Loh Khoon Hai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 May 1996
• Neutral Citation: [1996] SGHC 93
• Docket Number: Criminal Motion No 38 of 1995 and Magistrate's Appeal No 161 of 1995
• Date: 02 May 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Kelvin Lim (Kelvin Lim & Pnrs)
• Citation: [1996] SGHC 93
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Evidence,Witnesses,Confession that earlier testimony had been fabricated,Civil Procedure,Testimony given in hope of receiving lighter sentence,Appeals,Whether apparently credible,Whether having effect of automatically impugning quality of testimony or constituting improper motive,Leave to adduce fresh evidence,Principles governing admissibility,s 257 Criminal Procedure Code (Cap 68)

The appellant was charged in the court below as follows:

You, Low Khoon Hai, M/35 yrs, IC No 5847932 (FOM), are charged that you, between May 1994 and 9 June 1994, at Kuala Lumpur and elsewhere in Singapore, did engage with Teh Chong Beng and one other male person `Meetro`, in a conspiracy to do certain thing, namely, to commit robbery, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 9 June 1994, at 15 Dalkeith Road, Singapore, to wit, four male persons, namely, Yong Ngan Choon, Seah Theam Hock, Fung Kuin Yew and Kok Peng Kuen, committed robbery of cash S$1,800, cash US$4,000 and an assortment of gold/diamond jewellery, amounting to a total value of S$6m, belonging to one Ruhaizah bte Ibrahim and while committing the said robbery, voluntarily caused hurt to one YAM Pengiren Anak Hamlatul Arsymulia, and you have thereby abetted the offence of robbery with hurt, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under s 109, read with s 394 of the Penal Code (Cap 224).

The appellant pleaded not guilty to the charge and his defence was a bare denial of any involvement. At the conclusion of the trial, he was found guilty on the charge and was convicted thereon.

The prosecution case

A preliminary observation on the law is that s 116 Evidence Act (Cap 97, 1990 Ed) provides that the court may presume that an accomplice is unworthy of credit and his evidence needs to be treated with caution. But s 135 Evidence Act provides that it is not obligatory for the court to warn itself about convicting on the uncorroborated testimony of an accomplice, provided the court is satisfied beyond a reasonable doubt of the accused`s guilt.

The prosecution case rested solely on the testimony of Teh Chong Beng (Teh) who had already been convicted and sentenced before giving evidence. Broadly, he implicated the appellant in the following ways:

(1) the appellant had told him in mid-May 1994 that a friend of his knew of a rich family in Singapore who normally kept a large amount of jewellery and cash in their home;

(2) the appellant was looking for someone to do the job and had allegedly asked him whether he knew of any interested parties;

(3) the appellant offered to pay him RM150,000 for a large piece of diamond and to evaluate the rest before offering him a price;

(4) the appellant told him on 3 June 1994 to wait at his shop on 4 June 1994 at 8am as he (the appellant) would be leaving for Singapore;

(5) on 4 June 1994, the appellant introduced him to one Meetro who drew a plan of the house at 15 Dalkeith Road and explained that there would be only two women and two children in the house. Teh was also told to use the side entrance. Subsequently, all three of them proceeded in the appellant`s car to Singapore to view the house. Teh then later briefed Yong Ngan Choon, Seah Theam Hock, Fung Kuin Yew and Kok Peng Kuen who carried out the robbery;

(6) when the four men made the second attempt to rob the house on 8 June 1994, having aborted the first on finding that there was too much activity in the vicinity of the house, they saw an additional car in the compound and again aborted the plan. The appellant subsequently provided information that the car belonged to the owner, that it was for sale and there was nothing to worry about. The robbery was finally carried out on the third attempt on 9 June 1994;

(7) after the robbery on 9 June 1994, Teh returned to Kuala Lumpur with the diamond ring whereupon the appellant paid him RM150,00 in cash. No one was present during the transaction. The remaining loot was valued and the appellant paid RM120,000 for the items.

Teh also testified that he became angry when he later discovered from a newspaper that the jewellery stolen amounted to S$6m. He stated that none of the four men who carried out the robbery knew the appellant, nor did they know that he was dealing with him.

Teh`s testimony indicated that the appellant`s role lay mainly in the disposal of the jewellery. However, the meetings and conversations between Teh, the appellant and Meetro clearly revealed that the appellant had abetted the robbery by conspiracy under s 109 Penal Code. Therefore he was liable and punishable under s 394 of the Penal Code.

The defence

The defence was essentially a total denial of any complicity or involvement in the commission of the robbery. The appellant`s evidence was as follows. He was licensed to deal in second-hand goods, which licence he had possessed since 1987. He was also a dealer in watches and he operated from his shop in Kuala Lumpur. He had known Teh for a few years, who had sold watches to him and pawned watches with him. His dealings with Teh were purely on a business level and he did not regard Teh as a personal friend.

The appellant claimed that he did not engage in any conspiracy to commit robbery. He knew of no one called Meetro, neither did he know the other four men, namely, Yong Ngan Choon, Seah Theam Hock, Fung Kuin Yew and Kok Peng Kuen, who carried out the robbery. He stated that he was unfamiliar with Singapore and denied participation and knowledge of everything which Teh had implicated him in. The appellant said that he only read about the robbery in a Malaysian Chinese newspaper. It was the appellant`s contention that Teh had implicated him in the hope of receiving a lighter sentence and his counsel attacked the credit of Teh by pointing to his colourful criminal record.

The decision below

The trial judge found that Teh`s evidence on the appellant`s involvement was in no way self-serving. There was no improper motive and nothing to gain from implicating the latter. He found Teh to be a truthful, fair and reliable witness. Teh testified that Meetro was the mastermind. If he was indeed lying and wanted to frame the appellant, he could have implicated him in many particulars but he did not. On the other hand, the trial judge found that the appellant had made great attempts to portray himself as a timid and quiet person who could never have been involved in the conspiracy. Despite his denial of any involvement, he only admitted to entering Singapore alone on 4 June 1994 when pressed in cross-examination. He claimed that he met someone called Tok Kong whom he knew to be dealing with watches. He said that he had frequent dealings with this person and he contacted him by telephone. Yet this person was never produced in court although this could have been done easily. Although the appellant was not required in any way to prove his innocence, the trial judge concluded that he was clearly lying about his non-involvement. Accordingly, he convicted the appellant and sentenced him to six years` imprisonment and 12 strokes of the cane.

The issues before the court

There were three main issues raised by the appellant`s counsel before this court. First, it was contended that there was documentary evidence which showed that Teh was lying, hence leave of the court was sought to adduce fresh evidence. Secondly, it was argued that the trial judge had failed to consider the glaring inconsistencies and contradictions in Teh`s evidence, thereby failing to appreciate that Teh`s testimony was self-serving. Thirdly, counsel contended that the sentence was manifestly excessive.

The criminal motion

Adducement of fresh evidence

The adducement of fresh evidence was the crux of the appellant`s case. Apparently sometime in September 1995, in Changi Prison, the appellant was given a handwritten note of Teh`s. The note, reproduced verbatim below, read as follows:

Your Lordship,

Re: To whom it may concern

This is to confirm that I, Teh Chong Beng I/C No. 8070519 duly wish to confess that as material witness in the trial of Mr Low Khoon Hai in the district court, I have repeatedly told lies and fabrications as I was under tremendous pressure and anxiety. However, I deeply regretted my selfish acts and would wish to submit my sincere apology for any inconveniences caused.

Yours Humbly,

Teh Chong Beng

Prisoner No: L 35999/94

Subsequently, this handwritten note was obtained by the appellant`s lawyer from the Changi Prison Authority after the same had been cleared with the Attorney General`s Chambers.

Before this court, the appellant sought to adduce this piece of evidence which was unavailable at his trial. Under s 257(1) of the Criminal Procedure Code (Cap 68) (CPC), this court may make an order to take further evidence before proceeding to dispose of the appeal. The subsection provides:

In dealing with any appeal under this Chapter the High Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a District Court or Magistrate`s Court.

In determining whether the fresh evidence is `necessary`, the court is guided by three principles. First, it must be shown that the evidence could not have been obtained with...