Public Prosecutor v Ong Lin Jie

• Jurisdiction: Singapore
• Judge: Kaur Jasvender
• Judgment Date: 22 August 2022
• Neutral Citation: [2022] SGDC 187
• Court: District Court (Singapore)
• Docket Number: DAC 930234 of 2019, Magistrate’s Appeal No. MA-9034-2022-01& 02
• Published date: 30 August 2022
• Year: 2022
• Hearing Date: 18 March 2021,19 March 2021,29 March 2021,30 March 2021,14 June 2021,15 June 2021,16 June 2021,17 June 2021,15 October 2021,22 November 2021,20 December 2021,24 February 2022
• Plaintiff Counsel: Hay Hung Chun, Zhou Yihong, Angela Ang and Benedict Chan (Attorney-General's Chambers)
• Defendant Counsel: Teo Choo Kee (CK Teo & Co.) (all dates up to 22 November 2021) and Thrumurgan s/o Ramapiram (20 December 2021 and 24 February 2022 only) (Trident Law Corporation)
• Subject Matter: Criminal law,Offence,Rash act,Section 304A(a) Penal Code (Cap 224, Rev Ed 2008)
• Citation: [2022] SGDC 187

District Judge Kaur Jasvender:

The accused was the Vehicle Commander of the Land Rover MID 33299 (‘Land Rover’) of which full-time national serviceman Corporal First Class Liu Kai (‘deceased’) was its driver. The gravamen of the allegation in the charge under s 304A(a) of the Penal Code (Cap 224, Rev Ed 2008) is that the accused is responsible for the death as his decision to order the deceased to overtake the Bionix Infantry Fighting Vehicle (‘Bionix’) MID 63618 with call sign 13 (‘BX13’) was rash because it was unsafe not to keep to the safety distance of 30 meters without first having established communications due to the real risk that BX13 would be engaged in a ‘fire fight’ and consequently execute an extrication drill, and that the risk eventuated when BX13 reversed as a consequence of the extrication drill and mounted the deceased’s side of the Land Rover which resulted in his death.

I was satisfied that the charge was established beyond a reasonable doubt, and the accused was accordingly found guilty and convicted. He was sentenced to five months’ imprisonment. The accused has appealed against that conviction and sentence. The Public Prosecutor sought a sentence of nine months’ imprisonment and has cross-appealed against the sentence.

Established factual background

The incident occurred on 3 November 2018, in the middle of a three-day military exercise (‘the Exercise’) at the Tracked Vehicle Maneuver Area (‘the training area’) near Sungei Gedong Camp. The Exercise involved the Kaffir Company and a platoon from the Jaguar Company from the 42nd Battalion, Singapore Armoured Regiment.

The mission of the Kaffir Company was to advance from the North of the training area and secure an objective known as the Murai Urban Training Facility (‘MUTF’) in the South of the training area. A platoon from Jaguar Company led by Platoon Commander Second Lieutenant Nathaniel Ho Chang Han (‘2LT Ho’) acted as the ‘opposition force’ (“the OPFOR”). The OPFOR was tasked to delay the advance of Kaffir Company towards the MUTF and to defend the MUTF. The Kaffir Company deployed 11 Bionix vehicles and the OPFOR deployed three Bionix vehicles in the Exercise.

The OPFOR’s plan was to defend by positioning one Bionix vehicle each at the Western, Central and Eastern sectors near strategic junctions along axes, which were called ‘delay lines’. There were four delay lines planned to coordinate between the vehicles. At the delay points, the OPFOR would await possible Kaffir Company forces and engage them in ‘fire fights’.

The first delay line was along the Winter Axis, with BX13B positioned near E25, BX13 near to F22 and BX13A near F19. BX13A was ‘destroyed’ at this first delay line during its engagement in a ‘fire fight’ with the Kaffir Company. Thereafter, the remaining two OPFOR Bionix vehicles continued to delay the Kaffir Company. The second delay line was planned near to F87 along the Jaguar axis for BX13B and F28 along Malcom 1 axis for BX13. The third delay line for BX13B was along the Jaguar axis and along Wira axis near to F40 for BX13. The last delay line, which was named ‘Line Odysseus’ by 2LT Ho, was at F65 before F64B for BX13B and along the Honda axis from F63 leading to F64B for BX13.

The only junction which led to MUTF was F64B and the axes which provided access to F64B were Sunny 1, Ferrari, Nissan, Lada and Honda.

The accused’s role in the exercise

The accused held the rank of Captain and the appointment of a Platoon Trainer with the Armour Unit Training Centre (“AUTC”), Armour Training Institute. He was tasked to be the trainer for OPFOR for the Exercise. He was briefed on OPFOR’s plans before the exercise by 2LT Ho.

His role required him to move around the training area in a Land Rover to observe and provide feedback on the performance of the Vehicle Commanders of the OPFOR’s three Bionix vehicles, to ensure safety procedures were adhered to and to act as arbiter in determining the outcome of any ‘fire fight’ that he observed. The accused was able to communicate with the OPFOR Bionix vehicles through his in-vehicle radio signal set.

The accused was the Vehicle Commander of the Land Rover in which he and the deceased were. As the Commander of the vehicle, he was responsible to ensure the safety of the deceased who was the driver.

Events at the first and second delay lines

The accused testified that he advised 2LT Ho at F28 to point BX13’s turret towards the Eastern sector instead of North-West to cover the gap left by the ‘destruction’ of BX13A. 2LT Ho agreed that the accused had approached him at one point during the Exercise but he was no longer able to remember at which delay point it was and the conversation due to the passage of more than two years.

It was also the accused’s evidence that he saw BX13B in close proximity to F28 at that stage when he spoke to 2LT Ho. He said he advised 2LT Ho that the two Bionix vehicles should not be positioned closely. There was a conflict in evidence on whether BX13B was in fact in close proximity to F28, as the accused claimed. According to Third Sergeant Koh Chong Min (‘3SG Koh’), who was the Vehicle Commander of BX13B, he started off at his first assigned delay point near to E25, and moved down the Jaguar axis to the second delay point near F87.

The accused claimed that BX13B was still in the ‘vicinity of F28’ after he spoke to 2LT Ho. I found it hard to accept that BX13B would have remained in the ‘vicinity of F28’ if the accused had indeed pointed out that their distance was too close. More significantly, 3SG Koh and 2LT Ho were certain that they were defending at their planned delay points in the Western and Central sectors respectively. It did not make sense for 3SG Koh to leave the Western sector unguarded and to move down to F28. Further, if BX13B had moved down to F28, it would have had to move up North again to return to the Western sector in order to proceed down along the Jaguar axis. This too is illogical. Moreover, the audio transcript supports that 3SG Koh was moving according to the plan along the Jaguar axis. At 09:42:37, 2LT Ho said “If necessary you might need to move to the second position that I told you as well, the (unclear)”. 2LT Ho explained that the ‘second position’ referred to the third delay position around F42 and F43 near the Jaguar axis. At 09:51:39, 3SG Koh replied that he had already stopped there. Accordingly, I rejected the evidence of the accused that he saw BX13B at the vicinity of F28. I accepted the evidence of 2LT Ho that he did not see BX13B in the vicinity of F28 and 3SG Koh’s evidence that he travelled according to the planned route from delay points E25 to F87.

Events at the third delay line

Turning now to the third delay line. There is no dispute that BX13 was positioned along the Wira axis near F40 and facing North. The accused was adjacent to F40. He was along the Toyota axis between F40 and F41 (at what appears to be a marking ‘11’ on the map P7) and facing East. The accused’s evidence is that he believed BX13B was at around F43 in the West at this juncture, according to its planned delay point.

After about 15 minutes, at 09:48:44, 2LT Ho instructed BX13B to pull back to line Odysseus because he gauged the enemy vehicles were very close based on the Bionix engine noises that he heard. He informed 3SG Koh that BX13 was also pulling back.

2LT Ho was familiar with the route to the last delay line at F64B. BX13 made a U-turn in order to travel down South. It took the Nissan axis at F53 to travel to F54. It slowed down before F54 upon seeing a Bionix ahead at the F63 junction. It came to a stop at about 09:51:40. About six seconds later (about 09:51:46), the Land Rover stopped at a distance of about 30 to 31 meters behind BX13. At 09:52:07, the accused instructed the deceased to drive the Land Rover forward and to overtake BX13. As the deceased was moving forward, at 09:52:11, gunshots were fired. Upon hearing the gunshots, the deceased stopped the Land Rover. This final position was about 16 to 18 metres from BX13. At 09:52:19, BX13 began to reverse as part of an extrication drill. At 09:52:27, BX13 reversed into the Land Rover and partially mounted it before coming to a stop.

Evidence of prosecution’s witnesses

I summarise below the salient aspects of the evidence of the 13 witnesses for the prosecution.

Evidence of PW1 – Captain Wan Hong Wee (‘CPT Wan’)

CPT Wan is a SAF regular since 2011. In November 2018, he was attached to the Armour Training Institute. He was the conducting officer for the Exercise.

He testified that the Kaffir Company and the OPFOR obtained approval for their respective plans on how to achieve their objectives before the start of the Exercise. He said the accused would have been aware of the broad plans of both sides. He stated the trainers conducted a table-top exercise of Kaffir’s plan during which the locations where the firefights were expected to occur, the different scenarios and training objectives were discussed. He said a trainer must have situational awareness in order to position himself at critical junctions to perform his role. He agreed under cross-examination that the Vehicle Commanders had the flexibility to decide on how to advance Southwards.

CPT Wan briefed the participants on certain safety aspects. He stated a safety distance of 30 meters is required to be maintained with an armoured vehicle and the onus is on the rear vehicle to adhere to the safety distance. The rationale for the safety distance is to prevent collisions as the distance provides for reaction time.

As a junction connects various axes, he said it poses a potential danger to the Bionix, as it may encounter an enemy vehicle or obstacle and there may also be blind spots. He was asked¹: Q So, following on from what you’ve told us, in a combat movement, what does it mean when a BX, a Bionix vehicle that is moving stops completely before a...