Chua Yong Khiang Melvin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 August 1999
• Neutral Citation: [1999] SGHC 200
• Date: 02 August 1999
• Subject Matter: Whether trial judge right in preferring prosecution evidence,Trial judge preferring prosecution witnesses' version,Sentencing,Witnesses,Conflicting evidence,Police officer voluntarily causing hurt to detainee in lockup,Whether and in what circumstances appellate court will disturb trial judge's findings of fact,Criminal Procedure and Sentencing,ss 321 & 323 Penal Code (Cap 224),Whether policy considerations and aggravating circumstances warrant deterrent sentence,Prosecution and defence witnesses giving conflicting versions of same events,Evidence
• Docket Number: Magistrate's Appeal No 26 of 1999
• Published date: 20 November 2003
• Defendant Counsel: Tan Siong Thye and Mohamed Nasser Ismail (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Peter Keith Fernando (Leo Fernando)

1 This is an appeal against the decision of a district judge convicting the appellant of one charge of voluntarily causing hurt to one Hairil bin Rais (the complainant) on 18 August 1997 at around 11.35am, punishable under s 323 (read with and contrary to s 321) of the Penal Code (Cap 224). The particulars of the charge alleged the appellant to have punched, twisted the right hand of and thrown about, the complainant whilst at the Subordinate Courts lockup. The appellant was sentenced to eight months’ imprisonment and appealed against both conviction and sentence.

The facts

2 On 18 August 1997, the complainant was at the Subordinate Courts facing a drug-related charge. He was offered bail by the court and, pending the arrival of his surety, he was taken to the Subordinate Courts lockup. There, he attempted to call his home for someone to stand as his surety but no one was at home. Hence he was put into a cell (No 13) and the police officer who led him there informed him that he could try calling his home again later.

3 After being in cell No 13 for 10–15 minutes, the complainant started kicking the cell door to attract attention. When a Chinese police corporal, the appellant, arrived, the complainant asked to make a telephone call to get a surety. The appellant refused. The complainant then shouted abuses and vulgarities at the appellant, and continued to do so until another police officer, Sgt Mohd Shah bin Abdullah (PW2) came. He persuaded the complainant to calm down and allowed him to make a telephone call whereupon he managed to contact his brother. The complainant’s brother told him that their mother was trying to raise the requisite sum for bail. After the complainant hung up the phone and PW2 was about to take him back to his cell, the appellant approached him. It was from this point on that the prosecution’s version of events differed from the defence’s.

The prosecution’s case

4 According to the complainant, after he had hung up the telephone, the appellant came towards him and punched him twice in the stomach, causing him to fall down next to the phone. The appellant muttered something, carried him up ‘like a baby’ and threw him against the wall. Around this point, PW2 tried to intervene and stop the appellant’s assault on the complainant but the appellant refused, so PW2 left to inform a superior officer, S/Sgt Ng Geok Beng (DW2), of the assault. The appellant then asked the complainant why the latter was so noisy and why he had scolded the appellant earlier. He demanded an apology from the complainant.

5 The appellant then opened cell No 8 which was opposite the telephone, carried the complainant and threw him onto the stone bench within. The complainant testified that he noticed then that his left elbow was bleeding. The appellant further entered the cell to twist the complainant’s hand behind his back, while demanding an apology. The complainant cried and admitted to being in the wrong, upon which the appellant released his arm, went out and locked the cell. The complainant noticed that two other police officers were observing the incident outside the cell.

6 Several minutes later, DW2 arrived. She queried the complainant who told her that he had been assaulted, because he wanted to make a phone call and showed her his injuries. She took down his home telephone number and his mother’s name, and informed him that she would call her for him. When she spoke to PW2 later, however, she said that there had been no incident of assault. PW2 disagreed with her and said that he would report his version if he was required to do so. He also advised the complainant to consider making a complaint. The complainant decided to consult a doctor.

7 Dr Vincent Ting (PW3) examined the complainant at the Queenstown Remand Prison on 19 August 1997 at 9.45am, after which he put up a medical report (P10). In his report, Dr Ting stated that the complainant had informed him that he had been ‘slapped, fisted, kicked and thrown around’. The doctor’s detailed physical examination revealed that the complainant had recently inflicted abrasions on his left elbow and right lower quadrant of the abdomen, with no other obvious external injuries. At the trial, Dr Ting elaborated that the injuries were consistent with the complainant having been carried and thrown onto a bench. While he had not detected any bruises on the complainant, there were abrasions which were consistent with his having been punched and kicked in the stomach. This was because the stomach was one of the areas of the body which do not have underlying bone beneath the skin, thus tending to bruise less. He also said that the complainant had complained of pain in his right thigh.

Close of the prosecution’s case

8 At the close of the prosecution’s case, the prosecutor amended the particulars of the charge by deleting ‘pulling his hair’. This was because no evidence had been led to this effect. The defence was called upon the charge as amended.

The defence

9 The appellant elected to give evidence. The essence of his defence was that, while he had come into contact with the complainant at the material time, he had not voluntarily caused hurt. All he had done was within the scope of his official duty toward a detainee.

10 On the morning of 18 August 1997, the appellant was on duty as a ‘runner’. This carried all manner of duties within the lockup, including searching for and putting detainees into cells. He first saw the complainant at the telephone booth using the phone. He spoke to the police officer then escorting the complainant, one Robin Goh, and was informed that the complainant was a drug abuser who was using the phone to get a surety. Goh also said that the complainant was behaving ‘rather funny’, by trying to keep out of his cell as long as he could, on the pretext of using the telephone. Goh was therefore putting him into cell No 13 which was meant to contain disorderly detainees. The appellant then carried on with his duties.

11 Five to ten minutes later, the appellant checked on the complainant who was shouting. The latter asked to use the telephone but was told to wait. The appellant was walking away when the complainant hurled vulgarities at him and started kicking the cell door. The appellant decided to ignore the complainant. This incident of the complainant verbally abusing the appellant was recorded by the appellant into his official police pocket book. When he met DW2, he told her about the incident and suggested that the complainant not be allowed out of the cell as he had been unruly. DW2 agreed.

12 Shortly after that, the appellant saw the complainant using the telephone. After hanging up the telephone, the complainant continued to loiter around and was near the exit of the lockup, leading to the area where women prisoners were kept. Although the appellant noticed PW2 sitting in an arm chair facing the telephone area, the latter appeared to be asleep. The appellant thus decided to take the complainant back to his cell.

13 The appellant then approached the complainant to take him by the hand. However, the complainant started struggling to get free. The appellant thus decided to put him into the nearest cell, cell No 8. The appellant released him to unlock the cell door upon which he walked back to the telephone area. The appellant pulled him back, pushed him into the cell and shut it. The appellant walked away without noticing what happened to the complainant, although the latter was starting to shout. DW2 came by shortly after to speak to the complainant and the appellant heard her speaking to him about the use of the telephone. Later, the appellant saw the complainant use the telephone again.

14 There was no record in the appellant’s pocket book of this later incident, when the appellant alleged that the complainant resisted being taken back to his cell, causing the appellant to use some force to lock him into the nearest cell (No 8) as the first cell in which he had previously been locked up (No 13) was too far away. The appellant explained at the trial that, in his opinion, it was a ‘normal’ incident, so he saw no need to record it.

15 DW2 who was the overall supervising officer of the lockup on 18 August 1997 gave evidence in the appellant’s defence. She did not witness the alleged assault personally. However, she stated that, when she spoke to the complainant after the alleged assault, he had not told her about such an incident nor shown her his injuries. She also testified that the complainant had appeared to be crying.

16 Two other police officers gave evidence for the defence. Cpl Chek Wee Han (DW3) and Sgt Heng Cher Seng (DW4) were the appellant’s colleagues on duty at the material time. They testified that they had seen the appellant standing outside the cell when they arrived at the scene. They had not seen the complainant being assaulted as he had alleged.

The decision below

17 The district judge preferred the complainant’s version of events to the appellant’s, and found that he had been assaulted as he had described to the court. He found the complainant to be a truthful witness because he felt, first, the complainant had nothing to gain by making false allegations against the appellant and, further, the complaint had given a complete and credible account of the events, even admitting that he had behaved in a rather disorderly manner that morning. The complainant also openly admitted that he was making a nuisance of himself and had used abuses and vulgarities at the appellant when he was locked in cell No 13.

18 This being the case, the district judge found that the appellant was so affected by the complainant’s disorderly behaviour that he made a note of this in his pocket diary, contemplated pressing charges against the complainant and suggested to DW2 that the complainant should not be allowed to use the telephone anymore. The district judge was of the view that the appellant’s impression of...