Public Prosecutor v Xu Jiadong

JurisdictionSingapore
JudgeShawn Ho
Judgment Date04 August 2016
Neutral Citation[2016] SGMC 38
CourtMagistrates' Court (Singapore)
Docket NumberMAC 907421-2014
Published date11 August 2016
Year2016
Hearing Date17 July 2016,03 July 2016,16 July 2016,04 July 2016,05 July 2016
Plaintiff CounselKong Kuek Foo
Defendant CounselEdmund Wong Sin Yee and Daniel Atticus Xu
Subject MatterCriminal Law,Offences,Outrage of Modesty,Cross-examination,Questions/ Inquiries
Citation[2016] SGMC 38
District Judge Shawn Ho: INTRODUCTION

The Accused, Xu Jiadong, claimed trial to one charge under section 354(1) of the Penal Code, for outraging the victim’s modesty by brushing against her lower breasts with his forearm on an MRT train at Toa Payoh station on 9 July 2014 at or about 10.05p.m..1

The Defence claims that the Prosecution is unable to navigate the shoals of mistaken identity, an accidental touch, and involuntariness regarding the Accused’s police statement.

The Defence’s contention does not stand. Put simply, the victim’s testimony is unusually convincing. In addition, the Prosecution’s case is undergirded and anchored by the Accused’s confession2 and the evidence of Ms S, the victim’s friend who was on board the same train. All considered, the Prosecution has proven its case against the Accused beyond a reasonable doubt. Accordingly, I convicted the Accused on the charge, and sentenced him to 5 months’ imprisonment.

These are the reasons for my decision.

Charge

The charge is as follows:

“You, Xu Jiadong, Male 22 years old, Nationality: PRC, are charged that you on 9th July 2014, at or about 10.05 pm, on board the train at Toa Payoh MRT station, Singapore, did use criminal force on one (victim), female 22 years old, intending to outrage her modesty, to wit, by brushing your forearm against her lower breasts, and you have thereby committed an offence punishable under Section 354(1) of the Penal Code, Chapter 224 (2008 Rev. Ed.).”

APPLICABLE LEGAL PRINCIPLES

While there is no formal legal requirement for corroboration in sexual offences, it is nonetheless unsafe to convict in such cases unless the complainant’s evidence is “unusually convincing”, in order to prove the Prosecution’s case beyond a reasonable doubt without independent corroboration: Court of Appeal in PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“PP v Mohammed Liton”) at [37] to [38], and endorsed in AOF v PP [2012] SGCA 26 at [111].3

Put differently, there is nothing magical about the words “unusually convincing” – they simply mean that the complainant’s testimony is so convincing that the Prosecution’s case is proven beyond reasonable doubt, based solely on that evidence: Teo Keng Pong v PP [1996] 2 SLR(R) 890 at [73]. (See Chen Siyuan and Eunice Chua, Wrongful Convictions in Singapore: A General Survey of Risk Factors, (2010) 28 Singapore Law Review 98 at 107. See also Jack Lee Tsen-Ta, Workplace Sexual Harassment in Singapore, (1999) 11 Singapore Academy of Law Journal 27 at 75 to 77.)4

I am aware of the danger of convicting on the complainant’s bare word as well as of the importance of convicting only on testimony that, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the Accused: PP v Mohammed Liton at [39].5

The question is whether the complainant’s evidence is so reliable that a conviction based solely on it is not unsafe: Tang Kin Seng v PP [1996] 3 SLR(R) 444 at [44]. In order to determine this, the court is required to make a finding as to the credibility of the complainant’s evidence.6 A court may make this assessment by examining (a) her demeanour, (b) the internal inconsistency (or lack thereof) in the content of her evidence; and/or (c) the external inconsistency (or lack thereof) between the content of her evidence and extrinsic objective evidence: Ng Chee Chuan v Ng Ai Tee (administratrix of the estate of Yap Yoon Moi, deceased) [2009] 2 SLR(R) 918 at [14].

On a broader canvas, the Prosecution must prove its case beyond a reasonable doubt: Jayasekara Arachchilage Hemantha Neranjan Gamini v PP [2011] 3 SLR 689 at [1] and [2]. This has been described as the “proverbial golden thread which runs throughout the web of our criminal law”: Winston Lee Siew Boon v PP [2015] SGHC 186 at [61] to [76]. The Court must always bear in mind that the starting point of the analysis of any criminal case is not neutral – an accused person is presumed innocent and this presumption is not displaced until the Prosecution has discharged its burden of proof: Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45 at [61].

DECISION OF THE COURT

With the above legal principles in mind, I carefully sifted the evidence: Prompt Complaint to her Best Friend, Boyfriend, and the Police (at [12] to [17]). Distress Concomitant with the Complaint (at [18] to [21]). Ring of Truth to the Victim’s Account (at [22] to [32]). Victim’s Account Supported by her Friend who was Present at the Scene (at [33] to [39]). No Reason to Frame the Accused (at [40] to [41]). Identification of the Accused (at [42] to [49]). The Accused’s Confession Incriminates Himself (at [50] to [70]).

Prompt Complaint to her Best Friend, Boyfriend, and the Police

The test in each case is the yardstick of common human experience; while it is not usual human behaviour for a victim not to make a quick complaint to her friends or family, the same cannot be said of a failure to make a prompt police report: Tan Pin Seng v PP [1997] 3 SLR(R) 505 at [29].

The Defence argued that the victim did not press the train’s emergency button, or inform other passengers or her parents of the molest. However, in the present case, the following facts are undisputed: The victim had immediately told her best friend (Ms S) on the train that she had been molested. Once the victim reached home, she also told her boyfriend over the telephone that she had been molested. Within half an hour of alighting from the train, she telephoned the police to report the molest at 10.42 p.m..7 The victim followed up by lodging a police report at Bishan Police Station the very next day.

I had the benefit of observing the victim’s testimony first-hand. She is a reserved and fairly timid person. She admitted that she was “scared” after she had been molested on the train.8 The victim explained that she did not press the train’s emergency button as she was scared, had never been molested before, and was at a loss on what to do.9 It is pertinent to note that victims of sexual offences may not always react in a predictable manner: Khoo Kwoon Hain v PP [1995] 2 SLR(R) 591 at [74].

Given that her parents are overseas and “very traditional”,10 the victim did not apprise them of the fact that she had been molested. She did not want them to worry about her.11 That night, when she reached home, the victim did not tell her sister, uncle and aunt about the molest because her sister is younger than her while her uncle and aunt were already asleep.12

The victim’s explanations are not unreasonable, and I accept them: Tan Pin Seng v PP [1997] 3 SLR(R) 505 at [28]. In any case, the victim had promptly told her best friend, boyfriend, and the police that she had been molested.

While these can be considered as contemporaneous complaints,13 I am mindful that the evidential value of a prompt complaint did not necessarily render the victim’s testimony more credible. I am aware that a complaint is not an independent piece of evidence, and in particular, I took into account the High Court’s views in Tang Kin Seng v PP [1996] 3 SLR(R) 444 at [78] to [79]. I am also cognisant of the fact that if the victim’s evidence is not unusually convincing, the fact that she repeated it several times does not add much to its weight: Khoo Kwoon Hain v PP [1995] 2 SLR(R) 591 at [51].

Next, I turn to the victim’s distress on the train.

Distress Concomitant with the Complaint

There is no reason why the victim’s distress cannot be a weighty piece of evidence in the right circumstances, when a court is aware that distress may spring from a number of causes, and that it could have been simulated: Tang Kin Seng v PP [1996] 3 SLR(R) 444 at [91].

In the present case, the victim’s distress was clear to Ms S on the train. Ms S testified that the victim was “tearing up”, “panicked”, and did “not look like she’s in the right state of mind”; Ms S told her to calm down and relax and it was several minutes before the victim could tell Ms S that she had been molested.14

The court testimony of Ms S and the victim on the latter’s distress was unchallenged by the Defence. I find that there was spontaneous distress accompanying the victim’s complaint, lending support to her account of being molested: Tang Kin Seng v PP [1996] 3 SLR(R) 444 at [101]-[102], Sivalingam Suresh v PP [2000] 2 SLR(R) 498 at [18], and Liew Kim Yong v PP [1989] SGCA 9 at [26]-[27].15

Ring of Truth to the Victim’s Account

As mentioned above, I had the benefit of observing the victim’s testimony first-hand; she testified in a matter-of-fact manner without any reservation and was forthright when giving evidence. I found her testimony to be consistent, cogent, and credible. Her testimony withstood the Defence’s cross-examination. I accept her evidence.

The victim’s account was sufficiently detailed and textured. She testified that she had boarded the train with her friend, Ms S, at Orchard MRT station on 9 July 2014 at about 9.55 p.m..16 She is certain of the timing as she had looked at the time on her hand phone.17 The victim was carrying a backpack, strapped to both her shoulders.18 The Accused, who was leaning against the partition beside a priority seat, stared at the victim throughout the journey intensely and pervertly.19 The victim testified as follows:

Honestly, he just stared intensely. Initially from Orchard I thought, yah, maybe nothing because the train is crowded, but no, he is staring at me for so long and unless I glared back at him, if not, he wou---he didn’t looked away. So, to me maybe he---he’s just staring at me pervertly.20

The victim told Ms S that the Accused was staring at them, and Ms S nodded and indicated that she knew about this.21

At Toa Payoh MRT station, as an elderly lady (“auntie”)22 wanted to alight,...

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