Lim Cher Foong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: MPH Rubin J
• Judgment Date: 02 February 2005
• Neutral Citation: [2005] SGHC 27
• Court: High Court (Singapore)
• Year: 2005
• Published date: 15 February 2005
• Plaintiff Counsel: M Ravi (M Ravi and Co) and Manicka Vasagam (Manicka and Co)
• Defendant Counsel: Christopher Ong Siu Jin (Deputy Public Prosecutor)
• Subject Matter: Criminal Procedure and Sentencing,Statements,Voluntariness,Appellant claimed at trial that some aspects of his police statements were involuntary,Appellant's counsel at trial had expressedly informed court that appellant was not challenging the voluntariness of his police statements,Whether trial judge erred in not conducting voir dire,Evidence,Witnesses,Corroboration,Prosecution's witnesses fell within established categories of witnesses requiring corroboration warning,Whether judge should have issued corroboration warning,Inconsistencies in testimony,Appellant alleged various inconsistencies in Prosecution's witnesses' evidence,Whether inconsistencies undermined strength of collective evidence of Prosecution's witnesses
• Citation: [2005] SGHC 27

2 February 2005

MPH Rubin J:

1 The appellant was convicted in the court below on five charges of committing carnal intercourse against the order of nature under s 377 of the Penal Code (Cap 224, 1985 Rev Ed). The first charge pertained to a single act of anal intercourse committed by the appellant on the first victim (“V1”) on 1 April 2003. The subsequent charges were derived from four separate instances where the appellant committed acts of anal intercourse on the second victim (“V2”), over the period spanning the months of January and February of 2003. The appellant was sentenced to a total of 14 years’ imprisonment. He appealed solely against his conviction. I dismissed the appeal and now give my reasons.

The facts

2 At the material time, the appellant, then aged 25, had rented a flat at Block 316 Woodlands St 31, #11-124 (“the appellant’s residence”). He conspired with an accomplice (“P3”), who knew the two victims, V1, then aged 16, and V2, then aged 15, such that the two would be manipulated into engaging in anal intercourse with him. The appellant’s plan succeeded and gave rise to the five charges in this appeal.

The Prosecution’s case

Facts pertaining to the first charge

3 On 31 March 2003, P3 requested that V1 help him pass a bottle of mineral water to his god-brother, the appellant. The bottle supposedly contained a mixture of mineral water and “holy water” that P3 had obtained from a temple. V1 complied with P3’s request and delivered the bottle to the appellant that evening. That same day, P3 again contacted V1 and arranged for them to visit the appellant at the appellant’s residence at 6.00am the following morning.

4 On 1 April 2003, V1 made his way to the appellant’s flat. Along the way, V1 received a call from P3 and was told that the latter would be unable to reach the appellant’s residence on time. V1 was subsequently told to proceed to meet the appellant alone. Upon reaching the appellant’s flat, V1 was again contacted by P3 and instructed to give the previous night’s bottle of mineral water to the appellant to drink. V1 located the bottle and got the appellant to drink from it.

5 Upon consuming the contents of the bottle, the appellant started to complain of giddiness. V1 quickly contacted P3 to inform him of the appellant’s condition. It was at this time that P3 told V1 that the water had caused the appellant to have the “urge” and that the only way for V1 to save the appellant was to engage in anal intercourse with him. V1 refused to do such a thing and hung up on P3. V1 then called another friend (“P4”) and requested that P4 meet him at the appellant’s flat to keep him company. However, when the appellant discovered that P4 had arrived at the flat, he scolded P4 and V1, chasing P4 away after declaring that the matter was solely between V1 and himself.

6 After P4 left the premises, the appellant accused V1 of causing his condition and threatened to report V1 to the police unless he consumed certain blue and orange tablets. V1, having recently been released on probation from a boy’s hostel, was frightened of the prospect of being reported to the police and complied with the appellant’s orders. The tablets caused V1 to feel drowsy and he soon fell asleep.

7 When he regained consciousness, V1 discovered that he lay completely naked on the appellant’s bed. The appellant, who was also naked, was facing him and had both V1’s legs on his shoulders. V1 then realised that the appellant was having anal intercourse with him. He tried to resist but did not have the strength to push the appellant away. It was only when the appellant stopped and exited the bedroom that V1 retrieved his clothing and proceed to the toilet to clean himself. While walking to the toilet, he noticed P3 and the appellant in the living room. After he finished bathing, V1 confronted both P3 and the appellant over his treatment. P3 explained that he had induced V1 to engage in the act of anal intercourse in order to get the appellant to amend his will to reflect P3 as his beneficiary. When V1 followed up by demanding to know what that had to do with him, the appellant scolded P3. V1 then asked P3 to open the door to the appellant’s residence and left the premises.

8 Subsequently, the appellant contacted V1 and on the pretext that he had, in the process of having anal intercourse with V1, transferred some of his “qi” (a form of internal energy) to V1, demanded that V1 return the “qi” to him by engaging in further anal intercourse. V1 refused the appellant’s demands and eventually revealed what had transpired on 1 April 2003 to P4. On P4’s advice, V1 went with his father to lodge a police report against the appellant on 7 April 2003.

Facts pertaining to the second to fifth charges

9 On 24 January 2003, P3 informed V2 that a friend of his required money to repay some debts. They hatched a plan to steal money from the appellant and arranged to visit the appellant’s residence. According to the plan, P3 would lure the appellant out of his bedroom while V2 stole the money from his wallet. They executed their plan the following day.

10 Unfortunately, after V2 had managed to remove some dollar notes from the appellant’s wallet, the appellant returned to his bedroom and checked the contents of his wallet. He discovered the theft and searched both V2 and P3. He then compared the serial numbers on the dollar notes he found on V2’s person with a list that he kept in his wallet. After proving that the money belonged to him, the appellant threatened to make a police report. V2 pleaded with the appellant and ended up writing a note promising not to steal again (“the note”). The note, dated 25 January 2003, bore V2’s signature and thumbprint.

11 After the note was kept by P3, the appellant instructed V2 and P3 to strip naked. The appellant then commenced practising his “qigong” (a Chinese method of controlling internal energy). V2 complied with these instructions only because he wanted to get the note back from the appellant. He was told to lie on the bed in order for the appellant to feel his pulse and inspect his veins. At this point in time, P3 took out the appellant’s camera and began to take some pictures. When V2 queried about the camera, he was told by P3 that there was no film inside.

12 Having taken a few photographs of V2, P3 put on some clothing and straddled V2’s stomach with his back facing V2. Squatting over V2’s stomach, P3 raised both of V2’s legs, at which time V2 felt some pain in his anus. When P3 dismounted from his position, V2 saw that the appellant was having anal intercourse with him. P3 then resumed taking pictures of V2 as the appellant had anal intercourse with him.

13 When V2 subsequently complained of stomach pains, the appellant stopped and allowed V2 to visit the toilet. Upon returning to the living room from the toilet, P3 told V2 that the appellant had sustained some internal injuries and that V2 could help to treat these injuries by continuing to engage in anal intercourse with the appellant. If V2 cooperated, the note would be returned to him.

14 Subsequently, V2 visited the appellant on three other occasions. Each time V2 visited, the appellant would apply something from a blue tube onto his penis and V2’s anus before commencing anal intercourse with him. V2 testified at trial that several tubes of Durex brand “Top Gel” seized from the appellant’s residence and the appellant’s room in his mother’s flat were identical to the tube used by the appellant on each of those occasions. He also confirmed that the photographs marked P12 to P16, which were developed from the roll of film found in the appellant’s room in his mother’s flat, were those P3 had taken during the first incident on 25 January 2003.

15 Sometime in March 2003, the discipline master of V2’s school confiscated a copy of the note executed by V2 from some of the school’s students. The discipline master lodged a police report and it was then that an investigating officer approached V2. This led to the uncovering of the appellant’s sordid acts.

Corroborative evidence of P3

16 P3’s testimony essentially corroborated both victims’ accounts of the facts. Furthermore, P3 admitted that he had conspired with the appellant to induce V1 and V2 into engaging in their respective acts with the appellant.

17 In relation to the first charge, P3 revealed that he and the appellant had concocted two plans to trick V1 into having anal intercourse with the appellant. Ultimately, only the second plan was executed, the details of which largely corresponded to the modus operandi of the appellant as related by V1.

18 P3 also testified that he had arrived at the appellant’s residence at about 9.00am on 1 April 2003 and had observed the appellant apply gel to his penis and the anus of the then unconscious V1. P3 had left the bedroom when the appellant was about to place his penis into V1’s anus.

19 As to the second to fifth charges, P3 admitted that the appellant had instructed him to conspire with V2 to steal money from the appellant’s wallet. P3’s version of the failed attempt to steal the appellant’s money also corresponded to V2’s version of the facts. In addition, P3 also gave evidence of how he had taken the various pictures of V2 and the appellant, and further, how he had held on to V2’s legs while the appellant applied a tube of cream to his penis and V2’s anus. In particular, P3 testified as to how he had taken more pictures of V2 and the appellant as the latter penetrated V2.

20 It should be noted that P3 denied colluding with any persons, including the two victims, to frame the appellant. P3 also denied having set the appellant up in order to extort money from him.

21 Relying on the testimonies of the three witnesses above, the medical and psychiatric evidence of the various expert witnesses, and the appellant’s various statements to the police, the Prosecution submitted that it had proved its case beyond reasonable doubt.

The appellant’s case

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