PP v Chong Chee Boon Kenneth

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 23 July 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeals Nos 9754, 9755 and 9818 of 2020

Public Prosecutor

and

Chong Chee Boon Kenneth and other appeals

[2021] SGHC 182

See Kee Oon J

Magistrate's Appeals Nos 9754, 9755 and 9818 of 2020

General Division of the High Court

Criminal Law — Offences — Causing death by rash or negligent act — Commanders failing to stop ragging which led to death of victim — Whether chain of causation was broken — Test for causation — Novus actus interveniens — Section 338(a) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law — Offences — Causing death by rash or negligent act — Whether victim had consented to harm — Section 90 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Appeals — Objective extrinsic evidence inconsistent with lower court's finding of fact — Circumstances in which appellate court would interfere with lower court's finding of fact

Held, allowing the Prosecution's appeals and dismissing SWO Nazhan's appeal:

(1) The appellate court had a limited role in reviewing findings of fact made by the trial court. An appellate court was as competent as the trial court in drawing the necessary inferences of fact from the circumstances of the case. In this regard, the objective evidence found in the available video and audio recordings were highly material: at [31] and [32].

(2) While consent was not defined in positive terms in s 90 of the Penal Code, in the context of sexual offences, the courts had accepted the concept of consent as encompassing: an element of voluntary participation; agreement to submission while in free and unconstrainted possession of the person's physical and moral power to act in a power the person wanted; exercise of a free and untrammelled right to forbid or withhold what was being consented to; and voluntary and conscious acceptance of what was proposed to be done and concurred by the person at the receiving end: at [36] to [39].

(3) The essential elements which made up valid consent were fundamentally similar irrespective of whether the court was dealing with a sexual or non-sexual offence. These threshold requirements for consent to operate as a complete defence were as follows: (a) there had to be voluntary participation on the part of the “victim” after he/she had been able to appreciate the significance and the moral quality of the act proposed to be done; (b) there had to be some element of agreement as to what was proposed to be done to the “victim”, and the “victim” had to know the nature of the act proposed to be done and the reasonably foreseeable consequences of the act; and (c) there had to not be any fact which called into question whether consent was given voluntarily and in this regard, the presence of any of the vitiating factors found under s 90 of the Penal Code would be prima facie evidence of a lack of voluntariness: at [40].

(4) From the undisputed facts as well as the objective evidence, Cpl Kok was being mocked, teased and taunted relentlessly. Cpl Kok did not choose to go to the pump well on his own volition; he was manhandled and carried there by four persons. He was constantly surrounded by eight to ten other servicemen, including superior officers, who were pressuring him to enter the pump well and persistently goading him and egging him on. It was clear that the servicemen were intent on making sure Cpl Kok entered the pump well, and that he was not given any choice in the matter. Cpl Kok's entry into the pump well was inevitable: at [42] to [46].

(5) From the evidence, Cpl Kok was not a willing participant and had not given consent to the “kolam” activity. He pleaded with the servicemen three times to spare him. Viewing the chain of events holistically, it was completely implausible that Cpl Kok was a ready, willing and able participant. Cpl Kok was not exercising his own free will, and any purported consent on his part was vitiated. Each of the witnesses had a vested interest in downplaying their own roles, and none could testify as to what exactly was Cpl Kok's state of mind: at [47] to [51].

(6) Whether there was an express prohibition of “kolam” was immaterial in the face of a general prohibition against ragging. Both accused persons knew that the “kolam” was banned, as evidenced by their having instructed the servicemen not to film or post videos of the acts. Both accused persons were advertent to the risks associated with “kolam”: at [48] to [55].

(7) The “substantial cause” test for causation in criminal negligence was well accepted in Singapore. It examined whether the negligence of the accused contributed significantly or substantially to the result. The issues engaged in the present case did not necessitate the adoption of a different test of causation premised on foreseeability: at [58] to [61].

(8) The underlying inquiry involved in causation was whether there was a sufficient nexus between the negligent conduct and the damage to justify the attribution of responsibility to the actor. As such, the doctrine of novus actus interveniens (or other principles of civil negligence) or the test of foreseeability could be of practical guidance for the court's inquiry into the existence of a sufficient nexus between the negligent conduct and the harm caused: at [62] to [65].

(9) The evidence led to the compelling inference that both accused persons knew or ought to have known that it was virtually inevitable that Cpl Kok would have been thrown or pushed into the pump well. From the available objective evidence, like each and every one of the servicemen, both accused persons knew exactly what the “kolam” entailed, and it made no difference how Cpl Kok ended up inside the pump well. The chain of causation was not broken by the actions of the serviceman who pushed Cpl Kok into the pump well: at [66] to [72].

(10) In order to prove abetment by illegal omission, it had to be cumulatively shown that there was a legal obligation on the part of the accused person, an omission which was in breach of the legal obligation, and either guilty knowledge or conspiracy on the part of the accused person to allow the wrongful act(s) to occur: at [75].

(11) Both accused persons owed a duty of care to Cpl Kok, and had given a clear sanction for the “kolam” activity to continue despite the risks involved. By asking the servicemen not to film or post videos and not interfering with the “kolam” it could be reasonably inferred that both accused persons had intended for the “kolam” to continue. Both accused persons had guilty knowledge, and had omitted to interfere with the “kolam” despite the duty of care they owed to Cpl Kok to ensure his safety: at [76] to [80].

(12) In an inquiry into whether a criminal act was intentionally aided by the participation of an offender, presence at the scene of the criminal act was only one aspect of the evidence that could go towards supporting such a finding, and it was not a requirement per se: at [81] to [84].

(13) SWO Nazhan's defence that he could not countermand Lta Chong's endorsement of the “kolam” failed because there was no direct order to countermand. It would also not be an act of insubordination to countermand a wrong or unlawful order which might endanger a person: at [86].

(14) Both accused persons had full knowledge of the servicemen's intent and expected outcome. Their conscious and deliberate inaction was a clear sanction for the servicemen to carry on with the “kolam” activity. There was advertence to the obvious risks involved, and by choosing to ignore those risks or trivialising the possible dangers, their illegal omissions constituted rashness under s 338(a) of the Penal Code: at [87] to [89].

(15) From the totality of the evidence, the charges under s 338(a) of the Penal Code were proved beyond reasonable doubt. The Prosecution's appeals against the acquittals on the original s 338(a) charges were allowed, and SWO Nazhan's appeal was dismissed: at [94].

(16) Where the accused person had completed serving his sentence, the appellate courts had generally exercised restraint in enhancing the imprisonment sentence. Lta Chong had made the fully informed decision to serve his sentence despite knowing of the Prosecution's intention to appeal against the conviction and sentence of the lower court. Accordingly, there was no principled basis to accord Lta Chong any sentencing discount: at [109] to [113].

(17) The accused persons had failed abjectly in their duties by intentionally and illegally omitting to stop the “kolam”. Their punishments had to be sufficiently deterrent to reflect the full gravity of their offences. Accordingly, the sentences for Lta Chong and SWO Nazhan were enhanced to 11 months' and ten months' imprisonment respectively. As Lta Chong had already served ten weeks' imprisonment, he was sentenced to an additional eight months and two weeks' imprisonment: at [117].

Case(s) referred to

ADF v PP [2010] 1 SLR 874 (folld)

Balakrishnan S v PP [2005] 4 SLR(R) 249; [2005] 4 SLR 249 (folld)

Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 (folld)

Ho Soo Fong v Standard Chartered Bank [2007] 2 SLR(R) 181; [2007] 2 SLR 181 (refd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45; [2006] 4 SLR 45 (refd)

Jali bin Mohd Yunos v PP [2014] 4 SLR 1059 (folld)

Lee Chez Kee v PP [2008] 3 SLR(R) 447; [2008] 3 SLR 447 (refd)

Lim Poh Eng v PP [1999] 1 SLR(R) 428; [1999] 2 SLR 116 (refd)

Ng Keng Yong v PP [2004] 4 SLR(R) 89; [2004] 4 SLR 89 (refd)

PP v Adith s/o Sarvotham [2014] 3 SLR 649 (refd)

PP v Gerardine Andrew [1998] 3 SLR(R) 421; [1998] 3 SLR 736 (refd)

PP v Iryan bin Abdul Karim [2010] 2 SLR 15 (refd)

PP v Kwong Kok Hing [2008] 2 SLR(R) 684; [2008] 2 SLR 684 (refd)

PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601; [2008] 1 SLR 601 (refd)

PP v Rosman bin Anwar [2015] 5 SLR 937 (refd)

Pram Nair v PP [2017] 2 SLR 1015 (refd)

R v Anderson [1966] 2 QB 110; [1966] 2 All ER 644 (refd)

R v Jogee [2017] AC 387 (refd)

Sandz Solutions (Singapore) Pte Ltd v Strategic Worldwide Assets Ltd [2014] 3 SLR 562 (refd...