Case Summaries

BLV v Public Prosecutor[2019] SGCA 62

SUPREME COURT OF SINGAPORE

8 November 2019

Case summary

BLV v Public Prosecutor [2019] SGCA 62
Criminal Appeal No 10 of 2017

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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):

Outcome: Court of Appeal dismisses the appellant’s appeal against conviction and sentence for offences arising from his sexual abuse of his biological daughter, and enhances his aggregate sentence on account of his abuse of the court’s process on appeal.

Pertinent and significant points of the judgment

· In determining the extent of the uplift in sentence to be imposed on account of an offender’s abuse of the court’s process, the court should consider: (a) the severity of the sentence that is to be enhanced; (b) the egregiousness of the abuse that has been committed; and (c) any applicable safeguards to ensure that the uplift imposed is not excessive (at [95]).

· Where the abuse of court process takes the form of adducing false evidence in an attempt to avoid criminal liability, some of the non-exhaustive indicia of the egregiousness of the abuse include: (a) the significance of the false evidence and its centrality to the accused person’s guilt: (b) the extent of planning and premeditation involved; (c) the level of sophistication; and (d) whether the false evidence was adduced on appeal, as opposed to at first instance (at [99]).

Introduction

1 The appellant (“the Appellant”) was convicted in the High Court of ten charges arising from his sexual abuse of his biological daughter (“the Victim”), and sentenced to an aggregate sentence of 23 years and six months’ imprisonment with 24 strokes of the cane. He subsequently appealed to the Court of Appeal (“the CA”) against both his conviction and his sentence.

Background to the appeal

2 The Appellant’s sexual abuse of the Victim, which consisted of (among other acts) digital and penile penetration of her mouth and anus, took place over multiple occasions in the family home (“the Family Home”) between the end of 2011 and 15 April 2014, when the Victim was aged between 11 and 13. The sexual abuse came to light after it was disclosed by the Victim to her mother (“the Mother”) on 16 April 2014, and the Mother made a police report on 6 May 2014. A total of ten charges were brought against the Appellant: (a) five under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) (the second and seventh to tenth charges); (b) four under s 376 of the Penal Code (the third to sixth charges); and (c) one under s 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (the first charge) (at [1], [7], [9], [18] and [19]).

The proceedings in the High Court

3 A central plank of the Appellant’s defence at the trial was that his penis was deformed as a result of a penis enlargement procedure that had gone wrong, and that this deformity made it highly improbable that he could have penetrated the Victim’s mouth and anus with his penis. In support of this defence, the Appellant adduced two photographs depicting the state of his penis as at October 2016 (“the October 2016 photos”) and a medical report by Dr Lee Fang Jann (“Dr Lee”) dated 17 October 2016. The Victim and the Mother, however, gave a different description of the Appellant’s penis at the time of the offences (at [2], [20] and [21]).

4 The Appellant’s other grounds of defence were that:

(a) the Mother and the Victim had fabricated the alleged instances of sexual abuse because of the Mother’s desire to get a divorce, and because the Appellant had given them a harsh scolding prior to the disclosure of the sexual abuse (at [23]);

(b) there were discrepancies between, on the one hand, the Victim’s evidence as recounted in her statement to the police and her oral testimony in court and, on the other hand, her evidence as recorded in a medical report dated 24 June 2014 (at [24]);

(c) it was unusual for the Victim to have shown no signs of trauma despite the alleged sexual abuse she had endured (at [25]);

(d) the Mother had been suspiciously unconcerned after the disclosure of the sexual abuse and had delayed in reporting the Appellant to the police (at [26] and [27]); and

(e) it was implausible for the offences to have gone undetected for so long given the size of the Family Home and the number of people who would have been expected to be around (at [28]).

5 The trial judge (“the Judge”) found the Victim’s testimony unusually convincing and convicted the Appellant of all ten charges. He acknowledged that there was a clear lack of particulars as to the dates and times of the incidents constituting the offences and that the Victim’s evidence contained certain inconsistencies and omissions, but held that this was to be expected because the incidents had spanned a period of time. He was also persuaded by the Victim’s ability to give “age-inappropriate descriptions of an entire range of sexual acts” (at [22]). In contrast, he found no merit at all in the Appellant’s grounds of defence (at [23] to [29]).

6 The Judge sentenced the Appellant to:

(a) two years’ imprisonment for the first charge;

(b) three years’ imprisonment and six strokes of the cane per charge for the second and ninth charges;

(c) ten years’ imprisonment and 12 strokes of the cane per charge for the third to sixth charges;

(d) two years’ imprisonment and six strokes of the cane per charge for the seventh and eighth charges; and

(e) three years and six months’ imprisonment and six strokes of the cane for the tenth charge.

He ordered the sentences for the fourth, sixth and tenth charges to run consecutively, and the sentences for the remaining charges to run concurrently. This resulted in an aggregate sentence of 23 years and six months’ imprisonment with the statutory maximum 24 strokes of the cane (at [30] to [34]).

The Appellant’s application to adduce further evidence

7 At the first hearing of the appeal on 19 January 2018, the Appellant’s counsel informed the CA that three days earlier, the Appellant had met an acquaintance (“Mohamed”) who was willing to testify to the deformed state of his penis. The CA granted an adjournment, and directed the Defence to file a criminal motion to adduce further evidence and a supporting affidavit from Mohamed by 9 February 2018 (at [35]). Mohamed subsequently changed his mind about testifying for the Appellant, but the Defence was still able to file by the 9 February 2018 deadline a criminal motion to adduce further evidence and a supporting affidavit from another acquaintance (“the Witness”) whom the Appellant had allegedly bumped into on 3 February 2018. Prior to that chance encounter, the Appellant had allegedly last met the Witness in 2015 and had not kept in touch with him during the intervening period (at [36]). The Witness claimed that he had come to know the Appellant in 2012, and had sold snacks together with him at the Singapore Expo from 1 to 4 August 2013. On 3 August 2013, while he and the Appellant were using adjacent urinals at a toilet at the Singapore Expo, he had seen the Appellant’s penis and had noted that it did not look normal (at [38] and [39]).

8 Despite the Prosecution’s objections, the CA remitted the matter to the Judge for him to receive additional evidence consisting of: (a) the Appellant’s evidence as to the circumstances in which he had found within two weeks two witnesses who had seen his penis at around the time of the offences; and (b) the Witness’s evidence. The CA specifically directed that the Appellant’s evidence was to be received, at least in part, in order to establish whether he had been party to any abuse of the process of the court (at [37]).

9 At the conclusion of the remittal hearing, the Judge rejected the Appellant’s and the Witness’s further evidence on the basis that it was devoid of credibility (at [42] and [44]). He also found that the Witness and the Appellant had lied about the nature and extent of their friendship. In particular, the Witness had lied about never having gone to Malaysia with the Appellant previously (at [43]). The Judge concluded that the Appellant had arranged for false evidence to be presented before the court, and therefore found beyond reasonable doubt that he had abused the process of the court (at [45]).

The CA’s decision on the main appeal against conviction

10 The CA held that the Appellant’s main appeal against conviction was devoid of merit for the following reasons. First, it agreed with the Judge that the discrepancies in the Victim’s evidence which the Appellant highlighted did not detract from the credibility of the Victim’s testimony (at [53]).

11 Secondly, the CA did not think it was unreasonable for the Mother to have taken some time before reporting the Appellant’s acts of sexual abuse to the police after they were disclosed to her. This was because the Mother: (a) had to make an unenviable choice between reporting the Appellant to the police and preserving the family unit; (b) was struggling to come to grips with the horrific revelations; and (c) had to contend with how to face her parents, who thought very highly of the Appellant (at [54]).

12 Thirdly, the CA agreed with the Judge’s rejection of the Appellant’s assertion that the Victim and the Mother had colluded to fabricate the allegations of sexual abuse in order to advance the Mother’s alleged desire for a divorce. The Mother had obtained a divorce fairly early in December 2014, which would have negated any need for her to cooperate thereafter in the prosecution of the Appellant if all she had wanted was a divorce. It beggared belief that the Victim would have fabricated a series of lewd incidents just to get back at the Appellant or to help the Mother to obtain a divorce (at [55]).

13 Fourthly, the CA agreed with the Judge that despite the presence of other people in the Family Home, there were ample opportunities for the Appellant to commit the offences without being detected because of the family’s habits (at [56]).

14 Fifthly, the CA rejected the suggestion that it was unusual that the Victim showed no signs of trauma. The CA agreed with the Judge that there was no “archetypal victim of sexual abuse”, and noted the medical evidence that many sexual assault victims presented a calm demeanour as part of a defence mechanism to distance themselves from the trauma of the abuse (at [57]).

15 Finally, the CA was satisfied that at the time of the offences, the Appellant’s penis was not as it appeared in the October 2016 photos. The CA agreed with the Judge that the Victim’s inaccurate depiction of the Appellant’s penis in her first two drawings was explicable by her mistaking the bulbous growth at the proximal end of the Appellant’s penile shaft for his testicles and therefore excluding it from those drawings. In any event, any penile deformity as was evident in the Mother’s and the Victim’s drawings of the Appellant’s penis was far less pronounced than what could be observed in the October 2016 photos (at [59]). The CA also agreed with the Judge that the Appellant’s evidence as to his penile deformity was inconsistent and unreliable in view of: (a) his failure to adduce any evidence pertaining to this deformity, aside from the October 2016 photos and Dr Lee’s medical report; (b) his inconsistent claims as to whether this deformity hindered sexual intercourse with the Mother; (c) the implausibility of his claim that he did not seek medical attention for this deformity for more than seven years despite the pain it was allegedly causing him; and (d) the contradiction of certain aspects of his evidence by the testimony of his own expert witness, Dr Lee (at [60]). In addition, the CA held that the Judge correctly drew an adverse inference from the Appellant’s belated raising of his penile deformity (at [61]).

The CA’s decision on the further evidence

16 The CA agreed with the Judge that the further evidence was incredible and should be rejected, and that the Appellant’s conduct in conniving to adduce that evidence amounted to an abuse of the court’s process (at [63]). It came to this conclusion for the following reasons.

17 First, it was remarkable and suspicious that the Appellant had (so he claimed) chance encounters with two witnesses who had allegedly seen his penis at around the time of the offences. This was all the more so because: (a) those chance encounters occurred in extremely close proximity to the first hearing of the appeal on 19 January 2018 and the 9 February 2018 deadline for the Appellant to file his criminal motion to adduce further evidence; and (b) the last time the Appellant and the Witness had met before their chance encounter on 3 February 2018 was allegedly in 2015, and they had not kept in touch during the intervening period (at [64]).

18 Secondly, at the remittal hearing before the Judge, although the Appellant and the Witness were able to provide a consistent account of an event that had allegedly happened more than five years ago on 3 August 2013, there were remarkable differences in their recollection of the circumstances under which they had met just a few months earlier on 3 February 2018. Those differences were material as they pertained to one of the specific issues which the CA had asked the Judge to examine, namely, the circumstances in which the Appellant had found within two weeks two witnesses who had both allegedly seen his penis several years earlier at around the time of the offences. Even if each of those differences might appear insignificant on its own, when viewed together, the inexorable inference was that the Appellant did not chance upon the Witness in the manner that he claimed (at [65] to [68]).

19 Thirdly, even where the Appellant’s and the Witness’s respective accounts of their chance encounter on 3 February 2018 coincided, their narrative was incredible. It appeared, from their accounts, that: (a) the Appellant was content to have the Witness go and meet his lawyer to provide evidence without first verifying if the Witness could indeed give potentially exculpatory evidence; and (b) the Witness, despite not having been in touch with the Appellant for approximately three years prior to their chance encounter, was willing to inconvenience himself by meeting a lawyer with a view to swearing an affidavit and thereafter testifying in court, when he hardly even knew what it was that he was supposed to testify to (at [69] and [70]).

20 Fourthly, the Witness had clearly lied about never having gone to Malaysia with the Appellant previously. The fact that the Appellant and the Witness had previously gone to Malaysia together showed that they had lied about their being just casual acquaintances, and also contradicted their evidence that they had only come to know each other in 2012 (at [71] and [72]).

21 Fifthly, it was implausible that the Witness could recall that he had seen the Appellant’s penis at a toilet at the Singapore Expo on specifically 3 August 2013, the third day of their stint selling snacks together there, when he could not explain how he could remember this with such precision and confidence (at [73]).

22 Lastly, it was incredible that despite the extremely brief glance which the Witness had of the Appellant’s penis and the fact that he did not look at it directly but only had an awareness of it from the side, the Witness was able to draw both a frontal and a top-down image of it. Given his vantage point from the urinal next to that occupied by the Appellant, the Witness could not possibly have seen the Appellant’s penis either from the front or from the top down (at [74]).

23 In view of all these factors and the striking similarity between the Witness’s drawing of the Appellant’s penis and the October 2016 photos, the only inference that could be drawn was that the Witness had copied the October 2016 photos in his drawing. The CA thus concluded that the Witness had falsified his evidence, and had colluded with the Appellant to present false evidence to the court in abuse of the court’s process (at [75] and [76]).

The CA’s decision on the appeal against sentence

24 The CA upheld the individual sentences imposed by the Judge as well as his order that the sentences for the fourth, sixth and tenth charges should run consecutively (at [77]).

25 The CA held that, as a starting point, the Appellant’s offences fell within Band 2 of the sentencing framework set out in Pram Nair v Public Prosecutor [2017] 2 SLR 1015, given that they were committed against the Victim when she was aged below 14. In addition, there was a severe abuse of position and breach of trust, and the offences had caused the Victim emotional turmoil and trauma. In the circumstances, the Appellant’s actual criminality would have warranted a sentence of 14 or 15 years’ imprisonment with 12 strokes of the cane for each of the four offences under s 376 of the Penal Code. However, the Judge imposed a sentence of ten years’ imprisonment and 12 strokes of the cane for each of these offences on account of the totality principle. That reflected a substantial discount of four to five years’ imprisonment for each offence. In view of these circumstances and the fact that none of the other individual sentences imposed by the Judge was manifestly excessive, the CA saw no basis at all for reducing the aggregate sentence meted out by the Judge (at [81] and [82]).

26 In addition, in the light of the Appellant’s clear abuse of the court’s process in falsifying evidence and procuring the Witness to give false evidence in court, the CA was satisfied that a significant uplift in his aggregate sentence should be imposed. This was justified on the bases of specific deterrence, general deterrence and the need to protect the integrity of the judicial process that had been concluded in the court below (at [83] to [88]).

27 It was not necessary for separate charges to be preferred against the Appellant for falsifying evidence and procuring another to falsify evidence on his behalf in order to justify the uplift in his aggregate sentence. This was because the CA was not sentencing the Appellant for separate crimes that he had committed. Rather, it was only punishing him for the very crimes that he had been charged with and convicted of, but with the totality of his conduct, including how he had sought to conduct his defence on appeal, taken into account. It was trite that a court was entitled, based on facts that it was satisfied of, to enhance an offender’s sentence. In this case, the Judge had expressly found beyond reasonable doubt that the Appellant had abused the court’s process, and the CA had upheld this finding (at [91] and [92]).

28 In determining the extent of the uplift in sentence to be imposed on account of an offender’s abuse of the court’s process, the court should consider: (a) the severity of the sentence that was to be enhanced; (b) the egregiousness of the abuse that had been committed; and (c) any applicable safeguards to ensure that the uplift imposed was not excessive (at [95]).

29 The court had to consider the severity of the sentence that was to be enhanced in order to ensure that the uplift imposed was sufficiently significant to achieve the intended deterrent effect. That said, deterrence had to be tempered by proportionality. It was therefore necessary to also have regard to the egregiousness of the abuse of court process that had been committed (at [96] to [98]).

30 In assessing the egregiousness of such abuse where it took the form of adducing false evidence in an attempt to avoid criminal liability, some of the non-exhaustive indicia of egregiousness included: (a) the significance of the false evidence and its centrality to the accused person’s guilt; (b) the extent of planning and premeditation involved; (c) the level of sophistication; and (d) whether the false evidence was adduced on appeal, as opposed to at first instance (at [99]).

31 Two safeguards were necessary to ensure that any uplift in sentence that was imposed on account of an offender’s abuse of the court’s process was not excessive. First, the uplift must not result in a sentence that exceeded the statutory maximum sentence for the offence that the offender had been charged with and convicted of. Second, the cumulative uplift in sentence must not exceed the maximum sentence that the offender could have received had a separate charge pertaining to the conduct constituting the abuse been preferred against him (at [101] and [102]).

32 In this case, the individual sentences imposed on the Appellant by the Judge were objectively lengthy, which warranted a correspondingly higher uplift. The Appellant’s abuse of the court’s process was also especially egregious, given that: (a) the false evidence adduced was central to the Appellant’s guilt; (b) there was significant premeditation and planning by the Appellant; and (c) the false evidence was led on appeal. In the circumstances, the CA increased: (a) the imprisonment sentence for the third to sixth charges from ten years’ imprisonment per charge to 12 years’ imprisonment per charge; and (b) the imprisonment sentence for the tenth charge from three years and six months’ imprisonment to four years’ imprisonment. On the basis of the sentences for the fourth, sixth and tenth charges running consecutively as the Judge ordered, this was a combined uplift of four years and six months’ imprisonment, resulting in an aggregate sentence of 28 years’ imprisonment with the statutory maximum 24 strokes of the cane. This did not violate either of the two safeguards, and was also in line with the totality principle as the Appellant’s actual criminality would have warranted an aggregate sentence of more than 30 years’ imprisonment (at [103] to [105]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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