Public Prosecutor v Saigal Dushyant

• Jurisdiction: Singapore
• Judge: Ng Cheng Thiam
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] SGMC 7
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Arrest Case No. 902764/2020, Magistrate’s Appeal No. 9003/2022/01
• Hearing Date: 29 September 2020,30 September 2020,06 January 2021,07 January 2021,25 January 2021,26 January 2021,11 May 2021,12 May 2021,17 May 2021,23 September 2021,29 September 2021,19 October 2021,11 January 2022
• Citation: [2023] SGMC 7
• Year: 2023
• Plaintiff Counsel: Jonathan Tan (throughout the trial) Vadivalagan Shanmuga (from 29 September 2020 to 26 January 2021) (Attorney-General's Chambers)
• Defendant Counsel: The Accused acting in person (throughout the trial) Johannes Hadi (Eugene Thuraisingam LLP) (on 11 January 2022 only)
• Subject Matter: Criminal Law,Offences,Outrage of Modesty,Criminal Procedure and Sentencing,Sentencing
• Published date: 08 September 2023

District Judge Ng Cheng Thiam: Introduction

The Accused claimed trial to four charges of using criminal force on two victims knowing it to be likely to outrage the modesty of the victims by such criminal force. The four charges were framed under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”). The Accused defended himself at the trial.

A gag order was issued by the Court to protect the identity of the two victims. As such, I shall refer to the two victims as the First Victim and the Second Victim.

At the conclusion of the trial, I found the Accused guilty of committing the offences as set out in the four charges. I convicted him accordingly.

The Accused then engaged the services of a defence counsel for mitigation and sentencing. After considering the Prosecution and the Defence’s respective submissions on sentence and the Defence’s plea-in-mitigation, I imposed an aggregate sentence of 24 weeks’ imprisonment. The breakdown of the individual sentences and the aggregate sentence is set out in Table A below: Table A: Court’s sentencing decision

Charge No.	Victim involved	Nature of Offending	Sentence
1st Charge MAC-902764-2020	First Victim	The Accused used his penis to touch the First Victim’s thigh	12 weeks’ imprisonment (Consecutive)
2nd Charge MAC-902765-2020	First Victim	The Accused used his penis to touch the First Victim’s thigh	12 weeks’ imprisonment (Concurrent)
3rd Charge MAC-902766-2020	Second Victim	The Accused used his penis to touch the Second Victim’s buttock	12 weeks’ imprisonment (Consecutive)
4th Charge MAC-902767-2020	Second Victim	The Accused used his hand to touch the Second Victim’s left buttock	Eight weeks’ imprisonment (Concurrent)
Aggregate Sentence	24 weeks’ imprisonment

The Accused filed a Notice of Appeal against conviction and sentence. Arising from the Accused’s appeal, I now provide my grounds of decision.

Appeal against Conviction Undisputed Facts

The Accused is a national from the Republic of India. At the material times, the Accused was residing with his grandmother at No.8, Wilkie Road, #XXX, Wilkie Lodge (“the Unit”).

The Accused obtained the services of the First Victim to look after his grandmother from the night of 1 August 2019 till the morning of 2 August 2019. The Accused procured the services of the First Victim through a company named Caregiver Asia.

For the night of 3 August 2019 till the morning of 4 August 2019, the Accused obtained the services of the Second Victim to look after his grandmother. The Accused procured the services of the Second Victim through a nursing agency which is owned and run by PW4 (see paragraph 10(e) below). In the Accused’s communication with PW4 (see Exhibits P12 and P13), the terms of the nursing duties were: “Grandma is 5’ 2”, 48 kg, recovering from stroke which affected her left side mobility, has dementia, needs help to get from chair to bed, diaper changing and bed turning.”¹ It was not necessary to bring the Accused’s grandmother to the toilet at night. A change of diaper would suffice.²

The victims were working as private nurses at the material times.

The Prosecution’s Case

The Prosecution called seven witnesses to prove the four charges against the Accused. The seven witnesses comprised: The First Victim (“PW7”). Nur Syakilah Binte Roslan (“PW6”). She was from the company Caregiver Asia, which managed the services of the First Victim. The Second Victim (“PW2”). Flora Teo (“PW3”). She was a friend of the Second Victim. Joy Zhou Yong Ming (“PW4”). She was a nurse by profession. She owned a nursing agency. The Second Victim was one of the nurses registered with her nursing agency. PW4 was the agent of the Second Victim. Inspector Tan Yen Theng Jane (“PW1”). She was involved in the arrest of the Accused. Station Inspector Nor Ellyza Binte Abdul Rahim (“PW5”). She took over as the Investigation Officer in February 2019.

The material evidence touching on the four charges would come from the two victims.

Prosecution’s Case in respect of the 1st and 2nd Charges

Summary of the evidence of the First Victim

The First Victim testified that she arrived at the Unit around 9 pm. The Accused, his grandmother and the day-time helper were present. The Accused’s grandmother was on the sofa.

The day-time helper briefed the First Victim and then left the Unit. Shortly thereafter, on the Accused’s instructions, the First Victim put the Accused’s grandmother on a wheelchair without any assistance from the Accused. They went out of the Unit for a short walk as the Accused wanted his grandmother to have some fresh air before settling down for the night. After the walk, the Accused’s grandmother was placed into her room. The Accused’s grandmother was transferred from the wheelchair to the bed. The Accused was dissatisfied with the manner in which she had done the transfer and told her off. Subsequently, there was a change of diaper for the Accused’s grandmother. The Accused was not in the grandmother’s room during the diaper changing. When the Accused came out from his room, he had changed his attire. He had changed into a triangular underwear and a singlet. Thinking that this was a foreigner’s lifestyle, the First Victim let it be.

Inside the Accused grandmother’s room, the Accused oriented the First Victim to the room and the place where the diapers were kept. In the midst of talking to her, the Accused used his right hand to make circular motion on the First Victim’s left hand. The First Victim was startled by the Accused’s action. But she thought that the Accused was just being friendly.

Later, the two of them continued their conversation outside the Accused grandmother room. At one stage, the First Victim could feel the Accused’s erect penis was touching her right thigh for about three to five seconds. The First Victim froze momentarily. The First Victim did not confront the Accused. She went back to the grandmother’s room. She felt scared and hoped to get through her shift.

At about 11:30 pm, the Accused returned to his grandmother’s room. On this occasion the Accused was wearing boxers instead of the triangular underwear. He asked the First Victim whether she had brought any food. If she had, she could consume her food if she wanted to. The Victim took out her food, a wrap, to eat. She was eating the wrap just outside the Accused grandmother’s room so that the Accused’s grandmother would remain in her sight.

The Accused told her that the ventilation in his grandmother’s room was poor and suggested to the First Victim to have her food at the sofa in the dining area. When the Accused was talking to her, the Victim felt the erect penis making contact with her right thigh. ³ It was a repeat of the first incident. Upon the second contact, the First Victim took up the Accused’s suggestion and moved to the dining area. At that moment, the Accused was skipping around the dining table and behind the sofa. It was obvious to the First Victim that the Accused’s penis was in an erect state, albeit underneath his boxers. The First Victim felt very scared. She quickly finished up her wrap and returned to the Accused grandmother’s room.

Nothing untoward happened thereafter. The First Victim eventually completed her duties. The morning after, the First Victim left the Unit. That morning, the First Victim informed PW6, an officer from Caregiver Asia, that she would be making a police report against the Accused. The screenshots of the WhatsApp messages between the First Victim and PW6 were adduced as Exhibit P11. The material messages are reproduced in tabular form below:

Send by	Time stamp	Content of message
PW6	7:52 am	So far all OK?
First Victim	7:52 am	Good morning Syakilah, previous nurses got feedback anything on the grandson ?
PW6	7:53 am	Eerm, some say he is generally nice sometimes a bit weird Let me know what happen?
First Victim	7:53 – 7:56 am	I need to make a police report after work Got sexual harassment He wore his undies and cloth to walk around half an hr after my work starts When grandma was put to sleep, he was a bit touchy … Then two times he stood really close to me with his penis erected I can feel his penis touching me … … I don t want to make matters big but a report needs to be made I don t want it to happen to other nurses
PW6	7:56 am	Thank u for informing
First Victim	7:57 am	Yes, will also make a report after my work Ultimate insult to nurses
	… …	… …
PW6	8:07 am	So sorry dear we didn’t know he was like that
First Victim	8:07 – 8:08 am	No issues, no one would expect such also. Just to safeguard ourselves and warn him tt his actions cannot be taken lightly
	… …	… …
First Victim	12:44 pm	Hi Syakilah, almost ending with the police IO She will likely call u soon
First Victim	12:44 pm	(Photograph of the police report lodged by the First Victim).

In his cross-examination of the First Victim, the Accused alleged that when the First Victim first met him that night, he had told her not to consume food in his grandmother’s room and that the First Victim had defied his instructions. The First Victim disagreed with the Accused’s version of the events. The Accused also alleged that the First Victim encountered problem with his grandmother in the toilet. The First Victim disagreed. She explained that she did not bring the Accused’s grandmother to the toilet because the Accused’s grandmother was using a diaper. The Accused further alleged that the First Victim had made the false allegations against him to distract from any possible bad feedback she might receive. The First Victim maintained that she...