[1988] 1 MLJ 156

PUBLIC PROSECUTOR v TEO ENG CHAN & ORS

Issues

The first issue here is whether ‘Kay’, the complainant had been consented to the sexual

intercourse of the four accused during the alleged offences occurred.

Facts of the Case

The complainant, referred as "Kay", was 16 years old girls worked at a snack bar in

the Bukit Timah Shopping Centre. She met Teo (The Accused) to whom she gave her

telephone number and nickname after he pestered her. Then, he invited Kay to a film show

the next day and trying to have sex with her but Kay resisted.

Few says later (Sept 4, 1985), the second accused, Ng met Kay when she was on her

way back from work. He 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.

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.

Kay 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, however he said he would send her home only 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 and left the cabin. Ng

then went into the cabin and made similar threats and had sex with her. Yap, the other one

did similarly to force Kay to have sex with him. Each one of the accused repeatedly threatened

her then had sex with 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.

The next morning, she left home without telling her mother anything. She went to a

clinic to get contraceptive pills and was referred to a lady doctor, Dr. Chua. She told her 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. Kay

then make a police report to 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.

Before that, Teo had told the other accused 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, obviously showing the intention

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.

Kay had resisted from having sexual intercourse with Teo on his first attempt even

after he had pulled down her panties. Then it is unreasonable to believe that she had

consented to have sexual intercourse with the three other accused on the day later which is

Sim and Yap were total strangers to her that time. The accused alleged that those threats

occurred was just ‘idle threat’. It is unreasonable for Kay to accept those were just ‘idle threat’

since it 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, Sim alleged that there was no injuries on her body and it shows that she had

consented. However, injury is not only harm to cause bodily injury, but mentally affected 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.