Public Prosecutor v BNO

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 09 November 2018
• Neutral Citation: [2018] SGHC 243
• Citation: [2018] SGHC 243
• Court: High Court (Singapore)
• Published date: 17 August 2019
• Docket Number: Criminal Case No 68 of 2017
• Plaintiff Counsel: Christina Koh, Raja Mohan and Nicholas Lai (Attorney-General's Chambers)
• Defendant Counsel: Selva K Naidu (Liberty Law Practice LLP)
• Subject Matter: Criminal Law,Offences,Outrage of modesty,Fellatio,Criminal Procedure and Sentencing,Sentencing
• Hearing Date: 02 April 2018,02 February 2018,01 February 2018,31 August 2018,04 October 2017,06 February 2018,18 July 2018,06 October 2017,05 October 2017,15 March 2018,09 October 2017,05 February 2018,06 August 2018,07 February 2018,03 October 2017,30 April 2018

See Kee Oon J: Introduction

BNO (“the Accused”), claimed trial to the following three charges (“the Charges”):

You … are charged that

[1st Charge] on the 31st day of October 2015, at or about 11.15 p.m., at … Singapore, did use criminal force on [the victim], a male under 14 years of age, intending to outrage his modesty, to wit, by touching the said [Victim]’s penis, and you have thereby committed an offence punishable under Section 354(2) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

[2nd Charge] on the 31st day of October 2015, at or about 11.15 p.m., at … Singapore, did cause [the Victim], a male under 14 years of age, to penetrate, with his penis, your mouth, without his consent, and you have thereby committed an offence under Section 376(1)(b), and punishable under Section 376(4)(b) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

[3rd Charge] on a second occasion on the 31st day of October 2015, at or about 11.15 p.m., at… Singapore, did cause [the Victim], a male under 14 years of age, to penetrate, with his penis, your mouth, without his consent, and you have thereby committed an offence under Section 376(1)(b), and punishable under Section 376(4)(b) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

The Victim was a nine-year-old boy. He was the schoolmate of the Accused’s youngest son (“E”) at the material time.¹ The Prosecution’s case was that the Accused had outraged the modesty of the Victim by touching the Victim’s penis before causing the Victim’s penis to penetrate the Accused’s mouth, without the Victim’s consent, on two separate occasions on the night in question. On the first occasion, the Accused caused the Victim’s penis to penetrate his mouth two times. On the second, the Accused caused the Victim’s penis to penetrate his mouth once. Both occasions took place in the bedroom of the Accused’s youngest son during a sleepover.

The Prosecution’s case

The Prosecution tendered evidence from a total of 18 witnesses, with the key witness being the Victim. The Prosecution sought to corroborate his evidence with that of his parents, his teacher (“JR”) and his counsellor (“CF”) from his school, a senior consultant forensic scientist from the Health Sciences Authority (“HSA”) (Peter Douglas Wilson) and an Emeritus Consultant from the Department of Child and Adolescent Psychiatry of the Child Guidance Clinic of the Institute of Mental Health (Dr Cai Yiming).

The Victim’s evidence The Victim’s acquaintance with E’s family

The Victim and E were classmates from August 2014 to June 2015. According to the Victim, they were “really good friends” and they remained as friends even though they went to different classes after June 2015. The Victim first met the Accused either in school or at the Accused’s residence, and he found the Accused to be “a nice, funny, trustworthy person”.² The Victim first met the Accused’s wife (“AW”) when he was either in kindergarten or in first grade. AW worked in the cafeteria at the Victim’s school. The Victim found AW to be “nice”.³

Events prior to 31 October 2015

The Victim had been to the Accused’s residence for playdates with E about four or five times, including the last occasion on 31 October 2015. Three of these occasions were sleepovers, the first of which took place in May and the other two in October 2015,⁴ and one was an after-school playdate on 30 October 2015.⁵ He thought that the playdate on 30 October 2015 was “enjoyable and fun”, and he “really enjoyed” the sleepovers at the Accused’s residence “because [E would invite] some of [their] other friends and also [the Accused] would play with [them] and [they] played with Nerf guns”.⁶

During the first sleepover, the Victim was invited to celebrate E’s birthday and he slept in the living room of the Accused’s house with E and his friends. The second sleepover was sometime in early October 2015. E had also invited two other friends, BE and RF, for this sleepover. After dinner, the Accused told the Victim to take a shower. The Victim felt surprised as the Accused went into the bathroom while he was naked in the shower and said something along the lines of “[h]ere’s the soap”. The Accused also told him “not to wear underwear” before going to sleep “as it [would let his] body breathe” either when he was taking the shower or just before.⁷ The Victim did as he was told. Subsequently, after playing and watching television, the Accused told E, BE, RF and the Victim that he had a scary story to tell them, and told them to go to the upper bunk of the bunk bed in E’s older brother’s (“R”) room. After they climbed up, the Accused switched off the lights, closed the door and also went up to the upper bunk. He sat cross-legged and told the Victim to sit on his lap while he told the scary story.⁸ Thereafter, all of them played the word game known as Mad Libs.⁹ The Victim informed his father (“B’) after the second sleepover that the Accused got him to sit on his lap. B told him right away that it was “not correct” for someone to ask the Victim to sit on his lap. B gave a similar account when he testified.¹⁰

Events on 31 October 2015

The Victim’s evidence was that he had gone to the Accused’s residence, in Singapore, for a trick-or-treat party followed by a sleepover on 31 October 2015, Halloween night, at the invitation of E’s parents. Two other friends of E and friends of E’s brothers were also invited to the Accused’s residence for the party. Among them, only the Victim and R’s two friends stayed for the sleepover after the Halloween party. The Victim arrived at the Accused’s residence at about 3.00pm that day and wore an Obi-wan Kenobi costume during the party. The Accused was dressed as a zombie pirate.¹¹

After taking part in trick-or-treating around the neighbourhood, the Victim returned to the Accused’s residence at about 9.00pm. E’s two other friends left the Accused’s residence after the trick-or-treating.¹² From 9.00pm to about 10.30pm, E and the Victim counted the number of candies they had collected from trick-or-treating and traded them, and played a game of Mad Libs with the Accused in E’s room that lasted about 5 to 10 minutes.¹³ E’s room was on the third floor of the residence. Before going to bed, the Victim changed into his pyjamas, which consisted of a pair of shorts and a t-shirt, but did not wear his underwear¹⁴ because he recalled that the Accused had told him during the second sleepover that he should not do so in order to let his body breathe. The Victim did what he was told as he assumed that it was a habit in the Accused’s family not to wear underwear.¹⁵ The Accused then asked the Victim whether he was a light or heavy sleeper. The Victim replied that for the first two hours after he fell asleep, he could be a deep sleeper, but he could wake up anytime nearer to the morning.

At about 10.30pm, the Accused told E and the Victim to go to bed. The Victim slept on the upper bunk of E’s bunk bed (“the bunk bed”) while E slept on the lower deck. The bunk bed was positioned against the wall of the room. The Accused then left the room, leaving the door to E’s room slightly ajar.¹⁶ The Victim talked to E for a short while before E stopped responding. The Victim inferred that E was tired and wanted to sleep.¹⁷ E fell asleep soon. As the room felt warm, the Victim was unable to fall asleep. He called E’s name three times but there was no response.¹⁸

At or about 11.15pm on the same day, the Victim saw a dark figure entering the bedroom. The Victim estimated the time to be around 11.15pm because he had checked his watch approximately 10 or 15 minutes before and he saw that it was 11.00pm or 11.05pm.¹⁹ He saw that the figure was wearing a pair of spectacles and had short hair resembling the Accused. The light from the hallway allowed him to see that it was indeed the Accused when the door opened wider. The Accused entered the room and then closed the door, leaving it ajar with light coming in from the hallway.²⁰ The Victim stated in his Conditioned Statement (“CS”) that he was then lying on the bed with his back facing the ceiling.²¹ He clarified when testifying in court that he was lying on the bed with his head near the ladder. He was lying sideways²² with his chest facing the wall, but with his head facing up and tilted slightly to the left and his face aligned with the ladder. His left shoulder blade and his rib cage were facing the ceiling.²³ His body was closer to the wall than to the outer edge of the bed.²⁴

The Victim feigned sleep out of respect for the Accused’s earlier instruction for him to sleep. Nevertheless, he opened his eyes a little to see what was going on.²⁵ The Accused then stepped onto the lower deck of the bunk bed on which E was sleeping and the Victim heard a very soft “crack” sound.²⁶ The Accused was standing towards the end of the bed away from the ladder.²⁷ The Victim saw his face above the railing of the upper bunk and observed him to be checking on whether E and the Victim were asleep by looking up and down.²⁸ According to the Victim, the mattress of the upper bunk reached approximately the Accused’s upper chest.²⁹ The Accused dragged the Victim by his kneecaps, causing his whole body to move closer to the railing of the bunk bed.³⁰ The Accused then spread the Victim’s legs. He proceeded to touch the Victim’s penis from outside his shorts by moving one finger around his penis in a circular motion for a few seconds. The Victim tried to move closer to the wall hoping that the Accused would stop but he was not able to do so because the Accused held his kneecap “pretty tightly”.³¹

Thereafter, the Accused pulled the Victim’s shorts down to his thighs and exposed the Victim’s penis. The Accused then touched the Victim’s exposed penis with his finger (subject of the first charge). The Victim testified that he was “shocked” and felt “frightened of what he [was] going to do next”.³² The Accused subsequently left E’s room and...