Ong Pang Siew v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 08 November 2010
• Neutral Citation: [2010] SGCA 37
• Date: 08 November 2010
• Docket Number: Criminal Appeal No 4 of 2009
• Published date: 01 February 2011
• Plaintiff Counsel: Subhas Anandan and Sunil Sudheesan (KhattarWong)
• Hearing Date: 08 July 2010
• Defendant Counsel: Bala Reddy and Prem Raj (Attorney General's Chamber)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Law

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

This is the appeal by Ong Pang Siew (“the appellant”) against conviction for the murder of his step-daughter (“the deceased”) pursuant to s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The charge against him states:

That you, ONG PANG SIEW,

on the 20th day of October 2007 between 10.00 p.m. and 10.30 p.m. at Block 24 Marsiling Drive #08-175, Singapore, did commit murder by causing the death of one Ong Pan Hui, and you have thereby committed an offence punishable under section 302 of the Penal Code, Chapter 224.

Factual background The dramatis personae

The appellant has worked as a bus driver for more than 20 years.¹ At the material time, his employer was M/s Loh Gim Chong Transport (“M/s Loh”) whom he had worked for about seven months.² Before his employment with M/s Loh, the appellant worked at three different transport companies for periods of 11 years, six years and one year respectively.³ He left the first company when it ceased operating but there is no evidence on record explaining why he left the other two companies within the space of a year. The appellant is the former husband of the deceased’s mother, Xiu Yanhong (“Xiu”). Both the deceased, who was 15 years old in 2007, and Xiu were formerly Chinese nationals.

The appellant met Xiu in 1997 while she was employed as an electronic production operator in a factory. He was then providing transportation for the factory’s workers. When the factory closed down in 1998, Xiu found work in another factory. They continued to maintain contact and later developed a close relationship. When Xiu fell ill sometime in 1999, the appellant helped her during her convalescence.⁴ After her work permit expired in November 1999, she returned to China but remained in touch with the appellant. Eventually, she divorced the deceased’s biological father sometime in 2001.⁵

After her divorce, Xiu ran into serious financial difficulties and sought assistance from the appellant. He responded by visiting her in China. Once there, he rented an apartment for her and provided her with money from his savings to tide her over.⁶ Their relationship blossomed and she accepted his proposal for marriage. Following his return to Singapore, the appellant immediately made arrangements for Xiu to return to Singapore which she did in 2002. They married soon thereafter.

After Xiu obtained her Permanent Resident status in late 2002, she persuaded the appellant to arrange for the deceased to continue her education in Singapore.⁷ In November 2002, the deceased arrived in Singapore and subsequently adopted the appellant’s surname, changing her name from “Pan Hui” to “Ong Pan Hui”. Xiu affirmed that the appellant’s relationship with the deceased was initially good and he doted on the deceased.⁸

On 8 August 2003, Xiu gave birth to their son, GHK (“GHK”). Unfortunately, the relationship between the appellant and Xiu deteriorated rapidly, soon after. Xiu had begun working as a masseuse. Subsequently, Xiu worked at three different massage parlours between 2003 and 2005.⁹ Because the appellant was unhappy with the nature of her work, he and Xiu had frequent quarrels. In turn, she complained about his gambling habits.¹⁰ The appellant also heard from his neighbours that different men were sending Xiu home and that Xiu had become “very sexy”.¹¹ In 2005, Xiu had two miscarriages. Following this, the appellant accused Xiu of having affairs with other men in the course of her work as a masseuse.¹² This further damaged their relationship. Xiu, for her part, insisted on continuing with the same line of work. She claimed the additional income was needed to support her parents in China.¹³

In January 2006, Xiu started her own massage parlour, employing her savings as well as loans from her friends. Despite his continuing and profound misgivings, the appellant also contributed about $2,000 to the business.¹⁴ Xiu operated the business without a permit and was fined twice before she terminated it. At around the same time, Xiu’s previous employer offered to sell her business to Xiu. She accepted this offer. The appellant contributed about $5,000 to this enterprise.¹⁵ Xiu subsequently spent even more time at work as she attempted to grow the business. As a result of their long working hours and loss of trust, the relationship between the appellant and Xiu inexorably broke down. Xiu testified that “sometimes his temperament was good, but sometimes it was bad.”¹⁶However, she also affirmed that the appellant had never been violent and would never “lay a hand” on her.¹⁷

The divorce proceedings

Sometime in March 2007, the appellant and Xiu had a heated argument because the appellant insisted that Xiu should stop working as a masseuse. More bitter recriminations followed and on 1 April 2007, Xiu moved out of the matrimonial home to a rented flat (“Xiu’s flat”) with the deceased and GHK. It was also around this time that the appellant started working for M/s Loh.

On 15 May 2007, Xiu initiated divorce proceedings citing unreasonable behaviour on the part of the appellant.¹⁸ The Statement of Particulars for the divorce alleged, inter alia, that after the marriage the appellant was easily irritated and often lost his temper. Further, it was asserted that in November 2005, the appellant made Xiu and the children leave the matrimonial home after Xiu took a lift home from a male customer late at night. He allegedly only allowed them to return home three months later.¹⁹ The appellant, who had no legal representation, did not contest the divorce proceedings. In early October 2007, Xiu obtained sole custody of the deceased. She was also granted sole care and control of GHK while the appellant was granted access to GHK from 9.00am on Saturdays to 9.00pm on Sundays.²⁰ Xiu, in the meantime, secured her Singapore citizenship in August 2007.²¹

After the divorce, the appellant and Xiu agreed that she would send GHK to City Hall MRT station every Saturday between 11.00am to 12.00 noon where she would hand care and control of GHK to him. The appellant would then send GHK back to Xiu on Sunday nights.²² This arrangement soon led to further friction. The appellant stated in his police statement (and testified) that Xiu often did not allow him to have access to GHK by making up excuses at the last moment.²³ Xiu, however, denied this.²⁴

The appellant’s activities on the day of the incident

On 20 October 2007, the appellant was entitled to have access to GHK as it was a Saturday. However, after working late into Friday night, he woke up at about 10.30am. As he did not have any driving assignment that day, he went for coffee at the market near his place until about 12.00 noon.²⁵ After that, he went home to attend to his laundry.²⁶ At about 1.00pm, a friend invited him for a drink. He arrived at the coffee-shop at about 3.25pm. Together with four of his friends, the appellant stayed at the coffee-shop until about 9.00pm. During this period, they drank more than 20 bottles of beer, with the appellant consuming the most with another friend.²⁷

After the appellant left the coffee-shop, he called Xiu to ask for access to GHK.²⁸ However, Xiu told him that GHK was at her shop in East Coast and that if he wanted to see GHK, he would have to go to the shop.²⁹ This upset the appellant and they heatedly quarrelled over the telephone. Xiu hung up on the appellant but the appellant called Xiu repeatedly and uttered profanities at her as he was very angry.³⁰

After failing to obtain Xiu’s agreement on access to GHK that night, the appellant decided to go to Xiu’s flat. This was nearby. He walked back to his HDB block, retrieved his bicycle and cycled to Xiu’s flat. The appellant testified that he had gone to Xiu’s flat for several reasons. He wanted to know if the deceased was happy after obtaining her Singapore citizenship and to ascertain her examination results. He also hoped that when Xiu returned, he could bring GHK back to his place.³¹ Further, he wanted to ask the deceased why she had hit and threatened GHK.³² According to the appellant, this was not the first time he had questioned the deceased on this issue.³³ These reasons were rejected by the trial judge who determined that the appellant had gone to Xiu’s flat solely to kill the deceased. We pause here to note that the Prosecution no longer supports this finding of fact by the trial judge: see [35] below.

The events in Xiu’s flat leading to the homicide

When the appellant arrived at Xiu’s place, the deceased opened the door and let him into the flat. At this time, the two sub-tenants of Xiu’s flat, Zhao Jing and Liu Qiao Xiao (“Liu”), were both in their bedroom. About two to three minutes later, Zhao Jing walked to the toilet in the kitchen to take a shower. As she did so, she saw the appellant sitting beside the deceased near the computer table in the living room and noted that they were “talking in a normal manner” and that they were “not quarrelling”.³⁴ After her shower while returning to her room, Zhao Jing heard the appellant talking and his tone sounded like he was laughing.³⁵

Soon after, Zhao Jing heard a loud scream. The deceased started calling out her name very loudly. Sensing that something was wrong, she opened her bedroom door and saw the deceased lying on the floor. The chair which the deceased was previously sitting on had toppled over and the appellant was squatting beside her. Zhao Jing moved closer to the kitchen and saw the appellant holding the deceased’s ear with one hand and her hair with his other hand. The appellant was banging the deceased’s head against the floor continuously and repeatedly shouted “Who am I” in Mandarin.³⁶ In his testimony, the appellant claimed that the deceased was “very angry”, “disrespectful” and had suddenly taken “something” from the computer table before he grabbed hold of her.³⁷

When Zhao Jing tried...