Low Song Chye v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 06 June 2019
• Neutral Citation: [2019] SGHC 140
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9240 of 2018/01 and /02
• Year: 2019
• Published date: 22 June 2019
• Hearing Date: 22 March 2019
• Plaintiff Counsel: Ngiam Hian Theng, Diana, Sunil Sudheesan and Joel Ng
• Defendant Counsel: Hay Hung Chun and Sheryl Yeo
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Criminal Law,Offences,Hurt
• Citation: [2019] SGHC 140

See Kee Oon J:

The accused claimed trial in a Magistrate’s Court to a charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed). He was convicted and sentenced to 12 weeks’ imprisonment and ordered to pay $800 in compensation to the victim. The Magistrate’s grounds of decision can be found in Public Prosecutor v Low Song Chye [2018] SGMC 68 (“GD”).

The accused has appealed against conviction, sentence and the compensation order imposed. The Prosecution has appealed against sentence only. Both the sentence of imprisonment and the compensation order were stayed pending the appeal.

Having considered the submissions of both parties, I dismiss the accused’s appeals and allow the Prosecution’s appeal, enhancing the sentence imposed to four months’ imprisonment. I now give the reasons for my decision.

Evidence adduced at trial

The accused was the manager of KG Pearl, a karaoke pub at which the victim worked as a singer. On 12 July 2016, at about 2.36 am, the victim had gone into the office at KG Pearl to collect her salary as it was her last day of work there. As she was dissatisfied with the amount that was offered to her, she refused to accept the money.

When the victim exited the office, she picked up balls from a pool table and threw them around in an apparent tantrum. There was some dispute as to where these balls landed, and whether any danger arose from this. While the victim testified that she had thrown the balls onto the floor, the accused testified that he had seen one of the balls hit “Ben Ge”. “Ben Ge” was also referred to as “Ping Ge” during the trial.

The events that followed thereafter were also disputed even though there was CCTV footage of most, but not all, of the relevant events in the pub.

According to the victim, the accused then pointed at her and asked whether she believed he would hit her. He went towards her, grabbed her hand, and pushed her towards the wall before grabbing her neck with his right hand. He then changed hands, used his left hand to grab her neck, and slapped her with “very great force” on the left side of her face and left ear with his right hand. The accused also told her to stop throwing tantrums. The victim was very agitated and wanted to retaliate.

The Prosecution’s case was that the accused continued to advance towards the victim when she moved away, pointing his finger at her aggressively before grabbing her neck again. The victim pushed him away immediately, but the accused lunged forward and swung his hand at the victim’s face, hitting her on the left cheek. Subsequently, the victim fell to the floor and threw a pool ball at the accused, which missed him. Despite being restrained by others, the accused continued to advance towards the victim.

On the other hand, the accused stated that he approached the victim in an attempt to stop her from throwing more pool balls around. He did this by grabbing her wrists and telling her to cool down and go into the singers’ room. The victim struggled and attempted to kick the accused, who dodged the kick. As the victim attempted to move towards the pool table again, the accused used his right hand to push her chest area, below her neck, and used his left hand to grab the victim’s shoulder. By doing so, the accused managed to push the victim towards the wall. He did this because he did not want the victim to be within reach of the pool table. The victim then kicked the accused, who released her.

The accused’s case was that while other singers tried to intervene, the victim continued to be aggressive, pushing him away twice. He pushed her as well, in an attempt to push her towards the singers’ room and wake her up from her “alcohol-induced delirium”. His right hand then came into contact with the victim’s left cheek with “not that great” force as the victim had moved away. The victim then attempted to retaliate, but missed and fell to the floor. She then threw a pool ball towards the accused.

It was not disputed that an altercation between “Ping Ge”, his friend, and the victim followed. During this altercation, the victim hit her head against a pillar at KG Pearl.

The victim later realised that there was discomfort in her ear and that her hearing in her left ear had become poorer than her right. On medical examination, she was found to have sustained: A left anterior central tympanic membrane perforation that was about 50% in size, Multiple scratch marks over her bilateral upper limb, Minimal swelling over the dorsum of the lateral side of the right wrist, Circular abrasion over her right anterior knee, and Redness over the anterior distal neck.

The victim had no other visible facial injuries. The hearing test conducted on her showed that she suffered mild conductive hearing loss. Two days’ medical leave was given.

On 15 July 2016, the victim was examined again. By this time, she had developed left ear tinnitus and dizziness with nausea. When her condition was reviewed on 30 September 2016, the eardrum perforation was marginally smaller than it was initially. A pure tone audiogram showed mild to moderate conductive hearing loss. On 6 December 2016, the victim underwent a left onlay tympanoplasty to close the eardrum perforation. However, she continued to suffer from mild conductive hearing loss in her left ear, together with persistent left sided tinnitus. Dr Ho Eu Chin (“Dr Ho”) stated that the only effective treatment available for these conditions would be a hearing aid.

Decision below

The Magistrate convicted the accused and found that he had caused the victim to sustain, amongst other injuries, a left anterior central tympanic membrane (or eardrum) perforation that was about 50% in size with mild conductive hearing loss (GD at [6]).

In reaching this conclusion, the Magistrate preferred the victim’s account. He found her evidence to be cogent, consistent, precise and corroborated in the material aspects by the medical evidence as well as the First Information Report (“FIR”). The Magistrate also set out a detailed description of the events captured by the CCTV footage at [12] of his GD, and concluded that the victim’s evidence was substantially consistent with the CCTV footage, even if some ancillary and non-material details might have been forgotten over time (GD at [41]–[42]). This substantial consistency was demonstrated by the Magistrate’s comparison of the accounts of the victim, the accused and the CCTV footage at [44] of the GD.

On the other hand, the Magistrate found that the accused had given the impression of an intense struggle with an overpowering victim, which was “bereft of particularity and precision”, and also grossly understated his hostility towards the victim (GD at [43]). The accused’s acts of grabbing the victim’s neck on two separate occasions and swinging his right hand towards the victim’s face was at odds with his purported desire to “talk things through nicely”.

The Magistrate further found that the justifications of private defence and necessity (referred to as “good faith”) did not apply in the present case, for reasons set out at [52] to [57] of his GD, and discussed in more detail from [47] below.

The appeal against conviction The accused’s submissions

The accused submitted that the Magistrate erred in his assessment of the victim’s credibility. The accused argued that the victim’s evidence was not cogent and was internally and externally inconsistent.

The alleged internal inconsistencies were broadly that: The victim’s evidence as to where the slap had landed was inconsistent with the original charge (D1), which stated that the accused had slapped the victim’s face, without any mention of her ear or the grabbing of her neck. The victim was inconsistent as to when she had pointed to the accused and raised her voice at him for making things difficult for her: during Examination-in-Chief, she said she did so when she came out of the office, before reaching the pool table, but later said she did so after throwing the pool balls. While the victim testified that she was certain she had used her right hand to point at the accused, she later said she could not recall whether or not she had pointed at him when she was confronted with the CCTV footage. The victim had claimed that she had “no strength to resist” the accused. She also initially denied she had pushed the accused, but later had to accept that she did so when confronted with the CCTV footage. The victim initially claimed that the accused “swung” her, causing her to fall, then that he pushed her down, before finally admitting she had fallen on her own.

The alleged external inconsistencies were that: The First Information Report (“FIR”) did not corroborate the victim’s account. The Prosecution did not clarify with the victim who the “boss” referred to therein was or what the victim had meant by “hit”. Further, the alleged grabbing of her neck was not mentioned in the FIR or in any of the medical reports. The victim’s testimony that the pool balls she had thrown merely landed on the floor was inconsistent with the testimony of the Investigating Officer (“IO”) that a stern warning had been administered for a s 337(a) Penal Code offence. Further, the IO’s evidence was that the victim admitted to having been heavily intoxicated, which the victim denied having told him. The accused made six points in respect of the CCTV footage. First, the victim’s suggestion that she had thrown the pool ball at the accused because he “kept chasing [her] around” was not corroborated by the footage. Second, the Prosecution’s case that the offending acts occurred during the two second “freeze” in the footage was a convenient coincidence that cast serious doubt. Third, the victim’s claim that she had no strength to resist the accused was inconsistent with the footage. Fourth, the victim’s evidence that the pool balls she had thrown...