Public Prosecutor v Toh Lam Seng

• Jurisdiction: Singapore
• Judge: Janet Wang
• Judgment Date: 06 December 2023
• Neutral Citation: [2023] SGDC 294
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 909726 of 2021
• Hearing Date: 01 June 2022,02 June 2022,03 June 2022,27 June 2022,25 January 2023,27 January 2023,30 January 2023,31 January 2023,20 February 2023,21 February 2023,12 May 2023,20 June 2023,07 July 2023,28 September 2023
• Citation: [2023] SGDC 294
• Year: 2023
• Plaintiff Counsel: Chong Kee En and Sarah Siaw (Attorney-General's Chambers)
• Defendant Counsel: Chooi Jing Yen and Chen Yongxin (Law Society Pro Bono Services, CLAS)
• Subject Matter: Criminal Law,Offences,Sexual offences,Outrage of modesty
• Published date: 14 December 2023

District Judge Janet Wang: Introduction

For nearly two years until 22 June 2020, the victim, a 13-year old student, was a frequent visitor to a pet shop located in the vicinity of her residence. The accused was working at the pet shop that was owned by his wife. The visits culminated in an incident in the pet shop involving an offence of outrage of modesty for which the accused was charged.

The accused, a 52-year-old male Singaporean, faced a single charge under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) for using criminal force on the victim with the intention to outrage her modesty. The accused claimed trial to the charge. He denied the victim’s allegations. At the conclusion of the trial, I convicted the accused.¹

I now set out my full grounds for the conviction.

The Charge

The charge was as follows:

DAC 909726 of 2021

You… are charged that you, on 22 June 2020, at or about 4:00pm, at X location, Singapore, did use criminal force on PW9 (female, then 13 years old), with the intention to outrage her modesty, to wit, by placing your hand on her left shoulder and moving it down to touch her left upper arm, left breast, hip area and inner thigh area, and you have thereby committed an offence punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed).

Background

In the week preceding the commencement of the trial, a new revelation was brought to the attention of the police and the prosecution. Aside from the allegation of molestation as set out in the present charge, the victim informed the police that the accused had fingered her.

At the outset of the trial, the prosecution informed the court of its position to maintain and proceed on the present charge as particularised. The prosecution acknowledged the possibility of unfairness that might occasion to the accused by the amendment of the charge to one of a more serious nature with a higher prescribed statutory punishment one day prior to the commencement of the trial.² The prosecution highlighted other considerations including the challenge of securing the victim’s attendance and the risk of potential trauma to the victim arising from further delays in the proceedings.

At the close of the prosecution’s case, the prosecution declined to amend the charge to reflect the act of the digital penetration. The prosecution also declined to amend the charge to one involving sexual assault by penetration of a minor under section 376(2)(a) punishable under section 376(4)(b) of the Penal Code (Cap 224, 2008 Rev Ed). It was the prosecution’s position to maintain the present charge of outrage of modesty as proceeded.³

At the close of the defence, the prosecution reiterated that it was not inviting the court to amend the charge, namely, in the particulars. The prosecution further indicated that it was not inviting the court to make a finding in respect of the allegation of fingering. Neither did the prosecution seek an amendment of the charge to one of a more serious nature involving sexual assault by penetration.⁴

The Prosecution’s Case

It was largely undisputed that the victim had twice visited the pet shop where the accused worked on the day of the incident. The victim kept a pet hamster. The purpose of her visits on that fateful day was to purchase some powder to treat her hamster’s skin condition. On her first visit to the shop, the victim was told by the accused to bring her hamster down. The alleged incident of molest took place in the shop when the victim returned on the second occasion with her hamster.

Apart from the victim, the prosecution presented evidence from the victim’s mother, classmates, schoolmate, teacher and police officers, as well as the psychiatrist from the Child Guidance Clinic. I now set out the salient aspects of their evidence.

Evidence of the victim, PW9

The victim, PW9, was a 13-year old secondary two student at a school in the vicinity of her home. In 2019, she started visiting the pet shop after school to play with the hamsters. The victim testified that the accused allowed her to play with the hamsters without asking her to make a purchase. The victim bought a hamster from the pet shop in the middle of 2020. According to the victim, her mother, PW8 , did not feel right about her visits to the pet shop.

The victim testified that she visited the pet shop after she bought groceries for her mother, PW8, as her pet hamster had an irritable skin condition causing itch. The victim was told by the accused that it would be better if she brought down her hamster to the shop. Shortly after she went home with the groceries, the victim returned to the pet shop with her hamster.

On the second visit, the victim testified that a Malay lady customer was in the shop when she entered.⁵ It was also her evidence that the accused was outside the pet shop talking to someone.⁶

While the victim was in the shop, one of two birds that were flying around landed on her shoulder. The victim shared that she was not afraid of birds and hence, did not react to the bird on her shoulder. The victim faintly recalled that the Malay lady customer laughed at the sight. The bird then stayed on her shoulder for a while before flying away into the cage.⁷ In cross-examination, the victim disagreed with the defence that a bird landed on her left shoulder while she was playing with the hamsters on the floor.⁸ She emphatically denied that the first time the accused had touched her was when he flicked the bird away from her shoulder.⁹ The victim rejected the defence assertion that the accused did not touch her anywhere else, apart from brushing her shoulder to chase away the bird.¹⁰ Subsequently, the Malay lady customer made a purchase and left the shop. ¹¹

The victim testified that the accused demonstrated how to use the product on her hamster. After conversing with her mother over the telephone, the victim did not purchase the product. As she was about to leave the shop, the accused stopped her and asked whether she would like to see his new hamster. ¹² She accepted his offer and sat on a white stool in the corner of the shop behind a white cage.¹³

Subsequently, the accused returned with the baby hamster, which he passed to the victim. The victim was holding her hamster, Fatty, in her right hand, and the accused’s baby hamster in her left.

According to the victim, the accused was seated in front of her on a grey stool.¹⁴ The victim told the court that while she was looking at the baby hamster in her hand and wondering why it was not fidgeting, the accused placed his hand on her knee for a few seconds before moving onto her shoulder. The accused placed his hand and rubbed it on her left shoulder for a few seconds before moving to the top of her left arm.¹⁵ He next moved his hand from the victim’s left arm to the top of her chest and slightly touched her breasts.¹⁶ According to the victim, the touches pertaining to the top of her left arm and her chest were “quite fast” and involved a few seconds.¹⁷

The victim described the accused’s act of slightly touching her breasts as a brush against her chest.¹⁸ As the accused’s hand was placed on her chest only for a split-second, the victim was not certain whether it was accidental or intentional. While there was no grabbing, the victim did not think that the brush against her chest was accidental.¹⁹

The victim shared that when the accused touched the top of her chest, she froze in shock as it was the first time that such a thing had happened to her.²⁰ After touching her chest, the accused moved his hand to her stomach, which the victim clarified to be near her sides.²¹

In court, the victim demonstrated using her hand that was placed on the side of her body, namely, her waist area, to make a downward movement along the side of her body.²² After touching the side of her body, the accused proceeded to touch her left thigh and left inner thigh.²³

The victim testified that the accused’s hand then slipped into her shorts through an opening on the sides.²⁴ It was her evidence that the accused’s hand then went under her underwear and he started to rub her clitoris for a few seconds.²⁵ Thereafter, the accused inserted one or two of his fingers into her vagina and moved them upwards and downwards.²⁶ The victim felt pain. She described herself as “frozen” at the material time and was at a loss on what she could have done.²⁷ When she came to and gathered her thoughts, the victim extricated herself from the accused’s assault by telling him that she needed to go home. In response, the accused told her that she should stay for a while longer.²⁸ However, the victim insisted on going home and pushed back her stool. As she pushed back her stool, the accused’s fingers came out. The victim then left the shop with her hamster.²⁹

After leaving the pet shop, the victim testified that she was still in shock over the incident and was pacing around in the vicinity of the 7-Eleven convenience store and the letter box, trying to comprehend what happened and to collect her thoughts.³⁰ She immediately contacted her friends, namely, PW1 and PW5 as she felt the need to talk to someone about the incident.

She first called PW1, who was staying in the vicinity. The victim thought it would be easier if she wanted to see her. The victim also felt close to PW1 at the material time. When PW1 did not respond to her call, the victim followed up with a text message requesting her to answer her call.³¹ According to the victim, she needed to talk to someone about the incident and she would rather not do it by text.³²

When PW1 subsequently answered her call, the victim informed her that the accused had touched her inappropriately.³³ She further told PW1 that the accused had touched her on her shoulder, chest, side, thigh and inner thigh.³⁴ The victim explained that she was unable to remember the specific words she used as it was three years ago and her memory was not good.³⁵...