Public Prosecutor v Melis Hendrikus Dirk Maria

• Jurisdiction: Singapore
• Judge: Marvin Bay
• Judgment Date: 30 April 2020
• Neutral Citation: [2020] SGDC 93
• Court: District Court (Singapore)
• Docket Number: DAC 933203/2019 & Others, Magistrate’s Appeal 9061-2020-01
• Year: 2020
• Published date: 19 May 2020
• Hearing Date: 24 February 2020,20 February 2020,28 February 2020
• Plaintiff Counsel: Sunil Nair (Attorney-General's Chamber)
• Defendant Counsel: R Magendran (Arasan Law Practice)
• Subject Matter: Criminal Procedure and Sentencing,Criminal Procedure Code,Judgment not to be altered,Revised medical report produced after sentencing contradicts essential element of charge,Criminal law,Offences,Penal Code,Voluntarily causing grievous hurt,Voluntarily causing hurt,Evidence,Documentary evidence,Medical expert reports
• Citation: [2020] SGDC 93

District Judge Marvin Bay: INTRODUCTION

The appeal against sentence in this case was filed in rather atypical circumstances. The accused; Melis Hendrikus Dirk Maria (“Mr Melis”), pleaded guilty on 20 February 2020 (a Thursday), via a video conferenced mention, to a number of proceeded charges. The most serious of these charges, and the only one appealed against, was one instance of causing grievous hurt to his wife, Elianna Kathleen Grace (“Ms Grace”), contrary to section 325 of the Penal Code (Chapter 224, 2008 Rev. Ed.). The prosecution’s charge for this offence specified that Mr Melis “did voluntarily cause grievous hurt to one Elianna Kathleen Grace, to wit, by punching her multiple times on her face, head and jaws, causing the said Elianna Kathleen Grace to suffer a fracture of nasal bone”

This injury was substantiated by a medical report by one Dr Diane Vano Raro of Tan Tock Seng Hospital who had indicated that the victim suffered a nasal bone fracture. Mr Melis was sentenced to a term of six months and two weeks for the section 325 Penal Code charge. On 24 February 2020, (the following Monday) I was made aware that counsel had procured a “Clarification Medical Report” from the said Dr Diane Vano Raro where she (Dr Raro) effectively recanted a critical aspect of her diagnosis in her earlier report that “X rays of the facial bone revealed nasal bone fracture” to state instead that in respect of Ms Grace’s injuries, “X rays of the facial bone revealed no fracture”.

As the “Clarification Medical Report” was only made known to me some two working days after the accused had been sentenced, I was unable to exercise the powers provided under section 301 of the Criminal Procedure Code (Chapter 68, 2012 Rev Ed), and thus effectively functus for resentencing Mr Melis, or amending the charge. Section 301 of the Criminal Procedure Code provides that

301.—(1) Where a court has delivered its judgment, it may rectify a clerical error at any time, and any other error, including an error in the exercise of its sentencing powers, may be rectified by the court by the next working day after the delivery of the judgment. [emphasis added].

The only recourse was for a criminal revision to be filed to rectify the situation of Dr Raro’s subsequent medical report rendering the conviction in the guilty plea to have been made upon a premise now shown to be erroneous. This is to say that the charge ought not have been one under section 325 of the Penal Code as the victim, according to Dr Raro’s later medical report, did not actually suffer a nasal fracture. As the Prosecution had been relying on the definition of grievous hurt provided by s320 (g), which provides 320 - The following kinds of hurt only are designated as “grievous”:

…

(g) fracture or dislocation of a bone; Mr Melis thus ought, on these subsequently discovered facts, to have instead been charged with causing hurt simpliciter under section 323 of the Code.

As Mr Melis was, by that juncture, serving the sentence which had been backdated to his first remand date of 23 November 2019, the appeal against sentence was filed to allow Mr Melis to be granted bail pending appeal. The accused had been released on bail after the incidents on 20 September 2019, which had formed the basis for the three charges against him, but had reoffended, and was thus held with no bail from 23 November 2019. There did not appear to be any provision for a District Court to grant a stay of a backdated sentence pending criminal revision. Upon my request for information, I had received a notification from Singapore Prison Service that Mr Melis’ earliest date of release was 7 April 2020. There was thus a valid concern that if he had continued serving his sentence, the application for criminal revision might be rendered nugatory as Mr Melis might have completed his sentence by then. The amended Notice of Appeal filed on 3 March 2020 indicates that the appellant is appealing only against the sentence imposed for the section 325 Penal Code charge.

I will now go to the sequence of events and state the salient facts of this case. The charge, statement of facts and mitigation plea are set out verbatim, with no paraphrasing to allow a better appreciation of the context upon which Mr Melis was convicted and sentenced.

THE COURT PROCEEDINGS ON 20 FEBRUARY 2020 The charge

This was the charge that is the present subject of Mr Melis’ appeal:

You, Melis Hendrikus Dirk Maria

are charged that you, on the 20th day of September 2019 at or about 09.20pm, at (residential address), did voluntarily cause grievous hurt to one Elianna Kathleen Grace, to wit, by punching her multiple times on her face, head and jaws, causing the said Elianna Kathleen Grace to suffer a fracture of nasal bone and you have thereby committed an offence punishable under Section 325 of the Penal Code, Chapter 224 (Rev. Ed. 2008).

[emphasis added]

Statement of Facts

The accused confirmed his intent¹ to plead guilty to the three proceeded charges, (The other two charges were DAC-926683-2019 which was a charge under s 353 of the Penal Code and MAC-911672-2019 a charge under s 6(3) of the Protection from Harassment Act.) with defence counsel confirming² that his client understood the nature and consequences of his plea, Mr Melis admitted to the following Statement of Facts³ without any qualification. 1. The accused is Melis Hendrikus Dirk Maria, (personal particulars), of (residential address). He is unemployed.

FACTS RELATING TO 5th CHARGE (DAC-933203-2019)

Voluntarily Causing Grievous Hurt under Section 325 of the Penal Code, Chapter 224

2. The first victim is Elianna Kathleen Grace, F/38 years old. She is the wife of the accused. 3. On 20 September 2019, the first victim returned home in the evening with their two daughters after picking them up from school. The accused was at home sleeping in the master bedroom after consuming alcohol in the afternoon. 4. At about 08.30pm, one of their daughters began making noise at home. The accused woke up due to the noise. He approached their daughter and held her up to discipline her. The first victim stopped the accused and asked him to put their daughter down. The accused put their daughter down and approached the first victim. 5. The accused used his hand to strangle the first victim by squeezing her neck. The first victim broke free and went to the kitchen, picking up an iron which was there. The first victim warned the accused to keep away, but the accused approached her. The first victim picked up a wooden spoon in the kitchen and hit the accused on his head a few times. The accused managed to snatch the spoon away. 6. The accused then punched the first victim multiple times on her face, head and jaws. At this stage, the first victim was not strong enough to retaliate and tried in vain to protect her face from the accused’s blows. 7. After a short while, the accused ended the attack and went back to the master bedroom to sleep. 8. As a result of the blows from the accused, the first victim sustained various physical injuries to her face, such as bruises, abrasions and cephalohematoma. An X-ray revealed that the first victim suffered a nasal bone fracture as well. The injuries are described in the medical report from Dr Diane Vano Raro of the Tan Tock Seng Hospital’s Emergency Department. 9. By virtue of the foregoing, the accused has committed an offence of Voluntarily Causing Grievous Hurt under Section 325 of the Penal Code, Chapter 224.

FACTS RELATING TO 1st CHARGE (DAC-926683-2019)

Using Criminal Force to deter a public servant from discharge of his duty under Section 353 of the Penal Code, Chapter 224

10. The second victim is Wong Ye Ting Felicia, F/24 years old. She is a police officer. 11. The first witness is Mok Heng Ngee, M/44 years old. He is a Voluntary Special Constable. 12. The second witness is Khairul Nizham Bin Roslan, M/28 years old. He is a paramedic. 13. The third witness is Ashlyy Bin Ashmadi, M/20 years old. He is a paramedic. 14. On 20 September 2019 at about 09.40pm, the second victim and witnesses had attended at the home of the first victim and the accused. 15. The accused was resting in the master bedroom. The accused then tried to get out of the master bedroom and enter the room where the first victim was being attended to. The second victim and first witness tried to calm the accused down and stop him from leaving his master bedroom that he was in. The accused turned aggressive and pushed the second victim on her chest once to get her out of his way. 16. The accused pushed the second victim intending to deter her from discharging her duty as a public servant. The accused has thereby committed an offence of Using Criminal Force to deter a public servant from discharge of her duty under Section 353 of the Penal Code, Chapter 224.

FACTS RELATING TO 3rd CHARGE (MAC-911672-2019)

Insulting a public servant under Section 6(3) of the Protection from Harassment Act, Chapter 256A

17. The third victim is Muhammad Ameer Syafiq Bin Abu Bakar, M/21 years old. He is a police officer. 18. The witness is Muhamad Izar Bin Ayob, M/38 years old. He is a police officer. 19. On 20 September 2019 at about 10.00pm, the accused was arrested by the third victim and witness for his attack upon the second victim. During the arrest, the accused was not compliant and hurled vulgarities including ‘F--king Malay’ at the third victim. 20. By virtue of the foregoing, the accused has thereby committed an offence of Insulting a public servant under Section 6(3) of the Protection from Harassment Act, Chapter 256A. Consent for TIC for stood down charges and antecedents

Upon conviction, Mr Melis also signalled his consent for five stood down charges to be taken into consideration for the...