GCO v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 13 February 2019
• Neutral Citation: [2019] SGHC 31
• Plaintiff Counsel: Tan Hee Joek (M/s Tan See Swan & Co)
• Date: 13 February 2019
• Docket Number: Magistrate’s Appeal No 9232 of 2018
• Hearing Date: 14 November 2018
• Subject Matter: Appeals,Criminal Procedure and Sentencing,Sentencing
• Published date: 09 August 2019
• Defendant Counsel: Raja Mohan (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 31
• Year: 2019

See Kee Oon J:

The appellant appealed against his sentences in respect of two charges: the first for outrage of modesty (the “OM offence”) under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”); and the second for insulting the modesty of a woman under s 509 of the Penal Code (the “s 509 offence”). A third charge under s 447 of the Penal Code for committing criminal trespass by entering a female toilet to commit the s 509 offence was also taken into consideration in sentencing.

The appellant pleaded guilty to both proceeded charges and was convicted. He was sentenced by the District Judge to serve a term of eight months’ imprisonment and three strokes of the cane in respect of the OM offence, and one month’s imprisonment in respect of the s 509 offence. The sentences were ordered to run consecutively, for an aggregate sentence of nine months’ imprisonment and three strokes of the cane.

The appellant appeals on the grounds that the District Judge failed to appreciate the materials placed before her, and that his sentence is manifestly excessive.

The facts

The facts are drawn from the Statement of Facts to which the appellant pleaded guilty without qualification.

The s 509 offence was committed at 5.00am on 25 November 2015. The appellant was a resident at a Hall of Residence (the “Hall”) at a university in Singapore (the “University”). On that day, the appellant was outside one of the female toilets at the Hall when he heard someone showering. He decided to enter the toilet to peep at the person who was showering. The first victim was showering at the last shower cubicle. The appellant went into the shower cubicle next to hers, locked the cubicle door, climbed the cubicle partition, and intruded into her privacy by peeping into her cubicle. The appellant saw the first victim fully naked. She noticed that someone had peeped into her cubicle, and quickly left the toilet to seek help. The appellant stayed in his locked cubicle. The first victim and her friends obtained the assistance of a campus security officer, who took a photo of the appellant inside the cubicle. The appellant then surrendered to the campus security officer. The first victim was a student at the University at the material time.

The OM offence was committed on 20 April 2017. The appellant, the second victim and her boyfriend were working on a project at a computer lab at the University through the early hours of the morning. The second victim’s boyfriend fell asleep at about 2.00am, and the second victim, at about 4.00am. At about 6.00am, the appellant, who had also fallen asleep, woke up and wanted to use the washroom. As he was walking towards the exit of the computer lab, he noticed the second victim sleeping. She was wearing a pair of denim shorts. He walked towards her, and proceeded to place his hand through the opening of her shorts. Upon feeling someone touch “her vagina area” from underneath her shorts, the second victim woke up, whereupon the appellant quickly walked away. The second victim saw the appellant walking away from her, and informed her boyfriend about the incident. She and her boyfriend confronted the appellant, who apologised to both of them. Subsequently, she informed the University authorities, and also lodged a police report concerning the incident. The second victim was the appellant’s classmate at the University at the material time.

Decision below

The District Judge’s Grounds of Decision can be found in Public Prosecutor v GCO [2018] SGMC 54 (the “GD”). The appellant pleaded guilty to both charges, and consented to have the s 447 charge taken into consideration in sentencing.

The District Judge considered that probation would not be appropriate. The appellant was 26 years old, and well above the age of 21, below which the presumptive primary sentencing consideration is rehabilitation: GD at [22]. Although adult offenders could be placed on probation, the District Judge was not persuaded that there were exceptional circumstances to warrant calling for a pre-sentence probation report. The District Judge referred to a memo prepared by an Institute of Mental Health (“IMH”) psychiatrist dated 5 July 2017, and an IMH report dated 19 February 2018 (collectively, the “IMH reports”). Although the appellant had been diagnosed by an IMH psychiatrist to be suffering from voyeurism and fetishism, the District Judge observed that these mental conditions did not remove the appellant’s mental ability or capacity to control his actions and refrain from committing criminal acts, citing Public Prosecutor v Chong Hou En [2015] 3 SLR 222: GD at [23]. Instead, these labels were merely “clinical description[s]” of a “perverse behavioural option”: GD at [23]. Indeed, the IMH reports did not find that the appellant suffered from any psychiatric condition that was causally related or had substantially contributed to the appellant’s commission of the offences: GD at [24]. In the circumstances, the dominant sentencing considerations remained general and specific deterrence. Probation was not justified, and rehabilitation, if it was necessary, could take place in the prison setting. The needs of deterrence were best served by an imprisonment term.

In respect of the OM offence, the District Judge applied the sentencing framework set out by the High Court in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”). The District Judge determined that the offence fell within Band 2 of the sentencing bands, because the appellant had intruded upon the private parts of the second victim, namely her vagina, and did so while the second victim was vulnerable because she was sleeping. There were therefore two offence-specific factors which applied: GD at [27]. The District Judge determined, however, that the offence was not at the higher end of Band 2: GD at [28].

Turning to the offender-specific factors, the District Judge noted the fact that the appellant had committed the OM offence even though he had been served with a 12-month conditional warning for having peeped over the shower cubicle wall in 2015. The warning was administered only on 16 February 2017; the appellant had offended a mere two months after receiving the warning. The District Judge found that this was aggravating: GD at [29]. In addition, she found it aggravating that the offending behaviour had escalated from an offence under s 509 of the Penal Code, to one under s 354(1) of the Penal Code: GD at [29].

The District Judge found as mitigating the fact that the appellant had pleaded guilty at the first available opportunity, and that he had no previous convictions: GD at [30].

Taking into account all these factors, the District Judge held that eight months’ imprisonment was appropriate for the OM offence. She noted that the Defence had also submitted for eight months’ imprisonment (but with no caning) if imprisonment was to be ordered: GD at [30].

The District Judge also ordered caning, following the guidance set out in Kunasekaran at [50] that caning ought to be imposed where the victim’s private parts are intruded upon. The District Judge opined that there was no reason not to impose caning. The appellant had no choice but to stop his actions when the second victim woke up; and the appellant’s actions were particularly intrusive because he had gone beneath the second victim’s shorts and over her underwear. Further, the appellant’s actions were “particularly brazen and bold” given that he had practically molested the second victim under her boyfriend’s nose: GD at [28]. There was also some suggestion of abuse of trust: the District Judge noted that the second victim was someone known to the appellant because she was his classmate, and thus would have felt safe and secure to sleep in the computer lab with him at the same place.

As for the s 509 offence, the District Judge held that it was an aggravating factor that the appellant had peeped at the first victim while she was fully naked in the shower, citing Chong Hou En: GD at [31]. It was also aggravating that the offence was committed in the early hours of the morning when there would have been hardly anyone in the vicinity to render assistance to her. The appellant had also clearly premeditated the offence as he decided to enter the female toilet. The District Judge referred to the Prosecution’s table of precedents, and noted that those who had committed s 509 offences in a similar manner received sentences in the range of four to six weeks’ imprisonment: GD at [32]. She therefore held that a sentence of one month’s imprisonment was appropriate in this case.

The District Judge held that because these were unrelated offences, the sentences should run consecutively to ensure that the appellant would be punished for each offence: GD at [33]. Thus, the total sentence ordered was nine months’ imprisonment and three strokes of the cane.

The parties’ cases The appellant’s case

The appellant’s core contention in this appeal is that his sentence is manifestly excessive. In addition to his submissions filed for the present appeal, the appellant also adopted the submissions made in the mitigation plea in the Magistrate’s Court below.

The appellant submitted that this court should consider the option of probation by ordering a pre-sentence probation report, in light of the appellant’s mental conditions. The appellant also suggested in his written submissions that a Mandatory Treatment Order (“MTO”) might be possible.

If this court is not minded to adopt either option, however, then the appellant further submitted that the District Judge had erred in her application of the Kunasekaran framework. First, the District Judge erred in finding that the second victim’s private parts were intruded upon when the facts only mentioned that the “vagina area” was touched, and not the “vagina” itself. Second, the District Judge erred...