Public Prosecutor v Ridhaudin Ridhwan bin Bakri and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 23 April 2019
• Neutral Citation: [2019] SGHC 105
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 35 of 2016
• Year: 2019
• Published date: 27 April 2019
• Hearing Date: 26 January 2018,16 August 2016,28 May 2018,13 October 2017,04 August 2016,05 October 2017,18 September 2017,22 September 2017,24 January 2018,03 October 2017,12 October 2017,17 August 2016,10 August 2016,11 August 2016,21 September 2017,19 August 2016,12 August 2016,27 September 2017,13 September 2017,06 October 2017,12 September 2017,19 September 2017,02 August 2016,26 September 2017,03 August 2016,04 October 2017,18 August 2016,05 August 2016,11 October 2017,10 October 2017,23 January 2018,09 April 2018,29 September 2017,28 September 2017,09 October 2017,20 September 2017,25 January 2018,25 September 2017
• Plaintiff Counsel: Sharmila Sripathy-Shanaz, Charlene Tay-Chia, Michael Quilindo and Amanda Chong Wei-Zhen (Attorney-General's Chambers)
• Defendant Counsel: Ng Joel Yuan-Ming (Quahe Woo & Palmer LLC),Ng Huiling Cheryl (Intelleigen Legal LLC),Low Jian Hui and Wong Li-Yen, Dew (Dew Chambers)
• Subject Matter: Criminal law,Offences,Rape,Attempted rape,Sexual penetration,Outrage of modesty,General exceptions,Consent,Mistake of fact
• Citation: [2019] SGHC 105

Woo Bih Li J: Introduction

Three accused persons, Mr Ridhaudin Ridhwan bin Bakri (“Ridhwan”), Mr Muhammad Faris bin Ramlee (“Faris”), and Mr Asep Ardiansyah (“Asep”), were jointly tried before me for a number of sexual offences allegedly committed against a female Singaporean (“the Complainant”) on 26 January 2014 in Room 310 (“the Room”) of a hotel formerly located along Duxton Road, Singapore (“the Duxton Hotel”). The Duxton Hotel has since been torn down. At the time of these alleged offences, the Complainant was 18 years of age, while each of the three accused persons was 20 years of age.

Ridhwan, the first accused, is a Singaporean male facing three charges: One charge of sexual assault by penetration under s 376(2)(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”), punishable under s 376(3) of the PC, for penetrating the Complainant’s anus with his finger without her consent, in the living room of the Room, sometime on the morning of 26 January 2014 (“the 1st Charge”). One charge of rape under s 375(1)(a), punishable under s 375(2) of the PC, for penetrating the Complainant’s vagina with his penis without her consent, in the living room of the Room, sometime in the morning of 26 January 2014 (“the 2nd Charge”). One charge of using criminal force with intent to outrage the modesty of the Complainant punishable under s 354(1) of the PC, for sucking her nipples, in the living room of the Room, sometime in the morning of 26 January 2014 (“the 3rd Charge”).

Faris, the second accused, is a Singaporean male facing two charges: One charge of rape under s 375(1)(a), punishable under s 375(2) of the PC, for inserting his penis into the Complainant’s vagina without her consent, in the bathroom of the Room, sometime in the morning of 26 January 2014 (“the 4th Charge”). One charge of sexual assault by penetration under s 376(2)(a), punishable under s 376(3) of the PC, for penetrating the Complainant’s vagina with his finger without her consent, in the living room of the Room, sometime in the morning of 26 January 2014 (“the 5th Charge”).

Asep, the third accused, is also a Singaporean male, and he faces the following two charges: One charge of sexual assault by penetration under s 376(1)(a), punishable under s 376(3) of the PC, for penetrating the Complainant’s mouth with his penis without her consent, in the bathroom of the Room, sometime in the morning of 26 January 2014 (“the 6th Charge”). One charge of attempted rape under s 375(1)(a), punishable under s 375(2) read with s 511 of the PC, for attempting to insert his penis into the Complainant’s vagina without her consent, in the bathroom of the Room, sometime in the morning of 26 January 2014 (“the 7th Charge”).

In relation to a majority of these charges, the accused persons did not dispute that the relevant sexual activity had occurred between each of them and the Complainant, but argued that such activity had been consensual. Therefore, two of the main issues in contention are whether the Complainant had the capacity to give consent at the material time of the offences, and if so, whether she did in fact give such consent.

Background

I will first set out the background before dealing with the areas of contention in greater detail.

The alleged offences occurred in the morning of 26 January 2014. The three accused persons and the Complainant had met for the first time on the evening prior, on 25 January 2014, at a birthday party for Mr Muhammad Elmi Ching bin Aman (“Elmi”) which was planned by his then-girlfriend, Ms Ros Izzati Atiqah binte Mohd Zulkifli (“Izzati”). This party was held in the Room, which was internally divided into two floors. On the first floor was the living room, which comprised a seating area with tables, sofas and a television. The main door, which was the only entrance and exit out of the Room, was located on this floor. A spiral staircase connected the first floor to the mezzanine level, which I shall refer to as “the second floor”. On this second floor was a bedroom containing a double bed and a cabinet, and the Room’s only bathroom, which some witnesses also referred to as the “toilet”. The bathroom layout was rectangular and on entering it, one would see a bathtub on the right, a water closet on the left, and the sink with a counter-top in front of the door. Above the sink was a mirror that faced the bathroom door.

The Complainant did not know and had not met the accused persons, Elmi, or Izzati prior to 25 January 2014. Her original plan for that evening was to meet some friends and then visit a nightclub. Shortly after 10pm, however, Mr Muhammad Fadly bin Abdull Wahab (“Fadly”) messaged her and invited her to have drinks at Elmi’s birthday party. Although Fadly repeatedly urged her to come alone,¹ the Complainant insisted on bringing along her friend, Mr Mohamed Affandi bin Ibrahim (“Affandi”), and Fadly eventually agreed.² Evidence showed that, at that time, Fadly was planning to get the Complainant drunk at the party and had brought along a bottle of vodka for that purpose.³ The three accused persons were Elmi’s friends and were also invited to the party.

The Complainant and Affandi arrived at the Duxton Hotel close to or slightly after midnight on 26 January 2014.⁴ By the time they joined the party, all three accused persons, together with Elmi, Izzati, and the other attendees, were already in the Room and were engaging in casual conversations at the first floor while consuming alcohol.⁵ The Complainant sat next to Fadly on a sofa.⁶ Conversations continued and, save for Izzati, all the attendees consumed alcohol.⁷ The Complainant behaved normally at the time of her arrival,⁸ and she subsequently interacted mostly with Fadly and Affandi.⁹ According to the Complainant, she had not consumed any alcohol earlier that evening prior to arriving at the party.¹⁰ I will elaborate later on the evidence on the type and amount of alcohol that she consumed at the party (see below at [141]).

After some time, an impromptu plan was made for the attendees of the party to head to a nightclub named Zouk.¹¹ At around 1am on 26 January 2014, as the attendees were preparing to leave the Room for Zouk,¹² the Complainant tried to stand up on her own but had difficulty doing so.¹³ She collapsed onto the ground,¹⁴ and some evidence suggested that she vomited on the floor.¹⁵ Fadly then brought the Complainant to the bathroom on the second floor.¹⁶ When it became clear that the Complainant would not be able to go to Zouk, Fadly and Mr Muhammad Hazly Bin Mohamad Halimi (“Hazly”) elected to stay behind with her while the other attendees made their way to the nightclub.¹⁷ I shall refer to those who left for Zouk collectively as “the Group”.

After the Group had left the Room, Fadly and/or Hazly brought the Complainant out of the bathroom and placed her on the bed on the second floor. The two men then took a photo of themselves with the Complainant partially undressed and her breasts exposed.¹⁸ At this point, the Complainant was still unconscious.¹⁹ Fadly then sent the photo to his friend at around 1.58am.

At around 2.20am, Elmi returned to the Room to pick up Izzati’s identification card (“IC”).²⁰ He testified that, upon his return, he saw that the Complainant was fully dressed by that time,²¹ but she was in an unconscious state on the ground of the second floor of the Room. Fadly tried to wake the Complainant and asked if she was alright,²² but she did not respond.²³ As Elmi was in a rush, he left quickly thereafter²⁴ and estimated that he had only spent around one to two minutes in the Room.²⁵

After Elmi left, Fadly and Hazly raped the Complainant in the bedroom of the second floor while she was unconscious.²⁶ As at the time of this trial, they have pleaded guilty to charges of rape and have been convicted and sentenced by another court.

Meanwhile, at Zouk, Asep got into an altercation. His shirt was torn and thus he had to return to the Room.²⁷ He returned alone.²⁸ According to Asep, he initially sat on the sofa on the first floor.²⁹ He then went to the bathroom on the second floor. He said that he saw the Complainant seated in the bathtub,³⁰ and that she was leaning back and her legs were straight.³¹ He soon left the bathroom and returned to the first floor.³² Sometime later, Ridhwan and Faris also returned to the Room.³³ At this point, the persons in the Room were the three accused persons, as well as Fadly, Hazly, and the Complainant.

It was undisputed that, at some point after returning from Zouk, Faris went to the bathroom on the second floor and had sexual intercourse with the Complainant.³⁴ However, issues relating to the Complainant’s consent and her capacity to do so remain in contention.³⁵ In essence, the Complainant could recall little about what had occurred in the bathroom that morning, and the Prosecution’s case was that she had neither the capacity to consent, nor had she in fact consented to sexual intercourse with Faris. On the other hand, Faris’ account was that the Complainant had propositioned him for sex while he was in the bathroom with her, and thereafter consented to penile-vaginal intercourse with him. These events form the basis of the 4th Charge (see [3(a)] above).

Subsequently, after Faris exited the bathroom alone, Asep went to use the bathroom.³⁶ Similarly, while issues relating to the Complainant’s consent and her capacity to do so remain in dispute, it was not contested that, while in the bathroom with the Complainant, Asep had inserted his penis into the Complainant’s mouth, and that he had also attempted to insert his penis into her vagina although he did not eventually manage to do so as he lost his erection. These events form the basis for the 6th and 7th Charges (see [4(a)] and [4(b)] above).

Elmi and Izzati returned to the Room at around 5.04am while Asep and the Complainant were in the bathroom. They made their way to the second floor...