Liew Kim Yong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Grimberg
• Judgment Date: 30 June 1989
• Neutral Citation: [1989] SGCA 9
• Docket Number: Criminal Appeal No 5
• Date: 30 June 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Leo Fernando and Peter Fernando (Leo Fernando)
• Citation: [1989] SGCA 9
• Defendant Counsel: Michael Khoo (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 159 Evidence Act (Cap 97),Inconsistencies in witness's evidence,Criminal Law,Criminal Procedure and Sentencing,No aggravating features present,Whether relevant to sentence of caning,Burden of proof,Whether self-corroboration possible,s 121(6) Criminal Procedure Code (Cap 68),Appellant's allergy to pain-killing drugs,Evidence,Abetment of rape,Whether taken into account by judge

(delivering the grounds of decision of the court):The appellant was convicted of raping a young woman (the complainant), and of abetment of the rape of the complainant by another man, who was referred to in the course of the proceedings as Ah Huat. Ah Huat was separately charged with raping the complainant and with abetment of the rape of the complainant by the appellant.

The appellant was convicted on both charges, and sentenced to seven years` imprisonment and six strokes of the cane on the charge of rape, and seven years` imprisonment on the abetment charge; the sentences of imprisonment to run concurrently. Ah Huat absconded following his arrest and was never brought to trial. The accused appealed against his convictions and sentence. We dismissed the appeal, and these are our reasons for having done so.

On the evening of 9 June 1984, the complainant went out in a foursome with the appellant, Ah Huat and a second young lady called Jessica. The complainant and the appellant had known each other for about a year, and had been out on a number of occasions in the company of others. There had been, inter alia, an overnight excursion to Desaru, and the complainant had visited the appellant`s home over the Lunar New Year in 1984. They each possessed the other`s telephone number. Jessica was an acquaintance of the complainant`s, and Ah Huat was also known to the complainant, although she did not know him anything like as well as she knew the appellant.

At about 9pm on 9 June the group had dinner at a coffee shop in Changi, and eventually proceeded to the Music Room, a discotheque at the Hilton Hotel. They arrived there at about midnight and left when the establishment closed at about 2.45am on the morning of 10 June. All four had drunk beer and danced. The complainant estimated that she drank `about two glasses` of beer, which resulted in her feeling `a little tipsy`. She had had to go to the toilet several times. After leaving the discotheque, Jessica was dropped off at her home. Her companions then drove towards the city, stopping at the Sea View Hotel on the way to make use of the toilets. They next stopped in a car park close to the Transit Food Centre near High Street.

The prosecution`s case was that the offences with which the appellant and Ah Huat stood charged were committed by them at No 22, North Bridge Road (No 22), a shophouse situated close to the Transit Food Centre car park. The evidence of the complainant, in a nutshell, was that she was forced onto a bed, in a room on the second storey of No 22, and held down by Ah Huat while she was raped by the appellant; and that she was then raped by Ah Huat while the appellant held her down. It was common ground that the appellant drove the complainant home at about 5am, after the visit to No 22. She telephoned her sister at about 11am and complained that she had been raped by the appellant and another man, and at about noon she told her mother, sister and a friend, Angela, about it. She made a report at Toa Payoh police station at 3pm the same day, and at about 7.10pm she was seen by Dr Yeo Seow Heong. Dr Yeo found her to be non virgo intacta. His examination revealed a fresh tear of the hymenal ring. Swabs established the presence of seminal acid phosphates and spermatozoa. Dr Yeo concluded that his findings were consistent with the complainant having had recent sexual intercourse. However, apart from a few superficial scratch marks on both her shoulders, which may have been caused by finger nails, no injuries of any nature were found on, or in, any part of her person. The complainant`s dress was found to be undamaged, as was her underwear, but the dress was found to be stained with semen of Ah Huat`s group. The appellant`s trousers were stained with semen, but its group was not established and in any event the appellant had declined to provide a specimen. The mattress on the bed at No 22 was found to be stained with semen of a group other than that to which Ah Huat`s semen belonged.

The appellant was arrested at his home at about 12.30am on the morning of 12 June. He was told that he had been accused of rape by the complainant, who was present and identified him. At 2.25am on the same morning, he was charged with raping the complainant and a statement (the first statement) was recorded from the appellant pursuant to s 121(6) of the Criminal Procedure Code. Ah Huat was arrested at about 11.30am on 12 June. On 16 June it was decided to charge the appellant with having abetted the rape of the complainant by Ah Huat. At about 1.30pm that afternoon a statement (the second statement) was recorded from the appellant under s 121(6) in relation to the abetment charge.

The admissibility of both the first and second statements was challenged at the trial. At the conclusion of the voire dire, and before the learned trial judge ruled on admissibility, counsel for the appellant conceded that the second statement was voluntary, and asked for it to go in. The learned judge held that the first statement was also voluntarily made, and therefore admissible. That determination was not challenged in the course of the appeal before us.

The first statement was in the following terms:

On the said day and time, I was never at the said place. I was then at the Music Room, Hilton Hotel. I do not know where is 22, North Bridge Road. I did not use force to rape the said girl. It was at about 4am, that we were together alone in my car at the carpark of North Boat Quay. We were then kissing and hugging each other. She was a willing partner. I assisted to remove her panties. She also assisted me to pull my pants down. I then lie on top of her and used my penis to rub her vagina. The whole incident lasted only half an hour and she masturbated for me. My sperm ejaculated and spilled onto her abdomen. That is all I have to say at this stage except that we separated unhappily due to some quarrels.

In the second statement, the appellant said:

I, Liew Kim Yong, deny that on 10 June 1984 at 3.05am, I ever instigated Pan Quing Fa (Ah Huat), my business associate, to rape (the complainant). As (the complainant) is my good friend, we are both willing (?) (not rape). I do not know whether Quing Fa had ever raped her. I was not at the abovementioned place at 3.05am. Please forgive me. As for the other charges, I was not told about them. Quing Fa and I are good business associates. I did not do such a thing. Thank you.

A statement recorded from the complainant`s mother was read, and she was not cross-examined on it. The deponent stated that she had found the complainant on her bed, crying, at 8am on the morning of 10 June. The complainant declined to say what was upsetting her. The trial judge also heard evidence from an older married sister who said that she received a telephone call from a sobbing complainant at about 11am on the morning of 10 June, saying that she had been raped by the appellant and by another man. The sister went to the home of her parents, with whom the complainant stayed, and found the complainant in tears, with her mother and her best friend Angela by her side, trying to console her. The complainant led all three of them to a nearby playground where she told them about the incident.

At the conclusion of the prosecution`s case, counsel for the appellant did not submit that no case against the accused had been made out which, if unrebutted, would warrant his conviction. The learned trial judge called upon the appellant to enter on his defence. The appellant gave evidence on his own behalf. He admitted that he went to No 22 with the complainant shortly after 3am on the morning of 10 June, and that they had had sexual intercourse there, the complainant having been wholly co-operative and willing. It followed that the appellant was disavowing the first statement as a total fabrication. The appellant went on to say in his evidence that after intercourse with the complainant, he walked out of the bedroom to go and wash in the bathroom, and was surprised to see Ah Huat on the landing. The arrangement had been that Ah Huat would wait in the office on the ground floor. In any event, the appellant...