Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 11 January 2018
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9187 of 2016/01
• Date: 11 January 2018

Kunasekaran s/o Kalimuthu Somasundara

and

Public Prosecutor

[2018] SGHC 9

Chan Seng Onn J

Magistrate's Appeal No 9187 of 2016/01

High Court

Criminal Law — Offences — Criminal force and assault — Outrage of modesty — Offender convicted of offence of outrage of modesty on basis of victim's evidence — Whether victim's evidence was “unusually convincing” — Section 354(1) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Principles — Outrage of modesty — Sentencing framework for offence of outrage of modesty simpliciter under s 354(1) Penal Code (Cap 224, 2008 Rev Ed) — Whether sentencing benchmark of nine months' imprisonment with caning in PP v Chow Yee Sze[2011] 1 SLR 481 should not be followed — Section 354(1) Penal Code (Cap 224, 2008 Rev Ed)

Evidence — Witnesses—Identification evidence — Turnbull guidelines — Offender standing with back facing victim on bus and never turning to look at victim — Victim providing inaccurate description of offender in First Information Report — Victim accurately identifying offender on each of next three days after incident — Offender arguing that victim had mistakenly identified him as culprit — Whether victim's identification evidence was reliable

Held, dismissing the appeals against conviction and sentence:

(1) The guidelines for assessing the reliability of identification evidence were reflected in the three-step test laid down in Heng Aik Ren Thomas v PP[1998] 3 SLR(R) 142 as follows: (a) the judge should ask whether the case against the accused depended wholly or substantially on the correctness of the identification evidence which was alleged by the defence to be mistaken; (b) if so, the judge should ask whether the identification evidence was of good quality, taking into account the circumstances in which the identification by the witness was made; and (c) where the quality of the identification evidence was poor, the judge should ask whether there was any other evidence which went to support the correctness of the identification: at [16].

(2) Applying the three-step test to the facts of the present appeal, the district judge rightly found that the victim had correctly identified the offender as the culprit. It was first common ground that the present case depended substantially on the correctness of the victim's identification of the offender. Secondly, the victim's identification evidence was of good quality. Thirdly, even assuming that the victim's identification evidence was not of a sufficiently good quality, there was supporting evidence that corroborated the victim's identification of the offender as the culprit: at [15], [17], [18], [22] and [23].

(3) When a conviction was based solely on the bare words of the complainant and nothing else, the complainant's testimony could constitute proof beyond reasonable doubt on its own only when it was so “unusually convincing” as to overcome any doubts that might arise from the lack of corroboration. When an appellate court was tasked with determining whether the complainant's testimony was “unusually convincing”, the court had to evaluate: (a) the internal and external consistency of the complainant's testimony (but not the demeanour of the complainant); and (b) the offender's evidence. It was only if the complainant's evidence was not “unusually convincing” that further corroborative evidence would be needed to sustain the conviction: at [25] and [28].

(4) The victim's evidence was “unusually convincing” as it was both internally and externally consistent. The victim's account of the incident was “credible, consistent and unequivocal” enough to be considered “unusually convincing”. Also, the offender's evidence was insufficient to cast any reasonable doubt on the finding that the victim's evidence was “unusually convincing”. As the offender's credit was rightly impeached at trial, it had to follow that little or no weight should be placed on the offender's evidence: at [24], [29], [34] and [39].

(5) The “two-step sentencing bands” approach, as set out by the Court of Appeal in Ng Kean Meng Terence v PP[2017] 2 SLR 449 for the purposes of sentencing for rape, and suitably modified by See Kee Oon J in GBR v PP[2017] SGHC 296 (“GBR”) for the purposes of sentencing for aggravated outrage of modesty under s 354(2) of the Penal Code, had much to commend it. It was a reliable methodology to adopt in the context of sentencing sexual offences because it improved clarity, transparency, coherence and consistency in sentencing such offences: at [47].

(6) The framework in GBR that was proposed by See J in the context of offences of aggravated outrage of modesty under s 354(2) of the Penal Code should similarly be applicable to offences of outrage of modesty simpliciter under s 354(1). There was no reason why the three main categories of offence-specific aggravating factors identified by See J for s 354(2) offences (ie, the degree of sexual exploitation, the circumstances of the offence, and the harm caused to the victim), which bore upon the assessment of the appropriate sentence, should be any different from those for s 354(1) offences. Also, given that the distinction between the statutorily permitted sentencing outcomes available for s 354(1) and s 354(2) offences was essentially premised on the difference in the age of the victim, the sentencing bands of imprisonment that were carefully calibrated by See J in GBRENR to reflect the full spectrum of possible sentences for s 354(2) offences could accordingly be scaled down linearly to cater to the statutory maximum punishment of two years' imprisonment for s 354(1) offences: at [48] and [49].

(7) Under the “two-step sentencing bands” approach, sentencing for offences under s 354(1) of the Penal Code for outrage of modesty simpliciter would thus take place in two steps. First, the court would consider the following offence-specific factors: (a) the degree of sexual exploitation; (b) the circumstances of the offence; and (c) the harm caused to the victim. Based on the consideration of the foregoing offence-specific factors, the court should ascertain the gravity of the offence and then place the offence within any of the following three bands of imprisonment: (a) Band 1: less than five months' imprisonment, (b) Band 2: five to 15 months' imprisonment, and (c) Band 3: 15 to 24 months' imprisonment: at [45(a)], [45(b)] and [49].

(8) At the second step, the court would consider the aggravating and mitigating factors that related to the offender generally but which were not offence-specific (ie, offender-specific factors). The court would also consider whether there were grounds to enhance the sentence by way of the imposition of imprisonment in lieu of caning if the accused was certified to be unfit for caning because he was above 50 years of age at the time of caning or was certified to be medically unfit for caning: at [45(c)].

(9) The “well-established sentencing benchmark” of nine months' imprisonment with caning as laid down in PP v Chow Yee Sze[2011] 1 SLR 481 (“Chow Yee Sze”) remained instructive in respect of its guidance that the starting point in respect of the imposition of caning was where the outrage of modesty involved the intrusion upon the victim's private parts or sexual organs. As for the suggestion in Chow Yee Sze that the benchmark imprisonment term was nine months' imprisonment as a starting point, this benchmark should no longer be followed because: (a) as a matter of principle, the approach adopted by the court in Chow Yee Sze was not suitable for the sentencing of offences under s 354(1) of the Penal Code; and (b) as a matter of practice, even though the reliance on the “benchmark” approach was to be eschewed, the benchmark sentence of nine months' imprisonment with caning as laid down in Chow Yee SzeENR was not actually entirely inconsistent with the sentencing bands that had been proposed: at [50] and [51].

(10) The sentence of eight months' imprisonment imposed by the district judge could not in any way be said to be manifestly excessive. The relevant offence-specific aggravating factors in this case were that: (a) there was the continuous touching of the victim's groin area over her skirt which lasted for about a minute; (b) the victim was only 14 years old at the time of the incident; (c) the offence took place on board a public transport vehicle; and (d) the victim suffered from significant emotional and psychological trauma as a consequence of the incident. The case thus fell somewhere in the middle of Band 2, such that a fine was inappropriate: at [53], [56] to [61] and [63].

(11) There was also no need to disturb the sentence imposed on account of the applicable general offender-specific factors. The fact that the offender was a first-time offender and that the offender had claimed trial were both neutral factors. It was also unnecessary to impose a term of imprisonment in lieu of caning even though this court was empowered under s 325(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) to do so, as the substantial aggravating factors that called for such imposition did not present themselves here: at [64] to [67] and [69].

[Observation: The Prosecution had elected not to admit a statement under s 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed) as evidence of any fact stated therein of which direct oral evidence by the offender would otherwise be admissible, but instead only elected to rely on the statement under s 157(c) of the Evidence Act as proof of a former statement inconsistent with portions of the offender's oral evidence in order to impeach the offender's credit. Hence, the Prosecution should now not be entitled to substitute various parts of the offender's oral testimony at trial that were inconsistent with the statement with the contents of that statement: at [38].]

Case(s) referred to

Abu Syeed Chowdhury v PP [2002] 1 SLR(R) 182; [2002] 1 SLR 301 (refd)

Chandresh Patel v PP [1995] 1 CLAS...