GBR v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 15 November 2017
• Neutral Citation: [2017] SGHC 296
• Plaintiff Counsel: Kanagavijayan Nadarajan (Kana & Co)
• Date: 15 November 2017
• Docket Number: Magistrate’s Appeal Nos 9169 of 2017/01 and 9169 of 2017/02
• Hearing Date: 27 September 2017
• Subject Matter: Criminal Procedure and Sentencing,Outrage of Modesty,Criminal Law,Offences,Sentencing
• Published date: 22 November 2017
• Defendant Counsel: Winston Man and Sruthi Boppana (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 296
• Year: 2017

See Kee Oon J: Introduction

The appellant, GBR, is a 45-year-old male Singaporean who faced the following charge under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) for aggravated outrage of modesty of his 13-year-old niece (“the victim”):

You…are charged that you on 10 February 2014, sometime in the afternoon, at [xxx] Singapore, did use criminal force on one [xxx] (DOB: 28 August 2000, 13 years old at the time), to wit, by: (a) fondling both of her breasts; (b) touching her vagina area; and (c) licking her vagina area

intending to outrage the modesty of the said [xxx], and you have thereby committed an offence punishable under Section 354(2) of the Penal Code (2008 Rev Ed).

At the end of a trial, the District Judge convicted the appellant of the charge and sentenced him to 21 months’ imprisonment and four strokes of the cane. The appellant appealed against both his conviction and sentence. The Prosecution cross-appealed against the sentence imposed.

After hearing the parties, I dismissed the appellant’s appeals against his conviction and sentence. I allowed the Prosecution’s cross-appeal against sentence and increased the appellant’s imprisonment term to 25 months. I ordered that the caning imposed remain at four strokes. I now provide full grounds for my decision.

Undisputed facts

While the acts constituting the offence were contested, the events before and after the alleged offence were largely undisputed and have been set out in the District Judge’s Grounds of Decision recorded at Public Prosecutor v GBR [2017] SGDC 169 (“the GD”) at [5]–[10]. I shall outline these facts in brief.

The appellant is the victim’s uncle. He is married to the victim’s maternal aunt (ie, her mother’s sister).The day before the alleged offence, the victim’s parents were embroiled in a domestic dispute. The appellant and his wife went to the victim’s residence that evening to try to mediate the dispute and did so until the wee hours of the morning. The next day, on 10 February 2014, the victim did not go to school. That afternoon, the appellant brought the victim to his flat on the pretext that it would be more conducive for her to do her schoolwork there. The appellant was alone with the victim as his wife had gone to work. The offence was alleged to have taken place on the sofa in the living room of the appellant’s flat during that period of time.

The appellant subsequently left the flat to pick up the victim’s younger brother and brought him back to his flat to join the victim. Upon her brother’s arrival at the flat, the victim requested to go down to the playground.

About three days after the offence was allegedly committed, on the evening of 13 February 2014, the appellant brought the victim to a playground near her house and spoke to her alone. On 14 February 2014, the victim lodged a police report in relation to the alleged offence on 10 February 2014.

The parties’ cases below

The Prosecution called nine witnesses, including the victim, her mother, her friends, her teacher, a child psychiatrist and police officers. The Prosecution’s case was primarily based on the victim’s testimony as well as the corroborating evidence of the victim’s friends and teacher, whom she had confided in after the alleged offence. According to the victim, she was seated next to the appellant on the sofa in the living room of the latter’s flat at the time of the offence. The appellant asked her whether he could touch her and she said no. She could sense that the appellant was angry and she became afraid. Despite her refusal, the appellant proceeded to insert his hands under her T-shirt and bra and fondled her breasts for what felt like five minutes. He then removed her shorts and panties before touching and licking her vagina for another five minutes. The acts only stopped when the appellant’s mobile phone rang and he went into his bedroom to receive the call.

The Prosecution contended that the victim’s evidence was consistent with her act of blocking the appellant’s contact number on her mobile phone immediately after the incident, the appellant’s insistence on speaking to the victim alone on 13 February 2014 (during which, according to the victim, the appellant indicated he would commit similar acts over the coming weekend), as well as a report by Dr Parvathy Pathy (“Dr Pathy”) of the Child Guidance Clinic, which stated that the victim’s reported distress and acts of self-harm after the incident were symptomatic of post-traumatic stress disorder.

With regard to sentence, the Prosecution highlighted the various aggravating factors in the present case and sought a sentence of 27 months’ imprisonment and four strokes of the cane. The Prosecution drew comparisons with the case of Public Prosecutor v Azhar Bin Mohamed [2015] SGDC 116 (“Azhar”), in which the accused was sentenced to 18 months’ imprisonment for each charge of aggravated outrage of modesty under s 354(2) of the Penal Code. The Prosecution argued that the present case was more serious than Azhar and deserved a sentence that was higher than that imposed in Azhar.

The appellant testified in his defence and also called his wife as a defence witness. His case was essentially a bare denial. He emphasised that he treated the victim like his own daughter and could not have committed the offence. He insinuated that the victim had been subject to undesirable influences in her school, and had purported motives for making the false allegations against him. For example, he said that the victim could have been angry that the appellant had sided with the victim’s father during the domestic dispute between her parents. He also pointed out that the victim did not react like a typical victim of a sexual crime during and after the alleged offence.

The District Judge’s decision

After setting out the evidence of the Prosecution and defence witnesses, the District Judge noted that the Prosecution’s case rested largely on the testimony of the victim (at [56] of the GD). He proceeded to assess the veracity, reliability and credibility of the victim’s evidence (at [65] of the GD). He concluded that the victim appeared to be a “mature, sensible and reasonable girl” who was able to provide a coherent account of events. She was largely consistent in her accusations and allegations against the accused (at [66] of the GD). The District Judge added that he had observed the victim’s demeanour when she gave evidence and found her to be “entirely truthful” (at [79] of the GD) and her evidence to be “absolutely and unusually convincing and compelling”. He stated that the victim had “testified to the best of her memory and in an internally consistent manner” and her evidence of the events and alleged acts of molest was “both internally consistent and externally consistent with her immediate behaviour and response and the conduct of the [appellant] in the days following the offence” (at [80] of the GD).

In particular, the District Judge noted that there was no “list of checkboxes” of expected or known behaviour that the victim was supposed to exhibit after the alleged offence (at [68] of the GD). In the present case, the victim was an “innocent and sexually inexperienced 13 year old student” who was completely unprepared and in a state of shock when the offence occurred; she did not stop the appellant as she was afraid of him (at [69] and [70] of the GD). The District Judge also found that the victim’s complaint was corroborated by her subsequent conduct of telling her friends, her teacher, her parents and the police, the blocking of the appellant’s number on her mobile phone, the appellant taking the victim out and speaking to her alone, and the victim’s distress and acts of self-harm (at [82] of the GD). The evidence of the other Prosecution witnesses was also substantially consistent (at [83] of the GD). The District Judge observed that the victim had no motive to lie and “stood to gain nothing but in fact lost much” in making the allegations against the appellant (at [103] of the GD).

On the other hand, the District Judge did not believe the appellant’s defence (at [91] of the GD). He noted that the appellant had failed to put various material aspects of his defence to the victim, thus demonstrating that they were “unmeritorious afterthoughts” (at [92]–[93] of the GD). Further, the appellant’s credit was impeached by the Prosecution in respect of some material aspects of his evidence (at [94] of the GD).

With regard to sentence, the District Judge took into account the aggravating factors of (a) an abuse of position of trust by the appellant; (b) the appellant’s intrusion of the victim’s private parts; (c) the sustained duration of the offence; (d) the presence of premeditation; (e) the appellant intimating to the victim that he would perform further acts of molest in the subsequent days; and (f) the adverse psychological effects on the victim. He noted that the appellant did not plead guilty and would not have been entitled to any sentencing discount (at [112]–[114] of the GD). There were no real mitigating factors in the present case (at [122] of the GD). However, the District Judge did not agree with the Prosecution’s submission that the facts of the present case were more aggravated than that in Azhar. In the latter case, the victim was much younger and was subjected to more counts of molest. The accused had also caused hurt to the victim. Thus, he disagreed that the sentence for the present case must be significantly higher than the 18 months’ imprisonment given in Azhar (at [118] of the GD). He duly imposed a sentence of 21 months’ imprisonment and four strokes of the cane on the appellant.

The arguments on appeal

The appellant’s main contention on his appeal against conviction was that the victim’s evidence was not “unusually convincing”. He reiterated that her behaviour during and after the offence was atypical of a victim...