Public Prosecutor v Qu Laihua
| Jurisdiction | Singapore |
| Judge | Luke Tan |
| Judgment Date | 27 October 2020 |
| Neutral Citation | [2020] SGMC 45 |
| Court | Magistrates' Court (Singapore) |
| Docket Number | MAC 902188 of 2018 & Ors |
| Year | 2020 |
| Published date | 04 November 2020 |
| Hearing Date | 09 September 2020,18 July 2019,12 July 2019,11 July 2019,09 July 2019,19 July 2019,09 January 2019,27 November 2018,30 June 2020,10 July 2019,26 November 2018,08 January 2019,04 July 2019,10 March 2020,09 March 2020,07 January 2019,11 March 2020 |
| Plaintiff Counsel | Mr Nicholas Lai and Mr Marshall Lim |
| Defendant Counsel | Mr Gary Low, Mr Terence Tan and Mr Victor David Lau (Drew & Napier LLC) |
| Subject Matter | Criminal Law,Statutory offences,Outrage of Modesty,Evidence,Unusually convincing standard,Criminal Procedure and Sentencing,Sentencing,Imprisonment in lieu of caning |
| Citation | [2020] SGMC 45 |
A male masseur, Qu Laihua (“the accused”), aged 55 years old, was charged with outraging the modesty of three female persons, PW1, PW2 and PW3 (“the victims”) on three separate occasions in the month of March 2016. The offences were alleged to have been committed in the course of professional massage services that he was providing to the three victims.
Following police reports made against the accused, three separate charges under section 354(1) of the Penal Code (Chapter 224 Penal Code, 2008 Rev Ed) were framed against the accused for the offences of outrage of modesty. The particulars of the charges are summarised below:
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The accused claimed trial to all three charges. With the consent of the Defence, the Prosecution proceeded on a joint trial against the accused on all the charges, and all three victims testified in the course of the trial.
At the end of the Prosecution’s case, as there was sufficient evidence to make out each and every element of the charges, I called on the accused to enter his defence. The accused testified and also called his wife to give evidence. In addition, he called an expert witness to testify on the effect of 2 of the 16 ingredients found in a paste that he allegedly used for the massages.
After examining the notes of evidence (NE), the exhibits, and the detailed submissions from the Prosecution and the Defence, I was of the view that there was sufficient evidence to prove the case against the accused beyond a reasonable doubt on all three charges, and I convicted him accordingly. Thereafter, following comprehensive sentencing submissions from parties, as well as victim impact statements tendered by the Prosecution, I imposed an aggregate sentence of 22 months’ imprisonment on the accused.
The accused, being dissatisfied, has filed an appeal against his conviction and sentence. He is currently on bail pending the hearing of the appeal. I now give my detailed grounds of decision.
Outline of the Prosecution’s EvidenceIn presenting its case, the Prosecution called a total of four witnesses for the entire trial, including the three victims (PW1, PW2 and PW3), and PW4 ASP Almeida Tay, the police officer who recorded the accused’s statements. The latter was called as a rebuttal witness.
In summary, the Prosecution’s case was that the three victims, who are all dancers, had been molested by the accused on three different dates in March 2016. The offences were committed when the victims separately sought massage services at a massage establishment known as Genki Wellness, which the accused had set up. On each of these occasions, he had molested them in the course of performing full body massages on them.
Each victim testified that the accused had outraged her modesty in the manner set out in her respective charge. The Prosecution submitted that their evidence was consistent on material facts, and that they were unusually convincing witnesses.
In contrast, the Prosecution submitted that the accused, whose defence was that of a bare denial, was an evasive witness whose evidence was self-serving and not in accord with common sense or logic. As for his wife DW2 Ding Jun (“Ding Jun”), she had backtracked on many of the claims she initially made in court, and her evidence was of no assistance to him. As regards the evidence of DW3 Ms Lim Chin Chin, who was called as an expert witness, the Prosecution’s position was that she had conducted “very rudimentary tests” on a paste that the accused claimed to have used on the victims, and that her evidence “do(es) little to advance the accused’s assertion of innocence”.
Before setting out my detailed findings, I will provide an outline of the main evidence of the three victims, as well as an outline of the evidence of the Defence witnesses when considering the Defence’s case. I will also summarise the evidence of the Prosecution’s rebuttal witness.
Evidence of PW1 (victim for the third charge)PW1 is a 29-year-old female dance instructor. Since the beginning of 2015, she has been going for massages at Genki Wellness for about 10 times to ‘release her muscles’. This was a massage establishment that a fellow dancer had recommended her to.
PW1 usually went for the full body massage which lasts for at least 1 ½ hours. In 2016, she went for massages there about 3 to 4 times, with the last time being on 11 March 2016. The massages she received, on the various occasions she visited, were provided by either male or female masseurs.
On 11 March 2016, PW1 had made an appointment for a massage session to deal with her general muscle tension. This was similar to the reason why she had gone for her earlier massages.
When she reached the counter, PW1 was directed by a female masseur to a room, where she took off her clothes and laid down to wait. At that time, she was topless and wore only ‘boy shorts’, which are like bicycle shorts but shorter, reaching her “mid upper thigh”. In addition, she also wore her underwear underneath the boy shorts, while lying face down waiting for the masseur to come in.
Subsequently, a female masseur come into the room. As PW1 laid face down, the masseur proceeded with the massage from her upper back to her middle back, and then to her lower back.
Halfway through the massage, the masseur said that her hand was painful, so she had to hand over to a male masseur. PW1 said that she had no objection to a male masseur taking over as she (PW1) felt that she had no choice. The female masseur then left, and the accused came in and continued with the massage for PW1.
Subsequently, the accused instructed PW1 to turn over to face up. He then left the room while PW1 turned over and covered her chest with a towel that extended to the lower part of her body. The accused returned and asked PW1 to bend her right leg to form a V-shape with the foot resting against her left knee, while her left leg remained straight. This caused her shorts to ride up a little bit, as her boy shorts was tight but not fitting.1 The accused then massaged up to PW1’s upper thigh near her pubic area.
At her upper thigh area, his fingers went from under the bottom of her boy shorts and then he began to massage the surrounding area at the edge of her underwear. He also used his thumb or fingers to go beneath her underwear and massaged the “V” (i.e. her pubic) area. PW1 said that she could feel this. She described his pressing action as being “medium touch” and “momentary but it was repetitive”.2 Also, PW1 said that she could “hear that, uh, was wet. I could hear the sound from my own body, yah.” 3
Using the exhibit P2 (showing a drawing of the female private part) to make her point, PW1 testified that:
“…[the accused] will slowly move in towards the outer---outer lips of the vagina…and then he will move out and then he will go in again, out and in, out and in but he didn’t go any inner than that. So he touched the outer lips of the vagina, yah. Uh, the inner---inner and outer lip, the pink area---the pink area, yah.”4
PW1 said that the accused moved from the outer area and then moved in and out. He did this first on the right side of her leg, and then moved to the left side where he did the same. She said that he touched her in this manner at least 10 times on each side.
When asked how she felt as he was doing this, PW1 said that she was uncomfortable but thought that what he was doing could be accidental. However, when he repeated this a few times, she thought that she could be feeling a bit sensitive and that this may have been his massage technique. PW1 also felt confused and thought that she was in a very vulnerable position as she was half dressed and she was lying on a bed with a man in the room. Further, she said that she wasn’t thinking rationally, and her thoughts were not very coherent at that point in time. In her own words, she stated: “I was in a state of shock, and I really didn’t know what to do”.5
PW1 also said that when the accused did the same thing as he massaged her left leg and started touching her vagina on that side, she realised that what he was doing was wrong, and she said “no” in Chinese (“bu yao”), but not very loudly because she was scared. She also used her hands to block and press on her groin area. However, the accused continued with his actions for another two or three minutes.
PW1 explained that she only reacted when he did this to her on her left leg, rather than when he was doing this on her right leg, because she was initially unsure as to whether this was accidental or intentional, and she wanted to give him the benefit of the doubt. It was only when he did the same thing when massaging her other leg that she decided to voice out. She described her “boy shorts” as “stretchy”, and confirmed that it was possible for him to insert his fingers under her boy shorts and her panties.
Aside from saying no to him, she did not talk to him or ask him about what he did to her. PW1 confirmed that she was not ok with him touching her in that manner, nor did she consent to his actions. Neither had he asked if he could insert his hand into her boy shorts and under her underwear.
Subsequently, the accused moved on to massage her shoulders and then near her armpits. He also slipped his hand below the towel and close to her breast but did not touch her breast. She could not remember if he massaged her head but said that...
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