PP

• Jurisdiction: Singapore
• Judgment Date: 11 November 2010
• Date: 11 November 2010
• Docket Number: Criminal Case No 16 of 2007
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Daniel Vijay s/o Katherasan and another

Defendant

[2010] SGHC 334

Tay Yong Kwang J

Criminal Case No 16 of 2007

High Court

Criminal Procedure and Sentencing—Charge—Court of Appeal substituting charge for voluntarily causing hurt in committing robbery read with common intention for charge of murder with common intention—Whether invocation of common intention provision necessary—Section 394 Penal Code (Cap 224, 1985 Rev Ed)

Criminal Procedure and Sentencing—Mitigation—Accused persons claiming failure to participate in physical assault and minor role in robbery as mitigating factors—Whether mere fact of non-participation in physical assault and relatively minor role in robbery amounted to mitigating factors

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Benchmark sentence under s 394 Penal Code (Cap 224, 1985 Rev Ed) being set in case where s 397 Penal Code also invoked—Whether benchmark sentence imposed applicable where s 397 Penal Code not invoked—Sections 394 and 397 Penal Code (Cap 224, 1985 Rev Ed)

The two accused were originally charged and convicted with a third person on a joint charge of murder. On appeal to the Court of Appeal, the convictions for murder were set aside and both accused were convicted instead for the offence of robbery with hurt under s 394 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). The case was remitted to the High Court for sentencing on the substituted joint charge. At the hearing, the Prosecution asked for both accused to be sentenced to more than 15 years' imprisonment and more than 12 strokes of the cane. In mitigation, both accused emphasised the fact that they had not participated in the physical assault on the victim; they also claimed to have played no more than minor roles in the robbery. Counsel for the first accused submitted that a sentence of ten to 12 years' imprisonment and 12 strokes of the cane should suffice; counsel for the second accused submitted that a custodial sentence of up to ten years' imprisonment with the necessary strokes of the cane would be sufficient in the latter's case.

Held, sentencing both accused to 15 years' imprisonment and 15 strokes of the cane:

(1) It was not necessary to invoke the provision for common intention found in s 34 of the Penal Code for a charge falling within s 394 of the Penal Code. Section 394 already imposed liability on those jointly committing or attempting to commit such robbery even though they did not cause hurt: at [35].

(2) Section 397 of the Penal Code was not invoked by the Court of Appeal when it substituted new charges for both accused. However, s 397 only added mandatory caning without affecting any imprisonment term. The established sentencing range of 12 to 20 years' imprisonment was therefore not limited to cases involving s 397: at [41].

(3) While both accused left the act of vicious assault entirely to the third person, they clearly intended that the weapon they brought would be used in the robbery. It would be naive to think that they had no idea whatsoever that violence would be used. Part of the robbery plan was to ensure that the victim would be unable to hinder or identify them. The robbers had not planned to blindfold or drug the victim to achieve their common objective and the purpose of bringing along a baseball bat was not an innocent one. The robbery in this case was also serious. The place, operation and the vehicles were all planned; the targeted loot was a very valuable cargo: at [39] and [40].

Ang Ser Kuang v PP [1998] 3 SLR (R) 316; [1998] 3 SLR 909 (refd)

Daniel Vijay s/o Katherasan v PP [2010] 4 SLR 1119 (refd)

PP v Daniel Vijay s/o Katherasan [2008] SGHC 120 (refd)

PP v Hirris anak Martin [2010] 2 SLR 976 (folld)

PP v Somrak Senkham [2004] SGHC 172 (not folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 229 (1)

Penal Code (Cap 224, 1985 Rev Ed) ss 394, 397 (consd) ;ss 34, 109, 392, 414

Road Traffic Act (Cap 276, 1997 Rev Ed)

Amarjit Singh and Sharmila Sripathy-Shanaz (Attorney-General's Chambers) for the Prosecution;

James Bahadur Masih (James Masih & Co) for the first accused;

Subhas Anandan and Sunil Sudheesan (KhattarWong) for the second accused.

Tay Yong Kwang J

Introduction

1 The two accused persons (‘Daniel’ and ‘Christopher’) were originally charged with a third person, Nakamuthu Balakrishnan (‘Bala’) with a joint charge of murder. All three men were convicted by me after a trial (see PP v Daniel Vijay s/o Katherasan [2008] SGHC 120).

2 On appeal to the Court of Appeal, Daniel's and Christopher's convictions for murder were set aside after the Court of Appeal revisited and restated the law relating to s 34 of the Penal Code (Cap 224, 1985 Rev Ed). Both of them were convicted instead for the offence of robbery with hurt under s 394 read with s 34 of the Penal Code. The Court of Appeal also remitted their case to me as trial judge for me to consider their sentence on the substituted joint charge. Bala decided not to proceed with his appeal against conviction for murder. Nevertheless, his conviction for murder was reviewed and upheld by the Court of Appeal (see the Court of Appeal's judgment dated 3 September 2010 in Daniel Vijay s/o Katherasan v PP [2010] 4 SLR 1119 at [185] and [186]).

The substituted charge

3 Section 394 of the Penal Code provides:

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person, jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for a term of not less than 5 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.

4 Section 34 of the Penal Code states:

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Previous convictions

5 Daniel had a conviction under the Road Traffic Act (Cap 276) in February 2003 for taking or driving a motor vehicle without lawful authority. Another charge for the same type of offence was taken into consideration. He was fined $1,000 by a district court. He paid the fine. In March 2005, he was convicted again for such an offence, with one other charge for the same type of offence...