Chng Yew Chin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah J
• Judgment Date: 08 August 2006
• Neutral Citation: [2006] SGHC 138
• Docket Number: Magistrate's Appeal No 152 of 2005
• Date: 08 August 2006
• Year: 2006
• Published date: 22 September 2006
• Plaintiff Counsel: Harbajan Singh (Daisy Yeo & Co)
• Citation: [2006] SGHC 138
• Defendant Counsel: Hay Hung Chun (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Principles,Evidence,Appellant sentenced to term of imprisonment and caning for one of three charges for offences of outrage of modesty,Whether complainant's testimony unreliable because of inconsistencies,Complainant sole witness to and victim of sexual offences committed by appellant,Whether court should exercise judicial mercy on account of appellant's ill health and vary sentence of imprisonment and caning to fine,When inconsistencies in testimony undermining witness's credibility,Appellant suffering from nasopharyngeal cancer,Weight of evidence

8 August 2006

V K Rajah J:

1 The appellant, Chng Yew Chin, a 43-year-old former supervisor with an air-conditioning company, was tried by a District Court on four amended charges pursuant to s 354 read with ss 73(1)(c) and 73(2) of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) in District Arrest Cases Nos 44265 of 2005 to 44268 of 2005 (“DAC 44265/2005” to “DAC 44268/2005”). He was accused of outraging the modesty of his family’s domestic helper, Aminah, who was employed by his 82-year-old mother. The amended charges are set out below:

(a) DAC 44265/2005:

You, … are charged that you, sometime in August 2005, in a bedroom of block 12 Taman Ho Swee, unit #08-65, Singapore, did use criminal force on one Aminah, female aged 28, a domestic maid employed by your mother, one Ang Kuan, and working for your household at the said address, knowing it to be likely that you would thereby outrage the modesty of the said Aminah, to wit, by squeezing both her breasts and you have thereby committed an offence punishable under Section 354 read with Sections 73(1)(c) and 73(2) of the Penal Code (Chapter 224).

(b) DAC 44266/2005:

You, … are charged that you, on 21 August 2005, in a bedroom of block 12 Taman Ho Swee, unit #08-65, Singapore, did use criminal force on one Aminah, female aged 28, a domestic maid employed by your mother, one Ang Kuan, and working for your household at the said address, knowing it to be likely that you would thereby outrage the modesty of the said Aminah, to wit, by touching and stroking her left buttock and your have thereby committed an offence punishable under Section 354 read with Sections 73(1)(c) and 73(2) of the Penal Code (Chapter 224).

(c) DAC 44267/2005:

You, … are charged that you, sometime in August 2005, in a bedroom of block 12 Taman Ho Swee, unit #08-65, Singapore, on another occasion, did use criminal force on one Aminah, female aged 28, a domestic maid employed by your mother, one Ang Kuan, and working for your household at the said address, knowing it to be likely that you would thereby outrage the modesty of the said Aminah, to wit by touching and patting her buttocks and you have thereby committed an offence punishable under Section 354 read with Sections 73(1)(c) and 73(2) of the Penal Code (Chapter 224).

(d) DAC 44268/2005:

You, … are charged that you, sometime in August 2005, in the kitchen of block 12 Taman Ho Swee, unit #08-65, Singapore, on another occasion, did use criminal force on one Aminah, female aged 28, a domestic maid employed by your mother, one Ang Kuan, and working for your household at the said address, knowing it to be likely that you would thereby outrage the modesty of the said Aminah, to wit, by slapping her buttocks and you have thereby committed an offence punishable under Section 354 read with Sections 73(1)(c) and 73(2) of the Penal Code (Chapter 224).

2 At the conclusion of the trial, the learned district judge convicted the appellant on the first, second and fourth charges (DAC 44265/2005, DAC 44266/2005 and DAC 44368/2005), but acquitted him of the third charge (DAC 44267/2005). The appellant was sentenced to four months’ imprisonment and three strokes of the cane on the first charge and fined $3,000 per charge for the second and fourth charges.

3 This is an appeal by the appellant against all the convictions. In addition, the appellant appealed against the sentence for DAC 44265/2005. There was also a cross-appeal by the Prosecution against the sentences meted out in respect of DAC 44265/2005, DAC 44266/2005 and DAC 44268/2005. This cross-appeal was subsequently withdrawn when the Prosecution was informed of the appellant’s present medical condition.

4 Upon hearing the appeal on 11 May 2006, I dismissed the appeal against the convictions. However, noting that the appellant continued to suffer from nasopharyngeal cancer, I adjourned the appellant’s appeal against sentence, directing his counsel to obtain an updated medical report of his current state of health.

5 On 28 June 2006, I admitted into evidence Dr Leong Swan Swan’s (“Dr Leong”) medical report dated 29 May 2006, which records her current assessment of the appellant’s health (“the medical report”). Dr Leong is a senior consultant at the Department of Medical Oncology at the National Cancer Centre, Singapore. I had prior to this adjourned hearing also requested Dr Leong to appear in person to clarify the medical report. After considering the circumstances of the case, the testimony of Dr Leong, as well as the medical report, I ordered that the appellant’s sentence for DAC 44265/2005 be set aside and substituted a fine of $5,000 in lieu thereof. I now set out the reasons for my decision.

Factual matrix

6 The complainant, 28 years of age, an Indonesian national, was employed by the appellant’s mother, Ang Kuan (“Ang”), as a domestic maid. Her work permit was valid from 28 June 2005 to 15 June 2007. She worked at an apartment where Ang stayed with her husband, Chng Bock Lim (“CBL”) and her son, the appellant. Her duties included looking after CBL and the general household chores. It was not contested that instructions given by Ang in Hokkien to the complainant were often translated by the appellant into the Malay language for the complainant because she did not have an adequate grasp of Hokkien.

The complainant’s evidence

7 The complainant testified that about a month into her employment, she was instructed by Ang to massage the appellant’s neck. These massage sessions would take place in the evenings in the bedroom occupied by the appellant.

8 According to the complainant, when she first started massaging the appellant, the latter did not use his hands to indicate when the massage should cease. He would simply tell her to stop by saying “sudah”, which means “finished” in Malay. After some time, the appellant began using his hand to touch her buttocks in order to indicate that she could stop the massage. She testified that on each occasion that the accused touched her buttocks, she told him not to do so as she had a husband and children in Indonesia. The complainant also added that these incidents occurred on ten separate occasions in the month of August. The last incident took place on 21 August 2005.

9 The complainant also testified that on a Sunday afternoon in August 2005, the appellant squeezed her breasts during a massage session. On that day, CBL had been hospitalised and the appellant did not go to work. When the complainant told the appellant not to touch her, the appellant retorted that there were many women in Batam who liked him to do this. The complainant replied that she was not from Batam. The appellant then produced a 50,000 Indonesian rupiah note to show her. When the complainant asked if the appellant had been to Indonesia, the latter replied that he had been to Batam.

10 The complainant added that on five further occasions, the appellant touched and squeezed her buttocks while she was washing dishes at the sink in the morning. However, she admitted that she did not say anything to the appellant, thinking it was pointless and hoping he would stop.

11 The last incident of molest occurred on the evening of 21 August 2005. On that occasion, the appellant asked for a neck massage in his bedroom. The bedroom door remained open. After about eight to ten minutes of massage, the appellant touched her buttocks, saying, “it’s already done”. The complainant claims that when she told the appellant not to touch her, he remained silent.

12 The next day at about 7.00am, the complainant decided to file a police report (“the complainant’s police report”). She left the flat not knowing where the nearest police station was until she met another Indonesian maid who directed her to the Radin Mas Neighbourhood Police Post. There, she filed her complaint lamenting that “almost everyday, he touched my buttocks, my body and one occasion, he touched my breasts also”. The officer who recorded her statement, one Sergeant Chiang Kin Sun, testified that the complainant was crying. Another police officer, Sergeant Sabrina bte Mohamed, who assisted in the translation of the complainant’s statement, also testified that the latter was “crying, sobbing” when she first saw her.

The appellant’s statement recorded on 23 August 2005

13 The appellant’s statement to the police was recorded on 23 August 2005 pursuant to s 121 of the Criminal Procedure Code (Cap 86, 1985 Rev Ed) (“the appellant’s police statement”). In it, the appellant stated that:

(a) He did most of the communicating with the complainant because his mother, Ang, could not speak Malay or English.

(b) He was a frequent traveller to Batam, Indonesia and that he travelled there on weekends.

(c) He tapped the complainant’s buttocks with his palms open and he could not remember if he did so gently or not.

(d) He did not have any intention of molesting her and that whenever he touched her buttocks, she did not say anything to him, and therefore he thought it was acceptable to do so.

The appellant’s testimony

14 The appellant denied that he had touched the complainant in his bedroom and in the kitchen on her buttocks with the intention of outraging her modesty. He testified that when he touched her, it was to indicate that she should stop the massage or that she should move aside because she was blocking his passage to the toilet.

15 According to the appellant, it was his mother, Ang, who asked the complainant to massage him. This was to alleviate the stiffness in his neck following radiotherapy treatment for a relapse of cancer in his left neck in 2003. On each occasion, the appellant would ask the complainant to apply balm with her fingers to his neck from the back of his left ear to the left top shoulder. He said that whenever he felt pain during the massage, he would wave his right hand to signal her to stop:

While she was applying medicine to me, I did do this [witness waves] it touched her body. I do not know if I touched her buttocks.

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