Facts

The appellant Tan was charged outraging the modesty of the complainant. The latter was in fact a police officer who participated in a police operation aimed at ‘flushing out’ homosexuals in the vicinity. At trial, Tan pleaded guilty to the charge and the magistrate construed the case of Chandresh Patel as obliging him to impose a custodial sentence and caning. He thus sentenced Tan to four months’ imprisonment and three strokes of the cane. Tan appealed against sentence.

Held, allowing the appeal

(1) Unlike the appellant in Chandresh Patel, Tan had not forced his attentions on an unsuspecting and vulnerable victim of the fairer sex. It would be rigidly dogmatic of a court, in passing sentence, to refuse consideration of the circumstances in which the accused was arrested.

(2) Under the circumstances, imprisonment and caning were unwarranted.

Per-curiam

It was disquieting that an accused arrested as a result of a police operation should subsequently be charged with having outraged the modesty of the police officer he came into contact with. It was at least arguable that as far as the accused could discern, there would appear to be little question of consent being forthcoming from the other man. However, since Tan elected to plead guilty, this issue was not discussed by the court.

Case(s) referred to

Chandresh Patel v PP (Magistrate’s Appeal No 357 of 1993) (unreported) (distd).

Legislation referred to

Penal Code (Cap 224) s 354 [1]

Yong Pung How CJ

1. The appellant was charged in the subordinate courts with having, on 19 September 1993 at about 5pm, at Tanjong Rhu reclaimed land, used criminal force to outrage the modesty of one Lee Choon Nam (‘the complainant’), by way of touching the complainant’s penis and thereby committing an offence punishable under s 354 of the Penal Code (Cap 224). He pleaded guilty to the charge and, having been duly convicted, was sentenced to four months’ imprisonment and three strokes of the cane. This appeal was brought against the sentence as being manifestly excessive.

2. The facts of the case were briefly as follows. The complainant was actually a special constable attached to Geylang Division Headquarters. On 19 September 1993, at about 4.40pm, he was one of the police officers who participated in what was termed an ‘anti-gay’ operation at Tanjong Rhu reclaimed land. It appears that the operation was aimed at ‘flushing out’ homosexuals who engaged in homosexual activity in that area. At about 5pm, the appellant approached the complainant and struck up a conversation with him. Shortly thereafter, they proceeded into some nearby bushes where the appellant placed his right hand on the complainant’s penis. The complainant identified himself at this juncture and promptly arrested the appellant.

3. The appellant (who appeared in person in the court below) stated in mitigation that he had merely been taking a stroll around Tanjong Rhu reclaimed land when the above incident took place. He asked the court to take into account as further mitigating factors the fact that he was working as a hawker to support a family of five and also the ill health of his father.

4. In meting out the sentence, the learned magistrate relied in the main on the oral judgment I rendered previously in Chandresh Patel v PP. This was a case in which the appellant, whilst a passenger on a Singapore Airlines flight, had used criminal force on a female passenger seated next to him, intending to outrage or knowing it likely that he would outrage her modesty by touching her vaginal area. Significant reliance was placed by the magistrate on a passage from the oral judgment, which was reproduced in his grounds of decision as follows

[T]he standard sentence where a victim’s private parts or sexual organs are intruded is now nine months’ imprisonment and … caning should additionally be imposed.

5. On appeal it was argued by counsel for the appellant that the above reliance on the principles set forth in Chandresh Patel was in fact misplaced, having regard to the crucial distinctions between the circumstances of that case and those occurring in the appellant’s case. In particular, counsel submitted that the above remarks quoted by the magistrate in his grounds, were directed mainly at the sort of situation encountered in Chandresh Patel itself, a case where a male accused violated the modesty of a slumbering woman without any prior advances or encouragement from her.

6. Having considered the above submissions as well as the arguments of the deputy public prosecutor, I agreed with counsel for the appellant that this was indeed a case to be distinguished from Chandresh Patel. As pointed out by counsel, my observations on the appropriate sentences in cases concerning outrage of another’s modesty were addressed to the context of that case and also other cases bearing similar features. Indeed the reference to the above passage as quoted in the learned magistrate’s grounds of decision may (with respect) have been somewhat misleading. In the oral judgment I gave, that passage was in fact preceded by my examination of the facts of Chandresh Patel, an exercise which led me to make the following comments

[T]his is not a case of someone who is guilty of a seemingly innocent act, like stroking a woman’s thigh on impulse, or making a naughty but harmless nudge. It is also not a case of someone who has had something to drink on the plane, and cannot resist pinching or smacking a passing woman passenger’s bottom, in which case a fine of $4,000 or $5,000 in today’s circumstances would probably be adequate punishment.

In this case the appellant went much further. For this sort of offence in Singapore, the standard sentence where a victim’s private parts or sexual organs are intruded is now nine months’ imprisonment, and since early this month, caning should additionally be imposed. [Emphasis added.]

7. Certainly Chandresh Patel remains good law for cases bearing similar features, but the appellant’s case was not one which fell within this category. Unlike the appellant in Chandresh Patel, the present appellant had not forced his attentions upon an unsuspecting and vulnerable victim of the fairer sex. The complainant in the present case was a young male police officer who had taken active part in a police operation expressly designed to catch out homosexuals engaged in homosexual activity in a secluded area. It would be rigidly dogmatic of a court, in passing sentence, to refuse consideration of these factors.

8. Indeed, I may add that I found it somewhat disquieting that an accused arrested as a result of such police operations should subsequently be charged with having outraged the modesty of the police officer he came into contact with. The facts of the present case, as narrated in the statement of facts, appear to be representative of what occurs in such operations. The accused, who is homosexual, meets another man in an area well known for being a homosexual haunt. He strikes up a conversation with this other man and, on finding him responding in a friendly fashion, assumes him to be a fellow homosexual. He then invites this other man to proceed to a more private spot, the intention being to engage in homosexual activity of some sort; and although this may not be explicitly articulated, it must be plain to both parties having regard to the circumstances of their interaction. It is 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. Of course, the other man then turns out to be a police officer in disguise.

9. Consequently, although a technical offence under s 354 might have been committed, I am somewhat bemused that an accused caught in the manner described above should nevertheless be charged with the offence of outraging another’s modesty; and should, furthermore, be sentenced not just to imprisonment but also to caning. In the present case, of course, the appellant elected to plead guilty and so the above issues were not discussed. He chose solely to appeal against his sentence. I will only say, therefore, that having regard to the events leading to his committing the offence charged, a sentence of imprisonment and caning was quite unwarranted. Indeed, having regard to the reasons given above, and to the assortment of male inmates he will meet in prison, I am of the view that sentences of imprisonment are usually inappropriate for accused persons in similar cases.

10. Accordingly, I allowed the appeal and substituted a fine of $2,000 for the sentence of four months’ imprisonment and three strokes of the cane.

Appeal allowed

Reported by Mavis Chionh