Seah Kok Meng v Public Prosecutor

• Judge: Chao Hick Tin JA
• Judgment Date: 21 May 2001
• Neutral Citation: [2001] SGCA 40
• Citation: [2001] SGCA 40
• Defendant Counsel: Khoo Kim Leng David (Attorney General's Chambers)
• Published date: 19 September 2003
• Plaintiff Counsel: Surian Sidambaram and Mylvaganan Mahendran (Surian & Partners)
• Date: 21 May 2001
• Docket Number: Criminal Appeal No 26 of 2000
• Court: Court of Appeal (Singapore)
• Subject Matter: Intoxication,Whether accused deprived of self-control by provocation,s 85 Penal Code (Cap 224),Whether test of proportionality a factor to take into account or distinct and separate test,s 300 Penal Code (Cap 224),Staring between accused and man,Whether accused so intoxicated he does not know of own acts,Death of man from injuries,Accused's girlfriend complaining man disturbing her,Provocation,Accused going to scene,General exceptions,Criminal Law,Whether provocation grave and sudden,Special exceptions,Accused getting wooden pole and attacking man,Whether an accused's acts of retaliation always of an extreme degree where provocation defence to murder charge raised,Consumption of beer by accused,Murder charge

JUDGMENT:

Grounds of Judgment

1. On 24 November 2000, the appellant was convicted of the charge of murder that on 2 May 1999, between 4.00am and 5.19am, outside Nikmath Restaurant, located at 24 Sims Avenue, Singapore, he caused the death of one S Salim Bin Ahmed. He was sentenced to suffer death. He appealed and the appeal was heard on 23 April 2001, and it was dismissed. We now give our reasons.

The facts

2. The facts leading to the killing on the fateful morning were these. On 1 May 1999, at about 9.00pm, some seven to eight hours before the incident, three persons, the appellant, his girlfriend Bok Swee Hoon (Bok) and the appellants friend Chan Kam Seong (Chan), were drinking beer at a hawker centre at Lorong 2, Geylang. An argument ensued between the appellant and Bok and to avoid further quarrelling, the appellant and Chan slipped away from the hawker centre leaving Bok behind. He also switched off his handphone so that Bok could not contact him.

3. The appellant and Chan spent considerable time loitering in the area between Lorong 2 and Lorong 12 Geylang until the early hours of the next morning. When they were at Lorong 12, the appellant switched on his handphone. Soon he received a call from Bok, who asked him where he was. He refused to answer her and just told her to go home.

4. Shortly after, at about 4.00am, and by then it was already 2 May 1999, the appellant received a second call from Bok, who told him that a Malay man was following her and had touched her. She complained that the man would not leave her alone and continued to be a nuisance. She also informed him that she was then at a coffee shop at the corner of Sims Ave and Lorong 5, Geylang.

5. On hearing that, the appellant was very worked up and, together with Chan, took a taxi to the coffee shop where Bok said she was. On arrival, the taxi stopped on the other side of the road and the appellant and Chan alighted from it. The appellant walked across Sims Road towards the coffee shop where Bok was. The coffee shop bore the sign "Nikmath Restaurant". Chan remained where he was and did not follow the appellant in crossing the road.

6. At that moment, Bok was talking on a public telephone, which was located at the front right corner of the coffee shop as one faces the shop. The appellant approached Bok and asked who was the person disturbing her. She pointed to a Malay man [later established to be S Salim Bin Ahmad (Salim)] who was standing near another public telephone, a very short distance away. The appellant and Salim then stared at each other. Following this, the appellant went to the alley at the back of the coffee shop where he found a wooden pole, which was quite heavy. Armed with that, he returned to where Salim was and attacked him on his head and body. There was no retaliation by Salim. The appellant then left the scene with Bok and went into hiding in Malaysia. About a year later he was arrested in Malaysia and on 12 May 2000 he was brought back to Singapore to face the charge.

7. We ought to mention that the evidence of Chan was slightly at variance with the above. According to him, upon alighting from the taxi, the appellant told him that he was going to beat up the Malay man. He saw the appellant going into the lane behind the Nikmath Restaurant. Shortly afterwards, the appellant was seen carrying a wooden pole about two feet long. He then approached Bok, presumably asking her to identify the man who was harassing her. He next saw the appellant hitting Salim on the back of his head. Salim then fell onto the ground and the appellant continued to hit him two to three times on the head and four to five times on the legs. The appellant also used his right leg to kick the waist of Salim, and said "pergi mati" ("go and die" in Malay). As far as Chan saw it, there was no staring incident. Salim did not retaliate when the appellant was attacking him. The appellant then left the coffee shop with Bok. However, the trial judge did not accept the evidence of Chan as he felt that Chan appeared hostile and was not reliable.

8. The owner of Nikmath Restaurant, one Mr Assinar s/o Mamu (Assinar), was at the relevant time behind the counter. He saw the appellant approach Salim and use a wooden stick to hit Salim. He was not able to say where the blows landed. He did not hear any quarrelling between the appellant and Salim. He then came out of the counter and saw Salim sitting on the ground and leaning against the orange coloured coin phone stand. He shouted "Jangan" (meaning "dont" in Malay) three times and ran to make a call to the police. The evidence of Bok was along similar lines to that of the appellant.

9. Salim died several hours later in hospital. He was unconscious from the time the Civil Defence team came to the scene. The pathologist, Dr Paul Chui, who examined the body of Salim found, besides other injuries on the body, three major injuries to the head as follows:-

(i) a fracture of the skull over the right forehead with fragmentation of the nasal bones and fractures over the cheek area and injury to the brain with bleeding;

(ii) a fracture of the skull beneath the occipital scalp with bleeding over the surface of the brain;

(iii) a fracture of the base of the skull.

It was Dr Chuis opinion that these injuries were caused by the blunt force of an object which could have been a stick with a square or rectangular cross-section and the force used would have been moderately severe. It was also his opinion that each of these injuries would, in the ordinary course of nature, cause death.

10. In passing, we should mention that there was, moreover, one other set of significant injuries a fracture to Salims ribs, and a tear in his kidney which was bleeding. In Dr Chuis opinion, these injuries were also sufficient in the ordinary course of nature to cause death, although in the present case, the actual cause of death were the head injuries.

11. The appellant gave several statements to the Police in the course of their investigation and three were sought to be admitted by the prosecution and not objected to by the appellant:-

(i) a statement recorded on 15 May 2000;

(ii) another statement recorded on 15 May 2000;

(iii) a statement recorded on 17 May 2000.

12. The pertinent parts of the second statement recorded on 15 May 2000 were the following:-

As I was walking to the coffeeshop, I saw my girlfriend was on a silver colour public phone and she was facing the main road (Recorders note:- refers to Sims Ave). She did not see me as I came from the back of the coffeeshop. At the same time, I also saw a Malay man standing infront of my girlfriend. Both of them were about 2 feet away from each other. The Malay man (deceased) was alone.

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I hurried my girlfriend to put down the phone so that we could go back home. I was then rather unhappy with her behaviour and my tone also sounded unhappy. The Malay man (deceased) mistook me that I had passed remarks against him while I was talking to my girlfriend. As such, he uttered something at me in Malay which I could not understand. I wish to say that I do not either understand or speak Malay language. The Malay mans (deceased) tone sounded angry just like me. When the Malay man (deceased) stopped talking, we started staring at each other for a short while. He appeared to be very fierce and I became frightened . I then walked away to the back of the coffeeshop. At that time, my girlfriend was still talking on the phone. While at the back of the coffeeshop, I saw a square-shaped wooden plank lying on the cemented floor.

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I wish to say that I picked up the wooden plank for self defence in case there is a fight between the Malay man and me.

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On my return, the Malay man (deceased) remained standing infront of my girlfriend. He stared hard at me as if he was going to hit me. Before the Malay man (deceased) could make any move, I immediately hit him with the wooden plank. I first hit him on one of his arms about one to two times. After that, he fell sideways onto the ground. I continued to hit him a few times with the wooden plank on his legs, shoulder and head. I believed I had hit the Malay man (deceased) on the side of his head as he was then lying sideways on the ground. The Malay man (deceased) did not retaliate at all as he was lying on the ground

13. The statement recorded on 17 May 2000 was in the form of questions and answers and we need only quote the following:-

Q2: When you were at Nikmath Restaurant located at 24 Sims Ave, why did you want to arm yourself with a wooden plank?

A2: The Malay man kept staring at me as if he was going to start a fight. As such, I walked to the back of the restaurant and by chance, I saw a piece of wooden plank lying on the ground and I picked it up. I took the wooden plank for self-defence in case a fight erupted between the Malay man and me.

Q3: Did the Malay man whom you referred to in your statement (Recorders note:- refers to the deceased) pose any threat or harm to you at Nikmath Restaurant located 24 Sims Avenue?

A3: His behaviour towards my girlfriend and the way he stared hard at me made me felt frightened. As a result, I must get myself prepared and to protect myself.

Q6: Do you know that the wooden plank as described by you in Q5 can cause serious injury to a person when it is used as a weapon?

A6: I only know that it can cause serious injury. However, I have never thought that it could cause death. This is the first time that I have used a wooden plank in a fight. If I know it can cause death, I would not have used it.

Q7: Did the Malay man whom you referred to in your statement (Recorders note:- refers to the deceased) retaliate while you were hitting him with the wooden plank?

A7: The Malay man fell onto the floor after I had hit him once or twice on one of his arms with the wooden plank. He did not retaliate at all.

Q8: Why did you continue to hit the Malay man whom you referred to in your...