PP v Khor Khai Gin Davis: Sentencing for Attempted Rape and Sexual Offences
In Public Prosecutor v Khor Khai Gin Davis, the High Court of Singapore sentenced Khor Khai Gin Davis for offenses including attempted statutory rape and sexual penetration of minors. The case involved messaging girls on Instagram for sexual acts in exchange for cash. The court addressed a novel issue concerning sentencing for attempted rape after legislative changes. Khor Khai Gin Davis was sentenced to 12 years and six months’ imprisonment and 13 strokes of the cane.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Accused sentenced to 12 years and six months’ imprisonment and 13 strokes of the cane.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Khor Khai Gin Davis was sentenced for attempted rape and other sexual offenses against minors, raising novel issues in sentencing guidelines.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Prosecution | Government Agency | Judgment for Prosecution | Won | Edwin Soh Chin Yuen, Theong Li Han |
| Khor Khai Gin Davis | Defendant | Individual | Sentenced | Lost | Kang Kok Boon Favian |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Pang Khang Chau | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Edwin Soh Chin Yuen | Attorney-General’s Chambers |
| Theong Li Han | Attorney-General’s Chambers |
| Kang Kok Boon Favian | Adelphi Law Chambers LLC |
4. Facts
- The accused messaged multiple girls on Instagram, asking them whether they needed a part-time job or cash.
- The accused invited the girls to his residence for the purpose of engaging in sexual acts with them in exchange for cash.
- At least four girls, between 13 and 17 years old, responded and went to his residence.
- The accused performed sexual acts on three of these girls at his residence.
- On 21 August 2020, the accused attempted to penetrate the vagina of V1 with his penis at his residence.
- On 23 February 2021, the accused sexually penetrated V1’s vagina with a vibrator at his residence.
- The accused communicated on more than one occasion with V3 and met her for the purpose of committing the offence of sexual penetration of a minor.
5. Formal Citations
- Public Prosecutor v Khor Khai Gin Davis, Criminal Case No 69 of 2022, [2023] SGHC 304
6. Timeline
| Date | Event |
|---|---|
| Section 167 of the Criminal Law Reform Act 2019 came into force | |
| Accused attempted to penetrate the vagina of V1 | |
| Accused committed offences against V2 | |
| Accused messaged V1 on Instagram | |
| Accused arrested | |
| Accused sexually penetrated V1 with a vibrator | |
| First hearing date | |
| Hearing date | |
| Judgment delivered |
7. Legal Issues
- Sentencing for Attempted Rape
- Outcome: The court adopted a two-stage approach for sentencing attempted rape offences committed on or after 1 January 2020.
- Category: Substantive
- Sub-Issues:
- Application of sentencing frameworks
- Discount for inchoate offences
- Culpability assessment
- Related Cases:
- [2017] 2 SLR 449
- [2020] 4 SLR 790
- Sentencing for Sexual Penetration of a Minor
- Outcome: The court applied the Pram Nair framework to determine the sentence for sexual penetration of a minor.
- Category: Substantive
- Sub-Issues:
- Application of Pram Nair framework
- Aggravating factors
- Mitigating factors
- Related Cases:
- [2017] 2 SLR 1015
- [2022] SGHC 244
- Sentencing for Sexual Grooming
- Outcome: The court considered the case of Public Prosecutor v Lee Seow Peng as a helpful starting point and imposed a sentence of nine months’ imprisonment for the Tenth Charge.
- Category: Substantive
- Sub-Issues:
- Premeditation
- Pressure exerted on victim
- Personal mitigating factors
- Related Cases:
- [2016] SGHC 107
8. Remedies Sought
- Imprisonment
- Caning
9. Cause of Actions
- Attempted Statutory Rape
- Sexual Penetration of a Minor
- Sexual Grooming
10. Practice Areas
- Criminal Law
- Sentencing Guidelines
11. Industries
- Law
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Ng Kean Meng Terence v Public Prosecutor | Court of Appeal | Yes | [2017] 2 SLR 449 | Singapore | Established the framework for sentencing rape offences, which was adapted for attempted statutory rape. |
| Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others | High Court | Yes | [2020] 4 SLR 790 | Singapore | Applied the Udhayakumar approach for determining punishment for attempted rape. |
| Pram Nair v Public Prosecutor | Court of Appeal | Yes | [2017] 2 SLR 1015 | Singapore | Transposed the Ng Kean Meng Terence framework to apply to the offence of sexual assault by penetration. |
| Public Prosecutor v Huang Shiyou | High Court | Yes | [2010] 1 SLR 417 | Singapore | Illustrates the arbitrariness of the statutory one-half limit. |
| Public Prosecutor v Merina Ng Su Yi | District Court | Yes | [2022] SGDC 17 | Singapore | The approach adopted lends support to the two-stage approach proposed by the Prosecution. |
| Public Prosecutor v Mas Swan bin Adnan and another appeal | Court of Appeal | Yes | [2012] 3 SLR 527 | Singapore | Mas Swan’s acceptance of the approach taken in R v Szmyt and R v Wolin lent support to the Prosecution’s Proposed Approach. |
| Regina v Tomasz Szmyt | English Court of Appeal | Yes | [2010] 1 Cr App R (S) 69 | England and Wales | The English Court of Appeal held that the proper approach was to first consider what would have been the appropriate sentence if 1,998 ecstasy tablets had been imported, and then apply a discount to account for the fact that the actual substances imported were harmless tablets. |
| R v Magdalen Genevieve Wolin | N/A | Yes | [2006] 1 Cr App R (S) 133 | England and Wales | The court there similarly applied a discount to account for the fact that the offender was charged with an attempt and not a completed offence, and the fact that the substance imported was not a prohibited substance. |
| R v Reed and another | English Court of Appeal | Yes | [2021] 1 WLR 5429 | England and Wales | The two-stage approach adopted in Reed applied also to the sentencing of attempts. |
| Attorney General’s Reference No. 94 of 2014 (R v Baker) | N/A | Yes | [2016] 4 WLR 121 | England and Wales | To categorise the attempted offence within Category 3 (the least severe “Harm” category) of the Sexual Offences: Definitive Guideline published by the Sentencing Council for England and Wales |
| R v Privett & Others | N/A | Yes | [2020] EWCA Crim 557 | England and Wales | The proper sentencing position under the Guideline was, first, to identify the category of harm by reference to the type of sexual activity the defendant intended, and, second, to adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) |
| Attorney General’s Reference No. 79 of 2013, R v C (G) | N/A | Yes | [2014] EWCA Crim 1152 | England and Wales | In deciding the sentence for attempted rape, the court in R v C(G) looked first at the likely sentence for a completed rape offence before applying a discount on account that the offence was not completed. |
| R v Billam and others | N/A | Yes | [1986] 1 WLR 349 | England and Wales | The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. |
| R v BI (No 4) | N/A | Yes | [2017] ACTSI 71 | Australian Capital Territory | Extracted the ten principles concerning the sentencing of an attempt to commit an offence |
| FV v R | N/A | Yes | [2006] NSWCCA 237 | New South Wales | The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed |
| Taouk | N/A | Yes | (1992) 65 A Crim R 387 | New South Wales | where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded |
| Noble | N/A | Yes | (1994) 73 A Crim R 379 | New South Wales | The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed |
| R v Schofield | N/A | Yes | (2003) 138 A Crim R 19 | New South Wales | The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed |
| Mokbel v R | N/A | Yes | [2011] VSCA 34 | Victoria | The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed |
| Tai v Western Australia | N/A | Yes | [2016] WASCA 234 | Western Australia | The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed |
| Couloumbis v R | N/A | Yes | [2012] NSWCCA 264 | New South Wales | That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail |
| R v Haidar | N/A | Yes | [2004] NSWCCA 350 | New South Wales | That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail |
| Potts v R | N/A | Yes | [2017] NSWCCA 10 | New South Wales | That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail |
| R v Spaull | N/A | Yes | [1999] VSCA 18 | Victoria | Some authorities, however, suggest that this may make no difference |
| R v McQueeney | N/A | Yes | [2005] NSWCCA 168 | New South Wales | The seriousness will, as in the case of most offences, depend on all the circumstances of the case |
| Irusta | N/A | Yes | [2000] NSWCCA 391 | New South Wales | It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused |
| R v Falls | N/A | Yes | [2004] NSWCCA 335 | New South Wales | It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused |
| Dooling v Western Australia | N/A | Yes | [2012] WASCA 95 | Western Australia | The seriousness will, as in the case of most offences, depend on all the circumstances of the case |
| Lovett v Western Australia | N/A | Yes | [2013] WASCA 78 | Western Australia | The seriousness will, as in the case of most offences, depend on all the circumstances of the case |
| AQW v Public Prosecutor | Court of Appeal | Yes | [2015] 4 SLR 150 | Singapore | The absence of similar guidelines and statutory requirements in Singapore did not prevent the Singapore courts, in the exercise of their sentencing discretion, from adopting an approach similar to that applied in the UK, if such an approach was assessed by the Singapore courts to be just and proper. |
| ABC v Public Prosecutor | High Court | Yes | [2022] SGHC 244 | Singapore | The Pram Nair framework was applicable to offences sentenced under s 376A(3) PC which did not relate to penile-vaginal penetration |
| Public Prosecutor v BAB | Court of Appeal | Yes | [2017] 1 SLR 292 | Singapore | The sentencing starting point of three years’ imprisonment in that case had been expressly qualified by reference to its circumstances, ie, where there was an element of abuse of trust. |
| Public Prosecutor v Lee Seow Peng | High Court | Yes | [2016] SGHC 107 | Singapore | A sentence of 12 months’ imprisonment was imposed for the offence of sexual grooming under s 376E(1) punishable under s 376E(4)(b) of the PC, a helpful starting point. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 511 | Singapore |
| Criminal Law Reform Act 2019 (Act 15 of 2019) s 167 | Singapore |
| Penal Code s 512 | Singapore |
| Penal Code s 376A(1)(b) | Singapore |
| Penal Code s 376A(3) | Singapore |
| Penal Code s 375(1)(b) | Singapore |
| Penal Code s 375(2) | Singapore |
| Penal Code s 376E(1) | Singapore |
| Penal Code s 376E(4)(b) | Singapore |
| Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 12 | Singapore |
| Criminal Attempts Act 1981 (c 47) (UK) s 4(1)(b) | United Kingdom |
| Sexual Offences Act 2003 (c 42) (UK) s 10(1) | United Kingdom |
| Sexual Offences Act 2003 (c 42) (UK) s 10(2) | United Kingdom |
| Sexual Offences Act 2003 (c 42) (UK) s 14 | United Kingdom |
| Sentencing Act 2020 (c 17) (UK) s 63 | United Kingdom |
| Criminal Code 2002 (ACT) s 44(9) | Australian Capital Territory |
| Crimes Act 1900 (NSW) s 344A(1) | New South Wales |
15. Key Terms and Keywords
15.1 Key Terms
- Attempted Rape
- Sexual Offences
- Sentencing Framework
- Statutory Rape
- Sexual Penetration
- Sexual Grooming
- Premeditation
- Vulnerable Victim
- Discount
- Culpability
15.2 Keywords
- attempted rape
- sexual offences
- sentencing
- criminal law
- Singapore
16. Subjects
- Criminal Law
- Sentencing
- Sexual Offences
17. Areas of Law
- Criminal Law
- Sentencing
- Sexual Offences
- Criminal Procedure