Oh Laye Koh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 29 July 1994
• Neutral Citation: [1994] SGCA 102
• Court: Court of Appeal (Singapore)
• Year: 1994
• Published date: 18 January 2006
• Plaintiff Counsel: Peter Fernando (Leo Fernando)
• Defendant Counsel: Jennifer Marie (Deputy Public Prosecutor)
• Citation: [1994] SGCA 102

Cur Adv Vult

Yong Pung How CJ (delivering the judgment of the court):

1 The appellant was tried initially in the High Court in Criminal Case No. 23 of 1991 on the following capital charge:

That you, OH LAYE KOH, on or about the 2nd day of October, 1989, between 1.05pm and 4.00pm, at a vacant land off Yishun Avenue 2, Singapore, committed murder by causing the death of one Liang Shan Shan @ Leong Shan Shan, and you have thereby committed an offence punishable under section 302 of the Penal Code (Chapter 224).

The facts - a recapitulation of the events leading up to this appeal

2 The appellant was a school bus driver who drove the deceased to and from school. On the morning of 2 October 1989, the deceased left for school in the appellant's bus. When she failed to return home that evening, the deceased's mother telephoned the appellant's home at about 3.30pm. At about 4.10pm, the appellant returned the mother's call and told her that he had not picked up the deceased from school. He said that she was not there when he passed by her school.

3 On the morning of 14 October 1989 at about 10am, a highly decomposed body was found at a vacant plot of land off Yishun Avenue 2. The body was positively identified to be that of the deceased. Due to the advanced stage of decomposition, the cause of death could not be ascertained exactly.

4 At the trial below, the trial judge acquitted the appellant at the conclusion of the case for the prosecution, without calling for the appellant's defence. Subsequently, the public prosecutor appealed to this court in Criminal Appeal No. 25 of 1992. In our grounds of judgment reported as Public Prosecutor v Oh Laye Koh [1994] 2 SLR 385, we allowed the public prosecutor's appeal and held that the circumstantial evidence at the end of the prosecution case would have been sufficient to warrant calling for the appellant's defence. In arriving at this conclusion, we examined the evidence of the primary facts presented by the prosecution against the respondent (the appellant in the present proceedings). These are reproduced from our judgment reported in [1994] 2 SLR 385:

(i) There was evidence that the deceased boarded a school bus at about 1.00pm on 2 October 1989, that no one else was then in the bus apart from the driver, and that the school bus was similar to the appellant's.

(ii) The appellant had lied to the deceased's father that he had brought his bus to the motor mechanic for repair of the brakes between 3.00pm and 4.00pm, and had requested the mechanic to lie to the deceased's father that he had been to the mechanic's workshop between 1.00pm and 4.00pm.

(iii) The appellant on the very night of 2 October 1989 telephoned a classmate of the deceased asking her to be his witness and to say that the deceased had not boarded his bus.

(iv) On 16 October 1989 the appellant had actually led the police to the exact spot where the deceased's body was and that same morning had led the police to another spot five kilometres away where her school books lay.

(v) The appellant's conduct towards the deceased, for instance, his frequently teasing her and his attempt on one occasion to take a photograph of her and her complaint that the respondent talked `nonsense'.

(vi) There was evidence of trauma to the body of the deceased, notably a complete fracture of the lower jaw. In this connection, the opinion of the pathologist was that this was caused by a blow delivered with great force, as the lower jaw was `quite a tough structure' and the fracture was a complete one separating the jaw into two halves.

5 From these primary facts, this Court was satisfied that a prima facie case had been established at the close of the prosecution case. The following inferences could reasonably be drawn: that the deceased's death was not suicidal or accidental but homicidal; that the appellant was the last person to be with the deceased; that injuries were inflicted on the deceased and, in particular, a heavy blow at the lower jaw which according to the pathologist was inflicted with great force; that these injuries were inflicted by the appellant; that they caused the deceased's death and that the injuries were inflicted with the state of mind falling within one or more of the mens rea elements of s 300 of the Penal Code. We therefore allowed the public prosecutor's appeal and remitted the case back to the trial judge for the appellant's defence to be entered.

6 At the remitted trial, the standard allocution in s 189 (2) of the Criminal Procedure Code (`CPC'), informing the appellant of the consequences of his remaining silent, was duly administered to the appellant before his defence was called. The appellant elected to remain silent and called no witnesses in his defence. In response to the appellant's electing to remain silent when his defence was called upon, the trial judge observed:

The absence of such an explanation has greatly strengthened the prosecution case. It is an additional link which completes the chain of evidence. I am satisfied that your preference for the well of the Court rather than the witness box and thus your failure to give evidence arose from a consciousness of guilt in the face of the circumstantial evidence and its nature established against you and as such I find it necessary to draw an adverse inference against you in respect of the above matters on the charge you face. Thus I am constrained to draw an irresistible inference that you were the last person with the deceased and you had intentionally caused the death of the deceased by an unlawful act under s 300 (a) of the Penal Code and that the deceased's death was not suicidal or accidental and I so find. Although the prosecution was unable to identify the unlawful act, it is not necessary, in my opinion, always to do so. In any case, the fracture resulted from a blow delivered with great force in respect of which the only irresistible inference is that you were instrumental for the same having regard to the strength of the cumulative inferences drawn and the totality of evidence.

7 The trial judge was satisfied that the various circumstances were not capable of any explanation consistent with the appellant's innocence. As such, the trial judge found that the prosecution had proved its case against the appellant beyond a reasonable doubt. The appellant was accordingly found guilty as charged and sentenced to suffer death. Against this decision the appellant appealed. Having had the opportunity to consider this case for a second time, we are of the opinion that the appellant's appeal should be dismissed for the reasons that follow.

The present appeal

8 Mr Fernando's main ground of appeal was that the trial judge failed to consider whether the inferences that could be drawn from the primary evidence were irresistible. It was his contention that the trial judge was bound to consider whether some or all of the inferences spelt out by the Court of Appeal in the earlier appeal, had proved to be irresistible by the end of the remitted trial. He prayed in aid the judgment of this Court in Vinit Sopon & Ors v Public Prosecutor [1994] 2 SLR 226, where Yong Pung How CJ held at p 242:

In other words, the third appellant could be convicted on the strength of circumstantial evidence only if an irresistible inference could be drawn to establish the fact in issue, viz. the third appellant had abetted by conspiracy the trafficking in of drugs.

Mr Fernando contended that the trial judge had wrongly viewed the appellant's silence to be `an additional link which completes the chain of evidence.' The trial judge was said to have based the irresistible inference of guilt solely and wholly on the appellant's silence, instead of considering whether the other primary facts and evidence were sufficient by themselves to establish such inference. In other words, it was contended that should the primary evidence be insufficient to form the basis of an irresistible inference of guilt, the appellant's silence could not then be used as an additional link to complete the gap in the chain of evidence.

9 Counsel also contended that the trial judge erred in failing to consider that the death of the deceased could have been due to an accident, and that the appellant's lies could well have been told to dissociate himself from an accidental death occurring in some fortuitous circumstances. He contended that there...