Public Prosecutor v Azmi Bin Osman

• Jurisdiction: Singapore
• Judge: Imran A. Hamid
• Judgment Date: 20 May 2012
• Neutral Citation: [2014] SGDC 208
• Published date: 10 November 2014
• Docket Number: DAC 800214-2013
• Year: 2012
• Court: District Court (Singapore)
• Hearing Date: 28 April 2014,09 May 2014,27 April 2014
• Plaintiff Counsel: DPPs Lee Zu Zhao & Cheryl George
• Defendant Counsel: Accused in person.
• Citation: [2014] SGDC 208

District Judge Imran A. Hamid: Introduction

It is often stated that prosecution bears the burden of proving the guilt of an accused charged with an offence beyond a reasonable doubt. The trial judge must bear in mind that in any criminal case the starting point in the analysis of the evidence is not neutral. The presumption of innocence operates in favour of the accused until the prosecution’s evidence satisfactorily displaces it: Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR(R) 45 (VK Rajah J).

This burden cannot be discharged merely by persuading the trial judge to accept the prosecution’s version is more probable than the defence’s version, unlike in a civil trial. Simply highlighting the discrepancies in the defence’s case would not discharge the burden: Jayasekara Arachulage Hemantha Neranjan Gamini & Anor v PP [2011] SGHC 54, paragraphs 73 to 76 (Steven Chong J).

It is very clear in my mind that the prosecution can only succeed by substantially proving the very story it alleges. It must stand on its own legs and it cannot take advantage of the weakness of the deceased’s case: Bhagirath v State of Madhya Pradesh AIR 1976 SC 975, at 977. This is because an acquittal can follow either by the accused successfully arguing an affirmative defence or by casting reasonable doubt over the prosecution’s case: Ang Kah Kee v PP [2002] 1 SLR(R) 555, at 569 (then CJ Yong).

I hold to be true the erudite observation of the Supreme Court in Sarwan Singh v. State of Punjab AIR 1957 SC 637,

“…There may be an element of truth in the prosecution’s story against the accused. Considering as a whole, the prosecution story may be true but between ‘may be true’ and ‘must be true’ there is an inevitably long distance to travel and the whole of the distance is to be travelled by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. In a criminal case, suspicion, however, strong cannot take the place of proof…”

The above being said, it does not mean that the evidence collated and adduced must be so strong as to exclude even a remote possibility that the accused had not committed the offence. However, as the conviction threshold is understandably high, the mental acceptance of this should be the driving force in ensuring the investigative rigor and actual effort invested in the marshalling of all reasonably available, reliable and unimpeachable evidence against the accused, are equally high. The logical incident to this, namely, the threshold for preferring a formal charge against the accused, cannot, therefore, be markedly lower. The “prima facie” test, as alluded to by the investigating officer in this case should not have been the threshold on which a charge is preferred to initiate prosecution. As observed by then Chief Justice Yong in Cheng Siah Johnson v PP [2002] 1 SLR(R) 839, only “when there is more than a reasonable prospect of success” will be there a prosecution.

Background Facts The trial

On 12th Sept 13, the accused was arrested, 2 days after a police report alleging that he committed robbery with hurt was lodged against him. 2 days later, he was formally charged in court for committing robbery with hurt under s394, Penal Code (PC). As required under s23, Criminal Procedure Code (CPC), a cautioned statement was recorded from him.

The charge that was tendered alleged that on 10th Sept 13 at about 11.45 am, “at Bukit Timah Road”, he had robbed Mr Mohammad Faizal Bin Mohd Tari (the victim, PW 2) of a Samsung Galaxy Note II phone “valued at $980” (the phone) and in doing so, kicked him “twice” on the chest.

The accused could not make bail and has been remanded since 14th Sept 13. Subsequently, the prosecution amended the charge. It was then alleged that “at the Shell Petrol Kiosk” located at no 150, Bukit Timah, he robbed the victim of his phone, and in doing so, kicked his chest “and pinned him to the ground” (C1). The prosecution’s key witness was the victim.

At the trial, the victim alleged that the accused stole his phone, “worth $880”, and to commit the theft, kicked him on the chest “3 times” and “pinned him to the ground” prior to taking the phone. No other force was used. On the other hand, the unrepresented accused, said that he did not use force since he used, guile, essentially, to cause the victim to hand over the phone. When the victim went inside the minimart to buy drinks, he made off with the phone (also P8).

No direct CCTV footage capturing the alleged robbery was adduced. No footage showing the distressed state of the victim, post robbery, coming from the direction outside the petrol kiosk, was adduced, although there are CCTV cameras at the petrol station. No photographs of the scene were taken by the investigation officer and adduced for my perusal. I would have liked to see what the construction site mentioned by the victim looked like then in relation to the petrol kiosk.

One of points the accused conscientiously made was that if the robbery happened at the petrol station, the CCTV cameras would’ve captured the robbery. At the start of the trial, the charge was amended by the DPPs in that the offence was committed “in the vicinity of” the petrol station (C1A). At the close of prosecution’s case, the DPPs further amended the charge. A less aggravated offence, robbery under s392 PC, was said to have been committed (P6) contrary to the DPPs’ assertion at the start of the trial that the victim’s evidence would show that the hurt caused was beyond that required to commit robbery simpliciter. As the evidence adduced then was not inherently incredible, I called upon the accused to enter his defence.

On 28th Apr 14, having reviewed the evidence in totality, I did not find the prosecution had proven the robbery charge beyond a reasonable doubt. The prosecution had submitted that, at the very least, the accused was guilty of criminal breach of trust under s406 PC. The accused had repeatedly said that he misrepresented to the victim the real reason of his wanting to use the phone. Once he got possession of it, he made off with it. It would seem that his repeated, clear admissions could support a charge either under s420 or s406 PC. I took the view that the offence under s406 PC was clearer on the facts. The DPP assisted me to draft the charge and I adopted it. The charge was read back to the accused. He elected not to have the witnesses recalled and pleaded guilty to the charge (P9). He also elected to plead guilty to 2 stood down charges, also for offences under s406 PC (same modus operandi involving phones as well)(C2 and C3).

During sentencing, I asked for reports to assess the accused’s suitability for Corrective Training (CT) and Preventive Detention (PD) as required under s304(3) CPC. Sentencing was scheduled for 20th May 14 and the accused, who has since been sentenced to CT of 5 years duration, has not appealed against the appropriateness of the sentence. The prosecution filed the Notice of Appeal against his acquittal on the robbery charge on 9th May 14.

Undisputed Facts

It was not disputed that the alleged robbery happened when there were people about at the petrol station or in the vicinity of it. The incident happened along a main road (Bukit Timah Road) (see street directory, P3). It was also not disputed that the alleged incident happened at a time when people working at the area would be preparing, or gone, for lunch break. It is not disputed by the accused that he had dispossessed the victim of his phone that day and that he later sold the phone for $350. He had also confirmed that he is also known as “Nandek”.

The key issue was whether he had used force on the victim in doing so. The factual dispute is to be resolved by whose account is more believable.

The Prosecution’s case Evidence of Dr Amado Thaddeus Pua (PW 1)

PW 1 saw the victim on 10th Sept 13 at 5.10 pm at the Emergency Department (ED), Tan Tock Seng Hospital (TTSH). A medical report dated 30th Sept 13 (P1), received about 2 weeks or so later after the accused was charged, concerning an injury PW 1 found on the victim’s chest was adduced by the prosecution as ‘corroboration’.

The victim had a “fair fluency of English” and they had no linguistic difficulty. He complained of chest pain and mild shortness of breath. The victim told PW 1 the identity of his assailant and said that it was his former “employer”.

Physical examination showed that he was alert and stable. “Mild redness” was found on the upper right chest and lower sternum “possibly caused” by a blunt trauma. No contusion was found although mild redness “can progress” to one. During the examination, he did not find that the victim exhibited shortness of breath, or wheezing, due to a bout of asthmatic attack, from the assault. He prescribed tramadol to the victim for pain management. No asthma inhaler/medication was prescribed (P1).

As against the factual allegation contained in the charge regarding the victim being pinned down to the ground, PW 1 did not find any injury, either in the form of redness, or bruise, or scratches, or grazed abrasions, on the face, hands and legs of the victim. No evidence was adduced to show why this was so when the prosecution’s case was also that the victim was felled from behind, with both legs and hands restrained at the back, his face to the ground. No evidence was adduced that being restrained in such a manner might result in injuries, such as redness, scratches, grazed abrasions, to appear at those bodily areas affected by the force used to affect the restraint.

Under cross-examination, PW 1 testified that the mild redness was a recent injury and that it was consistent with the history given by the victim that he was kicked in the chest earlier that same day. In response to the accused’s contention that the victim was “framing” him, PW 1 conceded that based on the mild redness per se, he “could not guarantee” that...