IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. Q-05-21-2009
LIM KIANG CHAI
[In the matter of the High Court of Malaya at Kuching, Sarawak Criminal Trial No. 45-05-2005-1]
Lim Kiang Chai]
MOHD HISHAMUDIN YUNUS, JCA ABDUL WAHAB PATAIL, JCA BALIA JUSOF WAHI, JCA
JUDGMENT OF THE COURT
This appeal by the appellant, Lim Kiang Chai (the accused), is against his conviction and death sentence by the High Court of Kuching for the murder of one Fabian Lim Ann Hoaw (the deceased).
The murder took place on 18 February 2005 at about 6.15 p.m., just after the deceased and his wife had finished having a meal at the Fu Xiang Food Centre, Rubber Road, Satok, Kuching.
The deceased was a lawyer practising in Kuching.
The appellant is alleged to have committed the crime with another person still at large.
He was arrested in Sibu on 2 March 2005 and brought to Kuching for his trial. He was convicted for murder and sentenced to death by the High Court of Kuching on 26 December 2008.
At the trial, the appellant denies the charge.
The case for the prosecution is that at the material time the deceased and his wife had just finished their meal at the Fu Xiang Food Centre, and had got into their car. As the deceased was reversing his car out of the parking lot, two persons came in a motorcycle and stopped behind the deceased’s car. The pillion rider got off the motorcycle,
approached the deceased’s car, and with a pistol fired four shots at the deceased at close range. The deceased, who was wounded, was immediately rushed to the Kuching General Hospital. But he died of the gunshot wounds upon arrival at the Emergency Unit of the hospital.
The appellant is alleged to have been the driver of the motorcycle.
That the deceased was murdered at the stated place, date and time is not disputed. The issue is: was the appellant the driver of the motorcycle that was used by the gunman, the pillion rider?
Three persons testified that they were at the scene of the crime at the material time and that they saw the shooting. They are –
(1) one Capt. Mohd. Faisal bin Zakaria (PW10);
(2) one Poo Siang Hin (PW13); and
(3) Mdm Chin Siew Chin (PW16), the wife of the deceased.
At the time of the shooting, PW10 was in his friend’s shop at Jalan Rubber. Hearing gunshots, he immediately looked towards the
direction of the gunshots and saw the deceased being shot. He saw the two persons on a motorcycle about to drive away from the scene. He helped to drive the injured deceased and PW16 (deceased’s wife) to the hospital, using the deceased’s car.
PW13, who owns a stall near the entrance of Fu Xiang Food Centre, was at his stall at the material time. He heard the gunshots and he saw a man wearing a crash helmet with a visor standing beside the deceased’s car and shooting several times at the deceased.
PW16 was in the car at the time her husband (the deceased) was shot. She was at the front seat sitting next to her husband, who was reversing the car.
However, none of the witnesses (PW10, PW13 or PW16) who witnessed the shooting was able to name or describe the identity of the two riders of the motorcycle as both of them were wearing crash helmets with visors; nor were they able to state the registration number of the motorcycle used by the assailants.
At the trial at the High Court, the prosecution relied on a cautioned statement (Exh. P114) made by the appellant (made pursuant to section 113 of the Criminal Procedure Code) as a crucial piece of evidence to implicate the appellant in the murder of the deceased. It is the contention of the prosecution that the appellant in his cautioned statement had confessed to being hired to murder of the deceased, and that he was the driver of the motorcycle that carried the gunman who shot the deceased on the day of the brutal killing.
The appellant, at the trial, had objected to the tendering of the cautioned statement by the prosecution on the ground that it was not voluntarily made by him by reason of oppression, and that all that is stated in the cautioned statement is not true.
After a trial-within-a-trial, the learned trial Judge ruled that the cautioned statement was voluntarily made by the appellant and thus admissible as evidence.
In his cautioned statement, the appellant is alleged to have confessed to being the driver of the motorcycle, a stolen Yamaha 100, used to
commit the crime. According to the cautioned statement, the appellant was hired by his boyhood friend, one Roger Wong, to kill the deceased; and for which he was paid RM65,000. According to the cautioned statement, the gunman who rode as a pillion rider on the motorcycle was one Ah Bee; and that Ah Bee was recruited by a friend of Roger Wong called Ah Ho.
We allowed this appeal; and we set aside the conviction and sentence. The following are our reasons.
In the present case, the prosecution relied primarily (if not entirely) on the cautioned statement of the appellant in order to prove its case against the appellant. And the learned trial Judge, in his grounds of judgment, sets out in its entirety the contents of the cautioned statement; and, based on the cautioned statement, had made a finding that the appellant was the driver of the motorcycle at the time of the shooting.
It is settled law that the legal burden of establishing the voluntariness of a cautioned statement lies on the prosecution; and the standard of proof is that of beyond reasonable doubt.
It is equally trite law that the only burden that rests upon an accused is to place before the Judge such facts as would raise a well-grounded suspicion that the cautioned statement was made involuntarily (per Gopal Sri Ram JCA (as he then was) in delivering the judgment of the Court of Appeal in Juraimi bin Husin v Public Prosecutor  1 MLJ 537, at p. 562).
In our judgment, based on the evidence adduced during the trial-within-a-trial, the prosecution had failed to prove beyond reasonable doubt that the cautioned statement was made by the appellant voluntarily. We note from the evidence that the appellant was subjected to long hours of interrogation for five consecutive days from 3 March 2005 until 7 March 2005. The length of interrogation was about 10 and a half hours each day (of course, we make allowance for lunch breaks and toilet breaks in between). The Lock-up Diary shows that everyday (during the said five consecutive days) the appellant would be taken
out from his cell to the interrogation room for interrogation early in the morning at around 7 a.m.; and he would be brought back to his cell late in the evening around 5:30 p.m.
After the intensive long hours of interrogation for a period of five consecutive days, the cautioned statement was recorded on 8 March 2005 from 10:05 a. m. until 1:30 p.m.. It was recorded by one Chief Inspector Ang Seow Aun (TWT-PW1).
Before the learned trial Judge, it was contended by the appellant that the interrogation of the appellant while he was in custody for long hours and for five consecutive days was an act of oppression on the part of the police, thus rendering the cautioned statement not voluntarily made and inadmissible. But this argument was rejected by the learned trial Judge. He held:
With regard to the accused’s allegation that he was interrogated for long periods of at least 11 hours a day, I find this difficult to believe because the evidence shows, especially from the lock-up sentry assigned to escort him during that period, TWT PW, that the accused was served and had a lunch break daily and was also allowed to go to the toilet on request. In
view of this I am more inclined to believe TWT PW12 Sgt. Maj. Khor that the accused’s interrogation lasted for 5 to 6 hours per day.
With respect, we disagree with the finding of the learned trial Judge. On the evidence, Sgt. Maj. Khor (TWT PW12) could not have been telling the truth. It is to be recalled that according to the Lock-Up Diary the interrogation began around 7 a.m. and ended at around 5:30 p.m. The police sentry, TWT PW13, did not elaborate to explain that for each day, how long was the lunch break; and how long were the toilet breaks? Therefore, what is the basis for Sgt. Maj. Khor to say that the interrogation only lasted for 5 to 6 hours per day. In our judgment, the continuous long hours of interrogation of the appellant by the police officers in question for a period of five consecutive days, constitute oppressive conduct on the part of the police officers involved in the interrogation. Thus, the cautioned statement cannot be said to have been voluntarily made by the appellant. The cautioned statement, therefore, should not have been admitted by the learned trial Judge. As the prosecution relies primarily (if not entirely) on the cautioned statement, it follows that once the cautioned statement is ruled inadmissible, then the conviction is no longer sustainable.
In Dato Mokhtar bin Hashim v Public Prosecutor  2 MLJ 232, Abdoolcader F. J. said (at p. 272):
No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement [Ibrahim v. R  A.C. 599 per Lord Sumner] and this test was accepted by the House of Lords as the correct approach in Director of Public Prosecutions v Ping Ling  3 All E.R. 175 …
In Juraimi bin Husin v Public Prosecutor Gopal Sri Ram JCA said (at p. 563):
A statement recorded under the provisions of section 113 of the CPC may also be held to be inadmissible if it was obtained through oppression as defined by Sachs J in R v Priestly (1965) 51 Cr App Rep 1.
However, there is another reason as to why the appeal must be allowed. In our judgment, it is unsafe to convict a person, particularly on a murder charge, which carries the death penalty, solely on his confession made in a cautioned statement to a police officer under
section 113 of the Criminal Procedure Code – even if the Court were
to rule the cautioned statement admissible.
In Public Prosecutor v Lai Pong Yuen & Ors  1 MLJ 12, Ismail Khan J (as he then was) ruled (at p. 14):
Unlike the confession of a co-accused, a confession by an accused can be used against himself, and if believed could lead to a conviction. But the rule of prudence requires that there should be independent corroboration.
In Juraimi bin Husin v Public Prosecutor Gopal Sri Ram JCA said (at p. 563):
Lastly, we accept as settled law that once a confession is admitted in evidence an accused may be convicted solely on its strength. However, as a matter of prudence and practice, the court ought to look for corroboration of the incriminating part of the confession. See Public Prosecutor v Lai Pong Yuen & Ors  1 MLJ 12; PP v Chong Boo See  3 MLJ 292; Hasibullah bin Mohd Ghazali v PP  3 MLJ 321.
On our part, we propose to adopt the rule of prudence as laid down in these cases.
Thus, we ask ourselves: are there any independent corroboration of the cautioned statement regarding the role of the appellant in the fatal shooting of the deceased as being the driver of the motorcycle in question?
The learned trial Judge, in his grounds of judgment, held there are independent corroborative evidence in respect of at least ‘three matters’ stated in the cautioned statement which show ‘the appellant was involved in the case’ (to borrow the words of the learned trial Judge). This is what the learned trial Judge said:
Now, despite the accused’s claim that everything in the cautioned statement is untrue and made up by the police and that he was not involved in any way with this case, I find that there is independent corroboration in respect of at least three matters stated in the cautioned statement which show the accused was involved in the case. Sim Eng Huat had testified that he was in the gold coloured Proton Wira when it was stopped by the police. In his cautioned statement the accused had referred to the fact that the gold
coloured Proton Wira car driven by ‘Ah Huat’ and ‘Siaw Fei’ was stopped and they were detained. There is no evidence before the Court which police officers who interrogated the accused knew about ‘Ah Huat’ and ‘Siaw Fei’ being so stopped to put that information into his cautioned statement as alleged.
The accused had also mentioned that two (2) or three (3) days after he had showed Ah Huat and Ah Bee where the deceased’s offices were located, Ah Bee showed him (the accused) a cheque for RM1 million belonging to the deceased’s law firm which the accused said he tore up as it was useless since it was made out under a company name. The evidence led in the prosecution case shows that a cheque for RM1 million in respect of a land transaction was stolen from the deceased’s office when the office was burgled on 21.1.2005. There is no evidence before the Court which police officers who interrogated the accused knew about this cheque for RM1 million being stolen so as to put that information into his cautioned statement as alleged.
It is also in evidence that two (2) black brief cases which were used by the deceased and his partner were stolen during the burglary. The evidence shows that the police recovered a black brief case (Exh. P 110) from the accused’s house. Mr. Lim Heng Choo (PW20) the partner of the deceased confirmed in his evidence that the black bag recovered from the accused’s
house was the black brief case used by him. He was able to identify the brief case from two features: (a) the combination numbers of the two locks. He had set them to his date of birth i.e. ‘219’ for 21st September. The brief case recovered from the accused’s house which PW20 examined in Court had the combination number of the left lock changed but the right hand lock was still ‘219’, which was the combination number he had left the lock set to on the date it was stolen; (b) after he purchased the brief case he had used it for a trip to Bintulu when the brief case travelled as checked-in luggage. When he retrieved the brief case in Bintulu he noticed a distinctive scratch mark on the back of the brief case which was not there before. PW20 pointed out in Court a curved shaped scratch mark on the brief case which was recovered from the accused’s house. I accept Mr. Lim’s evidence on the point. His evidence is not inherently improbable and is consistent with the fact that a burglary had taken place at his office when the brief case was stolen. This evidence about the stolen brief case must be viewed against the fact that in his cautioned statement the accused had said that Ah Bee had produced to the accused other items stolen from the deceased’s office.
In my judgment the above evidence provide independent corroboration of the accused’s involvement in this case despite his denial and that what was stated in his cautioned statement was not all made up by the police as alleged. For this reason, I find that the accused’s cautioned statement
should be given the weight it deserves and not excluded from the evidence as contented by the defence.
With respect, we are unable to agree with the approach adopted by the learned trial Judge.
Having carefully examined the evidence, we are of the view that there is no corroborative evidence whatsoever of that part of the cautioned statement directly pertaining to the identity of the driver of the motorcycle.
We note that there are no eye witnesses who could identify the riders of the motorcycle as they were wearing crash helmets with the visors down. This is acknowledged by the learned trial Judge when he said:
Now that the Accused has denounced everything stated in his cautioned statement as untrue for the reasons given by him, I must consider what weight to attach to it in the light of the attack mounted by the Accused against it. In doing so I am acutely aware of the fact that that whilst there are eye witness account of the deceased’s shooting to death, there is no eye witness account of the identity of the gunman and the driver of the
motorcycle as they wore crash helmets with the visor down. The only evidence of their identity comes from the Accused’s cautioned statement.
Thus there is here a finding of fact by the learned trial Judge that the only evidence on the identity of the killers comes from the cautioned statement of the appellant. There is no cross-appeal by the prosecution on this finding of fact by the learned trial Judge on the absence of evidence (apart from the cautioned statement) on the identity of the killers.
In our judgment, and with respect to the learned trial Judge, the ‘three matters’ in the cautioned statement, namely, –
(1) the narration about the ‘gold coloured Proton Wira car’;
(2) the narration about the ‘RM1 million cheque’; and
(3) the narration about the ‘black brief case’,
that the learned trial Judge referred to, and said to have been corroborated by independence evidence, have no bearing whatsoever on the fatal shooting incident, particularly, on the question: was the
appellant the driver of the motorcycle used by the gunman who shot the deceased? In other words, there is no corroboration on the incriminating part of the cautioned statement.
[Appeal allowed; conviction and sentence set aside]
(Dato’ Mohd Hishamudin Yunus)
Judge, Court of Appeal Palace of Justice Putrajaya
Date of decision: 19 June 2013
Date of written grounds of judgment: 12 February 2014
Kitson Foong and Gladys Lee Lee Yen (Messrs Kit & Associates) for the appellant
Noor Fadzila binti Ishak (Deputy Public Prosecutor) of the Attorney General’s Chambers, Kuching, Sarawak for the respondent