Public Prosecutor v Eu Lim Hoklai

[LawNet Editorial Note: The appeal to this decision in Criminal Appeal No 14 of 2009 was allowed by the Court of Appeal on 12 April 2011. See [2011] SGCA 16.]

Kan Ting Chiu J:

[1] The accused Eu Lim Hoklai is charged with the murder of Yu Hongjin (“the deceased”) on Sunday, 18 June 2006 at Feng Ye Beauty and Healthcare Centre, a massage parlour located at Blk 416 Ang Mo Kio Avenue 10, #01-985, Singapore.

[2] When the police arrived at the scene, they found the accused and the deceased in the third of three massage cubicles. The deceased was lying on a massage table (also referred to as the massage table or the massage couch) in a massage cubicle, and the accused was lying on the floor next to the bed.

[3] The police were alerted by the accused’s daughter, Eu Sui Lin. She received a telephone call from him at about 10.56 am telling her to go to the massage parlour quickly as he was in danger. She went to the massage parlour where she was joined by her mother, her sister and the police. When paramedics arrived at the scene, they examined the deceased and pronounced her dead at 11.41am. The accused, who was in a semi-conscious state, was conveyed to Tan Tock Seng Hospital.

[4] Consultant Forensic Pathologist, Dr Wee Keng Poh went to the massage parlour at 2.35 pm and conducted an autopsy on the deceased on 19 June after she was taken to the mortuary. In his autopsy report, Dr Wee noted the position of the deceased’s body that:

(The knife in the deceased’s hand was the only knife involved. It was examined for DNA and the DNA of the accused and the deceased were found on the handle of the knife, and the DNA of the accused was found on the blade.)

Further, Dr Wee recorded that:

(Photographs of the body were taken and produced; see P10-11, P24-27, P32-39 and P45-54).

[5] Dr Wee examined the body at the scene and found that it was cool to touch and that rigor mortis was setting in. He estimated the time of death to be 6-12 hours before the time of examination, consistent with the history of a fight at about 9-10 am that morning.

[6] When Dr Wee conducted the autopsy the following day, he noted the following external injuries to the head and neck:

which on internal examination showed:

[7] Dr Wee also found two fatal stab wounds on the chest:

and he certified the cause of death as “acute haemorrhage due to stab wounds of abdomen and asphyxia due to manual strangulation” with the comment that the deceased had “died as a result of two different modes of injuries – that of being stabbed in the abdomen and strangulated (compression of the neck) by the assailant’s hands.”

[8] In his evidence in court, Dr Wee added to his autopsy findings. He said that the deceased would have died from the stab wounds in the abdomen within one to two hours and that it would take three to five minutes of strangulation to cause her death.

[9] He was also of the opinion that the strangulation had occurred before the stabbing because (a) there were very marked changes around the face and internal neck structures; (b) there were minimal defensive injuries on the deceased; and (c) there was minimal blood spillage outside her abdomen.

[10] From a photograph of the deceased which showed a mucus flow from the mouth, Dr Wee concluded that the deceased was strangled in an upright position and not in the position she was found in.

[11] Dr Wee also thought it was very likely that the deceased was lying on her back when she was stabbed in the abdomen. He explained that if she was stabbed before she got onto the massage table, more of the about 400 cc of blood that was found in the peritoneal space would have flowed out of the stab wounds onto the surrounding areas than the minimal amount smudged on the wall of the cubicle.

[12] Mr Subhas, counsel for the accused, did not question Dr Wee on the conclusions. Dr Johan Duflou, the forensic pathologist who gave evidence on behalf of the defence, had prepared his report before he heard Dr Wee give evidence on his conclusions. However, he was in court and he heard Dr Wee’s evidence, and he did not comment or refute those conclusions when he gave evidence himself.

[13] In the closing submissions, the defence contended:

[14] After the accused was brought to Tan Tock Seng Hospital, he was found to have nine stab wounds over the abdomen, four of which penetrated into the peritoneal cavity.

[15] The accused was subsequently examined by Senior Consultant Forensic Pathologist, Dr Paul Chui. He examined the accused to determine whether the accused’s injuries could be self-inflicted and to look for defensive injuries.

[16] Dr Chui listed amongst his findings in his written opinion:

and he gave the following comments:

[17] In the course of the investigations, the accused made seven statements to the police. They were admitted at the trial without any objections from him.

[18] The first statement was recorded by Senior Station Inspector Yam Tong Loon on the morning of 19 June 2006 at Tan Tock Seng Hospital soon after he received surgical treatment for his wounds. In this statement the accused stated:

[19] After the first statement was recorded, Acting Inspector Kwok Charn Kong recorded a cautioned statement from the accused in the afternoon at Tan Tock Seng Hospital. In this statement, the accused said:

[20] This statement was recorded by the Investigation Officer Insp Roy Lim after the accused was released from hospital and was remanded in the custody of the police in the Police Cantonment Complex (“PCC”). In this statement, the accused was asked to give an account on the incident of 18 June between him and the deceased, and he stated:

[21] In this statement, also recorded at the PCC, the accused narrated his liaison with the deceased. They first met in March 2005 and their relationship developed so that in June 2006:

[22] This statement was recorded when the accused was brought back to the scene. He told the investigation officer what happened there on 18 June:

[23] Two statements were recorded at the PCC on this date. The investigation officer had wanted the accused to elaborate on his previous narration of the struggle between him and the deceased. In the first of the statements taken in the morning, it was recorded:

[24] The accused gave evidence in the trial. He recounted that he went to the massage parlour sometime between 9 am and 10 am that morning with the intention of ending their relationship. The deceased demanded $30,000 from him but he was not willing to pay.

[25] When he wanted to leave the massage parlour, the deceased came from behind him, lifted the front of his shirt and stabbed him in the abdomen. He shouted to her in Mandarin “Xiao Hong, why are you treating me like this.” He placed his hand on her neck and pushed her against the wall. He saw that she was holding a knife and he wanted to snatch it from her, and they struggled. In the course of the struggle, the deceased shouted “Ah”, and he realised that the knife had stabbed her stomach. He then placed both his hands on her neck and pushed her onto the massage table. He pressed her neck, and then his cell phone rang, but he did not answer the call. He realised that he was bleeding, and he used one hand to lift up his shirt to check his wounds. When he did that the deceased stabbed him a few more times. He felt pain in his abdomen, and he pressed her neck tighter so that she lost consciousness. At that stage, he used his cellphone to call his daughter and told her to rescue him. After making that call, he pressed the deceased’s neck again, and then he tried to run away, only to lose consciousness himself.

[26] The accused explained that when he grabbed the deceased’s hand, the knife was pointing downwards, and there was a struggle and the knife landed on her abdomen. However, when he demonstrated the grabbing and the struggle, it was noted that the knife pointed downwards at all times.

[27] From the accused’s statements and his evidence in court of the events in the cubicle, he had shouted at the deceased when she stabbed him, and the deceased had shouted at him and screamed in pain when she was stabbed by the knife during the struggle.

[28] The massage parlour in which the events took place was in fact a half-unit of a shop unit. It shared the unit with a hair saloon operated by Wong Choon Mee, and the massage parlour and the hair saloon was separated by a partition wall. This partition which is made of a series of aluminium doors with glass panels is not an effective sound barrier.

[29] According to Ms Wong, if someone spoke loudly in the massage parlour, that can be heard in her hair saloon. On 18 June 2006, she was at her hair saloon at about 10.15 am and she was attending to a client. Subsequently, a female Chinese (the accused’s daughter Eu Sui Lin) came to her shop and asked to gain access to the massage parlour. She told the person that there was no access and that person left. Subsequently, she heard a woman screaming from inside the massage parlour, followed by someone crying. However, she stated that “I did not hear anyone fighting or anyone shouting before the female Chinese came knocking on my door earlier.”

[30] In cross-examination, the witness agreed with counsel that it is possible that she did not hear what was happening in the massage parlour because she was preoccupied with cutting her customer’s hair but in re-examination, she reiterated that if someone in the massage parlour spoke loudly, she can hear that even if she was attending on clients.

[31] Ms Lim Chin Chin, Deputy Head and Senior Forensic Scientist of the Criminalistics Laboratory, Centre for Forensic Science, Health Sciences Authority, who undertakes bloodstream pattern and crime scene examination and reconstruction, was also involved in the investigations.

[32] She had attended at the scene on the day of the event and noted that the furniture and items in the cubicle appeared to be intact and undisturbed. She subsequently presented three reports. The first report dated 30 January 2007 dealt with the layout of the massage parlour and positions of the accused and the deceased, and the bloodstains that were found. The second report also dated 30 January 2007 dealt with exhibits submitted by the investigation officer Insp Roy Lim for examination. They included items found at the scene and items of clothing worn by the accused and the deceased.

[33] The third report was the most significant. It was dated 31 January 2007 and prepared to provide information on:

1. The location of the stabbing and strangulation scene.

2. The manner in which the deceased was stabbed and strangled, and the manner in which the accused was stabbed.

3. Movement of the deceased and the accused during and after the stabbing and strangulation.

[34] In this report, Ms Lim referred to her two other reports, two DNA profiling reports on exhibits recovered in the investigations, medical report on the accused’s injuries, Dr Wee’s autopsy report and Dr Chui’s written opinion.

[35] She went over those materials, the exhibits and the photographs and arrived at her findings. Her principal findings relating to the stabbing of the deceased were:

and her principal findings on the stabbing of the accused were:

[36] At the end of the report, Ms Lim stated that the findings were consistent with a number of conclusions, the principal ones being:

[37] The defence had consulted Dr Johan Duflou, Chief Forensic Pathologist, Department of Forensic Medicine, Glebe, Sydney South West Area Health Service and Associate Professor, University of New South Wales.

[38] Dr Duflou was supplied with a comprehensive set of the material relating to the case, including the reports of Dr Wee, Dr Chui and Ms Lim, and the photographs taken in the course of investigation. Significantly, he did not receive the accused’s police statements where he described the altercation and the ensuing events between him and the deceased. The only account of those events that Dr Duflou had was a psychiatrist’s report on the accused by Dr Kenneth Koh in which the account was recorded as:

On the basis of the material, Dr Duflou produced his report dated 25 March 2008, in which he referred and responded to the findings of Dr Wee, Dr Chui and Ms Lim.

[39] With respect to Dr Wee’s autopsy report, Dr Duflou agreed with Dr Wee that the deceased died from acute haemorrhage due to stab wounds in the abdomen and asphyxia due to manual strangulation.

[40] Dr Duflou agreed with Dr Chui that the accused’s wounds were consistent with having been caused by the knife and that the wounds may have been self-inflicted, but in his opinion “it remains an entirely reasonable possibility, and in my opinion a preferred likelihood that the abdominal stab wounds are not self-inflicted.”

[41] With regard to Ms Lim’s findings, Dr Duflou did not state any disagreement with her finding that the deceased was not in an upright position when and after she was stabbed (Dr Wee made a similar finding). He in fact stated:

and he continued with:

It is to be noted that Dr Duflou only had knowledge of the accused’s brief account of the events recorded in the psychiatrist’s report.

[42] Essentially, Dr Duflou disagreed with the prosecution experts in that he found:

(i) that it was an entirely reasonable possibility that the accused’s wounds were not self-inflicted, and

(ii) that it was reasonably possible that the deceased’s death occurred in the way described by the accused in the psychiatrists’ report.

[43] The accused’s admissions in his statements made in the course of the investigations, and his evidence in court are the only direct evidence of the events that led to his injuries and the deceased’s death. By his accounts, he had not stabbed her, and he had strangled her because she had stabbed him in the abdomen.

[44] His admissions and evidence have to be examined and tested against all other available evidence. For this purpose, it is important to bear in mind that in his narrative, there was a noisy confrontation between him and the deceased. The deceased shouted that she would cause trouble to him and his family. He had shouted at the deceased when she stabbed his stomach. When he pinned the deceased against the wall of the cubicle and tried to snatch the knife from her, the deceased screamed in pain, and she also screamed when she was pushed onto the massage table.

[45] The massage parlour was actually within the same shop unit as the adjacent hair saloon. The unit was subdivided into two by a thin partition through which sound can pass. Ms Wong, the operator of the hair saloon who can hear loud talking in the massage parlour gave evidence that she did not hear anything that morning before the accused’s daughter spoke to her, and that she then heard a woman scream inside the massage parlour and then heard someone crying.

[46] Ms Wong was an independent witness. It was not disputed that she was in her saloon at the material time, and there was no suggestion that she had any reason to give false evidence against the accused. Against that background, and having observed her when she gave evidence, I accept her as an honest and reliable witness. Her evidence raised a serious doubt over the accused’s description of the events.

[47] Besides the absence of shouts and screams, the accused’s evidence is also inconsistent with Dr Wee’s findings that the strangulation had occurred before the stabbing, that she was strangled in an upright position, and that it was very likely that she was lying on her back when she was stabbed in the abdomen, and Ms Lim’s finding that the deceased was not in an upright position when she was stabbed and Dr Duflou’s agreement that it was likely that the deceased was predominantly in a supine position during the altercation.

[48] Proceeding on the basis that the deceased was strangled before she was stabbed, the deceased could not have been stabbed before she was pushed onto the massage table as the accused alleged. Furthermore, if the deceased was strangled in an upright position, she was not strangled when she was pushed down onto the massage table as described and demonstrated by the accused. Finally, Dr Wee’s finding that the deceased was very likely to be lying on her back when she was stabbed in the abdomen taken together with Ms Lim’s finding that the deceased was not in an upright position when she was stabbed, and Dr Duflou’s agreement that she was predominantly in a supine position during the altercation meant that it was unlikely that she was pinned against the wall when that happened, as the accused had described.

[49] There was something else that contradicted the accused’s version of the events. I have referred to this in [26], that when the accused demonstrated how he had grabbed the deceased’s wrist, the knife pointed downwards to the floor, not towards the deceased’s abdomen.

[50] What is the effect of Dr Duflou’s conclusions summarised in [41]? On the issue of whether the accused’s wounds were self-inflicted, Dr Chui stated in his opinion that “The position and nature of the non-surgical abdominal wounds do not preclude self-infliction as a cause of the injuries” , whereas Dr Duflou stated in his opinion that “it remains an entirely reasonable possibility, and in my opinion a preferred likelihood that the abdominal wounds were not self-inflicted.” Dr Duflou had formed his opinion without reading the accused’s police statements, and without knowledge of Ms Wong’s evidence. He was not asked if he would maintain or modify his opinion if the accused’s full narrative and Ms Wong’s evidence are taken into consideration. In any event, both experts chose their words carefully, and did not take a firm position on whether the wounds were self-inflicted. The state of the pathological evidence is that the wounds may have been inflicted by the accused or the deceased.

[51] The accused accepted that he strangled the deceased. The defence admitted that it is a “fanciful possibility” that the deceased inflicted the wounds on herself. Since he denied that he stabbed, his position must be that she was accidentally stabbed when she was pushed against the wall, and they were struggling. He raised five defences:

and I shall evaluate them in the same order.

[52] Under s 300, the offence of murder is committed:

[53] The intention to cause death is an ingredient only in limb (a), and not to the other three limbs. Thus, the lack of intention to cause death is not a defence to murder, while the intention to cause death, coupled with the causation of death, constitutes murder.

[54] The applicable provisions are:

[55] The accused had said “If I did not struggle her to make her faint, then if I were to turn my back and run away, she could have stabbed me on my back. On that basis, his defence came under limb (a) and limb (b).

[56] The rest of the defences are applicable when an act under s 300 has been committed. These defences are restricted defences which do not exculpate the accused from all culpability. If the accused can bring himself under any of these defences, he is still guilty of culpable homicide not amounting to murder under s 304.

[57] Exception 2 reads:

[58] Exception 4 reads:

[59] Exception 1 reads:

[60] The accused admitted that he strangled her to cause her to lose consciousness. With regard to the stab wounds on the deceased, he denied that he inflicted them, and suggested they were inflicted when he pushed her against the wall and they struggled.

[61] The accused’s account was contradicted by Dr Wee’s finding that it was very likely that she was lying on her back when she was stabbed, Ms Lim’s finding that the deceased was likely to be in a supine position when she was stabbed, and Dr Dublou’s agreement with Ms Lim that the deceased was predominantly in a supine position during the altercation.

[62] While these findings contradict the accused’s account of the stabbing, they do not show that the accused had inflicted the wounds, whether they were inflicted during the struggle against the wall, or while the deceased was on the massage table.

[63] Consequently, I will proceed on the basis that the accused had strangled the deceased and had thereby done an act under s 300(c).

[64] The accused said that he strangled the deceased to make her faint so that she would not stab him on the back. The critical question is whether he had proved that on a balance of probabilities.

[65] The review of the evidence at [43] to [50] showed up substantial doubts on and questions to the accused’s description of the events in the confrontation. I find that the accused had not proved that the deceased had inflicted the wounds on his abdomen in the manner he described, or that he had acted in exercise of his right of private defence.

[66] As I find that there is no right of private defence, the third defence does not apply.

[67] By raising this defence, the accused is saying that even if he was not attacked and did not have a right of private defence, there was a sudden fight. This defence is grounded on the same events recounted by the accused. However his narrative was contradicted by the evidence of the other witnesses. As I have rejected the accused’s account of the events, and as the accused has not proved that there was a sudden fight, this defence also fails.

[68] This defence can only be invoked when a grave and sudden provocation had caused the person provoked to lose self-control. The accused had not said that he was provoked by the deceased or that he had lost self-control when he strangled her, and there was nothing in his account of the events which indicate that he had lost self-control. This defence does not apply because the essential ingredients are absent.

[69] After reviewing the evidence and considering the law relating to the defences raised, I find that the accused had committed an act under s 300(c) when he strangled the deceased, and that he has failed to bring himself under any of the defences he raised. I therefore find him guilty of the murder of the deceased and I impose the mandatory death sentence on him.

_________________

see P45

Notes of Evidence page 786 ll 30 to page 787 l 14. The words “the accused” in lines 4 and 7 actually referred to the deceased

see [8] to [10]