Tan Pin Seng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 November 1997
• Neutral Citation: [1997] SGHC 288
• Docket Number: Magistrate's Appeal No 89 of 1997
• Date: 06 November 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Peter Fernando (Leo Fernando)
• Citation: [1997] SGHC 288
• Defendant Counsel: Lee Sing Lit (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether sentence manifestly excessive,Impeaching witnesses’ credibility,Whether the accused's lie has satisfied the four criteria before amounting to corroboration,s 159 Evidence Act (Cap 97, 1990 Ed),Corroboration,Sentencing,Criminal Procedure and Sentencing,Weight to be attached to previous consistent statements made by complainant,Complainant's material omissions in police report,Complainant's delay in making police report,Witnesses,Charge of intrusion of privacy,Whether the trial judge is right to give greater weight to the corroboration of Tan's lies,Whether first police report to contain elaborate details of offence,Whether complainants' previous consistent statements admissible as corroborative evidence under s 159 of the Evidence Act,Evidence,Reluctance of victims of sexual offences to make police report -Whether complainant has reasonable explanation for delay in making police report

Judgment:

YONG PUNG HOW CJ

The appellant was convicted on the following two amended charges:

First charge

You, Tan Pin Seng, are charged that you on 22 April 1995 at about midnight at Blk 11 Ghim Moh Road #03-70, Singapore did use criminal force on [PW2] female 22 years old, intending to or knowing it likely to outrage her modesty, to wit, by using your hand to stroke her legs and buttocks, and you have thereby committed an offence punishable under s 354 of the Penal Code (Cap 224).

Second charge

You, Tan Pin Seng, are charged that sometime on a day in April 1995, sometime during the night at Blk 11 Ghim Moh Road #03-70, Singapore, did intrude into the privacy of [PW2] female 22 years old, to wit, by peeping through a hole in the bathroom door while she was having a shower, and you have thereby committed an offence punishable under s 509 of the Penal Code (Cap 224).

2.The appellant was sentenced to five months` imprisonment on the first charge and one month`s imprisonment on the second charge, both sentences to run concurrently. The appellant appealed against both the convictions and the sentences. I dismissed the appeals against both convictions and the sentence on the first charge but reduced the sentence on the second charge. I now give my reasons.

The prosecution`s case

PW2 (the victim)

3.The mainstay of the prosecution`s case was the evidence of PW2. She testified that she had rented a room from the appellant and moved in on 31 March 1995. One evening in April 1995 (she could not remember the exact date and time), while she was taking a shower in the bathroom, she noticed that her towel, which was thrown over the bathroom door, was being pulled to one side. This exposed a hole in the bathroom door which had hitherto been covered by the towel. The appellant was peeping at her through the hole. She tried to cover the hole with the towel, but the towel was again pulled to one side. She re-covered the hole with the towel. This time nothing happened. She saw the shadow of someone moving outside. She finished showering and came out of the bathroom. The appellant was in the sitting room. There was no one else in the flat. She had not confronted the appellant over the incident as she had been afraid to do so.

4.PW2 later discovered that the locking device on her door had been damaged. However, she could not remember the exact date on which she first discovered this. She was now unable to lock her door. She suspected that the lock had been deliberately damaged by the appellant. She lodged a police report in respect of the peeping incident on 21 April 1995.

5.On 22 April 1995, at around midnight, PW2 was sleeping in her room when she was awoken by someone stroking her thighs and buttocks. She was lying on her side and facing the wall. She turned around and saw the appellant lying on the bed beside her. She was shocked and shouted at him to get out. The appellant swore at her in Hokkien before leaving. She was humiliated and outraged by the incident.

6.On 23 April 1995, PW2 was again sleeping in her room when she was awoken by someone pulling her hair. The appellant was lying on the bed with his head next to hers. She shouted at him and once again the appellant swore at her in Hokkien before leaving the room.

7.PW2 did not return to the appellant`s flat on 24 April 1995. PW2 lodged a police report in respect of these two incidents on 27 April 1995. She moved her belongings out of the appellant`s flat a few days later.

8.On 16 Feb 1996, PW2 accompanied PW1 (Sgt Gunasegarar, the investigating officer) and PW7 (Sgt Sardar Singh, the police photographer) to the appellant`s flat to identify the hole in the bathroom door. The bathroom door looked like it had been freshly painted and the hole was not visible from the outside. She went into the bathroom and examined the other side of door. She found `something like plaster, like some kind of tape, sticker tape` covering the hole. She removed the tape and handed it over to PW1. He used his pen to make the hole visible, and photographs were taken of the hole.

PW3

9.PW3 was PW2`s boyfriend in 1995. He testified that towards the end of April, PW2 had told him that the appellant had peeped at her through a hole in the bathroom door while she was bathing and that he had gone into her room on two consecutive nights. On the first night, the appellant had come into her room and caressed her buttocks and thighs. She had woken up and shouted at him to leave. The following night, the appellant had again come into her room and caressed her hair. She had ordered the appellant to leave the room. The appellant had sworn at her in Hokkien. PW2 also said that when she first moved in, she could lock the door from inside her room. Subsequently, the lock had been damaged and she had been unable to lock her door on the two nights the accused had entered her room.

10.PW3 advised PW2 to make a police report and accompanied her to the police station on 27 April 1995.

PW4

11.PW4 and PW2 were good friends. She testified that towards the end of April, PW2 had told her that the appellant had gone into her room and touched her at night. PW2 had told her the details of the incidents but she could not remember them. PW2 also said that the lock on her door had been damaged only after she had moved in.

PW6

12.PW6 and PW2 worked as cashiers in the same restaurant in March and April 1995. PW6 testified that she had accompanied PW2 back to the appellant`s flat on two occasions. On the second occasion, PW2 had told her that the lock on her door had been damaged so that she could no longer lock her door, and that she suspected that the appellant had damaged the lock. PW2 subsequently resigned from her job. When she returned to collect her paycheck, she told PW6 that the appellant was a pervert who had peeped at her through a hole in the bathroom door while she was bathing. He had also come into her room while she was asleep and she had shouted at him to leave the room. She had therefore been forced to move out.

PW1

13.PW1 had taken over as investigating officer on 27 April 1995. The appellant was arrested on 22 May 1995 and made a s 121 statement on 22 May 1995. On 6 June 1995, PW1 went to the appellant`s flat with PW7 to take photographs of the scene. PW1 also verifed that the door leading to PW2`s room could not be locked as the lock was damaged. PW1 checked the bathroom door but could not find a hole in it. On 5 October 1995, PW1 recorded a further s 121 statement from the appellant. Later that day, PW1 went alone to the appellant`s flat and took three photographs of the damaged lock. On 3 January 1996, PW1 interviewed PW2 regarding the hole in the bathroom door. On 18 January 1996, he recorded yet another s 121 statement from the appellant.

14.On 16 Feb 1996, PW1 went to the appellant`s flat for a third time, accompanied by PW2 and PW7. He asked them to wait in the corrider while he asked the appellant for permission to let PW2 into the premises. He then went into the flat and spoke to the appellant. He told the appellant that he could be present during the investigations. The appellant declined and said that he would stay in his bedroom. PW1 then brought PW2 and PW7 to the bathroom and asked PW2 to point out the hole in the bathroom door. PW2 went into the bathroom and looked at the door from the inside before emerging to point out a spot on the door. PW1 thought that PW2 had pointed to a rivet, but after poking at the spot with his pen, he realised that there was indeed a hole in the door which had been painted over. He instructed PW7 to take a photograph of the hole. PW2 left the flat. PW1 then called the appellant in to view the hole in the bathroom door. The appellant denied any knowledge of the hole and said that it must have been the work of a previous tenant. On 14 March 1996, PW1 went to the appellant`s flat again and took four more photographs of the bathroom door. On 4 April 1996, PW1 learned that the appellant had filed a complaint alleging that he had fabricated evidence against the appellant.

PW7

15.PW7 was a police photographer. On 6 June 1995, he accompanied PW1 to the appellant`s flat and took photographs of the bathroom door. They had examined the door but had been unable to find a hole. There was a fresh coat of paint on the door. On 16 February 1996, he had accompanied PW1 and PW2 to the appellant`s flat. PW1 had entered the flat first. PW7 remained in the corrider with PW2. PW1 returned and asked them to enter the flat. The appellant was in one of the bedrooms. PW1 asked PW2 to point out the hole in the bathroom door. PW2 went into the bathroom and examined the door. She came out and pointed to a spot on the bathroom door. There was no hole visible at this time. PW1 poked at the spot with his pen and uncovered a hole. PW1 drew a circle round the hole and instructed PW7 to take photographs of the hole.

16. The defence

The appellant denied committing the offences. In relation to the peeping charge, he claimed that there had not been a hole in bathroom door at the time of the alleged offence and that the hole which had been found was the result of a fabrication of evidence perpetrated by PW1. As for the charge of outrage of modesty, he claimed that PW2 had not even been in the flat on the night of the alleged offence.

17.The appellant gave evidence in his own defence. He was a retired police officer. PW2 was introduced to him by DW2, a housing agent. Although the tenancy was to commence on 1 April 1995, she had moved in on 31 March 1995 without prior notice. She also failed to pay the month`s rent in advance and a deposit. The appellant was thus displeased with her from the start. Further, she came back really late on some nights, failed to clean the hall, the utensils that she used, and littered the flat with strands of long hair. He complained to DW2, and on 19 April 1995, DW2 informed him that she had asked PW2 to move out by the end of April. On the night...