Mohamed Bachu Miah and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 11 September 1992
• Neutral Citation: [1992] SGCA 56
• Docket Number: Criminal Appeal No 7 of 1991
• Date: 11 September 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: NS Kang (NS Kang)
• Citation: [1992] SGCA 56
• Defendant Counsel: Lee Sing Lit (Deputy Senior State Counsel),Peter Fernando (Leo Fernando)
• Court: Court of Appeal (Singapore)
• Subject Matter: Admissibility,Defence of sudden fight,s 121(1)Criminal Procedure Code (Cap 68),Nature and scope of defence,Whether police may take statement from person after he is charged or after he has given s 122(6) statement,s 300 Exception 4 Penal Code (Cap 224),Statements,s 122(5) Criminal Procedure Code (Cap 68),Criminal Law,Notice under s 122(6),Whether available to appellants,Criminal Procedure and Sentencing,Power to investigate,Special exceptions,s 122(6) Criminal Procedure Code (Cap 68),Words and Phrases,Voluntariness,Whether statements rightly admitted,'Express provision '- s 26 Evidence Act (Cap 97, 1990 Ed),Statements amounted to confession,When duty to serve the notice arises,Police,Powers of police to examine suspects and accused persons under arrest,s 26 Evidence Act (Cap 97, 1990 Ed)

Cur Adv Vult

On 27 March 1991 the appellants were convicted in the High Court on the following charge:

You, Mohamed Bachu Miah and Md Mahamudzzaman Khan s/o Md Zinder Ali Khan, are charged that you, on or about 22 January 1988 at between 3.15am and 5am at the site office of Messrs Ong Huat Construction Co, situated between Nos 10 and 12, Jalan Kampong Chantek, Singapore, in furtherance of the common intention of both of you, committed murder by causing the death of one Md Shafiqul Islam @ Md Abdul Islam, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224).

They were accordingly sentenced to the mandatory sentence of death. They have now appealed to this court against both conviction and sentence.

The evidence adduced by the prosecution at the trial is as follows. On 22 January 1988 at about 8am, one Shafiqul Islam also known as Mohamed Abdul Islam (hereafter called `the deceased`), a Bangladeshi construction worker, was found dead with serious injuries on his face and body in a container stationed at a construction site at Nos 10 and 12, Jalan Kampong Chantek, Singapore. The container was used both as an office and as the sleeping quarters of the deceased. The pathologist, Dr Clarence Tan, who arrived at the scene soon after the detection of the crime noted serious injuries to the head and body. In particular he noted that the jeans worn by the deceased were unzipped and pulled down, exposing his genitals. The deceased`s scrotum had been cut and both his testicles had been removed and were found on the floor close to the body of the deceased. The foreskin of the deceased`s penis had also been circumferentially incised into. Dr Tan said a cutting instrument with an edge which was not too sharp could have been used to cause these injuries. However, as there was no bleeding around the genitals, he was of the view that those injuries were caused at or around the time of death.

The pathologist certified that the cause of death was the combined effect of a fractured skull and dislocation of the cervical spine (the neck). He said that these fractures were consistent with repeated blunt injuries to the left side of the face and neck. Severe force must have been used to produce the fracture and dislocation. He agreed with the suggestion that a steel crank could have been used to inflict the fatal injuries. He did not find any injuries on the deceased consistent with strangulation. Dr Tan estimated that the deceased must have died between 3am and 5am that morning of 22 January 1988.

The first appellant/accused was arrested some nine days later at about 6pm on 31 January 1988 at Dunlop Street. From information obtained from him, the police on the same evening went to a location at Mandai Lake Road, Track 11, where they arrested the second appellant and another person called Hallaludin (`Tony`). Both the second appellant/accused and Tony were Bangladeshi workers.

Following their arrest, the officer in charge of the case, Insp Yeoh Bak Seng, recorded three statements from each of the accused persons. The first statement was recorded in the field diary; the second was a statement under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`) and the third was a long statement. The first accused gave his statements on 31 January 1988, 1 February 1988 and 4 and 8 February 1988; the second accused on 31 January 1988, 1 February 1988 and 11-12 February 1988.

The admissibility of all the statements from each of the appellants was objected to. A trial-within-a-trial was accordingly held. The first appellant alleged that he was subjected to assaults, threats and inducement before he gave and signed the field diary statement. As regards the s 122(6) statement, he alleged that there were also threats and inducement. Furthermore, the interpreter, who was present, did not do much of an interpretation. Neither was the statement read back to him. As regards the long statement, there were similar threats of assaults and inducement. The interpreter, who came in a little later, hardly did any interpretation. The first appellant said that he signed the statement without knowing what he signed. He claimed that he could not really communicate in English or understand English.

The second appellant also claimed that he could not converse in English. He did not make any of the three statements voluntarily and he did not know what he signed. He alleged that before he gave the field diary statement he was assaulted and was threatened. He signed the statement because he was induced to do so. As regards the recording of the s 122(6) statement, he said that he was again assaulted and beaten. An interpreter who was present did not do anything other than obtain his personal particulars. No caution was administered to him. As regards the long statement, he said that the interpreter did not do any interpretation of any statement. No warning was given to him.

The police officers who were implicated denied that they had assaulted or threatened the appellants or had offered any inducement to the appellants to make those statements. The recording officer, Insp Yeoh, said that while recording the field diary statements from the appellants, he was able to converse with them in English. The Bangladeshi interpreter, Mr Chakravarti, denied that any other person was present in the room while he was acting as interpreter for the s 122(6) statements and the long statements of the two appellants. He said he did the interpretation on the statements. However, he was not able to express adequately in English the warning which he administered to them when recording the long statements from them even though he understood the meaning of the caution.

At the conclusion of the trial-within-a-trial, the learned trial judges ruled that they were satisfied beyond any reasonable doubt that all the three statements given by each appellant were given voluntarily without any inducement, threat or promise and admitted the statements. The statements clearly implicated the appellants in the joint deliberate killing of the deceased. The relevant portions of the statements are as follows:

Field diary statement of the first accused

On 18 January 1988, I go to Tampines New Town at the SGE Construction and met King Balbu there. He told me that the police used to go to disturb him and other workers there. He suspected Islam to be the informer. He also know that I am going home and he asked me to kill Islam before I go home. I asked him how much he is going to pay me and he told he will pay me $1,000. I agreed as I needed money because my mother is very sick in Bangladesh. He gave me until Sunday to kill Islam but I killed Islam on Friday morning at about 4am. On 21 January 1988 at about 7.30pm I was at the Coronation Shopping Centre to wait for `Linto` as appointed. At about 8.30pm, `Linto` came to meet me. Both of us later have dinner at a stall at Hillview. After that, we took a taxi to Islam`s place at Jalan Kampong Chantek. We met him at his office. Islam asked me why I came so late. He is a friend of mine and we ever worked together before. Shortly, Islam told us that he wanted to go to Jalan Kayu to meet four Thai workers whom he employed. Linto and I agreed to accompany him to Jalan Kayu. We took a taxi there. At Jalan Kayu, the Thais were drunk and he was unable to collect money from them. We left sometime around 11pm and returned to Islam`s place at Jalan Kampong Chantek. On the way, Islam bought two bottles of beer and two bottles of stout. We stared [sic] drinking at Islam`s office. He switched on his cassette player and a table light and asked us to enjoy. We were talking, drinking and dancing. At about 2.30am on 22 January 1988, Linto told Islam whether he is interested in a Malay girl or not. Islam said he is interested and Linto telephoned the girl and made appointment with her. So, the three of us left in a taxi to Blk 52, 7th floor Macpherson. Islam also talked to her over the telephone. The three of us take turn to have sex with the Malay girl. We paid her $25 only. Islam was the one who paid everything including taxi money. Islam had sex with the girl twice. After that, we went back to Islam`s place by taxi to Islam`s office. We went into the office and sat there. We talked until 4am. Islam then fall asleep but we just lied down. As prearranged, Linto lighted up his cigarette lighter indicating to me to get ready to kill Islam. Linto then went to call Islam softly but Islam did not respond and carry on sleeping. Linto then went to sit on top of Islam and strangled his neck. At the same time, he pointed to me to take the metal starter. I too went to catch hold of his leg but Islam managed to push both of us aside. He just stood up after having bitten Linto`s finger. Linto then tell me to kill him and he caught hold of Islam and asked me to kill him. I then took the metal starter from the table and hit him many times on his head. He fell to the floor. Linto took Islam`s purse from his rear pocket. He then told me to look for blade and said that if ISLAM is not dead, he will report to the police. I went around to look for blade but was unable to get any. I managed to get hold of a pair of plier and Linto went to catch Islam`s balls. He pulled Islam`s balls with hands but was unable to pull it off. I told him to leave it to me and I used the plier to pull out his two balls. With the balls out, Islam did not make any more sound and we knew he was dead. I looked around and took a pair of track shoes which I am wearing now. I also took a photo album which I burnt away subsequently. Linto also took a pair of shoes. We then took a taxi to Orchard Road and on reaching there near Lucky Plaza, we realized it was already 5am. We walked to Far East Plaza and took a taxi to Yishun.

Field diary statement of the second accused

On 21 January 1988, Mohamed Ali @ Bachu and I

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