Pannirselvam s/o Anthonisamy v Public Prosecutor

• Judgment Date: 02 February 2005
• Date: 02 February 2005
• Docket Number: Magistrate's Appeal No 93 of 2004
• Court: High Court (Singapore)

Pannirselvam s/o Anthonisamy

Plaintiff

and

Public Prosecutor

Defendant

[2005] SGHC 26

Yong Pung How CJ

Magistrate's Appeal No 93 of 2004

High Court

Criminal Law–Offences–Public tranquillity–Rioting–Consideration of combination of direct and circumstantial evidence to establish accused sharing in common object of assembly–Section 146 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Principles–Whether specific conduct of rioter relevant to his sentencing–Whether accused entitled to discount in sentence if not active participant in physical assault–Section 147 Penal Code (Cap 224, 1985 Rev Ed)

The appellant was convicted on a charge of rioting and sentenced to 36 months' imprisonment and six strokes of the cane. A fight had broken out at a nightclub. More than ten persons were involved and one Silvakumar Kumar (“Silva”) was badly hurt in the brawl.

The Prosecution had argued that the appellant and two other bouncers at the club planned and carried out the attack on Silva. It was the Prosecution's case that one of the other bouncers had initiated the fight, following which the rest of the assailants, including the appellant, had joined in the fight and attacked Silva and his friends at the dance floor area of the club. When the police arrived at the scene, the appellant pushed Silva to the pool room where Silva was set upon once more. Further, the Prosecution argued that the appellant's guilt was evinced by his behaviour after the incident, as he stopped coming to work at the club and did not surrender himself to the police until two months after the riot.

The appellant denied the charges against him. He alleged that Silva had framed him for the assault because Silva bore a grudge against him. He claimed that he had brought Silva to the pool room to remove him from harm's way, and that Silva was punched twice in the pool room by someone Silva had sworn at.

The appellant further claimed that he had stopped working at the club four days after the riot because he no longer felt like working there. He admitted that he found out that the police were looking for him four days after the incident but did not surrender to the police for another two months because he had wanted to consult a lawyer and raise money for bail.

The appellant appealed against conviction, claiming that the trial judge had erred in (a) finding that Silva was a credible witness; (b) doubting the appellant's credibility; (c) believing the prosecution witnesses but doubting the defence witnesses; and (d) finding that the appellant's conduct after the riot was indicative of his guilt. He also appealed against sentence, pleading that he was only accused of having aimed one kick at Silva.

Held, dismissing the appeals against conviction and sentence:

(1) There was no reason to overturn the judge's finding regarding Silva's credibility. Apart from the fact that any inconsistencies in Silva's evidence were minor, case law established that even if his testimony contained major inconsistencies, the trial judge did not have to reject his testimony in its entirety, but was entitled to accept his evidence on the key facts in issue: at [44].

(2) There was no profit in attempting to dissect witness testimony relating to the appellant's motive in bringing Silva from the dance floor to the pool room since the witnesses were unable to give any conclusive testimony in this regard: at [45] to [47].

(3) Crucially, the appellant's story unravelled from the point where he allegedly helped Silva into the pool room for his safety. The appellant presented the court with a sanitised version of events which was glaringly inconsistent with eyewitness accounts of what had occurred in the pool room. Notably, two eyewitnesses were police officers with no reason to fabricate their testimony. As such, there was ample reason for the trial judge to find that the appellant was not a credible witness: at [47], [48]and [51].

(4) Counsel for the appellant failed to persuade the court that the trial judge had clearly reached the wrong conclusion in finding that the defence witnesses were interested witnesses. A scrutiny of the evidence showed that the judge had sufficient reason to doubt their credibility. In any case, most of the evidence given by these witnesses was not particularly material to the outcome of the case: at [52] and [61].

(5) The courts traditionally took a fairly cautious approach to drawing conclusions about an accused's guilt based on his conduct subsequent to an offence. Such conduct, without more, was not conclusive of prior guilt. Nevertheless, certain types of subsequent conduct could not be easily explained away. The appellant's very lengthy delay before going to the police attracted a strong inference of guilt, especially given the fact that he resigned from his job on the very same day that he knew that the police were looking for him: at [63] and [64].

(6) The basic approach taken by the courts was that an accused convicted on a rioting charge would not be sentenced for his individual acts considered in isolation since it was the very fact that his acts were not committed in isolation that constituted the gravity of the offence. The courts have not hesitated to mete out heavy sentences even to rioters who have refrained from joining in the physical assault on the victim, so long as they had shared in the common object of the unlawful assembly. The sentence meted out to the appellant was justified in light of the various aggravating factors, most significantly, the appellant's abuse of his position of authority in the club: at [72] and [74].

Chandrasekaran v PP [1971] 1 MLJ 153 (distd)

Khua Kian Keong v PP [2003] 4 SLR (R) 526; [2003] 4 SLR 526 (folld)

Kwan Peng Hong v PP [2000] 2 SLR (R) 824; [2000] 4 SLR 96 (folld)

Lai Oei Mui Jenny v PP [1993] 2 SLR (R) 406; [1993] 3 SLR 305 (folld)

Lewis Christine v PP [2001] 2 SLR (R) 131; [2001] 3 SLR 165 (folld)

Lim Thian Hor v PP [1996] 1 SLR (R) 758; [1996] 2 SLR 258 (folld)

Phua Song Hua v PP [2004] SGHC 33 (folld)

PP v Azman bin Abdullah [1998] 2 SLR (R) 351; [1998] 2 SLR 704 (folld)

PP v Diki Zulkarnaini bin SainiDistrict Arrest Case Nos 57026 of 2000, 289 of 2001 and 5608 of 2001 (folld)

PP v Poh Oh Sim [1990] 2 SLR (R) 408; [1990] SLR 1047 (folld)

R v Roderick Alexander Ferguson Caird (1970) 54 Cr App R 499 (folld)

Rajasekaran s/o Armuthelingam v PP [2001] SGDC 175 (refd)

Ramli bin Daud v PP [1996] 2 SLR (R) 911; [1996] 3 SLR 225 (folld)

Tan Koon Swan v PP [1985-1986] SLR (R) 976; [1986] SLR 126 (folld)

Yap Giau Beng Terence v PP [1998] 2 SLR (R) 855; [1998] 3 SLR 656 (folld)

Penal Code (Cap 224,1985Rev Ed)ss 146, 147 (consd);ss 141,143, 323

Rakesh Vasu and Winnifred Gomez (Gomez & Vasu) for the appellant

Low Cheong Yeow (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 The appellant was convicted on a charge of rioting and sentenced to 36 months' imprisonment and six strokes of the cane: see PP v Sangarapandian s/o Madasamy [2004] SGDC 210. Having dismissed his appeal against conviction and sentence, I now set out my reasons.

The undisputed facts

2 Some time after 3.00am on 30 January 2004, a fight broke out at the Club VIP located in Clarke Quay. The brawl involved more than ten persons, and resulted in injuries to five of the club's patrons. The initial target of the fight was one Silvakumar Kumar (“Silva”). Silva was badly hurt. In addition to injuries to his left eye, he sustained lacerations on his face, scalp and neck which have resulted in permanent scarring.

3 The appellant was working as a bouncer at Club VIP on the night of the fight. He entered a plea of not guilty in response to the charge brought against him, which was framed as follows:

DAC 16948/2004

You, Pannirselvam s/o Anthonisamy, M/36 years old, are charged that you on the 30th day of January 2004 at about 3.10am, at Club VIP, Clarke Quay, Singapore, together with Visvaganesan s/o Subramaniam, Sangarapandian s/o Mandasamy and 10 other unknown male persons, were members of an unlawful assembly whose common object was to voluntarily cause hurt to one Silvakumar Kumar, Jasuwah s/o Thevapragasam, Suman s/o Sudhagar, Danieswaran s/o Parumal, Vijayan s/o Muthan, and in the prosecution of this common object of the said assembly, violence was used by one or more of you, and you have thereby committed an offence punishable under Section 147 of the Penal Code, Chapter 224.

4 His co-accused in the court below, Sangarapandian s/o Mandasamy (“Sangarapandian”), was similarly charged under s 147 of the Penal Code (Cap 224, 1985 Rev Ed) and sentenced to a term of 14 years' preventive detention and five strokes of the cane. Sangarapandian did not appeal against his sentence.

Disputed facts

5 This was a factually complicated case, with the prosecution and defence presenting contradictory versions of the events which took place in Club VIP on the night of the riot. It therefore behoves me to go through both accounts of the events in some detail before dealing with the appeal proper.

Case for the Prosecution

6 Ten witnesses testified for the Prosecution. They consisted of Silva, five police officers who were at Club VIP either during or after the incident, and four of Silva's friends who had accompanied him to the club on the night of the incident.

7 Silva's four friends who were present on the night of the riot were Jasuwah, Vijayan, Danieswaran and Suman. Prior to arriving at Club VIP, Silva and his friends had gathered at a 7-Eleven outlet near Clarke Quay, where some of them imbibed beer. At about midnight, they proceeded to Club VIP and seated themselves in the VIP section of the club, where they ordered and consumed one and a half bottles of Jack Daniels whisky. They testified that no one joined them at their table during this time and nothing untoward occurred.

8 Around 3.00am when the club was...