V Murugesan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 01 December 2005
• Neutral Citation: [2005] SGCA 54
• Citation: [2005] SGCA 54
• Defendant Counsel: Lee Lit Cheng and Daphne Chang (Deputy Public Prosecutors)
• Published date: 07 December 2005
• Plaintiff Counsel: The appellant in person
• Date: 01 December 2005
• Docket Number: Criminal Appeal No 7 of 2005
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether grounds existing for court to set aside conviction on rape offence,Section 18 Criminal Procedure Code (Cap 68, 1985 Rev Ed), ss 375, 376 Penal Code (Cap 224, 1985 Rev Ed),Section 375 Penal Code (Cap 224, 1985 Rev Ed),Property,Criminal Law,Whether "one transaction rule" and "totality principle" applicable,Trial judge ordering sentences for offences of abduction and rape to run consecutively,Rape,Offences,Sentencing,Principles,Criminal Procedure and Sentencing

1 December 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was an appeal against the appellant’s conviction and sentence by the High Court for the offences of abduction and rape. At the same trial, the appellant was also convicted, on his admission of guilt, on two relatively minor offences of illegal entry and possession of an unlawful identity card (“IC offence”) The sentences meted out by the trial judge on the four offences, were:

(a) abduction	:	seven years’ imprisonment and seven; strokes of caning.
(b) rape	:	14 years’ imprisonment and 14 strokes; of caning.
(c) illegal entry	:	ne month’s imprisonment and three; strokes of caning.
(d) IC offence	:	$3,000 fine (or one month’s; imprisonment in default).

2 The trial judge ordered that the imprisonment sentences for abduction and rape were to run consecutively while that for the illegal entry was to run concurrently with the first two. The net result was that the appellant would have to serve a total prison term of 21 years and 24 strokes of caning. Should the appellant not able to pay the fine of $3,000 for the IC offence, he would have to serve another one more month of imprisonment.

3 We heard the appeal on 24 October 2005 and found no merit in the appeal against the conviction for abduction and rape. However, we allowed the appeal against the sentences imposed for these two offences on the ground that certain principles on sentencing appeared to have been overlooked. We now give our reasons.

The facts

4 The appellant is a 28-year-old Indian national. At about midnight on 4 March 2004, the victim was returning home by taxi after some drinks with friends. Having alighted from the taxi, she vomited on a grass patch at the foot of Block 715 Woodlands Drive 70. She was tipsy. At that moment, the appellant and a friend, Manikkam, were also returning to a block nearby after some drinks. Seeing the victim in that condition at the void deck of Block 715, they forcibly dragged her into the refuse area of the block, where the offence of rape was committed by the appellant. We should, at this juncture, add that before the trial, the accomplice, Manikkam, had pleaded guilty to charges of abduction, abetment of rape and attempted rape for which he was sentenced to serve a total of 14 years’ imprisonment and ten strokes of caning.

5 According to the victim, one of the two men who approached her spoke in a foreign language and that person grabbed her by the waist and arms and dragged her into a dark room. As she was being dragged, she screamed and struggled. Inside the room while one man held her down the other was in front of her and she felt something being inserted into her vagina. Having previously experienced sexual intercourse, she knew that it was a penis which had entered her vagina.

6 As the victim was being dragged into the refuse room, her screams were heard by two residents, Latipah bte Isman (“Latipah”) and Goh Kim Ean (“Goh”), who lived at the seventh and eighth floors respectively of Block 719 Woodlands Avenue 6, a block which is adjacent to Block 715. Both their flats face the refuse area of Block 715 and they could see clearly what was happening in the vicinity of the refuse area.

7 Latipah said that she saw two dark-skinned men dragging a woman from the void deck of Block 715 into the refuse room. The woman was struggling and screaming as she was being dragged. Latipah shouted at them saying “Oei, Police”. As she was calling the Police emergency line, she saw one of the two men opening the door to the refuse room while the other man dragged the woman in. At all times the woman kept screaming as she was being dragged. After the woman was brought into the refuse room, the man who was holding the door open, closed it.

8 According to Goh, she saw a man who was wearing a light-coloured, round-necked, long-sleeved T-shirt dragging a woman into the refuse room and another man, who was wearing a round-necked T-shirt, holding open the door to the room. The door to the room was closed by the second man as soon as the woman was dragged into it.

9 Thereafter, Latipah went down near to the refuse area, waiting for the arrival of the Police. At that moment, a man, Lee Wai Lup (“Lee”) walked by. Latipah related to Lee what she witnessed. Lee went up to the door of the refuse room where he heard the laughter of two men and the muffled screams of a woman inside. He kicked the door and shouted to them to come out. In a matter of a few seconds, two dark-skinned men rushed out, one behind the other, and fled. He gave chase but was unable to find them. He said that one of the two men was taller than the other.

10 Shortly after the incident, the victim was medically examined by Dr John Yam, an Associate Consultant attached to the Division of General Obstetrics and Gynaecology of the KK Women’s and Children’s Hospital, who found bruises on her upper lip as well as her knees. On that day, the victim was having her period. No semen was detected in her vagina. While Dr Yam did not find any fresh hymenal tears, he said that the absence of such tears could not exclude the possibility that the victim could have had non-consensual sexual intercourse shortly before she was examined. This was because the elasticity of the victim’s hymen had already been breached as she had had previous sexual intercourse experiences. Dr Yam added that he had previously encountered cases where there was sexual intercourse and yet there was no obvious physical evidence. However, there is one very significant thing we should add: a semen stain, that matched the DNA profile of the appellant, was found on the victim’s underwear. The probability of another person selected at random from the Indian population and having the same DNA profile was estimated to be one in 970 trillion, an extremely remote possibility.

11 Finally, there was the evidence of Manikkam, who testified for the Prosecution. He said that on that evening, he was wearing a white long-sleeved shirt with black pants and the appellant, a green short-sleeved T-shirt with dark pants. They were returning after having had some drinks and had passed by Block 715 when they noticed the victim squatting and she seemed to be talking on the handphone. He himself was feeling a little tipsy. However, upon the appellant’s suggestion, he went forward to talk to the victim, who ignored him. Instead, she walked to the void deck and sat down. At that point, the appellant showed Manikkam the refuse room and asked the latter to forcefully bring the victim to that place. Manikkam did as he was told, grabbing and dragging the victim to the refuse room. As the victim had put up a struggle, the appellant held her legs and helped Manikkam in dragging her. Upon reaching the refuse room, the appellant opened the door and held it while Manikkam dragged the victim in. The appellant told Manikkam to hold the victim down as he was going to have sex with her. Manikkam did as he was told by grabbing both hands of the victim and holding them over her mouth and at the same time pinning her down. Although Manikkam said that he did not see the appellant removing his pants or inserting his penis into the vagina of the victim, the room being dark, he had observed that the appellant was on top of the victim between her legs. After two to three minutes, the appellant stood up and started to put on his underwear and pants. Manikkam then asked the appellant to hold the victim so that he could have sex with her. The appellant did not do as he was told but carried on putting on his clothes. Manikkam clambered onto the victim in an attempt to have sexual intercourse with her. However, he could not do the act as he failed to maintain an erection. Just then, they heard banging on the door. The appellant pulled Manikkam by the collar and said that they had to leave. Manikkam frantically tried to put on his clothes but missed his underwear. The appellant dashed out, followed by Manikkam who was still trying to put on his pants. However, in rushing out, Manikkam managed to snatch the victim’s handphone.

12 The appellant, in his defence, denied any part in the abduction and rape. On his evidence, the real culprit was Manikkam. According to him, he was talking on the handphone with a female friend while walking past Block 715. They saw a Chinese woman (the victim) vomiting. Manikkam attempted to talk to the woman. He told Manikkam not to disturb the woman but Manikkam ignored him and followed the woman. Suddenly, he heard a scream and saw Manikkam dragging the woman into the refuse room. He tried in vain to stop Manikkam from dragging the woman into the room. Once inside, Manikkam removed the woman’s underwear and placed his hands on her private parts. The appellant refused to hold the woman’s hand as requested by Manikkam and pleaded with Manikkam to let the woman go by tugging at Manikkam. He claimed that because of what he did, no rape of the woman took place.

13 His explanation for the presence of his semen stain on the underwear of the victim was as follows. He said that he gets sexually aroused easily. Thus, this occurred when he saw Manikkam touching the victim’s private parts and he felt a wet sensation. He further postulated that he could also have been wet earlier when he was talking on the handphone with the female friend. Due to this uneasy feeling of wetness, he put his hand into his underwear which came into contact with his semen. When Manikkam tugged at him, he fell. It was possible that his semen-stained hand could have come into contact with either the victim or Manikkam.

14 The trial judge, having analysed the evidence of the prosecution witnesses and that of the appellant, rejected the appellant’s defence that the villain was Manikkam, not him. The trial judge accepted that the victim and Manikkam told the truth as to what had occurred that day, that the appellant was the main culprit, and Manikkam the...