Jayasekara Arachchilage Hemantha Neranjan Gamini and another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 11 March 2011
• Neutral Citation: [2011] SGHC 54
• Plaintiff Counsel: Peter Keith Fernando (M/s Leo Fernando) ACLS counsel,Lam Wai Seng (M/s Lam W.S. & Co.) CLAS counsel
• Docket Number: Magistrate’s Appeals Nos 215 & 216 of 2010
• Date: 11 March 2011
• Hearing Date: 19 November 2010
• Subject Matter: Not the role of trial judge to choose the more probable of two competing version of events,Prosecution's burden to prove charge beyond a reasonable doubt,Robbery with common intention under s 392 read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed),Criminal Law,Prosecution's burden remained even if Defence's account was disbelieved,Manifest lack of independent corroborative evidence,Voluntarily causing hurt under s 34 of the Penal Code (Cap 224, 2008 Rev Ed),Prosecution's burden not discharged by merely highlighting inadequacies in Defence's evidence,Material inconsistencies in Prosecution's evidence,Material omissions in Prosecution's evidence,Statutory Offences,Inherently incredulous aspects of Prosecution's case
• Published date: 16 March 2011
• Citation: [2011] SGHC 54
• Defendant Counsel: Mark Jayaratnam and Nicholas Khoo (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Year: 2011

Steven Chong J: Introduction

The most fundamental feature of our criminal jurisprudence is the time honoured principle which mandates that the Prosecution bears the burden to prove the charge against the accused beyond reasonable doubt. Short of statutory presumptions enacted by Parliament for specific offences, there can be no doubt that this principle must be applied strictly. As aptly observed by VK Rajah J (as he then was) in Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45 (“Jagatheesan”), a trial judge must always bear in mind that the starting point of the analysis of any criminal case is not neutral. An accused is presumed innocent and this presumption is not displaced until the Prosecution has discharged its burden of proof.

These two appeals have brought to the fore yet again that this fundamental principle of law must be applied unwaveringly to prevent any miscarriage of justice. This case serves as a reminder that the Prosecution’s burden of proof cannot be discharged simply by persuading the trial judge to accept that the Prosecution’s version of the events is more probable than the version offered by the accused without addressing the critical question whether the evidence adduced by the Prosecution has proved the charge beyond reasonable doubt. When this occurs, it may lead to an egregious error in conflating and confusing the crucial difference in the treatment of the burden of proof in a criminal case with that of a civil trial.

The Charges

The two appellants, Jayasekara Arachchilage Hemantha Neranjan Gamini (20 years old), and Jullian Hettige Hasitha Migara Perera (23 years old) (hereinafter referred to as “Jayasekara” and “Jullian” respectively) were charged for, in furtherance of the common intention with two other persons, committing robbery of $80 in the possession of one Manikku Archarige Weerantha Silva (“PW1”) on 4 November 2009 between 4 am to 5 am, under s 392 read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed). Jayasekara was also charged for voluntarily causing hurt to one Sembakutti Sudarma De Silva (“PW2”) by kicking his hip area on 4 November 2009 between 4 am to 5 am, under s 323 of the Penal Code.

The appellants were convicted of the charges by the district judge (“the DJ”) and were each sentenced to 42 months’ imprisonment and 12 strokes of the cane under s 392. Jayasekara was sentenced to one week imprisonment for the s 323 offence with the sentence to run concurrently. The appellants appealed against both convictions and sentences.

The Prosecution’s case

It was the Prosecution’s case that PW1 and PW2 were victims of a robbery committed by Jayasekara, Jullian and two other persons. PW1 and PW2 as well as Jayasekara and Jullian are all Sri Lankan nationals and were known to each other at the material time. The Prosecution’s position is that PW1 is a businessman who dealt with the importation of car spare parts. According to both PW1 and PW2, they were having drinks with some friends, ie one Danushka and three of his friends on 4 November 2009 at the coffeeshop on the ground floor of the Shing building located at Verdun Road when Jayasekara approached PW1 for some money to buy drinks. After PW1 refused to give any money to Jayasekara, PW1 asked PW2 to leave the coffeeshop as he sensed that there could be trouble. PW1 and PW2 then left the coffeeshop and started walking in the direction away from Jayasekara and his friends, and walked towards an open space carpark also located along Verdun Road.

As PW1 and PW2 were near the carpark, someone behind them shouted “Hey Stop” in Sinhala. PW1 and PW2 then saw the appellants and two other persons running towards them. PW1 and PW2 started running away from them towards the carpark. As they were being chased, one of the persons (amongst the appellants and two other persons) threw an empty beer bottle which landed and broke in front of PW1 and PW2. The appellants then overtook PW1 and PW2. Simultaneously, one of the two other persons kicked PW1 from behind on his neck. The force was strong enough to cause PW1 to fall down. At this time, Jayasekara allegedly kicked PW2 on his hip which also caused PW2 to fall down. While PW1 was on the ground, Jayasekara allegedly kicked him on his left upper arm and asked him for money. Jayasekara allegedly tried to take PW1’s wallet from his right side pocket, but PW1 rolled onto his side and used his right hand to prevent his wallet from being taken. As a result of the struggle, PW1’s left shin suffered some bruises and scratches and his t-shirt had shoe marks on it from Jayasekara’s kick. PW1 allegedly used his left hand to prop himself off the ground with a view to escape. This left PW1’s left side pocket exposed and Jayasekara allegedly reached into his pocket and robbed him of $80 cash.

PW1 then got up and ran towards Mustafa Centre, and it was alleged that the appellants and the two persons chased after him. PW1 and PW2 ran in separate directions. PW1 headed towards the Shing building and thereafter hid himself inside Mustafa Shopping Centre. While PW1 was hiding, PW2 walked to the junction of Kitchener Road and Serangoon Road where he encountered Jullian. According to PW2, Jullian approached him and asked for a cigarette but PW2 refused. PW2 then went to a café where he waited for PW1. After hiding for about 45 minutes, PW1 called PW2 on the mobile to meet him at a taxi stand along Serangoon Road in front of Serangoon Plaza. They met and decided to head for the Rochor Neighbourhood Police Centre (“Rochor Police Centre”) to report the robbery.

The Appellants’ defence

The appellants are private students in Singapore on study passes. It is the appellants’ position that PW1 and PW2 had fabricated the robbery to frame them due to a grudge that PW1 had with Jayasekara arising from the latter’s relationship with a prostitute known as Nirasha; and because of some unpleasant encounters which each of the appellants had with prostitutes controlled by PW1and PW2 on two separate occasions in the early hours of 4 November 2009.

According to the defence, PW1 was a pimp engaged in the prostitution of Sri Lankan women in the Serangoon Road area, and PW2 was his assistant in this prostitution racket. PW1 had brought Sri Lankan girls into Singapore to work as prostitutes. Sometime in July 2008, PW1 brought Nirasha to Singapore. Nirasha believed that she was going to work as a dancer. On arrival in Singapore, Nirasha was, however, forced to work as a prostitute. While in Singapore, Jayasekara and Nirasha became lovers, a relationship which was strongly opposed by PW1. According to Jayasekara, PW1 had threatened to assault him if he did not cease his relationship with Nirasha. In particular, Jayasekara related an incident where PW1 and some men came to his room one night at around midnight to warn him to end his relationship with Nirasha. Subsequently, Nirasha was arrested in or around June 2009. She asked Jayasekara for assistance to purchase a return air ticket to Sir Lanka. Jayasekara obtained some money from his mother to purchase the air ticket. Nirasha thereafter left with Jayasekara’s mother back to Sri Lanka.

On 3 November 2009, Jayasekara left his house at around 11.30 pm to meet one Suda Aiya for drinks. While he was on his way, Jayasekara met Jullian, who agreed to join him for drinks. At Mustafa Travel Agency, they met Suda Aiya who arrived with another person.¹ They started drinking at the corner of the travel agency at about 1 am on 4 November. Jullian left the group some time before 5 am without informing Jayasekara.

Subsequently, Jaysekara borrowed $50 from Suda Aiya, after which he walked towards the Farrer Park hostel to engage the services of a Sri Lankan prostitute. According to Jayasekara, as Sri Lankan prostitutes avoided Sri Lankan customers, he pretended to be from India. Jayasekara paid the prostitute $50 to have “two shots” of sexual intercourse with her. However, after they had sexual intercourse for the first time, the prostitute refused to continue her services after she discovered from Jayasekara’s mobile ringtone (playing a Sir Lankan tune) that he was a Sri Lankan. Thereafter the prostitute left and Jayasekara went after her to seek a refund of $20. When the prostitute refused, PW1 and PW2 appeared. PW1 told Jayasekara to leave. Jayasekara refused and insisted on getting his refund. PW1 then punched Jayasekara on the left eyebrow and right shoulder. Jayasekara ran away and rejoined Suda Aiya and Jullian (who had by then returned) at the corner of the Mustafa Travel Agency and continued to drink and chat. Jayasekara did not relate the incident to Jullian at that time because he was concerned that Jullian might start a fight as he was a bit drunk by then and further they had a rioting charge pending as well.

As for Jullian, after he left Jayasekara and the group before 5 am, he headed to the Shing Hotel to look for a prostitute. He too engaged the services of a prostitute for $50. After taking the money, the prostitute refused to go with him after she realised that Jullian was a Sri Lankan. To resolve the matter, Jullian approached PW1.² PW1 informed him that there was no problem and that he could engage her services.³ Jullian however told PW1 that he could not force the prostitute. He then decided to rejoin Suda Aiya for more drinks. About 30 minutes later, PW1 appeared with the police and the appellants were arrested.

The decision below

The DJ adopted a rather curious route in arriving at his decision. In his Grounds of Decision (“GD”), he commenced his analysis by stating that the version of events given by PW1 and PW2 should be accepted as he was of the view that the evidence adduced by them was “unshaken”. The sum total of the DJ’s reasoning in arriving at this finding is set out in 2 paragraphs of his GD which is reproduced below: 26 I believe and accept the accounts given by PW1 and PW2. Despite...