Public Prosecutor v Teo Eng Chan and Others

• Jurisdiction: Singapore
• Judgment Date: 03 November 1987
• Date: 03 November 1987
• Docket Number: Criminal Case No 30 of 1986
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Teo Eng Chan and others

Defendant

[1987] SGHC 57

P Coomaraswamy J

Criminal Case No 30 of 1986

High Court

Criminal Law–Offences–Rape–Sexual Intercourse–Reasonable belief that woman consented–Not defence under Penal Code (Cap 224, 1985 Rev Ed)–Mistake of fact in minds of accused persons when they presumed victim consented–Whether accused persons put victim in fear of hurt to herself–Sections 79, 375, 376 (1) and 376 (2) Penal Code (Cap 224, 1985 Rev Ed)–Evidence–Admissibility of evidence–Whether evidence prejudicial to one accused tendered by co-accused allowed–Section 56 Evidence Act (Cap 5, 1970 Rev Ed)–Evidence–Witnesses–Corroboration–Sexual offence–Rape–Evidence by alleged victim–Whether corroboration required–Sections 8 (2) and 159 Evidence Act (Cap 5, 1970 Rev Ed)

The four accused persons, Teo, Sim, Ng and Yap, were each charged with aggravated rape of a girl (“the victim”) aged 16 years and ten months on 4 September 1985 under s 376 (2) of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”). Each of them admitted to having sexual intercourse with the victim. Each of them argued that the victim consented to sexual intercourse, but if she did not, they had reasonable cause to believe that she consented.

Held, convicting three accused persons of aggravated rape and one accused of simple rape:

(1) The court allowed evidence prejudicial to one accused to be tendered by a co-accused as it was essential to the defence of the accused tendering the evidence. Justice required that the interests of Teo's three co-accused overrode that of Teo. Further, the interest of Teo could be preserved and justice done by the exclusion from the judge's mind of this evidence in so far as it went to show disposition or propensity on Teo's part: at [6], [8] and [9].

(2) The victim did not consent within the meaning of s 90 (a) of the Penal Code to any of the four accused persons having sexual intercourse with her in the cabin of the lorry at the quarry. The surrounding circumstances showed that she was extremely unlikely to have consented. If she appeared to any one of the accused to consent, that consent was negatived by fear of injury to mind, if not to body. There was no consent as required by the provisions of the Penal Code: at [16], [17], [18], [19] and [21].

(3) The burden of proof for mistake of fact under s 79 of the Penal Code was upon the accused. In view of s 79, read with s 52 of the Penal Code, the decision in Director of Public Prosecutions v Morgan [1976] AC 182 (where by a majority, the House of Lords held that if an accused in fact believed that the victim had consented, he could not be found guilty of rape, whether or not that belief was based on reasonable grounds) does not apply in Singapore. The quantum of proof with which the burden under s 79 was to be discharged was on a balance of probabilities and not beyond a reasonable doubt. None of the accused persons had rebutted the presumption of the absence of circumstances enabling him to bring himself within the exception under s 79 of the Penal Code. None of them in his respective claimed belief that the victim consented, in good faith believed that she consented to his having sexual intercourse with her. If any of them held that belief, he did so without due care and attention: at [16], [22], [23], [24], [26] to [28].

(4) The law on corroboration is contained in s 159 of the Evidence Act (Cap 5, 1970 Rev Ed). On the two issues of consent and fear of hurt, the victim's evidence was more than adequately corroborated. Her statement to Dr Chua and her use of the Mandarin equivalent of the words “gang rape” in that statement within 14 hours after the events were adequate corroboration. The number of hours was not by itself important. The victim's complaint was made as speedily as could reasonably in the circumstances be expected of her: at [30] and [32].

(5) The victim made a police report which was recorded in the diary at Tanglin Police Station on 5 September 1985. Under s 159 of the Evidence Act, this was not subject to any time constraint and was equally a corroboration of Kay's evidence. The conversations of Teo, Ng and Yap in the presence of the others which said that the victim screamed and cried, struggled and showed a little resistance also constituted corroboration as against these three accused persons though not against Sim: at [31], [37] and [38].

(6) Teo, Sim and Ng each put the victim in fear of hurt by their various respective utterances immediately prior to each having, without her consent, sexual intercourse with her. The victim did not regard anything that Yap said as inducing a fear of hurt. Teo, Sim and Ng were guilty of aggravated rape under s 376 (2) of the Penal Code. Yap was guilty of simple rape under s 375 of the Penal Code read with s 376 (1): at [41] to [43].

Chiu Nang Hong v PP [1965] 1 MLJ 40; [1964] 1 WLR 1279 (folld)

Christopher Russell Lowery v R [1974] AC 85 (folld)

Director of Public Prosecutions v Morgan [1976] AC 182 (not folld)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73; [1982] AC 136 (refd)

PP v Zainal Abidin bin Ismail [1987] 2 MLJ 741 (not folld)

R v Cummings [1948] 1 All ER 551; (1948) 92 Sol Jo 284 (folld)

R v Miller [1952] 2 All ER 667 (folld)

Evidence Act (Cap 5,1970 Rev Ed)ss 8 (2), 56, 159 (consd);s 107

Penal Code (Cap 224,1985 Rev Ed)ss 79, 375, 376 (1), 376 (2) (consd);ss 26, 44,52, 90 (a),319

Penal Code (Brunei) s 375

Ang Sin Teck (Deputy Public Prosecutor) for the Prosecution

First accused in person

Chellapan Joseph (C Joseph) for the second accused

Peter Cuthbert Low (S K Chua & Peter Low) for the third accused

Joe Chellam (Joe Chellam) for the fourth accused

R Pala Krishnan and Wee Pan Lee as amici curiae.

Judgment reserved.

P Coomaraswamy J

1 At the start of the trial, each of you consented to being jointly tried with the other three on the charges respectively against each. The charges against the four of you relate to events on 4 September 1985, and involved the girl who at that time was 16 years and ten months. Each of you know who she is. For today's purposes, I will refer to her as “Kay”.

2 Each of the four accused is charged in identical terms that “ [you] on or about 4 September 1985 between 8.30pm and 9.10pm at the site of Singapore Granite Quarries Ltd, Chia Eng Say Road, Singapore, committed rape on Kay having put her in fear of hurt to herself and you have thereby committed an offence punishable under s 376 (2) of the Penal Code … Chapter 224 of the...