Public Prosecutor v GCK and another matter

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeJudith Prakash JA,Sundaresh Menon CJ,Andrew Phang Boon Leong JA
Defendant CounselLau Wen Jin (Dentons Rodyk & Davidson LLP)
Subject MatterCriminal Procedure and Sentencing,Standard of proof,"Unusually convincing" standard,Evidence,Eyewitness testimony,Witnesses,Proof of evidence,Court's substantive jurisdiction to answer questions,Beyond a reasonable doubt,Criminal references,Court's power to reframe questions
Docket NumberCriminal Reference No 6 of 2018 and Criminal Motion No 7 of 2019
Date22 January 2020
Plaintiff CounselKow Keng Siong, Agnes Chan, Chin Jincheng and Etsuko Lim (Attorney-General's Chambers)
Hearing Date25 September 2019
Published date25 January 2020

[2020] SGCA 2

Court of Appeal

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Judith Prakash JA

Criminal Reference No 6 of 2018 and Criminal Motion No 7 of 2019

Public Prosecutor
and
GCK and another matter

Kow Keng Siong, Agnes Chan, Chin JinchengandEtsuko Lim (Attorney-General's Chambers) for the applicant in Criminal Reference No 6 of 2018 and Criminal Motion No 7 of 2019;

Lau Wen Jin (Dentons Rodyk & Davidson LLP) for the respondent in Criminal Reference No 6 of 2018 and Criminal Motion No 7 of 2019.

Case(s) referred to

Adri Anton Kalangie v PP [2018] 2 SLR 557 (refd)

Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd [2012] 1 SLR 427 (folld)

AOF v PP [2012] 3 SLR 34 (folld)

Attorney-General for Northern Ireland v Gallagher [1963] AC 349 (folld)

Auckland City Council v Brailey [1988] 1 NZLR 103 (refd)

B v PP [2003] 1 SLR(R) 400; [2003] 1 SLR 400 (refd)

Bachoo Mohan Singh v PP [2010] 1 SLR 966 (folld)

Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855; [2007] 4 SLR 855 (folld)

Chang Kar Meng v PP [2017] 2 SLR 68 (refd)

Er Joo Nguang v PP [2000] 1 SLR(R) 756; [2000] 2 SLR 645 (folld)

GBR v PP [2018] 3 SLR 1048 (folld)

Haliffie bin Mamat v PP [2016] 5 SLR 636 (refd)

Haw Tua Tau v PP [1981–1982] SLR(R) 133; [1980–1981] SLR 73 (refd)

Heng Aik Ren Thomas v PP [1998] 3 SLR(R) 142; [1998] 3 SLR 465 (distd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45; [2006] 4 SLR 45 (folld)

Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (folld)

Kwan Peng Hong v PP [2000] 2 SLR(R) 824; [2000] 4 SLR 96 (folld)

Mohammad Faizal bin Sabtu v PP [2013] 2 SLR 141 (folld)

Mok Swee Kok v PP [1994] 3 SLR(R) 134; [1994] 3 SLR 140 (folld)

Mui Jia Jun v PP [2018] 2 SLR 1087 (folld)

Ng Kean Meng Terence v PP [2017] 2 SLR 449 (refd)

Poh Boon Kiat v PP [2014] 4 SLR 892 (refd)

PP v ABC [2003] SGCA 14 (refd)

PP v BPK [2018] SGHC 34 (folld)

PP v Chee Cheong Hin Constance [2006] 2 SLR(R) 24; [2006] 2 SLR 24 (folld)

PP v Chow Yee Sze [2011] 1 SLR 481 (refd)

PP v Fernandez Joseph Ferdinent [2007] 4 SLR(R) 1; [2007] 4 SLR 1 (folld)

PP v GCK [2018] SGDC 195 (refd)

PP v Goldring Timothy Nicholas [2014] 1 SLR 586 (folld)

PP v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 (folld)

PP v Lam Leng Hung [2018] 1 SLR 659 (folld)

PP v Lim Choon Teck [2015] 5 SLR 1395 (folld)

PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601; [2008] 1 SLR 601 (folld)

PP v Mohd Ariffan bin Mohd Hassan [2019] 2 SLR 490 (folld)

PP v P Mageswaran [2019] 1 SLR 1253 (folld)

R v Brydon (1995) 2 BCLR (3d) 243 (folld)

R v Gary Shawn Linegar [2001] EWCA Crim 2404 (refd)

R v Hagans [2004] NIJB 228 (folld)

R v Lucas (Ruth) [1981] QB 720 (refd)

R v RW [1992] 2 SCR 122 (folld)

R v Turnbull [1977] QB 224 (distd)

R v Yap Chuan Ching (1976) 63 Cr App R 7 (not folld)

Sandz Solutions (Singapore) Pte Ltd v Strategic Worldwide Assets Ltd [2014] 3 SLR 562 (refd)

Sharrett v Gill (1993) 113 FLR 316 (refd)

Sim Gek Yong v PP [1995] 1 SLR(R) 185; [1995] 1 SLR 537 (refd)

Tan Wei Yi v PP [2005] 3 SLR(R) 471; [2005] 3 SLR 471 (refd)

Teo Keng Pong v PP [1996] 2 SLR(R) 890; [1996] 3 SLR 329 (folld)

R v Baskerville [1916] 2 KB 658 (refd)

Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 (folld)

Took Leng How v PP [2006] 2 SLR(R) 70; [2006] 2 SLR 70 (folld)

Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (refd)

Weissensteiner v R (1993) 178 CLR 217 (folld)

Winship, Re 397 US 358 (1970) (folld)

XP v PP [2008] 4 SLR(R) 686; [2008] 4 SLR 686 (folld)

Legislation referred to

Criminal Justice Reform Act 2018 (Act 19 of 2018)s 109(b) (consd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed)ss 230(j), 390(1)(c), 397(1), 397(2), 397(4), 397(5), 397(6)(a), 397(6)(b) (consd); s 22

Evidence Act (Cap 97, 1997 Rev Ed)ss 32(1)(j)(i), 103, 105 (consd)

Penal Code (Cap 224, 1985 Rev Ed) s 354

Penal Code (Cap 224, 2008 Rev Ed)s 354(1) (consd); s 354(2)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)s 60(4) (consd)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)s 60 (consd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)s 60 (consd)

Criminal Procedure and Sentencing — Criminal references — Principles governing exercise of Court of Appeal's substantive jurisdiction in criminal reference — Whether any questions of law arising from High Court's decision — Whether High Court's determination of questions of law affected outcome of case — Whether prospective overruling applicable in criminal reference — Section 397 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing — Criminal references — Prosecution's application to reframe question originally posed — Court of Appeal's power to reframe question in criminal reference — Section 397(4) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Sentencing framework for outrage of modesty — Trial judge imposing close to maximum sentence — Whether trial judge erred in finding significant premeditation by offender — Whether trial judge erred in taking into account evidence of severe psychiatric harm to victim — Whether case was one of worst cases of its sort — Principles governing imposition of maximum sentence

Evidence — Proof of evidence — Beyond reasonable doubt — Principle of proof beyond reasonable doubt — Proof beyond reasonable doubt within Prosecution's case — Proof beyond reasonable doubt on totality of evidence

Evidence — Proof of evidence — Standard of proof — “Unusually convincing” standard — Whether “unusually convincing” standard applicable to both sexual and non-sexual offences — Whether “unusually convincing” standard applicable to both eyewitness testimony and testimony of alleged victims — Relevant test when applying “unusually convincing” standard

Evidence — Witnesses — Eyewitness testimony — Alleged victim unfit to testify — Prosecution's case resting substantially on eyewitness's uncorroborated evidence — High Court overturning respondent's conviction on basis that eyewitness might have mistaken what she saw — High Court appearing to treat eyewitness's observations as inherently less reliable — Whether eyewitness evidence inherently less reliable than alleged victim's evidence — Principles governing reliability of eyewitness observations

Facts

The respondent (“the Respondent”), a male employee at a nursing home (“the Home”), was charged with one count of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the OM Charge”). The alleged victim (“the Victim”) was an elderly female resident of the Home who was suffering from serious physical and cognitive disabilities. Because she was found unfit to testify, the Prosecution's case rested substantially on the testimony of an eyewitness, a female nurse at the Home (“Nurse MJ”). Nurse MJ alleged that she had seen the Respondent straddling the Victim with his trousers pulled down and the Victim's diaper exposed, and with his groin placed on the Victim's groin. Nurse MJ had observed the scene for about five seconds.

The Respondent denied the OM Charge. He claimed that he had been asked by one of the residents of the Home (“Mdm JP”) to enter her room (“the Room”), which she shared with the Victim, among other residents, to repair her portable television. While inside the Room, he saw the Victim's head touching the side railing of her bed and noticed that her pillow was displaced. He thought the Victim was in pain as tears were flowing from her eyes. He therefore placed his knee between the bars of the side railing of the bed to reach for the Victim's pillow, and then placed it under her head. The Respondent claimed that he did not touch the Victim while he was reaching for her pillow. He testified that after assisting the Victim, he went to the toilet to dispose of some food remains found on Mdm JP's bed before returning to the Room. A friend of Mdm JP (“Ms SBR”) came by after he returned to the Room.

At first instance, the trial judge in the District Court (“the District Judge”) disbelieved the Respondent's defence and convicted him of the OM Charge. The District Judge found Nurse MJ's evidence “unusually convincing”. In contrast, the District Judge found the Respondent's evidence internally inconsistent. Although the Respondent claimed at the trial that he had placed only one of his knees on the Victim's bed while reaching for her pillow, in one of his statements to the police, he claimed that he had placed both his knees on the bed. During a visit to the scene in the course of the trial, the Respondent was requested to demonstrate how he had retrieved the Victim's pillow. The District Judge found the Respondent's posture “highly unnatural and contrived” because the Respondent could easily have reached for the pillow without placing either of his knees on the bed, considering his height.

The District Judge considered this case “one of the worst cases of its sort”. After taking into account the seven weeks the Respondent had spent in remand, the District Judge sentenced him to 22 months' imprisonment (close to the maximum two-year imprisonment term) and three strokes of the cane. In this regard, the District Judge held that there was significant premeditation on the Respondent's part. He had chosen to strike when several of the Room's residents were away at an event, with the remaining residents being too disabled to raise any alarm. The District Judge also relied on the evidence of a psychiatrist who had interviewed the Victim after the incident (“Dr Ng”) to find that “very significant” psychiatric harm had been caused to the Victim.

On appeal, the High Court judge (“the Judge”) acquitted the Respondent of the OM Charge. In so doing, the Judge appeared to suggest that (a) the “unusually convincing” standard applied to an alleged victim's testimony, but a different standard applied to an eyewitness's testimony; (b) the “unusually convincing”...

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