Seow Choon Meng v Public Prosecutor

JudgeKarthigesu JA
Judgment Date11 May 1994
Neutral Citation[1994] SGCA 67
Docket NumberCriminal Appeal No 27 of 1993
Date11 May 1994
Published date19 September 2003
Plaintiff CounselPeter Fernando (Leo Fernando)
Citation[1994] SGCA 67
Defendant CounselLau Wing Yum and Lionel Tan (Deputy Public Prosecutors)
CourtCourt of Appeal (Singapore)
Subject MatterApproach of trial court during voir dire,Criminal Procedure and Sentencing,Voluntariness of written statements made during same time frame challenged,Whether there was an issue of voluntariness,Whether statements were made as a result of inducement, threat or promise,Bare denial that oral statements were made,s 122(5) Criminal Procedure Code (Cap 68),Whether voir dire necessary with respect to the oral statements

Cur Adv Vult

The charge against the appellant was for the rape of a girl on 24 December 1990 at Marina Park, an offence punishable under s 376(1) of the Penal Code (Cap 224). He was tried in the High Court, convicted and sentenced to a term of imprisonment of ten years and to caning with four strokes of the cane. Jointly tried with him, but under a separate charge, was Yong Kou Lin. He was charged with abetting the appellant to rape the girl, and was duly convicted and sentenced. He has not appealed against his conviction and sentence; only the appellant has.

The evidence in support of the prosecution`s case against the appellant, leaving aside for the moment the statements of the appellant, both oral and written, consists of that of Ong Hong Kee, a curry puff seller; a passer-by, Abdul Rashid bin Ramli; the police officer Cpl Raai bin Hassan; and the findings of Dr Lee Seong Tuck on his medical examination of the girl immediately following the rape.
Their evidence is largely uncontroversial and may thus be summarized.

On the evening of 24 December 1990 at about 11.30pm, Ong Hong Kee, who was selling his curry puffs from his parked bicycle along the pedestrian mall somewhere near the Benjamin Sheares Bridge in Marina Park, saw two men approach him from the sea front, dragging the limp figure of a girl between them.
He thought that the girl was drunk and that the two men intended to buy his curry puffs. Instead, they went past him into the wooded area of Marina Park. The pedestrian mall is set back from the sea front and is between the sea front and the wooded area. At trial, Ong Hong Kee identified the girl as the raped victim and Yong Kou Lin as one of the two men. However, he was unable to identify the other man.

About 15 to 20 minutes later, he heard a female voice crying out for help come from the wooded area of Marina Park.
The sound came from behind where he was selling his curry puffs. He went into the wooded area to investigate. He described what he saw - two shadows fleeing in different directions from a body lying on the ground near a tree.

Just then, Abdul Rashid bin Ramli, who was taking a stroll through the wooded area of Marina Park, was making his way in the direction from where the sound came.
He, too, came upon a body lying on the ground near a tree. Both he and Ong Hong Kee arrived at the body at about the same time. Abdul Rashid bin Ramli lit his cigarette lighter and, from the light of its flame, both he and Ong Hong Kee saw that the body was that of a girl with her skirt drawn up above her waist, not wearing any underwear, lying prostrate and motionless. They both noticed smears of blood on the inside of her thighs. Ong Hong Kee recognized the girl as the girl whose limp figure he had seen about 15 to 20 minutes earlier being dragged by the two men into the wooded area of Marina Park.

Abdul Rashid bin Ramli rushed off to summon the police and soon returned with Cpl Raai bin Hassan and Constable Chiong Beng Hui.
Cpl Raai bin Hassan described what he saw when he arrived at the scene. He saw a girl lying under a small tree and she was in a drowsy state. She was naked from the waist down. Her skirt was raised to her waist and her inner thighs were smeared with blood. A pair of panties, a pantihose and a pair of shoes were found nearby. These were later identified by the girl as hers. Cpl Raai bin Hassan found the upper portion of a fishing rod nearby. He also recovered a wallet from beneath the body of the girl. Inside the wallet was an identity card and a driving licence.

Ong Hong Kee, who was standing by the girl`s body whilst Cpl Raai bin Hassan, Constable Chiong Beng Hui and Abdul Rashid bin Ramli went in search for possible suspects, was alerted by a red light being shone about nearby and a voice saying `what bad luck, lost my IC`.
Shortly thereafter, Cpl Raai bin Hassan and Constable Chiong Beng Hui came upon two persons dressed in T-shirts and shorts searching for something on the ground. One of them was shining a light on the ground and the other was holding portions of a fishing rod. When Cpl Raai bin Hassan approached them, they tried to run away but he arrested them nevertheless. On arrest, Yong Kou Lin was identified from the identity card found in the wallet recovered from beneath the girl`s body. He was holding a search light and a torch light. The other man arrested was holding two pieces of a fishing rod and a torch light. The upper portion of the fishing rod found near the body of the girl fitted one of the two pieces of fishing rod carried by him.

The girl was subsequently sent to the Singapore General Hospital where she was examined by Dr Lee Seong Tuck.
He found fresh blood stains on both sides of her vulva. There was an abrasion of the vulva and fresh hymenal tears.

It transpired that the girl and her boyfriend had gone to the Marina Park and had sat on the sea front near where Ong Hong Kee was selling his curry puffs.
They had bought a mango drink from an itinerant hawker and, on drinking it, both of them had passed out.

The foregoing evidence, although it establishes most clearly that the girl was raped, falls short of satisfying s 189(1) of the Criminal Procedure Code and the test enunciated by Lord Diplock in Haw Tua Tau v PP and the cases following it that, at the end of the prosecution`s case, it must be shown that a case against the appellant has been made out which, if unrebutted, would warrant his conviction.
It is not surprising, therefore, that the most resolute efforts were made to keep certain incriminating statements the appellant is alleged to have made to the investigating officer, Inspector Low Kim Bock (`Insp Low`), from being admitted in evidence. These were oral statements allegedly made on 30 December 1990 by the appellant to Insp Low at the scene of the alleged rape at Marina Park, referred to hereafter as `the oral statements`, and three statements recorded by Insp Low from the appellant at the Central Police Station on 28, 29 and 30 December 1990 (`the three written statements`). However, the learned judicial commissioner, holding that a trial-within-a-trial was not necessary in relation to the oral statements, and after a trial-within-a-trial in respect of the three written statements, admitted in evidence the oral statements and the three written statements. The necessary incriminating evidence having thus been admitted, a case against the appellant was made out which, if unrebutted, would warrant his conviction. Accordingly, the appellant was called to enter upon his defence. The appellant elected to remain silent. The learned judicial commissioner, after evaluating all the evidence, including that of the oral statements and the three written statements, duly convicted the appellant and sentenced him as stated above.

There was no question but that once the oral statements and the three written statements were admitted in evidence, the conviction of the appellant could not be assailed as the appellant chose not to give evidence himself and did not call other evidence.
Hence, the sole question addressed before us by appellant`s counsel was on the admission in evidence of the oral statements and the three written statements.

Now, it seems clear from the transcript of the proceedings that the appellant had intimated before the commencement of the trial that objections to the admission in evidence of the three written statements would be taken on the ground of ` voluntariness `.
No such intimation had been given in respect of the oral statements. It is necessary to narrate how the oral statements came to be admitted in evidence at the trial before the High Court.

As is the practice nowadays, written statements of witnesses are admitted at the preliminary inquiry before the magistrate under s 141 of the Criminal Procedure Code (Cap 68) (`CPC`).
At the trial before the High Court, such written statements are admitted as evidence under s 371 of the CPC. This procedure was followed at the trial of the appellant. So it was that, when Insp Low`s written statement was being read into the evidence at the trial under s 371 of the CPC, certain paragraphs that had been objected to earlier were not read. These were paras 17, 19 and 21 of Insp Low`s written statement. These three paragraphs dealt with the recording of the three written statements of the appellant.

When Insp Low came to para 24 of his written statement, he paused and the following dialogue took place between the learned judicial commissioner, the learned deputy public prosecutor and Mr Fernando, the learned defence counsel.

DPP: Your Honour, I do not know whether my learned friend is objecting to para 24.

His Honour: That is not a statement. Is para 24 a statement?

DPP: It is not a statement.

His Honour: So that is not going to be a subject matter of the trial-within-a-trial.

DPP: Yes.

His Honour: So you can read it.

Mr Fernando: Your Honour, may I say, Sir, that we are objecting to this part being led in evidence in this manner because our clients inform us that they never did these things with the officer. He pointed out the places to them and made them admit that this is where it happened.

His Honour: No, no, Mr Fernando, let`s get the basis correct. This being led does not imply that you are admit to it (sic). I am not taking that to be the position. The question is, do you want this to be led through the form of a statement or do you want this to be brought in orally? And in either case, of course, you totally reserve your right to dispute this.

Mr Fernando: Yes.

His Honour: I mean, that is not in dispute. There is no question about your being unable to deny anything that has been read.

Mr Fernando: But we prefer it, Sir, in fairness, really, to our clients that this part of the evidence where they are alleged to have shown the inspector what allegedly took place, to come from his own testimony in court rather than the DPP reading it out.

His Honour: All...

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