Public Prosecutor v Leong Soon Kheong

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 29 June 2009
• Neutral Citation: [2009] SGCA 28
• Docket Number: Criminal Appeal No 9 of 2008
• Date: 29 June 2009
• Year: 2009
• Published date: 02 July 2009
• Plaintiff Counsel: Lau Wing Yum and Jeyendran Jeyapal (Attorney-General's Chambers)
• Citation: [2009] SGCA 28
• Defendant Counsel: The respondent in person
• Court: Court of Appeal (Singapore)
• Subject Matter: Section 304(b) read with s 149 Penal Code (Cap 224, 1985 Rev Ed),Prosecution appealing against sentence,Relevant sentencing considerations,Group violence,Sentencing,Whether sentence was appropriate,Criminal Procedure and Sentencing

29 June 2009

V K Rajah JA (delivering the grounds of decision of the court):

Introduction

1 These grounds of decision arise from an appeal by the Prosecution against the sentence imposed on Leong Soon Kheong (“the Respondent”). The Respondent had pleaded guilty to a charge of culpable homicide not amounting to murder, pursuant to s 304(b) of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) read with s 149 of the PC. Such an offence is punishable with imprisonment for a term of up to ten years, or with a fine, or with caning, or with any combination of such punishments. A High Court judge (“the judge”) crediting the Respondent with a number of “mitigating” considerations, sentenced the Respondent to a moderate term of imprisonment of four years and nine months, backdated to the commencement of his remand. Dissatisfied with this outcome, the Prosecution appealed. While an appellate court will only interfere with a sentencing decision in limited circumstances such as the application of wrong principles or a manifestly inadequate or manifestly excessive sentence (see PP v Kwong Kok Hing [2008] 2 SLR 684 at [13]–[14]), we were persuaded that appellate intervention was warranted in this case. We agreed with the Prosecution that the judge had seriously erred in his application of sentencing principles and increased the Respondent’s punishment to a term of imprisonment of seven years.

Background facts

2 Wong Dao Jing (“the Deceased”), an 18-year-old student at Temasek Polytechnic, passed away after a group of men viciously assaulted him on 15 February 2003. Some four years later, the Respondent, one of the men involved in the assault was arrested. He pleaded guilty to the following charge:

That you, LEONG SOON KHEONG,

on the 15th day of February 2003 between 8.00 p.m. and 8.33 p.m. at the staircase landing between the 2nd and 3rd level of Lucky Chinatown Shopping Centre, Temple Street, Singapore, together with one Sean Leong Hung Chu, one Teo Guan Kah, one Toh Chu Siong and one Larry Lim Liang Long were members of an unlawful assembly whose common object was to cause hurt to one Wong Dao Jing, male/18 years old, and in the prosecution of the common object of the said assembly, one or more of you committed culpable homicide not amounting to murder by doing certain acts, to wit, fisting and kicking the said Wong Dao Jing on the head, face and stomach after he had fallen to the ground with the knowledge that you all were likely by such acts to cause the death of the said Wong Dao Jing, and you have thereby, by virtue of section 149 of the Penal Code (Chapter 224) committed an offence punishable under section 304(b) of the Penal Code.

3 Before we deal with the legal issues, we shall set out the material facts. These are largely uncontroversial and can be adequately captured in a brief compass.

4 The Deceased, prior to the attack on him, was playing with computer game machines at “Genie Funworld” arcade at Lucky Chinatown Shopping Centre (“Shopping Centre”) with two of his friends, Poh Wen Bin (“Wen Bin”) and Lim Boon Kiat (“Boon Kiat”). While playing, he noticed an unattended haversack close to him. He informed Wen Bin and Boon Kiat of his intention to examine the haversack. Wen Bin and Boon Kiat, perhaps intuitively sensing danger, did not want to be involved in this misdeed. A little later, they observed him taking the escalator leading down to the second storey of the Shopping Centre.

5 Not long after this, two men, Sean Leong Hung Chu (“Sean”) and Teo Guan Kah (“Teo”), appeared at the arcade. Wen Bin and Boon Kiat observed them searching for something. The men eventually confronted Wen Bin and Boon Kiat, demanding information about the whereabouts of the haversack. Wen Bin informed them that the Deceased had taken the haversack. On learning this, Sean and Teo insisted that Wen Bin immediately request the Deceased to return to the arcade with the haversack. Wen Bin did as he was told by calling the Deceased on his mobile phone.

6 The Deceased hurriedly returned to the arcade and handed the haversack to Sean and Teo. The two men, in turn, passed the haversack to Toh Chun Siong (“Toh”) who had been standing in their vicinity. Sean and Teo pressed the Deceased to explain why he had taken the haversack while Toh inspected the contents of the haversack. After completing his inspection, Toh claimed that an item (which has not been identified in the appeal records) was missing. Sean and Teo then insisted that the Deceased accompany them to the stairwell of the Shopping Centre to discuss the matter further. The Deceased complied. Wen Bin and Boon Kiat followed them, as they were anxious about the Deceased’s safety.

7 On arrival at the third-storey staircase landing of the Shopping Centre, Sean, Teo and Toh immediately surrounded the Deceased. They furiously accused the Deceased of stealing from them. The Deceased asserted that he was unaware that the haversack belonged to them and insisted that he would not have taken the haversack had he known otherwise. He denied having removed anything from the haversack. The trio were dissatisfied with the Deceased’s explanation and reprimanded him in Hokkien for being too “cocky”. They demanded that he pay for the missing item. The Deceased pleaded that he had no money and showed them his empty wallet to substantiate this.

8 While this wrangling was taking place, Toh stepped out of the stairway and made a call on his mobile phone. Toh subsequently returned to the stairway with the Respondent and Lim Liang Long Larry (“Lim”). The Respondent immediately entered the fray and angrily questioned the Deceased. The Deceased was at that juncture confronted by no less than five persons: the Respondent and the four accomplices (collectively “the Group”). The Respondent, then 28 years old, was the oldest member of the Group. He sneered at the Deceased, “[e]ven Malaysian dared (sic) not take my things and you dare.”^{[note: 1]} The Deceased in response plaintively asked the Respondent what else they wanted from him. The Respondent in response reprimanded the Deceased for his conduct and exclaimed, “[y]ou have taken somebody’s thing and still that arrogant”^{[note: 2]}. Following that remark, the Respondent shouted out in Hokkien, “Take weapon!”^{[note: 3]}.

9 Moments later, Lim forcefully pushed the Deceased and asked him whether he was a member of any secret society. The Deceased denied he had any gang affiliations and pleaded with the Group not to hurt him. Unmoved, the Respondent again scolded the Deceased. He said that it was difficult to let the Deceased off so easily because so many of his men were watching him.

10 Lim, after this exchange, pushed the Deceased once more. The Deceased managed to grab hold of a railing to preserve his balance. Lim then challenged the Deceased to fight with him “one-to-one”^{[note: 4]}. The Deceased declined to do so, and pleaded that he was afraid. The accomplices then surrounded the Deceased and proceeded to assault him by fiercely pummelling and kicking him.

11 The Respondent acknowledged in his police statement that he took a few steps down the stairs, intending to assault the Deceased. However, he failed to reach the Deceased because the stairwell was too narrow. As a result, the Respondent remained standing at the third-storey staircase landing with Wen Bin and Boon Kiat, while the accomplices carried out the assault on the Deceased.

12 Wen Bin and Boon Kiat observed the Deceased was seriously injured as a result of the assault. Afraid for his safety, they knelt on the floor and profusely apologised to the Respondent for what the Deceased had done. Wen Bin pleadingly held on to the Respondent’s right hand and beseeched him to let the Deceased off. He noticed that the Deceased was not retaliating and was only weakly attempting to ward off the blows that were mercilessly raining down on him. Boon Kiat also knelt down, on the Respondent’s left hand side, and begged the Respondent to stop the attack.

13 The Respondent could not be placated. He insisted that the Deceased deserved the beating and remarked that the Deceased could not be fatally injured so easily. The assault involving the accomplices kicking and fisting the Deceased on his head, face and stomach region continued with undiminished vigour. This relentless assault did not cease even after the Deceased lay prostrate on the floor. We note that at no point of time did the Deceased put up a fight. Finally, the Respondent shouted out in Hokkien, “[e]nough, let’s go”^{[note: 5]}. Immediately, the accomplices complied.

14 Just before the Group left the stairwell, the Respondent directed Wen Bin and Boon Kiat to attend to the Deceased, warning them at the same time not to report the matter to the police. He warned them ominously that they could be easily located.

15 The Deceased was pronounced dead at 9.40 pm that night. He succumbed to an injury medically classified as traumatic subarachnoid haemorrhage. This injury was consistent with blunt force trauma sustained by the head. Dr Gilbert Lau (“Dr Lau”), a pathologist attached to the Centre for Forensic Medicine of the Health Sciences Authority, recorded in his autopsy report the following external injuries sustained by the Deceased:

1. A bruise, measuring 8x6 cm, containing a superficial laceration and an abrasion, measuring 0.9 cm in length and 1.4x1.2 cm, respectively, on the right fronto-temporal region. The posterior margin of the bruise was situated at horizontal and vertical distances of 2 cm and 5 cm from the right ear, respectively.

2. A bruise-cum-abrasion, measuring 0.7x0.5 cm, over the left superiolateral orbital margin.

3. An abrasion, measuring 0.6x0.2 cm, on the left upper eyelid.

4. A bruise, measuring 2.5x1 cm, on the right mucosal aspect of the upper lip.

5. A bruise, associated with a few small abrasions, measuring 8x7 cm in all, on the right parieto-occipital region of the scalp, adjacent to the midline. The inferiolateral margin of...