Public Prosecutor v Abdul Naser bin Amer Hamsah

• Jurisdiction: Singapore
• Judgment Date: 11 October 1996
• Date: 11 October 1996
• Docket Number: Criminal Appeal No 19 of 1996
• Court: Court of Appeal (Singapore)

Public Prosecutor

Plaintiff

and

Abdul Naser bin Amer Hamsah

Defendant

[1996] SGCA 61

M Karthigesu JA

,

L P Thean JA

and

Goh Joon Seng J

M Karthigesu JA

and

Goh Joon Seng J

L P Thean JA (dissenting)

Criminal Appeal No 19 of 1996

Court of Appeal

Criminal Law–Offences–Murder–Whether fatal injuries caused intentionally–Section 300 (c) Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Statements–Defendant did not disclose defence in cautioned statement–Whether adverse inference should be drawn from fact that defence not disclosed–Evidence–Proof of evidence–Onus of proof–Applicability of s 108 Evidence Act (Cap 97, 1990 Rev Ed)

The respondent was charged with the murder of one Fujii Isae (“Ms Isae”), a Japanese tourist. Ms Isae was attacked by the respondent while her companion, Ms Miyoko, was attacked by one Abdul Rahman as they entered their hotel room. Both women were knocked down to the floor and their valuables were taken by the assailants before they fled from the scene. Ms Isae succumbed to her injuries and died. The Prosecution's case was that the respondent had stamped on her face during his assault on her and this had proved fatal.

The respondent made several statements in the course of investigations. In two of the statements, he was recorded as saying that he had “stamped” his right foot on the face of the deceased. The Malay interpreter who recorded the latter statement testified that the respondent had used the Malay word for “step on” but she had recorded it in English as “stamped” because from the demonstration the respondent had given, the proper word to use in Malay should have been that which meant “stamped”. She had however used the Malay word for “step on” when reading back the statement to the respondent as she did not think the respondent would understand the Malay word for “stamp”. The respondent denied that he had given a demonstration on that occasion. In a later statement made when he was in custody pending trial, the respondent stated that he had lost his balance and had to support himself by pressing his hand against the wall and in so doing, had accidentally stepped on the deceased's face.

The trial judge accepted the respondent's evidence that he had accidentally stepped on the deceased's face. The respondent was acquitted on the charge of murder but convicted for robbery with hurt.

The issue in this appeal was whether the trial judge had erred in finding that a reasonable doubt had been raised as to whether the fatal facial injuries were caused intentionally.

Held, dismissing the appeal (L P Thean JA dissenting):

(1) Section 108 of the Evidence Act (Cap 97, 1990 Rev Ed) and illus (a) could not be invoked to place the burden on the respondent to prove on a balance of probabilities that the injuries sustained by the deceased were caused by the respondent accidentally stepping on her face. The provision would be applicable if the defence was that the respondent did stamp his foot on the deceased's face but that the intention was not to cause those injuries. In such a case, the act of stamping was done “with some intention other than that which the character and circumstances of the act suggest”. However, that was not the defence: at [25].

(2) The Prosecution's contention that the medical evidence clearly pointed to the fact that the respondent must have stamped twice on the deceased's face would have undermined the respondent's defence of accidental stepping if accepted. However, the opinion of the forensic pathologist, Dr Chui, based on the medical evidence as to whether there was one blow or two blows and whether the blow or blows were struck longitudinally or horizontally was inconclusive from which no determination could reasonably be made. The deduction from the blood splatter pattern on the wall that the stepping was both deliberate and forceful could not be accepted: at [26], [27] and [29].

(3) The court was not in a position to disagree with the trial judge's finding that the respondent was a credible witness. The two statements on which the Prosecution relied to prove that the fatal injuries to the deceased's face were intentionally inflicted when read in the light of the respondent's evidence rendered them of little evidential value: at [31].

(4) No adverse inference ought to be drawn from the fact that the respondent did not disclose his defence in the cautioned statement. After all, he did disclose it in an investigation statement made while he was still in solitary confinement and within a month of being arrested and charged with the murder of Ms Isae: at [31].

(5) Having read the whole of the evidence and carefully considered the deductions the Prosecution sought to make from the opinions expressed by Dr Chui, the blood splatters and the smudge marks, the court was not convinced that the Prosecution had proved beyond a reasonable doubt that the respondent had intentionally caused the injuries: at [32].

Criminal Procedure Code (Cap 68,1985 Rev Ed)s 122 (6)

Evidence Act (Cap 97,1990 Rev Ed)s 108 (consd)

Penal Code (Cap 224,1985 Rev Ed)s 300 (c) (consd);s 302

Francis Tseng, Lionel Tan and Janet Wang (Deputy Public Prosecutors) for the appellant

Subhas Anandan (M P D Nair & Co) and Amolat Singh (Amolat & Partners) for the respondent.

Judgement reserved.

M Karthigesu JA

(delivering the judgment of the court):

1 Abdul Nasir bin Amer Hamsah, the respondent, was brought to trial in the High Court on two charges, the first for murder and the second for robbery with hurt. The trial proceeded only on the charge of murder, which alleged that the respondent had caused the death of one Fujii Isae on 6 June 1994, between the hours of 5.30pm and 6.05pm at Room 910 of the Oriental Singapore, 5 Raffles Avenue, an offence punishable under s 302 of the Penal Code (Cap 224).

2 At the conclusion of the trial the respondent was acquitted on the charge of murder but convicted for robbery with hurt and sentenced to 18 years imprisonment, with effect from 4 July 1996 and 18 strokes of the cane. The Public Prosecutor now appeals against the acquittal for murder.

3 The facts leading to the death of Fujii Isae (“Ms Isae”) are not contentious. It appears that the respondent met one Abdul Rahman bin Arshad (“Abdul Rahman”) at about 1.00pm on 6 June 1994 at a market in Marsiling. Both were out of work and they decided to look for employment at the Oriental Singapore and proceeded there after Abdul Rahman had purchased some Erimin-5 tablets at a clinic, which they consumed. After applying for work they sat in the lobby area of the hotel when, in the late afternoon, they saw a party of Japanese tourists arrive at the hotel. They then decided that they would rob some of them. They mingled with the Japanese tourists when they entered the lifts, got off at the 9th floor and hid at the end of the corridor.

4 Ms Isae, aged 49 years, and one Takishita Miyoko (“Ms Miyoko”), aged 56 years, had been allotted Room 910 on the 9th floor. When they entered the room the respondent and Abdul Rahman rushed in after them and each attacked one woman. Abdul Rahman attacked Ms Miyoko while the respondent attacked Ms Isae. Both women were knocked down to the floor and what valuables were on them were taken by the two men before they fled from the scene. According to Ms Miyoko, who gave evidence at the trial, the assault on Ms Isae ended first and her assailant had left the room before her attacker. She could not say whether it was Abdul Rahman or the respondent who had attacked her but it is clear from the evidence of Abdul Rahman, who also gave evidence at the trial, that he assaulted Ms Miyoko and the respondent assaulted Ms Isae. This evidence was not challenged.

5 Ms Miyoko survived the assault on her and raised an alarm. It was then discovered that Ms Isae had succumbed to her injuries and had died. It is the Prosecution's case that the respondent had stamped on Ms Isae's face during his assault on her and this had proved fatal.

6 The respondent was arrested some 18 months later on 25 January 1996 after he was caught trying to rob a taxi driver. His fingerprints were found to match two latent fingerprints left in Room 910 of the Oriental Singapore on 6 June 1994.

7 On 28 January 1996 the respondent was informed by the investigating officer that he was investigating into the alleged murder of Ms Isae at Room 910 of the Oriental Singapore on 6 June 1994. The respondent then gave a long statement which was recorded and admitted in evidence at the trial at the instance of defence counsel. For present purposes it is necessary to reproduce only one paragraph which reads as follows:

When I entered the room, I saw Azman (Abdul Rahman) grabbing and covering the mouth of the female Japanese who was nearer to him. On seeing that, I immediately went up intending to confront the other female Japanese who was nearer to me. At that juncture, Azman shouted to me in Malay 'cepat tumbok, jangan lambat lambat' which means in English 'quick, punch her, don't waste time'. I then punched the face of the said female Japanese once. On being punched, the said female Japanese collapsed onto the floor. On seeing that, I bend down and slapped her cheek once more. I could see the said female Japanese, who was punched by me, was gasping for air as though she was having difficulty to breathe. I wish to state that when I was attacking the female Japanese who was nearer to me, I could see Azman struggling with the other female Japanese who appeared to me to be a bespectacled woman. The bespectacled Japanese woman, who was struggling with Azman, shouted meekly and subsequently fell onto the floor and fainted.

8 On 29 January 1996 a cautioned statement under s 122 (6) of the Criminal Procedure Code was recorded from the respondent in relation to the charge of the murder of Ms Isae. This statement was admitted in evidence by the Prosecution...