Five months after his trial, Sunny Ang’s appeal against conviction and sentence opened on 25 October 1965, before Justice Tan Ah Tah, the Acting Chief Justice, Justice Chua and Justice Winslow. The defence presented eighteen principal grounds of appeal. The hearing lasted nine days. In a few words the Acting Chief Justice delivered the judgment of the Court. He said, “Although Jenny’s body has never been found, there is overwhelming evidence on the record that the appellant murdered her. In our judgment no miscarriage of justice has occurred in this case. The appeal is dismissed.”
Ang was in court. He showed no emotion.
In his petition, put forward by his counsel, Mr Coomaraswamy alleged that his conviction was a ‘substantial miscarriage of justice’ on the following grounds.
· The trial judge erred in law in allowing the prosecution to tender irrelevant evidence of a collision involving a car, which the appellant was driving and in which Jenny Cheok was a passenger. · The trial judge erred in law in permitting the prosecution to adduce this evidence at the preliminary inquiry, notwithstanding that the notice under a section of the Criminal Procedure Code was not served on the accused or his advocate before the trial. · The trial judge erred in law in permitting the prosecution repeatedly to abuse the provisions of a section of the Criminal Procedure Code by adducing evidence of witnesses who did not give evidence at the preliminary inquiry, on the prosecution serving notice three minutes before the commencement of the trial, notwithstanding that the evidence of such witnesses was available to the prosecution long before and during the preliminary inquiry. ·
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.
Quoting an example, defence counsel said the accused had in reply to a question by the judge said, ‘Sometimes I write things in my diary which, for the life of me, I do not know what they are’. That remark ‘for the life of me’ might have been unfortunate, but the trial judge’s reply was ‘Now you have to try, for the life of you’. Mr Coomaraswamy described the judge’s remark as an improper one in a capital charge, though it was said on the spur of the moment.
Mr Kirpal Singh took over the submission at this point and said that the trial judge had left the jury in doubt as to which particular act or acts had caused death. He said this was tantamount to a misdirection of the law.
During the proceedings, additional grounds of appeal to amend those already submitted were put forward. · The learned trial judge had erred in law in failing to direct the jury that it was a matter for them to decide whether the Pedas collision was accidental or deliberately designed. If they came to the conclusion that it was accidental and not deliberately designed, to disregard the matter entirely; and if they came to the conclusion that it was deliberately designed, to utilize the evidence thereon for its proper purpose and not as evidence that because the appellant did a thing once he was likely to do it again. · The learned trial judge had erred in law in not directing the jury to ignore inadmissible hearsay evidence. · The learned trial judge had erred in law in failing to withdraw the case from the jury at the end of the prosecution case. ·
The learned trial judge had erred in law in failing to direct the jury adequately on the quantum of proof necessary before they accept an allegation of the prosecution, and on the quantum of proof necessary before they accept an explanation offered by the appellant.
Mr Kirpal Singh believed that if the trial judge had properly directed the jury it was possible that the verdict might have been an acquittal on the charge of murder. Or the jury might have found Ang guilty of the lesser charge of culpable homicide not amounting to murder. Mr Kirpal Singh submitted that Justice Buttrose, in his definition of murder, had omitted three vital words which would have made it clear that murder was the unlawful killing or causing of the death of one human being by another ‘by an act’ with the intention of doing so. If these three words had been used as required by law, the jury would have been prompted to ask what was the act alleged to have caused death.
Counsel submitted that the trial judge did not think that the cutting of the flipper worn by Jenny was the act. He said, “We are not clear as to what is the cause of death. There is no firm clear answer which particular act caused death. We do not know.” There was evidence, and it was overwhelming, to the effect that the waters in and around the Sisters Islands were dangerous even for expert swimmers. It could be said on evidence that Jenny was not an experienced swimmer or diver. Therefore, it could be said to be a reasonable inference that the combination of these two factors (dangerous waters and inexperienced swimmer) caused her death. It might even be said that the accused was aware of both these factors and presumably, before setting out for Sisters Islands, he might have told Jenny they were going into the water. Telling her ‘we are going into the water’ would be the act within the meaning of the law. The question was whether it would be proper to place it within the first limb of Section 299 (doing an act with the intention of causing death), or the third limb (doing an act with the knowledge that he was likely, by such act, to cause death). Counsel argued that the accused was entitled to a direction to the jury under the third limb. Had this been done, a possible verdict would be acquittal or culpable homicide not amounting to murder.
Justice Chua said, “Taking a novice to dangerous waters. Is that not an act within the meaning of the law?” Mr Kirpal Singh replied it was not.
“If he had told her to dive in?” asked “the Acting Chief Justice.
“Yes, an act would have been clear,” said Mr Kirpal Singh.
On the fifth day of the appeal, the defence submitted that Justice Buttrose had treated some of the evidence for the defence with scepticism and scorn. Defence counsel also alleged that some of the judge’s remarks were an outright direction to the jury to disbelieve. While surveying the defence, the judge had presented the case for the prosecution over again.
Mr Coomaraswamy referred to the two pairs of gloves which had been left at the police station by Ang. In the course of his evidence Ang had been shown two pairs of gloves and asked if he agreed that they were very new. He said they smelt new. Counsel said that 21 months after the gloves were supposed to have been surrendered to the police they still smelt new. He submitted that the judge should have commented on this.
The Acting Chief Justice, “The idea is that they might not have been the very gloves? The police might have substituted new gloves?”
“That is so,” said Mr Coomaraswamy.
Counsel said there was no evidence to show that the books on scuba-diving seized from Ang in December 1964 had been in his possession before 27 August 1963. The judge, he said, had repeatedly referred to these books, and ‘very much play made’, he said, of a passage in the book which warned that a little nick in the flipper might lead to an incident with disastrous results.
As for the green flipper that Jenny wore, Mr Coomaraswamy said it was his submission that the jury should not have been deprived of the opportunity to find, if they wanted to, that the flipper was, in fact, tampered with after Henderson found it.
Counsel described Justice Buttrose’s summing up as ‘extremely partial’ and ‘grossly unfair to the accused’. In fact, ‘he did not put his defence to the jury’.
Mr Francis Seow began his reply on the sixth day of the appeal. He submitted that Sunny Ang had a lust for money and tried through an ‘accidental death’ to gain $400,000.
Dealing with the road accident involving Ang and his passenger Jenny, Mr Seow quoted from a manual on evidence, ‘Previous attempt to commit a crime is akin to preparation. It is also closely allied to the preparation for the commission of an offence.”
Counsel argued that Sunny Ang himself had closed the door to a defence open to him at his trial. He had excluded from his defence the question of fraud and conspiracy between him and Jenny against the insurance companies. Ang, Mr Seow said, could not now be heard on his counsel’s argument that there might have been a possibility that Ang did not intend the death of Jenny, but had conspired with her to share in the insurance money he could collect after she had gone into hiding. Mr Francis Seow said, “This was not a defence raised by counsel though it was a defence open to him at the trial. It was, in fact, not explored, nor developed.” He said Ang had tried to get $900,000 worth of insurance on Jenny, and at the time of her disappearance she was carrying accident coverage of $450,000.
Continuing his arguments on the eighth day of the appeal, Mr Seow described the defence suggestion of an alternative or lesser verdict as ‘grotesque’.
Referring to the two pairs of gloves found in Ang’s bag, crown counsel submitted that at no stage did Ang deny they were his gloves. Mr Coomaraswamy’s suggestion that they could have been substituted by the police was monstrous.
Mr Seow said the essence of the case was that the victim must die and the victim must die by accident. “If she dies a natural death, Ang or his mother cannot possibly stand to gain anything. So she must die by accident whether under the guise of a road accident, or accident at sea, or an accident in the air. I submit that the facts which we have adduced show that Ang directed his mind to the accomplishment of that aim. It was cunningly contrived, and carried out with consummate coolness. In achieving that objective he must kill.” Crown counsel argued that the judge’s summing up was favourable to Ang.
Making his final address on the last day of the appeal, Mr Coomaraswamy pointed out that the Court of Appeal could order a re-trial. He said that although he had made complaints about the trial judge’s conduct, he was not for a moment saying that it was intended. “Those of us who know the judge know that he does things in a certain way, but the accused does not know, neither do the members of the jury.” Counsel said that he felt it unlikely that Ang would get a fair trial in a re-trial before a jury. The three stages of publicity, he said, to which the present case had been subject, would not give him a fair trial. He urged the Court of Appeal to give Ang a re-trial under Section 304, culpable homicide. This would be without a jury, but by a judge alone.
Dismissing the appeal on 19 November 1965, Justice Tan said, “It is true that the learned trial judge expressed himself with great emphasis and in strong terms on various matters. But the jury were left in no doubt that they were the sole judges of the facts in the case.”
Justice Tan dismissed as ‘quite trivial’ a good number of the grounds of so-called bias on the part of the trial judge. “In one instance, however, it is clear that the learned trial judge was in error, when he stated in his summing up that both the appellant and the witness Henderson used an improvised washer during demonstrations in court. In fact, it was Henderson who used an improvised washer, while the appellant used a new Healthway washer in the course of another demonstration. In our view this was a slip of no great consequence made in the course of a long trial, and is no indication of bias on the part of the learned trial judge.”
The Acting Chief Justice said, “The appellant’s real intention was to murder Jenny, and in pursuance of that intention he assisted Jenny in putting on the diving equipment, which had been brought in the sampan and allowed her, a novice, to go down alone wearing a flipper, which had previously been cut, into waters which he knew were dangerous and hazardous, with the result that she met her death.”
Sunny Ang was driven back to Changi Jail. He was still confident he would not hang.
Appeal To Privy Council
More than a year was to elapse before Ang’s application for special leave to appeal to the Juridical Committee of the Privy Council could be heard. On 5 October 1966, Mr Ralph Millner Q.C. appeared before the Committee on his behalf.
Sunny Ang’s legal advisers decided to base their application principally on the ground that Justice Buttrose wrongfully allowed the prosecution to tender evidence of the road accident in which Ang, driving the car with Jenny as the passenger, was involved. Such evidence was ‘evidence of the res gestas, and also evidence of similar acts by the accused to rebut the defence of accident or mistake’.
The prosecution, they said, appeared to rely upon this evidence as showing a previous attempt by Sunny Ang to kill Jenny, although this suggestion was never put to him in terms in cross-examination, ‘and does not appear in terms anywhere in the learned trial judge’s summing up to the jury’.
Sunny Ang’s legal advisers argued that this car accident was not connected with, and was removed in time from, the matters which formed the subject matter of the charge against Ang, and could not be said to be part of the res gestas (or the alleged intention of Ang to kill Jenny).
They held that the alleged acts of Ang on the day of the road accident were not ‘similar acts’ to those that the prosecution alleged he did in the commission of the offence with which he was charged. The evidence relating to the motor car accident, they said, would not have been sufficient to sustain a charge of attempted murder: at its highest it could only have given rise to some suspicion against Sunny Ang.
Therefore, they submitted, this evidence was irrelevant and inadmissible, and, as it was put forward in effect as evidence of some other offence or misconduct on his part, was highly prejudicial to Ang’s defence. Furthermore, the prejudicial effect was so disproportionate to any possible evidential value that it ought to have been excluded in fairness to Ang. In any event, the judge, having ruled that the evidence was admissible gave the jury no direction whatsoever as to how it was to be treated or applied. They submitted that if the evidence was admissible at all, he should have directed the jury that, if they thought the occurrence might have been a pure accident, the evidence would be of no assistance to them, and they should also ignore it if it only gave rise to suspicion. The evidence would have been relevant to rebut a possible defence of accident only if they were satisfied that Ang tried to kill Jenny by deliberately causing the accident. They held that the evidence would not sustain such a conclusion.
Ang’s petition to the Privy Council also submitted that Justice Buttrose misdirected the jury as to the effect of circumstantial evidence, in particular as to the way the jury should consider and evaluate the evidence relied upon by the prosecution as showing Sunny Ang’s guilt. Justice Buttrose had said that it was the cumulative effect of the evidence that was important not one isolated link in the chain of circumstantial evidence. He said it would be wrong to consider the case link by link, and reject any one link being by itself as too weak.
While the petitioners did not dispute that such a direction would be proper in a case ‘in which all the pieces of the circumstantial evidence are directed to show that an accused committed the particular act or was responsible for the particular omission which is relied upon as being the act of murder’, it was inappropriate and misleading where, as in Ang’s case, the prosecution alleged a number of acts or omissions, the cumulative effect of some, or all of which is relied upon as contributing the offence.
In Ang’s case, apart from evidence of motive or intention, and evidence as to subsequent conduct, which the prosecution relied upon as showing guilt, the prosecution case was that the death of Jenny was caused by: · Ang taking her scuba-diving in what he knew were dangerous waters and when, as he knew, she was a novice scuba-diver; ·
Ang cutting her flipper causing it to come off in the water and causing her to panic and to get into greater danger; and · his delaying, on a false pretence, for some ten minutes, instead of himself diving in or joining her, or making any effort to rescue her.
In these circumstances the judge’s direction to the jury as to how circumstantial evidence should be regarded was wrong. It was incumbent upon him to consider separately the various acts and omissions for which Ang was alleged to be responsible, and which taken together, made up the alleged crime. Instead, the judge invited the jury to lump all the circumstantial evidence together. He should have brought to their minds that the various pieces of circumstantial evidence were directed respectively to various acts and omissions, the combination of which the prosecution relied upon as constituting the crime of murder.
The petition said that the ‘main ingredient in the alleged crime of murder’ was the cutting of Jenny’s flipper. Ang’s act of cutting it, they submitted, was strongly in issue, ‘and there was some evidence to support the defence contention that it could not have been cut by Sunny Ang at the time and manner suggested by the prosecution’. Had the judge directed the jury correctly on the weight and effect of circumstantial evidence, he would necessarily have invited the jury to consider how the case stood if they were not satisfied that Ang had in fact cut Jenny’s flipper. He should have directed the jury in this context: that they should be satisfied that Ang induced or persuaded Jenny to scuba-dive in dangerous waters and so caused her death. The petition also argued that there was no direct evidence that Ang ever persuaded or induced Jenny to go to the particular spot where she made the dive from which she did not return. There was no direct evidence that Ang cut her flipper.
The petition complained that the Appeals Court followed the learned trial judge in taking the prosecution’s evidence as a whole, instead of distinguishing the various pieces of evidence in relation to the different acts or omission which the prosecution said constituted the offence of murder. “The cutting of the strap of the flipper, either by Ang or with his knowledge, must necessarily have been evidence in a different category.” The Appeals Court, the petition pointed out, said “Ang ‘allowed’ Jenny to go down into waters which he knew were dangerous.” For all these matters complained of, submitted Ang’s legal advisers, he had suffered ‘substantial and grave injustice’, and in consequence Ang petitioned for special leave to appeal against the judgment of the Appeals Court.
The petition was denied.