Public Prosecutor v Oh Laye Koh

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 25 April 1994
• Neutral Citation: [1994] SGCA 61
• Docket Number: Criminal Appeal No 25 of 1992
• Date: 25 April 1994
• Published date: 19 September 2003
• Year: 1994
• Plaintiff Counsel: Jennifer Marie and Luke Tan Loke Yong (Deputy Public Prosecutors)
• Citation: [1994] SGCA 61
• Defendant Counsel: Remesha Pillai (Jacob Chacko Mohan Das & Pnrs)
• Court: Court of Appeal (Singapore)
• Subject Matter: Test applicable where evidence wholly circumstantial,s 300 Penal Code (Cap 224),Offences,Admissibility,Whether defence of accused to be called,s 300 Whether reasonable inference could be drawn from circumstantial evidence of the existence of intention under,s 189(1) Criminal Procedure Code (Cap 68),Criminal Procedure and Sentencing,Whether the test in Sunny Ang v PP applicable,Whether issue of voluntariness arose if accused merely denied making statement,Murder,Criminal Law,Close of prosecution case,Statements,Mens rea,Trials

The respondent was charged with the murder of one Liang Shan Shan @ Leong Shan Shan (`the deceased`) as follows:

Charge

That you, Oh Laye Koh, on or about 2 October 1989, between 1.05pm and 4pm, at a vacant land off Yishun Ave 2, Singapore, committed murder by causing the death of one Liang Shan Shan @ Leong Shan Shan, and you have thereby committed an offence punishable under s 302 of the Penal Code (Cap 224).

The facts

The respondent was a school bus driver who drove the deceased to and from school. On the morning of 2 October 1989, the deceased left for school in the respondent`s bus. When she failed to return home that afternoon, her mother telephoned the respondent`s home at about 3.30pm. The respondent was not in. At about 4.10pm, the respondent returned the call. He told the deceased`s mother that he had not picked up the deceased from school. He said that she was not there when he passed by her school.

On the morning of 14 October 1989, a highly decomposed body was found at a vacant plot of land off Yishun Ave 2. The body was positively identified to be that of the deceased. Due to the advanced stage of decomposition, the cause of death could not be determined exactly.

A few days after the deceased failed to return home (prior to her body being found), her father had gone to meet the respondent. At the father`s request, the respondent ran the route he took on 2 October 1989, stopping his bus near the rear gate of the school which the deceased attended. The respondent told the father that, on the day in question, he saw two of the deceased`s schoolmates crossing the road. Thinking that the deceased had already left, he made a U-turn and returned to his usual parking place. The respondent then brought the deceased`s father to a workshop at Yio Chu Kang, where he said he had gone to fix his bus brakes at between 3pm and 4pm on 2 October 1989.

It was, however, revealed during the course of the trial that the respondent had got his brakes fixed on the morning of 2 October 1989. He had in fact asked the workshop mechanic to lie to the deceased`s father that he (the respondent) had been at the workshop on 2 October 1989 between 1pm and 4pm. It was also revealed that the respondent had frequently teased the deceased and that the deceased had found him disgusting. The deceased had also been seen boarding a school bus resembling that of the respondent`s after school dismissed on 2 October 1989. On 16 October 1989, the respondent had led a police party to the vacant lot at Yishun Ave 2. He had pointed out the place where the deceased`s body had been found. He had also led the police to the spot where the deceased`s school books were found. The respondent was subsequently arrested and charged with the murder of the deceased.

At the trial, the prosecution sought to introduce in evidence three statements which the respondent had made to the police. A voir dire was conducted to assess whether the statements had been voluntarily made. At the conclusion of the voir dire, the learned trial judge was not satisfied that the statements had been voluntarily made, and he therefore declined to admit them in evidence. At the close of the prosecution case, the trial judge held that the essential elements of the offence of murder relating both to the actus reus and mens rea as set out in s 300 of the Penal Code (Cap 224) had not been established within the principles set out in Haw Tua Tau v PP . The trial judge felt that the circumstantial evidence adduced by the prosecution was not sufficient to support a prima facie case against the respondent and to warrant calling for his defence. The respondent was therefore acquitted and discharged without having his defence called upon. The public prosecutor appealed against the acquittal. After hearing the submissions, we allowed the public prosecutor`s appeal and ordered the case to be remitted to the High Court for the respondent`s defence to be entered. We now give our reasons.

The circumstantial evidence

The prosecution had relied upon the following circumstantial evidence in the court below:

(1) On 16 October 1989 at about 5.30am, the respondent had actually led the police to the exact spot where the deceased`s body had been found.

(2) At 7.40am that same morning, the respondent had led the police to another spot five kilometres from the spot where the deceased`s body had been found. At that other spot, some school books bearing the deceased`s name were found.

(3) The respondent had told the deceased`s parents that he did not pick up the deceased after school on 2 October 1989. However, PW23, the brother of a schoolmate, testified that, whilst waiting for his sister on 2 October 1989 at the school, he saw the deceased (whom he knew by sight) boarding a school bus. He did not see anyone else in the bus apart from the driver. PW23 had been taken later to see the respondent`s school bus, and he had identified the bus to be similar to the one he had seen the deceased boarding.

(4) The respondent had told the deceased`s father that he had gone to fix his bus brakes at between 3pm and 4pm on 2 October 1989. However, PW24, the motor mechanic testified that the respondent had in fact brought his bus to the workshop at 9am that morning, and PW24 had then rectified a fault in the bus brakes.

(5) The respondent had requested PW24 to lie to the deceased`s father that he (the respondent) had been at the workshop on 2 October 1989 between 1pm and 4pm.

(6) PW44, one of the respondent`s regular passengers, testified in his statement that the respondent had failed to pick him up at his workplace at the usual time of 4.55pm on 2 October 1989. The respondent had told him the next day that this was because his bus had broken down.

(7) PW45, a classmate of the deceased, testified that she saw a school bus similar to the respondent`s at 1pm behind the school. She also testified that the respondent had telephoned her that very same night . The respondent had asked her to forget a misunderstanding they had had in the past. He had then asked her to help him - he wanted her to be his witness to the effect that the deceased did not board his bus.

(8) The respondent had frequently teased the deceased and the deceased had found him disgusting. On one occasion, the respondent had tried to snap a photograph of the deceased, and she had not been pleased about it. The deceased had also felt disgusted when the respondent had told her that she had a good body. According to PW45, the deceased had also complained that the respondent `talked nonsense` in the bus.

(9) The senior forensic pathologist stated that `it was not possible to determine the cause of death exactly` due to the advanced stage of decomposition. However, there was evidence of trauma to the body, particularly a complete fracture of the lower jaw. The pathologist opined that the cause of the fracture `must be a blow delivered with great force`, a blow from a blunt object. However, the pathologist also stated that the injuries would be equally consistent with a fall on a hard object.

The trial judge`s findings on the circumstantial evidence

The trial judge ruled at the conclusion of the voir dire that the respondent`s statements to the police were inadmissible. He was satisfied that the statements did not appear to have been made voluntarily. That being the case, the prosecution was left with only circumstantial evidence. The trial judge observed:

Circumstantial evidence, however, has been laid down to be such as to be of a conclusive nature and tendency and should exclude every hypothesis but that proposed to be proved by the prosecution. [Emphasis added.]

The trial judge attached importance to the pathologist`s concession that the trauma with respect to the ante-mortem injuries on the head, apart from being caused by a blow, could be equally consistent with those from a fall. The pathologist had testified that the deceased could either have been hit by a hard object or hit on a hard object. As regards the injuries to the ribs, the pathologist agreed that they could be due to a fall. In the light of these, the trial judge concluded:

Prof Chao`s evidence showed that all the injuries suffered by the deceased were on the right side of the body, ie they were linear in pattern and hence suggestive of an accident.

The trial judge then cited Lord Morris`s judgment in R v Sharmpal Singh at p 145:

In their Lordships` opinion, the inability of the medical evidence to speak with precision about the degree of force used, together with other circumstances in the case to which they will later refer, opened up both manslaughter and accident as alternative possibilities requiring consideration.

As for the lies the respondent had told, the trial judge felt that for a lie to amount to corroboration, it must, amongst other things, relate to a material issue in the case. The trial judge referred to the caution raised in R v Lucas , that a person may lie for a variety of reasons. He then set out his conclusion, which is worth reproducing verbatim:

The material issue was whether the accused had done any intentional act or knowingly any act resulting in the death of the deceased.

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