Public Prosecutor v Wong Teck Guan

• Jurisdiction: Singapore
• Judge: Elton Tan Xue Yang
• Judgment Date: 16 August 2023
• Neutral Citation: [2023] SGMC 64
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Arrest Case No 908386 of 2022 and anor
• Hearing Date: 01 August 2023
• Citation: [2023] SGMC 64
• Year: 2023
• Plaintiff Counsel: Deputy Public Prosecutor Chong Kee En (Attorney-General's Chambers)
• Defendant Counsel: Mr Gino Hardial Singh
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Penal Code,Outrage of Modesty
• Published date: 23 August 2023

District Judge Elton Tan Xue Yang: Introduction

The maximum permissible imprisonment term for the offence of outrage of modesty under s 354(1) of the Penal Code 1871 was increased with effect from 1 March 2022 by operation of the Criminal Law (Miscellaneous Amendments) Act 2021, from the previous maximum of two years’ imprisonment to the current three years. To reflect the increased statutory maximum, the Prosecution argued in this case that I should apply a modified version of the indicative sentencing bands established by Chan Seng Onn J in the oft-cited case of Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”). Specifically, the Prosecution advocated the application of a multiplier uniformly across each sentencing band, citing the approach adopted in a few recent cases involving other offences.

The proposed modification raised the question of whether, and if so how, an increase in the maximum permissible imprisonment term for an offence should impact existing sentencing bands or ranges for the offence. In considering the issue, I found it useful to have regard to established principles on the more general question of how increases in the maximum permissible punishment affect the courts’ approach to sentencing. This in turn provided guidance on the more specific question before me, including whether the appropriate response should ipso facto be the application of a multiplier uniformly across the sentencing bands. In short, it appeared to me that the manner in which existing sentencing bands or ranges should be modified would depend on the nature of parliamentary intention behind the increased statutory maximum. That could differ based on the objectives pursued.

Charges and facts The charges

The accused is a 41-year-old male (the “Accused”). He pleaded guilty to a single charge under s 354(1) of the Penal Code (MAC-908386-2022) (the “Proceeded Charge”) for using criminal force on the victim, a 31-year-old female (the “Victim”), with the intention to outrage her modesty. This occurred at or about 9.51am on 9 December 2022, along a corridor at a supermarket (the “Supermarket”). The Accused had used his hand to touch between the cheeks of her buttocks, close to the inner side of her left buttock, over her clothes.

The Accused consented to have a second charge under s 354(1) of the Penal Code (MAC-908387-2022) (the “TIC Charge”) taken into consideration for the purpose of sentencing. The Accused had outraged the modesty of the same victim a week earlier on 2 December 2022, at the same corridor at the Supermarket, by using his hand to slap the Victim’s buttocks over her clothes.

Relevant facts

The following facts are summarised from the statement of facts, to which the Accused admitted without qualification.

At about 9.51am on 9 December 2022, the Victim was browsing fruits along the corridor of the Supermarket. She was dressed in the same manner as when she had been shopping at the Supermarket a week earlier on 2 December 2022.

The Accused noticed the Victim, as he had previously on 2 December 2022, and felt that she was pretty. He felt excited at the thought of touching a woman’s body and developed an urge to touch her. The Accused walked up behind the Victim and used his hand to touch in between the cheeks of her buttocks, close to the inner side of her left buttock, with the intention to outrage her modesty. The touching was done over the Victim’s clothes. This was the subject of the Proceeded Charge.

The Victim felt a “sharp poking sensation” in between the cheeks of her buttocks and was shocked. She recognised the Accused as the person who had sexually assaulted her in roughly similar fashion at the same place about a week before, ie, the subject of the TIC Charge. The Victim felt disgusted and uncomfortable and shouted at the Accused, “are you sick”, in Mandarin. The Accused did not reply and walked away.

The Victim reported the matter to the Police. Upon investigation, the Accused’s acts (for both the Proceeded Charge and TIC Charge) were discovered in CCTV footage.

The Accused was arrested on 14 December 2022. He was remanded for observation at the Institute of Mental Health (the “IMH”) from 14 December 2022 to 4 January 2023. In a report dated 3 January 2023 (the “IMH Report”), Dr Koh Wun Wu Kenneth Gerard (“Dr Koh”) of the IMH stated that the Accused has low average intelligence but does not fulfil the criteria for an intellectual disability and does not have any mental disorder.

Parties’ submissions

There was no dispute that the sentencing framework for outrage of modesty set out in Kunasekaran would be generally applicable. The Kunasekaran framework was adapted by Chan J from that laid down by See Kee Oon J in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”), in relation to the aggravated offence of outrage of modesty committed against a child under 14 years of age under s 354(2) of the Penal Code. The framework (elaborated in Kunasekaran at [43]–[51]) may be summarised as follows: First, the court considers the following offence-specific factors: The degree of sexual exploitation. This includes considerations of the part of the victim’s body the accused touched, how the accused touched the victim, and the duration of the outrage of modesty. The circumstances of the offence. These include considerations of: (A) the presence of premeditation; (B) the use of force or violence; (C) the abuse of a position of trust; (D) the use of deception; (E) the presence of other aggravating acts accompanying the outrage of modesty; and (F) the exploitation of a vulnerable victim. The harm caused to the victim, whether physical or psychological, which would usually be set out in a victim impact statement. Second, based on consideration of the above offence-specific factors, the court ascertains the gravity of the offence and places the offence within any of the following three bands of imprisonment (the “Kunasekaran Sentencing Bands”): Band 1: This includes cases that do not present any, or at most one, of the offence-specific factors, and typically involves cases that involve a fleeting touch or no skin-to-skin contact, and no intrusion into the victim’s private parts. The indicative range is less than five months’ imprisonment. Band 2: This includes cases where two or more of the offence-specific factors present themselves. The lower end of the band involves cases where the private parts of the victim are intruded, but there is no skin-to-skin contact. The higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts. It would also involve cases where there was the use of deception. The indicative range is five to 15 months’ imprisonment. Band 3: This includes cases where numerous offence-specific factors present themselves, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim. The indicative range is 15 to 24 months’ imprisonment. Third and finally, the court considers the aggravating and mitigating factors that relate to the offender generally but which are not offence-specific (ie, offender-specific factors). Aggravating factors may include the number of charges taken into consideration, the lack of remorse, and relevant antecedents demonstrating recalcitrance. Mitigating factors include a timeous plea of guilt or the presence of a mental disorder or intellectual disability on the part of the accused that relates to the offence.

For the Prosecution, Mr Chong Kee En submitted that before I applied the Kunasekaran framework in the present case, it was appropriate for adjustments to be made to the Kunasekaran Sentencing Bands. He highlighted that with effect from 1 March 2022 (ie, after Kunasekaran was decided), s 354(1) of the Penal Code was amended such that the offence now carries an increased maximum imprisonment term of three years, from the previous maximum of two years. He submitted that the indicative sentencing bands set out in Kunasekaran should be modified by a multiplier of 1.5, such that the following sentencing bands (the “Modified Sentencing Bands”) would apply: Band 1: Less than 7.5 months’ imprisonment. Band 2: 7.5 to 22.5 months’ imprisonment. Band 3: 22.5 to 36 months’ imprisonment.

Mr Chong argued that the proposed modification to the sentencing bands would be similar to that applied to other frameworks involving a “sentencing bands” approach where the offences in question had been legislatively amended to increase the maximum punishment. He referred me to the sentencing ranges for the offence of voluntarily causing hurt under s 323 of the Penal Code, set out by See J in Low Song Chye v Public Prosecutor and another appeal [2019] 5 SLR 526 (“Low Song Chye”). With effect from 1 January 2020, Parliament had increased the maximum imprisonment term for the s 323 offence from that of two years’ to three years’ imprisonment. In Public Prosecutor v Fei Yi [2022] SGDC 81 (“Fei Yi”), which was affirmed on appeal (without written grounds), the court took the legislative amendment into account by applying a multiplier of 1.5 to the Low Song Chye sentencing ranges. The modified sentencing ranges were applied in Public Prosecutor v Faizal Bin Mustaffa [2022] SGDC 232.

Mr Chong further referred to the Second Reading of the Criminal Law (Miscellaneous Amendments) Bill, where the proposed amendments to the Penal Code, including to s 354(1), were introduced by Minister for Law Mr K Shanmugam and thereafter debated by various Members of Parliament.

It was not disputed that the present case fell into Band 1 of the Kunasekaran framework. Within Band 1, parties disagreed on the appropriate punishment. Mr Chong submitted that a custodial term should be imposed but left the length of imprisonment to...