Adam bin Darsin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 April 2001
• Neutral Citation: [2001] SGCA 25
• Date: 16 April 2001
• Subject Matter: Carnal intercourse against order of nature,Fellatio,Appeal,s 377 Penal Code (Cap 224),Whether sentence manifestly excessive and/or crushing,Criminal Procedure and Sentencing
• Docket Number: Criminal Appeal No 28 of 2000
• Published date: 19 September 2003
• Defendant Counsel: Jaswant Singh and Mohamed Nasser Ismail (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Appellant in person

(delivering the grounds of judgment of the court): The appellant, Adam bin Darsin, before the High Court, pleaded guilty to eight charges for committing the offence of carnal intercourse against the order of nature under s 377 of the Penal Code (Cap 224). Fifteen other similar charges were taken into consideration for the purpose of sentencing. He was sentenced to ten years` imprisonment on each of the eight charges, and four of the eight terms of imprisonment were ordered to run consecutively and the remaining four terms to run concurrently with the four consecutive terms of imprisonment. This resulted in an aggregate term of imprisonment of 40 years. The appellant appealed against the sentence. We allowed the appeal and reduced the term of imprisonment for each of the charges to five years, and following the order below we ordered four of the terms of imprisonment to run consecutively and the remaining four to run concurrently with the four consecutive terms of imprisonment. In aggregate, the term of imprisonment was reduced to 20 years. We now give our reasons.

The facts

The appellant is 32 years old and worked as a delivery man for Kentucky Fried Chicken. He is a self-professed male homosexual. In January 1997, he befriended one of his victims (`V6`), while the latter was playing street soccer in a street soccer court. In July of the same year, the appellant told V6 that he needed a place to live and asked if he could stay with him. V6`s mother agreed, and the appellant moved into their flat, Block 53 Lorong 5, Toa Payoh [num ]06-06, paying a monthly rent of $150 to $200. Later, in early 1999, the appellant had a quarrel with V6`s brother, and as a result he moved out of the flat to his flat, Block 52 Lorong 6 Toa Payoh [num ]04-20.

Thereafter, V6 became a regular visitor to the appellant`s flat. He spent much of his time there and played computer games on the appellant`s Sony Play Station. On occasion, he would bring food from his mother to the appellant. V6 even had a set of keys to let himself into the flat.

The appellant met his other victims at the street soccer court through V6`s introduction, who referred to him as `uncle`. Normally, after the soccer games, the appellant would invite the boys to his flat to play computer games. In June 2000, the boys gathered in his flat to watch the Euro 2000 football tournament.

It was at his flat, Block 52 Lorong 6 Toa Payoh [num ]04-20, where the offences were committed. The acts of carnal intercourse committed by the appellant were acts of fellatio which he performed on the victims and these took place over a period of 12 months, between July 1999 and June 2000. His victims were boys between the ages 12 and 15 years old. He committed the offence on each occasion when his victim was alone with him, and he forced himself on his victim and performed the act of fellatio. It is unnecessary to narrate each of the offences which he committed and with which he was charged. For our purpose, it is sufficient to set out below the summary of such offences as given by the judge at first instance, which we respectfully adopt:

7 The Accused would accost the victims when they were alone in his flat. He would proceed or continue to suck the penis of the respective victims despite their mild protests. In some cases, the victims were too afraid or too shocked to resist. They did not tell anyone about the incidents. On one occasion, he accosted Victim 7 in the kitchen of the flat while some of the other boys were playing the video games elsewhere in the flat. He pulled down Victim 7`s shorts when the latter emerged from the toilet in the kitchen and proceeded to suck his penis, stopping only when the victim shouted "Jangan" (or "Don`t"). Victim 7 returned to join the others without telling them about the incident in the kitchen.

8 In another incident, when Victim 8 was in the Accused`s flat past midnight playing the video games, the Accused sat beside him and talked about his financial woes and work-related problems. Suddenly, the Accused unbuckled Victim 8`s pants and pulled them down to his knees. He then proceeded to perform fellatio on Victim 8 who was too shocked to react and did not struggle but told him to stop. The Accused ignored him and continued with his act until Victim 8 ejaculated. The Accused then swallowed the semen.

On 21 June 2000, one Muhammad Kamal Ariffin bin Osman, the complainant, who is a friend of the victims, confronted the appellant and accused him of having fellated them. An argument between them took place which was followed by a fight. The complainant then went to the home of one of the victims (`V8`) and told the latter`s parents what the appellant had done to him. V8 then admitted that the appellant had indeed fellated him. V8, his parents and the complainant then lodged a police report. On 22 June 2000, the appellant was arrested.

The decision below

In the instant case, there were 23 charges against the appellant and the charges were that he committed carnal intercourse against the order of nature under s 377 of the Penal Code. All these acts of carnal intercourse were fellatios which he performed on the eight boys, whose ages ranged between 12 and 15 years old, at various times in his flat. Only eight charges, each involving a different boy, were proceeded with. The appellant pleaded guilty to the eight charges and admitted to the other charges, which were taken into consideration for the purpose of sentencing.

The judge, following PP v Kwan Kwong Weng [1997] 1 SLR 697 , held that fellatio between two male persons is unnatural carnal intercourse within the meaning of s 377 of the Penal Code, and in the instant case consent was irrelevant. In deciding on the sentences the judge bore in mind the decision of this court in Lim Hock Hin Kelvin v PP [1998] 1 SLR 801 . He referred to the guidelines laid down in that case. It was there held that the starting point for unnatural carnal intercourse committed by way of anal intercourse is ten years` imprisonment and the term should then be increased or decreased depending on the presence of aggravating or mitigating factors respectively. For chronic paedophiles, it was said that life imprisonment would be the appropriate sentence. On the facts of the case, the judge concluded that the appellant was not a `chronic paedophile`, and accordingly a sentence of imprisonment for life was not appropriate.

The judge then referred to the very recent case of PP v Tan Ah Kit (Unreported) , which he decided, and repeated what he said there. He equated the act of fellatio with that of anal intercourse, holding that they are `not really distinguishable when they are the subject of charges preferred under Section 377`. He therefore applied the guidelines in Kelvin Lim (supra) and sentenced the appellant to ten years` imprisonment on each of the eight charges, and ordered four of the eight terms of imprisonment to run consecutively and the remaining four terms to run concurrently with the four consecutive terms of imprisonment. The aggregate term of imprisonment was therefore 40 years.

The appeal

We turn first to Kelvin Lim (supra) and the guidelines laid down by this court. In that case, the accused pleaded guilty to and was convicted by the High Court of ten charges: four charges under s 377 of the Penal Code for having carnal intercourse against the order of nature, one charge under s 377 read with s 511 of the Penal Code for attempting to have carnal intercourse against the order of nature, and five charges under s 377A of the Penal Code for committing acts of gross indecency. The acts of unnatural carnal intercourse were acts of anal intercourse committed on the victims, and the acts of gross indecency were acts of fellatio performed on him by the victims. In addition, there were 30 similar charges: ten charges for unnatural carnal intercourse (which were acts of anal intercourse performed on his victims) under s 377 and 20 charges of acts of gross indecency (which were acts of fellatio performed on him by his victims) under s 377A, which were taken into consideration for the purpose of sentencing. The victims involved were five young school boys, aged between eight and twelve years at the time of the offences. Further the accused had previous convictions for similar offences. He was sentenced by the High Court to ten years` imprisonment on each of the four charges under s 377 of the Penal Code, five years` imprisonment on the charge under s 377 read with s 511 of the Penal Code, and one year`s imprisonment on each of the five charges under s 377A of the Penal Code. The terms of imprisonment on the four charges under s 377 were ordered to run consecutively and the terms of imprisonment on the remaining six charges were to run concurrently with...