Ye Wei Gen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 23 July 1999
• Neutral Citation: [1999] SGHC 193
• Docket Number: Magistrate's Appeal No 337 of 1998
• Date: 23 July 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: George Pereira (Pereira & Tan)
• Citation: [1999] SGHC 193
• Defendant Counsel: Amarjit Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Appeal,Identification parade,Turnbull guidelines,Criminal Procedure and Sentencing,Finding of fact,Identification evidence,Whether corroborative evidence required,Whether bathroom bright enough for identification evidence to be considered good,Victim identifies appellant peeping at her in bathroom,Whether trial judge's finding of fact should be overturned

: Introduction

The appellant was charged with the following offence:

You, Ye Wei Gen, M/31 yrs NRIC: S2666144-G are charged that you on 16 April 1998, at or about 4pm, at Keppel Club, Bukit Chermin, Singapore, intending to insult the modesty of Tan Ann Nie, F/21 yrs, by intruding into her privacy, to wit, by peeping in the cubicle when she was bathing, and you have thereby committed an offence punishable under s 509 of the Penal Code (Cap 224).

The appellant was convicted of the offence and fined $2,000 in default four weeks` imprisonment. The appellant has since paid the fine and has appealed against his conviction and sentence.

The prosecution`s case

The appellant was convicted of an offence under s 509 of the Penal Code which reads:

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with imprisonment for a term which may extend to one year, or with a fine, or with both.

In making out its case against the appellant, the prosecution relied primarily on the evidence of the victim.

The victim testified that on the afternoon of 16 April 1998, she had gone swimming at Keppel Club (`the club`) with her boyfriend. After their swim at around 4pm, they both headed to the male and female bathrooms to wash up. These were located in the swimming pool complex of the club.

After placing her belongings in the locker, the victim entered one of the shower cubicles and began showering. The shower cubicle had an opaque curtain for privacy which the victim drew across the entrance to the cubicle. She initially had her back to the curtain when she turned on the shower, but, upon turning around, she saw the appellant looking at her through a gap between the curtain and the wall of the cubicle. She was completely naked at the time. The victim, despite being shocked and traumatised, shouted at the appellant. However, he continued staring at her for a few more seconds before leaving the female bathroom.

The victim gave evidence that the bathroom was lit and the distance between her and the appellant was less than one metre. She emphasised that, after she shouted at him, he continued staring at her for a few more seconds. The victim identified the appellant as the offender in the court below and gave a description of the offender that largely matched that of the appellant. More specifically, the victim said that she remembered his eyes, that he was fair-skinned and had slightly protruding teeth. Additionally, the victim reiterated her conviction that the appellant was the offender who peeped at her as `the look of him left a deep impression on me`. On top of everything, the appellant and the offender were both wearing a white shirt at the material time. The victim disagreed with defence counsel that she could not positively identify the appellant as the offender because it was too dark in the female bathroom and she added that her head was not under the shower of water at that time.

After the incident, the victim put on her clothes and went out to call her boyfriend. While they were standing in the area outside the male and female bathrooms discussing the matter, the appellant, his colleague and his boss walked past. The victim pointed out the appellant as the peeping Tom to her boyfriend but did not confront the appellant then because she was afraid that the appellant might turn violent. The victim`s boyfriend checked with the appellant`s boss whether they were from the management of the club but got a negative response. The parties went their separate ways.

The couple then headed to the security counter by the poolside to report the incident. The management of the club called back the appellant, his boss and his colleague who by then were about to leave the club. The victim`s boyfriend confronted the appellant and accused him of being the peeping Tom which the appellant vehemently denied. The victim testified that she consistently identified the appellant as the offender when the parties met at the security counter. The management took down the appellant`s particulars and he left the club.

The evidence of the victim`s boyfriend was generally in line with the victim`s testimony. He added that, despite feeling shocked and angry, he had not confronted the appellant the first time that the couple encountered him as it would be more prudent to report the matter to management first. Furthermore, he did not have much of a chance to stop the appellant, even though he had directed his enquiry about whether the group was from the management of the club to all three of them. He also said that the victim had pointed out the appellant to him twice after the incident.

The defence

The defence was a straightforward denial that the appellant had been in the female bathroom at the material time and had thereby committed the offence. The appellant said that he had gone to the club at about 3pm with his boss, Mr Lum Chong Chuen (DW2), and a female colleague, Rahimah, to conduct an inspection relating to the mechanical and electrical services for a club project. Rahimah was supposed to check the female bathroom and he was supposed to check the male bathroom.

The appellant`s account of his movements at the material time was as follows. Some time past 3pm, he went into the male bathroom to check the water tank. He took about ten minutes to do so. He then went back to the lobby, which was near the swimming pool complex, to discuss the project with Rahimah. After that, he went back inside the male bathroom to carry out another check. This whole procedure took an additional 10 to 15 minutes and the appellant was alone throughout this time. After completing his work, the appellant went to the cafeteria. He saw Rahimah sitting in the lobby and decided to buy two cans of Coke. He offered one of them to her but she declined it. They talked about the project for a further ten minutes. DW2 then showed up and there was a further discussion between him and the appellant regarding the work to be done for another ten minutes.

On the way to the pump room, the three of them encountered the victim and her boyfriend. The appellant`s version of events from then on was the same as that of the victim and her boyfriend`s accounts. The appellant said that he consistently protested his innocence when finally confronted by the victim`s boyfriend at the security counter. He willingly gave his particulars and denied having ever entered the female bathroom. His evidence remained unchanged under cross-examination.

DW2 testified that he had arrived at the club with his two employees. Upon arrival he went to the management office to join in a separate inspection with the Fire Safety Bureau. After completing this task, he went to look for the appellant and Rahimah and found the appellant in the video games room. The two of them went to the cafeteria and waited for about 10 to 15 minutes for Rahimah. The rest of his testimony did not vary from that of the victim, her boyfriend and the appellant.

The decision below

The district judge found that the only issue in this case was whether the victim had misidentified the appellant as the peeping Tom. Applying the Turnbull guidelines, as synthesised into a three stage test in Heng Aik Ren Thomas v PP [1998] 3 SLR 465 , the district judge held that the victim`s identification of the appellant as the offender was reliable. She came to this conclusion for four reasons:

(a) although the female toilet was not brightly lit, there was enough light to enable the victim to see the facial features of the offender;

(b) the distance between the victim and the offender was very short, only about one metre apart;

(c) the victim gave evidence that the offender stared at her; it was not a fleeting glance at her;

(d) after she shouted at the offender he continued staring at her.

The district judge added that this was the first time the victim had encountered such an experience and she was thus unlikely to forget the offender`s face.

With regard to the victim`s failure to confront the appellant when he walked past...