Ong Chee Hoe and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 02 September 1999
• Neutral Citation: [1999] SGCA 66
• Docket Number: Criminal Appeal No 11 of 1999
• Date: 02 September 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Tan Teow Yeow (Tan Teow Yeow & Co) and Edmund Wong (Trinel Rai & Partners)
• Citation: [1999] SGCA 66
• Defendant Counsel: Peter Low (Peter Low, Tang & Belinda Ang) and Goh Aik Leng (Goh Aik Leng & Partners),R D Gangatharan (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Common intention,Whether intention to cause fatal injuries to be shared by assailants,Murder,Whether prosecution needs to prove common intention to commit crime for which appellant being charged,Whether offence committed in furtherance of a common intention,Criminal Law,Offences,Complicity,s 300(c) Penal Code (Cap 224),s 34 Penal Code (Cap 224),Whether necessary for common intention to be that of committing the offence,Intention to cause fatal injuries,Whether participation and physical presence established

(delivering the grounds of judgment of the court): The appellants were convicted in the High Court by MPH Rubin J on the following charge:

That you,

1 Ong Chee Hoe

2 Soo Kian Fong

on or about 5 January 1994, between 9.20pm and 9.50pm, inside Lift `B` of Block 34 Teban Gardens Road, Singapore, together with one Ng Beng Kiat and in furtherance of the common intention of you all, did commit murder by causing the death of one Chia Lap Lai, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224).

As both the accused persons were under the age of 18 at the time of the commission of the offence, they were sentenced under s 213 of the Criminal Procedure Code (Cap 68) to be detained during the President`s pleasure in such place and under such conditions as the President directs. Both the appellants appealed against their conviction and sentence. We dismissed their appeals at the end of the hearing and now give our reasons.

The prosecution case

The background facts were these. Aik Kah Hwee (`Aik`) and Ng Hui Leong (`Ng`) were childhood friends of Chia Lap Lai (`Li Li`) (the deceased). Sometime in early 1993, whilst playing basketball at a court located next to Block 44 Teban Gardens Road (Blk 44), the three of them came to know a group of youths, amongst whom were the two appellants and one Ng Beng Kiat (`Bulldog`). These youths were members of the Tiong Meng Kok secret society. The deceased and his friends were invited to join the secret society but they refused.

Subsequently, in August 1993, the deceased and his friends joined the Pak Hai Tong secret society, a rival gang of the Tiong Meng Kok. From that time onwards, the deceased, Aik and Ng avoided going to the basketball court and the adjacent fitness corner and children`s playground. From the evidence led by various prosecution witnesses, it was clear that the two rival gangs were on bad terms with each other and it appeared that during the period in which the incident took place, the Tiong Meng Kok members had been unhappy with the deceased and his two friends as they had assaulted one of them in an earlier incident.

Aik and Ng gave evidence that on 5 January 1994, at about 8.30pm, they had met up with the deceased at a nearby coffee shop at Block 49 Teban Gardens Road (Blk 49). The three of them left the coffee shop after an hour or so, at about 9.30pm, to go home. Near Block 48 Teban Gardens Road (Blk 48), Aik and Ng parted with the deceased who then headed back alone to his home at Block 34 Teban Gardens Road (Blk 34). At this material time, the deceased was not armed with any wooden stick or implement.

At the same time, some other friends of the deceased, namely, Siew Kok Pieng (`Siew`), Tan Chak Wee (`Tan`) and Chang Hiang Hseng (`Chang`), were chatting at the nearby fitness corner. Their testimonies were that they had observed that the two appellants, Bulldog and some five others were gathered at the void deck of Blk 44. At about 9.45pm Bulldog was seen walking towards the fitness corner from Blk 44. As he reached the fitness corner, Bulldog stopped and looked towards Blk 48. He then turned to his friends at Blk 44 and whistled to them. At that time, Aik and Ng were entering the lift at Blk 48 whilst the deceased was walking alone and unarmed towards Blk 34. The two appellants and Bulldog were then seen walking along the carpark in front of Block 45 Teban Gardens Road (Blk 45) in the direction of Blk 34. Chang`s evidence was that he noticed that the second appellant and Bulldog were each carrying a stick of about two and a half feet in length. Chang did not know if the others were armed.

The above account was substantiated by five of the appellants` friends who were also called to give evidence on behalf of the prosecution. They were Wong Teck Kheong (`Wong`), Ng Chang Kie (`Kie`), Kuo Thian Thiam (Kuo), Tung Chee Kong (`Tung`) and Ong Guan Huat (`Huat`). They all gave consistent testimonies that on 5 January 1994 at about 9.30pm, they were all gathered at the void deck of Blk 44. Bulldog had then informed the group that he had spotted the deceased, Aik and Ng and that they were armed. Bulldog told them to get prepared by arming themselves with wooden poles that were found nearby. Subsequently, Bulldog told them that he had seen two guys walking from Blk 46 to Blk 45. The two appellants, Bulldog and Huat then picked up a wooden pole each and hurried towards the direction of Blk 34. The rest of them, Tung, Kie, Kuo and Wong remained at Blk 44. Huat took a different path from the two appellants and Bulldog and as a result he lost track of them along the way. As for the two appellants and Bulldog, they chased after the deceased and when they spotted him going into the lift at Blk 34, they rushed in after him and attacked him with the wooden poles which they had picked up earlier.

Siew and Tan gave evidence that when they saw the group rush after the deceased, they suspected that the deceased might be in danger and they shouted out his name to alert him. Unfortunately, the deceased did not hear them and continued to walk towards Blk 34. Siew and Tan then ran after the deceased but lost sight of him around the corner of Blk 45. They caught sight of Bulldog briefly before he went into the lift `B` of Blk 34. They went to the lift lobby of lift `B` but did not see the deceased, Bulldog or the two appellants. The lift door was closed then and they heard noises coming from within the lift, which sounded as if someone was being assaulted inside the lift. Siew and Tan left the place when they heard some residents staying on the ground floor open their doors to take a look. A short while later, the two appellants and Bulldog were spotted fleeing from Blk 34.

A resident of Blk 34, Mdm Leow Chu Fong, whose flat was on the ground level, testified that on the same night at about 9.30pm, she was watching some television programmes when she heard a commotion outside her flat at the lift lobby area. She came out of her flat and saw the deceased lying semi-conscious inside the lift. She then quickly reported the matter to the police.

When the police and ambulance arrived at the scene shortly thereafter, the ambulance officer, Salbiah bte Sulaiman, said that she found the deceased unconscious, breathing heavily and there were two large haematoma at the lower back of his head. The deceased was taken to the National University Hospital (NUH) whereupon he was found to be in a critical state and was immediately rushed into the operating theatre where he was attended to by Dr George Sy, a Research Fellow of the Division of Neurosurgery. During the operation, the deceased went into asystole and could not be revived despite all medical and surgical efforts.

The two appellants and Bulldog fled to Malaysia after the incident. Bulldog was arrested in 1994 and was charged and convicted of the offence of murder of the deceased committed in furtherance of the common intention of him and the two appellants. His appeal to the Court of Appeal was dismissed. The two appellants were later arrested in Malaysia. The first appellant was extradited to Singapore on 25 November 1998 and the second appellant on 5 January 1999.

The medical evidence

Dr George Sy who performed the operation on the deceased was not available to give evidence. Instead, Dr Sy`s medical report was referred to and explained by Dr Chou Ning and this evidence was admitted without any objection from the defence. In his report, Dr Sy noted that, when the deceased was admitted to the accident and emergency unit of the NUH, he had a glasgow coma scale of 4/15 (3 being the lowest score). This was explained by Dr Chou as meaning that the patient was suffering from severe head injury and was `almost moribund`. Dr Sy`s notes also noted that when craniotomy was done on the deceased, there was a `depressed comminuted fracture at the right parietal with fracture line extending into the frontal, posterior parietal and temporo-occipital area`. There was `dural laceration at the posterior parietal and the contused brain was noted`. When asked to explain `contused`, Dr Chou said that it meant that the brain was bleeding a lot and it appeared `red and angry-looking`.

Dr Wee Keng Poh, a senior forensic pathologist from the Department of Pathology, Institute of Science and Forensic Medicine, who performed the autopsy, found 13 groups of external injuries on the deceased`s head, neck, chest, abdomen and his arms and legs. His report stated the cause of death as `contused brain due to fractured skull`. According to Dr Wee, the fatal injuries were those found on the head of the deceased where there were multiple bruises with two linear fractures at the base of the skull and bleeding in the brain. The other injuries on the chest, upper limbs and lower limbs were, both on their own and collectively, not fatal nor sufficient to cause death. Dr Wee opined that the head injuries were consistent with that caused by a blunt instrument such as the wooden poles shown in the exhibited photographs P-2 and P-3. He further expressed the view that severe force was required to inflict such head injuries due to the fact that there were fractures in the skull and the fractures were extensive. In Dr Wee`s opinion, the injuries found on the deceased`s head were sufficient in the ordinary course of nature to cause death.

Statements of the appellants

The cautioned statements recorded from the two appellants as well as the three long statements recorded from the second appellant were admitted in evidence as being voluntarily made without any objection from the accused persons or their counsel. Insofar as is material, the cautioned statements of both the appellants and the long statements recorded from the second appellant were as follows:

(i) Cautioned statement of the first appellant recorded on 25 November 1998 by ASP Richard Lim:

On that day, our

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