Cold Blooded Murders (19 page)

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.

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’.