Public Prosecutor v GEK

• Jurisdiction: Singapore
• Judge: Sharmila Sripathy-Shanaz
• Judgment Date: 30 May 2022
• Neutral Citation: [2022] SGMC 25
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Arrest Case No. 907069 of 2019, Magistrate’s Appeal No. 9039-2022-01
• Published date: 04 June 2022
• Year: 2022
• Hearing Date: 06 October 2020,08 October 2020,07 December 2020,04 March 2021,08 March 2021,24 May 2021,28 May 2021,09 July 2021,19 July 2021,26 July 2021,21 October 2021,30 November 2021,16 February 2022
• Plaintiff Counsel: Deborah Lee and Phoebe Tan (Attorney-General's Chambers)
• Defendant Counsel: Ng Kwong Loong (Leagle Sense LLC) (till 3 March 2022), Mohammad Shafiq (Abdul Rahman Law Corporation) (wef 3 March 2022)
• Subject Matter: Criminal Law,Offences,Outrage of Modesty,Evidence,Standard of Proof,'Unusually Convincing' Standard,Corroboration,'Lucas' Lies,Statements,Admissibility,Ancillary Hearing,Law,Mixed Statements,Weight,Disclosure,Common Law Principles,Recall of Witnesses,Criminal Procedure and Sentencing,Sentencing,Sentencing Framework for Outrage of Modesty,General Principles,Deterrent Sentencing,Caning,Compensation Orders
• Citation: [2022] SGMC 25

District Judge Sharmila Sripathy-Shanaz: Introduction

The Accused contested a charge under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) for outraging the modesty of the Complainant by touching her vagina over her underwear and exposing her vagina by pulling her underwear aside, during a massage on the afternoon of 27 November 2018.

At the close of the trial, having heard the evidence and considered the parties’ submissions, I convicted the Accused and sentenced him to 12 months’ imprisonment and 3 strokes of the cane.

The Accused, being dissatisfied, has filed an appeal against his conviction and sentence. He remains on bail pending the hearing of the appeal. I provide an outline of the evidence led at trial before setting out the grounds of my decision.

The Prosecution’s Case

In presenting its case, the Prosecution called eight witnesses. As an order under s 7(3) of the State Courts Act 1970 (2007 Rev Ed) is in force to protect the identity of the Complainant, the names of several material witnesses have been replaced with an alphabetic mnemonic in these grounds: PW2 – the Complainant’s friend; “Ms B” PW3 – the Complainant’s friend; “Ms H” PW4 – the Complainant’s friend; “Ms V” PW5 – the Complainant’s partner; “Ms N” PW7 – the Complainant’s and Accused’s colleague; “Ms G”

The Complainant’s Evidence

The Complainant was the main witness for the Prosecution. The following is a summary of her evidence.

The parties relationship

The Complainant, a performer, became acquainted with the Accused in 2015 when he worked part-time at the same company for a period of time. They remained in infrequent contact over social media until sometime in October 2018 when the Complainant learnt that the Accused had his own a chiropractic clinic (“the Clinic”) and decided to engage his services as she was dissatisfied with the free physiotherapy sessions provided by her company and wanted to try a chiropractic treatment with someone she knew so that she would feel safe.¹

The first session on 6 October 2018

The Complainant’s first session with the Accused was at his Clinic in Orchard Road on 6 October 2018. After examining her, the Accused told the Complainant that he would perform a deep tissue massage as her ankles were not aligned. He cautioned her that it would be painful as he would be pressing her muscles. The Complainant complied with the Accused’s instructions, removed her t-shirt and lay prone on the massage bed dressed in her sports bra and leggings. She recalled the Accused pressing her ‘glutes’ and thighs before massaging her upper and lower back, shoulders and arms. Describing the experience, the Complainant testified:²

[S]o, uh, he will press down and it---I really felt the pain (sic) I had to jerk and sometimes we needed to stop and slow down and then he will press again, and then I will jerk and flinch, because like I really cannot take it. So we will slow down again. Yah. So actually I---the deep tissue massage really took quite a while because we did like some pauses in between.

(emphasis added)

After the deep tissue massage, the Accused performed bone realignment therapy on the Complainant which involved ‘cracking’ various parts of her body.³ The Complainant testified that though it was her “first experience with bone realignment and deep tissue massage”, the Accused was “very professional” and his service was “good”.⁴

Several days after the session, the Accused contacted the Complainant and enquired if she would be interested in serving as an ambassador for the Clinic. The parties met in person on 10 November 2018 to discuss the proposal which entailed the Complainant posting videos (on social media) of the Accused performing bone realignment therapy on her, in return for a 10% fee and free chiropractic sessions for every successful referral.⁵ The proposal did not require the Complainant to post videos of her receiving a deep tissue massage because it was painful and the Accused was concerned that prospective clients would be “scared when they see the screaming.”⁶

The Complainant agreed to the offer as she found the Accused’s service “quite good”.⁷ The parties arranged to meet at the Clinic on 27 November 2018 for the Accused to record a trial video of bone realignment therapy being performed on the Complainant. Several days prior to the meeting however, the Accused sought to move the location of the recording to the Complainant’s apartment (“the Apartment”) as he was encountering difficulties with the lease of the Clinic. Despite her initial hesitation, the Complainant acceded to the Accused’s request as she “trusted him” and was re-assured that his colleague, Mr A, whom she was acquainted with, would also be present. Nonetheless, the Complainant informed the Accused that the trial recording would have to be performed in the living room as her bedroom was too small.⁸

The incident on 27 November 2018

After a slight delay owing to the Complainant having overslept, the Accused and Mr A arrived at the Apartment at about 3.00 p.m. on 27 November 2018. The Complainant’s housemate was present at the material time but remained in his room.⁹ The Accused set-up a portable massage bed in the living room and began performing bone realignment therapy on the Complainant while Mr A took several photographs and videos of the service rendered.¹⁰

After completing the bone realignment therapy on the Complainant, the Accused told Mr A to stop recording as he already had a client for the deep tissue massage segment of the video. Mr A complied. The Accused then continued to massage the Complainant as she lay prone on the massage bed in the living room. The Complainant testified that she was confused when she learnt that the Accused was going to perform a deep tissue massage on her as she had not expected him to do so:¹¹

[D]anial, uh, continued to massage---uh, he asked me to lie down on my belly and he continued to massage my glutes and he said that he will perform the deep tissue massage. Uh, I was confused because we only agreed on the bone alignment, but because, um, I trusted that he is the professional, so I thought that the deep tissue and the bone alignment should go together. So I let him perform the deep tissue massage first on my glutes area. I also did---was not feeling any pain at that day … [we had] agreed to meet up because of the bone alignment. (emphasis added)

As the Accused massaged the Complainant’s ‘glutes’, he told her that there would be friction and asked for lotion as he had forgotten to bring his. The Complainant told him that she had lotion in her bedroom and proceeded to retrieve the same. The Accused followed her into the room while Mr A remained in the living room.¹² This surprised the Complainant who explained, “we’re not close friend (sic) and considering that he’s a male, to go into my bedroom, I felt scared.” Despite her initial apprehension, the Complainant told herself not to be “paranoid’ and acquiesced to the Accused’s suggestion to have the massage in her room since he had massaged her once before without incident.¹³

As the Accused’s portable massage bed could not fit into the room, the Complainant placed a mattress on the floor. The Accused closed the door to the room and began massaging the Complainant’s ‘glutes’ as she lay prone. In the course of doing so, he asked the Complainant to remove her shorts as they were too thick. Although uncomfortable with the request, she complied as the Accused assured her that he routinely massaged his other clients in their underwear:¹⁴

I was scared, but he was assuring me that the other athletes and the other sports professionals that he massages are also in their underwear … when he was telling me this, I trusted him, that it’s normal to be in underwear when doing the massage, even though inside I was uncomfortable because I was female and he is a male … so I did remove my shorts and put it at the side […]

After massaging the Complainant’s glutes, the Accused began massaging her inner thighs. As he massaged upwards, from her knees, he touched the right side of the Complainant’s vagina over her panties. This happened three to five times as he massaged the length of the Complainant’s inner thigh on her right leg. The Accused then moved to the Complainant’s left leg and similarly touched the left side of her vagina over her panties three to five times as he massaged the length of her inner thigh on her left leg. The Complainant did not react as she was afraid of aggravating the situation:¹⁵

I lie down back again on my belly, on the same mattress and then he continued massaging my glutes area and then afterwards, he massaged my inner thighs. So it’s from the knee height going upwards, he massaged and then he touched my vagina over my panties. And at first I was shocked and I thought that maybe it was an accident, but then he kept on repeating it, massaging my inner thighs and going up, touching my vagina with his fingers. He repeated it like 3 to 5 times and then---after that he did again, did the same thing on the other side: he massaged my inner thighs, the knee height going upwards towards vagina and then he touched my vagina again while I was wearing underwear and then it was quite a long time, like 3 to 5 times, but I’m scared to retaliate or do something because things might get worse from there, so I acted normal. […] [I] was scared, because---at first I was thinking like maybe its an accident, but because it was repeatedly done, then I thought that it’s on purpose and I got scared because if I do something, like what will happen, like can it worsen the situation? So I kept calm and just acted normal. (emphasis added)

On this occasion, unlike the first massage session on 6 October 2018, the Complainant testified that she did not feel any pain when the Accused massaged her ‘glutes’ and inner thighs:

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