of compromising their illegal activities or questionable immigration status. Indeed, this aspect of the offence which the respondent knew about from the outset should, quite ironically, have been viewed as an aggravating feature … [emphasis added]

In my judgment, there are at least two primary reasons justifying the view that youthful offenders should ordinarily be sentenced on the basis of rehabilitation being the dominant sentencing consideration:

(a) First, there is the retrospective rationale, which seeks to justify giving a young offender a second chance by excusing his actions on the grounds of his youthful folly and inexperience. This rationale rests on the offender’s age at the time of the offence, in so far as it emphasises his relative lack of maturity and his state of mind when he was committing the offence.

(b) Second, there is the prospective rationale, which seeks to justify rehabilitation as the preferred tool to discourage future offending on the grounds that: (i) young offenders would be more receptive towards a sentencing regime aimed at altering their values and guiding them on the right path; (ii) society would stand to benefit considerably from the rehabilitation of young offenders, who have many potentially productive and constructive years ahead of them; and (iii) young offenders appear to suffer disproportionately when exposed to the typical punitive options, such as imprisonment, as compared to adult offenders. These considerations rest on the offender’s age at the time of sentencing, in so far as they emphasise his mentality and outlook at the time when he is facing the consequences of his earlier criminal conduct.

[original emphasis omitted]

In our judgment, the extent of the respondent’s intellectual disability significantly reduced the importance of both general and specific deterrence in this case. As we observed in Soh Meiyun v PP [2014] 3 SLR 299 at [43], general deterrence is premised on the cognitive normalcy of both the offender in question and the potential offenders sought to be deterred: see also PP v Kong Peng Yee [2018] 2 SLR 295 (‘Kong Peng Yee’) at [69]. Thus, the precise weight to be accorded to general deterrence would depend on, among other things, the casual link between the offender’s intellectual disability and the offence: see Kong Peng Yee at [70]. Specific deterrence assumes that the offender can weigh the consequences before committing an offence. It is therefore unlikely to be effective when the offender’s ability fully to appreciate the nature and quality of his actions is reduced: see Kong Peng Yee at [72]. As we have seen, the respondent is not cognitively normal, and did not fully understand the gravity of his offending conduct. Deterrence in both forms must therefore carry minimal weight here.

First, I would caution against any reliance on this case in the future for its precedential value because the present circumstances here were indeed exceptional in that the Appellant suffers from a rare genetic medical condition which causes him discomfort and anxiety. The circumstances in this case were also exceptional in relation to the strength of familial support which the Appellant enjoyed for his rehabilitation, his genuine remorse for the offences which he had committed and his commendable attitude and diligence towards his work endeavours.

Second, I would emphasise that I am in no way condoning the consumption of drugs for the relief of pain or discomfort arising from an existing medical condition. There are proper legal avenues for drugs to be administered or consumed for medical purposes. Persons who contravene the provisions of the MDA must be prepared to face the full brunt of the law. At the end of the day, each case would have to be assessed on its merits as to the proper sentence.

… juveniles should be treated as less culpable than adults because: (i) they have less capacity to assess and appreciate the harmful consequences of their actions; and (ii) they will have had fewer opportunities to develop impulse control and resist peer pressure to offend.

… in the context of sexual offences, we think there will often be a further benefit from a plea of guilt – namely, the victim will thereby be spared the trauma of having to relive the experience in court and being cross-examined on it. We therefore hold that offenders who plead guilty to sexual offences, even in cases where the evidence against them is compelling, ought ordinarily to be given at least some credit for having spared the victim additional suffering in this regard. [original emphasis omitted; emphasis added in italics]