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Grounds publishedDecided 30 Nov 2009
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High Court

Public Prosecutor v Iryan bin Abdul Karim and Others

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[2009] SGHC 272Case no. CC 27/2009

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  1. Tay Yong Kwang J:

  2. Introduction

  3. The accused persons and the victim

  4. [1] The three accused persons (collectively, the “accused persons”), all male Singapore nationals, in this case are:

  5. (a) the first accused, Iryan bin Abdul Karim (“Iryan”), then aged 20;

  6. (b) the second accused, Muhammad Hamdan bin Abdul Rahman (“Hamdan”), then aged 19; and

  7. (c) the third accused, Mohammed Zameen bin Abdul Manoff (“Zameen”), then aged 20.

  8. [2] The victim, aged 22, is also a male Singaporean (“the victim”). At the time of the offences in April – May 2008, the accused persons and the victim were all inmates sharing cell 5-55 in Changi Prison Cluster A.

  9. The charges faced by the accused persons

  10. [3] Iryan, Hamdan and Zameen faced a total of 14, 12 and 15 charges respectively under the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”). The charges comprise a mixture of hurt and sexual assault charges and are described in the following paragraphs (see [4] – [8] below).

  11. The hurt charges

  12. [4] The accused persons faced 10 charges each, for the following offences committed in furtherance of the common intention of them all:

  13. an offence under s 325 read with s 34 of the Penal Code.

  14. [5] In addition, Iryan and Zameen faced one additional charge each of voluntarily causing hurt to the victim, in the furtherance of their common intention, on 27 April 2008, at about 9.30 p.m., by punching the victim’s chest, an offence under s 323 read with s 34 of the Penal Code.

  15. [6] Prior to the commencement of the trial proper, Iryan , Hamdan and Zameen admitted to the s 323, s 324 and s 325 Penal Code hurt charges against them and did not dispute the particulars of hurt caused in each case. During the trial however, Zameen disputed his involvement in the s 324 Penal Code charge against him and claimed that he had “dissociated” himself from the faeces incident. I will elaborate on this later. All the accused persons also contended that the faeces incident occurred on 3 May 2008 and not 29 April 2008.

  16. The fellatio and sodomy charges

  17. [7] On top of the hurt charges stated above:

  18. [8] While Iryan admitted to having penetrated the victim’s mouth on 27 April 2008 and 4 May 2008, he denied that he had done so on 28 April 2008. Hamdan admitted to having penetrated the victim’s mouth on 28 April 2008 and 4 May 2008 and Zameen also admitted that he had done so on 27 April 2008, 28 April 2008 and 4 May 2008. Regardless of the date on which these events happened and the accused persons involved in each occasion, all the accused persons contended that the victim had consented to oral penetration. Zameen disputed the sodomy charge.

  19. Amendments to the charges and the issues for determination

  20. [9] It would be convenient to crystallise the issues at the outset so as to place them in context within the facts that follow. As I noted above at [6], the accused persons disputed the date on which the faeces incident took place. They did not dispute that the incident actually occurred. In these circumstances, I amended the respective charges relating to the s 324 Penal Code charge against the accused persons (viz, the fifth charge against Iryan, fourth charge against Hamdan and the sixth charge against Zameen) at the end of the trial so that, for example, vis-à-vis Iryan, it now read:

  21. The fourth charge against Hamdan and the sixth charge against Zameen were also similarly amended.

  22. [10] Given that the assault occurred over a number of days, it was unclear when exactly grievous hurt was inflicted on the victim. For this reason, I amended the s 325 Penal Code charge against all the accused persons (viz, the first charge against all the accused persons) at the end of the trial so that, for example, vis-à-vis Iryan, it now read:

  23. The first charge against Hamdan and Zameen were also similarly amended.

  24. [11] The evidence did not support the allegation that the accused persons “jumped” on the victim’s chest (as stated in the seventh and tenth charges against Iryan, the fifth and eighth charges against Hamdan, and the eighth and 11 charges against Zameen) on 28 April 2008 and 29 April 2008. I therefore amended these charges against the accused persons by deleting the reference to “jumping”.

  25. [12] With the above amendments, the issues that arose for determination are, whether the prosecution has proved beyond a reasonable doubt:

  26. [13] Having considered the evidence and the submissions given by the prosecution and the accused persons, I was convinced beyond reasonable doubt that the s 324 Penal Code charge (i.e., the faeces incident) and the sodomy charge against Zameen were made out and that the victim did not consent to the penetration of his mouth by Iryan’s, Hamdan’s or Zameen’s penis, and convicted the accused persons accordingly. However, as I was not so persuaded concerning the issue whether Iryan penetrated with his penis the victim’s mouth, on 28 April 2008, I decided to give him the benefit of the doubt and acquitted him of the relevant charge (ie, the third charge against Iryan). I now proceed to set out the reasons for my decision.

  27. The case for the prosecution

  28. [14] At trial, the prosecution relied on the evidence of the victim, various prison and police officers, various prison inmates, and the medical personnel who treated the victim. The prosecution also relied on the long and cautioned statements of Iryan and Hamdan. As the events in this case occurred over a number of days, the evidence will be set out chronologically for easy reference.

  29. Events from 2005 to before 27 April 2008 (Friday)

  30. The victim’s account

  31. [15] The victim first got to know Iryan, Hamdan and Zameen in 2005 at the reformative training centre (“RTC”) in Changi prison, where they were incarcerated for separate offences. Then, his relationship with Iryan was “very casual”. They only spoke when it related to the course they were both undergoing. With regard to Hamdan, whom the victim knew as “Ray”, although they knew each other, they seldom talked as they were from different secret societies. The victim was not “that close” with Zameen but they used to have conversations and their relationship was “okay” and “reasonable”. They were merely acquaintances and did not keep in touch after the victim was released from the RTC in June 2007. However, sometime in November 2007, he met Zameen as he was walking out of the Paya Lebar Cisco Centre (where he had gone to report as he was under “tagging supervision”). They started talking and decided to go to Geylang for a drink. After the drink, as they were walking towards the Aljunied MRT station, they got into a dispute with a foreign worker. They assaulted him and committed snatch theft and were subsequently charged for snatch theft. They pleaded guilty and were sentenced in February 2008 to 18 months’ imprisonment each. In Changi Prison, they were housed in cell 5-55 together with another Indonesia inmate named Lutfi Subagio (“Lutfi”).

  32. [16] Sometime in April 2008, Lutfi was moved out from cell 5-55 and Iryan moved in. The cell now housed Iryan, Zameen and the victim. The victim testified that between Iryan and Zameen, he shared a “closer” relationship with Zameen as they shared “family things”, “read each other’s [personal] letters” and recounted “personal relationship stories [involving] family [and] friends”. The victim’s relationship with Iryan was still casual. The three of them talked to one another about their personal life. The victim boasted to Iryan and Zameen during these conversations. During the conversations, Iryan would at times ask the victim to suck his penis and the victim would respond with vulgarities, whereupon Iryan would tell the victim it was a joke. Although Iryan and Zameen claimed that the victim was bragging, they were never threatening to him at this time.

  33. Events on 26 April 2008 (Saturday)

  34. The victim’s account

  35. [17] On 26 April 2008, Iryan approached the victim in the cell and asked him to “spar” with him. The victim agreed. Inmates commonly engaged in “sparring” (a sport akin to boxing and illegal in prison) to kill time. During such “sparring” sessions, inmates would wrap their hands in towels to prevent bruising from punching and would also not hit the face and private parts of the sparring partner. The degree of force used would also not be great. In the evening of 26 April 2008, the victim “sparred” with Iryan first for three rounds. Each round lasted for about a minute. Most of Iryan’s punches landed on the victim’s chest. During the first round, the victim shouted at Iryan to stop as he was out of breath. Iryan stopped. The “sparring” then continued into the second and third rounds. It was just to “kill time” and the victim did not feel any pain. After “sparring” with Iryan, the victim rested for about three minutes. Zameen then asked the victim to “spar” with him. Thinking it was just a practice, the victim agreed. After “sparring” with Zameen for a while, the victim asked Zameen to stop as the latter’s punches were very heavy and the victim felt some pain in his chest. Zameen stopped and the victim went to the side of the cell to sit down and rest. Iryan and Zameen took turns to act as a lookout during the other’s “sparring” session with the victim. After the “sparring” session, they “continued to talk normally” and subsequently slept when the lights were switched off.

  36. Iryan’s first long statement dated 9 May 2008

  37. [18] With regard to the events on 26 April 2008, Iryan’s first long statement, dated 9 May 2008, read:

  38. Events on 27 April 2008 (Sunday)

  39. The victim’s account

  40. [19] Because 27 April 2008 was a Sunday, there was no “yard time” for the prison inmates who remained in their respective cells. Sometime around 3.00 p.m., while Iryan, Zameen and the victim were seated in cell 5-55 talking to each other, Iryan suddenly got up, called the victim a braggart and kicked the victim, who was still seated on the floor, in his face. The victim asked Iryan why he was kicked whereupon he was told that he needed to be punished for bragging too much. When cross examined by Iryan as to why he did not retaliate, the victim explained that he did not do so as he was afraid and because he knew, from the previous day’s “sparring” session with Iryan, that Iryan was stronger and could overpower him if he did. As the victim did not want any more trouble, he told Iryan to kick him again to “punish” him. Iryan then went over to the victim and kicked him hard in his left ribs. Despite this second kick however, Iryan remarked that he was still not satisfied.

  41. [20] At about 5.00 p.m, Iryan told the victim that he was still not happy with him and asked the victim to “find a way to satisfy him”. Iryan and Zameen then asked the victim to go to the toilet area, sit on the modesty wall (a low wall about 0.70m high to provide some privacy for inmates using the toilet) and press the toilet flush continuously so that he could not hear their discussion. This, the victim did for an estimated 15 to 20 minutes. While he was flushing the toilet, he saw one of them approach the “property box” (where they kept their belongings and which was directly behind the modesty wall) and take out a piece of paper. After some time, they called the victim over. He saw ten pieces of folded paper on the floor of the cell. He was asked to choose five, told that he had to complete the tasks written thereon and that he would be beaten up if he did not do so. Left with no choice, the victim chose five pieces and put them aside.

  42. [21] The victim then opened the five pieces of paper which he did not choose and was “shocked” to see that they contained tasks which included “suck cock, lick balls for 10 minutes”, “fuck backside” and “eat shit”. In all, the following things were written on nine of the ten pieces of paper:

  43. [22] As the victim did not know what “blackout” entailed, he asked Iryan and Zameen and the latter then performed it on him. He was asked to stand against the wall and close his eyes. Zameen then pressed both of his thumbs against the victim’s throat for a few seconds to stop the blood circulation to his head. The victim fell unconscious thereafter and when he woke up, he felt pain all over his body. He then told Iryan and Zameen that he did not want to choose “blackout”. The victim also told Iryan and Zameen that he did not want to “suck cock”, “fuck backside”, “drink urine” and “eat shit”. He was then told to choose “Sonic Blastman”, “tie towel and act like a hostess” and “sparring” instead. The victim agreed and he was told that “sparring” would start after closing muster at 5.45 p.m.. Sometime after 6.00 p.m., after closing muster, the victim started “sparring” with Iryan. They “sparred” for about 15 minutes over three rounds. During these three rounds of “sparring”, towels were again wrapped around their fists. The victim was punched by Iryan many times on his chest. He tried to fight back but “not that much” as Iryan was bigger and taller than him and he was “already in fear”. Unlike the “sparring” session on 26 April 2008, Iryan did not control his strength and used full force on the victim who felt pain in his chest, ribs and hands. While the victim “sparred” with Iryan, Zameen acted as a lookout. After this “sparring” session with Iryan, the victim rested for about a minute. Zameen then said that he wanted to “spar” with the victim. The victim took Zameen on as he did not want to “lose face”. They then “sparred”, with towels wrapped around their fists, for about two minutes. The victim felt that Zameen was using full force on him and he could also feel that the force was greater than Iryan’s. The victim did not tell them to use less force as he knew they were doing it on purpose and wanted to punch him hard for bragging. Zameen punched the victim very hard. The victim could not take it anymore and fell to the ground. Zameen stopped and the victim sat on the floor and rested.

  44. [23] Later that evening, after they had washed up, Iryan asked the victim to “try Sonic Blastman”. The victim initially refused but eventually agreed out of fear. He was asked to sit on the floor, with his back straight and chest out. Iryan then punched him hard on the centre of his chest. Zameen then followed with another punch to the victim’s chest. The pair took turns to throw heavy punches on the victim’s chest. They did not wrap towels around their fists. As the victim was in great pain, he begged them to stop. Iryan then asked the victim, again, to find a way to satisfy them. As the pieces of paper contained a number of sexual acts, the victim offered to masturbate them. However, Iryan remarked that he wanted something more. The victim refused and the pair continued punching him. Unable to take the pain, the victim agreed to “suck cock” for them. After hearing this, Iryan and Zameen stopped punching the victim. Zameen then told the victim to follow him to the toilet area. He sat on the modesty wall, facing the shower and asked the victim to kneel down, face him and suck his penis until it became erect. He also told the victim that if he “ma[d]e it [a] good one”, he would not beat the victim. Out of fear, the victim complied. Iryan stood on the “property box” to look out of the utility window and act as a lookout. While the victim performed the sexual act, Zameen read a magazine in which female models were featured. After the victim had sucked Zameen’s penis for about five to ten minutes, Zameen pushed his head away and ejaculated into the toilet bowl.

  45. [24] After Zameen washed up, Iryan sat on the modesty wall and told the victim that he would punch him if he did not suck his penis properly. Again, the victim complied as Iryan looked through the same magazine that Zameen had earlier (see [23] above). After the victim sucked Iryan’s penis for about five to ten minutes, Iryan pushed the victim’s head away and ejaculated into the toilet bowl. He then washed up and the victim did likewise subsequently. Iryan and Zameen told the victim to forget the episode and to act as if nothing had happened. They also warned him not to tell anyone, that they could “spoil [his] name” if he did and that their “secret society brothers” in the prison would create trouble for him if he did. They then went to sleep.

  46. Iryan’s first long statement dated 9 May 2008

  47. [25] With regard to the events of 27 April 2008, the material portions of Iryan’s first long statement, dated 9 May 2008, read

  48. Iryan’s second long statement dated 15 May 2008

  49. [26] With regard to the events of 27 April 2008, the material portions of Iryan’s second long statement, dated 15 May 2008, read:

  50. Iryan’s third long statement dated 26 May 2008

  51. [27] With regard to the events of 27 April 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  52. Iryan’s cautioned statement dated 15 July 2008

  53. [28] With regard to the s 376(1)(a) charge of non consensual penetration of the victim’s mouth with his penis, when asked if he had anything to say to the charge, Iryan stated:

  54. Events on 28 April 2008 (Monday) and Hamdan’s arrival

  55. The victim’s account

  56. [29] On 28 April 2008, the inmates had their morning muster at about 7.00 a.m. followed by breakfast inside the cell. A strip search was then conducted by the prison officer. In a strip search or “body check”, an inmate has to strip naked, stretch out his hands (showing both palms and the top of his hands), show his back and then squat down. The prison officers would look at the inmates’ bodies for tattoos and bruises. However, all this is done in “a few seconds”. In the present instance however, before the “body check”, the victim was told by either Iryan or Zameen to “keep quiet”, not to talk to the officer and to forget everything. He was told that if he made more trouble, they would beat him up after the officer left. Hence, when the prison officer came in, the victim did not report the events that had transpired the previous night as he was scared. The prison officer, who stood over one metre away from him and checked him did not detect any bruises on his body because of his dark complexion. After the strip search, the inmates proceeded for their outdoor yard (held in a multi purpose hall within the building).

  57. [30] During the outdoor yard, the victim spoke to his friend, “Edgar” and told him that he wanted to move to another cell as he could not “endure” inside cell 5-55. He did not tell Edgar the reason why he could not endure anymore. Edgar told him to approach the prison officer in charge, OC Thomas Ngai (“OC Ngai”), to request a change of cells. However, the request was denied as no valid reason was given by the victim and he remained in cell 5-55. There was a dispute as to whether the victim had in fact spoken to Thomas Ngai. After the end of the outdoor yard, the victim went for “Christian counselling”. He did not complain to the pastor in charge as he “was still in fear”, especially after Zameen told him that morning that he had the victim’s address and the victim’s sister’s address and they could “do a lot of things”. After “Christian counselling”, the victim went back to cell 5-55 and “everything was normal” until Hamdan moved into the cell after dinner. This was when Iryan or Zameen, referring to the fellatio incident the night before, told Hamdan that “yesterday power”.

  58. [31] All four of them then sat down and talked. While they were talking, Hamdan got angry and hit the victim on his face. However, Iryan or Zameen asked Hamdan to “wait until [closing] muster finish[ed]”.After closing muster, Iryan, Hamdan and Zameen started to talk about the victim’s boastful nature. They got angry and either Iryan or Zameen told the victim to stand up. They started to punch the victim’s chest (ie, “Sonic Blastman”). Because Hamdan had injuries on both of his hands, he could not use his hands to punch the victim hard. Instead, he jumped on the victim’s chest “for about 2 to 3 times” while the victim was lying down with his hands and legs held by Iryan and Zameen. To stop them from further assaulting him and not knowing what else to say to stop them, the victim offered to “suck cock” for all three of them. Iryan, Hamdan and Zameen agreed and the beating stopped.

  59. [32] Zameen told the victim to follow him to the toilet. At the toilet area, he told the victim, in Tamil, “I want your ass”. The victim was stunned, shocked and disagreed. Zameen then said “Never mind…you don’t want, then we [can] continue with “sonic blastman”. Out of fear, the victim obliged. Zameen then sat on the modesty wall totally naked and asked the victim to fellate him until he got an erection. After Zameen had achieved an erection, he then asked the victim to go on all fours, in a “doggy position”, with his head resting on a pail in the toilet. The victim then related what subsequently happened in his examination in chief:

  60. [33] The victim could not ascertain whether Zameen had ejaculated into his anus “as it was too painful to feel anything”. While Zameen was engaged in the sexual acts (ie, fellatio and sodomy), Iryan and Hamdan took turns acting as a lookout. When Iryan was acting as a lookout, Hamdan would come and peep at them. Iryan behaved similarly when Hamdan was acting as a lookout. Zameen eventually stopped thrusting and then washed up, followed by the victim. After the victim had washed up, Iryan told him to suck his penis. As with the night before, Iryan held the same magazine while the victim fellated him for “5 to 10 minutes”. Iryan ejaculated into the victim’s mouth and told the victim that he would punch him unless he swallowed. This time, Hamdan and Zameen took turns acting as a lookout. Hamdan then came over and asked the victim to suck his penis. However, although the victim fellated him for a few minutes, he was unable to get an erection as the victim was “a guy”. He told the victim to get lost and went to wash up. The victim then washed up. Later, he was told to “fan” Iryan, Hamdan and Zameen to sleep. After the victim had done that, he went to sleep.

  61. Iryan’s first long statement dated 9 May 2008

  62. [34] With regard to the events of 28 April 2008, the material portions of Iryan’s first long statement, dated 9 May 2008, read:

  63. Iryan’s second long statement dated 15 May 2008

  64. [35] With regard to the events of 28 April 2008, the material portions of Iryan’s second long statement, dated 15 May 2008, read:

  65. Iryan’s third long statement dated 26 May 2008

  66. [36] With regard to the events of 28 April 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  67. Hamdan’s second long statement dated 15 May 2008

  68. [37] With regard to the events of 28 April 2008, the material portions of Hamdan’s second long statement, dated 15 May 2008, read:

  69. Hamdan’s third long statement dated 26 May 2008

  70. [38] In respect of the events on 28 April 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  71. Hamdan’s cautioned statement dated 15 July 2008

  72. [39] With regard to the s 376(1)(a) charge of non consensual penetration of the victim’s mouth with his penis, when asked if he had anything to say to the charge, Hamdan wrote the following:

  73. Events on 29 April 2008 (Tuesday)

  74. The victim’s account

  75. [40] On the morning of 29 April 2008, there was an indoor yard where the inmates got to watch television. Before this, there was a strip search. The prison officer did not detect any injury on the victim’s body because of his dark complexion. The victim did not tell the prison officer anything as he was afraid. Furthermore, the accused persons were standing beside him. The victim then went to the indoor yard where a Tamil movie was being screened. After watching the movie, the accused persons and the victim went back into cell 5-55. Although lunch was served, the victim did not eat his as Iryan took it away and asked him to “eat shit”. The victim refused and the accused persons took turns punching him on his chest. They stopped only when the victim agreed to eat faeces. Hamdan then went to the toilet and defecated beside it. One of the accused persons then asked the victim to eat Hamdan’s faeces. Using his hand, the victim took the faeces and put it in his mouth. One of the accused persons then asked the victim to chew. As he was chewing, the victim felt like vomiting. He was told by one of the accused persons that if he vomited, he would be beaten up more. The victim swallowed three to four times. All three accused persons looked at him and make “eee” sounds as they were having their lunch. The accused persons then asked the victim to rub the faeces around his face and the victim did this. Later, as the victim was brushing his teeth, one of the accused persons came to the toilet area, handed him a plastic mug filled with urine, and instructed him to drink it. The victim drank this out of fear. After this incident, the victim went to a corner of the cell and sat down to rest as he was in pain; he did not eat that day.

  76. [41] The first time the victim was deprived of food was on 29 April 2008. After this, all food was taken away from him by the accused persons. On subsequent days, the accused persons gave him only one slice of bread per day. The victim started drinking a lot of water, but even that was later controlled by the accused persons.

  77. [42] On the evening of 29 April 2009, the accused persons played poker using “self made poker cards”. Iryan had made these “cards” using white paper. The victim recounted what he had to do in his evidence in chief:

  78. [43] The accused persons stopped only when they were tired. Later that evening, the accused persons asked the victim to wash their dinner plates. The victim’s dinner had been taken away by the accused persons. As he was washing the plates, the victim accidentally dropped one. When this happened, the accused persons came over and started kicking and punching the victim. He was also dragged to the centre of the cell and punched and kicked there. As Hamdan could not punch the victim because of his injured hand, Iryan and Zameen each held onto the victim’s legs and hands and Hamdan jumped on the victim’s chest “for about 2 to 3 times”. Hamdan also kicked the victim on his “chest, rib cage and whole body”. At some point in time, Iryan also used a piece of rolled up paper - this was made from magazine paper, rolled into a very thin, light and hard rod and was used as a support for the food ledge at the foot of the cell door) - as “a knife to stab around [the victim’s] body causing the victim a “[v]ery sharp pain”. The accused persons stopped when they were tired.

  79. [44] Later in the evening, as the accused persons were lying down, they asked the victim to “fan” them to sleep. This, the victim did, using the cover of the “property box” which was made from hard plastic. After “fanning” the accused persons for some time, the accused persons claimed that the victim did not “fan” them properly and started punching and kicking the victim in the “rib area…chest area, [and] legs”. The victim did not retaliate because “[his] body was already in a lot of pain”. He begged them to stop but they ignored his plea. Again, they stopped only when they got tired. After the beating, the accused persons washed up and then went to sleep.

  80. Iryan’s first long statement dated 9 May 2008

  81. [45] With regard to the events on 29 April 2008, the material portions of Iryan’s first long statement, dated 9 May 2008, read:

  82. Iryan’s second long statement dated 15 May 2008

  83. [46] With regard to the events on 29 April 2008, the material portions of Iryan’s second long statement, dated 15 May 2008, read:

  84. Iryan’s third long statement dated 26 May 2008

  85. [47] With regard to the events on 29 April 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  86. Hamdan’s third long statement dated 26 May 2008

  87. [48] With regard to the events on 29 April 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  88. Events on 30 April 2008 (Wednesday)

  89. The victim’s account

  90. [49] On the evening of 30 April 2009, after closing muster, the victim was again punched on the chest (ie, “Sonic Blastman”) by the accused persons who accused him of “boasting again”. He begged them to stop but they ignored him, and stopped only when they were tired. After the lights were switched off, the victim had to again “fan” the accused persons to sleep before he slept. In his conditioned statement, the victim stated that he had gone for “Christian counselling on 30 April 2008, as opposed to 28 April 2008 (see [30] above). While this was a discrepancy, it was immaterial and no more need be said of it.

  91. Iryan’s third long statement dated 26 May 2008

  92. [50] With regard to the events on 30 April 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  93. Hamdan’s third long statement dated 26 May 2008

  94. [51] With regard to the events on 30 April 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  95. Events on 1 May 2008 (Thursday)

  96. The victim’s account

  97. [52] Because 1 May 2008 was a public holiday (Labour Day), there was no “yard time” for the prison inmates who remained in their respective cells. After closing muster, the victim was again punched on his chest (ie, “Sonic Blastman”) who accused him of “boasting again”.

  98. Iryan’s second long statement dated 15 May 2008

  99. [53] With regard to the events on 1 May 2008, the material portions of Iryan’s second long statement, dated 15 May 2008, read:

  100. Iryan’s third long statement dated 26 May 2008

  101. [54] With regard to the events on 1 May 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  102. Hamdan’s third long statement dated 26 May 2008

  103. [55] With regard to the events on 1 May 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  104. Events on 2 May 2008 (Friday)

  105. The victim’s account

  106. [56] On 2 May 2008, the inmates were strip searched after the morning muster. A prison officer, Staff Sergeant Pang Hee Teng (“SSgt Pang”) did the check for cell 5-55. SSgt Pang did not notice the swelling and bruises on the victim’s body because of his dark complexion. The victim also tried to hide from SSgt Pang as Zameen was looking at him fiercely and he was scared that the accused persons would beat him up later. When it was time for the inmates’ “yard time”, the victim did not go as he was feeling unwell and his whole body was in pain. When SSgt Pang came to check on him, the victim lied to him that he had diarrhoea. SSgt Pang told the victim to report sick. The victim did not do so as he had lied about his diarrhoea and continued resting in the cell. Again, after closing muster, the victim was punched on his chest (ie, “Sonic Blastman”) by the accused persons who accused him of “boasting again”. When the accused persons asked him to suck their penises and he refused, he was beaten up again. After the lights were switched off, the victim had to “fan” the accused persons to sleep.

  107. Iryan’s second long statement dated 15 May 2008

  108. [57] With regard to the events on 2 May 2008, the material portions of Iryan’s second long statement, dated 15 May 2008, read:

  109. Iryan’s third long statement dated 26 May 2008

  110. [58] With regard to the events on 2 May 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  111. Events on 3 May 2008 (Saturday)

  112. The victim’s account

  113. [59] Because 3 May 2008 was a Saturday, there was no “yard time” for the prison inmates and they remained in their respective cells. After closing muster, the victim was assaulted again by the accused persons who took turns to punch him on his chest (ie, “Sonic Blastman”). One of Zameen’s punches on the victim’s chest was so hard that he felt his chest bone break. Iryan then followed with another punch on the victim’s chest and the victim heard his chest bone break. The accused persons then started to punch and kick the victim all over his body. During the kicking, the victim heard his rib cage crack. He begged them to stop, but they stopped only when they saw the victim in extreme pain and rolling on the floor.

  114. [60] Although the victim was crying in pain, Iryan and Hamdan held onto his shoulders and pushed him against the wall while the victim was in a “sitting position”. Zameen placed both of his feet on the victim’s knees and used his hands to pull both of the victim’s hands towards him. In this position, the victim’s legs were “fully stretched against the wall”. Iryan stood behind the victim and pushed his body forward while Hamdan stepped on the victim’s leg to ensure that he did not lift it up. The victim felt great pain in his thighs and legs and could not stand up. The accused persons held on to the victim for “about 10 to 15 minutes”. Hamdan also jumped on the victim’s left leg, injuring the nerve in the leg. When the victim told the accused persons that he could not move his leg, the accused persons, thinking he was lying, forced him to stand up and squat. Eventually, they let him go and chatted amongst themselves before going to bed after the lights were switched off. After these events of 3 May 2008, the victim had breathing problems and could not sit up straight.

  115. Iryan’s first long statement dated 9 May 2008

  116. [61] The material portions of Iryan’s first long statement, dated 9 May 2008, read:

  117. Iryan’s third long statement dated 26 May 2008

  118. [62] With regard to the events on 3 May 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  119. Hamdan’s second long statement dated 15 May 2008

  120. [63] With regard to the events on 3 May 2008, the material portions of Hamdan’s second long statement, dated 15 May 2008, read:

  121. Hamdan’s third long statement dated 26 May 2008

  122. [64] With regard to the events on 3 May 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  123. Events on 4 May 2008 (Sunday)

  124. The victim’s account

  125. [65] As 4 May 2008 was a Sunday, there was no “yard time” for the prison inmates. After closing muster, the accused persons again punched and kicked the victim on his chest. As the victim was unable to take the beating and felt breathless, he offered to fellate the accused persons if they let him off. As with the previous two occasions, the victim fellated Zameen first at the modesty wall while the latter read the same magazine. Zameen ejaculated into the victim’s mouth and asked the victim to swallow his semen. The victim complied. The same thing happened with Iryan who went next.

  126. [66] Hamdan then followed. Although the victim managed to fellate Hamdan until the latter obtained an erection, the act was interrupted when a prison officer knocked on the door of the cell. The prison officer had done so because Hamdan was a “special watch inmate” and the prison officers were required to regularly check on him. For this reason, the accused persons had put a piece of “magazine paper” into the spy hole of the cell door to prevent visual access. When the prison officer knocked on the cell door, Hamdan pushed the victim’s head away, stood up, used a towel to cover himself and acted as if he had just washed up. Hamdan also asked the victim to go to the toilet and pretend as if he was using it. The prison officer opened the spy hole, knocked for a while more and then left when no one responded without looking inside the cell or opening the cell door. After the prison officer left, Hamdan asked the victim to finish what he had been doing. He sat on the modesty wall; Iryan and Zameen took turns to act as look outs. As with Zameen and Iryan, Hamdan also ejaculated into the victim’s mouth and asked him to swallow his semen. The victim complied again.

  127. Iryan’s third long statement dated 26 May 2008

  128. [67] With regard to the events on 4 May 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  129. Iryan’s cautioned statement dated 15 July 2008

  130. [68] With regard to the s 376(1)(a) charge of non consensual penetration of the victim’s mouth with his penis, when asked if he had anything to say to the charge, Iryan stated:

  131. Hamdan’s second long statement dated 15 May 2008

  132. [69] With regard to the events on 4 May 2008, the material portions of Hamdan’s second long statement, dated 15 May 2008, read:

  133. Hamdan’s third long statement dated 26 May 2008

  134. [70] With regard to the events on 4 May 2008, the material portions of Hamdan’s third long statement, dated 26 May 2008, read:

  135. Hamdan’s cautioned statement dated 15 July 2008

  136. [71] With regard to the s 376(1)(a) charge of non consensual penetration of the victim’s mouth with his penis, when asked if he had anything to say to the charge, Hamdan wrote the following:

  137. Events on 5 May 2008 (Monday)

  138. The victim’s account

  139. [72] On 5 May 2008, the inmates were strip searched as usual and the prison officer did not notice the bruises on the victim. The victim was having difficulty standing and was supporting himself against the cell wall. He did not go for “yard time”. While resting in the cell, an unidentified prison officer came to him and told him to report sick if he was not feeling well. The victim did not do so as he was scared. The accused persons again assaulted the victim after closing muster but he could not remember the details of the assault as he was in too much pain.

  140. Iryan’s third long statement dated 26 May 2008

  141. [73] With regard to the events on 5 May 2008, the material portions of Iryan’s third long statement, dated 26 May 2008, read:

  142. Events on 6 May 2008 (Tuesday)

  143. [74] On 6 May 2008, although the inmates were strip searched, the prison officer did not notice anything wrong with the victim. The accused persons went for their “yard time” but the victim did not do so as he was sick. While inside the cell, he pressed the intercom in the cell as he felt very sick and breathless. A prison officer, Staff Sergeant Mohamad Muhayaddin bin Sapari (“SSgt Muhayaddin”) came. As the victim could not stand, SSgt Muhayaddin enlisted the help of some inmates to carry the victim from the cell to the triage area where he was attended to by a staff nurse. The victim explained why he did not tell the staff nurse the truth about what had happened in the cell:

  144. [75] The victim was subsequently sent to Changi General Hospital (“CGH”) where he was attended to by a doctor. He explained why he did not tell the truth to the doctor:

  145. [76] He was given medication and referred back to the Changi Medical Centre (“CMC”). While resting in the CMC, the victim was in great pain and coughed out a dark red and yellow liquid. A staff nurse was called in and the victim was sent to CGH again where he was then warded in the Intensive Care Unit (“ICU”). On the morning of the next day (ie, 7 May 2008), the victim finally told Staff Sergeant Raymond Yin Wei Chiang and another prison officer, Zulkifli bin Osman about the physical and the sexual assault.

  146. Evidence from the prison inmates in the adjacent cell

  147. [77] The prosecution also called the following four inmates who had occupied the cell next to cell 5-55 as witnesses:

  148. [78] Sathis testified that when he saw the victim at the end of April 2008 at the yard, the victim had a swollen, “blue-black” left eye. The victim also had problems talking because his throat was in pain. When asked by him and other inmates what had happened to his eye, the victim replied that “it was normal” and that it was due to “sparring”. Sathis also testified that from the time he saw the victim in the yard with the swollen eye, he had, mostly at night after lights off and sometimes in the afternoon, heard noises coming from the victim’s cell. He also heard Hamdan and Zameen scolding the victim, punching sounds and the victim groaning in pain. When he asked Zameen why the cell was so noisy, Zameen told him that the accused persons had beaten the victim. Muruganantham also testified that he heard “thud sound[s]” coming from the victim’s cell “almost every night” and that there were occasions where these sounds lasted until 2.00am. Sometimes, he would also hear the victim “shouting out in pain” and that whenever he heard this, there would also be the sound of running water from the shower.

  149. [79] Solikin and Lufti are brothers. Solikin testified that like Sathis, he had also seen the victim with a swollen “blue-black” left eye at the material time. He also testified that he heard a lot of frequent punching and beating noises from the victim’s cell at night, the victim shouting out in pain and Hamdan shouting vulgarities. Lutfi testified that he also heard “noises of someone being beaten up on his body” coming from the victim’s cell. When cross examined by Iryan and Zameen, Lutfi testified that in the one week that he was housed in the same cell as the victim and Zameen, he was forced by the victim and Zameen to masturbate them twice. According to Lutfi, although he had initially refused to masturbate the victim, he eventually relented when Zameen threatened to “put shit on [his] rice”.

  150. Evidence from the prison officers

  151. [80] SSgt Muhayaddin, who had conducted the “body check” for the victim and the accused persons on 30 April 2008 gave evidence that he did not spot anything unusual in the cell and that the victim appeared “normal” when he did the “body check” and that he did not exhibit any difficulties in “squatting, turning or carrying his leg”. In court, DSP Shahril Abdul Ghani, who until 14 April 2008 was the commanding officer in the housing unit where the victim and the accused persons were housed, explained that the purpose of such a “body check”, which was “more of a visual check” and did not “scrutinise everything”, was to look for contrabands and injuries. However, he also agreed that given the number of inmates who have to be checked and the number of officers involved in the “body check”, a “body check” for any one inmate would take only about 8-9 seconds. Officer Muhayaddin also testified that the total time taken for a “body check” in one cell was at most a “few seconds”.

  152. [81] When cross examined by Iryan, another prison officer, Seek Hock Meng Kevin (“Officer Kevin”), who conducted the “body check” on 6 May 2008, testified that he did not initially observe any visible injuries on the victim’s body. However, in court he clarified that this observation was made when the victim was still wearing his T-shirt and shorts and that the victim had not been strip searched on 6 May 2008 because the victim had told him that he was not feeling well. Hence, only the accused persons underwent the “body check”. Officer Kevin however confirmed that he saw abrasions on the victim’s buttocks, bruises on his left upper chest area and redness on his knuckles, after the victim had been examined by the staff nurse in the triage.

  153. The medical evidence

  154. [82] When the victim was first admitted to the Accident & Emergency Department of the CGH on 6 May 2008 , Dr Tan Ching Chin Elaine (“Dr Elaine Tan”) who examined him noted that he looked “like he was in pain”, “was not comfortable”, and was running a fever. Given the victim’s complaints of multiple episodes of vomiting blood, a digital rectal examination was performed to check whether there was any passage of altered blood in his stools. This examination did not reveal anything significant. Dr Elaine Tan noted that the victim did not complain of having been sodomised or sexually abused and “mainly complained of pain because he was beaten up”.

  155. [83] An urgent radiological scan was then performed and the following injuries and problems were observed:

  156. [84] Given the fractures suffered by the victim, his breastbone was separated from the rest of his ribcage and he was unable to breathe well. This caused fluid to accumulate in both of his lungs. Taking everything on the scan together, it was explained by the prosecution witness, Dr Andrew Tan (“Dr Andrew Tan”), a radiologist with the department of radiology at the CGH, that the liver laceration was consistent with the victim having been punched. Dr Andrew Tan also stated that the bilateral transverse process fractures to the L2 to L4 vertebrae could have been caused in one of two ways – either via direct blunt trauma or severe muscular contraction when a person was forcefully flexed. According to Dr Andrew Tan, fractures to the sternum were not common and were usually associated with a significant force consistent with a road traffic accident where the steering wheel hits the driver’s chest. He noted that the victim’s fractures to his sternum, manubrium and ribs were consistent with the victim having been punched and kicked “quite heavily” and repeatedly over a period of eight days. With regard to the vertebrae fractures, Dr Tan observed that these were consistent with the victim having been kicked and jumped upon in that area. All in all, Dr Andrew Tan concluded that the victim’s bone fractures could only have been self inflicted if he had jumped from height. Dr June Lee, a Registrar with the department of surgery at the CGH, noted similarly that given the extensive nature of the victim’s injuries, it was “unlikely” that they were self inflicted. These findings were not disputed by the accused persons.

  157. [85] Given the results of the scan, the victim was immediately transferred to the high dependency ward. The next day (ie, on 7 May 2008), he was admitted to the ICU for intensive medical care as he had become unconscious, was not breathing properly and his kidneys had failed. Dr Lim Tiek Wai, a senior consultant with the department of anaesthesia, who had treated the victim in the ICU, noted that the victim was in a “very poor state” with life threatening conditions. An endotracheal tube (which was connected to a breathing machine) had to be inserted into the victim’s throat to assist his breathing which was hindered by the victim’s multiple rib fractures. Owing to rhabdomyolysis and bacterial septicaemia (ie, bacteria in the bloodsteam), the victim’s kidneys failed and he has to be put on continuous renal replacement therapy. Pleural drainage was done to remove the collection of fluid in the victim’s chest cavity.The victim was unconscious for approximately two days. These findings were also not disputed by the accused persons.

  158. [86] Given the victim’s allegations of sodomy, Dr Lim Swee Ho (“Dr Lim”), an associate consultant attached to the department of surgery at the CGH, conducted a rectal examination on him. In his report dated 16 May 2008 he noted:

  159. In a further report dated 12 January 2009, Dr Lim clarified that:

  160. In court, Dr Lim further clarified that while he could not rule out sodomy, he could also not say for certain that the victim had been sodomised. The victim remained in the ICU until 22 May 2008 when he was transferred back to the high dependency ward. He was finally discharged from the hospital on 1 July 2008. Undisputed medical evidence was also adduced by the prosecution confirming that the accused persons did not suffer from any erectile dysfunction.

  161. The psychiatric evidence

  162. [87] Dr Tang Hui Kheng (“Dr Tang”) was the psychiatrist who was part of the medical team which cared for the victim. She first saw him on 11 June 2008, and further reviewed him on 13, 18, 20, 25 and 26 June 2008. In her medical report dated 26 November 2008, she made the following observations:

  163. [88] In court, Dr Tang explained the difficulties faced by the victim in telling her about the incidents:

  164. [89] When cross examined by Iryan, Dr Tang revealed that the victim had, on his last review session (ie, on 26 June 2008) mentioned that he was still having intrusive thoughts of being sodomised, although he did not elaborate because “usually people have difficulty talking about this incident out in the open, and bearing in mind that when [the victim] was in the ward, there were a few other patients around and there were always some police officers around.

  165. The issues raised by the accused persons

  166. The faeces incident (ie, the s 324 Penal Code charge)

  167. [90] As noted above at [6], at trial, while Iryan and Hamdan admitted to the s 324 Penal Code charge, Zameen disputed this.

  168. Zameen’s version

  169. [91] According to Zameen, he had “dissociated” himself from the faeces incident. He testified that:

  170. When cross examined by the prosecution as to why he had “dissociated” himself, he testified that he chose not to get involved because it was against his principles.

  171. Iryan’s version

  172. [92] In court, Iryan testified that:

  173. [93] When cross examined by Zameen as to his involvement in the incident, Iryan testified:

  174. Hamdan’s version

  175. [94] In court, Hamdan testified that:

  176. The fellatio charges (ie, the s 376(1)(a) charges)

  177. Iryan’s involvement on 28 April 2008

  178. [95] As noted above at [8], while Iryan admitted to penetrating the victim’s mouth on 27 April 2008 and 4 May 2008, he denied that he had similarly done so on 28 April 2008. Hamdan admitted to penetrating the victim’s mouth on 28 April 2008 and 4 May 2008 and Zameen also admitted that he had similarly done so on 27 April 2008, 28 April 2008 and 4 May 2008.

  179. Iryan’s version

  180. [96] In court, Iryan stated the following with regard to the fellatio incident on the evening of 28 April 2008:

  181. According to Iryan, by the time he went into the toilet to shower, the victim, Hamdan and Zameen had all come out of the toilet area and were “at the sleeping area”.

  182. [97] When cross examined by the prosecution as to why he had been fellated on 27 April 2008 and 4 May 2008 but not 28 April 2008, Iryan testified that he did not want the victim to perform fellatio on him in 28 April 2008 as the victim had already fellated him on 27 April 2008. He later said that he had agreed to the victim fellating him on 4 May 2008 because he had not ejaculated on 27 April 2008. When cross examined by the prosecution as to why he had not wanted the fellatio earlier on 28 April 2008, the following exchange took place:

  183. Hamdan’s version

  184. [98] In court, Hamdan testified that on 28 April 2008 Zameen had gone to the toilet with the victim first. He did not know whether Zameen sodomised the victim. When Zameen came out of the toilet, he then went in and sat at the modesty wall. The victim squatted down in front of him and started fellating him. However because he was uneasy as it was his first fellatio experience with a male, he pushed the victim’s head away. He also slapped and kicked the victim and told the victim to “get lost”. He then took his shower and told the victim to shower. After the victim had showered, he asked the victim to sit on his left side and “fan for [him]” while he was lying down. According to Hamdan, it was only while the victim was “fanning” him that Iryan went to the toilet.

  185. [99] When cross examined by Iryan as to why he was so sure that the victim had not fellated Iryan on 28 April 2008, Hamdan testified that it was because Iryan would have to pass his “sleeping area” (which was near the toilet entrance) before proceeding to the toilet and although he did see Iryan go to the toilet, Iryan was alone and the victim was still “fanning” Hamdan.

  186. Zameen’s version

  187. [100] Zameen testified that on 28 April 2008 he had first put up a straw mat against the modesty wall to shield the toilet area from view. Although the lights were already off, he did so because he wanted to be “more comfortable” and “concentrate” on getting an erection. According to Zameen, the straw mat was needed because he would not have been able to concentrate with Iryan and Hamdan looking at his back while the victim fellated him. While the victim fellated him, it took him “quite long” to achieve an erection because it was “a bit hard” to “fantasise” and “imagine” as he could hear both Iryan and Hamdan talking and Hamdan’s voice, especially, was a bit loud” and “a bit irritating”. In the end however, he fail to get an erection or ejaculate as “emotionally the urge [had] already died down” and because he had already been fellated the day before (ie, 27 April 2008). He subsequently washed himself, came out of the toilet, wiped himself, wore his shorts and lay down on the cell floor on his “sleeping place”. He contended that he did not sodomise the victim by saying the following:

  188. [101] When he lay down on the cell floor on his “sleeping place”, Iryan was “still lying down there”. Hamdan then went to the toilet. The victim was still in the toilet. Although he could not see Hamdan being fellated by the victim, he “knew” that that was what was happening as the victim had “offered” it earlier to the accused persons. According to Zameen, while the victim fellated Hamdan, Iryan and he were still lying down in their “sleeping place[s]” and “just chit-chatting”. Hamdan then came out of the toilet. The victim followed, “wiping his body and wearing his shorts”. The “toilet area ha[d] been cleaned up” and the victim was fanning for all the accused persons. Zameen testified that before he slept, Hamdan was already sleeping and Iryan had covered his eyes with his shirt to sleep.

  189. The victim had consented to fellatio

  190. [102] As noted above at [8], all the accused persons contend that the victim had consented to the penetration of his mouth by their penises as on each occasion the victim had done so “willingly”, or had “offered” and “agreed” to fellate them.

  191. The sodomy charge (ie, the s 376(1)(a) Penal Code charge)

  192. [103] As noted above at [8], Zameen disputed the sodomy charge against him. The respective versions of Iryan, Hamdan and Zameen on the events of 28 April 2008 as stated in court in their evidence in chief have already been set out above at [96], [98] and [100]. The victim’s account is at [32] – [33] above, and the versions of Iryan and Hamdan in their long statements are detailed above at [34] – [36] and [37] – [38], respectively.

  193. Iryan’s version in cross examination

  194. [104] When cross examined by Zameen however, Iryan testified that because Zameen had put up a straw mat on 28 April 2008, he did not see the victim, the lower part of Zameen’s body including his penis and the actual act of sodomy. Instead, he had only seen Zameen’s head “moving forward and backward” in a manner which required Zameen to “take steps”. He also testified that neither Zameen nor the victim had told him about the sodomy incident. When cross examined by Zameen as to why he stated in his statement that Zameen had sodomised the victim, Iryan testified that he had been told to say so. According to Iryan, the accused persons were all isolated on 6 May 2008 – he was in cell 5-46, Hamdan was in cell 5-57 and Zameen was in cell 5-55. On 7 May 2008, he saw “superior [prison] officers” take Zameen out from his cell. The prison officers then came to his cell, started punching and kicking him and also used their batons on him. After they assaulted him, the “first thing they asked [him] was about the sodomy” and whether he had sodomised the victim. When he replied that he had not, they then asked who had sodomised the victim and when he told them that he did not know, they brought him out of the cell, to a staircase where there were no cameras and “whacked” him. He was then asked again about the incident and when he told them that he did not know anything, they put him back into his cell and then went to Hamdan’s cell. However on the night of 7 May 2008, as he recalled the events of the past days, he knew that something had happened on the night of 28 April 2008 because he had heard a continuous flushing of water for some time and no sound from the shower and because Zameen and the victim “were in the toilet for too long”. According to Iryan, on 9 May 2008, before he made his long statement a “Malay prison IO” had seen him first. The “Malay prison IO” first asked him if he had sodomised the victim to which he denied. He was then asked if the victim had fellated the accused persons and he admitted that all the accused persons had been fellated by the victim. The “Malay prison IO” then showed him a calendar, pointed to the date “28 April 2008” and told him that Zameen had sodomised the victim on that date and that he (Iryan) was aware of it. When he told the “Malay prison IO” that he did not remember anything, the “Malay prison IO” told him not to waste his time and that he was already talking to him “nicely”. He was threatened with a beating and then told again that Zameen had sodomised the victim on 28 April 2008. When he finally said “Yes”, ASP Cindy New (“ASP New”) took over. In the presence of a Malay interpreter and following his statement that Zameen had sodomised the victim, ASP New then asked him “What does this mean to you?” When he told her that he did not know, the Malay interpreter then asked him “What do you mean you didn’t know? But you know Zameen sodomised [the victim]…on that night, am I right?” When this happened, he then said “Yes, Sir”. According to Iryan, he had only known that Zameen had sodomised the victim on 7 May 2008, and if the “superior officer” did not mention anything to him about the sodomy incident and he had not been “guide[d]” by the Malay interpreter, he would not have known that Zameen had sodomised the victim on 28 April 2008. When cross examined by Zameen about his second long statement dated 15 May 2008 (see [35] above), Iryan testified that he had not seen the sodomy act and Zameen’s penis entering the victim’s anus. According to Iryan, all that he had meant to say was that he had seen Zameen “bending down” and him “moving forward and backward”. When asked however whether he had concocted the sodomy incident, Iryan however disagreed and said that he would not have been shocked if it had in fact happened given that the victim had masturbated and fellated Zameen before when they were both in Queenstown Remand Prison.

  195. [105] When cross examined by the prosecution as to why he had testified in evidence in chief that Zameen sodomised the victim (see [96] above), Iryan gave evidence that he did this because he had already said the same in his long statements. It would be instructive to refer to the following from the notes of evidence:

  196. When asked to explain his version during Zameen’s cross examination (see [104] above), Iryan repeated this version, but elaborated that after the victim had performed fellatio on Zameen (where he could not see the victim but could only see the back of Zameen’s head as he sat on the modesty wall facing the shower), the victim and Zameen both stood up (where he then saw the victim’s head and Zameen’s head). However, they did not shower. Instead, the victim “suddenly” disappeared (again), he only saw “Zameen’s head moving” thereafter, and they took a longer time in the toilet than the previous day (ie, 27 April 2008). On further cross examination, he testified that ASP New did not force him to say that Zameen sodomised the victim and that he had said this willingly, and that he had only told SSgt Mohammad Hidayat Mahapandi (“SSgt Hidayat”), the officer who recorded his second long statement (see [35] above), that he saw “[the victim] turning around” and “Zameen moving forward and backward” but not that he had seen Zameen penetrate the anus of the victim back and forth (as was recorded in this long statement: see [35] above). When asked whether he had been given a chance by SSgt Hidayat to amend the long statement on 15 May 2008, he admitted that he had and when asked why he had not clarified this alleged discrepancy in the long statement when SSgt Hidayat testified in court, he replied that he did not know what to ask.

  197. Hamdan’s version in cross examination

  198. [106] When cross examined by Zameen on what he meant in his second long statement (see [37] above) where he stated that he had seen Zameen “apparently sodomising” the victim, Hamdan testified that he did not know whether Zameen had in fact sodomised the victim on 28 April 2008. When further cross examined on why he had not mentioned the sodomy incident in his first long statement dated 9 May 2008 but only in his second and third long statements dated 15 May 2008 and 26 May 2008, respectively, he testified that he had told the recording officer, SI Noorma’at Sawab on 9 May 2008 that he had not seen any act of sodomy on 28 April 2008. He further testified that on 8 May 2008, when the accused persons had all already been isolated in separate cells, police officers went into his cell and punched and used their batons on him. When they asked him if he had sodomised the victim or if he knew who had and he replied that he did not know, he was brought to an office where there were no cameras and further assaulted. He was asked the same questions and he gave the same answers. After a few minutes, he was put back in his cell. He then saw Zameen being transferred to another housing unit and noted that he did not return to his cell thereafter. He wondered why only Zameen was transferred out but not Iryan and himself. A few days after 8 May 2008, “a prison IO” approached him and asked him whether he had seen Zameen sodomise the victim. When he answered that he did not, he was told that he was “not cooperating” and was put back in his cell. On or about 13 May 2008, he pressed the cell intercom and informed that he wanted to “confess some things” because he had not been entirely truthful in his first long statement dated 9 May 2008. Following this, on 14 May 2008, “some police IO” including SSgt Eddie Low (“SSgt Edddie)” came to take his statement. When he told SSgt Eddie that he did not see Zameen sodomise the victim, SSgt Eddie told him that he did not want to take his statement because he was “not cooperating” and sent him back to his cell and asked him to “reflect back on what [had] happened on [28 April 2008]”. When he went back to his cell, he recounted that although he did not see Zameen sodomise the victim, he did remember that both of them were in the “the toilet longer than usual”. On 15 May 2008, SSgt Eddie and “some other officer” returned to take his statement. He was asked again whether he had seen Zameen sodomise the victim and when he replied that he had not, he was told that Iryan had already admitted to seeing Zameen sodomise the victim and that Hamdan had also seen the act. He was also told that Zameen had been transferred to a different housing unit because he had admitted to the sodomy charge. As he “did not want to get involved in this”, he told SSgt Eddie what he wanted to hear, namely, that he had seen Zameen sodomise the victim, just to finish his statement. On further cross examination, he testified that he had lied to SSgt Eddie about the sodomy incident.

  199. [107] When cross examined by the prosecution, Hamdan testified that sometime between 7 to 8 May 2008, before 12 noon, four officers assaulted him by punching him in his ribs first in his cell 5-57 and then in the housing unit office where there were no cameras. He further testified that after he had pressed the cell intercom on or about 13 May 2008 to “confess”, four officers, comprising SSgt Eddie, SSgt Stanley Chew Hui Gan (“SSgt Stanley”) and two female officers met him from about 2.00p.m. to about 5.00p.m. on 14 May 2008 He had told SSgt Eddie that he wanted to tell him something about “karaoke” and that he did not want the two female officers to be in the interview room. He was then left alone with SSgt Eddie and SSgt Stanley whereupon he told SSgt Eddie that “karaoke” meant fellatio. He then repeated his version as set out above at [106] and stated that after he said that he had seen Zameen sodomise the victim on 15 May 2008, SSgt Stanley told him that he will “take note of his cooperation”.

  200. [108] On further cross examination by the prosecution on his third long statement dated 26 May 2008 (see [38] above), Hamdan testified that he did turn around and saw Zameen standing on 28 April 2008 but that he had lied about seeing Zameen “performing a standing doggy style on [the victim] as he did not want to get involved.

  201. The prosecution’s evidence in rebuttal

  202. [109] To rebut Hamdan’s version of the events of 14 May 2008 (see [106] above), the prosecution called SSgt Eddie, SSgt Stanley, ASP Huang Liyu (“ASP Liyu”) and Inspector Amelia Lee Hui Yin (“Inspector Amelia”).

  203. [110] SSgt Eddie was the investigation officer in the case who assisted ASP Liyu in the investigations in May 2008. He testified that while he did go to the prison on the afternoon of 14 May 2008, he did so only for the purpose of coordinating the recording of the statements of the prison officers and the inmates who were witnesses to the case. The prison inmates included Sathis, Solikin and Lutfi. It was never his objective to speak to any of the accused persons. However, when they finished recording the statements of the prison officers and the inmates who were witnesses to the case at about 5.00 p.m. to 5.15 p.m., he was informed by a prison officer that Hamdan wanted to give more facts to the case. In these circumstances, SSgt Stanley, ASP Liyu, Inspector Amelia and he agreed to meet with Hamdan and left the housing unit office (where they were) to the interview room at level 6 of the same housing unit. When Hamdan arrived in the interview room, he was asked what additional facts he wanted to give. Hamdan, who was squatting down, said that he wanted to talk about “karaoke” and that it was not convenient to do so with the female officers around. After ASP Liyu and Inspector Amelia left the interview room, he asked Hamdan what “karaoke” meant, to which Hamdan replied “suck cock”. As they had been informed by the prison prior to meeting Hamdan that closing muster was at 5.30p.m. and that all inmates had to be in their cell “to account for their presence in their cell”, he told Hamdan that he would go back the next day (ie, 15 May 2008) to record his statement. He did this because Hamdan had just given facts relating to a sexual offence (which had not appeared in his earlier statement dated 9 May 2008) and because he did not want Hamdan to “rush into his statement”. Hence, after less than five minutes in the interview room, they handed Hamdan back to the prison officer. According to SSgt Eddie, on 14 May 2008, Hamdan did not mention anything about the sodomy incident, he was not asked to elaborate what he meant by “suck cock” and he was not at any time asked to go back to his cell to think about certain things.

  204. [111] According to SSgt Eddie, on 15 May 2008, SSgt Stanley, Inspector Norman Malimar (“Inspector Norman”), SSgt Hidayat, Inspector Azalin and himself went to the prison to record the accused persons’ statements. Hamdan was brought into one of the interview rooms with him, SSgt Stanley and Inspector Norman. As he had to leave the prison in approximately 45 minutes to go to CGH to record the doctors’ statements, SSgt Stanley was to coordinate the interview. After Hamdan told him that he wanted to speak about “karaoke”, he told Hamdan to say whatever he wanted to Inspector Norman who was the recording officer. After this, he left Hamdan with Inspector Norman and SSgt Stanley to bring SSgt Hidayat to Iryan. He did not see Hamdan again on 15 May 2008 and denied telling Hamdan that:

  205. [112] ASP Liyu, Inspector Amelia and SSgt Stanley corroborated SSgt Eddie’s evidence as to what had transpired on 14 May 2008 (see [111] above). ASP Liyu also testified that because she was not at the prison on 15 May 2008, she did not see Hamdan that day. SSgt Stanley also denied that he told Hamdan that Iryan had already admitted to seeing Zameen sodomising the victim in his first long statement dated 9 May 2008 and that Zameen was transferred to another institution within the prison complex because he had already admitted to the sodomy charge.

  206. The decision of the court

  207. Whether the victim fellated Iryan on 28 April 2008?

  208. [113] In all three of his long statements (see [34] – [36] above), Iryan consistently denied the victim’s allegation (see [33] above) that he fellated Iryan on the night of 28 April 2008. Iryan did not waver from this position in court (see [96] above) and in his cautioned statement dated 15 July 2008 he adopted a similar stance in response to the s 376(1)(a) Penal Code charge:

  209. Neither was there a reference to this actually having happened in Hamdan’s long statements (see [37] – [38] above). Hamdan also explained in court why he was so sure that the victim had not fellated Iryan on 28 April 2008 (see [98] – [99] above). Zameen’s long statements were also silent on whether the victim had indeed fellated Iryan on 28 April 2008 and in court he testified that Iryan had already covered his eyes to sleep when Hamdan came out of the toilet with the victim (see [101] above)

  210. [114] Even more significantly, as Iryan himself contended in court (see [97] above) after rigorous cross examination by the prosecution, there was no logical reason why he would readily admit that the victim fellated him on 27 April 2008 (see [25] – [28] above) and 4 May 2008 (see [68] – [69] above) but fervently maintain that the victim had not done the same on 28 April 2008. For the above reasons, I was of the view that there was reasonable doubt concerning Iryan’s guilt on this particular s 376(1)(a) Penal Code charge and I gave him the benefit of the doubt and acquitted him of this charge. In my opinion, given that the victim had been subjected to serious abuse almost on a daily basis between 27 April 2008 and 5 May 2008 (ie, over the course of nine days) at the hands of the accused persons and that he had been sodomised by Zameen on 28 April 2008 itself (see [132] – [138] below), he was in all likelihood traumatised and confused as to whether he had in fact fellated Iryan on 28 April 2008. I did not think he was lying about this incident.

  211. Whether the s 324 Penal Code common intention charge (ie, the faeces incident) was made out against Zameen?

  212. [115] Section 324 of the Penal Code states:

  213. [116] While Iryan (see [27] above) and Zameen denied that the contents of the ten tasks (see [21] above) comprised sexual acts, they did not deny that “eat shit” was one of these tasks. In spite of having threatened Lutfi that they would “put shit on [his] rice” (see [79] above) and not objecting to Iryan putting “eat shit” as one of the task options on 27 April 2008, during the trial, Zameen conveniently sought to distance himself from the s 324 Penal Code offence on the basis that he had “dissociated” himself because he did not want to get involved in something that was against his “principles” (see [91] above). One wonders why Zameen could have not voiced his objections on 27 April 2008 but somehow appeared to have suddenly, and all too coincidentally, found his conscience and principles in the period between 27 April 2008 and 3 May 2008 (on the accused persons’ own evidence that the faeces incident occurred on 3 May 2008: see [6] above).

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