Public Prosecutor v Terence Leong Yew Wei

• Jurisdiction: Singapore
• Judge: Ng Peng Hong
• Judgment Date: 06 March 2014
• Neutral Citation: [2014] SGDC 86
• Court: District Court (Singapore)
• Docket Number: DAC 4691-2/12
• Published date: 28 March 2014
• Year: 2014
• Hearing Date: 06 March 2014
• Plaintiff Counsel: DPP Ms Elizabeth Chua
• Defendant Counsel: DC Mr Surian Sidambaran
• Citation: [2014] SGDC 86

District Judge Ng Peng Hong: The charges

The Accused claims trial to the following 2 charges:

DAC 4691 OF 2012 (“C1A”) “That you, on the 27th day of September 2010, at or about the 12pm, in the toilet of Remand Cell One, Singapore Boys’ Home, Singapore, did cause one B (Male/18 years old) to sexually penetrate his anus with the tip of a pair of spectacles, without his consent, and you have thereby committed an offence under Section 376(2)(c) punishable under Section 376 (3) of the Penal Code (Chapter 224,2008 Revised Edition)”

DAC 4692 OF 2012 (“C2A”) “That you, on the 27th day of September 2010, at or about the 7.30pm, in the toilet of Remand Cell One, Singapore Boy’s Home, Singapore, did cause one B (Male/18 years old) to sexually penetrate his anus with a straw, without his consent, and you have thereby committed an offence under Section 376(2)(c) punishable under Section 376(3) of the Penal Code (Chapter 224, 2008 Revised Edition).”

Counsel for the Accused confirmed that the defence has no objection to the joint trial and that the Accused has consented for the trial in the District Court.

Agreed Facts

The parties have agreed to the following facts. The Accused was 16 years old at the time of the alleged offences and was remanded at the Singapore Boys’ Home.(“SBH”)

The complainant (PW1) was also 16 years of age at the time of the alleged offences and was remanded at the SBH.

The Accused and the complainant, together with 4 of the Prosecution’s witnesses (namely PW3, PW5, PW7 and PW8) were remanded at Remand Cell One at the SBH at the material time. On 28th of September 2010, the complainant was transferred to Remand Cell Three.

The Accused had constantly taunted and bullied the complainant during his stay in Remand Cell One.

In October 2010, one of the inmates of SBH, Mohamed Syawal (PW6) informed a CISCO officer that the Accused had bullied him. PW 2, a rehabilitation officer with the SBH, had also been notified.

On or about the 6th of October 2010, the complainant was brought to National University Hospital, Singapore and was examined by Dr Tan Bee Kun Liza and a medical report dated the 15th of November 2010 was issued. This medical report was admitted as P13

On the same day the complainant lodged a police report at the National University Hospital stating that “On 27th of September 2010 at about 1230 hours, I was sexually assaulted by my dorm mate at Singapore Boys Home”. The police report was admitted and marked as P10.

Prosecution’s case

The Prosecution called 8 witnesses. The main witness for the Prosecution is the complainant B (PW1). PW1 is also known as B. A summary of the prosecution’s case is as follows.

On 27 September 2010 while the Accused and PW1 were in remand cell one, SBH, the Accused kept teasing PW1. PW1 asked him to stop disturbing him. Accused agreed to stop if PW1 followed what he said. PW1 complied as he was afraid of him.

PW1 was afraid of the Accused as he looked ferocious and had tattoos on his body.

Accused asked PW1 to scold someone’s mother. He also asked PW1 to insert an object into his anus - by means of a pair of spectacles, a piece of wooden block (Jenga block), a straw and using his (PW1’s) own finger. PW1 complied on 2 incidents-the insertion of a straw and the tip of a pair of spectacles into his own anus. The insertions took place in the toilet of remand cell one, SBH.

PW1 feared the Accused might tease, beat or scold him. But he confirmed that the Accused did not beat him. The Accused told PW1 to insert his own pair of spectacles into his anus and PW1 followed him to the toilet to do so. No one else was in the toilet. PW1 then inserted the tip of his spectacles into his anus and removed it after the Accused had walked out. He dare not removed it when he was around even though it was painful. PW1 did not walk away nor complain to anyone at that moment.

On the same day during dinner, the Accused asked PW1 to keep a drinking straw. Thereafter, while in the toilet of the remand cell one, the Accused told him to insert the straw into the anus. He claimed it was painful. And PW1did so out of fear and hope that the Accused would not disturb him anymore.

On 28 September 2010, PW1 was transferred to remand cell three. On 5 Oct 2010, the rehabilitation officer of SBH, Mr Fathullah (PW2) spoke to PW1. PW2 told him that someone had informed him about the incident and wanted to know the truth. PW1 then disclosed that it was the Accused who had told him to insert those objects into his anus. The next day (6 Oct 2010), PW1 went to National University Hospital for medical examination. At the hospital, PW1 lodged a police report –exhibit P10. His medical report is admitted and marked as P13.

Other witnesses were also called to support PW1’s evidence. Their evidence will be elaborated later.

Case for the Defence

No submission was made by the Defence at the close of the case for the Prosecution. The Accused elected to give evidence in his defence. The Defence did not call any other witness. Briefly the Defence’s case is as follows. At the material time, the Accused and PW1 were fellow inmates of remand cell one, SBH. The Accused’s relationship with PW1 was not bad. They were on talking terms and played together. The Accused was a playful person who liked to make fun and crack jokes. He related to the inmates about the boys poking the anus of new comers. PW1 asked what the feeling was like. In reply, the Accused jokingly asked him to try it by himself. PW1 then went to the toilet with the Accused where PW1 was to insert the rear tip of the spectacles into his own anus. The Accused did not force him to do so. But he did tell him jokingly to do so if he wanted to. The other inmates knew about it and laughed over it.

On the same day during dinner, one Malay inmate asked the PW1 to insert a straw into his own anus. After eating, PW1 went to the toilet to insert the straw into his anus. The Accused called the other inmates to see and they had a good laugh.

In short, the Accused did not force or threaten or compel PW1 to insert the straw or the tip of spectacles into his own anus. But he did jokingly mention to PW1 about inserting foreign objects into his anus. However, it did not occur to the Accused that PW1 would do it.

Issues in contention

I agree with the Defence and the Prosecution that the key elements in Section 376 (2) (c ) of the Penal Code which the Prosecution has to be prove beyond a reasonable doubt are as follows: That PW1 had penetrated his anus with the objects (the tip of the spectacles and the straw) That the penetration by the objects was sexual in nature That the Accused had caused PW1 to penetrate his anus with the objects That PW1 did not consent to the sexual penetration. I will now examine these key issues in turn.

Whether PW1 had penetrated his anus with the objects

Section 377C (a) of the Penal Code defines penetration as a continuing act from entry to withdrawal. It is clear that there has to be entry of the tip of the spectacles and or the straw into the anus for there to be penetration. It must also be a continuing act. The mere placing of the object near the anus without inserting it into the anus would not constitute penetration.

In my view, the Prosecution has failed to prove beyond a reasonable doubt that there was anal penetration by the tip of the spectacles and or the straw. The pair of spectacles is marked as P11 and the photograph is marked P8. Unfortunately, no straw was tendered in court as exhibit. It was said to be a drinking straw. According to PW2 it was a Milo straw from the tetra packs given to the boys during dinner. PW1 said it was from a packet drink.

The Prosecution relied primarily on the oral testimony of PW1 to prove that there was penetration of the anus. I find his evidence on this aspect to be doubtful and not unusually convincing.

PW1’s evidence was that he felt pain when the objects were inserted and there were bleeding. He also alleged that there was bleeding when he passed motion the day before he was examined by the Doctor. However the anal examination by the doctor showed no internal or external injury. Despite PW1’s allegation that there was blood the day before he saw the doctor, “no blood old or new was noted”. See exhibit P13. Hence, there is no consistency in his evidence to the extrinsic evidence contained in P13.

I am mindful that the disclosure to PW2 about the incidents may be said to buttress PW1’s evidence on this issue but I note that this conversation took place a few days after the incidents and not immediately thereafter. I am of the view that PW1 had ample opportunity to complain to the officers of SBH about the incidents. I find that there is evidence to show that officers of SBH were patrolling the remand cells and were within easy reach of the inmates. Hence, complaining to the staff of SBH should be easy. See evidence of PW2. In any event, this is not the preferred kind of corroboration. See PP v XP [2008] 4SLR 686 at [29].

There is other evidence produced by the Prosecution to the effect that the penetration by the 2 objects was seen by the other inmates. However, PW3 admitted that his testimony in court was based on what he heard from the others and what he assumed and not based on what he saw.

PW5’s evidence was that he saw the spectacles dangling from PW1’s backside. But he did not see PW1 inserting the spectacles or straw into his own anus. He confirmed that he only saw these 2 objects after they had already been inserted.

PW6 also has no direct personal knowledge of the 2 incidents involving PW1. His evidence is therefore hearsay and not relevant.

PW7 could not remember substantially the material evidence despite given his statement to refresh his memory. The quality of his evidence is doubtful. The Prosecution has to apply under s147 (3) Evidence Act to admit his statement...