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.
