Public Prosecutor v BUT

• Jurisdiction: Singapore
• Judge: Audrey Lim JC
• Judgment Date: 18 February 2019
• Neutral Citation: [2019] SGHC 37
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 13 of 2018
• Year: 2019
• Published date: 17 August 2019
• Hearing Date: 26 November 2018,31 December 2018
• Plaintiff Counsel: Ng Yiwen, Asoka Markandu, and Eunice Lau (Attorney-General's Chambers)
• Defendant Counsel: Mohamed Baiross and Ashwin Ganapathy (I.R.B. Law LLP)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Rape,Sexual assault by penetration,Abetment
• Citation: [2019] SGHC 37

Audrey Lim JC: Introduction

The accused (“BUT”) faced a total of 57 charges. The Prosecution proceeded on three charges, as follows:

(1st Charge)

That you … on or before 7 August 2016 in Singapore, did engage with [SM] in a conspiracy … to make arrangements for [SM] to rape [V] … and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 7 August 2016 … at [A Hotel] … to wit, [SM] penetrated the vagina of [V] with his penis without her consent, which act was committed in consequence of your abetment, and you have thereby committed an offence under Section 375(1)(a) punishable under s 375(2) read with Section 109 of the Penal Code, Chapter 224.

(2nd Charge)

That you … on or before 29 April 2016 in Singapore, did engage with [SM] in a conspiracy … to make arrangements for [SM] to rape [V] … and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on the 1st occasion sometime between 9.37pm on 29 April 2016 and 12.36am on 30 April 2016 at [B Hotel] … to wit, [SM] penetrated the vagina of [V] with his penis without her consent, which act was committed in consequence of your abetment, and you have thereby committed an offence under Section 375(1)(a) punishable under Section 375(2) read with Section 109 of the Penal Code, Chapter 224.

(5th Charge)

That you … on or before 29 April 2016 in Singapore, did engage with [SM] in a conspiracy … to make arrangements for [SM] to sexually assault [V] … and in pursuance of that conspiracy and in order to the doing of that thing, an act took place sometime between 9.37pm on 29 April 2016 and 12.36am on 30 April 2016 at [B Hotel] … to wit, [SM] penetrated the vagina of [V] with his finger without her consent, which act was committed in consequence of your abetment, and you have thereby committed an offence under Section 376(2)(a) punishable under Section 376(3) read with Section 109 of the Penal Code, Chapter 224.

On 26 November 2018, BUT pleaded guilty to the three charges, and consented to having the following 54 charges taken into consideration for the purposes of sentencing: Two charges of abetment of rape by SM of V also occurring sometime between 29 April 2016 and 30 April 2016; Four charges of abetment of outrage of modesty by SM of V under s 354(1) read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed); 19 charges of making an obscene film under s 29(1) and punishable under s 29(1)(a) of the Films Act (Cap 107, 1998 Rev Ed); and 29 District Court charges, pertaining to the insulting of a modesty of two other women by recording his sexual intercourse with them without their knowledge under s 509 of the Penal Code; the possession of obscene films and films without a valid certificate under s 30(1) and s 21(1)(a) of the Films Act respectively; the transmission of obscene objects under s 292(1)(a) of the Penal Code, and the making of obscene films under s 29(1) of the Films Act. The Prosecution applied for these to be taken into consideration under s 148(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

I sentenced BUT to 14 years’ imprisonment and 12 strokes of the cane for each of the 1st and 2nd charges and to ten years’ imprisonment and eight strokes of the cane for the 5th charge. I ordered the sentences for the 1st and 5th charges to run consecutively and for the 2nd charge to run concurrently with the other two. I also factored in the one month that BUT had spent in custody. Thus, BUT would serve an aggregate sentence of 23 years and 11 months’ imprisonment with the maximum 24 strokes of the cane pursuant to s 328(6) of the Criminal Procedure Code. BUT has appealed against my decision on sentence.

Background facts

I set out the facts, which BUT admitted to without qualification. BUT is a 27-year-old Singaporean male. He was about 24 to 25 years old at the material time, and was employed as an auxiliary police officer. The victim (“V”) was 25 years old at the material time.

Sometime in 2014, BUT and V entered into a relationship. They would occasionally book a hotel room, where they would be sexually intimate. BUT was interested in “soft-bondage” sexual activities, and asked V to engage in them with him. V initially rejected his request and told him that she was uncomfortable doing so. However, he continued to cajole V and told her that they should try new things to “spice up” their relationship. Eventually, V relented and allowed herself to be physically bound, effectively placing herself at the mercy of BUT as she wanted to please him and because she loved and trusted him. Over the course of their relationship it was BUT who invariably initiated the soft-bondage acts during sexual intercourse.¹

On at least one occasion, BUT floated the idea of a “threesome” with V. However, V firmly told him that she was not interested. In addition to soft-bondage activities, BUT regularly recorded their sexual intercourse as he claimed that viewing the erotic videos would facilitate a more rapid onset of orgasm for him. V similarly disliked the idea of recording their intimate moments, but she relented as BUT had told her it was for his personal viewing pleasure only. To win V’s trust, he promised to delete the videos after watching them. V’s fears were assuaged as she trusted BUT.²

Unbeknownst to V, BUT had been viewing pornography on social media and engaging in sexual-related discussions with other persons. Sometime in 2015, he initiated contact with his would-be accomplice (“SM”), a Singaporean male. At the time of the offences, SM was about 20 years old.³ BUT and SM would trade lurid details and photographs of their “sexual conquests”.⁴ BUT disclosed to SM his sexual fantasy of watching a third party engaging in sex with his girlfriend, V. Fuelled by his desire to fulfil his fantasy, BUT conceived of a plan for him and SM to engage in a threesome with V. BUT knew that he had to keep SM’s participation in the illicit threesome a secret from V, as she had earlier disagreed with the idea of a threesome when he first broached the topic with her.⁵

Events of 29 to 30 April and facts pertaining to the 2nd and 5th charges

Sometime around 9.37 pm on 29 April 2016, BUT and V checked into “B Hotel”. Without V’s knowledge, BUT had arranged for SM to come to the hotel to participate in a sexual tryst.⁶

That night, BUT presented V with a red rope (that he had purchased from a sex toy shop) and proceeded to loosely bind her hands. He also got V to put on a pair of pantyhose and blindfolded her with a bandana. BUT knew that V trusted him when she was placed in such a position and that because of that trust, she would not attempt to untie herself or remove the blindfold. This gave BUT and SM the opportunity to perform the sexual acts on V without her knowledge. V was completely unaware of the scheme hatched by them, and she simply thought that BUT wanted to engage in soft bondage play during sex as usual.⁷

When SM arrived at the hotel, he texted BUT, who replied with the room number and directed SM to wait for his cue before entering the room. SM then made his way to the room. Shortly after, BUT opened the door and gestured for SM to enter the room. BUT indicated to SM to remain silent so as not to arouse V’s suspicion. He then ushered SM to the bathroom and told SM to remove all his clothes and to wait inside the bathroom. BUT also turned on the tap to give V the impression he was using the toilet. Thereafter, BUT opened the bathroom door and gestured to SM follow him out.⁸

SM saw that V was lying blindfolded on the bed with both her hands tied up with the red rope and wearing only her bra and the pantyhose. BUT gestured to SM to wait at the corner of the bed, while BUT proceeded to stimulate V’s vagina with his tongue. A short while later, he gestured to SM to replace him and to continue licking V’s vagina.⁹ BUT then wanted to remove V’s bra and indicated to SM to stop licking V’s vagina. Once V was completely naked, BUT gestured to SM to lick V’s vagina again. BUT and SM’s actions here formed the subject of the 7th and 8th charges of abetting the outrage of V’s modesty by cunnilingus, and that were taken into consideration for the purposes of sentencing.¹⁰

BUT then gestured to SM to move away from the bed. BUT proceeded to have sex with V. He then stepped off the bed. He gestured to SM to get on the bed and to continue his actions. SM then inserted his penis into V’s vagina without a condom. He withdrew his penis after a few minutes and then proceeded to digitally penetrate V’s vagina using two fingers. He then inserted his penis into V’s vagina again. BUT and SM’s actions here formed the subject matter of the 2nd and 5th proceeded charges of abetting rape and sexual assault by penetration, as well as the 3rd charge of abetting rape that was taken into consideration for the purposes of sentencing.¹¹

SM withdrew his penis and proceeded to perform cunnilingus on V again. He then penetrated V’s vagina for the third time that night. At this juncture, on BUT’s directions, SM withdrew his penis and proceeded to ejaculate just above V’s vagina. As SM did so, BUT pretended to moan in pleasure to reinforce the illusion that it was him (BUT) who had just ejaculated on V. BUT then smeared SM’s semen on V’s lips.¹² BUT and SM’s actions here formed the subject matter of the 9th charge (of abetting the outrage of V’s modesty) and the 4th charge (of abetting rape) that were taken into consideration for the purposes of sentencing.¹³

BUT then gestured to SM to follow him into the bathroom and turned on the tap whilst SM dressed, before SM left the hotel room. BUT recorded the entire episode on his phone. BUT and V subsequently checked out of B Hotel at about 12.36 am on 30 April 2016.¹⁴ At all material times, BUT and SM knew that V was under the misconception that she was having sex with BUT and therefore had not consented to SM’s sexual acts.¹⁵

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