S Balakrishnan and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 17 August 2005
• Neutral Citation: [2005] SGHC 146
• Docket Number: Magistrate's Appeals Nos 3 and 4 of 2004
• Date: 17 August 2005
• Published date: 18 August 2005
• Year: 2005
• Plaintiff Counsel: Christopher Bridges (Christopher Bridges)
• Citation: [2005] SGHC 146
• Defendant Counsel: Han Ming Kuang and Christopher de Souza (Deputy Public Prosecutors),Selva K Naidu (P Naidu) and K Mathialahan (Guna and Associates)
• Court: High Court (Singapore)
• Subject Matter: Causing death by rash or negligent act,Appeals,Whether abettor having to be present at scene of offence for abetment to be made out,Sentencing,Whether sentences for offences manifestly excessive,Whether appellant possessing mens rea of culpable rashness,Whether abuse of position of trust and authority factor to be considered in sentencing,Abetment,Criminal Law,Sections 304A, 338 Penal Code (Cap 224, 1985 Rev Ed),Requirements of abetment by instigation,Section 109 Penal Code (Cap 224, 1985 Rev Ed),Requirements of abetment by illegal omission,Offences,Criminal Procedure and Sentencing

17 August 2005

Yong Pung How CJ:

1 The joint appeals before me arose from events which ensued during the 80th Combat Survival Training Course (“80th CST course”) organised by the Singapore Armed Forces (“SAF”) in August 2003. One trainee, Sergeant Hu Enhuai (“Sgt Hu”), died and another, Captain Ho Wan Huo (“Capt Ho”), was seriously injured, as a result of the treatment meted out to them during the course. Both appellants were charged and convicted under ss 338 and 304A of the Penal Code (Cap 224, 1985 Rev Ed). Being dissatisfied with the outcome of the trial, both appealed before me on conviction and sentence.

The charges

2 Both appellants were army officers. The first appellant, Warrant Officer S Balakrishnan (“WO Balakrishnan”) claimed trial to two charges. The first charge pronounced:

You, S Balakrishnan (Male/45 years) (NRIC No. S1392115/F), are charged that you, on the 21^st day of August 2003 at about 3.00 p.m., at Pulau Tekong, Singapore, as the Course Commander of the Combat Survival Training Course, did abet by intentional aiding Divanandhari s/o Ambat Chandrasekharan, Ng Chin Fong, Toh Keng Tiong, Tan Tien Huat and Shashi Kumar to cause grievous hurt to one Ho Wan Huo (NRIC No. S7824734/G) by doing an act so rashly as to endanger human life, to wit, by illegally omitting to prevent them from pushing the said Capt Ho’s head several times into a tub of water, holding it down for up to 20 seconds each time and preventing him from surfacing to breathe, thus causing him to suffer near drowning with acute respiratory distress syndrome, which act was committed in consequence of your abetment and you have thereby committed an offence punishable under section 338 read with section 109 of the Penal Code (Cap 224).

3 The second charge stated that WO Balakrishnan’s illegal omission to prevent the actions of the others named in the charge caused the death of Sgt Hu, and that this was an offence punishable under s 304A of the Penal Code

4 The second appellant, Captain Pandiaraj (“Capt Pandiaraj”), faced two charges of abetment by instigation. The first charge read:

You, Pandiaraj s/o Mayandi (Male/33 years) (NRIC No. S7098083/E) are charged that you, on the 21^st day of August 2003 at about 2:30 p.m., at Pulau Tekong, Singapore, as the Supervising Officer of the Combat Survival Training Course and the Officer Commanding of the Commando Training Wing of the School of Commando, did abet by instigation, Divanandhari s/o Ambat Chandrasekharan, Ng Chin Fong, Toh Keng Tiong, Tan Tien Huat and Shashi Kumar to cause grievous hurt to one Ho Wan Huo (NRIC No. S7824734/G) by doing an act so rashly as to endanger human life, to wit, by instructing them to immerse the heads of trainees underwater for four times and to keep the trainees’ heads underwater for up to 20 seconds each time, which act was committed in consequence of your abetment and you have thereby committed an offence punishable under section 338 read with section 109 of the Penal Code (Cap 224).

5 The second charge against Capt Pandiaraj was phrased in like vein, but related to the doing of a rash act not amounting to culpable homicide under s 304A of the Penal Code, thereby causing the death of Sgt Hu.

6 Each appellant was convicted on both charges pressed against him. WO Balakrishnan was sentenced to two months’ imprisonment on each charge, whilst Capt Pandiaraj was sentenced to three months’ imprisonment on each charge. The sentences were ordered to run concurrently. Both WO Balakrishnan and Capt Pandiaraj appealed against conviction and sentence.

7 Two other officers present during the 80th CST course, Lieutenant Jeff Ng Chin Fong (“Lta Jeff Ng”) and Lieutenant Divanand Hari (“Lta Diva”), stood trial with WO Balakrishnan and Capt Pandiaraj. Each was convicted of two charges under ss 304A and 338 of the Penal Code read with s 34 of the Penal Code. Lta Jeff Ng and Lta Diva were both sentenced to nine months’ imprisonment on each charge, with the sentences to run concurrently. Neither appealed the decision below.

The facts

The undisputed facts

8 Combat Survival Courses are conducted by the Commando Training Wing (“CTW”) of the School of Commandoes. Capt Pandiaraj was the Officer Commanding (“OC”) of CTW and the Supervising Officer of the 80th CST course. A Second Warrant Officer (“2WO”) in CTW, WO Balakrishnan was the course commander and conducting officer for the 80th CST course. The CTW is under the command of the OC, who reports to the Commanding Officer (“CO”) of the School of Commandoes, who in turn answers to the Chief Commando Officer.

9 The 80th CST course was held from 13 August 2003 to 22 August 2003. 133 trainees were selected from various units of the SAF to undergo the course. Capt Ho and Sgt Hu were among them. A regular serviceman, Capt Ho was a Scout Platoon Commander attached to the Singapore Infantry Regiment. Sgt Hu, a full-time national serviceman, was a Sniper Platoon Sergeant attached to the Singapore Infantry Brigade.

10 Other personnel involved in the 80th CST course were commando officers and non-commando officers who were there as auxiliary instructors or to enact the role of the “enemy”. The commando officers were mainly from CTW, whilst non-commando officers were largely full-time national servicemen from other SAF units.

11 Classroom lessons were conducted during the first week of the course. Trainees only commenced field training on 18 August in Kampong Permatang on Pulau Tekong. Actual Prisoner of War (“POW”) training began on 21 August. Sgt Hu had already passed the medical examination to qualify for the CST course. The evidence from other trainees was that he was well during the three days of combat survival training and did not complain of hunger or exhaustion. Likewise, there was no evidence that Capt Ho was unwell before POW training began.

12 The POW program began at about 5.00am on 21 August. The trainees were “captured” by other personnel posing as the “enemy”. They were blindfolded and had their hands tied behind their backs with rope. Their ranks and units were identified by writings with coloured markers on their shirts, as well as white tapes tied to the backs of their uniforms. The idea behind this was that higher ranking trainees and those from certain units such as commando and sniper units would be subject to harsher treatment during the exercise.

13 The trainees were first put through “soft” interrogation, which entailed being interviewed by instructors. The “hard” interrogation phase began at about 2.30pm. One of the “hard” interrogation stations was the water treatment station. The water treatment station consisted of a water tub, which had a flat base and was tapered slightly from top to bottom. The tub had a flat rim with a width of eight to nine centimetres. The inside of the tub measured 127cm by 127cm at the top, and 119cm by 119cm at the bottom. The tub had an inside depth of 60cm and was filled to the brim with about 0.85m³ of seawater.

14 Instructors questioned trainees at this station. If trainees did not reveal the information required, their heads would be dunked into the water tub for varying periods of up to 20 seconds. They would be brought up to the surface for a short period of time and questioned. If they failed to answer, they would be submerged again. This procedure would be repeated several times before they were brought to the “jerry can” station, where they had to hold jerry cans filled with water whilst maintaining “stress” positions.

15 Prior to the “hard” interrogation phase, Capt Pandiaraj briefed the instructors. He stipulated that all trainees should be treated equally. Instructors were not to manhandle the trainees or be too harsh on them. Trainees were to be dipped three to four times each, for up to 20 seconds each time. Two of the accused in the trial below, Lta Jeff Ng and Lta Diva, as well as two other instructors, Staff Sergeant (“SSgt”) Tan Tian Huat, and Lta Ryan Toh Keng Tiong, were assigned to the water treatment station.

16 Capt Ho was brought to the water treatment station sometime after 2.30pm that day. Blindfolded and with his hands bound behind his back, he was dunked several times. He was later conveyed to the Tekong Medical Centre, before being evacuated to Singapore General Hospital (“SGH”) by helicopter and admitted to the Intensive Care Unit. He was diagnosed as having suffered near drowning with acute respiratory distress syndrome and was only discharged eight days later.

17 Blindfolded and bound, Sgt Hu took his turn at the water treatment station later that day. He was conveyed to the Tekong Medical Centre at 5.11pm, evacuated to SGH by helicopter at 5.43pm and declared dead at 6.17pm. His certified cause of death was asphyxia and near drowning.

Case for the Prosecution

18 The Prosecution paraded a large number of witnesses before the court. It is unnecessary to detail the evidence given by every witness in my grounds of decision. Instead, the testimony of material witnesses will be set out to reflect the chronological order of events on 21 August 2003.

The briefing

19 SSgt Chen Chye Hwa, an assistant instructor whose job was to enforce discipline during the course, was at the briefing before the “hard” interrogation phase began. He stated that Capt Pandiaraj did not talk about the sequence of the water treatment or discuss any safety measures to be taken with regard to the treatment. The briefing by Capt Pandiaraj lasted about one to two minutes, after which WO Balakrishnan took over. WO Balakrishnan explained the sequence of stations that the trainers needed to go through, but did not detail how the water treatment should be carried out.

Position of the appellants during the water treatment exercise

20 I will deal first with the evidence pertaining to the whereabouts of Capt Pandiaraj during the exercise. The evidence from various witnesses placed Capt Pandiaraj at the administration tent, which was just five metres away from the water tub,...