Chen Jian Wei v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 April 2002
• Neutral Citation: [2002] SGHC 66
• Docket Number: Magistrate's Appeal No 162 of 2001
• Date: 03 April 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Irving Choh (CTLC Law Corp)
• Citation: [2002] SGHC 66
• Defendant Counsel: Peter Koy (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Corroboration,Whether corroboration required,Witnesses,s 147 Penal Code (Cap 224),Rioting,Child witness,Whether appellant's testimony consistent with prosecution witnesses' evidence,Effect of impeachment or rejection of evidence,Impeaching witnesses’ credibility,Inconsistencies between appellant's evidence in court and his previous statements,Need to evaluate whole evidence,Public tranquillity,Evidence,Whether material inconsistencies,Whether offence proven beyond reasonable doubt,Criminal Law

Judgment

GROUNDS OF DECISION

The appellant was convicted by the district court of one charge of rioting under s 147 of the Penal Code (Cap 224). The charge sheet stated that at about 1.10 am on 9 December 2000, the appellant was part of an unlawful assembly whose common object was to cause hurt to Ong Jun Kiat ("Ong") and in the pursuit of such a common object, one or more of the assembly had fisted and kicked Ong.

2 Section 147 of the Penal Code is punishable with imprisonment for a term which may extend up to five years and with caning. The appellant was sentenced to two years imprisonment and four strokes of the cane.

3 The appellant appealed against his conviction and sentence. At the end of the hearing, I allowed the appeal against conviction and quashed the sentence. I now give my reasons.

The facts

4 On 8 December 2000, Ong and his friend, Ang Kee Leng ("Ang") were with four other friends at the karaoke lounge located at the Civil Defence Association for National Servicemen ("CDANS") Country Club at Bukit Batok West Avenue 7 for drinks and a karaoke session.

5 The appellant was present at the same karaoke lounge with a group of about 20 of his friends. Around midnight, the appellant left the company of his friends and played pool at the pub outside the karaoke lounge.

6 At about 1 am on 9 December 2000, Ong and Ang left the CDANS premises on Ong’s motorcycle to buy cigarettes from a nearby petrol kiosk. A party of the appellant’s friends left the karaoke lounge at around the same time. This group included various witnesses who testified for the prosecution: Thulasidas s/o Sahadevan ("Thulasidas"), Yeo Kwan Loong ("Yeo"), Kenny Cheong Wei Long ("Kenny") and three other prosecution witnesses who are minors and shall be referred to as PW6, PW7 and PW8.

7 Members of the group claimed that Ong deliberately revved his motorcycle engine loudly as he passed them. Ong proceeded to execute a U-turn and as he rode pass them a second time, he revved his engine loudly again. As such, the group felt provoked.

8 Yeo, Thulasidas, PW6 and PW8 then confronted Ong and Ang. In the midst of the confrontation, Thulasidas shouted at Ong and punched his face. Various members of the group then attacked Ong, kicking and punching him with their arms and legs.

9 Upon witnessing the attack, Ang tried to help Ong but was stopped and punched on his neck. He managed to escape and went to seek help from his friends who were still in the karaoke lounge. When they returned, the group had fled.

10 Ong was treated at the National University Hospital as an outpatient. In the medical report, the examining medical officer noted that Ong suffered a fracture on the tip of his nose and had various bruises on his head.

The court below

11 The appellant’s main defence was that he was not an active participant in the assault. The prosecution called a total of nine witnesses, while the defence only put the appellant on the stand.

The victims

12 The two victims, Ong and Ang, did not identify the appellant in police identification parades. They were only able to identify Thulasidas and Yeo and their evidence did not shed light on whether the appellant was involved. Hence, the trial judge found that their testimonies were unhelpful in determining if the appellant had been present at the commencement of the assault or whether he had a role in the assault.

Thulasidas and Yeo

13 The prosecution also called the various participants in the assault to the stand. Thulasidas testified that he had only seen Yeo and PW8 on his side when the assault took place. When asked whether he remembered seeing the appellant after he left CDANS, he replied that he had only seen the appellant at the karaoke lounge and had not noticed him after that. Yeo then took the stand but his evidence was largely unhelpful as well. To begin with, he had consumed some beer at the karaoke lounge and he admitted to being inebriated by the time he left the CDANS premises. Furthermore, Yeo said that he was so preoccupied with the assault that he did not notice whether the appellant was present or whether he had taken part in the assault at all.

14 On the whole, the judge found the testimonies of Thulasidas and Yeo to be unhelpful as they were uncertain as to whether the appellant was part of the group that confronted Ong. They were also unable to say for sure whether the appellant was actually involved in the assault. As such, she held that their evidence was neutral in determining the appellant’s involvement.

Kenny

15 18-year old Kenny was the fifth witness who testified for the prosecution. He testified that, at about the time when Ong passed the group on his motorcycle for the first time, he was experiencing cigarette withdrawal symptoms. Remembering that the appellant owed him a packet of cigarettes, he looked in all directions for the appellant for at least one to two minutes. When he was unable to find the appellant, he took a stick of cigarettes from another person in the group. When asked whether the appellant was one of those who had gone over to talk to Ong, his answer was a definitive ‘no’. He explained that he was positive that the appellant was not involved because of the appellant’s height and this characteristic was so distinctive that he was able to recognise him even from his back.

16 The prosecution then applied to cross-examine Kenny as a hostile witness. It was pointed out to him that he had failed to mention this piece of exculpatory evidence in all three of his previous statements to the police. In reply, Kenny said that this was because the police had not questioned him specifically as to whether the appellant was involved in the assault.

17 Even though the prosecution did not apply to impeach his credit, the judge however found that Kenny had fabricated his evidence so as to assist the appellant. In coming to this finding, it was noted that Kenny had failed to mention the exculpatory evidence in favour of the appellant in all three statements which he had given to the police. She also rejected Kenny’s explanation that since the police did not question him specifically about the appellant’s role, there was no need to mention the exculpatory evidence.

PW6

18 The testimony of 15-year old PW6 was controversial. He recounted that in the midst of the fight, Ong’s helmet had fallen to the ground. Thinking of using it to hit Ong, he picked up the helmet, but Thulasidas snatched it from him and proceeded to use it to hit the motorcycle. He testified that it was at this juncture that he witnessed the appellant approaching Ong who had by this time fallen to the ground. The appellant was then alleged to have used his fists to punch Ong twice in his back.

19 However, when it was made known to him that the appellant was being charged with rioting and not the less serious unlawful assembly charge that he had pleaded guilty to, PW6 changed his testimony and said that it was possible that he was mistaken about the appellant’s role in the assault. His volte-face threw his earlier unequivocal statements into doubt. At this point, the prosecution applied to impeach PW6’s credit by introducing his previous statements.

20 The prosecution first referred to PW6’s statement to the police dated 14 December 2000, ("P2"). The prosecution pointed out that in the course of his oral testimony, PW6 had said that he did not notice the appellant’s presence when Yeo, Thulasidas, PW8 and himself first confronted Ong. In P2 however, PW6 had said that the appellant was part of the first group that had approached Ong; therein lay the material inconsistency. In reply, PW6 maintained that the appellant was not present when the confrontation occurred.

21 Next, the prosecution pointed out that in P2, PW6 had alleged that the appellant had used his hands to punch Ong’s body. PW6 disagreed and claimed that he was nervous and confused after having been locked up in the Jurong Police Station lock-up for two days. He maintained his new position that he had probably been mistaken when he gave the statement. When it was pointed out to him that his allegation in P2 was consistent with his evidence given during examination-in-chief, PW6 claimed that during examination-in-chief, he was also feeling ‘nervous and confused’ since it was his first time in court. He claimed that, in the course of the hearing, he had a rethink about the events of the night of the assault and felt that he had been mistaken about the appellant’s participation in the assault.

22 In her judgment, the judge held that the prosecution had successfully impeached PW6’s credit. She rejected his explanations for his change in testimony and said that it was apparent from his 2 May 2001 statement (which she noted was less than two weeks before the commencement of the appellant’s trial) that he continued to hold the view that the appellant was an assailant and had even provided details on the manner he carried out the assault. This latest statement from PW6, she noted, was consistent with his evidence given before his volte-face. The judge found that, on the whole, before he changed his testimony, PW6’s evidence was generally consistent and he was a coherent and clear witness. As such, she preferred his evidence given in his police statements and in his examination-in-chief.

The remaining prosecution witnesses

23 15-year old PW7 testified that, when the first group confronted Ong, he saw the appellant walking/running towards them. After the assault began, he saw the appellant standing close to the pavement where the assault was taking place. He testified that halfway through it, he did not notice the appellant there anymore. However, he conceded that this was probably because his attention was centred on the assault.

24 15 year old PW8 was an active participant in the assault. He testified that during the assault, things were very chaotic and, as he was not looking out for the appellant, he was unable...