Public Prosecutor v Wee Teong Boo and other appeal and another matter

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 10 June 2020
• Neutral Citation: [2020] SGCA 56
• Citation: [2020] SGCA 56
• Published date: 16 June 2020
• Plaintiff Counsel: Lee Lit Cheng, Chew Xin Ying and Sarah Siaw (Attorney-General's Chambers)
• Defendant Counsel: Eugene Singarajah Thuraisingam, Chooi Jing Yen, Syazana Binte Yahya and Johannes Hadi (Eugene Thuraisingam LLP)
• Docket Number: Criminal Appeal Nos 15 and 16 of 2019 and Criminal Motion No 2 of 2020
• Hearing Date: 26 March 2020
• Date: 10 June 2020
• Subject Matter: Alternative charges,Charge,Outrage of modesty,Offences,Criminal Procedure and Sentencing,Disclosure,Rape,Criminal Law

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

Dr Wee Teong Boo (“Dr Wee”) is a medical practitioner who claimed trial to two charges brought against him. The first charge was for the offence of outrage of modesty (“the OM Charge”) punishable under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”). Dr Wee was alleged to have used criminal force on the victim (“V”), who was his patient, by stroking her vagina with his fingers, with the intention of outraging her modesty at his medical clinic on 25 November 2015. The second charge was for the offence of rape (“the Rape Charge”) under s 375(1)(a) of the Penal Code punishable under s 375(2) of the Penal Code. Dr Wee was alleged to have penetrated V’s vagina with his penis without her consent at his medical clinic around midnight on 30 December 2015.

Dr Wee denied committing the offences. The crux of his defence was that the alleged events had never occurred. In relation to the OM Charge, Dr Wee claimed that he had conducted a routine examination on V in the course of which he did not touch V’s vagina. In relation to the Rape Charge, Dr Wee claimed that because he suspected that V might have pelvic inflammation disease (“PID”), he carried out an internal pelvic examination by inserting two of the fingers of his right hand into her vagina. He maintained that he did this with her consent in order to check whether she had PID.

The High Court judge (“the Judge”) found V in general to be a compelling and believable witness: see Public Prosecutor v Wee Teong Boo [2019] SGHC 198 (“GD”) at [157]. The Judge convicted Dr Wee on the OM Charge and sentenced him to one year’s imprisonment and two strokes of the cane. The Judge acquitted Dr Wee of the Rape Charge because he found that there was a reasonable doubt as to whether it would have been physically possible for Dr Wee to have carried out penile-penetration of V’s vagina in the manner described by her, because of the evidence that was led of his erectile dysfunction (“ED”), among other things (GD at [108]).

The Judge however, rejected Dr Wee’s claim that he had carried out an internal pelvic examination on 30 December 2015 as part of a medical intervention, and instead found that Dr Wee’s digital penetration of V’s vagina, based on his own account, was sexual in nature. The Judge proceeded to exercise his power under s 139 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). He convicted Dr Wee of the offence of sexual assault by digital penetration under s 376(2)(a) of the Penal Code (“the Digital Penetration Offence”) without framing a charge and sentenced him to nine years’ imprisonment and four strokes of the cane (GD at [178]). Dr Wee was 68 years old at the time of sentencing and so could not be caned pursuant to s 325(1)(b) of the CPC. The Judge did not enhance the sentence on account of this. In the circumstances, Dr Wee was sentenced to an aggregate term of 10 years’ imprisonment (see GD at [183]).

Dr Wee appealed against both his convictions as well as his sentence. The Prosecution appealed against Dr Wee’s acquittal on the Rape Charge and cross-appealed against the sentence that was meted out. Before us, the parties’ submissions focused on: (a) whether the Judge had erred in fact, in convicting Dr Wee of the OM Charge and acquitting him of the Rape Charge; and (b) whether the Judge had erred in law, in convicting Dr Wee of the Digital Penetration Offence by exercising his power under s 139 of the CPC. In this appeal, Dr Wee also applied to adduce an expert report in an effort to demonstrate the legitimacy of his claim that he had conducted an internal pelvic examination on valid professional grounds.

The present case again raises a procedural issue of importance: the Prosecution’s duty to disclose evidence that could be material to the defence of an accused person. Given the Prosecution’s overarching duty of fairness, a duty which we recently reiterated in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25 (“Nabill v PP”), it was not satisfactory that one of the medical reports that the Prosecution had obtained in respect of Dr Wee’s medical condition as well as a report from the polyclinic that V later attended were only adduced by the Prosecution and made available to Dr Wee after the commencement of the trial. We are satisfied that at least in respect of the medical report, an omission that was also noted by the Judge, the belated disclosure prejudiced Dr Wee in the conduct of his defence.

For reasons that we will set out in this judgment, we find that the Prosecution has failed to establish its case against Dr Wee beyond a reasonable doubt in relation to the charges that were brought against him. We also find that the Judge had erred in law in convicting Dr Wee of the Digital Penetration Offence. Accordingly, we affirm the Judge’s acquittal of Dr Wee on the Rape Charge, acquit him of the OM Charge and overturn his conviction on the Digital Penetration Offence.

Background facts The events leading to the OM Charge V’s version of events

We begin our narrative by setting out the parties’ respective versions of the events on 25 November 2015, which was the day on which Dr Wee allegedly outraged V’s modesty. V was a 23-year-old student at a local tertiary institution at the time of the alleged offences. Dr Wee was a 65-year-old general medical practitioner at that time and V’s regular doctor. According to V, on 25 November 2015, she experienced gastric discomfort and consulted Dr Wee in the late afternoon. Dr Wee spoke to her briefly in the consultation room before directing her to the examination room in his medical clinic. The examination room could only be accessed through the consultation room, and the two rooms were separated by a sliding door. The examination room had a bed for patients to lie on during an examination.

Dr Wee instructed V to unbuckle and unzip her jeans to enable him to check her pelvic area and she complied. He began by palpating V’s lower abdominal area and then pressed on the “joint area” near V’s groin and remarked that there was a lump. V claimed that Dr Wee proceeded to press on V’s vagina over her panties using the fingers of his right hand and said “okay, okay” while he was doing so. V replied “okay” because there was no pain. Dr Wee then allegedly slid his right hand under V’s panties and started stroking her vagina with his right fingers in an up and down motion. He then asked V to sit up, and as she did so, he continued stroking V’s vagina with his right fingers. After some time, V heard Dr Wee say “okay” before withdrawing his right hand. They both then returned to the consultation room.

V claimed that she thought Dr Wee’s actions were “weird” because this was the first time someone of the opposite gender had touched her at her vaginal area. She said she felt “uneasy” because Dr Wee was standing very close to her (GD at [19]). However, she said nothing because she assumed that these actions were all part of the medical examination.

Unknown to Dr Wee, V subsequently scheduled an appointment on 5 December 2015 at a polyclinic ostensibly to have the lump in her groin area checked. She asked to see a female doctor and was attended to by Dr Sheena K Gendeh Jekinder Singh (“Dr Sheena”). She told Dr Sheena that a lump was suspected near her groin. Dr Sheena checked and found that there was indeed a lump, at which point V felt assured that what Dr Wee had previously done to her was, after all, part of a legitimate medical examination. However, the logic behind this was not evident to us since Dr Wee had apparently observed the presence of the lump well before allegedly venturing to touch V in her vaginal area both over and under her panties. We are also unable to fathom how those actions could have been in any way connected with the lump, and we will elaborate on this later in this judgment. We digress to note that on 20 April 2018, the Prosecution obtained a copy of the report from the polyclinic as to what had transpired (“the Polyclinic Record”). This showed that V visited Dr Sheena complaining of “pain over the left groin area for 3 days”. There is nothing in the Polyclinic Record to suggest that V had visited the polyclinic in order to check on a lump that was already suspected as V maintained, or to verify what Dr Wee had said of the lump, or even to suggest that V had mentioned her earlier consultation with Dr Wee to Dr Sheena. The Prosecution did not disclose the Polyclinic Record to the Defence until 7 May 2018, by which time V had already completed giving evidence at the trial.

Dr Wee’s version of the events

Dr Wee denied that he had outraged V’s modesty during the consultation on 25 November 2015. He claimed that V complained of gastric pain and phlegm, and he first performed a routine check of V’s blood pressure, heart and lungs. He then directed V to the examination room and palpated her abdominal area, which was the standard abdominal examination he would have performed on all his patients in these circumstances. After the examination, he prescribed some medication for phlegm and gastritis and V left the consultation room. Dr Wee’s clinic notes did not record any observation of a lump found at V’s groin area.

The events leading to the Rape Charge V’s version of events

We turn to the events that led to the Rape Charge. We begin with V’s version of the events. On the morning of 30 December 2015, V felt an itch at her genital area and noticed that she was urinating frequently. She went to a polyclinic in the afternoon to see a doctor but found it was very crowded, as a result of which, she would have a long wait. She then scheduled an appointment with Dr Wee’s clinic for around 11.00pm on the same day. She had not seen Dr Wee since her last visit on 25 November 2015.

V was eventually attended to by Dr Wee at about 11.50pm and there were two...