Public Prosecutor v Ullah Wali

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 18 November 2022
• Neutral Citation: [2022] SGDC 268
• Court: District Court (Singapore)
• Hearing Date: 07 December 2020,08 December 2020,09 December 2020,03 August 2021,04 August 2021,16 August 2021,17 August 2021,18 August 2021,19 August 2021,17 February 2022,18 February 2022,07 March 2022,10 May 2022,06 July 2022,25 August 2022,18 October 2022
• Docket Number: DAC 931781 of 2018 & Ors, Magistrate’s Appeal No. 9215/2022/01
• Plaintiff Counsel: Ms Chew Xin Ying, Ms Sruthi Boppana, Mr Tay Jia En, and Ms Yvonne Poon (Attorney-General Chambers)
• Defendant Counsel: Mr Dhanwant Singh, Mr Charles Yeo, Mr Foo Ho Chew and Mr Mohan Singh
• Subject Matter: Criminal Law,Statutory offences,Outrage of Modesty,Capacity to Consent,Sexual Assault by Penetration,Evidence,Victims incapable of giving evidence in court,Criminal Procedure and Sentencing,Sentencing
• Published date: 26 November 2022

District Judge Luke Tan: Introduction

The accused, a 37-year-old male Bangladeshi, was alleged to have committed sexual offences against two intellectually disabled female persons: V1, a then 39-year-old female; and V2, a then 27-year-old female. (collectively “the alleged victims”)

The offences were alleged to have occurred on two dates in November 2018. The accused faced a total of six charges as a result. These were: Four charges of outrage of modesty under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) involving V1; One charge of digital penetration under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed) involving V1; and One charge of outrage of modesty under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) involving V2.

A table setting out broad details of the 6 charges is set out below.¹

Charge No. and Offence	Outline of allegation
MAC-911920-2018 Outrage of Modesty s 354(1) Penal Code	On 18/11/2018, at around 8 pm, the accused outraged the modesty of V1 by kissing her cheek and lips, hugging her and touching her breasts and back.
MAC-904916-2019 Outrage of Modesty s 354(1) Penal Code	On 18/11/2018, at around 9 pm, the accused outraged the modesty of V1 by kissing her lips, hugging her and touching her breasts, back and thighs.
DAC-931781-2019 Outrage of Modesty s 354(1) Penal Code	On 24/11/2018, at around 5 pm, the accused outraged the modesty of V1 by touching her shoulders and face and kissing her cheeks and lips.
DAC-931782-2019 Outrage of Modesty s 354(1) Penal Code	On 24/11/2018, at around 7.30 pm, the accused outraged the modesty of V1 by kissing her left cheek and lips.
DAC-931783-2019 Sexual Assault by Penetration s 376(2)(a) p/u s 376(3) Penal Code	On 24/11/2018, sometime after 7.30 pm, the accused sexually penetrated with his two fingers the vagina of V1, without her consent.
DAC-931784-201 Outrage of Modesty s 354(1) Penal Code	On 24/11/2018, at around 5 pm, the accused outraged the modesty of V2 by hugging her, touching her shoulders, face, breasts and thighs and kissing her cheeks and lips.

The accused claimed trial to all six charges. With the consent of the Defence, the Prosecution proceeded on a joint trial against the accused.

In the course of the trial, the Prosecution produced medical reports put up by two psychiatrists from the Institute of Mental Health (“IMH”) who had separately examined the alleged victims. In those reports, the psychiatrists, PW6 Dr Chai Suet Bin (“Dr Chai”) who had examined V1, and PW2 Dr Joseph Leong Jern-Yi (“Dr Leong”) who had examined V2, had separately opined that the alleged victims are intellectually disabled (see P5, P6 and P7). Further, in the case of V1, Dr Chai had opined that V1 was not fit to testify in court, while for V2, Dr Leong had opined that that she was highly unlikely to be able to follow normal court proceedings due to her disability.

In the same reports, the examining psychiatrists had opined that the alleged victims did not have the capacity to consent to the sexual acts allegedly committed against them. Specifically: For V1, Dr Chai had opined at [19] of P7 that: “Based on my observation and findings, I am also of the opinion that she does not have the mental capacity to give consent to sexual acts.” For V2, Dr Leong had opined at [3] of P6 that: “Due to her significant impairments and deficits in language and speech, she is highly unlikely to appreciate the significance of sexual acts, much less give consent to sexual acts.”. He also stated at [4] of P6 that: “ In my opinion, [V2] does not have the mental capacity to give consent to sexual acts.”

At the end of the Prosecution’s case, as there was sufficient evidence to make out every element of the charges, I called on the accused to enter his defence. The accused chose to testify and was the only witness for the Defence.

After examining the notes of evidence (NE), the exhibits, and the detailed submissions from the Prosecution and the Defence, including the relevant propositions of law helpfully set out, as well as the cases and legislative provisions identified and applied by parties, I was of the view that there was sufficient evidence to prove the case against the accused beyond a reasonable doubt on all six charges, and I convicted him accordingly. Thereafter, following sentencing submissions from the Prosecution and the Defence’s mitigation plea, I imposed a global sentence of 9 years and 24 months’ imprisonment and eight strokes of the cane.

The accused, being dissatisfied, has filed an appeal against his conviction and sentence. He is serving his sentence pending the hearing of the appeal. I now give my detailed grounds of decision.

Elements of the Charges

The charges against the accused are reproduced below:

MAC-911920-2018 (1st charge): Involving V1

You…. are charged that you, on 18/11/2018, at around 8pm, at the open space outside McDonald’s at Woodlands Civic Centre, Singapore did use criminal force to one, [V1], Female 39 years old, to wit, by kissing her cheek and lips, hugging her and touching her breasts and back, knowing it to be likely that you will thereby outrage her modesty and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

MAC-904916-2019 (2nd charge): Involving V1

You…. are charged that you, on 18/11/2018, at around 9pm, at the steps in front of Blk 340 Woodlands Avenue 1, beside the carpark, Singapore did use criminal force to one, [V1], Female 39 years old, to wit, by kissing her lips, hugging her and touching her breasts, back and thighs, knowing it to be likely that you will thereby outrage her modesty and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-931781-2018 (3rd charge): Involving V1

You…. are charged that you, on 24/11/2018, at around 5pm, at the pavilion with benches in front of Block 243 Yishun Ring Road, Singapore, did use criminal force to one, [V1], Female 39 years old, to wit, by touching her shoulders and face and kissing her cheeks and lips, knowing it to be likely that you will thereby outrage her modesty and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-931782-2018 (4th charge): Involving V1

You…. are charged that you, on 24/11/2018, at around 7.30pm, at the bench along the river at Marsiling Park, Singapore, did use criminal force to one, [V1], Female 39 years old, to wit, by kissing her left cheek and lips, knowing it to be likely that you will thereby outrage her modesty and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-931783-2018 (5th charge): Involving V1

You… are charged that you, on 24/11/2018 sometime after 7.30pm, at the railing near the construction site at Marsiling Park, did sexually penetrate with your two fingers, the vagina of one [V1], Female, 39 years old, without her consent, and you have thereby committed an offence under Section 376(2)(a) and punishable under Section 376(3) of the of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-931784-2018 (6th charge): Involving V2

You… are charged that you, on 24/11/2018, at around 5pm, at the pavilion with benches in front of Block 243 Yishun Ring Road, Singapore, did use criminal force to one, [V2], Female 27 years old, to wit, by hugging her, touching her shoulders, face, breasts and thighs and kissing her cheeks and lips, knowing it to be likely that you will thereby outrage her modesty and you have thereby committed an offence punishable under Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed).

The relevant offence provisions of the Penal Code read:

Assault or use of criminal force to a person with intent to outrage modesty

354.—(1) Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.

Sexual assault by penetration

376.—(2) Any person (A) who – (a) sexually penetrates, with a part of A’s body (other than A’s penis) or anything else, the vagina or anus, as the case may be, of another person (B)… shall be guilty of an offence if B did not consent to the penetration. (3) Subject to subsection (4), a person who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

For the outrage of modesty charge under s 354(1) of the Penal Code, the Prosecution is required to prove for the following: The accused had used criminal force on the alleged victims in the manner described in the respective charges; and The accused knew it to be likely that he would thereby outrage the modesty of the alleged victims.

As for the sexual assault by penetration charge under s 376(2)(a) punishable under s 376(3) of the Penal Code, the Prosecution has to prove that: The accused sexually penetrated V1’s vagina with his two fingers; and V1 was incapable of consenting or did not consent to the accused’s act.

Summary of the Prosecution’s case and facts essentially not in dispute

In presenting its case, the Prosecution called a total of ten witnesses for the entire trial. These witnesses did not include the two alleged victims as the Prosecution had taken the position that they were not fit to testify in court, following the expert reports put up by the psychiatrists.

The Prosecution witnesses who did testify were two psychiatrists and two psychologists who had examined the alleged victims, witnesses who know...