R Yoganathan v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 September 1999
• Neutral Citation: [1999] SGHC 241
• Docket Number: Magistrate's Appeals Nos 52/99/01
• Date: 13 September 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Chandra Mohan K Nair and MK Eusuff Ali (Tan Rajah & Cheah)
• Citation: [1999] SGHC 241
• Defendant Counsel: Kow Keng Siong and S Sellakumaran (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Proof of evidence,ss 320(h) & 326 Penal Code (Cap 224),Presumptions,Whether presumption should be drawn,Whether sentence manifestly inadequate,Whether any reason to interfere with trial judge's findings of fact,Offences,Criminal Procedure and Sentencing,Criminal Law,Evidence,Appeal,Onus of proof,Failure to call witnesses by prosecution,Whether burden shifts to the defence,Grievous hurt,Whether injury amounts to 'grievous hurt',Sentencing,s 116 illustration (g) Evidence Act (Cap 97)

: The accused, R Yoganathan, was convicted in the subordinate courts of the offence under s 326 of the Penal Code (Cap 224) of voluntarily causing grievous hurt by means of an instrument which, used as a weapon of offence, is likely to cause death. The district judge sentenced him to 18 months` imprisonment and six strokes of the cane. He appealed against his conviction and sentence, whilst the Public Prosecutor filed a cross-appeal against sentence. I dismissed the former appeal and allowed the Public Prosecutor`s cross-appeal. I now give my reasons. For ease of reference, I have referred to the accused as `the appellant` and the Public Prosecutor as `the respondent`.

The facts

The appellant, a security manager at a bar, was originally jointly charged with one of the defence witnesses, Anailam Kalingarayar Vasoo (DW2), with voluntarily causing grievous hurt to Rajendar Prasad Rai (`Rai`), a licensed money-lender, by means of a knife under s 326 of the Penal Code read with s 34. The charge against DW2 was subsequently dropped and the charge against the appellant amended to read as follows:

You, R Yoganathan, m/34 years old NRIC No S 1669170 D are charged that you on or about 22 June 1998 at or about 2.05am, at No 15 Cairnhill Road, Cairnhill Place, Singapore, did voluntarily cause grievous hurt to one Rajendar Prasad Rai, to wit, causes the said Rajendar Prasad Rai to be, during the space of 20 days, unable to follow his ordinary pursuits, by means of a knife, which used as a weapon of offence, is likely to cause death, and thereby committed an offence punishable under s 326 of the Penal Code (Cap 224).

Section 326 of the Penal Code states that

[w]hoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.

For the purposes of this offence, hurt is deemed to be `grievous` if it falls within the kinds of hurt set out in s 320.

At the trial, the prosecution and the defence tendered conflicting accounts of the events leading up to and surrounding Rai`s stabbing.

The prosecution`s case

The prosecution`s case was that a fight had broken out between Rai and DW2 outside `Bodyshock` discotheque at Cairnhill Place in the early hours of 22 June 1998. The appellant had intervened in the scuffle, and had in the process stabbed Rai with a knife. In support of its case, the prosecution called on Rai and Jasmani bin Abdullah (PW1), a security officer working at Somerset Cairnhill Residences next to the discotheque, to give evidence.

Rai testified that he was having a drink at Bodyshock with two of his friends, Rehana Sultanah and Matcalfe Marinda, at approximately 2am on 22 June 1998 when a group of about 15 people, including the appellant, DW2, Jagdew Singh (DW4) and Shaled s/o Hateem (DW5), arrived. DW2 came up to him and asked, with a hint of anger on his face, `So how?` He replied, `There is nothing. What how.` DW2 then asked him to step outside the discotheque. The appellant, DW4 and DW5 also went outside with them.

At the main entrance of Bodyshock, DW2 pulled out a knife from under his shirt with his right hand, pointed it at Rai, and said, `Now I am going to teach you a lesson`. On seeing this, Rai grabbed DW2`s right hand and punched him in the face. DW2 fell, but managed to get up and again tried to stab the former with the knife. Rai punched DW2 a second time, causing him to fall again, this time into a pebbled landscaped enclosure near the entrance to Bodyshock. Rai stepped into the enclosure intending to remove the knife from DW2`s hand. As he bent forward to do so, he sensed someone approaching him from behind. He turned around and saw the appellant coming towards him. The appellant punched him above his right eye, throwing him down. As Rai crouched on the ground, he felt someone kicking and punching him. When he finally managed to stand up, the appellant pulled him by his shirt near the collar and tried to stab him in the chest. Rai held on to the blade of the knife to deflect the blow and pleaded with the appellant, `Yoga, please don`t. Yoga, please don`t.` The appellant, however, persisted in attempting to stab him in the chest at least three times. In the process, the tendon in Rai`s right little finger was cut, and he also sustained many cuts to his hands. The appellant eventually pulled Rai by his shirt, causing him to bend forward, and stabbed him in his back behind his right shoulder. The appellant then pulled the knife out and told him to `F... off`. Rai ran to a nearby road and managed to hail a taxi, which brought him to the Singapore General Hospital (`SGH`).

In cross-examination, Rai stated that he did not know why DW2, whom he had met some three to four months before the incident, and the appellant, whom he considered to be his friend, would want to beat him up as there was no quarrel between them. He speculated that the fight could perhaps have been caused by his previously turning down DW2`s request to place football bets and by the latter`s speaking ill of him to the appellant.

A slightly different version of the events leading up to and surrounding the fight was given by PW1. PW1 stated that the appellant, Rai and a third unidentified Indian man arrived at Cairnhill Road in a taxi at about 2am on 22 June 1998. They entered Bodyshock, and he in turn went into the lobby of Somerset Cairnhill Residences. Shortly after, he heard a commotion coming from the pebbled landscaped enclosure near the discotheque. He left the lobby to check, and saw the appellant and Rai wrestling with each other on the ground. The appellant was then straddling Rai, who was lying on his back. The other Indian man was next to them, and was trying to stop them from fighting. He (PW1) also tried to stop the scuffle, but to no avail. At that point, he saw the appellant take out a knife from his waist pouch. On seeing this, he left the scene of the fight to call the police. Subsequently, based on a set of photographs shown to him at Tanglin Police Station some five months after the incident, he identified the appellant as the person who had been holding the knife at the material time. He testified that he had been unsure of the accuracy of his identification, but had been assured by the investigating officer that he had identified the correct person.

As a result of the fight on 22 June 1998, Rai sustained an 8 cm deep stab wound at the back of his right shoulder as well as multiple lacerations to his face and his right and left ring fingers. The flexor tendon of his right little finger was also cut. Dr Liau Kui Hin (PW3), a medical officer from the Department of Hand Surgery at SGH, testified that these injuries amounted to `grievous` hurt as defined in ss 320(e) and (h) of the Penal Code.

The defence`s case

In contrast, the defence`s case was that Rai and DW2 had engaged in a fight outside Bodyshock on 22 June 1998, in the course of which DW2 stabbed the former. The appellant had merely intervened in the struggle between the two men to separate them, and had not injured Rai at all.

According to the appellant, he went to Bodyshock alone by taxi at about 1.30am on 22 June 1998 to meet his brother, Ramalingam Rajasegar (DW8). This was confirmed by DW8 in his examination-in-chief. The appellant stated that as he walked towards the entrance of the discotheque after alighting from the taxi, he heard noises coming from the pebbled landscaped enclosure nearby. He saw Rai and DW2 tussling with each other in the enclosure, with Rai on top of DW2. He told them to stop fighting, but they ignored him. He thus grabbed Rai by his shirt collar, pulled him off DW2, and pushed him away. He also kicked DW2 in his ribs, admonished the two men for fighting, and told them to `get lost`. He then went into Bodyshock to meet DW8. He was adamant that he did not see any knife or weapon during the fight; neither did he see either Rai or DW2 bleeding as it was dark. He also denied having punched or stabbed Rai and having carried a knife with him that night.

The appellant testified that in mid-July 1998, approximately one month after the fight, Fernando Steven Sugatha (DW3), a mutual friend of his and Rai`s, called him and asked him to meet Rai at the Hyatt Hotel. At that meeting, Rai told the appellant to collect $500,000 from DW2 as compensation for the injuries which the latter (DW2) had inflicted on him (Rai). He warned the appellant that the police had been informed he (the appellant) was the person behind the stabbing. A second meeting between the appellant and Rai took place in the first week of August, during which the latter indicated that he was willing to settle the matter out of court in return for payment of $28,000 from DW2. The appellant related Rai`s offer to DW2, who refused to pay the sum demanded and insisted that he could defend himself in court. The appellant met up with Rai again on 31 August 1998 at Far East Plaza to discuss the question of settlement. He arranged for photographs of this third meeting to be taken and for his conversation with Rai to be recorded. No concrete outcome was reached at the meeting, and there were no further discussions between the two men on the issue of settlement. In cross-examination, the appellant suggested that Rai had falsely implicated him of the s 326 offence because of his failure to get the $28,000 from DW2 and because he had taken photographs...