Public Prosecutor v BLV

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 04 July 2017
• Neutral Citation: [2017] SGHC 154
• Plaintiff Counsel: April Phang Suet Fern, Amanda Chong Wei-Zhen and Nicholas Lai Yi Shin (Attorney-General's Chambers)
• Docket Number: Criminal Case No 58 of 2016
• Date: 04 July 2017
• Hearing Date: 23 January 2017,15 February 2017,20 March 2017,18 November 2016,17 November 2016,23 November 2016,15 November 2016,16 November 2016
• Subject Matter: Outrage of modesty of person under 14,Offences,Criminal law,Criminal procedure and sentencing,Sexual assault by penetration,Statutory offences,Children and Young Persons Act,Sentencing,Sexual offences
• Published date: 13 November 2019
• Citation: [2017] SGHC 154
• Defendant Counsel: Siaw Kin Yeow, Richard and Peng Yin-Chia, Winna (JusEquity Law Corporation)
• Court: High Court (Singapore)
• Year: 2017

Aedit Abdullah JC: Introduction

The Prosecution brought ten charges against the accused (“the Accused”) for a series of sexual offences committed against his biological daughter (“the Victim”) between 2011 and 2014 at various locations in their family residence. At the time of the offences, the Victim was between 11 and 13 years old. The Prosecution relied heavily on the Victim’s testimony, which it argued was consistent with the evidence of her mother (who is the ex-wife of the Accused, hereinafter “the Mother”) and of the medical experts.

The Accused wholly denied the occurrence of these incidents. Counsel for the Accused submitted that the Victim’s and the Mother’s testimonies were inconsistent in several material aspects, and their purported evasiveness on the stand suggested the possibility of fabrication. Further, at the material time of the offences, the Accused suffered from a penile deformity as a result of botched penile enlargement procedures, which made sexual intercourse painful and difficult for him. The Prosecution’s case was thus said to be inherently improbable.

Having considered the evidence, I found the Victim’s testimony to be unusually convincing and largely unshaken in court. I also preferred the evidence of the Victim and the Mother in relation to the appearance and condition of the Accused’s sexual organ during the material period. Accordingly, the Accused was convicted on all ten charges and sentenced to a global term of 23 years and 6 months’ imprisonment, and 24 strokes of the cane. The Accused has appealed.

Background

The Accused is a 43-year-old male who has been engaged in various odd jobs since 2002. He married his ex-wife (ie, the Mother) in September 1999. At the time of the offences, he was residing with the Mother, their three children, and a domestic helper in a flat located at Choa Chu Kang. The Victim is their eldest daughter, and is 16 years old as at the date of these grounds (date of birth: 24 November 2000). She was between 11 and 13 years of age at the time of the offences between the end of 2011 and April 2014.

The Accused claimed trial to all ten charges brought against him for a series of alleged sexual offences committed against the Victim:

First Charge	… sometime at the end of 2011, at [address], did commit an indecent act with [the Victim], a child who was then about 11 years old, to wit, by taking her hand and swiping her hand across your penis, and you have thereby committed an offence punishable under section 7(a) of the Children and Young Persons Act (Cap. 38, 2001 Rev. Ed.).
Second Charge	… sometime between the end of 2011 and the end of 2012, at [address], did use criminal force on [the Victim], a person then under 14 years of age, intending to outrage her modesty, to wit, by rubbing your penis against her face, and you have thereby committed an offence punishable under section 354(2) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Third Charge	… sometime at the start of 2012, at [address], did sexually penetrate your penis into the mouth of [the Victim], a person then under 14 years of age, without her consent, and you have thereby committed an offence under section 376(1)(a), punishable under section 376(4)(b) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Fourth Charge	… sometime at the end of 2012, at [address], did sexually penetrate your penis into the mouth of [the Victim], a person then under 14 years of age, without her consent, and you have thereby committed au [sic] offence under section 376(1)(a), punishable under section 376(4)(b) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Fifth Charge	… sometime between 2012 and 14 April 2014, at [address], did sexually penetrate your finger into the anus of [the Victim], a person then under 14 years of age, without her consent, and you have thereby committed an offence under section 376(2)(a), punishable under section 376(4)(b) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Sixth Charge	... sometime between 2012 and 14 April 2014, at [address], did sexually penetrate your penis into the anus of [the Victim], a person then under 14 years of age, without her consent, and you have thereby committed an offence under section 376(1)(a), punishable under section 376(4)(b) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Seventh Charge	… sometime between 2012 and 14 April 2014, at [address], did use criminal force on [the Victim], a person then under 14 years of age, intending to outrage her modesty, to wit, by licking the vagina of the [said Victim], and you have thereby committed an offence punishable under section 354(2) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Eighth Charge	… sometime between 2012 and 14 April 2014, at [address], did use criminal force on [the Victim], a person then under 14 years of age, intending to outrage her modesty, to wit, by squeezing and licking the breasts of the [said Victim], and you have thereby committed an offence punishable under section 354(2) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Ninth Charge	… sometime between 2012 and 14 April 2014, at [address], did use criminal force on [the Victim], a person then under 14 years of age, intending to outrage her modesty, to wit, by touching and rubbing the outside of her vagina with your finger, and attempting to penetrate your finger into the vagina of the [said Victim], and you have thereby committed an offence punishable under section 354(2) of the Penal Code (Cap. 224, 2008 Rev. Ed.).
Tenth Charge	… on the 15th of April 2014, at [address], did use criminal force on [the Victim], a person then under 14 years of age, intending to outrage her modesty, to wit, by rubbing your penis against the vagina, and thereafter against the anus of the [said Victim], and you have thereby committed an offence punishable under section 354(2) of the Penal Code (Cap. 224, 2008 Rev. Ed.).

At the outset of the trial, the Prosecution applied under s 133 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) for the Accused to be tried on all the charges together, on the basis that they were part of a series of offences of similar character. The Prosecution also applied for a gag order under s 8(3) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in relation to the Victim’s identity, and for the Victim’s evidence to be given in camera under ss 153(1) and/or (3) of the Women’s Charter (Cap 353, 2009 Rev Ed). The Defence did not object and, accordingly, I granted all three applications.¹

The Prosecution’s case

The Prosecution’s case was that the sexual abuse of the Victim by the Accused started at the end of 2011, when she was around 11 years old, and lasted until 15 April 2014, one day before she decided to disclose the series of abuse to her Mother.

The Victim’s account of events

The Victim’s account of events will be briefly stated here for context; a more detailed account will be evaluated below (at [28] – [37]).

The first charge

The first incident occurred when the Victim was in late Primary 5 or the start of Primary 6, during lunch time, in her younger brother’s room in the family residence. While the Victim was massaging the Accused’s upper thigh region on his request, he grabbed hold of her hand and swiped it across his penis.

The second charge

The next incident occurred in the master bedroom. While the Victim was seated on the floor in a “butterfly position” (ie, with the soles of her feet facing each other and her knees bent), the Accused lifted his sarong and pulled it over her head. The Victim was shrouded in darkness, and she thereafter felt the Accused rubbing his penis against her forehead area.² The rubbing went on for about a few minutes.³

The third and fourth charges

The third and fourth charges were framed around the Accused’s penetration of the Victim’s mouth with his penis in 2012, when the Victim was in Primary 6.⁴ According to the Victim, the Accused would beckon her over to the toilet of the master bedroom, ask her to kneel, and then insert his penis into her mouth. This occurred about ten times in that year, with the first incident happening when she was in early Primary 6, and the last of them a year later before she started Secondary school. For most of these incidents, the Accused did not ejaculate into the Victim’s mouth. The Victim would, however, observe a white colour liquid, which she believed was his sperm, coming out from his penis after the oral penetration.⁵

The fifth and sixth charges

Sometime between 2012 and April 2014, the Accused was said to have engaged in digital-anal and penile-anal penetration with the Victim. The first incident occurred while the Accused and the Victim were alone in the master bedroom. The Victim also testified as to a second incident occurring in her own bedroom at the family residence.

The seventh charge

The seventh charge was framed based on instances between 2012 and 14 April 2014 in which the Accused would pull down the Victim’s shirt or pants and lick her body or vagina. These incidents occurred either in the Victim’s room or the master bedroom.

The eighth charge

The events constituting the eighth charge occurred between 2012 and April 2014. The Accused would stand behind the Victim and hug her from behind, while she used the computer in the master bedroom. He would then massage her shoulders, and in that process slip his hands under her shirt and undergarment to touch and squeeze her breast.

The ninth charge

Between 2012 and 14 April 2014, the Accused would ask the Victim to lie down on the bed facing upwards and crossing her legs. Thereupon, he would push the Victim’s crossed legs up towards her chest and use his finger to touch and rub the area outside her vagina.

The tenth charge

On the night of 15 April 2014, while the Victim was using the computer in the master bedroom, she...