Koh Jing Kwang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 27 October 2014
• Neutral Citation: [2014] SGHC 213
• Date: 27 October 2014
• Docket Number: Magistrate’s Appeal No 221 of 2013
• Published date: 17 November 2014
• Plaintiff Counsel: Ramesh Tiwary (Messrs Ramesh Tiwary)
• Hearing Date: 03 September 2014,25 June 2014,17 October 2014
• Defendant Counsel: Yang Ziliang, James Chew and Dwayne Lum (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Offences,CRIMINAL LAW,Grievous hurt,Mens rea,Elements of crime

See Kee Oon JC: Introduction

This is an appeal against the decision of the District Judge in Public Prosecutor v Koh Jing Kwang [2014] SGDC 56 (“the GD”). The appellant claimed trial to a charge for an offence punishable under s 325 of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”) and at the conclusion of the trial, was found guilty and sentenced to 15 months’ imprisonment. He has appealed against the conviction and sentence.

The charge the appellant was found guilty of is as follows:

You are charged that you, on the 3rd day of March 2012, at about 5.16am, outside the main entrance of Shanghai Dolly, Clarke Quay, Tan Tye Place, Singapore, did voluntarily cause grievous hurt to one Chua Bin Huang (male/28 years old), to wit, by punching him on his face, causing the said Chua Bin Huang to fall to the ground and to suffer a fracture to the skull, and you have thereby committed an offence punishable under Section 325 of the Penal Code, Chapter 224 (2008 Revised Edition)

The appeal came before me on 25 June 2014, and I reserved my judgment on the appeal to be delivered on a later date. After considering the arguments raised by the parties, I was satisfied that the mens rea element of an offence under s 322 of the PC (voluntarily causing grievous hurt) had not been established. The appeal was therefore allowed. As the evidence was sufficient to support a conviction for a lesser charge under s 323 of the PC (voluntarily causing hurt), the charge was amended accordingly. The appellant was convicted and sentenced to twelve weeks’ imprisonment on the amended charge. The reasons for my decision are set out below.

The facts

The undisputed facts are set out in the GD at [4]–[8]. The appellant and his friends were clubbing on the night of 2 March 2012 at Shanghai Dolly (“the club”). They decided to leave the club near closing time. The appellant accompanied two of his female friends to retrieve their bags, while his friend Quek Aik Keong Pierre-Milton (“Quek”), proceeded to leave first. Quek somehow got into a fight with one Chua Bin Huang (“the victim”), and this carried on outside the club (“the first altercation”). The appellant was near the entrance of the club when he noticed this had occurred. He then ran towards the victim and made contact with the victim. The victim fell backwards as a result of this and landed on the road motionless. The victim was later conveyed to hospital and diagnosed with having a fracture to the skull.

The decision below

At the trial, the appellant claimed that he had merely pushed the victim in order to separate the victim and Quek. The trial judge, however, noted (at [18] of the GD) that two independent witnesses, one Kevin Ling Guan Jie (“Kevin”) and one Mohamad Sufarpdi Bin Senin (“Sufarpdi”) both testified that they saw the appellant deliver a punch to the victim. Although the first information report (“the FIR”) recorded by Sergeant Cheng Li Quan (“Sgt Cheng”) recorded that the appellant had “pushed” the victim, the trial judge noted (at [20] of the GD) that Sgt Cheng testified that he might have wrongly recorded “punched” as “pushed”. The trial judge also noted that other witnesses had testified that the appellant was behaving aggressively just before he ran out and intervened in the first altercation. The trial judge had the opportunity to review the closed-circuit television footage.

Given the behaviour of the appellant, the trial judge found that it was unlikely that the appellant wanted to prevent a fight. On the contrary, it was more likely that he was agitated and was running towards the victim with a view of “assaulting that person” (at [21] of the GD). In those circumstances, the trial judge found that the appellant had indeed punched the victim, and that his claim that he had pushed the victim was a mere afterthought “designed to meet the charge”.

The trial judge noted (at [25] of the GD) that to fulfil the mens rea element of a charge of voluntarily causing grievous hurt, the appellant must have intended or known himself to be likely to cause some kind of grievous hurt (in that there was no need for it to be the specific form of grievous hurt actually caused). The trial judge went on to hold that given the considerable force used to punch the victim after the appellant dashed out of the club, the appellant “must at the very least have had reason to believe that he was likely to cause grievous hurt to the victim” (at [28] of the GD). He therefore found that the mens rea element of the charge had been fulfilled.

Finally, the trial judge also held that the appellant could not rely on the right of private defence. He noted (at [33] of the GD) that he found it hard to accept that the appellant reasonably apprehended danger due to an attempt or a threat by the victim to commit the offence against Quek. Furthermore, the appellant had also failed to prove why there was no time to seek the protection of public authorities, or that the harm caused to the victim was reasonably necessary in private defence.

In consideration of the sentence, the trial judge observed that there were several aggravating factors. The victim had suffered a serious injury and was now fully dependent on his family for personal care. The appellant remained unremorseful. In the circumstances, the trial judge found that a deterrent sentence was warranted, and imposed a sentence of 15 months’ imprisonment.

The appellant’s arguments

The appellant raised two main arguments on appeal, contending that the learned trial judge had: erred in fact by finding that the appellant had punched (as opposed to pushed) the victim (“the first argument”); and erred in law by holding that the appellant had the requisite knowledge or intention required under the law to sustain the charge under s 325 of the PC (“the second argument”).

In respect of the first argument, the appellant raised two main points. The first was that some doubt should be cast on the evidence of Sufarpdi, who testified that he saw the appellant punch the victim. This is because although it was undisputed that the first altercation occurred (between Quek and the victim), Sufarpdi had testified that he never saw the first altercation. This ran contrary to the evidence of Kevin, who testified that he saw the first altercation very clearly. The appellant argued that the trial judge did not take note of this discrepancy, and that more should have been done to clarify whether Sufarpdi (or Kevin) was indeed telling the truth when they testified that they saw the appellant punch the victim.

Second, the appellant also argued that the trial judge had erroneously concluded that the FIR (recording that the appellant had “pushed” the victim) was wrongly recorded. According to the appellant, Sgt Cheng’s evidence showed that he clearly could not remember the words actually used, and that the word “pushed” appeared more accurate and sensible in the context of the sentence recorded in the FIR. Given that this recording occurred some one year and three months ago, any recollection would be relatively unreliable. The appellant therefore contended that there was reasonable doubt as to whether the appellant did indeed punch the victim.

In respect of the second argument, the appellant contended that the Prosecution had failed to prove beyond reasonable doubt that he possessed the necessary mens rea to sustain the charge, namely, that the appellant, in hitting the victim, intended or knew himself to be likely to cause grievous hurt to the victim. The victim eventually fell as he had tripped over the kerb while stumbling backwards. The relief of where the victim was standing was also downward sloping. The blow was not so hard as to leave a fracture or a permanent mark on the part of the body which was struck. In such circumstances, the appellant contended that it was entirely possible that the blow was not of such great force as it has been made out to be.

According to the appellant, the trial judge had also erred by applying the wrong “standard” of knowledge, concluding (at [28] of the GD) that the appellant “must at the very least have had reason to believe that he was likely to cause grievous hurt to the victim” [emphasis added], while what was required was that the appellant must have either intended or known himself to be likely to cause grievous hurt.

In addition to the above two arguments, the appellant also contended that he should be able to rely on the right of private defence.

My decision

As to the first argument raised by the appellant (ie, that the trial judge had erred in fact by finding that he had punched the victim), I was of the view that there were insufficient grounds to disturb the trial judge’s finding of fact. I found that the trial judge did not err in finding that the appellant had punched the victim.

As to the appellant’s second argument, I was satisfied that the appellant did not possess the requisite knowledge or intention required under the law to sustain the charge under s 325 of the PC, insofar as there was insufficient evidence to reach this conclusion beyond reasonable doubt. I elaborate on these two points below.

The evidence supports the finding that the appellant had punched the victim

There are three aspects of the evidence which cast some doubt on the trial judge’s conclusion that the appellant had punched the victim. They are: the evidence of the encounter itself, primarily the evidence of Kevin and Sufarpdi; the FIR as recorded by Sgt Cheng; and the medical evidence given by Dr Ivan Ng.

Only Kevin had stated unequivocally that he saw the appellant landing a punch on the victim. Sufarpdi had admitted that from his position, he could not really see the appellant land a punch; his evidence that the appellant had punched the victim was his own deduction. This was evident from his testimony in examination-in-chief, when he testified that he “saw slightly...