Mustapah Bin Abdullah v PUBLIC PROSECUTOR

Facts

Mustapah bin Abdullah befriended a group of teenage boys who met at a hut in his neighbourhood; they respected him and saw him as a big brother, and he said he had helped some of them leave a gang. When a rumour spread that he had made another boy suck his penis, the boys began avoiding him. Angered, he called and messaged three of them (V1, aged 16, and V2 and V3, aged 17), and admitted slapping V1 and V3 at a first meeting. At a second meeting on the night of 17 October 2018 he kicked and slapped some of them and made threats. At a playground he then met each boy alone at the top of a slide, exposed his penis and told each that to settle the matter he had to suck it or face consequences. Each did so for a few seconds.

The matter surfaced when V1's class advisor noticed his changed demeanour and referred him to a counsellor, and the school reported it to the police. In three long statements Mr Mustapah admitted the acts. After a trial in the High Court he was convicted of three charges of sexual assault by penetration under s 376(1)(a) of the Penal Code, and he later pleaded guilty to sexual penetration of a 15-year-old fourth boy, with five charges taken into consideration. The judge imposed a global sentence of 23 years' imprisonment plus 12 months in lieu of caning. He appealed, in person, against conviction and sentence in Criminal Appeal No 34 of 2022.

Issues

1. Whether the victims colluded to falsely implicate the appellant and whether their evidence was credible.
2. Whether penetration was proved and whether the appellant's long statements were admissible and accurate.
3. Whether the victims consented, given the appellant's claim that his Malay phrase was mere slang.
4. Whether the sentences were correctly calibrated, in particular the aggravating factors of abuse of trust and vulnerability.

Holding

The Court of Appeal (Judith Prakash JCA, Tay Yong Kwang JCA and Belinda Ang Saw Ean JCA) dismissed the appeal against conviction but allowed the appeal against sentence in part, reducing the global sentence to 18 years and 6 months' imprisonment, backdated to 25 October 2018.

Reasoning

There was no motive for collusion: the boys had been friendly with him, the matter came to light by chance through a teacher, and there was little time to concoct a story. Inconsistencies about peripheral details and the exact Malay words were minor, given the lapse of time. Penetration means entry, so it did not matter that there was no sucking, that his penis was not erect, or that there was no DNA evidence. His statements were textured, he had initiated many amendments, they matched a psychiatrist's notes, and his claim of oppression from moneylender harassment was unsubstantiated. Exposing himself and repeating the demand three times showed it was not slang. Given his threats and violence, the boys submitted out of fear of injury, so there was no consent under s 90(a)(i), and he knew this.

On sentence, the court accepted that violence was an aggravating factor, but held that being seen as a big brother did not put him in a position of responsibility, and the older teenagers, who had mixed with gangsters, were not especially vulnerable. With one aggravating factor the offences fell in Band 1, at eight years and four strokes each, uplifted for lack of remorse and other offences taken into consideration. The fourth offence warranted 14 months, without any abuse of trust. Two of the sexual assault sentences and the fourth offence were ordered to run consecutively, with imprisonment in lieu of caning.

From the judgment