Kwan Peng Hong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 11 August 2000
• Neutral Citation: [2000] SGHC 164
• Date: 11 August 2000
• Subject Matter: Accused touching complainant's breast,Corroboration,s 354 Penal Code (Cap 224, 1985 Rev Ed),Lack of corroboration in sexual offence case,Witnesses,Sentencing,Whether corroborative evidence required to justify conviction,Offences,Evidence,Whether offence proved beyond reasonable doubt,Whether evidence of female victim should be treated with special legal status,Criminal force,Whether sentence of ten weeks sufficient punishment,Criminal Procedure and Sentencing,Outrage of modesty,Whether evidence unusually compelling or convincing,Benchmark sentence when private parts intruded,Criminal Law,Female witnesses in sexual offence cases
• Docket Number: Magistrate's Appeal No 82 of 2000
• Published date: 19 September 2003
• Defendant Counsel: Kan Shuk Weng and Gilbert Koh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ramesh Tiwary (Leo Fernando)

: Although this was a minor molest case, the appeal raised significant legal issues. Counsel based the appeal on the lack of corroborative evidence, the way the court ought to treat the female complainant`s evidence, how caution ought to be exercised in treating such evidence and whether the case had been proven beyond reasonable doubt.

The complainant`s allegation was that the appellant touched the side of her right breast on a bus. The whole case turned on pure issues of fact. It boiled down to whose evidence to believe, the female complainant`s allegation or the male appellant`s bare denial of the offence. The trial judge, Audrey Lim, went for the complainant, finding her much more credible than the appellant. He was convicted and sentenced to ten weeks` imprisonment.

After going through the record of proceedings and hearing the submissions from counsel for the appellant, I found no compelling reason, either on facts or law, to overturn the conviction or to regard the sentence as manifestly excessive. I dismissed the appeal and affirmed the sentence.

The facts

As the whole case turned on issues of fact, I shall lay out the facts in detail here. There was a single charge under s 354 of the Penal Code (`PC`) against the appellant, for outraging the complainant`s modesty by touching the side of her right breast. The date, time and place of the incident, as well as the identification of the appellant, were not challenged. The defence was a bare denial of the offence.

The complainant was a student. The appellant was then a treasury officer with a bank. They had not met before the incident. On that day, the complainant boarded a double-decker bus (`the bus`). She took a right window seat on the upper deck. During the journey, the complainant was listening to her portable radio with earphones. She felt two touches before she became more alert. She confronted the appellant on the third touch.

The complainant described the first touch as a `soft touch`. It was over the side of her right armpit towards the breast area. There was no movement and it lasted approximately four to five seconds. Thinking that it was an insect or the wire of the portable radio, she shuffled a little and adjusted herself.

The second touch happened some five to ten minutes later. Again, it was a soft touch, lasted about five seconds, and with no movement. She turned her head towards the area touched and saw a shadow from behind `pulling back`. She said the touch felt like it was by a hand. As she now suspected that it was the passenger seated behind her, she became more alert.

Within five minutes, the same touch came again, with the same sensation, at the same place. It did not last very long. When she felt it, the complainant immediately turned her head around. She saw a hand pulling back from the gap between her seat and the window, and that it belonged to the passenger sitting behind her, the appellant. She said the appellant was then leaning slightly forward, and when he pulled his hand back, he moved backwards leaning towards his seat.

She immediately stood up and asked him what he was trying to do. The appellant replied that he `just got excited`. The appellant however subsequently denied saying this. Shocked by the reply, she sat down and loudly told the appellant not to touch her again. She felt scared and angry. A male passenger across the aisle then told her to lodge a police report. The prosecution was unable to produce this male witness.

The appellant`s testimony was that during the bus journey, his mind was preoccupied with two things, namely, the currency exchange position that he had just created earlier in the morning, and the briefing which he was to give his colleagues later that morning. He said he was seated in a slouched position, with his knees propped up against the back of the complainant`s seat. He said he was holding his pager throughout the bus journey, with his hands resting on his laps, monitoring the foreign currency rates and various stock indexes.

The appellant said that, when he was confronted by the complainant, he thought that she was annoyed with him as he had propped his knees against her seat, or that his knees had clipped her hair in the process. He thus apologized to her. However, the appellant could not recall whether his knees had indeed clipped her hair. The complainant denied ever feeling that her hair had been clipped.

I found the trial judge`s reasoning on this much more convincing. If indeed the complainant`s hair was clipped or the appellant`s propping up his knees behind her chair had made her uncomfortable, the feeling of discomfort would have been on a completely different area of the body, certainly not the side of the right breast.

After the confrontation, the complainant walked downstairs to the bus driver, Lim, and informed him that she had been molested and asked him to send her to the nearest police station to lodge a report. Lim testified that she was very angry. At that point, the bus had already passed the nearest police station. Lim then stopped the bus and told her to borrow a handphone to call the police instead.

Meanwhile, the appellant came downstairs and tried to explain that it was all a misunderstanding. However, the complainant proceeded to ask the other passengers in the bus for a handphone to call the police. No one could lend her a handphone. Finally, the appellant offered his handphone to her. She took it from him and dialed for the police, told them her location, that she had been molested and that the offender was a Chinese. Lim testified that she was very angry throughout.

By then, the passengers in the bus were getting impatient with the delay. They wanted both the complainant and the appellant to get off the bus so that the rest of the passengers would not be held up for work. Lim opened the rear door, and some passengers alighted. The appellant asked the complainant to alight with him to settle the matter between themselves. She refused as she was afraid to deal with him alone. When the appellant alighted subsequently, the complainant followed him, fearing that he might run away.

At the bus-stop, the appellant told the complainant that he did not touch her breast and that she must have made a mistake. While waiting for the police to arrive, the appellant asked her whether she had informed the police of the right location. To that, she answered yes.

A police officer arrived soon after. The complainant immediately informed the police officer of the molest incident, recounting the three incidents of `soft touch`, and that the appellant, when confronted, told her that he `got excited`. The police officer noticed that the complainant looked very distressed, angry and almost in tears. In contrast, the appellant was very calm.

The police officer questioned the appellant who denied the offence and that he had said that he `got excited`. Instead, he claimed that he was holding on to the rail of her seat. When he was brought to the police station, he asked the police officer what redress he had against the complainant for making the allegations. Again, he was very calm throughout.

Another investigating officer recorded a cautioned statement from the appellant. It contained a bare denial. Nothing material turned on that. The appellant testified. There were no other witnesses.

The appellant`s submissions at trial

At the trial, counsel for the appellant suggested that a hand could not possibly have touched the complainant`s underarm and the side of her right breast without touching the nearby body parts. To this, the complainant replied that, although her arm was resting on her bag, it was not necessarily resting against the side of her body. She said the hand touching her was very straight. In re-examination, she clarified that she had been sitting with her arm slightly apart. During one of the incidents of touching, she had rested her forearm against the ledge of the window.

Counsel for the appellant also pointed out the appellant`s conduct after the incident. He did not attempt to escape. Instead, he offered his handphone to the complainant. He asked her to get off the bus to settle the matter between themselves. Whilst at the bus stop, he even asked the complainant whether she had informed the police of the right location. His s 122(6) CPC statement was not inconsistent with his testimony. Counsel thus submitted that such behaviour was not consistent with a person who had something to hide. In short, counsel relied on the consistency with which the appellant had maintained his defence.

For this, the trial judge reasoned that what the appellant had done was not inconsistent either with one who knew that he was in trouble. To run away in haste after being caught red-handed, would have aroused suspicion, making any subsequent defence much more unacceptable. There could have been reasons why the appellant did what he did, perhaps trying to pacify the complainant, hoping that she would relent and let the matter rest.

After all, the appellant was not uneducated or without his wits about him. He was calm throughout. I would have thought that an innocent person would have reacted rather differently on being accused of such an offence. He most probably would have reacted with great indignation and intense exasperation.

Of course, these were but postulations and explications. Nevertheless, they were based on common sense and understanding of normal human behaviour. More significantly, they showed that the explanation by counsel for the appellant regarding his behaviour after the incident was not the only plausible one. If at all, such behaviour must be treated as double-edged. As I said in Teo Keng Pong v PP [1996] 3 SLR 329 at 339, a consistent defence does not always raise a reasonable doubt. I was not convinced that the appellant`s consistent defence in the circumstances and by itself was capable of casting a reasonable doubt.

Principle of treating female witnesses...