Zailani bin Ahmad v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 23 November 2004
• Neutral Citation: [2004] SGCA 56
• Docket Number: Criminal Appeal No 4 of 2004
• Date: 23 November 2004
• Published date: 24 November 2004
• Year: 2004
• Plaintiff Counsel: Ismail bin Hamid (Ismail Hamid and Co) and Sadari bin Musari (Sadari Musari and Partners)
• Citation: [2004] SGCA 56
• Defendant Counsel: Janet Wang (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Special exceptions,Appeal,Procedure,Diminished responsibility,Appellant claiming substantial impairment of mind at time of offence,Trial judge not making finding on issue of common intention,Appellant convicted of charge of murder in furtherance of common intention,Whether Court of Appeal can cure such errors,Whether appellant satisfying three limbs of exception to show diminished responsibility at time of offence,Whether error occasioning substantial miscarriage of justice,Section 300 Exception 7 Penal Code (Cap 224, 1985 Rev Ed),Criminal Procedure and Sentencing,Voir dire,Trial judge remarking that appellant had not created any doubt that his statement was procured by threat,Charge against appellant framed in terms of common intention,Criminal Law,Section 54 Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Whether trial judge correct in making such remark,Whether trial judge erring in law

23 November 2004

MPH Rubin J (delivering the judgment of the court):

Background

1 The appellant, Zailani bin Ahmad, was tried in the High Court on the charge that he:

on or about the 28^th day of June 2003, between 1.00 pm and 6.00 pm, at No 39B Lorong 28 Geylang, Singapore, together with one Rachel alias Fatimah alias Leni, in furtherance of the common intention of [he] and Rachel alias Fatimah alias Leni (as amended), did commit murder by causing the death of one Chi Tue Tiong, male/68 years old, and [he has] thereby committed an offence under section 302 read with section 34 of the Penal Code, Chapter 224.

At the conclusion of the trial, the appellant was convicted on the charge and sentenced to death. The appellant brought the appeal against the conviction and sentence.

Facts

2 The deceased, Chi Tue Tiong, was a caretaker of two apartments (37C and 39B) in an apartment block at Lorong 28 Geylang. His living quarters, which contained a bed and a chest of drawers, were an area at a staircase landing in apartment 39B. On 28 June 2003, the deceased’s employer and some other persons found him lying on his bed, dead and bloodied. The police were alerted. At the scene, the investigation officer, Inspector David Ang Yeoh Tee (“Insp Ang”), found the chest of drawers in the room of the deceased smeared with blood. The hinges on the top two drawers had been tampered with,[1] and the single drawer on the second row had been pulled out. A bloodstained wooden pestle and a spanner were found inside this drawer.[2] A hammer and a bloodstained axe were found under the chest of drawers,[3] and a fruit peeler was found about two metres away from the body.[4] Insp Ang also spotted two bloodstained shoeprints on the floor.[5]

3 In his autopsy, the pathologist noted that there were injuries found on the deceased’s head, upper limbs, thorax and lower limbs. The most serious injuries were eight fractures on the head, and indications of at least nine separate blows delivered with force to the head.[6] The pathologist was of the opinion that the fractures and the underlying brain injuries suffered by the deceased were not due to a fall,[7] but were consistent with being caused by multiple blunt force trauma to the sides and the back of the head[8] of sufficient severity to cause death.[9] The injuries to the upper limbs were also caused by blunt force trauma and were defensive in nature. The pathologist certified the cause of death as “intracranial haemorrhage and cerebral contusions with fractured skull”.[10] At trial, the pathologist was shown instruments recovered by the police from the scene of the crime, namely the pestle, axe, spanner and hammer.[11] The pathologist opined that the injuries could have been caused using the pestle, the handle of the axe or the hammer.[12]

4 The police received information that a male Malay, known as “Zailani”, was believed to have been involved in a case of murder in Geylang.[13] Acting on this information, on 30 June 2003, a team of police officers arrived at Changi Village, where they spotted a male Malay (the appellant) who fitted the description given to them. They approached the appellant and detained him. The appellant was then brought to the Police Cantonment Complex, where an officer from the Special Investigation Section interviewed him,[14] following which the appellant gave this statement:[15]

I have no money. I was arrested earlier for selling illegal VCD but I did not get any money for selling it. My family could not give me any money. On [sic] about two days ago, I could not remember the date, I could not remember the place but I was at a room in Geylang Road. I could be able to show the place. I was together with my girlfriend ‘Racal’ who is a female Indonesia [sic] in that room. Both of us have no money to pay the rent for staying at that room. We had been staying in that room for about one month plus. Racal suggested we rob the old male Chinese who looked after the rooms there. Racal told me the old Chinese man lived a room below our floor. I was drunk. Two of us went down. Racal opened the door. Two of us went inside. Actually Racal had retrieved a wooden pole from our room. I do not know where she retrieved this wooden pole from in our room. She handed the said pole to me before we went down. I beat up the old Chinese man inside with the pole and after that I could not remember what happened. Racal pulled my hand out from the room. We left the place but I could not remember where we went to.

5 Evidence adduced established that the appellant was staying in a room in apartment 37C, together with his Indonesian girlfriend, one Rachel alias Fatimah alias Leni (“Rachel”), referred to as “Racal” in the appellant’s statement. Rachel was not apprehended as police investigations revealed that she had left Singapore for Batam on 29 June 2003.

6 In the event, the police managed to interview Rachel in Batam on 30 June 2003[16] and the information they received from her led them to a flat at Block 76 Telok Blangah Drive #05-282,[17] where they met one Kassim bin Rabu (“Kassim”)[18] and his wife, Supiah bte Awang (“Supiah”). Supiah told the police that the appellant had visited the flat on 28 June 2003 with his Indonesian girlfriend and had borrowed a pair of shoes, leaving a pair of “Pazzo” brand shoes (“the Pazzo shoes”) and a slingbag in the apartment.[19] The police took possession of these items.

7 Forensic examination confirmed that the shoeprints found at the scene of the crime were consistent with those made by the Pazzo shoes.[20] Additionally, it was found that the DNA profile of the blood on the left Pazzo shoe matched the DNA profile of the deceased’s blood.[21]

8 At the trial, when the Prosecution sought to admit in evidence the statement recorded from the accused, it was objected to on the ground that it was obtained through threat, and not made voluntarily. A voir dire was conducted. In the result, the trial judge held that the appellant’s version of the events could not be believed and that he did not create any doubt that his statement was procured by any threat. The statement was therefore admitted in evidence as having been voluntarily made by the appellant. The appellant was eventually called to make a defence to the charge.

9 The main thrust of the appellant’s defence at the trial was that he was suffering from diminished responsibility at the time of the offence. As such, his testimony in court focused on issues pertaining to his mental capacity. The appellant claimed that he had a history of insomnia, and heard voices.[22] He had seen a general practitioner, Dr John Heng (“Dr Heng”), on 29 April 2003. Dr Heng testified that the appellant complained of insomnia and was prescribed 30 nitrazepam tablets (“Dima tablets”). He was told to take two tablets a night. Apart from the Dima tablets, the appellant also consumed “Ice”, Roche 15 and Subutex tablets from April to June 2003.[23] On 27 June 2003, the appellant again went to see Dr Heng because he was feeling depressed.[24] That night, he took two Dima tablets and three big bottles of beer.[25] The next morning, he consumed another 12 Dima tablets because he was still feeling depressed and he was short of cash.[26] In relation to the commission of the offence, the more pertinent aspects of his evidence were as follows:[27]

Q: So after taking the 12 tablets of Dima, what happened after that?

A: After I took 12 tablets of Dima, I was unconscious of what is happening around me. When I regained consciousness, I was ransacking Ah Pek’s locker. I do not know what I was looking for actually. I think I was looking for money. I only realised when Rachel called me saying “Abang, watch your back, Ah Pek wants to beat you up”.

When I turned around I saw Ah Pek swinging spanner at my head and I managed to avoid the spanner; I ducked my head. I stood up and I beat him up.

Q: Do you know why did you come to be in Ah Pek’s room?

A: I was puzzled. I don’t know why I was there. I didn’t know what I was looking for.

I think I was looking for money. When I opened up the drawer, I was … my vision was blur. I …

My vision was blur. I couldn’t see what was inside the drawer. I had a blackout.

Q: When you were at Ah Pek’s locker, were you aware you had … or do you know if you had anything in your hand, holding anything? Were you holding anything?

A: I was … when I was opening the drawer, I had a key with me.

I tried to open the drawer but I can’t open. Then Rachel shouted to watch my back. Ah Pek wanted to beat me up with a spanner. I managed to duck and then I stood up. Then I beat him up. He …

Q: Can you recall anything else after that?

A: I remembered he fell down and I took the spanner from him. I took the spanner to open the drawer. I remembered damaging the locker, trying to open the locker.

I recall Rachel asked me to get out of the room because there’s someone pressing the door bell.

So I quickly get out of the room to return to my room. I can’t remember where I go to but I got out of Ah Pek’s room. I returned to my room to take my things, then I ran away. That’s all.

10 The appellant went on to testify that, subsequently, he woke up at a coffee shop in Kallang,[28] after which he went to Kassim’s house[29] with Rachel.[30] He did not know what happened to Rachel after that,[31] but recalled having slept in a “jungle” in Marsiling with an Indonesian man.[32] Later, the Indonesian man and the appellant left for Changi because the Indonesian man had a sampan (a boat) there.[33] The appellant claimed that on the way to Changi, he was in a state of slumber when he was walking, as well as when he was in the mass rapid transit train and the bus.[34] When he alighted from the bus, he was arrested.[35]

11 He admitted to having had the intention to steal the deceased’s money.[36] He mentioned that the intention was formed when he was feeling drowsy and high from the tablets he had consumed.[37] However, when his counsel...