Public Prosecutor v Fazely Bin Rahmat and Another and Another Case

JudgeChao Hick Tin JA
Judgment Date17 March 2003
Neutral Citation[2003] SGCA 13
Citation[2003] SGCA 13
Defendant CounselSubhas Anandan, Anand Nalachandran (Harry Elias Partnership),James Bahadur Masih, Amarick Gill (James Masih & Co)
Published date17 December 2003
Plaintiff CounselNg Cheng Thiam, Imran Abdul Hamid, Lee Ti-Seng Desmond (Attorney-General's Chambers)
Date17 March 2003
Docket NumberCriminal Appeal No 10 of 2002
CourtCourt of Appeal (Singapore)
Subject MatterDecisions of trial judge,Complicity,Offences,Murder,grievous hurt.,common intention,Common object,Evidence,Whether trial judge correct in admitting statements of co-accused but choosing not to attach any weight to it,Criminal Law,Whether trial judge correct in accepting testimony of accused in court over previous incriminating statements to police,limit to constructive liability.,Weight of evidence,rioting

Delivered by Chao Hick Tin JA

1 This is an appeal by the Public Prosecutor against a decision of the High Court acquitting the two respondents of a capital charge of murder and convicting them of an offence of rioting under s 147 of the Penal Code (PC) (Cap 224). Each of the respondents were sentenced to a term of imprisonment of five years and twelve strokes of the cane for the offence. We heard the appeal on 21 October 2002 and reserved judgment.

The facts

2 On the evening of 30 May 2001, the two respondents, Fazely and Khairul, were with six other persons, namely Mohamed Hasik bin Sahar (Hasik), Mohammed Fahmi bin Abdul Shukor (Fahmi), Mohammad Ridwan bin Samad @ Chemong (Ridzwan), Muhammed Syamsul Ariffin bin Brahim @ Aki (Syamsul), Norhisham bin Mohamed Dahlan @ Baby (Norhisham) and Sharulhawazi bin Ramy @ Boy Sharul (Sharulhawazi) at a pub called "Club 7", located along Mohamed Sultan, celebrating Syamsul’s birthday. They were members of the secret society known as "369". These eight persons are hereinafter referred to collectively as "the group". Two other persons, with their girlfriends, were apparently also there with the group at "Club 7" but they were not involved in the subsequent events.

3 The group stayed on at the pub until the early hours of the next morning. At about 3.00am (on 31 May 2001), when the pub closed, they left for a nearby coffee shop for supper. It was at this point that Norhisham commanded all members of the group to follow him to the "Rootz" discotheque (the Rootz) at Boat Quay. Fahmi and Ridzwan were sent ahead to do a reconnisance of the Boat Quay area. Upon receiving information from the advanced party that there were rival gang members present there, the other members of the group proceeded to Boat Quay in two taxis. But by then, the Rootz had also closed for the night. So they just walked about in the vicinity.

4 In the meantime, one Sulaiman bin Hashim, the deceased, a 17 year old student who was also a national youth soccer player, and two friends, Mohammed Shariff bin Abdul Samat (Shariff) and Mohamed Imran bin Mohamed Ali (Imran), were at the Rootz. When the discotheque closed at 3.00am, the trio went to a 24-hour coffee shop situated behind a pub known as "Bernie Goes to Town". At about 4.30am, the trio left the coffee shop and walked along South Bridge Road in the direction of the City Hall MRT Station. As the trio were walking past "Bernie Goes to Town", members of the group, who were on the opposite side of the road, spotted them. Norhisham then crossed the road, followed by the rest.

5 Norhisham confronted the trio and asked them in Malay which "gang" they belonged to and before the trio could answer, Norhisham rained blows on Sulaiman. On seeing this, the two friends of Sulaiman, Shariff and Imran, ran away with Fazely, Syamsul and Khairul hot on their heels. Fortunately for Sheriff and Imran, they managed to escape from their pursuers. But we should add that before Shariff ran from the scene, he was hit by a member of the group. He thought it was a punch but it turned out to be a stab wound.

6 Soon thereafter the police and an ambulance arrived. Sulaiman was pronounced dead at 5.00am. The Consultant Forensic Pathologist who conducted the post mortem found 13 stab wounds to the head, neck, shoulder, back, upper and lower limbs of the deceased. The causes of death were the stab wounds to the neck and chest.

7 The charge brought against the two respondents was one of murder on the basis that they, together with the six others, were members of an unlawful assembly whose common object was to cause hurt with dangerous weapons to rival gang members and in prosecution of the common objective one or more members of the unlawful assembly caused the death of Sulaiman.

Decision below

8 The trial judge in acquitting the respondents of the capital charge found that the common object of the gang in going over to Boat Quay was only to find rival gang members and beat them up as there was no evidence indicating that the use of weapons were either discussed or contemplated. While it was clear that after the group started to assault the deceased, some of the members did use knives to stab him, the question that arose was whether the two respondents did partake in the object of causing hurt by using weapons. Having scrutinized the evidence, the trial judge held that the prosecution had not established that the respondents did share in the object of those who used weapons to cause hurt to Sulaiman. He noted that Shariff did not see any knife being used and, when stabbed, did not feel it. The trial judge entertained a reasonable doubt as to whether the respondents, in fact, saw any of the other members of the group bringing out their knives and stabbing Sulaiman before the respondents assaulted the latter.

9 The trial judge then examined Fazely’s evidence in court which contradicted with what he said in his statements to the police, where Fazely appeared to suggest that he kicked the deceased after the latter had been stabbed by others, indicating his concurrence to the formation of a new common object. The trial judge reconciled the contradictions. The relevant passage of the trial judge’s grounds of decision where he dealt with this point is produced later in ¶20.

10 As for the second respondent, Khairul, he maintained in his statement that he stopped assaulting the deceased as soon as he realized that some members of the group had used knives. While the statements of Hasik implicated both the respondents, the trial judge did not consider it prudent to rely on Hasik’s statements.

11 The trial judge concluded by holding that the respondents had raised a reasonable doubt as to whether they were guilty of murder in having a common object with others to cause hurt to the deceased with dangerous weapons. Instead he found them guilty of an offence of rioting under s 147 of the Penal Code and sentenced each to five years imprisonment and twelve strokes of the cane.

Arguments of Public Prosecutor

12 The Deputy Public Prosecutor (DPP) submitted that the trial judge committed the following errors in coming to his decision to acquit the respondents of the capital charge:-

(i) failure to appreciate the difference between liability under s 34 and that under s 149 of the Penal Code, and that, in the latter, liability is based on membership of an unlawful assembly.

(ii) that the finding of the trial judge, that he had a reasonable doubt whether the respondents did see the use of knives by the other members of the gang before they partook in the assault, is against the weight of the evidence, bearing in mind not only the written statements of the respondents, but also those of Hasik.

Alleged errors of law

13 The DPP submitted that the trial judge had erred on a point of law when he made the following propositions:-

"It is important to remind ourselves that even if the written statements are accepted as stating the truth of what happened, specifically, namely that the two (respondents) carried out their parts in the assault even after the armed members had drawn their knives the prosecution has still to prove that a common object to do so had been formed." (para 16)

"… even if (the respondents) had carried on hitting Sulaiman after their friends had stabbed him, there is insufficient evidence to convince me beyond reasonable doubt that the two (respondents) had, there and then, formed a new common object of causing hurt with dangerous weapons as charged." (para 17).

14 The DPP argued that the trial judge had placed an impossible burden on the prosecution. Citing Barendra Kumar Ghosh v Emperor [1925] AIR PC 1, he said that liability under s 149 followed from membership of the assembly at the time of the commission of the offence. Therefore, even if an unarmed gang member was aware only at the time of the attack, that some of the others had carried weapons, that unarmed member would nevertheless be liable under s 149 unless he "had taken reasonable steps to clearly dissociate" himself from that object. During the attack by the group members on Sulaiman, neither respondents showed any intention, nor did they take any positive steps to dissociate themselves from the attack when they realised that it was carried out with the use of weapons by three members of the group.

15 It is settled law that there is a limit as to the constructive liability which is imposed under s 149. It does not follow that just because a person is a member of an unlawful assembly that he is, therefore, responsible for every act done by any other member. The "common object" circumscribes the limits. The position is succinctly set out in Dr Gour’s commentry on The Penal Law of India (2000) at p 1414-5 and 1398 as follows –

"A person may join an unlawful assembly with an unlawful object, but it does not necessarily follow that he indorses all that the other members say or do. Nor is he therefore responsible for their acts of which he was not clearly cognisant. The members of an unlawful assembly may have a community of object only up to a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object will vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence the effect of this section may be different on different members of the same unlawful assembly. In dealing with such cases, it is, on the one hand, necessary for the protection of accused persons that they should not, merely by reason of their association with others as members of the unlawful assembly, be held criminally liable for offences committed by their associates which they themselves neither intended nor knew to be likely to be committed; on the other hand, it is equally necessary for the protection of...

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9 cases
  • Lee Chez Kee v Public Prosecutor
    • Singapore
    • Court of Appeal (Singapore)
    • 12 Mayo 2008
    ...knew of the gang’s common object to cause hurt by dangerous weapons. This decision was upheld by this court in PP v Fazely bin Rahmat [2003] 2 SLR 184. 246 The imputation of a subjective knowledge test to s 34 would hence bring it into conformity with the approach already adopted by the cou......
  • PP v Firdaus bin Abdullah
    • Singapore
    • High Court (Singapore)
    • 17 Marzo 2010
    ...bin Basri v PP [2006] 4 SLR (R) 440; [2006] 4 SLR 440 (distd) Mohd Iskandar bin Abdullah v PPMA 187/1998 (refd) PP v Fazely bin Rahmat [2003] 2 SLR (R) 184; [2003] 2 SLR 184 (refd) PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (refd) PP v Lee Cheow Loong Charles [2008] 4 SLR (R) ......
  • Public Prosecutor v Lee Wei Yang, Sean
    • Singapore
    • District Court (Singapore)
    • 19 Julio 2021
    ...object to cause hurt by dangerous weapons. This decision was upheld by the Court of Appeal in Public Prosecutor v Fazely bin Rahmat [2003] 2 SLR(R) 184. In the light of the above, the Court of Appeal then, at [246] of Lee Chez Kee, indicated that the imputation of a subjective knowledge tes......
  • Lee Chez Kee v Public Prosecutor
    • Singapore
    • Court of Three Judges (Singapore)
    • 12 Mayo 2008
    ...knew of the gang’s common object to cause hurt by dangerous weapons. This decision was upheld by this court in PP v Fazely bin Rahmat [2003] 2 SLR 184. 246 The imputation of a subjective knowledge test to s 34 would hence bring it into conformity with the approach already adopted by the cou......
  • Request a trial to view additional results
1 books & journal articles
  • Case Note: RECENT DEVELOPMENTS IN COMMON INTENTION
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 Diciembre 2009
    ...and reaffirmed by the House of Lords in R v Rahman[2009] 1 AC 129. 78 Eg, Clayton v R(2006) 231 ALR 500. 79 PP v Fazely bin Rahmat [2003] 2 SLR 184. 80 If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the membe......

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