Ang Kah Kee v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 27 March 2002
• Neutral Citation: [2002] SGHC 58
• Citation: [2002] SGHC 58
• Defendant Counsel: Ivan Chua Boon Hwee (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Quek Mong Hua and Julian Tay (Lee & Lee)
• Date: 27 March 2002
• Docket Number: Criminal Motion No 1 of 2002; Magistrate's
• Court: High Court (Singapore)
• Subject Matter: Requirements for admission of fresh evidence,Evidence,Whether prosecution's case proven beyond reasonable doubt,Whether complainant's act of jumping out of a fifth storey window is supportive evidence of allegation of assault,Whether evidence could have been obtained with reasonable diligence for use at trial,s 257(1) Criminal Procedure Code (Cap 68),Whether purchasers entitled to set off liquidated damages against instalments due,Offences,Protection of purchasers over unsecured creditors,Significance of complainant's delay in telling good Samaritans of alleged assault,Whether defence prevented from successfully casting reasonable doubt over prosecution's case,Vendor wound up and liquidator appointed,Project completed,Impeaching witnesses' credibility,Statutory set-off,Development,Whether miscarriage of justice if admission of fresh evidence disallowed,Statutory right of set-off,Contractual terms,Weight of evidence,Effect of refusal by expert witness to testify at trial,Land,Effect of,Criminal Procedure and Sentencing,s 323 Penal Code (Cap 224),Express wording in s 88(1) of Bankruptcy Act (Cap 20, 1996 Rev Ed) unlike s 41(1) of the pre-1995 Bankruptcy Act (Cap 20, 1985 Rev Ed),Appeal,rr 12(2), 12(3), 15(1) and 15(2) Housing Developers Rules 1985,Appellant convicted for voluntarily causing hurt to complainant by punching her right eye,Whether evidence may be admitted at appeal notwithstanding availability at trial,Adducing fresh evidence,Appellant seeking to adduce two medical reports at appeal,Criminal Law,Delivery of vacant possession delayed,Whether medical evidence establishes beyond reasonable doubt causation of racoon eye by alleged punch,Hurt,Bankruptcy,Non-availability,Sale & purchase agreement,Housing developers,Credibility of appellant and his witness seriously discounted,Insolvency Law,Contract

Judgment

GROUNDS OF DECISION

The Charge

The appellant, Ang Kah Kee, was charged in the magistrate’s court with the following offence:

You,

ANG KAH KEE, M/33 YRS
NRIC NO. S1831029-E

are charged that you on the 20^th day of April 2000 at or about 10.00 p.m., at Block 122 Bishan Street 12 #05-39, Singapore, did voluntarily cause hurt to one Umi Kulsum binti Nurudin, who was then employed as a domestic maid in your household, to wit by punching her right eye, resulting in a right periorbital bruise, and you have thereby committed an offence under Section 323 of the Penal Code, Chapter 224.

2 Ang was found guilty of the charge and sentenced to three months’ imprisonment. He appealed against conviction and sentence and also filed an application to adduce fresh expert evidence. The matter came up before me on 26 February 2002. I denied the criminal motion but allowed the appeal against conviction and sentence. My grounds for doing so are set out below.

The facts

3 The complainant, Umi Kulsum binti Nurudin ("Umi"), was an Indonesian national who had come to Singapore to work. On 15 April 2000, some five days before the alleged offence took place, she commenced her employment in Ang’s household as a domestic maid. Ang’s wife, Serene Eng Choo Hwee (Mdm Eng), was Umi’s employer. Umi had difficulty with the English language and would communicate with her employers in a mixture of English and sign language.

4 During her short work stint, Umi spent most of her time at the home of Mdm Eng’s parents since Ang and his wife would leave their two children in the care of Mdm Eng’s parents during the week days while they worked.

5 On 20 April 2000, Ang and Mdm Eng brought Umi and their son back to their flat in Bishan as the next day was Good Friday, a public holiday. Umi set about doing the housework as instructed. One of her tasks was to mop the floor in the living room. All this while, Ang was sitting on the living room sofa watching television and reading newspapers.

6 What happened after this was a matter of dispute. According to Umi, the couple’s baby son was in the bedroom with Mdm Eng. When Ang heard the cries of the baby, he instructed Umi to bring him out into the living room. Umi complied, but upon being told by Mdm Eng that she could manage the child on her own, Umi left the bedroom empty-handed and returned to her former task of mopping the living room floor.

7 Ang raised his voice at Umi for failing to obey his previous instructions when he continued to hear the baby’s crying. According to Umi, he told her in a loud voice to bring the baby into the living room. Umi brought the baby boy out as ordered and placed him on the floor. Moments later, the child started to play with the dirty water in the pail that Umi was using to mop the floor. Ang shouted at Umi when he saw this. Umi quickly carried the child away from the pail and back into the bedroom.

8 As Umi returned to mop the floor, Ang allegedly began to chastise her for working slowly and for being inept in looking after children. He walked over to Umi, repeated his complaint and then allegedly punched her once in the right eye.

9 Umi did not cry out even though the punch had hurt her. Instead, she carried on mopping the rest of the floor. After she had finished her task, she took a shower, at which point she noticed that there was a bruise below her right eye. Thereafter, Umi went to bed.

10 Ang and Mdm Eng gave a different version of events. According to the duo, their child was in the living room with Ang while Mdm Eng was taking a shower in the bedroom toilet. Umi was instructed to mop the living room floor at around 10 p.m. as it was dusty and the baby was in the house.

11 Whilst he was in the midst of watching television and reading newspapers, Ang heard splashing noises and realised that his son was playing with the dirty water in the pail that Umi was using to mop the floor. He then said "Hey! Hey! Berhenti, baby tak boleh kacau water." However, he did not raise his voice. Umi immediately carried the baby away from the pail. Mdm Eng then emerged from the bedroom to bring the baby in.

12 Soon after, Ang heard the baby crying in the bedroom, whereupon he instructed the maid to lend his wife a hand. Umi did so, but was told by Mdm Eng that she could manage on her own. Umi emerged from the bedroom and returned to her own room.

13 Mdm Eng came out of the bedroom into the living room. She informed Ang that she could look after the child by herself. Mdm. Eng told the Court that, up till that point in time, she had not noticed any injuries on Umi. Ang continued to read his newspapers and watch television until he turned in for the night at about 11 p.m.

14 Notwithstanding the different versions of what had happened on 20 April 2000, the events of the early hours of 21 April 2000 were not in dispute.

15 At approximately 3:30 a.m., some five and a half hours after the offence allegedly took place, Umi woke up and was determined to escape from the flat. According to her, she was gripped by fear that she would be hit again and felt that she had to flee from the flat immediately. She packed some belongings, including a pair of pants, a comb, a mirror and her purse, into a bag.

16 As she did not possess a set of keys to the front door, Umi felt that the only way to escape was through the fifth storey window of the flat. Under the cover of darkness, she climbed out of the window, with the aid of a chair, and hung onto the metal pipes normally used to hold the drying poles. She could not see what was directly below her. After suspending herself in this manner, Umi let go and fell some 13 metres onto the ground below. She told the Court that she had no recollection whatsoever of the manner in which she landed. She could also not remember whether she had hit anything in the course of falling.

17 Umi got onto her feet in a semi-conscious state and realised that she was bleeding from her injuries. She started to walk aimlessly. At around 6 a.m., while on his way to work, one Mohammed Salleh bin Mohamed Arshad (Mr Salleh) saw Umi wandering about in a daze. This was at the foot of Block 222 Toa Payoh, a distance away from where Umi had fallen. He noticed that she was bleeding from her head, her tee-shirt was bloody, her legs were swollen and there was a greenish bruise on her face. She also had cuts on both her hands and the nail of her big toe had come off.

18 Umi approached Mr Salleh for help, saying that she was in pain and that she was hungry. Judging from her bleeding head and swollen legs, Mr Salleh asked if she had been assaulted. Umi denied it and said that her injuries were due to an accident. Mr Salleh then brought Umi to the nearby market at Block 212 Toa Payoh for some food and drink. There, he pressed her for more information, asking her for the identity of her assailants. According to Mr Salleh, Umi refused to say anything as she was afraid. All he knew was that she was hungry. At one point, Umi went to the toilet in the market to change into the fresh pair of pants that she had brought with her.

19 After eating, Umi told Mr Salleh that she wanted to follow him. She was taken to his nephew’s flat in Block 221 Toa Payoh. Mr Salleh then left for work while Umi slept for much of the day on the sofa. Also in the flat for the whole day were the owner, Juma’at bin Mohamed Nasir (Mr Juma’at), and his brother, Jumari bin Mohamed Nasir (Mr Jumari). Neither attempted to speak to Umi to find out what had happened to her.

20 In the meantime, after Ang and Mdm Eng had awoken, they realised that Umi was missing from the flat. After a fruitless search of the vicinity, Mdm. Eng made a police report at about 10:10 a.m.

21 At 3:00 p.m., Mr Salleh returned to his nephew’s flat for a short while during which he applied medicated oil to Umi’s swollen legs. He met Mr Jumari and told him that he had found her at the market.

22 At around 6:00 p.m. the same day, Mr Juma’at’s wife, Latifah binte Haji Hassan (Mdm Latifah), as well as Mr Jumari’s girlfriend, Hajar binte Abdul Rahman alias Siti (Siti), returned to the flat. Mr Salleh returned from work shortly thereafter. The ladies offered Umi some food. In the kitchen, Mdm Latifah and Siti asked her if she had been abused. Umi finally revealed that she had been punched by her employer. At this point, everyone else in the flat resolved that they should report the matter to the police. Siti made the call. They noticed that Umi was crying and was afraid of being sent back to her employers. The police came and took Umi away with them.

The judge’s decision

23 Essentially, the judge preferred Umi’s version of what had happened on 20 April 2000. In his opinion, Ang’s concern with hygiene, especially with regard to his son, was the prime impetus for the attack. His anger was sparked off when he saw his son playing with the dirty water in the pail. This was exacerbated by the fact that Ang and Mdm Eng had underlying complaints about the speed with which Umi did the domestic chores as well as her inexperience in looking after children.

24 The judge believed that Ang’s baby son was in the bedroom rather than in the living room as Ang and Mdm Eng were very concerned about hygiene. It also struck him that, if the child was indeed in the living room, Ang would not have been able to concentrate on watching television and reading the newspapers. According to the judge, Ang and Mdm Eng had probably cooked up their version in order that Mdm Eng could testify that she did not observe any injuries on Umi during the two opportunities that she had to observe her that night.

25 The judge was of the view that, when Ang heard his son crying in the bedroom, he probably felt that it would calm him down, if he was taken out of the bedroom into the living room. Therefore, when Umi appeared to disobey Ang’s explicit instructions, Ang became angry when he heard the child’s persistent crying. As this was the first time he was...