Mustapah bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 03 October 2023
• Neutral Citation: [2023] SGCA 30
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 34 of 2022
• Hearing Date: 04 April 2023
• Citation: [2023] SGCA 30
• Year: 2023
• Plaintiff Counsel: The appellant (in person)
• Defendant Counsel: Gail Wong, Tay Jia En and Gladys Lim (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Offences,Sexual offences,Criminal Procedure and Sentencing,Sentencing,Appeals
• Published date: 06 October 2023

Judith Prakash JCA (delivering the judgment of the court): Introduction

The present appeal primarily concerns the crime of sexual assault. The appellant herein was convicted on 17 August 2022, after a trial in the High Court, on three charges of sexual assault by oral-penile penetration involving three teenaged male victims. The charges were brought under s 376(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and we refer to them as “the SAP offences”.

The charges in respect of the SAP offences read as follows:

1st charge

between at or about 10.30 p.m. on 17 October 2018 and the early hours of the morning on 18 October 2018, at the playground located at [address], Singapore, did penetrate, with your penis, the mouth of one [V1], a male then aged 16 years old (D.O.B.: XX November 2001), without his consent, and you have thereby committed an offence under section 376(1)(a) and punishable under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed).

2nd charge

between at or about 10.30 p.m. on 17 October 2018 and the early hours of the morning on 18 October 2018, at the playground located at [address], Singapore, did penetrate, with your penis, the mouth of one [V2], a male then aged 17 years old (D.O.B.: XX December 2000), without his consent, and you have thereby committed an offence under section 376(1)(a) and punishable under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed).

3rd charge

between at or about 10.30 p.m. on 17 October 2018 and the early hours of the morning on 18 October 2018, at the playground located at [address], Singapore, did penetrate, with your penis, the mouth of one [V3], a male then aged 17 years old (D.O.B.: XX February 2001), without his consent, and you have thereby committed an offence under section 376(1)(a) and punishable under section 376(3) of the Penal Code (Cap 224, 2008 Rev Ed).

Subsequently, at the sentencing hearing on 12 September 2022, the appellant pleaded guilty to, and was convicted on, a charge for sexual penetration of a minor under 16 years of age (oral-penile penetration), which is an offence under s 376A(1)(c) of the Penal Code. This charge related to a fourth victim. We refer to this offence as “the SPOM offence”. The appellant was then sentenced for the SAP offences and the SPOM offence. In the process, another five charges were taken into consideration (one of these charges related to a fifth victim).

In the event, after the individual sentences were determined, the High Court Judge (“the Judge”) decided that three sentences had to run consecutively. This meant that the appellant had to serve a total of 23 years’ imprisonment with an additional 12 months’ imprisonment in lieu of caning. The penalty of caning could not be imposed because the appellant was above 50 years old at the time of sentencing.

The appellant filed an appeal against both conviction and sentence in respect of the SAP offences and an appeal against sentence in respect of the SPOM offence. He appeared in person at the hearing of the appeal as he had at the trial.

The Factual Background

We now recount the facts leading to the SAP offences as they appear from the evidence adduced in the High Court. These offences involved three students enrolled in institutes of technical education. To protect their identities, these students are referred to as V1 (16 years old), V2 (17 years old) and V3 (17 years old) and collectively as “the Victims”.

The appellant and the Victims resided in the same neighbourhood. The Victims often met at a hut (“the Hut”) in their neighbourhood, together with another friend – the fourth victim (“V4”) (15 years old). Around 2017, V4 introduced the appellant to the Victims and the appellant began to meet the Victims at the Hut. At these meetings, the appellant would drink beer and smoke cigarettes. Whenever they met up, the appellant was friendly with the Victims and he would often tell them about his past experiences and give them his views on various topics. The Victims alleged that the appellant also revealed his past as an ex-convict, a gang member and his involvement in rioting with a large group of people. The Victims viewed the appellant with respect, and saw him as a close friend and even thought of him as a “big brother”.

Prior to 17 October 2018, V2, V3 and V4 were members of a gang. When they wanted to leave the gang, they asked the appellant to help them to do so. The appellant testified that he had helped them to leave the gang by negotiating with the headman of the gang.

Meeting on 17 October 2018

Sometime before 17 October 2018, a rumour circulated amongst the Victims that the appellant had made a fifth victim suck his penis. Because of this, the Victims decided to avoid the appellant. V1 testified that he distanced himself from the appellant as he was worried that he would be made to perform a similar act on the appellant. The appellant was upset and angry when he found out that this rumour was being spread and he wanted to confront the Victims about it.

On 17 October 2018, just after midnight, the appellant called V1 and asked him to meet the appellant at the fitness corner near the Hut. During the call, the appellant spoke to V1 in a serious tone and threatened to “potong” (a Malay word meaning “cut”) him if he did not go there. V1 complied immediately as he was afraid. Once V1 arrived at the fitness corner, the appellant scolded him in vulgar terms and questioned him as to who had spread the rumour. In court, the appellant admitted that he had also slapped V1’s face to make him reveal who was spreading the rumour.

After V1 revealed that V2 and V3 also knew about the rumour, the appellant obtained V2’s and V3’s phone numbers from V1. At around 12.20am and 12.31am on 17 October 2018, the appellant sent V2 and V3 a series of WhatsApp messages with vulgarities directed at them. He demanded that V2 and V3 go to meet him.

Upon receiving these text messages from the appellant, V3 decided to go to meet the appellant. V3 asserted later that he complied with the appellant’s demand to meet as he was afraid that the appellant might threaten his family. V3 met the appellant at the Hut on 17 October 2018, and the appellant questioned him on whether he knew who had spread the rumour. The appellant admitted at trial that he had become angry and slapped V3 when V3 replied that he had forgotten how the rumour started. V3 testified that he felt afraid and had cried during the incident. V3 also claimed that the appellant had threatened to harm his family members if the appellant found out that V3 was defending the person who spread the rumour.

Dissatisfied with the first meeting, the appellant subsequently demanded a second meeting with the Victims so that he could confront them about the rumour once more.

Meeting on 17/18 October 2018

The appellant instructed V1 to arrange for the Victims to meet him on the night of 17 October 2018, and the second meeting took place at about 10.30pm at the Hut. When the appellant arrived, he questioned V2, V3 and V4 about who had started the rumour. Thereafter, the appellant kicked V2’s back and also kicked V4. V2, V3 and V4 tried to explain to the appellant that they were not responsible for spreading the rumour, but the appellant refused to accept their explanations. The appellant told the boys angrily that previously he had been involved in gang fights and had beaten up others. He also threatened to “potong” the Victims’ family members.

The appellant then told V2, V3 and V4 to go with him to the playground. V1 arrived there shortly thereafter. The appellant appeared to be angry and drunk at this point. The appellant slapped V3, causing the latter’s spectacles to fall from his face, and also tried to scratch V3’s eyes. As there were children at the playground, the appellant told the Victims to meet him one by one at the top of the slide in the playground to “settle” the score, whilst the rest were to wait at the Hut for their turns. The appellant believed that the Victims would confess if they were confronted individually.

According to the Victims, the appellant adopted the same method of operation when dealing with each of them. In gist, when the appellant met each Victim at the top of the slide, he asked that victim whether he wanted to settle the problem caused by spreading the rumour and thereafter the appellant unzipped his pants to expose his penis to that victim.

V3 was the first person to meet the appellant at the top of the slide. The appellant exposed his penis to V3 and gave him two options – to either suck the appellant’s penis or to walk away but get beaten up the next time the appellant saw him. The appellant uttered a Malay phrase to V3; the appellant said it was “Takde kau hisap aku punya, boleh tak?” (“the Malay phrase”). By this phrase, the appellant was alleged to have meant that if V3 wanted to settle the problem, he would have to “perform” and to “suck [the appellant’s] penis”. As V3 was unable to immediately decide on what to do, the appellant told V3 to go back to the Hut and send V2 to meet him instead.

V2 was the second person to meet the appellant at the top of the slide. The appellant was angry with V2 and the latter apologised to the appellant. The appellant asked V2 if he wanted to settle the problem. The appellant then unzipped his pants, exposed his penis and gave V2 the same option of either performing fellatio or walking away. He warned V2 that if V2 chose to walk away, the appellant would give him problems in public. V2 then bent down to comply with the appellant’s demand to suck the appellant’s penis. The act of fellatio lasted around two or three seconds before the appellant told him to stop. The appellant did not ejaculate. V2 testified that he decided to perform fellatio on the appellant “out of fear” as he was afraid that if he did not do so, the appellant would beat up V2 or members of his...