Public Prosecutor v Muhammad Zulkiflee Bin Mohd Iswadi

• Jurisdiction: Singapore
• Judge: Eric Tin Keng Seng
• Judgment Date: 17 August 2004
• Neutral Citation: [2004] SGDC 186
• Court: District Court (Singapore)
• Year: 2004
• Published date: 26 August 2004
• Plaintiff Counsel: James Bahadur Masir (Messrs James Masir & Co)
• Defendant Counsel: Daphne Chang (Attorney-General’s Chambers)
• Citation: [2004] SGDC 186

17 August 2004

District Judge Eric Tin:

1 This is an appeal against conviction and sentence by Muhammad Zulkiflee Bin Mohd Iswadi (‘Zulkiflee’), who claimed trial to the following charge (exhibit P1A):

“…you, on the 21^st day of Dec 2003, at or about 2.40 am, at outside Moon Night KTV, along Tras Street, Singapore, being members of an unlawful assembly, together with Mohammad Ferdauz, Mohammad Noor Bin Akbar, Syed Mohammad Najib Bin Syed Ali Alkaff and Syed Mohammad Nabil Bin Syed Ali Alkaff, whose common object was to cause hurt to members of a rival group, Mohammad Yazid Bin Rapsen, Dzulkifli Bin Mohamed Ali, Mohammed Rizal, and in the prosecution of the common object of the said assembly, some of you all did use violence on the said rival group, to wit, by kicking and punching them, and you have thereby committed an offence punishable under Section 147 of the Penal Code, Chapter 224.”

2 Zulkiflee was jointly tried with Mohammad Noor Bin Akbar (‘Noor’), Syed Mohammad Najib Bin Syed Ali Alkaff (‘Najib’) and Syed Mohammad Nabil Bin Syed Ali Alkaff (‘Nabil’), who faced similar charges (exhibits P2A to P4A). He was defended by Mr James Masih, while Noor, Najib and Nabil were defended by Mr Gaznevi. At the end of the 7-day trial, I found all of them guilty and convicted them. Zulkiflee was sentenced to 24 months’ imprisonment and 6 strokes of the cane. I now give my reasons.

The prosecution’s case

First information report

3 Inspector Norazlin Jusoff (PW1), the investigating officer, testified that on 21 December 2003 at about 2.28 am, the police received a 999 call from a “Mr John”. The location given was “Tras St, ‘Moon Night’ Pub”. The first information report message (exhibit P6) reads:

“I am giving information…I heard some customers here saying that they are going to have settlement talks after 3.00 am.”

4 A team of three police officers was despatched to the scene in an unmarked police car. At about 2.45 am, they arrived in the vicinity of Tras Street where Moon Night KTV (‘the KTV’) was located. The layout of the area can be found in the sketch plan produced by PW1 (exhibit P7), and photographs taken by the police (exhibits PP1 to PP8). Staff Sergeant Jayaram (PW2) alighted from the car and mounted observation about 20 metres diagonally opposite the KTV near the “9.7 metre” mark. Staff Sergeant Robin Chia (PW4) and Station Inspector Daniel Tan (PW5) conducted surveillance in the car which was parked 20 to 30 metres away from the KTV near the fire hydrant.

Evidence of arresting officer (PW2)

5 From his observation point, PW2 first noticed two men of similar built in light coloured shirts walking towards the KTV. They walked in an aggressive manner, swinging their arms widely by their side. One of them dragged an umbrella with its tip on the road. PW2 identified the duo as Najib and Nabil. The duo walked to the KTV entrance and met three others there. They shook hands and conversed briefly. PW2 later identified the three as Noor, Zulkiflee and Mohammad Ferdauz (‘Ferdauz’). All five then walked from the KTV towards the junction of Tras Street and Wallich Street. Thinking that they had a destination, PW2 followed six to seven metres behind them. At the same time, he informed PW5 on his mobile phone to take note of this group.

6 PW2 noted that this group walked in a formation with Najib and Nabil in front, followed by Noor, Ferdauz and Zulkiflee. All 5 were about an arm’s length apart from each other. The group walked briskly, then rushed towards another group of three persons who were walking ahead of them towards the junction. Near the junction, members from both groups exchanged punches. PW2 also noticed either Najib or Nabil using an umbrella to hit one of the members in the smaller group.

7 After about 30 seconds of fighting, all of them suddenly stopped. They broke up into their two groups and started talking. PW2 heard the utterance of “Sa La Kau”, which he understood as a Hokkien reference to the “369” secret society gang, amid their heated verbal exchange. PW2, who was armed, then identified himself as a police officer, whereupon members of both groups tried to disperse in different directions by walking away quickly. By then PW4 and PW5 had alighted from the car and came forward. The three officers then arrested the eight persons. PW2 confirmed that he arrested Najib and Nabil. The umbrella, which had broken into two (exhibit P5), was also recovered at the scene.

Evidence of arresting officer (PW4)

8 PW4 testified that during the observation, he sat at the driver seat in the car and concentrated more on the KTV side, while PW5 sat next to him and focused on the road opposite the KTV. PW4 initially saw a few men mingling outside the KTV. PW5 then alerted him to two men who wore light coloured shirt and jeans, walking out from the lane opposite the KTV. At that moment, PW4 saw the duo swinging their arms like gangsters and one of them dragging an umbrella with its tip on the floor. PW4 could not really see their faces, but their unusual way of walking drew his attention. He saw the duo proceeded to the KTV and another three men waiting for them outside there. All five had a short conversation. At the same time, PW4 saw another three persons walking slowly from the KTV towards the junction of Tras Street and Wallich Street. As they approached the junction, the five men that PW4 saw earlier walked very fast towards them and a fight started.

9 PW4 and PW5 immediately alighted from the car and rushed towards the fight. When PW4 arrived at the junction, two of those involved in the fight tried to walk away quickly towards International Plaza. PW4 confirmed that he arrested Dzulkifli Bin Mohamed Ali (‘Dzulkifli’) and Mohammed Rizal (‘Rizal’). He was very sure all those involved in the fight were arrested.

Evidence of arresting officer (PW5)

10 PW5 testified that while he was in the car paying attention to the area opposite the KTV, he noticed two men with similar small built and in light coloured clothes walking along Wallich Street and then turned left towards Tras Street. They were swinging their hands by their side and one of them was dragging an umbrella on the ground. PW5 alerted PW4 to what he saw. After a while, PW5 saw the duo came out from a small lane and walked towards a group of people in front of the KTV. PW5 then received a call from PW2 that something was going on and to be alert.

11 PW5 then paid more attention to the front of the KTV. He saw three persons walking out from the KTV towards the junction of Tras Street and Wallich Street. When they neared the junction, PW5 noticed a group of about five followed the group of three in a very fast pace and surrounded them. After talking for a while, members of both groups started to punch and kick each other. PW5 and PW4 immediately alighted from their car to stop the fight. As they moved forward, those who fought began to disperse. PW5 confirmed that he arrested Mohd Yazid Bin Rapsen (‘Yazid’) along Tras Street and stopped Noor and Zulkiflee who tried to walk towards Wallich Street. PW5 said he arrested them because they had walked out from among the eight involved in the fight.

Evidence of accomplice (PW6)

12 Ferdauz, aged 16, confirmed that he earlier pleaded guilty to a charge of rioting which named the accused persons, and admitted to the supporting statement of facts which incriminated them (exhibit P10). The relevant portions of the statement of facts read:

7 Investigations revealed that on 21^st December 03 at about 2:35 am, the information at Tras Street was relayed to the witnesses (the arresting officers). Witness A1 (PW2) arrived at the scene and kept his observation from opposite the Moon Night KTV. His attention was captured when Accused’s accomplices B7 (Najib) and B8 (Nabil) walked from across Moon Night KTV, one of whom was dragging an umbrella to join their friends outside the KTV. B7 and B8 had a brief conversation with the Accused and the rest of his accomplices, B5 (Zulkiflee) and B6 (Noor), and formed an unlawful assembly.

8 Thereafter, the Accused and his accomplices, together in that unlawful assembly, walked on briskly towards Wallich Street. After a few steps, they ran forward and charged at Victim’s B1 to B3 (Yazid, Dzulkifli and Rizal). B1 to B3 were attacked by the Accused and his accomplices. They were kicked and punched. The umbrella was also used in the midst of the violence. [italicised words mine]

13 However, during cross-examination, Ferdauz claimed that he acted alone in assaulting the victims. He denied any common object between him and the accused persons to cause hurt. His answers in cross-examination amounted to a retraction of the statement of facts. The thrust of his evidence would have merited treating him as a hostile witness. However, due to the DPP’s oversight, she initially did not realise that he had made a prior inconsistent police statement which could be used to impeach his credit. After Ferdauz was released from the witness box, the DPP discovered the statement and applied to recall and cross-examine him. This was before the prosecution had closed its case.

14 Applying the principle in s 399 of the Criminal Procedure Code (Cap. 68), I was of the view that recalling Ferdauz at this stage would not prejudice the defence. On the other hand, Ferdauz’s clarification of why he took a position inconsistent with the statement of facts he earlier admitted would be essential to the just decision of the case. Ferdauz was an important witness of fact as the accomplice in this case. Having sighted the prior inconsistent statement he gave, I was also of the view that there were material discrepancies which merited his explanation. I therefore allowed the applications of the DPP.

15 When he was recalled, Ferdauz admitted that his prior inconsistent statement (exhibit P19) was made voluntarily. The inconsistencies are reproduced here:

A7. Mohammad Noor asked Zul, my girlfriend and I to follow...