Public Prosecutor v Shamsul bin Sa'at

• Judge: Chan Seng Onn J
• Judgment Date: 30 April 2010
• Neutral Citation: [2010] SGHC 132
• Citation: [2010] SGHC 132
• Docket Number: CC No 10 of 2010
• Published date: 03 May 2010
• Hearing Date: 08 March 2010
• Plaintiff Counsel: Tan Boon Khai and Chua Ying Hong
• Date: 30 April 2010
• Defendant Counsel: Accused in Person.
• Court: High Court (Singapore)
• Subject Matter: Criminal Law

Chan Seng Onn J: Introduction

The Accused pleaded guilty and was convicted of the following four charges: 2nd charge – attempted aggravated rape under section 375(3)(a)(i) read with section 511 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), for attempting to penetrate with his penis the vagina of one, without her consent, and in order to commit the offence, voluntarily caused hurt to the said one. The prescribed punishment for this offence is imprisonment for a term of between 8 and 10 years, and caning of not less than 12 strokes. 4th charge – aggravated sexual assault by penetration under section 376(4)(a)(i) of the Penal Code, for penetrating with his finger the vagina of one, without her consent, and in order to commit the offence, voluntarily caused hurt to the said one. The prescribed punishment for this offence is imprisonment for a term of between 8 and 20 years and caning of not less than 12 strokes. 6th charge – aggravated rape under section 375(3)(a)(i) of the Penal Code, for penetrating with his penis the vagina of one, without her consent, and in order to commit the offence, voluntarily caused hurt to the said one. The prescribed punishment for this offence is imprisonment for a term of between 8 and 20 years, and caning of not less than 12 strokes. 7th charge – housebreaking by night under section 457 of the Penal Code, by entering into the premises which were in the possession of one, in order to commit theft on items which were in the possession of the said one, and which offence was committed between 7 pm and 7 am. The prescribed punishment for this offence is imprisonment for a term of between 2 and 14 years.

The Accused also consented to the following three charges being taken into consideration for the purposes of sentencing: 1st Charge – theft in dwelling under section 380 of the Penal Code; 3rd Charge – aggravated outrage of modesty under section 354A of the Penal Code; 5th Charge – attempted aggravated rape under section 375(3)(a)(i) read with section 511 of the Penal Code.

At the end of the hearing, I sentenced the Accused to a total term of imprisonment of 25 years and 24 strokes of the cane. The Accused has appealed against the sentence imposed on him.

Facts relating to the 2nd Charge

The Accused is a male Malay Singaporean and is 27 years old. He used to be in a relationship with the Victim’s daughter, R, sometime in 2000 and they remained in contact after their break-up. The Victim is a 48 year old female Malay Singaporean and she resides in a HDB flat (“the Flat”) with R. The Accused knew that only the Victim and R reside in the Flat.

Sometime in November 2008, the Accused went to the Flat to visit R. While at the Flat, the Accused saw a bunch of keys to the Flat on the TV cabinet and decided to steal them. He did so when R went to the kitchen to get him a drink.

On 3 April 2009, the Accused discovered through corresponding with R by text messages that she was not at home and that she would return home late. As he was in need of money, the Accused conceived a plan to break into and steal from the Flat using the stolen keys. He thus packed into his haversack an orange T-shirt and cloth gloves for concealing his face and his fingerprints respectively, and masking tape for tying up whoever was at home.

On 4 April 2009, at about 1am, the Victim went to sleep in her bedroom after locking the metal gate and wooden door of the Flat. Shortly after, the Accused entered the Flat using the stolen keys after concealing his face and head with the orange T-shirt. After checking R’s bedroom to confirm that she was not at home, the Accused went into the Victim’s bedroom and switched on the light. The Accused climbed onto the Victim and covered her mouth with masking tape just as she was waking up. He told her to shut up and tied her hands and arms tightly together using masking tape, and dragged the Victim to one corner of the bed. The Accused then tied the Victim’s arms to the bedpost over her head so that her head hung over the edge of the bed. The Accused further covered the Victim’s eyes and face with masking tape, and her face with a piece of cloth or T-shirt that he found in the Flat to prevent her from identifying him.

After the Victim was immobilised, the Accused removed her pants and panties, lifted her legs and tried to penetrate her vagina with his penis. He attempted to do so several times, but was unsuccessful as he was unable to sustain an erection. As the Victim was menstruating, the Accused had to use tissue paper to clean her up after each attempt at penetration. During this time, the Victim informed the Accused that she needed to go to the toilet when the masking tape on her mouth came loose but he simply ignored her plea.

Facts relating to the 4th charge

At about 4 am, R returned to the Flat. At around that time, she sent a text message to the Accused. Realising that R was home, the Accused remained quiet in the Victim’s bedroom so that she would not know that he was at the Flat. After R had gone into her bedroom, the Accused took a hair band and pushed part of it into the Victim’s mouth to prevent her from screaming. He then went to the kitchen to get water as he was thirsty. When he went back to the Victim’s bedroom, he used a cloth to cover the gap under the bedroom door to avoid being detected by R.

The Accused then fondled and sucked the nipples of the Victim. At about 5.30am, the Accused inserted two of his fingers into the Victim’s vagina. All this while, the Victim remained gagged and her arms and hands were bound tightly together.

Facts relating to the 6th charge

Following this, the Accused again unsuccessfully tried to penetrate the Victim’s vagina several times with his penis. Thereafter the Victim informed the Accused once more that she needed to go to the toilet but he ignored her and even tightened the masking tape on her mouth. As a result, the Victim passed motion and urinated on the bed, while still bound to her bed. The Accused then cleaned the Victim up with tissue paper before attempting to insert his penis into her vagina again. This time round, he succeeded. He moved his penis in and out of her vagina several times before ejaculating on her stomach. The Accused then used tissue paper to wipe away his semen.

Facts relating to the 7th charge

After finally successfully raping the Victim, the Accused packed the tissue paper, bottle of water, masking tape, T-shirt and gloves into his haversack to avoid being traced to his crimes. He then left the Flat at about 7 am with the Victim’s mobile phone and cash of about $100 which he had found previously while ransacking the Victim’s room and her wallet. He did not release the Victim when he left.

The aftermath of the events

After the Accused arrived at his home, he re-packed the tissue paper, bottle of water, masking tape, T-shirt and gloves into a plastic bag which he disposed of in a rubbish bin at the ground floor of his block of flats.

The Victim managed to remove the masking tape on her mouth and hands, and to untie herself from the bedpost at about 8 am. She then telephoned her sister for help. The Victim’s sister and brother-in-law arrived at the Flat shortly thereafter to find the Victim crying and her arms still bound. They untied her and called the police. After the attack, the Accused sent R several text messages to ask if the police had discovered any evidence about the attack and to notify him if any such evidence was found.

Medical Examinations on Victim

On 4 April 2009, the Victim was medically examined at the National University Hospital by one Dr James W S Lee. She complained of pains over her hands from having been bound up and cramps in her thighs. Dr Lee found a superficial glaze over the Victim’s left cheek from the masking tape that was applied over the face as well as linear abrasions, areas of skin peeling and blistering over the dorsum aspects of both the Victim’s arms.¹

HSA Reports

The HSA laboratory test revealed that the Accused’s DNA was discovered in the external and internal vaginal swabs, as well as the anal swab, taken from the Victim.² His DNA was also found on the bra, blouse and pants which the Victim wore on the night of the offences.³

Submissions on sentence by the DPP

The prosecution submitted that the Accused had callously violated the sanctity of the Victim’s body and home, immobilising her for an extended period of about six hours during which he treated her as his personal sex slave. It thus strongly urged the court to impose the harshest sentence which would adequately reflect society’s condemnation of the Accused’s depraved actions as well as to send out a message of general deterrence. I agree. The various aggravating factors clearly necessitated a long custodial sentence. Before going into the detailed reasons for my decision, I shall first set out briefly the relevant sentencing principles.

Sentencing Principles Offence of aggravated rape

The Court of Appeal in Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 has determined that the starting point in sentencing adult offenders for rape committed without aggravating or mitigating factors is ten years’ imprisonment in a contested case, in addition to six strokes of the cane. In PP v NF [2006] 4 SLR(R) 849 (“PP v NF”), V K Rajah J (as he then was) considered R v William Christopher Millberry [2003] 2 Cr App R (S) 31 (“Millberry”) and adopted the four broad categories of rape. He stated at [20] that the second category of rapes includes cases where there is repeated rape in the course of one attack (including cases where the same victim has been both vaginally and anally raped). Rajah J was of the view that the appropriate starting point for category 2 rapes is 15 years’ imprisonment and 12 strokes of the cane (see [36]). This position has since been adopted by the Court of Appeal in PP v Mohammed Liton Mohammed Syeed...