Offences against Person - Sexual Offences

Question 1

Outraging Modesty:
S 354(1) PC

Answer 1

1. Assaults or uses criminal force
2. Intending to outrage or knowing it to be likely that he will outrage modesty

Prison up to 2 years/with fine/caning/any combination.

Question 2

Outraging Modesty:
S 354(2) PC

Answer 2

If V under 14yo, prison up to 5 years/fine/caning/combination.

Question 3

Outraging Modesty:

S 509 PC

Answer 3

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object intending that the same is heard or seen, or intrudes upon the privacy of such woman.

Prison up to 1 year/fine/both.

Usually used for upskirt videos.

Question 4

Outraging Modesty:

Meaning of modesty?

Answer 4

Rupan Deol Bajaj v KPS Gill [1996] Cr. L.J. 81, SC:
Whether D’s action such as could be perceived as one which is capable of shocking the sense of decency of a woman.

Gauged with reference to current societal standards.

Question 5

Outraging Modesty:

Sentencing Guidelines - Teo Keng Pong v PP [1996] 2 SLR (R) 890

Answer 5

D gave tuition lessons to V, a 13 year old Indo student studying in SG. He touched V’s thigh and breasts and kissed her.

Held: Upheld convictions but sentences were manifestly excessive.

In relatively minor acts of molest under s354 PC a fine is generally more appropriate.

Question 6

Outraging Modesty:

Sentencing Guidelines - PP v Heng Swee Weng [2010] 1 SLR 954

Answer 6

When D (57yo taxi driver) pulled over, V (15yo foreigner studying in SG) told him that she was lost and had no money. D agreed to give free ride. Instead, took her some place 5km away from destination. During ride, D used his left hand to touch V’s R hand. When V alighted, D got out and hugged her. V broke free. D left the scene with his taxi and V found her way home.

Held: The present offence warranted a deterrent custodial sentence.

Strong message for those working in public transport service sector: behaviour taking advantage of more helpless commuters utilising these transport services will and shall not be tolerated by the courts.

Question 7

Outraging Modesty:

Sentencing Guidelines - Soh Yang Tick v PP [1998] 1 SLR(R) 209

Answer 7

V (27yo) alleged that (1) D called her into his office in the afternoon and thereafter made several lewd and suggestive remarks to her before using his hand to touch her back and abdomen; (2) earlier that same morning, D had made similar lewd remarks to her; (3) a week later, D came out of his office and slapped her lightly on her butt. She subsequently made a police report.

Held: Where PP is relying solely on V’s words, a court of law must be extremely cautious before convicting D unless the evidence is unusually convincing. PP must prove beyond reasonable doubt.

Question 8

Outraging Modesty:

Sentencing Guidelines - John Benjamin Cadawaltherayil v PP [1995] 3 SLR(R) 478

Answer 8

V alleged D squeezed her breasts and nipples; D (73yo medical practitioner, doctor for some 42 years, own private practice for 30 years) argued that it was part of medical check-up. General practice to use palms instead of fingers and usually takes 4-5 minutes – D used his fingers instead of palms and V alleged that the examination took 10-15 mins.

Held: Unless expert evidence shows that one method of doing something is definitely and completely wrong so that no doctor in his right mind would do it in the manner done by D, courts will be reluctant to say that it is certain, beyond any reasonable doubt, that what the D doctor did was not only medically improper, but was not done bona fide as well.

Understandable that there might be differences in practice and not necessary to follow procedure to textbook perfection.

Question 9

Outraging Modesty:

Sentencing Guidelines - Tan Boon Hock v PP [1994] 2 SLR(R) 32

Answer 9

D charged with touching V’s penis. V = police undercover who was part of an operation trying to “flush out” homosexuals. D approached V and struck up a conversation with him. Shortly thereafter, they proceeded into some nearby bushes where D placed his right hand on V’s penis. V ID’d himself at this junction and promptly arrested him.

Held: Technical offence under s354 PC was made out. Court reduced imprisonment and caning to fine.

[8] Odd that D was charged in the first place, “at least arguable that as far as the accused can discern, there would appear to be little question of consent being forthcoming from this other man”.

Question 10

Rape:

S 375 PC

Answer 10

Man penetrates someone with no consent, or regardless of consent if someone under 14yo.

Prison up to 20 years and fine or caning.

Question 11

Rape:

S 376 PC

Answer 11

Making someone penetrate you without consent, or regardless of consent if someone under 14yo.

Prison up to 20 years and fine or caning.

Question 12

Rape:

S 90 PC

Answer 12

NOT CONSENT IF:
1. Given under fear of injury or wrongful restraint, OR

2. Under a misconception of fact, AND
3. If doer knows, or has reason to believe, that consent was given out of such fear or misconception.
4. Given by a person with unsoundness of mind, mental incapacity or intoxication, or under influence of any drug or other substance, who is unable to understand the nature.
   Courts to determine if degree of intoxication was sufficient to prevent V from understanding what he was consenting to.
5. Given by person under 12 years of age.

Question 13

Rape:

Elements of rape - PP v Teo Eng Chan [1987] SLR(R) 567

Answer 13

1. D had sex with V;

2. Without V’s consent, or if it was with her consent, the consent was obtained by putting her in fear of hurt

Question 14

Rape:

PP v Victor Rajoo [1995] 3 SLR(R) 189 - Consent out of fear?

Answer 14

D charged with, inter alia, (1) the intention of forcing V into illicit sexual intercourse (s366 PC); (2) having carnal intercourse with V against the order of nature (s377 PC); (3) rape of V and putting her in fear of hurt under s376(2)(b) PC. D argued V had got into his van of her own volition, that he had never said that he was a policeman and that he and V had consensual sexual intercourse. V asked him to go to XXX Road, which he agreed, but made a detour to an isolated place first where they then had sex in his van.

Held: Found on the evidence that V was overawed into submission by D’s conduct, i.e. brought to an isolated spot and was alone with D inside the rear compartment of the van. She was completely in his hands and helpless. V could not possibly engage in armed combat with D and must have participated in all those sexual acts out of fear of D. D was therefore guilty of all charges.

Per Bijoy Kumar v State of Orissa: Mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fair or vitiated by duress, cannot be deemed “consent”.

Question 15

Rape:

PP v Victor Rajoo [1995] 3 SLR(R) 189 - Injury to V?

Answer 15

Absence of injury of V is not fatal to charge of rape (though it is a relevant consideration).

Question 16

Rape:

Distinction between consent and submission - Augustine Foong Boo Jang v PP [1990] 1 MLJ 225

Answer 16

D contended he had a continuing sexual relationship with V (maid) 2 months prior to the alleged rape and that incident had taken place with her consent. D’s wife also gave evidence to support D that V had confessed to her that she was having an association with D of some long standing.

Held: Significant that V was completely dependent on him financially and he controlled her entire existence. V’s fear and inability to give her name on the telephone on that afternoon demonstrated the hold that he had – she was afraid of doing anything which might prejudice her position and her employment.

1. Consent always imports submission, but submission does not always import consent.
2. No halfway house for consent (either consent or not).

Question 17

Rape:

Misconception of Fact ≠ Consent - Siew Yit Beng v PP [2000] 2 SLR(R) 785

Answer 17

D sought medical treatment from T (Chinese physician). Alleged T had raped and molested her in the course of her treatment. She failed a polygraph test, then made a confession that allegations of rape and molest were false; that she was in a relationship with T; and made that false confession because she was afraid her husband would find out.

Held: As D fully understood the nature of her act, her consent to such an act would not be vitiated under s90(a) PC.

Question 18

Rape:

Fear of Injury - S 44 PC

Answer 18

Covers both physical and non-physical threats.

Imposes objective test on D – ‘reason to believe’.

Question 19

Rape:
Defendant’s knowledge of consent - PP v Teo Eng Chan [1987]

[D must believe or has reason to believe in the misconception of fact and not know that the consent was not given by V in consequence of any misconception.]

Answer 19

Ds charged with rape of V (consented out of fear for physical safety). Ds claimed they mistakenly thought that V was only concerned about getting pregnant.

Held: V put up strenuous resistance and successfully prevented D from having sex with her for 30 mins. It was therefore difficult to believe that she would consent to sex with 4 persons, 1 of whom was a complete stranger, 2 days later.

Believing it to be consent would be “without due care and attention”.

S 26 PC (Reason to believe): Person has “reason to believe” a thing if he has sufficient cause to believe that thing.

S 44 PC (Injury): Any harm whatever illegally caused to a person in body, mind, reputation or property.

Question 20

Mistake as to age (S 377D PC):

Buergin Juerg v PP [2013]

Answer 20

D (41 year old Swiss national) appealed against conviction of 2 counts of having commercial sex with a minor under 18. After serving out his sentence, D employed the escort services off a website. D met an escort twice and they had sexual relations on both occasions for which he paid. C was 17 years and 6 months old on the first occasion and 17 years and 9 months on the second. D had asked for her IC but was shown her elder sister’s instead. On that basis, D argued that he did not know that the escort was under 18 at the time of the offences.

Held: Defence cannot be raised because of clear wording of statute. Only defence is where D is under 21.

Question 21

Mistake as to age (S 377D PC):
Lie Xing Long v PP [2014]

BUT NOTE 2019 CHANGES:
S 377D(2): Defence of reasonable belief is minor is or is above 16yo, unless:
1. Previous sexual conviction;

2. Failed to take all reasonable steps.

Answer 21

D had sexual intercourse with a minor under 18 and that he paid her. D had asked for her age and IC; she lied and produced her elder sister’s IC. D appealed conviction on the basis that he had taken all proper care and caution to avoid the commission of the offence. He argued that the statutory defence of “accident in the doing of a lawful act” under s80 PC was available to him as he had satisfied all its elements.

Held: Clear wording in statute precludes any defence, even if:

• Accused had been deceived into believing minor was above 18;
• Belief was honest and reasonable; and
• Took proper care and caution.