Mohamed Abdullah s/o Abdul Razak v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date03 May 2000
Neutral Citation[2000] SGHC 77
Docket NumberMagistrate's Appeal No 211 of 1999
Date03 May 2000
Published date19 September 2003
Plaintiff CounselRudy Gunaratnam (Rudy & Partners)
Citation[2000] SGHC 77
Defendant CounselLee Lit Cheng (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterHuman fallibility in observation and recollection of events,Evidence,Previous inconsistent statements,Witnesses,Effect of presumption,Distinction between common object and common intention,ss 146, 148 Penal Code (Cap 224),Failure of defendant to call material witnesses,Members of unlawful assembly armed with deadly weapons,Whether adverse presumption should be drawn against defendant,"Common object",Whether sufficient evidence to establish charge,Offences,Whether discrepancies sufficient to destroy credibility of witness,Criminal Law,s 116 (g) Evidence Act (Cap 97),"Common intention",Unlawful assembly,ss 141, 146 Penal Code (Cap 224)

: Introduction

In the proceedings below, the appellant was charged, with one other, under ss 146 and 148 of the Penal Code (Cap 224), for rioting and being a member of an unlawful assembly armed with deadly weapons.
He was found guilty of the charge by the district judge and received a sentence of two years` imprisonment and six strokes of the cane. I dismissed his appeal against conviction and sentence. I now set forth my reasons.

The undisputed facts

The incident for which the appellant was charged occurred in the early hours of 14 January 1999. On that morning, the police received a 999 call from the public at about 1.08am. This first information report (`FIR`) stated:

About ten men are fighting - using parangs (Line disconnected).

The incident had taken place in the back alley of a shop, called `Abdullah & Sons`, at Blk 3, Geylang Serai.
Two police officers responded to the 999 call. When they arrived at the scene at around 1.25am, they were met by three people in the back alley, namely, Amjad Ali (`Amjad`), Mohamed Naushad Ali (`Naushad`), and their father Abdullah s/o Gulabdin (`PW5`). The two brothers, Amjad and Naushad, had sustained some injuries. One of the police officers, PW9, spoke briefly to one of the brothers, and then conducted a search of the back alley. He found a broken bottle neck under one of the tables in the back alley. He also found a few small fragments of glass and a few fresh drops of blood on the floor. He left the scene at about 1.40am. At about 2am, another police officer, PW7, arrived at the scene. He searched and checked the back alley, and discovered the broken bottle neck under the table.

After carrying out investigations, the police arrested one Mohamed Rizuan bin Abdul Aziz (`DW1`).
Some days after DW1`s arrest, the appellant turned up on his own accord at Geylang Police Station, whereupon he was immediately detained and put in the lock up. Subsequently, charges were brought against both the appellant and DW1 for rioting and being members of an unlawful assembly armed with deadly weapons. The charge against the appellant read as follows:

You, ... Mohamed Abdullah s/o Abdul Razak ... are charged that you, together with one Mohammad Rizuan bin Abdul Aziz and five other persons on 14 January 1999 at or about 1.08am, at Blk 3 Geylang Serai, Singapore, were members of an unlawful assembly, armed with deadly weapons, to wit, broken bottles and parang, your common object was to cause hurt to one Amjad Ali s/o Abdullah and one Mohd Naushad Ali s/o Abdullah, and in prosecution of the common object of such assembly, you or a member thereof caused hurt to the said Amjad Ali s/o Abdullah and Mohd Naushad Ali s/o Abdullah and you have thereby by virtue of s 146 of the Penal Code committed an offence punishable under s 148 of the aforesaid code (Cap 224).

The prosecution`s case

The key witnesses for the prosecution were the two brothers, Amjad and Naushad. They alleged that at about 1am on 14 January 1999, they were assaulted by a group of about seven to ten Malay men, in the back alley behind their father`s shop house at Blk 3 Geylang Serai. The appellant and DW1 were part of that group of assailants. At least two of the assailants were armed with broken beer bottles and another one had a parang.

The incident occurred during the Muslim fasting month of Ramadan.
Amjad and Naushad`s father, PW5, had rented the space in the back alley of his shop to sell his goods as part of the Ramadan bazaar being held in the area. Each night, when the shop was closed, the goods which were displayed at the stall in the back alley would be covered by canvas, and one of the brothers would sleep on the tables in the back alley to guard the goods. Naushad testified that sometime in the late hours of 13 January 1999, he had closed the stall, swept the back alley, and then gone upstairs to take a shower. After his shower, it was close to 1am, and he went downstairs to the back alley to wait for Amjad, who was taking a shower after him. At that time, his father was asleep on the second storey of the shop house. When he went out to the back alley, he saw the appellant and two other Malay men seated on one of the tables in the back alley. He recognised the appellant, as he had seen him on several occasions in the past month, hanging out with a group of people at a coffee shop around the corner (`the coffee shop`). Naushad said he then went to sit on the table opposite the three men. He was waiting for Amjad to come down, to decide who would sleep outside for that night. He was also waiting for the three Malay men to leave on their own accord. After a few minutes, he was joined by Amjad.

Amjad testified that when he went out to the back alley to join Naushad, he also saw the three men chit-chatting and sitting on a table in the back alley.
Like Naushad, he recognised one of the three men as the appellant. He had seen all three men before at the coffee shop, but he did not know any of their names at that time. After talking to each other for a short while, Naushad approached the three men and asked them to leave, and informed them that he wanted to lay something out on the table, and to sleep there. Naushad claimed that he spoke in a polite and quiet tone. However, the three Malay men became aggressive, and started swearing and uttering vulgarities in Malay. One of them spoke roughly and loudly, saying in Malay: `Is this your father`s place or what?` Another one of them challenged Naushad to a fight. At this point, Naushad stepped back, but the three men grabbed him and started dragging him towards the car park outside the back alley. One of the men pulled him by his shirt and one hand, the second man pulled him by his shirt and the other hand, and the third man pulled him by the back of his shirt.

Amjad testified that when he saw the three men grab his brother, he rushed to his brother`s aid.
When the appellant saw Amjad rushing towards them, he let go of Naushad and went towards Amjad. Around this time, Amjad saw another three Malays arrive at the entrance of the back alley. One of these men was DW1. These three Malays went to the aid of the appellant, and together, the four of them proceeded to assault Amjad with their fists. In the midst of this, DW1 ran off for a short while, and came back with a beer bottle. Amjad saw DW1 breaking the beer bottle against one of metal poles at the entrance of the back alley, and then charging towards him holding the neck of the broken bottle. He managed to dodge DW1`s blow, but one of the other assailants then hit him on the left part of his neck with a broken beer bottle. At this point, he fell backwards, twisting his right ankle as he fell. At the same time, he heard the sound of glass falling to the floor near him. Suddenly someone shouted `Police`, and the men ran away. Thereupon, Amjad got up, went to the metal poles at the entrance of the back alley, and saw about nine to ten male Malays running away. One of them was carrying a parang. They were shouting `Sar Kong Sar` (translated from Hokkien: `three zero three`). All this happened within the space of about four to five minutes. After the assailants had run off, Amjad went into the shop and called the police. He was the one who lodged the FIR.

Meanwhile, Naushad was struggling with his other two assailants.
They dragged him to the car park, whereupon he managed to break free. When he turned around to run back towards the back alley, he saw three persons beating Amjad up in the back alley. Before Naushad could get to the back alley, his two original assailants were joined by two other persons and these four men came towards him. One of them was carrying a broken bottle and another carried a parang. When Naushad saw this, he quickly squatted down and shielded his face with his arms. The four persons proceeded to punch and kick him, shouting vulgarities in Malay. He felt an extreme pain in his left elbow, and he also recalled someone shouting `police`. After the shouting, he felt one or two of the four assailants continue to beat him, then he pushed one of them away and ran into the back alley. He passed Amjad, who was standing alone in the back alley at that time. He hid himself in a corner at the end of the alley. When all was quiet, he emerged from his hiding place and went to the shop. Amjad was inside the shop, and told him that he had called the police. Their father was also standing inside the shop, and he gave Naushad a cloth for his bleeding elbow.

Amjad and Naushad`s father, PW5, testified that he had closed the shop at the usual time on the night of 13 January 1999 at around 11pm.
Around the time of the incident, he was sleeping on the second floor of his shop. He heard some commotion outside, but he did not get up at first because he thought it was the normal sound of the thoroughfare outside. Subsequently, he heard the sound of bottles breaking close by, and he quickly got up and went downstairs. He saw his son Amjad bleeding from the left side of his neck, and his other son Naushad bleeding from his hands. He quickly went out of his shop, to the entrance of the back alley, and he saw about eight to nine men a short distance off running away in the same direction.

PW4, who worked in a mosque located near the scene of the incident, was also called as a witness for the prosecution.
At the time of the incident, PW4 had a temporary stall selling drinks and food opposite Blk 3 Geylang Serai. He was acquainted with Amjad, Naushad and PW5, but he was not close to them. Apparently, they only spoke to each other during the Ramadan month when they sold things at their respective stalls. PW4 testified that on the night of the incident, he was closing his stall, when he heard some shouting coming from Blk 3. The shouting was in Malay, and it was a challenge for a fight. He was on a ladder behind his stall and he could not see what was happening. He climbed down from the...

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