Abdul Rashid s/o Syed Ibrahim & Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 13 August 2001
• Neutral Citation: [2001] SGDC 263
• Year: 2001
• Published date: 19 September 2003
• Citation: [2001] SGDC 263
• Court: District Court (Singapore)

Judgment:

Grounds of Decision

THE CHARGES & THE APPEAL

1. Both Appellants claimed trial to the following 2 charges:

a. an offence under section 6(a) of the Prevention of Corruption Act r/w section 34 of the Penal Code: DAC 9265/2001; and

b. an offence under section 221(c) r/w section 34 of the Penal Code: DAC 9266/2001.

2. At the conclusion of the trial, I convicted both Appellants on their respective charges and sentenced them as follows:

a. DAC 9265/2001 - 30 months' imprisonment;

b. DAC 9266/2001 - 2 months' imprisonment;

c. Both sentences ordered to run concurrently.

3. The Appellants have appealed against their convictions and sentences. I now set out the reasons for my decision.

PROSECUTION'S CASE

4. The Prosecution alleged that in the early hours of the morning of 12 December 2000, the Appellants had, in furtherance of a common intention, corruptly obtained sexual favour from one Ms Kannika Sattayakhun as an inducement to refrain from arresting her for having overstayed in Singapore. The Prosecution also contended that after obtaining the sexual favour, the Appellants intentionally omitted to apprehend Ms Kannika when they were legally bound to do so.

UNDISPUTED FACTS

5. The following facts are not disputed at the trial:

a. Ms Kanikka arrived in Singapore on 30 November 2000 and was given a social visit pass valid until 7 December 2000. This social visit pass is endorsed on page 15 of her passport: exh 14. After the expiry of her visit pass, Ms Kanikka continued to remain in Singapore illegally. During her stay here, Ms Kanikka worked as a prostitute at Geylang.

b. The Appellants were police officers attached to the Geylang Police Division HQ. On 11 December 2000, they teamed up to perform patrol car duty from about 10.45 pm to about 8 am (12 December 2000). Their area of patrol included the Geylang area.

c. At about 5 am of 12 December 2000, the Appellants stopped Ms Kanikka at Geylang Lorong 22 and checked her identification. After ascertaining her status, they brought her to Jalan Benaan Kapal where they had sex with her. Thereafter, they released her and resumed their patrol duties.

d. On 2 January 2001, Ms Kanikka made a complaint to CID about the incident. Later that same day, she was referred to CPIB for investigations.

e. A few days thereafter, Ms Kanikka chanced upon Mr Abdul Rashid when he was conducting checks on some men outside a hotel. She noted down his police car registration number (QX 4053T) in her notebook (exh P15) and later provided this information to the authorities.

f. On 12 January 2001, the Appellants were called up by CPIB for investigations. Ms Kanikka positively identified the Appellants during an identification parade conducted that day.

ISSUES AT THE TRIAL

6. Essentially, the material issues revolving around this case relates to (i) whether the Appellants knew that Ms Kanikka was an immigration offender at the material time, and (ii) whether they engaged in free sex with her. Looming in the background is also the question of whether Ms Kanikka was forced to have sex with the Appellants at the material time.

a. According to Ms Kanikka, the Appellants knew that she was an overstayer as they had seen her passport at the material time. After knowing her immigration status, Mr Abdul Rashid pulled her into their patrol car and she was forced to have free sex with them later.

b. The Appellants' defence, on the other hand, was that they only saw Ms Kanikka's photostated work permit at the material time and did not suspect her to be an immigration offender. As they were then having a one-hour break, the Appellants decided to engage her sexual services. Ms Kanikka agreed to their request and charged them $80. By the time they parted company, Mr Abdul Rashid had paid Ms Kanikka for her sexual services. At the end of his patrol duty, Mr Abdul Rashid found that Ms Kanikka had left/dropped $80 in their patrol car.

PROSECUTION'S EVIDENCE

7. To establish their case, the Prosecution relied heavily on the evidence of Ms Kanikka and 5 statements which the Appellants had made to CPIB.

Ms Kannika Sattayakhun

8. According to Ms Kannika, on the day in question, she first saw the Appellants when their police car stopped in front of her at Geylang Lorong 22. After the ppellants had alighted from their car, Mr Abdul Rashid requested for her passport and she produced it accordingly. After both Appellants had examined her passport entries, Mr Abdul Rashid told her that she had overstayed. Upon hearing this, Ms Kanikka became afraid and repeatedly asked him whether he was going to arrest her. Mr Abdul Rashid denied and instead asked about her charges for sex. After indicating $40, Ms Kanikka again asked Mr Abdul Rashid whether he was going to arrest her. The latter replied "No, I want to fuck you!"

9. At this juncture, Ms Kanikka's handphone sounded. Mr Abdul Rashid seized the handphone and switched it off. Ms Kanikka again asked whether they were arresting her. Mr Abdul Rashid replied "No, I want to fuck you". He then held Ms Kanikka's hand and led her to the patrol car.

10. Mr Abdul Rashid drove while Mr Mohammad bin Ali sat besides Ms Kanikka at the rear. During the journey, Mr Mohammad bin Ali pushed Ms Kanikka's head onto his lap. The patrol car eventually stopped at a dark and quiet place.

11. Both Appellants alighted from the car. Subsequently, Mr Abdul Rashid came to the rear seat and began caressing Ms Kanikka. Sensing that he wanted sex, Ms Kanikka retrieved a condom from her bag and put it on for Mr Abdul Rashid. Mr Abdul Rashid pushed Ms Kanikka's head towards his lower body and Ms Kanikka performed oral sex on him. Thereafter, Mr Abdul Rashid positioned Ms Kanikka's body over his and they had sexual intercourse. During the sexual intercourse, Ms Kanikka cried because she was terrified. Mr Abdul Rashid told her not to worry.

12. Mr Abdul Rashid left the car after he had finished and Mr Mohammad bin Ali came in. He similarly began making sexual advances to Ms Kanikka. After she had performed oral sex on him, Mr Mohammad bin Ali positioned Ms Kanikka's body over his. Ms Kanikka handed a condom to him but the latter refused. After the sex, Mr Mohammad bin Ali left the car. Thereafter, Mr Abdul Rashid returned to the car and made Ms Kanikka perform oral sex on him again.

13. Subsequently, the Appellants dropped her Ms Kanikka off somewhere in the vicinity of Geylang Lorong 2 and returned her passport and handphone to her. After her release, she took a taxi home. Ms Kanikka felt horrible as well confused, and she cried upon reaching home. According to Ms Kanikka, the Appellants had forced her to have sex with them. She did not have any choice as they had seized her passport at the material time.

14. Ms Kanikka reported the matter to the police only about 3 weeks after the incident. According to Ms Kanikka, she did not do so earlier because she did not know how to. Furthermore, she did not have any money at the material time. Ms Kanikka eventually decided to make a police report after a friend's advice and because she felt that the Appellants were not good officers.

Ms Kanikka's initial complaint (First Information Report)

15. During the trial, Mr Nathan applied for Ms Kanikka's First Information Report (FIR). The Prosecution's case appeared to be that the first time when Ms Kanikka made a formal complaint about the incident was to Sgt Raba'ah of the Rape Investigation Squad (RIS) at the CID on 2 January 2001.

16. Circumstances of first information/complaint - To clarify the circumstances in which Ms Kanikka made her first complaint, the Prosecution produced Sgt Raba'ah. According to Sgt Raba'ah, the first thing Ms Kanikka told her on 2 January 2001 was that she had been 'rap' (raped). With the assistance of a Thai speaking police officer (SSgt Han Pei Pei), Sgt Raba'ah recorded Ms Kanikka's complaint into her Field Book instead of a police report. Sgt Raba'ah explained that at RIS, the officers would normally interview a complainant before advising her whether she should lodge a formal police report. In this case, after recording her complaint, Sgt Raba'ah did not advise Ms Kanikka to lodge a formal police report. This was because Sgt Raba'ah had concluded at that time that there was no rape.

17. Application for first information/complaint - Having heard the evidence of Sgt Raba'ah, Mr Nathan applied for her Field Book record of Ms Kanikka's first complaint. The Prosecution objected to this application, arguing that there was no FIR in this case. Mr Hwong relied on Sgt Raba'ah's evidence that her Field Book was not used for the purpose of recording FIRs, which according to RIS practice, would be recorded in the formal police report (NP299). The Prosecution contended that since RIS did not have a practice of recording FIRs in the Field Books, there was no basis for saying that Sgt Raba'ah's record of Ms Kanikka's complaint in her Field Book was the FIR.

18. Reasons for acceding to request - I am unable to agree with the Prosecution's contention. Firstly, it ignored the reality that there was indeed a first information/complaint in this case. Ms Kanikka's complaint very clearly fell within the ambit of section 115 CPC. Whether this first complaint/information was recorded in a formal police report (NP299) or a Field Book is a matter of form which did not detract from the nature of the information.

19. Secondly, the Prosecution's position would not promote strict compliance with the procedural requirements in section 115 when dealing with first information/complaint. In so far as it is relevant, section 115 provides as follows:

(1) When information is received at a police station relating to the commission of an offence, being an offence of which it appears that no previous information has been received in the station, the officer in charge of the police station or any police officer whose duty...