Public Prosecutor v GEA

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 12 January 2022
• Neutral Citation: [2022] SGDC 2
• Citation: [2022] SGDC 2
• Court: District Court (Singapore)
• Published date: 27 January 2022
• Docket Number: District Arrest Case No. 935929 of 2017 & Ors, Magistrate's Appeal No. 9005/2022/01 & 9005/2022/02
• Plaintiff Counsel: Nicholas Lai and Chee Ee Ling (Attorney-General's Chambers)
• Defendant Counsel: Jayakumar Naidu and Adrienne Grace Milton
• Subject Matter: Criminal Law,Offences,Sexual offences,Criminal Procedure and Sentencing,Statements,Admissibility,Impeachment,Rebuttal witness,Disclosure,Sentencing,Ill-Health,Advanced age,Imprisonment in lieu of caning
• Hearing Date: 11 May 2021,21 October 2021,25 May 2021,06 August 2021,07 July 2021,11 August 2021,13 July 2021,26 July 2021,16 July 2021,24 February 2021,09 July 2021,27 May 2021,25 February 2021,18 May 2021,15 July 2021,27 October 2021,13 August 2021,27 July 2021,12 July 2021,12 August 2021,12 January 2022,08 December 2021,16 November 2021,14 July 2021,08 July 2021,20 May 2021,16 August 2021,17 May 2021,05 August 2021,11 November 2021,28 October 2021,10 May 2021,06 July 2021,17 August 2021,24 May 2021,18 August 2021,14 October 2021,10 August 2021,28 July 2021

District Judge Shawn Ho: Introduction

The Accused claimed trial to six charges under the Penal Code (Cap 224, 2008 Rev Ed) in relation to his maternal granddaughter (“Victim”): 5 charges of outrage of modesty under s 354(1) punishable under s 354(2) of the Penal Code, and 1 charge of sexual assault by penetration under s 376(1)(a) punishable under s 376(4)(b) of the Penal Code.

The Victim was 6 to 8 years old.

The Prosecution applied successfully to admit both of the Victim’s statements as substantive evidence under s 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed). The Victim’s evidence, as contained in both her statements,¹ was consistent with and reinforced by the Accused’s confessions,² which were in turn undergirded by the testimony of an eye-witness (Victim’s male cousin).

All things considered, the Prosecution proved its case beyond a reasonable doubt against the Accused. He was convicted and sentenced to 14 years’ imprisonment and 9 months’ imprisonment in lieu of caning and a fine of $9400 i/d 42 days.

The Accused has appealed against conviction and sentence, and the sentence has been stayed pending appeal. I set out my reasons.

Charges and legal context

The Accused claimed trial to 6 charges under the Penal Code:

The Accused pleaded guilty to two charges under the Films Act (Cap. 107, 1998 Rev Ed) – one charge under s 30(2)(a)³ and another charge under s 21(1)(a) punishable under s 21(1)(i).⁴

The fact that the Prosecution must prove its case beyond a reasonable doubt has been described as the proverbial golden thread which runs throughout the web of our criminal law: Winston Lee Siew Boon v Public Prosecutor [2015] 4 SLR 1184 at [61] to [76]. The Court must always bear in mind that the starting point of the analysis of any criminal case is not neutral – an accused person is presumed innocent and this presumption is not displaced until the Prosecution has discharged its burden of proof: Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45 at [61].

Prosecution’s case

The Accused had voluntarily given his Contemporaneous Statement⁵ and Cautioned Statement⁶ recorded on 26 September 2017 at 8.06 p.m..

The Victim had also voluntarily given her two statements to the police.⁷ The Victim’s evidence, as contained in both her statements, was undergirded by the testimony of an eye-witness, viz. her male cousin.

The Prosecution sought to impeach the Victim’s credit on portions of her two statements and her court testimony under s 157(c) of the Evidence Act,⁸ and to admit both of these statements as substantive evidence under s 147(3) of the Evidence Act.⁹

The Prosecution also sought to impeach the Accused’s wife’s credit on portions of her statement to the police and her testimony in court under s 157(c) of the Evidence Act.

The Victim’s version in court (i.e. she was at KK Hospital due to head lice and itchy scalp) was inconsistent with both the documentary evidence (e.g. KK Hospital’s medical documents) as well as the various doctors’ testimony in court that the Victim had experienced pain while urinating.

The Victim told at least 10 people that the Accused had sexually assaulted her. These 10 people included police officers (Station Inspector Ananth Kumar Alagiri Balasubramaniam, Insp Mohamed Salim bin Maidin, Insp Mohamad Noor, ASP Alvin Chua and ASP Jagathiswari), a child protection officer (Zhuo Xiaojun), a staff nurse (Lai Yuan Kei) and doctors (Dr Lee Mei Sung, Dr Seet Meei Jiun, and Dr Mahesh Sangrithi).

Defence’s case

In 2015, the Victim was not at home during the day as she attended the Just Kids Learning Centre from about 8a.m. until about 6p.m..¹⁰

On 21 September 2017, the Victim’s mother’s employment was terminated, and she took care of the Victim.¹¹ Since 21, 22 or 23 September 2017¹², the Victim’s mother and her two daughters did not return to the Accused’s home. Hence, the Victim was not at the Accused’s home on 24 September 2017.¹³

Many people were staying at the Accused’s home in 2015 and 2017, including the Accused, his wife, 4 grandchildren (including the Victim), and the Victim’s mother.¹⁴ The Accused’s wife was at home as she is a housewife.¹⁵

The Accused was working full-time as a chauffeur.¹⁶ On weekdays, he would leave home at 7a.m. and sometimes return at about 9p.m. to midnight; he worked overtime every weekday. He did not return home during office hours. He also worked almost every weekend from about 6a.m. to 10p.m. or 11p.m. and some public holidays.

In the circumstances, there was no opportunity for the Accused to have committed the offences against the Victim in the home.¹⁷ The Accused had never watched television with the Victim.¹⁸ The Victim and her sister were not allowed to enter the master bedroom.¹⁹

The Accused did not play catching with the Victim and her sister as he has a torn knee.²⁰ The Victim wore diapers.²¹

Ancillary hearings

Challenging the Statements’ Voluntariness. The Accused challenged the voluntariness of his Contemporaneous Statement and Cautioned Statement. Two ancillary hearings were held.

The Law for Ancillary Hearings

Where voluntariness is challenged, the burden is on the Prosecution to prove beyond a reasonable doubt that the statements were made voluntarily and not on the Defence to prove on a balance of probabilities that the statements were not made voluntarily: Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) at [177], and Azman bin Mohamed Sanwan v Public Prosecutor [2012] 2 SLR 733 at [19]-[27] (see also Ho Hock Lai, On the Obtaining and Admissibility of Incriminating Statements, SJLS [2016] 249 at 253-255 and 260-261).

It is only necessary for the Prosecution to remove a reasonable doubt of the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of fear: Panya Martmontree v Public Prosecutor [1995] 2 SLR(R) 806 at [32] (see also Chin Tet Yung, Criminal Procedure Code 2010: Confessions and Statements by Accused Persons Revisited, (2012) 24 SAcLJ 60 at [16]-[33] and [52]-[53]).

The voluntariness test is applied in a manner which is partly objective and partly subjective: Sulaiman bin Jumari v Public Prosecutor [2021] 1 SLR 557 at [39]. The objective limb is satisfied if there is a threat, inducement or promise. The subjective limb is satisfied when the threat, inducement or promise operates on the offender’s mind through hope of escape or fear of punishment connected with the charge: Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 at [53] (see also Dorcas Quek, The Concept of Voluntariness in the Law of Confessions, (2005) 17 SAcLJ 819 at [35]).

The litmus test for oppression is whether the investigation was, by its nature, duration or other attendant circumstances, such as to affect the accused person’s mind and will such that he speaks when he otherwise would have remained silent: Tey Tsun Hang v Public Prosecutor [2014] 2 SLR 1189 at [113]. The same standard applies even where the allegation is not that the accused person would have remained silent, but that he would have given a different version of the statement, had he not been oppressed: Public Prosecutor v Ridhaudin Ridhwan bin Bakri [2019] SGHC 105 at [52].

The Court of Appeal in Chai Chien Wei Kelvin summarised the test for oppression as follows (at [56]-[57]): “(o)ppression is a circumstance which may render a confession involuntary and thus inadmissible, and whether the accused has been subjected to oppression is a question of fact … In other words, a statement would not be extracted by oppression unless the accused was in such a state that his will was ‘sapped’ and he could not resist making a statement which he would otherwise not have made”.

In this regard, Explanation 1 to s 258 of the CPC states that:

If a statement is obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, such acts will amount to a threat, an inducement or a promise, as the case may be, which will render the statement inadmissible. [emphasis added]

For completeness, there is no necessity for interrogators to remove all discomfort. Some discomfort has to be expected – the issue is whether such discomfort is of such a great extent that it causes the making of an involuntary statement: Court of Appeal in Yeo See How v Public Prosecutor [1996] 2 SLR(R) 277 at [40].

Even if an accused person’s statement is voluntary, the court can exclude it if its prejudicial value outweighs its probative value, for example, where there is lack of language interpretation or procedural flaws in the recording which cast serious doubts on the accuracy of the statement recorded: Kadar at [53]-[56] and Sulaiman bin Jumari at [54].

1st Ancillary hearing (Accused) Allegations against the police officers

The Defence levelled the following allegations against Inspector Mohamad Noor Aboe Bakar (who recorded the Contemporaneous Statement),²² Superintendent Burhanudeen²³ and ASP Alvin Chua²⁴ (see generally, Public Prosecutor v Tan Lye Heng [2017] 5 SLR 564 at [52]): Officers raised their voice at the Accused in Malay, called him “stupid” and threatened to put his family in trouble.²⁵ An officer told the Accused in Malay that if he admits to the offences, they are willing to help him.²⁶ The Accused was asked to sign a blank piece of paper at the interview room.²⁷ After several days, he was asked to initial some amendments.²⁸

Police officers’ testimony

After the ancillary hearing, I found that the Prosecution...