Sivakumar s/o Selvarajah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 March 2014
• Neutral Citation: [2014] SGCA 17
• Court: Court of Appeal (Singapore)
• Hearing Date: 15 January 2014
• Docket Number: Criminal Appeal Nos 7 & 8 of 2013
• Plaintiff Counsel: Mr Foo Cheow Ming (instructed), Ms Gloria James and Mr Amarjit Singh (Gloria James-Civetta & Co),Mr Mark Tay, Mr Ng Yiwen, and Mr Tan Soo Tet (Attorney-General's Chambers)
• Subject Matter: Criminal law,Offences,Rape
• Published date: 19 March 2014

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

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.

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

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 sexual assault by penetration of [the Complainant] [DOB], female/ then 16 years old, to wit, by penetrating the mouth of [the Complainant] with your penis without her consent, and you have thereby committed an offence under section 376(1)(a) and punishable under section 376(3) of the Penal code, Chapter 224.

4th Charge: [You, the Accused] sometime in the afternoon of 16 July 2010, at Tampines Industrial Avenue 4, Singapore, did commit rape of [the Complainant] [DOB], female/ then 16 years old, to wit, by penetrating the vagina of [the Complainant] with your penis without her consent, and you have thereby committed an offence under section 375(1)(a) and punishable under section 375(2) of the Penal code, Chapter 224.

The Judge acquitted the Appellant on the 1st charge on the ground that it had not been proven but convicted him on the 2nd, 3rd and 4th charges. The Judge then sentenced the Appellant to: 1 year imprisonment and 2 strokes of the cane for the 2nd charge; 11 years’ and 5 strokes of the cane for the 3rd charge; and 11 years’ and 5 strokes of the cane for the 4th charge. The Judge also ordered the prison sentences for the 3rd and 4th charges to run concurrently and the 2nd charge to run consecutively with the 3rd and 4th charges. The total sentence was therefore 12 years’ imprisonment and 12 strokes of the cane.

Background facts

At the time of the alleged offences, the Appellant, a 39 year old technician, was married with two young children. He lived at Block 647 Woodlands Ring Road. The victim was a 16 year old secondary four student (“the Victim”) at a school located in Tampines. She lived near her school. She was then in a relationship with a 20 year old polytechnic student (“PW23”). The Victim and PW23 came from Muslim families. The Victim broke up with PW23 following the alleged offences. We shall refer to the Victim and PW23 collectively as “the couple.”

The circumstances leading to the confrontation

On the afternoon of 16 July 2010, after school, at about 2.30 pm, the Victim met up with PW23 who drove her in his Kia Cerato (“the Kia”) to a multi-storey carpark at Block 685 Woodlands Drive 73 (“the Carpark”). PW23 drove up to the 5th storey of the Carpark and parked the Kia at Lot 621. Soon after, they started getting intimate with each other inside the Kia.

Victim’s evidence

According to the Victim, while she was in the midst of fellating PW23 in the backseat of the Kia, the couple noticed the Appellant’s white Mazda CX-7 (“the Mazda”) driving past the Kia.¹ Soon after this, PW23 ejaculated and cleaned himself up using a piece of tissue paper which he threw out of the right rear window of the Kia.²

Thereafter, the couple started to have protected sexual intercourse. At some point, PW23’s condom tore and he proceeded to put on another condom. After a few minutes,³ the Victim observed that the Mazda had parked at Lot 629 (about seven lots away from the Kia).⁴

The Victim told PW23 that she was not comfortable with the presence of the Mazda. PW23 went out to see if there was anyone in the Mazda. After a minute or two, PW23 returned and told her that there was someone at the driver’s seat in the Mazda.

The couple continued to engage in sexual intercourse but only for a few minutes. Thereafter, the couple returned to the front seats of the Kia. They talked and PW23 also had a smoke. Soon, they got aroused again and the Victim fellated PW23 for the second time.⁵

Appellant’s evidence

The Appellant said that on that same day, at or around 3pm, he drove the Mazda from his home to collect some electronic goods for his employer from a vendor at Senoko Drive. On the way towards Gambas Avenue, he saw two boys behaving suspiciously at the staircase of the Carpark. The Appellant averred that he had previous unpleasant encounters with people who littered around his neighbourhood. He therefore decided to see what the two boys were up to.

He drove up to the 5th storey of the Carpark and parked the Mazda at Lot 629. He walked down one of the Carpark staircases and found the two boys smoking and saw them throwing their cigarettes butts onto the ground. He chastised them for littering and told them to dispose of the cigarette butts properly (which they did).

The Appellant then returned to the 5th storey of the Carpark. While he was about one car length away from his Mazda, he saw a man in a red shirt (who was PW23) looking at his Mazda before turning back towards the direction of the Kia. The Appellant returned to the Mazda and started to use his phone. He then saw someone throwing a tissue out through the right rear window of the Kia. Having just told off the two boys for littering, he got upset that someone else was committing the same anti-social act. After a short while, he got out of the Mazda and approached the Kia, intending to admonish the litterbug. As he approached the Kia, the Appellant noticed that the Victim was in the act of fellating PW23. He then knocked on the window on the driver’s side.

The confrontation Victim’s evidence

According to the Victim, the Appellant asked PW23 to step out of the Kia and further asked PW23 whether he had littered. He also inquired as to what the couple were doing in the Kia. Moments later, the Appellant asked the Victim to get out of the Kia and also demanded to see their identity cards (“IDs”). As the Victim only handed over her EZ-Link card which did not have her address on it, the Appellant demanded to know where the Victim was staying. She eventually revealed to the Appellant that she stayed in Tampines. PW23 admitted to the Appellant that they were having sex and that he was the one who had littered. The Appellant then proceeded to take photographs of the litter below the Kia.

The Appellant told the couple that he was doing his rounds with his team. He said that he saw what they were doing and that he would bring them to the police station and charge them. He also said he had just caught two boys taking drugs in the Carpark. The couple begged him not to bring them to the police station. He then said he would give them a chance if the Victim would follow him as he wanted to make sure that the Victim returned home safely as he did not trust PW23. He also asked PW23 to go home and to meet the Appellant later at the void deck of PW23’s flat to discuss what the latter had done.⁶ Embarrassed and afraid of getting into trouble with her parents as well as with the law in relation to what she and PW23 were doing in the Kia, she complied with the Appellant’s instructions and got into the Mazda.

Appellant’s evidence

The Appellant did not materially dispute the Victim’s account as set out at [13] above. However, he said that after speaking to PW23 on the right side of the Kia, he walked over to the left side of the Kia and found condom wrappers and tissues on the floor. It was only then that he took photographs of the litter. The Appellant also asked PW23 whether the condom wrappers and tissues on the left side of the Kia were thrown by him which he admitted.⁷

The Appellant denied saying that he was doing the rounds with his team. Instead, he claimed that he told PW23 that he was going to call the police and inform them that PW23 had littered in the Carpark. PW23 begged him to refrain from doing so. The Appellant claimed that after the Victim revealed that her home was in Tampines, she volunteered to show the Appellant where she stayed and said that he could send her home.⁸ The Appellant agreed and even told PW23 that he could come along. PW23 declined and said that it was fine for the Appellant to send the Victim home.

The Victim then took her belongings from the Kia and sat in the front passenger seat of the Mazda. According to the Appellant, at that point, his thoughts were:⁹

In my mind, er, I feel that she---she voluntary [sic] said that she wanted...