Public Prosecutor v Somwang Phatthanasaeng

CourtCourt of Three Judges (Singapore)
Judgment Date27 March 1992
Docket NumberCriminal Appeal No 18 of 1990
Date27 March 1992

[1992] SGCA 21

Court of Criminal Appeal

L P Thean J


Chan Sek Keong J


Warren L H Khoo J

Criminal Appeal No 18 of 1990

Somwang Phatthanasaeng
Public Prosecutor

B J Lean (B J Lean) for the appellant

Ismail bin Hamid (Deputy Public Prosecutor) for the respondent.

Jones v R [1948] MLJ 182 (folld)

Muthusamy v PP [1948] MLJ 57 (folld)

PP v Wong Yee Sen [1990] 1 MLJ 187 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 121 (consd);s 122 (6)

Evidence Act (Cap 97,1990 Rev Ed)s 157 (consd)

Penal Code (Cap 224,1985 Rev Ed)s 300 (c), Exception s 1, 7 (consd)

Criminal Law–Special exceptions–Diminished responsibility–Burden of proof–Accused bore burden of proof–Defence of diminished responsibility based on facts–Effect of accused not being able to prove those facts–Section 300 (c), Exception 7 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Law–Special exceptions–Provocation–Burden of proof–Accused bore burden of proof–Whether provocation grave–Whether retaliation proportionate to the provocation–Whether provocation proved–Section 300 (c), Exception 1 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Procedure and Sentencing–Statements–Admissibility–Procedure for Prosecution's use of accused's statements during cross-examination–Impeachment of accused's credit–Section 121 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Witnesses–Impeaching witnesses' credibility–Accused made statements to police–Use of statements in court to impeach accused's credit and not for substantive evidence–Section 121 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Section 157 Evidence Act (Cap 97, 1990 Rev Ed)

The accused was charged with murdering the deceased. The Prosecution's evidence showed that the accused had attacked the deceased from the back with an axe and hit him multiple times. In his defence, the accused contended that the deceased had owed him money and had refused to pay him back and had even attacked him. The accused then ran away and returned with an axe which he used to attack the deceased. As such, the accused pleaded the defence of grave and sudden provocation and further adduced medical evidence to show that he was suffering from depression which qualified him for the defence of diminished responsibility. In the course of the trial, the accused's prior police statements recorded under s 121 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“s 121 statements”) were admitted and used to cross-examine the accused. The High Court convicted the accused. On appeal, the accused contended that the trial judges erred in their findings of fact, that the proper procedure for the use of the s 121 statements was not followed and that the trial judges had wrongly relied on the s 121 statements as substantive evidence.

Held, dismissing the appeal:

(1) The accused bore the burden of proof for the defence of provocation, and the underlying facts in support, on a balance of probabilities. The accused failed to establish that there was a loan owing to him by the deceased or that they had fought as a result: at [24] and [25].

(2) Even if there had been a fight, the defence of provocation would still have failed as there was a cooling-off period before the accused took the axe and attacked the deceased. Further, the provocation was not so grave, by the standards of a reasonable man, as to warrant retaliation by the accused with the use of an axe. Lastly, the acts of retaliation were wholly disproportionate to the act of provocation caused by the deceased: at [28].

(3) The defence of diminished responsibility also failed because the opinion of the defence medical expert witness that the accused was suffering from depression could not stand as it was based on the alleged fight between the accused and the deceased, a crucial fact that the accused was not able to establish: at [30].

(4) The procedure for the Prosecution's use of an accused's s 121 statements in the course of cross-examination of the accused was as follows. The court was to first read the statement. The court had to read it with the confident expectation that it would be different from the evidence but looking judicially to see whether the difference really was so serious as to suggest that the witness was unreliable. Where there was no serious discrepancy, the court could so rule immediately. If however, the difference was so material as to amount to a discrepancy affecting the credit of the accused, the court may permit the accused to be asked whether he made the alleged statement. If the accused denied having made it, then the document must be formally proved or the matter dropped. If the accused admitted making the former statement or was proved to have made it, then the two conflicting versions must be carefully explained to him, preferably by the court, and he must have a fair and full opportunity to explain the difference. If he could, then his credit was saved, although there may still be doubt as to the accuracy of his memory: at [32].

(5) The use of s 121 statements to impeach the credit of the accused took place as part of the cross-examination of the accused by the Prosecution. However, the trial judges need not, at that stage, make a ruling as to whether the accused's credit was impeached: at [33].

(6) A previous inconsistent statement of the accused which had been used to impeach his credit was only admissible for that limited purpose and not as substantive evidence of the content thereof. The trial judges did not rely on the s 121 statements as substantive evidence against the accused on any crucial issue of fact: at [36].

Judgment reserved.

L P Thean J

(delivering the judgment of the court):

1 The appellant was charged in the High Court with the murder of one Thongdam Sarathit (“the deceased”) on 24 March 1988 at about 8.30pm at 7B Lorong 20, Geylang, Singapore. At the conclusion of the trial he was convicted, and against his conviction this appeal has been brought. [See [1990] 2 SLR (R) 414.]

2 The evidence adduced by the Prosecution before the High Court was this. At all material times, the appellant and the deceased were both employed by Tan Song Hoe Contractors Pte Ltd (“the company”) as general workers. They were, at the date of the incident, living at 7B, Lorong 20, Geylang, which was an apartment (“the apartment”) leased by the company and used as quarters for its workers. The apartment was situated on the third level of a building and comprised two levels: the lower level had a living room, a balcony, two bedrooms, a dining room and a kitchen, and the upper level had five bedrooms, one of which, the middle room, had a bathroom attached and was occupied by the appellant with two other fellow workers, Sommai Somprasong (“Sommai”) and Somboon Saleephan (“Somboon”). The deceased was living in a room at the rear on the same upper level. The deceased's room was separated from the appellant's room by an open area, in which there was a bed, and by another room, and the distance between them was slightly more than 20ft. There were altogether about 20 workers living in the whole apartment.

3 On 24 March 1988, at about 8.00pm, one of the Thai workers, Somthai Phunngphanvan (“Somthai”), was in his room which was at the lower level. The deceased came to see him and sought his advice whether the deceased should go to work at the Upper Thomson Road construction site, and he advised the deceased against it. They discussed for a short while, after which both of them went to the upper level intending to go the deceased's bedroom. On the way, they passed the middle room, and Somthai saw the appellant sitting on his bed in that room, while Somboon was asleep on another bed. Somthai and the deceased proceeded to the deceased's bedroom. There, together with four other Thai workers, they chatted. About half an hour later the deceased said that he was going to take a bath and left the room. The remaining five persons in the room continued with their conversation until about 10.30pm when they dispersed. Up to that point of time, the deceased had still not returned to his room. On the way down to his room, Somthai again passed the middle room, and this time he saw Somboon still fast asleep and there was no sign of the appellant. Soon after 11.00pm, Sommai was heard to be shouting that someone had died in the bathroom (attached to the middle room). Some of the Thai workers attempted to open the bathroom door, and after using some force, they managed to push the door slightly open and the deceased was found lying on the floor of the bathroom. The police were called and after the arrival of the police, all the Thai workers were required to assemble in the living room on the lower level of the apartment.

4 In the meantime, the appellant had left the apartment and gone over to a worksite quarter at Thomson Road where some other Thai workers were staying. That was about 11.00pm. At about 3.00am the following day, Somthai and two others came to the Thomson Road worksite quarter and told them that the deceased had died at the apartment. When he made the announcement, the appellant, who was also present, remarked that he had $400 with the deceased, implying that the latter owed him that amount of money. To this, Somthai retorted that the appellant was lying, that the deceased had never borrowed any money from the appellant, and that the appellant never had enough money for himself. Soon thereafter, the appellant and three other Thai workers took a taxi from the Thomson Road site and returned to Lorong 20, Geylang.

5 At about 3.45am, Professor Chao Tze Cheng, the senior forensic pathologist, arrived at the scene and examined the body. He estimated that death would have occurred six to eight hours earlier. At about 9.00am the same morning, Prof Chao performed an autopsy and subsequently prepared his report. He found that there were seven injuries, all concentrated on the head region and...

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