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Lee Chez Kee v PP: Murder Beyond Reasonable Doubt?

The controversies surrounding Lee Chez Kee v PP [2008] SGCA 20 relate to the law on admissibility of evidence and the law on common intention. In this article, the author focuses on the law on admissibility of evidence and touches only briefly on the law on common intention.

Brief Facts
The accused was charged under s 302 read with s 34 of the Penal Code (Cap 224), for committing murder with common intention. More than a decade ago, the deceased was found strangled to death in his home. Police investigations revealed that three persons had been involved in the robbery leading up to the murder, one of them being the accused. While the accused remained at large until 2006, Too Yin Sheong ('Too') was convicted of murder, sentenced to death and hung. Ng Chek Shiong was convicted of one count of robbery, five counts of theft and 11 counts of cheating.

The prosecution's case against the accused was premised almost entirely on six statements made by Too which implicated the accused in the murder. No direct forensic or witness evidence linking the accused to the murder was adduced by the prosecution. The only evidence adduced against the accused was evidence of the accused's involvement in the robbery, which the accused did not deny. In other words, the only evidence against the accused in relation to the murder was circumstantial.

Two completely different versions of the murder transpired before the court at first instance. One, based on the accused's own account, which exculpated him; and the other, based on Too's out-of-court statements, which implicated him. The trial judge convicted the accused on the evidence, including Too's statements. The accused appealed.

Admissibility of Too's Confessions
It was undisputed that Too's statements constituted confessions under s 17 of the Evidence Act (Cap 97) ('EA'), and that the confessions constituted hearsay under the common law. The issue was whether the trial judge was correct to have admitted Too's confessions as evidence against the accused.

The law on admissibility of confessions under the Evidence Act
Sections 17 to 33 of the EA govern the admissibility of admissions and confessions. The rules on admissibility of a co-accused's confession against an accused are found in s 30.

Section 17 of the EA states:

(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

(2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.

Section 30 of the EA states:

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration the confession as against the other person as well as against the person who makes the confession.

Explanation.-"Offence" as used in this section includes the abetment of or attempt to commit the offence.

(a) A and B are jointly tried for the murder of C. It is proved that A said "B and I murdered C". The court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B and that B said: "A and I murdered C". This statement may not be taken into consideration by the court against A as B is not being jointly tried.

[emphasis added]

The law on admissibility of out-of-court statements under the Criminal Procedure Code
Section 377 of the Criminal Procedure Code (Cap 68) ('CPC') states:
In any criminal proceedings a statement other than one made by a person while giving oral evidence in those proceedings shall be admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Code or any other written law, but not otherwise. [emphasis added]

Section 378 of the CPC governs the admissibility of out-of-court statements. Section 378(1) reads:

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

(a) being compellable to give evidence on behalf of the party desiring to give the statement in evidence, he attends or is brought before the court but refuses to be sworn or affirmed; or

(b) it is shown with respect to him -

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

(ii) that he is beyond the seas and that it is not reasonably practicable to secure his attendance; or

(iii) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to give evidence on behalf of that party.

[emphasis added]

First instance
The defence argued and the prosecution conceded that Too's confessions could not be admitted under s 30 of the EA since Too and the accused were not jointly tried. The prosecution, however, sought to admit Too's confessions under s 378(1)(b)(i) of the CPC on the premise that Too was dead. The defence contended that the prosecution was wrong to rely on s 378(1)(b)(i) because s 378(1) was not designed to admit otherwise inadmissible confessions.

The question then turned on the meaning of the sentence 'subject to ... the rules of law governing the admissibility of confessions' in s 378(1) (the 'Qualifying Phrase').

The prosecution argued that the Qualifying Phrase referred only to the requirements of voluntariness. There was no dispute over the voluntary nature of Too's confessions. As such, the prosecution contended that the confessions could be admitted under s 378(1)(b)(i).

The defence argued that the Qualifying Phrase referred to all rules of law governing the admissibility of confessions and not only to the requirements of voluntariness. There is nothing in the law governing the admissibility of confessions that permits Too's confessions to be admitted as evidence against the accused. The defence submitted that Too's confessions could not be re-categorised as witness statements under s 378(1) since that would be to admit Too's confessions through the back door, and to ignore the express wording of the Qualifying Phrase that s 378(1) could not be relied on to expand the scope of admissible confessions.

The trial judge ruled in favour of the prosecution. In doing so, he relied heavily on his interpretation of the legislative intent behind s 387(1), which he derived from the similarity of wording between that section and cl 31(1) of the UK Draft Criminal Evidence Bill (the 'UK Bill').

Clause 31(1) of the UK Bill contained a qualification that made the admissibility of statements subject to 'this section', 'the next following section' and 'section 2'. Similarly, s 378(1) was subject to 'this section', 'section 379' and 'the rules of law governing the admissibility of confessions'. The trial judge concluded that since s 378 and s 379 were similar to cll 31 and 32 of the UK Bill, respectively, 'the rules of law governing the admissibility of confessions' must correspond to the rules set out in s 2 of the UK Bill, which contained the requirements of voluntariness.

The trial judge supported his conclusion by referring to the legislative intent behind the CPC (Amendment) Bill (Bill 35 of 1975), where s 378(1) first appeared in draft form. The trial judge noted that Parliament stated its intention to 'admit all hearsay evidence likely to be valuable to the greatest extent possible'. In the trial judge's view, the legislative intent to admit hearsay evidence 'to the greatest extent possible' necessitated a narrow interpretation of the Qualifying Phrase.

The trial judge went on to provide a secondary reason for his interpretation. He held that to adopt the defence's interpretation of the Qualifying Phrase would lead to the result that s 378(1) would not apply to admit inculpatory statements (ie confessions) whereas would still potentially apply to admit exculpatory statements. He concluded that such an interpretation would cause inconsistency and absurdity in the law since inculpatory statements which implicate their makers were more reliable than statements which sought to exculpate their makers.

With respect, the author begs to differ from the trial judge's reasoning with regard to his last observation. A distinction should be drawn between admissibility with respect to inculpatory statements made against their makers and inculpatory statements which implicate other persons. In any event, there is nothing inconsistent or absurd in excluding inculpatory statements from the scope of s 378(1) while exculpatory statements which are by their nature and content not 'confessions' remain potentially admissible under s 378(1). In fact, it is the interpretation put forward by the prosecution and upheld by the trial judge that creates a clear inconsistency between the admissibility of living and dead co-accuseds' confessions under s 378(1).

The Court of Appeal
The majority of the Court of Appeal overturned the trial judge's conclusion regarding the admissibility of Too's confessions. Following a thorough analysis of the legal arguments and material brought before it, the majority held as follows:
1 The scheme of the EA is inclusionary, not exclusionary. Hearsay as understood under the common law is not defined or reflected in the EA. Instead, the EA admits evidence based solely on whether they are defined as 'relevant facts' under its provisions.

2 The CPC, on the other hand, employs the concept of common law hearsay. Courts ought to be aware of the different conceptual bases between the EA and the CPC when evaluating the admissibility of hearsay evidence, and to be mindful of the problems which may result from this inconsistency.

3 The difference in conceptual bases between the EA and the CPC is relevant to the definition of s 378(1) since both statutes contain rules on the admissibility of evidence. At first instance, the EA was not considered when s 378(1)(b)(i) was interpreted.

4 The trial judge was correct in seeking to ascertain the legislative intent behind s 378(1). However, he had erred in regarding the CPC as the statutory equivalent of the UK Bill. The Court of Appeal emphasised that the local law on admissibility of confessions was not identical to the law in the UK.

5 First, the CPC (Amendment) Bill was submitted to a further Select Committee which did not agree to follow the UK Bill in its entirety. Second, s 378(1) was not similar to cl 31 of the UK Bill. Clause 31(2) of the UK Bill contains rules on the admissibility of a co-accused's confessions. Section 378 contains no similar provision. Therefore, the Qualifying Phrase cannot be equated to s 2 of the UK Bill.

6 Section 378(1)(b)(i) should not be interpreted in a way that renders another provision otiose. If the Qualifying Phrase refers only to the requirements of voluntariness, the other rules on the admissibility of confessions contained in the EA would be rendered otiose. Section 378(1) should be read subject to
the EA.

7 Such an interpretation of the Qualifying Phrase is consistent with the legislative intent behind s 378(1). Although, as the trial judge noted, Parliament had declared that one of its purposes was to admit hearsay evidence 'to the greatest extent possible', Parliament had also stated that the CPC ought to 'include necessary safeguards to the danger of manufactured hearsay evidence'. The latter intention had been noted by the Court below but no emphasis had been placed on it. Moreover, the principles of interpretation dictate that the law should be coherent and consistent, and s 384 of the CPC itself preserves the independence and relevance of the EA.

8 An interpretation of the Qualifying Phrase to include all rules of law governing the admissibility of confessions would not neccessarily lead to inconsistency and absurdity. The admissibility of inculpatory statements is premised on their inherent reliability when admitted against their makers. However, the portions of inculpatory statements which implicate another accused are most definitely in the interests of their makers and therefore unreliable. The admissibility of confessions of this nature is confined to situations provided for in s 30 of the EA. There is no absurdity in that.

9 The fact that Too was dead makes his confessions prima facie admissible under s 378(1)(b)(i) unless the law governing admissibility of confessions disallows them. Since Too's confessions are not admissible under the EA or any other provision of the CPC, they are inadmissible under s 378(1)(b)(i).
10 Section 30 of the EA was designed to deal with the situation where confessions made by one co-accused implicate the other during a joint trial. In such cases, if the first co-accused's confessions were inadmissible, the trial judge would be compelled to conduct the 'impossible intellectual exercise' of disregarding those statements. Section 30 therefore removes this problem by permitting such confessions to be admissible within the narrow circumstances prescribed.

11 The problem does not exist in separate trials. In fact, illustration (b) to s 30 explicitly provides that a co-accused's confession cannot be admissible against an accused in a separate trial.

12 The narrow scope of s 30 is due to the reluctance to discard all concerns about the unreliability of such evidence. The fact that Too was dead did not increase the reliability of his confessions; there is no correlation. There is no reason to allow his confessions, for which he was executed and which implicate the accused, to be re-characterised as witness statements.

13 Accordingly, Too's confessions were wrongly admitted by the Court at first instance.

The Court of Appeal overturned the Court below's decision to admit Too's confessions, 2-1. VK Rajah JA and Choo Han Teck J agreed with the defence, while Woo Bih Li J dissented and agreed with the trial judge.

The Verdict
The trial judge had found that the accused's involvement in the robbery and Too's confessions proved beyond a reasonable doubt that the accused had strangled the deceased to death. Section 34 of the Penal Code was not necessary, in the trial judge's view, to convict the accused since he was the primary offender. The trial judge added that if the finding that the accused strangled the deceased was incorrect, s 34 would nonetheless apply to convict the accused, since the murder was committed in furtherance of the common intention to rob.

The majority of the Court of Appeal held that on the evidence, the accused had been the one who strangled the deceased. Further, the Court below had not made an express finding of fact that the act of strangulation was in furtherance of the common intention to rob, so as to convict the accused under s 34. The Court of Appeal held that s 34 required proof that the accused had the subjective knowledge that the murder was likely to have occurred in furtherance of the robbery.

VK Rajah JA held that Too's confessions were inadmissible but that the remaining circumstantial evidence proved that the accused knew the murder was likely to have occurred in furtherance of the robbery. Woo Bih Li J similarly dismissed the accused's appeal on the same grounds. (Although Woo Bih Li J had ruled that Too's confessions were admissible, he had held that they carried no weight.)

Choo Han Teck J, on the other hand, dissented on the outcome of the appeal. He held that a re-trial ought to be ordered because the Lower Court's findings of fact, on which the Court of Appeal relied, were (a) tainted with prejudice from Too's confessions should not have been admitted; and (b) based on a mistaken view of the facts needed to be proved to establish common intention.

Beyond Reasonable Doubt?
As mentioned above, the majority of the Court of Appeal held that the rationale behind s 30 of the EA was to eliminate the need for the 'impossible intellectual exercise' of disregarding a co-accused's confessions against another accused in a joint trial. The Court also held that, in separate trials, there was no reason to render such inherently unreliable confessions admissible.

Yet the majority of the Court of Appeal embarked on an intellectual exercise of trying to disregard Too's confessions while assessing the remaining circumstantial evidence against the accused; an exercise which it has called 'impossible'. In other words, the majority of the Court of Appeal could not have been certain that its conclusion of the accused's guilt was not tainted by its knowledge of Too's inadmissible confessions. It also could not have been certain that the findings of fact by the trial judge, which it unquestioningly relied on, were not blemished by the trial judge's consideration of Too's confessions.

On the requirements under s 34, the majority of the Court of Appeal could not have been certain that the trial judge would not have found evidence to contradict a finding that the accused was subjectively aware of the likelihood of murder in furtherance of the robbery if the trial judge had put his mind to establishing that subjective knowledge.

The questions surrounding the accuracy of the findings of fact at first instance are enough to cast reasonable doubt on the outcome of the appeal. Like the dissenting judge held, the proper course would have been to order a re-trial. Even if a re-trial would have yielded the same result, that is not at all the point. The point is that the accused should have been given a fair trial before facing conviction and death.

Conclusion
Even though the Court of Appeal laudably articulated sound legal principles relating to the admissibility of evidence and common intention, the discrepancy in views on the interpretation of the Qualifying Phrase ought to prompt legislative clarification. In light of the fundamental principle of proof beyond reasonable doubt, the consequences of overruling the admissibility of crucial evidence should also be carefully legislated to require a re-trial.

Tay Eu-Yen¹

Notes
1 The author is a lawyer who has recently left practice.