SINGAPORE - Convicted Swiss banker Juerg Buergin, currently in jail for having sex with an underage prostitute, is taking his case to the Court of Appeal to settle a "public interest" issue.
Buergin saw his appeal against conviction dismissed by the High Court earlier this month and is seeking the apex court's ruling on whether he had to have known the girl was underage to be deemed guilty of the offence.
The 41-year-old former UBS executive director was convicted by a district court in April of two charges of paying a 17-year-old for sex and was sentenced to 19 weeks' jail. The two offences occurred in hotels in September 2010 and January 2011.
Criminal case appeals against district court judgments ordinarily end in the High Court. Any further application to the Court of Appeal is only considered when the issues involve interpretation of the law which is of public interest.
The issue of lack of knowledge about the girl's age had been central in his defence, and his appeal to the High Court was the first among 51 cases involving the same girl to be tested on appeal.
Buergin claims he asked for her identification but she showed him her older sister's identity card. The district court found that Buergin did not know the girl was underage.
Buergin's lawyer, Mr Selva K. Naidu, who visited him at Admiralty West Prison on Thursday, said he was instructed to take the case to the Court of Appeal as a "question of law of public interest".
The move comes in the wake of High Court judgment grounds released on Thursday, explaining why Buergin's appeal was dismissed.
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Justice Choo Han Teck made it clear that Buergin's claim of not knowing the girl was underage meant he may be a victim of a separate offence of cheating. However, that claim did not clear him of the underage sex charge.
The judge added that Buergin's mistake could have helped in deciding his sentence.
"But since there was no appeal against sentence and neither the prosecution nor defence raised it, I will not make any comment on the sentence," said Justice Choo.
Buergin had appealed to the High Court against his conviction only.
Mr Naidu argued at the High Court that prosecutors had to prove Buergin intended to have sex with the underage girl and since he did not know she was underage, he could not have had the intention. He pointed out the law presumed that intention is a required element in all statutory offences.
Justice Choo ruled he had "no difficulty" in accepting that Parliament, in making laws, would not "make criminals of persons who were not blameworthy".
But the judge pointed out the relevant section of the Penal Code "stood in the way" of Buergin's defence as it specifically forbids such a defence to be raised in the case of sex with an underage girl. Such a defence of reasonable mistake is only open to an accused person aged under 21.
Buergin had argued in the High Court that he was cheated by the pimp and the girl into believing she was not underage. That made him a "victim" and not an offender, said Mr Naidu.
However, Justice Choo replied: "I am not aware of any known defence in criminal law that a person is not guilty of an offence if he was the victim of some other offence. The appellant may have been a victim of a cheating offence by (the pimp) or (the girl), but that is not a defence."
A total of 51 men were charged last year with having paid sex with the same underage girl. Buergin, a father of two, was the first to claim trial.
So far, 19 others have been convicted and sentenced to between eight and 16 weeks' jail.
Two have appealed against their sentences and two other trials are ongoing in the lower courts.
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