Public Prosecutor v Galing Anak Kujat and another

Kan Ting Chiu J:

[1] On the night of 17 February 2008, two persons, Wu Jun and Cao Ruyin were walking along a pathway in an open space near Geylang Drive after their dinner. Whilst they were making their way peacefully, they were set upon by the two accused persons, Galing Anak Kujat (“Galing”) and Jabing Kho (“Jabing”).

[2] Cao Ruyin (“the deceased”) suffered severe head injuries, which led to his death on 23 February 2008, and was also robbed of his handphone. Wu Jun escaped with minor injuries.

[3] Galing and Jabing were prosecuted before me on the charge that they:

[4] Galing and Jabing were not arrested for several days after the assault. The records of the deceased’s handphone enabled the police to conduct investigations and arrest the two accused persons and their friends.

[5] There were only three persons who gave direct evidence of the attack, namely, Wu Jun, and the two accused persons. At the trial, the prosecution tendered in evidence seven statements taken from Galing and six statements from Jabing. All these statements were admitted in evidence without objection.

[6] The first statement recorded from Galing was recorded by Senior Station Inspector Razali bin Razak (“SSI Razali”). In this statement Galing recounted that:

[7] A cautioned statement was recorded from Galing later on the same day in response to a charge that he, Vencent Anak Anding and three other persons had murdered the deceased. The statement reads:

[8] The Investigation Officer of the case, Senior Station Inspector Zainal Abidin Ismail (“SSI Zainal”) recorded investigation statements from Galing on 3, 4 and 6 March 2008 with the service of a Malay interpreter, Marriana. In these statements Galing recounted that on 17 February 2008, Vencent had proposed to him that they rob two Bangladeshi persons. Galing agreed, and went to Tiong Bahru where the robbery was to take place. Other persons, namely, Jabing and Anthony Anak Jaban also agreed to join them in the scheme. The robbery was aborted because the group could not find the two targets. Another person, Alan Anak Ajan, joined the group, and they consumed liquor known as “Narcissus Ginseng Wine Tonic”.

[9] Eventually they left Tiong Bahru and went to Geylang. Galing stated that his intention was to meet some friends there and to drink with them. Galing’s account of the events that followed merits reproduction:

[10] Galing went on to state that Vencent paid him $300 for the stolen handphone, and he distributed $50 of that to each member of the group and used the remaining $50 to pay for their food and drinks. (Subsequently, Vencent sold the handphone to a dealer, and that enabled the police to trace and apprehend him, Jabing and the others.)

[11] Galing added in his statement:

[12] When he was questioned by the recording officer about the targeting of the two victims at Geylang, Galing explained:

[13] The first statement of Jabing was recorded on 26 February 2008 by SSI Zainal. In the statement, Jabing recounted that Galing, Vencent, Anthony and Alan were planning to rob two Bangladeshi persons in Tiong Bahru, but were unable to carry that out because they could not find the two men.

[14] He then went on to say that:

and that Galing sold the handphone to Vencent for $300, and each of them received $50 from the proceeds.

[15] A cautioned statement was recorded from Jabing in response to a charge of murder of the deceased in further of a common intention of him, Vencent, Galing, Alan and an unknown person. Jabing’s statement was:

[16] SSI Zainal recorded the investigation statements from Jabing on 4, 7 and 13 March 2008 with the help of the Malay interpreter, Marriana. These statements form parts of a continuing narration.

[17] Jabing recounted that when the robbery at Tiong Bahru was aborted, Anthony suggested to the rest of the group that they go to Geylang to rob because there was an open field opposite Lorong 4 which was an ideal place for a robbery as it was dark and secluded.

[18] Jabing then referred to the events leading to the attack. He stated:

[19] Wu Jun was a construction worker from China. The deceased was from his same village in China. On 17 February 2008, the deceased had visited him. They had dinner, and when it was time for the deceased to return to his lodging, Wu Jun accompanied him to the Kallang MRT station.

[20] As they were walking along a paved pathway at the open field, he was hit at the back of his head by something hard like a metal object. (He was subsequently brought to Tan Tock Seng Hospital for treatment and was found to have a left ear laceration and abrasions in the temporal region of his head.) He ran a few steps forward, turned round and saw a male person wearing a cap coming towards him in a menacing manner with a clenched fist, and he carried on running as fast as he could. He heard the deceased groaning in pain. However, he did not know whether he or the deceased was attacked first, how the deceased was attacked or who attacked the deceased.

[21] After running about forty steps he stopped. He called for the police on his handphone and retraced his steps along the pavement. He found the deceased lying unconscious on the grass alone. The deceased had blood on his face and was vomiting blood. Wu Jun noticed that the deceased’s handphone which was usually kept in his waist pouch was missing.

[22] The deceased was brought from the scene of the attack to the Accident and Emergency Department of Tan Tock Seng Hospital. Dr Ho Chi Long (“Dr Ho”), the physician who saw the deceased and operated on him certified that on admission, the deceased was in a deep coma and had facial injuries. The deceased had sustained life threatening injuries. CT scans revealed several depressed skull fractures including multiple comminuted, displaced and depressed fractures involving the frontal, bilateral parietal and occipital bones with fractured ethmoid septae, and swelling of the brain. He underwent surgery on that day, and further surgery on the following day, but he did not recover and died on 23 February 2008. Dr Ho was of the view that the primary cause of death was the severe head injuries.

[23] Dr Ho was unable to tell if the head fractures were caused by a blunt or a sharp instrument, but they were caused by a huge force that could have come from several blows. In answer to a question from Mr Chandra Mohan, counsel for Galing, Dr Ho stated that it was impossible for the injuries to have been sustained from a fall from a standing position. In response to a question from Mr Johan, counsel for Jabing, Dr Ho could not say whether the head injuries could have been sustained by the deceased falling forwards after being hit from behind.

[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. The brain was very swollen, and the swelling decreased the flow of blood and oxygen to the brain. The lack of oxygen supply to the brain is known as hypoxia. The swelling of the brain also caused it to shift position in the skull, and that is known as herniation. The hypoxia and the herniation together with brain contusions and brain haemorrhage made up the severe head injury, and the injury was sufficient in the ordinary course of nature to cause death.

[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.

[29] When Mr Johan sought to get Dr Teo to develop on his conclusion that one of the fractures may have been the result of a fall, Dr Teo put the matter into context and explained that:

and he clarified in re-examination that a fall could not cause all the fractures that were sustained.

[30] The accused persons’ statements and the medical evidence was the core of the prosecution’s case.

[31] Neither counsel submitted that there was no case for his client to answer. When I called on both accused persons to enter their defence both of them gave evidence, but did not call any witnesses.

[32] Galing is 25 years old and he had come to Singapore to work. He helped to load oil onto ships.

[33] He relied on his statements as his defence. His defence was that he did not cause the death of the deceased and that the death was not caused in the furtherance of the common intention of him and Jabing. He began his evidence saying that he had borrowed the belt that he wore and used from Anthony on the morning of 17 February 2008.

[34] He then recounted that Vencent had proposed robbing two Bangladeshis who had just received their salary. He agreed, and went to Tiong Bahru with Anthony. At Tiong Bahru they met up with Vencent, and subsequently Jabing and Alan joined them. The five of them had bought and drank ginseng liquor after the robbery was called off. After they had their drinks, he told the others that he was going to continue drinking with his friends in Geylang, and the others agreed to go to Geylang with him.

[35] They went from Tiong Bahru by the MRT to the Kallang MRT station. Upon arrival at the Kallang MRT station, they proceeded to Lorong 4 Geylang. He first went to a hotel, the Yunnan Hotel, to change into fresh clothes that were kept there. He then rejoined the group and told the others that he was going to Lorong 12 to have drinks with friends there, and they went on together towards Lorong 12. Along the way, they split into two groups. He and Jabing were walking along a higher stretch of the road, and the other three were walking along a lower stretch.

[36] After he and Jabing passed an overhead bridge, Jabing crossed the road. He followed Jabing, and when they were on the middle road divider, he asked Jabing where he was going, and Jabing told him that he wanted to rob two Chinese men who were on the other side of the road. He told Jabing not to do that, but Jabing ignored him and continued to cross the road.

[37] Galing was still on the road divider when he saw Jabing pick up something from the ground and went towards the two Chinese men, and hit one of them. The other Chinese man wanted to fight with Jabing. Galing took off his belt and went to Jabing’s assistance. He rolled up the belt in his left hand, and hit one of the Chinese men once at the back part of his body, and that man ran away and Galing chased him. (Galing confirmed in court that that person was Wu Jun). When Galing failed to catch up with Wu Jun, he retraced his steps. As he came to the deceased who was seated and was getting up, he hit the deceased on the area of the chest but he did not think that it could cause serious injury or death to the deceased. After hitting him, he noticed the deceased’s handphone and he took it. In the meantime, Jabing was chasing after Wu Jun who had apparently returned to the scene.

[38] He went on to Lorong 12 to look for the friends he intended to meet, but did not find them. Subsequently, he joined the other members of the group at a coffee shop at Lorong 24. He showed the handphone to the others, and Vencent paid him $300 for it. With the $300, he paid $50 to each member of the group and left the remaining $50 to pay for the food and drinks they were having.

[39] During cross-examination he qualified parts of his statements relating to his taking of the deceased’s handphone and Jabing’s assault on the deceased. When Mr Johan questioned him on his cautioned statement where he stated “... I saw him [Jabing] hitting the Chinese man several times and his head cracked open” he gave inconsistent answers. He said “As far as I can recall, I did not say that” and “The IO told me that the person was already dead. I was frightened ... so I said all these things.”

[40] More inconsistencies were to follow when he was cross-examined by the prosecutor. He admitted that he took the deceased’s handphone but said that it was on the ground. When it was pointed out to him that he had stated in his cautioned statement “While the Chinese man was holding his head, I took a handphone from his waist pouch” his explanation was “... I was frightened and I was told by the officer that I must cooperate. That is why I said this in my statement” and “It was a suggestion made by the IO. I merely agreed to the suggestion.”

[41] Galing had stated on three occasions in his statements that he had taken the handphone from the deceased’s waist or waist pouch. He did not offer any reason for insisting in court that it was on the ground when he took it. In any event, the legal character of his action was similar whether the handphone was taken from the deceased’s waist, or from the ground after the deceased dropped it during the assault.

[42] When Galing persisted that he had seen Jabing hit the deceased once, the prosecutor referred him to his first statement where he had stated “... Jabing used the wood to hit on the male Chinese who has a bigger built on his head” and “... I saw the bigger size male Chinese try to run but Jabing continue to beat him” and to his cautioned statement which recorded that “I saw him hitting the Chinese man several times and his head cracked open” and his investigation statement that “Jabing who was hitting the other Chinese with the wood in his hands repeatedly ...”.

[43] Galing’s explanation was that:

When the prosecutor also referred him to another part of his investigation statement where it was recorded “I gave up the Chinese and turned back towards Jabing who was hitting the other Chinese with the wood in his hands repeatedly ...” he gave a similar explanation that “... I did say this in my statement but I also remember the IO saying that it must be several blows. But I recall ... seeing Jabing hitting only once.”

[44] In the course of cross-examination by the prosecution, Galing agreed that he should proceed along the side of Sims Way that he was on to go to Lorong 12, and that when he crossed Sims Way and went onto the open ground as he did, he was going out of the way.

[45] In re-examination by his counsel, Galing added confusion to the matters. He stated that no one had suggested the use of “continue” in his first statement and that the recording officer SSI Razali was not involved in the use of the word.

[46] No issue on the accuracy of the recording and interpretation of the statements were raised when the statements were admitted into evidence during the prosecution’s case. After they were raised in the course of defence case, Mr Chandra Mohan applied for three officers SSI Razali, who recorded the first statement, SSI Zainal, who recorded the investigation statements and Marriana, the Malay interpreter who assisted SSI Zainal in the recording of the investigation statements, to be recalled for further examination, and they were recalled.

[47] Counsel put to them Galing’s allegations on the recording of the statements, but they rejected each allegation and maintained that the statements faithfully and accurately recorded what Galing had said. I accepted their evidence.

[48] Jabing is 24 years old and is from Sarawak. He was working in Singapore for a karung guni company.

[49] He did not dispute the admissibility and the accuracy of his statements which were admitted in evidence. When he gave his evidence in chief, he kept to his statements and elaborated on parts of his account of the events. Notably, he said that after he consumed the ginseng liquor with his friends at Tiong Bahru, he was ‘high’. Nevertheless, he confirmed that the group had gone to Geylang to rob and that he and Galing had trailed the two Chinese (i.e. Wu Jun and the deceased) because they wanted to rob them. He confirmed that he had picked up a tree branch about a foot long, but he could not explain why he did that.

[50] His evidence on his assault of the deceased was that he hit the deceased on the head, but he did not know the force he used, or the part of the head he hit because he was drunk. He also said that he had not aimed for the deceased’s head because his mind was blank and it just happened that he hit the head. He recalled that when the deceased fell, and turned his body to face upwards, he hit the deceased again, but he cannot remember where the second hit landed. Jabing maintained that he had no intention to hit the deceased on the head, and did not intend to kill him. Mr Chandra Mohan questioned him on the involvement between him and Galing in the assault. Jabing agreed that there was no planning on the execution of the robbery, no agreement on the location of the robbery or the division of functions, no common intention on the use of weapons, and no common intention to assault or kill.

[51] When the prosecutor cross-examined him, Jabing was unable to explain why he followed Galing when he crossed the road. He acknowledged when he trailed the victims, he intended to rob them. He claimed that his intention was to punch the victims, but when he saw the branch, he “just took it”. He also agreed that he did not gave the deceased any forewarning of his approach, and had not issued any threats before he hit him. He also maintained that he did not aim for the deceased’s head when he struck, and it was only when the deceased fell to the ground holding his head that he realised he had struck the deceased’s head.

[52] In every case, there will be disputes over some facts. The disputes may arise between the prosecution and the accused persons or between the accused persons themselves. Some areas of disputes could be material, and others less so, depending on the circumstances of the case. In this case, there are two areas of dispute that are material and have to be addressed.

[53] Jabing admitted that he and Galing had spotted Wu Jun and the deceased and they had intended to rob them, but Galing denied that he had any intention to rob. He admitted that he had intended to rob the two Bangladeshis in Tiong Bahru. When that was aborted, he went with his friends to Geylang with the intention to seek out other friends in Lorong 12 and to drink with them. He did not want to rob the two Chinese men, and had told Jabing not to do it, but was nevertheless drawn into the events that followed.

[54] I did not accept Galing’s explanation because:

(i) he was prepared to rob, and had intended to do that in Tiong Bahru;

(ii) his claim that he was on the way to Lorong 12 was inconsistent with his action because he should not have crossed Sims Way and gone onto the open field if he wanted to proceed to Lorong 12;

(iii) he knew that Jabing was going to rob, and he stayed on with Jabing and assisted him in attacking the victims;

(iv) he completed the robbery by taking the deceased’s handphone; and

(v) he shared the proceeds on the sale of the handphone with Jabing and the others.

These facts showed that he was a willing participant in the robbery with Jabing.

[55] The evidence of Dr Teo indicated that the deceased’s death resulted from the head injuries. Although Galing did not inflict those injuries, he saw Jabing picking up the tree branch. He also armed himself with the belt buckle which he used as a weapon. It was clear that Galing and Jabing intended to use their weapons in the robbery because they did not seek to obtain the victims’ possessions by demand or the threat of violence, but had proceeded immediately to use their weapons on them. Their intention was to rob their victims by the use of force. It was telling that Galing had not said in his statements and his evidence that he was surprised when Jabing held the branch in both hands and struck the deceased with it. I find that Galing knew that when he and Jabing robbed the deceased, the deceased would be assaulted and serious injuries might be inflicted on him.

[56] In the case of Jabing, he admitted in his first statement of 26 February 2008 that he swung the branch towards the head of the deceased. He also recalled in his investigation statement that the single blow caused the deceased to fall onto the ground. Galing, his accomplice, recalled in his cautioned statement that the deceased’s head cracked open when Jabing hit him on the head. In his investigation statement, Galing had also narrated that Jabing had beaten the deceased so badly that he could have died.

[57] Jabing’s narration of the events showed that he was not so drunk that he did not know or remember his actions, and he knew what he was doing. In any event, he could not plead drunkenness as a defence because s 85(2) of the Penal Code (Chapter 224, 2008 Rev Ed) stipulates that:

and he had not satisfied conditions (a) or (b).

[58] Against this background, I find that:

(i) the two accused persons had the common intention to commit robbery;

(ii) each of them knew that it was likely that serious injury might be inflicted on the victims in the course of the robbery;

(iii) that Jabing intentionally inflicted head injuries on the deceased; and

(iv) the injuries inflicted were sufficient in the ordinary course of nature to cause death and did cause the deceased’s death.

[59] The law relating to common intention and s 34 was thoroughly reviewed by the Court of Appeal in Lee Chez Kee v PP [2008] 3 SLR(R) 447. In the leading judgment, V K Rajah JA concluded in the “Summary of the correct interpretation of section 34 of the Penal Code” that:

While the common intention of Galing and Jabing was to rob, and not to kill, they knew that there was the likelihood that serious injury might be inflicted.

[60] Was the common intention sufficient to support a charge of murder? Section 300 of the Penal Code states that:

The intention to cause death specified in limb (a) and the knowledge of the likelihood of death specified in limb (b) are not there.

[61] However, the prosecution was putting its case under limb (c). This effect of s 300(c) of the Penal Code is settled law. The locus classicus is the decision of the Supreme Court of India in Virsa Singh v State of Punjab AIR 1958 SC 464 where Bose J reviewed the elements of the provision and declared at [12]:

and at [16] that:

His analysis has been affirmed and applied by our Court of Appeal in a succession of cases, the most recent being PP v Lim Poh Lye [2005] 4 SLR(R) 582.

[62] Jabing had struck the deceased on the head in order to rob him. Jabing held the branch in both hands and swung it at the deceased’s head with such force that Galing saw his head crack open. Dr Teo found that the head injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death, and he certified the injuries to be the cause of death. Jabing’s actions fell within s 300(c).

[63] I find Galing and Jabing to be guilty of the charge against them. They are convicted and sentenced to suffer the mandatory death penalty.