Public Prosecutor v Goh Kim San

• Jurisdiction: Singapore
• Judge: Imran bin Abdul Hamid
• Judgment Date: 01 July 2014
• Neutral Citation: [2014] SGDC 268
• Court: District Court (Singapore)
• Docket Number: DAC 45365-2013
• Year: 2014
• Published date: 15 March 2016
• Hearing Date: 01 July 2014
• Plaintiff Counsel: Deputy Public Prosecutor Rachael Ng
• Defendant Counsel: Mr Mervyn Tan, Counsel
• Citation: [2014] SGDC 268

District Judge Imran bin Abdul Hamid: Introduction

The prosecution has appealed against the sentence of 15 months imprisonment handed down to the accused. I now give my detailed reasons.

Facts of the Case DPP’s assistance during sentencing

The prosecution considers the issue of sentencing thrice: first, during the charging stage; second, during the sentence submission and third, at an appeal¹. The stand of the DPPs in the State Courts is that they do not remain passive and given its statutory right to appeal against manifestly inadequate sentences, they undertake “a positive attitude in assisting the Court”² and assist to avoid in “the making of appealable errors”³: They assist by any, or a combination of, the following. Highlighting aggravating factors that are revealed and/or asking for a deterrent sentence: Gurmit Singh v PP [1999] 1 SLR(R) 1083; Highlighting impact on victim, or tendering victim impact statement: PP v. Mohamed Noh Hafiz B Osman [2003] 4 SLR(R) 281; PP v Lam Cheng Fong [2002] 2 SLR(R) 599; Highlighting statutory provisions, benchmark cases, which apply: PP v UI [2008] SGCA 35; Challenging any assertion made by the counsel in mitigation that is inaccurate, and if counsel persists, to recommend, where appropriate, the receiving of evidence to determine the truth of the assertion: PP v. Aniza Bte Essa [2009] 3 SLR 327, paragraphs 54 to 62. Recommending that a term of imprisonment is appropriate on the facts but leaving the duration entirely to the court or recommending a range within which the current offence may fall⁴: PP v UI (as above).

The types of assistance are non-exhaustive⁵. Here, the DPP assisted according to (e) and tendered a table of ‘Sentencing Precedents’ (exhibit, P3) alluding to previous similar cases where sentences ranged from 9 to 24 months imprisonment.

The charge that the accused had pleaded guilty to

On 1st July 14, the 56-year old accused pleaded guilty to an amended charge, dated 17th Mar 14 (exhibit C1B), for an offence under s325⁶ read with s34, Penal Code (PC). The case against the co-accused, Loh Weng Kei (Loh), was not before me⁷. The charge as drafted by a DPP stated:

“…on 23rd November 2013, at about 5.22 pm, at Victoria Food Court (food court) located at Lorong 23 Geylang, Singapore, together with Loh Weng Kei (Loh), and in furtherance of the common intention of you both, did voluntarily cause grievous hurt to one Sivakumar s/o Subramaniam (victim), to wit, by punching him a few times in the face and kicking him in the stomach, thereby causing the said victim to suffer multiple injuries, inter alia, in the form of fractures of the lateral and anterior wall of the left maxillary sinus and fractures of the left orbital floor and the roof…”

The charge is valid as is but seeing how the charge was particularized, I clarified with the DPP, which limb of s320 PC, the ‘grievous hurt’, in this case, is said to come under. She said that subsection (g)⁸ was satisfied with “some” element of subsection (h)⁹. The DPP has the discretion to particularize the charge any way she sees fit, for tactical reasons, if necessary. She did not indicate that she wished to re-amend the charge. I accepted the accused’s plea after ascertaining that he understood the charge, punishment, and consequences of plea. The allegations which he had accepted responsibility for stated that: Arising from the common intention of the both of them, the accused punched the victim a few times in the face and kicked him in the stomach’. No further acts¹⁰ of violence were held against him as being part of that common intention; As a result, amongst others, the victim sustained fractures of the lateral and anterior wall of the left maxillary sinus, and left orbital floor and roof. His attention was not brought to the fact that he was also held accountable for the extensive subarachnoid injury by an express mention of it in the charge. The focus was on the fractures.

The Statement of Facts (SOF, exhibit PS 1) was read and he accepted it without qualification. After he was convicted, his counsel (DC) submitted a written mitigation plea (MP, exhibit D1). The prosecution submitted “Sentencing Precedents” (exhibit P3). In response, DC submitted that a starting term of 12 months imprisonment could be considered and urged that that was an appropriate sentence.

After careful consideration, I assessed 15 months imprisonment to be fair. I did not impose caning because of his age. Arising from the appeal, it is a reasonable to suppose that the prosecution contends that the sentence should have been either 2 years imprisonment or more. If the appropriate punishment is thought to be in excess of 2 years, this was never the prosecution’s contemplation when the accused’s guilty plea was made and when sentence submission was made. DC’s reply to the submission was also never made on that basis.

The accepted facts

According to the SOF, at about 5.23 pm, the Police received a ‘999’ call where it was stated: “One of the person just hit another and one of them is bleeding badly.”

The facts showed that the 56-year old accused, Loh (also 56), and a Tan Wee Kiat (Tan), known to each other, had drinks at the food court. On the same day, the 43-year old victim went to the food court to drink beer.

Later on that same day, at or about 5.22 pm, the victim and the accused had a dispute. As a result of the dispute, the accused became angry and punched the victim “a few times”¹¹ on his face. They got “into a fight” ¹². There was an exchange of blows.

Seeing the fight, Loh went over and punched the victim on his face, “knocking him to the ground”¹³. It was not stated that Loh had punched the victim a few times. I concluded that Loh delivered a single, ferocious punch to the victim’s face that knocked him down to the floor.

Thereafter, the accused and Loh kicked the victim “on his stomach” causing “hurt”¹⁴. Tan saw what the accused and Loh did, and went over to where the victim was after he was floored by Loh’s punch.

“At this juncture”¹⁵, Loh grabbed a glass mug from the table and threw it at the victim, with such force, that it hit him on the face and shattered the mug. This caused the victim to roll over to his right and he lost “consciousness and became motionless”. The ‘missile’ would have to hit the victim whilst he was still on the floor. When the ‘999’ call, the victim was bleeding.

A doctor from the National Neuroscience Institute (NNI), in a medical report dated 10th Jan 14, stated that the victim was brought to hospital, unconscious, with a Glasgow Coma Score of 3/15. He was put on life support immediately. As a result of B1’s and B2’s assault, he suffered the following injuries: a 3 cm cheek laceration, a 1.5 cm upper lip laceration; fractures involving the lateral and anterior wall of the left maxillary sinus (the cheekbone area on the left); fractures of the left orbital floor and roof with swelling of the surrounding tissues (the eye socket area on the left) and fine lucency across the lateral tip of the inferior articular process of C6 and superior articular process of the C7 vertebra, and, extensive subarachnoid hemorrhage (brain injury).

2 days later, the victim regained full consciousness (25th Nov 13). He was discharged well on 10th Dec 13. The incident was captured on CCTV cameras at the food court. I was not shown the footage. No printed screen-grabs from the footage were attached to the SOF.

TTSH Medical Report, 2014-3284-0, dated 26th Mar 14 (exhibit P1) NNI Medical Report, 2013-17379-0, dated 10th Jan 14 (exhibit P2)

The TTSH report (annexed to SOF) stated that the victim presented to the A&E Department at 5.56 pm, 23rd Nov 13. He had poor consciousness and was non-responsive. Some facial abrasions and lacerations were noted. Pelvis and chest x-rays did not show any fracture¹⁶. No external abdominal injuries were found. CT head scan showed fractures of the lateral and anterior wall of the left maxillary sinus, left orbital floor and roof, with surrounding soft tissue swelling. Fine lucency across the lateral tip of the left inferior articular process C6 vertebra and superior articular process C7 vertebra was indicative of fracture.

The NNI report stated that upon admission, the victim was put on life support immediately. He was sent for an urgent CT scan of the brain, face and spine. No intracranial hemorrhage and skull fracture were found. He underwent surgical insertion of an intracranial pressure (ICP) monitor. One CT brain scan later, it showed extensive subarachnoid hemorrhage. He was sent to the NICU for further monitoring with no surgical intervention to remove the hemorrhage done other than being sedated and gradually weaned off it when the hemorrhage resolved. On or about 25th Nov 13 he was disconnected from life-support. He was fully conscious/alert by then. Plastic surgeons treated his facial fractures and offered surgery but he refused. Spine fracture was managed non-surgically (conservatively) with a C-collar. The next day, he was transferred to the general ward. After the spine MRI, the C-collar was removed.

I am satisfied that the harm that was visited onto the victim has been shown, objectively, to be severe. The collective acts of the accused and co-accused had brought about those injuries. Looking at the facts though, the incident arose because of a dispute between the accused and victim¹⁷. He precipitated the fight by punching the victim a few times in the face. Before Loh’s intervention, the victim stood and fought the accused. The victim was felled after Loh’s single knockout punch. They kicked him at his stomach and not his head. It was only after Loh grabbed a glass mug and throw it forcefully at the victim, that he became motionless.

The accused didn’t goad Loh to attack the victim, and didn’t goad him to throw the glass mug at the victim’s face. From the charge, the prosecution did not...