Soosay v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 10 August 1993
• Neutral Citation: [1993] SGCA 57
• Date: 10 August 1993
• Subject Matter: Sudden quarrel,What has to be proved,Special exceptions,Criminal Law,s 300(c) exception 2 Penal Code (Cap 224),Private defence,General exceptions,s 300 & 300(c), exception 4 Penal Code (Cap 224),Whether accused took undue advantage or acted in cruel or unusual manner,Lack of premeditation,Right of private defence exceeded,Sudden fight,Apprehension of danger to accused's life had ceased
• Docket Number: Criminal Appeal No 34
• Published date: 19 September 2003
• Defendant Counsel: Chua Eng Hui (State Counsel, Attorney General's Chmabers)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: R Palakrishnan (Palakrishnan & Pnrs) and Roy Monoj Kumar (Hilborne & Co)

Cur Adv Vult

Soosay a/l Sinnappen (`Soosay`), a Malaysian, was convicted on 2 November 1992 of the murder of Lim Yeow Chuan (`Lim`), a male transvestite, and sentenced to death. The charge against him was that on 27 October 1990 at about 12.30am he had stabbed Lim to death at Queen Street, Singapore.

In the main, the facts are not in dispute. Soosay had the use of two rooms at premises in Lorong 9, Geylang. On 25 October 1990 Soosay and three of his friends were having a drink at a coffee shop at Geylang Road. One of them, Leo Chin Hwang (Leo) suggested that they go to Johore Road to continue their drinking. Soosay, Leo and another friend, Kuppiah Saravanan (`Kuppiah`) then proceeded to Johore Road, a place known to them, to be habituated by transvestites, amongst others. They consumed beer which was the drink they were having at Geylang Road. Leo befriended Lim, whose sexual services he desired. Leo then left with Lim for the premises at Lorong 9, Geylang. Soosay and Kuppiah stayed drinking at Johore Road and returned to the premises at Lorong 9, sometime past midnight and after a while, playing a computer game, went to sleep in the vacant room.

On arrival at Lorong 9, Leo purchased two cans of beer at the request of Lim before the two of them retired to one of the two rooms Soosay had the use of. It appears that Leo had passed out after drinking the beer Lim had poured for him in a glass. When he woke up in the morning he found that Lim had gone and that his gold chain and money were missing. He confronted Soosay and Kuppiah but they did not know anything about Leo`s gold chain and money. However, Soosay remembered he had seen Leo wandering about the toilet in a stupor when he and Kuppiah had returned to the premises at Lorong 9 and that he, Soosay, had guided Leo back to the room he had occupied with Lim. They surmised that Lim had made away with Leo`s gold chain and money before they had returned.

The gold chain was a gift from Leo`s wife when he had married her. He was determined to get it back. He arranged to meet Soosay and Kuppiah at the coffee shop in Geylang that evening to discuss how they should go about it. Accordingly they met that evening, 26 October 1990, at the coffee shop in Geylang. Leo was distraught at having his gold chain stolen, as he believed, by Lim. After some discussion during which time they consumed a few beers between them, they decided to go to Johore Road in search of Lim, although they had no definite plans how they were going to recover the gold chain from Lim, if it was he who had stolen it.

They arrived at Johore Road shortly after 9pm. A little after their arrival, Leo spotted Lim and pointed him out to Soosay and Kuppiah. Leo wanted to approach Lim but was dissuaded by Soosay and Kuppiah from doing so as they feared Lim might be frightened away. In fact Soosay and Kuppiah persuaded Leo to return home and leave the recovery of the gold chain to them. Leo did so.

Soosay and Kuppiah did not straightaway confront Lim. Instead, they stayed at their table drinking beer entertaining and being entertained by other transvestites. After a while Kuppiah saw Lim and without alerting Soosay left the table to consort with Lim. As Kuppiah was about to leave Johore Road with Lim, Lim suggested that Kuppiah buy a few cans of beer to take with them on their assignation. Kuppiah walked back to the shop he was with Soosay drinking beer and bought a can of beer. Whilst he was walking back to where Lim waited for him at Queen Street, he opened the can of beer. Lim did not approve of this and scolded Kuppiah for having done so and crossed to the other side of Queen Street. Kuppiah followed. It was Kuppiah`s intention to walk along Queen Street in the direction of Rochore Road in search of a taxi. However, when Lim scolded him, he pretended he had left something behind, stopped in his tracks and called out to Soosay who was still seated at the table he and Kuppiah previously were.

Soosay immediately joined Kuppiah and Lim, and told Lim that he and Kuppiah were Leo`s friends from whom Lim had stolen a gold chain and money the previous night after spiking Leo`s beer at premises in Lorong 9, Geylang. All that Soosay and Kuppiah wanted was the return of Leo`s gold chain as it was precious to Leo. Lim feigned ignorance and when Soosay persisted in his request for the return of Leo`s gold chain became abusive. Kuppiah admonished Lim for being abusive and said that if he did not show respect he would be assaulted. On hearing this Lim stepped back, opened the handbag he was carrying, drew out a knife and pointed it at Kuppiah and threatened as if to go at Kuppiah with the knife. On seeing this Soosay kicked him in the stomach. Lim fell to the ground and lost hold of both the knife and the handbag.

At this juncture we should mention that there is some divergence of opinion of where the knife came from. At the trial the prosecution made a feeble attempt to persuade the trial judge that Soosay had armed himself with a knife when he went to join Kuppiah and Lim. It was said he had taken the knife from a nearby hawker stall. The basis of this version of the evidence is Soosay`s 121(1) statement itself. (However Soosay retracted this portion of his 121(1) statement when he gave evidence in his defence.) In fact Soosay made a 121(1) and a 122(6) statement. Both statements were made on the very day Soosay was arrested for this offence, namely, 30 December 1990. The prosecution sought to admit these two statements as part of their case. The statements were objected to on the ground that they were not made voluntarily. After a trial-within-a-trial, the learned trial judge admitted both statements.

It should also be mentioned that the question of the voluntariness of both these statements is not in issue in this appeal. Be that so the learned trial judge did not accept the statement in Soosay`s 121(1) statement that he had taken the knife from a nearby hawker stall on his way to join Kuppiah and Lim on being hailed by Kuppiah. Instead he accepted Kuppiah`s evidence (Kuppiah was called as a prosecution witness) that Lim had taken the knife from his handbag as stated above. The prosecution no longer seeks to uphold Soosay`s 121(1) statement on this point.

Although the learned trial judge does not in his grounds of judgment specifically make a finding of fact as to the origin of the knife, it is, in our view, tantamount to a finding of fact since the learned trial judge in his narration of the facts accepted that the knife was first drawn by Lim which he took out from the handbag he was carrying. There was no other knife. The significance of this will be appreciated with greater force later but for the present suffice it to say, that this shows clearly that there was no premeditation on the part of Soosay to cause the death of Lim or to do him grievous hurt.

As pointed out earlier, the prosecution depended almost entirely on Soosay`s 121(1) and 122(6) statements supplemented by the evidence of Kuppiah, the only prosecution eye witness of fact. However, Kuppiah`s evidence is devoid of details as to what happened after Soosay had kicked Lim in the stomach and Lim had fallen to the ground and lost hold of the knife and the handbag he was carrying. All that Kuppiah was able to say was that he started to kick and punch the fallen Lim and pull at his hair in the process of which he pulled off a gold chain. He then saw Lim`s handbag lying on the ground and went to pick it up. When he turned round after picking up the handbag he saw that Lim was facing him; Soosay was behind him holding something in his hand and making a poking motion towards the derriere of Lim. Seeing this he started to run down Queen Street in the direction of Rochore Road. Shortly after he had started running he heard Soosay call out to him to hail a taxi. He turned round and saw that Soosay was also running behind him towards Rochore Road pursued by Lim. Soosay caught up with him and they made off in a passing taxi which had stopped for them.

Lim`s body was found at the junction of Queen Street and Rochore Road, a distance of approximately 180 yards from where the fracas had taken place. The body had no vital signs when conveyed to the General Hospital. A post mortem examination showed that Lim had died from massive haemorrhage due to stab wounds of the stomach. In all there were found on Lim`s body five stab wounds; (i) at the right breast; (ii) at the lower lateral chest wall region; (iii) at the left lower thoracic back region; (iv) at the sacral back region; and (v) at the right buttock region. There was also a slash wound at the base of the chin at the floor of the mouth. The forensic evidence was that wounds (ii) and (iii) were the fatal wounds, either of which was sufficient to cause death in the ordinary course of nature. The wounds were consistent with those caused by a knife similar to the one recovered from near the scene.

Soosay gave evidence in his own defence. It was substantially similar to Kuppiah`s evidence on which we have, as the learned judge did, based our narration of the facts so far. It is unnecessary to repeat it. We shall confine ourselves to the crucial events that followed after Kuppiah had kicked and punched the fallen Lim and had then gone to pick up Lim`s handbag. The learned trial judge summarized Soosay`s evidence as follows:

The transvestite [Lim] recovered and got up. He was trying to reach for the fallen knife but before he could do so the accused [Soosay] grabbed it. According to the accused, the deceased then rushed at him. The accused was then holding the knife in his right hand. When the deceased rushed at him, the accused pushed him by his shoulder with his left hand. As the deceased turned to his left the accused stabbed him on his right buttock. The deceased then turned and grabbed the accused`s upper arms. In order to free himself from the deceased, the accused stabbed the deceased at his left

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