Yeo Kwan Wee Kenneth v Public Prosecutor

CourtHigh Court (Singapore)
JudgeYong Pung How CJ
Judgment Date27 February 2004
Neutral Citation[2004] SGHC 44
Citation[2004] SGHC 44
Defendant CounselEddy Tham (Deputy Public Prosecutor)
Plaintiff CounselSubhas Anandan (Harry Elias Partnership)
Published date21 April 2004
Docket NumberMagistrate's Appeal No 152 of 2003
Date27 February 2004
Subject MatterWhether burden of proving elements of offence shifts if rule in Browne v Dunn infringed,Approach of appellate court in appeal against finding of fact by trial judge,Failure to put one's case to witness in cross-examination,Sections 320, 322, 325 Penal Code (Cap 224, 1985 Rev Ed),Examination,Appeal,Appeals,Sentencing,Inconsistencies in testimony,Whether court entitled to accept one part of testimony and reject another part,Witnesses,Offences,Evidence,Grievous hurt,Accused struck victim with glass causing permanent disfiguration of victim's face,Whether sentence manifestly excessive,Criminal Procedure and Sentencing,Criminal Law

27 February 2004

Yong Pung How CJ:

1 The appellant was convicted in the District Court of an offence punishable under s 325 of the Penal Code (Cap 224, 1985 Rev Ed) for voluntarily causing grievous hurt to one Tan Shien Ming Ian (“Ian”). The appellant had struck Ian’s left cheek with a glass, causing a cut which resulted in permanent disfiguration of Ian’s face. The appellant was sentenced to 18 months’ imprisonment and three strokes of the cane. The present appeal was brought against conviction and sentence. At the end of the hearing before me, I dismissed the appeal against conviction and allowed the appeal against sentence. I now set out the reasons for my decision.

Background facts

2 The incident took place at the members’ section of Zouk Discotheque (“Zouk”) on 24 November 2002. The victim, Ian, had gone to the members’ area at about 11.15pm the day before to meet up with some friends.

3 At approximately 1.15am on the day of the incident, the appellant arrived at Zouk with his girlfriend, Gyneth Tang Hui Ping (“Gyneth”). They proceeded to join a friend, Lewis, at his table in the members’ bar.

4 Soon after, at about 1.30am, an incident occurred at the members’ area between the appellant and Ian. While the parties disagreed on how the incident began, they did not dispute that there was some unhappiness between them and that it concerned Ian allegedly bumping into the appellant. The parties also did not dispute that at some point during the incident, the appellant was holding a glass in his hand and that Ian was hit on his arm and face by the glass. The appellant departed almost immediately after the incident and Ian was left bleeding profusely from a cut on his cheek.

Prosecution’s version of the facts

5 The Prosecution’s main witness was Ian. The crux of Ian’s evidence was that the appellant had deliberately swung a glass at him, injuring him in the process.

6 Ian testified that he first noticed the appellant slightly past 1.00am on the day of the incident at the members’ area. The appellant was seated about an arm’s length away from where he was standing. As the appellant appeared familiar, Ian tried to engage him in conversation by asking him if he was from Anglo Chinese School.

7 At about 1.20am, Ian made his way from the members’ bar to the toilet. As the area was jam-packed with club-goers, he had to “squeeze” his way past the crowd whilst leaving and returning to the members’ bar. When Ian returned from the toilet, the appellant accosted him and demanded to know why Ian had deliberately bumped into him repeatedly. Ian could not recall what he uttered in response but an argument soon ensued between them.

8 Ian testified that he was then struck by a glass object. When Ian noticed “something coming” towards him, he instinctively raised his arm in an attempt to shield himself, but the glass nevertheless shattered onto his arm and cut his cheek. The appellant then quit the scene immediately, without offering any assistance to Ian.

9 Ian was eventually brought to the Accident and Emergency Department of Raffles Hospital where he was attended to by one Dr Valentin Low (“Dr Low”) who was on duty that morning. Dr Low observed that Ian had sustained a half-moon-shaped, deep laceration just below the eye area. The wound was about 7cm long. Upon closer inspection, Dr Low found some glass particles in the wound. Dr Low recorded in his medical report that the closure of the wound was expected to be uncomplicated but that scarring was probably permanent.

10 The stitching up of Ian’s wound was performed by Ian’s father, Dr Tan, who was Dr Low’s colleague at the material time. Ian required more than 30 stitches with an operating time of three hours under local anaesthesia.

Appellant’s version of the facts

11 The appellant’s defence at the trial below was essentially one of accident. The appellant’s version of events was that Ian had pushed him while the appellant was holding a glass, and that he “flew backwards” into the crowd behind him. When the crowd propelled him forward, he lost his balance whilst trying to avoid a stool in front of him. As he tried to regain his balance, he merely came into bodily contact with “someone”. Unaware that anything was amiss, he soon left the scene. He recalled catching sight of Ian just before leaving but as far as he could observe, Ian appeared perfectly normal. The appellant further testified that he neither heard nor saw any glass breaking, and that he only noticed a cut on his hand after leaving the discotheque. The appellant only learned about Ian’s injury after reaching home, when his friend Lewis called to inform him about it.

12 The appellant’s version of events was largely corroborated by his girlfriend, Gyneth. However, she testified that she failed to witness any of the crucial happenings that followed immediately after the appellant fell into the crowd, as her view was obstructed by several people standing in front of her. Nevertheless, she testified that she did not hear any glass breaking and that it was only five minutes after the appellant had left the scene that she noticed that Ian’s face was bleeding.

Decision of the court below

13 Essentially, the trial judge was faced with two opposing accounts of the events leading up to the incident where Ian was injured. Ian’s evidence was that he had bumped into some people as he made his way to and from the toilet. When he returned to the members’ area, the appellant confronted him and a quarrel ensued. In contrast, both the appellant and Gyneth testified to Ian bumping into the appellant several times and the appellant initially trying to ignore Ian and avert an argument. Ian was the one who had initiated a verbal exchange between them and he had even bent over towards the appellant once to yell into his ear. They also testified that Ian had pushed the appellant just as the appellant was getting up from his seat.

14 Having considered the evidence carefully, the trial judge found Ian’s testimony on this part of the case to be vague and ambivalent. The judge preferred the testimonies of the appellant and Gyneth, as their accounts of the events up to this point were clear and consistent. The judge found as a fact that Ian had bumped into the appellant several times that day and that when Ian noticed the appellant staring at him, he became confrontational. The judge also accepted the defence case that Ian had shoved the appellant as he was getting up from his seat. In the trial judge’s view, Ian’s vagueness in his account of these events was an attempt to downplay the role he had in escalating what was originally an inconsequential matter into a serious incident.

15 Having established the backdrop to the incident that followed, the trial judge rightly identified the following ingredients of the offence that the Prosecution had to prove under s 325 of the Penal Code (read with ss 322 and 320 of the Penal Code):

(a) the hurt was caused voluntarily;

(b) the appellant intended to cause or knew that he was likely to cause grievous hurt; and

(c) the hurt so caused was grievous hurt (ie permanent disfiguration of the head or face, as defined in s 320(f) of the Penal Code).

16 Contrary to his earlier recollection of events, the trial judge found the appellant to be evasive and inconsistent when giving evidence as to how Ian’s injury was caused. Significantly, the appellant contradicted himself numerous times when questioned about crucial facts such as whether the appellant was holding a glass in his hand at the material time.

17 The trial judge also disbelieved the appellant’s testimony that he had lost his balance when he was pushed by the people behind him and that he had inadvertently charged toward Ian as a result. The judge was of the view that even if the events had occurred in the manner described by the appellant, he would not have been sent “lunging” or charging uncontrollably at Ian. By his own account, he was not pushed with excessive force and could have regained his balance easily by taking one step forward. It was also inconceivable that the appellant neither heard nor saw the glass shattering nor remembered glass pieces dispersing from his right hand at the material time. The appellant’s testimony was particularly difficult to believe given that the glass had cut the appellant’s hand as well. The trial judge also found that the still shots from the discotheque’s closed-circuit television (“CCTV”) recordings (admitted in evidence as Exhibit P11), which had captured the incident from an angle at some two to three-second intervals, lent further weight to Ian’s claim that the appellant had swung his right arm at him and that Ian had taken evasive action to protect himself.

18 Inferring the appellant’s mens rea from his behaviour, the instrument employed in causing hurt, as well as the nature and location of the injury that resulted, the trial judge found that the appellant had voluntarily and intentionally swung a glass at Ian’s face. As there was permanent disfiguration of the face, the judge accordingly convicted the appellant on the charge.

The appeal against conviction

19 At the hearing before me, counsel for the appellant invited me to exercise my discretion to amend the present charge to the lesser charge of causing grievous hurt on provocation under s 335 of the Penal Code. In essence, counsel was urging me to make a finding that the facts of this case made out a successful defence of provocation. As I noted in Toh Lam Seng v PP [2003] 2 SLR 346, provocation is not a general defence under the Penal Code. Further, the existence of the slightest provocation does not automatically take the offence out of s 325. To make out an offence under s 335 of the Penal Code, the appellant has to satisfy the legal requirements of grave and sudden provocation similar to that established by case law dealing with Exception 1 to s 300 of the Penal Code. In other words, the appellant was required to demonstrate...

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