Public Prosecutor v Lim Kian Heng

• Jurisdiction: Singapore
• Judge: Ngoh Siew Yen
• Judgment Date: 30 December 2003
• Neutral Citation: [2003] SGMC 42
• Court: Magistrates' Court (Singapore)
• Year: 2003
• Published date: 15 January 2004
• Plaintiff Counsel: Insp Bernard Pong
• Defendant Counsel: Justin Phua (Justin Phua and Co)
• Citation: [2003] SGMC 42

1 This is a case in which a minor misdemeanour on the roads led to a confrontation between the Complainant taxi driver, one Pek Kak Hoi (‘Pek’) and the Accused Lim Kian Heng (‘Lim’). Lim was charged under s 323 Penal Code (Cap 224) (‘the Act’) for voluntarily causing hurt to Pek by punching her right arm. The charge (‘P1’) reads:

You, Lim Kian Heng M/37 years old, are charged that you, on 8 April 2002 at 9.35 am, at the car park of Block 327 Ubi Avenue 1, Singapore, did voluntarily cause hurt to Pek Kak Hoi, to wit, by punching the said Pek Kak Hoi on her right arm, and you have thereby committed an offence punishable under s 323 of the Penal Code (Cap 224).

At the end of the trial, I convicted Lim of this charge and sentenced him to six weeks’ imprisonment. Being dissatisfied with my decision, Lim has appealed against both his conviction and his sentence.

The Case for the Prosecution

2 The prosecution called a total of four witnesses to the stand. The complainant Pek took the stand first. Subsequently, after her evidence–in–chief had been completed, the prosecution applied to interject her evidence with that of Dr Lew Kian Hua (‘Dr Lew’) who had hospital duties in the afternoon. The defence had no objections and I allowed the application. The evidence of the prosecution witnesses are set out as below.

Testimony of PW1 – Pek Kak Hoi (‘Pek’)

3 Pek is a part–time taxi driver. As at the date of the offence, she was 56 years old and had about seven years of driving experience. On 8 April 2002, at about 9.25 am, Pek was driving along Bedok Reservoir Road and proceeding towards Block 327 Ubi Avenue 1 in response to a taxi call booking. Pek drove along the left lane of that part of the road which had two lanes. Traffic along the road was heavy and vehicles were all travelling quite close to one another. According to the records, the person who booked her taxi was one ‘Miss Habiba’.

4 Suddenly, a van with registration number PA 1667A tried to cut into her lane from the right. Pek braked immediately and then signalled to PA 1667A to allow her to proceed first. The van driver allowed her to do so although he began to tail her taxi. The van driver also attempted to overtake her taxi twice unsuccessfully. The first time was along Bedok Reservoir Road and the second time occurred at the traffic junction between Bedok Reservoir Road and Kaki Bukit Avenue 1. Pek noticed that the van PA 1667A followed her taxi until she turned left into Ubi Avenue 1. Thereafter her attention was focused on locating her passenger and she stopped keeping a look out for the van.

5 At the car park of Block 327 Ubi Avenue 1 (‘the car park’), a lady carrying a baby boarded the taxi. She was accompanied by a man and an elderly lady who assisted her with some belongings. Pek turned around to greet her female passenger and to confirm her destination. When her back was turned, she felt a sudden thump on her right upper arm. Pek testified that this gave her a fright and she immediately turned around and looked to her right. The door was already opened and Pek saw a hand moving quickly from her right upper arm towards the ignition key and turning off her engine (‘the first time’). Pek emphasised that she did not see the hand hitting her but only saw it moving away from her arm when she turned around after feeling the pain.

6 Pek identified the person who hit her as Lim. According to Pek, Lim shouted at her in Mandarin, “how did you drive?” and ordered her to “get out immediately”. Pek remained in her seat, with the seat belt still fastened over her body, as she was too afraid to move. Lim appeared aggressive and “his expression was like a rascal”. At about this time, the female passenger wanted to alight from her taxi and Pek hastened to ask her to remain by telling the female passenger that she would still like to ferry her as the meter was already on. Pek also turned on the engine. However the female passenger alighted from the taxi together with her male companion. This time, Pek decided to alight from the taxi and stop the female passenger and her male companion from leaving. She explained that she did so because she was afraid that if they left, there would be no one in the car park who could help her. When Pek alighted, Lim switched off her engine again (‘the second time’). Lim was then standing at the rear right passenger door with a lady besides him. According to Pek, Lim and the lady both called her “old lady” in Hokkien. Lim also added the words, “why don’t you hit me?”

7 Pek ignored both of them and went forward to ask the female passenger to re–board the taxi. She also returned to the taxi. After the passengers re–boarded the taxi, Lim walked behind her taxi and used his handphone. At one point in her cross–examination (and in her police report), Pek agreed that Lim had informed her that he would be calling the police and told her to wait. Pek said that she did not wait as directed because she was suspicious about Lim’s true intentions and she was afraid of being left alone with him in the event that the police did not arrive at the scene. Before driving off, Pek took down the licence plate number of the van and switched on her engine again.

8 During the trip, Pek related to the female passenger about what had happened earlier on the roads before she arrived at the car park. The passengers advised her to make a police report. On 8 April 2002 at about 11 am, Pek accompanied by her sister, lodged a police report at Bedok Police Station (‘P2’). She also went to Changi General Hospital for a medical examination. Pek testified that she was informed by the examining doctor that she had suffered a ‘blue black’ on her right upper arm and was given an ointment to apply on the affected area.

Testimony of PW2 – Dr Lew Kian Hwa (‘Dr Lew’)

9 On 8 April 2002 at about 1.30 pm, Dr Lew attended to Pek at the Accident and Emergency department of Changi General Hospital. Dr Lew prepared a medical report on the patient (‘P3’). Referring to both P3 and her case notes which were recorded on 8 April 2002, Dr Lew testified that Pek had complained about being punched once over her right upper arm. Although no external injuries were seen, Dr Lew determined that there was an area of mild tenderness of about 5 cm by 4 cm over the right upper arm laterally. She went further to explain that there is tenderness when a light or a small pressure on the affected area causes a patient to experience a lot of pain. Dr Lew also opined that the area of the mild tenderness was about the size of a fist and that the situs of the injury corresponded with the area in which the patient had claimed to be punched. In addition, taking into account the size of the area of tenderness as well as the amount of pain which Pek experienced, Dr Lew was of the opinion that a moderate to large force had been inflicted on Pek. Lastly, Dr Lew testified that the nature of the injury was consistent with Pek’s claim that she was punched.

10 Under cross–examination, Dr Lew agreed that tenderness in the absence of visible bruises was a subjective medical condition because its presence and extent could only be elicited from a patient’s response to pressure. In addition, because there were no bruises, she was unable to determine the ‘age’ of the injury. When asked, Dr Lew also agreed that it was possible that the tenderness could be self–inflicted. This could be through a variety of means such as Pek punching or hitting herself repeatedly and forcefully against a hard object or asking others to do the same for her. However, ultimately while Dr Lew was uncertain as to how Pek sustained the injury, she was of the view that there was indeed tenderness of the size of about 5 cm by 4 cm on the patient’s right upper arm.

Testimony of PW3 – Pek Ah Been (‘Pek Ah Been’)

11 Pek Ah Been was Pek’s younger sister. She testified that at about 11 am on 8 April 2002, Pek called and told her that a big–sized man driving a van had punched her on her right arm. Pek also requested that she accompanied her to the police station to lodge a report. Later that morning, she met her sister outside Bedok Police Station where Pek informed her that she was experiencing some pain and a burning sensation on her right upper arm. Pek Ah Been looked at her sister’s arm and noticed that there was a reddish circular patch.

12 Pek Ah Been stated that the reddish patch had turned blue black the next day. She estimated the bruise to be about 4 cm by 2.5 cm.

Testimony of PW4 – Inspector Fadzil Abdul Rahman (‘Inspector Fadzil’)

13 Inspector Fadzil was the investigation officer in charge of the case. On 8 April 2002 at about 12 pm, he interviewed and recorded a statement from Pek. He also had sight of the injury which he described as a very faint reddish mark measuring about 1 to 2 cm wide and confirmed that Pek was accompanied by her sister to the police station. Inspector Fadzil stated that he did not interview Pek Ah Been because she was not at the car park on the day in question and he was also unaware that she had sight of the injury.

14 Inspector Fadzil testified that Lim was the registered owner of the van bearing the registration number PA 1667A. In the course of his investigations, he ascertained the distances between the junction at Bedok Reservoir Road and Kaki Bukit Ave 1 and the car park to be about two kilometres, spanning about three traffic junctions. He had also established the identities of the passengers in the taxi on 8 April 2002. They were Mr. Sirajudeen s/o Mohd Aliyar and his wife, Madam Jannathunisa. The ‘Miss Habiba’ as reflected in Pek’s record was actually Ms Habeebonisa d/o Salleh, the sister–in–law of Mr. Sirajudeen s/o Mohd Aliyar, who had called for the taxi on the couple’s behalf. Inspector Fadzil also explained that he was unable to procure the attendance of Madam Jannathunisa because she was away in Klang, Malaysia preparing for the birth of her second child. In the circumstances, it would not...