Lee Kwang Peng v Public Prosecutor and another appeal

JurisdictionSingapore
Judgment Date28 July 1997
Date28 July 1997
Docket NumberMagistrate's Appeal No 27 of 1997
CourtHigh Court (Singapore)
Lee Kwang Peng
Plaintiff
and
Public Prosecutor and another appeal
Defendant

[1997] SGHC 201

Yong Pung How CJ

Magistrate's Appeal No 27 of 1997

High Court

Criminal Procedure and Sentencing–Joint trial–District judge empowered by s 171 Criminal Procedure Code (Cap 68, 1985 Rev Ed) to order separate trial–Similar fact evidence admissible–No possibility of prejudice–Whether s 171 Criminal Procedure Code (Cap 68, 1985 Rev Ed) applicable–Whether necessary for district judge to order separate trials–Criminal Procedure and Sentencing–Sentencing–Admissibility–Accused having rudimentary understanding of English–Interview conducted in English–Interview not translated–Whether translation necessary in absence of bad faith on part of recording officer and interpreter–Duties of recording officer and interpreter–Criminal Procedure and Sentencing–Sentencing–Outrage of modesty–Multiple victims–Victims of teenage years–Whether sentencing considerations differing with gender of victims–Appropriate sentence–Evidence–Admissibility of evidence–Similar fact evidence–Not strikingly similar –Whether admissible of probative value outweighing prejudicial effect–Absence of collusion–Abuse of position of power to outrage modesty as similar fact–Whether court entitled to consider evidence of more than one victim together–Section 11 (b) Evidence Act (Cap 97, 1990 Rev Ed)–Evidence–Proof of evidence–Standard of proof–Allegation of collusion among complainants made by accused–Lack of unifying motive for collusion–Testimony of complainants inconsistent with existence of collusion in that complete consistency absent –Whether conviction safe–Evidence–Witnesses–Corroboration–Whether required for child witness–Whether required for victims of sexual offences–Each complainant's evidence unusually convincing independent of other's–Whether corroboration requiring significance of possibility of collusion–Complaints made long time after commission of offence–Whether complaints amounting to corroboration–Weight to be attributed to complaints as corroboration–Similarity in method of outrage of modesty–Whether such similar fact evidence amounting to corroboration–Allegation of collusion made by accused–Approach trial judge to take to test for collusion–Approach to differ depending on whether collusion alleging conspiracy or innocent infection–Corroboration arising from evidence pertaining to questions as to any other circumstances–Evidence–Witnesses–Requirement to call–Knowledge of witness such that she could only rebut possibility of fabrication against accused–Whether Prosecution required to call her as witness–Absence of ulterior motive on part of Prosecution

The appellant was charged with and convicted of six counts of using criminal force to outrage the modesty of two teenage male complainants, each of whom alleged three incidents of molest against him, with a third complainant's giving evidence at trial.

The appellant was a taekwondo instructor and the three complainants were his male teenage students. He had allegedly fondled their genitals on separate occasions when he was alone with them, sometimes on the pretext of checking for training injuries, and sometimes without reasonable excuse.

The principal corroborating evidence in the present case was the numerous incidents of complaints made by the victims. Similarities in the offences complained of included the capacity in which the boys were known to the appellant, the age of the boys, the nature of the acts, the manner the boys claim they were approached, and a commonality as to the location where the acts took place. In the statements given by the complainants, the dates of the incidents they made turned out to be largely incorrect; however, the first complainant could remember a seemingly minute detail of the appellant ordering lunch at an encounter which was consistent with the testimony of a third party who was at the scene, a detail he could not have known unless the first complainant was at the scene. The appellant denied having ordered lunch, however. In his long statement, relied upon to a significant extent by the Prosecution, the appellant expressed remorse for his acts and claimed he did not know why he engaged in them. The appellant denied the charges and alleged that the complainants conspired to bring false charges against him. In particular, he alleged that at a training trip, he had disciplined the second complainant for inappropriate conduct relating to a female team mate, and the second complainant harboured a grudge against him as a result.

He was sentenced to four months' imprisonment for each offence, with three of the sentences to run consecutively making a total of 12 months' imprisonment. He appealed against conviction and sentence, arguing mainly that the district judge had erred in finding the complainants' evidence to be “unusually convincing” so as not to require corroboration. Additional submissions were made that she erred in admitting irrelevant and prejudicial information in the form of the original charges pertaining to the third complainant which had been stood down before trial, allowing a single trial for charges based on complaints brought by two separate persons instead of ordering separate trials as she was empowered to under s 171 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), and failed to draw an adverse inference from the Prosecution's failure to call the female team mate as a witness.

Evidential objections raised by the appellant included, in the main, that the police statements relied on by the Prosecution in establishing the appellant's guilt were not properly recorded or sufficiently interpreted to the appellant, and the district judge erred in giving them undue weight. Conversely, the trial judge had attributed too little weight and probative value to the evidence of the defence witness, which would have raised a reasonable doubt to the Prosecution's case. The appellant also submitted that too much credibility was attributed to the evidence given by the complainants especially given that they had motive and opportunity to fabricate evidence against the appellant.

Held, dismissing the appeal and allowing the cross-appeal:

(1) Similar fact evidence which was not “strikingly similar” could be admitted in cases where the question was whether a crime had been committed and the identity of the perpetrator was not in issue, if the probative value could outweigh its prejudicial effect, the test being a question of degree. In cases where the perpetrator had used his position of power over the victims to commit the offences, this might provide a sufficient hallmark to render the evidence of one victim admissible in the case of the other where the danger of collusion could be discounted. The similarities in the alleged incidents this case fell neatly into such a situation. The district judge would therefore (subject to a finding that there was a real risk of collusion between the victims) have been entitled to consider the evidence of both victims together in deciding whether to convict the accused. In any case, the district judge did in fact consider the evidence against each complainant separately and was not minded to make inferences as to the accused's guilt on any one charge from the evidence given by the other complainants, and her grounds of decision did not suggest that she would not have convicted the accused of the charges involving one complainant but for the evidence of the other: at [48], [51] to [55].

(2) In Singapore law, whether a joinder was appropriate was governed by s 169 of the CPC, which provided that an accused might be charged with and tried at one trial for any number of offences if they formed or were part of a series of offences of the same or similar character. As this was a case in which it would have been appropriate for the district judge to consider similar fact evidence, in the absence of some other source of prejudice or embarrassment other than the rule against similar facts, s 171 had no operation and the district judge rightly refused defence counsel's application for separate trials: at [58] and [60].

(3) There was no special rule requiring a trial judge to direct himself as to the dangers of convicting without corroboration where the only evidence was that of a child witness, although he must remain sensitive to the requirement of corroborative evidence or alternatively consider that corroboration was not required because of the maturity and reliability of the witness: at [67].

(4) In a case involving sexual offences, it was dangerous to convict on the words of the complainant alone unless her or his evidence was unusually compelling. In a situation in which two complainants made accusations against the same accused, and where each complainant's evidence standing on its own was “unusually convincing” but the accused alleged collusion between the complainants, it was only safe to convict if: (a) the allegation of collusion was considered and discounted as a sham defence; or (b) where the allegation of collusion could not be totally discounted, there must be corroboration. Corroboration was independent direct evidence implicating the accused of the offences with which he was charged. The numerous complaints made by the complainants could not amount to corroboration, as they had been made so long after the alleged incidents as to be unable to fall within the ambit of s 159 of the Evidence Act (Cap 97, 1990 Rev Ed), and it was not independent and hence only of little additional evidential value. The similar facts could also not amount to corroboration; where there was an allegation of collusion, the evidence of another complainant who was alleged to have participated in the conspiracy against the accused could hardly amount to independent corroboration. However, in respect of the single charge for which the first complainant gave evidence that the accused ordered lunch, this...

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