Public Prosecutor v Hindakumbure Charindu Dilshan Rajapaksha

• Jurisdiction: Singapore
• Judge: Koo Zhi Xuan
• Judgment Date: 31 March 2023
• Neutral Citation: [2023] SGDC 54
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 900266 of 2022 and Others
• Hearing Date: 02 March 2023,31 March 2023
• Citation: [2023] SGDC 54
• Year: 2023
• Plaintiff Counsel: Chong Kee En and Susanna Yim (Attorney-General's Chambers)
• Defendant Counsel: Stephania Wong (Pro Bono SG)
• Subject Matter: Criminal Law,Offences,Section 377BI of the Penal Code (Cap 224, 2008 Rev Ed),Section 292 of the Penal Code (Cap 224, 2008 Rev Ed),Criminal Procedure and Sentencing,Sentencing,Distribution of child abuse materials,One-transaction rule
• Published date: 08 April 2023

District Judge Koo Zhi Xuan: Introduction

Of the many offences prosecuted in the District Court, there are few which are more heinous or repulsive than those involving child abuse. This category of offences includes the production or distribution of materials depicting the sexual abuse of a child. Beyond the horrific physical and psychological harm suffered by the child in the production of such materials, the child’s suffering can be indefinitely prolonged when such materials are distributed over the Internet; with many child victims experiencing “fear, guilt, shame and betrayal” whilst “constantly worrying about being recognised by someone who had viewed” the materials showing their abuse (Coen Teunissen and Sarah Napier, Australian Institute of Criminology, “Child sexual abuse material and end-to-end encryption on social media platforms: An overview” (No 653, July 2022), at p 1).

In 2019, Parliament updated the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) by enacting specific laws against child abuse material (“CAM”), a term defined in section 377C(1) of the Penal Code. Recognising that “terrible harm is caused to these children who are used in the production of [child abuse] material”, Parliament criminalised “the spectrum of offences to deal with every person involved, from consumers to the producers of such material” (Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (“Parliamentary Debates”) (K Shanmugam, Minister for Home Affairs)). This led to the enactment of provisions such as section 377BI of the Penal Code, which prescribes that an offender who distributes CAM, and who knows or has reason to believe that the material is CAM, shall on conviction be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine or caning.

Hindakumbure Charindu Dilshan Rajapaksha (“the Accused”) is the second person prosecuted under section 377BI of the Penal Code. From 16 March 2020 to 24 July 2020, the Accused distributed 17 films containing CAM in a WhatsApp chat group he was one of the administrators of, which had a total of 256 participants when these films were disseminated. As described by the Prosecution, the content of these films “scrape the very pits of depravity - they involve children being raped, possibly being trafficked into sex, and in one clip a prepubescent child filmed having sex with a farmyard animal”.¹ The Accused is also charged for a separate offence under section 292(1)(a) of the Penal Code, for having transmitted 943 obscene films (which do not include the 17 films containing CAM) in the same WhatsApp chat group. He pleaded guilty to both charges on 2 March 2023. Having carefully considered parties’ submissions, I now set out my decision on sentence.

Facts The charges proceeded with

The Accused pleaded guilty to the following two charges: Between the 16th day of March 2020 and the 26th day of July 2020, in Singapore, the Accused transmitted obscene objects, to wit, 943 obscene films, by electronic means onto a WhatsApp chat group namely the “Singapore Boys Wela Group”, and he has thereby committed an offence punishable under section 292(1)(a) of the Penal Code (“the s 292(1)(a) PC offence”). Between the 16th day of March 2020 and the 24th day of July 2020, in Singapore, the Accused distributed 17 films, having reason to believe that the said 17 films constituted child abuse material, by electronic means onto a WhatsApp chat group namely the “Singapore Boys Wela Group”, and he has thereby committed an offence under section 377BI(1) punishable under section 377BI(2) of the Penal Code (“the s 377BI PC offence”).

The Statement of Facts

The Accused admitted to the following facts without qualification: 1. The accused person is Mr Hindakumbure Charindu Dilshan Rajapaksha, a male Sri Lankan national, 30 years old (“Dilshan”). At the material time, Dilshan had been studying hospitality management in Singapore for approximately two years. He was married and has a three-year-old child. 2. The connected accused person is Mr Kolambage Dhanushka Chamara Perera (“Kolambage”), a male Sri Lankan national. Kolambage was also a hospitality management student in Singapore. 3. Special Constable Sergeant Gregory Tan Jun Jie (“Sgt Gregory”), a male Singaporean, was at the material time serving his full-time National Service as a Foot Patrol Officer with the Public Transport Security Command.

BACKGROUND FACTS

4. On 6 August 2020, Sgt Gregory was conducting foot patrol at the concourse area of Lavender MRT Station, Singapore, when he spotted Kolambage behaving suspiciously. Sgt Gregory and his colleagues conducted a check on him. 5. In the course of the officers’ engagement, the officers noticed that Kolambage had a group chat with a display picture that showed the silhouette of a male and female engaged in sex. The officers opened the group chat and saw that the said group chat had over 6,000 obscene videos and files (some of which were child pornography materials). 6. On the same day at or about 3.59pm, Kolambage was arrested at 50 Kallang Road, Lavender MRT Station, Singapore. One black iPhone 7 which had been in Kolambage’s possession (“Kolambage’s iPhone”) and which belonged to Kolambage was also seized by the police. 7. On 7 February 2022, Kolambage pleaded guilty to one charge under s377BK(1) p/u s 377BK(2) of the Penal Code (Cap 224, 2008 Rev Ed) for having in his possession 25 video files constituting child abuse material, with one charge under s 30(1) of the Films Act (Cap 107, 1998 Rev Ed) taken into consideration for the purposes of sentencing. Kolambage had automatically downloaded such material into his phone. He was sentenced to one month’s imprisonment. 8. After Kolambage’s arrest, Dilshan was traced as one of the admins of the said group chat. On 12 August 2020, the Police gave Dilshan a call asking him to return to his unit. When he returned, they checked Dilshan’s phone and found the said group chat. He admitted to being an active participant who sent pornographic materials in the said group chat. Dilshan was then arrested at about 12.30pm and his iPhone, with Whatsapp number +65 … 6631, was seized as a case exhibit. Before he was arrested, Dilshan had deleted the videos and the accompanying messages from his WhatsApp. The offending material was only retrieved from Kolambage’s iPhone.

The Wela Group Chat

9. Sometime between 2019 and early 2020, Dilshan and his six roommates created a Whatsapp group chat. The group chat was soon named partially in the English language and partially in Sinhalese language, and which had an ‘emoji’ icon in the chat name, to - “Singapore Boys (Singapore flag ‘emoji’ icon) Wela group” (the “Wela Group Chat”). This was the said group chat that Sgt Gregory had discovered in Kolambage’s phone. Wela, in Sinhalese, literally refers to a person who commits sexually indecent acts. In the Wela Group Chat, the terms wel, wela, and wal were used as terms for porn or sexual content. 10. Dilshan is one of seven admins of the Wela Group Chat and was an active participant – between 16 March 2020 to 3 August 2020 alone, Dilshan sent about 2,800 messages on the Wela Group Chat, including forwarding vast amounts of pornographic material. 11. Dilshan and other participants of the Wela Group Chat invited other Sri Lankans to join the Wela Group Chat. Dilshan and about three to four others would share pornographic materials in the Wela Group Chat. By the time the Wela Group Chat was discovered by the Police, there had been at all points in time a total of 520 participants who had joined the Wela Group Chat (of which 256 members were active) (WhatsApp allows a maximum of 256 participants) and the vast majority of the messages was pornographic material. Only occasionally would the group be sharing news from home.

Dilshan’s activity on the Wela Group Chat

12. Dilshan actively added participants into the Wela Group Chat, such as his roommate Mr Undiya Ralalage Harshan Hinod Dharmasiri, Kolambage and multiple other persons. He would do so in multiple ways: (1) by sending a link in the Wela Group Chat for participants to send to other potential participants (this was done on at least 15 occasions), (2) adding participants directly to the Wela Group Chat by sending them a link to the Wela Group Chat or (3) adding their WhatsApp account to the Wela Group Chat (this was done on at least 4 occasions). For example, with Kolambage, Dilshan had met him at Kolambage’s home and told him about the Wela Group Chat, asked for his number and then sent him the invitation link. 13. Apart from sending the link on the Wela Group Chat itself or to individuals, Dilshan would also urge members in the Wela Group Chat to invite others onto the group chat. He would also post the link to the Wela Group Chat to other chat groups where pornographic materials were being shared; this was done in at least 2 other chat groups – “We Are Sri Lankans” and “Golden Country” – which had at all points in time contained 232 and 358 participants respectively (of which 256 members were active) by the time that Dilshan’s iPhone was seized by the Police. 14. Dilshan actively shared pornographic materials on various WhatsApp group chats where participants would make requests for pornographic materials, this included the Wela Group Chat. 15. On occasion, others would make specific requests on the Wela Group Chat for films involving “child porn”, “rape” or “BDSM”:

S/N	Sender (number)	Date & time sent	Message	Translation
…
4162	…5098	22/04/20 07:49 PM	Meke child porn thyana ewun kauda inne	who has child porn in this?
4163	…5098	22/04/20 07:49 PM

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