KESAVAN CHANDIRAN v PUBLIC PROSECUTOR

Facts

On 4 August 2019 the appellant, Kesavan Chandiran, and 17 others attacked five men at a club after a dispute between two groups. The attackers punched the outnumbered victims and used pitchers, cups, glass bottles and tables; one victim needed surgery. The appellant pleaded guilty to rioting under s 147 of the Penal Code, with a further charge taken into consideration.

The District Judge sentenced him to 17 months' imprisonment and three strokes of the cane, using as a reference point a co-accused, Hafiz, who had received 16 months and three strokes. The appellant appealed only against the caning in Magistrate's Appeal No 9195 of 2022, arguing that it was manifestly excessive. He said he should be compared instead with another co-accused, Selva, who received no caning, and that Hafiz's younger age should not count because both men were over 21.

Issues

1. Whether the District Judge chose the right co-accused as the starting point for applying the parity principle.
2. Whether the appellant's culpability was lower than Hafiz's, so that fewer strokes were justified.
3. Whether a difference in age between co-offenders who are both above the age of majority can justify different sentences under the parity principle.

Holding

Vincent Hoong J allowed the appeal in part, reducing the caning from three strokes to one. The imprisonment term of 17 months was affirmed.

Reasoning

The judge held that Hafiz was the right comparator. Selva had actively tried to calm things down by talking to the parties and separating them, whereas the appellant simply stopped attacking. Helping to carry away an injured person afterwards did not bring his culpability close to Selva's.

Comparing the appellant with Hafiz, however, Hafiz's violence was clearly worse. He threw a bar table twice, the second time at a victim's head and chest from close range; he also used what appeared to be broken glass, kept attacking after the appellant had stopped, and gave no help afterwards. That justified a starting point of one stroke rather than three.

On age, the judge held that the relative youth of an offender can matter in sentencing even above 21, because it affects the weight given to rehabilitation as against deterrence. Age differences between co-offenders can therefore justify different sentences, but only if the gap is significant, and the threshold is lower when the younger offender is close to 21. Hafiz was 22 and the appellant 29, which was a significant gap. But because the disparity concerned caning rather than jail, and was balanced against other factors, it did not justify more strokes for the appellant. His earlier probation for the same offence pointed upwards, while Hafiz, unlike him, had reoffended on bail. On balance, no adjustment to the one-stroke starting point was needed.

From the judgment