Public Prosecutor v Loh Chin Shung

Suit No:	DAC 40626/2008, MA 401/2009
Decision Date:	21 Dec 2009
Court:	District Court
Coram:	Thian Yee Sze
Counsel:	Assistant Public Prosecutor Olivine Lin for the prosecution, Subhas Anandan/Sunil Sudheesan (KhattarWong) for the accused

1 The accused was first charged under section 326 of the Penal Code (Cap 224) but later pleaded guilty to and was convicted of one reduced charge under section 324 of the Penal Code of voluntarily causing hurt to the victim by using a foldable knife, an instrument for stabbing, to stab the latter in the back, causing him to suffer life-threatening injuries.

2 As revealed by the medical report of 30 August 2008 by Dr Michael Chia of Tan Tock Seng Hospital, the injuries inflicted by the accused were undoubtedly very serious – stabbed twice in the back, the victim had emergency surgery, was warded in the Intensive Care Unit for five days from 8 August 2008 and later transferred to the General Ward before being discharged on 17 August 2008. He was given 40 days’ hospitalisation medical leave thereafter, and a further 14 days’ medical leave before returning to light duties at work from 24 September to 7 October 2008. According to Dr Aung Myint Oo of Tan Tock Seng Hospital in his medical report dated 29 June 2009, one stab wound was “about 2 cm medial to left posterior axillary fold over 9 – 10^th ribs region” and the other was a “V shaped slash wound with hematoma along 8^th rib infrascapular region with spurter”. Dr Aung’s opinion was that these injuries “can be fatal if left untreated”.

3 The circumstances surrounding the stabbing episode were detailed in the agreed statement of facts, which the accused admitted to (together with the two medical reports mentioned in paragraph 2 above) without qualification.

4 The accused and the victim were acquaintances[note: 1]. The victim had an affair with one Ms Morni binte Ahmad (“Morni”). The statement of facts did not explicitly state if the accused and Morni were friends, but in any event, the accused accompanied Morni to the victim’s flat at about 2:30 am on 8 August 2008 as “(t)he accused intended to look for the victim in order to ‘settle’ the issue of the victim’s having had an affair with (Morni)”[note: 2]. The victim was watching television in the living room at the time.

5 When the victim opened the door and saw the accused, the two men got into a heated argument over the affair between Morni and the victim. This escalated quickly into a fight, during which “the accused took out a foldable knife which he had brought with him and stabbed the victim in the back”[note: 3], which resulted in the two stab wounds causing life-threatening injuries to the victim. It should be added that the victim had also assaulted the accused during the fight. According to defence counsel, the accused stabbed the victim only after the latter assaulted the accused.

6 After the stabbing, the accused fled from the scene. About a month later on 9 September 2008, he surrendered the knife used in the stabbing to the police when they came to his home to investigate the case[note: 4].

7 This was the accused’s first brush with the law. The written mitigation tendered by counsel comprised the accused’s letter-in-mitigation to the court dated 29 September 2009 and character references from two acquaintances and a niece. In his letter, the accused gave an account of his long history of medical problems, the difficult circumstances at home (he is the only son with ailing aged parents whom he has to care for, has a younger sister undergoing chemotherapy, another younger sister whose mother-in-law had just passed away, an older sister who has to take care of her intellectually-impaired son, two children (28 and 31 years old respectively) from whom he is estranged, and is in the midst of divorce proceedings). The accused added that, from this incident, he had learnt a lesson he would not forget, and that as a result, he had become a “better and staunch Christian”, devoting more time to his family, reading the bible and going to church every weekend. Those who wrote character references spoke of the accused as a good, honest and trustworthy man whose actions that day were out of character.

8 After the amendments to the Penal Code came into force on 1 February 2008, an offence under section 324 now attracts a maximum prescribed punishment of seven years’ imprisonment (it used to be five years’ imprisonment). An offence under section 324 covers myriad factual situations, from fights involving nightsticks and beer bottles to road rage incidents to situations involving maid abuse. The type and extent of sentence imposed is impacted by, among other considerations, the type of weapon used, the nature of and circumstances surrounding the attack, the seriousness of the injury caused and the degree of deliberation involved.

9 No sentences precedents were tendered before me at the hearing. A survey of cases on section 324 offences involving knife attacks reveals a wide range of sentences depending on the factors I spelt out above.

(a) In Nor Ziman Bin Mohamed Affindi v Public Prosecutor [2002] SGDC 37, the accused, who was 20 years of age, was with his friends at a pub, while the victim too was with his friends at the same pub. After a staring incident at the pub between the accused and the victim, the accused and his friend later attacked and slashed the victim a few times. The victim suffered a 4 cm laceration on his head, an abrasion on his shoulder, a cut flexor tendon and cut ulnar digital nerve and artery. He underwent repair of the flexor tendon and microsurgical repair of the nerve and artery, and was discharged from hospital the next day with a view to outpatient occupational therapy. In determining the sentence, the court disregarded the accused’s motoring antecedents but took into account his young age and plea of guilt. Rejecting the defence’s call for probation, the court sentenced the accused to two years’ imprisonment and eight strokes of the cane for the offence under section 324 read with section 34 of the Penal Code. The accused’s appeal against sentence lapsed.

(b) In Zaidin Bin Daud v PP [2002] SGDC 71, the accused pleaded guilty to two charges, one for theft under section 379 for stealing a T-shirt worth $6 from a stall, and another under section 324 for causing hurt with a multi-purpose knife. A security officer heard some noise from the stall from which the accused stole the T-shirt, and alerted two other security officers. All three approached the stall, and in the ensuing scuffle, the accused cut one of the guards on the forehead with a multi-purpose knife. The guard did not seek medical treatment. The accused had previous dissimilar antecedents, including drug possession and consumption, endangering the life or personal safety of others and theft in dwelling. The accused was sentenced to 18 months’ imprisonment and three strokes of the cane on the section 324 charge and three months’ imprisonment on the section 379 charge, with both sentences to run consecutively. The accused’s appeal against sentence lapsed. It is noted that in this case, the injuries suffered were relatively minor.

(c) In PP v Eng Guan Hong [2004] SGDC 77, the accused and the victim were seated separately in a cinema. When the movie was in progress, the victim was upset that the accused was talking on his cell phone. This distracted the victim who was watching the movie. As a result, some remarks were passed by the victim towards the accused. The accused was upset over the remarks and a dispute arose between them. The accused stood up and confronted the victim. He held a knife in his hand and walked over to confront the victim. Both of them exchanged words and this led to a scuffle during which the accused stabbed the victim in the stomach with a knife. The accused fled and was arrested fifteen days later. Fortunately, the victim recovered well from his injuries (a clean stab wound measuring 2 cm in length) and was discharged a week after he was operated on. The accused had dissimilar antecedents and was sentenced to 24 months’ imprisonment and six strokes of the cane on the section 324 charge. Prosecution’s appeal was withdrawn.

(d) In PP v Yeo Seok Lip [2004] SGDC 134, the accused and the victim got into a squabble over a debt the accused owed the victim. The accused attacked the victim with a survival knife and continued to attack the victim after the latter became weak and semi-conscious. The victim suffered lacerations on both sides of the head, wound to the inguinal region and multiple wounds to the thighs, wrists, fingers and foot. The victim was warded in hospital from 6 March 2004, recovered well and was discharged five days later on 11 March 2004. The accused had previous convictions for affray, gaming in public, unlicensed moneylending, drug consumption, being a member of an unlawful assembly, as well as a conviction for voluntary causing hurt under section 323 in 1996, for which he was sentenced to one month’s imprisonment. For the instant charge under section 324, which took place in March 2004, the accused was sentenced to three years eight months’ imprisonment and nine strokes of the cane. The accused’s appeal against sentenced lapsed.

10 In the present case, the following features of the circumstances of the attack weighed prominently in my assessment. First, although there was no elaborate planning or plotting on the part of the accused to so stab the victim in the manner that he did so as to inflict life-threatening injuries, what could not be discounted was the fact that he brought along a knife with him to confront the victim at this home over the affair, be it for the purpose of self-defence or otherwise, and did use that knife which he brought along to stab the victim in his back. This was distinguished from the other types of situations in which the attacker chanced upon a knife or other instrument during the altercation, and picked it up at the spur of the moment to attack the victim. In the situation before me, the accused must have at the very least harboured the thought of using the knife (as a form of protection at the very least) he brought with him should the “settlement” talks with the victim escalate out of control, which did in the end. Second, the instrument used to inflict injuries on the victim was one which was likely to cause death. As a matter of fact, as set out in the charge to which the accused pleaded guilty without qualification, the stabbing caused the victim “to suffer life-threatening injuries”. Third, the accused stabbed the victim not just once in the back but twice – the medial report of 29 June 2009 noted two stab wounds. The accused’s immediate reaction after stabbing the victim was to flee from the scene, possibly out of panic. It was the victim’s wife who called for the police and ambulance. The accused did not turn himself in immediately – from the accused’s own account in his letter-in-mitigation, it was one month after the stabbing incident that the police came to his home, upon which he handed the knife which he used to stab the victim to the police and was then remanded by the police. Fourth, the accused did not simply wield his knife to slash or cut the victim on the arms, legs or other parts of the body which may have caused more superficial cuts and injuries. Instead of slashing, he stabbed the victim twice in the back, an area of the body which was very close to vital organs such as the heart and lungs, which could in turn lead to horrific internal organ damage and fatal blood loss. Fifth, the injury caused was not slight; grievous hurt[5] was caused – the injuries were life-threatening and, according to Dr Aung, “can be fatal if left untreated”. The seriousness of the injuries was such that the victim had to undergo emergency surgery, was warded for five days under intensive care and was on medical leave for a total of 54 days.

11 Although the prosecution did not address the court on the length of imprisonment to be imposed, it stressed that in light of the severity of the injuries suffered by the victim, a substantial custodial sentence was necessary notwithstanding the fact that it was the victim himself who had assaulted the accused prior to the stabbing. I agreed with the prosecution’s submissions on this point as the response or reaction of the accused to the victim in these circumstances was wholly disproportionate to the assault on the part of the victim. To whip out a knife and stab the unarmed victim twice in the back as a result of the victim’s “provocation” was simply unwarranted.

12 I should, at this juncture, quickly address defence counsel’s objections to the prosecution’s submissions to the court in this regard on the ground that part of the “bargain” for the accused pleading guilty to the reduced charge under section 324 was that the prosecution would not be addressing the court on sentence. The Assistant Public Prosecutor responded that there was nothing in the file note to suggest that the prosecution would not make a submission on sentence. As I highlighted to the parties before me, the sentence to be meted out was at the discretion of the court. If the accused had taken a certain course in the belief that there was such a “bargain”, and that the prosecution’s submissions to the court were tantamount to a “deal breaker”, he could have been advised to retract his plea. In any event, defence counsel did not press on with regard to this issue.

13 The other mitigating factors brought out by the defence could not, in my view, trump or substantially reduce the impact of the various aggravating features of this case which I had detailed above. The evidence against the accused appeared to be strong; the knife was recovered and there were eyewitnesses. The mitigatory effect of the accused’s plea of guilt was hence lessened.

14 The precedents on section 324 cases involving knife attacks which I referred to earlier in my judgment illustrate the severity such offences are viewed by the court, and which are invariably met with stiff imprisonment terms and several strokes of the cane. In Nor Ziman Bin Mohamed Affindi, where the injuries suffered were much less serious, the court sentenced the young offender to two years’ imprisonment and eight strokes of the cane. In PP v Yeo Seok Lip, where the injuries too were less serious, the accused was sentenced to three years eight months’ imprisonment and nine strokes of the cane – an uplift in the sentence was probably included in the sentencing equation as the accused had a conviction for a section 323 offence eight years before the latest offence.

15 In considering the specific circumstances of the case before me, what was notable was that the injuries sustained by the victim were life-threatening and were much more serious than those suffered by the victims in the cases to which I referred. In Forshaw (1984) Cr App R (S) 413, a 15-year old accused stabbed a boy in the back with a knife which he drew from its sheath in his pocket and caused an injury from which the victim died. In dismissing the accused’s appeal against sentence (the accused had pleaded guilty to manslaughter and was sentenced to be detained for a period of five years under section 53(2) of the Children and Young Persons Act 1933), Lord Lane CJ said thus at page 415 of the judgment:

It is important that punishment should be inflicted upon people who commit crimes of this sort. It is important from this young man’s point of view that he should expiate his offence. It is important to remind others of the dangers of carrying knives, let alone the danger of taking them from their sheaths and using them. It is important that the public’s requirement that offenders should be made to suffer for their misdeeds should be satisfied. If that requirement is not satisfied, then people are apt to take matters into their own hands.

16 The danger of the violent use of knives as stressed by Lord Lane CJ cannot be understated. It behoves the court to express strong disapprobation for such conduct. Otherwise, “people are apt to take matters into their own hands”. There is therefore a need for the sentence to reflect general deterrence. Additionally, the crux of the facts in this case was that the accused took out the knife he had brought along with him and did not hesitate to use it unlawfully to attack the victim by stabbing him in his back, causing two stab wounds and resulting in life-threatening injuries. That indicated a high level of culpability.

17 As the accused was more than 50 years of age, he could not be subjected to caning. I came to the view that the appropriate punishment, bearing in mind all the circumstances surrounding the factual matrix of this case, was an imprisonment term of four years, and I so ordered.

18 Dissatisfied with my decision, the accused has lodged an appeal and is on bail pending appeal.

[note: 1]At page 2 of the letter-in-mitigation from the accused to the court dated 29 September 2009, as tendered by the defence (exhibit D1).

[note: 2]At paragraph 7 of the statement of facts.

[note: 3]At paragraph 8 of the statement of facts.

[note: 4]Supra n1.

[note: 5]See the definition of “grievous hurt” in section 320 of the Penal Code, particularly section 320(h), which refers to “any hurt which endangers life, or which causes the sufferer to be, during the space of 20 days, in severe bodily pain, or unable to follow his ordinary pursuits”.