Ibrahim bin Masod and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 11 November 1993
• Neutral Citation: [1993] SGCA 82
• Docket Number: Criminal Appeal No 16
• Date: 11 November 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: SH Almenoar (assigned) (Tan Rajah & Cheah) and Abdul Rohim Sarip (assigned) (Nathan Isaac & Co)
• Citation: [1993] SGCA 82
• Defendant Counsel: Palaniappan Sundararaj (Deputy Public Prosecutor),Sant Singh (Chor Pee & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 34 Penal Code (Cap 224),Common intention,Criminal Law,Appellant charged with murder in furtherance of a common intention,Whether incumbent on prosecution to prove appellant's presence at the time deceased was murdered,'Common intention',Whether incumbent on prosecution to prove common intention to murder,Words and Phrases

Cur Adv Vult

On the morning of 15 April 1989 at about 7.45am, a tractor operator, on his way to work at a construction site at Pasir Ris, riding his motor cycle along Jalan Guan Choon was overcome by a strong stench. On investigation he found a decomposed body of a person lying beside a boulder and a fallen tree on a dirt track off the road. The police who were immediately alerted arrived at the scene soon after, followed by the forensic pathologist, Dr Wee Keng Poh, who arrived at about 12.15pm.

Dr Wee Keng Poh found the body to be that of a male in an advanced state of decomposition. The head was hooded with a pillow case and tied around the neck by a tight ligature of pink raffia string. The body was fully clothed but the trousers were pulled down to the level of the hips. Both wrists were tied together behind the back with the same kind of raffia string. Both feet had dark blue socks on but no shoes. On removing the hood, the face was found to be unrecognisable; it was bloated and blackened with swollen lips and protruding tongue due to the decomposition. There were strands of raffia string tightly encircling the upper neck at the level of the laryngeal prominence. There was a ligature of a rolled bolster case running horizontally at the level of the chin with a knot over the left upper posterolateral neck. The nostrils and mouth were above this ligature.

The next day, 16 April 1989, Dr Wee Keng Poh performed an autopsy. The further details contained in his report are as follows:

There was a pillow case completely covering the head at the time when the body was examined at the scene. This pillow case was fastened to the neck by two strands of pink plastic raffia string tied tightly around the mid-neck and with a complicated knot. When this pillow case was removed, there was a further three strands of the same pink plastic raffia tightly encircling the neck. There is congestion of the skin above this level of ligature by the raffia string and there were two knots at the back of the neck.

There is a tight ligature of a rolled bolster case running horizontally below the lower lip, across the chin and both cheeks, completely encircling the upper neck and with a tight knot over the left and back of the upper neck. When the above ligature of the bolster case is removed, there is a square piece of Chinese plaster with multiple rounded perforations and a folded piece of towel handkerchief beneath.

... The postmortem changes were consistent with death occurring about four to five days before examination, that is between 11 and 12 April 1989.

Dr Wee Keng Poh certified the cause of death as asphyxia due to strangulation by ligature. In his evidence he stated that he came to this conclusion as a result of congestion of the skin above the ligature: both sclera (the white of the eye) showed thin haemorrhages over the superior aspects of the eyeballs and there was a thin film of haemorrhage over both lower sternomastoid muscle bellies (the main muscle of the neck) at its insertion to the sternum. He further stated that the ligature was applied with moderate force and that death would have occurred within three to five minutes. In his opinion, the ligature was not accidentally caused. Dr Wee Keng Poh also explained that the ligature of the rolled bolster case, the Chinese plaster and the towel handkerchief had been displaced downwards on the face as a result of postmortem decomposition but that their original position was over the mouth. He opined that it was unlikely that the bolster case could have covered both the mouth and the nose.

The body was identified by matching of thumb prints to be that of Phang Tee Wah (`Phang`) who was the proprietor of Sin Wah Jewellers and Goldsmith Pte Ltd of unit #01-08 Beauty World Centre at No 114 Upper Bukit Timah Road. He was last seen by the members of his family on 11 April 1989 when he left the business premises in the early afternoon of that day. When he had not returned home by 9.30pm that day, the wife made a police report at the Bukit Timah NPP. In fact at about 4pm and 5pm that day the wife had received a telephone call from an anonymous caller who had told her in Hokkien that her husband was in their custody and demanded $2m within three days for his release.

The police acted with commendable speed. Within a matter of hours of the decomposed body of Phang being discovered on 15 April 1989 they had arrested Ibrahim bin Masod (`Ibrahim`) and Liow Han Heng (`Liow`) and had seized a Datsun motor car, EK 1579Z, and the ignition key of that car from Ibrahim and the photostat copy of the vehicle registration book of that car and a purchase invoice from Liow.

Ibrahim and Liow were charged that in the furtherance of the common intention of them both they murdered Phang between 1pm on 11 April 1989 and 14 April 1989. They were both duly convicted and sentenced to death. Against this conviction both Ibrahim and Liow have appealed but before we heard this appeal on 18 October 1993, Liow who had been held as a condemned prisoner in Changi Prison awaiting the hearing of his appeal had died on 10 August 1993.

His counsel submitted before us that by reason of Liow`s death the appeal against his conviction had abated. Section 260 of the Criminal Procedure Code (Cap 68) provides that:

Every appeal under section 245 shall finally abate on the death of the accused and every other appeal under this Chapter, except on appeal against a sentence of fine, shall finally abate on the death of the appellant.

The chapter in question is Ch XXVIII which deals with appeals. Liow`s appeal is against a conviction of murder where the only penalty is the supreme penalty of death. There is no question of `a sentence of fine`. However the sections comprised in Ch XXVIII deal with appeals to the High Court from a magistrate`s or district court and, by inference, appeals from the High Court to the Court of Appeal could well be excluded. Anyhow, this is the view counsel took and, accordingly, relied on the practice and procedure in England, where, although the death penalty has long since been abolished, an appeal against a conviction of murder abates on the death of the convicted prisoner before his appeal is heard. The learned deputy public prosecutor agreed and further relied on s 5 of the Criminal Procedure Code which provides as follows:

As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force in Singapore the law relating to criminal procedure for the time being in force in England shall be applied so far as the procedure does not conflict or is not inconsistent with the Code and can be made auxiliary thereto.

Accordingly we held that Liow`s appeal against his conviction for the murder of Phang had abated by his death on 10 August 1993.

The prosecution`s case against Ibrahim, apart from the medical evidence and the evidence of Phang`s wife that she received `a ransom call` between 4pm and 5pm on 11 April 1989 to which we have already referred, can be summarized quite briefly. In fact there is hardly any dispute on the evidence led by the prosecution.

Liow was a former employee of Phang having worked in his jewellery business as a shop assistant for about four months from January 1984 after which he left on his own accord. The pillow case and the bolster case which were found on Phang`s decomposed body were traced to Liow`s flat by Liow`s girlfriend, Chong Yock Lan, who had spent the night of 8 April 1989 at Liow`s flat. Ibrahim made a s 122(6) statement on 16 April 1989 which was admitted in evidence without challenge. In it Ibrahim said:

I was the driver for Liow Han Heng. I did not plan the kidnapping but I was only following the instruction of my employer. I earned $30 a day as a driver and his assistant. I did not know anything about the murder. I did not plan the murder to take place. The person who killed the deceased was my employer, William. My role in this case was only to follow his instructions and to assist him. That`s all.

A black `Goldlion` wallet in which were found United States, Singapore and Malaysian currency notes identified as belonging to Phang was found on Ibrahim immediately following his arrest. Ibrahim also led the police to the recovery of a Rolex watch identified as belonging to Phang which he had sold on 12 April 1989 for $6,200. Ibrahim also led the police to the place in Veerasamy Road from where he had purchased on 12 April 1989 a large cardboard box of a size which could contain a washing machine and there was the evidence of Noreha bte Kuchit who made a positive identification of Ibrahim as the person she had seen with another male Chinese who had between them a `washing machine` size cardboard box on 12 April 1989 at about 2pm in the lift of a block of flats in which Liow`s flat is. He also led the police to the shop in the block of flats where Liow`s flat is from where he had bought masking tape. Further, Ibrahim led the police to Thomson Plaza and pointed out the front entrance where he had waited on 11 April 1989 for Phang to arrive in his yellow Mercedes Benz car. It is in evidence that Phang owned a yellow Mercedes Benz. He also pointed out where Phang had parked his car in the basement car park of Thomson Plaza; where later he himself had parked Phang`s car that same day; and the table at the Kentucky Fried Chicken Restaurant in Thomson Plaza where he, Liow and Phang had sat. Finally, he pointed out the public telephone at the ground floor of Block 309 Shunfu Road which is near the Upper Thomson Road Community Centre from where Liow had made the `ransom call` to Phang`s wife on 11 April 1989.

There was also in evidence, as shown by Ibrahim to the police, the route he and Liow had taken conveying Phang`s dead body, contained in the `washing machine` cardboard box, in the Datsun motor car EK 1579Z, which Liow had purchased after...