Annis Bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 06 November 2003
• Neutral Citation: [2003] SGDC 290
• Court: District Court (Singapore)
• Year: 2003
• Published date: 11 December 2003
• Plaintiff Counsel: DPP Tan Wee Soon
• Defendant Counsel: Mr Ismail Hamid
• Citation: [2003] SGDC 290

1 This is an appeal against sentence by the Accused. The Accused pleaded guilty to a charge of carnal intercourse against the order of nature with one, female, on 23 April 2002 at Chinese Garden Road, an offence punishable under Section 377 of the Penal Code (PC). The charge and the Statement of Facts had stated that this female person was born on 16 April 1986. In pleading guilty, the Accused admitted to asking and engaging with the female complainant to perform fellatio on him as a substitute for natural sexual intercourse.

2 The issue as to whether fellatio is carnal intercourse against the order of nature so as to amount to an offence under section 377 Penal Code has been definitely resolved in 1997 in the landmark case of PP v Kwan Kwong Meng [1997] 1 SLR 697. In that case, the Court of Appeal held, after recognizing that oral sex was practised by some members of the public, that fellatio performed as a substitute for natural sexual intercourse constituted an offence under Section 377 of the Penal Code. In such a situation, consent was irrelevant to the charge. The Court of Appeal said:

“In this appeal we are directly confronted with the question, whether an act of fellatio performed by a woman on a man is an offence under s 377 of the Penal Code (Cap 224)…..

… ….s 377 of the Penal Code is an all-embracing provision covering all ‘unnatural offences’. Undoubtedly it covers the offences of sodomy and bestiality and not only these as the section uses the general words of ‘carnal intercourse against the order of nature’….

…Approaching the question as we have done, consent becomes a material element for when couples engaged in consensual sexual intercourse willingly indulge in fellatio and cunnilingus as a stimulant to their respective sexual urges, neither act can be considered to be against the order of nature and punishable under s 377 of the Penal Code. In every other instance the act of fellatio between a man and a woman will be carnal intercourse against the order of nature and punishable under s 377.

We see no difficulty in the practical application of the approach we have taken. In each case it will be a question of fact for the court to find. There are many permutations and combinations. The court cannot foresee them all. But one thing may be stated firmly and decisively and that is when fellatio is a substitute for natural sexual intercourse between a man and a woman capable in law of giving consent, the woman’s consent to perform the act of fellatio cannot save it from being an offence under s 377 of the Penal Code. It is a question of fact for the court in each case.”

3 That legal pronouncement is binding on the District Courts. As the Accused had admitted to all the essential ingredients of the offence under section 377 Penal Code, he was accordingly convicted of the charge: See Mok Swee Kok v PP [1994] 3 SLR 140, Ngian Chin Boon v PP [1999] 1 SLR 119, Chota bin Abdul Razak v PP [1991] 2 MLJ 77 and Toh Lam Seng v PP [2003] 2 SLR 346. He was sentenced to 2 years’ imprisonment.

The Facts

4 The Statement of Facts, to which the Accused admitted to, is reproduced below:

“The Complainant is XXX XXX XXX (female DOB 16 April 1986, NRIC No: S8722309Z). She was 16 years old as the time of the offence. She is a student.

2 The accused is Annis Bin Abdullah, male, 27 years old (25 years old at the time of the offence), NRIC No: S7616484C of Blk 441 Fajar Road #03-470. He was a Police Sergeant attached to the Police Coast Guard at the time of the offence.

3 Investigations disclosed that in March 02, the complainant got to know the accused in the Internet Relay Chat (IRC) chatroom. Subsequently, they met at a barbecue function which was organized by a mutual friend at Pasir Ris. After their first meeting, the complainant and the accused kept in touch through the telephone and chatroom. On 23 April 02, at about 9.30 pm, the complainant met the accused at the Jurong Entertainment Centre at Jurong Street 13. The accused then drove the complainant to Chinese Garden Road in his car.

4 When the two of them reached Chinese Garden road, they engaged in casual conversation. Subsequently, the accused and the complainant engaged in heavy petting inside the car. The accused asked whether complainant whether she wanted to have sexual intercourse with him but she declined. The accused then requested the complainant to perform fellatio on him. At about 10 pm, the complainant performed the act of fellatio on the accused. After the act, the accused drove the complainant home in his car. They did not engage in sexual intercourse. Thereafter, the complainant and the accused did not meet again.

5 Subsequently, the complainant confided this incident to her friends and she was encouraged to make a police report. On 1 May 2003, the complainant went to Clementi NPC and lodged a police report pertaining to the incident. The accused is charged accordingly. ”

Mitigation and Submission on Sentence

5 The accused is a first offender and had pleaded guilty at the first instance. He is a police sergeant and is 27 years old. In his mitigation, he said he “went to a barbecue at a chalet at Pasir Ris to meet people who were ostensibly surfers of the ‘kampung siber’ and internet enthusiasts”. According to him, they appear to be ordinary decent folks. A few days later, he met the victim (using his counsel’s own words) after the victim initiated a date with him. On the day in question, he drove the victim to Chinese Garden road after the victim had suggested to go for a drive. Then they became intimate and the victim groped him. According to him, the victim subsequently unzipped his trousers and performed fellatio until he ejaculated.

6 Counsel highlighted that the act was consensual and that the accused had fully co-operated with the police. He is the sole breadwinner of his family and would likely lose his job following his conviction in Court as a result of his indiscretion. Counsel also informed the Court that he is betrothed to be married in the middle of 2004 and his perspective wife had forgiven him. Counsel urged the Court to be lenient as he had pleaded guilty and that he was contrite.

7 Following this, the prosecution made a submission on sentence (Exhibit ‘E’). The DPP cited the three cases involving acts of fellatio carried out by or performed on victims of a young age, namely, PP v Wong Siu Fai [2002] 3 SLR 276, Adam bin Darsin v PP [2001] 2 SLR 412 and PP v Peh Thian Jui and Ors [2002] 3 SLR 268. The offenders pleaded guilty in those cases and were sentenced to 5 years’ imprisonment for each of the section 377 Penal Code charges. The DPP also brought to the Court’s attention the case of PP v Raymond Pok [2003] SGHC 18 in which the offender received 2 years’ imprisonment per charge for each of the three section 377 Penal Code charges in addition to other charges.

8 In PP v Wong Siu Fai, the accused was a 36-year-old man who sucked the penis of a 5-year-old boy. There was also another charge for outraging the modesty of the same victim. The accused was sentenced to 5 years’ imprisonment on the section 377 Penal Code charge and one day imprisonment for the section 354 Penal Code charge.

9 In PP v Adam bin Darsin, the accused was a 32-year-old man who pleaded guilty to 8 charges under section 377 of the Penal Code (committing fellatio). 15 other similar charges were taken into consideration. The victims were boys aged 12 to 15 years old. He was sentenced to ten years’ imprisonment per charge with four terms to run consecutively. On appeal, the Court of Appeal reduced the accused’s sentence to five years’ imprisonment per charge. The original order for four of the terms of imprisonment to run consecutively was not disturbed by the Court of Appeal, thus resulting in a total sentence of 20 years’ imprisonment.

10 In PP v Peh Thian Jui & Anor, the accused was a 48-year-old man who had repeatedly raped, molested and also committed fellatio on the daughter of his girlfriend. For the section 377 Penal Code charge, he was sentenced to 5 years’ imprisonment. Overall, he was given a total sentence of 36 years’ imprisonment and 24 strokes of the cane.

11 In PP v Raymond Pok, the accused, a 26 year old male, was charged with various offences involving fellatio, rape, aggravated rape and anal intercourse involving three victims. He pleaded guilty to six charges. Among the charges that he pleaded guilty to was one related to the offender having had fellatio performed on him by a 14 year old girl under s 377 PC. For this offence, he was sentenced to 2 years’ imprisonment. Altogether, he received a total sentence of 23 years’ imprisonment and 24 strokes of the cane.

12 The prosecution informed the Court that the investigations had disclosed that the Accused committed this offence soon after contacting the female complainant in the Internet Chat Relay. The Accused had been a serving police officer at the time of the offence and that he was 10 years’ older than the complainant, who was just a student of 16 years of age. The DPP urged the Court to take into account these aggravating factors when passing sentence.

Sentencing Considerations

13 The punishment prescribed by law for an offender under section 377 Penal Code is punishment for life or with imprisonment for a term which may extend to 10 years, and shall also be liable to a fine. In short, the offence stipulates a mandatory term of imprisonment. The issue here is on the length of the imprisonment term...