"We've got to have a fall guy"
When the public is alarmed by brazen killings, police and prosecutors sometimes feel the need to show that they are doing their jobs by arresting and prosecuting all persons believed to be responsible.
Other times, as in the case of Sarawak's gangland-style shootings, there's no involvement by prosecutors because no arrests are made: police simply assign responsibility to the corpses of people already shot dead by police.
But sometimes a middle road is taken: bosses go free while one or two low-level participants are prosecuted - the "fall guys". Even though this risks accusations of a cover-up to protect powerful or influential figures, the accusations are difficult to prove. And it also must be asked if there could be some truth in Dashiell Hammett's 1930 detective fiction The Maltese Falcon
when the detective Sam Spade declares:
"Bryan is like most district attorneys. He's more interested in how his record will look on paper than in anything else. He'd rather drop a doubtful case than try it and have it go against him...To be sure of convicting one man he'll let half a dozen equally guilty accomplices go free--if trying to convict them all might confuse his case...if he starts fooling around trying to gather up everybody he's going to have a tangled case that no jury will be able to make heads or tails of, while if he sticks to the punk he can get a conviction standing on his head."
The murder of Fabian Lim Ann Hoaw 2
18 February 2005
On the tenth day of the Chinese New Year, Fabian Lim Ann Hoaw (54), a lawyer and partner of a civil litigation law firm in Kuching Sarawak, finished work and went with his wife to a nearby food centre for their dinner. After the dinner Lim and his wife went to their car, which was parked close by.
As Fabian Lim was reversing his car out of the parking lot, two persons (wearing full-faced crash helmets) came on a motorcycle and stopped behind his car. The rear rider got off the motorcycle, approached the car, and with a pistol fired four shots at the lawyer at close range. He collapsed beside his wife, who was also injured by glass splinters. The gunman then escaped on the motorcycle driven by his companion. The victim was immediately rushed to the hospital, but upon arrival he died of the gunshot wounds.
In addition to Fabian Lim's wife, two other persons heard the gunshots and witnessed the gunman's escape on the rear of the motorcycle, but none of the three could help identify the gunman nor the driver of the motorcycle because both wore helmets with the visor down. The three witnesses were also unable to state the model or registration number of the motorcycle used by the assailants.
But not long before the shooting, the lawyer had reported two incidents to the police.
22 January 2005
Fabian Lim reported that his office had been broken into that day. Several items, including photographs, a black bag, and a check for RM1 million (US$263,158) were stolen.
1 February 2005
Just 17 days before the shooting Fabian Lim, while driving, noticed that he was being trailed by a gold coloured car and phoned his law firm partner. The partner, who could even see the car from his office, then took down the car’s registration number and passed it to the police. Later that same day police, acting on this information, stopped the gold coloured car and arrested the two men inside: the car's driver, and the passenger named Sim Eng Huat.
9 March 2005
The court judgments give neither the offence that the two men were accused of in the 1 February arrest, nor the outcome of the arrest. But less than three weeks after the shooting, the press reported that Sim Eng Huat was arrested again - now charged, along with another man, 3 in the murder of Fabian Lim. They were accused of intentionally facilitating the murder by putting the lawyer under surveillance and giving information on his identity (the photographs stolen from Fabian Lim's office) and location to the gunman - an offence punishable by imprisonment for up to seven years. The report also mentioned that the two were among seven persons picked up by police in connection with the case.
13 March 2005
Just a few days after Sim Eng Huat and his co-defendant were charged for their roles in the murder, a third person was charged in the case: Lim Kiang Chai was charged with committing the murder of Fabian Lim Ann Hoaw, by driving the motorcycle that carried the (still at large) gunman - an offence punishable by mandatory death sentence. The unnamed and un-captured gunman was also charged together with Lim. 4
22 March 2005
Soon after, the State Police Commissioner said police were looking for three more people who police believed could provide vital information to the case: Roger Wong Tin Ming, Lee Kah Khing alias Lau Bee, and Wong Poh Foo. He also said Roger was a suspected drug trafficker who escaped from police custody in 2000. While warning “They are dangerous men as we believe that they all have guns”, he appealed to the public to contact police if they know the whereabouts of the three men, adding “We believe that they are still in the country”.
The "Fall Guy": Lim Kiang Chai
Despite the lack of direct evidence establishing the identity of the motorcycle driver, on 26 December 2008 Lim Kiang Chai was sentenced to death primarily on the basis of his statement to the police - a statement that Lim disputed at the trial. Lim claimed the statement was not made voluntarily, and that everything in it was untrue and made up by the police, and was not properly translated to him (the statement was in Malay language while the communication between him and the recording officer was in Chinese). In legal terms this type of statement to the police, which is taken as a confession, is called a “cautioned statement” as it is given by a person after that person has been “cautioned” by the police as to the right to remain silent, and that what is said may be used against that person in court.
In fact in 2006, a year after the arrest of Lim Kiang Chai and two years before his conviction, the practice of obtaining a cautioned statement was abolished: police are no longer allowed to record confessions. The Home Affairs Minister at that time explained that cautioned statements obtained from suspects were seen as a shortcut to police investigative work:
In the past when a suspect was remanded, there were claims of the suspect being tortured,
stripped naked and left in a cold cell, and he had no choice but to make a confession...The police do not investigate since they already have a confession. But the defence lawyer can challenge this in a trial, saying his client was tortured, and then you have to hold a trial within a trial [ ie., a trial regarding the torture claim ]. This will come out in the newspapers as police brutality and our perception of the police will be very bad. It is even worse when the court decides to reject the confession because of evidence that the suspect had been beaten up...This amendment will encourage the police to proceed with the investigation.
Lim appealed against the conviction, and on 20 June 2013 was
acquitted of the lawyer’s murder. The Appeals judge ruled:
In our judgment, the continuous long hours of interrogation of the appellant [Lim Kiang Chai] by the police officers in question for a period of five consecutive days, constitute oppressive conduct on the part of the police officers involved in the interrogation. Thus, the cautioned statement cannot be said to have been voluntarily made by the appellant. The cautioned statement, therefore, should not have been admitted by the learned trial Judge. As the prosecution relies primarily (if not entirely) on the cautioned statement, it follows that once the cautioned statement is ruled inadmissible, then the conviction is no longer sustainable.
Lim, however, did not walk free, as he had a previous murder conviction against him upheld. In 1996, Lim and two other men were sentenced to death for killing a 13-year-old girl in 1991. But in 2002 that conviction was also thrown out on appeal, and Lim was free until his arrest for the killing of Fabian Lim. But in 2007, while Lim was still in custody for the lawyer's murder, the conviction and death sentence for the murder of the girl was restored by the highest court, the Federal Court.
Ultimately, on 14 January 2016 the Federal Court also reversed Lim's acquittal in the murder of Fabian Lim Ann Hoaw and upheld the conviction sentencing Lim to death.
Convicted: 1, Untouched: 4
In restoring Lim's conviction, the Federal Court reaffirmed the trial court's acceptance of his cautioned statement as fact. This statement incriminates other persons, whose names are left out of the available press reports of Lim's conviction:
- Roger Wong: organized the killing
- The statement claims Lim was approached by his childhood friend, Roger Wong, who presented himself as an intermediary for the person seeking to hire killers. Wong asked whether Lim was willing to “finish off” a person who had hurt the feelings of someone, for RM65,000 (US$17,105). Lim declined the offer, but introduced a contact. This was reported as:
The court was also told that an unidentified towkay [boss], through another man, had offered RM65,000 to the accused to kill Fabian.Note that the unnamed "another man" is not said to be "unidentified" - because the statement identified him as Roger Wong.
- Wong Poh Too: subcontracted the shooter
- Lim introduced Roger Wong to Wong Poh Too, who brought in Sim Eng Huat and the shooter - called "Ah Bee". Sim Eng Huat and "Ah Bee" agreed to carry out the killing for a sum of money. Wong Poh Too is not mentioned, either by name or role, in the press reports.
But note that these names - Roger Wong, Wong Poh Too, and "Ah Bee" - closely match the names of the three men police announced that they were looking for shortly after Lim Kiang Chai' s arrest: Roger Wong Tin Ming, Wong Poh Foo, and Lee Kah Khing alias Lau Bee. Yet, in press reports on the Lim Kiang Chai case no mention is made of these names, nor their possible connection to the case.
So, in summary, it is accepted as fact by the courts that Lim Kiang Chai is tied to three other persons involved in the killing who are still at large: Wong Poh Too, the shooter "Ah Bee", and the organizer Roger Wong. Roger Wong presumably is directly tied to the boss who ordered the killing, who is also still at large.
Yet in the available press reports there is no mention of any effort, or even intention, from the state to pursue the boss who ordered the killing - or any of the others who were involved and are still at large. With Lim Kiang Chai in hand, the state had someone already tainted by a conviction in a child's grisly murder. Making him solely responsible for the murder of Fabian Lim Ann Hoaw could readily be called a case where any able prosecutor (aided by "oppressive conduct on the part of the police") could "get a conviction standing on his head". As Lim Kiang Chai, the quintessential "fall guy", waits to be hanged, the case appears to be closed.
It's unlikely that those of us who stand outside the corridors of power can determine with certainty whether convicting a "fall guy" while the boss goes free results from prosecutor/police cover-up or prosecutor/police careerism - or both - or other causes. But no special vantage point is needed for any observer to see clearly that the practice still goes on: business as usual.
While The High Court In Sabah & Sarawak have chosen “to pay tribute to the memory of a very senior member of the Sarawak Bar who passed away in tragic circumstances” with a web page, one might think a more fitting tribute would have been to “fight fearlessly for the cause of justice and to uphold the rule of law” through vigorous pursuit of resolution of his murder case. But it seems that such lofty ideals are for web pages only - in real life the code of practice apparently is:
- "The only criticism one could offer Hammett’s private-eye classic is that it is so much fun to read, it might be hard the first time through to realize how deeply observed and morally serious it is", declares the the US National Endowment for the Arts. ↩
- The 2005 killing of Fabian Lim Ann Hoaw pre-dated most of Malaysia's online news sources, so online information is scarce. This summary was largely pieced together from two court documents that were formerly online at the Official Portal of the Chief Registrar’s Office Federal Court of Malaysia, but have since been removed: the judgment Of The Court Of Appeal (Appellant Lim Kiang Chai v. Respondent Public Prosecutor), and the judgment Of The Federal Court (Appellant Public Prosecutor v. Respondent Lim Kiang Chai). These court documents can now be viewed at Internet Archive. ↩
- The identity of Sim Eng Huat's accomplice is not clear. The Federal Court judgment states that the car's driver and Sim Eng Huat were later charged under section 118 of the Penal Code - i.e., the charge of "intending to facilitate" a capital offence - with Sim Eng Huat pleading guilty, while the car's driver was given a discharge. The press reported Sim Eng Huat's co-defendant's name as Ling Chou Hee, but the judgment names the car's driver as Liaw Fei (possibly a nickname or alias). ↩
- It was also reported that on the same day a 20-year-old Indonesian woman was released unconditionally after being held in custody for 10 days to "help with investigations" in the Fabian Lim murder case. This provides a hint of the wide net cast by the police, and its effect on the public. Although presumption of innocence is a basic right derived from the Federal Constitution of Malaysia, this instance, where an innocent person is held without charge for 10 days, is one of many instances where the right seems to exist on paper only. ↩