Haliffie bin Mamat v Public Prosecutor & other appeals

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 October 2016
• Neutral Citation: [2016] SGCA 58
• Docket Number: Criminal Appeals No 13, 17 and 18 of 2015
• Date: 14 October 2016
• Published date: 15 October 2016
• Plaintiff Counsel: Lionel Leo Zhen Wei, Chng Zi Zhao Joel and Yu Kanghao (Wong Partnership LLP)
• Defendant Counsel: Sellakumaran s/o Sellamuthoo, Tan Yan Shi Crystal and Torsten Cheong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 06 September 2016,20 April 2016
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing,Offences,Rape

Chao Hick Tin JA (delivering the judgment of the court): Introduction

Haliffie bin Mamat (“Haliffie”) was convicted of one count of rape under s 375(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), and one count of robbery under s 390 of the Penal Code. At trial, Haliffie admitted to the robbery charge (save that he disputed some of the items listed in the charge), but denied the rape charge, claiming that the victim (“the Victim”) had consented to sexual intercourse. Following the conviction, the High Court judge (“the Judge”) sentenced Haliffie to 13 years’ imprisonment and 18 strokes of the cane (10 years and 6 strokes for the rape, and 3 years 12 strokes for the robbery).¹

From that decision of the Judge, three appeals have been filed. On 3 June 2015, by way of Criminal Appeal No 13 of 2015, Haliffie appealed the global sentence imposed on him. A week later, on 10 June 2015, he filed a second appeal, Criminal Appeal No 18 of 2015 (“CCA 18/2015”), against his conviction on the rape charge. In the meantime, the Prosecution also filed an appeal, Criminal Appeal No 17 of 2015, against the sentence imposed by the Judge on the rape charge. At the hearing of the appeals before us, Haliffie maintains his defence that the Victim had consented to the sexual intercourse. Therefore, the only issue that arises for our determination in relation to the appeal against conviction is whether the sexual intercourse was consensual.

The charges

The rape charge, as amended during trial, reads as follows:

You, Haliffie Bin Mamat, are charged that you, on 4th May 2013, at between about 6.30am and 6.45am, in motor vehicle SGN 9936 J at the bridge along Kallang Bahru Road, Singapore, did commit rape of one [the Victim] ... by penetrating the vagina of [the Victim] with your penis without her consent, and you have thereby committed an offence under section 375(1) of the Penal Code (Cap 224, 2008 Rev Ed) punishable under section 375(2) of the said Code.

The robbery charge reads as follows:

You, Haliffie Bin Mamat, are charged that you, on 4th May 2013, at between about 6.30am and 6.45am, in the motor vehicle SGN9936J at the bridge along Kallang Bahru Road, Singapore, did commit robbery of the following items: • Louis Vuitton “Palermo” handbag valued at $1630; • Louis Vuitton purse valued at about $700; • Samsung Galaxy Ace 2 phone valued at $290; • Samsung Galaxy S3 phone valued at about $1000; • Cash of about $300; • Chanel makeup set valued at about $240; • Bvlgari perfume valued at about $130; • One EZlink card; • One UOB-Amex credit card; • One Standard Chartered credit card; • One POSB ATM card; • One UOB ATM card; • One Identity Card (bearing NRIC No: SXXXXXXXX)

in the possession of [the Victim] ... by voluntarily causing hurt to the said [the Victim] in order to commit theft, and you have thereby committed an offence punishable under section 392 of the Penal Code (Cap 224, 2008 Rev Ed).

The facts

Given that Haliffie and the Victim have given inconsistent accounts of what happened on the fateful morning in the motor vehicle, we shall first set out the undisputed facts, and then proceed to outline the areas where their accounts differ.

The undisputed facts

In the early morning of 4 May 2013, at around 6am, the Victim was waiting for a taxi along River Valley Road after drinking and dancing at a club nearby.² A small car stopped in front of her and the driver offered her a lift.³ The car was driven by Haliffie.⁴ The Victim accepted Haliffie’s offer and got into the car.

After driving for a while, Haliffie eventually stopped his car at a bridge in Kallang Bahru.⁵ Haliffie went over to the passenger seat and placed himself on top of the Victim. He then sexually penetrated her.⁶ As stated, there is dispute as to whether the sex was consensual. Thereafter, Haliffie returned to the driver’s seat and continued driving for a few hundred metres.⁷ Haliffie then stopped the car again, opened the front seat passenger door, and pushed the Victim out of the car without her bag, which was then on the back seat.⁸

Haliffie’s account

Earlier on 3 May 2013, between 8pm and 9 pm, Haliffie left his Bukit Batok flat and drove off in his car after quarrelling with his wife about finances.⁹ He first went to the skate park near Somerset MRT, and then at about 11pm, he went to look for his best friend Hafiz at Lorong 25 Geylang.¹⁰ At about 1am or 2am in the morning on 4 May 2013, Haliffie then went to look for another friend, Siddarth, who was working as a bartender at Clarke Quay.¹¹ He spent some time with Siddarth at the bar, and left at about 4.45am.¹²

A short while after driving off, Haliffie was on River Valley road where he saw the Victim walking alone at a bus stop. Given his money woes, he decided to rob her.¹³ He claimed that he stopped to offer the Victim a lift home, hoping that she would put her hand bag in the car first so that he could drive off with it.¹⁴ The Victim however came into the car with her bag and so Haliffie drove off with her.¹⁵

The parties exchanged names and had a conversation about their backgrounds.¹⁶ Haliffie alleged that he asked the Victim “Do you like sex?”, to which the Victim replied, “Who doesn’t?”.¹⁷ Following that exchange, Haliffie touched the Victim’s right thigh using his left hand and the Victim held his left hand while he touched her.¹⁸ In the meantime, Haliffie drove around looking for a quiet place to rob the Victim.¹⁹ He ended up along Kallang Bahru, where he stopped his car on the bridge because it was quiet and no one was around. ²⁰ Haliffie claimed that while he originally intended to push the Victim out and drive off with her bag, he instead jumped over to her in the passenger’s seat.²¹ At that point, the Victim swung her bag toward the rear seat.²² Haliffie described in his statement what happened thereafter in the following words:²³

… But then, I don’t know why I just jumped over to her and position myself in between her legs. Her dress was very short and I simply put my right [hand] under her dress and I used my right hand to brush away her panties and I put my right hand under panties and rubbed her vagina. She wasn’t wearing seatbelt and while I was rubbing her vagina, she put both her hands behind my neck and she grabbed my neck and because of that, I had to move my head forward and I kissed her lips. We started kissing and while kissing, I pulled down ¾ pants together boxer till below my knees level. I then put my penis into her vagina and had sex with her. I felt her vagina was wet and very fast, I ejaculated inside her. I then pulled out my penis and she used her right hand to stroke my penis for [a] while before I jumped over to the driver seat. I then pulled up my ¾ pants and I asked her ‘You like it?’ and she replied ‘Ya’ and I drove off.

Haliffie drove off for a distance of about 100m to 200m only, and then stopped the car, opened the front passenger door, and used his left hand to push the Victim out of the car.²⁴ Thereafter, he drove off, reaching home at about 7.15am.²⁵ Haliffie looked through the Victim’s handbag, and took out from it a $10 note, four $2 notes, her EZlink card, her Bvlgari perfume, as well as a Samsung Ace 2 Black handphone. He then dumped the bag with everything else in it next to the dustbin.²⁶ On the same morning, Haliffie sold the Samsung Ace 2 handphone.²⁷ He then returned to his flat to sleep.²⁸

The Victim’s account

On the night of 3 May 2013, because the Victim had difficulty sleeping, she went to a club at Clarke Quay at about 1.30am on 4 May 2013.²⁹ The Victim drank alcohol and danced until the club closed at 5am.³⁰ After leaving the club, she had some difficulty getting a taxi; she spent about an hour in vain trying to flag one.³¹ While she was waiting for a taxi along River Valley Road, a small car stopped in front of her.³² The window of the front passenger door was wound down, and the driver, who we now know is Haliffie, offered the Victim a lift further up the road where she could get a taxi more easily.³³ The Victim accepted the lift and got into the car.³⁴

The Victim gave inconsistent evidence as to whether, during the journey in the car, she spoke to Haliffie, but she was sure that the conversation did not involve anything sexual in nature.³⁵ At some point, when the Victim saw some taxis with “green lights” along the road, she asked Haliffie to stop, but he offered to take her all the way home.³⁶ The Victim claims that she then dozed off for a while.³⁷

Five to 10 minutes later, the Victim woke up and noticed that the car was stationary.³⁸ The Victim told Haliffie that she would like to alight.³⁹ At that point, Haliffie took her handbag, threw it to the back seat and went over to the front passenger seat, on top of the Victim.⁴⁰ This is the Victim’s account of the rape that then took place:⁴¹

I shouted for help. The driver became violent and came over from his seat. His body came on top of me. I struggled as he held on to my right hand. I managed to free my right hand from his grip at one point and used it to attract the attention of the drivers of the passing cars. He then grabbed my right hand and hit it against something hard in the car, thus causing me pain.

At that time, it was dark and raining. The driver then tried to kiss me. While restraining my right hand with his hand, he removed his t-shirt with his other hand. I tried to use my left hand to reach for my handbag as I wanted to get my handphone to call the police.

The driver lowered his “three quarter pants” and I knew that he wanted to rape me. I struggled but his knees were pressing against my right thigh area. He tried to kiss me on my lips but I turned my head away.

I then used my left hand and tried to reach for my left shoe as I wanted to use it to hit him. He used both his knees to restrain both my thighs and I could not move freely. I...