Isham bin Kayubi v Public Prosecutor

• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 08 March 2021
• Neutral Citation: [2021] SGCA 22
• Citation: [2021] SGCA 22
• Court: Court of Appeal (Singapore)
• Published date: 11 March 2021
• Docket Number: Criminal Motion No 33 of 2020
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: James Chew, Jane Lim and Angela Ang (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Out of time,Sentencing,Principles
• Hearing Date: 08 March 2021

Andrew Phang Boon Leong JCA (delivering the judgment of the court ex tempore): Introduction

This is the applicant’s motion for an extension of time to file an appeal against the trial judge’s sentencing decision imposing on the applicant an additional term of 12 months’ imprisonment in lieu of caning. Convicted after trial on four charges of rape under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and two charges of sexual assault by penetration (“SAP”) under s 376(1)(a) of the Penal Code, the applicant was initially sentenced to a total of 32 years’ imprisonment and 24 strokes of the cane (see Public Prosecutor v Isham bin Kayubi [2020] SGHC 44 (“GD”) at [94] and [111]). However, the applicant was subsequently certified to be medically unfit for caning due to age-related spinal degeneration and, accordingly, that part of the sentencing decision in respect of caning could not carried out. Subsequently, on 20 July 2020, the trial judge (“the Judge”) sentenced the applicant to an additional term of 12 months’ imprisonment in lieu of caning. Pursuant to s 377(2)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the applicant was required, if he was so inclined, to file within 14 days of the Judge’s decision (ie, by 3 August 2020) a notice of appeal against the Judge’s sentencing decision. On 6 November 2020, the applicant filed the present criminal motion for leave to file an appeal out of time.

Facts Trial proceedings

As stated above, the applicant was convicted, after a trial, on four charges of rape and two charges of SAP. These acts were committed against two 14-year-old girls (see the GD at [1]). The applicant employed the same modus operandi on both victims. He lured the victims to his flat on the pretext of offering them a job and thereafter raped and forced the victims to fellate him under threat of harm (see the GD at [26], [28], [31] and [41]). The applicant also recorded videos of these sexual acts (see the GD at [26], [37] and [44]). By threatening to circulate the said videos, he coerced and raped one of the victims for a second time (see the GD at [31]). The trial was scheduled to commence in August 2019 before the Judge. However, the applicant’s bizarre and blatant conduct during the trial had the effect of delaying proceedings.

At the close of the trial on 5 February 2020, the Judge convicted the applicant on all six proceeded charges. The Judge found that there was overwhelming objective evidence – such as videos of the assault recorded by the applicant himself – that the applicant had performed the relevant sexual acts on the two victims (see the GD at [59] and [85]). Additionally, the Judge found that both victims were credible and reliable witnesses whose evidence was generally consistent (see the GD at [71]–[72] and [93]). He therefore accepted their testimony that they had been coerced into performing the sexual acts with the applicant. The Judge also ascertained from the applicant’s cross-examination of the first victim and his written closing submissions that the applicant’s defence was essentially that: (a) both victims had consented to the sexual acts (see the GD at [52]); and (b) he was a victim of a conspiracy by the first victim and her friends as well as a fabrication by the second victim (see the GD at [53]). After considering the evidence, the Judge rejected both aspects of the applicant’s defence. On sentencing, the Judge imposed a global sentence of 32 years’ imprisonment and 24 strokes of the cane (see the GD at [111]).

The Judge held that the offences fell within Band 2 of the sentencing frameworks for rape and SAP as set out in the Court of Appeal decisions in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 at [73] and Pram Nair v Public Prosecutor [2017] 2 SLR 1015 at [119] and [159] respectively, having regard to the offence-specific aggravating factors such as: (a) the victims’ vulnerability; (b) the presence of premeditation; (c) the use of threats; (d) the recording of the sexual assaults; and (e) the failure to use a condom (see the GD at [103]–[104]). The Judge also regarded the applicant’s prior convictions for similar sexual offences as an important offender-specific aggravating factor (see the GD at [105]). Significantly, the applicant had been convicted in 2008 for multiple sexual offences of a similar nature that were committed against four victims, three of whom were under the age of 16 at the material time (see the GD at [98]). The applicant had similarly targeted and lured those victims to different locations before sexually assaulting them and recording the sexual acts on his mobile phone. Such similarities between the applicant’s antecedents and the present case underscored the need for a deterrent sentence.

Appeal proceedings

On 10 February 2020, the applicant filed an appeal against his conviction and sentence on the basis that the conviction was unreasonable and that his sentence was manifestly excessive. The applicant maintained his defence that the victims had consented to the sexual acts (see this court’s decision in Isham bin Kayubi v Public Prosecutor [2020] SGCA 42 (“the Judgment”) at [10]). He argued that his sentence was excessive because he did not physically harm the victims. In addition, the applicant urged us to grant him a retrial so that he might be represented by counsel (see the Judgment at [10]). At the hearing before us on 27 April 2020, the applicant sought an adjournment for him to engage counsel for the purposes of the appeal. We found no basis to grant any further adjournments and proceeded to hear the appeal. After hearing the parties, we dismissed the applicant’s appeal in its entirety (see the Judgment at [23]). We affirmed the Judge’s findings of fact and were fully satisfied that the victims did not consent to the relevant sexual acts (see the Judgment at [18]). We also upheld the global sentence of 32 years’ imprisonment and 24 strokes of the cane as this was just and proportionate and in no way manifestly excessive (see the Judgment at [22]).

Imprisonment term imposed in lieu of caning.

Following our dismissal of the applicant’s appeal, the applicant was certified to be medically unfit for caning due to age-related degenerative changes in his spine. Pursuant to s 331 of the CPC, the applicant’s sentence of caning could not be carried out. On 20 July 2020, the Judge convened a hearing to decide whether to impose an additional sentence of imprisonment in lieu of the 24 strokes of the cane under s 332(2)(b) of the CPC. The applicant naturally urged the court not to impose any additional imprisonment term in lieu of caning. He pleaded for leniency and highlighted that his exemption from caning was through no fault of his own and that he was already facing a sufficiently long custodial sentence. While the Judge acknowledged that the accused was exempted on medical grounds and could not have known that he would be exempted from caning, he was equally of the view that an additional sentence of 12 months’ imprisonment would serve to compensate for the lost deterrent and retributive effect of caning, especially given the numerous aggravating factors and the applicant’s similarly grave antecedents. Accordingly, the Judge imposed on the applicant an additional 12 months’ imprisonment in lieu of the 24 strokes of the cane.

As noted at [1] above, the last day for the applicant to file a notice of appeal against the Judge’s decision to impose the additional custodial term in lieu of caning, pursuant to s 377(2)(b) of the CPC, was 14 days after the Judge’s sentence. Since the Judge sentenced the accused to 12 months’ imprisonment in lieu of caning on 20 July 2020, the applicant had until 3 August 2020 to file an appeal. He...