Lim Thian Lai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 04 November 2005
• Neutral Citation: [2005] SGCA 50
• Date: 04 November 2005
• Subject Matter: Whether police failing to give accused warning under s 121(2) Criminal Procedure Code,Section 121(2) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Criminal Procedure and Sentencing,Whether statements recorded pursuant to one charge may be relied upon when convicting accused of different charge arising from same incident,Whether statements made by accused procured by police through threat and inducement,Voluntariness,Proof of evidence,Accused giving statements amounting to confessions,Whether accused having poor command of English language,Accused retracting statements,Whether accused may be convicted on uncorroborated retracted statements,Statements,Admissibility,Confessions,Evidence,Whether statements made by accused inadmissible,Statements containing minor discrepancies
• Docket Number: Criminal Appeal No 8 of 2005
• Published date: 07 November 2005
• Defendant Counsel: Tan Kiat Pheng and Christopher de Souza (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Edmond Pereira (Edmond Pereira and Partners) and Andy Yeo (Allen and Gledhill)

4 November 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was an appeal against a conviction under s 4(1) of the Arms Offences Act (Cap 14, 1998 Rev Ed) (“AOA”) as a result of which the appellant was sentenced to suffer the mandatory capital punishment. The charge on which the appellant was convicted read:

That you, LIM THIAN LAI … on the 12^th day of March 1997 between 8.30 p.m. and 9.30 p.m., at the carpark of Blocks 3/4 Beach Road, Singapore, did use an arm, namely, a 0.38 Calibre revolver, by discharging one round from the said revolver at one Tan Tiong Huat, male 42 years old, with intent to cause physical injury to him, and you have thereby committed an offence punishable under section 4(1) of the Arms Offences Act, Chapter 14.

We heard his appeal on 26 September 2005 and dismissed it. We now give our reasons.

The facts

2 On 12 March 1997, at about 9.00pm, a loud bang was heard in the vicinity of Ban Seng Eating House at Block 4, Beach Road. At about 9.11pm the police were notified that there was a man lying in a pool of blood at the car park located next to Block 4. Soon, the police and the ambulance arrived. The police officers saw a body lying in a supine position on the road beside a row of metal barricades. The ambulance officer, upon examining the body, pronounced that the person had died. It was later established that the deceased was Tan Tiong Huat (“the deceased”), a notorious illegal moneylender who operated at the Golden Mile, Beach Road, area.

3 The forensic pathologist, Assoc Prof Gilbert Lau, certified that the death was due to injuries caused by a low calibre gunshot fired from a distance of more than 30m and from a slightly elevated position. No typical defence injury was found on the body.

4 Subsequently, from a tip-off by a person, who later became a prosecution witness (“PW21”), the police came to know that the appellant was involved in the shooting. By this time, the police efforts to trace the appellant proved futile as he had already left Singapore. Although the identity of PW21 was disclosed at the trial, pursuant to the request of the Prosecution, it was directed by the trial judge, V K Rajah J, to be concealed.

5 Despite all efforts, the police could not locate the appellant. It was only on 30 September 2004 that the Thai authorities handed the appellant over to the Singapore police. Apparently, soon after he fled to Thailand, the appellant was apprehended and held in custody by the Thai authorities for breaching the law there. Four Singapore police officers went up to Bangkok to escort the appellant back to Singapore. Among the four officers were Senior Station Inspector Zainal Abidin (“SSI Zainal”), Station Inspector Roy Lim (“SI Lim”) and Station Inspector Han Khoe Juan (“SI Han”).

6 Upon being brought back to the Police Cantonment Complex (“PCC”) after the flight from Bangkok, the appellant was interviewed by SI Lim and SI Han whereupon he indicated that he was prepared to make a statement. The statement was recorded by SI Lim alone (marked at the trial as “P104”) between 7.30pm and 8.25pm, without the aid of an interpreter. The next day the appellant was formally charged with the murder of the deceased under s 300 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”). After the statutory notice under s 122(6) of the Criminal Procedure Code (“CPC”) was read out to him, the appellant did not respond to the charge. Instead he merely wrote the Chinese characters “水落石出”, meaning “the truth will come to light later”. (This statement was marked at the trial as “P103”). Later, between 5 and 13 October 2004, four more statements were recorded from the appellant and were identified and marked as P105 to P108 at the trial. On the occasions when these four statements were recorded, a police interpreter who specialises in the Hokkien dialect, Ms Toh Bee Choon, was present. The four statements clarified what the appellant stated in P104.

7 The Prosecution’s case essentially rested on three sets of evidence: (a) the five statements (P104–P108) made by the appellant to the police officers, (b) the evidence of PW21 and (c) the evidence of another witness, Tham Boon Hua (“Tham”). The appellant challenged the admissibility of the statements on the ground that they were not voluntarily made as he alleged that threats were uttered, and inducements offered to him by the police officers. The trial judge rejected the appellant’s claim that the statements were not voluntarily made and admitted them.

Issues before us

8 Before us, the appellant canvassed much the same arguments as he did before the trial judge which, in the main, were the following:

(a) The judge should not have admitted the five statements (P104–P108), on the ground that they were not made voluntarily.

(b) The statements should not be relied upon by the court in convicting the appellant as there were numerous inconsistencies in them.

(c) The evidence of PW21 and Tham was totally unreliable;

(d) Taking an overall view of the evidence, bearing in mind that neither the gun nor bullet was found and tendered in evidence and having regard to the appellant’s evidence that an unknown gunman had shot the deceased, there was a reasonable doubt as to whether the appellant was in fact the person who shot the deceased.

Admissibility of the statements

9 We will first address the question as to the admissibility of the statements made by the appellant to the police officers. The appellant contended that the statements should not be admitted because they were not made by him voluntarily. The following were the main grounds of objection raised by the appellant at the trial:

(a) Threats were made to him by SI Lim and SI Han on the flight back from Bangkok.

(b) SSI Zainal induced him to make statements by promising to reduce the charge from one of murder to that of manslaughter if he would co-operate and admit to the charge. The appellant pointed out that in P104, SI Lim did not record that “there is no threat, inducement or promise given by anyone before or during the recording of the statement”, a statement which SI Lim admitted that he would normally record as a matter of prudence.

(c) SI Lim had also repeatedly told the appellant that they were on the 18th floor of the PCC, thus instilling fear in the appellant’s mind that he could be thrown down or beaten up, and, in the latter case, no one could hear his cries.

(d) No caution was administered to the appellant before P104 was recorded by SI Lim.

10 It should also be mentioned that the appellant asserted that SSI Zainal and SI Lim were lying when they said that SSI Zainal was not present when SI Lim recorded P104. The appellant submitted that SSI Zainal, being the leader of the team, would naturally have been involved in taking the statement and was, in fact, involved. SSI Zainal’s explanation that, as the appellant is Chinese and he is not, there could be communication problems, was refuted as being hardly persuasive.

11 After an extensive voir dire, the trial judge held that the various statements made by the appellant were voluntary.

12 We will now examine briefly the alleged threat uttered, or inducement offered, by the police officers on the flight back from Bangkok to Singapore. According to the appellant, SI Han had asked him, “What did you do seven years ago, did you kill this person?” When he denied killing the deceased, SI Han allegedly said, “You better tell your father [meaning SI Han] the truth.” SI Han further added, “If you were to co-operate with us and tell us what actually went on and how it happened we will help you back during your court case.” The appellant was further warned that if he did not tell the truth, “don’t complain if we don’t treat you like a human being”. According to the appellant, this conversation was carried out by SI Han in a low voice for fear that it might be heard by other passengers in the plane. The appellant next alleged that, at that point, SI Lim came up to him and unbuttoned three buttons on his shirt, exposing his tattoos, and said “he is the one”. To the appellant’s mind, he felt that the officers had already come to the conclusion that he was guilty and would be hanged for the alleged crime.

13 After the plane arrived in Singapore, the appellant was brought to the 18th floor of the PCC. He said that at the PCC, SSI Zainal also told him that if he were to admit to the crime, the charge would be reduced from murder to manslaughter, and he would serve only a few years’ imprisonment. Another alleged threat made against him was SI Lim’s constant reminder to him that he was on the 18th storey of the PCC.

14 The trial judge examined each of the allegations of threats made, and inducement offered, by the three police officers and rejected them, giving his reasons. There were hardly any grounds for us to overturn his finding on each of the allegations. The judge was conscious that the burden of proving that the statements were voluntarily made lay on the Prosecution and that there were two components in determining voluntariness, the objective component and the subjective component. The objective component related to determining whether the threat, inducement or promise was made. The subjective component related to determining whether the threat, inducement or promise, if made, did operate on the accused’s mind. Both components must be present before a statement made by the appellant should be excluded on the ground that it was not voluntarily made. Here, we need only refer to the trial judge’s treatment of the appellant’s assertion that SSI Zainal offered him inducement to admit to the shooting of the deceased and of SI Lim’s threat to throw him down from the 18th floor (at [38] and [37]):

The [appellant] repeatedly asserted that he mistrusted all police officers. He also confirmed that he mistrusted SSI Zainal right at the outset. In light of this, I cannot see how any purported promise made by SSI Zainal could have...