FEATURE

Over the last year or so, the public have been treated to a media sensation surrounding the arrest and charging of over 50 men with having commercial sex with a minor. This series of prosecutions has turned the spotlight on Singapore’s regulation of sex, particularly commercial sex. The central policy issue at the heart of these prosecutions is what age a person must attain before their sexual activities can be considered legitimate or permissible in law.

Sex, Money, Lies and Punishment

Introduction
 
The first part of this article will highlight some of the legal restrictions relating to sexual activity in Singapore and attempt to deduce from these what public policy on sex, particularly commercial sex, is in Singapore. We will then examine how the doctrine of absolute liability fits into the overall public policy framework regarding the regulation of sex and make recommendations on how to reform the law to better reflect a more harmoniously consolidated public policy on sex and commercial sex. Finally, we will take a look at some of the sentencing principles employed in some of the above-mentioned convictions that have already been handed down and try to determine whether the Courts, in their efforts to ensure consistent sentencing, have overlooked or failed to give due consideration to some mitigating factors, and in doing so, perhaps posited an interpretation of legislative intent in this area that is self-contradictory.
 
Sex, Money …
 
Public policy on sex is nuanced. Sex is encouraged, permitted or prohibited in various contexts. Monogamous, heterosexual, procreative sex within the context of marriage is strongly and unambiguously encouraged and such encouragement is expressed through various means such as tax legislation, HDB rules and marketing campaigns. Prohibitions on various kinds of sex are contained in ss 375-377D of the Penal Code. These include rape, sex with persons under 16, commercial sex with persons under 18, incest, necrophilia, bestiality and male homosexual sex. Promiscuity, pre-marital and extra-marital sex, as well as prostitution are permitted as the law is silent on these activities. This article focuses on the legality of commercial sex and the illegality of commercial sex with a person under 18.
 
The timeline of the sexual milestones in a law-abiding young person’s life in Singapore could, therefore, be conceivably presented as follows:
 
Age Permissible Activity
16 Engage in consensual sex without remuneration
16 Engage and pay for the services of a sex worker
18 Become a sex worker and engage in consensual sex for remuneration
21 Watch a film containing explicit depictions of sexual intercourse
 
 
As shown in the timeline above, a person may lawfully work as a prostitute for three years before being legally permitted to watch a film containing explicit depictions of sexual intercourse. This exposes a major paradox in public policy. This article is primarily concerned (as are the over 50 men referred to above) with the differing ages at which commercial sex and non-commercial sex become legally permissible, in the context of a legal regime where prostitution is legal.
 
The prohibition on commercial sex with those under 18 years of age is set out in s 376B (1) of the Penal Code:
 
      Any person who obtains for consideration the sexual services of a person, who is under 18 years of age, shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.
 
The rationale for prohibiting commercial sex with persons under 18 years of age while continuing to permit prostitution generally and maintaining the minimum age for consensual non-commercial sex at 16 was very clearly expressed in Parliament during the debate on amending the Penal Code to introduce, inter alia, the above section:
 
      Sir, whilst prostitution per se is not an offence, new section 376B will make it an offence for a person to solicit, communicate or obtain sexual services from a minor under 18 years of age. Young persons, because they are immature and vulnerable and can be exploited and, therefore, should be protected from providing sexual services ... [W]e decided to set the age of protection at 18 years so as to protect a higher proportion of minors… whilst maintaining the age of consent for consensual non-commercial sexual activities at the age of 16.1
 
      It is important for the Government to recognise that there is the possibility of young impressionable persons who are prepared to sell their sexual services just to earn some extra income. For some of them, they are simply immature or vulnerable.  For others, they may need money but do not know where to turn to for financial help.  And there may be others who may have succumbed to the craving for the ownership of luxury material goods. We should not allow such young and impressionable persons to be exploited by sexual predators.2
 
Therefore, it is Parliament’s view that a 16-year-old has sufficient maturity to decide whether or not to engage in sexual activity without financial reward. However, when the temptation of money is added to that of sex, a 16-year-old may not be able to make a decision that balances both these factors proportionately and with due consideration. It appears that the maturity of an 18-year-old is required to conduct a holistic assessment of the benefits and disbenefits of engaging in sex for money. At the same time, this policy recognises the autonomy of adults to make the decision to enter the world’s oldest profession and of persons over 16 years of age to buy sexual services from strangers. Without making any value judgement on this policy, this reasoning can certainly be said to be entirely plausible.
 
Lies …
 
This reasoning starts to break down when the full force of the law is applied to those whose sex workers lie to them about their age by holding themselves out to be 18 years or older when in fact they are under the age of 18. This approach, only applicable to those customers who are 21 years or older, has been enshrined in the Penal Code at s 377D:
 
      (1) … a reasonable mistake as to the age of a person shall not be a defence to any charge of an offence under section … 376B …
 
Accordingly, the Courts have treated this offence as one of “strict and absolute liability”,3 ie one for which there is no legal defence.4 Almost all the men who have been prosecuted to date in the ongoing series of prosecutions referred to previously claimed that they had no idea that the sex worker they engaged was under 18. Many of them asked the sex worker for her age and she assured them that she was 18-years-old. Some apparently even asked for ID but were refused. All of these men were convicted and given a custodial sentence despite never having intended to have commercial sex with a person under 18 years of age. Herein lies the great paradox of public policy. Here we have a legal regime that allows people to pay others for sexual services on the one hand but punishes them for doing so if, in doing so, through no fault of their own and despite their best efforts, they inadvertently engage the sexual services of a person under 18 years of age. The message this sends to the general public is that there is no safe way to engage the services of a sex worker without exposing oneself to criminal liability. This is a most unsatisfactory conclusion with regard to an activity which, strictly speaking, in the eyes of the law, is as innocuous as flying a kite or walking a dog.
 
The Courts’ response to this legislative dichotomy has been to issue judgements that betray an implicit disapproval of the buying of sexual services generally, without regard for its legality, and to suggest that each of the men convicted of inadvertently engaging an underage sex worker was the author of his own misfortune for having the audacity to seek out legitimate commercial sex in the first place.
 
      He chose to use the services of a commercial sex worker. He chose to take the risk that she may well be below 18 years of age. He chose to be reckless and therefore must bear the consequences.5
 
With respect, the legislative dichotomy referred to above seems to have, quite understandably, created confusion in the Courts on the legal legitimacy of commercial sex in Singapore generally. In various other jurisdictions, debate has raged on whether prostitution should be legal. In jurisdictions where prostitution is illegal, the main argument for decriminalisation is removing the socially damaging impact of criminal gangs and human traffickers from the sector and the benefits that regulation can bring to public health, public safety and the protection of vulnerable minors. The debate on whether to criminalise prostitution has been conspicuously absent in Singapore, from which one would have to presume that there is no public support for the idea. However, also absent is the most significant justification for decriminalising commercial sex: full regulation.
 
Although there is some regulation of the sex industry in Singapore, this has yet to result in the benefits one would expect. Singapore has, for the last few years, been ranked by the US State Department as a Tier 2 trafficking destination. This means that Singapore does not fully comply with the minimum standards for the elimination of trafficking although it is making significant efforts to do so.6 Prostitution is still largely controlled by pimps and evidently, some minors continue to be exploited in the sex industry despite the inclusion of ss.376B and 377D to the Penal Code. The latter is due to a combination of factors, but one of those factors is the Government’s “farming out” of its regulatory responsibilities to the general public.
 
If a person wishes to purchase cigarettes or see an R21 movie, he is required to produce on demand an identification card proving that he is old enough. If he produces a forged identification card which claims that he is old enough, the merchant selling the cigarettes or screening the movie is absolved from all liability. There is no equivalent of s 377D for these industries that would deny these merchants recourse to the defence of mistake. In fact, in the case of the sale of tobacco, the defence of reasonable mistake as to age is explicitly provided for in legislation.7 Persons selling these goods and services have to be licenced by the Health Sciences Authority and Media Development Authority respectively. The Government sees potential risks to the health and welfare of minors in these sectors and, therefore, regulates their access to them but ultimately does not penalise merchants who are duped by unscrupulous minors.
 
Sex workers are not licenced per se. They are not legally required to produce identification to their customers on demand. Although sex workers are issued permits to ply their trade by the police, there is no legal requirement for them to produce these permits to customers on demand and no legal consequences for them if they refuse to do so. Nor are there any consequences for them should they provide paid sexual services after lying and explicitly claiming to be over 18 years of age when they are not. This is in stark contrast to the law relating to minors’ purchase of cigarettes. Any person under 18 years of age who purchases, uses or has in his possession a tobacco product is guilty of an offence and liable upon conviction to a fine of up to $300.8 Only in the sex industry is the party who is deceived, after making reasonable enquiries as to age, guilty of an offence, with the deceiving party remaining innocent.
 
The untenable position that the law has created is that all of the responsibility for ensuring that a sex worker is old enough to be a legal sex worker lies with the customer who, unlike a statutory licencing authority, has no statutory powers to demand proof of age in order to allow the sex worker to engage in her occupation. To say that a customer has the power to simply refuse to engage a sex worker who cannot produce ID fails to acknowledge that: (i) for obvious reasons, it is common practice for all sex workers to refuse to provide ID; and (ii) that refusal to engage a sex worker who cannot produce ID does nothing to protect underage sex workers from being exploited by actual paedophiles, which is the purported parliamentary intent behind ss 376B and 377D.
The existence of absolute liability in these circumstances muddies the already murky waters of public policy on commercial sex and creates an inherent paradox in the law that can only be resolved by changing the law in one of two ways:
 
1.   Criminalise prostitution: If the public policy on this issue is that prostitution is just bad and not in the public interest, then the only way to express this through legislation is to ban it outright on pain of criminal conviction, whether of the sex worker, customer, brothel owner or some combination of these; or
 
2.   Fully regulate prostitution: If the public policy on prostitution is that it is acceptable because its potential adverse effects on public health, the safety of children and law and order can be properly managed, then the only sensible way to express this through legislation is to create a comprehensive and transparent regulatory regime that clearly defines and enforces what is acceptable and what is not. To do this properly, a statutory board should be established to regulate and licence the sex industry, as has been done in other jurisdictions9. All sex workers should be licenced by this statutory board, who would have the responsibility of ensuring that every licensee was over 18, free of venereal disease and entering the sex industry of her own free will. This board would issue a permit which would include a passport photograph and date of birth to each sex worker who would then be required to carry it and produce it upon demand to customers. Customers should be required to demand its production before engaging a sex worker. Having sight of a plausibly forged permit would be a complete defence to any charge of engaging an underage sex worker. Implementing such a regime would not place a financial burden on the state that would be significantly more onerous than the regulation of taxi drivers and doing so could lead to the creation of an environment where the exploitation of child sex workers becomes highly impracticable. In formulating such a regulatory regime, we should draw upon the experience of other developed countries where prostitution is licenced.10
 
Punishment …
 
However, in the meantime, having commercial sex with a person under 18 years of age remains an offence of absolute liability to which no defence is available although some traditional defences still serve as mitigating factors. It would be useful then to take a look at how the Courts have weighed up those factors in recent case law and to see whether some coherent sentencing principles can be derived from these decisions.
 
Despite the operation of a number of mitigating and aggravating factors, the sentences handed down all tend to be within or around the range of 9-12 weeks’ imprisonment, far from the upper limit of seven years. Accordingly, we can assume that the effects of these factors are somewhat limited and that there is a consistent approach from the Courts to keep sentences around this range. Examples of specific sentences which have been handed down are as follows:
 
1.   PP v Lee Lip Hong– pleaded guilty to one charge and TIC another charge: 9 weeks’ imprisonment
 
2.   PP v Shaw Chai Li Howard– pleaded guilty to one charge: 12 weeks’ imprisonment
 
3.   PP v Chiang Meng Chuan– pleaded guilty to one charge and TIC one charge: 12 weeks’ imprisonment
 
4.   PP v Tan Wee Kiat– pleaded guilty to one charge: 12 weeks’ imprisonment
 
5.   PP v Tan Kok Wee– pleaded guilty to one charge: 12 weeks’ imprisonment
 
6.   PP v Ban Yinh Jheow– pleaded guilty to one charge and TIC two charges: 13 weeks’ imprisonment
 
7.   PP v Raziuddin Bin Mohamed Naseem–pleaded guilty to one charge: 12 weeks’ imprisonment
 
8.   PP v Louis Lee Lip Kian– pleaded guilty to one charge: 12 weeks’ imprisonment
 
9.   PP v Wilson Oei– pleaded guilty to one charge: accused was relatively young – 24 years old: 9 weeks’ imprisonment
 
10.PP v Pyi Kyaw Han– pleaded guilty to one charge and TIC one charge: 12 weeks’ imprisonment
 
11.PP v Lee Tian Song– pleaded guilty to one charge: 12 weeks’ imprisonment
 
12.PP v Chan Wei Kiat– pleaded guilty to one charge- accused was relatively young – 25 years old: 11 weeks’ imprisonment
 
13.PP v Choong Sin Jian– pleaded guilty to one charge and TIC one charge: 11 weeks’ imprisonment
 
14.PP v Lee Ching Hsuin– pleaded guilty to one charge: 12 weeks’ imprisonment
 
15.PP v Lee Vin Sen– pleaded guilty to one charge- Accused took over a friend’s booking: 10 weeks’ imprisonment
 
16.PP v Tan Wei Siong– pleaded guilty to one charge: 11 weeks’ imprisonment
 
17.PP v Lim Kok Tong– pleaded guilty to one charge- Accused had asked for girl below 17 years old but was told by pimp that minor was 18: 16 weeks’ imprisonment
 
The authority on sentencing for this offence comes from the High Court case of Tan Chye Hin v Public Prosecutor.11In that case, Lee Seiu Kin J set out the sentencing principles for this offence as follows:
 
      At the least blameworthy end of the spectrum would be an accused who unwittingly and unintentionally engages the sexual services of a person who is just below the age of 18 years but whose appearance and demeanour do not suggest that he or she is below 18 years of age. The accused checked the age of the minor but was given a good forgery of an identity document that showed that he or she was over 18 years old. In those circumstances, a fine could be appropriate in the absence of other aggravating factors.
 
      At the most blameworthy end of the spectrum would be an accused who actively seeks sex with young prostitutes by specifying to the pimp that he wants them young, paying large sums of money if the pimp is able to procure very young ones, and engaging in sex with them even with the knowledge that they had been coerced into the trade. With additional aggravating factors such as the manner in which the accused treated the minor and a long list of relevant antecedents, the sentence under these circumstances may well be at or near the maximum provided for under s 376B of the Penal Code.12
 
These factors demarcate the whole range of sentences from a fine to seven years’ imprisonment. However, it seems that no cases falling anywhere near the most blameworthy end of the spectrum have come before the Courts yet as the nine-month sentence meted out in the above case is among the highest handed down for this offence, and even then, 9 months is much more severe than the seemingly standard two-four-month sentences which have typically been given in the most recent spate of prosecutions, where most of the offenders were unaware that the sex worker was under 18 years of age. In the above case, the accused sought the sex worker’s sexual services despite knowing that she was 17 years of age which was an aggravating factor. However, this nine-month sentence is in stark contrast to the 16-week sentence handed down in PP v Lim Kok Tong,13where the offender actually requested and was provided with a sex worker who was younger than 17 years of age, although he was led to believe that she was in fact 18 years of age. Although the circumstances in these two cases were slightly different, one would not expect the difference in sentence to be as significant as five months.
 
A mitigating factor that was considered relevant in all of these cases was whether the accused took any steps to verify the age of the sex worker. Where the accused asked for the sex worker’s age, he was given some credit, particularly if he asked for identification. However, where the accused relied on written representations of the sex worker’s age in advertising material, he was chastised for not making further enquiries, regardless of their futility. For the reasons outlined earlier in this article, an accused person’s lack of knowledge of a sex worker’s underage status should be a complete defence but as this is not the case, it makes sense for it to be a mitigating factor. However, the Courts have insisted on delving into this lack of knowledge to a level of granularity that attaches importance to the number and nature of inquiries made by the accused as to the sex worker’s age. This unfortunately ignores the fact that a sex worker will never produce identification with her name on it as well as the fact that if sex workers and pimps are untruthful in advertising material, they are unlikely to develop a conscience and become truthful when questioned in person. Accordingly, this factor has little bearing on the likelihood that children will be protected from a life of prostitution.
 
Although not mentioned in the leading High Court authority of Tan Chye Hin v Public Prosecutor, an aggravating factor that the District Court has applied in sentencing is the existence of a wide age gap between the accused and the sex worker. The rationale for this is not immediately obvious. Perhaps it represents a misapplication of the approach taken in non-commercial underage sex cases where both consenting parties are relatively young and about the same age and the assumption is that the sex took place in the context of a juvenile relationship. Under these circumstances, both parties are regarded, to some extent as victims of their own immaturity, and sentences are usually minimal if there is any prosecution at all. However, this cannot be said to be the case in the context of prostitution where there is no suggestion of the existence of a relationship. Surely in the context of a commercial transaction of money for sex, the age of the client cannot be a relevant factor in whether or to what extent the transaction itself is wrongful. Nevertheless, this seems to be the approach taken by the legislature by making ignorance of the sex worker’s age a complete defence for accused persons under 21.14 The Courts seem to have extended this approach by allowing an accused person’s relative youth to operate as a mitigating factor in itself and accused persons in their mid-twenties have received slightly lower sentences as a result.15
 
Overall, the weighting of mitigating and aggravating factors is arguably disproportionate and it is submitted that some of those factors are not appropriate for consideration at all. Meanwhile, there are other relevant factors that are given insufficient or no aggravating or mitigating weight. It seems that the primary sentencing principles for this offence are maintaining similar sentences for each case around the
9 (nine)-12 week range and deterring accused persons from insisting on a trial. It is submitted that this is not where the priorities of the sentencing regime for this offence should lie.
 
Conclusion
 
As illustrated above, the current law on sex, in particular the illegality of commercial sex with a person under 18, is imperfect in both reasoning and execution. While the intended deterrent effect on potential offenders is logical, the nature of the legislation means that it catches not only sex predators, but also unsuspecting members of the public who have inadvertently had paid sexual intercourse with a person under 18 through no fault of their own. It is Parliament’s view that the State should protect vulnerable young persons from the temptation of providing sexual services for consideration, but it is submitted that ss 376B and 377D fail to achieve this objective in circumstances where these young sex workers lie to their customers about their age, particularly if the customers have made reasonable efforts to confirm the sex workers’ age before engaging them.
 
It seems that Parliament has taken the middle ground between allowing prostitution and applying the caveat emptorprinciple to consumers of legitimate commercial sex, but this middle ground does not represent an acceptable compromise between the two. The State has taken an unusually hostile stance towards customers of sex workers by stripping them of all defences notwithstanding that they have been victims of deceit. Ultimately, only the state possesses the coercive power and the moral authority to regulate prostitution. Instead, it has chosen to push this obligation onto unsuspecting individual consumers. The current law as outlined above, reflects an inert political compromise between pragmatic considerations regarding the inevitability of prostitution in one form or another, and the preservation of conservative values in society. This has been achieved by enshrining in law a tacit disapproval of commercial sex generally without an accompanying strong public effort to properly gate-keep entry to the sex industry by children. This mere disapproval is as cold a comfort to underage sex workers as it is to members of the public who have served prison sentences for having been deceived by them. They are both victims of a legal framework that, in trying to achieve the important objective of protecting children, has instead focused on deterring legitimate consumers from participating in the sex industry at all in order to avoid the hard work and responsibility inherent in properly regulating it.
 
* The views expressed herein are the authors’ own and do not necessarily represent those of the Criminal Practice Committee, the Law Society of Singapore or Harry Elias Partnership LLP.
 


► A Sangeetha*
    Harry Elias Partnership LLP
    E-mail: [email protected]



► Eoin Ó Muimhneacháin*
    Executive Legal Officer
    Pro Bono Services Office
    The Law Society of Singapore
    E-mail: [email protected]

Notes
1       Second Reading of the Penal Code (Amendment) Bill (Singapore Parliament Reports, Volume 83, 22 October 2007), Senior Minister of State for Home Affairs (Assoc. Prof Ho Peng Kee).
2       Second Reading of the Penal Code (Amendment) Bill on 23 October 2007,  Mr Lim Biow Chuan (Member of Parliament for Mountbatten).
3       PP v Shaw Chai Li Howard [2012] SGDC 319 at 11.
4       For a comprehensive discussion on the doctrine of absolute liability see Public Prosecutor v Buergin Juerg[2013] SGDC 143.  Note that this case is currently under appeal.
5       PP v Loy Hee Cheng[2013] SGDC 4 at 50.
6       Trafficking in Persons Report 2012, US Department of State.
7       Section 10(2), Tobacco (Control of Advertisements and Sale) Act, Cap 309.
8       Ibid at s 11.
9       Example Queensland’s Prostitution Licensing Authority.
10     The Dutch legislature is considering a bill that would require all sex workers to carry a registration pass and would require their clients to check it. It would also require brothels and escort agencies to display their licence at their premises and to include their licence number and the registration numbers of their sex workers in any relevant advertisements.
11     [2009] 3 SLR(R) 873.
12     Ibid at 12, 13.
13     DAC 013464-2012.
14     Section 377D(2), Penal Code (Cap 224).
15       PP v Wilson Oei DAC 013471-2012(nine weeks) and PP v Chan Wei Kiat DAC 013468-2012 (11 weeks).