Public Prosecutor v Tan Kuan Meng

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 30 January 1996
• Neutral Citation: [1996] SGHC 16
• Court: High Court (Singapore)
• Published date: 08 May 2012
• Year: 1996
• Plaintiff Counsel: Chan Seng Onn and Ch'ng Lye Beng (Attorney-General's Chambers)
• Defendant Counsel: David Gerald and Edwin Chan (Briefed) (Edwin Chan & Partners)
• Citation: [1996] SGHC 16

Judgment:

In mid Mar 93 the accused, Tan Kuan Meng, made a telephonic trade enquiry of the complainant at her place of work. He obtained her home telephone number. It was the prosecution case that the same night he made an obscene and threatening call to the complainant and that over the ensuing 6 months the accused committed altogether 11 offences against her. The charges involved five charges of carnal intercourse against the order of nature in which the accused had allegedly forced the complainant to perform an act of fellatio on him; two charges of rape; three charges of extortions of the sums of $500, $2,150 and $600 respectively; and one charge under s 385 of the Penal Code in which the accused was charged with having put the complainant in fear of further sexual harassment in order to commit extortion. At the conclusion of the trial, I convicted the accused of all eleven charges and sentenced him to imprisonment for the aggregate term of 13 years and 10 strokes of caning.

The 11 Charges The first charge related to the events after they met each other for the first time. The accused was charged that he committed carnal intercourse against the order of the nature punishable under s 377 of the Penal Code with the complainant by forcing her to perform an act of fellatio on him at about 11 pm on 9 Apr 93 in room 516, Allson Hotel, Singapore.

The second and third charges arose out of what he allegedly did to the complainant when they met on the second occasion, again in a hotel room. The second charge was that the accused committed rape against the complainant and punishable under s 376(1) of the Penal Code at about 10.35 pm on 1 Jun 93 in room 1005 Strand Hotel, Singapore. The third charge was that the accused shortly after the alleged rape committed carnal intercourse against the order of nature and punishable under s 377 of the Penal Code with the complainant by forcing her to perform an act of fellatio on him at about 11.15 pm on 1 Jun 93 in the same hotel room.

The fourth and fifth charges arose out of what transpired between the accused and the complainant and what happened after they met each other on the third occasion. The fourth charge was that the accused committed extortion of the sum of $500 from the complainant and punishable under s 384 of the Penal Code by intentionally putting her in fear of sexual harassment between 7 and 8 Jul 93 and thereby inducing her to deliver the same sum to him on 8 Jul 93 at Fort Canning Park, Singapore. The fifth charge arose out of what the accused allegedly did to the complainant at the same place and in the same evening. He was charged with having committed carnal intercourse against the order of nature punishable under s 377 of the Penal Code with the complainant by forcing her to perform an act of fellatio on him at about 6.50 pm.

The sixth charge was that the accused committed extortion in the sum of $2,150 against the complainant and punishable under s 384 of the Penal Code by putting her in fear of sexual harassment between 11 and 12 Aug 93 and thereby inducing her to deliver the said sum to him on 12 Aug 93 at the carpark of Funan Centre, Hill Street, Singapore. This was the fourth occasion that they were face to face.

The next and the fifth occasion when they were face to face was on 1 Sep 93 in a hotel room 302, Balestier Hotel, Singapore. The prosecution's case was that on that day the accused extorted from the complainant, forced her to perform fellatio on him and therefore committed carnal intercourse against the order of nature, raped her and finally forced her to perform fellatio on him again having committed carnal intercourse against the order of nature. These matters gave rise to four charges and they were set out in the seventh to the tenth charges, both inclusive. The seventh charge was that the accused had committed extortion of the sum of $600 by intentionally putting her in fear of sexual harassment and thereby inducing her to deliver to him the said sum on the same day and in the same hotel room. The eighth charge was that at about 7.15 pm in the same hotel room he committed carnal intercourse against the complainant by forcing her to perform an act of fellatio on him. In the ninth charge, the accused was charged with having committed rape at about 7.20 pm in the same room on the same night. The tenth charge was that the accused committed the offence under s 377 of the Penal Code of having carnal intercourse against the order of nature by forcing the complainant to perform an act of fellatio on him at about 7.35 pm in the same hotel room and on the same night.

The eleventh charge was that the accused committed an offence under s 385 of the Penal Code. The prosecution charged that the accused at about 8.30 pm on 8 Sep 93 in a phone call which the complainant received at her home committed extortion of $10,000 by putting the complainant in fear of further sexual harassment unless she paid him the said sum for having allegedly inflicted injury to his penis. The accused denied entirely this charge.

The Legal Issues

In this trial, a question arose as to the circumstances under which the accused was alleged to have committed the two rapes. The relevant sections are ss 375 and 90(a) of the Penal Code. The relevant limbs under s. 375 provide that a man is said to commit"rape" who...has sexual intercourse with a woman....(a) against her will; (b) without her consent...". Section 90 provides that "(a) consent is not such consent as is intended by any section of this Code --(a) if the consent is given by a person under fear of injury, ..., and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;...". The directly relevant authority is Augustine Foong Boo Jang v PP [1990 ] 2 MLJ 225 where the defence, as raised in this case in defence of the two charges of rape, was one of consent.The appellant alleged that he had a continuing sexual relationship with the complainant, his Filipino employee and that the incident had taken place with her consent. He further argued that the inference of consent should be drawn from the complainant's lack of resistance. The Bruneian Court of Appeal held that there was a difference between consent and submission, and it was pointed out that while consent always import submission, submission on the other hand may not necessarily import consent. The court accordingly decided that on the facts, the appellant as her employer had established a position of dominance over the complainant, who depended on him financially, and in those circumstances it was concluded that in fact she had put up as much resistance as she could. In those circumstances the complainant could not be held to have consented to the act of sexual intercourse. This decision obviously drew on the English decision of R v Olugboja [1982] 1 QB 320, which construed the English Sexual Offences Act 1956.The relevant provision in that Act, though not in pari materia with our provisions, was not as a matter of construction on this aspect of the law of rape materially dissimilar to our provisions in the Penal Code. Olugboja is of persuasive authority. On the difference between "will" and "consent", Dr Sir Hari Singh Gour in Penal Code of India, 10th edn, para 5 at page 3227 is instructive. He stated that both refer to the act of the mind and both are functions of volition, but he pointed out that the legal concept of "consent" is susceptible of some variation in construction and may include a subsequent consent which the word "will" necessarily excludes. He points to the example of a woman in deep slumber on whom sexual intercourse was performed without her knowing. If, upon waking up, she agreed to the act of sexual intercourse continuing, the analysis is that at the point of penetration, it was against her will though she can be said to have consented to the subsequent sexual intercourse after her agreement.

The second legal issue raised in this trial was posed by learned counsel for the defence. They raised the question whether the voluntary insertion of the male penis into the mouth of a female with her consent falls within the term "carnal knowledge against the order of nature" in s 377 of the Penal Code. That section provides:-

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall be liable to a fine.

Counsel for the defence pointed out that the main objective of s 377 is to prohibit abnormal vices such as sodomy and bestiality. The purpose is to protect women, men (especially young boys) and animals from indecent assault of an unnatural nature. It was stressed that it was important to note that sodomy was made punishable by law at a time when such acts were practised between men. The section was enacted to punish such acts by imposing a penalty on both parties. Uniquely, consent did not decriminalise what was an offence; it did not constitute any defence as it is irrelevant. On the other hand, one ingredient is that an accused must have "voluntarily" committed the offending act. Learned counsel asked rhetorically whether it was the intention of the Legislature when enacting s 377 to prohibit fellatio between two consenting parties including fellatio performed between husbands and wives and whether a term of life imprisonment was intended for such an act as in the case of sodomy. That would have been the inescapable consequence if the counter submissions of the learned DPP were upheld.

Defence led clinical evidence and they established that the practice of fellatio and cunnilingus is widespread. Dr Atputharajah said that "(humans are exceptional among the mammals in that they abstain from oral activities because of social conditioning, more restrictions or exaggerated ideas of cleanliness..." In a...