026-SLLR-SLLR-1999-V-2-CHUIN-PING-SHIEK-v.-THE-ATTORNEY-GENERAL.pdf
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Chuin Pong Shiek v. The Attorney-General
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CHUIN PONG SHIEK
v.THE ATTORNEY-GENERAL
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. SLA NO. 100/98C.A. NO. 171-172/95
C. COLOMBO NO. 6768/94AUGUST 20 AND DECEMBER 11, 1998JANUARY 25 AND MARCH 8, 1999
Criminal Law – Conviction for murder – Common intention – Circumstantialevidence.
Two accused were convicted of the murder of the deceased. The deceasedwas killed at about 2.30 am on 16.5.86.The entry into the one-bedroomannexe, in which he lived alone, had been effected by removing the screws bywhich an iron grill had been fixed to a window. A very serious injury had beeninflicted on the deceased's head with a hammer. There were eighty-seven otherinjuries inflicted with sharp cutting and blunt instruments. The evidence againstthe 1st accused consisted of, inter alia, a blood-stained palm print on one of thewalls of the annexe; and the expert evidence was that this was the palm printof the 1st accused. The evidence against the petitioner (the 2nd accused) whoalone sought special leave to appeal to the Supreme Court was circumstantial.
Held:
The circumstantial evidence led irresistibly to the conclusion that the murderwas committed by the petitioner and the 1st accused acting in furtheranceof a common intention.
Per Fernando, J.
"The medical evidence as to the petitioner's injuries, the blood stainsin his car, and his knowledge of the location of the plastic bag in whichwere found the six screws from the window grill, are consistent only with his
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presence and participation in the murder. That conclusion is confirmed byhis conduct immediately before the murder (being in the company of theaccused just four hours before the murder) and during the ten days thereafter.While further confirmation is hardly necessary, one cannot ignore his deliberatefalse statement in material respects : as to how he sustained those injuries;and as to who wanted a trip to Kegalle to be arranged.'
Whatever infirmity there might have been in the admission or assessmentof evidence, the substantial rights of the petitioner have not been prejudicedand there has been no failure of justice.
Cases referred to:
Narapane Swami v. King-Emperor (1939) – 1 AER 396.
Somasiri v. The Queen (1969) – 75 NLR 172.
Perera v. The Queen (1970) – 76 NLR 217.
R. v. Marshal Appuhamy (1950) – 51 NLR 272.
R. v. Krishnapillai (1968) – 74 NLR 438.
Etin Singho v. The Queen (1965) – 69 NLR 353.
APPLICATION for Special Leave to Appeal from the judgment of the Courtof Appeal.
Ranjith Abeysuriya, PC with Miss Priyadarshani Dias for the petitioner.
C. R. de Silva, PC, ASG with S. Jayamanna, SC for the respondent.
Cur. adv. vult.
May 28, 1999.
FERNANDO, J.
Two persons were charged with and convicted of the murder of oneTony Martin, by the High Court of the Western Province, sitting withouta jury. The Court of Appeal dismissed the appeals of both accused.The 2nd accused-appellant-petitioner (the petitioner) alone seeks specialleave to appeal against that order.
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At the commencement, Mr. Abeysuriya, on behalf of the petitioner,
handed to us a statement of the alleged errors of law on which
special leave was sought:
Has it been affirmatively established as alleged in the indictmentthat this murder was committed by these two accused alone?
Has the prosecution evidence, conclusively established in thiscase, based entirely on circumstantial evidence, that thepetitioner had been present at and participated in thiskilling?
Have statements attributed to the deceased well before hewas attacked been improperly admitted and acted uponunder section 32 (1) Evidence Ordinance, as falling within themeaning of "circumstances of the transaction which resultedin death"?
Was it permissible to hold that the presence of relativelytrivial injuries on the fingers and arms of the petitioner leadsto the inescapable inference that he had participated in theattack on the deceased?
Does the alleged discovery of a sarong (P32), cap (P33)and 6 screw nails (P36) said to have been found on thestatement of the petitioner implicate him in this killing?
Did the failure of the Court of Appeal to examine the sustainedattack made on the manner in which the Trial Judge dealtwith the testimony of the principal witness, H. Jayasena, deprivethe petitioner of a fair hearing and adjudication?
Has the Court of Appeal made wrong inferences to thedetriment of the petitioner from items of the subsequent conductof the petitioner?
Did the Court of Appeal wrongly fail to take into considerationother relevant evidence relating to these very items whichtranspired at the trial proceeding?
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The facts are stated in detail in the judgment of the Court ofAppeal. I set out below the relevant facts – undisputed, exceptas otherwise indicated – on the basis of which this application forspecial leave was argued.
Tony Martin, a bachelor, was killed at about 2.30 am on 16.5.86.Entry into the one-bedroom annexe, in which he lived alone,had been effected by removing the screws by which an iron grillhad been fixed to a window.
There was a blood-stained palm print on one of the wallsof the annexe, and the expert evidence was that this was thepalm print of the 1st accused. A very serious injury had been inflictedon the deceased's head with a hammer; the hammer head withpart of the handle was found at the scene. Eighty-seven otherinjuries had been inflicted with sharp cutting instruments and bluntinstruments. The JMO was of the opinion that there had been morethan one assailant.
In consequence of a statement made by the 1st accused to thePolice, after his arrest, a bag was found which contained the remainingpart of the handle of the hammer used for the killing.
The evidence thus established that the 1st accused was presentat and participated in the killing.
The evidence against the petitioner (the 2nd accused) wascircumstantial. The petitioner and the deceased had known each otherfor a considerable period; they were members of the same sportsclub; and there had admittedly been some financial transaction betweenthem, although its nature was hotly disputed. The RegistrationBook relating to the petitioner's car and two cheques drawn by thepetitioner for a total of Rs. 125,000 were found in the deceased'ssafe. In a dock statement the petitioner explained that he had wona million rupees gambling at the casino, and had given a sumof Rs. 450,000 to the deceased (without documentary evidenceor security) for investment, yielding a monthly interest incomeof Rs. 25,000; he also claimed that the deceased was endeavouring
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to invest a further sum in the perchase of US$ 10,000 in foreigncurrency, and that the Registration Book and cheques had been hanedover as security for that transaction. The prosecution contended, onthe other hand, that if the Qeceased actually had Rs. 450,000belonging to the petitioner, there was no need for him to provide anyfurther security for the alleged purchase of foreign exchange; and thatin fact the Registration Book and cheques had been given as securityfor a loan by the deceased to the petitioner.
On 14.5.86 the petitioner and the 1 st accused came to the deceased'sannexe at about 9.30 pm; they came on a motor cycle, which theyparked some distance away, on a side road, in such a way that itwas not visible from the annexe; and to enter the premises, theyjumped over the gate – which was about six feet high. The deceasedhad a part-time employee named Jayasena. Jayasena had full-timeemployment elsewhere during the day, and did household chores forthe deceased in the evenings; and he then spent the night at anotherhouse (owned by the deceased) at Nugegoda, of which he was thecaretaker. Jayasena testified to this visit; he said that while thepetitioner spoke to the deceased inside the bedroom, the 1st accusedremained outside; he did not know what they talked about.
The two visitors left after ten or fifteen minutes. The petitionerneither denied nor explained that visit in his dock statement.
Then, said Jayasena, the deceased made a statement aboutthe petitioner – which Mr. Abeysuriya submitted was improperlyadmitted under section 32 (1) of the Evidence Ordinance – to theeffect that he had lent money to the petitioner, and had scolded thepetitioner that evening at the club for failing to repay the loan. Apartfrom that point of law, Mr. Abeysuriya also argued that Jayasena'sevidence was not worthy of credit.
The petitioner and the 1st accused spent the next evening (15.5.86)together, with another friend Imran. Having visited the casino,the petitioner gave his two friends a lift in his car. Imran said thepetitioner dropped him at his residence at about 10.30 pm. The killingtook place, just four hours thereafter, at 2.30 am on 16.5.86.
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On 16.5.86 at about 9.30 am Imran came to the petitioner's house.Imran testified that he noticed that the petitioner had some minorinjuries on his hands and wrists. The petitioner explained that thesehad occurred the previous night when tie reached home: as he triedto get out of his car, he said, his pet dog had greeted him, over-eagerly; he got scratched by its nails; and when he was pushingit out of the car, his finger was accidentally bitten. The truth of thatversion was contested by the prosecution, which contended that thoseinjuries, eleven in all, had been caused in the course of an attackon the deceased. The Police could not trace the petitioner, and hewas arrested only on 26.5.86. He was produced before the JMO on27.5.86, specifically in order to ascertain the circumstances in whichhe had sustained those injuries. The JMO's evidence was that oneof those injuries – an incised wound, 1/2" long and 1/5" deep – onthe left index finger had been caused by a sharp cutting instrument;the other ten could have been caused by a sharp cutting instrumentor by human fingernails, or in some other way, in the course of astruggle – but it was not suggested to him that a dog was responsible.It was suggested in cross-examination that the first injury might havebeen caused by a bite, but that was rejected by the JMO. Further,although the JMO testified that the petitioner had given a history -which he said he did not record in his report as it might have beeninadmissible, as the petitioner was then in police custody – it wasnot suggested to him in cross-examination either that the petitionerhad attributed any of his injuries to his pet dog, or even that the injuriesmight have been caused by a dog. Mr. Abeysuriya was not able tosuggest any valid reason for not accepting the JMO's evidence.
There was also evidence of blood-stains in a number of placesin the car; in particular, to the left of the driver’s seat (near the handbrake, and on the seat belt clip attachment). These were moreconsistent with the petitioner having received injuries (particularly theincised wound on his left index finger) before getting into the car,rather than with the petitioner's dog injuring him as he was trying toget out the car.
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On the medical evidence, therefore, the conclusion was that thepetitioner had suffered minor injuries after 10.30 pm on 15.5.86 andbefore 9.30 am on 16.5.86; that one of those was caused by a sharpcutting instrument; and that while the other ten could have beencaused by a sharp cutting instrument or human fingernails, orotherwise, the petitioner did not take up the position that the injurieshad been caused by his pet dog, either when examinedby the JMO, or even in the cross-examination of the JMO.
The prosecution case was that – as a result of the deceasedvigorously trying to defend himself – a weapon in the hands ofthe petitioner would have caused those injuries. Mr. Abeysuriyacontended that it was most unlikely that a strong athletic person likethe deceased would have caused his assailant only such trivialinjuries while defending himself. Mr. de Silva countered that the attackhad commenced when the deceased was asleep, and that the hammerblow on the deceased's head would have greatly reduced his capacityto defend himself.
Imran testified that when he met the petitioner at 9.30 am on16.5.86 the petitioner asked him to arrange a trip to Kegalle tohis aunt's place – which he did the next day. However, in hisdock statement the petitioner claimed that Imran's aunt had previouslyextended an invitation: but that position was never put to Imran.The petitioner, his wife and Imran left for Kegalle at 2.30 pm thenext day, in the petitioner's car. Before they left, Imran drewthe petitioner's attention to a newspper item about the murder, butthe petitioner expressed no interest – despite his friendship withthe deceased. That lack of interest continued even at Kegalle. Further,he neither visited the funeral house, nor attended the funeral. Apartfrom friendship, although the petitioner's position was that he had giventhe deceased Rs. 450,000 for investment, and had kept some securityin connection with another transaction, nevertheless he took no stepseven to protect his financial interests.
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The prosection contended that* the petitioner was taking stepsto distance himself from the killing. He returned from Kegalle on18.5.86. For some days, the Police could not find him, although theylooked for him (and left messages) at His home as well as the homesof his parents and his in-laws. Ultimately, he was traced and arrestedonly on 26.5.86.
In consequence of a statement made to the Police by the petitionerto the effect that he could point out the location of a bag containingclothing, a bag was found which contained a jacket, in one of thepockets of which were found six screws. These were identified – byreason of length and circumference, the colour of the paint on thehead of the screws and the iron grill, the depth of the cavities in thewooden window frame, etc. – as being those removed from the grillof the window through which access had been gained to the de-ceased's annexe. Mr. Abeysuriya submitted that the evidence in regardto finding the screws inside the bag was not admissible under section27 (1) of the Evidence Ordinance. I
I must refer first to Mr. Abeysuriya's submissions regardingsection 32 (1). He relied on” Narayana Swami v. King-EmperoSomasiri v. The Queer!2) and Perera v. The Queer!®. In the first ofthese decisions the Privy Council held that the "circumstances of thetransaction" which resulted in death are circumstances that have someproximate relation to the death of the declarant. As pointed out inR v. Marshall Appuhamy^41 whether there is a proximate relationbetween the commencement of the transaction and the ending thereofis a matter to be determined on the facts of each case. Somasiri'scase is of little assistance, because evidence of a statement madeby the deceased was excluded not on the ground that it did not relateto the "circumstances of the transaction" but because hearsayevidence was tendered. In Perera's case, the statement had beenmade almost a fortnight before the death of the deceased; further,the State conceded that it had been wrongly admitted. The statementin this case is much closer, in point of time, to the death.
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The undisputed evidence in*this case is that there was somefinancial transaction between the petitioner and the deceased.The statement relied on by the prosecution was intended to establishthat there was displeasure Arising out of that transaction, followedby a visit, somewhat late in the evening on 14.5.86, just 28 hoursbefore the killing. The circumstances thus have some similarity toNarayana Swami's case.
However, in view of Mr. Abeysuriya's submission that the infirmitiesin Jayasena's evidence were not adequately considered, we decidedto consider whether it would be safe to allow the conviction to standif this statement was excluded.
Mr. Abeysuriya's second submission was that leave should begranted on the question whether evidence of the contents of the plasticbag, namely of the discovery of six screws in the pocketof the jacket, had been improperly admitted, contrary to section27 (1) of the Evidence Ordinance, because that part of the petitioner'sstatement which led to the discovery of the plastic bag didnot refer to the contents of the bag. The Court of Appeal rejectedthat submission, and I would venture to summarise its reasoningas follows. The bag was the "fact" discovered; it was deposed toas having been discovered in consequence of the petitioner'sstatement; so much of that statement as related distinctly to thebag – the "fact" discovered – could therefore be proved. The "fact"discovered was the bag including its contents – and not just the bag,without its contents. Accordingly, as held in R v. Krishnapilla/51 andEtin Singho v. The Queer/®, the petitioner's statement established thathe had knowledge of the place at which was found the bag containingthe jacket and the screws. The petitioner failed to explain howhe had acquired that knowledge. In my view, no question of law arisesin relation to the interpretation or application of section 27 (1).
Even without the statement made under section 32 (1), thecircumstantial evidence led irresistibly to the conclusion that the murderwas committed by the petitioner and the 1st accused acting in
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furtherance of a common intenion. *rhe medical evidence as to thepetitioner's injuries, the blood-stains in his car, and his knowledge ofthe location of the plastic bag in which were found the sixscrews from the window grill, are consistent only with his presenceat and participation in the murder. That conclusion is confirmed byhis conduct immediately before the murder (being in the company ofthe 1st accused just four hours before the murder) and during theten days thereafter. While further confirmation is hardly necessary,one cannot ignore his deliberate false statements in material respects:as to how he sustained those injuries, and as to who wanted a tripto Kegalle to be arranged.
Whatever infirmity there might have been in the admissionor assessment of evidence, the substantial rights of the petitionerhave not been prejudiced, and there has been no failure of justice.
Special leave to appeal is therefore refused without costs.
WADUGODAPITIYA, J. – I agree.BANDARANAYAKE, J. – I agree.Special leave to appeal refused.