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Bishan Gay Judgment [Aug. 18th, 2015|01:59 pm]
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Public Prosecutor v Cheng Hoe Huat
[2015] SGDC 188

Case Number : DAC 918630-2014, Magistrate's Appeal No. 9058-2015-01
Decision Date : 08 July 2015
Tribunal/Court : District Court
Coram : Lee-Khoo Poh Choo
Counsel Name(s) : DPP Amanda Chong for Public Prosecutor; Accused in person.
Parties : Public Prosecutor — Cheng Hoe Huat

8 July 2015


District Judge Lee-Khoo Poh Choo:

Background

1 The Accused, aged 52 years, claimed trial to the charge that on 13.11.2013, at about 3.20 p.m., in the male toilet on the first floor of Bishan Junction 8 Shopping Centre (“Junction 8”), used criminal force on the Victim, a 12 years old male, knowing this would outrage his modesty, by touching the tip of his penis and tickling it 3 times. This was an offence punishable under section 354(2) of the Penal Code, Cap 224.

2 At the conclusion of the trial, I convicted the Accused and sentenced him to 12 months’ imprisonment. He has appealed against sentence and is on bail pending his appeal.

Facts

3 The facts were adduced through 13 prosecution witnesses i.e. the Victim, his father, form teacher, school principal, 4 of the Victim’s friends, 2 doctors and police officers. The Accused also gave evidence and did not call any other witness.

4 In 2013, the Victim and his friends were Primary 6 school students at a Madrasah. They would often go to Junction 8 after school lessons ended. At Junction 8, the Accused was always seated outside Coffee Bean. The Victim and his 4 friends testified that the Accused would always wave, greet and chat with them. Hence, they thought he was a kind and friendly “old uncle”. The Accused however claimed that he could not recognise them because he met and talked to many students.

5 On 13.11.2013, at about 3.15 p.m., the Victim and his friends were at Junction 8. The Victim was talking to a friend while the others went ahead to McDonald’s. The Accused approached and asked the Victim to help him go to the toilet. As the Accused was holding a walking stick, the Victim agreed. They walked to the male toilet at the ground floor and entered a toilet cubicle. The Accused sat on the toilet seat and told the Victim to lock the toilet door which the latter complied. The Accused then told the Victim to pull down his pants to show his penis as he (Accused) was doing a survey on the penises of the different races. Again the Victim complied by pulling down his track pants and underwear. The Accused suddenly reached out and used his finger to touch the tip of the Victim’s penis then tickled the penis 3 times. The Victim was shocked, pushed away the Accused’s hand, opened the cubicle door, pulled up his underwear and pants and ran out of the toilet. He ran to inform his friends.

6 Together the Victim and friends went to look for the Accused who had returned to his usual seat at Coffee Bean. Using a mobile phone, they secretly filmed the Accused sitting at Coffee Bean to prove his presence at the location at that time. The Victim then phoned to inform his form teacher and the next morning he related the incident to this form teacher and school principal.

7 The Victim gave consistent account of the incident to his friends, teacher, school principal, doctor and the investigating officer. All of them who testified corroborated the Victim’s evidence.

8 The Accused denied such an incident occurred. He claimed he could not recognise the Victim and his friends who testified in court as he chatted and was friendly with many students who went to Junction 8. The Accused said that for the past few years he was at the Coffee Bean outlet at Junction 8 almost every weekday from 8.30 a.m. to about 5 p.m. At different stages of this case, he gave various reasons for his presence at the said shopping centre:

- he was doing a highly secretive project which involved conducting a survey on penises of different races for a secretive international organisation;

- to speak to students about sex education taught in their schools as he intended to submit his recommendations to the Ministry of Education to improve the teaching of sex education; and

- to read the Bible, newspapers and write journals.

The Accused said he had never spoken to the Victim alone and he would go to the toilet alone. However, CCTV footage from Junction 8 management was played in Court and it showed the Accused holding a walking stick walking with the Victim in the direction of the toilets. Although the CCTV footage was not as clear as desirable, the images of the Accused and the Victim were discerned.

Prescribed penalty

9 Imprisonment which may extend to 5 years, or with fine, or with caning, or with any combination of such punishments.

Mitigation

10 The Accused said he had nothing to say as he did not commit the offence.

Prosecution’s address on sentence

11 The learned DPP highlighted the aggravating factors:

(a) Victim was below 14 years old at the time of the offence;

(b) Accused took advantage of the youth and naivety of the vulnerable victim;

(c) Pre-meditated and well-thought out as he befriended the young boys, then tricked the Victim to assist him to the toilet then gave the excuse that he needed to see the Victim’s private parts as part of a survey on penises of different races;

(d) Intruded upon the Victim’s private parts and there was skin-to-skin contact;

(e) The Accused’s conduct showed he was not remorseful.

12 Dr Sandeep Raj Kala Naik from the Institute of Mental Health examined the Accused and prepared the report. While the Accused was diagnosed with schizophrenia, there was no causal link between his psychiatric condition and the offence. The Accused knew the criminal nature of touching a boy’s private parts and repeatedly said so in his evidence.

13 I recognised the aggravating factors as highlighted by the learned DPP. I also considered the fear caused to the young Victim as he and the Accused were locked inside the toilet cubicle. The Accused’s actions must, inevitably, have eroded to some degree the trust and respect that the Victim normally held for elderly persons. His depraved, immoral acts will leave their marks on the young and vulnerable Victim forever. I also felt that the Accused was indeed very bold to perpetuate his criminal act in a public toilet in a shopping centre, a place which could be accessed by any male person.

14 Although the Accused declined to mitigate, I considered that he had no previous convictions. I also viewed in his favour that he did not forcefully restrain the Victim and did not stop him from leaving the toilet cubicle.

Sentence

15 The learned DPP submitted that the Penal Code (Amendment) Act 2008 saw the enactment of section 354(2) because Parliament saw the need to protect the young from sexual predators. She cited PP v Chow Yee Sze [2011]1SLR 481 which affirmed that in cases where the offensive act was serious i.e. where a victim’s private parts were intruded the sentencing starting point was 9 months’ imprisonment and caning. As the Accused was convicted under the more serious section 354(2) of the Penal Code, Prosecution felt that the sentence must be higher than 9 months’ imprisonment. She submitted for a sentence of not less than 15 months’ imprisonment.

16 It is trite that the younger a victim is, the more aggravating is the offence. There is also pressing public interest in discouraging such criminal conduct and the need to protect the young and vulnerable. The facts and circumstances of this case amply illustrated how vulnerable a child is and how he can be preyed upon. I agree that the sentence has to be more than the starting point of 9 months’ imprisonment.

17 To arrive at an appropriate sentence, I took guidance from the following cases where the offenders were sentenced under section 354(2) of the Penal Code:

PP v Al-Habib Sheik Haji Ismail Al Mahberoh [2010] SGDC 400

The offender was convicted, after trial, on one charge. He managed to convince the victim’s mother to allow him to bring the female victim, aged 13 years, to the kitchen toilet of her flat to check for “ghost” in her body. In the toilet, the accused touched the victim’s breasts and nipples for about 5 minutes. On appeal, the High Court enhanced the sentence to 24 months’ imprisonment.

PP v GAO [2015]SGDC 3

The offender was convicted, after trial, on one charge. While the offender was giving the 13 years old female victim a body massage, he caressed her breasts, buttocks and crotch area. The High Court affirmed the sentence of 24 months’ imprisonment.

In this case, the Accused’s criminal act was of a short duration and the Victim was not subjected to protracted traumatic experience. All things considered, I decided that 12 months’ imprisonment was the appropriate punishment as general and specific deterrence. In view of the Accused’s age, he was spared the punishment of caning which I would have ordered.
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