Sivakumar s/o Selvarajah v PP

• Jurisdiction: Singapore
• Judgment Date: 13 March 2014
• Date: 13 March 2014
• Docket Number: Criminal Appeals Nos 7 and 8 of 2013
• Court: Court of Appeal (Singapore)

Sivakumar s/o Selvarajah

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGCA 17

Chao Hick Tin JA

,

V K Rajah JA

and

Tay Yong Kwang J

Criminal Appeals Nos 7 and 8 of 2013

Court of Appeal

Criminal Law—General exceptions—Victim agreeing to sex under threat of being brought to police station—Whether there was consent if victim agreed to sex due to fear of injury to reputation—Sections 44 and 90 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law—Offences—Appropriate sentence to be imposed for impersonating police officer on facts of present case

Criminal Law—Offences—Rape—Appropriate sentence to be imposed on facts of present case

Criminal Law—Offences—Whether accused had to expressly state that he was public servant—Whether act done or attempted to be done needed to be one which public servant that accused pretended to be could legally have done

The victim, a 16-year-old school girl, was behaving intimately with her boyfriend in a car at a carpark when the accused confronted them. The accused then offered to drive the victim back to her home. Along the way, the accused represented that he was a police officer and threatened to bring her to the police station unless she agreed to have sex with him. The victim succumbed to the threat. As a result, the following charges were preferred against the accused: (a) impersonation of a public servant under s 170 of the Penal Code (Cap 224, 2008 Rev Ed) (‘the Code’) (‘the first charge’); (b) outrage of modesty under s 354 (1) of the Code (‘the second charge’); (c) sexual assault by penetration under s 376 (1) (a) of the Code (‘the third charge’); and (d) rape under s 375 (1) (a) of the Code (‘the fourth charge’). The accused's defence was that the victim offered to have sex with him in exchange for money (which he accepted).

The trial judge acquitted the accused of the first charge because he found that the evidence was not sufficiently cogent to show that the accused had said that he was a police officer. The trial judge also found that even if he did say so, more was required before one could be convicted of impersonating a police officer. Nevertheless, the trial judge found the accused guilty of the second, third and fourth charges after deciding that the victim's account of the events was corroborated by other evidence whereas the accused's account was ‘highly improbable’.

The accused was sentenced to one year' imprisonment and two strokes of the cane for the second charge, 11 years' imprisonment and five strokes of the cane for the third charge and 11 years' imprisonment and five strokes for the fourth charge. The prison sentences imposed on the third and fourth charges were ordered to run concurrently so that the total sentence imposed was 12 years' imprisonment and 12 strokes of the cane. The accused appealed against his conviction and sentence in respect of the second to fourth charge. The Prosecution cross-appealed against the trial judge's decision to acquit the accused of the first charge.

Held, dismissing the appeal and allowing the cross-appeal:

(1) Pursuant to s 90 read with s 44 of the Code, there was no consent if the consent by a victim was given under fear of injury to her reputation and the accused knew or had reason to believe that the consent was given in consequence of such fear: at [36] to [38] .

(2) In respect of the second to fourth charge, the victim's testimony was strongly corroborated. The accused's testimony, on the other hand, was internally inconsistent and defied belief. On the evidence, the trial judge's findings should not be disturbed; the accused had failed to raise any reasonable doubt in the Prosecution's case: at [43] , [44] and [47] .

(3) In respect of the first charge, an offence under s 170 of the Code would be committed if X (i) knew that he was not a public servant but pretended to be such a public servant and (ii) in that assumed character, X did or attempted to do any act under colour of the office of such a public servant. In relation to element (i), X could feign to be a police officer even without expressly uttering or saying so. The context and the words used and/or X's actions were crucial. It would be foolhardy for any court to lay down hard and fast rules as to what words or actions would be sufficient to constitute pretension as a police officer. In relation to element (ii), the act done or attempted to be done by X did not need to be an act which the public servant (that the accused pretended to be) could legally have done: at [50] , [52] , [53] and [55] .

(4) In coming to his decision on the first charge, the trial judge appeared to focus on what was said by the accused to the victim and her boyfriend at the carpark but disregarded what he had clearly said to the victim during the car journey. The trial judge also did not appear to have the first charge specifically in mind: on the pretension of being a police officer the accused threatened to bring the victim to the police station for what she and her boyfriend did at the carpark if she did not agree to have sex with him. The trial judge's finding on the first charge was wholly against the weight of the evidence. Further, the trial judge's finding on the first charge could not be sustained in light of his findings of fact in relation to the other three charges: at [58] , [59] and [62] .

(5) In respect of the sentence imposed for the fourth charge, the relevant factors to be taken into account were similar to those in Chia Kim Heng Frederick v PP[1992] 1 SLR (R) 361: the accused placed himself in a quasi-position of trust and made the victim suffer degradation before being raped. Although there was no physical violence or threat of violence inflicted on the victim, this was not a mitigating factor: the victim was put in so much fear that she was not able to resist the accused's demands. The sentence for the fourth charge could not be regarded as manifestly excessive: at [70] and [71] .

(6) In respect of the sentence for the first charge, given the heinous motive behind the impersonation and the tarnish caused to the police's reputation in the present case, an appropriate sentence would be an imprisonment term of six months. However, as the first charge formed part of the same transaction as the other charges, it was only just that the sentence for the first charge run concurrently with the existing total imprisonment term of 12 years: at [73] and [75] .

Biswanath Mukherjee v State of West Bengal [1966] LNIND 1966 CAL 206 (not folld)

Chia Kim Heng Frederick v PP [1992] 1 SLR (R) 63; [1992] 1 SLR 361 (refd)

Emperor v Aziz-Ud-Din (1905) ILR 27 All 294 (refd)

Iskandar bin Abdul Rahim v PP [2001] SGDC 46 (refd)

Kwan Peng Hong v PP [2000] 2 SLR (R) 824; [2000] 4 SLR 96 (refd)

PP v Christopher s/o M P Nathan [2000] SGHC 43 (refd)

PP v NF [2006] 4 SLR (R) 849; [2006] 4 SLR 849 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (refd)

PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR (R) 601; [2008] 1 SLR 601 (refd)

R v Baskerville [1916] 2 KB 658 (refd)

Sarjit Singh Rapati v PP [2005] 1 SLR (R) 638; [2005] 1 SLR 638 (refd)

Tang Kin Seng v PP [1996] 3 SLR (R) 444; [1997] 1 SLR 46 (refd)

Tomm Wong v PP [1973] 1 MLJ 215 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 307

Penal Code (Cap 224, 1985 Rev Ed) s 376 (1)

Penal Code (Cap 224, 2008 Rev Ed) ss 44, 90, 170 (consd) ;ss 21, 350, 354 (1) , 354 (2) , 375 (1) , 375 (1) (a) , 375 (2) , 376 (1) , 376 (3)

Penal Code (M'sia) s 170

Foo Cheow Ming (instructed), Gloria James and Amarjit Singh (Gloria James-Civetta & Co) for the appellant in CCA 7/2013 and the respondent in CCA 8/2013

Mark Tay, Ng Yiwen and Tan Soo Tet (Attorney-General's Chambers) for therespondent in CCA 7/2013 and the appellant in CCA 8/2013

.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 These were two related appeals brought by the accused person (hereinafter referred to as ‘the Appellant’) and the Public Prosecutor, respectively, following a trial and the finding of guilt by the High Court judge (‘the Judge’) against the Appellant on three sexual offence charges and the acquittal of the Appellant of a single charge of impersonation under s 170 of the Penal Code (Cap 224, 2008 Rev Ed) (‘s 170’ and ‘the Code’ respectively). CCA No 7 of 2013 (‘CCA 7’) was the Appellant's appeal against the convictions found against him as well as the sentences imposed. CCA No 8 of 2013 (‘CCA 8’) was the Public Prosecutor's appeal against the acquittal.

2 At the conclusion of the hearing, we dismissed CCA 7 but allowed CCA 8 and convicted the Appellant on the charge of impersonation. We now give our reasons.

The charges

3 The charges which were brought against the Appellant were as follows:

1st Charge: [You, the Accused] sometime in the afternoon of 16 July 2010, in Singapore, did pretend to hold the office of a public servant, to wit, a Police Officer of the Singapore Police Force, knowing that you did not hold such office, and in such assumed character did inform [the Complainant] [DOB], female/ then 16 years old, that you would bring her to the Police Station if she did not have sexual intercourse with you, and you have thereby committed an offence punishable under section 170 of the Penal code, Chapter 224.

2nd Charge: [You, the Accused], sometime in the afternoon of 16 July 2010, at Tampines Industrial Avenue 4, Singapore, did use criminal force on [the Complainant] [DOB], female/ then 16 years old, with intent to outrage her modesty, to wit, by sucking her nipple, touching her buttock and rubbing your fingers on her vagina, and you have thereby committed an offence punishable under section 354 (1) of the Penal code, Chapter 224.

3rd Charge: [You, the Accused] sometime in the afternoon of 16 July 2010, at Tampines Industrial Avenue 4, Singapore, did commit...