Close | Public Prosecutor v Azlan Bin Shaman [2010] SGDC 2 |
| DAC 43523/2008, MA 253/2009 | |
| 08 Jan 2010 | |
| District Court | |
| Eddy Tham Tong Kong | |
| Assistant Public Prosecutor Kalaithasan s/o Karuppaya for the prosecution, Defence Counsel Joseph Liow (Straits Law Practice LLC) for the accused |
Judgment
8 January 2010 District Judge Eddy Tham: This is an appeal against conviction and sentence by the Accused. 2 The accused had claimed trial to one charge of rioting whilst being armed with a deadly weapon, an offence under section 148 of the Penal Code Cap 224. 3 At the end of the trial, I found the accused guilty as charged and convicted him accordingly. 4 I sentenced the accused to 36 months’ imprisonment and 6 strokes of the cane. 5 Being dissatisfied with the Court’s decision, the accused filed an appeal against both conviction and sentence. I now give my reasons. At the time of the writing of this ground of decision, the accused is serving out the sentence. The Prosecution’s Case The evidence of the other witnesses involved in the rioting 6 I will now set out the different personalities involved in this case. The prosecution presented the following witnesses as members of the rioting party: i. PW1 Mohammad Hikram (“Hikram”). He was serving sentence of 8 years’ imprisonment for the offence of trafficking at the time of the trial. He had not been charged for his role in the rioting charge. ii. PW2 Syed Yasser (“Yasser”). He was serving sentence of 2 years’ imprisonment and 6 strokes of the cane for his role in the rioting charge. iii. PW6 Basir Bin Bala (“Basir”). He was with the group which attacked the victims but he left the group the moment the attack took place. iv. PW7 Rawi Bin Pubon (“Rawi”). He had already served his sentence of 15 months and 3 strokes of the cane for his role in the rioting offence. v. PW8 Sanati Bin Mohamed (“Sanati”) had pleaded guilty to the charge of rioting under section 148 of the Penal Code but had not been sentenced at the time of the trial. 7. The prosecution also adduced the evidence of following three victims: i. PW3, Yusnita Bte Mohd Idrus (“Yunista”). ii. PW4, Askandar Bin Masat (“Askandar”). He is the brother-in-law of Yusnita in that he is the brother of Yusnita’s husband. iii. PW5, Sahril Bin Masat (“Sahril”). He is Yusnita’s husband and Askandar’s brother. 8. The prosecution also adduced the evidence of the Investigating Officer Mohd Hisham Alan (“IO HIsham”). The facts in brief 9. The undisputed facts are as follows. The assault on the victims arose from an earlier incident between Rawi who was a customer in a karaoke pub with a group of customers which included one of the victims. Rawi was punched by Askandar over a dispute as to whether Askandar and his group were entitled to a free bottle. As he had felt threatened, Rawi called up Sanati and a few others for help. It is not disputed that Sanati was with Yasser and Hikram together with one more person called “Fais” at the time of the phone call. As a result of the phone call, this group of 4 left the Ministry of Sound (“MOS”) located at Clarke Quay in a taxi to meet Rawi at Jurong West St 92. 10 The material dispute is whether on the way to Jurong West St 92, the group had stopped along Jurong West Ave 1 to pick up the accused by the road. The prosecution is relying on Yasser’s evidence who said that they did so. 11 After meeting up with Rawi, it is not disputed that the group had gone to a Food Court and they had seen the victims seated at a table having drinks. Thereafter an attack took place on the victims and in the process some of them were injured. 12 The material dispute is whether the accused was present during the attack and had taken part in it. 13 The defence contends that the accused was never picked up by group at Jurong West Ave 1. Instead he was sleeping at home at the material time and therefore could not have been involved in the attack on the victims. The evidence for the prosecution Evidence of PW2 Yasser 14 I will start with the principal witness for the prosecution Yasser. He testified that he was with Sanati, Hikram and Fais at MOS on 27 August 2008 late into the evening when Rawi had called him on his handphone. 15 Yasser said that Rawi had asked for help as a customer had earlier assaulted him. Rawi further told him that he was unable to leave the place as he was surrounded by a group. He was afraid that he would be further assaulted. On hearing this, Yasser had asked Sanati to call Rawi as he did not know what to do. 16 He saw Sanati then call Rawi but he did not hear the contents of their conversation. After the call, Sanati asked the rest of the group to follow him to Rawi’s workplace at Jurong West St 92. They then left MOS at between 2-3.00am. 17 Yasser said it was Sanati who gave the directions to Rawi’s workplace to the taxi driver and that he further gave directions to take the route along Jurong West Ave 1. Yasser remembered someone telling the taxi driver that they wanted to pick one person up and the taxi driver had said ok. However he could not remember who specifically communicated with the driver on this matter. Yasser also stated that whilst in the taxi, Sanati had told him that they would be picking up the accused first. 18 The taxi then stopped along Jurong West Ave 1 at a bus stop where it picked up the accused before proceeding to Jurong West St 92. 19 Yasser said he has known the accused for about 10 years prior to that day. He said he has been to his place before and that the accused lives at Jurong West Ave 1 on the 8th floor but he could not remember the block number. 20 On arrival at Jurong West St 92, he saw Rawi at the void deck of the block where he was working. The whole group then approached Rawi and asked him how the situation was and Rawi informed that the situation was “already ok” in that the group who had earlier surrounded him had left. 21 Yasser thereafter followed the group to a coffeeshop. He assumed that Rawi wanted to check the place to see if the group had really left. He has assumed that because the group split into 2 smaller groups and went in opposite ways before meeting up in the front of the coffeeshop with Sanati leading one group and Rawi leading the other group. 22 After they had regrouped, Yasser heard Rawi told Hikram that the person who had earlier assaulted him was in the coffeeshop and had pointed at a person seated with a group of 4-5 persons at a table. In response, Hikram went up to that person and asked Rawi “Is this the person?” 23 Hikram then went and took a chair and flung it at the group’s table. A fight broke out. 24 Yasser confirmed that the accused was present when the fight started. Yasser fought with one person. When that person ran and fell, Hikram and the accused came along and together with him kicked and punched the fallen person. 25 This lasted for a short while before he, together with Hikram, the accused, Fais and Sanati ran off together. The 5 of them then took a taxi to Hikram’s place at Jurong West. Along the way the accused alighted at the same place where he was picked up from. 26 Yasser was subsequently arrested when he went for his urine test on 12 September 2008 at Jurong Police Station. 27 Yasser said he was quite close to the accused. On average he would meet up with the accused 3-4 times a week. He claimed that after the incident and up to the date of his arrest he was still meeting up with the accused. He said he has no problems or misunderstanding with the accused and he was not falsely implicating the accused. Under cross-examination, Yasser gave further details of how well he knew the accused. He had been to the accused’s home at a block at Jurong West Ave 1 on the 8th floor although he did not know the block or unit number. He knew that the accused lives at this flat with his father. He subsequently revealed that he also knew the accused’s handphone number and had kept this number as well as the accused’s identity card number in his handphone. He had obtained the accused’s identity card number as he had made a booking for the accused to obtain a driving licence using his identity card number. However, he has given his handphone to his girlfriend, one Noor Ismayanti. He gave her particulars to the Court to facilitate the Investigating Officer contacting her. 28 Prosecution managed to obtain CCTV recording of the incident. A CD-Rom of this recording was made and admitted in Court as P7. Still screen shots had been reproduced in 5 sets based on recordings from 5 different cameras. These were admitted and marked as P6.1-P6.5. 7 screen shots were also attached to the statement made by Hikram which was admitted and marked as P4. 29 Yasser was shown all these and he positively identified the accused as the person wearing a jacket with a hood over the head. He further asserted that on the same day there was no one else wearing a similar jacket with a hood. He also identified Fais as the person shown carrying a chair in photograph no. 4 of P4. Evidence of PW1 Hikram 30 Hikram gave similar evidence in that he had been at the MOS from before midnight of 27 August 2008 together with Sanati, Yasser and Fais. They had left for home at around 3.00am. As he was feeling quite drunk he fell asleep in the taxi and woke up on arrival at a place behind NTI Food Court. After he alighted from the taxi, he sat on a kerb. He saw this 3 friends speaking with several persons. He recognised 2 of them as Basir and Rawi. He has been to their workplace at Nanyang Karaoke Lounge where they had worked as ‘bouncers’. 31 Hikram claimed that thereafter he went to the nearby food court to find something to clear his stupor as well as to go to the toilet. While there, he noticed a group of people seated at the table who were looking into his direction. He sensed that something was going to happen. He felt that they were going to throw something at him. Hence he reached for a chair to defend himself. When the group did not do anything, he threw the chair to one side. At this, the group of people came towards him initially but then turned and went towards one side away from him. 32 He saw Yasser and Fais chasing a male person and that they had surrounded this person. He sensed that they wanted to beat him up. At that point, he panicked and fled. 33 Hikram said he knew who the accused was. The accused is known to him as “Lan”. He came to know him through his friends. He had seen him a few times in the neighbourhood. However, he was not sure if the accused knew him. He claimed that he did not see the accused during the incident and that he was not sure if the accused was present. 34 He said that the police have not charged him for the offence but had informed him that they will do so. Cross-examining Hikram on previous inconsistent statement 35 The prosecution applied to cross-examine Hikram on his previous statement to the police for the purpose of impeaching his credit as well as to substitute his previous statement for his evidence in court under section 147(3) of the Evidence Act. After perusing the statement, I found that there were material inconsistencies and I allowed the application. 36 The most crucial inconsistency is that he had asserted very definitely that the accused was present during the assault. He had mentioned in his statement that firstly he saw the accused when he arrived at the said venue at Jurong West Extension in a taxi. He had earlier fallen asleep in the taxi and was not sure how the accused came to be present on the arrival of the taxi at the venue. He also stated the accused was present when his group approached the table of the victims. He further stated that he saw Yasser, Fais and the accused taking part in the fight and kicking the male person contrary to his evidence in court that he had only seen Yasser and Fais surrounding the victim. Finally, in his statement, Hikram had also identified a person wearing a hood in photograph no.5 in P4 as the accused. 37 When cross-examined on this inconsistency, Hikram explained that he had met Yasser and Rawi 2 days before the making of the statement at the Queenstown Police Station and had a chance to speak with them. They had told him that the accused was also present during the assault. Subsequently when he was asked to give a statement, he claimed that he told the police that the accused was present based not on what he could actually remember but rather on what had been told to him. He added that when shown the photograph by the Investigating Officer he had assumed that the person shown there was the accused. 38 When he was asked specifically why he had stated that the accused had also taken part in kicking the male victim, Hikram gave another reason. He said that since the Investigating officer had mentioned specific names, he had agreed with the officer “to cut it short” although he did not actually notice the accused. Evidence of PW6 Basir 39 The next witness for the prosecution from the rioting party is Basir. He testified that he was working as a security guard at the Nanyang KTV lounge that night when he came across a problem concerning whether there was any promotion by the pub of a free bottle of liquor for every two purchased. He noted that the dispute was between a customer and his manager. Subsequently he saw the customer punching Rawi who was also a customer at the lounge. During the commotion which followed the punch, Basir brought Rawi away. 40 He also testified that another customer from the same group as the one who had punched Rawi wanted to beat up his boss. Subsequently the group left after kicking at a partition in the lounge. 41 Basir then wanted to go home. When he was downstairs, he saw Rawi beckoning to him. Rawi was with 3 friends. He knew two of them, namely Hikram and Sanati. Thereafter they went together to a nearby coffeeshop. He wanted to buy a drink but in the end he did not as a fight broke out. He saw Hikram throwing a chair at a table of people and he left immediately as he did not want to be involved. He did not see what happened after that. 42 There was a bit of confusion when he said he knew the accused in the dock as a customer of KTV lounge. He said he saw him there earlier at the lounge but not at the coffeeshop. Subsequently he clarified that he did not know the accused and had mistaken him for a customer known as Bek Bong. Evidence of PW7 Rawi 43 Rawi testified that he was at Nanyang KTV lounge at about midnight on the day in question. He had gone there to meet his friend Basir. While he was there, he noted that there was a group of customers who was making some noise over whether they should be given a free bottle of liquor. He tried to intervene by asking the staff to give them a discount. However the group was not pacified and continued to demand for a free bottle. One of the group members took out some money and tapped it on the manager’s face. Rawi told that person that he should not do that. Then suddenly one of the group members punched Rawi on his face and scolded him vulgarities. He also saw one of this person’s friends approaching with a billiard cue. 44 The security brought him to one side to prevent him from being assaulted by the group. Rawi noted that the group was very large and he was afraid that he might be further assaulted. 45 Rawi then called Sanati to ask him if he knew the group of people. He sought Sanati’s assistance to meet the group and ask them why he was punched when he did not do anything wrong. He told Sanati that the group was large, over 20 people. He also called Yasser to go over as he was afraid that Sanati might not be able to do so. 46 He did telephone a few others but did not manage to reach them. Subsequently he called Sanati again to tell him that there was no need to come over as the group had left but Sanati told him that they were already reaching. Rawi then told him to just meet and go for a meal. 47 He claimed that there were 4 of them including Sanati and Yasser when they alighted from the taxi. He did not look at the other 2 persons. 48 He spoke with Sanati alone and told him about the incident. He described the person who assaulted him. He told Sanati not to create any trouble as he did not have any intention to fight. Sanati told him not to worry and that if he knew the group he would ask them why Rawi was assaulted. 49 He then walked with Basir towards the coffeeshop and asked Sanati to join him for a meal and to meet up later at the coffeeshop. 50 When he was at the coffeeshop he walked past a table. He saw several people there but they were not from the group at the lounge earlier. He did not notice if the man who had punched him earlier was there. 51 He then heard a commotion behind him and the sound of breaking bottles. He did not turn back to look but went towards Basir and told him to leave as there was a fight. Basir agreed and they left together. They boarded a taxi and left together for their respective homes. 52 He claimed he did not know who was involved in the fight. He further asserted that he pleaded guilty because the Investigating Officer had told him that had he not made the call, the incident would not have happened. Evidence of PW8 Sanati 53 The last prosecution witness who was part of the rioting group called by the prosecution was Sanati. He testified that he was at the MOS when he received a call from Rawi. Rawi told him that he was surrounded by a group of people and that he had been assaulted. He told Rawi that he could be of help in that he might be able to talk to them since he had stayed in the Jurong area for some time and might know this group of people. 54 After the phone conversation, he took a taxi to meet Rawi together with Hikram, Yasser and one more person whom he could not recall. He fell asleep in the taxi. On arrival at the scene he met up with Rawi. He claimed that he could not remember going to Jurong West Ave 1. He further said that even though he fell asleep he could remember that they did not stop anywhere along the journey to pick anyone up. 55 On arrival, Rawi met and told him that the people who had surrounded him earlier may no longer be around. Thereafter they went to the coffeeshop to see if the group was still around. He saw a group of people whom he suspected to be the people they were looking for. He also heard Rawi saying “That’s them”. 56 On hearing that, Sanati approached the table as he wanted to talk with them. He could hear them discussing about the earlier incident of surrounding Rawi and they were laughing about it. 57 When he reached the table, a male person at the table suddenly stood up and threw a glass containing water at him. This man also picked up a chair to hit him. Sanati was shocked and took a step back. He also took out a hammer from his bag to scare that person off. He wanted to use it to hit the chair with the hammer. He claimed that the hammer did not hit the man. 58 Sanati then chased after this man with the chair for a short distance after which he stopped and ran off to save himself from the other group. He claimed he was injured on his hand but did not seek medical treatment. After he ran off he did not meet up with his friends. 59 Sanati informed that he knows the accused as someone from the neighbourhood and has known him for the last 2-3 years. He knew him from playing football with him in Jurong. However, he did not know where he stays. He asserted that he did not see the accused during the incident on that day. 60 With regard to the hammer, Sanati claimed that after he had alighted from the taxi, he had chanced upon a bag and he took it. Thereafter he came across a hammer at a construction site and decided to take it along for self-defence. 61 When he was shown the CCTV recording, Sanati agreed that he could be seen fighting with a man who fell down and that he had used the hammer after he had fallen down but he had missed hitting the victim. The victim thereafter ran off. The recording also showed Sanati returning to the coffeeshop with the hammer in his hand. He agreed that when he left again no one was chasing after him. 62 When he was asked about a person wearing a hood shown in the recording, Sanati claimed that he had only glanced at him and did not recognise him. Evidence of the victims PW3 Yusnita 63 Yusnita testified she had gone to Nanyang KTV lounge at about 10pm on the night before the incident with her husband, Sahril, her brother-in-law, Askandar and 4 of her husband’s friends. 64 They were there from about 10pm until 3am. She was not aware of any problem which took place outside of the KTV room as she was inside during the entire period. 65 When they left the KTV lounge, her husband, Askandar and another 2 of her husband’s friends and she went together for some drinks at a nearby coffeeshop. They sat at a table and her husband ordered some drinks. 65 As they were talking she noticed a group of 3-4 male persons coming towards their table. She heard them shouting in Malay, “Is this the person?”. As she turned she saw a male throwing a chair in their direction. At that point all the people around her started to run. 66 She then saw someone from the other group who was wearing a sweater with a hood over his head take out something from his back, a samurai sword. She described it as long with a black handle. It was shiny and thin with the length that was slightly longer then the width of her shoulder. When she saw that, she ran away. 67 She said she was also assaulted by someone with a hammer. She was hit once on her waist. That person then put the hammer back into his bag. 68 After running off a short from the scene, she called for the police. She then saw Askandar in an open space in front of the coffeeshop. He was shouting in pain. She then called for an ambulance. She noted that his hand was slashed and that there was a lot of blood. After she saw Askandar, she also made a phone call to her husband. He then came to where she was. 69 She also mentioned that she saw one person called Ah Wai during the attack as someone she met earlier at the KTV lounge. She had heard the other staff calling this person “Ah Wai” but she did not know if he was a patron or staff. (Basir had referred to Rawi as “Y” in his evidence. Rawi also confirmed that he was also known as “Ah Wai”). Evidence of PW4 Askandar 70 Askandar gave essentially the same evidence as Yusnita about going as a group to Nanyang KTV where they had karaoke and drinks. Whilst he was there, they encountered a problem about some drinks. 71 While he was discussing the matter with the manager, another person came along and told him off in a raised tone. He came twice to speak with him. Askandar became angry and punched him on his face. That person then left. 72 Askandar then left the lounge together with his brother, Yusnita, his friend named Fandi and one more person for some drinks at the coffeeshop located nearby. They sat at a table and ordered some drinks. 73 Askandar then saw 4 persons walked past him towards the other end of the coffeeshop. He then heard one of them saying “Where is this person?” and another one replied, “That is the one”. The group then came towards them and one of them threw a chair at his table. Thereafter the group attacked him and his group. 74 He saw one with a black jacket with a hood over his head drawing out a samurai sword. He defended himself using a chair before running off. He noted three to four persons were chasing him including the one with the samurai sword and the one in a red t-shirt. After he ran a short distance to the open space next to the coffeeshop, he fell and was set upon. He saw a samurai sword and a chair coming at him and he covered his face. He then heard his friend Fandi shouting at them and his attackers then ran off. 75 Askandar informed that he was slashed on his right arm and left forefinger and that he had sustained these injuries whilst still in the coffeeshop before he ran off. . 76 He was subsequently taken to NUH where he had surgery done on his hand. He was discharged after one day. Evidence of PW5 Sahril 77 Sahril gave a similar account of having drinks at Nanyang KTV lounge with his wife and brother and some friends. He did not witness any problem or punching by his brother whilst he was at the KTV lounge. However, he subsequently heard about the incident when they were having drinks at a coffeeshop after they had left the lounge at about 3am. 78 Whilst they were there, Sahril noticed a group of men walking past them. He heard one of them said “Is this the one?” and when he turned around, they were attacked. He saw a chair being thrown at their table and he was hit by it as he tried to shield Yusnita. Thereafter a fight broke out and he ran off to the next coffeeshop. As he ran, he noted that he was being chased by 2-3 persons but they stopped chasing him after a while. 79 Subsequently he received a call from his wife asking where he was and to return to the coffeeshop. She also told him that his brother was injured on his face and hands and she was also injured by something on the back of her waist. On his return he saw that his brother Askandar seated on a chair with a bloodied hand. He noted a big cut on his hand and some bruises. The CCTV evidence 80 There were 7 CCTV recordings taken from different CCTV cameras at the coffeeshop which gave a good account of what transpired on that early morning. The still shots from 5 of the cameras have been reproduced by prosecution and admitted as Pp6.1-P6.5. 81 From this evidence and the identification provided by the witnesses, it is quite clear that there were 2 groups of people walking from different directions into the coffeeshop area. 82 One group comprised Rawi, Basir and Hikram (“the first group”) while the other group comprised Sanati, Yasser, Fais and a person wearing a hood (“the second group”). The 2 groups converged at one corner of the coffeeshop area. It is clear that the second group had walked past the table occupied by the victims. After converging, there was a brief mingling of the two groups, before 5 were seen walking back towards the table occupied by the victims, namely Sanati, Yasser, Hikram, Fais and the hooded person. (seen from P6.4 and P6.5.) 83 Hikram can be seen grabbing a chair as he walked towards the table. The next moment, it can be observed a fight had broken out. A victim could be seen running away with the hooded person chasing after him. The hooded person could be seen holding something long and thin in his hand. Fais and Yasser were then shown to be chasing after this victim. Fais had also grabbed a chair. (derived from P6.4) 84 Thereafter Yasser could be seen grabbing a chair and getting into a fight with another victim identified to be Askandar. Askandar was seen carrying chair as well but he was being surrounded by the hooded person, Hikram and Yasser. He then ran away and was closely chased by Hikram, Yasser and the hooded person whose hood is no longer over his head. (derived from P6.4) 85 Fais can be seen grabbing a chair thereafter and he threw a chair at the fleeing Askandar. Fais thereafter can be seen walking back towards the scene of the earlier fight. Sanati was seen coming from the opposite direction and thereafter Fais also turned back and walked off with Sanati following behind and thereafter overtaking him. Moments later Yusnita was seen walking back to the scene of the fight with a phone to her ear. (derived from P6.4) Evidence of the Investigating Officer PW9 Mohd Hisham Alan 86 The Investigating Officer Staff Sergeant Mohd Hisham Alan (“IO Hisham”) testified that after investigations, the first suspect that was established was Rawi. He then managed to identify the identity of the rest of the suspects in the following order: Basir, Yasser, Sanati, the accused, Hikram and finally Fais. He was unable to locate Fais. He further informed that he had been able to establish the identity of the accused as a suspect through Yasser who was able to provide the accused’s identity card number during the investigations. 87 IO Hisham also explained that he was not able to locate the doctor who had treated Askandar although he managed to obtain his medical report. As for Yasser’s girlfriend, he managed to contact and interview her but thereafter when she was asked to meet up again, she failed to turn up. He had prepared a subpoena for her but was unable to serve it on her as she was not at home. Thereafter she also failed to turn up in court to give evidence. She had sent IO Hisham a sms informing him that she would be able to “make it”. Close of Prosecution’s case 88 At the end of the prosecution’s case, I found that a prima facie case has been established against the accused on the charge and I accordingly called upon the accused to enter his Defence and I administered the standard allocution. He elected to give evidence. The evidence of the Accused 89 The accused gave his address as Block 457 Jurong West St 41 #08-766. His defence is a very simple one – he was at home sleeping at the material date and time of the charge, 28th August 2008 at or about 4.18am. He was at home at that time with his wife to be, Norhayati, his father as well as his younger brother. He claimed that he was not well and had stayed home after taking medicine. When asked what kind of illness he was suffering from, he was unable to say. 90 He also said that he had also occasionally stayed with his mother in Clementi but on 28 August 2008 he was with his father in the Jurong West flat. Evidence of DW2 Norhayati 91 Norhayati testified that she and the accused are like husband and wife, save that they have not gone through a formal marriage. She claimed that she has to look after him 24 hours a day as he was under medication. She added that the accused could become violent or lose his memory. She revealed that the accused had been previously admitted to Institute of Mental Health and that she would look after him by preparing him breakfast and lunch. They would sleep very late at between 1-2am and he would then wake up at about 10am, She claimed that on the day of the incident the accused was with her at home. 92 She claimed that on 28 August 2008 she had woken up at about 5am and the accused was beside her and she believed that he would have been beside her as well at 4.18am. She had also claimed that she was a light sleeper. Analysis of the evidence The element of 5 persons to form an unlawful assembly 93 The ingredient of unlawful assembly which requires a constitution of at least 5 persons has been satisfied in the present case. Based on the CCTV evidence and the testimonies of the witnesses, it is quite clear that 5 persons have taken part in the assault, namely Sanati, Yasser, Hikram, Fais and the hooded person. I found that Rawi was also clearly involved in the gathering of the group and identifying of the victims although he was not directly involved in causing hurt to any of the victims. I rejected Rawi’s evidence that the fight started without any action on his part. Both Yasser and Sanati pointed to Hikram having checked with Rawi if the victims were the people they were looking for. Rawi had also pleaded guilty to a charge under section 147 of the Penal Code as a member of the unlawful assembly although in court before me he tried to qualify his plea. In any case, since the minimum number of 5 has been satisfied without including Rawi, I would not go into the issue of whether Rawi has sufficiently dissociated himself from being part of the unlawful assembly at the time of the attack on the victims. The element of being armed with a dangerous weapon 94 It is the prosecution’s case that the accused is the hooded person seen in the CCTV recording. It is clear to me that the hooded person has clearly used a dangerous weapon in the attack in the form of a samurai sword. 95 Both Yusnita and Askandar have given clear evidence that they had seen the hooded person pull out a samurai sword from his back. Askandar further confirmed that the slashes he received to his hand and finger were caused by the sword. Yusnita and Sahril confirmed that there was a lot of blood from Askandar’s injuries. These injuries would be consistent with a slash wound caused by a cutting object with a blade. Furthermore, I was able to see from the CCTV recording at the timing 4:19:33 (from the still shot at page 18 of P6.4) that the hooded person was clearly holding a long slim object in his hand as he rushed towards chasing the first victim who was seen running away from the scene. This corroborates the evidence of Yusnita and Askandar that the hooded person had used a samurai-like sword during the attack. 96 In the circumstances I found that this element of being armed with a short samurai-like sword has been proven beyond a reasonable doubt. 97 As for the hammer, Sanati has confirmed that he did use a hammer and Yusnita also testified to being hit by a hammer. Similarly I found that the prosecution had also proven beyond a reasonable doubt that one of the members of the unlawful assembly was armed with a hammer. It is clear that these 2 objects are deadly weapons and hence the element of being armed with deadly weapon has clearly been satisfied. The identification of the accused 98 Hence the only viable defence would be that the accused had been wrongly identified by Yasser and Hikram in his police statement. I will start with the quality of Yasser’s evidence. How well does Yasser know the accused? 99 The accused said he did not know Yasser at all. I find this contention totally untenable for the following reasons. Yasser knew personal details concerning the accused. He knew that his flat is on the 8th floor of a block at Jurong West Ave 1 and has been to his place before. It became clear why this assertion was not challenged by the defence when Yasser was cross-examined. The accused gave his address to be on the 8th floor of Block 457 Jurong West St 41. It was never challenged that Jurong West Ave 1 is a completely different location from Jurong West St 41. If Yasser did not know the accused, it would have been impossible for him to be so accurate in his description of the accused’s residence. 100 Yasser further revealed that the accused lives with his father at this flat. This information turned out to be correct as the accused confirmed in his evidence that he lives with his father at this flat and that his mother was staying somewhere else in Clementi. It would have been highly unlikely for Yasser to get this information correct without knowing the accused fairly well. 101 Finally, Yasser was even in possession of the identity card number of the accused. He had obtained it when he assisted the accused to apply for a driving licence. Although his girlfriend did not turn up in court to confirm that this information was contained in Yasser’s handphone, IO Hisham corroborated this aspect of Yasser’s evidence when he said that Yasser had provided the name and identity card number of the accused to him during investigations. This further buttresses Yasser’s assertion that he is quite close to the accused, at least to the extent that the accused trusted Yasser enough to let him have his identity card number. 102 All these point ineluctably to the fact that Yasser was telling the truth when he said he knew the accused well and had known him for the last 10 years. I therefore found that the accused was not telling the truth when he said he was not even acquainted with Yasser. 103 As such, I found that there would have been no issue of a mistaken identity by Yasser. Yasser, having known the accused for the last 10 years, would have no difficulty recognising the accused. It is highly unlikely that he would mistake someone else for him. Furthermore, Yasser had alleged he was with him almost throughout the incident and did not merely have a momentary glance at him. He also stated clearly that the only person wearing a sweater with a hood that evening was the accused. I therefore found no issue in the quality of the identification evidence as the accused had been identified by someone who knows him well. Did Yasser deliberately tell a lie to frame the accused? 104 There is no doubt the hooded person exists and was present during the incident. His presence was clearly captured in the CCTV recording and had been independently corroborated by Yusnita and Askandar. Therefore if the accused was indeed sleeping at home at the material time, Yasser must have deliberately lied when he identified the accused as the hooded person. 105 Yasser had stated that he was quite close to the accused and there was no misunderstanding or problem between them. In fact he was still meeting up with the accused until the time he was arrested. The accused, having taken the position that he did not even know the accused, was not able to suggest any possible motive on Yasser’s part to frame a total stranger. 106 Yasser did not gain any advantage by naming the accused as one of the assailants. He had admitted participating in the fight and had been charged and sentenced accordingly. He did not get off with a light sentence. He was charged with rioting under section 147 of the Penal Code and was handed a sentence of 2 years and 6 strokes of the cane. 107 I therefore found that there was absolutely no reason or cause for Yasser to have falsely fingered the accused as the hooded person. Yasser’s evidence in terms of veracity and consistency in comparison with the witnesses 108 I then examine Yasser’s evidence for any internal inconsistency or inconsistency with other evidence. On internal inconsistency, I found none. He maintained his evidence throughout unwaveringly despite under intense cross-examination that the accused had joined them in the attack on the victims. 109 He gave his evidence in a forthright manner and I found that there was nothing in his demeanour and in the manner which he gave his answer to indicate that he was lying in any way. 110 I found that he was the most forthright in giving the account of how the fight started. He was very candid about why the group of 7 split into smaller groups of two as they walked into the coffeeshop. It was to check out the place to see if the victims were around. He also described quite clearly that it was Hikram who had asked Rawi if that was the person before he moved forward to throw a chair at the victim’s table. This account of 2 groups walking from different direction is clearly consistent with what was seen in the CCTV recording. His account of Hikram asking Rawi “Is this the person?” was further corroborated by all the three victims. 111 He was also very candid about his role in the beating up of one victim. He named himself, Hikram and the accused as the culprits who had chased after one the victim and that all the three of them had punched and kicked the victim after he had fallen down. 112 This was corroborated by the account of Askandar as well as the CCTV recording, which showed clearly Askandar being chased by Yasser, Hikram and the hooded person. 113 In contrast, none of the other witnesses were willing to go to that extent. Hikram merely stated that he wanted to go to the washroom and that he did not know where the rest of his friends, other than Basir and Rawi, were when he entered the coffeeshop. 114 Hikram also conveniently left out his role in asking Rawi to confirm the identity of the victim before he went forward to attack the group. Instead he claimed that the victims were the aggressors and looked as if they were about to throw something at him and that he had taken a chair to defend himself. 115 He then said he saw Yasser and Fais chasing a victim and had surrounded the victim. When he saw that, he became afraid and ran away. 116 Hikram was clearly lying. He was not a mere passive observer of the fight who had fled the scene in panic. The CCTV recording revealed clearly that after he had thrown a chair which triggered the assault, he had together with Yasser and the hooded person engaged in a fight with Askandar and when Askandar ran off the three of them could be seen clearly chasing him. 117 Hikram is easily identified in the CCTV recording as he was wearing a red top. However even when he was shown the recording which proved that he was one of the three who was fighting with Askandar and thereafter chasing him and that it was not a case of him running away from the scene, he gave a bewildering answer “Yes. I was chasing him….This shot showed me chasing the victim but actually I wanted to run away”. Why was Yasser the only person in court who was able to identify the accused as one of the assailants? 118 Perhaps the biggest hurdle against the prosecution’s case is that Yasser was the only person in court who was had positively confirmed that the accused was involved in the attack on the victims. None of the other members of the rioting group who testified identified the accused as part of the group. 119 I wish to state at this juncture that as far in respect of evidence of the accused being part of the unlawful assembly, besides Yasser’s evidence, there is also the statement given by Hikram to the police which had implicated the accused. I will deal with the statement later on. 120 I respectfully adopt the principle set out by VK Rajah J (as he then was) in the case of Jagatheesan s/o Krishnasamy v PP 121 The case at hand is akin to a case whether a single witness is sufficient to convict the accsued. On the one hand there is Yasser who said that the accused had been picked up by the taxi he was in on the way to the scene and that the accused had thereafter participated in the attack on the victims. On the other hand, there are other witnesses present who ought to be able to identify the accused but did not do so, namely, Sanati and Hikram (based on his evidence in court) Accordingly, I had to subject Yasser’s evidence to close scrutiny and compared to the evidence of the other witnesses to see whether at the end of the day, Yasser’s evidence is so compelling that the prosecution’s case is proved beyond a reasonable doubt. 122 I have already set out the general reliability and veracity of Yasser as a witness of truth. I will now go specifically into the evidence of his account of how the accused came to be present and see if there is any improbability or weakness in his evidence. 123 The first area is the picking up of the accused along Jurong West Ave 1. The defence pointed out that Yasser did not notice any phone call between Sanati and the accused. Yasser himself had not made any arrangement with the accused. Hence it would be inexplicable as to how it was that the accused could be picked up by the taxi on the way to the scene without anyone having first made arrangement with the accused. 124 However, just because Yasser did not see Sanati making a call to another person other than Rawi did not necessary mean that Sanati did not do so. The fact that Yasser might not have noticed is clearly inconclusive on the issue of whether any prior arrangement has been made between Sanati and the accused. It is noted that Sanati had spoken with Rawi while he was in MOS. In that kind of noisy environment in a popular entertainment place, it is certainly possible for Sanati to have spoken on the phone with another person without Yasser noticing it. In my view therefore the more important issue is whether Sanati was telling the truth when he said that they did not stop to pick up anyone on the way to the scene. 125 I did not find Sanati to be a credible witness on this issue. He had testified earlier that he had fallen asleep in the taxi. Yet, when he was asked if the taxi had stopped at Jurong West Ave 1, he asserted surprisingly that even though he was asleep, he could remember that they did not stop anywhere to pick anyone up. Clearly if he had fallen asleep he would not be in a position to confirm this. 126 I therefore found that Sanati was embellishing his evidence when he said he could remember that they did not pick anyone up along the way to the scene. 127 It is also noted that although Sanati has said that he could not remember the name of a third person who had gotten into the taxi with them at the Ministry of Sound ( this third person was identified by both Yasser and Hikram as Fais), he clearly remembered that there was such a third person. Yet, with regard to the hooded person, he made no reference at all to him until he was confronted with the CCTV evidence. 128 Even when he was shown the recording which showed a hooded person walking behind him and at one point just in front of him (see still photo no.11 of P6.4), he incredibly claimed that he did not know who this person was and did not even notice him. 129 It was only when I asked him to confirm that he did not notice him even though he was right next to him, that he wavered in his evidence and said that he did notice him but that was the first time he saw him on that day and that he did not know who he was. 130 I found it highly improbable that Sanati would not know who this hooded person was and that it would be the first time he saw him on that day. This hooded person was clearly part of his group who had entered the coffeeshop singly with Sanati leading followed by Yasser, the hooded person and Fais. They had walked purposefully into the coffeeshop and had observed the victims seated at the table. The hooded person came with a weapon and had used it when the fight broke out. The hooded person could not have suddenly appeared out of thin air and he could not be a mere passerby. 131 Sanati was clearly the leader of the group. He was the one who last spoke with Rawi before they entered the coffeeshop and he was the one who gave directions to the taxi to bring them to the scene. He was the one whom Rawi had turned to for help. He of all people should be able to account for the presence of the hooded person but chose to plead ignorance. 132 Sanati also greatly downplayed his own culpability in contrast to Yasser’s candid and accurate account of the incident before the CCTV recording was screened in their view. Sanati claimed that as he approached the table one of the persons had thrown a glass at him and had wanted to take a chair to throw at him. He in response took out his hammer to frighten that person. He claimed that after chasing that person away he stopped and then ran off to escape from the group. In his view, the other group were the aggressors. 133 The CCTV recording from camera 1 (identified as “CH01” in the disc P7) showed otherwise. It revealed that the fight started with Hikram throwing a chair and thereafter a fight broke out. Sanati could then be seen using a hammer to hit out at a person even after the person had fallen down. The person then ran off with Sanati chasing him. Moments later, Sanati could be seen walking back calmly to the scene and placing the hammer back into his bag. Sanati was clearly lying when he said he was only using the hammer for self-defence to scare away his attacker and when he said he fled the scene in fear after he had chased off his attacker. 134 I therefore found that Sanati’s credibility as a witness of truth completely undermined and I have no difficulty preferring Yasser’s evidence to his. 135 I have earlier touched on the flaws in Hikram’s evidence. I had similarly found Hikram downplayed his role in the incident and that it is inexplicable that he did not mention the presence of the hooded person prior to being shown the CCTV evidence. He was able to name everyone involved as shown in the CCTV recording except for the hooded person. 136 I will now go into his previous statement made to the police – P4. Hikram stated clearly that on arrival at the scene, he realised that the accused was also there. He then went on to describe the movement of the people. I found his description very accurate when compared with the CCTV recording. 137 Firstly, he stated that he followed Basir and Rawi into the coffeeshop and subsequently, Sanati, Yasser, Fais and the accused joined with them. (para 4.3 and 4.4) 138 Secondly, he stated that when he approached the table occupied by the victims, Sanati, Yasser, Fais and the accused followed him. (para 4.4). 139 Bearing in mind that he gave the statement on 11 October 2008, only about 6 weeks after the incident, it was not surprising that he could remember the facts so accurately. 140 Hence, I found his explanation that he was only able to place the accused there at the scene because Yasser and Rawi had told him so prior to him giving the statement unconvincing and weak. If his recollection was so poor that he could be influenced into thinking that the accused was there merely because Yasser had told him so, it would have been almost impossible for him to be able to describe the movement of the accused so accurately to coincide with the movement of the hooded person as shown in the CCTV recording. 141 Yasser in any case has denied talking with Hikram about the facts of the case although he did admit to having met Hikram in the lock-up. This was not a case where it is alleged that the police had made use of Yasser to influence Hikram by planting all the ideas and thoughts into Hikram’s head. I therefore would find it strange that Yasser would go through the role and movement of the accused in great detail with Hikram even if they had talked about the case. 142 I also find that Hikram had changed his story when confronted with his statement that he saw the accused, Yasser and Fais taking part in the fight. He said that out of convenience that since the Investigating Officer mentioned all these names, “to cut it short”, he just agreed with the Investigating Officer. 143 Hence instead of a mere assumption as influenced by Yasser, he has changed his position to one of just conveniently agreeing with the Investigating Officer. 144 I similarly found this explanation untenable because he had in the same answer specifically stated that he did not notice where Sanati was and what he did. He was clearly not just agreeing with whatever names the Investigating Officer was bringing up to him as being the parties who had been involved in the fight. 145 I therefore found that Hikram’s credit has been impeached on this issue of the identification of the accused and that I would substitute these parts of his statement where he had named the accused for his evidence in court pursuant to section 147(3) of the Evidence Act. As reasoned above I found that the material inconsistent parts of his statement to be more accurate and reliable than what he had stated in court. It is now part of our established law following first the decision of the Court of Appeal in Foong Seow Ngui & Ors v PP 146 As for Rawi and Basir, they were not shown to have interacted much with the hooded person and left very soon after the fight broke out. It is therefore possible that they might not have noted sufficiently the hooded person to confirm that he was the accused. In any case, they have also stated they have not seen the accused person before and hence it would be doubtful if they would be able to identify the accused as being at the scene. 147 The last point I wish to deal with in relation to Yasser’s evidence is defence’s assertion that it was common knowledge that it is an offence for taxis to carry 5 passengers. It was submitted therefore that Yasser’s evidence that the taxi had picked the accused on the way to the scene was inherently weak. 148 The short response to that is that even if it is established that it would be against the law to do so, it did not mean that the taxi driver in the instant case did not agree to pick up another passenger. After all, any detour would mean a longer journey for the taxi driver and a slightly higher fare. It could also be similarly argued conversely that it is common knowledge that taxi drivers have been known to ignore this rule so as not to lose the opportunity to earn the fare. The defence of the accused 149 I found that the accused’s defence of a bare denial insufficient to raise a reasonable doubt in the face of the compelling evidence adduced against him. 150 I have earlier found him to be untruthful when he said he did not know Yasser. I also found his claim that he would be able to remember that he was fast asleep at home at the material time of the incident a bit too convenient and unsubstantiated. Under cross-examination, the accused also admitted that he could not remember a lot of dates such as when he was arrested for the present case and he was only assuming that he was at home in bed at the material time. In fact, under re-examination he admitted he also could not remember when he had committed the act of shoplifting in respect of the second pending charge, which would have been a more significant event to one of just being fast asleep on a typical night. 151 Although he did elicit evidence from DW2 Norhayati to try to corroborate his evidence, I am unable to attach much weight to her evidence. It was apparent to me that based on her close relationship to the accused, she was not an independent witness. She was also shown to be overenthusiastic to get him off the hook by claiming to be with him 24 hours of the day and that she could remember each specific night around the material date that the accused was with her in bed. When asked by prosecution, Norhayati had asserted that she was similarly with the accused on 26 June 2008 at 6.28am. When it was pointed out to her that the accused was actually caught shoplifting at that time, she immediately changed her evidence and claimed instead that for that one day she had gone back to stay with her mother and was not with the accused. Conclusion 152 For the reasons given above, I found that the prosecution has clearly proven their case against the accused beyond a reasonable doubt and I accordingly convicted him. Appeal against sentence 153 The prescribed punishment for an offence under section 148 of the Penal Code is a term of imprisonment of up to 10 years and the accused would also be liable to caning. 154 Yasser who pleaded guilty to an offence under section 147 of the Penal Code was sentenced to 2 years and 6 strokes of the cane. He had drug-related offences, theft in dwelling as well as Films Act offences in his antecedent record. 155 Rawi had also pleaded guilty to the same offence under section 147 of the Penal Code and was sentenced to 15 months and 3 strokes of the cane. He had drug-related antecedents. 156 As for the accused’s antecedents, his more recent offences are non-violent in nature: mainly drug-related offences and 2 Films Act offences, dating the period 2001 to 2003. The only one that has an element of violence was when he was still a juvenile. He had been found guilty of committing robbery with hurt. This was more than 13 years ago. He was ordered to stay in Boys’ Home for 3 years. 157 Accordingly I did not place much weight on his antecedent record other than to note that this was not his first brush with the law. 158 In mitigation, his Defence Counsel did not address the court on sentencing with respect to the section 148 of the Penal Code offence. He merely addressed the shoptheft offence under section 380 of the Penal Code, to which the accused had pleaded guilty to after he was convicted on the section 148 charge. Defence Counsel merely alluded to the fact that the accused had appeared to be eating and drinking the stolen items in full view of the complainant store assistant of the shop and he was therefore sent to the Institute of Mental Health after he was arrested. He was diagnosed to be suffering from psychosis. 159 I had sentenced the accused to a term of 3 years and 6 strokes for the section 148 of the Penal Code offence and a short term of 2 weeks for the shoptheft offence and further ordered the latter sentence to run concurrently with the former. The appeal against sentence in the present case is essentially therefore about the sentence meted out in respect of the section 148 of the Penal Code offence. 160 The accused was clearly more culpable than Yasser and Sanati in that he had wielded a deadly weapon and had caused the most serious injury. He was also facing a more serious charge under section 148 of the Penal Code. Furthermore, he had claimed trial and therefore ought not to have the benefit of any sentencing discount ordinarily given on a plea of guilty. 161 There is also a degree of premeditation in that he has brought along a deadly weapon with him to the scene. 162 I have therefore imposed a much longer sentence on him compared to that meted out to Yasser, ie 3 years in contrast to 2 years. I did not increase the number of strokes as I felt that 6 strokes is a sufficient deterrent and in view of the fact that generally the victims had escaped with relatively minor injuries save for Askandar. I note that Askandar, although he had suffered some cuts, was discharged after a day and did not appear to have suffered any permanent injuries. 163 I also did not give much weight to the fact that the accused was suffering from psychosis. The act of rioting with a deadly weapon is clearly a very serious offence and must be dealt with severely especially when hurt is caused. It is surprising considering the kind of weapon used that the victim did not suffer far more serious injuries. If indeed the psychosis had caused him to be more prone to violence, then the time spent in prison would keep society safe from him and give him more time to deal with this issue. The condition certainly should not entitle him to shorter stint of imprisonment.
