Public Prosecutor v Sufian bin Nordin and others

Woo Bih Li J:

[1] There are seven accused persons before me. They are:

[2] They are charged with an offence under s 304(a) read with s 149 of the Penal Code (Cap 224, 2008 Rev Ed). The charge reads that:

[3] Sections 304(a) and 149 of the Penal Code state:

[4] Section 141(c) designates an unlawful assembly as follows:

[5] The circumstances leading to the offence were slightly convoluted. The circumstances, arrest and other relevant information were set out in the agreed statement of facts (“SOF”) as follows:

[6] Counsel for B3 sought probation or reformative training. Counsel for B5, B6 and B7 submitted that reformative training was appropriate. Counsel for B1 submitted that the sentence should not be life imprisonment. Counsel for B2 submitted that the custodial sentence should not be more than ten years and that B2 should receive the least severe of the sentences. Counsel for B4 submitted that a sentence of less than ten years would be appropriate.

[7] The prosecution submitted that the principles of retribution, deterrence and prevention should prevail. The prosecution sought a custodial sentence towards the upper end of 20 years’ imprisonment for B3 to B7 and life imprisonment for B1 and B2.

[8] I have considered whether rehabilitation should be the dominant consideration especially for each of those accused persons below the age of 21 years of age.

[9] In Public Prosecutor v Leong Soon Kheong [2009] 4 SLR(R) 63, the Court of Appeal said at [26] to [28] and [31]:

[10] In the circumstances before me, there was some pre-meditation and planning. The group was planning to act violently and that was why some of them armed themselves before going for the “settlement talk”. Even then, the attack did not occur at the talk but only after the talk ended and the deceased and Seah had gone away. They were having breakfast when the group set upon them. The group comprised seven or more persons and knives were used. The attack was not confined to the coffee shop. The group continued to chase the deceased and Seah as they ran out of the coffee shop. Seah managed to run away but the deceased was confronted again in the middle of the road between two coffee shops and was floored by a kick. The group then surrounded and attacked him, except that B2 and Mohamed Najiman did not personally attack the deceased then. Multiple serious and vicious injuries were inflicted on the deceased. The attacks took place in a public place and must have caused alarm and fear to innocent bystanders. Indeed, they were at risk of serious injury as can be seen by the fact that B2 was himself injured, probably by one of the attackers.

[11] B2 and Mohamed Najiman appeared to be the leaders. B2 was also the one who signalled the attack by landing the first blow on the deceased although he himself was not armed.

[12] B2 and B7 were the most responsible, among the accused persons, for the matters that gave rise to the tension with the deceased and Seah, although B7 was the youngest among the accused persons. B7 was not armed during the attacks but that was because he had handed his weapon to B5.

[13] B1 did query loudly where the deceased and Seah were going. Presumably, this was the instigation by B1 which the prosecution was referring to (see paras 33 and 57 of the agreed SOF). However, the person who led the group to go after Seah and the deceased was B2 (see para 34 of the agreed SOF). B1 also had reasons to be angry as his personal belongings were taken by Seah. He did make a statement to suggest that he would kill the deceased and Seah (see para 19 of the agreed SOF) but that could have been his instantaneous response upon discovering that items were missing. He also did make a statement after the group was leaving the scene that the deceased “confirmed will die” (see para 45 of the agreed SOF) but it is not clear whether that was a boast or not.

[14] B1 was said to be particularly vicious (see para 37 of the agreed SOF which also states that the deceased was viciously attacked by all the accused persons).

[15] B6’s knife did not have any blood but, in my view, that was fortuitous. There was no suggestion that he deliberately missed his target.

[16] On the other hand, the deceased and his brother were partly to blame for the tension which arose and which led to the attacks. The deceased was also armed with a metal rod.

[17] Having considered all the circumstances, including the seriousness of the nature of the offence, I am of the view that deterrence and retribution are the more pressing considerations. A strong signal must be sent to those who are minded to group or gang together to attack others in a public place that such attacks will be treated severely. Accordingly, I am of the view that reformative training is not appropriate for those accused persons below the age of 21. I would however mention that I am not saying that reformative training is never appropriate in a case including s 304(a) read with s 149. It depends on the circumstances.

[18] As for all the accused persons, I am of the view that they should all be treated similarly except for B2. I do not accept the prosecution’s submission that B1 should be treated more harshly and be placed in the same category as B2 because he had attacked more vigorously than the others and because of the statements he had made before and after the attacks. Considering the totality of all the evidence and his role in the matter, I am of the view that the points mentioned by the prosecution did not justify treating B1 more harshly.

[19] As for B2, he is the oldest of the accused persons. He and B7 were the most responsible among the accused persons for the tension which arose. He was also a leader among the accused persons. He led them to the coffee shop and landed the first blow which signalled the attack. Although he stopped participating in the attacks, this was not due to an act of restraint on his part but because he had been inadvertently injured.

[20] In addition, B2 has an antecedent of a violent crime whilst being a member of an unlawful assembly which resulted in the death of the victim. On 29 January 2004, he was convicted in DAC No 51846 of 2003 on a charge under s 325 read with s 149 of the Penal Code of voluntarily causing grievous hurt and was sentenced by a District Court to six years and 12 strokes of the cane. There was a fatality in this incident.

[21] He was also on the same day convicted and sentenced as follows:

(a) in DAC No 23998 of 2003 on a charge under s 147 of the Penal Code – three years’ imprisonment and six strokes of the cane (the sentence of imprisonment to run concurrently with DAC 51846 of 2003). Apparently, there were two persons who were injured in this incident;

(b) in DAC No 23999 of 2003 on a charge under s 379 of the Penal Code – nine months’ imprisonment (the sentence to run consecutively with DAC No 51846 of 2003).

He was released from prison on 5 December 2007 and committed the present offence within a few months, ie, on 23 February 2008.

[22] On the other hand, I have taken into account the following as well:

(a) All the accused persons pleaded guilty;

(b) B3 to B7 were below 21 years of age when the crime was committed and B1 was 22 years of age;

(c) B1, B3, B5 to B7 were first time offenders in respect of a violent crime. In this regard, I did not single out B4 for harsher sentence in the totality of the circumstances even though he had been convicted and sentenced to one month’s imprisonment for a charge under s 332 of the Penal Code, which involved voluntarily causing hurt to a public servant. Neither did the prosecution press for a harsher sentence for him.

(d) The deceased and Seah were not entirely innocent victims. They had contributed to the events which led to the attacks. The deceased himself was armed with a metal rod. However, I did not accept the submissions of various defence counsel that those accused persons who were armed, were armed solely for the purpose of defence as a result of past incidents and in view of the “settlement talk”.

[23] I have also considered sentencing precedents for s 304(a) offences. In doing so, I took into account the fact that under the previous s 304(a), the permissible custodial sentence was life imprisonment or imprisonment for up to ten years whereas under the present s 304(a), it is life imprisonment or imprisonment for up to 20 years. The liability in principle for fine or caning remains the same.

[24] In the circumstances, I sentence the first and third to seventh accused persons as follows:

[25] I sentence B2 to 20 years’ imprisonment from 26 February 2008 (being the date of first arraignment) and 18 strokes of the cane.