GDC v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 04 November 2020
• Neutral Citation: [2020] SGHC 241
• Plaintiff Counsel: The appellant in person
• Date: 04 November 2020
• Docket Number: Magistrate’s Appeal No 9057 of 2020
• Hearing Date: 24 July 2020,01 October 2020
• Subject Matter: Offences,Benchmark sentences,Criminal Law,Sentencing,Outrage of modesty,Criminal Procedure and Sentencing,Alteration,Charge
• Published date: 07 November 2020
• Defendant Counsel: Winston Man and Tay Jia En (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 241
• Year: 2020

Sundaresh Menon CJ: Introduction

The appellant claimed trial to one charge of aggravated outrage of modesty of a person under 14 years of age, an offence punishable under s 354A(2)(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). He was convicted of that charge and sentenced to four years and six months’ imprisonment and six strokes of the cane.

An offence of aggravated outrage of modesty is made out where the offender, in order to commit or to facilitate the commission of an offence of outrage of modesty against a person, voluntarily causes or attempts to cause to that person death, hurt, or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint. At the trial, the Prosecution identified the relevant act of hurt to be the appellant’s act of slapping the victim twice, but it was not disputed that this act occurred ten minutes after the offence of outrage of modesty had been committed. That act could not therefore be said to have been done in order to commit or to facilitate the commission of that offence.

For that reason, I exercised the discretion that was afforded to me under s 390(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and amended the charge to one of outrage of modesty of a person under 14 years of age under s 354(1) read with s 354(2) of the Penal Code. Having heard the appellant’s defence, I convicted the appellant of the amended charge. I consequently set aside the original sentence and, in its place, sentenced the appellant to two years’ imprisonment and three strokes of the cane. I now set out the reasons for my decision, provide some guidance on relevant considerations that apply when considering whether to amend a charge on appeal and set out some observations on the appropriate sentence for offences under s 354(2) of the Penal Code.

Background

The appellant is 35 years old. He is the boyfriend of the victim’s mother and the father of the victim’s younger half-brother. The victim knew him as her stepfather. The family lived in a one-room flat where a screen was set up to partition a “room” from the main living area. The victim and her brother slept in the room while their mother and the appellant usually slept in the living area. At the material time, the victim was 12 years old.

The charge in question concerned an incident in the early hours of 28 August 2019. The victim testified that at some time between 3.00am and 4.00am, she was woken up by the appellant calling her name. Her brother was asleep in the room with her. The appellant was also in the room and told her that her mother had left the house. This was evidently untrue. The victim went back to sleep but then felt the appellant’s hand under her bra on her left breast for about a minute, applying a significant amount of force. The victim testified that the appellant pulled her hair and brought her face close to his groin three or four times, but she did not see if his private parts were exposed as she had turned away. She did not shout for help because she was afraid and did not think anyone would or could help her. Ten minutes after he had pulled her hair, the appellant slapped her twice. During those ten minutes, she tried to avoid the appellant’s overtures and to move to her brother’s bed. As a result, she did not see precisely what the appellant was doing in that time. The victim used a bolster, pillow and jacket to try to cover herself, and eventually managed to move to her brother’s bed. The appellant continued trying to touch her but stopped when her brother woke up briefly. The victim stayed in bed until about 5.00am, when her mother came into the room and the appellant left.

The victim went to school that day and told her school counsellor that her father had touched her and she felt dirty. She wrote down what had occurred on a piece of paper (“Exhibit P10”). The counsellor then contacted the school principal and the police.

The proceedings below

The appellant claimed trial to the following charge:

You, … are charged that you, … did use criminal force to one [name redacted], a person who was then under 14 years of age, intending to outrage the modesty of the said [name redacted] by such criminal force, to wit, by touching her left breast under her bra (skin-on-skin) for about one minute and pulling her hair and forcing her head towards your groin, and in order to facilitate the commission of this offence, you did voluntarily cause hurt to the said [name redacted] by slapping her face twice when she resisted, and you have thereby committed an offence punishable under Section 354A(2)(b) of the Penal Code.

The appellant was unrepresented and conducted his own defence. He denied committing the offence and claimed that the victim was lying. After a three-day trial, the district judge (“the District Judge”) convicted the appellant of the charge. The Prosecution sought a sentence of at least five years’ imprisonment and six strokes of the cane, and the District Judge sentenced the appellant to four years and six months’ imprisonment and six strokes of the cane (see Public Prosecutor v GDC [2020] SGDC 57 (“GD”)).

The present appeal

On 24 February 2020, four days after the date of conviction and sentence, the appellant filed a notice of appeal against the sentence. In his petition of appeal filed on 24 March 2020, he indicated that he was pleading for leniency because he felt that the sentence was excessive. However, from the submissions he filed on 3 July 2020, it became apparent that he continued to maintain that he had not committed the offence and was seeking to challenge his conviction.

Although the appellant did not comply with the proper procedure to bring an appeal against conviction, an appellate court has a broad discretion under s 380(1) of the CPC to permit an appeal against any judgment, sentence or order notwithstanding non-compliance with the proper procedure under the CPC if it considers it to be in the interests of justice (see Public Prosecutor v Tan Peng Khoon [2016] 1 SLR 713 at [38]–[40] and [42]; see also Lim Hong Kheng v Public Prosecutor [2006] 3 SLR(R) 358 (“Lim Hong Kheng”) at [10] on the predecessor provision of s 380(1) which was s 250 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed)). In exercising its discretion, the court should consider the length of the delay, the explanation put forward for the delay and the prospects in the appeal (Lim Hong Kheng at [27]). Here, the appellant was unrepresented at the trial below and in the appeal. It was clear from his conduct and submissions that he consistently maintained that he had not committed the offence and any delay in filing an appeal against conviction would have been a result of his unfamiliarity with the proper procedure. In my judgment, it was clearly in the interests of justice to allow the appellant to proceed with his appeal against conviction notwithstanding the fact that by the time the Prosecution and the court became aware that he was challenging his conviction, the time for bringing an appeal against the conviction had long expired. To the Prosecution’s credit, it did not seriously contest this point.

The conviction The events on 28 August 2019

The District Judge did not set out detailed reasons for his decision on conviction, in all likelihood because it was not evident from the notice of appeal that the appellant also wished to challenge the conviction: see GD at [11]. However, this did not hamper my ability, sitting in an appellate capacity, to assess the evidence that was available in the record of appeal.

The appellant repeatedly highlighted that there were no eyewitnesses to the incident and no medical reports to corroborate the victim’s version of events. The victim’s mother and brother, who were both in the flat at that time, testified that they had not witnessed anything unusual. The appellant submitted that the evidence came down to the victim’s word against his. This was true but that did not mean there was no evidence to sustain the conviction as the appellant sought to contend. The question in the end was whether the victim’s evidence was sufficient for this purpose.

As the Court of Appeal recently observed in Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533 (“Wee Teong Boo”) at [44], in cases concerning sexual offences, where the Prosecution relies very substantially on the victim’s testimony to sustain a conviction, that evidence must be unusually convincing, in the sense that it must be sufficient, in and of itself, to overcome any reasonable doubts that might arise from the lack of corroboration (see also Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2019] 2 SLR 490 at [58]). An “unusually convincing” standard means that such evidence is so convincing that the Prosecution’s case may be established beyond reasonable doubt solely on that basis (Wee Teong Boo at [45]). In assessing the credibility of the victim, the court must bear in mind that there is no prescribed way in which victims of sexual assault are expected to act (Wee Teong Boo at [55]).

In my judgment, the victim’s testimony met that “unusually convincing” threshold. Her evidence was candid and straightforward. She readily admitted that she did not have the answers to some questions, such as whether or not the appellant’s private parts were exposed or what precisely he did during the ten minutes that intervened between his pulling her hair and slapping her. When the appellant accused her of lying, the victim admitted that she “used to lie before”, but said she was telling the truth this time. Her evidence at the trial was not exaggerated. Importantly, it was also substantially corroborated by Exhibit P10, the report that she wrote in her school counsellor’s office before the police report was made. The victim’s school counsellor also testified as to the victim’s demeanour on the day of the...