Public Prosecutor v Tan Wai Luen

• Jurisdiction: Singapore
• Judge: Ong Chin Rhu
• Judgment Date: 26 May 2020
• Neutral Citation: [2020] SGDC 128
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. 914553 of 2018, Magistrate’s Appeals No 9066 of 2020
• Year: 2020
• Published date: 30 May 2020
• Hearing Date: 16 May 2019,15 May 2019,20 August 2019,22 January 2020,09 October 2019,07 February 2020,13 November 2019,06 March 2020
• Plaintiff Counsel: Deputy Public Prosecutor Kavita Uthrapathy (Attorney-General's Chambers)
• Defendant Counsel: Accused in person
• Subject Matter: Criminal Law,Offences
• Citation: [2020] SGDC 128

District Judge Ong Chin Rhu:

The Accused, Mr Tan Wai Luen, claimed trial to a charge under section 376(2)(a) punishable under section 376(3) of the Penal Code (Cap 224, Revised Edition 2008), for sexually penetrating the victim’s vagina with his finger without her consent.

The Accused was initially represented by counsel at the start of the trial. However, after the victim had completed her evidence and shortly before the commencement of the second tranche of the trial, counsel had applied to discharge himself from further acting for the Accused. The application was fixed for mention in Open Court. Having heard both counsel as well as the Accused, who stated that he had no objection, I granted the application for discharge. The Accused was therefore unrepresented for the remainder of the trial.

At the conclusion of the trial, I found the Accused guilty and convicted him on the charge. I sentenced the Accused to a term of 7 years and 4 months’ imprisonment and 4 strokes of the cane. The Accused being dissatisfied with his conviction and sentence has filed an appeal. He is on bail pending the hearing of his appeal.

I had provided brief oral grounds at the conclusion of the trial to explain some of my findings and my decision to convict the Accused. These were captured in the Transcripts for 22 January 2020 at pages 1 to 4. I had further provided brief oral grounds for my sentencing decision and these may be found in the Transcripts for 6 March 2020 at pages 1 to 7. I shall elaborate on my reasons for conviction and sentence in these grounds.

The charge and background facts

The details of the charge against the Accused were as follows:

You [...] are charged that you, on the 1st day of October 2016, sometime between 3pm and 4.47pm, at ‘Encore Muay Thai’ gym located at 452A Joo Chiat Road, Singapore, did sexually penetrate with your finger the vagina of [the victim], a female then aged 33 years old [DOB of the victim] without her consent, and you have thereby committed an offence under Section 376(2)(a), punishable under Section 376(3) of the Penal Code, Chapter 224, Revised Edition 2008.¹

The background facts and circumstances surrounding the alleged offence were largely undisputed at trial. In summary, the victim attended a Muay Thai trial session at Encore Muay Thai (“the Gym”) conducted by the Accused on the date of the alleged offence. The Gym was located at the second level of a shop-house at 452A Joo Chiat Road (as seen in Exhibits P1-1 to P1-9). The victim and the Accused did not know each other before that day. After the class concluded and the rest of the students had left, the Accused offered the victim a Thai massage. The Accused was not trained in Thai massage and Thai massage was not a service offered at the Gym. The Accused did proceed to perform a massage for the victim on the massage bed at the Gym (as seen in Exhibits P1-5 to P1-7) and had used a bottle of Ginvera olive oil (as seen in Exhibits P2-1 to P2-3) in the process.

The key issue in dispute between parties was whether the Accused had inserted his finger into the victim’s vagina in the course of the massage.

The case for the Prosecution

The Prosecution called four witnesses to prove their case against the Accused. Their evidence is summarised below.

Evidence of the victim

The victim testified that she was divorced with 2 young children.² At the time of the offence, she was working as a customer service officer.³ She first came to know of the Gym from an online link, and subsequently signed up via email for a free trial Muay Thai class and body analysis on 1 October 2016 at 12 pm.⁴

On 1 October 2016, it was raining heavily and the victim was stuck at a bus stop on her way to the Gym. As such, she sent a text message to notify the staff at the Gym that she would be late.⁵ At 12.15 pm, when the victim arrived at the Gym, the Accused introduced himself to the victim as “Ivan” and said that he was the instructor at the Gym for that day.⁶

The victim proceeded to change out of her black t-shirt and jeans into her exercise attire in the toilet.⁷ The Accused conducted a body analysis on the victim by measuring the victim’s weight, fat level and identifying her problem areas. Sometime during the body analysis, three Chinese ladies who were attending the same Muay Thai class as the victim came into the Gym.⁸

The class started about 12.30 pm to 12.45 pm, with two or three breaks of about five to ten minutes each.⁹ The victim went downstairs for two of these breaks to smoke, and saw the Accused also smoking downstairs on both occasions. During these breaks, the Accused asked the victim where she worked and shared that he was the founder of the Gym, while the victim asked him how old he was. The Accused also shared that he was divorced with two sons and that his ex-wife was Thai. The class eventually ended between 2.30 pm to 3.00 pm.¹⁰

After the class, the victim changed out of her exercise attire and into her black t-shirt and jeans. When the victim came out of the toilet, the Accused was seated at the dining table (seen in Exhibit P1-5) with a cup of ‘kopi-o.’ The Accused explained that the ‘kopi-o’ would help her break down the fats faster, after the exercise. From this point onwards, the victim did not see the three Chinese ladies who attended the class with her, and surmised that they had left the Gym.¹¹

At the dining table, the Accused tried to sell a package to the victim to join the Gym and showed her a price list. The victim told the Accused “no” because although she was interested in martial arts, she was still trying to find out what was the best for her. However, as the victim saw Thai massage listed in the price list, she asked the Accused, “So you have a thai massage here?” The Accused said “yes” and indicated that he was the only one trained to perform Thai massage.¹² The Accused told the victim that since she was already at the Gym for the free trial, he would add in the free Thai massage as well. The victim accepted the offer because it was free.¹³ She explained she agreed to have the Accused massage her because she trusted him¹⁴, and thought he was trained and would know the places to avoid on a woman’s body.¹⁵

As instructed by the Accused, the victim proceeded to the massage area behind the curtain (Exhibit P1-5) and drew the curtain before removing all her clothes except her panties. She then lay face-down on the massage table (Exhibit P1-5) with her face positioned in a hole in the massage table (Exhibit P1-6). She was wearing only her panties and had covered her back with a towel which was on the massage table.¹⁶ The victim then told the Accused “I’m okay.” When the Accused came into the massage area, the victim turned around to ensure that it was him. The Accused then switched off the lights in the area.¹⁷ Although it was quite dim, the victim was able to see because there was some sunlight streaming in.¹⁸ Before beginning the massage, the Accused also shifted the massage table by slanting it so that he could move along both sides of the table.¹⁹

The massage started at about 3.15 pm to 3.20 pm. The Accused rubbed his hands with oil from a bottle of Ginvera olive oil (Exhibit P2-1) and shifted the towel over the victim’s body to the top of her back.²⁰ He then massaged the victim’s calf, then her thigh, her back, her calf again and then her inner thigh.²¹

The victim gave evidence that when the Accused first massaged her inner thigh area near the vagina, she felt very uncomfortable and shifted her body to indicate this to the Accused. The Accused responded by moving back to massaging the victim’s calf. During cross-examination, the victim testified that at this point, the towel was covering her buttocks.²²

However, soon thereafter, the Accused moved his hands up to the victim’s thigh area, quickly into the inner thigh, inserted a finger under the victim’s panties and into her vagina.²³ The victim testified that she was not sure how many fingers he inserted but she felt the texture of a fingernail being put into her vagina.²⁴ The victim also explained that she was certain the Accused had inserted a finger into her vagina as she had experienced the same during her marriage to her ex-husband.²⁵ She estimated that the Accused had inserted his finger up to the first joint from the finger-tip, to a depth of about 2.5cm into her vagina.²⁶ The victim immediately turned around and shouted “oi” at the Accused. He then removed his finger while showing the victim a straight face. The victim explained that she shouted at the Accused as he had done a “very wrong thing” but the Accused acted as if he did not do anything wrong and did not say anything to her. At that moment, the victim felt angry, upset and violated because he had broken the trust she placed in him when she agreed to the massage.²⁷

Thereafter, the Accused continued with the massage. He asked the victim to flip over to the front, and massaged her shoulders and legs for the next 10 to 15 minutes. The victim stated that she carried on with the massage because she was naked and the Accused was a Muay Thai instructor, and that anything could have happened if she resisted. She observed that there were only two of them in the Gym, and if she were to get up and leave, she would still need to clothe herself as she was naked. She was concerned that during the period in between, the Accused could take advantage of her or would hit or rape her.²⁸

The victim estimated that the whole massage lasted one to one-and-a-half hours. After the Accused finished the massage and walked out of the massage area, the victim quickly changed into her black t-shirt and jeans, took her bag and left the Gym.²⁹ When she went downstairs to exit the Gym, she realised that the main door to shop-house where the Gym was located (Exhibit P1-1) was locked from the inside.³⁰ She unlocked the door and left the Gym. The victim suspected that...