Public Prosecutor v Heng Swee Weng

V K Rajah JA:

[1] The respondent in this appeal (“the Respondent”), a 57-year-old taxi driver, pleaded guilty to one charge of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) before a district judge (“the District Judge”) at a hearing in the Subordinate Courts on 4 May 2009. The victim was a 15-year-old female (“the Victim”). The charge in question, viz, DAC No 8259 of 2009, reads as follows:

The relevant provision, viz , s 354(1) of the Penal Code, reads as follows:

[2] The District Judge sentenced the Respondent to a fine of $2,000 with one week’s imprisonment in default. A further charge relating to the Respondent’s touching of the Victim’s hand was taken into consideration for the purposes of sentencing. The Prosecution appealed against the sentence imposed.

[3] The Respondent also pleaded guilty to a second charge, viz, DAC No 8260 of 2009, for an offence under the Moneylenders Act (Cap 188, 1985 Rev Ed) at the same hearing on 4 May 2009. The sentence imposed for this charge, viz, a fine of $20,000 with four months’ imprisonment in default, was not appealed against.

[4] At around 8.15pm on 1 November 2008, the Respondent, while driving his taxi, was hailed by the Victim along Bedok Road. When the Respondent pulled over, the Victim, a foreigner studying in Singapore, informed him that she was lost and had no money. She enquired if the Respondent would take her to Parbury Avenue where she lived. The Respondent agreed to give her a free ride home.

[5] However, the Respondent did not take the Victim to Parbury Avenue, and took her, instead, to Harvey Avenue (some 5km from Parbury Avenue). Sometime in the course of the journey, the Respondent used his left hand to touch the right hand of the Victim. The Victim eventually alighted from the taxi along Harvey Avenue. As soon as the Victim alighted from the taxi, the Respondent also got out of the taxi, and went over to her and hugged her. The Victim struggled and managed to break free from his grasp. The Respondent then left the scene in his taxi. Eventually, the Victim found her way home.

[6] The reasons for the District Judge’s decision can be found in his grounds of decision (ie, PP v Heng Swee Weng [2009] SGDC 339 (“GD”)).

[7] From the GD, it is apparent that the District Judge had accepted that a fine was an appropriate starting point for an outrage of modesty offence involving the “intrusion of the victim’s body other than private parts … except in circumstances where there is aggravation in the manner of the intrusion” (see GD at [15]). Such an approach was, in his view, supported by the sentencing decision in PP v David Chee Dah Wei, DAC No 25570 of 2008 (22 July 2009) (unreported) (see GD at [16]). In that case, the accused, a former vice-chairman of the Paya Lebar Kovan Community Club Youth Executive Committee, had been fined $2,000 for hugging a 14-year-old girl whom he had brought to a room in a hotel after some community club activities. The District Judge observed that PP v David Chee Dah Wei and the present case had an “almost similar factual matrix” (see GD at [16]). He concluded (see GD at [17]–[18]):

[8] The Prosecution submitted that the District Judge had failed to consider the aggravating circumstances in the case, such as the fact that the Victim was a young girl alone at night and the fear and trauma that was likely to be suffered by the Victim. It was, in addition, submitted that the District Judge had failed to consider that the cases he cited could be distinguished from the present case based on, inter alia, the Respondent’s position of responsibility. It was also submitted that the District Judge had failed to consider the position of responsibility of a taxi driver vis-à-vis his passenger, and the need to deter offences against public transport users, especially women and young girls (citing, inter alia, PP v Neo Boon Seng [2008] 4 SLR 216). The following was submitted in conclusion:

[9] In response, the Respondent submitted that it is trite law that fines are meted out for cases where there is a lack of intrusion of private parts (citing Teo Keng Pong v PP [1996] 3 SLR 329 and Kwan Peng Hong v PP [2000] 4 SLR 96). It was also submitted that it was unnecessary to consider the significance of the position of a taxi driver vis-à-vis his passenger, as the act of molestation had occurred outside the taxi and the Respondent had been acting in goodwill by giving the Victim a free ride home.

[10] The legal principles relating to an appellate court’s revision of a trial court’s decision on sentence are well-established, and need not be set out at length. Suffice it to say that an appellate court would consider revising a trial court’s decision only if:

(a) the trial judge erred in respect of the proper factual basis for the sentence imposed;

(b) the trial judge failed to appreciate the material placed before him;

(c) the sentence imposed was wrong in principle and/or law; and/or

(d) the sentence imposed was manifestly excessive or manifestly inadequate, as the case may be.

[11] The present facts painted a troubling picture with a number of patent aggravating features. The Victim here did not know the Respondent. Lost, distressed and penniless, she had placed her trust in the Respondent, a member of the public transport workforce whom she was entitled to expect would unhesitatingly act with rectitude and common decency. As the Victim was unfamiliar with the area, the Respondent had complete control of the situation, both in terms of the vehicle and the route. In these perturbing circumstances, he hugged the Victim against her will, and the Victim even had to struggle to free herself. The Victim’s situation can be properly described as a textbook case of vulnerability and haplessness. In contrast, the Respondent was in a position of complete control, in respect of the vehicle, the route chosen, and, indeed, the entire situation.

[12] It seemed plain to me that the District Judge should have been slow to rely on PP v David Chee Dah Wei ([7] supra). The facts in that case were somewhat unusual. Apparently, the accused had a prior friendship with the victim. The victim herself was a troubled teenager who unreservedly accompanied the accused to the hotel, despite noticing earlier that he had condoms in his backpack. The victim was not restrained from leaving the hotel room. It also bears mention that the victim took ten days to report the offence initially. The lenient sentence imposed by the District Court in that matter should perhaps be explained as one peculiar to its own facts and ought not to be relied on as a sentencing precedent by any court. Consistency in sentencing is a worthy goal, but at times, particularly in cases involving atypical fact situations, there is a very real danger that the exception might overwhelm the rule if one were to rigidly adhere to “precedent”. The courts should be alert in guarding against this.

[13] The District Judge had also relied on Chandresh Patel v PP [1995] 1 CLAS News 323 as another precedent pointing to the imposition of fines as the appropriate sanction for infractions not involving the touching of private parts. In that case, the accused had pleaded guilty to a charge of outrage of modesty for touching the vaginal area of a sleeping female flight passenger. In enhancing the sentence from three months’ imprisonment to six months’ imprisonment and three strokes of the cane, Yong Pung How CJ stated the following in his brief oral judgment (id at 324):

[14] The importance of Chandresh Patel v PP in sentencing jurisprudence was noted in PP v QO [2006] SGDC 250 by District Judge Kow Keng Siong, who said (at [10]):

Pertinently, however, Kow DJ did not stop there and went on to perceptively observe (id at [11]):

[15] Chandresh Patel v PP would appear, at first blush, to be instructive and relevant to the present case. But a closer inspection reveals a divergence in the present facts and circumstances from the examples countenanced in the passage from that decision (which is set out at [13] above) that Yong CJ had said would warrant a fine. The District Judge found that there had been no aggravating factors present on the facts, stating that “[t]he [Statement of Facts] did not disclose any aggravating factors except the fact that the [Respondent] had hugged the [V]ictim outside the taxi and [touched] her hand” (see GD at [15]). With respect, he had failed to properly appreciate the facts. There were, as noted earlier (see [11] above), several outstanding features that aggravated the offence. In particular, it bears repeating that the Victim had to struggle in order to be free of the Respondent’s unwelcome embrace. This would be starkly dissimilar to the examples set out in the above passage from Chandresh Patel v PP, as a “naughty but harmless nudge” and the “smacking [of] a passing woman passenger’s bottom” would have been brief (although nonetheless offensive) and would not have placed the respective victims under any apprehension of any prolonged or great risk to their personal safety.

[16] Public transport providers, such as taxi drivers, have a “special position” vis-à-vis their passengers. As was astutely observed in PP v Neo Boon Seng ([9] supra) by Chan Sek Keong CJ (at [10]):

[17] In Wong Hoi Len v PP [2009] 1 SLR 115, a taxi driver was assaulted by the accused, a passenger, after he had chastised the latter for vomiting in his taxi. The taxi driver was subsequently pronounced dead at the scene by attending paramedics. In increasing the sentence of the accused from one month’s imprisonment to three months’ imprisonment, I observed (id at [11] and [18]):

[18] The converse is also true. Just as public transport workers deserve special protection, those who abuse the trust placed in them must expect the law to view their conduct as meriting particular denunciation. The “service frontline” has two sides and the protection accorded to one side of the line must, as a matter of logic, be also extended to the other side. In this connection, I reiterate what I had stated in Wong Hoi Len v PP (at [17]):

[19] In PP v Law Aik Meng [2007] 2 SLR 814, these two sides – both requiring protection – were identified in the context of a discussion singling out categories of offences that warrant sentences of general deterrence. I stated (id at [24]):

[20] There was no doubt in my mind, therefore, that the present offence warranted a deterrent custodial sentence. A strong message has to be sent out to those working in the public transport service sector: behaviour taking advantage of more helpless commuters utilising these transport services will and shall not be tolerated by the courts. In PP v Neo Boon Seng ([8] supra), Chan CJ had no qualms about imposing a custodial sentence for a property offence committed by a taxi driver against a passenger. He explained (id at [10]–[11]):

[21] The present case involved the outrage of a 15-year-old girl’s modesty. This was an offence against the person, and was not merely a case of a passenger leaving property behind in a taxi and the taxi-driver failing to return the property (as had been the case in PP v Neo Boon Seng, where the accused was eventually sentenced to three weeks’ imprisonment for criminal misappropriation). The circumstances of the present offence are far more troubling and were far more traumatising than those established in PP v Neo Boon Seng. Accordingly, I was of the view that the $2,000 fine imposed by the court below is wholly inadequate for the purposes of both punishing the Respondent proportionately and sending out an unequivocal deterrent signal to would-be offenders.

[22] In PP v QO ([14] supra) at [14]–[15], Kow DJ helpfully set out the following considerations as a guideline for sentencing in outrage of modesty cases:

[23] While the above factors are far from exhaustive, they offer a useful framework for an analytical sentencing decision. To begin with, it was not disputed by the Prosecution that the Respondent had not molested the Victim’s private parts (Factor (a)). However, the Respondent had used force in order to initiate and maintain the unsolicited hug, so much so that the Victim had to struggle to free herself (Factor (b)). In Kwan Peng Hong v PP ([9] supra), it was held that an offender would be dealt with more leniently where “the act of molest was minor and neither force nor coercion was used” (at [64]). This was not the case here. Furthermore, while the hug did not last for a long duration, it could have led to something else, but for the Victim’s resistance (Factor (c)).

[24] On the facts, the Respondent appeared to have already developed inappropriate intentions whilst in the taxi with the Victim, given that he had already used his left hand to touch her right hand in the course of the journey to Harvey Avenue. This could not have been a completely spontaneous incident (Factor (d)). There must have been some degree of planning on the part of the Respondent, as it was a conscious effort by him to emerge from the taxi and to walk over to the passenger’s side of the taxi to deliver his unwanted hug. Giving the benefit of the doubt to the Respondent, however, this factor would neither be to the Respondent’s favour nor disfavour.

[25] In contrast, there is no doubt that the circumstances under which the offence was committed were entirely reprehensible (Factor (e)). The Victim, a girl lost at night with no money, had placed her trust in the Respondent to assist in helping her find her way home. Instead of doing his utmost to ensure the safety of this young female, the Respondent chose to take advantage of her, under the cover of darkness, in a most odious manner. His acts must have left the Victim in a state of considerable distress because the police received a call at 8.45pm – barely half-an-hour after the Victim had first met the Respondent – from the Victim’s mother who informed them that her daughter “was assaulted by a taxi-driver”.

[26] In the light of the above, the fact that the offender was neither a recidivist (Factor (f)) nor mentally disabled (Factor (g)) did little to mitigate his position.

[27] Having considered the overarching policy concerns and individual features unique to this case, I was satisfied that a term of eight weeks’ imprisonment would be an appropriate sentence in the circumstances.

[28] While taxi drivers and other public transport workers certainly ought to be protected from dangerous and or unreasonable commuters, particularly given the potentially risky nature of their jobs, vulnerable members of the public should likewise be protected from errant members of the transport sector workforce. This reciprocal protection is sensible, particularly in cases such as this where the female victim was young, lost and helpless, and the male perpetrator was completely in control throughout. I emphasise that all passengers travelling in taxis are entitled to expect, at all times, that they can do so in complete safety without being taken advantage of by taxi drivers regardless of whether they are fare paying passengers or not.

[29] For the foregoing reasons, the Prosecution’s appeal was allowed and the sentence of the District Judge was set aside. The Respondent was sentenced to eight week’s imprisonment. The fine of $2,000, which had already been paid by the Respondent, was ordered to be returned to him. Finally, I would like to thank counsel for their assistance. In particular, I would like to commend Mr Aedit Abdullah for having ably presented his case in an even-handed and concise manner.

_________________

Appellant’s Case at para 36.

See Statement of Facts dated 30 June 2009 at para 4.

Id at para 5.

Elena Chong, “Ex-youth leader who molested girl fined $2,000” The Straits Times (23 July 2009) at A6.