Public Prosecutor v Chan Sway Beng

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 18 May 1988
• Neutral Citation: [1988] SGHC 42
• Docket Number: Criminal Case No 13 of 1986
• Date: 18 May 1988
• Year: 1988
• Published date: 19 September 2003
• Plaintiff Counsel: Ang Sin Teck (Deputy Public Prosecutor)
• Citation: [1988] SGHC 42
• Defendant Counsel: NS Kang (NS Kang)
• Court: High Court (Singapore)
• Subject Matter: Evidence,s 121(5) & (6) Criminal Procedure Code (Cap 113, 1970 Ed),No explanation of warning under s 121(6) of the Criminal Procedure Code,Criminal Procedure and Sentencing,No explanation of charge,Confessions,Proof of evidence,Whether s 121(5) of Criminal Procedure Code overrides s 26 of Evidence Act,Statements,Admissibility,ss 121(5) & 121 (6) Criminal Procedure Code (Cap 113, 1970 Ed),Whether confession admissible,s 26 Evidence Act (Cap 5, 1970 Ed)

Cur Adv Vult

(delivering the judgment of the court): At about 4.10pm on 18 March 1985, the body of Sng Chiam Hong (the deceased) was found in a one-room flat known as Block 44 Lorong 5 Toa Payoh #01-205. The police had gone there following an anonymous telephone call complaining of a stench emanating from the flat. They caused the door of the flat to be forced open and the decomposed body of the deceased was seen to be sprawled, face upwards, on a mattress which lay on the floor.

Dr Wee Keng Poh, a forensic pathologist attached to the Singapore General Hospital, attended at the flat following the discovery of the body. He removed a towel that was covering the deceased`s face and saw a blue handkerchief knotted lightly around his neck. There were injuries on the body, including stab wounds on the chest. Dr Wee concluded that death had occurred about three days previously, that is to say, on or about 15 March 1985. The deceased, who was aged 39, was removed to the Singapore General Hospital mortuary, and on the following day, 19 March 1985, Dr Wee carried out a post-mortem examination.

The post-mortem disclosed a deep constricting groove encircling the deceased`s upper neck. There were two stab wounds on the chest, one in the abdomen and one in the right thigh. One of the stab wounds in the chest was 7 cm deep. It had penetrated the full thickness of the anterior chest wall and the main pulmonary arterial trunk, and had caused death. It had been inflicted by a sharp, pointed instrument, like a knife, with either one or two sharp edges. The other stab wounds had been caused by the same, or a similar instrument, but were not serious and would not have caused death.

In Dr Wee`s opinion, the deep constricting groove encircling the deceased`s neck was caused by strangulation, which could have resulted in death independently of the fatal stab wound. The ligature used to strangle the deceased had been the handkerchief seen to be encircling his neck.

Other than the groove in the neck, and the stab wounds, Dr Wee found a superficial cut on the deceased`s left knee, and a bruise on his left shin. The cut would have been caused by a sharp instrument like a knife and the bruise by a fall or a blow against a hard surface.

Toh Peng Noi (PW1), a student and part-time tutor, told us that the deceased, who was her godfather, was a medium. She identified a gold ring (P54), with an emblem of a dragon embossed on it, as having belonged to the deceased. Under cross- examination, she agreed that the deceased`s ring bore no distinctive marks, and that the most she could say was that the deceased had a ring like P54. She could remember that when she last saw the deceased at about 7am on 15 March 1985, he was wearing the ring that looked like P54. The deceased had telephoned Miss Toh at about 9.50pm on the night of 15 March, while she was out, and her brother had taken a message for her.

A statement of Liow Tiang Ting (PW3), a pawnshop valuer employed by Ban Kin Pawnshop Pte Ltd, was tendered by the prosecution and was admitted unchallenged. In his statement, Liow said that at about 9.30am on the morning of 16 March 1985, that is to say, the morning following the day on which Dr Wee Keng Poh estimated that the deceased had died, a male Chinese pawned P54 for $180. Low issued a pawnticket no 1842 (P57) for the ring. The particulars of the man who pawned the ring were: Chan Sway Beng, NRIC No 1502682-J, Block 103, Toa Payoh, Lorong 1, #09-331

Two days later, namely, on 18 March 1985, at about 2.30pm another male Chinese, whose particulars were recorded as Sim Kiang Wee, NRIC No 1474325-A, came to Low`s shop, presented the pawnticket P57, and redeemed the ring.

Ho Yun Hin (PW2), whose statement was also admitted without challenge, said that he was employed as a pawnshop valuer by Heng Seng Pawnshop Pte. Ltd, and that on 9 April 1985, at about 4pm, a male Chinese pawned two gold rings for a total of $250. One of the rings was P54, and the other was a plain gold ring, P55. He issued a single pawnticket no 1837 (P56) for both rings and gave it to the man, whose particulars were recorded as: Sim Kiang Wee, NRIC No 1474325-A, Block 101, Lorong 2, Toa Payoh #04-91.

The prosecution sought to introduce the evidence of Sim Kiang Wee by way of a written statement, pursuant to s 378(1)(a)(i) of the Criminal Procedure Code, Sim having died on 4 April 1987. The notice called for by s 379(2) of the Criminal Procedure Code was not served on the defence, hence leave of the court was required for Sim`s evidence to be adduced by way of his written statement.

The statement had been made for the purposes of a preliminary inquiry held on 7 November 1985. It had been read and admitted at the preliminary inquiry, at which Sim was available for cross-examination. Counsel for the accused, as he had a perfect right to do, reserved his cross-examination of Sim.

It was common ground that we had a discretion as to whether or not to admit Sim`s statement. The prosecution conceded that his evidence went to crucial facts in the case.

We declined to exercise our discretion in favour of the prosecution and refused to give leave for Sim`s written statement to be adduced in evidence. We concluded that it would be unfair to do so, given that the deponent was not available for cross-examination on important issues and that there would be no opportunity for us to observe his demeanour. The learned deputy public prosecutor submitted, inter alia, that Sim`s statement would corroborate that of other witnesses. That, in our view, rendered it all the more important that Sim`s statement should not go in without the opportunity for cross-examination, and therefore without our being in a position to assess his credibility.

Goh Choon Hui (PW9) is an inmate at the Sembawang Drug Rehabilitation Centre, where he has been detained since April 1987. He told us that in March 1985 he was living at Block 106, Lorong 1 Toa Payoh # 04-351 with Sim Kiang Wee, Leong Fook Hing (PW10) and Ong Kok Hua (PW11). Goh had known the accused for some seven or eight years by 1985. They were both house painters, both gambled on horses, and occasionally they went out drinking together.

Goh said that on 16 March 1985, the day after the deceased was thought to have been killed, he saw the accused at the void deck of the block of flats in which Goh lived. The accused said that he owed bookies money, and asked if he could stay at Goh`s flat for a few days to avoid them. Goh agreed.

Goh`s memory of events from that point onwards seemed to fade. He remembered the accused telling him that he had injured somebody in Toa Payoh, identifying the injured person as `Ah Ngoh` or `Ah Boh`, a person whom Goh knew. The accused told Goh that this person had owed him money. He showed Goh a pawnticket, saying that he had pawned a gold ring. Goh identified P57 as the pawnticket the accused showed him. The accused offered to sell the pawnticket to Goh for $50, and as far as Goh could remember he went to the pawnshop and redeemed the ring. He was shown the ring, exh P54, but he could not say whether it was the ring he had redeemed. Later, Goh said that he had given the pawnticket to Sim Kiang Wee, and had asked Sim to redeem the ring and keep it for himself. He said Sim used his own money to redeem the ring.

In cross-examination, Goh agreed that when the accused spoke to him about injuring someone, the accused had said that this person owed him money, and that he wanted to recover it. There had been a quarrel, during which the debtor had raised his voice, and a fight. It was only later, when Sim Kiang Wee had shown him a Chinese newspaper, that he realized that the person with whom the accused had had the quarrel had died.

Leong Fook Hing (PW10) confirmed that he was living with Goh and Sim Kiang Wee in March 1985, and that sometimes Ong Kok Hua (PW11) would stay with them. It was Goh`s flat in which they stayed.

In March 1985, Leong had known the accused for about a year or two. They were both house painters and occasionally worked together.

On 16 March 1985 at about 6.30 pm, Leong was at Goh`s flat when the accused came in. He said he wanted to stay for a few days because he owed bookies some money. Goh and Ong Kok Hua were present. Goh told the accused that he could stay.

Leong said that on the following day he, Goh, the accused and Ong were having dinner at Goh`s flat when the accused said that he had killed somebody in Toa Payoh. Leong did not believe the accused since he reasoned that if the accused had really killed somebody he would not tell others about it.

However, a few days later, the accused showed him English and Chinese newspapers, and Leong read in the Straits Times about a temple medium having been murdered in Toa Payoh. The accused said that he had murdered this man. Leong asked him if he was speaking the truth, and the accused said that he was. Leong became frightened and said no more. When he woke up the next morning, the accused was no longer in the flat. Goh told him that the accused had left, but did not say why.

Leong was cross-examined by counsel for the accused. He was asked what words the accused had uttered when saying that he had killed someone. Leong replied that the accused had said: `I killed one person in Toa Payoh.` He was sure these were the words the accused had used, and did not agree that the accused had said that he was `having a problem with` someone, the Hokkien for `having a problem with` and `killed` being phonetically similar.

It was put to Leong by counsel for the accused that the accused had in fact said: `I had a problem with someone. I had a quarrel and a fight`, and that the accused had not said that he had killed someone. Leong replied that as far as he could remember, the accused said: `I killed one person at Toa Payoh.`

Leong admitted that his evidence differed in a number of respects from a statement he made on 26 October 1985, which was read at the preliminary inquiry. He...