[1988]
1 MLJ 156
PUBLIC
PROSECUTOR v TEO ENG CHAN & ORS
OCRJ
SINGAPORE
PUNCH
COOMARASWAMY J
CRIMINAL
CASE NO 30 OF 1986
3
November 1987
Issues
The
issue here is whether ‘Kay’, the complainant had been consented to the sexual
intercourse of the four accused during the alleged offences occurred. There is
also an issue whether the four accused had reasonably belief that Kay had
consented to the sexual intercourse with each one of them and if this act falls
under mistake of fact.
Facts of the Case
The alleged offences took place on Wednesday,
September 4, 1985. The complainant, referred as "Kay", was 16 years
and 10 months old at the time and lived in a kampong house on a road off the
18-km stone on Woodlands Road. She worked at a snack bar in the Bukit Timah
Shopping Centre near the 12-km stone. Her working hours were 10.30 am to 7.30 pm
and Monday was her off-day.
She first met Teo to whom she gave her telephone
number and nickname after he pestered her during work on Sunday, September 1,
1985. He called her that night and invited her to a film show the next day, her
off-day. After the film show, he took her to the nearby flat of a friend, Ah
Boon. As there were people playing mahjong in the sitting room and as it was
noisy with music, he asked her to go to a bedroom as he had something to tell
her.
In the bedroom, Teo tried to have sex with Kay but
she resisted. He managed to kiss her neck and caused a love-bite. But still Teo
did not succeed in any advances to have sex with Kay. They then both go back to
their home.
The next day, September 3, 1985, Ng met Kay for the
first time and teased her about the love-bite on her neck. On September 4,
1985, Ng met Kay when she was on her way back home after work. Ng then told Kay
that he had a friend who could give a ride. Later on, one or more of the
accused met her and invited her for a ride but she refused. Only after Sim,
whose lorry was to be used, told her that her home was on his own way home,
then she accepted the invitation. Her first-ever meeting with Sim and Yap was
that evening.
The five persons ended up in the cabin of the lorry
which Sim drove towards Kay's home but before reached there, Ng requested Sim
to make a U-turn. Ng said he wanted to visit a friend whereupon Kay requested
that she be sent home first. This was rejected. Having made the U-turn, Sim
drove the lorry along a muddy road and ended up in a deserted quarry. There
were no houses around and the terrain was uneven with crevices at the edge of
the quarry, and high ground around. Kay out of fear was crying and indicated
that she wanted to go home. Sim then told Kay to talk to Teo if she wanted to
go home.
She did and repeated to Teo her desire to go home
but he said he would send her home after he had sex with her. She declined,
whereupon he responded by threatening that he would call the others up into the
cabin. He then got down and talked to the others. Sim then boarded the lorry
and asked Kay for sex but she refused. He abused her in Hokkien and upon her
crying threatened to beat her if she continued crying. She declined his request
that she strip and he threatened to ask the others to come up to strip her
completely. He also threatened to beat her and threatened to take her trousers
off himself. Out of fright, she followed Sim’s instructions. Her explanation
was that besides fear of Sim, she was afraid that if he took her trousers off
forcibly, the trousers might become damaged and she would have no trousers to
go home in. Sim then had sex with her after threatened to call the others into
cabin if she refused. Kay cried and screamed with pain during the forced
intercourse. Sim did not complete the act but got up and left the cabin. Ng
then went into the cabin and made similar threats and had sex with her. Each
one of the accused repeatedly threatened her then had sex with her.
Yap was then called by the others to board the
cabin. Disregarding her pleas to spare her and not to have sex with her, he did
so but before he completed the act, Sim boarded the cabin, turned on the light
whereupon Yap withdrew his penis and left the cabin. The men then boarded the
cabin and Sim drove to the main road. Sim sprayed some perfume on her T-shirt,
telling her it would prevent her mother detecting any male odour on her. Later
on Sim took her home. On reaching home, she kept silent when asked many
questions by her mother. After a bath, she went to bed. She had a nightmare and
became conscious of the risk of pregnancy.
At about 9.45 am the next morning, she left home
without telling her mother anything. She said she was not close to her mother
and sisters. She went to a clinic in Bukit Timah Shopping Centre to get contraceptive
pills and was referred to a lady doctor, Dr. Chua. She saw Dr. Chua and told
her in Mandarin that she had been gang-raped. When Dr. Chua asked her if she
would like to make a police report, she said she did not know how to go about
doing so. Dr. Chua then offered her a note but Kay was told it was up to her
whether she wanted to make a report or not. Kay then went to the Bukit Timah
Police Station with Dr. Chua's note and was referred to Tanglin Police Station
where investigations into her allegations commenced with an entry in the
station diary.
Teo, Ng and Yap, after being dropped by Sim at Bukit
Timah Shopping Centre, met a friend with whom they had something to eat at a
stall. One or more of them in the presence of the others told his friend about
the events of the evening. Kay was said to have screamed and cried, struggled
and put up a little resistance.
Prior to the evening of September 4, 1985, Teo had
told the other three that he had sex with Kay previously. In his evidence, he
frankly acknowledged that this was a lie. At around 7.00 pm that day, Teo, Sim
and Ng had discussed the question of taking Kay to the quarry. This was
obviously for the purposes of sex.
According to the other three accused, Teo had told
them that Kay had agreed to have sex with each of them and all she wanted to be
sure was that she was given contraceptive pills to prevent her becoming
pregnant.
Each of the accused admitted sex with Kay but denied
that it was without Kay's consent. If it was with her consent, each denied that
the consent was obtained by putting her in fear of hurt. It was argued that the
lack of physical injury to Kay showed consent. Each accused, claimed that they
had reasonable cause to believe that Kay consented. This was by virtue of Teo
telling the others that he had previously had sex with Kay and that all she
wanted was contraceptive pills to ensure she would not get pregnant.
Decision of the Court
It was held that Teo, Sim and Ng each put Kay in
fear of hurt by their various respective utterances immediately prior to each
having sexual intercourse with her without her consent, which is considered as
rape under section 375, and punishable under section 376(2) of the Penal Code.
Under section 376(2)(b) it has been stated that, “Whoever commits rape on a
woman under circumstances of, at the time of, or immediately before or after
the commission, of the offence, puts her in fear of death or hurt to herself or
any other person, shall be punished with imprisonment for a term of not less
than five years and not more than thirty years and shall also be liable of
whipping.”
Meanwhile Yap found guilty of simple rape under
section 375 of the Penal Code read with section 376(1). Under section 376(1),
it has been stated that, “whoever commits rape shall be punished with
imprisonment for a term which may extend to twenty years, and shall also be
liable to whipping.”
Analysis of the Case
In my opinion, I am agreed with the
judgement made by court. Court has taken each aspect thoroughly before making
any judgement. Looking through the issue, since each of the accused admitted
that they had sexual intercourse with the complainant, but denying it was
without complainant’s consent. Then, now it is the matter of fact whether Kay
really had consented to their act and whether the four accused reasonably
believed that she consented to the sexual intercourse which is would exclude
them from liability.
In determining those issues, it must
be based on several provisions. According to Section 107 of Evidence Act, when
it comes to bringing the case within a general exception, the burden of proof
lies on accused. And the proof must be beyond reasonable doubt. In case of DPP
v Morgan, it had been stated that, if an accused in fact believed that the
woman had consented, he could not be found guilty on rape, whether or not that
belief was based on reasonable ground. But of course, accused must give clear
evidence showing that they really believed the woman had consented to the
sexual intercourse or there was mistake of fact to the act. Else, they will be
found guilty.
Sim, Yap and Ng alleged that they
really believed Kay had consented to the sexual intercourse since Teo told them
that he already had sex with her on 2nd of September even though
that was just a lie. To see whether this considered as mistake of fact or not, court
referred to section 79 of Penal Code where it stated that, “nothing is an
offence which is done by any person who is justified by law, or who by reason
of a mistake of fact and not by reason of a mistake of law in good faith
believes himself to be justified by law in doing it.” Meanwhile, section 52
stated further about ‘good faith’ whereas “nothing is said to be done or
believed in good faith which is done or believed without due care and
attention.” In this matter, it must be seen on the perception of the accused
whether he had done good faith and done with due care and attention or not. Back
to the fact of case, the alleged offences occurred at a deserted quarry on a
dark night and by the presence of four men. Accused alleged that they believe
complainant had been consented to the act, but if we see the circumstances, the
only reason she consented to the act must be because of fear of hurt. On the
other hand, if accused had a good faith during the act, it must be done with a
good care and attention, but, according to Ah Leong, during his conversation
with the four accused, one of the accused said that ‘Kay’ screamed, cried,
struggled and showed a little resistance. It shows that, accused did not have a
good faith towards their action nor giving due care and attention since it was
clear that Kay did not consented to it. Then there was no mistake of fact.
Besides, on 2nd of
September, Kay had resisted from having sexual intercourse with Teo even after
he had pulled down her panties. Then it is unreasonable to believe that she had
consented to have sexual intercourse with four guy on 4th September
which is Sim and Yap were total strangers to her that time. Sim also alleged
that those threats given to her before and during the offences occurred was
just ‘idle threat’. It is unreasonable for Kay to accept those were just ‘idle
threat’ based on circumstances which happened at deserted quarry, with high
ground around and at dark night. These had put her in fear to give her consent
to have sex with four accused. Instead of that, Sim alleged that there was no
injuries on her body and it shows that she had consented. But, according to
section 44 of Penal Code, “injury denotes any harm whatever illegally caused to
any person, in body, mind, reputation or property.” It shows that, not
necessarily to cause injury on body, but ‘mind’ as well. Kay was in fear of
hurt when she gave her consent to have sexual intercourse with the four
accused.
As the conclusion, I agreed with the
court judgment in this case that the four accused could not give proof of
defense beyond reasonable doubt as stated under section 107 of Evidence Act.
Hence, found guilty of rape and punishable under section 376(2) of Penal Code.
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