Public Prosecutor v Mohamad Shalahuddin Bin Sahid

• Jurisdiction: Singapore
• Judge: Victor Yeo Khee Eng
• Judgment Date: 11 April 2023
• Neutral Citation: [2023] SGDC 60
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 906677-8 of 2020, Magistrate’s Appeals No 9149-2022-01
• Hearing Date: 13 September 2021,14 September 2021,15 September 2021,16 August 2022,31 May 2022,28 April 2022,07 February 2022,08 February 2022,10 February 2022,06 January 2022,07 January 2022
• Citation: [2023] SGDC 60
• Year: 2023
• Plaintiff Counsel: DPP Lee Zu Zhao (Attorney-General's Chambers)
• Defendant Counsel: Mr Kalaithasan S/O Karuppaya (Regent Law LLC)
• Subject Matter: Criminal Law,Offence,Outrage of modesty of a minor,Whether evidence of victim "Unusually Convincing",Criminal Procedure and Sentencing,Sentencing
• Published date: 23 August 2023

Principal District Judge Victor Yeo Khee Eng: Introduction

This is an appeal against conviction and sentence by Mr Mohamad Shalahuddin Bin Sahid (the “Accused”). The Accused had claimed trial to two charges, one charge of outrage of modesty under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) and one charge of attempted outrage of modesty under s 354(2) read with s 511(1) of the PC.

At the commencement of trial, there was a subsisting gag order that no person shall publish the name, address, and photograph of the victim or any evidence which is likely to lead to her identification. The order remains to date.

The Charges

The proceeded charges read as follows: -

1st Charge DAC-906677-2020 (Re-amended) [C1B] [“ First Charge ”]

You, [Accused], are charged that you, sometime in 2016, in a bedroom at Blk 770 Pasir Ris St 71 [unit number redacted], Singapore, did use criminal force to one [victim’s name redacted], a female then under 14 years old age (a female then aged 8 to 9 years old, DOB: DD.MM.2007), knowing it to be likely that you would thereby outrage her modesty, to wit, by using your finger to touch the anus area of the victim in a circular motion, and you have thereby committed an offence punishable under s 354(2) Penal Code (Cap 224, 2008 Rev Ed).

2nd Charge DAC-906678-2020 (Re-amended) [C2C] [“ Second Charge ”]

You, [Accused], are charged that you, sometime between 9 and 13 September 2019, at Blk 770 Pasir Ris St 71 [unit number redacted], Singapore, did attempt to use criminal force to one [victim’s name redacted], a female then under 14 years old age (a female then aged 12 years old, DOB: DD.MM.2007) with intent to outrage her modesty, to wit, by attempting to insert your hand into the back of her pants, and you have thereby committed an offence punishable under s354(2) read with s 511(1) Penal Code (Cap 224, 2008 Rev Ed).

The trial lasted for 11 days, over three separate tranches of hearing dates in September 2021, January 2022, and February 2022. The Prosecution led evidence from a total of 10 witnesses, including the victim, and the Defence led evidence from two witnesses, including the Accused. At the conclusion of the trial, I found that the Prosecution had proven its case against the Accused beyond reasonable doubt, and accordingly, I convicted the Accused on both charges.

After hearing the Prosecution’s submission on sentence and the Defence’s mitigation plea and submission on sentence, I imposed the following sentences on the Accused.

In respect of the first charge, I sentenced the Accused to 18 months’ imprisonment and six (6) weeks’ imprisonment in lieu of three (3) strokes of the cane, given that the Accused, who is above 50 years of age, could not be caned pursuant to s325 Criminal Procedure Code 2010. In respect of the second charge, I sentenced the Accused to four (4) weeks’ imprisonment. I further ordered that the sentences run consecutively, making an aggregate sentence of 18 months and 10 weeks’ imprisonment.

The Accused, being dissatisfied with my decision, has filed an appeal against both conviction and sentence. I hereby set out the reasons for the conviction and sentence imposed.

The Undisputed Facts

At the trial, the following facts were not in dispute.

The parties involved

The Accused is Mohamad Shalahuddin bin Sahid, male, Singapore Citizen. The Accused is currently 59 years old (DOB: 11 August 1962). At all material times, the Accused resided with his family at Blk 770 Pasir Ris St 71, [unit number redacted], Singapore.

The victim, female, Singapore Citizen, is currently 14 years old (D.O.B. DD.MM.2007) and a Secondary 2 student.

The victim’s father is PW3 and her mother is PW2. She also has two sisters – PW8, currently 12 years old (turning 13), and a “youngest sister”, currently 10 years old (turning 11).

The Accused’s wife is Siti Zubaidah binte Mohd Edi (DW2).

Background

The Accused and his wife were close family friends of the victim’s parents at the time of the incidents. The Accused has known the victim since she was around three years old and was especially close to her among her and her siblings. The Accused would exclusively buy presents for the victim during her birthdays and when she did well for her examinations ¹. Their families were so close that the victim’s parents were comfortable with her and her sister taking the Accused’s car for a trip to Malacca in August 2019 with them only following about half a day later in their own car ².

In 2016, when the victim was in Primary 3, she and PW8 would often go to the Accused’s house on Fridays for tuition with Mdm Siti ³. The victim and PW8 stopped going to the Accused’s house for tuition sometime in late 2016 or 2017 ⁴.

Sometime in the second half of 2019, the victim began attending tuition at the Accused’s home with Mdm Siti again, including sometime between 9 and 13 September 2019 leading up to her PSLE ⁵.

Police Reports

On 19 September 2019, at about 7.35 p.m., the victim reported that she had been molested, as documented in the Police Report (NP299) (Report No. A/20190919/2126) (Exhibit “P1”). The report stated that she was “molested by a man”. It turned out that the man alleged in the report was the Accused.

On 19 September 2019, at 10.59 p.m., ASP Mohammad Amin s/o Majid reported that the Accused had been arrested for Outrage of Modesty under s 354(2) of the Penal Code (Cap. 224) at about 9.55 p.m. on the same day, as documented in the Police Report (NP299) (Report No. A/20190919/2150) (Exhibit “P2”).

On 3 December 2019, at 5.18 p.m., ASP Muhammad Jamil bin Agus Rizal (“ASP Jamil”) reported that the Accused’s mobile phone, one iPhone 8 (IMEI no. 353808089193535), was seized from him at around the time of his arrest, as documented in Police Report (NP299) (Report No. A/20191203/2146) (Exhibit “P3”).

Medical Reports

On 9 October 2019, following the police report, the victim was seen by Dr Geetha Visvalingam (“Dr Geetha”) at the KK Women’s and Children’s Hospital. Dr Geetha prepared a medical report dated 11 November 2019 on her findings. In the medical report (Exhibit “P4”), the victim stated that the alleged assailant involved is a person whom she called “Uncle Din” and that the incidents started in 2016. In 2016, the alleged assailant touched her buttock and touched around her anus. He did not put his finger inside the anus.

There were no incidents in 2017 and 2018, and the incidents occurred again in 2019 ⁶. The last incident was in September 2019. It was also stated in the medical report that on physical examination of the vaginal area, it was noted that there was old hymen tears seen at 5 o’clock of the hymen, as well as a partial tear at around 10 o’clock of the hymen. A full speculum examination was conducted, the results of which were unremarkable. Upon inspection of the victim’s anus, there were no lacerations or tears noted. A pregnancy test was done, together with the routine vaginal swabs for common bacterial infection as well as STI infection, like chlamydia and gonorrhoea were taken. The results of which were all negative ⁷.

On 14 November 2019, the victim was seen by Dr Parvathy Pathy (“Dr Pathy”) at the Child Guidance Clinic at the Institute of Mental Health. Dr Parvathy prepared a medical report on the same day documenting her findings. In her report (Exhibit “P5”), the victim stated that “Chik Udin” did inappropriate things to her when she was in Primary 3 and when she went for tuition at the home ⁸.

On one occasion when she was having rash, Chik Udin offered to apply powder on her, and in the bedroom, he applied powder on her buttocks and then circled her anus with his finger. At that time, she did not realise that this act was wrong ⁹.

The victim also narrated other acts and incidents in 2019. I do not propose to go into the details of these incidents in the said report as they do not form the subject matter of the two charges preferred against the Accused before me, save to observe that the victim stated that she did not disclose the matter earlier as she feared that no one might believe her ¹⁰. She eventually disclosed the matter to her school counsellor as Chik Udin began to ask her if her younger sister had pubic hair and she began to worry that he might do the same things to her sister ¹¹.

The report also stated that the victim still sometimes has memories and flashbacks of the incidents (although they have lessened), and that she also has bad dreams of being molested by people she trusted. She saw a counsellor and sometimes has thoughts of cutting herself when she thinks about what Chik Udin did or when she has friendship or sibling issues ¹². The victim stated that she is telling the truth regarding Chik Udin and she understood that he could be punished for the alleged matter. She also understood that it is wrong to tell lies to the police or to the judge, and that she could be punished if she lied ¹³.

Dr Pathy concluded that the victim was able to give an account of the alleged matter and reported some symptoms suggestive of post-traumatic stress and is fit to give evidence in court. Arrangements were also made for the victim to receive counselling ¹⁴.

Statement recorded from the Accused

During the course of police investigations, on 20 September 2019, at about 7.00 p.m., a statement (exhibit “P9”) was recorded from the Accused under Section 22 of the Criminal Procedure Code (Cap. 58, 2012 Rev. Ed.) by ASP Muhammad Jamil. The making of the statement was done voluntarily by the Accused and was not caused by any inducement, threat or promise. The Accused did not challenge the admissibility of the same. The significance of the statement became clear during cross-examination of the Accused when he was questioned by the learned DPP about his evidence given in court and the statement made to the Police.

The Law

It is trite that in any criminal proceedings, at the end...