Public Prosecutor v BWJ

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Judith Prakash JCA
• Judgment Date: 11 January 2023
• Neutral Citation: [2023] SGCA 2
• Citation: [2023] SGCA 2
• Docket Number: Criminal Appeal No 20 of 2020
• Hearing Date: 13 September 2022,27 September 2022
• Plaintiff Counsel: Ng Yiwen, Yvonne Poon Yirong and Selene Yap Wan Ting (Attorney-General's Chambers)
• Defendant Counsel: Chia Ru Yun Megan Joan and Tay Beng Tiat Reuben (Tan Rajah & Cheah) and Luke Anton Netto (Netto & Magin LLC)
• Subject Matter: Criminal Law,Offences,Aggravated rape,Criminal Procedure and Sentencing,Appeal,Acquittal,Sentencing,Period on bail
• Published date: 14 January 2023

Tay Yong Kwang JCA (delivering the grounds of decision of the court): Introduction

The respondent, whose name has been redacted as “BWJ”, was charged with aggravated rape of the complainant (“V”) under ss 375(1)(a) and (3)(a)(i) of the Penal Code (Cap 224, 2008 Rev Ed) (the “PC”). The charge was as follows:

You are charged at the instance of the Public Prosecutor and the charge against you is: That you, [BWJ], on 6 August 2017 sometime in the afternoon, at Blk [address redacted], Singapore, did commit aggravated rape of [V], female/then-29 years old (DOB: [redacted]), to wit, you penetrated her vagina with your penis without her consent, and in order to facilitate the commission of the offence, you voluntarily caused hurt to her by strangling her neck, and you have thereby committed an offence under Section 375(1)(a) of the Penal Code (Chapter 224, 2008 Rev Ed) and punishable under Section 375(3)(a)(i) of the same Code.

V was BWJ’s girlfriend from early 2012 to sometime in 2017. The exact date on which their relationship came to an end in 2017 was a matter in dispute both at the trial and on appeal. On the Prosecution’s case, V ended her relationship with BWJ prior to 6 August 2017 (the date of the alleged rape) and BWJ, refusing to accept this fact, turned to violence and raped her on 6 August 2017. BWJ did not dispute that he had sexual intercourse with V on this date. However, he asserted that their relationship had not ended at that time and the sexual intercourse was consensual.

History of the proceedings

On 7 August 2017, the day after the alleged rape, BWJ was arrested and remanded. Eventually, BWJ was tried in the High Court on the charge over 11 days in March, June, August and October 2019. To prove its case, the Prosecution led evidence from a total of 29 witnesses, including V. Of the other 28, there were 17 through whom various exhibits and reports were admitted without cross-examination by Defence Counsel for BWJ, Ms Megan Chia (“Ms Chia”). The remaining 11 witnesses were cross-examined. These witnesses included those who interacted with the complainant shortly after the alleged rape, the investigation officers and an analyst from the Health Sciences Authority (“HSA”). For the Defence, only BWJ gave evidence.

Following the trial, the parties filed closing and reply submissions on 6 and 21 November 2019, respectively. On 2 December 2019, the trial Judge in the High Court (the “Judge”) heard the parties’ oral arguments and reserved judgment. On 26 June 2020, the Judge acquitted BWJ, giving brief reasons for his decision and stating that his full written grounds would follow. On the same day, the Prosecution filed its notice of appeal. The next day, 27 June 2020, BWJ was released on bail pending appeal, with the bail amount fixed at $20,000 (without the requirement of a monetary component) with one surety.

There was then a lull in the proceedings for nearly two years. On 17 May 2022, the Judge certified that the brief oral reasons that he had given on 26 June 2020 constituted the full grounds of his decision. This delay was significant because BWJ, a Malaysian citizen, could not leave Singapore without permission and was also not allowed to work while he was on bail pending appeal. On 4 February 2022, BWJ was given leave to travel to Johor Bahru from 5 February to 5 March 2022 to attend his brother’s funeral. He was supposed to return to Singapore on 6 March 2022 but could not do so because of travel restrictions imposed in connection with the COVID-19 pandemic. On 4 March 2022, BWJ was granted permission to remain in Johor Bahru until four weeks before the appeal. On 3 June 2022, about two weeks after the Judge certified that no further written grounds of decision would be issued, the Supreme Court Registry informed the parties that the Prosecution’s appeal would be heard between 5 and 16 September 2022. In compliance with the conditions of his bail, BWJ returned to Singapore on 6 August 2022.

On 13 September 2022, we heard the Prosecution’s appeal. We allowed the appeal, set aside the Judge’s acquittal and convicted BWJ on the charge. We directed the parties to file their written submissions on sentence within one week. Pending sentencing, the Prosecution argued that the quantum of BWJ’s bail ought to be increased. We agreed and fixed bail at $120,000 with one surety. As BWJ was unable to furnish bail, he was remanded. On 20 September 2022, the parties filed their written submissions on sentence. At the further hearing on 27 September 2022, we ordered that BWJ be imprisoned for 13 years and that he receive 12 strokes of the cane. BWJ’s imprisonment term was backdated to 7 August 2017, the date of his arrest. However, we directed that the period from 27 June 2020 to 12 September 2022 (the period that BWJ was on bail pending appeal) was not to be included in the computation of the sentence served.

We now provide the reasons for our decision. For easy reference and, in particular, for the purpose of understanding our decision on sentence, we set out below a chronology of the relevant dates in this case’s procedural history:

S/N	Date	Event
1	6 Aug 2017	The alleged rape took place.
2	7 Aug 2017	BWJ was arrested and placed in remand.
3	19 Mar 2019	BWJ’s trial in the High Court commenced.
4	7 Oct 2019	The evidential portion of the trial concluded.
5	2 Dec 2019	The Judge heard the parties’ oral arguments and reserved judgment.
6	26 Jun 2020	BWJ was acquitted and the Judge gave brief oral grounds for his decision with full grounds to follow.
7	The Prosecution filed its notice of appeal.
8	27 Jun 2020	BWJ was released on bail, fixed at $20,000 with one surety, pending the Prosecution’s appeal.
9	4 Feb 2022	BWJ was granted permission to travel to Johor Bahru to attend his brother’s funeral. He was supposed to return to Singapore on 6 March 2022.
10	5 Feb 2022	BWJ travelled to Johor Bahru.
11	4 Mar 2022	COVID-19 travel restrictions prevented BWJ from returning to Singapore by 6 March 2022. He was given permission to remain in Malaysia until four weeks before the Prosecution’s appeal.
12	17 May 2022	The Judge certified that the oral grounds he delivered on 26 June 2020 constituted the full grounds of his decision.
13	3 Jun 2022	The Supreme Court Registry informed the parties that the Prosecution’s appeal would be heard between 5 and 16 September 2022.
14	6 Aug 2022	BWJ returned to Singapore for the appeal.
15	13 Sep 2022	The Prosecution’s appeal was heard and allowed. BWJ’s acquittal was set aside and he was convicted on the charge he faced.
16	BWJ’s bail was fixed at $120,000 with one surety. BWJ was unable to furnish bail and was remanded pending sentencing.
17	27 Sep 2022	BWJ was sentenced to 13 years imprisonment and 12 strokes of the cane.

The factual background and evidence From 2011 to 1 August 2017

V and BWJ, both Malaysian citizens, met sometime in 2011 when they were working in Singapore. In early 2012, they entered into a romantic relationship. It was not in dispute that they were sexually intimate.

The facts surrounding the early stages of their relationship up to the end of 2015 were also not in dispute. However, as they were largely irrelevant to the charge brought against BWJ, we highlight only two matters from this period: First, from the outset, V’s parents did not approve of her relationship with BWJ and their dislike of him never abated. The relevance of this fact will become apparent when we turn, at [26] below, to describe the events which took place shortly before the alleged rape on 6 August 2017. Second, in November 2015, after going through various living arrangements, V and BWJ eventually signed a two-year lease for a two-bedroom Housing Development Board flat in the north-central region of Singapore (the “Flat”). The charge alleged that BWJ raped V in this Flat.

V and BWJ had communicated very actively using WhatsApp. Records of the messages exchanged between them from 30 May 2016 to 7 August 2017 were adduced at the trial. A perusal of these messages showed that their relationship was on a relatively steady keel in 2016 and for at least a part of 2017. For example, on 31 May 2016, more than 140 messages were exchanged between them, with a roughly equal number of messages from one to the other. On 8 June 2016, the pair sent around 50 messages to each other but, on 9 June 2016, they were back to exchanging around 140 messages within the day. On both days, the number of messages sent was roughly equal between them. All these indicated that V and BWJ were on relatively good terms in 2016.

Their exchanges were not always happy or even amicable. From time to time, they engaged in quarrels over WhatsApp. For example, on 7 December 2016, the following exchange took place between 7.22pm and 8.06pm (quoted verbatim):

BWJ:	I think u go n find better guy or maybe u already find a guy that’s why you don’t have time for me already
	Somore she from raffles work in finance she buy chic rice I saw her what is wrong with you
V:	I seriously dunno wtf u r rushing. 6.50 u got the bus d, ask u come tpy dinner u said not enough time, ask u come tpy wait me u said rushing. Amk to city hall nearer to tpy to city hall nearer. Again n again I found something fishy from u. U not tired I’m tired OK, need to everyday check on u OK.
	If u think tht the world outside is more fun n interesting u can go ahead OK. I can work n stay alone. Rather thn I everyday have worry so many things, my brain non stop, in office worry on work go home worry on u.
BWJ:	Do u think properly if I come tpy then walk to foodcourt...