Goh Han Heng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 30 September 2003
• Neutral Citation: [2003] SGHC 226
• Date: 30 September 2003
• Subject Matter: Post-incident distress,Approach to be adopted by courts,Challenge to reliability and veracity of witnesses' testimony,Corroboration,Witnesses,When burden of proof to show lack of such motive shifts to Prosecution,Proof of evidence,Appeal,Sexual offence,Approach to be adopted by appellate court,Examination of substance and relevance of evidence,Finding of fact by trial judge,Evidence,Defence alleging that complainant had motive to falsely implicate accused,Whether necessary for judge to expressly warn himself of danger of convicting on uncorroborated evidence of complainant,Exceptions to general approach,Onus of proof,Approach to be adopted by the courts,Criminal Procedure and Sentencing
• Docket Number: Magistrate's Appeal No 73 of 2003
• Published date: 07 October 2003
• Defendant Counsel: James E Lee (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: S Radakrishnan and Adelia Maler James (Arthur Loke Bernard Rada & Lee)

1 The appellant was convicted of one charge under s 354 of the Penal Code (Cap 224) and was sentenced to a term of imprisonment of four months. He appealed against his conviction only. I dismissed his appeal against conviction and I now give my reasons.

Background

2 The appellant was a 41 year-old man who claimed trial to the following charge:

That you, on the 6^th day of August 2002 at or about 7.25 pm, inside basement 1 male toilet of Ngee Ann City, Singapore, did use criminal force on one Ashley Sham Bin Haroon, male 22 years old, intending or knowing it to be likely to outrage his modesty, to wit, by squeezing his genital and you have therefore committed an offence punishable under section 354 of the Penal Code, Chapter 224.

3 His defence at the trial below was a complete denial that the entire incident had occurred, save that they were both in the toilet at the same time. Hence, the issue that arose for consideration at the trial below and at this appeal was whether the actus reus of the offence had occurred as the existence of the mens rea was not in dispute if the incident had occurred.

Testimony of the victim, Ashley

4 The victim, Ashley Sham Bin Haroon (“Ashley”), was a police national serviceman who had just completed his full time service and was waiting to start his training with CISCO. On 6 August 2002, at about 7 pm, he was walking around Ngee Ann City with his girlfriend, Nordalifah Binte Mohd Shahril (“Nordalifah”).

5 Ashley had to ease himself and he went to a toilet in Basement 1 of Ngee Ann City. He was standing at the urinal (in the middle of the row of urinals) when the appellant entered the toilet. There was no one else at the row of urinals then. The appellant went to the urinal just to the left of Ashley. Ashley sensed that the appellant was looking at him. He turned to his left and saw the appellant looking at his face. The appellant then smiled at Ashley, looked down at Ashley’s genital area and looked at Ashley again. Ashley looked away.

6 After Ashley had finished easing himself, he zipped up and began to proceed to the wash basin area on his left. However, before he could move off, the appellant reached out his right hand and cupped Ashley’s private parts and squeezed them. Ashley was shocked and confused. He mechanically moved to the wash basin area and washed his hands.

7 While Ashley was washing his hands, he looked into the wash basin mirror and saw that the appellant was still using the urinal. The appellant then looked at Ashley and smiled. Ashley looked away and continued to wash his hands. The appellant came to the wash basin area and used the wash basin to Ashley’s right.

8 Ashley was still washing his hands when the appellant leaned towards him and stretched his hand out. At that moment, a male Chinese entered the toilet and the appellant withdrew his hand. Ashley then took out his police national service identity card and showed it to the appellant. The appellant looked at it and apologised to Ashley.

9 Ashley then asked for the appellant’s identity card and questioned the appellant as to how long he had been doing “this”. The appellant did not reply. Ashley further asked how long the appellant had been coming here to “do this” and the appellant said that he came here once or twice a month.

10 The appellant then handed over his identity card and Ashley asked him to follow him outside the toilet. Ashley further questioned the appellant. Outside the toilet, Ashley used his handphone to try and call his ex-police supervisor but the line was engaged and Ashley could not get through.

11 Ashley then told Nordalifah, who was waiting for him, that the appellant had molested him. Nordalifah confronted the appellant who started apologising to her. A short while later, a Ngee Ann City security guard, Eunos Bin Ikhwan (“Eunos”), walked out of the toilet and Nordalifah called out to him and told him about the incident. Eunos asked them to follow him to the security room where he called the police.

Evidence of prosecution witness, Nordalifah

12 Nordalifah testified that she was waiting for Ashley outside the toilet and she was using her handphone as Ashley came out with the appellant. She noticed that they were talking at one side and only went over after she had finished her call.

13 Ashley told her that the appellant had molested him. She was shocked and asked the appellant what had happened. The appellant replied: “Nothing, I am sorry.” She further questioned him as to why Ashley had then taken his identity card and the appellant just kept on replying: “I am sorry, I am sorry.” Eunos then walked by and she informed him that Ashley had been molested and they followed Eunos back to the security room.

The appellant’s testimony

14 At the trial below, the appellant chose to give evidence. His version of events was that, on the fateful day, he had gone to Ngee Ann City to procure some goods. He admitted going to the toilet at Basement 1 to ease himself. He had entered the toilet and wanted to use the first urinal. However, there was a pool of water underneath that urinal so he used the urinal next to it, which happened to be to the left of the urinal that Ashley was at.

15 He denied touching Ashley. After he had finished easing himself, he had walked to the wash basins and Ashley was still there washing his hands. Ashley had smiled at him and he had smiled back. Ashley had then taken out his wallet and the appellant thought that Ashley had recognised him from some event project that he had organised and had wanted to exchange name cards. The appellant thus took out his wallet and got ready to exchange name cards. I would note that all this had supposedly occurred in silence.

16 Ashley had then showed the appellant his police national service identity card and asked for his identity card. The appellant thought that it was a spot check and readily complied. Ashley had then questioned the appellant. The appellant thought that he was being suspected of touting and replied accordingly. Ashley had then asked the appellant to follow him out of the toilet before using his handphone to make a call. A moment later, Ashley told the appellant that he was very lucky that the phone line was engaged.

17 Outside the toilet, Ashley then spoke to Nordalifah who further questioned the appellant. The appellant had then replied that he did not know what had happened and told her to ask Ashley. At that point, a security guard, Eunos walked out of the toilet and Nordalifah stopped him and told Eunos about the molest incident. The appellant said that he was completely stunned at being accused of molesting Ashley and he nearly experienced a blackout and squatted down. He had then followed them to the security office where the police was called.

18 The appellant further testified (and this was not challenged by the prosecution) that he had subsequently, on 14 August 2002, tendered a letter to the investigating officer. This letter was hand-written in English by Ricky Soh, a friend of the appellant, under dictation by the appellant in Mandarin as the appellant’s English was poor. The letter contained an account of the entire incident based on the appellant’s story and was written in an attempt to persuade the investigating officer to ask from the management of Ngee Ann City for a video tape from a closed circuit television camera located outside the toilet. This letter was then transcribed into a police statement by the investigating officer. The statement was read and translated into Hokkien by the investigating officer to the appellant. The appellant had signed on each page of the statement. The statement included the following exchange (‘MM’ refers to Malay male, i.e. Ashley, while ‘I’ refers to the appellant): -

MM: You very lucky. The phone cannot get through.

I: Sorry, give me a chance. I will never come again. (I hope to finish off there and rush to collect orders and meeting).

MM: Then you go to other toilets.

I: Both of us remain silent for a few moments.

[Emphasis added]

Decision of the Court below

19 The trial judge found that Ashley was a “truthful and credible witness, and his evidence consistent and coherent.” He found that Ashley’s “credit remained unshaken and his account of what happened in the toilet was clear and cogent” despite being subjected to “intense cross examination by the learned defence counsel.” The trial judge further found that Ashley’s testimony was corroborated by Nordalifah’s testimony as well as Eunos’ testimony.

20 In comparison, the trial judge found that the appellant “was not a credible witness and [the trial judge] further found his testimony to be unbelievable.” The trial judge noted that the appellant was...