Muhammad bin Kadar and another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 05 July 2011
• Neutral Citation: [2011] SGCA 32
• Date: 05 July 2011
• Docket Number: Criminal Appeal No 8 of 2009
• Published date: 19 August 2011
• Plaintiff Counsel: Kanagavijayan Nadarajan (Kana & Co) and Rajan Supramaniam (Hilborne & Co)
• Hearing Date: 21 January 2011,05 July 2011,15 April 2011,31 May 2011
• Defendant Counsel: Thrumurgan s/o Ramapiram (Thiru & Co) and Balvir Singh Gill (B S Gill & Co),Anandan s/o Bala, Mark Tay Swee Keng and Mohamed Faizal (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing

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

This is an extraordinary case. Two brothers, Muhammad bin Kadar (“Muhammad”) and Ismil bin Kadar (“Ismil”) (collectively referred to as “the Appellants”), were charged with the brutal murder of a 69-year-old woman (“the Deceased”) in the High Court. They were convicted by the trial judge (“the Judge”), who gave his grounds in a 214-page judgment (see Public Prosecutor v Ismil bin Kadar and another [2009] SGHC 84) (“the Judgment”) that paid commendable attention to detail, and were sentenced to suffer capital punishment. The trial, one of the longest in the Singapore judiciary’s annals, took 94 days stretching over a period of more than two years from 20 March 2006 to 9 May 2008. One of the primary reasons for this lengthy period was the fact that not long after the trial commenced, both of Muhammad’s counsel discharged themselves (for reasons that will be revealed later in this judgment (see [123] below)) and new counsel had to be engaged.

At the start of the trial, the Prosecution unequivocally asserted that Ismil was the sole assailant. This initial position can be traced to statements that Ismil made on the day after he was arrested. The Prosecution accepted that Muhammad was not involved in the actual killing of the Deceased, but argued that by virtue of s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”), he was also legally responsible for the killing since he was present at the scene of the crime and shared a common intention with Ismil. But, after Muhammad dramatically testified to his sole involvement in the killing, the Prosecution did a startling volte-face in that it then emphatically contended that Muhammad alone had inflicted the fatal wounds. However, the Prosecution maintained that both the Appellants were equally liable for murder pursuant to s 34 of the Penal Code, as they shared a common intention to commit robbery. The Judge agreed with the Prosecution in this regard in convicting both the Appellants.

Unsurprisingly, the twists and turns did not end with the trial. Before us, when queried, the Prosecution changed its position yet again. This time, it conceded that the Judge had erred in that only Muhammad should be found liable for murder, and that Ismil should not be held to be equally liable as the evidence on record was insufficient to prove a common intention to cause the Deceased’s death. The Prosecution, however, submitted that Ismil should be found guilty of committing robbery with hurt since he was present at the scene of the crime and there was sufficient evidence to show that he shared a common intention with Muhammad to commit robbery. In maintaining that Ismil should be convicted, albeit for robbery with hurt, the Prosecution referred to statements in which he claimed to be the sole assailant. This, of course, raises a vexing conundrum – a veritable legal curate’s egg – in that it has to be decided whether the Prosecution can rely on the barest residue of evidence from statements that have already been seriously compromised. It should be added that absolutely no objective evidence was placed before the court that tied Ismil to the scene of the crime or the crime itself. Pertinently, the lead investigator acknowledged that more could have been done in the investigations to secure objective evidence (see [183] below).

Another unusual feature is that the Judge did not make a finding as to the identity of the actual assailant – whether it was Muhammad or Ismil. He stated that he was unable to do so. Yet, he concluded that by virtue of s 34 of the Penal Code, both should be held liable for murder as they had shared a common intention to rob. In arriving at this determination, he relied on the series of confessions made by the Appellants in their statements. All counsel before us (including Muhammad’s) unreservedly accepted that only Muhammad was responsible for the killing. Counsel for Ismil, however, went further, in that he forcefully maintained that Ismil was never even present at the scene of the crime and that false confessions in statements that had been made by Ismil during police investigations had caused a miscarriage of justice. Several manifest evidential inconsistencies in the said statements were also alluded to.

Aside from the aforementioned unusual aspects, another aspect of the proceedings that has left us disturbed would be the fact that the Prosecution failed to disclose statements made on 12 May 2005 and 5 September 2005 by the Deceased’s bedridden husband, Mr Loh Siew Kow (“Mr Loh”), until nearly 18 months after the trial had commenced. Mr Loh, who passed away due to cancer a few months after the trial began, was no ordinary witness. He was the only person – other than the Deceased and her assailant or assailants – present in the Deceased’s flat throughout the incident. In his detailed statements, he clearly and consistently stated that there was only one intruder. In addition to this lapse, the day before the trial was due to end, it somehow emerged that Mr Loh had made an even earlier statement to the investigators. This was made the day after the murder on 7 May 2005. In this statement, Mr Loh unambiguously stated that there was only one intruder and then proceeded to give a detailed description of that person. The Prosecution, when queried by us, acknowledged that with hindsight, the timely disclosure of Mr Loh’s evidence “may have been the … wiser decision”,¹ though it insists it had no legal obligation to disclose those three statements.

The present appeal, in short, presents knotty issues of both fact and law for this court to resolve. As this is a fairly lengthy judgment, it makes sense to first outline what will be covered in schematic form:

Introduction [1] Factual background [7] The dramatis personae [7] The discovery of the death of the Deceased [10] The arrest of the Appellants [13] The trial in the High Court [21] The trials-within-a-trial [22] The main trial [25] The decision of the High Court [35] The present appeal [36] Preliminary legal issues [41] Admissibility and exclusion of procedurally-flawed statements [42] Treatment of subsequent statements with similar content to an excluded statement [69] Testing the veracity of a disputed statement admitted into evidence [73] The Prosecution’s duty to the court in relation to disclosure of relevant material not favourable to the case it seeks to present [76] The Prosecution’s duty of disclosure under the CPC and the CPC 2010 [77] The Prosecution’s duty of disclosure under the common law in other jurisdictions [83] England [83] Australia [87] Hong Kong [88] Canada [90] India [91] Malaysia [93] Brunei [95] The Prosecution’s duty of disclosure under the common law in Singapore [99] Scope of the Prosecution’s duty of disclosure under the common law in Singapore [113] Consequences of non-disclosure and late disclosure [120] Muhammad’s conviction [122] Admissibility and reliability of Muhammad’s statements [123] Muhammad’s confessions as to his sole involvement [123] Muhammad’s other statements [130] The defence of diminished responsibility [131] Conclusion on Muhammad’s conviction [137] Ismil’s conviction [138] The admissibility of Ismil’s statements [139] Admissibility of the initial statements [139] Non-compliance with section 121 of the CPC [139] Non-compliance with the Police General Orders [141] Our view on the admissibility of the initial statements [146] Admissibility of subsequent statements [148] The reliability of the statements made by Ismil [150] Inconsistencies with Mr Loh’s statements [151] Confession of sole involvement by Muhammad [159] Physical condition of Ismil on the morning of 7 May 2005 [160] Ismil’s malleable personality [166] Striking changes in details in statements as more facts were uncovered [174] Absence of any objective evidence [179] Our view on the reliability of Ismil’s statements [185] Flaws in the Prosecution’s case theory against Ismil [186] Conclusion on Ismil’s conviction [191] Conclusion [194] Coda on the Prosecution’s conduct of these proceedings [195] Factual background The dramatis personae

The Appellants are brothers who lived in a flat with their family at Block 185 Boon Lay Avenue #04-154, one floor below the Deceased’s flat which was #05-156. Muhammad was 29 years old at the time of his arrest. His highest educational qualification was Primary Seven (extended).² At the time of his arrest, he was working as an odd-job general worker on a part-time basis.³ In terms of criminal history, he has had two stints in the Drug Rehabilitation Centre as well as a number of antecedents in property and drug offences. He started taking drugs at the age of 15. His history of drug abuse began with cannabis and then progressed to various other kinds of drugs, including heroin. From 2003, he started consuming Subutex in place of heroin. He began consuming Dormicum in 2004.⁴ Prior to his arrest, he had been consuming Dormicum on a daily basis.⁵ He was, in short, a chronic substance abuser.

Ismil was 37 years old at the time of his arrest. His highest educational qualification was Primary Six. At the time of his arrest, he was working as a general worker on a contract basis.⁶ He began consuming cannabis and sniffing glue at the age of 15, and...