Panya Martmontree and Others v Public Prosecutor

• Judge: Karthigesu JA
• Judgment Date: 07 August 1995
• Neutral Citation: [1995] SGCA 59
• Citation: [1995] SGCA 59
• Defendant Counsel: Wee Pan Lee and Christine Lim (Wee, Tay & Lim),Aqbal Singh and Sukdave Singh (Chan & Ravindran),Bala Reddy (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Teow Yeow (Tan Teow Yeow & Co) and Chan Eng Thai (Jan Tan & Chan)
• Date: 07 August 1995
• Docket Number: Criminal Appeal No 1 of 1995
• Court: Court of Appeal (Singapore)
• Subject Matter: Voir dire,Procedure,Alibi,Right of cross-examination,Nature of a voir dire,Whether accused could cross-examine witnesses in co-accused's voir dire,Admissibility,s 396 enal Code (Cap 224),s 396 Penal Code (Cap 224)- s 3 Kidnapping Act (Cap 151),Confession of co-accused,Elements,Criminal Procedure and Sentencing,Test of voluntariness,Criminal Law,s 151(1), (5) & (9) Criminal Procedure Code (Cap 68),Confessions,Evidence,Whether notice had to be given to prosecution to adduce such evidence,Statements,s 30 Evidence Act (Cap 97, 1990 Ed),Whether confession could still be relied on as evidence against accused,Gang robbery with murder -Alternative sentences,Gang robbery with murder,Life imprisonment or death penalty,Relevant factors to be considered,Proof of evidence,Murder,Whether common intention required,Alibi or denial,Voluntariness,Offences,Burden of proof on prosecution,Effect of retraction,Evidence in support of claim that accused was not at scene of crime where person could not remember where he was

This is an appeal against conviction and sentence of the four appellants, who were charged with the commission of gang robbery with murder in contravention of s 396 of the Penal Code (Cap 224), in the following terms:

[that they] on or about 17 September 1993 at about 5am at the Lee Kim Tah & Woh Hup construction site at Tampines Ave 1, Singapore (the Tampines site) did, together with three unknown persons, conjointly commit gang robbery of worksite equipment and that in the commission of such gang robbery, the murders of one Vallaisamy Aryian and one Arumunga Chokalingam, were committed by one or more of their members and they have hereby committed an offence punishable under s 396 of the Penal Code (Cap 224).

We heard their appeals on 10 July 1995 when we dismissed their appeals and confirmed the sentence of death passed on each of them. We now give our reasons.

The prosecution`s case

On 17 September 1993, some persons were seen running away from the Tampines site, carrying items. The deceased were found on the ground floor of the two-storey site office at the construction site, with fatal injuries. A third person was also attacked and injured. Some surveying equipment and walkie talkies were stolen.

At trial, the only evidence adduced by the prosecution were the statements of the first, second and fourth appellants. Their cautioned statements were made in response to initial charges of offences under s 302 read with s 34 of the Penal Code. The injured victim had returned to his home country, and did not participate in the trial. A pick-up truck believed to have been used in the robbery was recovered but it did not provide much evidence.

All the statements were objected to on the ground of their involuntariness and all the statements were admitted in evidence following voir dires.

The first appellant

The first statement made by the first appellant was recorded in the premises of the Criminal Investigation Department (CID) under s 121 of the Criminal Procedure Code (CPC). It was read back to and signed by him. The second statement was recorded during a visit to the Tampines site. This statement was neither read back to nor signed by the first appellant, but this does not affect its admissibility ( Vasavaan Sathiadew v PP ).

These statements disclosed that the first appellant together with six others, including the other three appellants, had taken two taxis from Tanjong Rhu to the Tampines site. They had hidden themselves in some bushes and had entered by the perimeter fencing. The first appellant was armed with a hammer, while the rest were armed with various items, including hammers, wooden poles, and a screwdriver. The first appellant together with the fourth appellant and another had attacked the two deceased. He had also heard a commotion elsewhere in the site office but did not know anything about it. The gang then had stolen some equipment and escaped in a van stolen by the fourth appellant and driven by the third appellant.

The first appellant challenged the admissibility of these statements on the ground that they were involuntary, as he had been assaulted and threatened by the officers conducting the interrogation. The first appellant alleged that he had been assaulted before the statement under s 121 was recorded. That assault was said to have caused him to agree to whatever was wanted of him. It was also said that he had actually refused to sign the s 121 statement because he could not understand the police interpreter and the statement had not been read back to him. He was then supposedly assaulted by the police officers until he agreed to sign. He also alleged that he was told to say that the second and third appellants had committed the murder and that it was not done by him alone. He was further supposedly warned by another officer not to complain to a freelance interpreter of his treatment. He emphatically stated that a particular officer had followed him to the hospital for the medical check up. Finally, he claimed that on being taken to the Tampines site, he was told by one of the officers to keep to what had been said by him in the earlier statement, or he would be subject to heavier assault.

The learned trial judge held that there was no basis for the allegations made by the first appellant. In particular, no injuries were found on him during the medical examinations. There were also a number of contradictions in his evidence. He had testified that one of the officers followed him to the hospital but this was contradicted by the station diary. There was also some contradiction between what was put to the prosecution witnesses and what the first appellant had testified.

The second appellant

The prosecution sought to adduce three statements made by the second appellant. These were a statement recorded in the CID premises under s 121(1), a cautioned statement recorded under s 122(6) and a site visit statement made under s 121(1) which was neither read back nor signed by the second appellant.

These statements disclosed that the second appellant had gone to the Tampines site with five others in two taxis from Tanjong Rhu. A pick-up was stolen near the Tampines site. The second appellant was armed with a pole picked up from the site, the first appellant had a hammer, the third appellant had a screwdriver, while the fourth appellant was also armed with a pole. The second appellant had acted as a look-out while some of the others, including the third and fourth appellants, had gone in. The second appellant was unsure of what was going on inside the site office, but had seen the first appellant chasing and assaulting a guard. The gang had subsequently stolen some goods and escaped in the pick-up. The third and fourth appellants sold the equipment.

The second appellant challenged the admissibility of the statements which he had made on the grounds that he was assaulted. The second appellant had been arrested in February. He alleged that he was assaulted on various dates in February and March 1994. On 27 May, he claimed to have been assaulted until he agreed to admit to the murders and repeat a narration taught to him, and was threatened with further assault if he did not agree. He claimed that on being taken to the recording of the s 121 statement, two sheets of paper were handed to the police interpreter. The second appellant alleged that he was hit whenever he forgot to say what he had been taught to say. The second appellant also alleged that he was threatened, during the trip to the hospital for a medical check-up with further assault before the recording of the cautioned statement. Further threats were made not to recant or complain to the freelance Thai interpreter who would be translating for him. He claimed that on 7 June before a visit to the place of the murders he was further threatened with assault if he did not cooperate. He was in fear during the interview at the site.

The learned trial judge found the evidence of one of the officers who the second appellant alleged had assaulted him on a particular day in February 1994 to be unsatisfactory because of glaring inconsistencies. The learned judge, however, accepted that some inconsistency in the statement of another police officer was satisfactorily explained as a genuine mistake. Despite the inconsistencies in the testimony of the officers, the learned judge found that the station diaries contradicted the testimony of the second appellant. He found that a number of the assaults could not have occurred because the station diaries either did not record that the second appellant had been taken out from the lockup for interrogation on those days, or that there was insufficient time for the assaults to have occurred. Though not all the assaults were thus ruled out, the learned judge felt that the credibility of the second appellant was severely affected. The evidence contained in the station diaries was not challenged. The learned judge also found that there was no evidence that the second appellant had complained of any pain. Furthermore, no injuries were found during the medical examinations before and after the recording of the cautioned statement.

The third appellant

No statements from the third appellant were adduced in evidence. However, the third appellant had submitted that there was no case to answer as he claimed that he was not sufficiently identified by the other appellants in their statements. The learned trial judge had acquitted him but an appeal by the Public Prosecutor was allowed and his case was remitted to the trial judge for his defence to be called ( PP v Manit Wangjaisuk ).

The fourth appellant

The fourth appellant made two statements under s 121(1) and one under s 122(6). These statements showed that the fourth appellant had gone with six others in two taxis to Pasir Ris where a pick-up was stolen. Using that pick-up, they had arrived at the Tampines site and had gone in through an entrance in the fence. The fourth appellant had acted as a look-out while some of the others, who were armed, had gone into the office. The third appellant had ordered the first appellant and another to attack the two deceased. Another guard, who had been awakened by the noise, had his escape blocked by two others in the gang, including the second appellant. He had subsequently seen the first appellant attacking this other guard. The fourth appellant had then assisted to carry away the equipment. The gang had gone to Punggol to hide the items, and subsequently abandoned the pick-up at Chander Road. The fourth appellant also disclosed that he had tried to break in earlier with a few of the others.

The fourth appellant challenged the voluntariness of his statements by alleging that he was assaulted. He claimed to have been taught to narrate a version of events and that the narration had been recorded on paper by the interrogators. He was also supposedly threatened and told to answer positively to any questions asked...