Public Prosecutor v Helmi Bin Norman

• Jurisdiction: Singapore
• Judge: Teoh Ai Lin
• Judgment Date: 25 May 2022
• Neutral Citation: [2022] SGMC 31
• Court: Magistrates' Court (Singapore)
• Hearing Date: 21 April 2022,26 April 2022
• Docket Number: Magistrate Arrest Case No. 904527 of 2021 & Ors, (Magistrate’s Appeal No 9077-2022-01)
• Plaintiff Counsel: Chong Kee En (Attorney General's Chambers)
• Defendant Counsel: Siraj Shaik Aziz (Silvester Legal LLC)
• Subject Matter: Criminal Law,Offences,Outrage of Modesty,Criminal Procedure and Sentencing,Sentencing
• Published date: 01 June 2022

District Judge Teoh Ai Lin:

On 22 July 2019 at about 11pm the accused Helmi bin Norman aged 25+ years old texted the victim, his distant female cousin and primary school friend, to meet him near the fitness corner at Block 217 Yishun St 22 for a chat. The request to meet for a late night chat ended with the victim having her modesty outraged when the intoxicated accused squeezed her breast twice and also insulted her modesty.

The accused pleaded guilty to one charge of outrage of modesty, with two other charges of outrage of modesty and insulting modesty taken into consideration. Counsel sought to persuade the court that this was a suitable case for probation. I disagreed and sentenced the accused to five months and two weeks’ imprisonment. The accused appealed my sentence.

The Charges

For completeness, I set out the proceeded outrage of modesty charge, and the two other charges taken into consideration:

MAC-904527-2021 (1st charge)- Proceeded

You, […] are charged that you, are charged that you, (on the first occasion), at or about 11:20pm, on 22 July 2019, in the vicinity of the fitness corner of BLK 217 Yishun St. 22, Singapore, did use criminal force on [redacted] (a then 24-year-old female), to wit, you used your hand to squeeze her left breast (over clothes), intending to outrage her modesty, and you have thereby committed an offence punishable under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

MAC-904528-2021 (2nd charge)- TIC

You, […] are charged that you, are charged that you, (on the second occasion), at or about 11:20pm, on 22 July 2019, in the vicinity of the fitness corner of BLK 217 Yishun St. 22, Singapore, did use criminal force on [redacted] (a then 24-year-old female), to wit, you used your hand to squeeze her left breast (over clothes), intending to outrage her modesty, and you have thereby committed an offence punishable under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

MAC-904529-2021 (3rd charge)- TIC

You, […] are charged that you, are charged that you, at or about 11:20pm, on 22 July 2019, in the vicinity of the fitness corner of BLK 217 Yishun St. 22, Singapore, did utter insulting words to [redacted] (a then 24-year-old female) with the intention of insulting her modesty, to wit, you said “her boob big ah, but I think yours are bigger”, and you have thereby committed an offence punishable under section 509 of the Penal Code (Cap 224, 2008 Rev Ed).

Outrage of modesty is punishable with an imprisonment term of up to 2 years or with fine, or with caning or any combination of such punishments.

Material Facts

The accused a Singaporean was serving his fulltime National Service at the material time. The victim was then 24 years old.

At or about 11:00pm on 22 July 2019, the accused texted the victim to meet him for a chat. The accused had recently broken up with his girlfriend and he was upset. He purchased a 750ml bottle of whisky and drank it at the fitness corner at Block 217 Yishun St. 22, Singapore. As the accused was feeling upset, he messaged the victim, and she agreed to meet him for a chat.

When they met up at around 11:20pm, the accused started to cry when talking about his ex-girlfriend and he also drank heavily. He asked the victim for a hug but she declined, instead the victim gave him a friendly pat. They were seated side by side.

The accused then said that he was done with his ex-girlfriend. He downloaded the Tinder app, and told the victim, “get me someone to fuck”. He came across a profile of a woman exposing her buttocks. The accused then leaned back to take a look at the victim’s buttocks and said, “you got no butt ah”. This made the victim feel uncomfortable and she moved away from him. The accused continued swiping on Tinder, whilst the victim started using her phone. At this point, the accused came across a profile of another woman. He showed the victim the profile and said, “her boob big ah, but I think yours are bigger” (giving rise to the 3rd Charge taken into consideration).

The victim was angry and upset. Suddenly, the accused reached over with his hand and squeezed the victim’s left breast (over clothes) for one or two seconds. The accused had done so without the Victim’s consent, intending to outrage her modesty. The accused had thereby committed an offence punishable under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

The victim then pushed away the accused’s hand. She told him off and told him not to “cross the line” and “no”. The accused then said, “cannot ah”. The victim replied, “obviously not”. The victim tried to remain calm, although she was angry and upset and scared as the accused appeared intoxicated to her. The accused then said his ex-girlfriend’s breasts were B cup, but the victim’s breasts looked bigger. He reached out his hand again and squeezed the victim’s breast (over clothes) again for a second or two (giving rise to the 2nd Charge taken into consideration). The victim pushed him away and moved further away from him. She asked him what he was trying to do in a stern and angry tone. The accused apologised, but then said he was having a “boner”. The victim decided to leave. The victim felt traumatised by the incident and decided to report the matter.

Parties’ submissions on sentence

Prosecution submitted that this was not an appropriate case for probation and a probation suitability report (“probation report”) should not be called for. This was a Band 2 case under the framework set out in Kunasekaran s\o Kalimuthu Somasundara v PP [2018] 4SLR 580 (“Kunasekaran”) and seven months’ imprisonment should be imposed.

Defence urged the court to call for a probation report as probation was not precluded as a sentencing option. Should the accused not be found suitable for probation, even though this was a Band 2 case, the sentence should be adjusted downwards to three months’ jail.

Issues to be determined

The issues for determination by the court were: Was probation a realistic sentencing option for the accused? If not, what is the appropriate sentence to be imposed?

Issue 1: Was probation a realistic sentencing option for the accused? Probation for adult offenders

The legal principles for sentencing adult offenders to probation are well settled. As the court in GCO v PP [2019] 3SLR 1402 (“GCO”) guided, probation can only be justified where rehabilitation is the dominant sentencing consideration.

In the case of young offenders rehabilitation presumptively takes precedence. Adult offenders can be sentenced to probation, although this would be the exception rather than the norm. An adult offender may be sentenced to probation if he demonstrates an extremely strong propensity for reform or there are exceptional circumstances warranting the grant of probation. Even where rehabilitation is found to apply, it can be displaced by the need for deterrence if the offence is serious or the harm is severe, among other considerations: GCO at [32] to [34]. These principles were endorsed in PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 (“Terence Siow”): at [42] and [44].

The court in Terence Siow further re-iterated GCO that in the specific context of outrage of modesty by adult offenders, deterrence will be the operative consideration: at [43].

Submissions for the court to call for a probation report

Counsel urged the court to call for a probation report to assess the accused’s suitability for probation. He submitted that the accused was not precluded from such a sentencing option despite his age and nature of the offence, and preliminarily the accused displayed exceptional rehabilitative potential.¹

I deal first with counsel’s submission that that a probation report should be called for in any event to assist the court in applying the framework in Terence Siow, and to confirm the accused’s propensity for reform. I found this a curious argument, and I agreed with prosecution that this was getting things the wrong way round.² Counsel conceded that Terence Siow did not stand for any such proposition that a probation report should be called for in any event to assist the court in applying the framework in Terence Siow.³ Neither was such an approach supported by the case authorities.

As regards the calling of a probation report for young offenders, the court in A Karthik v PP [2018] 5SLR 1289 (“Karthik”) had guided that when dealing with the sentencing of an offender aged 21 years and below, the court should generally call for the pre-sentencing report and should not embark on an assessment of the offender’s suitability for probation without the benefit of such a report, although this would not include situations where the pre-requisites for probation to be considered are not met or where probation is not a realistic option on the facts of the case: at [20] and [21].

Even in the case of a young offender, a probation suitability report is not called for when probation is not a realistic sentencing option. Ho Mei Xi Hannah v PP [2019] SGHC 211 (“Hannah Ho”) concerned a young offender who was 20 years old when she committed the offences. The court decided that as probation was not a realistic sentencing option on the facts, it was not necessary to call for a probation suitability report: at [84]. It reached this conclusion after considering the offender’s age, the offences committed, the circumstances of the offence and her antecedents, and concluded that general and specific deterrence displaced rehabilitation as the predominant sentencing consideration: at [85] to [92].

As for youngish adult offenders, GCO is instructive on probation and the calling of a probation report. The accused in GCO was 23 years old and 25 years old respectively at the time he committed a section 509 insulting modesty offence and then a section 354 outrage of modesty offence. As regards the latter offence, the accused had touched the victim’s groin area from...