Sim Yew Thong v Ng Loy Nam Thomas and other appeals

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 11 September 2000
• Neutral Citation: [2000] SGHC 186
• Date: 11 September 2000
• Subject Matter: Mens rea,Knowledge,Accidental injuries,Criminal Procedure and Sentencing,Whether guilty of offence even though no intention to hurt second victim,No intention to cause hurt to second victim,Sentencing,Whether three months' imprisonment excessive,Assailant pushing first victim causing second victim holding onto first victim to fall,Victim suffering vertebra fracture,Intention,s 321 Penal Code (Cap 224, 1985 Rev Ed),Voluntarily causing hurt,Criminal Law,Offences
• Docket Number: Magistrate's Appeals Nos 319/99/01
• Published date: 19 September 2003
• Defendant Counsel: B Ganesh and A Jeyapalan (Ganesha & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Francis Xavier and Adrianna Tan (Rajah & Tann)

: Facts

The appellants in this case, two brothers, were convicted under s 323 of the Penal Code (Cap 224) (`PC`) of voluntarily causing hurt to the respondents. The respondents were one Thomas Ng Loy Yam (`Thomas Ng`), and his mother Madam Sim Ng Siew (`Madam Sim`).

On 10 October 1998, the respondents, together with about ten of their relatives, went to Bee Low See Temple at 71B Jalan Jurong Kechil, Singapore (`the temple`), to pray for a deceased relative. On that same day, the appellants and their relatives were praying and conducting rites for the appellants` deceased father at the same temple. The first appellant was annoyed by the noise that the respondents` group was making. A scuffle broke out abruptly between Thomas Ng and the appellants over this, in the course of which Thomas Ng and Madam Sim were hurt. Thomas Ng sustained minor injuries. Unfortunately, Madam Sim sustained injuries that were of a more serious nature, namely, a fracture in the lowest vertebrae of her thoracic spine.

The day after the incident, Thomas Ng lodged an official complaint with the police about that incident, alleging that he and his mother had been assaulted by the appellants. The police carried out investigations, but no charges were preferred by the State. Thomas Ng and Madam Sim then took out a private summons, and brought the matter to trial in the magistrate`s courts.

During the trial, two different versions of evidence emerged. Each party made different allegations as to who had been the aggressor, who threw the first punch, and who had in fact caused Madam Sim`s injuries.

The prosecution`s version of evidence

The prosecution`s key witnesses were Thomas Ng, Madam Sim and Thomas Ng`s cousin, one `Ah Hai` (PW4). All three witnesses testified as follows: upon entering the temple, the respondents and their relatives were talking amongst themselves and searching for their deceased relative`s tablet on the shelves. At that time, the appellants and their relatives were chanting and carrying out rituals a few feet away. Suddenly, the first appellant shouted angrily at the respondents in Hokkien:

You are talking so loudly. Do you know what place is this?

At this, PW4 replied in a calm and polite tone:

Brother we can talk over this matter - don`t have to be so loud.

The first appellant continued to shout at PW4, so PW4 walked away and sat down in a chair nearby. Thomas Ng, upon observing this, went up to the first appellant and repeated what PW4 had said. Before he finished his sentence, the first appellant swung his right fist at him, and punched him hard on the left part of his forehead. He fell down to the ground. Madam Sim, who was 67 years old at the time, and hard of hearing, had been oblivious to this, as she was searching for her relative`s tablet on the shelves. At this point, she turned around to talk to Thomas Ng, and saw him lying on the ground. She hurried over to his side, and helped him up by his left arm. The second appellant came charging towards them, and pushed both of them to the ground. As they were lying on the ground, the second appellant kicked Thomas Ng in the lower abdomen. Thereafter, the respondents` relatives intervened and put a stop to the incident. They attended to Madam Sim, who was crying out in pain. An ambulance was called and Madam Sim was conveyed to the hospital. According to the respondents, no one from their group had assaulted either of the appellants at any time.

The other two witnesses called by the prosecution were medical officers who had attended to Thomas Ng and Madam Sim immediately after the incident. The medical evidence showed that Madam Sim had fractured a vertebrae in her lower back. This injury was consistent with her falling down and landing on her bottom. Thomas Ng sustained the following injuries: a bruise on the left side of his forehead, a bruise between his eyebrows, tenderness over his right lower chest, two bruises on his left foot, and abrasions over his upper arm and right wrist.

The defence`s version of evidence

The appellants` version of evidence was different from that given by the respondents. The first appellant gave the following account of the incident, and his evidence was essentially echoed by the second appellant and their sister, DW3: the respondents` group was talking noisily in the temple, and the appellants` younger sister had said `Shhh !` This quietened the respondents` group for a while, but their noise level went up again soon after. The first appellant stood up, stepped forward and told the respondents` group in Mandarin:

Oi. Can you all please not talk so loudly. This is not a supermarket.

At this, PW4 approached him and said something to the effect of

Why are you talking so loudly, we can discuss matters.

To this, the first appellant replied that the respondents were the ones who were disturbing him and not the other way around. Three other persons from the respondents` group joined PW4. Together, the four of them surrounded the first appellant, and were arguing with him. Suddenly, Thomas Ng, who had been outside the temple up to this point, was alerted by the commotion and charged into the temple. He stood behind PW4 and his other three relatives, and joined in the argument. He made an insulting gesture, by pointing his middle finger in the first appellant`s face. The first appellant pushed Thomas Ng`s hand away, whereupon PW4 and the other three persons raised their fists as if to assault him. Then, Thomas Ng, who was still behind his relatives at this point, `jumped up and hit the first appellant`s head with his fist`. Thereafter, the first appellant warded off the blows of his five attackers by blocking them with his arms. Then he heard someone cry out, and the fighting stopped. He saw Madam Sim lying on the ground. The second appellant added that, when he saw Thomas Ng jump up and hit the first appellant, he intervened and defended the first appellant. He parried the blows of the five assailants. Suddenly he heard someone cry out, and he saw Thomas Ng and Madam Sim lying on the ground. Thereafter, one of his sisters called an ambulance, and Madam Sim was conveyed away in the ambulance.

The decision below

At the conclusion of the trial, the learned magistrate who heard the case believed the prosecution`s version of evidence over that of the defence. However, he found that there was no element of `common intention` between the appellants to voluntarily cause hurt to the respondents. Thus, he amended the original charges which they faced, which were charges of voluntarily causing hurt to the respondents with a common intention under s 323 read with s 34 of the PC, to charges of voluntarily causing hurt to the respondents under s 323 of the PC. Thereafter, he convicted the first appellant for one offence of voluntarily causing hurt to Thomas Ng and sentenced him to two weeks` imprisonment. He convicted the second appellant for two offences of voluntarily causing hurt to Thomas Ng and Madam Sim, and passed a sentence of three months` imprisonment for each offence, the sentences to run concurrently. Being dissatisfied with their convictions and sentences, the appellants appealed to me.

Issues in the appeal

Before me, counsel for the appellant argued that the appellants` convictions were against the weight of evidence in the case. He submitted that the magistrate had erred in believing the respondents` version of evidence over that of the appellants`, for there were several material inconsistencies in the testimonies of the respondents` witnesses. He argued that in any event the second appellant should not have been convicted of the second charge for voluntarily causing hurt to Madam Sim, for she had been hurt accidentally. Alternatively, it was argued that the sentences received by both appellants were manifestly excessive.

The appeal

The alleged `material inconsistencies` in the respondents` evidence

Faced with two versions of evidence, which differed in details, the learned magistrate had to decide which version to believe. Having heard and observed all the witnesses, and having reviewed all the evidence before him, he believed the respondents` witnesses and their version over that of the appellants`. At the appeal, counsel for the appellants argued that the magistrate had erred in this respect, for there were material inconsistencies in the respondents` testimonies.

First, counsel for the appellants submitted that the respondents had been evasive as to how the confrontation between the two parties had arisen. He argued that, on the one hand, the respondents had said that there was no reason for the first appellant to be upset on that day, but, on the other hand, the evidence showed that they had clearly known that the first appellant was upset by the noise they were making. I disagreed that these aspects of the respondents` evidence were evasive or contradictory. Although they had been aware that the first appellant was angry because of the noise level emanating from them, there was no reasonable cause for his anger as they had not been talking very loudly. This was their subjective opinion, and they were entitled to it, especially in view of the fact that even the first appellant himself had testified in cross-examination that the respondents` group was merely talking `slightly louder than normal`.

According to the respondents, no one in their group had assaulted either of the appellants. Counsel for the appellants submitted that this aspect...