Public Prosecutor v Lee Chez Kee

• Jurisdiction: Singapore
• Judgment Date: 15 January 2007
• Date: 15 January 2007
• Docket Number: Criminal Case No 25 of 2006
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Lee Chez Kee

Defendant

[2007] SGHC 4

Tay Yong Kwang J

Criminal Case No 25 of 2006

High Court

Criminal Procedure and Sentencing–Statements–Admissibility–Whether out-of-court confessions of co-accused not party to proceedings falling within general prohibition against hearsay evidence–Whether out-of-court confessions of co-accused not party to proceedings admissible under s 378 (1) (b) (i) Criminal Procedure Code–Section 378 (1) (b) (i) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Proof of evidence–Onus of proof–Accused standing trial on charge for murder in furtherance of common intention to commit robbery–Whether Prosecution discharging burden beyond reasonable doubt–Whether evidence giving rise to prima facieinference accused involved in deceased's death–Section 116 Evidence Act (Cap 97, 1997 Rev Ed)

The accused was committed to stand trial on the charge of murder in furtherance of a common intention with two others (“Too” and “Ng”) to commit robbery under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”).

The accused, Too and Ng had had a discussion to rob the deceased at his house. There was a pre-arranged plan to tie-up the deceased and to threaten him with a knife. However, the deceased was killed in the course of the robbery. The post-mortem examination revealed that the cause of death was asphyxia due to strangulation, which had been effected using the black electrical cord found around the deceased's neck. It was also noted that the deceased suffered a stab wound, although it was not an acutely fatal injury. After the accused and his two accomplices left the deceased's house, they used the deceased's Cash-On-Line (“COL”) card to make withdrawals from his bank account and to make some purchases.

By the time of the accused's trial, neither Too nor Ng was available to testify. Too and Ng had already been convicted and sentenced in 1998 for their involvement. Too was convicted of murder and sentenced to the mandatory death penalty. Ng was convicted of robbery, theft and cheating, all with common intention, and after serving his sentence was repatriated to Malaysia and could not be traced.

The Prosecution sought to admit Too's statements under s 378 (1) (b) (i) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). The applicability of s 378 (1) (b) (i) hinged upon the proper construction of the phrase “subject … to the rules of law governing the admissibility of confessions” (“the qualifying phrase”). The Prosecution submitted that the phrase merely had the effect of importing the requirements of voluntariness. In contrast, the defence contended that Too's statements were out-of-court confessions which amounted to hearsay evidence inadmissible against the accused. The defence further submitted that the phrase imported the general common law prohibition against confessions and therefore rendered s 378 (1) incapable of rendering admissible confessions that were otherwise inadmissible.

Held, convicting the accused of murder and sentencing him to the mandatory death sentence:

(1) Notwithstanding the admissibility of out-of-court confessions made by an accused to the proceedings under s 122 (5) of the CPC, there was no similar exception under either the CPC or the Evidence Act (Cap 97, 1997 Rev Ed) which applied to confessions made by other persons. The Defence was therefore correct in so far as it had submitted that confessions made by a so-called “co-accused” who was not party to the proceedings were not generally the subject of any exception to the hearsay rule. Accordingly, Too's out-of-court statements fell within the general prohibition against hearsay evidence and would therefore be inadmissible unless s 378 (1) (b) (i) of the CPC had the effect of rendering them admissible: at [32] and [33].

(2) A blanket exclusion of allout-of-court confessions from the sphere of s 378 (1) would not only be unnecessary, but would additionally lead to manifest absurdity and inconsistency in the application of the sub-section. Inculpatory out-of-court statements would be excluded from the purview of s 378 (1), whilst exculpatory out-of-court statements would remain potentially admissible under the exceptions to hearsay enshrined therein. This result would be unjustifiable given that confessions, which implicate their makers, were generally regarded as being more reliable since they were against the makers' interests. In contrast, statements which purport to exculpate their makers would perceivably be less reliable since they would be more likely to be manufactured evidence: at [44].

(3) Accordingly, the qualifying phrase merely had the effect of excluding involuntary confessions from the ambit of s 378 (1) of the CPC. Section 378 (1) was capable of rendering admissible voluntary out-of-court confessions that would otherwise have been inadmissible by virtue of the hearsay rule. As no objection as to voluntariness arose regarding Too's statements, Too's statements were admissible in evidence by virtue of the statutory exception to hearsay evidence enshrined in s 378 (1) (b) (i). However, the potential dangers of placing too much weight on Too's statements, given Too's considerable interest in incriminating the accused in order to exculpate himself and the unavailability of cross-examination of Too had to be borne in mind. Too's statements, when considered together with the rest of the independent evidence which the Prosecution had adduced, served the limited function of reinforcing the already compelling inference that the accused was inextricably involved in the deceased's death: at [45] and [68].

(4) There was no rigid or indispensable legal requirement for the Prosecution to adduce evidence to directly establish the accused's involvement in the deceased's strangulation and stabbing. The sequence of events taking place during the course of an offence was often a matter within the exclusive knowledge of the perpetrator and his victim. In addition, forensic science might not always be able to conclusively establish the identity of the offender. In the light of these practical limitations, conclusions as to an accused's guilt might often have to be founded on inferences arising from circumstantial evidence. Regardless of the nature of the evidence involved, whether circumstantial or direct, the court's task remained throughout to consider the evidence in its totality in order to assess whether the Prosecution had discharged its burden beyond a reasonable doubt: at [60].

(5) The accused's conduct following the robbery augmented a compelling inference that he had been party to the fatal injuries afflicted on the deceased pursuant to s 116 of the Evidence Act. The complete lack of any discussion regarding what would happen when the deceased was freed, coupled with the calm and calculated manner in which they went about repeatedly exploiting the deceased's COL card and the accused's continued travel between Singapore and Malaysia in the years following the robbery, could only support the conclusion that the accused and his accomplices were not worried about being identified because they knew that the deceased was dead. This, coupled with the accused's proactive involvement in clarifying the modus operandi of the robbery prior to its occurrence, could only lead one to conclude that the accused was not a mere robber but someone prepared to annihilate his victim: at [62] and [66].

(6) Once the elements of s 34 of the PC were satisfied, the fact that a trial court was unable to positively decide who, as between two (or more) accomplices, in fact inflicted the fatal injuries was not at all critical. Accordingly, while only Too's statements established that the accused strangled the deceased, proof of this event was not a condition precedent to the accused's conviction. The existence of a common intention to rob was established through the discussion which had taken place between the accused and Too before they proceeded to the deceased's house. Moreover, the requirement of participation was sufficiently made out given his presence at the deceased's house when the murder occurred: at [69] to [71].

[Observation: Even if it was Too, and not the accused, who was solely responsible for the deceased's death, the rest of the evidence showed that Too's conduct to that effect was in furtherance of their common intention to rob the deceased. During cross-examination, the accused had conceded that when he used the knife to threaten the deceased, he was prepared to use the knife on the deceased if he had struggled or retaliated. This admission by the accused amounted to positive evidence that it would not have been inconsistent with or extraneous to his common intention with Too to cause harm to the deceased: at [72].]

Madugula Jermiah, In re1957 AIR Andhra Pradesh 611 (refd)

PP v Gerardine Andrew [1998] 3 SLR (R) 421; [1998] 3 SLR 736 (refd)

PP v Krishna Rao a/l Gurumurthi [2000] 1 MLJ 274 (refd)

PP v Lim Poh Lye [2005] 4 SLR (R) 582; [2005] 4 SLR 582 (folld)

PP v Too Yin Sheong [1998] SGHC 286 (refd)

R v Blastland [1986] AC 41 (refd)

R v Bryan James Turner (1975) 61 Cr App R 67 (refd)

Shaiful Edham bin Adam v PP [1999] 1 SLR (R) 442; [1999] 2 SLR 57 (folld)

Too Yin Sheong v PP [1998] 3 SLR (R) 994; [1999] 1 SLR 682 (refd)

Criminal Procedure Code (Cap 68,1985Rev Ed)s 378 (1) (b) (i) (consd);ss 121,122 (5), 122 (6),377

Evidence Act (Cap 97,1997 Rev Ed)s 116 (consd);ss 10,30, 32

Penal Code (Cap 224,1985 Rev Ed)s 34

Lee Cheow Han and Tan Wee Soon (Deputy Public Prosecutors) for the Prosecution

Rupert Seah Eng Chee (Rupert Seah & Co) and Wendell Wong (Drew & Napier LLC) for the accused.

Tay Yong Kwang J

1 The accused, one Lee Chez Kee, was committed to stand trial in the High Court on the following charge:

[T]hat you between 12.00 p.m. on the 12^th day of December 1993 and 7.03 a.m. on the 14^th...