Tang Kin Seng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 October 1996
• Neutral Citation: [1996] SGHC 243
• Docket Number: Magistrate's Appeal No 308 of 1995
• Date: 24 October 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: John Abraham (John Abraham)
• Citation: [1996] SGHC 243
• Defendant Counsel: Muhd Hidhir Majid (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: s 223 Criminal Procedure Code (Cap 68),Commission of offence in lift,Sentencing,Offences,Relevant considerations in cases involving sexual offences,Evidence,Evidential value of complaint and distress,Whether offence proven,Evidence of distress,Backdating,Whether to take into consideration period in which convicted person out on,Criminal Law,Using criminal force with intent to outrage modesty,s 354A(2)(a) Penal Code (Cap 224),Criminal Procedure and Sentencing,Weight of evidence,Complaint by victim

The appellant was convicted on the following charge:

... that you, on or about 24 February 1994, at about 11.30am, in the lift A of Blk [X] Tampines St 8, Singapore, did use criminal force on [PW5], F/27 yrs, intending to outrage or knowing it to be likely that you will thereby outrage the modesty of the said person, to wit, by hugging and kissing her cheeks, and in order to facilitate the commission of this offence, you caused instant wrongful restraint to the said person, and you have thereby committed an offence punishable under s 354A(2)(a) of the Penal Code (Cap 224).

The appellant was sentenced to five years` imprisonment. He appealed against both conviction and sentence. After hearing counsel for the appellant and the deputy public prosecutor, I dismissed the appeal against conviction but reduced his sentence. I now give my reasons.

The prosecution`s evidence

PW5 - The victim

The victim (PW5) was a 27 year old Indonesian maid. At the time of the offence, she had only been in Singapore for a few days, having arrived on Friday, 18 February 1994. She was employed by PW4 and PW4`s husband. Her work included looking after PW4`s two daughters, who were four and two years old at the time.

One of PW5`s duties was to accompany the elder child down to the void deck of Block X, where the child would be picked up by the school bus. This she did at about 11am. She would take the lift down from the eleventh floor with the child. The lift does not stop at the ninth floor, where PW4`s flat is located. The bus usually arrived at about 11.15 to 11.20am.

The first time PW5 had to send the child off on the school bus was 21 February 1994, which was a Monday. On the first two days, she was accompanied by her employer (during cross-examination, she said that she was accompanied by PW4`s husband). On 23 February, while waiting for the school bus, she saw the appellant at the void deck of Block X. There was a short conversation between the appellant and the child. After this short conversation, she smiled and nodded at the appellant as a friendly gesture. The appellant asked her whether she spoke Malay. She answered that she could and that she was Indonesian.

On 24 February, PW5 was waiting for the school bus with the child when the appellant approached her. At the time, she was seated on one of the stone benches there. The appellant offered to take her out for food and sightseeing. She declined, saying that she came to Singapore to work and that she could not leave her employer`s flat. The appellant told her that she could tell her employer that they were going out together. She replied that she could not. He placed his hands on her body when they were talking. When he moved them towards her chest, she pulled away and told him to stop. The school bus arrived. She got up and sent the child up the bus. She did not see where the appellant went. Nobody else was at the void deck at the time.

She saw the appellant inside the lift when she returned. The appellant told her to go in quickly. The appellant asked which floor she was going to. She replied that she was going to the eleventh. The lift door closed. She stood with her arms crossed over her chest. The appellant came close to her. He touched her hands, body and face, and kissed both her cheeks. She told him to stop and pushed him away. The appellant stopped, but stood close to her. When the lift reached the eleventh floor, she tried to get out but the appellant pushed her, held her by the upper arms and told her to stay in the lift. At the same time, he pressed the `close` button on the lift. She managed to struggle free and escape from the lift. She ran back to the flat.

PW4 had opened the door and was waiting for her when she returned. PW4 was feeding the younger child near the kitchen. PW5 took out the vacuum cleaner. Her mind was on the incident. She approached PW4 and tried to tell her what happened. However, PW4 could not understand her, as she spoke in a mixture of Indonesian and Malay. She was frightened.

PW4 called her friend (PW6) and passed the handset to her. She told PW6 about what happened in the lift. She merely said that the appellant kissed her. She did not mention that he also hugged her. PW6 appeared to understand. After PW6 had spoken to PW4, PW4 told her to go down to the void deck and look for the appellant, saying that she would follow shortly.

She went downstairs. She looked around and saw the appellant seated near a kiosk at the next block. He was alone. A few minutes later, PW4 came down. She pointed at the appellant. PW4 went over and approached the appellant. She then waved for her to go over. PW4 asked if the appellant was the one. She said he was and PW4 called the police.

The police arrived shortly. Only one of the policemen could speak Malay. He asked PW5 what happened. She told him that the appellant touched her and kissed her while she was in the lift.

PW5 was cross-examined on the first incident in the void deck. Her evidence was that it lasted for about five minutes. The child was on her lap at the time. She told the appellant to stop touching her, but she did not move away because she was told by her employer to wait for the school bus. She did not scream because there was nobody around and she was not hurt. Even if the school bus had arrived late, she would have continued sitting there to wait for it, despite what the appellant was doing. She did not complain to the school bus driver because she did not speak English. She got into the lift with the appellant after the first incident as she did not expect the appellant to repeat what he did. When he molested her, she pushed him away.

An attempt was made to impeach her credit by referring to her statement to the police, which was made on 24 February 1994. She had not told the police about the incident at the void deck. The district judge ruled that, although she had not mentioned the first incident at the void deck, there was no material inconsistency. In response to questions from the court, she testified that she did not tell the police about what happened at the void deck because she did not feel embarrassed about that incident. She was not embarrassed when the appellant touched her breast at the void deck. However, she was when he kissed her in the lift. The incident in the lift frightened her.

PW4 testified that she and her husband employed PW5 as their maid on 18 February 1994. PW4 initially had difficulty communicating with her as PW4 did not speak Malay. She would call PW6 to translate for her.

On 24 February, PW5 took PW4`s elder daughter down to the void deck to wait for the school bus, and then returned to the flat between 11.20 and 11.25am. PW4 noticed that PW5 came back and closed the door hurriedly. PW4 was eating in the kitchen when PW5 spoke to her in Malay. PW5 looked frightened when she spoke to PW4. That was why PW4 called PW6 to ask her to translate what PW5 was saying. After PW4 had spoken to PW6, she told PW5 to go down to see whether the appellant was still downstairs. They went downstairs and the maid pointed out the appellant to PW4.

As PW4 confronted the appellant, PW5 stayed behind because she was frightened. PW4 asked a delivery man to accompany her, as she too was afraid. They approached the appellant. PW4 said to the appellant that her maid had told her that he had molested the maid. The appellant said that he might have touched PW5 accidentally when he wanted to touch PW4`s daughter`s face. PW4 replied that he did not have to explain to her. She told him to wait and went to call the police from the public phone. When the police arrived, she told them that PW5 said that the appellant had molested her.

PW6 - Phylis Phang

PW6 is a Peranakan Chinese and knows basic Malay. She was an ex-colleague of PW4. On 24 February 1994, she was working in her office when she received a call from PW4. PW4 said that her maid might have been molested but she could not understand her fully. PW6 spoke to PW5. PW5 told her that there was a man following her. PW5 spoke very fast and PW6 could not understand everything that she said. PW6 asked PW5 whether the man touched her. PW5 did not answer, but merely kept repeating that she did not like to be followed and that she was `disturbed` by him. PW6 could not remember the phrases which she could not understand. PW5 sounded distressed.

PW1 and PW2

PW1 and PW2 were Corporal Tan Kow Liang and Corporal Elyadi bin Yusman respectively. They gave evidence that at about 11.47am on 24 February 1994, they received a message to respond to a call that someone had molested the caller`s maid. They arrived at the void deck and saw the appellant, PW4 and PW5. PW1 questioned PW4 and PW2 questioned PW5.

The rest of PW1`s evidence related to what PW4 told him about what she was told by PW5. It was, strictly speaking, hearsay and was not useful. PW2`s evidence was that he interviewed PW5. She told PW2 that she had been molested by the appellant in the lift of the neighbouring block while she was sending PW4`s child to school. She said that the appellant held her waist from behind. She indicated with her gestures that he held her around the waist. He remembered that PW5 said that she was taking PW4`s daughter downstairs to wait for the school bus at the time. PW2 did not ask PW5 how many times the appellant held her because he was inexperienced.

The defence`s evidence

The appellant was 64 years old. He lived on the eleventh floor of Block 872. He had retired from the Ministry of Community Development and was working as a trolley pusher at the airport. He gave evidence that he was on medical leave in February 1994 because he had injured his thumb.

The first time the appellant saw PW5 was on 21 February. He saw her with the child at the void deck. He did not speak to her on that occasion. According to the appellant, he saw her again the following day. The child greeted him and said `good morning` in Mandarin. PW5 greeted him in Malay. The...