DT v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 23 July 2001
• Neutral Citation: [2001] SGHC 193
• Docket Number: Magistrate's Appeal No 107 of 2001
• Date: 23 July 2001
• Year: 2001
• Published date: 07 November 2003
• Plaintiff Counsel: Sashi Nathan (Harry Elias Partnership)
• Citation: [2001] SGHC 193
• Defendant Counsel: Ng Cheng Thiam and Eddy Tham Tong Kong (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Admissibility,Whether allegations proven,s 122(2) Criminal Procedure Code (Cap 68),Correct approach to such application,Child complainant,Whether offences proven,Benchmark for sexual offences involving victim's private parts -Whether totality principle breached,Witnesses,Evidence,Allegations of conspiracy and contamination of evidence,Criminal force and assault,Offences,s 354 Penal Code (Cap 224),Whether delay in filing police report justified,Whether need to report immediately exists,Application by defence for court to refer to statement,Sentencing,Lack of independent corroboration,Criminal Procedure and Sentencing,Whether court has discretion to refer to statement,Criminal Law,Sexual offences,Failure to report incident immediately to police,Corroboration,Using criminal force with intent to outrage modesty,Weight of evidence,Whether manifestly excessive,Complainant's statement to police,Statements,Approach of court

: This appeal raised an issue in relation to the operation of s 122(2) of the Criminal Procedure Code (Cap 68) (`CPC`). In the court below, District Judge Kow Keng Siong ruled against the appellant on this issue. With this and other issues on conviction and sentence, the appellant appealed. I heard his appeal and dismissed it. These were my reasons.

Background facts

The appellant was convicted of two charges of outrage of modesty under s 354 of the Penal Code (Cap 224) (`Penal Code`). He was sentenced to six months` imprisonment on the first charge, and to 18 months` imprisonment and four strokes of the cane on the second charge, the sentences to be consecutive, totalling 24 months and four strokes.

The complainant was the stepdaughter of the appellant. The appellant married the complainant`s mother, one Mdm Noraidah, sometime in November 1992. The complainant and her younger sibling, Fairoz, were from Mdm Noraidah`s previous marriage, which ended in a divorce. In 1993, Mdm Noraidah gave birth to a baby daughter, Nurulatika.

Since young, the complainant and her brother were cared for by her grandmother, Mdm Hajjah Zainon bte Abdullah (`Mdm Zainon`). They lived in Mdm Zainon`s flat at Empress Road. The appellant and Mdm Noraidah stayed in their flat in Clementi, but visited the children often.

In 1997, the appellant and Mdm Noraidah shifted to their new home at Choa Chu Kang. Shortly thereafter, Mdm Noraidah died in a tragic accident in Johor Bahru. The appellant was with Mdm Noraidah at the material time, but was unhurt. The complainant and her sibling continued to be cared for by their grandmother.

In June 1998, the appellant remarried. The alleged incidents of outrage of modesty took place before Mdm Noraidah`s death.

Case for the prosecution

The prosecution charged the appellant with two counts of molest over a three-year period as follows:

(1) that sometime between May or June 1993 he did use criminal force on the complainant, then aged 10, by pressing his body against her body; and

(2) that sometime in May 1996 he did use criminal force on the complainant, then aged 13, by using his fingers to touch her vagina.

The evidence advanced by the prosecution was simple. On 22 May 1998, the appellant met several members of his deceased wife`s family at his home in Choa Chu Kang for a family meeting. The appellant`s brother was also present. Somewhat unfortunately, the amicable mood at the commencement of the meeting degenerated into a confrontation and certain allegations were made by Mdm Zainon and Mdm Normalah, who was Mdm Noraidah`s sister, against the appellant. Against this background, the appellant filed a police report.

Defending their allegations, a report was also filed by the complainant. It transpired that the allegations made by Mdm Zainon and Mdm Normalah were accusations of impropriety by the appellant against his stepdaughter, and the police report was to the same effect. It was also not disputed that the complainant`s report was written on her behalf by her uncle, Mr Norazrin, who was a former police officer.

The complainant`s police report led to investigations of the alleged molest incidents. The first occurrence took place sometime in May 1993 outside her grandmother`s flat. The complainant was only ten then. Mdm Zainon was in Mecca, and the appellant and Mdm Noraidah had moved in to stay with the children temporarily. According to the complainant, the appellant told her to lean against the wall along the corridor, and lifted her skirt before pressing his penis against her groin. Both were clothed at all times and the appellant did not expose himself to her. Yet, the complainant felt very disgusted by the whole experience, but kept the incident to herself. She did not know what to expect, nor was she certain that what the appellant did was correct or acceptable.

When Mdm Zainon returned from Mecca, the complainant related the abovementioned incident to her. She also added that there was some rubbing involved. Mdm Zainon expressed her disbelief, contrary to the complainant`s insistence that it was true. In the end, she told the complainant not to continue `this nonsense`, and the complainant complied.

The second molest incident occurred several years later, when the complainant brought her younger brother to visit her mother and their stepsister. The complainant was then 13. Whilst she was in her mother`s bedroom, the appellant entered, and told the complainant to lie down on the mattress. He then unzipped her jeans, and told her to relax. Following this, he put his hands into her underwear and used his fingers to touch her vagina. The whole episode lasted for a short while. All this while, the complainant was too frightened to do anything.

After touching her, the appellant instructed the complainant not to reveal what had occurred. The complainant zipped her jeans and walked out of the room. Despite her requests to leave the house immediately, this was rejected by Mdm Noraidah, who insisted on sending her and her younger brother home later. The complainant claimed she was angry with Mdm Noraidah for this, but was helpless. She did not reveal the molest incident to her mother for fear that she would not be believed, since it implicated her stepfather, nor did she want to hurt her mother`s feelings. Her mother might end up scolding her for it.

On her return home, the complainant went straight to her room and started crying. She felt disgusted, frustrated and violated by the appellant`s actions. Noticing her granddaughter`s behaviour, Mdm Zainon questioned her, and the complainant confided in her grandmother. She was asked to confirm the truth of her events, which she did without hesitation. Upon hearing this, Mdm Zainon was visibly upset. After a short silence, she instructed the complainant not to reveal the incident to anyone, including her mother. She also made the complainant promise not to tell anyone.

As a child often would, the complainant disobeyed her grandmother, and told her close friend, one Evelyn, about the appellant`s actions the very next day, but no details of the molest were disclosed. Evelyn had noticed that the complainant looked extremely upset and had been crying throughout the day. As a result, she pressed the complainant constantly for the reason. When asked if the complainant had made a police report, the complainant replied in the negative, indicating that her grandmother had forbidden her to do so.

After Mdm Noraidah`s unfortunate accident, the complainant thought time should just heal all wounds, and never brought up the incidents again. After all, there were now less reason for the appellant to visit her at her grandmother`s flat, as the appellant had remarried soon afterwards.

In so far as the complainant`s presence at the appellant`s home on 22 May 1998 resulted in her police report, the complainant testified that she went there only because she wanted to retrieve some of her deceased mother`s old photos and clothes. It was unexpected that her grandmother would inadvertently blurt out the said allegations and accuse the appellant of improper conduct towards the complainant in the past. According to the complainant, the appellant, who was then standing, slumped onto the couch upon hearing the allegations.

As regards the complainant`s police statement made that same night, the complainant admitted that she related the molest incidents to her uncle Norazrin who then wrote the report for her. Mdm Zainon confirmed the information regarding the number of occasions and the times when the incidents occurred.

The trial below

During the trial, defence counsel applied to be furnished with a copy of the complainant`s statement to the police in the course of their investigations under s 122(2) of the Criminal Procedure Code (Cap 68) (`CPC`), with a view towards impeaching the complainant and discrediting her testimony. This application was rejected by the district judge, who felt that, on a purposive reading of s 122(2), it did not compel him to refer to the complainant`s statement to the police, for the purposes of deciding if at all the appellant should be given a copy of that statement; rather, s 122(2) conferred on him a discretion whether to refer to the statement or not, and defence counsel had to show why he should in fact exercise his discretion to do so. This counsel had not done. In any event, the district judge was of the view that counsel was on a fishing expedition for information in order to conduct a discovery of the prosecution evidence, and was determined that he would not countenance the use of procedural rules for such purposes.

Turning to the trial proper, the district judge found much force in the prosecution`s case. According to him, the district judge found the complainant`s testimony reliable. It was, in all respects, materially consistent and inherently credible. Her evidence, corroborated by her grandmother, her classmate Evelyn, her uncle Norazrin and her aunt Mdm Normalah, stood up against rigorous cross-examination by defence counsel. The complainant was, by all standards, an impressive witness who remained unshaken in her testimony. Even the defence conceded that she gave evidence confidently and with good attention to detail. The district judge concluded (at [para ]76 of his grounds of decision):

After having carefully scrutinised [the complainant`s] testimony and demeanour against the totality of the evidence, I am of the view that she is a reliable witness. She did not strike me as a vindictive person who was motivated by malice to lie or embellish her evidence against the appellant.

In considering the prosecution`s case, the district judge also paid particular attention to the evidence of Mdm Zainon, the complainant`s grandmother who shared an extremely close relationship with her and who substantially confirmed the complainant`s version of events. He was constantly mindful that Mdm Zainon`s evidence could...