PP v Yue Roger Jr

• Judge: Aedit Abdullah J
• Judgment Date: 21 May 2018
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 75 of 2017
• Date: 21 May 2018

Public Prosecutor

and

Yue Roger Jr

[2018] SGHC 125

Aedit Abdullah J

Criminal Case No 75 of 2017

High Court

Criminal Law — Offences — Rape — Delayed disclosure of offences by complainant — Whether late disclosure undermined complainant's credibility

Criminal Procedure and Sentencing — Sentencing — Sexual offences — Sentencing principles for rape and sexual penetration of minor — Appropriate sentence to be imposed on accused — Sections 375(2) and 376A(3) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Statements — Voluntariness — Accused challenging voluntariness of statement due to alleged threat and oppression — Whether statement voluntary — Section 258(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Evidence — Adverse inference — Prosecution not adducing certain documents pertaining to victim — Whether adverse inference should be drawn — Section 116 illus (g) Evidence Act (Cap 97, 1997 Rev Ed)

Held, convicting and sentencing the accused to 25 years' imprisonment:

(1) There was no general rule requiring victims of sexual offences to report the offences immediately or in a timely fashion. Instead, the explanation for any such delay in reporting was to be considered and assessed by the court on a case-by-case basis. While the average adult could be expected to react in a particular way – for example, to resist, report or complain about an assault as soon as possible – a child or juvenile could not be expected to always react similarly. In the present case, the fact that the victim did not complain in a timely manner and remained in contact with the accused over the extended duration of the abuse did not deprive her of credibility. The victim's explanation for her initial non-disclosure – that she feared that her place on the rope skipping team would be jeopardised and that she felt ashamed – could be accepted in this case: at [30] to [33].

(2) Similarly, the fact that the victim was not driven into despair or helplessness was not by itself a ground for disbelieving the victim's evidence. People reacted in different ways to sexual abuse: at [34].

(3) The passage of time since the occurrence of the offences provided sufficient explanation for the non-recovery of certain items related to the offences. The furniture at the accused's flat which the victim claimed that the sexual offences took place on could have been moved or discarded, and items, including the vibrator(s) and skipping rope handle(s) allegedly used to penetrate the victim, could have been lost. Given the passage of time, it was unlikely that anything useful forensically would have been obtained. The absence of any photographs or other media files was for the same reasons also not fatal to the Prosecution's case: at [40].

(4) That some of the alleged sexual assaults had taken place at locations that were potentially within the sight of others was not on its own a reason to disbelieve the victim's testimony. Sexual offences occurred at various places including at public locations: at [42].

(5) As the Defence did not raise evidence of any motive on the part of the victim to make false allegations against the accused, the burden on the Prosecution to disprove such motive did not arise. However, the lack of motive was not sufficient on its own to render the victim's testimony unusually convincing and correspondingly sufficient to prove the case against the accused beyond reasonable doubt: at [48] to [50].

(6) On the evidence, it was shown beyond a reasonable doubt that no threat was made to the accused which affected the voluntariness of the Statement. In addition, while the circumstances and duration of the accused's detention in the cell at the temporary holding area created an uncomfortable environment, on the evidence, such discomfort did not lead to oppression or a sapping of the will of the accused. Further, the fact that the accused had only raised allegations of threat and oppression close to or at trial despite earlier opportunities to raise them, suggested that they were mere afterthoughts of the accused who was seeking to avoid the consequences of the admissions made in the Statement: at [57], [59] and [61].

(7) The weight given to a statement of the accused could be reduced if there was some evidence to show that the reliability of what was recounted was at risk. There was no such evidence in this case. What was significant was that the accused had, in the Statement, accepted that he had committed various acts which corroborated material aspects of the victim's testimony. Given that the accused was describing a whole series of events, the lack of full details on specific incidents was understandable: at [70] to [72].

(8) The admissions to Dr Raja by the accused, as recorded in Dr Raja's psychiatric report and case notes, also corroborated the victim's testimony. As with the Statement, it was sufficient that the accused had recounted and admitted to Dr Raja that he had committed key aspects of the charges brought against him: at [77].

(9) The court could only draw an adverse inference against the Prosecution for not calling a witness where three conditions were met: (a) the witness not offered was a material one; (b) the Prosecution was withholding evidence which it possessed and which was available; and (c) this was done with an ulterior motive to hinder or hamper the Defence. These conditions were equally applicable in determining if an adverse inference should be drawn against the Prosecution under s 116 illus (g) of the Evidence Act for the non-adducing of documentary evidence. In this case, no adverse inference was to be drawn against the Prosecution from its non-disclosure of the victim's psychiatric report or the victim's document containing an account of the events. These documents were not material and the non-disclosure was not taken with an ulterior motive: at [84] to [86].

(10) Based on the offence-specific and offender-specific mitigating and aggravating factors, a sentence of 14 years' imprisonment for each charge of rape under s 375(1)(b) read with s 375(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) was appropriate. The offence-specific aggravating factors in the present case were abuse of position, premeditation, rape of a vulnerable victim and non-use of condom, which brought the case within band 2 of the sentencing framework for rape offences. The only offender-specific mitigating factors were the advanced age of the accused and the absence of any prior antecedents. The mitigating value of these factors was low: at [103], [108] and [109].

(11) Taking into account all the circumstances of the case, the appropriate sentence for each of the sexual penetration charges under s 376A(3) of the Penal Code was 11 years' imprisonment. The case law did not require a more lenient treatment under s 376A(3) as compared to s 376 of the Penal Code, and if anything indicated that a similar approach with regard to the sentencing bands, with some modification, would apply to offences under s 376A(3) as that under s 376. However, the sentencing bands for s 376A(3) had to take into account that, unlike s 376(4)(b), there was no minimum imprisonment term and no mandatory caning in s 376A(3). In this regard, the sentencing bands for s 376A(3) may vary slightly from the sentencing bands for s 376: at [116], [117] and [119].

(12) While a court should generally avoid imposing a sentence that effectively operated as a life sentence, this was not an absolute rule and had to be measured against the criminal conduct of the accused, and the presence or absence of other aggravating and mitigating factors. Where the offences committed were heinous, as they were in this case, it could be that a long sentence would need to be imposed even on a relatively older accused, which could possibly operate to leave him in prison for the remainder of his expected life: at [122] and [123].

(13) Taking into account the principles of proportionality and totality, it was sufficient for the sentences for one charge of statutory rape and one charge of sexual penetration to run consecutively, with the rest of the sentences to run concurrently, resulting in a global sentence of 25 years' imprisonment: at [124] and [126].

Case(s) referred to

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

Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619; [1999] 1 SLR 25 (refd)

Chua Keem Long v PP [1996] 1 SLR(R) 239; [1996] 1 SLR 510 (refd)

DT v PP [2001] 2 SLR(R) 583; [2001] 3 SLR 587 (refd)

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

Goh Han Heng v PP [2003] 4 SLR(R) 374; [2003] 4 SLR 374 (folld)

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

Khoo Kwoon Hain v PP [1995] 2 SLR(R) 591; [1995] 2 SLR 767 (folld)

Khua Kian Keong v PP [2003] 4 SLR(R) 526; [2003] 4 SLR 526 (refd)

Lim Thian Lai v PP [2006] 1 SLR(R) 319; [2006] 1 SLR 319 (folld)

Loo See Mei v PP [2004] 2 SLR(R) 27; [2004] 2 SLR 27 (folld)

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

Pram Nair v PP [2017] 2 SLR 1015 (refd)

PP v BAB [2017] 1 SLR 292 (refd)

PP v Mazlan bin Maidun [1992] 3 SLR(R) 968; [1993] 1 SLR 512 (folld)

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

PP v UI [2008] 4 SLR(R) 500; [2008] 4 SLR 500 (refd)

Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 (refd)

Tang Kin Seng v PP [1996] 3 SLR(R) 444; [1997] 1 SLR 46 (refd)

Tan Pin Seng v PP [1997] 3 SLR(R) 494; [1998] 1 SLR 418 (refd)

Tey Tsun Hang v PP [2014] 2 SLR 1189 (refd)

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

Yeo See How v PP [1996] 2 SLR(R) 277; [1997] 2 SLR 390 (refd)

Facts

The accused was charged with a total of 48 offences, of which five charges of sexual penetration of a minor under 14 years of age and two charges of statutory rape were proceeded with at trial.

It was alleged that the accused had carried out a series of sexual offences against the complainant (“the victim”) from 2008 to 2010 while he was her rope skipping coach. This...