Public Prosecutor v Heng Swee Weng

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 03 December 2009
• Neutral Citation: [2009] SGHC 275
• Docket Number: Magistrate's Appeal No 130 of 2009
• Date: 03 December 2009
• Year: 2009
• Published date: 04 December 2009
• Plaintiff Counsel: Aedit Abdullah (Attorney-General's Chambers)
• Citation: [2009] SGHC 275
• Defendant Counsel: Raymond Tan (T H Tan Raymond & Co)
• Court: High Court (Singapore)
• Subject Matter: Benchmark sentences,Sentencing,Criminal Procedure and Sentencing,Principles

3 December 2009

V K Rajah JA:

Introduction

1 The respondent in this appeal (“the Respondent”), a 57-year-old taxi driver, pleaded guilty to one charge of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) before a district judge (“the District Judge”) at a hearing in the Subordinate Courts on 4 May 2009. The victim was a 15-year-old female (“the Victim”). The charge in question, viz, DAC No 8259 of 2009, reads as follows:

You, [the Respondent] are charged that you, on the 1st day of November 2008, on a second occasion sometime after 8.15pm, at Harvey Ave, Singapore, did use criminal force on [the Victim] …, to wit, by hugging her, knowing it likely that you would thereby outrage the modesty of [the Victim] … and you have thereby committed an offence punishable under Section 354(1) of the Penal Code, Chapter 224.

The relevant provision, viz , s 354(1) of the Penal Code, reads as follows:

Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.

2 The District Judge sentenced the Respondent to a fine of $2,000 with one week’s imprisonment in default. A further charge relating to the Respondent’s touching of the Victim’s hand was taken into consideration for the purposes of sentencing. The Prosecution appealed against the sentence imposed.

3 The Respondent also pleaded guilty to a second charge, viz, DAC No 8260 of 2009, for an offence under the Moneylenders Act (Cap 188, 1985 Rev Ed) at the same hearing on 4 May 2009. The sentence imposed for this charge, viz, a fine of $20,000 with four months’ imprisonment in default, was not appealed against.

Facts of the case

4 At around 8.15pm on 1 November 2008, the Respondent, while driving his taxi, was hailed by the Victim along Bedok Road. When the Respondent pulled over, the Victim, a foreigner studying in Singapore, informed him that she was lost and had no money. She enquired if the Respondent would take her to Parbury Avenue where she lived. The Respondent agreed to give her a free ride home.

5 However, the Respondent did not take the Victim to Parbury Avenue, and took her, instead, to Harvey Avenue (some 5km from Parbury Avenue). Sometime in the course of the journey, the Respondent used his left hand to touch the right hand of the Victim. The Victim eventually alighted from the taxi along Harvey Avenue. As soon as the Victim alighted from the taxi, the Respondent also got out of the taxi, and went over to her and hugged her. The Victim struggled and managed to break free from his grasp. The Respondent then left the scene in his taxi. Eventually, the Victim found her way home.

The decision below

6 The reasons for the District Judge’s decision can be found in his grounds of decision (ie, PP v Heng Swee Weng [2009] SGDC 339 (“GD”)).

7 From the GD, it is apparent that the District Judge had accepted that a fine was an appropriate starting point for an outrage of modesty offence involving the “intrusion of the victim’s body other than private parts … except in circumstances where there is aggravation in the manner of the intrusion” (see GD at [15]). Such an approach was, in his view, supported by the sentencing decision in PP v David Chee Dah Wei, DAC No 25570 of 2008 (22 July 2009) (unreported) (see GD at [16]). In that case, the accused, a former vice-chairman of the Paya Lebar Kovan Community Club Youth Executive Committee, had been fined $2,000 for hugging a 14-year-old girl whom he had brought to a room in a hotel after some community club activities. The District Judge observed that PP v David Chee Dah Wei and the present case had an “almost similar factual matrix” (see GD at [16]). He concluded (see GD at [17]–[18]):

17. I am minded that it is a fundamental tenet of justice that “like cases should be treated alike” and that is one of the purposes of the sentencing benchmark as a guideline in ensuring parity of sentences meted out to offenders in the Subordinate Courts. 18. Having considered the facts disclosed in the [Statement of Facts], the mitigation plea of the [Respondent] (wherein the Prosecution made no submissions against) and the circumstances of the present case, I find that justice would be served against the [Respondent], a taxi driver and a first offender, by imposing a fine of $2,000 in default 1 week imprisonment [sic].

Summary of the submissions of the parties on appeal

8 The Prosecution submitted that the District Judge had failed to consider the aggravating circumstances in the case, such as the fact that the Victim was a young girl alone at night and the fear and trauma that was likely to be suffered by the Victim. It was, in addition, submitted that the District Judge had failed to consider that the cases he cited could be distinguished from the present case based on, inter alia, the Respondent’s position of responsibility. It was also submitted that the District Judge had failed to consider the position of responsibility of a taxi driver vis-à-vis his passenger, and the need to deter offences against public transport users, especially women and young girls (citing, inter alia, PP v Neo Boon Seng [2008] 4 SLR 216). The following was submitted in conclusion:^{[note: 1]}

In the present case, it is respectfully submitted that in view of the need for general deterrence to protect users of public transport, and also that the victim was a vulnerable person, namely a young girl who was lost at night and who had sought the assistance and help of the [R]espondent, the sentence to be imposed ought to be one of several weeks’ to several months’ imprisonment.

(In fairness to the District Judge, I should point out that none of these submissions were made to him.)

9 In response, the Respondent submitted that it is trite law that fines are meted out for cases where there is a lack of intrusion of private parts (citing Teo Keng Pong v PP [1996] 3 SLR 329 and Kwan Peng Hong v PP [2000] 4 SLR 96). It was also submitted that it was unnecessary to consider the significance of the position of a taxi driver vis-à-vis his passenger, as the act of molestation had occurred outside the taxi and the Respondent had been acting in goodwill by giving the Victim a free ride home.

Legal principles relating to appeals against sentence

10 The legal principles relating to an appellate court’s revision of a trial court’s decision on sentence are well-established, and need not be set out at length. Suffice it to say that an appellate court would consider revising a trial court’s decision only if:

(a) the trial judge erred in respect of the proper factual basis for the sentence imposed;

(b) the trial judge failed to appreciate the material placed before him;

(c) the sentence imposed was wrong in principle and/or law; and/or

(d) the sentence imposed was manifestly excessive or manifestly inadequate, as the case may be.

Preliminary observations

11 The present facts painted a troubling picture with a number of patent aggravating features. The Victim here did not know the Respondent. Lost, distressed and penniless, she had placed her trust in the Respondent, a member of the public transport workforce whom she was entitled to expect would unhesitatingly act with rectitude and common decency. As the Victim was unfamiliar with the area, the Respondent had complete control of the situation, both in terms of the vehicle and the route. In these perturbing circumstances, he hugged the Victim against her will, and the Victim even had to struggle to free herself. The Victim’s situation can be properly described as a textbook case of vulnerability and haplessness. In contrast, the Respondent was in a position of complete control, in respect of the vehicle, the route chosen, and, indeed, the entire situation.

The cases cited by the District Judge

12 It seemed plain to me that the District Judge should have been slow to rely on PP v David Chee Dah Wei ([7] supra). The facts in that case were somewhat unusual. Apparently, the accused had a prior friendship with the victim.^{[note: 2]} The victim herself was a troubled teenager who unreservedly accompanied the accused to the hotel, despite noticing earlier that he had condoms in his backpack.^{[note: 3]} The victim was not restrained from leaving the hotel room. It also bears mention that the victim took ten days to report the offence initially.^{[note: 4]} The lenient sentence imposed by the District Court in that matter should perhaps be explained as one peculiar to its own facts and ought not to be relied on as a sentencing precedent by any court. Consistency in sentencing is a worthy goal, but at times, particularly in cases involving atypical fact situations, there is a very real danger that the exception might overwhelm the rule if one were to rigidly adhere to “precedent”. The courts should be alert in guarding against this.

13 The District Judge had also relied on Chandresh Patel v PP [1995] 1 CLAS News 323 as another precedent pointing to the imposition of fines as the appropriate sanction for infractions not involving the touching of private parts. In that case, the accused had pleaded guilty to a charge of outrage of modesty for touching the vaginal area of a sleeping female flight passenger. In enhancing the sentence from three months’ imprisonment to six months’ imprisonment and three strokes of the cane, Yong Pung How CJ stated the following in his brief oral judgment (id at 324):

The offence of outraging modesty under s 354 covers a wide spectrum of behaviour. But this is not a case of someone who is guilty of a seemingly innocent act, like stroking a woman's thigh on impulse, or making a naughty but harmless nudge. It is also not a case of someone who has had something to drink on the plane, and cannot resist pinching or...