Public Prosecutor v Iryan bin Abdul Karim and Others

• Judge: Tay Yong Kwang J
• Judgment Date: 30 November 2009
• Neutral Citation: [2009] SGHC 272
• Citation: [2009] SGHC 272
• Defendant Counsel: The first accused, the second accused and the third accused in person
• Published date: 07 December 2009
• Plaintiff Counsel: David Khoo, Sellakumaran Sellamuthoo and Nicholas Khoo (Attorney- General's Chambers)
• Date: 30 November 2009
• Docket Number: Criminal Case No 27 of 2009
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Criminal Law

30 November 2009

Tay Yong Kwang J:

Introduction

The accused persons and the victim

1 The three accused persons (collectively, the “accused persons”), all male Singapore nationals, in this case are:

(a) the first accused, Iryan bin Abdul Karim (“Iryan”), then aged 20^{[note: 1]};

(b) the second accused, Muhammad Hamdan bin Abdul Rahman (“Hamdan”), then aged 19^{[note: 2]}; and

(c) the third accused, Mohammed Zameen bin Abdul Manoff (“Zameen”), then aged 20^{[note: 3]}.

2 The victim, aged 22, is also a male Singaporean (“the victim”). At the time of the offences in April – May 2008, the accused persons and the victim were all inmates sharing cell 5-55 in Changi Prison Cluster A.

The charges faced by the accused persons

3 Iryan, Hamdan and Zameen faced a total of 14, 12 and 15 charges respectively under the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”). The charges comprise a mixture of hurt and sexual assault charges and are described in the following paragraphs (see [4] – [8] below).

The hurt charges

4 The accused persons faced 10 charges each, for the following offences committed in furtherance of the common intention of them all:

(a)	voluntarily causing hurt to the victim on 28 April 2008, at about 6 p.m., by punching, jumping and stepping on his chest, an offence under s 323 read with s 34 of the Penal Code[note: 4];
(b)	voluntarily causing hurt to the victim on 29 April 2008, at about 12 noon and 6.30 p.m., by punching his chest on each occasion, offences under s 323 read with s 34 of the Penal Code[note: 5];
(c)	voluntarily causing hurt to the victim on 29 April 2008, at about 12.10 p.m. by means of a substance which is deleterious for the human body to swallow, namely, by forcing the victim to swallow human faeces, an offence under s 324 read with s 34 of the Penal Code (the “faeces incident”)[note: 6];
(d)	voluntarily causing hurt to the victim on 29 April 2008, sometime after dinner time, by kicking and punching his body, and jumping and stepping on his chest, an offence under s 323 read with s 34 of the Penal Code[note: 7];
(e)	voluntarily causing hurt to the victim on 29 April 2008, at about 9.45 p.m., by punching and kicking the whole of his body, an offence under s 323 read with s 34 of the Penal Code[note: 8];
(f)	voluntarily causing hurt to the victim on 30 April 2008, at about 6.30 p.m., by punching and kicking the whole of his body, an offence under s 323 read with s 34 of the Penal Code[note: 9];
(g)	voluntarily causing hurt to the victim on 1 May 2008, at about 5.45 p.m., by punching his chest, an offence under s 323 read with s 34 of the Penal Code[note: 10];
(h)	voluntarily causing hurt to the victim on 2 May 2008, at about 5.45 p.m., by punching his chest, an offence under s 323 read with s 34 of the Penal Code[note: 11]; and
(i)	voluntarily causing grievous hurt to the victim on 3 May 2008, at about 5.45 p.m., by punching and kicking him on the chest and thereby causing the following injuries to the victim[note: 12]:
	(i)	fracture of the lower sternum and manubrium (ie, the breastbone);
	(ii)	fracture of the fifth, sixth, seventh, ninth, 10th and 11th right ribs;
	(iii)	fracture of the fifth, sixth, seventh and eighth left ribs; and
	(iv)	fracture of the L2, L3 and L4 lumbar vertebra

an offence under s 325 read with s 34 of the Penal Code.

5 In addition, Iryan and Zameen faced one additional charge each of voluntarily causing hurt to the victim, in the furtherance of their common intention, on 27 April 2008, at about 9.30 p.m., by punching the victim’s chest, an offence under s 323 read with s 34 of the Penal Code^{[note: 13]}.

6 Prior to the commencement of the trial proper, Iryan^{[note: 14]} , Hamdan^{[note: 15]} and Zameen^{[note: 16]} admitted to the s 323, s 324 and s 325 Penal Code hurt charges against them and did not dispute the particulars of hurt caused in each case. During the trial however, Zameen disputed his involvement in the s 324 Penal Code charge against him and claimed that he had “dissociated” himself from the faeces incident^{[note: 17]}. I will elaborate on this later. All the accused persons also contended that the faeces incident occurred on 3 May 2008 and not 29 April 2008^{[note: 18]}.

The fellatio and sodomy charges

7 On top of the hurt charges stated above:

(a)	Iryan faced three charges of penetrating with his penis the mouth of the victim, without the victim’s consent, on:
	(i)	27 April 2008, at about 9.50 p.m[note: 19].;
	(ii)	28 April 2008, sometime in the evening[note: 20]; and
	(iii)	4 May 2008, sometime in the evening[note: 21],
offences under s 376(1)(a), and punishable under s 376(3) of the Penal Code;
(b)	Hamdan faced two charges of penetrating with his penis the mouth of the victim, without the victim’s consent, on:
	(i)	28 April 2008, sometime in the evening[note: 22]; and
	(ii)	4 May 2008, sometime in the evening[note: 23],
offences under s 376(1)(a), and punishable under s 376(3) of the Penal Code; and
(c)	Zameen faced three charges of penetrating with his penis the mouth of the victim, without the victim’s consent, on:
	(i)	27 April 2008, at about 9.50 p.m[note: 24].;
	(ii)	28 April 2008, sometime in the evening[note: 25]; and
	(iii)	4 May 2008, sometime in the evening[note: 26],
and one charge of penetrating with his penis the anus of the victim, without his consent, on 28 April 2008, sometime in the evening (the “sodomy charge”)[note: 27]. All four charges are offences under s 376(1)(a), and punishable under s 376(3) of the Penal Code.

8 While Iryan admitted to having penetrated the victim’s mouth on 27 April 2008 and 4 May 2008, he denied that he had done so on 28 April 2008^{[note: 28]}. Hamdan admitted to having penetrated the victim’s mouth on 28 April 2008 and 4 May 2008^{[note: 29]} and Zameen also admitted that he had done so on 27 April 2008, 28 April 2008 and 4 May 2008^{[note: 30]}. Regardless of the date on which these events happened and the accused persons involved in each occasion, all the accused persons contended that the victim had consented to oral penetration. Zameen disputed the sodomy charge^{[note: 31]}.

Amendments to the charges and the issues for determination

9 It would be convenient to crystallise the issues at the outset so as to place them in context within the facts that follow. As I noted above at [6], the accused persons disputed the date on which the faeces incident took place. They did not dispute that the incident actually occurred. In these circumstances, I amended the respective charges relating to the s 324 Penal Code charge against the accused persons (viz, the fifth charge against Iryan, fourth charge against Hamdan and the sixth charge against Zameen) at the end of the trial so that, for example, vis-à-vis Iryan, it now read:

That you…on or about the 29th day of April 2008 at about 12.10 p.m. at cell 5-55 of Changi Prison Cluster A, 982 Upper Changi Road North, Singapore, together with one Muhammad Hamdan Bin Abdul Rahman and one Mohammaed Zameen Bin Abdul Manoff, and in furtherance of the common intention of you all, did voluntarily cause hurt to [the victim] by means of a substance which is deleterious to the human body to swallow, to wit, by forcing him to eat human faeces, and you have thereby committed an offence punishable under section 324 read with section 34 of the Penal Code, Chapter 224. [emphasis added]

The fourth charge against Hamdan and the sixth charge against Zameen were also similarly amended.

10 Given that the assault occurred over a number of days, it was unclear when exactly grievous hurt was inflicted on the victim. For this reason, I amended the s 325 Penal Code charge against all the accused persons (viz, the first charge against all the accused persons) at the end of the trial so that, for example, vis-à-vis Iryan, it now read:

That you…on or about the 3rd day of May 2008 at about 5.45 p.m. at cell 5-55 of Changi Prison Cluster A, 982 Upper Changi Road North, Singapore together with one Muhammad Hamdan Bin Abdul Rahman and one Mohammaed Zameen Bin Abdul Manoff, and in furtherance of the common intention of you all, did voluntarily cause grievous hurt to [the victim] by punching and kicking him on the chest, causing him to suffer the following injuries – (a) fracture of the lower sternum and manubrium; (b) fracture of the right 5th, 6th, 7th, 9th, 10th and 11th ribs ; (c) fracture of the left 5th, 6th, 7th, and 8th ribs; and (d) fracture of the L2, L3 and L4 lumbar vertebra, and you have thereby committed an offence punishable under s325 read with s34 of the Penal Code, Chapter 224. [emphasis added]

The first charge against Hamdan and Zameen were also similarly amended.

11 The evidence did not support the allegation that the accused persons “jumped” on the victim’s chest (as stated in the seventh and tenth charges against Iryan, the fifth and eighth charges against Hamdan, and the eighth and 11^th charges against Zameen) on 28 April 2008 and 29 April 2008. I therefore amended these charges against the accused persons by deleting the reference to “jumping”.

12 With the above amendments, the issues that arose for determination are, whether the prosecution has proved beyond a reasonable doubt:

(a)	that Iryan penetrated with his penis the victim’s mouth on 28 April 2008 (see [7(a)(ii)] and [8] above);
(b)	the s 324 Penal Code common intention charge against Zameen in respect of the faeces incident (see [4(c)] and [6] above);
(c)	the sodomy charge against Zameen (see [7(c)] and [8] above); and
(d)	that on each occasion that it happened, the victim did not consent to the penetration of his mouth by Iryan’s, Hamdan’s or Zameen’s penis (see [8] above).

13 Having considered the evidence and the submissions given by the prosecution and the accused persons, I was convinced beyond reasonable doubt that the s 324 Penal...