Public Prosecutor v Tan Kok Leong

• Jurisdiction: Singapore
• Judge: Siva Shanmugam
• Judgment Date: 30 November 2016
• Neutral Citation: [2016] SGDC 327
• Court: District Court (Singapore)
• Docket Number: DAC-919037-2014 & Others, Magistrate’s Appeal No MA-9148-2016-01, Magistrate’s Appeal No MA-9171-2016-01/02
• Year: 2016
• Published date: 07 December 2016
• Hearing Date: 18 February 2016,23 February 2016,28 July 2016,20 August 2015,11 March 2016,19 January 2016,18 January 2016,22 February 2016,12 July 2016,20 January 2016,15 January 2016,19 August 2015,03 August 2016,26 May 2016,14 January 2016,23 June 2016,17 February 2016,06 May 2016,16 February 2016,18 August 2015,19 February 2016,24 February 2016,21 January 2016,22 January 2016,10 November 2016,21 August 2015
• Plaintiff Counsel: Alan Loh and Thiagesh Sukumaran
• Defendant Counsel: Edmond Pereira
• Citation: [2016] SGDC 327

District Judge Siva Shanmugam:

The accused, claimed trial to 3 counts of outraging the modesty of one male person (“the victim”) under Section 354(1) of the Penal Code and 2 counts of administering stupefying drugs to the victim in order to outrage his modesty under Section 328 of the Penal Code, Chapter 224.

At the close of the trial he was acquitted on DAC 919812/2014, the first charge under Section 354(1) of the Penal Code. He was convicted and sentenced on the remaining charges to a global sentence of 42 months imprisonment. The prosecution has filed a notice of appeal against the acquittal on DAC 919812/2014 and the sentences imposed on the convicted charges. The accused has filed a notice of appeal against the convictions on the charges and the respective sentences imposed.

UNDISPUTED FACTS

Parties tendered an Agreed Statement of Facts which reads as follows: “1 The accused is Tan Kok Leong, male/49 years old, bearing NRIC No. xxx, Singapore citizen.

Background Facts

2 The complainant is the victim, bearing Malaysian Passport No: xxx. He is currently employed as a medical doctor.

First Information Report

3 On the 13th of August 2013, the complainant made a police report at Ang Mo Kio Police Division, informing the police that he had been molested by the accused.

Agreed Facts in Relation to DAC 919307-38/2014 and DAC 919812-14/2014

4 The accused is a medical doctor and was a partner at the medical practice known as Life Source Medical Practice (“Life Source”), located at No 10 Sinaran Drive #11-16, Singapore. He is a doctor specializing in aesthetic medicine. 5 The accused performed liposuction procedures on the complainant on the 6th of June 2013 and the 5th of July 2013. Both procedures were performed at Life Source’s premises. 6 Sometime before the liposuction procedure on 5th July 2013, the complainant sent a WhatsApp message to the accused, stating that “then I have no choice but to surrender my little curved brother for injection.” 7 After the liposuction procedure on the 5th of July 2013, the accused told the complainant that he had booked a hotel room for the complainant to recuperate from his procedure. Thereafter they proceeded to Oasia Hotel, located at 8 Sinaran Drive. 8 At about 11 pm that evening, while in the hotel room, the accused told the complainant that he would be administering Dormicum, a stupefying drug and Rosiden, a painkiller. The accused thereafter administered Dormicum and Rosiden intravenously. 9 The accused, sometime that evening after administering Dormicum and Rosiden, pulled down the complainant’s shorts and thereafter took photographs of the complainant’s penis and genital area. Photographs were taken of the accused holding and pressing down the complainant’s penis. Photographs were also taken of the complainant in a half-naked state. 10 The accused and the complainant continued to stay at Oasia Hotel on the 6th of July 2013. 11 That evening, the accused administered Dormicum and Rosiden to the complainant intravenously. Sometime that evening after administering Dormicum and Rosiden, the accused pulled down the complainant’s shorts and took photographs of the complainant’s penis and genital area. Photographs were taken of the accused holding and pressing down the complainant’s penis. Photographs were also taken of the complainant in a half-naked state. 12 On the 7th of July 2013, the complainant and the accused left Singapore for Johor Bahru. They returned to Singapore on the morning of the 8th of July 2013 and checked out of the hotel later that morning. During their stay at Oasia Hotel on the 5th and 6th of July 2013, the accused did not show the complainant any of the photographs he had taken of the complainant’s penis, genital area or photographs of the accused holding and pressing the complainant’s penis and the complainant in a half-naked state.” CASE FOR THE PROSECUTION DAC 919812-2014

The accused performed a liposuction on the 6th of June 2013 on the victim at Life Source premises. The victim attended Life Source with his then fiancée’ ‘S’. The prosecution’s case was that the accused placed his hand under the surgical drapes that were covering the victim during the liposuction procedure and touched his genital area.

PW5 Bong Chai Pin (“Chai Pin”), was a clinic assistant who assisted in the liposuction. Her role was to process fat that was extracted during the liposuction into stem cells. The accused had administered anaesthetic to the victim and there was a brief waiting period before the anaesthetic took effect. During this waiting period, Chai Pin saw the accused place his hand under the surgical drapes that were covering the victim’s penile region. She testified that she had seen the accused touching the victim’s private part and that the accused’s hand was moving up and down. Chai Pin also added that at that time, ‘S’ was in the room administering nose fillers into the victim’s nose and had not noticed what the accused had done. Chai Pin also testified that when the accused’s hand was under the surgical drapes, he was looking towards another room which was adjacent to the operating room.

PW 6 Giam Hwee Luan Peggy (“Peggy”) was the accused’s scrub during the first liposuction. She corroborated Chai Pin’s testimony. She testified that during the waiting period after the accused had administered anaesthetic to the victim she saw the accused’s hand below the blue drape touching the victim’s organ. She had seen the accused’s hand moving. She claimed that the drape was a very light sheet and the accused’s actions could be seen clearly. She added that the drape was moving up and down. Peggy also testified that ‘S’, who was the only other person in the room at the time, was focused on the victim’s nose and was not paying attention to what the accused was doing. Peggy had an exchange with Chai Pin over the alleged incident after the liposuction.

DAC 919813-4/2015

It is not in dispute that the victim was sedated and asleep when the photographs in P-9 were taken by the accused using his mobile phone. The accused had removed the victim’s shorts and underwear in order to take these pictures. The photographic evidence before the court showed the accused touching and handling the victim’s penis whilst the victim was unconscious and sedated on 5th and 6th of July 2013 at Oasia Hotel (see P9-7 to P9-27). The accused did not deny doing the same.

The prosecution submitted that even where the accused’s hands are not shown touching the victim’s penis in the photographs (“P9 7-10, P9 12-13, P9-17, P9 21-22 and P9-24”), the accused would have had to manipulate the victim’s penis physically in order to take those photographs as the accused would have had to touch the victim’s penis in order to change its position for the photographs. It was submitted that the photographs in P-9 could not have been taken for clinical purposes as the majority of the photographs in P-9 do not show any penis curvature. The consensus amongst the experts who testified before the court was that most of the photographs in P-9 would not serve a clinical purpose because of the position the victim was in when the photographs were taken. PW9 A/Professor Lim Thian Chye (“Professor Lim”) testified that in order to properly document a curved penis, the patient would have to be standing up as opposed to lying down. Professor Lim stated that it would not be possible to tell whether the “curvature bias” was to one side or another if a patient was lying down¹. Professor Lim testified that the photographs were not clinical, adding during cross-examination that the photographs would not give information on how a curvature could be treated. Professor Lim’s expert testimony was accepted by the accused’s own expert witness, DW 9 Dr Chew Khek Kah (“Dr Chew”). Dr Chew testified that it would be difficult to properly document a curved penis whilst a patient was lying down because of the biasness of the position and because the possibility of a flaccid penis could not be discounted². Dr Chew also stated in his expert report (“D-21”) as well as in his testimony, that only two photographs, P9-11 and P9-16 showed some evidence of the penis being curved.

It was also submitted that the photographs were not taken for clinical purposes as they were taken without the victim’s knowledge and when he was sedated. In order to take the photographs on 5th and 6th July 2013, the accused had to physically remove the victim’s shorts and underwear, take the photographs, and then clothe the victim again. The accused did not disclose the fact that he had photographed the victim or show the victim the photographs taken. The accused also did not use any gloves when handling the victim’s genitals on both the 5th and 6th of July 20013.

The prosecution also refuted the Defence’s claim that the victim had consented to a penile augmentation that was to be performed by the accused by sending him the WhatsApp message. It was submitted that the message could not amount to “informed consent” for a penis augmentation or to justify the taking of the photographs in P-9, as “before” pictures.

DAC 919037-38/2014

It is not in dispute that the accused administered stupefying drugs to the victim on the 5th and 6th of July 2013 at Oasia Hotel. It was the prosecution’s case that the accused administered the stupefying drugs with the intent of committing an offence of outrage of modesty. Evidence was led from the victim to show that he did not want to be sedated on the 5th and 6th of July 2013. The victim had asked the accused to go home and had indicated to him that he was fine by himself at the hotel. The accused however insisted on staying the night and persisted in sedating the victim³.

Professor Lim had rendered an expert report (“P-25”) stating that the sedation of patients should be done judiciously and...