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Suit No:	Cr App No 9/2006
Decision Date:	12 May 2008
Court:	Court of Appeal
Coram:	Choo Han Teck J, V K Rajah JA, Woo Bih Li J
Counsel:	Rupert Seah (Rupert Seah & Co) and B Uthayachanran (B Uthayachanran & Co) for the appellant, Lau Wing Yum, Vincent Leow and Tan Wee Soon (Attorney-General's Chambers) for the respondent

Subject Area / Catchwords

Statutory Interpretation Evidence Criminal Law Criminal Procedure and Sentencing Courts and Jurisdiction

Judgment

V K Rajah JA:

Introduction

1          This is the appeal of Lee Chez Kee (“the appellant”) against his conviction of a charge of murder with common intention under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”). This appeal raises difficult issues of law relating broadly to the areas of evidence and criminal common intention. While this appeal affords the opportunity to clarify these areas of law, I am fully aware that, at the end of the day, it is the result of the appeal which must remain at the forefront of the decision, given the nature of the offence and, more importantly, the irreversible punishment that will be visited upon the appellant should his appeal be dismissed. To facilitate understanding, I first set out the schematic arrangement of the contents of this judgment followed immediately by a brief background of the facts including the trial proceedings below:

A more detailed exposition of the relevant facts and issues now follows.

Background facts

2          More than a decade ago on the morning of 14 December 1993, two police officers found Prof Lee Kok Cheong (“the deceased”) lying dead in the master bedroom of his house at 20 Greenleaf Place, Singapore. Police investigations revealed that three persons, one of whom was the appellant, were involved in the death of the deceased. However, the appellant remained at large for almost 13 years and was apprehended in Malaysia only in 2006. Prior to the appellant’s arrest, his accomplices, Too Yin Sheong (“Too”) and Ng Chek Siong (“Ng”), were convicted and sentenced in 1998 for their involvement in the deceased’s death. Too was convicted of murder and sentenced to suffer death, whereas Ng was convicted and sentenced to a total of eight years’ imprisonment and ten strokes of the cane for one count of robbery, five counts of theft and 11 counts of cheating, all with common intention.

The parties’ cases at the trial below 

3          After the appellant’s arrest in 2006, he was extradited to Singapore to stand trial in the High Court on the following charge (“the Charge”):

That you …

between 12.00 p.m. on the 12th day of December 1993 and 7.03 a.m. on the 14th day of December 1993, at 20 Greenleaf Place, Singapore, together with one Too Yin Sheong and one Ng Chek Siong, in furtherance of the common intention of you all, did commit murder by causing the death of [the deceased], male then 54 years old, and you have thereby committed an offence punishable under section 302 read with section 34 of the Penal Code, Chapter 224.

4          During the course of the trial, the trial judge heard full and comprehensive arguments from both sides. As it is trite law that an appellate court should not disturb the findings of fact of a trial court without clear evidence that such findings are unsupported by the evidence, I propose to set out the primary contentions advanced by either party before the trial judge and the reasons for his decision. I should also mention that as the trial judge has ably summarised the contentions presented in his grounds of decision (see PP v Lee Chez Kee [2007] 1 SLR 1142 (“Lee Chez Kee”)), I will gratefully adopt, with minor modifications, his summaries.

The Prosecution’s case below

(1)        The discovery of the deceased’s body

5          On the morning of 14 December 1993, two police officers (“the police officers”) found the deceased’s body in the master bedroom of his house. The police officers had been instructed by their operations room staff to proceed to the deceased’s house following a call received from the deceased’s neighbour at about 7.00am that day. The neighbour had contacted the police when she noticed that something was amiss at the deceased’s house. The lights on the ground floor remained switched on, the main sliding door and main gate of the house were ajar and the interior light of the car parked at the porch had also been left on.

6          According to the police officers, they noticed, on their way into the house, that the glove compartment of the deceased’s car, a red Honda Concerto, had been opened and appeared to have been rummaged. Upon entering the deceased’s house, they also observed that the hall on the first storey and two rooms on the second storey had been ransacked. The deceased’s body was found in the third and last room on the second storey in a supine position with a pillow placed over his face. His hands were above his head and his wrists tied together with a white electrical cord. His feet were bound at the ankles with a black belt. When the pillow was lifted up, the police officers observed that the deceased’s denture protruded from his mouth.

7          Deputy Superintendent Low Hock Peng (“DSP Low”), who was then a senior investigating officer attached to the Criminal Investigation Department (“CID”), attended at the scene shortly thereafter. DSP Low found a bent knife, with a length of about 18cm from its tip to its hilt, beneath the deceased’s body. A chopper was also found underneath some papers on the study table in the first storey hall.

8          The pathologist, Dr Paul Chui, gave evidence that a black electrical cord was found across the front of the deceased’s neck. The cord had not been knotted and was not wound completely around the back of his neck. A stab wound was observed at the left side of the deceased’s neck. Bruising to the right side of the deceased’s face was noted. More specifically, in his report, Dr Chui noted some 18 external injuries caused to the deceased on his head, neck, upper limbs, abdomen, back and lower limbs. It is without any doubt that the deceased was subjected to callous abuse and brutish violence before he met his death.

9          Dr Chui estimated that death had occurred about one to two days before 14 December 1993, when the deceased’s body was found. The post-mortem examination revealed that the cause of death was asphyxia due to strangulation, which had been effected using the black electrical cord found around the deceased’s neck. The stab wound sustained at the deceased’s left anterior neck was not an acutely fatal injury, and was more consistent with an injury caused by the knife, which was smaller and narrower than the chopper. Though the knife was bent when it was found, Dr Chui’s evidence was that he would not have expected this bending to have occurred in the course of causing the stab wound to the deceased’s neck. The force required to bend the knife would have been considerably greater than the force that would have been required to inflict the stab wound that was found. According to Dr Chui, it was possible for the stab and strangulation wounds to have been inflicted by one person.

(2)        Events before and after the robbery

10        The deceased’s brother, one Lee Kok Fatt (“Lee”), gave evidence that he and his family had gone to the deceased’s house on the morning of 12 December 1993 (“the material date”), at about 10.00am. The purpose of their visit was to collect Chinese New Year red packets from the deceased to distribute these on his behalf to Lee’s children and their other relatives during the Chinese New Year as the deceased would be away in England then.

11        According to Lee, the deceased had specifically instructed Lee’s wife to visit him between 10.00am and 11.00am on the material date as he was expecting friends later that evening. When they met on the morning of the material date, Lee asked the deceased which friends he was expecting, to which the deceased replied that it would be pointless to tell Lee who “his two friends” were since Lee would not know them. Lee and his family left the deceased’s house sometime before 12.00pm. That was the last time Lee saw or spoke to his brother.

12        On the next day, ie, 13 December 1993, a number of Network Electronic Transfer System (“NETS”) transactions were executed using the deceased’s Cash-On-Line (“COL”) card. The appellant was linked to a number of these transactions.

13        The deceased’s COL card was first used to purchase a number of items at Parkway Parade Shopping Centre (“Parkway”). The first transaction took place at Jay Gee Enterprise Pte Ltd (“Jay Gee Enterprise”), where the deceased’s card was used to purchase three pairs of “Levi’s” jeans, a T-shirt and a belt. One of the sales assistants then on duty at Jay Gee Enterprise (“Ms Lim”) gave evidence in court that these purchases were made by three male Chinese. From their use of language, Ms Lim assumed that the three males were Malaysians. The store records also documented that a sale had been made to a male Malaysian of about 20 years of age.

14        Ms Lim had, in March 1994, positively identified a picture of the appellant (“picture B”) as one of the three men in question. However, she had been unable to remember if Too or Ng were the other two persons present with the appellant on that day. According to Ms Lim, though she had spoken to all three persons, she remembered the person in picture B, ie, the appellant, particularly vividly as she had spoken “quite a lot” with him. Ms Lim also gave evidence that the male in picture B was the person who had handed her the COL card with which the purchases were made and was also the person who had keyed in the personal identification number (“PIN”) for the card.

15        Ms Lim additionally testified that the person shown in picture B and the two other accompanying Chinese males returned to the store again the next day, ie, 14 December 1993, to exchange some of the purchases they had made. Though Ms Lim admitted that she was no longer able to affirmatively identify any of the three Chinese men who had been present at the store on those two occasions, she affirmed on re-examination that on the date when she identified the appellant in 1994, she clearly remembered that the Chinese male she identified had been present at the shop on two dates, namely, 13 and 14 December 1993. Ms Lim further testified that she had, in the course of identifying the photographs in 1994, informed the investigating officer, DSP Low, that the appellant and his two companions had returned to the shop again on 14 December 1993.

16        Ms Lim’s evidence regarding the appellant’s return to the shop on 14 December 1993 was not confirmed by the evidence of DSP Low. According to DSP Low, Ms Lim did not mention this additional fact when she identified the appellant as the user of the deceased’s COL card on 13 December 1993. Apart from Ms Lim, the Prosecution also called one of her former colleagues, See Ching Li Veronica, who had also attended to the three Chinese customers on 13 December 1993. This witness was unable to recall the identities or the number of persons who were present when those purchases were made.

17        Apart from the purchases made at Ms Lim’s shop, one pair of black men’s “Balene” brand shoes and three pairs of “Dr Marten” brand shoes were later purchased from two other shops in Parkway. The sales assistant from the shop where the “Dr Marten” shoes were purchased (“Yeo”) gave evidence that three Chinese men had entered the shop and had tried on each of the three pairs of shoes. Payment had been made by a male Chinese whom Yeo subsequently identified as Too. Yeo was unable to identify the other two Chinese men who were together with Too. Apart from the purchases at Parkway, the deceased’s COL card was also used to purchase a pair of “Reebok” sports shoes and three pairs of socks at a store in City Plaza. The shop attendant was unable to remember who had effected the NETS transaction or whether that person had been alone or, if accompanied, with how many others.

18        On the following day, ie, 14 December 1993, further purchases were made using the deceased’s COL card. Four T-shirts were purchased from a shop in People’s Park Complex. The shop assistant (“Irene Tan”) gave evidence that two male Chinese had entered the shop, and that one of the male Chinese had picked out the relevant items and paid for them by a NETS transaction using the deceased’s COL card. Irene Tan, in June 1994, identified Too as the person who had made the payment and Ng as Too’s companion on that day.

19        Though the records of the deceased’s bank accounts documented a number of other NETS transactions that were executed on 13 and 14 December 1993, no witnesses were called to give evidence regarding those transactions. The Prosecution informed the court in the course of the trial that it would not be seeking to rely on those transactions. The trial judge therefore paid no regard to the additional NETS transactions exhibited in the statement for the deceased’s Post Office Savings Bank account during the course of those two days.

(3)        The appellant’s statements

20        Following his arrest in Malaysia and extradition to Singapore, the appellant made a total of four written statements (under the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”)). During the trial, the Prosecution sought to introduce these statements in evidence. No challenge to admissibility was mounted by the appellant and the trial judge accordingly admitted these four statements, which were as follows:

(a)        a statement made under s 122(6) of the CPC dated 18 February 2006 (“the appellant’s cautioned statement”);

(b)        a statement made under s 121 of the CPC dated 21 February 2006 (“the appellant’s first long statement”);

(c)        a second statement made under s 121 of the CPC dated 22 February 2006 (“the appellant’s second long statement”); and

(d)        a third statement made under s 121 of the CPC dated 27 February 2006 (“the appellant’s third long statement”).

21        In some of the material portions of these statements, Too is referred to as “Nelson” and Ng as “Koo Neng” or “Koo Nerng” (tortoise egg):

The appellant’s cautioned statement

I went there [the deceased’s house] with Nelson and Koo Neng. I was asked by Nelson to join him to rob his relative. I did not know what place was that. Nelson and I tied up a man on the second floor. After that, Nelson and I searched the house for valuables. I cannot recall what did I take. After taking the valuables, I went to the hall on the ground floor to wait for Nelson. I did not know the man died. I also cannot recall what I was given after the robbery.

The appellant’s first long statement

Question:    What do you know about the death of Prof Lee Kok Cheong, which occurred between 3.00 pm on 12 Dec 1993 and 7.03 am on 14 Dec 1993 at No. 20 Greenleaf Place, Singapore?

Answer:

            At the beginning of 1993, I came to know the two friends, ‘Koo Nerng’ and ‘Nelson’. These two came to visit me before the present case took place. We went for tea, during which time ‘Nelson’ told me that he was going to a ‘relative’s place to move something. Actually, ‘Nelson’ revealed that he was going to rob this ‘relative’.

2          The very next day, ‘Koo Nerng’, ‘Nelson’ and myself went to the place which I was not familiar with. I am not sure of the date now. On arrival, ‘Nelson’ and I entered a terrace house. It was a residence of ‘Nelson’s so-called ‘relative’. We went in and chatted. The victim served us tea. During the chat, ‘Nelson’ told me that the victim had a lot of antiques. Thereafter, I requested the victim to take me upstairs to view his stuff. However, he told me to wait downstairs and did not bring me up. Earlier on, before my request and while we were still chatting, ‘Nelson’ had gone to the kitchen to get hold of a knife. ‘Nelson’ was more familiar with the place and when he emerged from the kitchen, he went to confront the victim with a knife. The victim was taken up to the second storey. Together with ‘Nelson’, the two of us took him upstairs. He was rather big sized. Next, I bound his hands with something. I cannot remember what I had used to bind him. After this, ‘Nelson’ and myself searched his bedroom. After searching the premises upstairs, I went downstairs and searched the place downstairs. After I had finished, I called out [to] ‘Nelson’ to leave. He was still upstairs. He came downstairs and we left together.

3          From there, we went straight to Katong, at which time, ‘Nelson’ suddenly produced a cash withdrawal card. There were two automatic cash machines at that place outside the Katong Shopping Complex. ‘Nelson’ slotted in the card he had shown me and he proceeded to withdraw a sum of either $1000/- or $200/-. The cash was withdrawn successfully. When he was pressing the buttons at a machine, I asked him what he was doing. He replied that the card belonged to the victim and he was withdrawing money with the card. After the cash withdrawal, the money was split among the three of us, namely, ‘Nelson’, myself and ‘Koo Nerng’. I think the money was divided equally among us. After this, I went back to my residence in Joo Chiat area. The other two went back to their respective residences.

4          The following day, I telephoned ‘Nelson’ and asked him to meet me. ‘Nelson’ and ‘Koo Nerng’ came and met me at Joo Chiat. After this, we went shopping using the card which was still with ‘Nelson’. We went to this shopping place in Marine Parade. I cannot remember what the place is called. We bought garments and shoes. After the shopping, we split the stuff and went separate ways. ... After we parted ways, I did not make contact with them. I continued my work as usual in the days that followed. …

The appellant’s second long statement

...

Q3:      You are now shown two photographs numbered ‘1’ and ‘2’ of male persons. Do you know any of them?

A3:       Photograph number 1 shows ‘Nelson’ (Recorder’s note: refers to Too Yin Sheong). The person in photograph 2 is ‘Koo Nerng’ (Recorder’s note: refers to Ng Chek Siong).

Q4:      You have mentioned in paragraph 1 of your statement recorded on 21 Feb 2006 that ‘Nelson’ revealed that he was going to rob his ‘relative’. How long have you known ‘Nelson’ already when he revealed that to you and did he reveal to you how he was going to carry out the robbery?

A4:       I have known him for a few months then. During our discussion about the robbery, I said that we would tie up the victim before getting his things.

…

Q10:    You have mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that you requested the victim to take you upstairs to view his stuff. Can you elaborate why and what you meant by ‘stuff’?

A10:     I meant his antiques. The intention was to bind him or tie him up when he [went] upstairs so that we could rob him.

Q11:    You have mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that ‘Nelson’ had gone to the kitchen to get hold of a knife. Can you describe the knife?

A11:     It is a fruit knife. The knife is small, about half a foot long. It has a small handle.

…

Q13:    You have mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that ‘Nelson’ and you searched the victim’s bedroom and the premises upstairs. Can you elaborate [which] were the premises that you and ‘Nelson’ searched and was there anything taken either by you or ‘Nelson’?

A13:     Besides the bedroom, ‘Nelson’ and I [had] also searched another bedroom upstairs. We took some valuables from both the bedrooms. I cannot recall what the valuables [were].

Q14:    You have mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that after searching the premises upstairs, you went downstairs and searched the place downstairs. Can you elaborate on the victim’s condition when you left?

A14:     He was still moving when I came downstairs. ‘Nelson’ had asked him questions in English and he [the deceased] had replied to him [“Nelson”].

…

Q17:    You have mentioned in paragraph 3 of your statement recorded on 21 Feb 2006 that ‘Nelson’ withdrew some money from the automatic cash machines at Katong using a cash withdrawal card belonging to the victim. Can you elaborate how many times the victim’s cash withdrawal card was used to withdraw money and how did you all know the card PIN number?

A17:     All in, I think the card was used to withdraw cash three to four times. ‘Nelson’ had asked the victim for his PIN number. I had not known that ‘Nelson’ [had] got hold of the victim’s card until then.

Q18:    You have mentioned in paragraph 4 of your statement recorded on 21 Feb 2006 that you telephoned ‘Nelson’ the following day and asked him to meet you. Can you elaborate why you asked ‘Nelson’ to meet you?

A18:     I had asked him to meet me for tea at Joo Chiat, the place where I was residing. My idea was to have tea with him and during the chat, I ... asked him whether the victim’s card could still be used. I think he said that he was not sure but then he suggested that we could try it out. I do not remember much about it but we later went shopping. We managed to buy things with the card.

…

Q21:    Besides ‘Nelson’ who got hold of a knife in the kitchen, I put it to you that you also got hold of a knife from the kitchen. What have you got to say?

A21:     Actually, soon after ‘Nelson’ got hold of a knife from the kitchen, he had gone into the hall and passed the knife to me. With this knife, I confronted the victim with ‘Nelson’ looking on close by.

Q22:    You have mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that ‘Nelson’ confronted the victim with a knife when he emerged from the kitchen. Your answer for Q21 states that you confronted the victim with ‘Nelson’ looking on close by. Can you explain the difference?

A22:     Actually, after I took the knife from ‘Nelson’, I ... pointed it at the victim’s stomach region. I pushed him and told him to go upstairs. ‘Nelson’ was looking on then.

Q23:    Can you explain how the victim sustained the injuries on his body?

A23:     I ... landed a few punches on him. I cannot remember exactly on which part of his body I had hit. When we were downstairs, that was what I did. ‘Nelson’ did not hit him then. When we were upstairs, I bound his hands. We did not hit him when we were upstairs.

…

Q25:    Did the victim put up any struggle during the hold-up?

A25:     Yes. He did. He put up a struggle before and after I tied him up.

The appellant’s third long statement

…

Q28:    Your answer for Q6 relates to the arrangement made between ‘Nelson’, ‘Koo Nerng’ and you to rob ‘Nelson’s relative. You have also mentioned in paragraph 2 of your statement recorded on 21 Feb 2006 that ‘Nelson’ had gone to the kitchen to get hold of a knife. Was this also part of the arrangement?

A28:     Yes. I believe so. I think ‘Nelson’ mentioned about getting a knife. We had gone there empty-handed. Either ‘Nelson’ or myself have mentioned about threatening the victim with a knife.

…

Q30:    Your answer for Q25[in the appellant’s second long statement] states that the victim put up a struggle before and after you tied him up. What did you and ‘Nelson’ do when the victim was struggling?

A30:     When he was struggling, he was also talking to ‘Nelson’ in English. I told him to keep quiet and to stop moving. ‘Nelson’ was beside us at that time. I cannot recall what ‘Nelson’ was doing then.

Q31:    You have mentioned in your statement recorded on 21 Feb 2006 that you bound the victim’s hands with something. Besides the hands, did you or ‘Nelson’ tie up other parts of the victim’s body?

A31:     Perhaps the legs. I cannot remember what was used by ‘Nelson’. After I had tied the victim’s hands, I put him on the bed and I proceeded to search the bedroom. ‘Nelson’ also searched the room. After the search, I went downstairs.

…

Q34:    Do you have anything else to say?

A34.     I now recall that ‘Nelson’ seemed to have taken something to cover the victim’s face. It was during the search of the victim’s bedroom that ‘Nelson’ did so. No force was exerted. The thing was merely put on his face. It was something taken from the bed itself, something that was light. After the search, I went downstairs. When I was downstairs, I think I [had] called out to ‘Koo Nerng’ and asked him to enter the house. I do remember now that I have indeed asked ‘Koo Nerng’ to enter the premises. I told him to help in searching the premises downstairs and to move the things. ‘Koo Nerng’ came in for a short time. He stayed downstairs and did not go up. He looked around the place and asked where the victim was. I then called out to ‘Nelson’ to leave. That was roughly what happened and then we left. That’s all.

Q35:    You have mentioned in A34 that ‘Nelson’ covered the victim’s face with something light taken from the bed. Was this part of the arrangement?

A35.     This was not part of the arrangement. I do not know why ‘Nelson’ had done this. Perhaps because the victim kept talking and it disturbed him.

[emphasis added in bold italics]

(4)        Too’s statements

22        It is also significant to note that (for reasons to follow) in the proceedings below, as part of its case, the Prosecution additionally sought to admit four written and two oral statements of Too, all of which were made before his execution (collectively, “Too’s statements”). The Prosecution had submitted before the trial judge that these statements were admissible under s 378(1)(b)(i) of the CPC, notwithstanding the fact that Too was an accomplice since s 378(1)(b)(i) provided for the admission of out-of-court statements made by a dead person. In the course of his written grounds of decision, the trial judge acknowledged the “somewhat unusual prospect” of trying the appellant for a charge of common intention when both Too and Ng, his accomplices, were not available as witnesses (see Lee Chez Kee ([4] supra) at [3]). Too had been executed in April 1999 and Ng could not be located after having been repatriated to Malaysia in October 2003. It is only necessary at this juncture to mention that the trial judge admitted Too’s statements.

23        The above formed the gist of the Prosecution’s case before the trial judge.

The appellant’s case below

24        As the trial judge was satisfied that the evidence adduced by the Prosecution had established a prima facie case against the appellant, the trial judge called upon the appellant to enter his defence. The appellant elected to give evidence, and was the defence’s only witness. Notably, he did not, in the course of his oral testimony, dispute his presence at the deceased’s house on 12 December 1993, and admitted that he had gone to the deceased’s house with the intention of committing robbery. The main bone of contention surrounded his specific involvement in the stabbing and asphyxiation of the deceased.

25        According to the appellant, he had first become acquainted with Too when he was working at Apollo Nightclub in or about 1990. He had in turn met Ng when they sold durians together. The appellant claimed that Too and Ng were closer friends as they often spent time together whilst the appellant spent most of his time with his girlfriend.

26        According to the appellant, Too had asked him out to a coffee shop near the appellant’s house and had asked if he was interested in robbing Too’s wealthy relative. In the course of giving his testimony, the appellant clarified that whilst he had initially stated in his first long statement that Too had asked him out to the coffee shop on the day preceding the robbery, Too’s invitation had in fact occurred on the same day as the robbery. During examination by his counsel, the appellant initially claimed that no details or plans about the robbery had been discussed, and that Too had merely mentioned that they would rob his relative. However, he subsequently conceded during cross-examination that he had in fact asked Too and Ng about his role in the robbery. Nevertheless, he insisted that they had not talked in detail as to how they were going to rob the deceased. Again, while he initially testified during cross-examination that there was no discussion about either tying the deceased up or using a knife to threaten the deceased, or even about what they were to do if the deceased resisted or retaliated, he subsequently conceded, upon being shown his first long statement, that there was indeed a pre-arranged plan to tie up the deceased and to threaten him with a knife.

27        The appellant acknowledged that he had also asked Too whether he was worried that his “relative” would be able to recognise him. Too had supposedly been very confident, and had told the appellant “to believe him”. The threesome then got into a car driven by Ng and proceeded to the deceased’s house. The appellant affirmed that he had quarrelled with Too during the journey to the deceased’s house. The quarrel had probably arisen because he, rather than Too, was afraid of being recognised. However, as Too was confident, the appellant trusted him. During this quarrel, Ng mentioned that he did not want to go in. They did not bring any weapons with them in the car.

28        When they arrived at the deceased’s house, it was still sometime in the afternoon. Ng dropped the appellant and Too off a few houses away from the deceased’s house, and remained in the car. When they arrived at the front gate of the deceased’s house, Too rang the doorbell. The deceased came out to meet them, following which Too conversed with the deceased in English before they all proceeded into the house. It was only after they entered the house that Too introduced the appellant to the deceased. The appellant claimed that he was unable to understand how Too had introduced him as the entire introduction had taken place in English, a language which the appellant had only a rather rudimentary grasp of.

29        The deceased then invited Too and the appellant into the living room and served them drinks. The appellant claimed that Too later passed him a knife which Too had taken from the kitchen, whereupon the appellant then employed it to threaten the deceased. Upon hearing that he was being robbed, the deceased put up a struggle. On the appellant’s own account, he then stabbed the deceased’s left abdominal region twice, but the knife did not penetrate the deceased’s body. He also rained a few blows on the deceased. The appellant confirmed that the knife he had used was the bent fruit knife which was subsequently found under the deceased’s body.

30        After that, the appellant and Too led the deceased upstairs into the master bedroom. Too then tied the deceased’s legs while the appellant tied his hands. According to the appellant, the deceased became “very obedient” once he had been tied up. The appellant then left the deceased lying on the bed and proceeded to search the house for valuables. Too remained in the vicinity of the room and conversed with the deceased in English.

31        After searching upstairs for what the appellant claimed was a “few minutes”, he went downstairs. On his way downstairs, the appellant saw the deceased for the last time before he left the house. According to the appellant, the deceased was still alive at that time. He did, however, recall seeing Too covering the deceased’s face with a pillow when he was going downstairs. The appellant then summoned Ng into the house to help in the search for valuables. After they searched the deceased’s car, they called for Too and left the deceased’s house. Too was alone upstairs throughout this period.

32        According to the appellant, once they left the deceased’s house, Ng drove them back to Katong. Somewhere along the way Too alighted by an automated teller machine. It was only when the appellant followed Too and Ng that he realised that Too had taken the deceased’s COL card. Too used the deceased’s COL card to make a withdrawal, and the three of them divided the money among themselves. On the next day, the appellant called Too to ask him whether the deceased’s COL card could still be used. The three of them then met up and made some purchases using the deceased’s COL card. The appellant did not see either Too or Ng again. According to the appellant, he continued travelling between Singapore and Malaysia using his passport until he learnt that Too had accused him of killing the deceased.

33        Significantly, though the appellant claimed that he had thought that the deceased was still alive, he conceded during cross-examination that he had not, at any point after leaving the deceased’s house, asked Too what had happened to the deceased, nor had they discussed what they would do if the deceased freed himself and proceeded to make a police report. Notwithstanding his alleged belief that the deceased was still alive, it had not occurred to the appellant that the deceased might have, between the material date and the next day, reported the theft of his COL card to the authorities. According to the appellant, it had not occurred to him, after they had left, that the deceased could have escaped from his house or shouted for help since his mouth was not gagged, or that he could have made his way downstairs even though his legs and hands were tied.

The decision of the trial judge 

34        The appellant was convicted of murder and accordingly sentenced to the mandatory death penalty. The trial judge’s reasoning can be shortly summarised. First, the trial judge stated that the evidence, considered in its totality, gave rise to the irresistible inference that the deceased had been murdered in furtherance of the common intention among Too, the accused and Ng to commit robbery (see Lee Chez Kee ([4] supra) at [59]). To begin with, the Prosecution had established beyond a reasonable doubt that the deceased had died as a result of asphyxiation with the black cord and, further, that the event of strangulation had occurred in the course of the robbery committed on the material date.

The involvement of the appellant in the deceased’s murder

35        The trial judge next found that the material circumstances surrounding the robbery on the material date were capable of establishing a coherent and irresistible inference that the appellant in question was guilty as charged. The trial judge placed considerable emphasis on the events which had occurred after the robbery in having “created an indelible link between the [appellant] and the tragic events which had occurred at the deceased’s house” (at [61]). Apart from the appellant’s own admission that he had shared in the spoils of the robbery, the trial judge accepted that the independent evidence adduced by the Prosecution also identified the appellant as having been party to the subsequent usage of the deceased’s COL card. Further, the trial judge also accepted Ms Lim’s evidence that the appellant had in fact been present at her store on 13 December 1993 and had used the deceased’s COL card to make the relevant purchases. Accordingly, the trial judge found that the evidence linking the appellant with the robbery at the deceased’s house, coupled with his concordant finding that the deceased’s death had occurred in the course of this robbery, gave rise to a prima facie inference that the appellant “had been involved in the deceased’s death” (at [62]). I pause to note that the degree of involvement by the appellant was never quite clearly explained clearly by the trial judge at this point. In any case, according to the trial judge, this inference was further supported by s 116 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”), in that the appellant’s possession of the deceased’s items after his robbery and death gave rise to the presumption that the appellant was “involved in the deceased’s death”.

36        In the trial judge’s view, this inference was also supported by the events which had taken place before the robbery (at [65]):

On the accused’s own admission, he was, prior to the robbery, afraid of being recognised by the deceased. After all, he was with Too and Too was well known to the deceased. Identification of Too would inevitably lead to the identification of the accused. These fears were sufficiently compelling to cause the accused to get into a quarrel with Too during the journey to the deceased’s house. Whilst the accused contended that his fears were quelled by Too’s confidence, I found this assertion to be little more than an artificial construct manufactured by the accused to remove his otherwise undeniable motive for killing the deceased. On the accused’s own admission, he was not particularly well acquainted with Too or Ng. His seeming trust in Too, and his sanguine expectation that Too would not implicate him if arrested, was wholly inconsistent with the admittedly superficial nature of their acquaintance.

Making reference once again to the appellant’s conduct after the robbery, the trial judge found that such conduct again supported his earlier finding that the appellant had been party to the fatal injuries (note the plurality employed) inflicted on the deceased (at [66]):

In my view, the accused’s conduct following the robbery augmented this compelling inference that he had been party to the fatal injuries afflicted on the deceased. The complete lack of any discussion regarding what would happen when the deceased was freed, coupled with the calm and calculated manner in which they went about repeatedly exploiting the deceased’s COL card on the day following the robbery and the accused’s continued travel between Singapore and Malaysia in the years following the robbery, could only support the conclusion that the accused and his accomplices were not worried about being identified because they knew that the deceased was dead. Without the knowledge that the deceased had died, the likelihood of their identification and arrest would have appeared particularly imminent since the deceased knew Too personally and would, hence, have been able to positively identify him. Given these circumstances, it was wholly incredible that the accused would have had no regard whatsoever to the possibility – or indeed, the certainty – of the deceased making a report against Too when he was freed. The accused’s attempt to portray himself as a passive follower of Too was directly rebutted by his own admission that he had argued with Too because of his fear of being recognised. This, coupled with the accused’s proactive involvement in clarifying the modus operandi of the robbery prior to its occurrence, could only lead one to conclude that the accused was not a mere robber but someone prepared to annihilate his victim.

37        Once again, the trial judge found that the appellant was not a mere robber but someone prepared to annihilate the deceased; he, however, did not yet find that the appellant had in fact inflicted the fatal strangulation on the deceased. The trial judge also apparently discounted the appellant’s evidence in relation to his involvement with the events which had taken place upstairs in the deceased’s house prior to his murder. According to the trial judge, the appellant’s evidence at trial that he had merely observed Too placing the pillow on the deceased’s face from a distance while he was going downstairs was clearly inconsistent with his prior evidence in his third long statement. According to the appellant’s third long statement, he had only left the master bedroom and gone on to search the other rooms after Too had done so. Based on Dr Chui’s expert evidence, the act of placing the pillow on the deceased’s face was an event which occurred after the deceased had been strangled to death. Thus, according to the trial judge, the appellant’s provision of this information was, hence, further evidence that he had been present in the room when the deceased’s life was brutally ended.

38        Finally, the trial judge held that the appellant’s involvement in the deceased’s death was further supported by Too’s statements. In his view, Too’s statements, when considered together with the rest of the independent evidence which the Prosecution had adduced, served the limited function of reinforcing the already compelling inference which the latter had given rise to, which was that the appellant was “inextricably involved in the deceased’s death” (see Lee Chez Kee at [68]). At this point, thus, it appears that the trial judge was wholly convinced that the appellant was “involved” in the murder in that the appellant had actually done the act which killed the deceased. However, the trial judge, with respect, does not quite clearly state this conclusion, making allusions instead to the appellant’s supposed “involvement” in the murder without quite explaining explicitly the degree of such involvement.

The common intention of the parties

39        In what seems to me as almost a secondary point, the trial judge next turned to the common intention of the parties pursuant to s 34 of the Penal Code. After considering the judicial interpretation of s 34 of the Penal Code, the trial judge stated that, in his view, it was not necessary to establish the identity of the person who actually strangled the deceased as the requirements of s 34 were satisfied on the facts. These requirements were: (a) the existence of a common intention among all the persons who committed the criminal act; (b) the furtherance of the common intention by the criminal act; and (c) the participation in the criminal act by those sharing the common intention. On the facts, the trial judge found these requirements to be fulfilled. First, there was evidence of the existence of a common intention between the parties to rob. Secondly, the murder was apparently in furtherance of such a common intention, although this point was dealt with only at a later paragraph of the trial judge’s grounds of decision. Finally, the requirement of participation was sufficiently made out given the appellant’s presence at the deceased’s house when the murder occurred. By these findings, the trial judge held that he would have convicted the appellant of the Charge (see [3] above).

40        In any event, the trial judge also opined that even if one were to accept that it was Too, and not the appellant, who was solely responsible for the deceased’s death, the rest of the evidence showed that Too’s conduct to this effect was in furtherance of their common intention to rob the deceased. This, as I mentioned in the preceding paragraph, appeared to go towards fulfilling the second requirement under s 34 of the Penal Code. It is worthwhile to reproduce what the trial judge had written (Lee Chez Kee at [72]):

Finally, even if one were to accept – which I did not – that it was Too, and not the accused, who was solely responsible for the deceased’s death, the rest of the evidence showed that Too’s conduct to this effect was in furtherance of their common intention to rob the deceased. The accused himself conceded that he had, when the deceased initially protested downstairs, attempted to stab the deceased in order to quell his acts of resistance. According to the accused, at the time when he used the knife to threaten the deceased, he had been prepared to use the knife on the deceased if the latter had struggled or retaliated. This admission by the accused himself amounted to positive evidence that it would not have been inconsistent with or extraneous to his common intention with Too to cause harm to the deceased. [emphasis added in bold italics]

It would thus appear that the “common intention” here has suddenly transformed from the common intention to rob to the common intention to cause harm to the deceased. So did the trial judge ultimately find that the murder of the deceased was in furtherance of the parties’ common intention to rob the deceased? With respect, I am unable to say with certainty what the trial judge found in relation to this second requirement of s 34 of the Penal Code, unless one were to conclude that the act of strangulating the deceased was in furtherance of the common intention to cause harm to the deceased, which was in turn was in furtherance of the common intention to rob.

41        Ultimately, it appeared that the use of s 34 of the Penal Code was not crucial to the trial judge’s decision. The trial judge was wholly convinced of the appellant’s involvement in the infliction of the injuries that resulted in the demise of the deceased, as the penultimate paragraph in his grounds of decision showed (at [73]):

In the light of the findings made above, the evidence before me in fact went much further and established the accused’s involvement in the infliction of the injuries which subsequently led to the deceased’s death. Considered against all the other facts, the accused’s averment that he was wholly unaware of the deceased’s demise when he left the latter’s house was inherently unbelievable. While a conviction would have been warranted even if the accused did not know of the deceased’s demise, the added factor that he was complicit, at least to some degree, in the stabbing and strangulation of the deceased gave further impetus to the Prosecution’s case against him. [emphasis added]

Of course, given Dr Chiu’s expert evidence that it was the strangulation with the black cord which had led to the deceased’s death, it was not entirely accurate to say that the appellant was involved in the infliction of the injuries which led to the deceased’s death (see also [37] above). It seems more the case that the trial judge was certain that the appellant had strangled the deceased, given that he wrote that the appellant was “complicit … in the … strangulation of the deceased” (Lee Chez Kee at [73]). This conclusion, as the trial judge stated (at [69]), was only explicitly established by Too’s statements. However, this in no way precluded the trial judge from inferring that the appellant had strangled the deceased, as he in fact did.

Summary of the trial judge’s reasoning 

42        In summary, the trial judge’s reasoning can be stated as such. First, the evidence, including Too’s statements, proved beyond a reasonable doubt that the appellant actually strangled the deceased to death. By this, it was not necessary to rely on s 34 of the Penal Code to convict the appellant of murder since he was primarily responsible for the offence. However, and secondarily, if this finding was incorrect, the application of s 34 meant that it was not necessary to establish whether it was the appellant (or indeed, any of the other parties) who strangled the deceased to death. By this secondary reason, so long as there existed a common intention between the parties to rob the deceased, and the criminal act of strangulating him was then found to be in furtherance of this common intention (to rob), the appellant would be guilty of the Charge, even if it could not be established that he was the actual person who strangled the deceased to death. On this point, I would repeat my observation that the trial judge had failed to make any express finding to the effect that the act of strangulating the deceased was in furtherance of the common intention of the parties to rob the deceased (see [40] above).

Issues on appeal 

43        The appellant has, in the present appeal, appealed against the trial judge’s decision on both conviction and sentence. However, as the sentence of death is a mandatory one in relation to the charge, and the appellant has not challenged, for example, the constitutionality of the mandatory death sentence, the outcome in the present proceedings, in effect, rests entirely on the result of the appeal against his conviction. In relation to this appeal then, the appellant’s petition of appeal lists four grounds of appeal:

(a)        The trial judge had wrongly admitted Too’s statements sought to be admitted by the Prosecution at the trial.

(b)        Having admitted Too’s statements, the trial judge had failed to exercise due caution in giving weight to Too’s statements and had also failed to give due consideration to the prejudicial effect they had on the appellant’s case.

(c)        The trial judge erred in finding that the Prosecution had proved the Charge beyond a reasonable doubt as this was against the weight of the evidence adduced.

(d)        The trial judge erred in finding that the weight of the evidence was sufficient to establish the guilt of the appellant for murder under s 34 of the Penal Code.

44        In my view, these four grounds can be broken down essentially into two broad issues, which I will address fully in this judgment: (a) whether the trial judge erred in admitting Too’s statements; and (b) whether, in the totality of the evidence (which content is dependent on the answer to the preceding issue), the trial judge erred in convicting the appellant of the Charge. This latter issue also necessitates a discussion of the law in relation to the essential ingredients of the Charge. I now deal with the legal issues relating to the admissibility of Too’s statements and the ingredients of the Charge before applying the applicable law to the facts of the present case.

Admissibility of Too’s statements

Introduction and the proceedings below

45        As I mentioned above (at [22]), in the proceedings below, as part of its case, the Prosecution additionally sought to admit Too’s statements into the evidence. The Prosecution had submitted to the trial judge that Too’s statements were admissible under s 378(1)(b)(i) of the CPC. This particular subsection stipulates:

Admissibility of out-of-court statements as evidence of facts stated.

378.—(1) In any criminal proceedings a statement made, whether orally or in a document or otherwise, by any person shall, subject to this section and section 379 and to the rules of law governing the admissibility of confessions, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible, if —

…

(b)        it is shown with respect to him —

(i)         that he is dead, or is unfit by reason of his bodily or mental condition to attend as a witness;

…

46        Unsurprisingly, the appellant vigorously took issue with the Prosecution’s attempt to admit Too’s statements in the proceedings below. However, the trial judge, after an extensive analysis of the legislative history of s 378(1)(b)(i) of the CPC, decided that Too’s statements were admissible. In view of the undeniable importance of achieving the correct interpretation of s 378(1)(b)(i), it would be apposite at this juncture to revisit, albeit in brief, the trial judge’s reasoning for his decision in this regard.

The trial judge’s reasoning

(1)        General propositions

47        The trial judge first determined that Too’s statements, being made out of the present proceedings, fell within the general purview of the hearsay rule. In this regard, the trial judge characterised the hearsay rule as being “exclusionary” in nature (see Lee Chez Kee at [27]) and quoted Phipson on Evidence (Sweet & Maxwell, 14th Ed, 1990), a textbook on the English law of evidence, in support of this proposition. However, after asserting that the hearsay rule was an exclusionary one, the trial judge then went on to say that this rule had been restated statutorily, in the context of the CPC, in an “inclusionary” form by s 377 (at [28]). For completeness, s 377 of the CPC provides as follows:

Hearsay evidence to be admissible only by virtue of this Code and other written law.

377.     In any criminal proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Code or any other written law, but not otherwise.

48        The trial judge then held that, given Too’s absence from the proceedings before him, his statements clearly fell within the purview of s 377 of the CPC. Accordingly, the trial judge decided that Too’s statements would be only admissible if “one of the statutory exceptions under either the CPC or the Evidence Act could be shown to apply” [emphasis added] (at [28]).

49        Having stated the above proposition, the trial judge came to the conclusion (at [29]) that none of the “potentially relevant statutory exceptions” to the hearsay rule applied to Too’s statements. In fact, the trial judge readily acknowledged, or at least accepted the Prosecution’s own concessions in relation to s 10 and 30 of the EA, that none of the “exceptions” embodied in s 10, s 30 or s 32 of the EA applied. In order to fortify his conclusion, the trial judge drew attention to some English authorities which, in his view, “mirror the position generally obtaining under Singapore law” (at [32]). The trial judge went on to state (ibid):

Notwithstanding the admissibility of out-of-court confessions made by an accused to the proceedings (see s 122(5) of the CPC), there is no similar exception under either the CPC or the Evidence Act which applies to confessions made by other persons. The [appellant] was therefore correct in so far as it had submitted that confessions made by a so-called “co-accused” who is not party to the proceedings are not generally the subject of any exception to the hearsay rule. … Where a confession by a person other than an accused is in contention, the party seeking to rely on the statement should rightly admit this evidence by calling the maker of the confession as a witness. [emphasis added]

50        However, having concluded that confessions made by a co-accused who was not a party to the proceedings were not generally the subject of any exception to the hearsay rule, the trial judge then went on to state (at [33]) that the exception enshrined in s 378(1)(b)(i) of the CPC nonetheless “represented the only avenue for admitting Too’s statements”.

(2)        The scope of section 378(1) of the CPC

51        Having decided that s 378(1)(b)(i) of the CPC represented the “only avenue” for admitting Too’s statements, the trial judge then went on to consider the scope of this subsection. In particular, in the trial judge’s view, the applicability of s 378(1)(b)(i) hinged upon the proper construction of the phrase “subject … to the rules of law governing the admissibility of confessions”, which I shall for convenience term, as the trial judge did, “the qualifying phrase” (Lee Chez Kee at [38]). As could be expected, both the Prosecution and the appellant tendered diametrically opposing interpretations of s 378(1)(b)(i) to the trial judge. According to the Prosecution, the qualifying phrase merely had the effect of importing the requirements of voluntariness. As such, since there was no challenge on the voluntariness of Too’s statements, these statements were admissible under the exception contained in s 378(1)(b)(i) of the CPC. On the other hand, the appellant contended before the trial judge that the qualifying phrase imported the general “common law prohibition against confessions”, and therefore rendered s 378(1) incapable of rendering admissible those confessions that were otherwise inadmissible.

52        Having heard the arguments of both parties, the trial judge accepted the Prosecution’s submission that the qualifying phrase merely had the effect of importing the requirements of voluntariness. In coming to this decision, he relied primarily on the legislative intent behind s 378(1) itself and secondarily on his belief that a contrary interpretation would lead to manifest absurdity in the application of the particular subsection.

^{(A)        THE LEGISLATIVE INTENT BEHIND SECTION 378(1) OF THE CPC}

53        Turning first to the supposed legislative intent behind s 378(1) of the CPC, the trial judge pointed out that s 378(1) of the CPC first appeared as s 371C(1)(b)(i) within cl 23 of the Criminal Procedure Code (Amendment) Bill (Bill No 35 of 1975) (“the CPC Bill”). The proposed s 371C(1)(b)(i) was in turn adapted from cl 31(1) of the draft Criminal Evidence Bill (“the UK Bill”) proposed by the UK Criminal Law Revision Committee (“the UK Committee”): see the comparative table to the CPC Bill; see also UK Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmnd 4991, 1972) (Chairman: Edmund Davies LJ) (“Eleventh Report”) at p 190.

54        The trial judge stated (Lee Chez Kee at [37]) that cl 31(1) of the UK Bill provided as follows:

Admissibility of out-of-court statements as evidence of facts stated.

31.—(1) In any proceedings a statement made, whether orally or in a document or otherwise, by any person shall, subject to this and the next following section and to section 2 of this Act, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible, if —

…

(c)        it is shown with respect to him —

(i)         that he is dead, or is unfit by reason of his bodily or mental condition to attend as a witness ...

[emphasis added by the trial judge]

For convenience, I shall also at this point reproduce s 378(1)(b)(i) of the CPC, although this has already been produced earlier:

Admissibility of out-of-court statements as evidence of facts stated.

378.—(1) In any criminal proceedings a statement made, whether orally or in a document or otherwise, by any person shall, subject to this section and section 379 and to the rules of law governing the admissibility of confessions, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible, if —

…

(b)        it is shown with respect to him —

(i)         that he is dead, or is unfit by reason of his bodily or mental condition to attend as a witness;

…

[emphasis added]

55        Subsequently, the trial judge went on to observe that the qualifying phrase that is currently present in s 378(1) of the CPC and which was also present in the proposed s 371C(1)(b)(i) of the CPC Bill was absent from cl 31(1) of the UK Bill. In place of the qualifying phrase, there appeared the words “subject … to section 2 of this Act”. This will be clear from an examination of the provisions reproduced in the preceding paragraph. Clause 2 of the UK Bill (ie, “section 2 of this Act”) provided as follows:

Confessions.

2.—(1) In any proceedings a confession made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) or (3) below.

(2)        If, in any proceedings where the prosecution proposes to give in evidence a confession made by the accused, it is represented to the court that the confession was or may have been made in consequence of oppressive treatment of the accused or in consequence of any threat or inducement, the court shall not allow the confession to be given in evidence by the prosecution (whether by virtue of this section or otherwise) except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) —

(a)        was not obtained by oppressive treatment of the accused; and

(b)        was not made in consequence of any threat or inducement of a sort likely, in the circumstances existing at the time, to render unreliable any confession which might be made by the accused in consequence thereof.

(3)        In any proceedings where the prosecution proposes to give in evidence a confession made by the accused, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove with respect to the confession the matters mentioned in paragraphs (a) and (b) of subsection (2) above.

(4)        Where in any proceedings a confession is received in evidence by virtue of the foregoing provisions of this section, it shall by virtue of this subsection be admissible as evidence of any fact stated therein and of any matter dealt with in any opinion expressed therein, including any fact or matter favourable to the accused:

Provided that at the trial of any person for an offence the court shall not be required to treat an issue as having been raised with respect to any matter by reason only of evidence favourable to the accused which is admissible by virtue of this subsection.

(5)        The fact that a confession is wholly or partly excluded in pursuance of subsection (2) or (3) above shall not affect the admissibility in evidence —

(a)        of any facts discovered as a result of the confession; or

(b)        as regards any fact so discovered, of the fact that it was discovered as a result of a statement made by the accused; or

(c)        where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show this about him.

(6)        In this section “confession” includes any statement wholly or partly adverse to the accused, whether made to a person in authority or not and whether made in words or otherwise.

[emphasis added]

56        The trial judge then essentially embarked on an exercise of importing the legislative intent behind the UK Bill to the CPC on the basis of the historical linkage between the present s 378(1) of the CPC with cl 31(1) of the UK Bill. This exercise first rested on the “close coincidence” between s 378(1) of the CPC and cl 31(1) of the UK Bill (at [39]). In the trial judge’s view, it was significant that “the other provisos to s 378(1) of the CPC appear to mirror those in cl 31(1) of the UK Bill” (ibid). The trial judge then continued (ibid):

Apart from the qualifying phrase, s 378(1) additionally provides that it is “subject to this section and section 379” [emphasis added]. Clause 31(1) was in turn expressed as being “subject to this and the next following section” [emphasis added]. Notwithstanding the apparent disparity in language, “the next following section” to s 378 of the CPC, ie, s 379, was in fact adopted from cl 32 of the UK Bill, which was itself “the next following section” to cl 31: see the comparative table to the CPC Bill. This general coincidence of the respective provisos to s 378(1) of the CPC and cl 31(1) of the UK Bill leads clearly to the conclusion that the current qualifying phrase in the former was intended to correspond with the reference to cl 2 in the latter. [emphasis in original]

57        Accordingly, having been convinced that the qualifying phrase was intended to correspond with the reference to cl 2 of the UK Bill by virtue of the historical nexus between s 378(1) of the CPC and cl 31(1) of the UK Bill and their general similarity, the trial judge then proceeded to the second stage of his reasoning. In this connection, he noted that the ambit of cl 2 of the UK Bill was confined solely to the requirement of voluntariness in confessions. Accordingly, he came to the unequivocal conclusion that the qualifying phrase in s 378(1) of the CPC was intended to encompass only what cl 2 in the UK Bill referred to, and this was the requirement of voluntariness.

58        Finally, to further bolster this conclusion, the trial judge remarked that this interpretation of the qualifying phrase was augmented by the UK Committee’s commentary to cl 31(1) of the UK Bill. The trial judge emphasised that, according to the UK Committee (see Eleventh Report at p 236), admissibility pursuant to cl 31(1) of the UK Bill was to be subject to the provisions in the later subsections of the clause, to the provisions of cl 2 preventing the Prosecution from giving in evidence a confession obtained in the ways mentioned in that clause and to the restrictions imposed by cl 32. In essence, the trial judge alluded once again to the fact that admissibility pursuant to cl 31(1) of the UK Bill was subject only to, inter alia, the voluntariness requirement as made clear by cl 2. This in reality merely reiterated what the trial judge had already discussed earlier in his grounds of decision.

59        Apart from referring to the historical connection and general coincidence between s 378(1) of the CPC and cl 31(1) of the UK Bill, the trial judge also thought that his conclusion in relation to the ambit of the qualifying phrase (and hence the scope of s 378(1)(b)(i)) was consistent with the legislative intent behind s 378 of the CPC and its related provisions as expressed by our Parliament. In this respect, the trial judge pointed out (at [42]) that, according to the then Minister for Law and the Environment, Mr E W Barker (see Singapore Parliamentary Debates, Official Report (19 August 1975) vol 34 at cols 1222–1223):

Clause 23 of the [CPC] Bill [of which the current ss 378 and 379 formed a part] seeks to make radical changes to the rule against hearsay evidence. ...

...

The present law has caused a great deal of trouble owing to the difficulty of deciding whether a statement is hearsay, and, if so, whether it is admissible under any of the exceptions to the rule. The difficulty is further compounded by the differences between the English law of evidence and our law which is based on the Indian Evidence Act.

The scheme that the Bill proposes has the following purposes:-

(1)        to admit all hearsay evidence likely to be valuable to the greatest extent possible without undue complication or delay to the proceedings;

(2)        to ensure that evidence should continue to be given for the most part orally by allowing hearsay evidence only if the maker of the statement cannot be called or it is desirable to supplement his oral evidence; and

(3)        to include necessary safeguards against the danger of manufactured hearsay evidence.

[emphasis added by the trial judge]

As such, the trial judge was of the opinion (at [43]) that “Parliament’s intention to ‘admit all hearsay evidence … to the greatest extent possible’ … clearly accords with a more limited interpretation of the qualifying phrase” [emphasis added by the trial judge]. For good measure, the trial judge added that the dangers of manufactured or unreliable out-of-court confessions being admitted under s 378(1) would also be sufficiently safeguarded against by the requirement of voluntariness.

^{(B)       CONTRARY INTERPRETATION WOULD LEAD TO ABSURDITY AND INCONSISTENCY}

60        Turning now to the trial judge’s secondary ground on which his interpretation of s 378(1)(b)(i) of the CPC was based, it bears repeating that the trial judge thought that a contrary interpretation would lead to manifest absurdity and inconsistency in the application of the particular subsection. In his view, the appellant’s interpretation of the qualifying phrase “would turn the concern regarding manufactured or unreliable hearsay evidence on its head” (at [44]). This was because inculpatory out-of-court statements would be excluded from the purview of s 378(1), whilst exculpatory out-of-court statements would remain potentially admissible under the exceptions to hearsay enshrined therein. According to the trial judge, this result would be unjustifiable given that confessions, which implicate their makers, are generally regarded as being more reliable since they are against the makers’ interests. In contrast, statements which purport to exculpate their makers would perceivably be less reliable since they would be more likely to be manufactured evidence. To permit the admission of the latter but not the former through the exceptions to hearsay under s 378(1) would, therefore,