Public Prosecutor v Balwant Singh s/o Jhanda Singh
| Jurisdiction | Singapore |
| Judge | Kow Keng Siong |
| Judgment Date | 12 May 2004 |
| Neutral Citation | [2004] SGDC 118 |
| Court | District Court (Singapore) |
| Published date | 27 May 2004 |
| Year | 2004 |
| Plaintiff Counsel | Ms Christina Koh (Deputy Public Prosecutor) |
| Defendant Counsel | Mr Peter Fernando (Leo Fernando) |
| Citation | [2004] SGDC 118 |
| 12 May 2004 |
Judgement reserved. |
District Judge Kow Keng Siong:
The charges & the appeal
1. This Judgement arises from an appeal against sentence.
2. The Accused – Mr Balwant Singh s/o Jhanda Singh (aged 65 years) – was convicted after a trial on two charges under section 377 of the Penal Code for having engaged in fellatio with one Satwant Kaur (aged 59 years) on two different occasions at the latter’s residence.
3. After considering the circumstances of the offences, I sentenced the Accused to a total of 2 years’ imprisonment.
4. As the Accused did not appeal against his conviction, this Decision will deal only with my reasons for the sentence imposed.
The facts
Background
5. Mdm Satwant is the Accused’s niece.[1] She suffered from schizophrenia and mild mental retardation.
6. At all material times, Mdm Satwant resided with her two sons (Balbeer Singh and Hera Singh) and her daughter-in-law (Prittapal Kaur).
7. In April 2002, Balbeer decided to install a close circuit television (CCTV) system in his flat after discovering that the Accused had visited his mother without giving prior notice.[2] Four CCTV cameras were installed in the flat, including one in Mdm Satwant’s bedroom and the living room.
The incident on 19 February 2003
8. On 19 February 2003, Balbeer smelt perfume coming from Mdm Satwant’s bedroom after returning from work. He became suspicious and questioned his mother whether anyone had visited her. When Mdm Satwant eventually replied that the Accused had visited, Balbeer played back the day’s CCTV time-lapsed recordings.[3]
9. These recordings (P7 & P9) revealed that the Accused had visited Mdm Satwant at about 11.06 am. Initially, they sat apart in the living room with the TV switched on. Later at about 11.40 am, the Accused masturbated himself and beckoned Mdm Satwant to go over to him.[4] At about 11.42 am, the Accused drew the living room’s curtains. He then stood directly in front of Mdm Satwant (who was then sitting on a sofa) and fiddled with the front part of his pants. Soon thereafter, the Accused was seen pressing Mdm Satwant’s face into his groin area with both his hands. They remained in this position for about three minutes.
10. The Accused was then seen sitting next to Mdm Satwant on the sofa and embracing her for a while. At about 11.52 am, the Accused stood up in front of Mdm Satwant (who was still sitting on the same sofa) with his pants and underwear pulled down, and pressed her face into his groin again for about 4 minutes. At all material times, Mdm Satwant was fully clothed. After three minutes later, the Accused left the flat.
11. It was not disputed during the trial that Mdm Satwant had performed fellatio on the Accused at the material time, and that they did not engage in any sexual intercourse either before or after the fellatio.
12. Balwant was devastated after watching the recordings. On 23 February 2003, he arranged for Hera to view the relevant footages. Hera was also upset by what he saw. On 24 February 2003, Balbeer lodged a police report (P11) and surrendered the recordings to the police for their investigations.[5]
The incident on 10 March 2003
13. On 10 March 2003, Prittapal did not go to work and was resting at home. At about 10.00 am, she noticed her mother-in-law answering a phone call. When queried, Mdm Satwant informed her daughter-in-law that the caller was the Accused. When the Accused called again soon thereafter, Prittapal told her mother-in-law to inform the Accused that no one was at home.[6]
14. A short while later, there was a knock on the door. Prittapal immediately locked herself in her own bedroom and phoned her husband, Hera, who in turned phoned Balbeer to inform what was happening. Both Hera and Balbeer immediately rushed back home after speaking to each other.[7]
15. Balbeer was the first to arrive home. When both Prittapal and he entered Mdm Satwant’s bedroom, they found the Accused standing with his pants down. Mdm Satwant, on the other hand, was sitting on her bed looking expressionless.[8]
16. The Accused followed Balbeer out to the living room. Soon thereafter, Hera returned to the flat.[9] He was angry upon seeing the Accused. Hera slapped the Accused when the latter smiled instead of replying what he was doing at the flat. Upon further questioning by Hera, the Accused admitted that he had ‘molested’ Mdm Satwant, and that this had been going on since ‘kampong days’ (which was quite sometime back).[10]
17. The events that transpired in Mdm Satwant’s flat at the material time were recorded on the CCTV system. The relevant footage (P8 & P10) showed that very soon after entering the flat at 11.23 am, the Accused played a VCD which he had brought along. It was not disputed at the trial that the VCD was pornographic. The recordings showed that the Accused was sitting directly in front of the TV, glued to the screen. Mdm Satwant, on the other hand, appeared to be disinterested in the VCD programme.
18. The recordings also showed that by about 11.29 am, the Accused and Mdm Satwant had entered the latter’s bedroom. The Accused was naked from the waist down while Mdm Satwant was fully clothed. The recordings further showed that at about 11.30 am, Mdm Satwant sat on her bed and the Accused was pressing her face into his groin. They were in this position for about three minutes. It was not disputed at the trial that Mdm Satwant was performing fellatio on the Accused at the material time.
19. The recordings further showed that at about 11.33 am, the Accused was apparently masturbating himself. Shortly thereafter, the footage showed Balbeer returning to the flat and the Accused leaving Mdm Satwant’s bedroom.
Acts of fellatio not intended as stimulants to natural sexual intercourse
20. It is clear from the evidence that at all material times on 19 February and 10 March 2003 –
a. Neither the Accused nor Mdm Satwant had the intention to engage in natural sexual intercourse, and
b. The two acts of fellatio were not intended as stimulants to, but were instead substitutes for, natural sexual intercourse.[11]
Issue of consent
21. During the trial, the Accused claimed that the fellatio in question were acts of intimacy between two lovers.[12] In the mitigation, Mr Fernando (the Accused’s counsel) submitted that Mdm Satwant was not forced to perform oral sex on the Accused, and that she had in fact consented to the acts.[13]
22. I have no hesitation in rejecting such contentions. Having seen Mdm Satwant testify[14] and heard the evidence of her family members and her psychiatrist (Dr Kenneth Koh),[15] it is very clear to me that Mdm Satwant did not have the emotional or psychological capacity to establish a meaningful and loving relationship with the Accused, much less be able to appreciate that oral sex is a biologically unnatural form of carnal connection. Indeed, I noted that the evidence of Mdm Satwant’s immediate family that she was child-like and required care as well as constant anti-psychotic medication[16] was never challenged by the Defence.
23. Mdm Satwant had testified that (a) she did not like the Accused,[17] (b) it was the Accused who put his penis into her mouth, and (c) she ‘hated’ performing fellatio on the Accused.[18] This evidence was supported by the testimonies of Prittapal[19] and the police officer who first attended to her on 10 March 2003,[20] as well as that of Dr Koh.[21] From their observations, Mdm Salwant clearly did not enjoy performing fellatio on the Accused.
24. I was of course mindful that Mdm Satwant did not appear to have resisted performing fellatio on the Accused in the CCTV recordings. This, in my view, did not in anyway diminish her evidence that she did not freely consent to performing fellatio on the Accused at the material times. Firstly, as Dr Koh had observed, Mdm Satwant’s IQ level was only 60.[22] This, according to Dr Koh, made her more compliant and susceptible to coercion, such that she could be manipulated into doing acts that she would otherwise be uncomfortable in doing.[23] Secondly, there was also the evidence that the Accused had admitted to ‘molesting’ Mdm Satwant when he was confronted over the second incident of fellatio on 10 March 2003.
25. The evidence clearly showed that Mdm Satwant did not freely participate in the acts of fellatio. In the present case, I found that Mdm Satwant had merely submitted to the Accused’s requests for oral sex to satisfy his lust. Mere submission cannot be consent: PP v Victor Rajoo
Sentencing considerations
General considerations
26. A person convicted of an offence under section 377 may be sentenced to imprisonment for life, or for a term which may extend to 10 years, and also be liable to a fine.
27. It is pertinent to note that the punishment in section 377 is intended to cover a wide spectrum of carnal connection against the order of nature, including bestiality. It has been said that of the three forms of unnatural carnal intercourse involving humans, anal intercourse is the most serious, followed by causing a victim to perform fellatio, and at the bottom of the scale, performing fellatio on the victim: Adam Bin Darsin v PP
Gravity of the Accused’s offences
28. In deciding on the appropriate sentence, I noted that there were several aggravating factors in the present case.
29. Vulnerable witness – Firstly, the Accused had twice taken...
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