B v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 09 December 2002
• Neutral Citation: [2002] SGHC 290
• Docket Number: Magistrate's Appeal No 155 of 2002
• Date: 09 December 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Ismail Hamid (Ismail Hamid & Co)
• Citation: [2002] SGHC 290
• Defendant Counsel: David Chew Siong Tai (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Evidence Act (Cap 97, 1997 Rev Ed) s 159,Weight of evidence,Uncorroborated evidence of child witness,Corroboration,Whether previous complaints amount to corroboration,Whether safe to convict without corroboration,Witnesses,Sexual offences,Reliability of evidence of child witness,Evidence

Judgment

GROUNDS OF DECISION

This was an appeal against conviction. The appellant, B, faced two charges under s 354 of the Penal Code (Cap 224) for using criminal force to outrage the modesty of his three-year old daughter, N. The first charge alleged that he molested her on 13 June 2001 in the playground near their flat, by touching her private parts with his finger. The second charge alleged that he molested her on 14 June 2001 on board a bus, again by touching her private parts with his finger. The punishment prescribed under s 354 is either a term of imprisonment that may extend to two years, or caning, or a fine, or with any two of such punishments. The appellant was found guilty on both charges by the district judge, who sentenced him to 15 months’ imprisonment per charge. Both sentences were ordered to run consecutively making it a total term of 30 months’ imprisonment. No caning was imposed as he was over 50 years old.

Background Facts

2 The appellant married Mdm Chin in December 1987. They have three children – J aged 13, K aged 9 and N aged 3. The appellant worked as a sales manager in a company. At the time of the trial, Mdm Chin was seeking a divorce from the appellant. She worked as a domestic helper.

3 Sometime in May 2001, the appellant left the family home in Bukit Panjang temporarily to live in a refuge centre at Waterloo Street. According to the appellant, he left the family home for two main reasons. First, because he was suicidal and wanted to commit suicide together with his children and secondly, because the illegal moneylenders, from whom he had taken loans, were pressing him for repayment.

4 He returned to the family home for the first time on 12 June 2001.

5 Sometime during the late afternoon on 13 June 2001, N told her mother that the appellant had touched her private parts, while she was on the "swing" in the playground downstairs. Her mother did not take her comment seriously as there were no swings in the playground that N was referring to. Mdm Chin also presumed that, even if the appellant had indeed touched N’s private parts, it would have been done accidentally.

6 On 14 June 2001, Mdm Chin was working. When she telephoned home from her workplace to check on her children, J informed her that the appellant had taken N out. Mdm Chin then told J to telephone the appellant and ask him to return home. J gave evidence that he called the appellant on his mobile phone and relayed the message to him. The appellant eventually returned home with N at around 1 p.m. J gave evidence that he noticed that N’s eyes "were red".

7 J also testified that he overheard his mother asking N if her father had touched her. N stated that he had and that he touched her on her "backside". According to J, N also pointed to her "left side" and touched her left buttock.

8 Mdm Chin gave evidence that as she was bathing N that night, N began to scream with pain, when she aimed the shower head at N’s private parts. Mdm Chin asked her if she had hurt herself or fallen down, to which the child responded, "No, must be Daddy touch and hurt me". N maintained this response even after being repeatedly questioned by Mdm Chin. When Mdm Chin examined N’s private parts more closely, she was shocked to discover that the left side of N’s vagina was a ‘bloody red colour’. Mdm Chin then asked N again whether she was certain that the injury was caused by her father. N replied in the affirmative. Mdm Chin testified that she was very upset to discover what her husband had done and was in tears.

9 When the appellant returned home at around 11 pm that night, Mdm Chin confronted him with what N had said. Mdm Chin testified that the appellant’s first reaction was to look at N and question her: "N, how can you say that? Daddy loves you so much". According to Mdm Chin, N "looked scared, shook her head" and ran to stand by Mdm Chin’s side. Mdm Chin then reassured her and asked N to confirm whether the appellant had touched her. N nodded in reply and said, "yes, Daddy touch". Mdm Chin immediately pointed out to the appellant that the accusation did not come from her, but directly from N. Upon hearing this, the appellant walked up to Mdm Chin and challenged her to make a police report, claiming that a lie-detector test would prove his innocence.

10 The appellant left home the following day. Mdm Chin did not go to the police station, nor did she bring N to see a doctor. This was because she claimed to have been still in a state of shock and confusion, even after consulting her sister as to what she should do.

11 On 25 June 2001, Mdm Chin telephoned her social worker to speak about the pressure that the appellant’s brother was putting on her to sell the family flat in order to repay the appellant’s debts. During the course of the conversation, she informed the social worker about N’s vaginal pain and her revelation that they were caused by the appellant touching her. Pursuant to her social worker’s instructions, Mdm Chin brought N for a medical examination that same day.

12 The medical examination revealed a tear in N’s hymen. According to Dr June Tan, a Registrar of the Department of General Obstetrics & Gynaecology at the KK Women’s and Children's Hospital, who examined N, the tear was beyond a week old. The cause of the tear was due to penetration of the vagina by a tubular object such as a finger, pen or pencil. It was also unlikely that a lot of force was used. She was also of the opinion that it was not possible for the tear to have been caused by the child performing a "split" with one leg stretched out in front and the other behind. This was because anatomically, the vagina was situated beyond the hip joints. It was also "highly unlikely" for the tear to have been caused through exercise unless there was a "history of severe trauma" to the vaginal area.

13 A police report was made by the hospital on that very day. On 25 June 2001 Mdm Chin and her three children also moved out of the family flat to stay with Mdm Chin’s sister in Bedok.

14 During cross-examination, Mdm Chin testified that she had spanked N’s hand on previous occasions when N had put her hand in her pyjamas and pulled at her panties. However, she denied that she had ever caned the child for putting her fingers into her own vagina.

The prosecution’s case

15 The prosecution’s main evidence against the appellant, was the testimony of N who was four years old at the time of the trial. N gave evidence of the two incidents of molest. In relation to the first alleged incident, she stated that her "daddy" brought her to the playground near their home during "morning time" one day. She stated that her father touched her "private parts" with his fingers. It was painful. She later told her mother about the incident. As for the second alleged incident, she gave evidence that her father touched her vagina when she was sitting on her father’s lap, facing him in a bus. It was painful when her father touched her vagina. She told her mother about this incident as well.

16 During cross-examination, N denied touching herself "where she pass urine".

17 According to the prosecution, N’s evidence relating to the two incidents of molest were corroborated by the evidence of Mdm Chin, who testified that N had told her about the two incidents, as well as the medical evidence.

The defence

18 The appellant’s defence was one of total denial. As regards the first incident, the appellant denied bringing N to the playground but only to the void deck where there was a considerable amount of human traffic. He also gave evidence that J went down to the void deck together with them. J then left to buy breakfast. After J bought breakfast, all three of them returned home together.

19 As regards the second incident, the appellant testified that he brought N out that morning with the intention of going to the Shell petrol station in Jalan Jurong Kechil so that he could exchange his Shell reward points for some toys. J and A did not accompany them as they were playing a board game at home. In order to get to the petrol station, the appellant and N had to take a feeder bus to Bukit Panjang Interchange where they then boarded bus number 970. On...