by Alex Josey
Sunny Ang paused for several long minutes. The courtroom was hushed when he replied, “I was not quite sure what sort of difficulties she was in. It occurred to me—it was a vague thought—that she might have been attacked by sharks. In fact, I remarked upon that to Yusuf. Not then, but long after the incident.”
His Lordship: You could have gone down to find out?
Sunny Ang: She might have been attacked by sharks.
Mr Francis Seow: Was one of the main reasons that sharks may be lurking where your boat was?
Sunny Ang: Yes.
Mr Francis Seow: Why did you bring her there in the first place, if sharks were lurking there?
Sunny Ang: The idea of sharks being there never occurred to me. In fact, it was Yusuf who recommended the spot to me—I mean the Sister Islands.
Mr Francis Seow: When did you change back into your street clothes?
Sunny Ang: I think I remember I put them on, on my way to St John’s Island.
Mr Francis Seow: So that when the Malay divers were going in you were then in your street clothes, and you saw no point in joining them?
Sunny Ang: I do not say I saw no point. I was in my street clothes and there were more experienced skin-divers, and there were five of them. Besides I knew the chances of finding her were very slim.
His Lordship: You never got into the water at all that day? You never got your feet wet?
Sunny Ang: That is so.
Sunny Ang admitted to crown counsel that on 28 August 1963 (the day after Jenny’s disappearance), Robert Cheok, brother of Jenny, came to his house and insinuated that Ang had murdered her.
Mr Francis Seow: And didn’t you tell him that if you had gone down together with Jenny, and if you had surfaced without her, then he could suspect you, and not otherwise?
Sunny Ang: Yes.
Mr Francis Seow: I put it to you that, after you insured Jenny heavily, you deliberately took her out to Pulau Dua where you tampered with her scuba equipment so that she would drown underneath the sea?
Sunny Ang: I did not.
Mr Francis Seow: So that you could collect the money?
Sunny Ang: No.
Ang was in the witness-box for eight hours over three days. His counsel did not re-examine, and, when Ang returned to the dock, called Yeo Tong Hock of Penang. Yeo gave his evidence in Hokkien. He said he was a food hawker, but in 1963 a brothel-keeper, and a pimp. At first he claimed that he had seen a woman similar to Jenny alive in Penang, and later in Kedah, after her reported disappearance. Later, shown a picture of Jenny, he agreed it was not the same girl.
He agreed with defence counsel that a photograph was first shown to him by an insurance investigator. He went to the High Court in Kuala Lumpur to make an affidavit.
Cross-examined by crown counsel, Yeo admitted he had bad eyesight. In September 1964, he met Stephen Lim, an investigator from Malayan Adjustment. He was shown a photograph. The investigator suggested it might be Jenny Cheok. He said he was prepared to make a statement but not swear an affidavit.
Crown Counsel: And Lim told you that if you did not swear an affidavit, and if the girl was subsequently found, you would not be entitled to any award?
Yeo: Yes.
Crown Counsel: And he told you that $25,000 would be for you if you swear out this affidavit?
Yeo: No. He said if this person were to be found then there would be a reward for me.
Crown Counsel: The insurance company would pay you $25,000?
Yeo: Yes.
His Lordship: Can you say, looking at this photograph now, in this court, at this moment, that it is the same girl you saw in Penang?
Defence Counsel: Could he look at both the photographs?
His Lordship: Certainly. (Photographs shown to witness.) Tell me. on sober reflection, now, with the greatest care with your answer—can you say absolutely whether or not that is the girl?
Yeo: Not the same.
As Mr Coomaraswamy rose to re-examine the witness. the judge told Yeo that he need fear no consequences of any answer he may give to any question he may be asked.
Mr Coomaraswamy: Now, where have you been living for the past 10 days?
Mr Francis Seow: I object to that—
His Lordship: How does this come up in cross-examination?
Mr Coomaraswamy: My instructions are that he was held incommunicado by the Penang police and threatened that he would be in trouble if he gave evidence in support of what he said in the affidavit.
His Lordship: Where have you been for the past 10 days?
Yeo: I left Penang on 2 May for Taiping. From Taiping I went to Kuala Lumpur. Last night I received a phone call saying I was wanted in Singapore.
His Lordship: I am bound to say, exercising all the restraint I can, that I think it was, Mr Coomaraswamy, a most unhappy remark for you to say that this witness had been kept incommunicado by the Penang police for 10 days. There is not the slightest evidence to support it. I shall have a lot to say about this to the jury when I come to sum up.
Mr Coomaraswamy: I was doing it on instruction, my Lord, and the instructions were given to me by a responsible person.
On the 11th day of the trial (the fourth day of the defence), Mr Coomaraswamy drew the court’s attention to a report in The Straits Times that Richard Ang was facing charges in connection with a witness in the case. The judge called for a copy of the paper and ordered the jury not to read the report.
Defence counsel said that Richard Ang had been arrested on 22 April and produced in court on 23 April. The case was mentioned on 30 April and hearing fixed for August. (Subsequently the case against Richard Ang was dropped). Mr Coomaraswamy complained that it was significant that the report should have appeared when his intention of calling him as a witness had already been known. Mr Seow assured the judge that the prosecution had nothing to do with the report. “I should be horrified if you had,” said the judge.
Mr Coomaraswamy closed his case after calling three more witnesses: two police officers who gave evidence about the car accident, and 16-year-old William Ang. One policeman said he had never in two and a half years in the area even seen dogs in the vicinity of the accident and William Ang said that Jenny had learned to swim ‘quite fast’. He said he had seen Jenny scuba-diving twice off Changi Beach.
Both Mr Coomaraswamy, for Ang, and Mr Francis Seow addressed the court on the 12th day of the trial. Defence counsel spoke for two hours. Crown counsel spoke altogether for an hour and a quarter. Then the judge began his summing up. He addressed the jury for three-quarters of an hour on Monday, 17 May 1965, and for another hour and three-quarters on Tuesday morning.
The Trial: The Defence
In his two-hour speech for the defence, Mr Coomaraswamy spoke from rough notes. He submitted there were numerous ways in which Jenny could have met her death—if, in fact, she was dead. She could have been swept away, or struck her head against some coral and become unconscious and subsequently lost her flipper. She might have been attacked by a shark. She might have been suffering from nitrogen narcissus (a form of numbness). “In a case like this, you cannot act on evidence that maybe she is dead. You cannot even act on evidence that allows you to say, ‘You may be pretty sure she is dead.’ You have to go beyond that and act only if you can be morally certain beyond reasonable doubt that she is dead.”
He submitted that on the evidence, the jury could not say beyond a reasonable doubt that the accused did kill Jenny in the manner alleged by the prosecution.
Quoting extensively from a law book on the assessment of circumstantial evidence, Mr Coomaraswamy said that the prosecution evidence, put simply and stripped of all the trimmings, was that the accused stood to gain by the death of Jenny, that he was with her when she disappeared, that after her disappearance he made representations that he presumed her to be dead, and that he had told untruths in the witness-box. “On this basis the prosecution is going to ask you to return a verdict that he is guilty of murder.”
Dealing with the allegati
on that Ang told untruths in the witness-box, Mr Coomaraswamy read extracts from accused’s diary and submitted that if the diary was a ‘diary of truth’, as the prosecution contended, it was strange that it contained no entry on 8 June of a telephone call to McDougall (a director of Edward Lumley Limited, the insurance company).
Ang had also been cross-examined on certain representations he had made to institutions of higher learning as to his qualifications and his name. “What has this to do with the case?” asked counsel. “For this, are we going to convict him of murder?”
He asked the jury to consider the accused’s evidence as a whole and his evidence in relation to the statement he made to the police soon after the incident, when there was no time for fabrication. They could then ask, was he telling the truth or not?
Mr Coomaraswamy also invited the jury to look at those parts of the accused’s evidence, where he could easily have lied, but where obviously he had given truthful answers. For instance, there was an important matter on which he could have lied: that he and not his mother was the real beneficiary by Jenny’s death.
Mr Coomaraswamy reminded the jury that, as the prosecution had freely acknowledged, the evidence against the accused was purely circumstantial and, correspondingly, the prosecution’s task and burden was greater. In other words, the prosecution must produce in seven ‘independent minds’ a degree of persuasion very much greater than it would have had to achieve had there been direct evidence of death and the mode by which death was achieved.
Counsel then cited a long passage from an authority on the assessment of circumstantial evidence, with the tendency of police officers to form a conclusion, and then seek out evidence to support that conclusion.
Counsel said that within two to three weeks of the alleged offence, accused was subjected to a long interrogation and he made a ‘full and frank statement’. Counsel submitted that the prosecution had all the evidence it wanted by October 1963, but it was not until 16 months later that the accused was arrested.
Mr Coomaraswamy said that it was always possible to place a suspicious interpretation, if one so wished, on any piece of evidence. For instance, the prosecution had asked the accused if he knew that Jenny treasured a ring, which was handed over to the Marine Police. Accused had admitted that he did. The interpretation sought to be placed on this admission was that this man, who had so professed his love for the girl, would have wanted to retain the ring as a memento. But if the accused had, in fact, retained the ring, he would have been described as an evil man who, not satisfied with the money he stood to collect from her death, also took the ring that belonged to the girl. “What the prosecution is going to ask you to do is to act on suspicion and speculation.”
Nevertheless, the prosecution had not yet tried to crystallize the speculation and theories so that the defence could meet them. One clue to the prosecution’s speculation was in crown counsel’s question to the accused, suggesting that after he had insured her heavily he took her out to Pulau Dua so that she could drown at sea, and so that he could collect the money.
Counsel said that the evidence should be examined to see how it fitted this theory. Jenny was a bar girl, who encountered a large number of men, each adopting different methods to win her favours. “To put it shortly, you must accept it that she was a worldly-wise girl,” said Mr Coomaraswamy. He submitted that Jenny wanted insurance for her own reasons. The jury must believe that there were limits to gullibility even for a bar girl.
Dealing with the question of the beneficiary under the insurance policy, defence counsel said that accused had said in his police statement that his mother, Madam Yeo Bee Neo, had been named beneficiary because he himself was a bankrupt.
With regard to the will, counsel said that it was difficult to conceive the circumstances in which an unwilling or uncooperative person would make one. He submitted that in this particular instance there was very good reason for a girl like Jenny to make a will. She was married and estranged from her husband, and in the event of her death the only person who could enforce any claims on what Jenny might have had would have been the estranged husband. “It is in my submission quite clear that Jenny knew exactly what the will was, knew the consequence of making it and knew its effect,” said Mr Coomaraswamy. The evidence was clear that she was a full and willing party to the making of this will.
Defence counsel also touched on the theory that the accused had designed an accident on the road to kill Jenny so that he could get the insurance money, but having failed in that had set up another device. “It is my submission that accused’s story of the accident is the correct one, that he was driving fast round this notorious bend,” said Mr Coomaraswamy. Another improbability of the prosecution theory on this was that the accused would design a serious motor accident with himself as the driver. “My submission is that the prosecution theory is as fanciful as the rest of their case.”
In his argument on the evidence regarding one of the flippers which was found, counsel said there were three possibilities:
· the flipper was not cut when Jenny went down for her first dive;
· the flipper was cut between the first and second dives; and
· the flipper was not cut at all.
He asked the jury to dismiss the second possibility and to consider whether or not the flipper was cut before the first dive. If, as the prosecution alleged, it was the accused’s object to kill Jenny on her first dive, the accused could have tampered with either her aqualung, weight belt or flipper.
If the flipper had been cut the first time, Jenny would have discovered it, and the flipper would not have withstood the tensions applied to it while it was being put on. But she went into the water and came up again with no apparent sign of difficulty.
Counsel submitted that if the prosecution theory was true, the only possible assumption about the accused was that he was a calculating and cold-blooded killer. “Would accused have taken the risk of Jenny detecting the cut flippers?” he asked. “In the light of the evidence it is my submission that the evidence of this flipper is not enough and it is highly dangerous to act on it.”
Defence counsel said that the speculation in the case finally crystallized on the answers to two questions. The first was: is Jenny dead? “On this, you will have to disregard anything you have heard outside this court, and the views of all other persons,” he told the jury, “and you will have to come to a conclusion upon the hard facts of the evidence adduced before you.”
“It is not my task, nor that of my client, to explain the non-production of the body but the task of the prosecution to satisfy you that Jenny is, in fact, dead, although her body has not been found.”
He referred to the evidence of a witness, Yeo Tong Hock, who in November 1964 was willing to swear an affidavit that the person whom he knew to be Jenny was seen by him in late August 1963, in Penang, and subsequently in Alor Star. This was the only evidence available of whether Jenny was alive or not.
Mr Coomaraswamy said it was possible that Jenny was carried by currents, but did not find her air-tank unserviceable. The theory was not too far-fetched. It was strange that her body had not been found if, in fact, she was dead.
“In a case like this, you cannot act on evidence that maybe she is dead,” he submitted. “You cannot even act on evidence that allows you to say, ‘You may be pretty sure she is dead.’ You have to go beyond that and act only if you can be morally certain beyond reasonable doubt that she is dead.”
He submitted that the jury could not reach that conclusion on the evidence given. He reminded them that the accused was not being charged with fraud or telling lies, which carried penalties of imprisonment on conviction. Accused was charged with the most serious offence. The more serious and grave the punishment, the more careful they must be in making inferences.
If the jury came to the conclusion that Jenny was dead, they must reach a further conclusion. How did she come by her death? “Unless you come to the conclusion where you feel that the accused is r
esponsible for her death, you cannot find him guilty of murder,” said counsel.
Even assuming for a moment that accused did cut Jenny’s flipper, could the jury say with moral certainty and beyond a reasonable doubt, after eliminating all other things that could have happened, that the accused was responsible for her death? “Can you, acting so that you are morally certain beyond a reasonable doubt, come to the conclusion that the accused did kill Jenny in the manner put forward by the prosecution?”
Mr Coomaraswamy concluded, “It is my submission that there are many explanations to the disappearance that are possible, and even on the assumption that she is dead, there are many ways in which she could have come to her death.”
