Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 31 October 2007
• Neutral Citation: [2007] SGCA 48
• Citation: [2007] SGCA 48
• Defendant Counsel: S K Kumar (S K Kumar & Associates)
• Published date: 01 November 2007
• Plaintiff Counsel: Jaswant Singh and Ong Siu Jin (Attorney-General's Chambers)
• Date: 31 October 2007
• Docket Number: Criminal Appeal No 6 of 2007
• Court: Court of Appeal (Singapore)
• Subject Matter: Principles governing appellate interference with trial judge's conclusions based on findings of fact,Theft,Appeals,Elements of theft,Elements of aggravated rape,Criminal Law,Whether corroboration required for cases involving sexual offences,Insulting modesty of woman,Unnatural offences,Concurrent or consecutive sentences,Sentencing principles for criminal intimidation,Appeal,Appropriate sentence to be imposed on facts of present case,Offences,Sentencing principles for sodomy,Sentencing principles for insulting modesty of woman,Property,Whether evidence establishing that accused committed theft,Principles governing imposition of concurrent or consecutive sentences when offender convicted and sentenced to imprisonment for at least three distinct offences,Criminal Procedure and Sentencing,Sentencing,Whether evidence establishing that offender committed second instance of rape,Criminal intimidation,Elements of criminal intimidation,Corroboration,Appropriate sentence to be imposed for rape where there was prior relationship between parties,Whether evidence establishing that offender committed aggravated rape,Sentencing principles for rape,Rape,Acquittal,Evidence,Whether evidence establishing that offender committed second instance of sodomy,Witnesses,Principles governing identification of corroborative evidence where corroboration was required,Carnal intercourse against order of nature,Appropriate sentence to be imposed for sodomy where victim was non-consenting,Principles governing appellate interference with trial judge's sentence imposed,Whether evidence establishing that accused committed offences of criminal intimidation

31 October 2007

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Introduction

1 This was an appeal by the Public Prosecutor (“the appellant”) against both the acquittal and sentence of Mohammed Liton Mohammed Syeed Mallik (“the respondent”) in respect of eight charges which he faced in the High Court. The charges were as follows:

(a) The first charge was for aggravated rape under s 376(2)(b) of the Penal Code (Cap 224, 1985 Rev Ed) (“the first charge”).

(b) The second charge was for criminal intimidation (in pointing a knife at the complainant with the intention to cause her alarm) under s 506 of the Penal Code (“the second charge”).

(c) The third charge was for committing carnal intercourse against the order of nature (in the form of sodomy) under s 377 of the Penal Code (“the third charge”).

(d) The fourth charge was for insulting the complainant’s modesty under s 509 of the Penal Code by taking four photographs of her in the nude (“the fourth charge”).

(e) The fifth charge was for criminal intimidation (in threatening to distribute the above photographs (“the nude photographs”)) under s 506 of the Penal Code (“the fifth charge”).

(f) The sixth charge was for rape under s 376(1) of the Penal Code (“the sixth charge”).

(g) The seventh charge was for committing carnal intercourse against the order of nature (likewise in the form of sodomy) under s 377 of the Penal Code (“the seventh charge”).

(h) The eighth charge was for theft (of the complainant’s identity card, bank card, and a pair of gold earring studs) under s 379 of the Penal Code (“the eighth charge”).

2 At the end of the proceedings in the High Court, the trial judge found the respondent guilty of the fourth, sixth and seventh charges and acquitted him of the first, second, third, fifth and eighth charges (“the acquitted charges”). The respondent was then sentenced to three months’ imprisonment on the fourth charge, 18 months’ imprisonment on the sixth charge and two years’ imprisonment on the seventh charge. The sentences imposed on the sixth and seventh charges were ordered to run concurrently so that the total sentence imposed was two years and three months’ imprisonment with effect from 27 December 2005. As mentioned above (at [1]), these orders were appealed against by the appellant.

3 At the end of the hearing before us, we unanimously allowed the appeal in part. Specifically, in so far as the appeal against acquittal was concerned, we dismissed the appeal in relation to the first, third and eighth charges. However, we allowed the appeal against the second and fifth charges, and sentenced the respondent to two months’ imprisonment on each of these charges. In so far as the appeal against sentence was concerned, we dismissed the appeal in relation to the fourth charge. However, the appeal in relation to the sixth and seventh charges was allowed. We sentenced the respondent to six years’ imprisonment and four strokes of the cane on the sixth charge and five years’ imprisonment on the seventh charge. We ordered the sentences for the fourth and sixth charges to run consecutively, with the rest of the sentences to run concurrently with these two sentences, all with effect from 27 December 2005. The total sentence imposed on the respondent was therefore six years and three months’ imprisonment and four strokes of the cane. We now give the detailed grounds for our decision.

Background to the proceedings

4 The background to the proceedings before us was rather long-drawn and, hence, some elaboration is both appropriate and necessary. There were, in fact, two trials, the first of which (“the first trial”) was heard in September and October 2006. The trial judge had, with respect, in his judgment for the first trial ably and completely summarised the events which occurred before and on the day of the alleged offences (see PP v Mohammed Liton Mohammed Syeed Mallik [2006] SGHC 191(“Mohammed Liton (No 1)”) at [4]–[28]), and we therefore gratefully adopt his version of the facts as follows.

Dramatis personae

5 The respondent is a 29-year-old Bangladeshi national. He first came to Singapore on 15 February 2004 and worked as a cleaner. Sometime in May 2005, the respondent started work as a cleaner at the Bedok branch of Giant Hypermarket (“Giant”). The complainant is 31 years old. She is currently a housewife, but she previously worked at Giant. She has three children, currently aged nine, six and two.

Events that occurred before the day of the alleged offences

6 It was alleged that the offences which led to the eight charges against the respondent took place on the afternoon of 23 December 2005 at the respondent’s flat at 174B Joo Chiat Place (“the flat”). The respondent and the complainant were colleagues at Giant and became acquainted in May or June 2005. Sometime in June 2005, the respondent and the complainant went to Mustafa Centre together. This eventually led to sexual intercourse at a hotel nearby. After this incident, they went to the same hotel almost every week to have sexual intercourse. They usually did so after the complainant finished work at Giant.

7 In August 2005, the complainant initiated divorce proceedings against her husband, and the respondent and the complainant made plans to marry once her divorce had been finalised. According to the complainant, her relationship with the respondent had nothing to do with her decision to divorce her husband. Instead, at the first trial, the complainant testified that she had decided thus because her husband did not have a proper job and was avoiding his responsibility as breadwinner of the family.

8 In October 2005, the respondent’s work permit in Singapore expired. He returned to Bangladesh on 12 October 2005. Both the respondent and the complainant confirmed that on the morning of 12 October 2005, before the respondent flew back to Bangladesh, the complainant visited him at the flat and they had sexual intercourse there. According to the complainant, that was the last time that they had sexual intercourse, although the respondent testified at the first trial that they had sexual intercourse again on 6 December 2005. While the respondent was in Bangladesh, he and the complainant kept in touch regularly by telephone and text messages.

9 The complainant could not leave for Bangladesh with the respondent on 12 October 2005 because her divorce proceedings were still ongoing. However, before the respondent left for Bangladesh, he purchased a return air ticket for the complainant so that she could join him there. The complainant also applied for the requisite Bangladeshi visa so that she could travel to the country. The departure date, as stated on the air ticket, was 18 November 2005, and the return date was 25 November 2005.

10 In the event, the complainant never made the trip. The complainant testified that she told her mother of her intention to travel to Bangladesh to meet a friend. Her mother did not like the idea and threatened to prevent the complainant from ever seeing her children again if she went. At about the same time, on 14 November 2005, the complainant attended a marital counselling session with her husband. During this session, the complainant’s husband pleaded with her to give him a second chance. She agreed to do so, and resolved from that point on to put an end to her relationship with the respondent. The complainant made a long-distance call to the respondent to tell him of her decision. According to her, the respondent was angry and told her that she should not change her mind about marrying him. This account was denied by the respondent at the first trial, who maintained that their relationship was still ongoing when he returned to Singapore.

11 According to the complainant, despite her resolution to end her relationship with the respondent, she still helped him to get a visa to return to Singapore in order to fulfil the promise that she had made to him before he left for Bangladesh. Consequently, the respondent returned to Singapore on 12 December 2005. The complainant arrived at Changi Airport at 6.00am to pick him up, and then dropped him off at the hotel where they used to have sexual intercourse. After that, she went to work, arriving at Giant at 8.10am. However, according to the respondent, he returned to Singapore on 6 December 2005 because the complainant had asked him to come back to marry her. She had also asked him to bring money for the marriage, upon which he sold his cultivatable land in Bangladesh for $5,000. By the respondent’s version of events, the complainant picked him up from the airport on 6 December 2005 and then went with him to their regular hotel. He and the complainant had consensual sexual intercourse there before she left to go to work.

12 During the period from 12 December 2005 to 23 December 2005, the respondent visited the workplace of the complainant almost every day, mostly during her lunch time. The complainant testified at the first trial that she was not happy about his doing so because she did not want her colleagues to know that he was visiting her. The respondent also followed the complainant home after work. However, according to the respondent, the complainant never told him not to look for her at Giant. According to the complainant, the respondent was pestering her because he wanted her to cancel the Bangladeshi visa that she had applied for. The respondent was of the view that he would be penalised if the complainant did not do so. However, the complainant did not have her passport with her because her mother had hidden it. The complainant also testified that the respondent wanted her to sign some documents that would enable him to obtain employment in Singapore.

13 At the first trial, the complainant confirmed that on the occasions when the respondent visited her at Giant during her lunch time, they went to a nearby block of flats to chat. They hugged and kissed during these...