[2015] SGCA 1
| Criminal Appeal No 6 of 2013 | |
| 14 January 2015 | |
| Court of Appeal | |
| Chao Hick Tin JA, Andrew Phang Boon Leong JA, Woo Bih Li J, Lee Seiu Kin J and Chan Seng Onn J | |
| Hay Hung Chun, Seraphina Fong and Teo Lu Jia (Attorney-General’s Chambers) for the Appellant; Anand Nalachandran (Braddell Brothers LLP), Josephus Tan and Keith Lim (Fortis Law Corporation) for the Respondent |
Criminal Law – Offences – Murder
Criminal Procedure and Sentencing – Sentencing – Principles
[LawNet Editorial Note: The decision from which this appeal arose is reported at [2014] 1 SLR 973.]
14 January 2015
|
Judgment reserved
|
Chao Hick Tin JA (delivering judgment of the majority consisting of Andrew Phang Boon Leong JA, Chan Seng Onn J and himself):
1 In Public Prosecutor v Galing Anak Kujat and another
[2010] SGHC 212 (“the Trial Judge’s decision”), Jabing Kho (“the
Respondent”), and his co-accused, Galing Anak Kujat (“Gailing”), were
convicted of murder under s 300(c) read with s 34 and
punishable under s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”),
and Kan Ting Chiu J (“the Trial Judge”) passed the mandatory death
sentence on them accordingly.
2 On appeal, the Court of Appeal in Kho Jabing and another v Public Prosecutor
[2011] 3 SLR 634 (“the CA (Conviction) Decision”) affirmed the
Respondent’s conviction and sentence. This CA (which for ease of
reference will be referred to as “CA (Conviction)”), however, allowed
Galing’s appeal and his conviction of murder was substituted with a
conviction of the offence of robbery with hurt committed in furtherance
of a common intention under s 394 read with s 34 of the PC. Galing’s
case was then remitted back to the Trial Judge for resentencing and he
was eventually sentenced to an imprisonment term of 18 years and 6
months and 19 strokes of the cane.
3 The
Penal Code (Amendment) Act 2012 (Act No 32 of 2012) (“the PCAA”) was
then enacted by Parliament to amend the PC. Pertinently, s 2 of the PCAA
provide that:
Repeal and re-enactment of section 302
2. Section 302 of the Penal Code is repealed and the following section substituted therefor:
“Punishment for murder
302.—(1) Whoever commits murder within the meaning of section 300(a) shall be punished with death.
(2) Whoever commits murder within the meaning of section 300(b), (c) or (d) shall be punished with death or imprisonment for life and shall, if he is not punished with death, also be liable to caning.”.
…
As a result of these amendments, except for an accused person who is convicted of a charge under s 300(a)
of the PC, an accused person will no longer face the mandatory death
penalty and the court is given the discretion to sentence the accused to
life imprisonment and caning instead.
4 Sections 4(5) and (6) of the PCAA then provided for certain transitional provisions:
Savings and transitional provisions
…
4. —(5) Where
on the appointed day, the Court of Appeal has dismissed an appeal
brought by a person for an offence of murder under section 302 of the
Penal Code, the following provisions shall apply:
…
(f) if the Court of Appeal clarifies under paragraph (c)(ii) or (d) that the person is guilty of murder within the meaning of section 300(b), (c) or (d) of the Penal Code, it shall remit the case back to the High Court for the person to be re-sentenced;
(g) when the case is remitted back to the High Court under paragraph (f),
the High Court shall re-sentence the person to death or imprisonment
for life and the person shall, if he is not re-sentenced to death, also
be liable to be re-sentenced to caning;
…
(6) If –
(a)
any Judge of the High Court, having heard the trial relating to an
offence of murder, is unable for any reason to sentence, affirm the
sentence or re-sentence a person under this section…
…
any other Judge of the High Court… may do so.
5 On 30 April 2013, the Court of Appeal confirmed that the Respondent was convicted under s 300(c) of the PC and allowed his application for his case to be remitted to the High Court for re-sentencing pursuant to s 4(5)(f) of the PCAA.
6 The
hearing for re-sentencing came before another High Court judge (as the
Trial Judge had by then retired from the Bench) (“the Re-sentencing
Judge”), who re-sentenced the Respondent to life imprisonment with
effect from the date of his arrest (ie, 26 February 2008) and 24 strokes of the cane (see Public Prosecutor v Kho Jabing [2014] 1 SLR 973 (“the Re-sentencing Judge’s Decision”)).
7 The
Prosecution then appealed against the Re-sentencing Judge’s decision,
urging this Court to impose the death sentence upon the Respondent on
the ground that this was an extremely vicious attack on the victim.
Our decision
8 At
the very heart of this appeal lies a critical legal question – for an
offence of murder where the mandatory death penalty does not apply, in
what circumstances would the death penalty still be warranted?
9 This
seemingly simple question belies a great deal of difficulties and
complications, along with the severe consequences and implications any
answer brings. Given that this is the first case of its kind to reach
the Court of Appeal since the amendments to the mandatory death penalty
were enacted, previous case law was, at best, marginally helpful. In
fact, both the Prosecution and counsel for the Respondent were
hard-pressed, very understandably so, to suggest any local authority
which might be helpful to us.
10 This
appeal therefore requires this Court to set down some guidelines and
principles as to how this discretion ought to be exercised. After
considering the submissions made by the Prosecution and counsel for the
Respondent, we allow the Prosecution’s appeal and impose the death
sentence on the Respondent. Our detailed reasons for this decision are
set out hereunder.
The discretionary death penalty
11 During
the appeal, we had raised a number of queries to both the counsel for
the Respondent and the Prosecution with the objective of clarifying
exactly how the court should come to its decision as to the
circumstances when the death penalty, as compared to life imprisonment
and caning, would be the more appropriate sentence in a case like this.
In sum, the numerous questions can be condensed into two broad questions
which accurately capture our concerns:
(a) What circumstances should the Court take into consideration?
(b) Do the normal sentencing principles apply?
Keeping
these two questions in mind, we examine three areas which might be
potentially helpful – (1) the parliamentary debates for the amendments
to the mandatory death penalty, (2) decisions of foreign jurisdictions,
and (3) analogous local case authorities.
Parliamentary debates
12 Obviously
the first matter which we ought to consider in this regard would be
the parliamentary debates concerning the enactment of the PCAA. In the
debates during the introduction of the amendments (see Changes to the
Application of the Mandatory Death Penalty to Homicide Offences
(Statement by Minister for Law), Singapore Parliamentary Debates, Official Report
(9 July 2012) vol 89), the Minister for Law explained that three
factors would be relevant in deciding when the death penalty is
appropriate:
In deciding whether and how to
apply the death penalty to a particular offence, several factors have to
be considered. In particular I will mention, in broad terms, three
interconnected factors: (1) the seriousness of the offence, both in
terms of the harm that the commission of the offence is likely to cause
to the victim and to society, and the personal culpability of the
accused; (2) how frequent or widespread an offence is; and (3)
deterrence.
These three factors must be
considered in their totality. For example, the fact that an offence is
not widespread or that its incidence is low may not, by itself, be a
decisive factor. The overarching aim of the Government is to ensure the
safety and security of Singapore, while maintaining a fair and just
criminal system.
Intentional killing within
the meaning of 300(a) is one of the most serious offences in our books.
Put simply, this is a case where the offender intends the death of the
victim. It is right to punish such offenders with the most severe
penalty. It is right to provide for the most powerful deterrent against
such offences. It is right, therefore, that the mandatory death penalty
should continue to apply to such intentional killing.
In
respect of other categories of murder, under section 300(b) to (d),
there could be different degrees of intention, and these offences are
committed in a variety of situations. Today, that is something
considered by the Public Prosecutor when he decides the appropriate
charge in each case. The factors he considers include the precise intention of
the accused, the manner in which the homicide occurred and the
deterrent effect a charge may have on others. We want to move towards a
framework where the court also has the discretion, to take the same factors into account during sentencing.
This
change will ensure that our sentencing framework properly balances the
various objectives: justice to the victim, justice to society, justice
to the accused, and mercy in appropriate cases. … We now have a
relatively low incidence of homicides – last year we had 16 recorded
homicides, or about 0.3 per 100,000 population. As our society becomes
safer, less violent, and more mature, we believe that today’s changes
are a right step to take.
[emphasis added in italics and bold italics]
13 In
trying to show how the Re-sentencing Judge had erred, the Prosecution
in their submissions for this appeal had analysed these three factors
and then “categorized” the circumstances of the case according to these
three factors. While the Prosecution should not be faulted for doing so,
in our opinion, we find that these factors are best considered in totality,
and should serve as guiding considerations rather than distinct factors
in deciding whether the death penalty is appropriate. As can be seen,
the Minister for Law had explained these three factors in “broad terms”,
suggesting that a broad and holistic approach should be taken. At the
risk of stating the obvious, the factual matrix and circumstances of
each case would be extremely varied, and Parliament could not have
intended a formulistic approach in applying these three factors in
deciding whether or not the death penalty would be the appropriate
sentence for a particular case.
14 In
any event, these three factors, by their nature, do not lend themselves
to a formulistic approach – these factors are clearly not “objective”
factors which can be “measured” or “fulfilled”. When counsel for the
Respondent and the Prosecution were asked whether there were any
objective factors which could guide the Court in making its decision,
both candidly admitted that apart from suggesting certain objective
factors described by the courts of other jurisdictions, they were unable
to state any “objective factors” other than what the Minister for Law
had stated in the parliamentary debates.
15 This
further reinforces our view that deciding whether or not the death
penalty is the appropriate sentence cannot be done in a formulistic
manner, unlike, for example, establishing liability for a breach of the
duty of care where there are specific elements of the tort which can be
established. Therefore, in our opinion, the factors as explained in the
parliamentary debates simply point to the general principle that the
facts of the case must be considered in their totality in determining
the appropriate sentence, and are not meant to be part of a legal test
to establish when the death penalty would be appropriate. While there is
no doubt that the court should take cognizance of the three factors,
they must be considered alongside the whole plethora of circumstances
prevailing in that case.
Foreign decisions
16 Next
we examine the decisions from other jurisdictions where a similar
discretionary death penalty for murder is also provided. Counsel for the
Respondent, both in this appeal and during the re-sentencing hearing
below, relied upon a number of decisions from other jurisdictions in
submitting that when the court has the discretion to decide whether or
not to impose the death penalty, it should only do so in the “worst of
the worst” and the “rarest of the rare” cases. In response to these
submissions, the Re-sentencing Judge, at [38] of his decision, held
that:
I do not find it necessary or fruitful
to look at decisions in other jurisdictions as to when the death penalty
would be appropriate. Each society must decide for itself what type and
degree of punishment it wants and needs in the unique context of its
values and the level of development on all fronts, including social,
cultural and economic ones.
17 The
criminal justice system of a country is the bedrock of a safe and
orderly society and is designed to produce order and justice in the
relationships between man and man and between man and state. It is at
the very heart of a functional and flourishing society, and we cannot
emphasize further that it must be built upon the society’s cultural,
moral, political and economic norms. This will be especially so for
something as controversial and sensitive as the death penalty. On this
perspective, we generally agree with the observations of the
Re-sentencing Judge as stated above. That said, although decisions from
other jurisdictions ought to be viewed with some degree of
circumspection, they can, to a certain extent, still provide some
guidance in working out our criminal justice system. After all, it is in
the collective wisdom of man that perhaps each can find his own
illuminating light to guide his path. It will therefore be beneficial to
examine a number of decisions from other jurisdictions which have tried
to work out a clear and practical approach in meting out the
discretionary death penalty.
18 We start off first with India, from where our Penal Code finds its historical roots. In Bachan Singh v The State Punjab (1980) 2 SCC 684 (“Bachan Singh”), the leading case in India on the discretionary death penalty, the Supreme Court of India held (at [209]):
Facts
and Figures, albeit incomplete, furnished by the Union of India, show
that in the past, courts have inflicted the extreme penalty with extreme
infrequency — a fact which attests to the caution and compassion which
they have always brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore, imperative to voice
the concern that courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad of
legislative policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of human life
postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. [emphasis added]
19 The “rarest of rare” principle laid down in Bachan Singh
continues to be the guiding principle for the Indian courts applying
the discretionary death penalty. It is important however to understand
the legislative context in which this principle arose from. Originally,
pursuant to s 367(5) of the 1898 Indian Code of Criminal Procedure (Act
No V of 1898) (“1898 CCP”), the Courts in India were mandated by statute
to state reasons if the death penalty was not passed, whenever the
accused was convicted of an offence with the discretionary death
penalty. Section 367(5) of the 1898 CCP provided that:
If
the accused is convicted of an offence punishable with death and the
Court sentences him to any punishment other than death, the Court shall
in its judgment state the reason why sentence of death was not passed.
20 A
different position was however taken when the 1973 Code of Criminal
Procedure (Act 2 of 1974) (“1973 CCP”) was enacted. Section 354(3) of
the 1973 CPC provided that:
When the
conviction is for an offence punishable with death, or, in the
alternative, with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded,
and, in the case of sentence of death, the special reasons for such sentence. [emphasis added]
21 The
1973 CCP therefore effectively reversed the position as it existed
under the 1898 CCP – the Indian Court now has the duty to give special reasons if the sentence of death is imposed. Given this legislative change, it is therefore not surprising that the Court in Bachan Singh was ready to find that it was only in the “rarest of rare” cases that the death penalty should be imposed.
22 Shortly after Bachan Singh, the Supreme Court of India fine-tuned its approach as to what would be a “rarest of rare” case. In Machhi Singh v State of Punjab (1983) 3 SCC 470 (“Machhi Singh”), the Supreme Court of India considered that five factors could be relevant. Four of them are:
(a) The manner of commission of the murder;
(b) The motive for the murder;
(c) The anti-social or abhorrent nature of the crime; and
(d) The magnitude of the crime.
23 At [33] to [36], it described the four factors as such:
I. Manner of Commission of murder
33. When
the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme
indignation of the community. For instance,
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b)
a cold-blooded murder is committed with a deliberate design in order to
inherit property or to gain control over property of a ward or a person
under the control of the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime.
35. (a)
When murder of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse
social wrath. For instance when such a crime is committed in order to
terrorize such persons and frighten them into fleeing from a place or in
order to deprive them of, or make them surrender, lands or benefits
conferred on them with a view to reverse past in justices [sic] and in
order to restore the social balance.
(b)
In cases of “bride burning” and what are known as “dowry deaths” or
when murder is committed in order to remarry for the sake of extracting
dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of crime
36. When
the crime is enormous in proportion. For instance when multiple murders
say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
24 The
Supreme Court of India also felt that the “personality of victim of
murder” would be a relevant factor. Eventually, the Supreme Court of
India endorsed a “balance sheet” approach (at [38(iv)]), where:
A
balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances has to be accorded
full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.
25 By identifying
the factors above, it would appear that the Supreme Court of India was
placing emphasis on both the crime and the criminal in evaluating the
appropriateness of the death penalty. The “balance sheet” approach in
determining whether a case was the “rarest of the rare” continued to
apply for a period of time. It would later however transpire that there
was much practical difficulty in applying this test. We do not propose
to go through an extensive review of Indian case law, but suffice it to
say that in Sangeet v State of Haryana (2013) 2 SCC 452, the Supreme Court of India discussed a number of cases ever since Bachan Singh,
and found that there had been “little or no uniformity in the
application of this approach” (referring to the “balance sheet approach”
advocated in Machhi Singh). At [77], it conclusively did away with this balance sheet approach, stating that:
77.1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh.
However, this approach has been adopted in several decisions. This
needs a fresh look. In any event, there is little or no uniformity in
the application of this approach.
77.2. Aggravating
circumstances relate to the crime while mitigating circumstances relate
to the criminal. A balance sheet cannot be drawn up for comparing the
two. The considerations for both are distinct and unrelated. The use of
the mantra of aggravating and mitigating circumstances needs a review.
77.3.
In the sentencing process, both the crime and the criminal are equally
important. We have, unfortunately, not taken the sentencing process as
seriously as it should be with the result that in capital offences, it
has become judge-centric sentencing rather than principled sentencing.
…
Clearly, while the “rarest of rare” principle endorsed in Bachan Singh
continues to be the guiding principle in India, its history has shown
that the practical application of such a principle is fraught with
difficulty.
26 We note that the “rarest of rare” principle is not unique to India. In R v Trimmingham
[2009] UKPC 25 (an appeal from the Court of Appeal of St Vincent and
the Grenadines), the Privy Council likewise endorsed a similar
principle. In observing that the approach a sentencing judge should
follow in a case where the imposition of the death sentence is
discretionary was relatively well-established by the Caribbean Courts,
the Privy Council at [21] held that:
[i]t can
be expressed in two basic principles. The first has been expressed in
several different formulations, but they all carry the same message,
that the death penalty should be imposed only in cases which on the
facts of the offence are the most extreme and exceptional, “the worst of
the worst” or “the rarest of the rare”. In considering whether a
particular case falls into that category, the judge should of course
compare it with other murder cases and not with ordinary civilised
behaviour. The second principle is that there must be no reasonable
prospect of reform of the offender and that the object of punishment
could not be achieved by any means other than the ultimate sentence of
death. The character of the offender and any other relevant
circumstances are to be taken into account in so far as they may operate
in his favour by way of mitigation and are not to weigh in the scales
against him. Before it imposes a sentence of death the court must be
properly satisfied that these two criteria have been fulfilled.
[emphasis added]
Given the additional
requirement that there must be no reasonable prospect of reform of the
offender and no other means by which to achieve the object of
punishment, it could even be said that the Caribbean Courts apply a
stricter test than the “rarest of the rare” approach in India.
27 In
the United States, a similar “rarest of the rare” principle seems to
apply. The death penalty is only awarded in the most extreme of
circumstances – in Roper v Simmonds 543 US 551 (2005) at 568, the US Supreme Court citing its previous decision in Atkins v Virginia 536 US 304 (2002) at 319, held that:
[c]apital
punishment must be limited to those offenders who commit “a narrow
category of the most serious crimes” and whose extreme culpability makes
them “the most deserving of execution.”
28 Furthermore,
a non-exhaustive list of factors the US Courts must consider is also
statutorily provided for in Title 18, Chapter 228, Section 3592 of the
United States Code. These factors include impaired capacity, duress,
minor participation, equally culpable defendants, heinous, cruel, or
depraved manner of committing offense, pecuniary gain and substantial
planning and premeditation, to name a few.
Local case authorities
29 Finally,
we turn to local case authorities. As mentioned above, this is the
first case of its kind (brought about by the amendments to the PC – see
[3] above) to be decided by us and there are no reported local case
authorities directly on point. There is however, a decision
based on the offence of gang-robber with murder in the Penal Code (Cap
224, 1985 Rev Ed) (“PC (1985)”) which provides:
Gang-robbery with murder
396. If
any one of 5 or more persons who are conjointly committing
gang-robbery, commits murder in so committing gang-robbery, every one of
those persons shall be punished with death or imprisonment for life,
and if he is not sentenced to death, shall also be punished with caning
with not less than 12 strokes.
30 Section
396 of the PC (1985) which is similarly worded to s 302(2) of the PC
(the provision under consideration in the present case), was interpreted
and applied by the Court of Appeal in Panya Martmontree and others v Public Prosecutor [1995] 2 SLR(R) 806 (“Panya”).
In dismissing the appeal and confirming the sentences of death passed
by the High Court, the Court of Appeal at [66] noted that:
When
the appellants went to the Tampines site to steal valuable equipment,
like surveying equipment, as was in fact stolen, armed with lethal
weapons they must have intended to cause grievous bodily harm and even
death to anyone who stood in their way. This is what they in fact did. Their acts of violence were mercilessly executed and gravely abhorrent in their execution. In our view, these acts of violence were amply sufficient to "outrage the feeling [sic] of the community".
Further in our judgment there was no reason to discriminate between
them as they were all in it together and it cannot be said with any
certainty which of them inflicted the fatal blows and which of them took
a passive role. The learned judge had not erred. [emphasis added]
31 We note the strong language used by the Court of Appeal in Panya
to describe the acts of the offenders in its decision to uphold the
death penalty. Particularly, the Court of Appeal had used the phrase
“outrage the feeling[s] of the community” in evaluating the acts of the
offenders.
32 This phrase originated from the decision in Sia Ah Kew and others v Public Prosecutor [1974 – 1976] SLR(R) 54 (“Sia Ah Kew”), which was cited with approval in Panya. Sia Ah Kew was a case involving kidnapping for ransom, an offence under s 3 of the Kidnapping Act (Cap 101, 1970 Rev Ed) which provided:
Whoever,
with intent to hold any person for ransom, abducts or wrongfully
restrains or wrongfully confines such person shall be guilty of an
offence and shall be punished on conviction with death or imprisonment
for life and shall, if he is not sentenced to death, also be liable to
caning.
33 Here, the court
likewise had the discretion in deciding whether or not to impose the
death penalty. The Court of Appeal first noted at [3] that given the
wording of the statute, the courts had:
… a
very limited discretion with regard to sentence, the discretion being
limited to the imposition of one of three sentences, the maximum being
death and the minimum being imprisonment for life. The third is
imprisonment for life with caning.
34 In deciding when to impose the maximum penalty, that is, the death penalty, the Court of Appeal held at [5] that:
…
[i]t is a long and well established principle of sentencing that the
Legislature in fixing the maximum penalty for a criminal offence intends
it only for the worst cases. However, in the case of the offence of kidnapping for ransom the discretion given to the courts as regards the sentence is, as earlier stated, very limited in scope.
In our opinion the maximum sentence prescribed by the Legislature would
be appropriate where the manner of the kidnapping or the acts or conduct of the kidnappers are such as to outrage the feelings of the community. [emphasis added]
The
Court of Appeal, after reviewing the facts of the case, eventually held
that the circumstances did not point to a case where the maximum
sentence of death would be the appropriate sentence to impose.
The decision to impose the death penalty
35 We will now review the points that we have raised above and set out our views as to their relevance in this appeal.
36 First,
the three factors alluded to in the relevant parliamentary debates are
non-exhaustive and are just guiding considerations which the court
should bear in mind when determining whether the death penalty is an
appropriate sentence in a specific case. In our opinion, the
parliamentary debates do not suggest that the courts should only pay or
pay particular credence to these three factors.
37 It
is our judgment that the trite and well established sentencing
principle that all the circumstances and factors of the case must be
taken into consideration in meting out an appropriate sentence continues
to apply, and this is supported by the fact that the Minister for Law
had stated the three factors in broad terms and specifically mentioned
that they were to be considered in totality. As we see it, these three
factors were highlighted because they will very likely surface in any
evaluation of a case involving the discretionary death penalty.
38 Second,
the leading principle in other jurisdictions, as the survey above
touching on the positions in India, St Vincent and Grenadines, and the
United States shows, is that the death penalty should only be imposed
for the “rarest of rare” or the “worst of the worst” cases. To follow
this principle would mean that it is only in the most extreme of
circumstances and the narrowest of cases that the death penalty would be
imposed. The practical implication of this principle can be illustrated
briefly by a number of cases.
39 In Manohar Lal alias Mannu & Another v State (NCT) of Delhi
(2000) 2 SCC 92, the offenders burned four sons alive in front of their
mother. On appeal, the death penalty was set aside because the Supreme
Court of India felt that the assassination of Prime Minister Indira
Gandhi had “blinded” the offenders, leading them to a rampage triggered
by a demented psyche. The offenders “had no special or personal
animosity towards anyone of the deceased individually” (at [7]).
Pertinently, the Supreme Court of India also (at [9]) cited a previous
decision, Kishori v State of Delhi [1999] 1 SCC 148, where the facts were analogous and where the death penalty was not imposed.
40 In Ravindra Trimbak Chouthmal v State of Maharashtra
(1996) 4 SCC 148, the victim was murdered, her head severed from her
body, and her body cut up into nine pieces and kept in two suitcases
which was subsequently disposed of. This was a case of “dowry death”,
where the murder was the result of the husband’s family being unhappy
with the dowry received from the marriage. The Supreme Court of India
overturned the High Court’s decision to impose the death penalty, and at
[9] and [10], observed that:
9. The
present was thus a murder most foul, as pointed out by us in the opening
paragraph. The motive was to get another girl for the appellant who
could get dowry to satisfy the greed of the father. Dowry-deaths are
blood- boiling, as human blood is spilled to satisfy raw-greed, naked
greed; a greed which has no limit. Nonetheless, question is whether the
extreme penalty was merited in the present case?
10. We
have given considered thought to the question and we have not been able
to place the case in that category which could be regarded as the
"rarest of the rare" type. This is so because dowry death has ceased to
belong to that species of killing. The increasing number of
dowry deaths would bear this. To halt the rising graph, we, at one
point, thought to maintain the sentence; but we entertain doubt about
the deterrent effect of a death penalty. We, therefore, resist ourselves
from upholding the death sentence, much though we would have desired
annihilation of a despicable character like the appellant before us. We,
therefore character like the appellant before us. We, therefore,
commute the sentence of death to one of RI for life imprisonment.
[emphasis in original]
It
is clear therefore that the “number” of occurrences of the crime
features as a consideration in deciding what is the “rarest of the
rare”.
41 In our respectful
opinion, we do not find that the “rarest of rare” principle is
appropriate for Singapore. To adopt this principle would be to
artificially confine and sequester the death penalty to the narrowest of
regions and to restrict the imposition of the death penalty based on
whether the actions of the offender are “rare” in comparison with other
offenders. This should not be the case in our context. Admittedly, the
often cited sentencing principle is that the maximum penalty is only
intended for the worst form of cases (see for example, Sim Gek Yong v PP [1995] 1 SLR(R) 185 at [13], which was cited with approval in the Re-sentencing Judge’s Decision at [12]).
42 However,
the context in which this principle was laid down is different in the
sense that in the normal case the sentencing judge has a much wider
discretion and a range of penalties from which to choose from. In such a
scenario, given that there is a range of penalties reflecting differing
degrees of moral culpability, it would make sense that it is only in
the worst form of cases that the maximum penalty should be meted out.
However, this is not the case with the discretionary death penalty. To
quote the Court of Appeal in Sia Ah Kew at [5], the “discretion
given to the courts as regards the sentence is… very limited in scope”;
the court does not have the luxury to choose from a range of penalties.
43 Given
the fact that the discretion is confined to only the imposition of
either the death sentence or life imprisonment with caning, we do not
find that the “rarest of the rare” principle effectively meets the
objective of having the discretionary death penalty in our sentencing
regime. As explained by the Minister for Law in the parliamentary
debates, the objective behind introducing the discretionary death
penalty was to balance “the various objectives: justice to the victim,
justice to society, justice to the accused, and mercy in appropriate
cases”. All these considerations must be taken into account, and we do
not think that they would be properly reflected if we should adopt the
“rarest of the rare” principle.
44 In our judgment, a more appropriate principle to follow would be that laid down by the Court of Appeal in Sia Ah Kew, which is, whether the actions of the offender would outrage the feelings of the community.
Undoubtedly, capital punishment is an expression of society’s
indignation towards particularly offensive conduct, and the fact that
the death penalty continues to be part of our sentencing regime is an
expression of society’s belief that certain actions are so grievous an
affront to humanity and so abhorrent that the death penalty may, in the
face of such circumstances, be the appropriate, if not the only,
adequate sentence. It would therefore, in our judgment, be correct to
consider the strong feelings of the community in deciding whether or not
to impose the death penalty.
45 In
determining whether the actions of the offender would outrage the
feelings of the community, we find that the death penalty would be the
appropriate sentence when the offender has acted in a way which exhibits
viciousness or a blatant disregard for human life. Viewed in this
light, it is the manner in which the offender acted which takes centre stage. For example, in the case of a violent act leading to death, the savagery of the attack
would be indicative of the offender’s regard for human life. The number
of stabs or blows, the area of the injury, the duration of the attack
and the force used would all be pertinent factors to be considered.
46 We
would observe that the significance of each of these factors would
invariably vary, depending on the circumstances of the case. For
example, the factors to consider would be extremely different in a case
of non-violent acts leading to death, such as where the death was caused
by poisoning. It is the offender’s (dis)regard for human life which
will be critical. This explains why an offence under s 300(a) of the PC, where the offender had the clear intention to cause death, still carries the mandatory death penalty.
47 Therefore
when an offender acts in a way which exhibits a blatant disregard for
human life which is just shy of the requisite intention to sustain a
charge under s 300(a) of the PC, the imposition of the death
penalty would be the appropriate sentence to reflect the moral
culpability of such an offender. This approach would also be in
accordance with what the Minister for Law had explained as being the seriousness of the offence, personal culpability of the accused and the manner in which the homicide occurred in the parliamentary debates.
48 That
said, the court should still take into consideration all the other
circumstances of the case. While the offender’s regard for human life
remains at the forefront of the court’s consideration, other facts such
as the offender’s age and intelligence continue to be relevant.
49 In Public Prosecutor v Ellarry bin Puling and another [2011] SGHC 214 (“Fabian”),
F and E were foreigners on work permits in Singapore. On 22 August
2008, they set out on bicycles to find victims to rob. F was armed with a
piece of wood which he had picked up the night before, with the
intention of striking his victims with it before robbing them. In the
early morning of 23 August 2008, F and E spotted the deceased sitting
alone at a bus stop using his phone. F approached the person from behind
and hit him on the head three times, before tripping him and kicking
him when he was on the ground. The victim was then robbed. The victim
later fell into a coma, and eventually succumbed to his injuries. The
cause of death was certified to be intracranial haemorrhage and cerebral
contusions due to a fractured skull. F was convicted of murder under s
300(c) of the PC.
50 F’s
conviction was upheld on appeal (in Criminal Case Appeal No 15 of 2011)
and his case was subsequently sent back for resentencing under the
relevant provisions of the PCAA. At the resentencing hearing (Criminal
Case No 40 of 2009), the trial judge in that case found that although
the attack was vicious, he took into account the fact that the accused
was young (18 years old at the time of offence) and had sub-normal
intelligence in eventually deciding not to impose the death penalty.
This is an example of how the court must continue to take into
consideration all the other circumstances of the case.
51 We
summarize our views on the principles guiding this court in determining
when it would be appropriate to impose the death penalty as follows:
(a) The
factors alluded to by the Minister for Law in the parliamentary debates
are clearly relevant considerations. However, no especial credence
should be placed on them. The well-established sentencing principle that
all the circumstances and factors of the case must be taken into
consideration in meting out an appropriate sentence continues to apply.
(b) The
“rarest of rare” principle is not applicable in our legislative scheme
of things. A more appropriate principle to follow would be the one laid
down by the Court of Appeal in Sia Ah Kew, which is to discern whether the actions of the offender would outrage the feelings of the community.
(c) In
determining whether the actions of the offender would outrage the
feelings of the community and in turn warrant the imposition of the
death penalty, the court must consider whether the offender has acted in
a way which exhibits a blatant disregard for human life. Thus the manner
in which the offender acted would be critical. The factors to be taken
into consideration to determine this would vary depending on the
circumstances of the case. In the case of a violent act leading to
death, the savagery of the attack would be indicative of the offender’s disregard for human life.
(d) In
any event, all the circumstances of the case must be weighed including
the motive and intention of the offender at the time he committed the
offence. While the offender’s regard for human life remains at the
forefront of the court’s consideration, other factors such as the
offender’s age and intelligence could well tilt the balance.
With these principles in mind, we now turn to consider the facts of the present appeal.
The manner in which the murder was committedThe decisions below
52 Central
to our inquiry is the manner in which the Respondent had committed the
murder. To do this would require revisiting the facts of the case.
Keeping in mind the role of an appellate court and that, as far as
possible, we should not be disturbing findings of fact, we turn first to
the findings of facts concerning the attack as found in the
Re-sentencing Judge’s Decision, the CA (Conviction) Decision, and the
Trial Judge’s Decision. It is important to note that the Re-sentencing
Judge had relied entirely on the Trial Judge’s Decision and the CA
(Conviction) Decision where the facts of the case were concerned. At
[35] of his decision, the Re-sentencing Judge stated that:
As
I was not the trial Judge in this case, I relied entirely on Kan J’s
judgment… and the Court of Appeal’s judgment… where the findings of fact
were concerned. I do not think I should look further into the evidence
adduced at the trial and make further conclusions on the facts.
He later concluded at [40(c)] of his decision that:
There
was no clear sequence of events concerning the attack. There was no
clear evidence that the convicted person went after the deceased from
behind without warning and started hitting him on the head with the
piece of wood. There was evidence that a struggle could have taken place
first between Galing and the deceased before the convicted person
stopped chasing Wu Jun and returned to assault the deceased.
53 The
Re-sentencing Judge’s conclusion that “there was no clear sequence of
events concerning the attack” was therefore his interpretation of the
findings made by the CA (Conviction). At [8] to [10] of the CA
(Conviction) Decision, the court had observed that:
8 The exact chain of events which occurred during the assault is disputed. Galing stated that Jabing led the way in:
(a) crossing the road (in order to reach the victims);
(b) intimating that the appellants (Galing and Jabing) should rob the victims;
(c) picking up the piece of wood; and
(d) striking the deceased with it.
Further, according to Galing:
(a) he told Jabing not to rob the victims but was ignored by Jabing;
(b)
he assaulted Wu Jun (after the deceased had already been assaulted by
Jabing with the piece of wood) because Wu Jun seemed to be about to
attack Jabing;
(c) he chased Wu Jun for some distance before returning to where Jabing and the deceased were located;
(d)
Wu Jun returned to the scene of the assault, and Jabing chased Wu Jun
away a second time before he (Galing) called Jabing back.
9 Jabing, however, stated that:
(a) it was Galing who first crossed the road to approach the victims;
(b) Galing had by then already wrapped his belt around his hand;
(c) Galing was already about to strike the deceased with the belt in his hands by the time Jabing picked up the piece of wood;
(d) he (Jabing) chased after Wu Jun, who had fled the scene of the assault;
(e)
he (Jabing) gave up the chase and returned to the scene of the assault,
where he saw Galing struggling with the deceased; and
(f)
he (Jabing) then struck the deceased with the piece of wood twice,
after which he then fled the scene of the assault, but not before
noticing Galing hitting the deceased with his belt and having taken the
deceased’s mobile phone.
10 To complicate
matters, Wu Jun’s evidence in his statement was that, while walking
together with the deceased at the material time, he felt something hard
hit him at the back of his head. He ran a few steps forward, turned
round, and saw a man with a tanned complexion, wearing a cap, coming
towards him in a menacing manner with a clenched fist, whereupon he (Wu
Jun) fled the scene. Wu Jun’s evidence was that he could hear the
deceased groaning in pain. After running for a while, Wu Jun called for
the police on his mobile phone, and subsequently returned to the scene
of the assault, where he discovered the deceased lying unconscious and
vomiting blood. Wu Jun also noted that the deceased’s mobile phone was
missing. At trial, Wu Jun stated that he noticed only one assailant that
night, and was unable to say whether he or the deceased was attacked
first, how the deceased was attacked or who attacked the deceased.
[emphasis in original omitted]
54 Even
though the accounts of the Respondent and Galing are clearly
contradictory, neither the CA (Conviction) nor the Trial Judge made
findings as to the exact sequence of events. Though unfortunate, this is
understandable because at that point in time there was no need for the
court to decide conclusively and exactly how the events took place as
the charge against the Respondent and Galing was under s 300(c)
of the PC. All that was needed for the Prosecution to prove was that
the Respondent had intended to inflict the injury which led to the death
of the deceased. As the law then stood, whether an accused was found
guilty of an offence under s 300(a) or s 300(c), the punishment would be the same, ie the death penalty.
55 We
also note that the Re-sentencing Judge did not make any findings as to
the number of times the Respondent had struck the deceased. There are
however a number of observations concerning this in the CA (Conviction)
Decision. After considering the statements given to the police by
Galing, the CA (Conviction) observed at [25] to [27] that:
25
… Although Galing later attempted to question the accuracy of these
statements in what appears to be a belated attempt to downplay Jabing's
culpability… there was little reason to doubt that they had been
correctly recorded. Galing's statements, therefore, were evidence that Jabing struck the deceased more than twice, and with considerable violence.
26
The violent assault on the deceased was corroborated by the medical
evidence (summarised at [22]-[29] of the [the Trial Judge’s Decision]),
which was that the deceased had sustained life-threatening injuries to
his head and brain. There was evidence from the forensic
pathologist, Dr Teo Eng Swee ("Dr Teo"), that there could have been more
than five blows to the deceased's head, and both Dr Teo and Dr Ho
Chi Long (the physician who first attended the deceased at the accident
and emergency room) were of the opinion that at least some of the
injuries required "very severe" or "huge" blunt force from several blows
to be inflicted. Dr Teo added that one of the fractures that resulted
in the initial fragmentation of the skull required "severe force".
27
In light of all this evidence, as well as the fact that the severe
injuries found on the deceased were concentrated at the region of his
head, it is clear beyond a reasonable doubt that Jabing intended to, and did, inflict multiple head injuries on the deceased, and that such injuries were certainly not accidental or unintentional.
[emphasis added]
56 The
paragraphs above, read together, clearly show that the CA (Conviction)
found that the Respondent had struck the deceased on the head with
severe force more than two times. Of course, as earlier
explained, neither the CA (Conviction) nor the Trial Judge was required
to make a specific finding as to the exact number of times the
Respondent had struck the deceased on the head. We also note that the
Trial Judge (at [24] to [28] of his decision) had made similar
observations as to the medical evidence before him, but did not
conclusively state the number of strikes the Respondent had inflicted
upon the deceased:
24 Pathologist Dr Teo
Eng Swee (“Dr Teo”) performed the autopsy on the deceased. In his
autopsy report he noted that there were fourteen fractures of the skull
with three areas of severe haemorrhage, and that the brain was soft and
severely oedematous (swollen). Dr Teo certified the cause of death to be
severe head injury.
25 Dr Teo explained
that the severe head injury recorded in his autopsy report did not refer
to the fractures of the skull. The fractures by themselves were not the
fatal injury. The fatal injury was the injury to the brain…
26 Dr Teo
was of the opinion that the skull fractures could have been caused by
five impacts or more, and that one fracture could have resulted from a
blow or a fall on the back of the head, and that the initial
fragmentation of the skull required severe force, but when the skull was
fractured, the further fractures could be caused by less severe force.
27 The
prosecutor showed Dr Teo the belt and buckle that Galing used in the
assault, and sought Dr Teo’s assistance to make connections between the
buckle and the deceased’s injuries, but Dr Teo was cautious and declined
to draw any conclusions.
28 When Dr Teo
was informed of Galing’s account in his statement that a severed tree
branch about two feet long was used by Jabing to strike at the deceased,
Dr Teo agreed that such a weapon was capable of causing the injuries
that were found on the deceased’s skull.
Our findings
57 The
specific issue which we must now address is: do the facts discussed
above show that the Respondent acted in a way which demonstrated a
blatant disregard for human life in committing the murder? As we see it,
two points can be made concerning the injuries that were inflicted upon
the deceased.
The Respondent approached the deceased from behind
58 First,
although it is true that the sequence of events is unclear, we find
that the Re-sentencing Judge had erred in finding at [40(c)] that:
…
[t]here was no clear evidence the [Respondent] went after the deceased
from behind without warning and started hitting him on the head with the
piece of wood …
While it remains
uncertain whether a struggle indeed occurred beforehand between Galing
and the deceased, the evidence clearly shows that the Respondent had
approached the deceased from behind and struck him without warning. In
fact, the Respondent himself had admitted to this at various occasions
during the trial. The following parts of the Respondent’s evidence
(given during oral testimony) are telling:
(a) First, on day 9 of the trial[note: 1]:
Q:When you picked up the wood, the two male Chinese, did they have---did they have their backs facing you?
A:Yes.
Q:So if that’s the case, which part of the head did you hit the male Chinese? Which part?
A:I cannot remember because at that time I was drunk.
(b) Second, on day 10 of the trial[note: 2]:
Q:And, Mr Jabing, when you first used the wood as a weapon against the now deceased, you had actually approached him from his rear, isn’t it?
A:Yes.
Q:And you did not give the deceased any forewarning of your approach, did you?
A:Yes.
Q:And you did not even utter any threats to the deceased before hitting him, did you?
A:Yes, that’s correct.
(c) Third, on day 10 of the trial again[note: 3]:
Q:Both of you then crept up behind the two Chinese---two male Chinese who were walking abreast of each other on the cement foothpath of the open field.
A:Yes I agree.
[emphasis added]
59 Read
together, even if it is assumed that there was a struggle between the
deceased and Galing, there remains no doubt that the Respondent had
admitted to coming from behind and hitting the deceased from the back.
In our opinion, the Re-sentencing Judge had therefore erred by finding
that there was no clear evidence showing that position. In any case,
whether or not there was a struggle beforehand is of little significance
to the Respondent’s culpability, given how the injuries were eventually
inflicted. First, it must be borne in mind that this alleged struggle
was between the deceased and Galing, and not with the Respondent – any
claims that the strikes were made “in the heat of the moment” would
therefore be unpersuasive. Second, even if some consideration could be
given to the fact that the Respondent was returning to “aid” Galing,
this might only explain the Respondent’s first strike at best. However,
it does little to explain or mitigate the additional strikes the
Respondent dealt to the deceased given that after the first
strike by the Respondent, the deceased had fallen onto the ground and
was not retaliating. After the first blow, there was effectively no more
struggle. Why was there a need to rain further blows on the head of the
deceased then?
The number of blows
60 With
this, we turn to our second point, which is the number of times the
Respondent had struck the deceased. Throughout the proceedings, the
Respondent maintained his position that he had struck the deceased only
twice – once when he approached the deceased from the back (regardless
of whether or not it was in the midst of a struggle), and once after the
deceased had fallen down and turned over to the front. However, as
mentioned above (at [56]), the CA (Conviction) found that the Respondent
had taken more than two strikes at the deceased. In particular, the CA
(Conviction) had considered Galing’s statements to the police, where
Galing had mentioned that he:
… saw [the Respondent] hitting the [deceased] several times and his head cracked open. … I really regretted that [the Respondent] hit him so many times until he died … [emphasis in original]
and also (in another statement) that:
… I gave up the chase and turned back towards Jabing who was hitting the other Chinese with the wood in his hands repeatedly … [emphasis in original]
61 For
completeness, we note that during the trial, Galing changed his
evidence to state that he had only seen Jabing strike the deceased once,
and sought to explain that his police statements were recorded
inaccurately. However, the Trial Judge was of the opinion that this
allegation was unsustainable and found that the police officers had
accurately recorded Galing’s statements (see [47] of the Trial Judge’s
Decision). This was noted and affirmed by the CA (Conviction) (see [25]
of the CA (Conviction) Decision).
62 As
discussed above, the CA (Conviction) also took note of the evidence of
the pathologist, Dr Teo Eng Swee (“Dr Teo”), who testified that the
skull fractures could have been caused by five impacts or more. Similar
observations were made by the Trial Judge. However, during the hearing
before us, counsel for the Respondent sought to persuade us that those
observations were not conclusive of the number of strikes that the
Respondent dealt, as it could not be said for certain that all five
impacts (or more) were caused by the Respondent, ie, they could
have been caused by other forces, such as a fall. As a result, counsel
for the Respondent submitted that the benefit of doubt should be given
to the Respondent and it should not be readily assumed that the
Respondent had rained multiple strikes upon the deceased’s head
as submitted by the Prosecution. Between the two positions, counsel for
the Respondent was trying to show that the Respondent had only struck
the deceased twice or at the most thrice before running away, while the
Prosecution was trying to show that the Respondent had mercilessly dealt
blow after blow on the deceased even after he had fallen onto the
ground.
63 In our opinion,
the exact number of blows that the Respondent inflicted on the deceased
and the manner in which they were carried out while certainly relevant
to our inquiry are not necessarily decisive. As the Trial Judge and the
CA (Conviction) did not have to (and thus did not) conclusively decide
on how many blows the Respondent had inflicted on the deceased’s head in
coming to their decisions, and neither did the Re-sentencing Judge do
so, we will first turn to the evidence surfaced during the trial itself
to better understand and reconstruct what exactly happened on that
fateful day (bearing in mind the very important point (see especially
below at [77] and [78]) that such reconstruction cannot contradict (and, indeed, must be consistent with) the findings of fact already made by the CA (Conviction)).
64 We
start with the observations made by Dr Teo that a “severe force” would
be required in order to cause fragmentation of an intact skull.
Commenting on the pattern of the fractures as found on the skull of the
deceased, Dr Teo identified at least five “separate” groups of
fractures which he felt were due to separate impacts. However, he also
qualified this by explaining that “once the skull has been fractured,
much less severe force is required to cause further fracturing of the
skull.” Therefore, Dr Teo said that he could not conclusively
rule out the possibility that some fractures might have been caused by
either a fall or the belt buckle. He did, however, express the view that
the fractures were “unlikely to be due to the belt buckle.”
65 We
also note that Dr Teo had highlighted certain “unusual” injuries on the
deceased. These unusual injuries were either “paired” or had “some
patterning” to them. Dr Teo later explained that the “paired” markings
could be attributable to the pattern on the belt buckle, which was the
face of the skull having two eyes and a nose which was slightly hooked.
Critically, we further note that one of these unusual injuries was on
the right eyebrow, which corresponded to one group of fractures on the
skull of the deceased which Dr Teo identified (the other injuries with
similar markings were found not on the head but on various other areas
of the body of the deceased). Galing had also admitted that after he had
returned to the scene, he had struck the deceased (at least) once
before taking the deceased’s phone and running away. Describing this,
Galing mentioned that:[note: 4]
At
that time the deceased was sitting down and he wanted to get up. And as
he was about to get up, I hit him. After hitting him, I wanted to run
away but at that time I saw his handphone. When I saw his handphone, I
picked up his handphone and ran off.
Galing however, asserted that he could not remember exactly where he had struck the deceased.
66 We
will now consider whether it is possible to determine the number of
blows landed by the Respondent on the deceased’s head. Starting first
with the objective medical evidence alone, it could be said that, prima facie,
the Respondent had landed at least five blows onto the head of the
deceased – thus the five separate groups of fractures mentioned by Dr
Teo. What raises doubt as to this prima facie position appear
to be two matters. First is the allegation that the fall of the deceased
onto the ground after the first blow by the Respondent could be the
cause of some fractures. Second is the fact that at some later point
Galing hit the deceased using his belt buckle.
67 On
the first matter, it stands to reason that if the fall could cause a
group of fractures, it would mean that the first blow by the Respondent
onto the deceased’s head must have been of such a tremendous force that
it literally cracked the skull and weakened it so much so that just a
fall could cause a further set of fractures. Even then, on the
Respondent’s own evidence, he went on to deliver a second blow to the
deceased’s head. What this means, is that even if we are to give the
Respondent the benefit of the doubt and find that certain groups of
fractures were attributable to a fall, in line with the severity of his
first blow, it must follow that the second blow of the Respondent would
also have been of considerable force. There was nothing to indicate that
he had suddenly turned merciful as to lessen the force of the
subsequent blow. Pausing here for a moment, and assuming that the
Respondent had only inflicted two blows, the picture which emerges
before us is a person, while his intention was only to rob the deceased,
did not care at all whether his severe blows to the deceased would
cause him to die. This is even more apparent considering that the
Respondent had chosen to hit the deceased in an extremely vulnerable
region ie his head.
68 Thereafter,
we have the evidence of Galing where he said that he struck the
deceased with his belt buckle. It is true that Dr Teo had opined that,
once the skull is fractured, a much less severe force is required to
cause further fracturing, and therefore, a strike from the belt buckle,
after the Respondent had delivered the first severe blow, could very
well have caused further fracturing, although he also had some
reservations, stating that this would be unlikely (see [64] above).
Galing testified that he had struck the deceased only once when
he returned to the scene where the deceased and the Respondent were.
Assuming that Galing was not involved in a struggle with the Respondent
earlier, Galing’s position cannot be true as there were multiple
injuries with a pattern (see [65] above) on other parts of the deceased
body (not the head) with only one injury with a pattern appearing on the
right eyebrow of the Deceased. Taking these into consideration, all it
means is that one set of fractures could possibly be attributed
to the belt buckle, and even then, we hasten to add that Dr Teo had his
reservations as to this possibility (the belt buckle causing a set of
fractures). The net result is that, at the very most, one group of
fractures would have been caused by the fall, and another group by the
belt buckle. That leaves three more group of fractures to account for,
leading us to draw the irresistible conclusion that the Respondent had
struck the deceased at least three times on the head, which was also the
finding of the CA (Conviction) when it held that that the Respondent
had struck the deceased on the head more than twice (see [56] above).
69 Apart
from the medical evidence, the only other evidence which suggests that
the Respondent had struck the deceased multiple times are the statements
of Galing to the police. As observed above, Galing had changed his
evidence during oral testimony at the trial to state that he had only
seen the Respondent strike the deceased once (which is even contrary to
what the Respondent himself admitted).
70 We would only note that this claim of Galing that the statements were recorded inaccurately was rejected by both
the Trial Judge and the CA (Conviction). The Trial Judge had the
opportunity to observe Galing during his oral testimony and to draw his
conclusions from that, and there is no reason why this court at this
re-sentencing stage should refuse to accept that finding. There are
obviously a variety of reasons why Galing could have been motivated to
change his story at the trial to help the Respondent, and an exercise in
speculation would be futile, bearing in mind that even the Respondent
admitted that he had struck the deceased on the head twice. In the light
of the totality of the evidence, we are satisfied that the Respondent
had struck the deceased head with the tree branch with much force at
least three times. We say “at least” because we have borne in mind Dr
Teo had opined that it was unlikely that the belt buckle could have
caused the fractures. More importantly, we have absolutely no doubt
that when the Respondent landed the three blows on the head of the
deceased, he did not care at all whether the blows would kill the
latter.
Did the Respondent act in a way which showed a blatant disregard for human life?
71 We
have focused thus far on the exact number of blows the Respondent had
inflicted on the head of the deceased, although that is not the defining
question that needs to be answered. The key question which we must
answer is – did the Respondent act in a manner which showed a blatant
disregard for human life? While, as we have stated above, that the
question as to the number of blows which the Respondent had landed on
the head of the deceased is not decisive, it remains very relevant to the key question. The following considerations are critical to our decision:
(a) First,
we find that the Respondent had approached the deceased from behind,
and struck him without any warning. Whether or not this was prefaced
with a struggle, between Galing and the deceased, is of little
significance to the Respondent’s culpability. After the first blow was
inflicted which caused the Respondent to fall to the ground, there was
effectively no more struggle.
(b) Second,
after the deceased fell to the ground after the first blow and then
turned around to face upwards, the Respondent struck him once more. It
is not disputed that the Respondent was not retaliating. In our
judgment, we are of the view that the Respondent continued to hit the
deceased at the very least two more times, before leaving the scene.
When Galing returned to the scene after chasing Wu Jun he hit the
Deceased with his belt buckle.
(c) In
any case, even if the Respondent’s assertion that he had only struck
the deceased twice is to be believed and accepted, then the force he
exerted in the two blows must have been so great as to cause fracturing
of such severity and magnitude, so much so that a fall, or a strike with
Galing’s belt buckle, could have caused further fracturing.
72 In
our judgment, and consistent with the finding of CA (Conviction), the
Respondent had struck the deceased on the head not once, but at least
three times altogether. Even if the Respondent did not intend to hit the
deceased on his head the first time when the Respondent approached the
deceased from the back (we would only add that we cannot see how that
could be the case since he approached the deceased stealthily from the
back and there was no evidence that the deceased had dodged), we cannot
accept that, after the deceased fell and then turned round facing
upwards, the Respondent likewise was unaware that he was going to hit
the head of the deceased. Given the manner in which the attack was
carried out, this was not a case where the Respondent had merely hoped
to disable his victim in order to rob him of his belongings. Neither was
this a case where the injuries were sustained in the course of a fight
or a struggle. This was a case where even after the deceased was no
longer retaliating (after the first blow), the Respondent went on to
strike the deceased an additional number of times, completely
unnecessary given that his initial intention was merely to rob him. In
light of the sheer savagery and brutality exhibited by the Respondent,
we are completely satisfied that the Respondent exhibited a blatant
disregard for human life in the way he attacked the deceased.
Other circumstances of the case
73 At
[40(c)] of his decision, the Re-sentencing Judge observed that the
Respondent was relatively young, being 24 years of age, at the time of
the offence. The Re-sentencing Judge also rightly observed that the
Respondent was not as young as the convicted person in Fabian (who was 18 years of age). In our opinion, the Respondent’s age (at 24 and not 18 as the offender in Fabian)
is at best a neutral factor, and does little to change the gravity of
the case. The Re-sentencing Judge had also observed (at [40(a)] of his
decision) that the Respondent’s choice and use of the piece of wood was
“opportunistic and improvisational”, citing the CA (Conviction) Decision
at [35(b)]. Likewise, we found this to be at best a neutral factor,
given the way and manner the attack was eventually carried out. The fact
that the choice of weapon happened to be opportunistic pales in
comparison with the savage and callous manner in which the Respondent
had wielded it.
Comments on dissenting judgments
74 The
difference in views between the majority and the minority is a matter
of fact and not of law. As a matter of law, there is a concurrence in
views on the test that is to be employed in determining when the death
penalty should be imposed. It is common ground, however, that the
disagreement is one of fact. Particularly, we note that the minority
found that there was insufficient evidence to establish beyond
reasonable doubt that the Respondent had hit the deceased on the head at
least three or more times, or that the Respondent had hit the deceased
with such huge force as to cause most of the fractures in the deceased’s
skull. Given this insufficiency, the minority was of the opinion that
therefore, the threshold of the test (ie, whether the
Respondent had acted in a way which exhibits viciousness or a blatant
disregard for human life), had not been crossed.
75 In
order to reach their conclusion, the minority undertook an extensive
review of the evidence that had surfaced during the very first trial.
That being so, we emphasise that since this appeal arises from a
re-sentencing proceeding pursuant to the PCAA, the first port of call
must be the CA (Conviction) Decision. The findings of fact made by that
court should not be revisited in the present
proceedings. Indeed (and for the avoidance of doubt), all the issues as
well as concerns raised by the minority were also raised by counsel during the hearing before the CA (Conviction) and were ruled upon by that court. We wish to highlight that at the hearing before CA (Conviction), Jabing’s counsel had submitted, inter alia, the following points:[note: 5]
(a) “…there was no way that [Jabing] could have caused the 14 or so fractures which Dr Teo testified about”;
(b) “For
the 14 fractures to happen dispersed over the head of the deceased
there must have been several strikes on the deceased’s head and
definitely more than two”;
(c) “…there
is a strong possibility that Galing did not only use the belt buckle
but also the piece of wood which Jabing had discarded when fleeing the
scene”;
(d) “…there is a doubt that it was [Jabing] who caused those injuries which resulted in the death of the deceased.”
Admittedly,
as that court was dealing with the pre-amendment position, there was no
reason for it to assess the savagery (or otherwise) of the Respondent’s
actions; put simply, it was merely making its findings of fact
based on the evidence and submissions raised by the counsel concerned.
Clearly, the CA (Conviction) had found that the Respondent had inflicted
more than two blows on the head of the deceased. As the law
then stood, there was no need for the court to be more specific then.
What is also clear is that the court did not accept the Respondent’s
counsel suggestion that Galing could also have used the piece of wood
discarded by the Respondent to hit the deceased, because the court
acquitted Galing of the murder charge and instead convicted him of only
the offence of robbery with hurt.
76 What this court ought to be concerned about in the present proceeding is whether based on those
findings of fact, the discretion ought (or ought not) to be exercised
in favour of the Respondent under the (amended) s 302(2) brought about
by the PCAA.
77 Viewed in this light, in this proceeding, this court should only supplement the findings of the CA (Conviction) with further findings of fact to the extent – and only
to the extent – that the CA (Conviction) had been silent and/or
ambiguous on matters that are germane to the resolution of the present
appeal. As stated above, the CA (Conviction) had accepted Galing’s
statements and found “that Jabing struck the deceased more than twice, and with considerable violence”
[emphasis added in italics and bold italics]. We would reiterate that
Galing’s attempt to question the accuracy of his statements at trial was
rejected by both the Trial Judge and the CA (Conviction). Having
scrutinised the evidence, the CA (Conviction) concluded (at [27]) that:
In
light of all this evidence, as well as the fact that the severe
injuries found on the deceased were concentrated at the region of his
head, it is clear beyond a reasonable doubt that Jabing intended to, and did, inflict multiple head injuries on the deceased, and that such injuries were certainly not accidental or unintentional. [emphasis added in italics and bold italics]
78 With the greatest respect, the minority have embarked on a total reconsideration of all the findings of fact made by the CA (Conviction); they have, in effect, not only re-opened as well as questioned those findings but also sought to reverse them.
Indeed, if the analysis in these judgments is taken to its logical
conclusion, there might be at least a strong case for finding that the
Respondent ought not to have even been convicted under s 300(c)
in the first place. Even if we were to accept the position that it was
unclear as to how many times the Respondent had struck the head of the
deceased, what is vitally important to bear in mind is that what we have
here was a completely shattered skull. Bearing in mind the fact that the alleged intention of the Respondent and Galing was merely to rob the deceased, what the Respondent did underscores the savagery of the attack which was characterised by needless violence that went well beyond the pale.
79 Returning
to our position, as we have observed, at the very least, the Respondent
had chosen to strike the deceased with such immense force at an
extremely vulnerable region, so much so that a simple fall or a strike
from a buckle could have led to further shattering. To us, this alone,
already shows the Respondent’s complete disregard of human life. To say
that the fall (after the first blow by the Respondent) and the hit by
Jabing on the deceased’s right eyebrow with the use of the buckle could
have caused further fractures and thus mitigated the viciousness of the
attack is, with respect, a non-plus to us. The evidence is clear –
severe force, from more than two blows, had caused the kind of fractures
which were found on the head of the deceased.
Conclusion
80 The
result of the amendments to the mandatory death penalty regime is that,
in certain circumstances, it is the court who is now the final arbiter
of whether an offender is deserving of the ultimate penalty. The
punishment of death is an unusually severe punishment in its finality
and enormity. The irrevocability of this punishment demands that in the
exercise of this discretion, the court should be guided by clear and
practicable principles in order to prevent any form of capriciousness
and arbitrariness.
81 At the
same time, we recognise that the nature of the crime is such that it
does not lend itself to a situation where the court could lay down a set
of specific objective factors which are determinative. By its very
nature, what would constitute a blatant disregard of human life would be
very fact-sensitive. The punishment of a crime must be proportionate to
the gravity of the crime.
82 In
our judgment, the punishment of death will be appropriate when the
offender had committed the murder in a manner which clearly demonstrates
a blatant disregard for the sanctity of human life. In this appeal, the
Respondent had struck the deceased in a vulnerable region (the head).
We find (as did the CA (Conviction) in dismissing his appeal against
conviction) that the Respondent had struck at the deceased’s head at
least three times. Although it is impossible to reconstruct exactly what
had occurred on that fateful day, given the evidence before us, we are
inclined to think that the Respondent had struck the deceased more times
than that.
83 While the possibility of additional injuries being caused by another force cannot be conclusively
ruled out (for example, by the belt buckle of Galing or a fall), in our
judgment, the medical evidence clearly shows that the fatal blows are
attributable to the Respondent. The sheer savagery and brutality
displayed by the Respondent shows that during the course of the attack,
the Respondent just simply could not care less as to whether the
deceased would survive although his intention at the time was only to
rob. He did not stop attacking the deceased even after the latter was
incapacitated and was no more in a position to respond after the first
blow. His actions were utterly vicious.
84 In
the result, we find that the Respondent had shown a blatant disregard
for human life. Therefore, we allow the Prosecution’s appeal and impose
the death penalty on the Respondent.
Lee Seiu Kin J:
Introduction
85 At
the invitation of Woo Bih Li J, I am delivering my judgment ahead of
him. I have had the benefit of reading the judgment of my learned
colleagues, Chao Hick Tin JA, Andrew Phang Boon Leong JA and Chan Seng
Onn J (“the Majority Judgment”). In the paragraphs that follow, I have
adopted the nomenclature in the Majority Judgment, save that I refer to
the Respondent as “Jabing”.
86 The
key issue in this appeal is whether the death penalty should be imposed
on Jabing under s 302(2) of the PC. I should state at the outset that I
respectfully agree with the analysis in the Majority Judgment of the
law in relation to the imposition of the death penalty on a charge under
s 300(c), and punishable under s 302(2), of the PC. In particular, I
agree that the “rarest of rare” principle is not appropriate for
Singapore (see [43] above). I agree with the formulation of the test set
out in the Majority Judgment at [44] above, ie, it is a
question of whether the offender’s acts are “so grievous an affront to
humanity and so abhorrent” that the death penalty is the only adequate
sentence. I also am further in complete agreement that, in the context
of the present case, capital punishment would be appropriate where the
offender had “acted in a way which exhibits viciousness or a blatant
disregard for human life” (see the Majority Judgment at [45] above).
87 As
is usually the case in these matters, the outcome of the appeal hinges
on the findings of fact. It is solely in relation to the findings of
fact that I must respectfully depart from the Majority Judgment. I now
give the reasons for my dissent on this point.
88 Prior to the enactment of the PCAA, all that the Prosecution was required to prove in a trial on charge under s 300(c)
was that the accused had intentionally inflicted the injury on the
deceased, which injury was sufficient in the ordinary course of nature
to cause death. It was neither necessary for the conviction nor the
sentence to prove any details of the acts of the accused beyond this.
While evidence of the accused’s intention to inflict the fatal injury
would be found in the manner in which he had attacked the deceased, in
certain circumstances it is possible for an accused to be convicted
without evidence providing a blow-by-blow account of the incident. The
fact that such evidence is not before the court is often not due to the
fault of the Prosecution. Very often, as was the situation in the
present case, there are no witnesses available to give this evidence. If
there is evidence to prove all the elements of the offence, the lack of
a detailed account of the incident will not stand in the way of a
conviction under s 300(c). And once a person is convicted under s 300(c)
of the PC, under the previous incarnation of s 302 of the PC, the only
punishment that could be imposed was the death penalty. However, with
the amendment brought about by the PCAA, the new s 302(2) of the PC gave
the court the discretion to impose the death penalty or life
imprisonment (with or without caning). As a result of this legislative
change, the details of the attack on the deceased by an accused person
became crucial on the issue of sentence, even though it was not at the
time of the trial.
89 The
problem in this case lies with the fact that we are now trying to
reconstruct, from the evidence given under those circumstances, the
sequence of events in order to determine the extent of Jabing’s role in
causing the death of the deceased. However difficult the task may be, it
must be done on the basis of the criminal standard of proof, ie,
beyond a reasonable doubt. Where any evidence is ambiguous, the benefit
of the doubt must be given to Jabing. Some of these ambiguities could
have been resolved had the relevant witnesses been asked questions at
the trial from this point of view; but this was not done and we can only
look at the evidence at hand and make such findings of fact as we can
based on the criminal standard of proof. In my view this court is
entitled to revisit any findings of fact made in the CA (Conviction)
decision in view of this crucial difference in the nature of the inquiry
pointed out in the preceding paragraph.
90 I
shall first examine the two key findings of fact in the Majority
Judgment upon which the majority of this court concluded that Jabing had
acted in blatant disregard for human life. These are (a) Jabing had
approached the deceased from behind without warning, and (b) Jabing had
struck the deceased in the head at least three times (as stated in [70]
of the Majority Judgment) and with such force as to cause most of the
extensive fractures found in the deceased’s skull. I intend to show that
there is insufficient evidence to find beyond reasonable doubt that
Jabing had caused most of the skull fractures (either by multiple
strikes or two strikes with huge force). Following that, I shall set out
the findings of fact which this court can find to be established beyond
reasonable doubt by the evidence before the trial court, upon which the
sentencing decision should be based. My conclusion is that, based on
this set of facts, it cannot be concluded that Jabing had acted in
blatant disregard of human life.
First key finding: Whether Jabing approached the deceased from behind without warning
91 On
this first question, in my opinion there is sufficient evidence to
establish beyond reasonable doubt that Jabing had approached the
deceased from behind without warning and hit the deceased in the head.
There is clear and consistent evidence from the factual witnesses even
though the medical evidence is, at best, neutral on this point.
Factual witnesses Jabing
92 Jabing’s evidence is that he approached the deceased from behind without warning and struck him in the head.
93 It was recorded in Jabing’s statement dated 4 March 2008 that:[note: 6]
Like
I have stated in my earlier statement, soon after Galing and I crossed
the road to the open field, I picked a wood which I found on the ground.
When I looked up, I saw a smaller built victim was running away and I
started to chase him. By then Galing had started to hit the other male
Chinese who is bigger built. I gave up the chase and turned around to
help Galing who was by then was struggling with the said male Chinese. I came from behind and used the wood that I was holding on the head of the bigger built male Chinese. ... [emphasis added]
94 Jabing had also admitted at least three times during the trial that he approached the deceased from the back:
(a) 30 July 2009, page 60, line 31:
Q:When you picked up the wood, the two male Chinese, did they have---did they have their backs facing you?
A:Yes.
(b) 31 July 2009, page 23, line 32:
Q:And,
Mr Jabing, when you first used the wood as a weapon against the now
deceased, you had actually approached him from his rear, isn’t it?
A:Yes.
Q:And you did not give the deceased any forewarning of your approach, did you?
A:Yes.
Q:And you did not even utter any threats to the deceased before hitting him, did you?
A:Yes, that’s correct.
(c) 31 July 2009, page 43, line 32:
Q:Both
of you then crept up behind the two Chinese---two male Chinese who were
walking abreast of each other on the cement footpath of the open field.
A:Yes, I agree.
95 Apart
from whether there was a struggle between the deceased and Galing,
Jabing’s evidence on this point is consistent with Galing’s evidence in
his statements and during the trial. I now turn to consider Galing’s
evidence on this point.
Galing
96 It was recorded in Galing’s statements that he saw Jabing approach the deceased from behind and hit him with the wood:
(a) Statement dated 26 February 2008:[note: 7]
...
I then asked Jabing what we are going to do. Jabing replied that we
robbed the two male Chinese. I told Jabing not to do it. Jabing did not
reply and just walked behind the two male Chinese. I then saw Jabing took a piece of wood near a tree. After a few steps, Jabing used the wood to hit on the male Chinese who has a bigger built on his head. ... [emphasis added]
(b) Statement dated 3 March 2008:[note: 8]
... The said wood is about 2 feet long. Jabing carried it with his right hand by his side and walked hurriedly towards the rear of the 2 male Chinese. I would like to say that one of the male Chinese was smaller in built whilst the other was bigger built. When
Jabing neared both of them, he used both his hands and swung the wood
towards the right side of the bigger built male Chinese. ... [emphasis added]
97 Galing’s statements were consistent with his evidence during the trial:
(a) 27 July 2009, page 11, line 17:
A:After picking up the piece of wood, he went straight to the two Chinese persons.
Q:Carry on.
A:I then saw him hitting one of the two Chinese.
Q:Where did he hit the Chinese gentlemen?
A:I’m
not sure where he had hit the Chinese person but---but I think he had
hit the Chinese person on the back---on the back part of his body.
(b) 27 July 2009, page 32, line 23:
Q:Prior
to my client hitting the deceased, would I be correct to say that both
the Chinese persons had their back facing both you and Jabing?
...
A:Yes.
Wu Jun
98 To some extent, the evidence of Jabing and Galing (ie,
that Jabing approached the deceased from behind) is consistent with Wu
Jun’s account of the attack. Wu Jun’s evidence would suggest that:
(a) Wu
Jun was attacked by Galing using the belt buckle from behind. This is
based on Wu Jun’s evidence that he was hit once by something hard at the
back of his head (near his left ear),[note: 9] which he thought was a chain,[note: 10] and that he saw his assailant with “a clenched fist” [emphasis added] and “raising his hand as if he was going to attack me”.[note: 11] [emphasis added].
(b) The
initial strike to the deceased was by Jabing. This can be inferred from
Wu Jun’s evidence that he heard his friend groaning as if he was in
pain shortly after he was attacked by Galing.[note: 12]
The logical conclusion, given that Jabing and Galing were the only two
assailants, was that Jabing was the one who struck the deceased.
(c) Jabing
did not approach the deceased from the front. This can be inferred from
Wu Jun’s evidence that he was walking beside the deceased,[note: 13] and he did not see any other person apart from his assailant (which was identified as Galing).[note: 14]
99 While
Wu Jun does not say specifically that he saw Jabing approach the
deceased from behind and hitting him in the head, his account of the
attack is consistent with the evidence of Galing and Jabing (apart from
the alleged struggle).
Medical evidence
100 There
is, however, one concern that ought to be addressed here, that is, the
medical evidence is neutral on whether the deceased was struck in the
head from behind.
101 The
evidence of Dr Teo Eng Swee (forensic pathologist) and Dr Ho Chi Long
(neurosurgeon) would suggest that the deceased might not have suffered a
direct blow to the back of his head. Dr Teo’s evidence was
that he could not rule out the possibility that fracture (14) at the
back of the head might have been caused by a fall.[note: 15] On the other hand, Dr Ho took the view that fracture (14) could have been an extension of the fractures on the left side of the skull.[note: 16]
102 However,
this may not necessarily be inconsistent with the fact that Jabing had
approached the deceased from behind without warning. The deceased could
well have turned his head to the side when Jabing approached from the
back such that Jabing’s initial strike landed on the side instead of the
back of the deceased’s head. Indeed, it is not difficult to imagine
that the deceased might have heard someone approaching from behind and
wanted to turn around to see who it was. It is also possible that the
initial strike by Jabing to the deceased’s head did not cause any
fractures. It should be noted that Dr Teo could not give evidence of the
order in which the injuries were sustained (except that fracture (8)
might have occurred after the other fractures).[note: 17]
Accordingly, the medical evidence neither proves nor dispels the
proposition that Jabing approached the deceased from behind without
warning.
Summary of the evidence
103 While
the medical evidence does not show that the deceased was struck in the
back of the head, it may not necessarily be inconsistent with the fact
that Jabing had crept up behind the deceased without warning and
attacked him. More importantly, there is clear and consistent evidence
from all three key factual witnesses (ie, Jabing, Galing and Wu
Jun) that would support a finding beyond reasonable doubt that Jabing
had approached the deceased from behind without warning and hit him on
the head.
Second key finding: Whether
Jabing hit the deceased on the head at least three times or with such
huge force as to cause most of the fractures
104 In
my view, there is insufficient evidence to establish beyond reasonable
doubt that Jabing had hit the deceased on the head at least three times,
or that Jabing had hit the deceased with such huge force as to cause
most of the fractures in the deceased’s skull. The evidence would, taken
at the highest, show that Jabing had hit the deceased in the head twice
and caused the skull to fracture.
105 I shall consider firstly, the evidence relating to the number of blows sustained by the deceased, and secondly, the evidence on the number of blows inflicted by Jabing.
The number of blows sustained by the deceased
106 For
the reasons that follow, I am of the view that the evidence only
supports a finding that deceased sustained two blows to the head. This
comes primarily from Jabing’s evidence (see [107] below). The medical
evidence does not establish beyond reasonable doubt the exact number of
strikes that the deceased sustained or if the deceased in fact sustained
more than two strikes to the head (see, in particular, [111] and [121]
below).
Factual witnesses
107 The evidence of Jabing, Galing and Wu Jun would not support a finding of fact that the deceased sustained more than two strikes to the head:
(a) Wu Jun’s evidence suggests that the deceased was struck but not necessarily on the head. This is because Wu Jun only heard the deceased groaning in pain shortly after he was assaulted by Galing.[note: 18]
(b) Jabing’s evidence, both in his statements and during the trial, was that he had only hit the deceased twice.[note: 19] While it was recorded in Jabing’s statements that he saw Galing hit the deceased with the belt buckle,[note: 20]
he did not mention the number of times. In one of his statements,
Jabing was recorded as having said that he was not sure how many times
Galing hit the deceased.[note: 21] At trial, Jabing said that he did not see Galing hit the deceased.[note: 22] On Jabing’s evidence, then, the deceased would have only been hit in the head twice.
(c) Galing’s
evidence suggests that the deceased sustained one or two blows.
Galing’s evidence was that he had only hit the deceased once either in the chest or head.[note: 23]
As for the number of times Jabing hit the deceased, Galing changed his
evidence during the trial to say, consistently, that he only saw Jabing
hit the deceased once.[note: 24]
108 Based on the evidence of Jabing, Galing and Wu Jun, the deceased would have sustained only two blows to the head.
Medical evidence
109 The key issue is whether the medical evidence supports the finding that the deceased sustained at least five direct
strikes to the head. Neither Dr Teo nor Dr Ho could state the exact
number of blows sustained by the deceased, but merely concluded that it
would take “several blows” or a “huge force”.
110 Firstly, the medical evidence does not support a finding that the skull fractures were caused by five impacts or more.[note: 25] A closer look at the Notes of Evidence would show that Dr Teo had identified not only five but a total of eight points of impact:
(a) First,
the laceration above the left eyebrow/forehead region and the
fragmentation of the skull suggest blunt force impact.[note: 26]
(b) Second, fractures (5) and (6) indicate an impact on the right side of the skull.[note: 27]
(c) Third, fractures (2), (3), (4) and (7) could be due to one impact or more.[note: 28]
(d) Fourth, fracture (8) could be due to a separate impact.[note: 29]
(e) Fifth,
fracture (1), which is a comminuted fracture of the frontal bone above
the right eye, is probably due to another impact.[note: 30] Fracture (12) could have been a continuation of fracture (1) as well.[note: 31]
(f) Sixth, fracture (9), which is a V-shaped fracture, could be due to another impact.[note: 32]
(g) Seventh, fracture (14) could be due to another impact (Dr Teo said he does not exclude that it might be due to a fall).[note: 33]
(h) Eighth,
the fragmentation on the left side of the skull (where the left-sided
craniectomy was performed) could be due to one or more impacts.[note: 34]
However, fractures (10), (11), (12) and (13) at the base of the skull
could have been “continuations of the fractures” from the part of the
skull where the craniectomies were performed.[note: 35]
111 More
importantly, however, Dr Teo ended that discussion with an important
caveat that did not appear to have been picked up in any of the previous
proceedings:[note: 36]
...based on the injuries, these are the possible impacts, but I cannot say whether it is just one particular blow or multiple blows. [emphasis added]
112 Dr
Teo also explained that “[o]ne impact may cause multiple fractures but
the impact would have to be of very great force”.[note: 37]
To be fair, Dr Teo did say subsequently during re-examination that, in
his view, one blow with a blunt object would not have caused all the
fractures present in this case.[note: 38]
Nevertheless, it should be noted that Dr Teo did not go on to say the
number of blows that it would have taken to cause the fractures. He
certainly did not say specifically that the deceased sustained five direct blows to the head.
113 Secondly, Dr Teo did not have the opportunity to examine the entire skull of the deceased during autopsy as significant
parts of it had been removed during the two craniectomies that were
performed on the deceased. As a result of the injuries caused to the
head which led to cerebral oedema (ie, swelling of the brain),
the deceased had to undergo decompressive craniectomy twice. During the
trial, Dr Teo’s evidence was as follows:[note: 39]
Court:
|
In
other words, you don’t even know where the fracture started because the
craniectomy---you did---you didn’t have a look at what was removed?
|
A:
|
Exactly, your Honour.
|
114 This is consistent with Dr Ho’s evidence on what was done to the removed part of the deceased’s skull:[note: 40]
Court:
|
When
you say “remove”, you remove it for the surgery. But if the patient has
survived and conti---you will reinstate all these eventually, right?
|
A:
|
Oh, previously it was a practice to reinsert these bones back.
|
Court:
|
Yes.
|
A:
|
Er,
but in recent times, we do not reinsert these bones back because they
were---these---these bones became a source of infection---
|
Court:
|
Yes.
|
A:
|
---if
we reinsert it back. And if---if these patients were to recover, they
will undergo another surgery to put a metal kind of skull or plastic
kind of skull, yah.
|
Court:
|
Okay. Right. So they are actually removed.
|
A:
|
They---they were removed, er, and, er, sort of, er, thrown away.
|
[emphasis added]
115 Dr Ho’s evidence is pertinent as he was the doctor who attended to the deceased during the surgery.[note: 41]
Dr Ho explained that the part of the skull removed during the
left-sided craniectomy was in “multiple fragments” and that it would
have required “very huge force” to cause such an injury.[note: 42] Significantly, Dr Ho took the view that some of the other fractures may have been extensions of the fracture caused by the blow(s) to the left side of the skull:[note: 43]
There is not only skull fragments on the left side but that there were skull fractures extending towards the right side also and the front part of the skull bone too. [emphasis added]
116 For the fractures on the right side of the skull, Dr Ho said that:[note: 44]
Q:Again, can you describe to us the nature of the fractures that you witnessed over the right side?
A:Now, the right side is less complicated fractures. Er, it’s actually an extension from the left side.
Er, I may use the---if I can use the analogy of an egg. You smash
on---on one side, sometimes you may see cracks running down towards the
other side. It’s kind of same like a skull. The---the multiple fragments on one side, there were, er, crack extension down towards the other side.
So on the right side there were, er, skull fragments---I’m sorry,
there---there were lines, skull cracks running down the right side.
[emphasis added]
117 As for the back of the skull, Dr Ho’s view was that:[note: 45]
Q:Now, the crack on the occipital bone, can you tell if that was result of a direct force applied at that area?
A:That I cannot say for sure but I believe it can be an extension of the, er, left parietal, er, fractures.
[emphasis added]
118 Three observations can be made here.
119 First, Dr Ho’s opinion is that some of the fractures on the back and front of the skull may not have been caused by direct
blows, but could have been an extension of the fractures caused by
blow(s) to the left side of the deceased skull where the craniectomy was
performed.
120 Second, Dr
Teo considered that the fractures to the deceased’s skull could have
been caused by distinct blows, but he arrived at the conclusion without
having the opportunity to examine the deceased’s skull in its entirety
(see [113] above). Unfortunately, Dr Teo was not asked if he agreed with
Dr Ho’s opinion that the other fractures could have been extensions
from the fracture to the left side of the skull where the craniectomy
was performed. However, Dr Teo does not appear to disagree with the
possibility that certain fractures could have been extensions of the
fractures to the left side of the skull; in fact, he was of the view
that fractures (10), (11), (12) and (13) at the base of the skull (that
is, the part which is in contact with the bottom of the brain) could
have been “continuations of the fractures” from the part of the skull
where the craniectomy was performed.[note: 46]
121 For
completeness, I should add that even though Dr Ho suggested several
times during the trial that the fractures would require several blows,[note: 47] he could not be certain and eventually acknowledged that he can only say that it was a “huge force”.[note: 48] Like Dr Teo, he could not specify the number of blows that would have been necessary in order to cause such fractures.
122 Third, it cannot be ruled out that some of the fractures could have been caused by indirect force, eg,
the deceased falling and knocking his head against the ground. Dr Teo
does not rule out the possibility that at least one of the fractures (ie, fracture (14), at the back of the skull) might have been caused by a fall.[note: 49] Dr Ho also makes the point that the fracture to the right side of the skull (ie,
fractures (5) and (6), at the right side of the skull) could possibly
have been caused by the deceased knocking himself on the ground:[note: 50]
Q:So would you say if there was any direct force applied to the right side of the skull from what you saw?
A:Now,
from what I saw, I cannot be a hundred per cent sure if there’s a
direct force or an indirect force, but there’s kind---there’s some kind
of force, er, also directed on the right side of the skull because I saw
the---that there was also scalp swelling on the right side too. So
he was either someone who was hit and then fell down and knocked on the
other side or a force going through the right side. That we cannot say
for sure.
[emphasis added]
123 Even
though Dr Ho subsequently testified that it is “impossible just a
simple fall can cause that severe injury”, it was an answer in response
to counsel’s question whether the injuries suffered by the deceased
could have been as a result of “a fall or several falls”.[note: 51] It should not be understood to mean that Dr Ho is saying that none of the fractures might have been caused by a fall.
Summary of the evidence
124 From
the analysis above, it is clear that the medical evidence does not
support the finding of fact that the deceased sustained at least five direct
strikes to the head. There is a possibility that some of the fractures
were caused by indirect force like a fall. There is also a possibility
that some of the fractures were extensions of the fractures on the left
side of the skull. Significantly, Dr Teo’s evidence was based on his
assessment of the incomplete skull (due to the craniectomies). In any
event, neither Dr Teo nor Dr Ho was able to specify the number of blows
that would have been necessary to cause the skull fractures sustained by
the deceased.
125 If it is accepted that there is insufficient evidence to establish that the deceased has sustained more than two blows to the head, then it follows that there cannot be a finding that Jabing had inflicted three or more blows to the deceased’s head.
126 I now move on to the next point, ie,
there is insufficient evidence to establish beyond reasonable doubt
that Jabing had inflicted more than two strikes to the deceased’s head.
The number of blows inflicted by JabingFactual witnesses
127 The
evidence of Jabing, Galing and Wu Jun on the number of blows inflicted
by Jabing on the deceased’s head have been discussed above (at [107])
and they can be summarised as follows:
Blows by Jabing
|
Blows by Galing
| |
Wu Jun’s evidence
|
Unknown
|
Unknown
|
Jabing’s evidence
|
2 only
|
0 or more*
|
Galing’s evidence
|
1 or repeatedly*
|
0 or 1 only*
|
*evidence changed during trial
128 It
is apparent that the evidence of Jabing, Galing and Wu Jun, without
more, would only show that Jabing had, at best, struck the deceased on
his head two times. It should be recalled that Wu Jun had only heard
the deceased groaning in pain ([107(a)] above), but this might not have
been caused by a blow to the head. Jabing had confessed to having
struck the deceased in his head twice and no more.[note: 52]
The only point of contention lies with Galing’s evidence. As discussed
earlier ([107(c)] above), Galing had changed his evidence during trial
to say that he only saw Jabing hit the deceased in the head once.
The crucial question is whether it is safe to rely on Galing’s
statements to support the finding that Jabing had hit the deceased
multiple times in the head with the wood.
Weight to be placed on Galing’s statements
129 For
the reasons that follow, I am of the view that little weight should be
placed on Galing’s statements in relation to the number of times Galing
saw Jabing hit the deceased in the head.
(1) Co-accused’s statements
130 It
is commonly accepted that the evidence of a co-accused (like Galing)
would have to be treated with caution as he may lie or distort the truth
to preserve his own interests. In Chin Tet Yung, “Criminal Procedure
Code 2010: Confessions and Statements by Accused Persons Revisited”
[2012] 24 SAcLJ 60 at para 53, the learned author stated that:
Even
if the statements were to be ruled admissible, the weight to be
attached to them is another matter. Judges have to give detailed reasons
of how they arrived at their findings of fact especially in criminal
trials where the accused may face the death sentence. In the case of
statements by accused persons, it may be thought that the probative
value would be especially high if the statement were truly voluntarily
given. However, as case law has repeatedly shown, statements may contain self-serving exculpatory accounts, as well as shifting of blame to accomplices or co-accused. There can be no hard and fast rule about the weight to be attached in such cases – as Woo Bih Li J pointed out in Lee Chez Kee v PP [[2008] 3 SLR(R) 447 at [294]] there
may be cases where no weight or only minimal weight can be attached to
statements where the accused blamed others and exonerated himself.
[emphasis added]
131 Galing’s statements consistently and unequivocally stated that he saw Jabing hit the deceased on the head multiple times,[note: 53] while at the same time played down his own role by saying that he only hit the deceased once in the “front part of the body”.[note: 54] It should be noted that Galing later admitted during the trial that he might have hit the deceased once either in the chest or head.[note: 55]
132 Based
on Galing’s statements and his testimony in court alone, there is no
way to ascertain if he did see Jabing hit the deceased on the head
multiple times. In fact, there is every reason to doubt Galing’s version
of facts in those statements given that they are exculpatory in nature
as he had every reason to play down his role. Unless it can be shown
that Galing’s evidence in court should not be accepted for some reason,
there is no basis to prefer Galing’s statements over his testimony in
court. This necessitates an examination into Galing’s change of evidence
during trial.
(2) Galing’s volte-face during trial and his explanation
133 In
the witness box, Galing retreated from the position he took in the
statements and explained at trial repeatedly (at least eight times) and
consistently that he only saw Jabing hit the deceased once.[note: 56] It should be noted that Galing’s volte-face during the trial is not
favourable to him, since it could lead to the inference that he was the
one who inflicted the injuries suffered by the deceased. Indeed, Galing
had maintained during the trial that he only saw Jabing hit the
deceased once, very shortly after the Prosecution had suggested to him
that the most of the fractures must have been inflicted by Jabing if he
had only hit the deceased once.[note: 57]
This would have alerted Galing to the fact that his evidence on this
point might not be advantageous to his case. Despite this, Galing
maintained throughout the trial that he only saw Jabing hit the deceased
on the head once.
134 Galing’s initial explanation to the change in evidence is found in the following exchange:[note: 58]
Q:Now,
Mr Galing, you have told the Court, based on your Court testimony, your
version is you only saw Jabing hit the deceased once. Now, in the three
statements that I have read out---the parts that have been read out to
you, it is clearly stated by you that you saw Jabing hit the deceased
multiple times, multiple strikes. What have you got to say?
A:I told the IO that Jabing hit the deceased only once but the IO told me, “How can one strike could result in the head being cracked open?” So I had to tag along with him and say that Jabing hit the deceased several times.
Q:So you are pinning the blame now on the investigating officer, Zainal. Correct?
A:Yes, I admit saying this in my statement but it was the IO who suggested it that I was not saying the right thing.
[emphasis added]
135 Galing
repeated at least five more times, when cross-examined by the
Prosecution, that he told the investigating officer recording his
statements that he saw Jabing hit the deceased on the head repeatedly:
(a) 29 July 2009, page 8, line 6:
Q:You
mentioned that the IO told you “How can one strike result in the head
being cracked open?” So you had to tag along with the IO and said that
Jabing hit many times. This is your allegation made yesterday in Court.
A:Yes.
(b) 29 July 2009, page 11, line 32:
Q:So
can you tell the Court how was this---how did this come to be recorded
that you saw him hitting the Chinese man several times and his head
crack open?
A:After
I was arrested, the IO told me that the victim had died and his head
was broken. And in the course of making this statement, I told the
officer what I heard from the IO.
(c) 29 July 2009, page 12, line 11:
Q:Mr Galing, is that all?
A:Whatever I heard from the IO, I said that in the statement because at that time I was frightened.
(d) 29 July 2009, page 15, line 23:
Q:At paragraph 16, line 3, you---it’s stated in your statement that:
[Reads]
“I gave up the chase and turned back towards Jabing who was hitting the
other Chinese with the wood in his hands repeatedly at the end of the
open space where there is an electricity sub station.”
Mr Galing, you said this, didn’t you?
A:Yes,
I did say this in my statement but I also remember the IO saying that
it must be several blows. But I recall that I---seeing Jabing hitting
only once.
(e) 29 July 2009, page 16, line 16:
Q:Now Mr Galing, you said this on---on your own accord.
A:Yes, that’s correct. I did say this to the IO but what I told the IO are totally not what actually happened.
136 Later, Galing appeared to change his position on at least four occasions when examined by his counsel:
(a) 29 July 2009, page 40, line 1:
Q:---“continue to beat him”, was these the words that he used, and if so, what was said in Malay?
A:I did tell the officer that I saw Jabing hitting him but I did not say that Jabing continue to hit him.
(b) 29 July 2009, page 41, line 7:
Q:Now, witness, did anyone suggest to you on this word “continue to beat him”?
A:I think no, your Honour.
Q:Did SIO Razali in any way record in this line something that you did not say?
A:I’m not sure about that, your Honour.
...
Q:Was SIO Razali involved in any way for this word “continue” to be used?
A:I don’t know.
(c) 29 July 2009, page 45, line 18:
Q:Looking
at this statement now, the words “hitting the Chinese man several times
and his head cracked open”, did you believe in this statement?
A:As
regards to the “several times”, Jabing inflicted the blows on the
Chinese man, I myself was in doubt whether I did say that to the
officer.
Q:And how about the “head cracked open”?
A:That is---that was what I heard from the IO and that was playing on my mind.
(d) 29 July 2009, page 56, line 13:
Q:Did you use the word “repeatedly”?
A:I did not use the words “repeatedly” to---in my statement. What I said is that I saw Jabing hit the Chinese person only once.
137 At first blush, there appears to be an inconsistency – this was picked up by the Trial Judge:[note: 59]
There
is some---now based on what I can see, uncertainty whether he used the
word “continue” because at one level, I seem to hear him and say “I
didn’t use the word at all.” At another level, looking at other parts of
his evidence is, “I used it because it was suggested to me.”
138 With
the benefit of considering the entirety of Galing’s evidence as set out
above, I am of the view that there is no real inconsistency. It seems
that what Galing was trying to say was that he told the officer that he
saw Jabing hit the deceased once but later (for whatever reason)
accepted the officer’s suggestion that he saw Jabing hit the deceased
repeatedly, and only the latter was recorded in his statements.
139 On
this point, it should also be noted that Galing’s counsel had confirmed
that Galing would rely on the statements without qualifications for his
defence,[note: 60] and that the statements were made voluntarily even though some parts may not have been properly recorded.[note: 61]
(3) Cross-examination of recording officers and interpreter
140 As
a result of Galing’s change in evidence, the recording officers and
interpreter were recalled and cross-examined on this point.
Unfortunately, the cross-examination did not reveal much. They merely
testified that there was no suggestion made to Galing on the number of
times that Jabing had hit the deceased and that the statements were
accurately recorded.[note: 62] Therefore, they do not assist in determining if Galing was telling the truth in the statements or during the trial.
141 Even
if we accept that the statements were properly recorded, it does not
necessarily mean that full weight should be given to the contents of the
statements. It is possible that Galing told the officers that he saw
Jabing hit the deceased multiple times in the head even though that may
not be the truth. In fact, Galing would have every reason to lie in the
statements in order to exculpate himself, especially if, according to
him, the officers had made certain suggestions which were favourable to
him. Galing’s explanation for his change in evidence during the trial is
not incredible, and it follows that the change in evidence per se is not sufficient basis to prefer Galing’s evidence in the statements to his evidence in court.
142 I
move on to consider an alternative basis that might explain why
Galing’s evidence in the statements should be preferred over his
evidence in court, namely, the possibility of collusion between Jabing
and Galing.
(4) No evidence of collusion
143 Both Galing and Jabing had changed their evidence during trial in favour of each other:
(a) Jabing
said he did not see Galing hit the deceased, even though it was
recorded in his statements that he saw Galing hit the deceased; and
(b) Galing
said he only saw Jabing hit the deceased once, even though it was
recorded in his statements that he saw Jabing hit the deceased
repeatedly.
144 However,
there is nothing to suggest that Jabing and Galing could possibly have
agreed to change their evidence to help exculpate each other. Indeed,
the highly inconsistent versions of fact given by Jabing and Galing,
parts of which are detrimental to the other, would suggest that they
have not colluded in any way.
Medical evidence
145 Dr
Teo’s evidence on the likely causes of the injuries, understood in
light of the fact that Jabing had attacked the deceased first, would
suggest that the belt buckle might have caused some of the fractures.
This possibility creates a reasonable doubt on whether Jabing might have
actually caused most of the fractures sustained by the deceased on the
head (either by multiple strikes or two strikes of huge force).
146 During
the trial, Dr Teo was reluctant to link any particular injury to the
weapons used in this case. In relation to the wood, Dr Teo said that:[note: 63]
… this sort of object [ie the piece of wood], if used as a weapon is capable of causing a fracture of the skull. But
there is nothing---there’s no real specific injury, er, that I would
say that would match, er, for example, the surf---the texture---the
rough texture of this, er, piece of wood. All---all I can really
say is that if this object is used as a weapon, it is capable of causing
bruising, abrasions, lacerations and a fracture of the kind that is
seen in this---in the deceased. [emphasis added]
147 When
Dr Teo was asked if any of the injuries or abrasions on the deceased’s
body can be identified as being caused by the belt buckle, he pointed
out, among others, the two abrasions on the right eyebrow of the
deceased would appear to match the design of the belt buckle.[note: 64] Nonetheless, this has to be taken in light of the fact that Dr Teo had repeated over eight times that he would caution against over-interpreting these injuries.[note: 65]
Dr Teo explained that this is because “ana sarca” (swelling caused by
retained fluid) and the healing process over the six days might have
distorted or change the shape and pattern of the injuries.[note: 66] Furthermore, he acknowledged the possibility that the patterned injuries might be a matter of “coincidence”.[note: 67]
In fact, Dr Teo acknowledged that he is “really speculating” on whether
the belt is the cause of the injuries over the right eyebrow/eyelid.[note: 68]
148 As
between the belt buckle and the wood, Dr Teo took the view that the
wood was more likely to cause the fractures, but did not rule out the
belt buckle as a cause, especially if the skull was already fractured:[note: 69]
Q:Those
severe head injuries is caused to the deceased, are you able to tell
this Court what might---which instrument might have caused those
injuries?
A:The
skull fracture, your Honour, would have been caused by a blunt object. …
As to the object that caused a blunt force---the blunt force, the---of
the two objects, er, that I’ve been shown, the belt buckle and the piece
of wood, er, I---my opinion is that the---the piece of wood is---would be, er, more likely to cause these fractures.
I do not think this belt buckle would be capable of causing these
fractures. However, I---I had earlier mentioned that once the skull has
been fractured, much less severe force is required to cause further
fracturing of the skull. So while I do not definitively rule out the
belt buckle, I would state that I think it is unlikely to be due to the
belt buckle.
[emphasis added]
149 Significantly, there is some evidence to suggest that Galing started hitting the deceased only after Jabing had hit the deceased. While this suggests that the skull must have been fractured before
Galing attacked the deceased, there is very little evidence to show the
extent of damage that had been caused by Jabing. Furthermore, there is
no clear evidence on the number of times and the manner in which Galing
attacked the deceased (except the possible link to the fracture over the
right eyebrow). There is no reason to assume that Galing could only
attack the deceased with the belt buckle; he could, for instance, have
slammed the deceased’s head against the floor or kicked/stepped on the
deceased’s head. I should also highlight that Galing had admitted that
he was the last person to have attacked the deceased, not Jabing.[note: 70]
150 In
my opinion, Dr Teo’s evidence, taken at its highest, would suggest that
Jabing had hit the deceased in the head first and caused the deceased’s
skull to fracture. He does not say how much damage was attributable to
Jabing and Galing respectively. As mentioned earlier ([122] above), the
medical evidence also does not rule out the possibility of a fall
causing some of the fractures.
Summary of the evidence
151 In
my view, therefore, there is insufficient evidence to establish beyond
reasonable doubt that Jabing had inflicted more than two strikes to the
deceased’s head. Besides the uncertainty as to the number of blows
sustained by the deceased ([124] above), there is also no clear
evidence, factual or medical, to support the finding that Jabing had hit
the deceased on the head at least three times or with such huge force
as to cause most of the fractures. The factual evidence (ie,
Jabing, Galing and Wu Jun) would, at best, suggest that there were two
strikes or more, and the medical evidence would only support a finding
that Jabing had hit the deceased first, and caused fractures in the
skull (the extent of which is unknown).
152 Accordingly,
the evidence would suggest that Jabing’s involvement is, with respect,
less extensive than the finding in the Majority Judgement at [67]–[70].
For convenience, the attribution is reflected in the table below:
Blows by Jabing
|
Fall
|
Blows by Galing
| |
Factual evidence
|
2 only
|
N.A.
|
1
|
Medical evidence
|
1 or more
(causing fracture)
|
Possible
|
1 or more
|
Majority’s finding
|
3 or more
|
N.A.
|
1
|
Ancillary point: What happened after Jabing first struck the deceased but before Galing began to attack the deceased?
153 As
discussed earlier, the medical evidence is unable to show the extent to
which the injuries were caused by Jabing as opposed to Galing. It would
only show that Jabing had hit the deceased first and caused the skull
to fracture (to an unknown extent). However, the evidence of Jabing and
Galing on the sequence of events (as opposed to the number of strikes)
might shed some light on the severity of the injuries inflicted by
Jabing and Galing respectively.
154 The
evidence suggests that the deceased had not fallen on his face after
being first struck by Jabing, and might have been able to stand up after
that. This casts a doubt on whether Jabing had, in fact, struck the
deceased multiple times in the head or with such huge force that would
have caused most of the skull fractures.
Jabing’s evidence
155 Jabing
testified during the trial that after he hit the deceased on the head
for the first time, the deceased “fell to the ground”,[note: 71] and the deceased’s face hit the ground first.[note: 72]
Jabing claimed that the deceased “turned his body around to face
upwards” with his hands covering his head and Jabing then hit the
deceased “one more time”.[note: 73]
When asked to elaborate, Jabing’s evidence was that he “cannot
remember” what the deceased was doing before his second blow and “do not
know” if the deceased was bleeding from the head.[note: 74]
156 It should also be noted that Jabing gave a slightly different account in his statements:
(a) Statement dated 26 February 2008:[note: 75]
…
I then swung the wood towards the head of the male Chinese. I am not
sure I swung it at the back or the front of his head. Upon being struck
by the wood, he fell to the ground facing up. [emphasis added].
(b) Statement dated 4 March 2008:[note: 76]
…
I came from behind and used the wood that I was holding on the head of
the bigger built male Chinese. I am not sure whether I swung it hard or
not since I was drunk. The single blow on the head by me caused the said male Chinese to fall onto the ground facing up. [emphasis added]
157 This casts doubts on whether the deceased had actually fallen on his face after being struck by Jabing the first time.
Galing’s evidence(1) After Jabing’s first strike
158 Galing
testified during the trial that he had only saw Jabing hit the deceased
once, and it occurred at the start when they first approached the
deceased and Wu Jun. Galing also testified during trial that the
deceased did not fall face down after Jabing’s initial strike; instead,
he repeated at least three times that he saw the deceased “moving
forward” or “running forward” after being struck.[note: 77] This was largely consistent with his evidence in the statements, where he said that the deceased “ran forward” after being hit.[note: 78]
Galing’s evidence on this point would suggest, to some extent, that
Jabing’s initial strike that was witnessed by Galing may not have been
with such huge force.
(2) Before Galing’s first strike
159 After
Jabing’s first strike, Galing said he went after Wu Jun but as he could
not catch up with Wu Jun, he decided to turn back.[note: 79]
Galing testified that he saw the deceased holding onto his head while
Jabing was walking towards Galing (to chase after Wu Jun who was
allegedly coming after Galing from behind).[note: 80] Galing’s evidence during the trial was that he saw the deceased standing up or stood up and was going to attack him:
(a) 27 July 2009, page 12, line 19:
Q:Did you hit the other Chinese gentleman at all who was hit by Jabing earlier?
A:Yes, I did him---I did hit him because he had got up and try to hit me.
Q:That would have been subsequently but when you hit the Chinese gentlemen, did you hit the deceased at all at that time?
A:Yes, I did hit the deceased because he had got up and tried to hit me. I hit him and---on the back part of his body.
[emphasis added]
(b) 27 July 2009, page 16, line 8:
Q:When you first hit the deceased, what position was he in? Was he standing, lying down or what?
A:At that time, the deceased was sitting down and he wanted to get up. And as he was about to get up, I hit him. …
[emphasis added]
(c) 28 July 2009, page 27, line 24:
Q:Now, when you returned, where was the deceased? Was he lying on the---lying on the grass? Still standing?
A:At that time I saw the deceased at this spot in a sitting position.
…
Q:Now what was the deceased doing, seated down on the ground?
A:He was sitting down holding his head.
Q:He was still conscious at that time?
A:With---with his hand on his head.
Q:One hand or both hands were on his head?
A:I’m not sure whether he was hold---whether one hand was on his head or both hands were on his head.
Q:Can you tell what was his condition then? Serious or not serious?
A:I---what I can recall is that I cannot say for sure his condition at that time.
Q:So what happened immediately after this?
…
A:Then Jabing went forward to---to go after the person who was behind me and when
I approached the deceased---when I approached the---where the deceased
was, I saw the deceased getting up and as if he wanted to attack me.
[emphasis added]
160 Again,
this would suggest, to some extent, that Jabing might not have struck
the deceased multiple times or that Jabing’s strikes (whether witnessed
by Galing or not) may not have been with such huge force.
161 However,
some caution must be exercised when approaching Galing’s evidence on
this point. First, Galing’s evidence was slightly inconsistent on
whether the deceased actually managed to stand up or was just trying to
stand up (contrast [159(a)] and [159(b)]–[159(c)] above). When asked to
elaborate, Galing clarified that the deceased was able to stand up but
he “was not able to say whether he was standing steadily or not” even
though they were only about 3.8 metres apart.[note: 81] He also could not explain what the deceased did which led him to think that the deceased wanted to attack him.[note: 82]
Second, one might argue that Galing was trying to reduce his
culpability by asserting that the deceased was trying to attack him
(such that it appears he acted in retaliation when he hit the deceased).
Nevertheless, it is doubtful if this argument carries much weight as
Galing could well have denied hitting the deceased in the first place if
he actually wanted to exculpate himself.
Medical evidence
162 The
medical evidence is more consistent with Galing’s version, that is, the
deceased did not fall forward and hit his head, and might have been
able to stand up even after Jabing’s attack.
163 There
is evidence to suggest that the deceased did not fall face down after
the first strike. First, as highlighted earlier at [101], Dr Teo and Dr
Ho do not rule out the possibility that the fracture at the back of the
head might not have been due to a direct blow. Second, and more
importantly, Dr Teo took the view that fracture (1) at the forehead
region, a comminuted fracture, was unlikely to have been caused by a
simple fall.[note: 83]
Further, Dr Teo also rejected the suggestion that the laceration and
abrasion on the face might have been due to the deceased falling face
down.[note: 84] When taken together, it would suggest that the deceased did not fall forward with his face first after being struck by Jabing.
164 While
some blood was found on the kerb near where the deceased was lying,
there is no evidence indicating that the deceased had actually hit his
forehead on the kerb when Jabing first hit the deceased on the head. Dr
Teo’s evidence on this point is pertinent:[note: 85]
Q:Yes. Doctor, same diagram, the one at the top, that’s fracture number 1. You said that’s… also another fracture?
A:Yes.
Q:Yes. Could
it have resulted due to a fall while the deceased was standing, falling
down smack on his face and hitting, for example, a kerb?
A:This fracture, your Honour, is comminuted. It is fragmented. I think it is very unlikely that a simple fall to the ground would cause fragmentation like this.
If the forehead did hit the edge of a kerb, er, the edge of the kerb
might cause a linear abrasion on the forehead or even a cut or a
laceration of the skin. The---the only laceration on the forehead, er,
is the one above the left eyebrow. I think that the fracture number 1,
which is the comminuted fracture is unlikely to be due to just a simple
fall. And because there was described fragmentation to the left side of
the frontal bone, the forehead, which had been removed at the
craniectomy, I do not think that this fracture is due to just a simple
fall.
Q:Doctor, I’m just suggesting to you that it---the fracture could have resulted from a fall.
A:It could but unlikely.
[emphasis added]
165 It
should also be noted that Jabing’s evidence at trial was that he is
“not sure whether [the deceased’s] head hit the kerb”.[note: 86]
166 For
completeness, it should be added that there was no clear explanation
for the blood on the kerb. Wu Jun’s evidence was that he found the
deceased on the grass patch and not the kerb. The paramedic who first
responded also said that the deceased was lying in a supine position
with his head on the grass patch and not the kerb. Nonetheless, it does
not mean that the deceased must have hit his forehead on the kerb upon
Jabing’s first strike simply because there is no alternative explanation
based on the available evidence.
167 Further, Dr Ho’s evidence was that a person who suffered a severe blow to the head may not succumb immediately:[note: 87]
Q:Now,
Dr Ho, now, assuming the patient when he was still well and alive, now,
if he was walking and he was hit at the head with a very hard blow,
now, would---would he be flawed immediately or it would be---it would
take sometime before he would be flawed?
A:Well, er, there were---because of the blow, er, one may not immediately, er, succumb to it on the spot.
Er, the person can remain with some amount of, er, consciousness but
also, er, in a sub-comatose condition before going into the full coma
state because the blow and the bleeding will take some time to build up
to a high pressure in the brain before the patient goes into deep coma.
So in some cases, it can take 1 hour or half an hour before the patient,
er, goes into deep coma. It’s not always the same case, but, er,
generally, it takes some time for the pressure to build up in---in the
brain because cerebral oedema or brain swelling doesn’t occur
immediately. Let’s take an analogy. If you hit me on my, er, back, it
will not swell immediately. It will take---certainly, it will take a few
minutes or a few, er, 15 minutes before it becomes blue and black.
Q:So
if there’s an application of a very huge force, would the person still
be able to stand or walk some distance before he---he drops?
A:Possibly, not all cases but possibly.
[emphasis added]
168 To
some extent, Dr Ho’s evidence is consistent with Galing’s version that
the deceased did not fall after Jabing’s initial strike, and might have
been able to stand up even after Jabing’s attack.
Summary of the evidence
169 Jabing
and Galing gave contradicting accounts of what transpired immediately
after the deceased was first hit by Jabing. The medical evidence is more
consistent with Galing’s account that the deceased did not fall
immediately after being struck by Jabing. It is also consistent with
Galing’s evidence that the deceased might have been able to stand after
Jabing’s attack.
170 In my
opinion, the fact that the deceased did not fall face first after
Jabing’s initial strike, and might have been able to stand up even after
Jabing’s attack would cast a reasonable doubt on whether Jabing struck
the deceased multiple times on his head and, more importantly, the force
he had used. One might argue that the court must be cautious when
assessing the weight that should be placed on the fact that the deceased
was able to stand up shortly after he was attacked by Jabing, as it may
not necessarily be an accurate indicator of the severity of the
injuries caused by Jabing. However, it must be noted that Dr Teo’s
evidence on this point ([167] above) must be considered in the proper
context, that is, Dr Teo was asked a hypothetical question (whether a
person would succumb immediately to a huge force to the head) to which
he answered that there is a possibility. He was not asked to comment
specifically on the likelihood in the present case. Moreover, Dr Teo
only said that there was a possibility that a person struck by a huge
force at the head might not succumb immediately but “not all cases”.
The findings of fact that can be established beyond reasonable doubt
171 Taking
into account the evidence, and bearing in mind the discussions on the
two key findings and the ancillary point above, in my judgment, the
findings of fact that can be established beyond reasonable doubt are as
follows:
(a) Jabing followed the deceased and Wu Jun with the intention of robbing them;
(b) Jabing picked up a piece of wood when he was approaching the deceased and Wu Jun;
(c) Jabing
and Galing approached the deceased and Wu Jun from behind, and Jabing
struck the deceased in the head without warning;
(d) At around the same time, Galing struck Wu Jun from behind; Wu Jun ran and Galing gave chase;
(e) After the initial blow by Jabing, the deceased did not fall and hit his forehead but moved forward;
(f) Jabing hit the deceased again in the head at least once, and the deceased’s skull was fractured;
(g) Galing
did not manage to catch Wu Jun, so he turned back and walked towards
the deceased; Jabing walked pass Galing and headed towards the overhead
bridge;
(h) Galing found the deceased in a sitting position, trying to stand up and he hit the deceased once or more; and
(i) Galing took the deceased’s handphone.
172 While
the key findings of fact have been discussed above, it would be crucial
to consider, as much as possible, the sequence of events in its
totality so as to fully appreciate the nature of the attack on the
deceased.
173 The evidential basis for each factual finding will be examined in greater detail below.
Factual finding 1: Jabing followed the deceased and Wu Jun with the intention of robbing them
174 This
finding of fact is uncontroversial. Jabing maintained consistently in
his statements and during the trial that he had followed the deceased
and Wu Jun with the intention of robbing them.
175 It was recorded in Jabing’s statements that:
(a) Statement dated 27 February 2008:[note: 88]
…
My intention is only to rob [the deceased]. After I had reached Kallang
MRT, the 5 of us walked and looked out for victims that is easy to rob.
About half an hour later, we met the victim. At that time, I and the
rest, followed the victim from behind. After that, I and ‘Galing’
followed the victim. ...
(b) Statement dated 26 February 2008:[note: 89]
… We loitered around Lorong 4 Geylang Road to look for a suitable victim. This was the 1st time I followed them to commit robbery. ...
…
About
½ hour after we loitered at Lor 4, Galing signaled [sic] to me towards 2
male Chinese who were walking from Lor 4 towards Kallang. Both the male
Chinese were crossing the road and walking towards the open space.
Galing immediately ran and crossed the road. I followed suit. …
(c) Statement dated 4 March 2008:[note: 90]
… The five of us loitered around Lor 4 to look for a suitable victim to rob. …
About
½ hour later, I was walking behind Galing along the main road beside
Lor 4. … Galing spotted 2 male Chinese crossing the road and signaled
[sic] to me. I saw 2 male Chinese crossing the road towards the open
field. On seeing this opportunity that we were looking for, I crossed
the road behind Galing. …
176 The same was repeated by Jabing during the trial:[note: 91]
Q:Okay.
Okay. When you followed the Chinese from behind, okay, can you tell us
or can you remember at which point did you think he was---for---…
I’ll---I’ll rephrase that… who trailed the Chinese first?
A:Mr Galing.
Q:And you followed suit?
A:Yes.
Q:Why did you follow him?
A:Because we wanted to rob.
[emphasis added]
177 This was corroborated by Galing’s evidence at trial:[note: 92]
Q:Yes, carry on. Tell us, until you met the two Chinese gentlemen.
A:We
walked on and on and until we passed by a bridge. Suddenly Jabing
crossed the road. I followed Jabing in crossing the road until I reached
the middle of the road.
Q:Please carry on.
A:I remember asking Jabing where was he going to, after that Jabing pointed to the other side of the road, and say that he wanted to rob the two persons.
I did tell him not to do it. He ignored what I told him, maybe at that
time he was drunk. After that Jabing continue to cross the road, I saw
him, bending down and picking up something from the ground.
[emphasis added]
178 Jabing
and Galing disagree on who initiated the plan to rob the deceased and
Wu Jun. However, they both agree that Jabing approached the deceased and
Wu Jun with the intention to rob them.
Factual finding 2: Jabing picked up wood when he was approaching the deceased and Wu Jun
179 This
finding of fact is also uncontroversial. Jabing’s evidence was that he
picked up the wood as they were approaching the deceased and Wu Jun:
(a) 30 July 2009, page 39, line 21:
Q:Did you pick up a piece of wood at the centre of the road?
A:No.
Q:So did you pick up any piece of wood at the roadside while you were trailing the two Chinese?
A:Yes. Yes, I did.
Q:Okay.
When you picked up at the road side, where were the two male Chinese
which both of you were trailing? How far away were they?
A:Maybe they were about 3 or 4 metres away.
(b) 30 July 2009, page 58, line 30:
Q:So
the minute you saw---I would say---would I be correct to say that the
time in which you saw Galing wrap around---wrap the belt round his right
palm between the time you picked up the wood was in a matter of a split
second? Would I be correct?
…
A:No.
Q:And could you tell us what do you mean by “No”?
A:At the time when I saw Galing---when at the time when I saw Galing had the belt in his right hand, I had not taken the wood yet.
Q:So and then? Could you just go on?
A:At
the time when we---at the time on arrival at the place of the incident,
I saw the piece of wood there. And then I pick up the wood.
(c) 31 July 2009, page 22, line 1:
Q:So
when you saw Mr Galing with the belt wrapped around his hand and the
buckle exposed, you knew that he was about to take some action to carry
out the robbery plan, isn’t it?
A:Yes.
Q:And the action that you took, your part upon seeing that was to pick up the wood, isn’t it?
A:Yes, it’s true that I picked up the piece of wood. It happened that I saw the piece of wood. The wood was on the ground.
180 Jabing’s evidence at trial on this point is consistent with his evidence in the statements.[note: 93]
181 Jabing’s evidence on this point is also corroborated by Galing’s evidence:
(a) 24 July 2009, page 28, line 2:
Q:Carry on.
A:Whilst
I was still at the centre of the road, I saw Jabing pick up something
from the ground. I saw him, after picking the object from the ground, I
saw him proceeding towards the two persons, to the two Chinese.
Q:Please carry on, yes.
A:I saw him hitting one of the two Chinese persons.
(b) 27 July 2009, page 11, line 4:
Q:Yes, carry on. Tell us, until you met the two Chinese gentlemen.
A:We
walked on and on and until we passed by a bridge. Suddenly Jabing
crossed the road. I followed Jabing in crossing the road until I reached
the middle of the road.
Q:Please carry on.
A:I
remember asking Jabing where was he going to, after that Jabing pointed
to the other side of the road, and say that he wanted to rob the two
persons. I did tell him not to do it. He ignored what I told him, maybe
at that time he was drunk. After that Jabing continue to cross the road, I saw him, bending down and picking up something from the ground.
Q:What---what did he pick up?
A:Maybe it was wood.
[emphasis added]
182 Galing’s evidence during the trial was consistent with his statements.[note: 94]
183 There was nothing to suggest that Jabing and Galing were not telling the truth in this respect.
Factual
finding 3: Jabing and Galing approached the deceased and Wu Jun from
behind, and Jabing struck the deceased in the head without warning
184 This point has been addressed above at [91]–[103].
Factual finding 4: At around the same time, Galing struck Wu Jun from behind; Wu Jun ran and Galing gave chase
185 The
evidence indicates that Galing struck Wu Jun at around the same time
when Jabing struck the deceased, and Galing gave chase when Wu Jun tried
to flee:
(a) Galing’s evidence was that he struck Wu Jun because Wu Jun (who saw Jabing hit the deceased) was going to hit Jabing;[note: 95]
(b) Jabing’s
evidence at trial was that he did not see Galing hit Wu Jun, but he saw
Galing chasing after Wu Jun after he hit the deceased on the head
twice;[note: 96] and
(c) Wu Jun’s evidence was that the deceased was groaning in pain very shortly after he was struck by Galing.[note: 97]
186 From
the evidence above, especially taking into account the evidence of Wu
Jun, it can be said that Galing struck Wu Jun at around the same time
when Jabing struck the deceased.
Factual finding 5: After the initial blow by Jabing, the deceased did not fall and hit his forehead but moved forward
187 This point has been addressed above at [153]–[170].
Factual finding 6: Jabing hit the deceased again in the head at least once, and the deceased’s skull was fractured
188 This point has been addressed above at [104]–[152].
Factual
finding 7: Galing did not manage to catch Wu Jun, so he turned back and
walked towards the deceased; Jabing walked pass Galing and headed
towards the overhead bridge
189 As
mentioned earlier (at [185]), the evidence suggests that Galing chased
after Wu Jun. Galing’s evidence was that he gave up chasing Wu Jun,
started walking back towards the deceased and saw Jabing walking in the
opposite direction:
(a) 24 July 2009, page 30, line 28:
Q:So---so tell us what happened after [Wu Jun] ran off. You chased him. Tell us what happened after that.
…
A:After
I hit him, he ran off. I went after him. I was not able to get him
because he ran too fast. I went back to Jabing---I went back to where
Jabing was. As I was about to go to where the deceased was, I passed by
Jabing. He was walking from the opposite---we were walking
from---on---on opposite sides.
(b) 27 July 2009, page 12, line 25:
Q:Did you chase any of the Chinese gentlemen?
A:Yes, I did chase the Chinese person who I had hit the first time---whom I had hit the first time.
Q:Was that PW44, Mr Wu Jun---was who gave evidence in Court last week.
A:Yes, that was the---that is the person whom I chased.
Q:So did you hit the deceased prior to chasing PW44?
A:No.
Q:When did you hit the deceased?
A:After
I had---I chased after the---the Wu Jun but I did not get---was able to
get him, after that I went back to where Jabing and the deceased were
fighting. At that time Jabing and I were walking towards each other
and we---at that time when---at that point of time when we were close I
did tell Jabing in the Sarawat [sic] dialect, I did ask Jabing in the
Sarawak dialect where he was going to.
[emphasis added]
(c) 27 July 2009, page 35, line 3:
Q:I
am putting it to you once again, you hit Wu Jun did not turn back to
attempt---to try to attack Jabing, he ran for his life followed by you.
A:Before I hit him, I saw that he was---he wanted to hit Jabing. And after I had hit him, he ran off.
Q:So
coming to the point where you stopped chasing Wu Jun, all right, let’s
start from there, okay. You turned back after you stopped chasing Wu Jun
and you walked towards the place of the incident and you saw, according
to your testimony, you saw Jabing walking towards you in the opposite
direction to that effect.
A:Yes.
(d) 28 July 2009, page 24, line 16:
Q:Mr Galing, Wu Jun ran very fast after being hit and you ran after him?
A:Yes. In my opinion, he was running very fast.
Q:So did you pursue, did you run after him?
A:Yes.
Q:You could not catch up with him, right?
A:Correct.
190 This is corroborated by Jabing’s evidence at trial:
(a) 30 July 2009, page 66, line 31:
Q:
|
Okay. When he stopped chasing after the Chinese man, what did Galing do?
|
A:
|
After Galing stopped chasing the man, he went back to the place where I had hit the victim.
|
Q:
|
So Jabing, he, according to you, he went back to the place where the victim was?
|
A:
|
Yes, he went back to where the victim was.
|
Q:
|
Okay.
|
Court:
|
He, meaning who?
|
A:
|
Galing.
|
Q:
|
What about yourself?
|
A:
|
At that time we bypass each other, I was going towards the overhead bridge and Galing was---
|
Court:
|
Slowly, you bypass each other, I was going toward the overhead bridge going, slowly---
|
A:
|
The direction of the overhead bridge and Galing was going to the direction of the victim where the victim was.
|
Q:
|
So you were going towards the direction of the bridge, that’s right, just to confirm?
|
A:
|
Yes.
|
(b) 31 July 2009, page 9, line 3:
Q:After
running the distance chasing the Wu Jun---chasing Wu Jun, you---Galing
came back and he met you as he---as he came back where you were
in-between the deceased and Galing.
A:Yes, I agree we crossed each other’s path.
191 There
is, however, some doubt on how far Galing actually went to chase after
Wu Jun before turning back. Galing said that he “chased him until the
side of the road” (ie, Sims Way),[note: 98] but could not give an estimate of the distance.[note: 99] Earlier, Galing said it was somewhere between the electric substation and Sims Way.[note: 100]
Wu Jun’s evidence was that Galing appeared to have the intention of
chasing him but he does not know if Galing did as he “did not turn
around to look”.[note: 101]
192 There
is also some uncertainty as to why Jabing left the deceased and started
walking towards the overhead bridge. Jabing never explained in his
statements. Neither was Jabing questioned on this during the trial.
Galing said that it was because Wu Jun was coming back for him and
Jabing wanted to chase him away.[note: 102] However, Wu Jun said went back only after he saw that “there was nobody around”,[note: 103] and Jabing denied seeing Wu Jun coming back.[note: 104]
193 On
the evidence available, it can only be concluded beyond reasonable
doubt that Galing tried to chase after Wu Jun, turned back and walked
pass Jabing who was going towards the overhead bridge.
Factual finding 8: Galing found the deceased in a sitting position, trying to stand up and he hit the deceased once or more
194 This point has been addressed above at [159]–[170].
Factual finding 9: Galing took the deceased’s handphone
195 It
is undisputed that Galing was the one who took the deceased’s
handphone. Galing admitted that he took the deceased’s handphone after
hitting him,[note: 105] and Jabing said he was told by a friend that Galing had taken a handphone.[note: 106]
196 There
is some doubt as to whether Galing took the deceased’s handphone from
the floor next to the deceased, or from his waist pouch. During the
trial, Galing contested the accuracy of his statements (in which he
stated that he took the handphone from the waist pouch).[note: 107]
Like the earlier instance involving the number of strikes he saw Jabing
hit the deceased, Galing explained that he was influenced by the
officer’s suggestion when the statements were recorded.[note: 108]
There is no corroborating evidence apart from Wu Jun’s statement which
stated that the deceased would usually put his handphone in his waist
pouch.[note: 109]
It appears that Wu Jun did not say specifically that the deceased kept
his handphone in his waist pouch on the day of the incident. In fact, no
waist pouch was ever recovered (either from the scene or Galing’s
possession), and the waist pouch (if it existed) did not form part of
the exhibits.[note: 110]
The evidence of the IO, SSI Zainal Abidin Ismail, was that he was “not
aware” of the waistpouch and had only requested to seize the deceased’s
clothes.[note: 111]
197 As such, the limited evidence available would only support a finding that Galing took the deceased’s handphone.
Conclusion
198 The
two key findings that would point towards the conclusion that Jabing
had acted in blatant disregard for human life are: first, Jabing
approached the deceased from behind and hit him on the head, and second,
Jabing hit the deceased repeatedly or with such force as to cause most
of the fractures.
199 As
discussed above, there is insufficient evidence to conclude beyond
reasonable doubt that Jabing had caused most of the fractures (either by
multiple strikes or by two strikes with huge force). The evidence
available would, at best, prove beyond reasonable doubt that Jabing had
hit the deceased twice and with such force as to cause the skull to
fracture. The question is whether this set of facts cross the threshold
of the test established at [45] of the Majority Judgment, ie, whether Jabing had “acted in a way which exhibits such viciousness or a blatant disregard for human life”.
200 The
Majority Judgment had concluded that the threshold was crossed based on
a finding that Jabing had inflicted at least three or more blows
causing extensive fractures to the deceased’s skull. I have attempted to
demonstrate that a proper analysis of the evidence discloses reasonable
doubt on the validity of that finding and that the evidence could only
prove beyond reasonable doubt that Jabing had struck the deceased on the
head twice. There is also doubt as to whether those two blows were the
cause of most of the extensive injuries found in the skull, as opposed
to causing it to fracture and resulting in death.
201 Based
on the evidence that I have shown to be proven beyond reasonable doubt,
I am of the view that the threshold is not crossed. Jabing, along with
Galing, had intended to rob the deceased and his companion, Wu Jun.
Jabing had approached the deceased from behind and struck him with two
wicked blows to the head with the intention, at the very minimum, to
incapacitate him. But he had stopped after that. It was not a case in
which he had repeatedly hit the deceased after he was down, which would
justify the conclusion that he had acted with viciousness and blatant
disregard for human life. I must therefore, with the greatest of
respect, disagree with the decision of the majority of this court to
allow the appeal of the Public Prosecutor.
Woo Bih Li J:
202 I
have had the benefit of reading the judgments of my learned colleagues
Chao Hick Tin JA, Andrew Phang Boon Leong JA and Chan Seng Onn J (“the
Majority Judgment”) and of Lee Seiu Kin J. I adopt the nomenclature in
the Majority Judgment but I will refer to the Respondent as “Jabing”.
203 I
agree with the principles set out in [44] and [45] of the Majority
Judgment as to when it would be appropriate to impose the death penalty
for an offence of murder where the conviction is made under s 300(c) of the PC.
204 However,
like Lee J, I will respectfully depart from the Majority Judgment on
the imposition of the capital punishment. I also agree with Lee J that
this court is entitled to revisit any findings of fact made in the CA
(Conviction) decision in view of the difference in the nature of the
inquiry then and now.
205 The
evidence is clear that Jabing attacked the deceased from behind without
warning. However, it is less clear how many times Jabing hit the
deceased with a piece of wood.
206 In
so far as the factual non-medical evidence is concerned, the most
damaging of such evidence against Jabing was the cautioned statement
given by Galing dated 26 February 2008 where he said that, “Jabing was
too violent when hitting the Chinese man until he bled profusely. I saw
him hitting the Chinese man several times and his head cracked open”.
Galing’s cautioned statement was vivid.
207 I
agree that Galing’s cautioned statement had been correctly recorded as
was an investigation statement of his in which he said that, “ … I gave
up the chase and turned back towards Jabing who was hitting the other
Chinese with the wood in his hands repeatedly …”.
208 On
the other hand, it must be remembered that Galing did not repeat the
allegation of repeated blows by Jabing with violence when he gave oral
testimony at trial. On the contrary, he said Jabing hit the deceased
once. It was Jabing himself who said at trial that he hit the deceased
twice. In my view, it is unsafe to place too much weight on Galing’s
statements which he did not repeat at trial. While these statements
might have been accurately recorded and his oral testimony might have
been an attempt to help Jabing, the statements might also have been
embellishments by Galing if he was initially trying to push the blame
for the deceased’s death onto Jabing. I cannot rule out the latter.
209 I
come now to the medical evidence. Lee J noted (see [110] above) that
the forensic pathologist, Dr Teo Eng Swee, had identified eight points
of impact which resulted in many fractures. The Majority Judgment said
Dr Teo had identified at least five separate groups of fractures which
he felt were due to separate impacts. I note that what Dr Teo had said
was that the injuries “might be” due to separate impacts.[note: 112] Furthermore, as Lee J noted, Dr Teo had also testified that:
… these are the possible impacts, but I cannot say whether it is just one particular blow or multiple blows.[note: 113]
210 Dr Teo also said:
To
cause a fracture of a intact skull, would require severe force. Once
the skull has fractured, the further fractures of the skull could occur
with less severe forces ….[note: 114]
211 There
was also evidence that Galing himself had hit the deceased with a belt
buckle although it is not clear whether he did so only once. As for the
use of the belt buckle, Dr Teo said that:
… I
do not think that this belt buckle by itself would be capable of
causing fragmented fractures of the skull or---or a severe head injury
as in the case of the deceased.[note: 115]
212 He elaborated that:
…
my opinion is that the---the piece of wood is---would be, er, more
likely to cause these fractures. I do not think this belt buckle would
be capable of causing these fractures. However, I--I had earlier
mentioned that once the skull has been fractured, much less severe force
is required to cause further fracturing of the skull. So while I do not
definitively rule out the belt buckle, I would state that I think it is
unlikely to be due to the belt buckle.[note: 116]
213 As regards the question whether a fall could be the cause of the fractures, he did not think so.[note: 117]
However, for one of the fractures, ie, fracture (14), he said this
might be due to an impact but he was not able to rule out that it was
due to a fall.[note: 118]
214 Therefore,
Dr Teo’s evidence was that there would be at least one hard blow with
severe force which fractured the skull. It was likely that that blow was
caused by a piece of wood and not the belt buckle. However, once the
skull was fractured (whether by one or two or more blows), it was not
clear what caused the other fractures. In particular, it was not clear
whether the other fractures were caused by Jabing using the piece of
wood or Galing using the belt buckle or a combination of the two and
perhaps also a fall as well. Furthermore, Dr Teo could not say that
there were definitely five separate blows to the deceased’s head. I
should mention for clarification that Dr Teo had also explained that the
fractures of the deceased’s head were not in themselves the fatal
injury. The fatal injury was injury to the brain.[note: 119]
215 In
my view, the medical evidence does not necessarily corroborate any
suggestion that Jabing inflicted more than two blows to the deceased’s
head although I agree that Jabing was responsible for fracturing the
skull. Therefore, it is unclear just how many blows Jabing had inflicted
on the deceased’s head.
216 For
the reasons stated in Lee J’s Judgment, I am of the view that there is
also a reasonable doubt whether Jabing’s blows were all inflicted when
the deceased was lying on the ground.
217 In
the circumstances, and even though Jabing’s blows would have been of
considerable force, it is in my view unsafe to conclude beyond a
reasonable doubt that he acted in a way which exhibited a blatant
disregard for human life. I would therefore dismiss the Prosecution’s
appeal for capital punishment for Jabing.
[note: 1]See NE, day 9, p 60 – 61, line 31 onwards.
[note: 2]See NE, day 10, p 23 – 24, line 32 onwards
[note: 3]See Ne, day 10 p 43 – 44, line 32 onwards
[note: 4]See NE, day 6, p 16 line 10-13.
[note: 5]Counsel for Jabing’s skeletal arguments before the CA (Conviction) in CCA 18/2010 at paras 36, 37, 38, and 43.
[note: 6]P149 at para 6.
[note: 7]P136 at para 1.
[note: 8]P147 at para 14.
[note: 9]PS18 at para 5; NE, 21.07.09, 84/32; NE, 22.07.09, 5/3.
[note: 10]NE, 22.07.09, 5/17.
[note: 11]PS18 at para 5; NE, 22.07.09, 10/14.
[note: 12]PS18 at para 6; NE, 22.07.09, 6/3; 6/32; 7/12.
[note: 13]NE, 21.07.09, 84/24.
[note: 14]NE, 22.07.09, 3/28. See also 6/20; 7/3.
[note: 15]NE, 23.07.09, 30/11; 51/29; 54/21. See also NE, 23.07.09, 51/9.
[note: 16]NE, 21.07.09, 18/32.
[note: 17]NE, 23.07.09, 52/2.
[note: 18]PS18 at para 6; NE, 22.07.09, 6/3; 6/32; 7/12.
[note: 19]See, eg, P149 at para 6; NE, 30.07.09, 64/17; 65/7.
[note: 20]P135; P145 at para 5; P149 at para 6.
[note: 21]P149 at para 6.
[note: 22]NE, 31.07.09, 9/13; 38/25.
[note: 23]P148 at para 16; NE, 24.07.09, 31/1; NE, 27.07.09, 15/18; NE, 28.07.09, 29/18; 35/3; NE, 29.07.09, 19/12; 20/1; 29/1.
[note: 24]NE, 27.07.09, 41/8; NE, 28.07.09, 36/23; 38/18; NE, 29.07.09, 3/9; 8/5; 11/30; 28/9; 37/15.
[note: 25]See Majority Judgement at [45] and [47]; Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 at [26]; Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634 at [26].
[note: 26]NE, 23.07.09, 24/29; 25/30; 29/15; 51/22.
[note: 27]NE, 23.07.09, 29/31; 51/25.
[note: 28]NE, 23.07.09, 30/2; 51/25.
[note: 29]NE, 23.07.09, 30/4; 51/27.
[note: 30]NE, 23.07.09, 30/ 8; 30/31; 51/26.
[note: 31]NE, 23.07.09, 30/28.
[note: 32]NE, 23.07.09, 30/10; 51/28.
[note: 33]NE, 23.07.09, 30/11; 51/29; 54/21. See also NE, 23.07.09, 51/9, which appears to be a typographical error.
[note: 34]NE, 23.07.09, 30/16; 51/30.
[note: 35]NE, 23.07.09, 30/26.
[note: 36]NE, 23.07.09, 31/1.
[note: 37]NE, 23.07.09, 62/19.
[note: 38]NE, 23.07.09, 69/31.
[note: 39]NE, 23.07.09, 22/26.
[note: 40]NE, 21.07.09,16/7.
[note: 41]NE, 21.07.09, 4/20.
[note: 42]NE, 21.07.09, 17/4.
[note: 43]NE, 21.07.09, 17/7.
[note: 44]NE, 21.07.09, 18/6.
[note: 45]NE, 21.07.09, 19/6.
[note: 46]NE, 23.07.09, 30/26.
[note: 47]NE, 21.07.09, 17/17; 23/26.
[note: 48]NE, 21.07.09, 23/24; 26/17.
[note: 49]NE, 23.07.09, 30/11; 51/29; 54/21. See also NE, 23.07.09, 51/9, which appears to be a typographical error.
[note: 50]NE, 21.07.09, 18/21.
[note: 51]NE, 21.07.09, 23/27; 24/17.
[note: 52]See, eg, P149 at para 6; NE, 30.07.09, 64/17; 65/7.
[note: 53]P136 at para 2; P137; P148 at para 16.
[note: 54]P148 at para 16.
[note: 55]P148 at para 16; NE, 24.07.09, 31/1; NE, 27.07.09, 15/18; NE, 28.07.09, 29/18; 35/3; NE, 29.07.09, 19/12; 20/1; 29/1.
[note: 56]NE, 27.07.09, 41/8; NE, 28.07.09, 36/23; 38/18; NE, 29.07.09, 3/9; 8/5; 11/30; 28/9; 37/15.
[note: 57]NE, 28.07.09, 40/27; 36/23.
[note: 58]NE, 28.07.09, 40/27. See also NE, 29.07.09, 8/6; 11/30; 12/12; 15/28; 16/17; 16/24.
[note: 59]NE, 29.07.09, 40/15.
[note: 60]NE, 28.07.09, 41/11.
[note: 61]NE, 29.07.09, 1/11.
[note: 62]NE, 29.07.09, 80/3; 81/30; NE, 30.07.09, 3/6; 5/5; 46/1; 47/18.
[note: 63]NE, 23.07.09, 48/5.
[note: 64]NE, 23.07.09, 42/28.
[note: 65]NE, 23.07.09, 37/22; 40/12; 41/7; 41/28; 42/20; 43/14; 46/1; 50/19.
[note: 66]NE, 23.07.09, 37/22; 42/9.
[note: 67]NE, 23.07.09, 40/4.
[note: 68]NE, 23.07.09, 43/17.
[note: 69]NE, 23.07.09, 51/3. See also NE, 23.07.09, 31/7.
[note: 70]NE, 27.07.09, 40/21; NE, 28.07.09, 35/25.
[note: 71]NE, 30.07.09, 61/5.
[note: 72]NE, 30.07.09. 63/7.
[note: 73]NE, 30.07.09, 64/10; NE, 31.07.09, 24/30.
[note: 74]NE, 31.07.09, 35/4.
[note: 75]P145 at para 5.
[note: 76]P149 at para 6.
[note: 77]NE, 27.07.09, 34/24; 34/32; NE, 28.07.09, 20/11; 23/7.
[note: 78]P147 at para 14. See also P136 at para 2.
[note: 79]NE, 27.07.09, 13/1.
[note: 80]NE, 27.07.09, 13/1.
[note: 81]NE, 28.07.09, 34/9.
[note: 82]NE, 28.07.09, 35/3.
[note: 83]NE, 23.07.09, 54/28.
[note: 84]NE, 23.07.09, 56/12.
[note: 85]NE, 23.07.09, 54/28.
[note: 86]NE, 30.07.09, 64/9.
[note: 87]NE, 21.07.09, 20/28.
[note: 88]P135.
[note: 89]P145 at paras 3 and 4.
[note: 90]P149 at paras 4 and 5.
[note: 91]NE, 30.07.09, 36/9. See also NE, 31.07.09, 17/27; 20/21; 43/15.
[note: 92]NE, 27.07.09, 11/4. See also NE, 24.07.09, 27/20; NE, 28.07.09, 13/28.
[note: 93]P145 at para 5; P149 at para 6.
[note: 94]P136 at para 1; P137; P147 at para 14.
[note: 95]P136 at para 1; P147 at para 14; NE, 24.07.09, 29/25; NE, 27.07.09, 12/10; NE, 28.07.09, 18/1; 19/17.
[note: 96]NE, 30.07.09, 66/3; NE, 31.07.09, 33/2; 44/3.
[note: 97]PS18 at para 6; NE, 22.07.09, 6/3; 6/32; 7/12.
[note: 98]NE, 28.07.09, 24/31.
[note: 99]NE, 28.07.09, 24/28.
[note: 100]NE, 27.07.09, 33/32.
[note: 101]NE, 22.07.09, 8/16.
[note: 102]NE, 27.07.09, 13/18; 36/13.
[note: 103]NE. 22.07.09, 8/24.
[note: 104]NE, 30.07.09, 67/20; 76/19; 77/18.
[note: 105]NE, 27.07.09, 16/11; 44/7; 46/12; NE, 28.07.09, 29/18.
[note: 106]NE, 30.07.09, 69/31.
[note: 107]NE, 27.07.09, 52/10.
[note: 108]NE, 27.07.09, 52/14; 53/4; 54/20.
[note: 109]PS18 at para 9.
[note: 110]NE, 29 July 2009, 83/12.
[note: 111]NE, 29 July 2009, 84/5.
[note: 112]NE 23.07.09 p 51 line 22
[note: 113]NE 23.07.09 p 31 lines 1-3
[note: 114]NE 23.07.09 p 31 lines 8-10
[note: 115]NE 23.07.09 p 50 lines 29-31
[note: 116]NE 23.07.09 p 51 lines 12-18
[note: 117]NE 23.07.09 p 70 line 4
[note: 118]NE 23.07.09 p 54 lines 21-22
[note: 119]NE 23.07.09 p 26 lines 28-29
Source: SingaporeLaw.sg
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