Public Prosecutor v Ismil bin Kadar and Another

• Judge: Woo Bih Li J
• Judgment Date: 07 April 2009
• Neutral Citation: [2009] SGHC 84
• Citation: [2009] SGHC 84
• Published date: 15 April 2009
• Court: High Court (Singapore)
• Plaintiff Counsel: Anandan Bala, Mark Tay, Muhd Imaduddien and Mohd Faizal (Deputy Public Prosecutors)
• Defendant Counsel: R Thrumurgan (Thiru & Co) (assigned) assisted by Krishnan Nadarajan (Tan, Lim & Wong) (assigned),Ismail Bin Hamid (Ismail Hamid & Co) (assigned) assisted by Rajan Supramaniam (Hilborne & Co) (assigned)
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing,Evidence

7 April 2009 Judgment reserved

Woo Bih Li J:

Introduction

1 The first accused person Ismil Bin Kadar (“Ismil”) and the second accused person Muhammad Bin Kadar (“Muhammad”) are brothers who faced the following charge initially:

That you, 1. ISMIL BIN KADAR

2. MUHAMMAD BIN KADAR

on or about the 6th day of May 2005, between 8.00 a.m. and 2.00 p.m., at Block 185 Boon Lay Avenue #05-156, Singapore, in furtherance of the common intention of you both, did commit murder by causing the death of one Tham Weng Kuen, female aged 69 years, and you have thereby committed an offence punishable under section 302 read with section 34 of the Penal Code, Chapter 224.

2 After the two trials-within-a-trial or voir dire which I shall elaborate on below, the charge was amended to specifically mention that the common intention was to commit robbery as was all along understood to be the prosecution’s case. Accordingly the charge, as amended, was as follows:

That you, 1. ISMIL BIN KADAR

2. MUHAMMAD BIN KADAR

on or about the 6th day of May 2005, between 8.00 a.m. and 2.00 p.m., at Block 185 Boon Lay Avenue #05-156, Singapore, in furtherance of the common intention of you both to commit robbery, did commit murder by causing the death of one Tham Weng Kuen, female aged 69 years, and you have thereby committed an offence punishable under section 302 read with section 34 of the Penal Code, Chapter 224.

3 For easy reference, I will refer to the victim as “Mdm Tham” or “the deceased” and to the relevant block of flats as “Block 185”. I will also refer to the premises #05-156 at which Mdm Tham was killed, as “the deceased’s flat” or “her flat”. This was a two-bedroom Housing and Development Board flat. Ismil and Muhammad were residing one floor below at Block 185 Boon Lay Avenue #04-154 (“#04-154”) on the date when Mdm Tham was killed. Their dates of birth are 27 April 1968 and 29 June 1975 respectively. On 6 May 2005, they were 37 and 29 years of age respectively. Their heights are 1.7 metres and 1.68 metres respectively.

4 The deceased stayed at her flat with her 69 year old husband Loh Siew Kow (“Mr Loh”), a bedridden stroke patient. In the morning of 6 May 2005, some time between 8am and 9am, Mdm Tan Bee Choo had called and spoken to the deceased to arrange to visit the deceased’s flat to change a nasogastric tube attached to the nose of Mr Loh. Mdm Tan was attached to the Home Nursing Foundation located at Bukit Batok Polyclinic and her duty was to visit and provide medical treatment to bedridden patients at their homes. Mr Loh was one of her patients.

5 Pursuant to the arrangement made earlier that day, Mdm Tan arrived at the deceased’s flat at about 4pm. The iron gate and wooden door were closed. She knocked on the door but no one responded. She called out for the deceased but there was no response. She then used her mobile phone to call the residential line of the deceased. She could hear the phone inside the deceased’s flat ringing but no one answered her call. Mdm Tan decided to call Loh Yim Leng, whom she referred to as Catherine, a daughter of the deceased. She informed Catherine that the deceased was not responding to her knocks on the door or to her calls to the residential line. She would return to her office and would visit Mr Loh the following day. Catherine said she would visit the deceased’s flat after work. Catherine’s evidence was that she also called the residential line but without success. After work, she went to and arrived at the deceased’s flat at about 7.30pm. The gate and door were closed. She knocked on the door but there was no response. She again called the residential line and heard the phone inside the deceased’s flat ringing but no one answered the call. She sought the assistance of the police.

6 Two policemen arrived outside the deceased’s flat at about 8.00pm. The front gate was open but not the door. They spoke to Catherine and eventually obtained her permission to break open the door. The policemen created a hole in the door and through that hole a hand was inserted to open the door from the inside. The deceased was found lying motionless on the living room floor in a pool of blood. Mr Loh was lying on a bed in a bedroom. A paramedic who arrived at the scene pronounced the deceased dead at about 8.40pm.

7 The material parts of the autopsy report by Dr Lai Siang Hui stated:

SUMMARY OF FINDINGS

This was a case of homicide. Autopsy revealed more than 110 incised wounds and stab wounds together with blunt trauma to the neck and, head and back. Most of the wounds were of slashes and chopping-type wounds (collectively being described as sharp-force injuries or incised wounds) to the head and neck. There were also numerous incised wounds to the upper limbs consistent with defence injuries. These injuries indicated that the victim had put up significant resistance and self-defence against the assault.

The mechanism of death was due to severe blood loss from exsanguination. The source of blood loss was the numerous wounds in the head and neck regions. There was no single life-threatening wound or injury that accounted for death. Instead, the collective numbers of wounds had caused a relatively slow venous bleeding.

…

That a number of wounds to the head were associated with underlying bony injuries indicated moderate to severe force involved, bearing in mind relative movements between victim and assailant. The many overlapping and directions of the wounds indicated a prolonged yet somewhat frantic assault on the victim, who was all the while, making great effort to move away from her assailant. Hence, many of the wounds to the sides, top and back of the head and over the back of the neck.

…

On a different angle, the blood stain and spatter pattern in the flat showed that two assaults had taken place. The first occurred in the toilet at the far end of the kitchen. Then there were smears on the furniture and various kitchen work surfaces, as well as on the floors, which tracked the victim’s passage towards a chair in just beyond the kitchen entranceway.

…

In summary, the injuries on the body and with correlation of scene evidence was consistent with the victim having suffered two attacks. The victim had finally succumbed at entranceway to the kitchen, where the second and final assault occurred. The overall pattern was consistent with two weapons being used in the assault. At this point, the findings were also consistent with the assault having being inflicted by one assailant.

CERTIFIED CAUSE OF DEATH

Ia ACUTE EXSANGUINATION

Ib MULTIPLE INCISED WOUNDS TO THE HEAD AND NECK

8 The prosecution relied heavily on various statements made by Ismil and by Muhammad to officers in the Special Investigation Section (“SIS”) of the Criminal Investigation Department (“CID”). Each of the accused persons contested the admissibility of their respective statements for various reasons. I set out below various legal principles in respect of the admissibility of statements made by an accused person.

The Law on Admissibility of Statements

9 The admissibility of statements from an accused person is governed by s 122(5) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) which is similar to s 24 of the Evidence Act (Cap 97, 1997 Rev Ed). For present purposes, I need set out only s 122(5) which states:

Where any person is charged with an offence any statement, whether it amounts to a confession or not or is oral or in writing, made at any time, whether before or after that person is charged and whether in the course of a police investigation or not, by that person to or in the hearing of any police officer of or above the rank of sergeant shall be admissible at his trial in evidence and, if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit:

Provided that the court shall refuse to admit such statement or allow it to be used as aforesaid if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against such person, proceeding from a person in authority and sufficient, in the opinion of the court, to give such person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

10 However, where an accused person simply denies that he made a statement attributed to him, the admissibility of the statement is not in issue and hence there is no need to conduct a voir dire. This is the fourth typical situation referred to by the Privy Council in Seeraj Ajodha v The State [1982] A C 204 (“Ajodha”). Lord Bridge of Harwich said at 221 and 222:

It may be helpful if their Lordships indicate their understanding of the principles applicable by considering how the question should be resolved in four typical situations most likely to be encountered in practice. (1) The accused admits making the statement (orally or in writing) but raises the issue that it was not voluntary. This is a simple case where the judge must rule on admissibility and, if he admits the evidence of the statement, leave to the jury all question as to its value and weight. (2) The accused, as in each of the instant appeals, denies authorship of the written statement but claims that he signed it involuntarily. Again, for the reasons explained, the judge must rule on admissibility, and, if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement for the jury to consider and evaluate. (3) The evidence tendered or proposed to be tendered by the prosecution itself indicates that the circumstances in which the statement was taken could arguably lead to the conclusion that the statement was obtained by fear of prejudice or hope of advantage excited or held out by a person in authority. In this case,...