Public Prosecutor v Michael Marcus Liew and others

• Jurisdiction: Singapore
• Court: District Court (Singapore)
• Judge: Kessler Soh
• Judgment Date: 09 January 2023
• Neutral Citation: [2023] SGDC 6
• Citation: [2023] SGDC 6
• Hearing Date: 10 October 2022,03 August 2022,04 August 2022,05 August 2022
• Published date: 18 January 2023
• Year: 2023
• Docket Number: DAC-914686-2017 & MAC-907725-2017, DAC-914691-2019 and Others, Magistrate’s Appeal No.9024/2020/01, Magistrate’s Appeal No.9025/2020/01 and 3 Others
• Plaintiff Counsel: Yang Ziliang, Zhou Yang (Attorney-General's Chambers)
• Defendant Counsel: Josephus Tan, Cory Wong Guo Yean (Invictus Law Corporation)
• Subject Matter: Criminal Procedure and Sentencing,Taking additional evidence,Evidence,Expert evidence,Effect of alcohol intoxication on ability to form criminal intention

District Judge Kessler Soh: Introduction

On 9 January 2020, Michael Marcus Liew (“Michael”) and Cheo Lye Choon (“Cheo”) and three other co-accused persons were convicted, after a trial, of a charge of rioting under s 147 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”).¹ Michael also pleaded guilty to a charge of disorderly behaviour under s 20 of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”). On 31 January 2020, Michael, Cheo and the three co-accused persons were sentenced to imprisonment terms ranging from 12 to 18 months. They each filed an appeal against their conviction on the rioting charge as well as the sentence. Grounds of Decision were issued on 29 April 2020 in PP v Michael Marcus Liew and 4 Ors [2020] SGDC 104 (the “GD”).

In the course of their appeal at the High Court, Michael and Cheo filed three criminal motions to adduce additional evidence: CM 61 of 2021 – application by Michael to adduce a medical report dated 16 February 2021 issued by Dr Tan Sheng Neng (“Dr Tan”); CM 62 of 2021 – application by Cheo to adduce a medical report dated 28 March 2021 issued by Dr Tan; and CM 67 of 2021 – application by Michael to adduce an HSA report dated 15 May 2017 relating to his blood alcohol level.

On 11 August 2021, the High Court allowed the criminal motions with the condition that the prosecution be allowed to cross-examine Dr Tan on his medical reports and to adduce a medical report from the Institute of Mental Health (“IMH”) if required. The case was then remitted back to this court for the additional evidence to be taken.

At the remittal hearing before me, which was held from 3 to 5 August 2022, the medical reports and oral testimony of Dr Tan were considered, together with the expert reports and oral testimony of two forensic psychiatrists from the IMH: Dr Charles Mak Chia Meng and Dr Guo Song. Submissions from parties were subsequently heard on 10 October 2022.

Set out below are the key points of the additional evidence taken. The crux of Dr Tan’s opinion was that due to the severe alcohol intoxication of Michael and Cheo at the material time of the incident, they were unable to form the requisite criminal intention for an offence of rioting. This opinion was refuted by Dr Mak and Dr Guo. Having evaluated the additional evidence, I found the opinions expressed by Dr Mak and Dr Guo to be more cogent, and to be preferred over that of Dr Tan; and the additional evidence would have no effect on my earlier verdict in finding both Michael and Cheo guilty of the charge of rioting under s 147 of the Penal Code.

Additional evidence by the Defence Expert opinion of Dr Tan Sheng Neng

Dr Tan (DW8) was the expert witness called by the defence to render an opinion on the effects of the alcohol intoxication of Michael and Cheo on their ability to from the requisite criminal intention for an offence of rioting. Dr Tan was a senior consultant psychiatrist at Winslow Clinic. He had a Master of Medicine (Psychiatry). He had professional experience dealing with alcohol-related cases. He obtained a Master of Clinical Investigation (MCI) in 2011, which qualified him as a research scientist and equipped him in performing translational studies and looking at clinical papers.²

Michael incapable of forming requisite criminal intention

Dr Tan prepared a medical report for Michael, dated 16 February 2021 (“Michael’s Medical Report”)³. Dr Tan’s opinion may be summed up as follows:⁴ Based on Michael’s account of his symptoms, he had “altered perception of the environment, ataxia, impaired judgment, lack of coordination, behavioural changes and amnesia” at the material time of the offence. It was “highly possible” that Michael’s blood alcohol level lay “near the range of BAC = 200mg/100ml”. Michael suffered from Alcohol Intoxication, and was not capable of forming “any requisite criminal intention” at the material time.

Dr Tan elaborated on the report in his oral testimony. Michael had exhibited “altered perception of the environment”, which was characterised by: (a) he remembering (despite the objective facts showing otherwise) that he had walked to his car alone, that he was walking unassisted, that there was a fat Malay lady cursing that she was in pain; (b) he perceiving that he was in the lock-up for two to three nights when that was not the case; (c) he being able to remember that a blood test was taken but was unaware of the blood test’s reasons. Michael had exhibited “ataxia” (wobbly walking, inability to balance) and “lack of coordination”, characterised by his stumbling to his car and having to be physically supported by his friend. Michael had exhibited “impaired judgement”, characterised by his refusing to take a taxi or a lift from a friend, and not being able to consent to a blood test until 10 hours later. As for his “behavioural changes”, considering that Michael did not have any criminal charges or fights or anything like that before, he would not have done what he did if not for the alcohol consumed. Michael had suffered alcohol-induced “amnesia”, as there were many pockets where he could not remember, and he did not have a clear recollection of what had occurred. ⁵

Dr Tan explained that he adopted a symptoms-based approach in back-estimating Michael’s blood alcohol concentration (BAC) level at the material time to be lying near 200 mg/100 ml.⁶ This symptoms-based approach was based on scientific literature.⁷

In coming to his conclusion that Michael was not capable of forming any requisite criminal intention, Dr Tan said that he was looking at the mens rea of unlawful assembly under s 142 Penal Code (“being aware of facts which render any assembly an unlawful assembly”). Dr Tan elaborated that given Michael’s symptoms, his ability to perceive and receive information about his surroundings was very badly impaired at the material time due to alcohol intoxication. He was not even aware that he was being assisted; and his sense of sight, hearing and touch were impaired quite badly. Dr Tan was “very sure” that Michael was “not even aware within the first few metres of what’s around him”.⁸ It was “actually quite difficult or almost impossible” for Michael to be aware of what was going on at a distance about 8 metres away at that time [where a co-accused, Regina, assaulted a victim, Maureen]; and if Michael did not have “the relevant information”, then he could not form the judgement or “informed decision about the particular events”.⁹ The “possibility was pretty low” that Michael was aware that he was part of a wider assembly of at least five people, and of what the other people were doing at that time.¹⁰

Cheo incapable of forming requisite criminal intention

Dr Tan similarly prepared a medical report for Cheo, dated 28 March 2021 (“Cheo’s Medical Report”).¹¹ Dr Tan’s opinion may be summed up as follows:¹² Based on Cheo’s account of his symptoms, he had “altered perception of the environment, ataxia, lack of coordination, and amnesia” at the material time. It was “highly possible” that Cheo’s blood alcohol level lay “well beyond the BAC range = 200mg/100ml”; his BAC was 123mg/100ml at 12.35 pm that day (about 10 hours after the incident). Cheo suffered from Alcohol Intoxication, and was not capable of forming “any requisite criminal intention” at the material time.

Dr Tan elaborated on the report in his oral testimony. Cheo had exhibited “altered perception of the environment”, characterised by: (a) he being unaware of the topics of discussion at the gathering with his friends; (b) he remembering that the police had asked him to follow them to the police station on foot, remembering making the trip with “Benny” and “Ah Chong” [Meng Chong, one of the co-accused] who were helping him, but being unsure if he was walking on the pavement or roadside, and unsure of how long the trip took. Cheo had exhibited “ataxia” and “lack of coordination”, characterised by having to be supported by Benny and Meng Chong in order to manage the trip to the police station on foot. Cheo had suffered alcohol-induced “amnesia”, as there were “a lot of memory lapses”. ¹³

As in Michael’s case, Dr Tan similarly adopted a symptoms-based approach in back-estimating Cheo’s BAC level at the material time to be lying well beyond 200 mg / 100 ml, based on scientific literature.¹⁴

In coming to his conclusion that Cheo was not capable of forming any requisite criminal intention, Dr Tan likewise said that he was looking at the mens rea of unlawful assembly under s 142 Penal Code (“being aware of facts which render any assembly an unlawful assembly”). Dr Tan elaborated that Cheo was worse off than Michael. His awareness of the environment was “really, really much reduced”, and it would not be surprising if he was “not aware of people around him”.¹⁵ He did recall Benny and Meng Chong helping him; however, he was unsure whether he was walking on the pavement or on the road, which was about two metres away. His sensory functions at the material time were “bad”, and his awareness of the environment seemed to have stopped around the time he was drinking (at the restaurant).¹⁶ His spatial awareness was very limited. He would not have been aware of what other people were doing at a distance about 8 metres away, or that he was part of a wider assembly of at least five people. ¹⁷

Rebuttal evidence by the Prosecution Expert opinion of Dr Charles Mak (for Michael)

The prosecution called Dr Charles Mak Chia Meng (PW13, “Dr Mak”), a Consultant Psychiatrist at the IMH, to give an expert opinion on Michael’s condition. Dr Mak assessed Michael on 7 January 2022 and prepared a medical report dated 6 February 2022 (“Michael’s IMH Report”).¹⁸ He had also written an earlier report dated 21 May 2021 providing his opinion on Dr Tan’s approach in back calculating blood alcohol concentration (“Michael’s BAC Report”).¹⁹

Dr...