Public Prosecutor v Ellarry bin Puling and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 26 September 2011
• Neutral Citation: [2011] SGHC 214
• Court: High Court (Singapore)
• Hearing Date: 07 September 2009,05 July 2010,08 September 2009,18 September 2009,06 July 2010,10 September 2009,22 September 2009,09 September 2009,18 April 2011,14 September 2009
• Docket Number: Criminal Case No 40 of 2009
• Plaintiff Counsel: Han Ming Kuang and Victor Lim (Attorney-General's Chambers)
• Defendant Counsel: B Rengarajoo (B Rengarajoo & Associates),Anand Nalachandran (Braddell Brothers LLP) and Jansen Lim (ATMD Bird & Bird LLP)
• Subject Matter: Criminal Law
• Published date: 27 September 2011

Chan Seng Onn J: Introduction

The first accused is Ellarry Bin Puling (“Ellarry”), a 27-year–old male Malaysian who was employed as a cleaner by Twin Creations Pte Ltd at the time of his arrest. The second accused is Fabian Adiu Edwin (“Fabian”), a 22-year-old male Malaysian employed by R Glazen Singapore Pte Ltd as a construction worker at the time of his arrest. Both Ellarry and Fabian were working in Singapore on work permits. They were friends who had known each other back in Sabah.

Both accused persons were committed to stand trial in the High Court on the following joint charge:

[O]n the 23rd day of August 2008, sometime between 3.00am and 3.50am at bus-stop B13 along Sims Avenue, Singapore, in furtherance of the common intention of both of you, committed murder by causing the death of one LOH EE HUI, male 35 years old, and you have thereby committed an offence punishable under Section 302 read with Section 34 of the Penal Code, Chapter 224.

The trial lasted ten days and took place over three tranches. It concluded on 18 April 2011.

Background facts

The deceased, Loh Ee Hui, was a 35-year-old male Singaporean.

On 23 August 2008, the police received a call at 3.53am reporting that the deceased was lying in a pool of blood at the bus-stop B13 along Sims Avenue. A Singapore Civil Defence Force ambulance arrived about 10 minutes later and immediately conveyed the deceased to Changi General Hospital. The deceased had severe head injuries and was in coma. The deceased eventually succumbed to his injuries at 8.32pm on 23 August 2008.

Following investigations, Fabian was arrested in an ambush at Boon Lay Mass Rapid Transit (“MRT”) station on 7 September 2008 and the deceased’s EZ-Link card (a contactless stored value ticket used on several forms of public transport) was subsequently recovered from the rear pocket of Fabian’s pair of jeans (which was hanging in Fabian’s living quarters). Ellarry was arrested at his workplace on 8 September 2008 and the deceased’s Nokia N5610 XpressMusic hand phone was recovered from him.

Forensic evidence

The autopsy was performed by Dr Teo Eng Swee (“Dr Teo”). Dr Teo certified in his autopsy report that the cause of death was intracranial haemorrhage and cerebral contusions with a fractured skull.¹

The deceased suffered complex fractures to his skull. The following four fractures were detailed in the autopsy report: 1) There were two fracture lines of the calvarium, extending from the left mastoid process a) One fracture line extended medially for 5 cm towards the posterior midline of the inferior edge of the skull b) One fracture line extended superiorly for 7 cm towards the left parietal eminence. 2) There was a fracture extending from the midline of the occipital bone, 3 cm above the internal occipital protuberance, to the left transverse sinus groove 3.5 cm from the midline, to the left jugular foramen. From a point on this fracture at the left posterior cranial fossa (3 cm from one end of the end of this fracture line above the internal occipital protuberance), there was another fracture line extending laterally for 3 cm across the left posterior cranial fossa. 3) There was a hairline crack fracture of the body of the sphenoid.

The autopsy report also revealed that the deceased had suffered severe brain injuries:

The brain was soft and severely oedematous.

There was a midline shift to the left.

There was a right uncal sub-tentorial herniation.

There were bilateral cerebellar tonsillar herniations at the foramen magnum.

There were contusions of the left cerebellar hemisphere inferiorly, both temporal lobes, the right temporal lobe laterally, the right frontal lobe inferiorly, and the right frontal pole.

Cut sections of these contused areas showed haemorrhage in the underlying grey matter and superficial white matter.

Cut sections of the rest of the cerebrum and cerebellum showed no gross haemorrhage.

The cerebrospinal fluid was bloodstained.

Dr Teo gave oral evidence that the force that caused the above injuries would have been very great.² According to Dr Teo, a simple fall alone could not have caused the skull fractures and brain injuries that were found on the deceased.³ In fact, the brain injuries suffered by the deceased were contracoup injuries where a “force from one side has caused a subdural haemorrhage on the opposite side”.⁴

For completeness, it should be noted that the deceased had other injuries present on him, which did not cause his death: a frontal laceration on his scalp, a contusion on his lungs, bruises on his upper back and underlying bleeding in his lower back.⁵

According to Dr Teo, the injuries on the back were consistent with the deceased being hit with a blunt object. When Dr Teo was shown the broken piece of wood and the brick found at the crime scene, he opined that it was unlikely that the brick was used to cause the injuries on the deceased’s head.⁶ However, with regard to the frontal laceration on the scalp, both the piece of wood and the brick were possible weapons.⁷

Dr Kim Guowei (“Dr Kim”), who attended to the deceased at Changi General Hospital, was of the opinion that the deceased’s brain injury appeared to be very severe from the initial scan carried out. As such, he felt that it was very unlikely that the deceased would have recovered from the injury.⁸

Lastly, Ms Ang Hwee Chen, the senior forensic scientist attached to the Forensic Biology Laboratory of the Health Sciences Authority (“HSA”) confirmed that the deceased’s blood was found on the two broken pieces of wood and the brick⁹ which were recovered from the crime scene. As the two broken pieces of wood fitted nicely together, I am satisfied that they originally constituted a single piece of wood. I further noted that the single piece of wood (if unbroken) was fairly heavy, and had a substantial solid cross-section. If indeed it were the case that the original piece of wood had broken into two pieces as a result of its use as a weapon, then the assailant must have used considerable force to hit the deceased with it.

Statements of both accused persons

Both accused persons did not raise any issues regarding the recording of the statements (for instance, that the statements were recorded without the aid of interpreters, were poorly recorded or were obtained under threat, inducement or promise, etc). In other words, the admissibility and accuracy of recording of the statements were not challenged at trial.

Ellarry’s statements

Seven statements from Ellarry were admitted in evidence as part of the Prosecution’s case: (a) Statement recorded by SSI Razali Bin Razak on 8 September 2008 at about 2.10pm.¹⁰ (b) Section 122(6) statement recorded by Inspector Alvin Phua Kia Jong on 8 September 2008 at about 5.23pm (“Ellarry’s s 122(6) statement”).¹¹ (c) Section 121(1) statement recorded by Inspector Roy Lim Eng Song on 11 September 2008 at about 10.35am (“Ellarry’s 1st s 121(1) statement”).¹² (d) Section 121(1) statement recorded by Inspector Roy Lim Eng Song on 11 September 2008 at about 3.40pm (“Ellarry’s 2nd s 121(1) statement”).¹³ (e) Section 121(1) statement recorded by Inspector Roy Lim Eng Song on 12 September 2008 at about 3.30pm (“Ellarry’s 3rd s 121(1) statement”).¹⁴ (f) Section 121(1) statement recorded by Inspector Roy Lim Eng Song on 15 September 2008 at about 3.30pm (“Ellarry’s 4th s 121(1) statement”).¹⁵ (g) Section 121(1) statement recorded by Inspector Roy Lim Eng Song on 17 September 2008 at about 3.05pm (“Ellarry’s 5th s 121(1) statement”).¹⁶

The material portions of Ellarry’s statements are reproduced below: Ellarry’s s 122(6) statement:

I admit I was involved in the case, but I did not do the murder. I wish to appeal to be freed from the charge because my intention was only to rob. I did not expect Fabian to cause the person’s death.

Ellarry’s 1st s 121(1) statement:

Question 3: On 23 August 2008 (Saturday) at about 3.53am, a male person was found unconscious at the bus-stop along Sims Avenue, opposite Lorong 39 Geylang. The unconscious male person was thereafter conveyed to hospital where he was subsequently pronounced dead. Preliminary investigations revealed that the said male person had suffered serious head injuries. Can you relate what you know about the facts of this incident in detail?

Ans: I was there on that day. I was there with a friend. His name is Fabian. Our intention was to rob the man and not to cause his death. I was not involved when the incident happened but I saw what happened. I saw Fabian hit the man with a wood at the neck region. Fabian hit the man with the wood about 2 to 3 times. Then the wood broke into two pieces. After that, the man was screaming in pain. The man fell to the floor when Fabian continued to kick and punch the man. I cannot remember which part of the body that Fabian had kicked and punch Maybe Fabian had kicked the man’s body and punched the man’s face. I think the man was unconscious then as he had stop screaming and moving. 3.1 The man was lying faced up and I saw Fabian checking the pockets of the man’s shirt and pants pocket. I then saw Fabian holding the man’s wallet, but i do not know which pocket Fabian had retrieved the wallet from. I also saw Fabian holding the man’s hand-phone. I kept my distance from the two of them. 3.2 After seeing Fabian take those things from the man, I cycled away towards a mosque. Fabian was also cycling and he followed me from behind. We both then stopped somewhere near the mosque and sat on the cement floor. It was dim. I then asked Fabian to show me the hand-phone which was dark in colour. I then asked Fabian to show me the hand-phone that he had taken from the man. I think Fabian took out the man’s hand-phone from his trouser pockets and showed it to me. It was a Nokia Express Music which was black and blue in colour. It was...