Rizal bin Abdul Razak v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 July 2000
• Neutral Citation: [2000] SGHC 148
• Court: High Court (Singapore)
• Year: 2000
• Published date: 12 March 2013
• Plaintiff Counsel: Selva K Naidu (Naidu Mohan & Theseira)
• Defendant Counsel: Jennifer Marie and Tai Wei Shyong (Deputy Public Prosecutors)
• Citation: [2000] SGHC 148

JUDGMENT:

Grounds of Judgment

This was an appeal against the decision of district judge Kathryn Low Lye Fong on 17 February 2000. The learned judge found the appellant guilty of three charges of rape and one charge of abetment of rape. The charges were as follows:

DAC 45555/99

That you,

On or about the 14^th day of July 1999 between 4.30 am and 5.30 am, at Blk 526 Bukit Batok St $02-90, Singapore, did commit rape on one Marzalina Bte Mohammad Ali (D.O.B. 25.7.1983), a female Malay aged 15 years old and you have thereby committed an offence punishable under Section 376(1) of the Penal Code, Chapter 224.

DAC 45556/99

That you,

On a second occasion, on or about the 14^th day of July 1999 between 4.30 am and 5.30 am at Blk 526 Bukit Batok St 52 #02-90, Singapore, did commit rape on one Marzalina Bte Mohammad Ali (D.O.B. 25.7.1983), a female Malay aged 15 years old and you have thereby committed an offence punishable under Section 376(1) of the Penal Code, Chapter 224.

DAC 45557/99

That you,

On a third occasion, on or about the 14^th day of July 1999 between 4.30 am and 5.30 am at Blk 526 Bukit Batok St 52 #02-90, Singapore, did commit rape on one Marzalina Bte Mohammad Ali (D.O.B. 25.7.1983), a female Malay aged 15 years old and you have thereby committed an offence punishable under Section 376(1) of the Penal Code, Chapter 224.

DAC 45558/99

That you,

On or about the 14^th day of July 1999 between 4.30 am and 5.30 am at Blk 526 Bukit Batok St 52 #02-90, Singapore, did abet one Muhammad Zainudin B Sanwan, M/20 by instigating the said Muhammad Zainudin B Sanwan to commit rape on one Marzalina Bte Mohammad Ali (D.O.B. 25.7.1983), a female Malay aged 15 years old and you have thereby committed an offence punishable under Section 376(1) of the Penal Code, Chapter 224.

2 Initially, the appellant was to be jointly tried with Muhammad Zainudin Bin Sanwan, PW8 ('Dino'). Dino faced one charge of rape against the same victim, Marzalina Bte Mohammad Ali, PW3 ('Nana') and one charge of abetting the appellant to commit rape on Nana. With the consent of the appellant and Dino, the joint trial was held in the district court. On the first day of the trial, Dino pleaded guilty to the charge of rape and consented that the charge of abetting the appellant to commit rape be taken into consideration for sentencing purposes. Dino was sentenced to five years' imprisonment and six strokes of the cane.

The prosecution's case

3 The case for the prosecution was largely based on the evidence proffered by Nana and her friend, Nazariah Bte Nazlan, PW4 ('Yana').

4 According to Nana, she accompanied Yana to Bukit Batok on 13 July 1999 at about 6.00 pm. Yana wanted to collect some belongings from her ex-boyfriend Mohammad Hairil Bin Rosle, DW2 ('Hairil'). They reached Bukit Batok at about 8.00 pm and met Hairil at a sepak takraw court. At that time, Hairil was playing sepak takraw with some boys who were also Yana's friends. Among the boys was the appellant, whose nickname was 'Boy'. Nana, Yana and Adek (the appellant's girlfriend) watched the game and chit-chatted while the boys played sepak takraw.

5 After the game ended at about 10.00 pm, the appellant escorted his girlfriend to the bus-stop and went home to change his clothes. In the meantime, Nana, Yana, Hairil and his friends remained at the sepak takraw court and chit-chatted. At about 11.40 pm, they went to Hairil's two-storey flat at Blk 526 Bukit Batok St 52 #02-90 and watched television. The appellant joined them at Hairil's flat. Subsequently, the appellant, Yana and a few others went to a 7-Eleven store to buy coke, stout, Jack Daniel's whisky and some snacks. Thereafter, they proceeded to 'little Guilin' lake, which is in the vicinity of Hairil's flat, and had some drinks there. In the meantime, Nana, Dino, Hairil and another boy by the name of Romi remained at the flat.

6 At about 3.00 am, the appellant and Yana went to Hairil's flat and invited Nana and Dino to join them at the lake for drinks. The four of them then went to the lake. At the lake, Nana consumed about one-eighth to a quarter of the bottle of Jack Daniel's whisky and became drunk. She recalled that she was also offered Guiness stout and coke but threw up after consuming them. Further, she attempted to jump into the lake in her drunken state. She passed out at one point and found herself lying with her head on Dino's lap when she came to. She then went to a cave with Dino and vomited there. After that, she asked Dino to bring her back to Hairil's flat. Dino then asked the appellant to help him bring Nana back to the flat. By this time, Yana had already returned to the flat on her own.

7 Nana claimed that, although she was drunk, she was not totally unconscious. She recalled that Dino and the appellant brought her to Hairil's flat. She recognised them by their voices. She also recalled that she was carried by either Dino or the appellant at some point along the way to Hairil's flat. According to Dino, it was almost 5.00 am when he and the appellant reached Hairil's flat with Nana. Nana stated that she was placed on the sofa in the living room on the lower floor of the flat. She recalled that she was lying with her head on the left side of the sofa. From this position, she could see the staircase to the upper floor of the flat. She could also tell that all the lights on the lower floor of the flat were switched off. When she was about to doze off, she felt her shorts being pulled down and then felt an object, which she later realised was a penis, moving in and out of her vagina. Nana claimed that she saw the appellant's face about 2 feet in front of her as she opened her eyes. She felt pain in her private part and realised that she was being raped by the appellant. She wanted to put up a struggle but was too exhausted and drunk to do so.

8 The appellant's thrusting action lasted about two or three minutes. After that, Nana heard the appellant ask Dino to help him carry her from the sofa to the floor. Dino then carried her by her shoulders while the appellant carried her legs. When she was on the floor, Nana felt the hard object moving in and out of her vagina again. She opened her eyes and saw the appellant's face before her again. Then, Nana heard the appellant ask Dino, "Din, do you want to do it or not?". Dino replied, "Alright". At this point, the appellant was still having sexual intercourse with Nana. The appellant then rose and went into the kitchen. Nana did not see his face but could see the structure of his body. Dino then started to have sexual intercourse with Nana for about two or three minutes. Nana thought that everything was over when Dino stopped. However, she then felt something hard moving in and out of her vagina again. She turned her head and saw the appellant's face in front of her. The thrusting lasted for two or three minutes. After that, the appellant pulled up Nana's panties and told Dino to carry her upstairs to Hairil's room. Nana slept on the floor in Hairil's room until the next day.

9 Nana woke up the next morning and found Dino sleeping next to her. She told Yana in private that Dino and the appellant had had sexual intercourse with her and that she felt pain in her private part. Yana suggested that they talk about it later and told Nana to behave as though nothing had happened. They both went back to sleep.

10 When Yana and Nana woke up in the afternoon, Romi, Hairil, Dino and the appellant were in the room. Nana felt frightened and kept quiet as Dino and the appellant were Yana's friends. She left Hairil's flat with Yana at about 6.00 pm. On the way home, Nana told Yana more about the incident. Yana then advised her to lodge a police report. However, Nana was afraid to do so as she had consumed liquor when she was underage. At home, Yana called Dino and the appellant on the phone and confronted them about the incident. They both denied that they had had sexual intercourse with Nana.

11 Nana told her mother, Mariamah Bte May, PW7 about the incident one week later. Despite her mother's advice, Nana refused to lodge a police report. On 1 August 1999, she lodged a police report at 4.00 am at the Marine Parade police post. Subsequently, she was sent for a medical examination. Dr Lisa Wong, PW6, conducted the examination and concluded on 10 August 1999 that there were hymenal tears at the 4 o'clock and 9 o'clock positions.

12 Apart from Nana and Yana's account of the facts, the prosecution relied on the following evidence:

(a) Dino, PW8, testified that he witnessed the appellant having sexual intercourse with Nana on three occasions on the morning of 14 July 1999. He also stated that the appellant had asked him, while he was having sexual intercourse with Nana on the floor of Hairil's flat, if he wanted to 'do it'.

(b) Nana's mother, PW7, testified as to what Nana had told her approximately one week after the incident.

(c) The photographs, P7 to P17, showed the vicinity where the flat was located, the layout of the corridor and rooms in the flat, the 7-Eleven store and the 'little Guilin' lake. In addition, there were sketch plans (P18, P18A and P19) of the lower and upper floors of Hairil's flat.

(d) Dr Leow Kee Fong, PW5's medical report at P21 stated that there was no indication of impotence in the appellant.

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