Lim Kiang Chai v Public Prosecutor [2014] 3 MLJ 358

Lim Kiang Chai v Public Prosecutor [2014] 3 MLJ 358

Court of Appeal (Putrajaya)

Confession of the Accused in the Cautioned Statement

Facts 1.     Lim Kiang Chai (“the Appellant”) appealed against his conviction and death sentence at the High Court of Kuching for murdering Fabian Lim Ann Hoaw (“the Deceased”).

2.     The incident happened on 18 February 2005, around 6:15 PM, after the Deceased and his wife finished a meal at Fu Xiang Food Centre in Kuching.

3.     The Appellant was accused of committing the crime with an accomplice who is still at large.   The Appellant was arrested on 2 March 2005 in Sibu, brought to trial in Kuching, and was convicted and sentenced to death on 26 December 2008.  During the trial, the Appellant denied the murder charge.

4.     The prosecution case described the Deceased and his wife had just finished their meal, was getting into their car, and being shot by two individuals on a motorcycle.   The Appellant was alleged to be the rider of the motorcycle.

5.     The fact that the Deceased was murdered at the stated place, date and time was not disputed, but the key question was whether the Appellant was the rider of the motorcycle used by the gunman.

6.     Three (3) witnesses (Capt Mohd Faisal bin Zakaria, Poo Siang Hin, and Mdm Chin Siew Chin) saw the shooting but could not identify the motorcycle riders.

7.     Despite witnessing the shooting, none of the witnesses could identify the riders due to them wearing helmets with visors, and they could not provide the motorcycle’s registration number.

8.     During the trial, the prosecution relies on a cautioned statement (Exhibit P114) made by the Appellant as crucial evidence.   The statement suggested the Appellant confessed to being hired to murder the Deceased and being the motorcycle driver.

9.     The Appellant objected to the statement’s admissibility, claiming it was not voluntarily made due to oppression and that the statement is untrue.

10.  After a trial-within-a-trial, the learned judge ruled that the cautioned statement was voluntarily made and thus admissible as evidence.

11.  In the statement, the Appellant confessed to being the rider of the stolen Yamaha 100 motorcycle used in the crime.   The Appellant claimed to have been hired by his boyhood friend, Roger Wong, for RM65,000.00.  The gunman, Ah Bee, was allegedly recruited by Roger Wong’s friend, Ah Ho.

Issue 1.     Whether the cautioned statement was made voluntarily by the Appellant?

2.     Whether the Appellant’s confession in the cautioned statement of his involvement in crime is admissible as evidence?

Ratios       Whether the cautioned statement was made voluntarily by the Appellant?

1.     According to the established legal principles, the prosecution carries the burden of proving the voluntariness of a cautioned statement.  The standard of proof required is beyond reasonable doubt.

2.     In the present case, the prosecution primarily relied on the confession of the Appellant in the cautioned statement to prove its case against the Appellant.

3.     The Court of Appeal was of the view that the Appellant’s burden is to establish a well-grounded suspicion regarding the involuntary nature of the cautioned statement, as emphasized by Gopal Sri Ram JCA in the case of Mohd Affandi bin Abdul Rahman & Anor v Public Prosecutor [1998] 1 MLJ 537.

4.     After carefully examining the evidence presented in the trial-within-a-trial, the Court of Appeal found that the prosecution did not sufficiently prove that the Appellant’s cautioned statement was made voluntarily.

5.     The Court of Appeal found that the Appellant was questioned intensively for five (5) consecutive days, from 3 March to 7 March of 2005, for about 10 and a half hours each day, with breaks.   The lock-up diary confirmed a routine of taking the Appellant to the interrogation room in the early morning at 7 AM and returning him to his cell late evening at 5.30 PM.

6.     After these prolonged interrogations, the cautioned statement was recorded on 8 March 2005, from 10:05 AM to 1:30 PM by Chief Inspector Ang Seow Aun (PW1).

7.     During the trial, the Appellant contended that the prolonged and consecutive questioning while he was in custody constituted oppressive conduct on the part of police officers involved in interrogation, thus making the cautioned statement made by the Appellant involuntary.

Whether the Appellant’s confession in cautioned statement of his involvement in crime is admissible as evidence?

8.     The Court of Appeal referred to the case of Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 where the prominent Abdoolcader FJ held-

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 [1914] AC 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 [1975] 3 All ER 175”

[Emphasis Added]

9.     The controversial case of Juraimi bin Husin v Public Prosecutor [1998] 2 CLJ 383 was also referred by the Court of Appeal where the late Gopal Sri Ram JCA held that-

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”

[Emphasis Added]

10.  Section 113 of Criminal Procedure Code (“Act 593”) reads—

“Admission of statements in evidence

(1)   Except as provided in this section, no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence.

(2)    When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to a police officer in the course of a police investigation under this Chapter and may then, if the court thinks fit in the interest of justice, direct the accused to be furnished with a copy of it and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act 1950 [Act 56].

(3)   Where the accused had made a statement during the course of a police investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.”

11.  Based on the above cases referred by the Court of Appeal, it is well settled that to use an accused person’s statement as evidence, the prosecution must prove it was voluntary.  If a statement is recorded under Section 113 of the Act 593, it could be deemed inadmissible if obtained through oppression.

12.  The Court of Appeal held that it was risky to convict someone, especially for murder with the death penalty, based solely on their confession in a cautioned statement to a police officer under Section 113 of Act 593, even if the Court decides the cautioned statement is admissible.

Decision 1.     The cautioned statement was not made voluntarily by the Appellant.

2.     The Appellant’s confession in cautioned statement of his involvement in crime is inadmissible as evidence.

3.     The appeal was allowed.

Key Take Away 1.     The Court of Appeal had stressed the need to prove a cautioned statement’s voluntariness, putting the burden on the prosecution to provide strong evidence.

2.     In this instance, the Court of Appeal concluded that the prosecution did not adequately prove the Appellant’s statement was voluntary because of prolonged interrogations in the lock-up.

3.     The Court also pointed out that a statement under Section 113 of the Act 593 might be deemed inadmissible if obtained oppressively, cautioning against convicting solely based on such confessions, especially in cases with severe penalties like death.


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