Public Prosecutor v Rajendran s/o Nagarethinam and another

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 28 July 2020
• Neutral Citation: [2020] SGDC 156
• Court: District Court (Singapore)
• Hearing Date: 05 June 2020,18 March 2019,15 October 2019,20 March 2019,23 August 2018,07 September 2018,11 September 2018,16 October 2019,20 August 2018,16 March 2018,02 April 2018,01 March 2018,28 February 2018,24 August 2018,14 March 2018,13 August 2018,22 March 2019,12 September 2018,21 March 2019,02 March 2018,06 April 2020,10 September 2018,07 April 2020,17 October 2019,15 March 2018,21 August 2018,07 August 2018,06 September 2018
• Docket Number: District Arrest Case No 948709 of 2016 & ors, Magistrate’s Appeal Nos 9426 of 2020 and 9427 of 2020
• Plaintiff Counsel: Chew Xin Ying (Attorney-General's Chambers)
• Defendant Counsel: Mr K Jayakumar Naidu (Jay Law Corporation),Peter Keith Fernando (Leo Fernando LLC)
• Subject Matter: Criminal Law,Statutory offences,Women's Charter,Prevention of Human Trafficking Act,Consent of Public Prosecutor,Offences,Obstructing the course of justice
• Published date: 31 July 2020

District Judge Luke Tan: Introduction

Two accused persons, Rajendran s/o Nagarethinam (“Rajendran”) and Arumaikannu Sasikumar (“Sasikumar”), were co-owners of a club, Kollywood (“the club”) that engaged female Hindi and Bangladeshi performing artists. The performing artistes were supposed to dance and entertain the club’s customers, and the tips received from these customers, and the liquor sold to them, constituted revenue for the club.

Sasikumar originally operated as the sole owner and director of the club. Towards the end of 2015, he sold half of his shares to Rajendran, who invested a sum of $40,000 for this purpose. Rajendran also became a director of the club thereafter. It was alleged that in January 2016, both accused persons, together with their Bangladeshi accomplice, Roky, procured one of the performing artiste, a female Bangladeshi, Victim 1 (“V1”), for the purpose of prostitution. They also lived in part on her earnings of prostitution. The actions of the accused persons formed the basis of two charges under s 140(1)(b) and 146(1) of Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) respectively, both read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”).

Aside from the WC charges involving V1, it was also alleged that Rajendran alone recruited another Bangladeshi performing artiste, Victim 2 (“V2”), by threatening her with bodily harm for the purpose of exploitation. This constituted an offence under s 3(1)(a) punishable under s 4(1)(a) of the Prevention of Human Trafficking Act (Cap 256A, 2015 Rev Ed) (“PHTA”).

When several of the Bangladeshi performing artistes, including V1 and V2, left their residence (provided to them by the club) without permission, it was alleged that both accused persons, in furtherance of their common intention, intentionally obstructed the course of justice by arranging for their accomplice, Roky to leave Singapore to evade arrest. The accused persons’ actions constituted offences punishable under s 204A read with s 34 of the PC.

Both accused persons claimed trial to all their charges. They were originally tried together with the accomplice, Roky (B2), who had been arrested after he subsequently returned to Singapore, despite having been told by Rajendran that he was banned. However, in the midst of the joint trial of the accused persons and Roky, the latter absconded. He has not been found by the police since. The trial against the two accused persons then continued without Roky.

At the end of a trial lasting more than 25 days, and after going through the notes of evidence (“NE”), the exhibits, and the submissions of parties, I was satisfied that there was sufficient evidence to establish the respective cases against the accused persons beyond a reasonable doubt, and I convicted them on all their charges. Further dates were then taken for sentencing.

Thereafter, following the Prosecution’s submissions on sentence and the mitigation pleas for the accused persons, I imposed an aggregate sentence of 30 month’s imprisonment and $3,000 fine (in default 3 weeks’ imprisonment) on Rajendran, and an aggregate sentence of 16 month’s imprisonment and $1,000 fine (in default 1 week’s imprisonment) on Sasikumar.

Both accused persons have since filed appeals against their conviction and sentence. I now give the reasons for my decision.

Elements of the charges

There was little dispute on the elements of the charges against the accused persons.

The WC charges

Both accused persons faced two WC charges each.

As regards the charge of procurement under s 140(1)(b) of the WC read with s 34 of the PC, it was alleged that sometime in early January 2016, the accused persons together with Roky, in furtherance of their common intention, procured V1 for the purpose of prostitution within Singapore. With respect to the key elements of the offence, the following legal definitions were instructive: As to the meaning of procure, I accepted the position that in line with Public Prosecutor v Chong Mun Moi [2016] SGDC 268, at [49], procure generally means to persuade, or to bring about a course of conduct which V1 would not have embarked on spontaneously or of her own volition; and As for the meaning of prostitution, it is stated at s 2 of the WC that prostitution “means the act of a female offering her body for sexual penetration for hire, whether in money or in kind”.

As regards the WC charge of knowingly living in part on the earnings of the prostitution of V1 in furtherance of their common intention under s 146(1) of the WC read with s 34 of the PC allegedly committed sometime in early and mid-January 2016, the case of Public Prosecutor v Liew Kim Choo [1997] 2 SLR(R) 716 (“Liew Kim Choo”) is instructive. In Liew Kim Choo at [32], the High Court set out the following elements that have to be proven for a 146(1) WC charge: the fact that prostitution had taken place; that earnings had been made from that prostitution; that the whole or part of those earnings or the benefit of those earnings had been received by the accused persons; and that the accused persons received those earnings or their benefit with the knowledge that they were earned through prostitution.

For both WC charges, it was necessary also to prove that the offences were committed with common intention under s 34 of the PC. In Public Prosecutor v Imran bin Mohd Arip & Ors [2019] SGHC 155 at [22], the court made it clear that the following three elements must be present before constructive liability could be imposed pursuant to s 34, namely: (a) the criminal act element: this concerns the aggregate of all the diverse acts done by the actual doer and secondary offenders which collectively give rise to the offence that they have been charged with; (b) the common intention element: this focuses on the common intention of the offenders to do something or achieve some goal or purpose; and (c) the participation element: this requires a secondary offender to participate in the specific criminal act committed by the actual doer which gives rise to the offence charged or participate in some other criminal act that is done in furtherance of the common intention of all the offenders.

The PHTA charge

The Prosecution has to show that: Rajendran recruited V2; He did this by threatening her with bodily harm; and This was done for the purpose of exploitation. Exploitation is defined in section 2 of the PHTA, to mean “…sexual exploitation, forced labour, slavery or any practice similar to slavery, servitude or the removal of an organ”. Sexual exploitation in turn means “the involving of an individual in prostitution, sexual servitude or the provision of any other form of sexual service, including the commission of any obscene or indecent act by the individual or the use of the individual in an audio or visual recording or representation of such act”.

The PC charge

In respect of the charge for obstruction of justice under s 204A read with 34 of the PC (“obstruction of justice charge”), the Prosecution has to show that in furtherance of their common intention; they intentionally obstructed the course of justice by arranging for Roky to leave the country; in order for him to evade arrest.

Agreed facts

At the commencement of the hearing, parties put up a “Statement of Agreed Facts”. I have summarised the main agreed facts below: Rajendran and Sasikumar are both directors of Nine Silver Pte Ltd, a company which operated Kollywood Music Lounge (“Kollywood”). Sasikumar was appointed as director on 26 June 2014, and Rajendran was appointed as director on 30 November 2015. Both of them hold equal shares in the company. V1 and V2 are both Bangladeshi nationals, who arrived in Singapore on 7 September 2015 and 16 January 2016 respectively. On 11 February 2016, Roky departed Singapore via Tuas checkpoint at 8.36 pm. He re-entered Singapore via Changi Airport Terminal 2 on 8 November 2016 at 5.07 am. On 12 February 2016, CID officers conducted a check at Kollywood in the presence of Rajendran and seized items from its premises (as reflected in a seizure report). On 22 December 2016, at 10 am, Roky was placed under arrest. On the same date at 1.10 pm, both Rajendran and Sasikumar were also placed under arrest.

The Prosecution’s evidence

Aside from the facts already agreed, the Prosecution called a total of nine witnesses to prove its case. In addition, the Prosecution adduced numerous exhibits, including a statement recorded from Roky (P21), and two statements recorded from Sasikumar (P26 and P27), as well as records from the club.

I will outline the Prosecution’s main evidence below.

Evidence on the vice charges under s 140(1)(b) and 146(1) of the WC

Both WC charges involved V1, a 26-year-old female Bangladeshi girl. She testified that she originally worked as a dancer at wedding ceremonies in Bangladesh, and that she came to Singapore to be a dancer¹ at Kollywood, after she was informed that she would get a good salary of 100,000 Taka per month. V1 had arrived in Singapore on 7 September 2015, where she was met by Roky and Sasikumar. Roky had introduced Sasikumar to her as her boss.

When she came to Singapore, she handed her passport to Roky. She was told that she had a monthly earnings target of $6,000 per month. This was told to her to her by Sasikumar, who used Roky as the Bengali interpreter to convey the message, as V1 herself could not understand English.² Her earnings were supposed to come from the customers who watched her dance, as they would put the money in collection boxes. V1 was also told that she would not get her salary if she did not meet her monthly earnings target. She was very sad when she heard this and replied that she would try her best.

V1 said that subsequently, she was paid twice, once a sum of 50,000 Taka (in October or November 2015), and another time, a sum of 33,000 Taka (in November or December...