Tan Wai Luen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] SGHC 267
• Court: High Court (Singapore)
• Hearing Date: 18 September 2020,14 September 2020
• Docket Number: Magistrate’s Appeal No 9066 of 2020
• Plaintiff Counsel: Yu Kexin (Yu Law), Devathas Satianathan (Rajah & Tann Singapore LLP) and Poon Guokun Nicholas (Breakpoint LLC)
• Defendant Counsel: Kavitha Uthrapathy (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Offences,Unnatural offences,Criminal Procedure and Sentencing,Sentencing,Principles
• Published date: 09 December 2020

See Kee Oon J: Introduction

The appellant claimed trial before a District Judge (“DJ”) to a charge of sexual assault by penetration, an offence under s 376(2)(a) punishable under s 376(3) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The appellant was represented for part of the trial, but his counsel discharged himself after the victim had testified. He was unrepresented for the remainder of the trial.

The DJ convicted the appellant and sentenced him to seven years and four months’ imprisonment, and four strokes of the cane. The DJ’s grounds of decision are reported as Public Prosecutor v Tan Wai Luen [2020] SGDC 128 (“GD”).

The appellant appealed against his conviction and sentence. After hearing the parties’ submissions, I dismissed the appeal. I gave brief reasons orally for my decision at the hearing on 18 September 2020, and I now set out my full grounds of decision.

Background

The appellant was a Muay Thai instructor at the Encore Muay Thai gym (the “Gym”). The victim had attended a free Muay Thai trial session conducted by the appellant at the Gym where he was working in October 2016. After the session ended, she accepted the appellant’s offer of a free Thai massage. In the course of the massage, the appellant allegedly inserted his finger into her vagina. This formed the substance of the charge against the appellant.

The victim’s account of events leading up to the massage

On the victim’s account, she had signed up for a free Muay Thai trial class at the Gym, scheduled for 1 October 2016 at 12.00pm.¹ The victim testified that she arrived late at the Gym at about 12.15pm.² The appellant introduced himself as the instructor for the class before conducting a body analysis on her. Three other female participants then entered the Gym and joined the victim for the class, which lasted for about one to one and a half hours with two or three breaks of between five to ten minutes each.³ During two of these breaks, the victim bumped into the appellant and engaged in small talk with him.⁴

After the trial class, the victim went to the toilet to change out of her exercise clothes. When she came out, the appellant offered her a cup of ‘Kopi-O’ (ie, black coffee), which he claimed would help to break down fats. The victim took a few sips of the coffee at his insistence. The three other participants were no longer around and she surmised that they had left.⁵ The appellant then showed the victim a price list and asked her to sign up for a gym package, which she declined. When the victim saw a Thai massage service listed on the said price list, she enquired as to whether the Gym offered Thai massages. The appellant responded that it did, and that he was the only one trained to offer it.⁶ The appellant then offered her a free massage. The victim testified that she accepted his offer because it was free, and because the appellant was trained to offer Thai massages and “should know…the places to avoid on a woman’s body”.⁷

The appellant’s account of events leading up to the massage

The appellant testified that on the day of the alleged incident, he had told the other students to wait for the victim to arrive as she was late for class. When she reached, they commenced the Muay Thai training.⁸ He stopped the class for five-minute breaks as he wanted to take smoke breaks. He went down from the Gym which was on the second level to the open area at ground level to smoke, and he testified that the victim also went down to the same area to smoke. They made some small talk, and the victim asked him what the massage bed in the Gym was for. The appellant informed her that it was mainly for sports therapy and “myofascial”, which according to the appellant, was meant for muscle relaxation.⁹ The victim then asked whether the table was used for massages, as she was under the impression that the Gym would also offer Thai massages since it was a Muay Thai gym. The appellant testified that he initially stated that the Gym did not offer massages. However, as the Gym had recently opened and he would do anything to obtain more sales, he told the victim that he could try to give her a Thai massage if she really wanted one, but that he was “not well-trained” and did not have a licence for it.¹⁰

After class, the victim asked the appellant whether there was any way to cut down fats. The appellant told her that the only method he used was to drink ‘Kopi-o Kosong’, and offered to make a cup for her, which she accepted. When the other students had left and the victim was drinking her coffee, the appellant asked her whether she still wanted to have a Thai massage.¹¹

The victim’s account of the massage and the alleged incident

On the victim’s account, the appellant then told her to go behind the curtain and to take off all her clothes except for her panties and lie face down on the massage table. The victim did as instructed and used a towel to cover her back.¹² When the appellant came into the area covered by the curtain, she turned around to check that it was the appellant. He then switched off the lights.¹³ According to the victim, he rubbed Ginvera olive oil on his hands and started to massage her calf. He then moved to massaging her thigh and then her back. Afterwards, he moved back to massaging her calf, and proceeded to massage her inner thigh area with both hands.¹⁴ This made her feel uncomfortable, and she therefore moved her legs to indicate to the appellant that he was “not supposed to massage that”. The appellant then went back to massaging her calf.¹⁵ She testified that the appellant had shifted the towel such that his hands were in direct contact with her skin during the massage.¹⁶ At this point, the towel was shifted to the top of her back,¹⁷ but was still covering her buttocks.¹⁸

The appellant then went up to her inner thigh area near her vagina,¹⁹ before his finger “went under [her] panty” and he inserted his finger into her vagina.²⁰ She testified that something was inserted which had the texture of a fingernail.²¹ When asked to use a ruler to estimate the approximate depth to which he inserted his finger, she estimated 2.5cm.²² According to the victim, it was an “in and out thing” and he put his finger into her vagina for a “few seconds”²³ because she turned and shouted “Oi” at him when it happened. He then looked at her with a straight face with a “look that he didn’t did [sic] anything wrong”.²⁴ She testified that she felt “angry”, “upset” and “very violated” because she had demonstrated trust in the appellant by accepting his offer of a massage but he had broken that trust.²⁵

Thereafter, he asked her to flip over, and he continued to massage her shoulder and legs.²⁶ She testified that she did not leave because she was only wearing her panties and she was fearful that if she tried to leave suddenly, he could hit her or rape her. He was a Muay Thai instructor and likely to be stronger than she was.²⁷

When the massage ended an hour to an hour and a half later, the appellant walked out of the curtained area. She put on her clothes and went down the staircase to leave. She then discovered that the door was locked from the inside.²⁸ She was able to unlock the door to let herself out.²⁹ She testified that although she did not see the appellant locking the door, he was the only staff member present and the door was locked from the inside.³⁰

The appellant’s account of the massage and the alleged incident

The appellant admitted to offering the victim a massage but denied sexually assaulting her. On his account, he started the massage from the victim’s shoulder before moving down to her legs. After he told her to flip over, he massaged her front shoulder, her knee area, her thigh and her calf. The massage lasted for about 45 to 50 minutes. Thereafter, she changed back into her clothes, and he asked her whether she would sign up for lessons with the Gym. She said that she would give it a thought and left.³¹

During the cross-examination of the victim, Mr Walter Silvester (“Mr Silvester”) was still representing the appellant and had not yet discharged himself. Mr Silvester specifically put to the victim that the appellant “[might] have accidentally touched [her] around the vagina area and when he realised his mistake, he immediately stopped massaging the area”. The victim replied that it was not an accident.³² Mr Silvester later put to the victim that the appellant “[might] have had some accidental contact with [her] vagina but it was a mistake”. The victim responded that if it had been a mistake, the appellant would have apologised.³³ Thereafter, Mr Silvester put to the victim that “if there was any contact with [her] private parts, it was … [an] accident and [she was] actually aware that it may have been an accident”.³⁴ He then put to the victim again that she “did not tell anyone [about the alleged incident] because at that time [she was] unsure that [it] was actually intentional” and that she “thought it … could have been an accident”, to which the victim disagreed and confirmed that the act was intentional.³⁵ He subsequently put to the victim again that she “did not say or do anything [during the massage], because nothing actually happened”, and that “[a]t most, it was an accidental touch … [b]ecause…it was dark”.³⁶ The appellant’s counsel further put to the victim that “at most, [the appellant] may have accidentally touched [her] vagina area and [she] may have felt it such that it was a bit more forceful that [sic] she thought”, and that it was “an accident basically”.³⁷ Finally, it was again put to the victim that “because it was slippery, it was oily, [the appellant might] have accidentally touched [her] vagina area, and [she] misconstrued this to be an insertion”, and that “this was an accident and never intentional”.³⁸

However, during the appellant’s evidence-in-chief, when he was no longer represented, he testified that there was “no way” he could...