Public Prosecutor v GEW

• Jurisdiction: Singapore
• Judge: Prem Raj Prabakaran
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] SGDC 164
• Court: District Court (Singapore)
• Hearing Date: 08 July 2019,09 July 2019,10 July 2019,11 July 2019,22 August 2019,26 March 2020,27 July 2020,05 November 2020,03 December 2020,19 February 2021,12 May 2021,05 July 2021,07 September 2021,22 November 2021
• Docket Number: District Arrest Case Nos 920693 of 2018 and 920694 of 2018 and Magistrate’s Arrest Case No 906186 of 2018, Magistrate’s Appeal Nos 9267-2021-01 and 9267-2021-02
• Plaintiff Counsel: Mark Yeo Kee Teng and Tay Jia En (Attorney-General's Chambers)
• Defendant Counsel: Grace Malathy Ponnusamy and Kalaithasan s/o Karuppaya (Grace Law LLC)
• Subject Matter: Criminal Law,Offences,Outrage of modesty,Word or gesture intended to insult the modesty of a woman,Criminal procedure and sentencing,Sentencing,Sexual offences
• Published date: 06 August 2022

District Judge Prem Raj Prabakaran: Introduction

On 18 January 2017, Child Protection Officers¹ brought a 14-year-old girl (the “Complainant”) to a Neighbourhood Police Centre (the “NPC”) to lodge a report (the “Report”). She was then a Secondary 3 student in a local school (the “School”). The “counter officer” who spoke to her typed the following down in the “Brief details” section of the Report: “A few months ago, I was molested by my step-father”. The officer also stated the “Location of [the] Incident” as the flat the Complainant was then staying in (the “Flat”)², with her biological mother (the “Mother”) and her stepfather – the accused.

Three charges preferred against accused

Investigations led to three charges against the accused, for alleged offences in the Flat in 2016. Two charges, punishable under s 354(2) of the Penal Code³, were for using criminal force against the Complainant with the intention to outrage her modesty. The third charge, punishable under s 509 of the Penal Code, was for intruding upon her privacy with the intention to insult her modesty. These alleged offences were purportedly committed in the following order:

Order/Charge No	Offence section	Location of offence in the Flat
1st offence DAC-920694-2018	Section 354(1), read with s 354(2), of the Penal Code	Complainant’s bedroom
2nd offence DAC-920693-2018	Master bedroom
3rd offence MAC-906186-2018	Section 509 of the Penal Code	Sofa in living room

The Prosecution’s case, based on the charges it preferred, was that the Complainant was 13 years old when the accused committed these offences – viz, all the offences were committed before her 14th birthday on 21 December 2016.

The charges preferred by the Prosecution read as follows:

Order/Charge No	Charge particulars
1st offence DAC-920694-2018	“Bedroom Incident” …you, sometime in the year 2016 (which is the 1st occasion), sometime after 8:00PM, at [the Flat], used criminal force to [the Complainant] (D.O.B. 21 December 2002), a person…under 14 years of age, intending to outrage [her] modesty…by such criminal force, to wit, by groping [her] right breast from outside her bra, and [you have] thereby committed an offence punishable under section 354(2) of the Penal Code…
2nd offence DAC-920693-2018	“Master Bedroom Incident” … you, sometime in the year 2016 (which is the 2nd occasion), sometime in the evening, at [the Flat], used criminal force to [the Complainant] (D.O.B. 21 December 2002), a person…under 14 years of age, intending to outrage [her] modesty…by such criminal force, to wit, by touching her chest area by slipping your hands in between her chest and the bed, and [you have] thereby committed an offence punishable under section 354(2) of the Penal Code…
3rd offence MAC-906186-2018	“Sofa Incident” …that you, sometime in the year 2016 (which is the 3rd occasion), at or about 7:00PM, at [the Flat], did intend to insult the modesty of [the Complainant] (D.O.B. 21 December 2002), female/13 years old, to wit, by pulling down her t-shirt to see the necklace on her neck, intending to intrude into [her] privacy, and you have thereby committed an offence punishable under Section 509 of the Penal Code…

The accused claimed trial to all three charges.

Procedural history

Ms Grace Malathy Ponnusamy (“Counsel”) and Mr Kalaithasan Karuppaya (collectively, the “Defence”) represented the accused. The accused elected to testify in his own defence. The Defence also called the Mother as its witness.

The Prosecution called five witnesses:

S/No	Witness
1	Complainant
2	Complainant’s Stepmother (the “Stepmother”)
3	Complainant’s form teacher in January 2017, who spoke to her on 11 January 2017 (the “Teacher”)
4	School Counsellor who counselled the Complainant on 13 January 2017 (the “Counsellor”)
5	Investigation Officer Sergeant Mohamad Isak bin Juma’at (“IO Isak”)

The Prosecution initially intended to also call Station Inspector Johnny Tan Beng Heng (“SI Tan”). He had recorded statements from the Stepmother and the accused. SI Tan’s attendance was dispensed with when the Defence indicated that it had no questions for him.⁴

Parties filed their reply submissions on 15 September 2020. On 30 September 2020, Counsel filed further reply submissions after leave was given to parties to do so should the reply submissions raise fresh points. The Prosecution did not file any further reply submissions.

When proceedings resumed, the Prosecution informed the court that: it was making IO Isak available to testify as Counsel’s further reply submissions contained several allegations relating to the conduct of investigations into the accused’s case. In this regard, the Prosecution invited the court to exercise its discretion under s 283(1) of the Criminal Procedure Code⁵ (the “CPC”) to recall and re-examine IO Isak on its own motion. The Prosecution clarified it was not applying to recall IO Isak. It stated that it was “merely highlighting” that IO Isak was ready to testify if the court wished to call him on its own motion.⁶ it had disclosed the following investigation statements to Counsel just before the proceedings to comply with its disclosure obligations under Muhammad bin Kadar and another v PP⁷ (“Kadar”):⁸ The Complainant’s second statement, which was recorded on 12 April 2017. The Stepmother’s statements, which were recorded on 13 February 2018 and 21 February 2018.

Counsel objected to IO Isak being recalled. She stressed that “finality of the case [was] of paramount importance” and that the Prosecution “shouldn’t be allowed to prosecute in instalments”. She contended that the evidence underlying the issues raised in her further reply submissions was already known to the Prosecution in July/August 2019, when the Complainant, the Stepmother, and the Mother testified. She submitted that the Prosecution’s application thus failed the test in PP v Bridges Christopher⁹ for the calling of rebuttal evidence. She also submitted that the Prosecution’s “application” was “unprecedented”, “gravely prejudicial”, as well as “a backdoor method and a second or third bite at the cherry”. She stated that the Prosecution’s “couching [of its] application” as an invitation to the court was “not fair to say the least”, when it was “very obvious that [it was] trying to recall the IO to rebut the evidence or the submissions raised by the Defence”.¹⁰

The Prosecution responded that it was not applying to recall IO Isak as a rebuttal witness. It explained that it was making IO Isak available to “answer” the issues raised in Counsel’s further reply submissions. While aware of the evidence led on these issues, it explained that it only became aware of the “nature of [Counsel’s] allegations” – which bordered on “alleging some form of negligence on the part of the investigation officers” – when it received Counsel’s further reply submissions. All it was doing, according to the Prosecution, was making IO Isak available in case the court had “any questions to clarify…to set the record straight or otherwise”. The Prosecution reiterated that it was not making IO Isak available “to rebut any evidence adduced over the trial”. It stated that it was “still ready to proceed” if IO Isak was not recalled. It also stated that its position was that the “state of investigations” was immaterial to the charges and that it would “stand by” the evidence of the Complainant, its “key witness”. It indicated that even if IO Isak was recalled, his testimony would not buttress the Complainant’s evidence.¹¹

In relation to the disclosures of the Complainant and Stepmother’s statements, Counsel stated that she wished to apply to recall and re-examine only the Stepmother. She also stated that she wished to obtain the Mother’s statements from the Prosecution, but conceded that these statements did not “fit squarely” within the Prosecution’s disclosure obligations under Kadar or Muhammad Nabill bin Mohd Faud v PP¹² (“Nabill”). Nevertheless, Counsel submitted that if IO Isak was recalled, it would only be “fair” for the Mother’s statements to be disclosed because the Mother had apparently told Counsel that she had informed IO Isak of the availability of certain evidence in her statement of 18 January 2017.¹³

A date was thus fixed for the court to indicate if IO Isak should be recalled under s 283(1) of the CPC. However, Counsel wrote to the Prosecution before this date to seek further disclosure of statements in its possession. Against this backdrop, the Prosecution informed the court that it intended to place the following statements before the court to rule on whether they should be disclosed under Nabill or Kadar (collectively, the “Requested Statements”):¹⁴ The Complainant’s first statement, which was recorded on 18 January 2017. The statement of the Complainant’s biological father (the “Father”), which was recorded on 12 April 2017. The Mother’s statements, which were recorded on 18 January 2017 and 25 April 2017.

I directed the Prosecution to refrain from putting the Requested Statements before the court at this time. I indicated that if Counsel wanted the Prosecution to disclose these statements, she should explain the legal basis for disclosure. And, if the Prosecution resisted disclosure thereafter, it should also explain its basis. Later that same day, Counsel informed the court that the accused had instructed her “not to seek further disclosure of any documents at this juncture”. She maintained her position on the recall of IO Isak and the Mother’s statements.¹⁵ The Prosecution subsequently informed the court that it had reviewed the matter and was now of the view that it was “not necessary” for the Requested Statements to be put before the court to rule on their...