Neoh Bean Chye and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tan Ah Tah J
• Judgment Date: 24 April 1974
• Neutral Citation: [1974] SGCA 11
• Date: 05 August 1974
• Docket Number: Criminal Appeal No 9,Criminal Case No 26 of 1972
• Published date: 19 September 2003
• Defendant Counsel: Glenn J Knight (Deputy Public Prosecutor),Michael Hwang (Allen & Gledhill)
• Court: High Court (Singapore)
• Plaintiff Counsel: Amarjit Singh (David Marshall)

The abovenamed accused were charged before us as follows:

You, Neoh Bean Chye, Lim Kim Huat are charged that you, on or about 9 August 1972 at about 2.30am at no 109 Amoy Street, Singapore, in furtherance of the common intention of both of you, committed murder by causing the death of one Chew Liew Tea, and thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (ch 103).

Both accused claimed trial. At the conclusion of their trial they were convicted and sentenced to death. They now appeal against their conviction.

The deceased person mentioned in the charge, Chew Liew Tea, was the proprietor of a public bar or wine shop at 109 Amoy Street, Singapore. He lived with his wife and children at 104-B Amoy Street, Singapore, which address is a short distance away from his bar.

On the night of 8 August 1972 the deceased was working in his bar at 109 Amoy Street. The two accused went to this bar in order to rob the deceased. The second accused carried a loaded revolver on his person. They entered the bar at about midnight and sat in a cubicle meant for customers who desired some privacy. They ordered and were served with drinks. At about 2am that night, ie on the morning of 9 August, when all the other customers had left and the deceased was about to close the bar for the night, they attempted to rob him. In the course of this attempt, the deceased received a gunshot wound on his chest which caused his death. The bullet which caused the gunshot wound was discharged from the gun carried by the second accused. Both accused claimed that the deceased received the fatal gunshot wound in circumstances which did not constitute murder as defined in the Penal Code (Cap 103, 1970 Ed). They contended that the gunshot wound was caused accidentally.

At the commencement of the trial, counsel for the second accused applied for a separate trial for his client on the ground that in a joint trial with the first accused, his client would be prejudiced and embarrassed in his defence. Counsel submitted that in a cautioned statement made to the police and in a statement made to the magistrate the first accused had blamed the second accused for the death of the deceased and it was therefore desirable that both accused should be tried separately.

This application for a separate trial was opposed by counsel for the Public Prosecutor who submitted that the prosecution was charging both accused under s 302 read with s 34 of the Penal Code; that the prosecution`s case was that the act which caused the death of the deceased was committed in furtherance of the common intention of both accused and that it was therefore appropriate that both accused should be tried together.

The question of separate trials where one accused is likely to lay the blame on the other was considered by the judicial committee in Youth v R [1945] WN 27 where it said that the question of joint or several trials had always been left to the discretion of the presiding judge. In R v Grondkowski [1946] 1 KB 369, Lord Goddard CJ in referring to Youth v R

said:

... The discretion, no doubt, must be exercised judicially, that is, not capriciously. The judge must consider the interests of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners. If once it were taken as settled that every time it appears that one prisoner as part of his defence means to attack another, a separate trial must be ordered, it is obvious there is no room for discretion and a rule of law is substituted for it ...

As the charge against both accused was that in furtherance of the common intention of both of them, they committed murder by causing the death of the deceased, we were of the opinion that a joint trial was appropriate in the circumstances of this case. The application for a separate trial for the second accused was therefore rejected.

An autopsy was performed on the body of the deceased by Dr Chao Tse Cheng who is a forensic consultant pathologist attached to the Department of Pathology, Singapore. He found a bullet entry wound 2.5 cm from the left nipple. The track was slanting from the left to the right of the deceased`s body. Externally the wound measured one cm in diameter with abraided margins. The bullet had travelled inside the body from left to right and in an upwards and inwards direction. It had penetrated the heart through the anterior surface of the right ventricle, come out from the superior vena cava and into the middle lobe of the right lung. There was about a litre of blood and 563g of clots in the right chest cavity and a .22 bullet was recovered from amongst the blood clots. There was no exit wound. Dr Chao certified the cause of death as `haemorrhage from bullet wound in chest`.

A specimen of deceased`s blood was sent to the Department of Chemistry of examination and on analysis it was found by the chemist that the blood sample contained 230 mg ethyl alcohol per 100 ml of blood. Dr Chao explained that this indicated that, speaking generally, a person with that amount of alcohol in his blood would be under the influence of liquor and would probably have a flushed face, red eyes and alcoholic breath. Furthermore, he would probably have poor co-ordination, incoherent speech and an unsteady gait. Dr Chao agreed that the effect of liquor is different from person to person and even on the same person different from day to day. Dr Chao agreed further that he had no knowledge of the deceased`s drinking capabilities nor his drinking habits and that all he could say was that because of the amount of alcohol found in his blood, at that level he would be under the influence of alcohol in so far as his external appearance was concerned and that he would react a bit more slowly or clumsily to a situation.

As regards the gunshot wound found on the deceased Dr Chao explained that its external characteristics were important. The wound was one centimetre in diameter and had abraided margins. He estimated the distance from which the gun was fired to be between one and two feet. He stated that the gun was fired from a distance of more than one foot because there was no powder mark nor any hot gas effects that are seen in firing within one foot. On the other hand the distance was not beyond two feet because the wound had an abraided margin which was a mark which is not seen when a gun is fired from a distance of more than two feet. Dr Chao also noted that the path of the bullet in the body of the deceased indicated that the gun was pointing from the left side of the deceased`s body when the bullet was discharged.

The shirt which the deceased was wearing when he received the gunshot wound was sent by the police to the Department of Chemistry for examination. The chemist certified that he found on the front left hand side upper end of the shirt one hole with blackened edges consistent with it being a .22 bullet entry hole. He stated further that he was able to obtain a powder pattern around this hole indicating that the hole had been fired from a distance of less than two feet.

The first accused was apprehended at Butterworth on 19 September 1972 with the assistance of the Malaysian police and brought to Singapore on 29 September 1972 under a warrant of arrest issued by a Singapore magistrate.

The second accused was apprehended in Kuala Lumpur with the assistance of the Malaysian police on 17 February 1973 and brought to Singapore on 23 February under a warrant of arrest issued by a Singapore magistrate.

The prosecution proved that when the police arrived at the scene soon after the deceased had been shot, they found on a table in the cubicle which had earlier been occupied by the two accused the following:

one empty Anchor beer bottle

one empty Tsingtao beer bottle

one empty Green Spot bottle

two Guinness Stout glasses.

These articles were dusted for finger-prints. A finger-print mark was found on the empty beer bottle. Another finger-print mark was found on one of the Guinness stout glasses. After the arrest of the accused, their finger-prints were taken by the police and they were compared by a finger-print expert, DSP Fernando, with the finger-print marks found on the beer bottle and the Guinness stout glass. DSP Fernando gave evidence for the prosecution and expressed the opinion that the finger-print mark found on the beer bottle was made by the right forefinger of Neoh Bean Chye the first accused and that the finger-print mark found on the Guinness stout glass was made by the right middle finger of Lim Kim Huat the second accused. This was not challenged by counsel for the accused.

On 27 September 1972 the first accused made a statement to a magistrate which reads as follows:

I have been charged with murdering someone in a Chinese wine shop. I did not murder him. I went there with a friend with intention of robbing his money. When my friend and I were robbing him I was standing inside the shop near the door. My friend pointed a gun at him and asked him to hand over the money. Then the towkay wanted to catch hold of him. He pushed towkay away and towkay again caught hold of him. After my friend was caught hold of, his gun fired. I ran out of the shop. I did not fire.

Counsel for the first accused did not object to the admission in evidence of this statement. In fact he welcomed its admission and submitted that it was exculpatory in so far as his client was concerned.

Counsel for the second accused objected to the admission in evidence of the said statement. He submitted that it was hearsay evidence against his client and it was therefore inadmissible. Further, that the statement was not a confession by the first accused; that it could not be taken into consideration against the second accused under s 30 of the Evidence Act (Cap 5, 1970 Ed) and that it was...