Syed Abdul Aziz and Another v Public Prosecutor

• Judge: Warren Khoo L H J
• Judgment Date: 11 September 1993
• Neutral Citation: [1993] SGCA 65
• Citation: [1993] SGCA 65
• Defendant Counsel: Chua Eng Hui (Deputy Public Prosecutor),JB Jeyaretnam (JB Jeyaretnam & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: G Raman (G Raman & Pnrs)
• Date: 11 September 1993
• Docket Number: Criminal Appeal No 5
• Court: Court of Appeal (Singapore)
• Subject Matter: Knowledge of accused as to whether knife was brought along,Murder,Evidence,Witnesses,s 147(3) Evidence Act (Cap 97, 1990 Ed),Impeaching witnesses’ credibility,Criminal Law,Offences,Character and conduct of accomplice,Common intention to commit robbery,Previous inconsistent statement,Whether murder committed in furtherance of that common intention,Accomplice evidence,Whether trial court obliged to make ruling as to witness' credibility at end of impeachment exercise,Whether previous inconsistent statement used to impeach witness becomes substantive evidence,Sufficiency of evidence,Reliability as prosecution witness

Cur Adv Vult

The two appellants, Syed Abdul Aziz bin Syed Mohd Noor (`Aziz`) and Juffri bin Abdul Razak (`Juffri`) were tried before Karthigesu J and Rubin JC on the following charge:

That you, Syed Abdul Aziz bin Syed Mohd Noor and Juffri bin Abdul Razak, on or about 30 May 1988 at about 10.10pm at Smart supermarket, Block 376, Bukit Batok Street 31, #01-116, Singapore, in furtherance of a common intention of you both, committed murder by causing the death of one Tan Stanley, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code, Cap 224.

On 21 July 1992, they were convicted on that charge. Against that conviction they have now appealed.

Two other persons, Jumaat bin Mohamed Sayed (`Jumaat`) and Johari bin Ahmad (`Johari`) had initially been charged together with Aziz and Juffri for the said murder, but the charge against Jumaat and Johari had been reduced to that of abetment of attempted robbery under s 393 read with s 109 of the Penal Code. On 22 January 1992, Jumaat pleaded guilty to this reduced charge. At the same time he consented to 14 other charges (including some for armed robbery) being taken into consideration. He was sentenced to five years` imprisonment and 12 strokes of the cane. Johari claimed trial to the reduced charge. At the commencement of this trial in the court below the charge against Johari was stood down.

Jumaat gave evidence for the prosecution in the trial against Aziz and Juffri. It was evident from the opening address of the prosecuting DPP that the prosecution was relying heavily on Jumaat`s testimony to prove their case against Aziz and Juffri. In the event, when Jumaat was in the witness box, after confirming that he knew Aziz and Juffri, Jumaat told the court that he did not want to testify. It was only after the learned trial judges had warned him that he would be punished for being in contempt of court if he did not testify that Jumaat agreed to do so.

The evidence given by Jumaat, albeit reluctantly, and, as the learned trial judges said in their grounds, in a somewhat disjointed way, was that from 5pm on 30 May 1988 he had been at the void deck of Block 309, Bukit Batok, consuming whisky from a large bottle of Johnny Walker he had bought that day. Johari joined him at about 8pm and together they continued drinking and finished the bottle by about 10pm. Jumaat said he took two Erimin tablets with the whisky. He told the court that he was accustomed to taking Erimin tablets and alcohol and that by 10pm that night, although he was drunk, he was not so drunk as to be unsteady or unable to recognize people or know what they were talking about.

Jumaat told the court that at about 10pm, Aziz and Juffri came to where he and Johari were. At that time he knew Juffri (whom he called `Joe Joe`) but did not know Aziz. Juffri asked Jumaat and Johari to join him and Aziz in committing robbery. Jumaat agreed. Jumaat did not know if Johari also agreed. He said that he did not see either Aziz or Juffri carrying any weapon. He could not recall what exactly was said or discussed. Jumaat testified that the four of them then went to the Smart supermarket which was in front of Block 309 where he acted as a lookout near the cash-on-line machine near the rear door to the supermarket. He said that Johari was also a lookout but he could not see Johari from where he stood. Jumaat said he did not see Juffri or Aziz entering the building.

After a short while Jumaat said he heard the scream of a woman. On hearing the scream he and Johari ran away. While running Jumaat saw Aziz and Juffri come from the direction of the rear door of the supermarket and run in different directions.

Jumaat was arrested by officers of the Tanglin Police Station on 13 August 1988 in connection with some other robbery.

Jumaat`s previous statement

Counsel for Juffri cross-examined Jumaat by reference to a s 122(6) statement made to the police by Jumaat on 3 September 1988 when Jumaat was charged with the murder of the deceased at the supermarket. This s 122(6) statement had been tendered by the prosecution as evidence at the preliminary inquiry and appeared in the preliminary inquiry records. Jumaat admitted making this statement. The statement, which was set out in full by the learned trial judges in their grounds of decision, read as follows:

When I was sitting at the ground floor of my block, I saw `Joe Joe` and Abdul Aziz approach us. At that time, I was with Johari. I saw `Joe` carried a knife. I asked what he intended to do with the knife. He put a finger at his mouth and asked me to keep quiet about it. `Joe` was all the time looking at Smart supermarket. I strongly believed that `Joe Joe` was planning to rob Smart supermarket. `Joe Joe` asked Johari and I to act as lookout for them to commit robbery at Smart supermarket when it is closed for business. At about 10.00 pm when the door was closed, the four of us walked towards the supermarket. `Joe Joe` and `Aziz` walked ahead of Johari and I. On reaching the rear entrance of the supermarket where there is a POSB cash-on-line machine, `Joe Joe` and `Aziz` went in to rob the supermarket while Johari and I remained outside as lookouts. Shortly, I heard a lady screaming in the supermarket. I saw `Joe Joe` and `Aziz` running out of the supermarket and Johari and I also ran off. I lost track of `Joe` and `Aziz` when we ran off. Johari and I later separated and headed for home. That is all.

Counsel cross-examined Jumaat on the inconsistencies between his evidence in court and the contents of the statement. At counsel`s request the statement was admitted in evidence and marked D1.

Counsel submitted that the discrepancies between Jumaat`s s 122(6) statement and his evidence in court were material discrepancies and that as Jumaat had not given any satisfactory explanation for these discrepancies it was incumbent on the learned trial judges to have ruled (at the conclusion of the impeachment exercise) that the credit of Jumaat had been impeached. He submitted that had the learned trial judges made this ruling there would be no evidence before the court implicating Juffri and Juffri`s defence would not have been called.

Counsel submitted that the failure to make this ruling indicated that the learned trial judges had failed to adequately recognize the purpose for which the statement was referred to and there was therefore a danger that the statement might have been treated by the learned trial judges as evidence corroborative of the evidence Jumaat gave in court. To illustrate this possibility, counsel referred to the grounds of decision where the learned trial judges referred to the statement being `proffered in evidence` and as being `admitted` and marked D1.

In support of these submissions, counsel referred us to the cases of Jones v R , and Muthusamy v PP . In Jones v R , Murray-Aynsley CJ had this to say in respect of the use of statements given to the police by a witness in the cross-examination of that witness:

The only point on which we think it necessary to make any observation is in respect of the use of statements made to the police in cross-examination of the persons who had made them.

These statements can only be used to impeach the credit of the witnesses. That is to say, when these statements have been proved, they do not become independent evidence of facts contained in them.

In Muthusamy v PP , Taylor J took a similar view. In his judgment at p 58 he said:

I will now try to explain the combined effect of ss 124 of the Procedure Code and 145 of the Evidence Ordinance regarding police investigation statements.

The basic principle is that the court is to decide the facts on the sworn evidence given in court. What a witness said on some other occasion is prima facie irrelevant and if unsworn is prima facie less reliable. But if the witness has given one version of the incident to the police and gives a different version to the court, it becomes a question whether his evidence can be relied on and therefore the former statement can - by the prescribed procedure - be used to impeach his credit.

...

If the witness admits making the former statement, or is 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 can, then his credit is saved, though there may still be doubt as to the accuracy of his memory.

In our view, Muthusamy v PP does not support the proposition advanced by counsel that the learned trial judges should have made an immediate ruling on the credibility of Jumaat. Although Taylor J in Muthusamy v PP took great pains to set out the procedure for impeaching credit, he did not say that the court was obliged at the completion of the exercise to make a ruling whether the credit was impeached or not. There can of course be cases where a court confronted with a materially inconsistent previous statement made by a witness is prepared at that stage to indicate that the witness is not worthy of credit and that the evidence of that witness will be disregarded but that does not mean that the court is obliged in every case to make such an immediate ruling. We would, in this context, refer to what was said by this court in Somwang Phattanasaeng v PP at p 861:

For some inexplicable reason, at that point of time counsel for the appellant strenuously urged the trial judges to make a ruling whether the credit of the appellant had been impeached. The trial judges declined, and in our view, rightly, and held that they would determine that issue at the close of the case. There is no reason whatsoever why the trial judges should make any ruling at that stage as requested by counsel. In our opinion, counsel was in error. The use of the s 121 statements to impeach the credit of the appellant was part of the cross-examination by the

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