Case Summaries

Pram Nair v Public Prosecutor

SUPREME COURT OF SINGAPORE

25 September 2017

Media Summary

Pram Nair v Public Prosecutor

Criminal Appeal No 32 of 2016

Decision of the Court of Appeal (delivered by Chao Hick Tin JA)

Background to the appeal

1                    The appellant was convicted by a High Court judge (“Judge”) of two charges under the Penal Code (Cap 224, 2008 Rev Ed), one for rape under s 375(1)(a) and one for sexual assault by penetration under s 376(2)(a) for having penetrated the victim’s vagina with his finger. The trial judge sentenced him to 12 years’ imprisonment and 6 strokes of the cane for each charge. The imprisonment terms were reduced to 11 years and 19 days for each offence to take into account the time that the appellant had spent in remand before being released on bail. With both sentences ordered to run concurrently, the appellant’s aggregate sentence was 11 years and 19 days’ imprisonment and 12 strokes of the cane. The appellant filed an appeal challenging both his conviction and the sentences imposed on him.

Facts

2                    The material events occurred over a short span of about four hours, between 11pm on 5 May 2012 and 2:50am on 6 May 2012. The victim, [V], was 20 years of age at that time and was employed as a contract teacher. She went with a friend, [S], to a party at the Wavehouse, a club at Siloso Beach, Sentosa. The party was to promote Cointreau, a brand of orange-flavoured liqueur.

3                    At the bar counter of the Wavehouse, [V] and [S] met the appellant, a part-time beach patrol officer who had attended the party after finishing his shift. There was plenty of drinking. On one occasion, [V] had Cointreau poured into her mouth for some 20 seconds straight by the appellant because it had come to light that she had turned 20 the week before. Also at the bar counter was [J], a part-time event promoter who was working at the party at the Wavehouse that night and who had been asked to attend to [V] and [S].

4                    At one point in time, [V] left the bar counter for the VIP area in the Wavehouse because [J] had asked her to go there with him. She then went back to the bar counter area to rejoin [S] and the appellant. Later, [V] danced on the dance floor with [J]. At some point, while she was dancing, [V] realised she was too drunk and wanted to go home. She recalled trying to look for [S].

5                    [S] said that she called [V] and [V] told her that she was in the VIP area. [S] went with the appellant to the VIP area. The appellant found [V]. [S] then met up with both of them at the intersection between the bar and the VIP area. [S] said that the appellant then asked her to get [V]’s bag from the VIP area. When she returned, the appellant and [V] were no longer there. [V] and the appellant had left the club by themselves and headed for the beach.

6                    What happened after that was the central dispute in this case. [V] said that by this time, she was intoxicated to the point of being barely conscious, and that the appellant had penetrated her with his finger and also raped her while they were on the beach. The appellant asserted that [V] was not as intoxicated as she claims to have been, and that the sexual activity between them, which included some foreplay, was consensual.

7                    On realising [V] had gone missing, [S] spent about 20 minutes looking for her. She called [V] on her handphone a few times. One time, the appellant answered and told her that he and [V] were on the beach; he told [S] to remain at the Wavehouse and that he would look for her. [S] went to look for [V] on the beach nonetheless. [S] found the appellant and [V] on the beach. [S] tried talking to [V] but the latter was not responding clearly. She saw [V] foaming at the mouth and, in a state of panic, she called the Singapore Civil Defence Force to request an ambulance. That was at 2:50am.

8                    Two partygoers named Kason and Terence, who were friends and had gone to the Wavehouse that night, roughly saw what happened between the appellant and [V] on the beach. At about 2am, Kason was walking along the beach looking for a friend’s lost slippers. He saw the appellant, his bare buttocks facing him, kneeling down and bending over [V]. Kason thought the appellant and [V] were a couple making out and ignored them. Kason passed them a second time when he passed by the same location later. He saw the appellant kneeling in between [V]’s legs. Kason met up with Terence and told him what he had seen. Terence went to have a look for himself. He saw that there was little movement from [V]. Terence told Kason that what he had seen was not right. Kason went back for a third look and saw that [V] was naked and trying to push the appellant away with the use of one hand. Kason called the police at 2:25am.

9                    Following Kason’s police report, officers from the Singapore Police Force arrived at the scene at 2:53am. The appellant was placed under arrest at 6:20am on 6 May 2012.

Court’s decision

The appeal against conviction

10                For the offence of rape under s 375 of the Penal Code, the Public Prosecutor (“PP”) bore the burden of proving beyond a reasonable doubt that (a) the appellant had penetrated the vagina of [V] with his penis; and (b) this was without her consent. The Judge found that the PP had proven both these elements of the offence beyond a reasonable doubt.

11                The appellant made three arguments on appeal. First, although the appellant did not challenge the Judge’s finding that he had penetrated [V]’s vagina with both his penis and his finger, he argued that the Judge’s finding that [V] did not consent was inconsistent with the material evidence on record.

12                The Court of Appeal rejected this argument. The evidence relied on by the appellant did not assist him. The evidence relating to the interaction between the appellant and [V] at the bar counter was only remotely relevant to determining whether [V] had decided to engage in consensual sexual activity on the beach with the appellant in spite of her being fairly intoxicated ([72]). The fact that there was no evidence of what happened between 1am and 2am apart from the appellant’s and [V]’s account of events did not mean that [V] and the appellant must have been engaging in consensual foreplay. This was but a speculation which became less tenable once one factored in [V]’s level of intoxication ([79]). The medical evidence showing an absence of a fresh tear on [V]’s vagina was a neutral factor given that [V] was intoxicated to the point where she was verging on unconsciousness and could not put up any resistance ([89]).

13                The appellant’s second argument related to the Judge’s finding that even if the appellant had asked [V] whether she wanted to have sex, and even if [V] had said yes, her response would have been vitiated by s 90(b) of the Penal Code. Section 90(b) says that consent given by a person who, from intoxication, is unable to understand the nature and consequence of that to which he gives his consent, is not valid consent. The appellant argued the Judge was wrong to have found that [V] was incapable of giving consent due to her intoxication.

14                The Court rejected this argument. The evidence as to [V]’s mental state immediately before, during and immediately after the time she was with the appellant at the beach suggested that she was in no capacity to consent to penile or digital penetration. She was too intoxicated to understand the nature and consequences of giving consent. She could not have consented to either act of penetration by the appellant ([108]).

15                The appellant’s third argument related to the Judge’s rejection of the appellant’s reliance on the defence of mistake of fact in s 79 of the Penal Code. Section 79 says that nothing is an offence if done by a person who, by reason of a mistake of fact, in good faith believes himself to be justified by law in doing it. According to s 52 of the Penal Code, nothing is believed “in good faith” if it is believed “without due care and attention” [110].

16                The Court was not persuaded that, even if the appellant believed, mistakenly, that [V] was consenting to penile and digital penetration, he had arrived at this belief after having exercised due care and attention ([114]).

17                In the circumstances, the Court affirmed the Judge’s conviction of the appellant on both charges ([116]).

The appeal against sentence

18                The Judge made his decision on sentence based on the sentencing framework propounded in Public Prosecutor v NF [2006] 4 SLR(R) 849. That framework was revised in a recent decision of the Court, Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”), which was issued on 12 May 2017, after the Court had heard this appeal (on 11 April 2017). Accordingly, in anticipation that the revised framework in Terence Ng could be relevant if the Court were to affirm the conviction recorded by the Judge against the appellant, the Court invited parties to make specific submissions on how the new framework would impact the sentences in this case ([118]). The parties did so on 27 June 2017.

19                Terence Ng set out three sentencing bands for rape ([121]). Rape falls within Band 1 if there are no offence-specific aggravating factors or if they are present only to a very limited extent; it falls within Band 2 if there are two or more offence-specific aggravating factors ([122]). The appellant argued that the present case fell within Band 1 because there was no offence-specific aggravating factor ([123]). The PP argued that the present case fell within Band 2 because there were two offence-specific aggravating factors, namely the vulnerability of [V] due to her intoxication and the fact that the appellant had acted with premeditation ([124]).

20                The Court found that there was only one offence-specific aggravating factor here: the vulnerability of the victim. [V] was severely intoxicated and had no control over even basic motor movements. She was a vulnerable victim and the appellant exploited that to his advantage ([132]). However, the Court did not think the appellant’s acts were premeditated; rather, his moves were hatched on the spur of the moment ([138]). Since the presence of one offence-specific aggravating factor would place a case within the middle to upper range of Band 1 ([139]), the indicative sentence here would be 12 or 13 years’ imprisonment and 6 strokes of the cane. Given that range, the Judge’s sentence of 12 years’ imprisonment and 6 strokes of the cane for the rape charge was not manifestly excessive ([140]).

21                As for the offence of sexual assault by digital penetration, the Court disagreed with the PP’s submission that the same sentencing bands for rape as set out in Terence Ng should apply. Among other reasons, this was because, in the Court’s view, there is an intelligible difference between penile penetration of the vagina and digital penetration of it. First, penile penetration carries the risk of unwanted pregnancy and of transmitting sexual diseases which would have far-reaching consequences for the victim. Second, penile penetration is a more intimate act than digital penetration; the abuse of such an act therefore represents a greater degree of intrusion into the sexual autonomy of the victim and a greater degree of exploitation by the offender of the victim ([150]).

22                Nonetheless, the Court recognised the logic of the PP’s submission that the Terence Ng framework should be transposed to the offence of digital penetration, because many of the offence-specific aggravating factors for rape may also be present and pertinent in offences involving digital penetration ([158]). However, the range of starting sentence for each band should be lower to reflect the lesser gravity of the offence ([159]). The Court therefore held that the sentencing bands should be as follows:

(a)                Band 1: 7 to 10 years’ imprisonment and 4 strokes of the cane;

(b)               Band 2: 10 to 15 years’ imprisonment and 8 strokes of the cane;

(c)                Band 3: 15 to 20 years’ imprisonment and 12 strokes of the cane.

23               Applying these sentencing bands to the present appeal, the Court found that the appellant’s sentence for the digital penetration charge was too high and should be reduced. The indicative starting sentence was also in the middle to upper range of Band 1 given the presence of the one offence-specific aggravating factor, which is that the appellant exploited the vulnerability of [V], who was intoxicated. That gave an indicative sentence of either 8 to 9 years’ imprisonment and 4 strokes of the cane ([172]). The Court found that an appropriate sentence would be 8 years and six months’ imprisonment and 4 strokes of the cane. After taking into account the period of remand, the sentence was reduced to 7 years six months and 19 days’ imprisonment and 4 strokes of the cane ([173]).

24                In the premises, the appeal against conviction was dismissed ([174]) and the appeal against sentence was allowed only in respect of the sentence for the digital penetration offence. The result, therefore, was that the total imprisonment term remained at 11 years and 19 days and the total number of strokes of caning was reduced from 12 to 10 ([175]).

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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