Saeng-Un Udom v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 May 2001
• Neutral Citation: [2001] SGCA 38
• Docket Number: Criminal Appeal No 3 of 2001
• Date: 12 May 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: James Masih (James Masih & Co) and Ramli Salehkon (Ramli & Co)
• Citation: [2001] SGCA 38
• Defendant Counsel: Bala Reddy and Edwin San (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: ss 300 & 307 Penal Code (Cap 224),Whether prosecution failed to prove beyond reasonable doubt that accused caused death of deceased,Murder,Whether evidence sufficient to sustain conviction of attempt to commit murder,Whether court can to reject expert's opinion and substitute it with its own,Forensic pathologist testifies deceased's wounds caused by heavy instrument with sharp cutting edge and not by metal rod,Accused admits killing deceased with metal rod,Whether expert evidence based on sound grounds and supported by basic facts,Expert evidence unchallenged,Expert evidence,Witnesses,Evidence,Offences,Criminal Law

(delivering the grounds of judgment of the court):

Introduction

The appellant, Saeng-Un Udom (`Udom`), a Thai national, was charged for committing murder of one Weerasak Suebban (`Suebban`) , a fellow Thai worker, at North Shipyard (Pte) Ltd, 23 Tuas Crescent, on 23 June 2000, an offence under s 300 and punishable under s 302 of the Penal Code (Cap 224). He was tried before the High Court and was convicted and sentenced to suffer death. He appealed against his conviction. We allowed the appeal, set aside the conviction and sentence, and convicted him of the offence of attempting to commit murder, an offence punishable under s 307 of the Penal Code, and sentenced him to a term of imprisonment for ten years. We now give our reasons.

The facts

On the night of 22 June 2000, Udom, Suebban and three other friends, namely, Noikham Thamrong (`Thamrong`), Srisombat Jeerasak (`Lao Ta`) and Chobset Chai (`Chai`) were having a drinking session. They continued drinking to the early hours of the following morning. Just before 2am on 23 June 2000, a serious quarrel broke out between Udom and Suebban. The cause of the quarrel was the boast made by Udom that he was the best welder among them. Suebban was unhappy about this and scolded Udom, which then resulted in a heated quarrel between the two of them. In the course of the quarrel, Suebban smashed two glass bottles and threatened Udom with a knife. The others intervened and separated the two. Udom then left the room and Suebban placed the knife on the table. Chai took the knife and threw it into a `Castrol` bin downstairs. Suebban returned to his room. While inside the room, Lao Ta heard him making a challenge to Udom by shouting in Thai: `If there is any problem we settle tomorrow in whatever manner`. There was, however, no response from Udom.

Udom returned to his room, changed to a pair of jeans, and lay down on his bed. He was restless and thought that he would have to kill Suebban in the belief that if he did not do so, the latter would kill him in the early hours. About ten minutes later he got up and retrieved a metal cutting gas torch from a locker and cut a piece of a metal rod which was about 80cm in length, 2.5cm in diameter and about seven or eight kilograms in weight. He then placed the rod near Suebban`s room, somewhere near an `engine room` among some scrap metal.

Thereafter, he returned the gas torch to its storage place and went back to the spot near Suebban`s room, where he left the metal rod. He smoked a cigarette and then, according to him, `opened the doors of the deceased`s room, walked into the room [and] hit the deceased three times with the metal rod`. He then left the room with the metal rod and threw it into the sea in the slipway basin. He returned to his room and went to bed. At dawn, he rose, went for breakfast and reported for work as usual.

On the very morning, Suebban (`the deceased`) was found dead on his mattress, lying on his side in a prone position, with his face turned to his right and facing down, and his head was covered with blood. Dr Gilbert Lau, the forensic pathologist of the Institute of Science and Forensic Medicine, went to the site and inspected the body. Subsequently, he performed an autopsy on the deceased.

The evidence

Udom was arrested. He gave both a cautioned statement under s 122(6) of the Criminal Procedure Code (Cap 68) and a long statement to the investigation officer under s 121(1) of the Code. In the former, he expressly pleaded guilty to the charge. In the latter, he described in detail what he did on the night of 22 June and the early morning of 23 June 2000. In essence, he admitted to having had the mens rea of murder as well as having committed the actus reus of murder. These damning statements were not challenged and the judge further confirmed with Udom that he had not been coerced or induced, in any way, into making the statements and that he understood the nature of the charge he faced, when he made his cautioned statement.

With the information provided by Udom, the investigation officer, SS/Sgt Benjamin Oh, managed to find and retrieve the metal rod from the bottom of the slipway basin on 29 June 2000. This was accepted by Udom as the weapon he used.

The other material evidence was given by Chai. He testified that Udom told him sometime after 7.10am on 23 June 2000 that he had used a metal pipe to hit someone the night before. When Chai asked whom he had assaulted, Udom replied that sooner or later he would know. This evidence was not challenged by the defence counsel.

Dr Gilbert Lau gave evidence as to the findings he made in the autopsy performed on the deceased. His opinion was that from the lacerations on the scalp at least two separate blows were inflicted on the head within seconds of each other. He testified that a relatively heavy instrument with a sharp cutting edge, like a parang, was used, as the larger laceration had characteristics of both blunt and sharp force effects. He believed that the clean cut strands of hair found on the deceased`s pillow and the wall, and the low blood splatter pattern on the wall supported his forensic findings. Dr Lau concluded in his report (so far as relevant) as follows:

2 Death was caused by a severe, open head injury, comprising an extensive, depressed, open comminuted, right temporo-parieto-occipital fracture, from which linear fractures radiated across the calvarium and into the base of the skull, accompanied by diffuse intracranial haemorrhage and extensive cerebral lacerations.

3 The presence of two distinctive scalp lacerations on the right temporal and occipital regions, directly overlying the depressed, comminuted cranial fracture, would indicate that at least two separate blows had been inflicted on that part of the head.

4 The cleanly incised appearance of the superior (upper) margin of the anterior (forward) portion of the comminuted fracture would suggest that it had been caused by the application of a relatively heavy instrument with a sharp cutting edge.

In his evidence in court, Dr Lau categorically denied that the fatal wounds could have been caused by the alleged murder weapon, ie the metal rod, or anything like it. This evidence was severely tested by both the prosecution as well as the judge.

Udom gave evidence in his defence. His evidence corresponded substantially with what he had said in his s 121 statement. He admitted that he intended to kill the deceased. He therefore fashioned an iron rod. After ascertaining that the deceased was fast asleep, he stood near the deceased`s head at the edge of the mattress where the deceased`s forearms were, held one end of the iron rod with both hands, raised it well above his head and swung it in the direction of the deceased`s head. For the second and third blows, he raised the iron rod only to his shoulder level. As the room was dark, he was, however, not certain whether he did, in fact, hit the deceased`s head.

The prosecution

The prosecution rested mainly on the evidence of Udom, including the statements made to the investigation officer, and the evidence of the other Thai workers who were present at the drinking session and who witnessed the heated quarrel that took place between him and Suebban in the early hours of the morning of 23 June 2000.

The defence

The defence, on the other hand, relied mainly on the evidence given by Dr Gilbert Lau. On the basis of the evidence of Dr Lau, the defence was that there were no wounds sustained by the deceased which were consistent with blows from the metal rod, which Udom said he used to hit the deceased. The inference was that Udom, in the darkness of the deceased`s room, in hitting the deceased`s head, missed it completely. Someone else, using a heavy weapon with a sharp cutting edge, killed the deceased either before or after Udom`s attempt. The prosecution therefore had failed to prove an essential element of the offence, namely, that the accused actually caused the death of the deceased. As regards the evidence of Udom, it was argued that he had honestly believed that he committed the murder, but in fact he was mistaken; he did not commit the murder. What he did amounted to an attempt to commit murder.

The decision below

The trial judge held that the parang , which was found at the shipyard on the morning of 23 June 2000, was not the weapon used. There were no bloodstains on it, and in his testimony Chai said that the parang was in the same position as he had left it. The judge said:

18 In my view, the parang shown in photograph P 33 was not the weapon used. There were no bloodstains on it....