Public Prosecutor v Muhammad Shafie bin Ahmad Abdullah and others

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 17 September 2010
• Neutral Citation: [2010] SGHC 274
• Plaintiff Counsel: Christina Koh, Gordon Oh and Sabrina Choo (Attorney-General's Chambers)
• Docket Number: Criminal Case No 54 of 2009
• Date: 17 September 2010
• Hearing Date: 13 August 2010,22 July 2010
• Subject Matter: Criminal Law
• Published date: 20 September 2010
• Citation: [2010] SGHC 274
• Defendant Counsel: Anand Nalachandran and Jansen Lim (M/s ATMD Bird & Bird LLP),Peter Ong Lip Cheng (Assigned by CLAS),Ganesan Nadesan, Chong Soon Pong Adrian and Darius Chan (Assigned by CLAS),Ramesh Chandr Tiwary (Messrs Ramesh Tiwary),Wee Heng Yi Adrian (M/s Characterist LLC)
• Court: High Court (Singapore)
• Year: 2010

Chan Seng Onn J: Introduction

This was a matter involving 5 young offenders (collectively “the Offenders”) who had each pleaded guilty to a reduced charge of aggravated outrage of modesty (“the Offence”) under section 354A(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). I sentenced the Offenders to imprisonment terms between 3½ and 5 years with caning ranging from 5 to 8 strokes and I now set out my reasons.

Background

On the night of 25 December 2008, the First Offender (“Shafie”) invited the Second to Fifth Offenders (“Sadruddin”, “Lim”, “Rishi” and “Firdaus” respectively) and one Taufik to Shafie’s flat (“the Flat”) to spend Christmas night together. Shafie’s parents had then gone abroad and were not expected to return to the Flat until the following day. Sometime after they arrived at the Flat, the Offenders became bored and wanted to have female company in the Flat. Lim then called the Victim on her handphone. It was not clear how Lim obtained the Victim’s handphone number but suffice to mention that the Victim and the Fourth Offender, Rishi, were former schoolmates. During the telephone conversation with the Victim, Lim identified himself as one “Jonathan” who was an ITE student studying in the class next to the Victim’s and arranged with the Victim to have supper at Woodlands. The Victim agreed and Rishi eventually picked her up in a taxi at a taxi-stand at Woodlands Bus Interchange. At that point in time, Rishi told the Victim that they would be going for supper at Woodlands Market. En route, however, Rishi brought the Victim to the Flat instead, explaining that he wanted to look for his friends at the Flat first before having supper. At around 1.00am on 26 December 2008 upon arrival at the Flat, Rishi invited the Victim into the Flat on the assurance that his friends would not bother her and the Victim obliged. It was then that the Victim was introduced to Lim, Shafie, Firdaus, Sadruddin and Taufik.

In the Flat, the Victim played drinking games with the company she found herself with until about 3.00am to 4.00am. There was no dispute that Lim had told Shafie and Sadruddin shortly after the Victim’s arrival to buy liquor as he planned for the Victim to drink alcohol that night. There was also no dispute that the Victim had joined in the drinking games because she was feeling festive as it was the Christmas season and the school holidays. Taufik did not join in the drinking games and was playing a PSP game console in the Flat. Firdaus also did not join in the drinking games as he had left the Flat temporarily after the Victim’s arrival. In the course of the drinking games, the Victim drank more than 5 disposable plastic cups of vodka cocktail. As a result, she felt dizzy.

Sometime later that night, the Victim had consensual sexual intercourse with Lim after he made sexual advances towards the Victim privately in Shafie’s bedroom. After sexual intercourse, the Victim then returned to the living room to rest as she was still feeling dizzy from the alcohol she had earlier consumed. The Victim subsequently ended up resting on a chair in Shafie’s bedroom in the presence of all the Offenders. At this point in time, Lim attempted to pull her from the chair for her to lie down with him on the mattress in the bedroom, to which she responded by replying in Mandarin “bu yao” (“I don’t want to”). The Victim eventually lost her balance and landed on the mattress. In the presence of the other Offenders, Lim then crossed his leg over the Victim’s legs, laid beside and started kissing her. The Victim tried unsuccessfully to push Lim’s leg away. At that point, one of the Offenders told the rest, “Let’s start”, and Lim starting removing the Victim’s shorts. The Victim was eventually stripped naked by the Offenders who took turns to sexually assault the Victim by penetrating her mouth and her vagina concurrently with their penises without her consent between 4.00am to 6.00am, in the course of which there was also digital penetration of the Victim’s vagina committed by the Fourth and Fifth Offenders. All this while, Taufik remained in the living room watching television. The Victim suffered bleeding from her vagina during the sexual assault.

The Offenders were originally variously charged under sections 375(1)(a), 376(1)(a) and 376(2)(a) of the Penal Code for rape and sexual assault by penetration of the Victim who was then 17 years old at the material time. The charges were later reduced to outraging modesty under section 354A(1) of the Penal Code with some other charges taken into consideration after 19 days of trial, by which time the Victim had already undergone several days of cross-examination. The table below sets out in detail the reduced charges against the Offenders.

Name of Offender	Charge(s)	Charge(s) Taken into Consideration
Muhammad Shafie bin Ahmad Abdullah (First Offender)	One charge under section 354A(1) of the Penal Code for penetrating Victim’s vagina with penis	-
Mohd Sadruddin bin Azman (Second Offender)	One charge under section 354A(1) of Penal Code for penetrating Victim’s vagina with penis	-
Lim Boon Tai (Third Offender)	One charge under section 354A(1) of Penal Code for penetrating Victim’s mouth with penis	One charge under section 354A(1) of Penal Code for penetrating Victim’s vagina with penis shortly after the group assault ended
Rishi Mohan (Fourth Offender)	One charge under section 354A(1) of Penal Code for penetrating Victim’s mouth with penis	One charge under section 354A(1) of Penal Code for digital penetration of Victim’s vagina
Mohamed Firdaus bin Roslan (Fifth Offender)	One charge under section 354A(1) of Penal Code for penetrating Victim’s vagina with penis	One charge under section 354A(1) of Penal Code for digital penetration of Victim’s vagina

The Offenders pleaded guilty upon the reduction of the original charges of rape and sexual assault by penetration. All the Offenders were between 17 to19 years old at the time the Offence was committed.

Sentencing benchmark

The sentence for an offence under section 354A(1) of the Penal Code is provided for in the same section which states:

Whoever, in order to commit or to facilitate the commission of an offence against any person under section 354, voluntarily causes or attempts to cause to that person death, or hurt, or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint, shall be punished with imprisonment for a term of not less than 2 years and not more than 10 years and with caning.

Sub-section 354(1) of the Penal Code in turn provides that:

Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.

Both the Prosecution and Defence referred to the case of Seow Fook Thiam v PP [1997] 2 SLR(R) 887 at [36] (“Seow Fook Thiam”) where it was held by the High Court that the norm for offences committed under section 354A(1) of the Penal Code is 30 months’ imprisonment and 6 strokes of the cane. It appeared to have been accepted by the Prosecution that the sentencing norm laid down in Seow Fook Thiam was an appropriate starting point against which the Offenders’ culpable conduct was to be calibrated for the purposes of sentencing.

The difficulty of the matter, however, was that there was no direct sentencing precedent insofar as the factual circumstances of the present case were brought within the charge of aggravated outrage of modesty under section 354A(1) of the Penal Code. In Seow Fook Thiam, the accused person had hugged the complainant from behind and used both of his hands to squeeze her breasts at a staircase in her block of flats. Such culpable conduct in Seow Fook Thiam clearly differed by a huge margin from the conduct of the Offenders in the present case. Here, the Offenders had not merely molested the Victim; they had collectively committed acts which, but for the reduction of the original charges by the Prosecution, would have categorically and factually also constituted gang rape and sexual assault by...