Mohammed Zairi Bin Mohamad Mohtar and Another v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 08 February 2002
• Neutral Citation: [2002] SGHC 23
• Citation: [2002] SGHC 23
• Defendant Counsel: Peter Koy (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Alagappan Arunasalam (A Alagappan & Co)
• Date: 08 February 2002
• Docket Number: Magistrate's Appeal No 207 of 2001
• Court: High Court (Singapore)
• Subject Matter: Policy considerations,Criminal Procedure and Sentencing,Witnesses,Prison officers assaulting defenceless prisoner,Admissibility of evidence,Whether court can reject one part of evidence and accept the other,Offences,Serious aggravating factors,Sentencing,Evidence,s 323 read with s 34 Penal Code (Cap 224),Voluntarily causing hurt,Whether legal presumption that witness having criminal antecedents unworthy of credit exists,Police brutality,Prison officers assaulting prisoner in course of duty,Impeachment of credit,Inconsistencies in testimony and police statements,Conflicting evidence,Whether inconsistencies serious and contradictions material,Need for deterrence,Criminal Law,Relevant considerations in determining whether credit impeached

Judgment

GROUNDS OF DECISION

Introduction

The two appellants, Mohammed Zairi Bin Mohamad Mohtar (‘Zairi’) and La Ode Indra Karnain Bin Jomain (‘Indra’) were charged, together with two other persons, Subramanian s/o Annamalai (‘Subra’) and Mohammed Ali Bin Elias (‘Ali’), before Mr Gilbert Low in the magistrate’s court of voluntarily causing hurt to one John s/o Vettamooto (‘John’). All four accused persons were junior officers of the Singapore Prison Emergency Action Response (‘SPEAR’) force trained in riot control, suppression of illegal activities and the escorting of high-risk prisoners. The charges against the two appellants read as follows:

You,…

Are charged that you on or about the 13^th day of January 2000, between 6.30 pm to 6.45 pm, at the toilet of Ward 34, Changi General Hospital, Singapore, and in furtherance of the common intention of you all did voluntarily cause (sic) hurt to one John s/o Vettamooto, to wit, by fisting on this face, and you have thereby committed an offence punishable under section 323 read with Section 34 of the Penal Code, Chapter 224.

Both appellants were sentenced to nine months’ imprisonment and appealed against both conviction and sentence. I dismissed the appeal and now give my reasons.

The facts

2 The complainant, John, was an inmate who had been convicted and detained at Jalan Awan Prison for drug possession. On 9 January 2000, he was admitted to Changi General Hospital suffering from severe asthma attacks. His condition was apparently so bad that he required intubation and mechanical ventilation and was warded at the Intensive Care Unit for several days. On 11 January 2000, he was extubated and then transferred to the prison ward in the hospital (ward 34) where he occupied bed no.8. At that time, the ward was guarded around the clock by the SPEAR force. The guards were divided into three shifts; the morning shift from 8 am to 3 pm, the afternoon shift from 3 pm to 10 pm and the night shift from 10 pm until the next day. On 13 January 2000, the second appellant Indra was on the morning shift together with Ali while the first appellant Zairi was to take over in the afternoon together with Subra. However, the shift change only took place at about 6.20 pm that day because Indra and Subra had to undergo training which ended late.

3 It was undisputed that John was involved in an argument with one George s/o Chinnakannu (Cpl George) on 12 January 2000. John took offence over the latter using the word "Dei" on him, which he considered derogatory and told Cpl George to call him by his name and not ‘dei, dei’. Other than this incident, there was no other trouble between John and the guards during the morning shift on 13 January 2000. It was from this point on that the prosecution’s version of facts differed from that of the defence.

The Prosecution’s version of facts

4 According to John, trouble began when Subra and the first appellant Zairi commenced duty at 6.20 pm when he was eating his dinner. Subra came to the entrance of the ward and shouted to him, asking whether his name was John to which John replied in the affirmative. Subra then told John "you eat first, later you know" and returned to the guardroom. Once John finished his dinner, all four guards, Subra, Zairi, Ali and Indra entered the ward even though John had not called out for them. Subra was holding a pair of handcuffs and he uncuffed the leg-cuffs of John and told him to get out of the bed before fastening one end of the handcuffs on his left hand. The other end was held by Subra. Subra then led John into the toilet while the other three guards followed behind.

5 In the toilet, Subra handcuffed John’s left hand to the left railing of the toilet before cuffing John’s right hand to the same railing with a long cuff such that John was now bent over the toilet bowl. Subra then asked John what he wanted now, to which John replied by asking if it was wrong to ask someone to call him by his name. Subra then punched John on his left jaw. Zairi delivered a second punch. John testified that Ali and Indra also joined in to punch him. This first assault lasted for several seconds until John tried to get up and ask Subra why he had tied him and hit him. In reply, Subra only started to punch him in earnest. This was the second assault. A punch landed on the left side of John’s mouth causing one of his teeth to break and an other to be dislodged. John was enraged and attempted to fight back but Subra held onto his right handcuff and Zairi and Indra then punched and kicked him. Ali who was behind shouted "don’t see" to one of the other prisoners who was lying on one of the beds near the entrance of the toilet. The entire sequence of events lasted for about four minutes before the four guards left John in the toilet shouting for help. Subsequently, Zairi, Ali and Indra returned and tried to force John to bath and to change into fresh clothes. John resisted and refused to do so until he had seen the doctor. The four guards finally left him alone in the toilet. They returned about 15 to 16 minutes later to bring him back to his bed. When they returned, Subra unlocked the handcuffs and asked John "How now?" to which John replied that he would see him in court for this.

6 At about 7 pm, Staff Nurse Grace Annie Vijayarani Stephens (‘Staff Nurse Grace’) entered the ward to give the patients their normal medication. None of the SPEAR force had informed her that John had been injured. She only heard John shouting for the nurse when she was entering the ward. She saw that John was bleeding at the mouth and nose. John said that he had been assaulted but he did not mention any names. Before entering the ward, Staff Nurse Grace said that she had asked Subra what had happened to John and the latter had replied that an inmate had suddenly turned violent, and it had become necessary to subdue him. She called a doctor, Dr Loh Zhi Ming ("Dr. Loh’) to attend to John. According to Dr. Loh, John was very agitated and persistently wanted to make a police complaint regarding the assault. He also complained of pains and tenderness on the left side of his body, the left side of his head below the ear, his eyes, nose, mouth, shoulders and back. Dr Loh subsequently tendered a medical report detailing the injuries that had been sustained by John. According to this report, John suffered a cephalo hematoma at the left mastoid region (swelling in the region behind the left ear), an uprooted left upper incisor with a blood clot in the socket, and a dislodged left upper incisor and mild tenderness over his lower cervical spine and both scapulas. A supplementary medical report was also tendered stating that the injuries sustained by John could have been caused by fists.

Prosecution witnesses’ version of facts

7 The two prosecution witnesses Zainali Bin Yahya (‘Zainali’) and Lim Chye Tze (‘Lim’) were prisoners warded together with John in ward 34 on 13 January 2000. Both Zainali and Lim testified that on the day in question, Subra had approached John at about dinnertime, even though John had not shouted or indicated that he wished to visit the toilet. Zainali said that Subra called out to John but, as John was still eating, Subra told him to continue eating and then left. Lim testified in largely similar terms that Subra had scolded John with Tamil vulgarities, asked John to finish his food quickly and then left. Both were also sure that, once John had finished his meal, the officers entered the ward and ‘forced’ him to go to the toilet. Subra had uncuffed John’s legs before handcuffing John’s hands behind him. Lim further said that he heard Subra rebuking John, "yesterday you were quite arrogant".

8 However, Lim and Zainali differed as to the identities of the persons who led John handcuffed to the toilet. Zainali testified that Subra and Zairi entered the toilet with John while Ali waited at the entrance and Indra only entered the ward to take a look before leaving the ward. Conversely, Lim said that it was Subra, Zairi and Indra who pulled John into the toilet, hitting him on the head as they were doing so. Both also testified to having heard ‘sounds of fighting’ emanating from the toilet before the officers left the ward leaving John alone in the toilet. Zainali described it as the sound of punches and something hitting the wall. Lim said he heard thumping sounds from the toilet together with John’s shouts for help. Lim also added that he heard John continue to shout for help and that, when the guards returned later to bring John back to his bed, John had blood on his body and blood oozing from his mouth with two or three teeth missing.

The Defence’s Case

9 The defence’s case was essentially one of denial that the alleged assault had ever taken place. All four officers testified that it was John who wanted to go to the toilet, however he suddenly turned violent in the toilet when Subra attempted to cuff his left hand to the toilet railing. This necessitated the use of Control and Restraint Techniques (‘C & R’) and the formation of a three-man C & R team to subdue him. Force was exerted in the process because John was struggling violently, hence resulting in his bodily injuries. Therefore they did not voluntarily cause hurt to John but were merely acting within the scope of their official duty as warranted by the circumstances.

Testimony of the first appellant Zairi

10 The first appellant Zairi testified that he was warned by Ali to keep an eye out for John in bed no. 8, as he was argumentative and rude to the officers. As part of the process of taking-over, Zairi said that he entered the ward to check on the prisoners and to ask each one of them for their personal particulars. He alleged that John simply stared at him without replying when he came to his bed. This incident was reported to Subra who then went to the door of the ward to speak to John in Tamil. Subsequently, Zairi said that he re-entered the ward...