Eldon v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 15 January 2001
• Neutral Citation: [2001] SGHC 13
• Docket Number: Magistrate's Appeal No 211 of 2000
• Date: 15 January 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Suresh Damodara and K Sureshan (Colin Ng & Partners)
• Citation: [2001] SGHC 13
• Defendant Counsel: Tan Boon Gin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Appeal,Criminal Law,Whether appellate court should overturn findings,Whether appellant involved in a fight,Findings of fact by trial judge,Sentencing,Whether analogy with road-rage cases appropriate -Whether custodial sentence warranted,s 160 Penal Code (Cap 224),Criminal Procedure and Sentencing,Offences,Affray

: The appellant was tried before magistrate Gilbert Low for having committed the offence of affray. The charge against him read as follows:

You, Guy Ermer, are charged that you, on or about 23 May 1999, at or about 6.40pm, at the vacant land off Loyang Way, Singapore, which is a public place, did commit an affray, to wit, by fighting with one Ng Chin Tong and disturbed the public peace, and you have thereby committed an offence punishable under section 160 of the Penal Code, Cap 224.

He was convicted and sentenced to two weeks` imprisonment and ordered to pay a fine of $1,000 in default of which he was to spend two weeks in prison. He appealed against both conviction and sentence and, for the reasons set out below, I dismissed his appeal against conviction but allowed his appeal against sentence.

The appellant`s story

Mr Eldon said that he was riding his off-road motorcycle on a track built for such purposes at the time of the incident. While practising to jump off a ramp known as `the big table-top`, he saw one Ng Chin Tong wheeling a motorcycle across the area where he would land. But he managed to avoid colliding into Mr Ng and his motorcycle, missing by about five feet.

He completed the circuit and returned to the start and finish area and saw Mr Ng beginning a lap on the circuit. He shouted his name and said `that was a bloody stupid thing to do` and proceeded to tell him that what he had done was dangerous and unacceptable as he was an experienced off-road motorcyclist.

This rebuke took place while the appellant was on his motorcycle about six feet behind Mr Ng`s motorcycle. They were stationery at this time. Mr Ng then rode off but stopped about four metres away. He then got off and walked back towards the appellant, who then got off his motorcycle. Mr Ng raised his voice and asked why he was being called stupid. The appellant responded by pointing out that he was not calling him stupid but was saying that what he had done was stupid. Mr Ng said that it was his fault and asked him what he wanted, to which the appellant replied that he wanted an apology.

A Malay boy was present at this confrontation and the parties were standing in a triangle with Mr Ng to the appellant`s left and the Malay boy to his right. The Malay boy insisted that it was the appellant`s fault and the appellant began to remonstrate with him when suddenly Mr Ng grabbed hold of his helmet and pulled his head towards him and punched him in the face which resulted in, among other injuries, a fractured nose. In self defence, the appellant held onto Mr Ng by his shirt in an effort to prevent further blows. Mr Ng then pushed him backwards and fell with him, landing on top of him and struggling to hit him more.

At some point, others got involved and were trying to kick the appellant. The Malay boy tried to pull his helmet off. The whole struggle lasted a minute and a half. Other people intervened to pull the two of them apart and it was over. At no time did the appellant hit Mr Ng.

Mr Ng`s story

Mr Ng said that he had to cut across the track in order to wheel a broken-down motorcycle away from the circuit. He was experienced enough and had had the presence of mind to look out for riders jumping off the top of the ramp, `the big table-top`. However, as he was crossing, he looked up to see the appellant jumping off the ramp. He swerved to the side to avoid being hit. He saw the appellant land safely and proceed down the circuit.

Mr Ng returned to the circuit later to practise. Suddenly, a rider came up from behind him and scolded him and overtook him so closely that the rider brushed the right side of his motorcycle and caused him to fall. The rider was the appellant who then walked towards him. Mr Ng got up and asked what the matter was. The appellant then pushed him on the chest and they started fighting. They grappled with each other and fell to the ground. The appellant then punched him.

The appellant was the aggressor and the fighting back which Mr Ng engaged in was done in self-defence. The fight lasted for five to ten minutes. Other people then intervened and stopped the fighting.

The magistrate`s decision

The prosecution relied on the testimony of Mr Ng and others to establish that there had indeed been a fight. In particular, the prosecution called Mr Patrick Lim Boon Hua (investigating officer); Mr Ng Chin Tong; Mr Sahrin bin Topan, and Mr Samad bin Ismail (all eyewitnesses).

Mr Sahrin testified that he saw the appellant ride past and brush Mr Ng`s motorcycle, causing the latter to fall. From a distance of about 30 metres, he witnessed the ensuing argument and the fight. He could not remember many of the details but he was emphatic that there was a fight. Mr Sahrin identified the appellant and Mr Ng as the parties involved.

Mr Samad testified that he was with Mr Sahrin watching the motorcycles go through the circuit when he witnessed the whole incident. He said he saw the motorcycles collide, the argument and both the appellant and Mr Ng fighting on the ground. The fight lasted for five to ten minutes. He claimed to have been 15 metres away at the time and he also identified the appellant and Mr Ng as the parties involved. Mr Samad also witnessed something of what happened after the fight.

For the defence, the appellant, Mr Christopher Sullivan, Miss Ong Choon Yen (both eyewitnesses); and Dr Ivor Gunaseelan Thevathasan (an expert witness) were called to testify.

Mr Sullivan is a friend of the appellant and testified that he saw him narrowly miss hitting Mr Ng when the former jumped off the ramp. Subsequently, he saw him ride over to Mr Ng and he saw them start to argue. He then intervened and told the appellant to return to the truck. As the appellant turned to pick up his motorcycle from the ground, Mr Ng `swung a punch at Guy in the face near his nose`. A scuffle followed and they wrestled one another on the ground. Then a Malay boy came over and started to twist the appellant`s helmet off. Mr Sullivan intervened and pulled the Malay boy away. The crowd then managed to stop the fight.

Miss Ong is also the appellant`s friend. She was at the scene and witnessed the near collision between him and Mr Ng. She saw him return to the starting point. She witnessed Mr Ng shouting at him and after he laid his motorcycle down, she saw Mr Ng `raise his hand against Guy and they were both on the floor`. She saw others running to the scene and some tried to separate them but others kicked the appellant.

At this point she saw Mr Sullivan intervene. He pulled away someone who was kicking the appellant and proceeded to have a heated argument with him. The crowd then managed to break up the two parties.

Dr Thevathasan was called as an expert to explain the cause of the injuries suffered by the appellant. He testified that the fracture of the nasal bone could have been caused by the impact of a blunt object such as a fist. The swelling and bruising to his right upper eyelid were caused by a `blow injury`. He testified that the injuries were not consistent with injuries usually associated with such motor sports.

The magistrate noted that the defence`s case was that the appellant did not fight with Mr Ng but was merely exercising his right of private defence in response to an attack by Mr Ng.

The magistrate therefore dealt with the question of whether or not there had been a fight. He examined the conflicting accounts of what had happened and concluded:

The defence contended that [Mr Ng] was an accomplice and his evidence should be viewed with caution. Although [Mr Ng`s] evidence is unclear on some aspects (for example, whether in the course of the fight, the accused did hit him on the head with a stick), it was still his evidence in Court that there was a fight between him and the accused. Even if I were to discredit [Mr Ng`s] evidence as being unreliable, this does not detract from the evidence of the other prosecution witnesses, [Mr Sahrin] and [Mr Samad], who testified that there was a fight between the accused and [Mr Ng]. I was also satisfied that [Mr Sahrin] and [Mr Samad] were not personally known to [Mr Ng]. Further, the presence of injuries on [Mr Ng] lend [sic] support to the contention that there was a fight.

The magistrate continued by finding that the injuries suffered by Mr Ng `were inflicted during the course of the fight with the accused`. This is because `[i]f the defence version that the accused did not fight with nor hit [Mr Ng] were to be believed, it does not explain the presence of the injuries on [Mr Ng`s] body. In addition, [Mr Ng] also alluded to his injuries in his police report and to Dr Lim the next day.`

The magistrate also found that there was a material discrepancy between the defence witnesses as to the time of Mr Sullivan`s intervention. Mr Sullivan himself had testified that he intervened as the...