Khoo Kwoon Hain v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 July 1995
• Neutral Citation: [1995] SGHC 155
• Docket Number: Magistrate's Appeal No 68 of 1995
• Date: 03 July 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Parambir Singh Sekhon (Bridges Choy & Lopez)
• Citation: [1995] SGHC 155
• Defendant Counsel: Chay Yuen Fatt (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Evidence,Outrage of modesty charge,Whether adverse inference could be drawn against prosecution,Criminal force and assault,Onus of proof,Absence of corroboration by independent evidence,s 116(g) Evidence Act (Cap 97, 1990 Ed),s 354A Penal Code (Cap 224),Offences,Accused's statements not proven by independent evidence to be false,Lies by accused,Corroboration,Allegation that complainant had no reason to make false allegations against accused,Aggravated outrage of modesty,Attendance,Whether corroboration of complainant's testimony by recent complaints sufficient to remove caution that complainant's testimony must be unusually convincing,Recent complaint,When lies could amount to corroboration of complainant's testimony,s 59 Evidence Act (Cap 97, 1990 Ed),Recent complaint not corroboration by independent evidence,Proof of evidence,Burden of proof on prosecution to prove absence of motive,Whether defence unfairly handicapped,Witness not offered to defence,Sexual offences,Criminal Law,Witnesses,Identity not disclosed to defence,Alleged lies relating to immaterial issues

The appellant was convicted on two counts of aggravated outraging of modesty under s 354A(1) of the Penal Code (Cap 224). The appellant was a supervisor at Sardi`s Restaurant (Sardi`s). The complainant, who was 20 years old, worked as a waitress at Sardi`s from 5 September 1994 to 14 September 1994. This was a period of some 11 days.

The first charge alleged that on 14 September 1994 at about 4.55pm at Sardi`s, the appellant used criminal force on the complainant intending to outrage her modesty, to wit, by pressing his hand against one of her breasts and by pressing his private part against the complainant`s buttocks. It was alleged that, in order to commit this offence, the appellant wrongfully restrained the complainant by hugging her body tightly.

The second charge alleged that at the same place and about the same time, the appellant committed a similar offence by kissing the complainant`s right ear and neck region and rubbing his private part against hers. Again, wrongful restraint was alleged.

The appellant refused to mitigate in the court below and was sentenced to two years and seven months` imprisonment and four strokes of the cane on each charge. The prison terms were to run concurrently. The appellant appealed to this court against conviction only.

After hearing counsel for the appellant and the deputy public prosecutor, I allowed the appellant`s appeal. I now give the grounds for the decision.

The evidence in the court below

The main plank of the prosecution`s case was the evidence of the complainant. She testified that on 14 September, she started work at 12 noon. The appellant was her supervisor. Another supervisor was one Lena. At about 4.45pm, while the complainant was working at the dining area of Sardi`s, the appellant allegedly called her over to the bar counter. The complainant alleged that the appellant then asked her if she had a friend who worked as a call-girl. The complainant said `no`. Whereupon the appellant hugged the complainant from behind. While doing so, he allegedly touched the complainant`s body, breasts and buttocks. The complainant said that she told him to let go. She asked him why he did that. When she wanted to leave, he touched her breast again. The complainant said that she felt the appellant`s private part on her buttocks.

Thereafter, the complainant went to her locker to change as it was nearly time for her break. When she came out of the toilet, she saw the appellant entering the corridor to go to the men`s toilet. The appellant allegedly hugged the complainant tightly again. She was surprised and covered her face with the apron she was holding. The appellant pressed his private part against hers. He also kissed her on the right ear and neck. The complainant testified that she told the appellant to release her and that if he did not, she would scream. This alleged second incident could not be seen from the dining area as there was a common door which was closed.

The complainant told the court that when she asked the appellant to let her go, the appellant said, `Why should I there is nobody around.` She pushed him and asked him a second time to release her. She finally managed to push him away. She went straight to the kitchen and put her things in her locker. She then went off for her break.

About an hour later, the complainant returned from her break. She did not see the appellant again that evening. She continued her work. The complainant said that during the first incident, she did not know where Lena was. After that, she saw that Lena was at the cashier`s counter. Before finishing her work, she told one `aunty` who was working in the kitchen that the appellant touched her. She did not tell anybody else until she went home.

The next day, the complainant told her sister, Zaiton, as she could not sleep that night. This was at about 2pm. The complainant told Zaiton that she had something to tell her regarding the complainant`s work. She did not tell Zaiton what happened over the telephone but did that when she went over to Zaiton`s shop. Zaiton then took the complainant to the police post at Bukit Batok to make a police report. After that, the complainant did not go back to work at Sardi`s.

Cross-examined, the complainant said that it did not occur to her during the first incident to scream. This was because there was nobody around. She maintained that though there were people working in the kitchen, there was nobody in the dining area. When she saw Lena, she did not complain to her as she did not know Lena well. She was also confused and was afraid that Lena would not believe her as she did not see what had happened. When pressed further, she said that she would not know whether Lena saw the incident. She merely assumed that it was the case as there was nobody around.

The complainant said that she was the only waitress left, as at about 4.30pm the rest had gone out for their break. She could not remember who was working that day.

During the second incident, she did not scream as she was in a confined area. According to her, it was useless for her to scream. She did not go back into the toilet because she was afraid that he would follow her in. So she tried to walk past him. Even though she knew that there was nobody there, she threatened to scream as she wanted to scare the appellant so that he would let go. On both occasions she raised her voice so that she was speaking louder than normal.

In her opinion, her voice would not carry from the bar counter to the cashier`s counter as there was piped in music. The distance was about eight metres. After the second incident, she ran out of the toilet area. The appellant allegedly called her back but she went into the kitchen. There were two persons in the kitchen but she did not tell them about the incidents. This was because there was nothing they could do. She told `aunty` later because she knew her better. However, the complainant did not know her name and could only guess her age as around 40.

During the break, she walked around. She was still fearful of the appellant. At the time, she was confused and did not think of calling anyone. She went back to work as she felt that she needed to return to work. At that time, she did not know if the appellant was still there. She worked for about two more hours. She did not tell anyone else at the restaurant. She did not know why she told `aunty` about the incident.

When the complainant went home, she did not tell her parents as they might worry. They were sleeping at the time. The next day, she worked up at about noon. Nobody was in the house then.

Zaiton gave evidence that, on 15 September 1994 at about 2pm, the complainant called her to say that she had a problem and needed to talk to her. Zaiton told the complainant to go to Zaiton`s work place. At about 3pm, when the complainant arrived, she was in tears and was quite angry. Zaiton asked her why and the complainant told her what happened. The complainant told Zaiton that she had a problem with her supervisor and that her supervisor molested her. Zaiton asked the complainant why she did not scream and she answered that this was because the appellant was holding her tightly and that there was nobody around. Zaiton then told the complainant to report the incidents to the police.

Zaiton said that she asked the complainant why she did not tell her parents. The complainant told her that their mother was having heart problems that day and that she did not wish to worry her. So far as Zaiton knew, the complainant had no boyfriend.

Corporal Gunasegarar presented a sketch plan of Sardi`s. The partition behind the cashier`s counter had a wooden partition of 130 cm and a top glass panel of 40 cm. The glass was not of clear glass. In his view, someone at the dining area would not be able to `see exactly` what happened at the bar counter. However, he thought such a person would be able to see the figures of the persons at the counter. The same is true of someone seated at the cashier`s counter. A conversation at the bar counter at a higher voice than normal will be heard by the cashier.

No other witness was called by the prosecution. The identity of `aunty` was not made known to the defence.

The appellant, on the other hand, told the court that on 14 September 1994, he was working at Sardi`s. At about 3pm, he called the complainant over to the bar counter as something appeared to be troubling her. He was concerned as she was his subordinate. He did not like his subordinates to work with a sad face. The complainant asked the appellant if he had a girlfriend. The complainant then told her that she had a quarrel with her boyfriend of three years. She was almost in tears, so the appellant tapped her shoulders to console her. He maintained that apart from tapping the complainant on her shoulder, no part of his body came into contact with the complainant. The conversation lasted about ten minutes.

At about 5pm, he went to the toilet. When he was entering the men`s toilet, he saw the complainant coming out of the ladies` toilet. She was still upset, so he told her not to be upset. There was no physical contact with the complainant.

The appellant`s statements taken under s 121 and s 122(6) of the Criminal Procedure Code (Cap 68) were admitted as evidence. In both of them, he denied committing the offences. In his s 121 statement, the appellant said that occasionally when he talked to the complainant, he might have touched her arms. It was his habit to do so. He could not recall any encounter between the complainant and himself which was in any way sexual. He could not recall any vivid event that happened on 14 September 1994. The statements were made on 18 October 1994.

After 6pm, when dinner was served, the appellant did notice the complainant in the restaurant. The appellant explained that he did not mention what took place on 14 September 1994 to the police because he was only called up by the police after his reservist training. He was told...