What did the High Court decide in Thangarajan Elanchezhian v Public Prosecutor [2024] SGHC 306?

In [2024] SGHC 306, Sundaresh Menon CJ dismissed the appellant's appeal against his conviction and six-month sentence for outrage of modesty under s 354(1) of the Penal Code, finding no basis to interfere with the District Judge's assessment of the evidence or the sentence.

[2024] SGHC 306 — THANGARAJAN ELANCHEZHIAN v PUBLIC PROSECUTOR

Q: What is the offence of outrage of modesty under s 354(1) of the Penal Code?

In Thangarajan Elanchezhian v Public Prosecutor [2024] SGHC 306, the appellant was convicted of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) and sentenced to six months' imprisonment, a conviction and sentence upheld on appeal by Sundaresh Menon CJ.

SUPREME COURT OF SINGAPORE

2 December 2024

Case summary

Thangarajan Elanchezhian v Public Prosecutor [2024] SGHC 306

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

Decision of the General Division of the High Court (delivered by Chief Justice Sundaresh Menon):

Outcome: The General Division of the High Court (“GDHC”) dismissed the appellant’s appeal against conviction and sentence in relation to a single charge of outrage of modesty. The GDHC also provided guidance on a recommended approach for managing the questioning of complainants of sexual offences in court.

Pertinent and significant points of the judgment

• The court should take on a more active supervisory role in managing the giving of evidence by complainants of sexual offences. This is a fundamental aspect of the court’s duty of active case management: at [55]–[58].

• At the pre-trial stage, the judge conducting the trial should consider convening a pre-trial conference with the Defence and the Prosecution to identify the main issues in contention and, where possible, elicit the general nature of the defence. This will inform the parties’ preparations for cross-examination: at [60]–[61].

• At trial, the judge will have to assess the permissibility of each question as it is being posed to the complainant in cross-examination. In this regard, the Court developed a two-step framework: at [65]–[74].

Background

1 The appellant, Mr Thangarajan Elanchezhian (the “Appellant”), was charged with one count of the offence of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and claimed trial.

2 On 13 September 2021, the Appellant and the complainant (“PW1”) boarded a bus which started and ended its journey at an interchange. At the time, PW1 was 16 years old and was returning home from school. The Appellant was also on his way home after getting his second Covid-19 vaccination.

3 Upon boarding the bus, PW1 sat on the window seat at the second-last row on the driver’s side. After PW1 had taken her seat, the Appellant sat beside her on the seat to her left. There were several seats around them which were unoccupied.

4 About ten minutes into the journey, the Appellant moved his right elbow outward and in an up-and-down motion. This caused his right elbow to press against the side of PW1’s body, from her waist to the area just below her armpit (the “Elbow Contact”). PW1 suspected that the contact was deliberate when it persisted for several minutes. PW1 did not change seats or alight from the bus because she was afraid to cross in front of the Appellant to the aisle. As a result, she missed her intended stop.

5 Following the Elbow Contact, PW1 testified that the Appellant started to use his finger to stroke her left lower thigh. He then allegedly proceeded to touch her left knee with his right hand. PW1 stated that the touching of her knee lasted for “less than 1 minute” before she asked him to stop. The Appellant then stopped touching PW1 but remained in the seat beside her until the bus returned to the interchange, where both of them alighted.

6 Later that evening, PW1 told her teacher (“PW2”) what had happened on the bus. PW2 accompanied PW1 to the police station to lodge a police report on the next day.

7 The District Judge (“DJ”) convicted the Appellant of the charge and sentenced him to six months’ imprisonment. Dissatisfied with the DJ’s decision, the Appellant appealed against his conviction and sentence.

Decision

The DJ did not err in convicting the Appellant of the charge

8 The Appellant’s defence was that all contact between him and PW1 was purely accidental and a result of his attempt to alleviate the pain in his right arm caused by the vaccination. However, the evidence of the doctor who administered the vaccination (“Dr Vikram”) was that the vaccination was administered on the Appellant’s left arm instead of his right: The Court found no reason to disbelieve Dr Vikram’s evidence: at [34]–[36].

9 The surrounding facts also demonstrated that the contact between the Appellant and PW1 was intentional. It was incredible that the Appellant would choose to sit next to a stranger and to “accidentally” be in repeated physical contact with her over a prolonged period. The Appellant also did not change his seat or deny that he had been touching PW1 even after PW1 asked him to stop touching her: at [37]–[38].

10 The Appellant’s ostensible concerns over the inconsistencies in his long statement were overstated: at [39].

The DJ did not err in imposing the sentence of six months’ imprisonment

11 The DJ had correctly applied the sentencing framework set out in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”). Under this framework, the court first considers the offence-specific factors present on the facts. The court will then place the offence within one of three sentencing bands to determine the indicative starting sentence for the accused. As a final step in the framework, the court will consider any aggravating and mitigating factors relating to the offender and calibrate the sentence to be imposed: at [21] and [43].

12 The DJ correctly assessed the offence as falling at the lower end of Band 2 as the offence involved a young and vulnerable victim, took place on public transport and caused the victim to suffer a degree of emotional harm: at [44]–[47].

13 A case may fall within Band 2 even if it does not involve an intrusion into the victim’s private parts. In this regard, there are a number of disjunctive classes of cases encapsulated in the court’s formulation of Band 2 in Kunasekaran: at [50]–[51].

A recommended approach on managing the questioning of complainants of sexual offences in court

14 While complainants of sexual offences should be protected from undue and insensitive harassment in cross-examination as much as possible, such protection must be balanced against the accused person’s right to a fair trial, which includes the right to challenge the complainant’s testimony. In this regard, the court should take a more active approach in managing the giving of evidence by complainants of sexual offences. This is a fundamental component of the court’s duty of active case management: at [55]–[58].

15 This duty is engaged even before the trial commences. At the pre-trial stage, the judge conducting the trial should consider convening a pre-trial conference with the Defence and the Prosecution to identify the main issues in contention and, where possible, elicit the general nature of the defence. This will inform the parties’ preparations for cross-examination: at [60]–[61].

16 Following the pre-trial stage, the judge’s duty of active case management will extend to framing the contentious points which are likely to be explored in cross-examination before the commencement of the trial. This will enable the judge subsequently to shut out impermissible lines of questioning: at [64].

17 At trial, the judge will have to assess the permissibility of each question as it is being posed to the complainant in cross-examination. In this regard, the following two-step framework may be instructive: at [65].

18 First, the judge should determine whether the question is relevant, ie, whether it relates to facts in issue or matters that have to be dealt with, in order to determine the facts in issue: at [66].

19 Second, if the question is found to be relevant, the judge should go on to consider whether it nevertheless falls within a specific prohibition in the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”) or the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018. Section 154 of the Evidence Act, for example, prohibits any question which appears to the court to be intended to insult or annoy. Where a complainant of a sexual offence is cross-examined, questions which rely on or which further a harmful stereotype will generally fall foul of this prohibition. These stereotypes refer to unjustified beliefs about sexual violence which serve to downplay such behaviour: at [68]–[70].

20 The Court provided examples of these harmful stereotypes: at [72].

21 The onus to ensure that such cross-examination is conducted in an appropriate manner also falls on counsel, who owes duties to the witness and the court: at [75]–[77].

22 In this case, the application of this proposed approach would, at the pre-trial stage, have reminded the DJ of the thrust of the Appellant’s defence and, at trial, alerted the DJ to lines of questioning which were likely impermissible: at [79]–[82].

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.

THANGARAJAN ELANCHEZHIAN v PUBLIC PROSECUTOR

Catchwords

Practice Areas

Judges (1)

Counsel (4)

Parties (2)

Case Significance

Summary

What did the High Court decide in Thangarajan Elanchezhian v Public Prosecutor [2024] SGHC 306?

What is the offence of outrage of modesty under s 354(1) of the Penal Code?

Statutes Cited

Cases Cited (14)

Referenced in

Statutes interpreted in this judgment

Legal concepts & references

Sentencing outcomes for this offence

Judgment