Ng Huat v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 09 May 1995
• Date: 09 May 1995
• Docket Number: Magistrate's Appeal No 42 of 1995
• Court: High Court (Singapore)

Ng Huat

Plaintiff

and

Public Prosecutor

Defendant

[1995] SGHC 124

Yong Pung How CJ

Magistrate's Appeal No 42 of 1995

High Court

Criminal Law–Statutory offences–Penal Code (Cap 224, 1985 Rev Ed)–Charge of gross indecency under s 377A Penal Code (Cap 224, 1985 Rev Ed)–Whether consent an ingredient of charge–Whether “with” included “directed towards” or “against”–What constitutes grossly indecent act–Section 377A Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Appeals–Conviction under s 377A Penal Code (Cap 224, 1985 Rev Ed) for gross indecency–Whether ten months' imprisonment excessive and unjustifiably harsh

The appellant was tried in the Subordinate Courts on a charge of having committed an act of gross indecency under s 337A of the Penal Code (Cap 224, 1985 Rev Ed). He was alleged to have touched the penis, chest, nipples and buttocks of one Koh Geok Soon in the X-ray room of Alexandra Hospital while performing his duties as a radiographer. The appellant's defence was that he had acted in accordance with hospital's procedures. The magistrate however rejected the appellant's version of events, and further ruled that consent was not an element of a s 337A offence. The appellant was accordingly convicted and sentenced to ten months' imprisonment.

On appeal, the appellant argued that the magistrate had: (a) erred in law in ruling that consent was not an element of a s 337A offence; (b) erred in ruling that the act of touching the penis was a grossly indecent act; (c) applied the wrong standard of proof; and (d) on the totality of the evidence, drawn the wrong inferences and wrongly concluded that the case had been proved beyond reasonable doubt. In any case, it was submitted that the sentence of ten months' imprisonment was clearly excessive and that a shorter term would be more appropriate.

Held, dismissing the appeal against conviction but allowing the appeal against sentence:

(1) The state of the law in Singapore on gross indecency reflected the law in England prior to the Sexual Offences Act 1967 (c 60) (UK) and R v Preece [1977] QB 370. Parliament had not seen the wisdom or the necessity to keep in step with the changes in English legislation. There was also no other cogent reason to impose the requirement that consent must be an ingredient of a s 337A charge. The magistrate therefore did not err in holding that R v Hall (No 2) [1964] 1 QB 273 represented good law, and that “with” in s 337A would include “directed towards” or “against”. The appellant was thus properly charged under s 377A, as consent was not an element of the offence: at [23] and [25].

(2) What amounted to a grossly indecent act must depend on whether in the circumstances and the customs and morals of the times, it would be considered grossly indecent by any right-thinking member of the public. The court did not sit to impose its own moral standards or precepts, but to enforce the morals of the general public. From the evidence, there was no doubt that the acts complained would be considered grossly indecent by any right-thinking member of the public: at [27].

(3) It was settled law that an appellate court might be disposed to interfere with the inferences drawn from the evidence if such inferences were plainly wrong or perverse. There was however no reason to disturb the magistrate's findings as the totality of the evidence pointed to the conclusion that the appellant had committed the offence as charged. The appellant's appeal against conviction was accordingly dismissed: at [29] and [31].

(4) The offence was a serious one, having been committed in the course of the appellant's employment. However, there were varying degrees of gross indecency and it was difficult to say that the present act was so gravely repugnant as to warrant a very lengthy custodial term. On the other hand, it was clearly inappropriate to treat the case as being similar to one which had taken place in private between consenting adults, for which a short custodial sentence might suffice. Nonetheless, having regard to the nature of the offence, ten months' imprisonment might be excessive and unjustifiably harsh. The appeal against sentence was accordingly allowed, and a sentence of three months' imprisonment was substituted for the sentence imposed by the magistrate: at [33], [34]and [35].

Abdul Malik bin Othman v PPMagistrate's Appeal No 429 of 1993 (distd)

R v Hall (No 2) [1964] 1 QB 273; [1963] 2 All ER 1075 (folld)

R v K (1957) 21 WWR 86 (folld)

R v Preece [1977] QB 370; [1976] 2 All ER 690 (distd)

Tan Boon Hock v PP [1994] 2 SLR (R) 32; [1994] 2 SLR 150 (distd)

Penal Code (Cap 224,1985 Rev Ed)s 377A (consd);s 354

Criminal Law Amendment Act1885 (c 69) (UK) s 11

Sexual Offences Act 1956 (c 69) (UK) s 13

Sexual Offences Act 1967 (c 60) (UK) s 1

Chandra Mohan K Nair and Ernest Lau (Tan, Rajah & Cheah) for the appellant

Wong Keen Onn (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 The appellant was tried in the Subordinate Courts on a charge of having committed an act of gross indecency under s 377A of the Penal Code (Cap 224, 1985 Rev Ed). He was alleged to have touched the penis, chest, nipples and buttocks of one Koh Geok Soon (“Koh”) on 13 September 1993 in the X-ray room of Alexandra Hospital. The charge was amended on the initiative of the magistrate at the close of the Prosecution's case to delete the references to the “chest, nipples and buttocks”. He was convicted of the charge and sentenced to ten months' imprisonment. He has appealed against his conviction and sentence.

The Prosecution's evidence

2 At the material time, the appellant was a radiographer, working at Alexandra Hospital. Koh had injured his left wrist while working at Jurong Shipyard. He went to Alexandra Hospital to seek treatment. He was first examined by Dr Mary Ann Phipps at the Accident & Emergency Department. Dr Phipps referred him to the X-ray department for an X-ray of his injured wrist to be taken. The appellant was the radiographer on duty in the X-ray room. There was no one else in the room. The appellant directed Koh to sit on a chair beside the X-ray table and stretch out his left hand. Without any further explanation, the appellant unbuckled Koh's belt, unhooked and then unzipped his trousers. The appellant lowered Koh's underwear, exposing his penis and scrotum. He proceeded to place a gonadal shield (“the shield”) over Koh's scrotum. While Koh remained seated, the appellant took an X-ray of Koh's left wrist.

3 Koh was then asked to lie down on the X-ray table. He did as he was told, with the shield still covering his scrotum. The appellant covered him with a blanket and proceeded to another room. He returned shortly, lowered the blanket, held Koh's penis and rubbed it once. He commented that Koh's penis was not circumcised properly. He released Koh's penis and, after covering him with the blanket again, he left the room again. When he came back a while later, he spoke to Koh in Hokkien and told Koh that he had studied in Japan, where men and women took communal baths and the men could touch the women's breasts. The appellant then put his hand beneath Koh's shirt and briefly rubbed Koh's chest and both his nipples. On removing his hand from Koh's chest, the appellant asked Koh whether he visited prostitutes, whereupon Koh replied that he was a bachelor. The appellant walked away from the X-ray table and returned with a piece of paper (P2) on which was written “4106619 Henry”, being his pager number and name. He handed P2 to Koh and told him to call him if he was free, but to do so at night. Koh took P2 and kept it in his left trouser pocket.

4 Koh was still lying on the X-ray table. The appellant turned him onto his left side. He pulled Koh's trousers and underwear down to expose the anus. He lifted Koh's right leg to an extent that Koh felt some pain at his anus. He asked Koh whether he suffered from anal piles, and said that anal piles would recur and operations would never be able to eradicate the problem. He asked Koh if he could examine his anus, and, as he spoke, his fingers were touching Koh's buttocks. Koh told the appellant “no”. The appellant flipped Koh back to his supine position on the X-ray table. He then removed the shield and pulled up Koh's underwear and trousers. He gave Koh the X-ray film for his wrist and told him to bring it to the doctor.

5 Koh brought the X-ray to the Accident & Emergency...