Osman bin Ramli v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date02 September 2002
Neutral Citation[2002] SGHC 203
Citation[2002] SGHC 203
Defendant CounselG Kannan (Deputy Public Prosecutor)
Published date19 September 2003
Plaintiff CounselSyed Ahmad bin Alwee Alsree (Billy & Alsree)
Date02 September 2002
Docket NumberMagistrate's Appeal No 104 of 2002
CourtHigh Court (Singapore)
Subject MatterIdentification of appellant by only one of four victims of assault,Witness only a minor,ss 141(c), 142, 146 & 147 Penal Code (Cap 224),Whether credibility impeached,Evidence,Whether mere passive presence sufficient to constitute membership of unlawful assembly,Credibility of witnesses,Application of guidelines in Heng Aik Ren Thomas v PP,Weight of evidence,Proof of evidence,Discrepancies in witnesses' testimonies,Weight of identification evidence,Criminal Law,Whether trial judge can convict appellant solely on testimony of minor,Admissibility of evidence,Identification of accused,Membership of unlawful assembly,Corroboration,Whether identification of appellant wrong,Whether discrepancies material,Offences

Judgment

GROUNDS OF DECISION

The Charge

The appellant was charged that he, together with nine others, on or about 2 September 2001, at about 4.00 am at barbecue pit ‘O’, Pasir Ris Park, were members of an unlawful assembly whose common object was to cause hurt to the following four persons:

Syaiful Ridhuan Bin Wahid (‘Syaiful’), 17 year old male,

Mohamed Ridzuan Bin Abdul Talib (‘Ridzuan’), 16 year old male,

Toh Sunny Bin Faud (‘Sunny’), 17 year old male and

Muhammad Nursamfauzie Bin Samat (‘Fauzie’), 16 year old male

,

and in prosecution of the common object of such assembly, violence was used and he had thereby committed the offence of rioting under s 146 of the Penal Code, Cap 224, ("PC"). Under s 147, the offender shall be punished with imprisonment for a term which may extend to five years and shall also be liable to caning.

2 The appellant was jointly tried with the following persons who were within the same unlawful assembly, namely, Mohamed Noor Bin Abdul Rahman (‘Mohd Noor’), Zulkeplee Bin Abdullah (‘Zulkeplee’), Mohd Hardian Bin Mohd Yassin (‘Mohd Hardian’). At the end of the trial, the appellant was convicted and sentenced to 30 months’ imprisonment and six strokes of the cane. The appellant appealed only against conviction and not against sentence.

3 I heard his appeal on 13 August 2002 and dismissed it. I now give my reasons.

Background facts

(a) The birthday party and the fight

4 On 1 September 2001, Siti Noraini Bte Abdul Jalil invited several of her friends, including the four victims in the present case, to her birthday party at barbecue pit ‘N’, Pasir Ris Park. A lamppost illuminated each barbecue pit.

5 The four victims arrived at the above-mentioned pit at about 9.00 pm. At about 11.00 pm, they proceeded to a neighbouring pit, pit ‘O’, to play cards. Pit ‘N’ and pit ‘O’ are about ten metres apart.

6 At about 3.00 am, while playing cards at pit ‘O’, the victims noticed a group of about 15-20 male Malays walking briskly towards them. Ridzuan gave evidence that the appellant was part of the group and that he was holding a belt in his hand. As the group approached, Sunny stood up to ascertain what they wanted. According to the prosecution witnesses, Mohd Noor confronted Sunny and asked him which secret society he belonged to. Sunny denied any such involvement rudely after Mohd Noor asked him the same question repeatedly. Thereupon, Mohd Noor threw a bottle to the ground smashing it. Mohd Hardian then rushed forward and punched Sunny on the left jaw. Mohd Noor pushed Sunny and Zulkeplee punched Sunny on the forehead.

7 A fight broke out and the remaining members of the group attacked the four victims by punching and kicking them. During his examination-in-chief, Ridzuan testified that the appellant had hit him on the back and on the chest with a leather belt.

(b) The arrest

8 The victims eventually managed to break away from their assailants and called the police. At about 4.12 am, Sergeant Mazli, of Bedok Police Division, arrived at the scene. Sergeant Mazli questioned the victims and upon being informed that the assailants were wearing dark clothes and had fled in a blue lorry, informed his Operations Room of what he had learned and instructions were issued to look out for a group of Malay persons in a blue lorry.

9 At about 5.00 am, a blue lorry was spotted at Pasir Ris Drive 6, in front of Block 442. There were 15 male and 5 female persons inside the lorry. Corporal Patrick Lim stopped the lorry and detained the group. The appellant was among those detained.

10 Sergeant Mazli, upon being informed of the detention, drove the four victims to the lorry and told them to identify members of the group who assaulted them. During the identification process, the victims remained in the police car. Both Sunny and Ridzuan identified Mohd Noor. Syaiful pointed out Mohd Noor and Mohd Hardian. According to Ridzuan, he did not identify the appellant then because he could not see the appellant’s face clearly from the police car.

(c) The medical examination

11 At about 5.59 am the same morning, the victims were medically examined by Dr Wang Shi Tah (‘Dr Wang’) at the Changi General Hospital. Ridzuan, upon cross-examination, insisted that he did tell Dr Wang that someone had assaulted him with a belt. However, Dr Wang’s medical report on Ridzuan indicated that "no weapons were used".

(d) The identification parade

12 Later on the same day between 1.00 pm and 1.30 pm at Bedok Police Station, an identification parade of 15 male Malays was conducted for the four victims. It was not disputed that the identification parade was properly conducted. During the parade, all four victims identified Mohd Noor. Sunny also identified both Zulkeplee and Mohd Hardian. Only Ridzuan identified the appellant. The victims were not specifically asked what roles the identified persons had played in the group.

The prosecution’s case

13 The prosecution’s case relied entirely on Ridzuan’s identification of the appellant. None of the other prosecution witnesses identified the appellant as part of the group. Ridzuan testified as follows:

(i) The appellant was part of the group that approached the victims and was holding a belt in his hand.

(ii) Further, the appellant remained in the group when Mohd Noor confronted Sunny and when Mohd Hardian punched Sunny on the jaw.

(iii) Once the fight began, the appellant hit Ridzuan first on the back, and then on the chest, with his belt.

14 Based on Ridzuan’s testimony, the prosecution submitted that on 2 September 2002 the appellant had been a member of an unlawful assembly with the common object of causing hurt to the victims under s 141(c) of the PC. Since force or violence was used by the assembly or by any member thereof in prosecution of their common object, the appellant was guilty of the offence of rioting, as provided for under s 146 of the PC.

The defence

15 The appellant’s defence was that he never took part in the riot and was mistakenly identified by Ridzuan as being part of the group assaulting the victims that night. The appellant testified as follows: he had spent that evening in a pub at Boat Quay, together with his wife, Ridiawati Bte Mohd Reduan (‘Ridiawati’), at a party celebrating the birthday of ‘Baby’, the wife of the third accused, Zulkeplee. The other three co-accused were also present at the party.

16 At about 3.00 am, the appellant and his wife left the party. They accepted one Abdul Faisal’s offer to take them home in his lorry. The second accused Mohd Noor, the third accused Zulkeplee and his wife ‘Baby’, the fourth accused Mohd Hardian and his wife, were also in the same lorry. Besides the persons named above, there were also other persons in the lorry.

17 The group decided to detour to Pasir Ris Park where Abdul Faisal parked the lorry at car park ‘E’, Pasir Ris Park. As ‘Baby’ wanted to vomit at that time, Ridiawati, Zulkeplee, the appellant and ‘two other couples’ took ‘Baby’ to a toilet located beside the car park. When they reached the toilet, all the ladies used the toilet first, leaving ‘Baby’ seated outside on a bench. Zulkeplee, the appellant and two other male persons attended to her. The ladies came out and took ‘Baby’ into the toilet. The appellant and the others then used the toilet.

18 About ten minutes later, the appellant stated that he saw a group of Malay males running towards the car park. Someone shouted for everyone to board the lorry. The appellant and the others who were with him previously at the toilet complied. Abdul Faisal then drove off. Subsequently, a police car stopped the lorry and everyone onboard was taken to the police station.

19 Hence, the main plank of the appellant’s defence was that he had been at the toilet attending to ‘Baby’ when the incidents took place. He had not been part of the group which approached and assaulted the victims. The testimonies of the appellant’s wife (Ridiawati) and two of the co-accused (Zulkeplee and Mohd Hardian) supported this version of events.

The decision below

20 The trial judge disbelieved the appellant’s testimony that he was at the toilet when the incidents took place for two main reasons. First, there were material discrepancies between the appellant’s statement recorded under s 122(6) of the Criminal Procedure Code ("CPC’) and his long statement recorded under s 121 of the CPC. In the appellant’s s 122(6) statement, he stated that he had been at the lorry; while in his long statement, he stated that he had accompanied his wife to the toilet.

21 Secondly, the testimonies of the defence witnesses were not credible. Ridiawati, being the appellant’s wife, was an interested witness. Zulkeplee and Mohd Hardian, being jointly tried as co-accused, also stood to gain by a unified defence of an alibi, namely, that they were not present during the riot but were at the toilet attending to ‘Baby’ at that time. In any case, Mohd Hardian’s evidence was also full of inconsistencies. In one police statement, he stated that he never saw the fight. However, he testified subsequently in court that he had gone to the scene and tried to stop the fight after Mohd Noor shouted for him. Lastly, Sunny, as a prosecution witness, had also identified Mohd Hardian and Zulkeplee as being part of the group which approached the victims, thus bringing into question the veracity of their evidence that the appellant had been with them at the toilet. Sunny’s evidence here was entitled to significant weight because he had a special reason to remember Mohd Hardian and Zulkeplee, they being the ones who punched him on the left jaw and forehead.

22 The trial judge further accepted Ridzuan’s testimony that the appellant was part of the group. However, given that Ridzuan had upon cross-examination admitted that he could not see clearly the person who had assaulted him with a belt, it might be that the assailant was not the appellant. Nevertheless, he held that the appellant’s...

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    • Singapore
    • Singapore Academy of Law Annual Review No. 2002, December 2002
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