Public Prosecutor v Azlin bte Arujunah and another

• Court: High Court (Singapore)
• Judge: Valerie Thean J
• Judgment Date: 13 August 2020
• Neutral Citation: [2020] SGHC 168
• Citation: [2020] SGHC 168
• Hearing Date: 19 June 2020,20 January 2020,20 November 2019,19 November 2019,26 November 2019,18 November 2019,15 November 2019,27 November 2019,12 November 2019,03 April 2020,13 November 2019,28 November 2019,29 November 2019,13 July 2020,14 November 2019
• Published date: 18 August 2020
• Docket Number: Criminal Case No 47 of 2019
• Plaintiff Counsel: Tan Wen Hsien, Daphne Lim and Li Yihong (Attorney-General's Chambers)
• Defendant Counsel: Thangavelu (Trident Law Corporation), Tan Li-Chern Terence (Robertson Chambers LLC) and Ng Huiling Cheryl (Intelleigen Legal LLC),Eugene Singarajah Thuraisingam and Syazana Yahya (Eugene Thuraisingam LLP)
• Subject Matter: Criminal Law,Complicity,Common intention,Offences,Murder,Hurt,Special exceptions,Diminished responsibility,Statutory offences,Children and Young Persons Act,Criminal Procedure and Sentencing,Sentencing

Valerie Thean J: Introduction

Azlin binte Arujunah (“Azlin”) and Ridzuan bin Mega Abdul Rahman (“Ridzuan”) were jointly tried on multiple charges for various acts of abuse from July 2016 to October 2016 against their five-year-old son (“the Child”). In respect of a series of four scalding incidents which resulted in the Child’s death on 23 October 2016, they were charged with murder under s 300(c) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). After trial, I amended these murder charges and convicted Azlin and Ridzuan on newly framed charges based on the scalding incidents. I also convicted Azlin and Ridzuan on the charges for the acts of abuse, save for one on which they were acquitted. Azlin was sentenced to 27 years’ imprisonment and 12 months’ imprisonment in lieu of caning, while Ridzuan was sentenced to 27 years’ imprisonment and 24 strokes of the cane. I now furnish the grounds for my decision.

Background

At the time of the offences, the accused persons, then 24 years of age, were the parents of six children. Azlin and Ridzuan lived together with four of their children at the material time: their oldest son, who was turning seven years old at the time, the Child, who was their second son, and two younger daughters, who were three and two years old respectively.¹

The Child had lived with a friend of Azlin’s, [Z], since March 2011, when he was a few months old. In time, [Z] sought to make childcare and schooling arrangements for the Child near her home, but was unable to secure the parents’ consent.² As a result, the Child was returned to Azlin and Ridzuan in May 2015.³ [Z] and her family also sought to see the Child from time to time, but were denied access after January 2016.⁴

The offences in this case came to light when the Child was admitted to the Emergency Department at KK Women’s and Children’s Hospital (“KK Hospital”) on 22 October 2016 at around 7.57pm.⁵ He received emergency intensive care, but was pronounced dead on 23 October 2016 at 9.13am.⁶ Subsequent investigation revealed a series of offences from July to 22 October 2016. At trial, the Prosecution proceeded on six charges against Azlin, and nine charges against Ridzuan. The charges against Azlin were as follows: one charge under s 300(c) read with s 34 and punishable under s 302(2) of the Penal Code, for incidents spanning 15 to 22 October 2016 (as amended on the second day of trial and marked “C1A”); two charges under s 5(1) punishable under s 5(5)(b) of the Children and Young Persons Act (Cap 38, 2010 Rev Ed) (“CYPA”) for incidents in August 2016 (marked “C2” and “C3”); one charge under s 324 read with s 109 of the Penal Code for an incident in end August to early September 2016 (marked “C4”) corresponding to Ridzuan’s charge for the same act below marked D4; and two charges under s 5(1) punishable under s 5(5)(b) of the CYPA read with s 34 of the Penal Code for incidents in October 2016 (marked “C5” and “C6”) and corresponding to Ridzuan’s charges marked D7 and D9 respectively.

Ridzuan was tried on the following charges: one charge under s 300(c) read with s 34 of the Penal Code for incidents spanning 15–22 October 2016 (as amended on the second day of trial and marked “D1A”); three charges under s 5(1) punishable under s 5(5)(b) of the CYPA for incidents in July 2016 and October 2016 (marked “D2”, “D3”, and “D6”); three charges under s 324 of the Penal Code for incidents in end-August to early September, early October, and 18–19 October 2016 (marked “D4”, “D5”, and “D8”); and two charges under s 5(1) punishable under s 5(5)(b) of the CYPA read with s 34 of the Penal Code for incidents in October 2016 (marked “D7” and “D9”).

In these grounds of decision, I refer to charges C1A and D1A as “the Murder Charges”. The other charges are referred to as “the Abuse Charges”.

Joint trial of Abuse and Murder Charges

Prosecution initially informed parties that they would stand down the Abuse Charges until after the trial of the Murder Charges. On 19 September 2019, however, they notified defence counsel of their decision to try all the charges together. Counsel for Ridzuan did not object. Counsel for Azlin objected, on the basis that the joinder would be prejudicial to Azlin’s defence; alternatively, counsel requested for a vacation of the first tranche of trial dates fixed for 15–17 and 22–25 October 2019.⁷ At the subsequent pre-trial conference on 7 October 2019, I vacated the October trial dates but allowed the joinder of the charges at a single trial. The trial then convened on the allocated dates in November 2019, with subsequent dates added in 2020.

The objection to the joining of the charges was renewed by counsel for Azlin in closing submissions and I deal with the objections here. It was not disputed that the grounds for joining of those offences under s 133 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) were satisfied. Azlin objected to the trial of these offences together on the basis that the she would be prejudiced or embarrassed in her defence as the evidence amounted to similar fact evidence and argued for the need for separate trials by virtue of s 146 of the CPC.

In Lee Kwang Peng v Public Prosecutor and another appeal [1997] 2 SLR(R) 569 (“Lee Kwang Peng”) at [57], Yong Pung How CJ noted that whether a judge should order a joinder is governed by wholly different considerations from the question whether similar fact evidence should be admitted. A judge, as the trier of fact and in contrast to a jury, is endowed with the judicial ability to preserve and apply the rule against similar facts and may treat the evidence of different incidents separately. Whether a joinder is appropriate in such a case as the present is governed by what is now s 133 of the CPC (previously, s 169: see Lee Kwang Peng at [58]). There is no dispute that s 133 of the CPC was satisfied in this case. On this point, the Abuse Charges were relevant in setting the context for the Murder Charges, and the offences “form or are a part of a series of offences of the same or a similar character”.

The question then, was whether the joint trial of the offences would prejudice the accused or embarrass her in her defence such that the court should exercise its powers under s 146 of the CPC to order a separate trial: see Lee Kwang Peng at [59]. The concept of “similar fact evidence” was not relevant in the present case as it protects against the potential prejudice caused by proof of acts of past misconduct in relation to the proof of other offences. In the present case, however, the actus of each of these offences arose from her own admissions in her undisputed statements. The facts of these past offences were independently relevant and therefore distinguished from similar fact evidence: see Lee Kwang Peng at [36]. As is made clear by Illustrations (i), (o) and (p) in s 14 of the Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”), evidence of habit or general disposition are not relevant but facts illuminating intent are. The state of mind of Azlin over the time period in question and the context in which the offence was committed were relevant under s 14 of the Evidence Act. Because the incidents of the Abuse Charges formed part of a series in the lead up to the Murder Charges, they cast light on the intention and knowledge of Azlin and Ridzuan which, as these grounds explain, were crucial to the determination of their case and sentencing. The evidence was admissible in law; joint trial was appropriate, and did not cause any prejudice.

Counsel for Azlin raised a further argument in closing submissions that was not raised prior to trial. This is that Azlin would have testified in her defence for the Abuse Charges, but chose not to because of the Murder Charge. To the contrary, Azlin did not dispute three of the Abuse Charges, and the source for the evidence for the remaining charges was her own statements, which she had conceded were voluntary. In my view, the facts well show that Azlin was not prejudiced by her election not to give evidence on any of the charges.

I start, then, with the Abuse Charges, which inform the context for the Murder Charges.

The Abuse Charges July and August CYPA charges

The series of offences commenced in July, with CYPA offences committed by Ridzuan against the Child.

Section 5(1) of the CYPA reads:

A person shall be guilty of an offence if, being a person who has the custody, charge or care of a child or young person, he ill-treats the child or young person or causes, procures or knowingly permits the child or young person to be ill-treated by any other person.

Section 5(2) of the CYPA provides a list that defines the scope of “ill-treats” under the CYPA. For the present case, the relevant provisions are s 5(2)(a) and s 5(2)(b) of the CYPA, which provide:

For the purposes of this Act, a person ill-treats a child or young person if that person, being a person who has the custody, charge or care of the child or young person — (a) subjects the child or young person to physical or sexual abuse; (b) wilfully or unreasonably does, or causes the child or young person to do, any act which endangers or is likely to endanger the safety of the child or young person or which causes or is likely to cause the child or young person — (i) any unnecessary physical pain, suffering or injury; (ii) any emotional injury; or (iii) any injury to his health or development …

It was not disputed that the Child was a child in the “custody, charge or care” of the Azlin and Ridzuan.

Ridzuan’s offences in July 2016

In July 2016, the Prosecution alleged that Ridzuan had used pliers to pinch the Child twice. These charges, D2 and D3, were similar. D2 read as follows:

That you, RIDZUAN BIN MEGA ABDUL RAHMAN, … sometime in July 2016, at [xxx], Singapore, being a person who has care of a child, namely, [the Child] (male, 5 years...