Public Prosecutor v Norhisham bin Mohamad Dahlan

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 31 October 2003
• Neutral Citation: [2003] SGCA 44
• Date: 31 October 2003
• Subject Matter: Principle of parity of sentencing,Whether life imprisonment appropriate,Sections 34 and 304(a) Penal Code (Cap 224, 1985 Rev Ed),Factors to be considered,Whether violent antecedent of one co-offender justification for disparity between sentences of co-offenders,Sentencing,Culpable homicide not amounting to murder,Criminal Procedure and Sentencing
• Docket Number: Criminal Appeal No 8 of 2003
• Published date: 17 December 2003
• Defendant Counsel: Respondent in person
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Eddy Tham (Deputy Public Prosecutor)

Delivered by Yong Pung How CJ

1 In Criminal Case No 27 of 2003, Woo Bih Li J found Norhisham bin Mohamad Dahlan (the respondent) guilty of culpable homicide not amounting to murder under s 304 (a) read with s 34 of the Penal Code (Cap 224), and sentenced him to ten years in prison and 16 strokes of the cane. The Public Prosecutor appealed for an increase in sentence to one of life imprisonment.

Facts

2 Sulaiman Bin Hashim, a national youth soccer player, was killed in the early hours of 31 May 2001. He was 17 years old.

3 On 30 May 2001, the respondent and seven of his friends were at a discotheque along Mohammed Sultan Road. They were celebrating the birthday of one of them by the name of Muhammad Syamsul Ariffin Bin Brahim (Syamsul). All eight of them were members of a secret society called ‘Sar Luk Kau’. The eight of them proceeded to a nearby coffee shop along River Valley Road at about 3am on 31 May 2001. At the coffee shop, Syamsul and Sharulhawzi Bin Ramly (Sharul) decided to conduct a surprise attack on a rival secret society operating at Boat Quay.

4 Sharul directed two of the persons in the group to go to ‘Rootz’ discotheque, situated at Boat Quay, to scout for rival gang members. The plan was that, if rival gang members were located, the attack would take place. At about 4.20am, the scouts confirmed by mobile phone that rival gang members had been located. These two scouts had also been instructed to prepare two taxis as get-away vehicles for the entire group.

5 The six others, including the respondent, proceeded in two taxis and alighted at Upper Circular Road. They walked along South Bridge Road looking for rival gang members. On the same night, Sulaiman Bin Hashim (the deceased) and his friend Muhammad Shariff Bin Abdul Samat (Shariff) had gone to ‘Rootz’ discotheque at Upper Circular Road. The deceased had been given four complimentary tickets to attend a party at this discotheque. There, the deceased and Shariff met Mohamed Imran Bin Mohamed Ali (Imran). The three of them left ‘Rootz’ discotheque at about 3am and went for supper at a nearby coffee shop along Circular Road. At about 4.30am, they left the coffee shop and made their way to City Hall MRT Station. The route they took was South Bridge Road where they passed the ‘Bernie Goes To Town’ pub located at 82 South Bridge Road. Just then, the gang of six, including the respondent, was walking on the other side of South Bridge Road. The gang crossed the road and approached the deceased, Shariff and Imran from behind. The respondent then confronted the deceased and the other two and asked them in Malay which gang they were from. Before the three could answer, they were attacked. Shariff was stabbed but he and Imran managed to escape. The deceased, however, did not escape. He was repeatedly stabbed by Syamsul, Sharul, and the respondent even after he collapsed onto the steps of the pub.

6 The other three gang members chased after Shariff and Imran but returned to the scene of the crime when their chase turned futile. Muhamad Hasik bin Sahar was one of the three that chased Shariff and Imran.

7 The respondent and the others failed to locate the two get-away taxis, and so left the scene in two other taxis. They headed back to the gang’s rented flat in Tampines. The two scouts who were not in the two taxis were instructed to meet the rest of the gang at the Tampines flat. Once at the flat, the six members cleaned themselves and talked about the assault. The respondent was seen trying to repair his knife which had been damaged in the attack. In the meantime, a passer-by called the police to report that a man was bleeding in front of the pub.

8 The post-mortem report stated that the deceased had sustained a total of 13 stab wounds. It was certified that the cause of death was ‘stab wounds to the neck and chest.’ Shariff was admitted to Singapore General Hospital on 31 May 2001. It was confirmed that he had sustained a 1.5cm wound on the right side of his chest. This wound was caused by a knife. He was discharged on 2 June 2001. Imran did not sustain any injuries from the attack.

9 The respondent had been on the run in Malaysia since 31 May 2001. He was arrested on 30 June 2002.

10 The case of PP v Muhamad Hasik bin Sahar [2002] 3 SLR 149 was decided by Tay Yong Kwang JC (as he was then). Tay JC decided to sentence Muhamad Hasik bin Sahar (Hasik) to a term of life imprisonment which was upheld by the Court of Appeal. From paras 11 and 12 of Tay JC’s judgment, it was clear that Hasik was involved in punching and kicking the deceased before he chased the deceased’s two friends who were attempting to escape. When the deceased’s friends had escaped, Hasik returned to assist the respondent in causing more hurt to the deceased. At this stage, the deceased was not putting up much resistance. Hasik mainly punched and kicked the deceased.

The decision below

11 Woo J accepted the respondent’s plea of guilt and addressed his mind to the issue of sentence under 304(a) of the Penal Code. He was aware of the fact that Tay Yong Kwang JC had sentenced Hasik to a term of life imprisonment. He was therefore fully aware of the fact that if he sentenced the respondent to anything less than life imprisonment it would follow that, by the very nature of s 304(a), there would be a large disparity in sentence, since the next longest sentence available under the provision was ten years’ imprisonment. In particular, Woo J addressed his mind to the fact that Tay JC stated, in the Hasik judgment, that the respondent was more culpable than Hasik. Woo J agreed with this statement in light, inter alia, of (a) the fact that the respondent was armed with a knife and (b) that the respondent was one of the key masterminds behind the attack. However, Woo J explained why he opted for the lesser sentence of ten years and 16 strokes in spite of the fact that the respondent was more active in the planning and slaying of the deceased. The reason stemmed from the fact that, unlike Hasik, the respondent did not have a previous conviction for a violent offence. Woo J stated:

As regards the prosecution’s submission that the accused had progressed from non-violent offences to the present one, I was of the view that this should not mean that he should be treated akin to one who had a previous conviction for a violent offence. Accordingly, his antecedents should have no bearing on the case before me, see Roslan bin Abdul Rahman [1999] 2 SLR 211.

Therefore, it was clear that Woo J had anticipated the issue of disparity in sentence and had addressed his mind to this concern by explaining why he was opting for the ten year tariff rather than the life tariff.

12 Woo J placed significant importance on the Court of Appeal judgment in Tan Kei Loon Allan [1999] 2 SLR 288. In particular, he highlighted the guideline that the court must be cautious in sentencing a young offender to life imprisonment since, after the Court of Appeal decision in Abdul Nasir bin Amer Hamsah v Public Prosecutor [1997] 3 SLR 643, a life sentence meant a sentence for the remainder of the prisoner’s natural life.

13 Of importance was the fact that Woo J recognised that the respondent was more culpable than the respondent in Tan Kei Loon. He stated:

So, here, in the case before me, the position of the accused could be said to be more culpable than the accused in PP v Tan Kei Loon Allan because the attack was planned and the deceased was not even a member of a secret society. Indeed, he and his friends were not given a chance to reply before they were attacked. The accused also appeared to be one of the ring leaders although he did not initiate the suggestion to attack. He did not surrender himself. In such circumstances his plea of guilt, carried little weight, if any. On the other hand, he did not charge in singly to stab the deceased with the fatal wound.

Nonetheless, Woo J was convinced that this high level of culpability did not reach the threshold needed to justify a life sentence. Therefore, there was a correct application of Tan Kei Loon Allan – i.e. if the life sentence is deemed excessive even in light of the high culpability of the accused, then the court must lean on the side of leniency.

14 Similarly, even though the respondent was arguably more culpable than Hasik, Woo J placed heavy emphasis on the fact that the latter had a record of criminal violence whereas the former did not have one. In particular, Woo J relied on the following paragraphs of Tay JC’s Grounds of Decision in Hasik:

He (Hasik) has a (previous)...