Case Summaries

Public Prosecutor v Wee Teong Boo [2020] SGCA 56 Criminal Appeals No 15 and 16 of 2019 and Criminal Motion No 2 of 2020

SUPREME COURT OF SINGAPORE

10 June 2020

Case summary

Public Prosecutor v Wee Teong Boo [2020] SGCA 56
Criminal Appeals No 15 and 16 of 2019 and Criminal Motion No 2 of 2020

-----------------------------------------------------------------------------------------------------

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

Outcome: CoA affirms Dr Wee Teong Boo’s (“Dr Wee”) acquittal on the rape charge. CoA overturns Dr Wee’s conviction on the outrage of modesty charge and his conviction on the offence of sexual assault by digital penetration.

Pertinent and significant points of the judgment

  • To invoke s 139 of the Criminal Procedure Code (“CPC”), it will be necessary to ascertain that the case at hand does in principle fall within ss 138 and 139 of the CPC (at [92] and [109]–[115]):
    • this will necessitate consideration of the following factors: (i) what the relevant factual base was; (ii) what the areas of factual uncertainty were; (iii) what were the potential offences that could be constituted by the provable facts as a result of the factual uncertainties; and (iv) whether the unframed charge falls within those potential offences; and
    • It is also necessary to ensure that the accused person would not be prejudiced in any way by invoking s 139 of the CPC and convicting him on an unframed charge.

Introduction

1 These cross-appeals pertain to the convictions and sentence of a medical practitioner, Dr Wee Teong Boo (“Dr Wee”). Dr Wee claimed trial to two charges. The first charge was for the offence of outrage of modesty (“the OM Charge”) that allegedly occurred on 25 November 2015. The second charge was for the offence of rape (“the Rape Charge”) that allegedly occurred on 30 December 2015.

 

Background to the appeal

2 Dealing first with the OM Charge, according to the victim (“V”), on 25 November 2015, she experienced gastric discomfort and consulted Dr Wee in the late afternoon. During the consultation, Dr Wee palpated V’s lower abdominal area and then pressed on the “joint area” near V’s groin and remarked that there was a lump. Dr Wee proceeded to press on V’s vagina over her panties using the fingers of his right hand. Dr Wee then allegedly slid his right hand under V’s panties and started stroking her vagina with his right fingers in an up and down motion. He then asked V to sit up, and as she did so, he continued stroking V’s vagina with his right fingers. After some time, V heard Dr Wee say “okay” before withdrawing his right hand.

3 Unknown to Dr Wee, V subsequently scheduled an appointment on 5 December 2015 at a polyclinic ostensibly to have the lump in her groin area checked. She asked to see a female doctor and was attended to by one Dr Sheena. She told Dr Sheena that a lump was suspected near her groin. Dr Sheena checked and found that there was indeed a lump, at which point V felt assured that what Dr Wee had previously done to her was, after all, part of a legitimate medical examination. Dr Sheena was not available to give evidence at the trial but the contemporaneous clinical notes that she had prepared were not wholly consistent with V’s account.

4 Dr Wee denied that he had outraged V’s modesty during the consultation on 25 November 2015. He claimed that V complained of gastric pain and phlegm. He directed V to the examination room and palpated her abdominal area, which was the standard abdominal examination he would have performed on all his patients in these circumstances. After the examination, he prescribed some medication for phlegm and gastritis and V left the consultation room.

5 Turning to the rape charge, according to V, on the morning of 30 December 2015, V felt an itch at her genital area and noticed that she was urinating frequently. She consulted Dr Wee at about 11:50pm on the same day. V informed Dr Wee of her symptoms. Dr Wee directed her to the examination room. V lay down on the examination bed and Dr Wee examined and palpated her abdomen area. He allegedly pressed on the same “joint area” as he had done on 25 November 2015 and again told her that there was a lump. Using his right fingers, Dr Wee then rubbed V’s vagina in an up and down motion over her panties. He asked V if this was where she felt the itch and she confirmed this.

6 Dr Wee removed V’s shorts and panties and placed them next to her left leg. Dr Wee positioned V on the examination bed such that her legs were apart and he was standing between them. V’s buttocks and left thigh were still on the examination bed but her right leg was hanging off the bed and supported by Dr Wee’s hand. From her position, she could only see Dr Wee’s upper chest and head. Her legs were supported at Dr Wee’s waist level and he was firmly holding them below her knees. In this position, Dr Wee pulled V towards him and she felt “something horizontal” poke into her vagina. V saw Dr Wee’s body moving forward and backward with each poking sensation, while his hands were holding V’s legs below her knees at all times. After a few moments, V told Dr Wee that she felt pain. He then released V’s legs, at the same time, moved his hands to support her lower back and pulled her closer to him in a “half-seated” position. She felt something push deeper into her vagina and when she looked down, she saw Dr Wee’s penis partially inside her vagina. She was shocked and put up her left hand as a gesture to Dr Wee to stop.

7 Dr Wee withdrew his penis and let go of V. V put on her shorts and panties and got off the bed. V left the clinic after collecting her medication, which included some medication that she was allergic to. V reached home at about 1.00am on 31 December 2015. All her family members were asleep and V was not able to sleep that night.

8 Dr Wee denied the foregoing account and denied raping V or penetrating her vagina with his penis. According to Dr Wee, V presented with complaints of gastric reflux, frequent urination and cough. He performed the standard abdominal examination, and when he palpated V’s left lower abdomen, V told him that there was discomfort. V then suddenly told Dr Wee that she had a genital itch. Dr Wee was concerned that V might have pelvic inflammation disease (“PID”), and, with V’s express consent, proceeded to conduct a vaginal examination to exclude PID. According to Dr Wee, he wet his right fingers using his saliva and then inserted his right index and middle fingers deep into V’s vagina towards V’s right pelvic area to check for pain and discharge. V said there was no pain or discomfort. He then repeated this process in V’s middle and left pelvic area, and V said that she felt a slight discomfort in both of these areas. He informed V that if the discomfort continued, V should go to a hospital for a check-up. He then told her the examination was over and V got up while he was withdrawing his fingers. Dr Wee attended to another three patients or so, and left the clinic around 12.40am on 31 December 2015.

9 Dr Wee underwent three separate medical examinations on his erectile function. The first was a doppler ultrasonography conducted on 13 January 2016, which suggested that Dr Wee at best had only a mild condition of Erectile Dysfunction (“ED”). It was further reported that Dr Wee had a maximum Erection Hardness Score (“EHS”) of three out of four. An EHS of three meant that the “penis [was] hard enough for penetration but not completely hard”.

10 On 22 March 2016, at the direction of the police, Dr Wee saw another doctor, who ordered a second doppler ultrasonography. This resulted in a report that a full erection was not achieved and Dr Wee’s penile shaft was flexible at his best-achieved erection. On 7 June 2018, Dr Wee underwent a haemodynamic test for erectile function administered by Dr Sriram Narayanan. In Dr Sriram’s report dated 7 June 2018, he reported that Dr Wee had significant bilateral venous leak, and could only achieve an EHS of one after ten minutes, with no improvement at 20 minutes. An EHS of one meant that the “penis [was] larger but not hard”.

11 The High Court judge (“the Judge”) convicted Dr Wee on the OM Charge and sentenced him to one year’s imprisonment and two strokes of the cane. The Judge acquitted Dr Wee of the Rape Charge because he found that there was a reasonable doubt as to whether it would have been physically possible for Dr Wee to have carried out penile-penetration of V’s vagina in the manner described by her. The Judge, however, found that Dr Wee’s digital penetration of V’s vagina, based on his own account, was sexual in nature. The Judge proceeded to exercise his power under s 139 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), convicted Dr Wee of the offence of sexual assault by digital penetration under s 376(2)(a) of the Penal Code (“the Digital Penetration Offence”) without framing a charge and sentenced him to nine years’ imprisonment and four strokes of the cane. Dr Wee was 68 years old at the time of sentencing and so could not be caned. In the circumstances, Dr Wee was sentenced to an aggregate term of imprisonment of 10 years.

12 Dr Wee appealed against both his convictions as well as his sentence. The Prosecution appealed against Dr Wee’s acquittal on the Rape Charge and cross-appealed against the sentence that was meted out.

 

The Court of Appeal’s decision

13 The Court of Appeal (“the Court”) affirmed the Judge’s decision to acquit Dr Wee of the Rape Charge. The medical evidence clearly established that Dr Wee did suffer from ED at the time of the alleged rape. According to V, she had been raped while Dr Wee stood between her legs and was holding on to her legs throughout the incident. At the trial, one of the doctors who gave evidence explained that even with an EHS of three, it would have entailed great difficulty for the penis to enter the vagina unaided, especially if such penetration was of a virginal partner. It was common ground that V was a virgin, not a willing partner and plainly did not facilitate the alleged penetration. In these circumstances, the Court held that there was ample reason to doubt that Dr Wee, who had ED at the material time, would have been able to sustain sufficient tumescence to be able to penetrate a virginal partner, whilst using both his hands only to support her body weight: at [48] and [53]–[54].

14 The Court held that it was impossible to understand how V could have thought that the alleged conduct of Dr Wee on 31 December 2015 could ever have been explicable on the basis that it was part of a medical examination. The Court accepted that up to the point before V alleged that Dr Wee penetrated “something horizontal” into her vagina, she might have thought that his actions were perceived as being part of a medical examination. However, V could not have perceived any of Dr Wee’s alleged actions after that point to be part of any medical examination. This was especially the case given her narrative, which was that Dr Wee’s hands were holding on to her legs at all times, and he was moving back and forth while penetrating “something” into her vagina and later that she saw that his penis was partially inside her vagina. The Court found V’s account and the explanation for allowing it to continue, namely that it was perceived as being part of an examination, far from convincing: at [55]–[59].

15 The Court also agreed with the Judge that it was doubtful whether Dr Wee would have attempted penile penetration given that at the material time, the clinic assistants and some other patients were waiting in the clinic. The sliding door leading to the examination room could not be locked, and V could have easily screamed for help. To find that Dr Wee had raped V in these audacious circumstances, he must have believed that he could get away with it because V would not even know that she was being raped and would remain completely silent throughout the ordeal. But, this was an improbable scenario to begin with, and further, the Prosecution never put this to Dr Wee or explored this line of inquiry at the trial: at [60]

16 The Court overturned the Judge’s conviction of Dr Wee on the OM Charge. The Court had difficulty accepting V’s testimony that she thought Dr Wee’s alleged actions on 25 November 2015 were part of a medical examination. The Court accepted that V could have reasonably assumed that Dr Wee’s examination of her “joint area” near her groin and with considerable hesitation, perhaps even his pressing of her vulva using his right fingers outside her panties were part of the medical examination. Dr Wee’s subsequent alleged actions were, however, nothing like any medical examination. Dr Wee allegedly slid his right hand under V’s panties and started stroking V’s vulva in an up and down motion. V testified that the “medical examination” lasted a “very long” time, Dr Wee stroked her vagina until it became “wet”, and she felt as though Dr Wee was “playing around with [her] vagina”. Taken together, the Court found it incredible that V could have thought that this was part of a medical examination: at [79]–[81].

17 The Court was troubled by the significant delay of 36 days between the alleged outrage of modesty event and it being reported. V testified that she was reassured that Dr Wee’s actions were part of a medical examination after her consultation with Dr Sheena. The polyclinic record however, reflected that V had consulted Dr Sheena for “pain over the left groin area for [three] days” and not because, as V claimed, of any suspected lump that had allegedly been discovered more than a week earlier. As regards V’s assertion that it suddenly dawned on her that the alleged sexual assaults were similar on 31 December 2015, the Court held that the alleged sexual assaults were in fact so dissimilar that the events of the alleged rape could not possibly have coloured her perception of what had transpired on 25 November 2015: at [64]–[65] and [82]–[85].

18 The Court overturned Dr Wee’s conviction on the Digital Penetration Offence. The Court held that the present case did not fall within the ambit of s 139 of the CPC. The factual narrative relied upon by the Prosecution was, and had always been, that Dr Wee penetrated V’s vagina with his penis. The Digital Penetration Offence rested on a version of the facts that was fundamentally incompatible with the case mounted by the Prosecution and with the evidence of the complainant, V. Moreover, this was not a case where there was factual uncertainty in the Prosecution’s case. On the case that the Prosecution ran in respect of the Rape Charge, the Digital Penetration Offence was simply not within the range of possible offences that Dr Wee could have been convicted of: at [117]–[119].

 

This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.

YOU MAY ALSO BE INTERESTED IN