Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 19 August 2019
• Neutral Citation: [2019] SGHC 191
• Plaintiff Counsel: Charlene Tay Chia and Gregory Gan (Attorney-General's Chambers)
• Date: 19 August 2019
• Docket Number: Criminal Case No 35 of 2016
• Hearing Date: 21 May 2019,14 August 2019,23 April 2019
• Subject Matter: Sexual offences,Criminal law,Attempted rape,Sexual penetration,Offences,Outrage of modesty,Rape,Sentencing,Criminal procedure and sentencing
• Published date: 22 August 2019
• Defendant Counsel: Ng Joel Yuan-Ming and Ngiam Hian Theng, Diana (Quahe Woo & Palmer LLC),Ng Huiling Cheryl (Intelleigen Legal LLC),Tan Chor Hoon Alice (Intelleigen Legal LLC)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 191
• Year: 2019

Woo Bih Li J: Background

Three accused persons, Mr Ridhaudin Ridhwan bin Bakri (“Ridhwan”), Mr Muhammad Faris bin Ramlee (“Faris”) and Mr Asep Ardiansyah (“Asep”) were tried before me for a number of sexual offences committed against a female Singaporean (“the Complainant”) on 26 January 2014 in Room 310 of a hotel formerly located along Duxton Road, Singapore (“the Duxton Hotel”). The Duxton Hotel has since been torn down. At the time, the Complainant was 18 years of age, while each of the three accused persons was 20 years of age.

Ridhwan, the first accused person, faced three charges: One charge of sexual assault by penetration under s 376(2)(a) punishable under s 376(3) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) (“the 1st Charge”); One charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (“the 2nd Charge); and One charge of using criminal force to outrage the modesty of the Complainant punishable under s 354(1) of the Penal Code (“the 3rd Charge”).

Faris, the second accused person, faced two charges: One charge of rape under s 375(1)(a) punishable under s 375(2) of the Penal Code (“the 4th Charge”); and One charge of sexual assault by penetration under s 376(2)(a) punishable under s 376(3) of the Penal Code (“the 5th Charge”).

Asep, the third accused person, faced two charges: One charge of sexual assault by penetration under s 376(1)(a) punishable under s 376(3) of the Penal Code (“the 6th Charge”); and One charge of attempted rape under s 375(1)(a) punishable under s 375(2) read with s 511 of the Penal Code (“the 7th Charge”).

On 23 April 2019: I convicted Ridhwan on the 1st, 2nd and 3rd Charges; I convicted Faris on the 4th Charge and acquitted him on the 5th Charge; and I convicted Asep on the 6th and 7th Charges.

The circumstances as to how the three accused persons committed the offences are set out in my judgment dated 23 April 2019 (Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others [2019] SGHC 105).

The parties’ submissions on sentence The rape charges

The Prosecution submitted that the rape offences (ie, the 2nd and 4th Charges against Ridhwan and Faris respectively) fell within Band 2 of the sentencing framework set out by the Court of Appeal in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”). Applying the Terence Ng framework, the appropriate sentence would be 15 years’ imprisonment and 12 strokes of the cane.¹

The Defence did not dispute that the Terence Ng framework was applicable in the present case for the rape offences but disagreed with the Prosecution as to which band Ridhwan’s and Faris’ actions fell within. Both Ridhwan and Faris argued that the appropriate sentencing band was Band 1, with Ridhwan submitting a sentence of 12 years’ imprisonment and six strokes of the cane and Faris submitting a sentence of 11 years’ imprisonment and six strokes of the cane.²

The sexual assault by penetration charges

Turning to the sexual assault by penetration offences, the Prosecution submitted that the sentencing framework set out by the Court of Appeal in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”), which applies to digital-vaginal penetration, could be adapted to the 1st Charge against Ridhwan³ (for digital-anal penetration) and the 6th Charge against Asep (for fellatio).⁴ The Prosecution took the same position that the offences fell within Band 2, submitting a sentence of 12 years’ imprisonment and eight strokes of the cane for the 1st Charge (digital-anal penetration) and 13 years’ imprisonment and eight strokes of the cane for the 6th Charge (fellatio).

For the 1st Charge (digital-anal penetration), the Defence took the position that Ridhwan’s actions fell within Band 1, submitting a sentence of less than eight years’ imprisonment and four strokes of the cane.⁵

For the 6th Charge (fellatio), the Defence submitted that the Pram Nair framework was of limited application in the present case. Referring to the case of Public Prosecutor v Chua Hock Leong [2018] SGCA 32 (“Chua Hock Leong”), the Defence argued for a sentence of not more than ten years’ and six months’ imprisonment and six strokes of the cane for the 6th Charge.⁶

The outrage of modesty charge

For the 3rd Charge against Ridhwan for outrage of modesty, the Prosecution submitted that I should apply the sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”). The Prosecution submitted that Ridhwan’s actions fell within Band 2 of the Kunasekaran framework and that an appropriate sentence would be 12 months’ imprisonment and three strokes of the cane.⁷

The Defence argued for a sentence of around eight months’ imprisonment on the basis that Ridhwan’s conduct was less aggravated than that of the accused in Kunasekaran.⁸

The attempted rape charge

Finally, for the 7th Charge against Asep for attempted rape, the Prosecution submitted that the Terence Ng framework could be adapted by halving the sentences in each band, relying on the case of Public Prosecutor v Udhayakumar Dhakshinamoorthy (Criminal Case No 43 of 2018) (“Udhayakumar”). Similar to the position it took with regard to Ridhwan and Faris’ rape charges, the Prosecution submitted that Asep’s conduct fell within Band 2, and that a sentence of seven and a half years’ imprisonment and six strokes of the cane should be imposed.⁹

The Defence referred to the case of Ng Jun Xian v Public Prosecutor [2017] 3 SLR 933, submitting that a sentence of four years’ imprisonment and four strokes of the cane was appropriate.¹⁰

The following table summarises the sentencing positions taken by the parties:

Charge	Offence	Sentence (Prosecution)	Sentence (Defence)
Ridhwan
1st Charge	Sexual assault by penetration – s 376(2)(a) punishable under s 376(3) Penal Code (digital-anal penetration).	12 years’ imprisonment and 8 strokes of the cane.	Less than 8 years’ imprisonment and 4 strokes of the cane.
2nd Charge	Rape – s 375(1)(a) punishable under s 375(2) Penal Code.	15 years’ imprisonment and 12 strokes of the cane.	12 years’ imprisonment and 6 strokes of the cane.
3rd Charge	Outrage of modesty – punishable under s 354(1) Penal Code.	12 months’ imprisonment and 3 strokes of the cane.	8 months’ imprisonment.
Faris
4th Charge	Rape – s 375(1)(a) punishable under s 375(2) Penal Code.	15 years’ imprisonment and 12 strokes of the cane.	11 years’ imprisonment and 6 strokes of the cane.
Asep
6th Charge	Sexual assault by penetration – s 376(1)(a) punishable under s 376(3) Penal Code (fellatio).	13 years’ imprisonment and 8 strokes of the cane.	Not more than 10 years’ and 6 months’ imprisonment and 6 strokes of the cane.
7th Charge	Attempted rape – s 375(1)(a) punishable under s 375(2) read with s 511 Penal Code.	7½ years’ imprisonment and 6 strokes of the cane.	4 years’ imprisonment and 4 strokes of the cane.

The Prosecution submitted that in Ridhwan’s case, the sentences for the 2nd and 3rd Charges should run consecutively, giving an aggregate sentence of 16 years’ imprisonment and 23 strokes of the cane.¹¹ With respect to Asep, the Prosecution’s position was that both sentences for the 6th and 7th Charges should run concurrently, giving an aggregate sentence of 13 years’ imprisonment and 14 strokes of the cane.¹²

The Defence similarly submitted that the sentences for the 2nd and 3rd Charges in Ridhwan’s case should run consecutively, giving an aggregate sentence of 12 years’ imprisonment and ten strokes of the cane.¹³ The Defence also took the position that the sentences for the 6th and 7th Charges should run concurrently, giving an aggregate sentence of not more than ten years’ imprisonment and ten strokes of the cane.

The court’s decision The rape charges (2nd and 4th Charges)

Both the Prosecution and Defence did not dispute that the sentencing framework set out by the Court of Appeal in Terence Ng applied but differed over its application to the facts of the case.

The sentencing framework was summarised by the Court of Appeal in Terence Ng at [73] as follows:

…

(a) At the first step, the court should have regard to the offence-specific factors in deciding which band the offence in question falls under. Once the sentencing band, which defines the range of sentences which may usually be imposed for an offence with those features, is identified, the court has to go on to identify precisely where within that range the present offence falls in order to derive an “indicative starting point”. In exceptional cases, the court may decide on an indicative starting point which falls outside the prescribed range, although cogent reasons should be given for such a decision. (b) The sentencing bands prescribe ranges of sentences which would be appropriate for contested cases and are as follows: (i) Band 1 comprises cases at the lower end of the spectrum of seriousness which attract sentences of ten to 13 years’ imprisonment and six strokes of the cane. Such cases feature no offence-specific aggravating factors or are cases where these factors are only present to a very limited extent and therefore have a limited impact on sentence. (ii) Band 2 comprises cases of rape of a higher level of seriousness which attract sentences of 13–17 years’ imprisonment and 12 strokes of the cane. Such cases would usually contain two or more offence-specific aggravating factors (such as those listed at [44] above). (iii) Band 3 comprises cases which, by reason of the number and intensity of the aggravating factors, present themselves as extremely serious cases of rape. They should attract sentences of between 17–20 years’ imprisonment and 18 strokes of the cane. (c) At the second step, the court should have regard...