Public Prosecutor v Md Mosharaf and Others

Lee Seiu Kin J:

[1] The four accused persons are Bangladeshi nationals who have entered or remained in Singapore illegally to seek work. They face a joint charge, that on 9 December 2007 between 10pm and 11pm at Block 18 Ghim Moh Road #03-123, together with one another and in furtherance of their common intention, they caused the death of Mohamad Azanil bin Aman (“the deceased”) by applying a ligature to the deceased’s neck with a towel, occluding the deceased’s nostrils and mouth with another towel, and wrapping around the deceased’s head a bed sheet, with the knowledge that such acts were likely to cause the deceased’s death by strangulation and suffocation, thereby committing an offence of culpable homicide not amounting to murder punishable under s 304(b) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed)(“the Act”).

[2] Three of them, namely Md Mosharaf (“Mosharaf”), Shamim Ahmed (“Shamim”) and Sobuj Miah (“Sobuj”) also faced a second charge of entering Singapore without a valid pass under s 6(1)(c) of the Immigration Act (Cap 133, 2008 Rev Ed)(“IA”). The fourth accused, Mamun, faced a second charge of remaining unlawfully in Singapore after expiry of a special pass under s 15(3)(b) of the IA.

[3] On 29 May 2009, the four accused persons pleaded guilty before me of the two charges faced by each of them. The statement of facts tendered by the prosecution, to which they all admitted without reservation, read as follows:

[4] In mitigation, Mr Edmond Pereira (“Mr Pereira”), who acted for all four of them, provided their respective backgrounds which were strikingly similar. They were all young men, aged from 20 to 30 years, who came from impoverished families with many children. They all paid to agents what to them were substantial sums of money – the equivalent of $2,500 to $7,500 in Bangladeshi currency – to be smuggled into Singapore. When they got here they found work in various construction sites. Mr Pereira did not suggest that the slight variations in their individual circumstances warranted any difference in the sentences for the joint charge of culpable homicide. In view of the facts of the case, in particular the similar roles that each played in the commission of the offence, I would consider that they deserve the same sentence for the joint charge.

[5] Mr Pereira said that the four accused persons, who had come from poor families, were promised employment in Singapore by agents who absconded with their money without landing them jobs. The four accused persons had harboured hopes of a decent income in Singapore with the objective of providing a future for themselves and their families back home. Instead, after raising a hefty sum of money, they had been cheated and left in the lurch in Singapore. However, there was no turning back as they had no money to return home and also needed to recoup the money their families had raised to get them here.

[6] In terms of the events surrounding the commission of the offence, Mr Pereira pointed out that the four accused persons had cooperated fully with the Police after their arrest. They had provided full details of the events and readily admitted to their roles. This had expedited the investigation and they had shown their remorse by agreeing to plead guilty at the earliest opportunity. Mr Pereira’s mitigation plea in respect of the events leading to the offence is found in paras 23 to 41 of his written mitigation and I reproduce them below:

[7] Mr Pereira relied on the following cases to support his contention that the term of imprisonment should be on the low end of the scale:

(a) Public Prosecutor v Jamal anak Nyalau [2002] 3 SLR 66: The three accused persons were charged with culpable homicide not amounting to murder in furtherance of their common intention, an offence under s 304(b) read with s 34 of the Act. The second accused had introduced the deceased to a prostitute who provided sexual services to the deceased. The deceased subsequently called on the prostitute for sexual services again and offered her $20. However she demanded $150. The first accused asked the deceased if he wanted her services for $150, but the deceased declined. The first accused then punched the deceased repeatedly. The deceased, who did not retaliate, collapsed on the ground. The other two accused also attacked him. The second accused took $15 from the deceased’s wallet. They carried and left the deceased a short distance away along the back lane, where he was later found, dead. All three accused persons pleaded guilty and were sentenced to six years and six months’ imprisonment.

(b) Public Prosecutor v Katun Bee Binte S Ibrahim [2004] SGHC 46: The accused, a woman, claimed trial to a charge of culpable homicide not amounting to murder under s 304(b) of the Act. She had stabbed her lover in the abdomen with a knife after a quarrel and after both of them had been drinking. In mitigation, the accused pleaded that she had had a very difficult life. She had raised her five children practically single-handedly. She had failed relationships with two men before becoming involved with the deceased. That relationship also did not turn out well. It was a frustrating one to her as he was spending her hard-earned money on drink and was abusive to her when drunk. Although the trial judge found that the accused was the one who took a knife from the kitchen and stabbed the deceased, he was also of the view that all her frustrations had came to a head when she committed the act. The accused was sentenced to three and a half years’ imprisonment.

(c) Public Prosecutor v Lim Boon Seng [2004] SGHC 113: The accused pleaded guilty to a charge of culpable homicide not amounting to murder under s 304(b) of the Act. The accused was indebted to the deceased in the sum of $1,800. The deceased, on being told that an instalment that was to have been paid would be delayed, confronted the accused at his fruit stall. The deceased shouted vulgarities at the accused and started fisting him. The accused retreated a short distance when he was hit and noticed a knife nearby. He grabbed it and used it, killing the deceased with a single stab. The accused was sentenced to three years and six months’ imprisonment.

(d) Public Prosecutor v Lim Ah Seng [2006] SGHC 122: The accused pleaded guilty to a charge of culpable homicide not amounting to murder under s 304(b) of the Act. The accused had been estranged from his wife, the deceased. He had been subjected to repeated physical and psychological abuse by the deceased. On the day of the offence, the deceased informed the accused that she wanted to go to the house of the accused’s mother to see their six-year-old daughter. He told her to go there on her own. In the evening, while the accused was at home, the deceased arrived and said that she did not have the keys to his mother’s home. The deceased said she wanted to bring the daughter to Jakarta to which the accused objected and a quarrel ensued. They then engaged in sexual intercourse at the invitation of the deceased. Thereafter, the deceased again raised the subject of her taking the daughter to Jakarta. She said that if the accused refused, she would lodge a police report that he had raped her. They had another argument and she slapped him. She also told him she had a record with the Institute of Mental Health and it would be alright for her to kill him. She then rushed into the kitchen and tried to grab a knife but was stopped by the accused. She ran back into the bedroom and he followed her to stop her from throwing things around. The deceased slapped the accused again and tried to strangle him. The accused retaliated by strangling her instead. After a while, her grip on his neck weakened and she fell. The accused tried to wake her up but to no avail. The accused then called his mother. When the police and other officers arrived, the accused was in the living room. He went to the kitchen and returned with two knives. There, he apparently stabbed himself in the thighs. Eventually, he surrendered himself. The accused was sentenced to two years and six months’ imprisonment.

(e) Public Prosecutor v Chan Soi Peng [2007] SGHC 184: The accused pleaded guilty to a charge of culpable homicide not amounting to murder under s 304(b) of the Act. The accused was earlier provoked by the deceased and had tried to avoid him. The deceased later struck the accused in the face with a bottle of liniment that he was carrying. The accused retaliated with his fists and a violent fight ensued. Following this, the accused went to get a knife from the kitchen, and in the subsequent fight, he stabbed the deceased in the chest. The accused pleaded guilty and was sentenced to three years and nine months’ imprisonment.

[8] The prosecution on the other hand submitted that this merited a term of imprisonment on the high end of the scale and cited the following precedents:

(a) Public Prosecutor v Yan Haibing (CC 7 of 2007, unreported) (“Yan Haibing”): The accused pleaded guilty to a charge under s 304(b) of the Act for causing the death of a prostitute. He had engaged her sexual services but was unhappy with it. He decided to teach her a lesson. A struggle ensued in the course of which the accused punched her head twice. To prevent her from shouting and struggling, the accused placed his hand on her throat and stuffed a towel into her mouth. He then wrapped her head with a towel and secured it with adhesive tape. Finally, he tied her wrists and ankles together with adhesive tape. The cause of death was certified as “cerebral anoxia, due to mechanical asphyxia”. The accused was sentenced to seven years’ imprisonment.

(b) Tan Chee Hwee v Public Prosecutor [1993] 2 SLR 657 (“Tan Chee Hwee”): This case involved a bungled burglary of a house, resulting in the death of the domestic maid. She had returned early to the house and chanced upon the burglary in progress. A struggle ensued between the maid and the appellants. In their attempt to subdue her and to stop her from screaming, the maid was strangled to death by an electrical cord. The trial court convicted them of murder but this was overturned by the Court of Appeal which accepted that the appellants had acted out of “fear that the maid’s screaming would alert the neighbours who might send for the police and not the fear that they would be recognised by the maid.” The Court of Appeal convicted them instead of a reduced charge under s 304(b) of the Act. Each appellant was sentenced to eight years’ imprisonment.

(c) Public Prosecutor v Budiman Bin Hassan [1994] SGHC 28 (“Budiman”): The accused was charged with murder for killing a prostitute by strangling her with a lanyard in order to keep her quiet when she shouted and struggled with him during a heated dispute. The trial judge found that the accused did not intend to cause serious injury to the prostitute and that he had only intended to stop her from struggling and shouting. The trial judge then convicted the accused of a lesser charge of culpable homicide not amounting to murder under s 304(b) of the Act. The trial judge sentenced the accused to six years’ imprisonment. In determining the appropriate sentence, the trial judge noted that the accused was “in a state of panic when the deceased started to shout and struggle with him”. Upon the prosecution’s appeal, the sentence was enhanced by the Court of Appeal to nine years’ imprisonment.

[9] The prosecution pointed out the following aggravating circumstances of the case. The four accused persons clearly outnumbered the deceased. They had resorted to excessive force to immobilise the deceased in order to facilitate their escape. There was no way the deceased could have put up any resistance against them. Furthermore, the nature of the injuries suffered as highlighted in paras 31 and 33 of the statement of facts and the manner in which the four accused persons had sought to immobilise the helpless deceased showed the degree of cruelty of the four accused persons and the extent to which the deceased suffered. In fact, he suffered in this painful and contorted position for more than two days before dying. The prosecution highlighted that the four accused persons had perpetuated the offence against the deceased for fear of being caught by the police as immigration offenders. It was for this self-serving purpose of evading possible apprehension that they had caused the death of the deceased. This was similar to the reason for which the two appellants in Tan Chee Hwee’s case had caused the death of the deceased in that case. This showed the length that immigration offenders would go to avoid detection and due punishment. It was therefore an aggravating factor that the offence was committed in order to avoid punishment for immigration offences. Taking into account the sentences imposed in the three cases cited, the prosecution submitted that the facts of the present case merited an imprisonment term of not less than eight years for each of the accused persons.

[10] In this written grounds of decision I shall only set out my considerations in respect of the sentence for the offence of culpable homicide. The sentences for the immigration offences did not deviate from the norm and it is therefore not necessary to deal with them.

[11] The four accused persons were charged with culpable homicide not amounting to murder, punishable under the limb (b) of s 304 of the Act, which provides for imprisonment for a term which may extend to ten years, or with fine, or with caning, or with any combination of such punishments. Under this limb, the act was done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. In PP v Wan Chin Hon [2005] SGHC 121, Choo Han Teck J (“Choo J”) said at [5]:

[12] In the precedents cited to me by the prosecution and the defence the sentences range from two and a half years to nine years, affirming the view of Choo J that the courts consider each case on its own merits. In relation to the cases cited by the prosecution in which the imprisonment terms ranged from seven to nine years, I noted that the circumstances under which the deaths were caused were rather aggravating. In Yan Haibing, the accused, after punching the victim twice on her head, placed his hand on her throat when she continued to struggle. He pressed her throat forcefully to prevent her from shouting and this succeeded in making her stop. However he maintained the chokehold even as the victim’s arms were flailing. He then stuffed a towel in her mouth, wrapped another towel around her head and used adhesive tape to secure the second towel. He also used tape to tie the victim’s wrists and ankles. The victim had by this time stopped struggling. In Tan Chee Hwee, the two accused persons were trying to subdue the hapless maid and stop her from screaming. During this struggle she was strangled until she lost consciousness and stopped resisting. In the event, she had died from strangulation. In Budiman, the accused had looped a lanyard around the deceased’s neck and pulled it back until she stopped struggling. In all three cases, the accused persons had maintained their chokehold on the victims until they stopped struggling. The cause of death was asphyxiation. In those circumstances, in all probability, the victims stopped struggling because they had died.

[13] In the present case, according to the pathologist, the time of death was estimated to be the early hours of 12 December 2007. The four accused persons had tied the deceased up and left him in the flat between 10pm and 11pm on 9 December 2007. This meant that the deceased had remained alive for at least 48 hours before he died of asphyxiation. This indicated that the deceased was not tied so tightly around the neck, mouth and nose as would cause asphyxiation within minutes or even hours. Instead he had remained alive for more than two days. One can only surmise that by then he was so weak from hunger and perhaps from his struggles to free himself that he became unable to continue with his efforts to breathe through the restraints around his nose and mouth. The present case is therefore different from the cases cited to me by the prosecution in which the accused persons had virtually strangled the deceased until they died. Further, the four accused persons were also concerned enough about the deceased being abandoned to call his estranged girlfriend to induce her to return to the flat to free him. This meant that their frame of mind was that he was alive and only needed to be freed. It may be inferred from this that they did not think that the manner in which the deceased was tied up posed an immediate danger to his life. Unfortunately for him and for the four accused persons, the deceased’s girlfriend thought it was a ruse and did not return immediately. And when she finally decided to do so, she forgot to bring the key. These delays turned out to be fatal to the deceased.

[14] I took into account the mitigating factors submitted by Mr Pereira. Although the four accused persons had entered or remained in Singapore illegally, they were nevertheless here on account of economic reasons, in the hope of earning and saving enough money to help out their impoverished families back in Bangladesh. Apart from their immigration offences and the culpable homicide offence, they were otherwise law abiding and simply wanted to work for money to send home. They had paid what to them were enormous sums of money to come to Singapore to find work and were cheated by their agents when they got here. The deceased had exploited their situation and had repeatedly extorted money from them. When they did not pay him, he abused them to the extent of threatening to report them to the authorities and getting gangsters to beat them up. The four accused persons endured this psychological abuse for some four months. I took into account the fact that the act was not planned and it was committed on the spur of the moment.

[15] Be that as it may, a life has been lost. I cannot ignore the fact that the four of them had ganged up on the deceased and the manner in which they restrained the deceased went beyond the immediate need to keep him quiet and immobile. Instead of merely tying the deceased’s hands and feet to immobilise him and gagging him to keep him quiet, they tied a cloth around his nose and another around his neck, as well as covering his head. Death was by asphyxiation, caused by a combination blockage of the nose and strangulation of the neck. Furthermore, their motive in restraining the deceased was to escape apprehension and subsequent punishment for their immigration offences. The deceased must have spent the last 48 hours of his life in terror and agony as he struggled to breathe against the obstructions in his nose and mouth.

[16] Taking into account the circumstances of the offence set out above, I considered that the appropriate sentence for each of the four accused persons on the joint charge of culpable homicide was four years’ imprisonment and sentenced them accordingly.