The trial judge erred in law in allowing evidence of inadmissible hearsay, in particular, evidence relating to the circumstances in which Jenny Cheok was alleged to have taken out insurance policies. · The trial judge erred in law in permitting the prosecution to adduce irrelevant evidence, in particular, (a) evidence of alleged attempts to suborn a witness, (b) evidence of a proposal form which Jenny Cheok was alleged to have submitted to the Prudential Assurance Company Limited, there being no evidence whatever to connect the accused with the proposal form. ·
The trial judge erred in casting unnecessary and unwarranted aspersions on the conduct of the appellants’ advocate and others associated with the accused. Further, having made them of the appellant’s advocate, the trial judge failed to give the appellant’s advocate an adequate opportunity to explain himself before the jury. ·
The trial judge erred in law in rejecting admissible evidence of statements made by Jenny Cheok to her sister as to her intentions to go to Britain, and as to her intention that she would be going away for a long time. · The appellant was throughout the trial subject to such prejudice that he could not in the circumstances be said to have had a fair trial. · The trial judge erred in law in permitting the deputy public prosecutor to suggest to the jury that a flipper used by Jenny Cheok was cut by the appellant between her first dive and her second dive, notwithstanding that no such suggestion was made in the course of the deputy public prosecutor’s opening address. Nor was this suggestion put to any witness who could have given evidence on the matter. · The trial judge in his summing up to the jury was so biased against the appellant and implied, or suggested as proved, facts which were challenged, with the result that the appellant could not be said to have had a fair trial. · The verdict of the jury was wrong and against the weight of evidence. · The trial judge erred in law in failing to direct the jury on a possible verdict of culpable homicide not amounting to murder. · The trial judge in his direction to the jury erred in law in using, upon the facts of the case, the analogy of a person being induced to walk to a cliff top to illustrate the necessary intention for the offence of murder, and the trial judge generally failed to direct the jury adequately on intention. · The trial judge erred in failing to direct the jury adequately on causation, in particular, he failed to direct the jury that if Jenny Cheok was dead, (a) she significantly contributed to her death by voluntarily going into the water, and (b) a number of possible causes for which the appellant was not legally responsible could have caused her death. · The trial judge erred in law in failing to direct the jury adequately on certain questions of law relating to the offence of murder. · The trial judge did not at times clearly distinguish between prosecution allegations, evidence and his own views thereon. · The trial judge erred in law in failing to direct the jury adequately on the burden of proof on the prosecution. · The trial judge was wrong in his direction to the jury on circumstantial evidence and erred in law in failing to direct the jury adequately on the dangers of convicting an accused person on circumstantial evidence.
Mr Coomaraswamy’s first ground of appeal was based on the admission of evidence relating to the accident when Ang was driving a car with Jenny as passenger near Seremban. He said the accident happened a full two weeks before the alleged murder. He submitted that what happened, on 13 August could not be said to be ‘part of the same transaction’ or ‘closely associated in time, place and circumstances’-which, he argued, were the conditions laid down in law for such evidence to be admissible.
“This particular accident, which took place two weeks earlier and 200 miles from Singapore cannot be associated in time, place and circumstances with the facts that were the subject matter of the charge,” defence counsel submitted. He said it was clear that the prosecution could not seek to adduce evidence of this accident for the purpose of showing that the accused was a person, who by his past conduct, was likely to have committed the crime with which he was charged. If that were the purpose, it would be totally and completely irrelevant. Therefore, the only other purpose was to show that the accused deliberately crashed the car and tried to kill or maim Jenny and that the events of 27 August could not be an accident. Counsel argued that this piece of evidence was highly prejudicial because, if the interpretation the prosecution sought to put on the car collision remained, it would be evidence of the commission by the accused of an offence other than that with which he was charged. It could have been evidence of anything, ranging from voluntarily causing grievous hurt to attempted murder. That in itself was evidence of bad character and tended to show that the accused had committed an offence which was not the subject matter of the charge. The fact that an accused was of bad character, Mr Coomaraswamy argued, was irrelevant in criminal proceedings. He cited a series of authorities to substantiate his arguments.
Counsel submitted that the trial judge had admitted hearsay evidence and disallowed relevant evidence. He had disallowed evidence which would have shown that Jenny intended going to Britain and would be away for a long time. Had the judge allowed this evidence, counsel said, he would have submitted to the jury that there was a likelihood Jenny was alive and abroad, because of her expressed intention of going to Britain.
On the third day of the appeal, Mr Kirpal Singh, who was assisting Mr Coomaraswamy, took over. Earlier, Mr Coomaraswamy dealt with the ground of appeal which alleged that the trial judge had erred in casting unnecessary and unwarranted aspersions on the conduct of the appellant’s advocate and others associated with the accused, and had failed to give the appellant’s advocate an adequate opportunity to explain himself before the jury.
He next referred to Yeo Tong Hock, the brothel-keeper and self-confessed pimp. Mr Coomaraswamy said he had been informed by A. P. Godwin of Donaldson and Burkinshaw, a legal firm acting for the underwriters, that he (Godwin) had interviewed Yeo that morning in his office, and that Yeo had told Godwin that he had been held incommunicado by the Penang police for 10 days before he had appeared in Singapore. Counsel complained about the words the judge used.
The Acting Chief Justice said, “Those words by the judge would not have been uttered if you had told him that Godwin gave you the information. The judge does not know what is happening. Here counsel says his witness was kept incommunicado for 10 to 14 days. Witness is asked and he said ‘No’. All that must have seemed very significant at the time. You did not call Godwin and the witness denies what you said. He is your witness. Almost any judge would have made the same comment. Godwin left the courtroom and nothing more was heard about him. What was the judge to think? Many a judge would have said ‘Most extraordinary’.”
Later, counsel dealt with another ground of appeal, which alleged that the appellant was, throughout the trial, subject to such prejudice that he could not in the circumstances be said to have had a fair trial. Counsel cited a passage in the trial evidence and the remarks made by the judge. He submitted that there was risk, from these remarks, of the jury thinking that even if there was a conviction the accused would go to a court of appeal anyway. In his other comments, counsel alleged, the trial judge gave the impression that defence counsel was wasting his time. Mr Coomaraswamy said that throughout crown counsel’s opening address he had called the accused ‘prisoner’, a term used in Queen Victoria’s reign, but no longer used even in Britain. The word ‘prisoner’ might lead a jury to think that he had been sentenced for another offence. Mr Coomaraswamy suggested that on one occasion the trial judge’s remarks were indicative of his sarcasm. He also commented on the judge’s sarcasm towards the accused, which he said was bound to have an adverse effect on the minds of the jury.