Sim Teck Meng David v Public Prosecutor
[2004] SGHC 119

Case Number	:	MA 37/2004
Decision Date	:	15 June 2004
Tribunal/Court	:	High Court
Coram	:	Yong Pung How CJ
Counsel Name(s)	:	Ravinderpal Singh Randhawa (Kalpanath and Company) for appellant; Janet Wang (Deputy Public Prosecutor) for respondent
Parties	:	Sim Teck Meng David — Public Prosecutor

15 June 2004

Yong Pung How CJ:

1          This was an appeal against the decision of District Judge Doris Lai-Chia Lee Mui. The appellant, Sim Teck Meng David, was charged under s 392 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) for robbing one Hu Cheng Guo (“Hu”) of the following items:

(a)        16 pieces of IDD calling cards valued at $200;

(b)        one Nokia 3310 handphone valued at $200; and

(c)        one waist pouch containing $400 in cash.

The district judge subsequently amended the charge by deleting item (c), and convicted the appellant on the amended charge. The appellant was sentenced to 42 months’ imprisonment and 12 strokes of the cane. The appeal was brought against conviction and sentence.

Charge

2      The amended charge against the appellant read as follows:

You, SIM TECK MENG DAVID, M/43yrs NRIC NO S1347676D are charged that you, on the 1^st day of January 2003, at or about 9.25pm, at Lor 12 Geylang, outside Sen Loan Eating House, Singapore, together with one unknown male Chinese, and in furtherance of the common intention of you both, did commit robbery of the following property;

a.         16 pieces of IDD calling cards valued $200/- and

b.         One Nokia 3310 handphone valued $200/-

In the possession of one Hu Cheng Guo and you have thereby committed an offence punishable under section 392 read with section 34 of the Penal Code, Chapter 224.

The facts

3          Hu was a construction worker who also sold phone cards on a freelance basis. On 1 January 2003, he met his friend Hu Qi Yuan (“Qi Yuan”) in Geylang. Hu and Qi Yuan then walked towards Sen Loan Eating House in Lorong 12 Geylang (“the coffee shop”) and stood on a pavement near the coffee shop. While they were there, Hu held a stack of phone cards in his hand and showed them to some women who were standing nearby, with the intention of selling the phone cards to them.

4          Subsequently, the appellant, who was the owner of a stall within the coffee shop, came towards Hu. The appellant cried out “phone cards” to Hu and stretched out his hands to snatch the phone cards from Hu. Hu quickly passed the phone cards to Qi Yuan. The appellant then hit Hu twice near the eye and shouted to Hu to hand over the phone cards. At this juncture, an unknown male Chinese (apparently a worker at the coffee shop) came out, grabbed and pushed Qi Yuan next to Hu, and asked Qi Yuan to hand over the phone cards. Qi Yuan then held up the phone cards, and the appellant took them. The appellant then punched Qi Yuan on the face, after which Qi Yuan left the scene.

5          Thereafter, another struggle took place, in which there was an attempt made by the appellant and the unknown male Chinese to snatch away Hu’s waist pouch. In the process, the appellant hit Hu on his head and chest. Sometime during the assault, the appellant took Hu’s handphone from Hu’s front shirt pocket. Hu then fell into a drain, whereupon the appellant kicked Hu near his eye and told him to leave.

6          Hu stumbled in the direction of Lorong 4 Geylang. There, a passerby spotted him and called for the police. The police and an ambulance arrived shortly afterwards. One of the police officers at the scene was Sergeant Wong Chee Wai (“Sgt Wong”). Hu complained to Sgt Wong that he had been beaten up, and that he had back pain as a result. Sgt Wong observed that Hu appeared frenzied. Sgt Wong then patrolled around the vicinity, but was unable to find anyone connected to the case. Hu was then brought to Tan Tock Seng Hospital for medical treatment.

7          On 2 January 2003, Hu made a police report regarding the incident, stating that about 17 to 18 phone cards had been taken from him. An investigating officer then brought Hu to a shop, where a diverse assortment of unused phone cards were shown to him. Hu picked out seven cards (which were later determined to match exhibit P5). The investigating officer then advised Hu to go back to the coffee shop to see if the appellant could be spotted there.

8          Following this advice, Hu went to the coffee shop and spotted the appellant sitting in front of his stall. Hu called for the police. Staff Sergeant Lim Chye Kwee (“SSgt Lim”) arrived at the scene. Hu informed SSgt Lim that he had been beaten and robbed of his phone cards and handphone the day before, and pointed out the appellant as the culprit.

9          SSgt Lim approached the appellant and questioned him regarding Hu’s allegation. The appellant admitted that he had slapped Hu, but only because Hu was selling phone cards near his stall, thus badly affecting his business. The appellant denied Hu’s allegation of robbery, claiming that a disgruntled onlooker, who was not happy with Hu’s attitude, had assaulted Hu and stolen Hu’s property. Subsequently, SSgt Lim placed the appellant under arrest and brought him back to Bedok Police Division Headquarters.

10        On 3 January 2003, Station Inspector Tan Lee Teck (“SI Tan”), the investigating officer for the case, met the appellant in the lockup. SI Tan then brought the appellant to his stall at the coffee shop (“the Geylang stall”) and conducted a thorough search of it. During this search, SI Tan discovered a drawer filled with hundreds of phone cards. Among them, there were seven phone cards that had been separated from the rest (exhibit P5). While the other phone cards were stacked vertically and had new covers, the seven phone cards were bound together with a rubber band, were flat on their backs on top of the other phone cards, and had old covers.

11        The appellant explained that the seven phone cards were those returned by customers, as they were dissatisfied with the service provided by the vendors of the phone cards. Notably, none of the phone cards had been scratched to reveal the personal identification numbers (“PINs”). SI Tan then searched the rest of the stall, but confirmed that only one drawer contained phone cards.

12        Subsequently, SI Tan brought the appellant to his other stall at North Bridge Road (“the second stall”) and conducted a search there as well. However, nothing was recovered from the second stall and the appellant was brought back to the station. The charge was then served on the appellant. He denied the charge of robbery, but admitted to slapping Hu. SI Tan then called Hu for an interview. Hu provided a detailed description of 14 of the phone cards that had been taken away from him. Of the 14 descriptions, seven matched the seven cards (exhibit P5) that were taken from the appellant’s Geylang stall.

The trial below

13        At trial, the Prosecution called Hu, Qi Yuan, Sgt Wong, SSgt Lim and SI Tan as witnesses. Hu maintained that he was beaten and robbed by the appellant, while Qi Yuan testified that he did not know what happened after he was punched by the appellant, as he had left the scene. Sgt Wong was a formal witness who testified that he was the police officer who attended to Hu on 1 January 2003. SSgt Lim was another formal witness who testified in relation to the appellant’s arrest. SI Tan’s testimony pertained to his search of the appellant’s two stalls, and the discovery of the seven phone cards. Additionally, SI Tan testified that Hu had informed him that he discovered his waist pouch missing as he was about to leave the coffee shop. SI Tan added that Hu did not allege that it was the appellant who had stolen the waist pouch.

14        The witnesses for the Defence were the appellant, one Poh Lay Hwa alias Roland (“Roland”) and the appellant’s wife, Lee Meng Choo (“Lee”). The appellant also gave evidence. He maintained in his testimony that he did not rob Hu, but admitted to slapping him. In this regard, the appellant claimed that, after slapping Hu, he had returned to his table and did not know what happened thereafter. Additionally, the appellant testified that the seven phone cards found in the Geylang stall were those returned by dissatisfied customers, and were not taken from Hu.

15        Roland’s testimony matched the appellant’s, in that he saw the appellant slap Hu and return to sit at his table. Roland added that he observed that the accused had not taken anything from Hu. Notably, in cross-examination, the Prosecution put it to Roland that, apart from the slap given by the appellant to Hu, Roland was not sure what had happened that day. Roland accepted this, and also accepted that the other parts of his testimony were merely information suggested to him.

16        Lee testified that she saw the appellant quarrelling and slapping Hu, after which the appellant walked back to his table and sat down. She added that subsequently, she heard noises coming from a back alley and saw many people crowding around. The rest of the night was uneventful and she closed the Geylang stall and left at about 2.00 or 3.00am. Lee also testified with regard to SI Tan’s search of the Geylang stall. According to her, SI Tan did not open any other drawers and only opened the one drawer filled with the phone cards. With regard to the seven phone cards found in this drawer, Lee testified that she fetched invoices[1] from her van that served as evidence that the seven phone cards were purchases made for the Geylang stall. She claimed that SI Tan had initially insisted on seeing these invoices. However, according to Lee, SI Tan neither took the invoices nor saw them.

The decision below

17        At trial, the appellant’s contentions were factual in nature and pertained to the characterisation of the events by the respective witnesses. The district judge evaluated the various testimonies and concluded that there could be no reconciliation between the prosecution witnesses’ and the defence witnesses’ versions of events.

Findings relating to Hu’s testimony and demeanour

18        The district judge found Hu to be a simple and straightforward witness. Her evaluation of Hu’s testimony revealed that Hu had consistently refused to make an unfair allegation against the appellant, both in court and to the police, regarding the loss of the waist pouch. In this respect, Hu had maintained in court that he did not personally see the appellant taking away the waist pouch. Hu’s testimony was corroborated by SI Tan’s testimony in cross-examination, where SI Tan informed that Hu did not say that the appellant took the waist pouch. The district judge noted that the waist pouch was the most valuable item particularised in the unamended charge against the appellant, and yet Hu never placed the blame on the appellant.

Key findings of fact

19        The district judge also found that the invoices Lee spoke about were tendered in the course of the trial, taking the Prosecution by surprise. She noted that this late production was suspicious, as one would have expected that upon facing criminal charges, such crucial documents would have been produced immediately. The district judge therefore held that the invoices were an afterthought and an attempt to bolster the defence’s case. The district judge also held that the appellant’s explanation as to the seven phone cards, ie, they were rejected by customers, was peculiar. In this regard, the district judge found that none of the phone cards had been scratched to reveal the PIN. As such, none of them had been used prior to their being returned.

20        The district judge also made key findings with reference to the search of the appellant’s Geylang stall. The appellant alleged that SI Tan failed to make a thorough check of the Geylang stall and if he had, he would have found more phone cards that matched the designs of the seven phone cards. The district judge found it difficult to accept the appellant’s contention, holding that if SI Tan had taken the trouble to also search the appellant’s second stall (taking into account the fact that the mobile phone and waist pouch were yet to be found), he would most certainly have made a thorough search of the Geylang stall from the outset.

Findings relating to the defence witnesses’ testimony

21        With regard to the appellant’s testimony, the district judge found that the appellant was highly evasive and produced disparate versions of the events of 1 January 2003. Given the discrepancies, the district judge found the appellant’s testimony unconvincing and unreliable, and was only corroborated by Lee and Roland’s testimonies. With respect to Lee, the district judge found that her testimony was entirely suspect and that she had been caught lying during the cross-examination. The district judge also found that Lee’s allegation that she had produced the invoices to SI Tan was a complete fabrication. Additionally, the district judge found that Lee’s evidence of the events of 1 January 2003 was sketchy and non-committal, and that Lee was prone to exaggeration. From these, the district judge held that Lee’s evidence was, of itself, unbelievable.

22        The district judge also found that Roland was an evasive and unreliable witness. In this respect, the district judge impeached Roland’s credit after she discovered that Roland had clearly lied in the course of his testimony. Accordingly, she attributed no weight to Roland’s testimony.

Findings of fact relating to Qi Yuan’s testimony

23        On another note, the district judge found the prosecution witness, Qi Yuan, to be an unreliable witness and accorded no weight to his testimony. In this regard, the district judge found that Qi Yuan was either not able or willing to explain how he could identify the appellant to be the one who assaulted him, when he had actually admitted during re-examination that he did not see the face of his assailant.

The district judge’s conclusions

24        The district judge evaluated the various testimonies before her and accepted the Prosecution’s evidence, while rejecting the Defence’s. Accordingly, she found that the appellant had indeed acted in concert with another person in order to rob Hu of the phone cards and the mobile phone. The district judge then considered the issue of sentence. She had before her the appellant’s antecedents, which consisted of a conviction for a traffic offence in 1982, affray in 1989 and bigamy in 1996. However, she did not give much weight to the appellant’s antecedents, as the previous relevant conviction for affray was some 15 years ago.

25        In mitigation, it was mentioned that the appellant was the sole breadwinner and had committed the offence out of impulsiveness. The district judge noted that the minimum punishment under s 392 PC is three years’ imprisonment and 12 strokes of the cane. She observed that the sentencing norm for offences of such a nature is in the region of 42 months’ imprisonment and the mandatory 12 strokes of the cane. The district judge also took into account the fact that the injury sustained by Hu was not a minor one (a 2cm linear laceration above the left eye). Accordingly, the appellant was sentenced to 42 months’ imprisonment and 12 strokes of the cane, in line with the benchmark sentencing for offences of this nature.

The appeal

26        Essentially, the appellant brought the appeal solely on the district judge’s findings of fact and her assessment of the veracity of the witnesses. In the process, the appellant canvassed several arguments. He alleged that the district judge erred in law and fact by:

(a)        relying on the testimonies of the prosecution witnesses despite the discrepancies within these testimonies;

(b)        rejecting the appellant’s testimony; and

(c)        rejecting the testimonies of the defence witnesses.

27        Before I dealt with each of these arguments, I noted that the law with regard to when an appellate court will interfere with or overturn the findings of fact of a trial judge can be found in the case of Lim Ah Poh v PP [1992] 1 SLR 713 at 719, [32]:

An appellate court will not disturb findings of fact unless they are clearly reached against the weight of the evidence. In examining the evidence, an appellate court has always to bear in mind that it has neither seen nor heard the witnesses and has to pay due regard to the trial judges’ findings and their reasons therefor.

Additionally, I observed that, for this appeal to succeed, it must be shown that district judge’s findings of fact were either “plainly wrong” or “reached against the weight of evidence”: Teo Kian Leng v PP [2002] 1 SLR 147 at [24]. I then turned to the issues raised in the present appeal.

Appeal against conviction

Whether the district judge erred in relying on the testimonies of the prosecution witnesses despite the discrepancies within these testimonies

28        The appellant argued that the testimonies of SI Tan and Hu were riddled with discrepancies and should not have been relied on by the trial judge in convicting the appellant. I first dealt with the arguments raised in the context of SI Tan’s testimony, followed by the arguments raised in the context of Hu’s testimony.

SI Tan’s testimony

29        The appellant argued that SI Tan had been less than thorough in his search of the appellant’s Geylang stall. However, to the contrary, I observed from the notes of evidence that SI Tan had testified that he examined all the drawers in the stall, and had even climbed to the top shelf to look for any stolen exhibits connected to the case[2] In fact, the appellant and Lee admitted that SI Tan did conduct such a search.[3]

30        I observed that the district judge reasoned that this was an indication that SI Tan had shown ample diligence in his search. Additionally, the district judge noted that SI Tan had also gone to search the appellant’s second stall for exhibits, indicating an attitude of thoroughness in his search. I agreed with the district judge’s findings, which were based on cogent evidence that was corroborated by even the appellant and Lee themselves. In the face of such clear evidence, it was hardly arguable that the district judge arrived at her conclusion against the weight of evidence, or had come to a plainly wrong decision.

Hu’s testimony – Hu’s identification of the seven cards that comprised exhibit P5

31        The appellant claimed that the district judge placed too much emphasis on Hu’s identification of the seven cards which matched those in exhibit P5. In this regard, the appellant argued that the evidence adduced pointed more towards the fact that exhibit P5 resembled the phone cards that were taken away from Hu, rather than that they actually were the phone cards that were taken from him.

32        I found that the appellant’s argument failed to take into account the fact that the identification process established that Hu was able to pick out or provide descriptions of the cards that were indeed taken from him. It could not then be a mere coincidence that these descriptions were the same as the card designs found in exhibit P5. This was a clear indication that Hu was truthful about his claim that he was robbed of these very phone cards. It also showed that Hu was so familiar with the phone card designs, to the point that he could provide an accurate description of them when asked. In comparison, the appellant was not even able to identify exhibit P5.

33        Faced with such conflicting evidence, and the fact that the appellant had proved to be a highly evasive witness (as compared to the more forthcoming Hu), I found that the district judge had arrived at a correct conclusion with regard to exhibit P5. I thus rejected the appellant’s arguments in this regard.

Hu’s testimony – inconsistencies between Hu’s evidence and SI Tan’s evidence

34        The appellant argued that Hu’s testimony and SI Tan’s testimony conflicted in relation to the manner in which exhibit P5 was identified. Hu testified that he had identified the seven phone cards, which matched exhibit P5, only after he was brought to a shop and shown a diverse assortment of phone cards. SI Tan gave evidence that Hu had described in detail 14 of the cards which were taken from him, of which seven descriptions matched the seven cards (exhibit P5) found in the appellant’s Geylang stall. The appellant argued that these testimonies were varied and inconsistent with one another.

35        I found that this inconsistency was immaterial. This was because the two testimonies only went to show that Hu was able to accurately identify the phone cards that were taken from him on two different occasions. This in fact buttressed the Prosecution’s case that it was not a mere coincidence that Hu was able to accurately identify at least seven phone cards taken from him, and that these seven phone cards were then found in the appellant’s Geylang stall.

36        Further, I also observed that the district judge found that there were discrepancies between Hu’s and SI Tan’s testimonies, but held that these discrepancies were minor. The district judge explained that it was not clear that both Hu and SI Tan were referring to the same incident in their respective testimonies. The district judge also observed that the incidents were not exclusive, in that Hu could have picked out seven cards at a shop, and could also have provided descriptions of 14 cards. I agreed with the district judge’s observations. Ultimately, the gist of the evidence was that Hu was able to pick out or provide descriptions of all the cards, despite the minor discrepancies between Hu’s and SI Tan’s testimonies.

37        At this juncture, I noted that in most criminal trials, there would occur minor discrepancies between the testimonies of two witnesses. One cannot expect perfectly compatible testimonies. Such expectations would negate the fact that between each witness there lay differences in perception, retention and recollection of events. These are factors that must be taken into account when a court is faced with discrepant testimonies. In this respect, I recollected my holdings in Ng Kwee Leong v PP [1998] 3 SLR 942 and Sundara Moorthy Lankatharan v PP [1997] 3 SLR 464. The discrepancies in this case were minor and inconsequential.

Whether the district judge erred in rejecting the appellant’s evidence

38        The appellant essentially argued that the district judge had no reason to accord little weight to the appellant’s evidence. The appellant’s main bone of contention here was with the district judge’s ruling on his credibility, and her rejection of the invoices as evidence. In this regard, the appellant claimed that it was this rejection that ultimately resulted in his conviction.

39        I found that the district judge was justified in rejecting the appellant’s evidence. It must be understood that the district judge had the benefit of not just a first-hand observation of the testimonies of the witnesses, but the benefit of observing the demeanour of such witnesses as well. As such, she was the best person to analyse these testimonies in light of the manner in which the witnesses delivered them. Bearing that in mind, I held that the district judge was justified in finding that the appellant’s testimony was inconsistent and full of discrepancies. In fact, from my scrutiny of the notes of evidence, I found that the appellant was highly inconsistent and evasive. For instance, he gave different versions of the events of 1 January 2003. The appellant had first informed SSgt Lim that an onlooker had robbed Hu. Thereafter, in court, he flatly denied having told SSgt Lim the same.[4] This inconsistency within the appellant’s testimony, pertaining to a key event in the case, was highly suspicious, and suggested that the appellant lied in his testimony.

40        Next, I found that there was merit in the district judge suspecting the appellant’s motive in producing the invoices at such a late stage in the trial. In this regard, I noted that the district judge arrived at a logical conclusion on the matter, holding that the invoices were of such importance that they should have been more promptly tendered in evidence. I agreed with the district judge’s conclusion.

41        In any case, I also found that the invoices failed to advance the appellant’s defence, as the appellant himself conceded in cross-examination that the invoices did not prove that he had purchased the seven phone cards.[5] It was odd that the appellant conceded this point, especially considering his earlier stand that the invoices were crucial to proving that the seven phone cards belonged to him. In this respect, I held that the appellant probably sneaked the issue of the invoices in as an afterthought. However, upon realising that this issue was not going to advance his defence, he willingly dropped it. As such, the appellant’s initial raising of this issue was in itself reflective of the appellant’s tendency to be evasive and less than honest.

42        Faced with such testimony, it cannot be said that the district judge arrived at a wrong conclusion. The appellant had indeed been evasive and inconsistent in his testimony. Therefore, the district judge’s findings to this effect cannot be marked down as errors. Additionally, even if the district judge had erred in suspecting the motives behind the tendering of the invoices, I noted that the appellant’s own testimony in cross-examination revealed the irrelevance of the invoices to begin with. In light of the appellant’s lack of credibility and veracity, I held that the district judge was correct in placing little weight on his testimony.

Whether the district judge erred in rejecting the testimonies of the defence witnesses

43        In this part of the appeal, the appellant argued that the district judge erred in her findings pertaining to Roland’s and Lee’s testimonies, as she had not accorded any weight to their testimonies. I dealt first with the district judge’s findings pertaining to Roland’s testimony.

Roland

44        Contrary to the appellant’s claim, I found that the district judge had arrived at the correct decision by not according any weight to Roland’s testimony, considering that Roland had twice been caught lying during the course of his testimony. The first instance was when Roland claimed that he had never spoken or discussed the case with the appellant prior to giving a statement at the police station.[6] He later admitted that he had indeed called the appellant on a few occasions prior to giving his statement.[7] In fact, he even admitted that the appellant had approached him regarding the case.[8]

45        The other instance involved Roland’s testimony with regard to whom the appellant sat with at the coffee shop on 1 January 2003. Roland claimed that the appellant usually sat with two other persons and even went on to say that the appellant was drinking with these two persons.[9] However, in cross-examination, it was brought to his attention that the appellant had actually denied being with anybody on 1 January 2003.[10] To this, Roland did an about-turn and claimed that it was actually usual for the appellant to sit alone.[11] In the face of Roland’s barefaced lies, I found that the district judge did not have much choice apart from impeaching Roland’s credibility, and according his evidence no weight at all. In fact, it was clear from Roland’s testimony that he was an unreliable witness who tailored his evidence to suit the appellant.

Lee

46        As for Lee, apart from the fact that she had a vested interest in testifying in favour of her husband, there were also other aspects of her testimony that clearly showed that she was not a reliable witness. For one, Lee parroted the appellant’s contention that SI Tan failed to conduct a proper search. This was despite the fact that SI Tan took all diligent steps possible to conduct a proper search of the Geylang stall, a fact that even Lee admitted to. From this, it was clear that Lee was probably ensuring that her testimony artificially corroborated the appellant’s.

47        Further, Lee’s claim in testimony that SI Tan categorically refused to look at the invoices despite having requested for them was highly surprising. This claim was plainly illogical. These strange testimonies, coupled with the district judge’s observation that Lee was non-committal with her answers, provided sketchy evidence of the events of 1 January 2003, and was prone to exaggeration (all of which were findings not disputed by the appellant), went to show that Lee was indeed an unreliable witness. As such, I could not find any merit in the argument that the district judge erred in according no weight to Lee’s evidence.

48        In all, I found that the district judge did not come to her conclusions against the weight of the evidence and also did not reach a plainly wrong decision. In fact, it was clear from her detailed grounds of decision that the district judge had scrutinised the testimonies carefully, and balanced them with her objective perception on the demeanour of the witnesses before arriving at her decision. As such, I held that the appellant failed to show that the district judge erred in her findings of fact pertaining to the appellant’s conviction. Accordingly, the appeal against conviction was dismissed.

Appeal against sentence

49        In this part of his appeal, the appellant made only a bare assertion that the sentence imposed was manifestly excessive. The appellant, however, failed to explain why this was the case. As such, it was difficult to envisage what it was about the sentence that the appellant took issue with. In the event, I scrutinised the district judge’s decision on the matter of sentencing and was convinced that she had arrived at a cautious conclusion.

50        This was highlighted by the district judge’s meticulous balancing of the various issues that could have an impact on the sentence. These issues included antecedents, sentencing benchmarks, minimum sentence requirements for the offence, Hu’s injury and the mitigating factors. As such, I found that the district judge properly traversed the various relevant facts impacting upon the sentence and came to a proper conclusion on the matter. I found no reason to tamper with her decision. I therefore dismissed the appeal against the sentence as well.

Appeal against conviction and sentence dismissed.