Kho Jabing and another v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 24 May 2011
• Neutral Citation: [2011] SGCA 24
• Citation: [2011] SGCA 24
• Defendant Counsel: N Kanagavijayan (Kana & Co) and Gloria James (Hoh Law Corporation),Lee Lit Cheng and Gordon Oh (Attorney-General's Chambers)
• Published date: 31 May 2011
• Plaintiff Counsel: James Bahadur Masih (James Masih & Co) and Zaminder Singh Gill (Hilborne & Co)
• Hearing Date: 12 April 2011
• Docket Number: Criminal Appeal No 18 of 2010
• Date: 24 May 2011
• Subject Matter: Criminal Law

V K Rajah JA (delivering the judgment of the Court): Introduction

This is an appeal from the decision of the trial judge in Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 (the “GD”), where the learned trial judge convicted Galing Anak Kujat (“Galing”) and Jabing Kho (“Jabing”) (collectively “the appellants”) of murder in furtherance of the common intention of both of them, under s 302 read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), and sentenced them both to suffer the mandatory death penalty.

The trial judge’s decision was given before this Court delivered its judgment in Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”). It was therefore necessary for us to reserve our judgment in this case in order to carefully consider the trial judge’s reasons and conclusions in light of Daniel Vijay, where this Court comprehensively reviewed both local and foreign case law on s 34 of the Penal Code, and laid down what is required to be proved in order to make out the requisite “common intention” (see [32] and [33] below) to render two or more persons jointly liable for an offence. For ease of reference, s 34 of the Penal Code is reproduced here: Each of several persons liable for an act done by all, in like manner as if done by him alone 34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Facts

Unless otherwise stated, the following facts are undisputed.

Both appellants are from Sarawak, Malaysia. Galing is 26 years of age, and was employed to load oil onto ships. Jabing is 24 years of age, and worked in Singapore for a rag and bone company.

In the afternoon of 17 February 2008, the appellants agreed, together with three other Sarawakians, Vencent Anak Anding (also known as “Vincent” or “Vencent”) (“Vencent”), a construction worker; Anthony Anak Jaban (“Anthony”); and Alan Anak Ajan (“Alan”), a colleague of Jabing’s, to rob two Bangladeshi co-workers of Vencent’s at a worksite at Tiong Bahru. The robbery was aborted because the two targets fortuitously left the worksite with their supervisor in his van. Despite this, the appellants, Vencent, Anthony and Alan remained at Tiong Bahru for some time, consuming liquor known as “Narcissus Ginseng Wine Tonic”.

Eventually, at about 7:00 pm, the five of them left Tiong Bahru and travelled to Geylang. There was some dispute as to whether or not there had been a plan to commit robbery at Geylang after the earlier plan was aborted. In his various statements, and during the trial, Galing maintained that there was no intention to commit robbery at Geylang, and that the intention (of all five individuals) in going to Geylang was to continue drinking. Jabing, however, stated to the police and at trial that the intention among them all in going to Geylang was to rob.

At Geylang, along Lorong 4, the appellants walked some distance away from Vencent, Anthony and Alan. The appellants spotted two persons, Wu Jun and Cao Ruyin (“the deceased”) (collectively “the victims”), walking along a pathway in an open space near Geylang Drive, and assaulted them. Wu Jun was assaulted by Galing, by means of a belt wrapped around Galing’s hand or fist, with the metal belt buckle exposed. The deceased was assaulted by Jabing with what was variously described as a piece of wood or a tree branch (the “piece of wood”), which Jabing had picked up while approaching the victims. The deceased was also assaulted by Galing using the metal belt buckle. The deceased suffered severe head injuries inflicted from the piece of wood (from which he died on 23 February 2008), and his mobile phone was taken by Galing. Wu Jun escaped with minor injuries.

The exact chain of events which occurred during the assault is disputed. Galing stated that Jabing led the way in: crossing the road (in order to reach the victims); intimating that the appellants should rob the victims; picking up the piece of wood; and striking the deceased with it. Further, according to Galing: he told Jabing not to rob the victims but was ignored by Jabing; he assaulted Wu Jun (after the deceased had already been assaulted by Jabing with the piece of wood) because Wu Jun seemed to be about to attack Jabing; he chased Wu Jun for some distance before returning to where Jabing and the deceased were located; Wu Jun returned to the scene of the assault, and Jabing chased Wu Jun away a second time before he (Galing) called Jabing back.

Jabing, however, stated that: it was Galing who first crossed the road to approach the victims; Galing had by then already wrapped his belt around his hand; Galing was already about to strike the deceased with the belt in his hands by the time Jabing picked up the piece of wood; he (Jabing) chased after Wu Jun, who had fled the scene of the assault; he (Jabing) gave up the chase and returned to the scene of the assault, where he saw Galing struggling with the deceased; and he (Jabing) then struck the deceased with the piece of wood twice, after which he then fled the scene of the assault, but not before noticing Galing hitting the deceased with his belt and having taken the deceased’s mobile phone.

To complicate matters, Wu Jun’s evidence in his statement was that, while walking together with the deceased at the material time, he felt something hard hit him at the back of his head. He ran a few steps forward, turned round, and saw a man with a tanned complexion, wearing a cap, coming towards him in a menacing manner with a clenched fist, whereupon he (Wu Jun) fled the scene. Wu Jun’s evidence was that he could hear the deceased groaning in pain. After running for a while, Wu Jun called for the police on his mobile phone, and subsequently returned to the scene of the assault, where he discovered the deceased lying unconscious and vomiting blood. Wu Jun also noted that the deceased’s mobile phone was missing. At trial, Wu Jun stated that he noticed only one assailant that night, and was unable to say whether he or the deceased was attacked first, how the deceased was attacked or who attacked the deceased.

After the assault, the appellants, Vencent, Anthony and Alan eventually regrouped at a coffeeshop at Lorong 24 Geylang. Galing’s and Jabing’s versions of how each of them ended up at the coffeeshop differed. Galing stated that, after he had called Jabing back from pursuing Wu Jun (see [8] above), he and Jabing subsequently met the others at the coffeeshop. Jabing, however, claimed that he had become separated from the others (including Galing) after the assault, and only joined them at the coffeeshop after receiving a call from Vencent telling him where they were. There was also some dispute as to what transpired at the coffeeshop, such as whether Jabing had been chastised by Galing and the others for using excessive force against the deceased. What is not disputed, however, is that Galing sold the deceased’s mobile phone to Vencent for $300, and that all five individuals received $50 from the proceeds (with the remaining $50 being used to buy food and drink). Galing and Jabing were only arrested several days after the incident.

Neither appellant challenged the admissibility or voluntariness of their statements. At trial, only Wu Jun and the two appellants gave direct evidence as to what had transpired. Jabing was largely content to stand by the contents of his statements (although there were some discrepancies, such as whether he had seen Galing hitting the deceased); however, Galing challenged the veracity or accuracy of various parts of his statements relating to Jabing’s assault on the deceased, and his taking of the deceased’s mobile phone (see [39]–[47] of the GD), claiming that these had been made by him in response to suggestions made by the investigating officer (“IO”). This claim was raised rather late in the day, during the case for the Defence, after these statements had already been admitted into evidence during the Prosecution’s case (when the relevant witnesses, the IO and the interpreter, were not cross-examined on this issue) and after the Prosecution had closed its case. The Defence then recalled the relevant witnesses, but they rejected Galing’s allegations that the recording of his statement was inaccurate or improper. The trial judge rightly accepted their evidence, as Galing was unable to provide any evidence or explanation as to why the statements would have been recorded in the fashion he had alleged, or why he would have agreed to them if they were.

Decision below

The trial judge identified four key issues for determination: whether there was a common intention to rob the deceased; whether the appellants knew that death was likely to be caused; whether the appellants had the necessary common intention under s 34 of the Penal Code; and whether murder was committed in furtherance of the common intention.

In relation to the first issue, the trial judge (at [54] of the GD) rejected Galing’s evidence that there was no intention to rob the victims, and found that Galing was “a willing participant in the robbery with Jabing”.

In relation to the second issue, the trial judge found (at [55] of the GD) that the appellants’ intention was to rob the victims by the use of force, and that Galing knew that when he and Jabing robbed the deceased, the deceased would be assaulted and serious injuries...