Kraisak Sakha and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 24 May 1996
• Date: 24 May 1996
• Docket Number: Criminal Appeal No 6 of 1996
• Court: Court of Appeal (Singapore)

Kraisak Sakha and another

Plaintiff

and

Public Prosecutor

Defendant

[1996] SGCA 36

M Karthigesu JA

,

L P Thean JA

and

Goh Joon Seng J

Criminal Appeal No 6 of 1996

Court of Appeal

Criminal Law–Offences–Murder–Common intention of first and second accused and two others to rob taxi driver–Second accused injuring and killing taxi driver during robbery–Whether murder done in furtherance of common intention to rob–Sections 34 and 300 (c) Penal Code (Cap 224, 1985 Rev Ed)–Evidence–Proof of evidence–Confessions–Whether oral statement and/or cautioned statement amounting to confession of murder in furtherance of common intention–Sections 17 (2) and 30 Evidence Act (Cap 97, 1990 Rev Ed)–Sections 121 (1) and 122 (6) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The first and second appellants were charged under ss 34 and 300 (c) of the Penal Code (Cap 224, 1985 Rev Ed) that they, together with two unknown persons and in furtherance of the common intention of all of them to commit robbery, had committed the murder of a taxi driver. The taxi driver's body had been discovered in his taxi around 1.00am on 22 January 1995. He had suffered a deep slash wound to the right side of his neck, which forensic evidence showed had caused his death. The forensic evidence also strongly suggested that no one was seated in the rear of the taxi when the taxi driver's neck was slashed.

The Prosecution's central evidence consisted of two statements (“the statements”) made by the first appellant following his arrest. The first statement was made orally and reduced into writing pursuant to s 121 (1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), and the second was a cautioned statement recorded under s 122 (6) of the Criminal Procedure Code. In these statements the first appellant claimed that the second appellant stabbed the taxi driver. The Prosecution sought to admit the statements as a confession of the charge by the first appellant, and as such admissible as substantive evidence of the charge against the second appellant under s 30 of the Evidence Act (Cap 97, 1990 Rev Ed). The trial judge ruled that the statements should be admitted. He further held that the statements constituted a confession of the charge by the first appellant, on the basis of which a prima facie case had been made out against both appellants.

At the trial both appellants gave evidence. The first appellant maintained that he did not did know the second appellant had a knife. The second appellant claimed that he had an alibi. The trial judge found that neither appellant had rebutted the prima facie case against each of them made out by the first appellant's confession of the charge and convicted them of murder. The trial judge accepted the evidence given by the first appellant during the trial that it was the second appellant who stabbed the taxi driver, although he did not accept the rest of his evidence given in defence to the charge. The two appellants appealed against their convictions. At issue in the appeal was whether the statements amounted to a confession by the first appellant of the charge of murder in furtherance of a common intention.

Held, allowing the first appellant's appeal and dismissing the second appellant's appeal:

(1) In determining whether the statements made by the first appellant amounted to a confession the court had to scrutinise them to ascertain whether they contained an admission stating or suggesting the inference that the first appellant acted together with the second appellant and the two others in committing the act of robbing the taxi driver, and in the furtherance of which the second appellant committed the murder of the taxi driver: at [15].

(2) The statements were clearly a confession of a robbery committed on the taxi driver, in the course of which the second appellant used a knife and inflicted the fatal injury. The facts disclosed in the statements showed that the four of them acted in concert and suggested the inference that the knife was to be used to intimidate the taxi driver. Taken as a whole the statements suggested the inference that the act of the second appellant in stabbing the taxi driver was consistent with the common intention of the four of them to rob the taxi driver and was an act in furtherance of that common intention. Accordingly, the statements of the first appellant, prima facie, amounted to a confession by him of the offence with which he was charged and came within the meaning of s 17 (2) of the Evidence Act (Cap 97, 1990 Rev Ed). The second appellant was identified by the first appellant and the statements being his confession was evidence against the second appellant of the charge: at [21].

(3) The statements of the first appellant, as a prima facie confession, had to be evaluated in the light of the whole of the evidence at the trial. The statements were inconsistent with the forensic evidence that no one could have been sitting in the back of the taxi at the time of the attack. These inconsistencies substantially reduced the credibility of those statements and the first appellant's evidence as to the exact moment of the attack. The only credible aspect of his statements was that the second appellant was one of the participants and that he stabbed the taxi driver: at [25] and [26].

(4) However, the first appellant's evidence at trial had not been discredited by cross-examination and taken as a whole raised more than a reasonable doubt as to his continued participation in the robbery after he discerned a show of violence. In the circumstances, the court would give the first appellant the benefit of the doubt and acquit him of the charge of murder and convict him instead of attempted robbery under s 393 of the Penal Code (Cap 224, 1985 Rev Ed): at [27] and [28].

(5) The second appellant had claimed that he had a defence of alibi, but both of the witnesses he named denied this. The first appellant had clearly identified the second appellant as stabbing the taxi driver in the neck. The medical evidence clearly brought the injury within s 300 (c)of the Penal Code, as there could be no doubt it was intended to cause such bodily harm that it would in the ordinary course of nature result in death and he was therefore guilty of murder. His conviction was confirmed: at [29] and [30].

Abdul Rashid bin Mohamed v PP [1993] 3 SLR (R) 656; [1994] 1 SLR 119 (folld)

Anandagoda v R [1962] MLJ 289; [1962] 1 WLR 817 (folld)

Chin Seow Noi v PP [1993] 3 SLR (R) 566; [1994] 1 SLR 135 (folld)

Wong Mimi v PP [1971-1973] SLR (R) 412; [1972-1974] SLR 73 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121 (1), 122 (6) (consd)

Evidence Act (Cap 97, 1990 Rev Ed) ss 17 (2), 30 (consd)

Penal Code (Cap 224, 1985 Rev Ed) ss 34, 300 (c) (consd);s 393

Evidence Ordinance (Legislative Enactments of Ceylon, 1938 Rev,c 11) (Ceylon)

Mohamed Muzammil (MPD Nair & Co) and Ang Chin Peng (Ang & Lee) for the first appellant

NGanesan (N Ganesan & Associates) and Abdul Salim (Billy Ng Chua & Partners) for the second appellant

Mathavan Devadas (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

M Karthigesu JA

(delivering the judgment of the court):

1 On 22 January 1995 at about 1.07am the crew of a police patrol car patrolling along Woodlands Avenue 5 spotted ahead of them a stationary taxi with the driver's door open and the hazard lights flashing. The engine was dead. On checking the taxi the police officers found the body of a male Chinese, later identified as one Lee Kok Yin, a taxi driver, slumped on his left in the driver's seat with the seat belt still fastened. His body was soaked in blood; there was a gaping and deep slash wound on the right side of his neck. A pool of blood was seen on the floorboard behind the driver's seat and there was a largish splash of blood on the rear seat behind the driver's seat with elongated blood stains fanning out from it. Almost the whole of the rear seat was sprayed with blood and there were blood stains on the outside of the right rear door and on the inside lower section of the driver's door frame. There were also several spots of blood on the road leading away from the open driver's door. A brown cap was seen lying beside the pool of blood on the floorboard behind the driver's seat and underneath it was found a Ginza brand paper knife sheath. A black wallet, stained with blood, was found lying on the right side of the rear seat.

2 An ambulance officer who was summoned to the scene arrived shortly after the discovery and pronounced the taxi driver dead.

3 Dr Wee Keng Poh, a forensic pathologist with the Institute of Science and Forensic Medicine, was also summoned to the scene. He arrived at about 4.15am and confirmed the death which he estimated had occurred between 10.00pm and midnight on the evening of 21 January 1995. Dr Wee also confirmed the description of the scene as given by the police officers and as we have noted it above. In particular he noted that the splashes and sprays of blood on the rear seat were not smudged. Dr Wee, who did a post-mortem on the body later that day, explained in evidence that the extensive splashes and sprays of blood on the floorboard behind the driver's seat and on the rear seat were caused by the blood squirting out from the gaping and deep slash wound on the right side of the taxi driver's neck which had cut through the right internal carotid artery. He was of the opinion that this injury was caused by a sharp instrument like a knife which would have fitted into the Ginza brand paper knife sheath found at the scene. The blade of such a knife would have measured 7.5cm in length and at its broadest 1.8cm and thus capable of causing the injury. Dr Wee was also of the opinion that one single thrust followed by a lateral movement of the knife within the wound had caused the injury and that severe force had been used as the right sternomastoid and sternohyoid...