Shamsul bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 26 August 2002
• Neutral Citation: [2002] SGHC 191
• Docket Number: Magistrate's Appeal No 145 of 2002
• Date: 26 August 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Khor Wee Siong (Khor Thiam Beng & Partners)
• Citation: [2002] SGHC 191
• Defendant Counsel: Jaswant Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Prosecution not producing all the weapons used or actual weapon causing relevant injury,Whether and when appellate court can intervene,Appeals,Trial judge's findings of fact,Unlawful assembly,Whether poles qualified as 'weapons',Nature of offence,Relevance of prior violent offence record of accused,Weapon used,Number of participants,Courts and Jurisdiction,s 149 Penal Code (Cap 224),Whether necessary for prosecution to do so in such offences,s 326 Penal Code (Cap 224),Criminal Procedure and Sentencing,Criminal Law,Standard of trial judge's scrutiny of evidence and witnesses' demeanour,Relevance of premeditation,Whether unlawful assembly proven if assembly consists of convicted persons and other unidentified persons,Factors taken into account when sentencing,Sentencing,Voluntarily causing grievous hurt,Offences,Relevance of group action

have substituted her judgment for the professional judgement of a medical doctor. The case cited is totally irrelevant to the case at hand. An alert man has a lot more poise than an alert man who is in a terrible amount of pain. There is no need for long-term empirical research to arrive at such a conclusion (see 10 -11).

(4) As regards the doctor’s opinion that the injury suffered by the victim could also have been caused by a fall backwards, the trial judge rightly pointed out that the appellant stated that Thomas (who was alleged by the appellant to have been there) was behind Nicholas when the appellant caused Nicholas to fall. If this is so, then Thomas would have broken Nicholas’s fall, and the chance of a serious cut on top of his head would be extremely unlikely (see 12).

(5) The arrangement of bricks at the time Nicholas fell, the appellant argues, was one single row along the wall, of one brick height. Naturally, this arrangement is more conducive to his story that Nicholas fell backwards and cut the top of his head on the row of bricks. He contends this despite a) the fact that the police took the photos at 4.45am the same morning and b) that the police arrived on the scene almost immediately. In short, if the bricks were re-arranged as the appellant contends, they would have to have been re-arranged right under the noses of the police officers. This, of course, is unlikely. Even if we allow the appellant’s argument, how can the appellant explain the second lot of injuries on Nicholas’s face – ie the fracture of the facial structure/orbit on the right? (see 12-13).

(6) There is nothing so incredible about Nicholas’s explanation for the absence of injuries on his hands. The absence of injuries to the victim’s hands does not prompt the conclusion that he must have been the assailant himself (see 14).

(7) The district judge was aware that Lim and Nicholas had been drinking prior to the events at the appellant’s home. However, the doctor who examined Nicholas at hospital testified that the victim did not show signs of disorientation (see 15).

(8) It is the appellant’s case that it is due to his elite training that he was able to fend off four men without a scratch. But if the commando was not deferent to fear why did he switch off his lights in order to lead the supposed gang to the belief that he was not in? And if he wanted to lead them to believe that he was not in, why didn’t he shut and lock the metal grill and door? Instead he left the door and the grill unlocked. There was no gang which came to attack the appellant (see 16).

(9) There was no blood to be found in the house. This might tally with the appellant’s claim that Nicholas fell backwards hitting his head on its vertex. This theory is rejected. The two pools outside the house and there being no blood trails in the house can be explained by the trial judge’s description of what could very actually have taken place. Nicholas only testified that he fell unconscious in the appellant’s house. Thus, it could be that he was continually beaten even outside the flat, but not to his knowledge (see 17).

(10) The total number of weapons is not important. The two poles could have been the weapons which rendered the injury to Nicholas. But they need not have been – this is so because of the nature of the unlawful assembly offence and how it aims to attribute culpability through the medium of (potentially) just one act (see 18).

(11) All other members, though using weapons which did not administer the fateful blow, are vicariously liable through that one relevant action. Following this philosophy, there need not be presented and accounted at trial the full compliment of weapons, and there need not be present the one key weapon which dealt the fateful blow. It is not imperative that the prosecution produce the actual weapons used in an assault. It could very well have been the case that more poles than these two were used (see 18-19).

(12) It is noteworthy that Nicholas stated on the stand that if need be he would fight with the appellant at his home. The Court does not approve of Nicholas’s desire to resolve issues through the fist as a last resort, but the bottom line is this – he was not even given a chance to speak with the appellant (see 25).

(13) The sentence delivered by the trial judge was in line with the Practitioner’s Library, ‘Sentencing Practice in the Subordinate Courts’, 2000 (see 23).

Case(s) referred to

Yap Giau Beng Terence v PP

[1998] 3 SLR 656

Lim Ah Poh v PP

[1992] 1SLR 713

Teo Keng Pong v PP

[1996] 3 SLR 329

Sundara Moorthy Lankatharan v PP

[1997] 3 SLR 464

Ng Soo Hin v PP

[1994] 1 SLR 105

Kwan Peng Hong v Public Prosecutor

[2000] 4 SLR 96

Dr James Khoo and Others v Gunapathy d/o Muniandy

[2001]

Legislation referred to

Penal Code (CAP224) ss149, 326

Textbooks referred to

Practitioner’s Library, ‘Sentencing Practice in the Subordinate Courts’, 2000.

Ratanal & Dhirajlal’s ‘Law of Crimes : A Commentary on the Indian Penal Code’ 2002 Delhi

Judgment

GROUNDS OF DECISION

By virtue of s 149, Cap 224, and s 326 of the Penal Code, the appellant was sentenced by District Judge Lee Poh Choo to 4 years and 6 strokes of the cane for participating as a member of an unlawful assembly whose common intention was to cause grievous hurt to one Perez Nicholas. He appealed against both conviction and sentence. I dismissed the appeal. I now give my reasons.

The Facts

2 The three main characters in this case – the appellant, the victim, and the fifth prosecution witness, Lim Ong Kim (Lim) – all knew each other. On the night of 28 November 2001, the victim (Nicholas), Lim, and a few others were drinking at a coffee shop at Block 412 Bedok North Street 3 when four persons came to the coffee shop. One of them pointed to the accused and challenged him to a one on one fight. The appellant (Shamsul) was reluctant to take up the offer of a fight, but nonetheless went out of the coffee shop where a quarrel began. This soon developed into a fight. The appellant called for Nicholas and Lim to help him, but the latter two did not get involved. According to Lim, the fight was an ‘inside matter’ and since neither Lim nor Nicholas had anything to do with the reason behind the brawl, they left after finishing their drinks. Lim and Nicholas departed whilst the brawl was still in progress. As a consequence, the appellant suffered the worse for it, and was resentful of the fact that the two did not aid him in his hour of need.

3 On the evening of 4 December 2001, Lim and Nicholas went to Bedok Interchange to have a few drinks. At about 1 am the appellant rang Lim on his hand phone and asked to speak with Nicholas.

4 The conversation over the phone consisted of a heated quarrel which stemmed from the appellant’s dissatisfaction that Nicholas did not help him when he (the appellant) was trying to fend off an attack on 28 November 2001. Both Lim and Nicholas went to the appellant’s place by taxi. Lim waited downstairs since he did not have anything to do with this matter between Nicholas and the appellant. Nicholas made his way up the staircase, and when he reached the appellant’s unit on the third floor, he found the door wide open. The metal gate was closed but the wooden door was open. He saw the appellant in the kitchen and decided to open the metal gate to enter the flat. This he did. When motioning through the living room on the way to the kitchen, four males pounced on him, and very quickly began to hit him. Nicholas was sure he was being beaten with poles. At least two of the four men carried poles. He knew this because these two men were directly in front of him. Nicholas did not see these four men when he entered the unit, and expressed that they must have been waiting for him in the two rooms next to the living room.

5 Thus, an ambush was carried out on Nicholas by four men. The appellant was stationed in the kitchen. Including the appellant, there were five in total.

6 In the scuffle, Nicholas tried to protect his head from the blows by raising his hands in front of his head in a defensive fashion. He was continually beaten by poles until he felt a heavy whack on his head. This was the last thing he remembered of the scuffle. His next conscious moment was in hospital.

7 The victim suffered ‘fracture of the facial bones and fracture on the skull following the sagital suture’. The victim also suffered ‘a deep 5cm laceration on the vertex of his head with bone seen underlying the wound.’ The victim was warded in hospital for 11 days.

The decision below and the appeal

8 The appellant contends that the District Judge overlooked or misconstrued a total of eight matters in coming to her findings. It is apt here to re-visit the principles governing this Court in the sphere of appellate intervention. In the case of Yap Giau Beng Terence v PP [1998] 3 SLR 656 this Court ruled:

It is trite law that an appellate court should be slow to overturn the trial judge’s findings of fact, especially where they hinge on the trial judge’s assessment of the credibility and veracity of the witness, unless they can be shown to be plainly wrong or against the weight of the evidence

This principle has been articulated in Lim Ah Poh v PP [1992] 1SLR 713 at 719, Teo Keng Pong v PP [1996] 3 SLR 329 at 342, Ng Soo Hin v PP [1994] 1 SLR 105, Sundara Moorthy Lankatharan v PP [1997] 3 SLR 464. The standard required of the District Judge’s scrutiny of the evidence and the witnesses before him is an extremely demanding one, as emphasised by this Court in the case of Kwan Peng Hong v Public Prosecutor [2000] 4 SLR 96. Without such a strict test at the trial stage, it would be a nonsense to have a principle such as that expressed in Yap Giau Beng Terrance. Quite to the contrary, the two cases have a similar aim – a strict standard at the trial stage, which once met, should signal the appellate court not to intervene unless, of course, something is seen to be...