Zeng Guoyuan v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 26 July 1997
• Date: 26 July 1997
• Docket Number: Magistrate's Appeal No 275 of 1996
• Court: High Court (Singapore)

Zeng Guoyuan

Plaintiff

and

Public Prosecutor

Defendant

[1997] SGHC 199

Yong Pung How CJ

Magistrate's Appeal No 275 of 1996

High Court

Criminal Law–Offences–Criminal force and assault–Using criminal force with intent to outrage modesty–Offences alleged committed during acupuncture and acupressure treatment for hair loss–Whether offences proven on evidence–Section 354 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Accused conducting defence in manner humiliating towards complainant–Accused disrespectful towards trial judge–Whether conduct during trial could be taken as aggravating consideration–Section 71 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Using criminal force with intent to outrage modesty–Multiple distinct acts committed within same period of time–Whether accused should be sentenced for one offence or for each act committed–Section 71 Penal Code (Cap 224, 1985 Rev Ed)

The appellant, an acupuncture and acupressure practitioner, appealed against his conviction and sentence on five counts of using criminal force with intent to outrage the modesty of the complainant, all of which took place on 14 March 1996 between 1.30pm and 1.50pm. The Prosecution alleged that the appellant had committed the offences by touching various parts of the complainant's body, when the complainant was seeking treatment for hair loss. In his defence, the appellant denied all the allegations against him, and claimed that the complainant had conspired with other persons to falsely accuse him. The magistrate found that the complainant's testimony was unusually convincing and supported by the rest of the Prosecution's evidence, whereas the appellant was found to be a dishonest and evasive witness who was not averse to tailoring his evidence. The evidence of the defence witnesses was also inconsistent and incapable of belief.

On appeal, the appellant contended, pursuant to s 71 (1) of the Penal Code (Cap 224, 1985 Rev Ed), that the five charges really constituted one incident of molestation and he should not have been sentenced for all five charges. He also reiterated his denial of the charges. The Prosecution submitted at the appeal that the outrageous manner in which the appellant conducted himself at trial should be taken into account in sentencing.

Held, dismissing the appeal but varying the sentences:

(1) Section 71 (1) of the Penal Code was applicable only where the offender was charged not just with an offence, but with the other offences which formed component parts of that main offence. It did not apply where each offence in a series of offences was itself a separate, distinct offence: at [27].

(2) On the evidence, there was no reason to depart from the magistrate's findings. The magistrate was fully justified in her assessment that the appellant was prone to tailoring his evidence; even at the hearing of the appeal, the appellant was not chary of raising fresh reasons for his innocence that had never been raised in the court below: at [29] and [30].

(3) While an accused was entitled to raise any type of defence necessary to his case, even a scandalous one, it could not be an unqualified excuse for an unbridled performance in the courtroom. The appellant had shown a wholly-exceptional contempt for the proceedings. He seemed most tenacious in his determination to humiliate the complainant and demonstrated scant regard for the law in his conduct towards the magistrate. Such behaviour could not but be taken as an aggravating consideration in sentencing: at [37].

Ahmad Shah bin Hashim v Public Prosecutor [1980] 1 MLJ 77 (refd)

Chandresh Patel v PP [1995] 1 CLAS News 323 (refd)

Tham Wing Fai Peter v PP [1988] 1 SLR (R) 349; [1988] SLR 424 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 123, 256

Penal Code (Cap 224, 1985 Rev Ed) ss 71 (1), 354 (consd)

Appellant in person

Winston Cheng Howe Ming (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 In this case, the appellant was convicted by the magistrate on five counts of using criminal force with intent to outrage the modesty of the complainant contrary to s 354 of the Penal Code (Cap 224). He was sentenced to a total term of 18 months' imprisonment and four strokes of the cane. He appealed against both conviction and sentence. After hearing the appellant and the deputy public prosecutor, I dismissed the appeal but varied his sentence. I now give my reasons.

The charges

2 The first charge averred that the appellant kissed and nibbled the complainant's toes. The second charge averred that the appellant kissed the complainant's right cheek. The third charge averred that the appellant massaged the complainant's right breast and nipple. The fourth charge averred that the appellant massaged the complainant's left breast and nipple. The fifth charge averred that the appellant massaged the complainant's groin. All five incidents took place on 14 March 1996 between 1.30pm to 1.50pm.

The prosecution evidence

3 The appellant was an acupuncture and acupressure practitioner who treated the complainant for hair loss.

4 On 14 March 1996, the complainant arrived at the appellant's clinic for her prearranged appointment at 12.45pm. This was her second visit to his clinic. Upon her arrival, she was shown into the treatment room, where she took off her shoes. The appellant brushed her hair with a glass comb and applied some lotion on her scalp. He then instructed her to lie on the second of three beds in the treatment room and he placed electropads on parts of her body. These were tiny round pads joined by wires to a machine. When he placed one of the electropads on her belly button, he unbuttoned the top button of her jeans and pulled down the zip of the jeans a little. The complainant did not protest or pull the zip back up either at that time or at any later time during the treatment. After the electropads were fixed, the appellant went out of the room, to enable the complainant to relax with the aid of the electropads.

5 At about 1.30pm, he came back and removed the pads. He strapped a machine which he referred to as “a vibrator” to the back of his right hand, and started to massage her with his right palm, which was bare. The appellant massaged the complainant's arms and legs, and then, with her back facing upwards, started to massage her back. He lifted up the complainant's clothes, unhooked her brassiere and put his hands under her clothes. Thereafter, he proceeded to massage her legs, whereupon he lifted her left foot by the ankle, nibbled and kissed her big toe, before doing the same to her right foot. After this, he kissed her on her right cheek. He then instructed the complainant to turn to lie on her back, and she duly complied. Beginning with a massage of the abdomen, the appellant's right hand moved up to massage her breasts, from right to left. Thereafter, he put his hand under the complainant's underpants and massaged her lower abdomen, touching her pubic hair.

6 Finally, the appellant whispered in the complainant's ear, “I think I have fallen for you”, to which the complainant replied: “Hah?” He then said: “I love you.” Her rejoinder at this juncture was: “You can't say that.” She looked at her watch and told the appellant that she was pressed for time. After the appellant left the room, she dressed and walked out into the waiting room where...