(2008) 9 SAL Ann Rev Criminal Law 247

11. CRIMINAL LAW

Stanley YEO
LLB (Hons) (University of Singapore), LLM (Hons) (Wellington),
LLM (Hons), PhD, LLD (Sydney);
Professor, Faculty of Law, National University of Singapore.
General concepts
Motive and intention
11.1 It is a well-established principle of criminal law that an
accuseds motive is distinguishable from his or her intention. This
principle was reiterated by the Court of Appeal in Mohammed Ali bin
Johari v PP [2008] 4 SLR 1058 which, however, provides a good
illustration of the way motive can sometimes assist with proving
intention and should therefore not be dismissed by a trial court. The
appellant was convicted of murdering his two-year-old stepdaughter by
drowning when he immersed her several times in a pail of water to stop
her crying. The post-mortem examination of the deceased showed that
she had been sexually interfered with and, in the course of the trial, the
allegation was made that the appellant was the culprit and had killed the
child to cover up his acts by silencing her.
11.2 One of the grounds of appeal was that the trial judge had erred
in deciding that the alleged molestation had a limited bearing on the
charge of murder. The appellate court agreed, holding that, while motive
was not an essential element of murder, it could in circumstances such
as those before the court cast valuable and significant light on the
intention of the accused: Mohammed Ali bin Johari v PP [2008]
4 SLR 1058 at [67]. This was especially needed since there were no
independent eyewitnesses present at the scene of the crime. In its
deliberations, the Court of Appeal referred to several Singapore
pronouncements on the relationship between motive and intention, and
found the following comment by Yong Pung How CJ in PP v Oh Laye
Koh [1994] 2 SLR 385 at [26] particularly helpful, namely, that
intention is to be distinguished from motive, even though the
presence of motive may bolster the inference that an intention to
commit the offence was existent.
Hurt under the Penal Code
11.3 This issue came before the Court of Appeal in PP v Kwong Kok
Hing [2008] 2 SLR 684 in the context of sentencing the respondent for
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the offence of attempting to commit culpable homicide under s 308 of
the Penal Code (Cap 224, 1985 Rev Ed). That section provides for an
increased penalty if hurt were caused. The present case involved the
respondent pushing the victim onto the tracks in front of an
approaching train. Although the victim had suffered only superficial
physical wounds as a result, she experienced longstanding psychological
trauma. In passing sentence, the judge interpreted hurt under s 308 to
mean physical harm, whereupon the Prosecution appealed on the
ground that this was an error of law and, consequently, that the sentence
imposed was manifestly inadequate. The Court of Appeal agreed,
holding that the meaning of hurt under the Penal Code could extend
to psychological trauma. It reached this conclusion by noting that the
term is defined in s 319 of the Code as constituting bodily pain, disease
or infirmity [emphasis in original] and also citing a passage from the
Sind High Court case of Jashanmal Jhamatmal v Brahmanand
Sarupanand AIR 1944 Sind 19 that it could include mental harm. The
Court of Appeal went on to clarify that, while the duration of the
infirmity was normally irrelevant in establishing hurt, where it was long
term in nature such as in the case before it, this fact was relevant and,
indeed, often crucial to sentencing: PP v Kwong Kok Hing [2008]
2 SLR 684 at [27].
Specific offences
The fault element for murder under s 300(c) of the Penal Code
11.4 The Court of Appeal in Mohammed Ali bin Johari v PP [2008]
4 SLR 1058 reaffirmed the statement made in its earlier decision of PP v
Lim Poh Lye [2005] 4 SLR 582 that the Indian Supreme Court case of
Virsa Singh v State of Punjab AIR 1958 SC 465 contained [t]he time-
honoured pronouncement on s 300(c). The Court of Appeal noted
(Mohammed Ali bin Johari v PP [2008] 4 SLR 1058 at [62]) that the
crucial point of this pronouncement was that s 300(c) of the Penal Code
(Cap 224, 1985 Rev Ed) comprised two limbs. The first of these required
a court to ascertain whether the accused subjectively intended to inflict
the specific injury which the victim had suffered. Should this be proven,
the court had then to ascertain, on an objective basis, whether that
particular injury was sufficient in the ordinary course of nature to
cause death. The court also emphasised that these two limbs cannot be
conflated for otherwise they would result in the provision being read as
requiring an accused to intend to inflict an injury which was sufficient
in the ordinary cause of nature to cause death. Such a situation would
fall squarely within s 300(a) of the Penal Code, namely, that the accused
intended to cause death.
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11.5 On the evidence before it, the court was satisfied beyond a
reasonable doubt that the appellant had, by immersing the deceaseds
head into the pail of water, intended to cause the specific injury which
the deceased suffered, which injury was sufficient in the ordinary course
of nature to cause death. Of the injury caused, namely, death by
drowning, the court (Mohammed Ali bin Johari v PP [2008] 4 SLR 1058
at [68]) said: [t]o state that such a serious injury was sufficient in the
ordinary course of nature to cause death must be an understatement of
the highest order.
Lack of consent as the key feature of rape
11.6 In PP v Lim Hwang Ngin Lawrence [2008] SGHC 171, an officer
of the Serious Sexual Crime Branch (SSCB) had, in the course of a
police interview, informed the alleged victim that the offence of rape
under s 375 of the Penal Code (Cap 224, 1985 Rev Ed) was committed if
the accused had forced or threatened her into engaging in sexual
intercourse with him. Consequently, the victim had stated that the
accused had not raped her because he had not forced or threatened her
in any way before or during the sexual intercourse, and that she had in
fact been sexually aroused when he used his fingers to stimulate her
vagina. At the trial, Kan Ting Chiu J criticised the officers handling of
the case by observing that, if the officer had a proper legal
understanding of the offence of rape, she would not have told the victim
that there was no rape without force or threat, and would instead have
advised her that rape is sexual intercourse without consent. He went on
to stress (at [44]) that [i]t is important that SSCB investigators have
proper understanding of the offences they investigate. They should refer
to the Penal Code or any applicable statutes when they inform and
question victims or suspects of the offences that they are investigating.
11.7 Kan Ting Chiu J was of course correct in holding that the crux
of the offence of rape under the Penal Code (Cap 224, 1985 Rev Ed) is
the victims lack of consent. This is even clearer now with the deletion of
the former s 375(a) of the Penal Code where the nebulous concept of
against her will was used. The new s 375(1) defines rape as [a]ny man
who penetrates the vagina of a woman with his penis (a) without her
consent . The emphasis on consent (and not whether there was force
used or active resistance by the victim, and so forth) can also be seen in
the new s 377C(a), which provides that there can be a case of rape even
if there was initial consent but this was subsequently revoked during the
act of sexual intercourse.
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The mental state of not caring under Securities and Futures Act
11.8 By virtue of s 199(i) of the Securities and Futures Act (Cap 289,
2006 Rev Ed) (SFA), it is an offence for a person to make a false or
misleading statement or disseminate false or misleading information
and who does not care whether the statement or information was true
or false. The issue before the High Court in PP v Wang Ziyi Able [2008]
2 SLR 61, hearing an appeal against an acquittal of the respondent for
this offence, was the meaning to be given to the fault element of does
not care for the purposes of s 199(i). The respondent was a fulltime
private equities trader who had made two postings on the forum of a
widely accessed financial portal alluding to a raid on a company by the
Corporate Affairs Department of the Singapore Police Force. He had
acted on unverified information supplied by a friend. The postings
caused the companys share prices to fall before the company was able to
clarify that no raids had occurred.
11.9 As a preliminary matter, the High Court held that the trial judge
was incorrect to have interpreted the fault element in question in terms
of being concerned about the truth of the statement or information.
The court held that this form of fault comprised a subjective mental
state, after noting that an objective form of fault was already recognised
under s 199(ii), namely, ought reasonably to have known that the
statement or information was false or misleading. Since this latter form
of fault is often equated with negligence, the adoption of an objective
test of recklessness, as contended for by the prosecution, would result in
both sub-ss 199(i) and 199(ii) of the SFA being virtually synonymous:
PP v Wang Ziyi Able [2008] 2 SLR 61 at [74]. The court then proceeded
to determine the nature of this subjective mental state by reference to
the celebrated English case of Derry v Peek (1889) 14 App Cas 337 on
the fault element for deceit and s 999 of the Australian Corporations
Law (Cth) which is similar in wording to s 199 of the SFA. Based on its
analysis of these sources of law, the court held that does not care under
s 199(i) involves subjective dishonesty in the dissemination of a false
statement or misleading information. By way of elaboration, the court
stated that such dishonesty could be established regardless of the
accuseds motive. Also, when deciding whether the accused was
dishonest, account could be taken of whether there were grounds on
which a reasonable person having the attributes of the particular
accused would have believed in the truth of the statement or
information. However, this objective analysis was only of evidentiary
relevance, with the test of dishonesty remaining ultimately purely
subjective: PP v Wang Ziyi Able [2008] 2 SLR 61 at [88]. As such,
evidence of a lack of honest belief might be outweighed and inferences
of dishonesty rebutted.
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11.10 In the case before it, the High Court found that the respondent
did not have an honest belief in the truth of the information supplied by
his friend. This finding was supported by the fact that an individual
such as the respondent, with his experience in the securities market,
could not have reasonably believed in the truth of such information.
Ancillary liability
11.11 The Penal Code (Cap 224, 1985 Rev Ed) contains several
provisions which embody the doctrine of common purpose found in
criminal law systems around the world. That doctrine enables criminal
responsibility to be attached to an accused for a crime committed by
another person on the basis that the crime was part of the common
design agreed upon by the accused and that other person. The primary
provision is s 34 which reads:
When a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for that act in
the same manner as if the act were done by him alone.
11.12 This provision purports to lay down a principle of general
application to address situations where it is difficult to prove the exact
role of the parties to a joint criminal enterprise and to determine their
individual liability for acts done in furtherance of the common
intention of all those involved. The problem with s 34 is that it fails to
clearly articulate the principle at hand due to the vagueness of the clause
in furtherance of the common intention of all. This clause has vexed
not only our courts but those of India and jurisdictions like Malaysia,
Northern Nigeria and the Sudan which have adopted the Indian Penal
Code.
11.13 The Court of Appeal in Lee Chez Kee v PP [2008] 3 SLR 447
grappled at length with some of the main controversies occasioned by
s 34. The facts of the case were that the appellant was one of a gang of
three which had planned to rob the deceased, who knew them all well.
Prior to the robbery, the gang had agreed to use a knife to threaten the
deceased and had discussed their concern that the deceased would
identify them to the police. During the course of the robbery, the
appellant had inflicted a non-fatal wound on the deceased with the
knife, but it was another gang-member who had caused death by
strangulation. The trial judge convicted the appellant of murder by
invoking s 34 as interpreted by earlier decisions of the Court of Appeal.
The appellant then appealed to the Court of Appeal against his
conviction. That court delivered a unanimous judgment (the main
judgment was delivered by V K Rajah JA) in respect of the issues it
covered pertaining to s 34. Applying those pronouncements to the
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evidence before it, the court upheld the appellants conviction for
murder.
11.14 The Court of Appeal noted that some of its earlier decisions on
s 34 were either inconsistent with one another or else unclear, and that
the present case was a good opportunity to clarify the law. The issue
which took the court the most effort to resolve concerned twin crime
situations such as the one before it, where members of a joint criminal
enterprise agree on their main goal to commit a primary criminal act
(eg, robbing) but did not share the intention of one of the members to
also commit a collateral criminal act (eg, killing) which was incidental to
the main goal. The question was what s 34 requires by way of the fault
(or mens rea) of a group member (described by the court as the
secondary offender) for him or her to be liable for the collateral
offence committed by the member who had performed both the
primary and collateral criminal acts (described by the court as the
primary offender). Before examining the answer the Court of Appeal
gave to this question and its reasons for doing so, some of the other
pronouncements by the court on s 34 are worth noting.
Criminal act and participation under s 34 of the Penal Code
11.15 The Court of Appeal considered the meaning of the expression
criminal act found in s 34 of the Penal Code (Cap 224, 1985 Rev Ed).
It noted that some Singapore decisions had erroneously regarded this
expression as being synonymous with offence as defined in s 40 of the
Penal Code. The court clarified the position by holding that (Lee Chez
Kee v PP [2008] 3 SLR 447 at [137]):
When it is said that several persons do a criminal act in furtherance
of their common intention, the meaning is not that they commit an
offence in furtherance of their common intention. It is not the
offence that they plan or carry out but it is an act or a continuum of
acts.
11.16 The Court of Appeal also dealt with the question of whether
s 34 requires the secondary offender to have been physically present at
the scene of the crime. It noted that in one of its own judgments,
namely, PP v Gerardine Andrew [1998] 3 SLR 736 at [34], such presence
was held to be an indispensable requirement of participation, which was
the main feature of s 34. The court had there made this ruling after
finding that Indian case authorities were divided on the matter. In Lee
Chez Kee v PP [2008] 3 SLR 447, the Court of Appeal overturned its
earlier decision by holding that the correct approach was to consider, as
a question of fact in each case, whether the accuseds participation was
to such a degree that it made him or her as culpable as the primary
offender. The court also held that physical presence at the scene of the
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criminal act, whether primary or collateral, may or may not provide
evidence of participation depending on the circumstances of the case.
The court found support for its ruling by observing that modern
technological advances enabled assistance in committing an offence to
be given from a distance.
11.17 Still on the issue of participation required by s 34, the Court of
Appeal considered the question of whether, in relation to twin crime
situations, the secondary offender had to have participated in the
primary criminal act as well as the collateral criminal act. The court
noted that in its earlier decision of PP v Gerardine Andrew [1998]
3 SLR 736, participation in the collateral criminal act was held to be
necessary (at [23]). In the present case, the court overruled this decision
after noting that if participation was required in respect of the collateral
criminal act, it was very likely that the common intenders would all have
intended the commission of the collateral act in the first place which
would take the case outside twin crime situations (Lee Chez Kee v PP
[2008] 3 SLR 447 at [157]). Accordingly, the court concluded that all
s 34 required was for the secondary offender to have participated in the
primary criminal act.
The controversy over in furtherance of the common intention of all
under s 34 of the Penal Code
11.18 The Court of Appeal began its discussion of this issue by stating
that the controversy surrounding the meaning of in furtherance of the
common intention of all in s 34 of the Penal Code (Cap 224,
1985 Rev Ed) arises only in relation to twin crime situations. These are
situations where the primary offender commits a collateral offence
which had not been agreed upon by the parties as forming part of the
common intention. No problem is encountered in respect of single
crime cases since all the parties to the criminal enterprise would have
shared the intention to commit the criminal act which occurred even
though only one of them may have committed it. In these
circumstances, s 34 renders all the parties criminally liable for the
offence resulting from the criminal act committed if it were shown that
the remaining parties had participated in the criminal act in some way
or other: Lee Chez Kee v PP [2008] 3 SLR 447 at [120].
11.19 The court went on to express the controversy to be resolved
concerning twin crime situations in the following terms (Lee Chez Kee
v PP [2008] 3 SLR 447 at [120]):
The issue which is in need of clarification is the fault element required
of the parties under s 34 of the Penal Code in order to hold them
liable for the offence which results from the collateral criminal act
committed by one or more unidentified members of the group.
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11.20 As a preliminary matter, the court noted that the lexical
definition of the word in furtherance as helping forward,
advancement, aid, assistance did not shed much light on the matter
(Lee Chez Kee v PP [2008] 3 SLR 447 at [221]). With no help from the
wording of s 34 of the Penal Code (Cap 224, 1985 Rev Ed), the courts in
Singapore, India and other jurisdictions where s 34 operated had to
formulate their own answer to the question of what form of fault was
required of the secondary offender in cases where that primary
offenders intention in doing the criminal act did not coincide squarely
with the common intention of the secondary offender. The Court of
Appeal observed that the Singapore courts had, over the years, given the
following five differing answers to this question (for a detailed
discussion of the Singapore cases supporting answer 1, see Lee Chez Kee
v PP [2008] 3 SLR 447 at [162][167]; and for cases supporting
answers 2 to 5, see Lee Chez Kee v PP [2008] 3 SLR 447 at [224][235]):
(a) an intention to commit the collateral crime;
(b) subjective knowledge of the likelihood of the collateral
act being committed;
(c) objective foreseeability of the likelihood of the collateral
act being committed;
(d) strict liability per se; and
(e) strict liability plus an intention of the actual doer to
further the common intention.
11.21 The first three of these are largely self-explanatory. As for the
concept of strict liability under the fourth and fifth answers, it covers
cases where the secondary offender is held liable for the collateral crime
upon proof that the commonly intended criminal activity led to or
resulted in that crime. Consequently, what was known or could have
been known by the secondary offender as to the likelihood of the
collateral act being committed was irrelevant.
11.22 Throughout much of its analysis of the controversy
surrounding the meaning of in furtherance of the common intention
of all under s 34 of the Penal Code (Cap 224, 1985 Rev Ed), the court
engaged with the views of Professor Michael Hor expressed in an article
entitled Common Intention and the Enterprise of Constructing
Criminal Liability (1999) Sing JLS 494. In particular, the court
considered but rejected Hors contention that the fault element of the
secondary offender for the collateral criminal act committed by the
primary offender is not to be found in s 34 but in s 35 of the Penal Code:
Lee Chez Kee v PP [2008] 3 SLR 447 at [177][180] and [213][215].
That section provides that the secondary offender is liable only if he or
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she possessed such knowledge or intention as would render him or her
liable for the collateral criminal act.
11.23 After a lengthy examination of historical material, cases and
academic commentaries from both local and foreign sources, the Court
of Appeal came down in favour of subjective knowledge by the
secondary offender of the likelihood of the collateral act being
committed (hereinafter described as the subjective knowledge test).
The court rejected the test comprising an intention to commit the
collateral offence despite noting that the Supreme Court of India and
Malaysian courts had supported it: Lee Chez Kee v PP [2008] 3 SLR 447
at [183] and [186]. The court rejected this test on the ground that,
otherwise, the words in furtherance appearing in s 34 of the Penal
Code (Cap 224, 1985 Rev Ed) would be superfluous: at [253]. However,
the courts reasons for rejection went well beyond the mere wording of
s 34 to include what it regarded to be strong and sound arguments,
based on legal history (at [188][195]) and legal doctrine (at [196][212]
and [250]), for supporting the subjective knowledge test.
Abetment and other closely related provisions
11.24 The detailed analysis by the Court of Appeal in Lee Chez Kee v
PP [2008] 3 SLR 447 of the abovementioned controversy resulted in the
court considering other closely related provisions of the Penal Code
(Cap 224, 1985 Rev Ed) dealing with ancillary liability. The court
observed that the Penal Code gave effect to the common purpose
doctrine, not only under s 34, but also ss 111, 113 and 149.
11.25 Regarding s 111 of the Penal Code (Cap 224, 1985 Rev Ed), the
court acknowledged that, on its face, the test was cast objectively in
terms of the act done was a probable consequence of the abetment
which differed from the subjective knowledge test subscribed to in s 113.
The court also noted that this objective reading of s 111 had been given
by some Indian courts. On the other hand, the court referred to two
earlier local cases, Mok Swee Kok v PP [1994] 3 SLR 140; and Ang Ser
Kuang v PP [1998] 3 SLR 909, where the courts had left open the
question of whether an objective or subjective interpretation should be
applied to the phrase probable consequence in s 111. The court found
in favour of applying a subjective interpretation, agreeing with the
arguments for this position put forward by Professors Stanley Yeo, Neil
Morgan and Chan Wing Cheong in Yeo, Morgan & Chan, Criminal Law
in Malaysia and Singapore (LexisNexis, 2007) at paras 34.4334.44.
Specifically, the court opined that the dichotomy between act
(in s 111) and effect (in s 113) is much too close to justify the
application of an objective test to one, and a subjective test to the
other: Lee Chez Kee v PP [2008] 3 SLR 447 at [241]. This finding meant
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that s 34, along with ss 111 and 113, applied the same test of subjective
knowledge of the likelihood of the act happening. The result was the
pleasing one of achieving consistency among the provisions in the Penal
Code which manifest the common purpose doctrine. (See further
K Amirthalingam, Clarifying Common Intention and Interpreting s 34:
Should there be a Threshold of Blameworthiness for the Death Penalty?
(2008) Sing JLS 435 for a critical evaluation of this test when applied to
offences attracting the mandatory death penalty.)
11.26 Turning its attention to s 149 of the Penal Code (Cap 224,
1985 Rev Ed), the court noted that the provision contained the clause
in prosecution of the common object of the assembly. That clause had
been considered by the High Court in PP v Fazely bin Rahmat [2002]
4 SLR 655, where the two accused were charged with murdering S, who
had been fatally stabbed by other members of their gang. Their defence
was that they did not know that knives were being carried by the others.
The court acquitted them after interpreting in prosecution of the
common object of the assembly as requiring proof that the accused
knew of the gangs common object to cause hurt by dangerous weapons.
The Court of Appeal in Lee Chez Kee v PP [2008] 3 SLR 447 endorsed
this ruling, and went further to say (at [246]):
[T]he expressions common object and common intention should be
interpreted as meaning the same thing. Indeed, in our analysis of the
old English cases above, the two expressions are used interchangeably
with such other expressions as common purpose. These all mean the
same thing. I should not, as a line of decisions appear to have done,
attempt to draw fine distinctions where such distinctions do not exist.
11.27 The court then said that, given the similarity between ss 34 and
149 of the Penal Code (Cap 224, 1985 Rev Ed), a subjective knowledge
test would bring conformity to both provisions. The court concluded
with the statement that [u]ltimately, this would have the effect of
harmonising ss 34, 111, 113 and 149 of the Penal Code, which
undoubtedly overlap to some extent, as requiring subjective knowledge
to affix liability for unintended consequences: Lee Chez Kee v PP [2008]
3 SLR 447 at [247].
11.28 In sum, Lee Chez Kee v PP [2008] 3 SLR 447 is a landmark case
which has radically changed the way our courts approach ss 34, 35, 111
and 149 of the Penal Code (Cap 224, 1985 Rev Ed). The most significant
development has been the ruling by the Court of Appeal that in twin
crime situations, the secondary offender must subjectively know that
one in his party may likely commit the criminal act constituting the
collateral offence in furtherance of carrying out the primary offence
(at [253]).
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Criminal defences
Accident
11.29 In Tan Chor Jin v PP [2008] 4 SLR 306, the Court of Appeal had
occasion to clarify several issues pertaining to the defences of accident,
intoxication and private defence provided for under the Penal Code
(Cap 224, 1985 Rev Ed). The appellant (Tan) was convicted by the
High Court under s 4 of the Arms Offences Act (Cap 14, 1998 Rev Ed)
of discharging a gun with intent to cause physical injury. Tan had gone
to the flat of the victim (Lim) to retrieve a loan and had armed
himself with a gun on account of an alleged threat made by Lim. Upon
gaining entry into the flat, Tan tied up Lim and his family and ransacked
the flat. The Prosecution contended that Tan had shot at Lim whose
hands were tied whereas Tan submitted that he had fired at Lim only
when Lim had suddenly attacked him with a chair.
11.30 Tan appealed on the ground that the trial judge had erred in
rejecting his pleas that the discharge of the gun was an accident;
alternatively, that he was intoxicated at the time or else that he had done
so in self-defence.
11.31 In relation to the defence of accident which is provided for by
s 80 of the Penal Code (Cap 224, 1985 Rev Ed), the Court of Appeal
identified the conditions of the defence as comprising four parts,
namely:
(a) The act done by the accused was the result of accident
or misfortune.
(b) The said act was done without any criminal intention
or knowledge.
(c) The act was lawful and was performed in a lawful
manner, by lawful means.
(d) The act was done with proper care and caution.
11.32 The court found that the third and fourth conditions were not
satisfied as it was obvious that everything that Tan had done in Lims flat
was unlawful and without proper care and caution. Noting that the
Penal Code (Cap 224, 1985 Rev Ed) does not define lawful act for the
purposes of s 80, the court accepted Indian case authorities which have
adopted the English common law view that unlawful conduct might be
either conduct which is unlawful in itself (ie, crimes malum in se) or
conduct which would not be a crime except for it being made one by
legislation (ie, crimes malum prohibitum).
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Intoxication
11.33 A significant ambiguity in the law of intoxication was cleared by
the Court of Appeal in Tan Chor Jin v PP [2008] 4 SLR 306. The issue
concerned the types of cases envisaged by s 85(2)(b) of the Penal Code
(Cap 224, 1985 Rev Ed), which reads:
Intoxication shall be a defence to any criminal charge if by reason
thereof the person charged at the time of the act or omission
complained of did not know that such act or omission was wrong or
did not know what he was doing and the person charged was, by
reason of intoxication, insane, temporary or otherwise, at the time of
such act or omission.
11.34 The uncertainty was over the clause insane, temporary or
otherwise. As a preliminary matter, the court observed that differences
in the language and history of the formulations of the defence of
intoxication under English and Indian law, compared to the provisions
on intoxication in our own Penal Code (Cap 224, 1985 Rev Ed), meant
that one had to be careful when relying, if at all, on these formulations.
The better course was to examine closely the wording of our own
provisions.
11.35 The court thought that academics had expressed two divergent
views as to the meaning to be given to insane under s 85(2)(b) of the
Penal Code (Cap 224, 1985 Rev Ed). One view, propounded in Yeo,
Morgan & Chan, Criminal Law in Malaysia and Singapore (LexisNexis,
2007) at paras 25.2625.27, was that the term was exactly the same as
unsoundness of mind under s 84 of the Penal Code, with the result
that, for a person to satisfy the defence under s 85(2)(b), he or she had
to have an underlying mental disorder. On this view, it would be
insufficient for an accused to manifest a temporary state of mental
disorder caused by intoxication who would regain his or her normal
state of mind when the alcohol or other drug wore off. The opposing
view was that the Code framers meant for there to be a distinction
between unsoundness of mind and insane with only the former
requiring for the mental disorder to have a degree of permanence. In
support of this view, the court quoted (Tan Chor Jin v PP [2008]
4 SLR 306 at [23]) a passage from a case comment by Lee Kiat Seng,
Case Notes: Public Prosecutor v Tan Ho Teck (1990) 2 SAcLJ 332 at 335
who said that, although [ss 84 and 85] are very similar in that there is
no perceivable difference between the prerequisite state of mind of the
accused, the cause of this state of mind to be proved is different, with
the cause for s 85 being intoxication. With respect, there is nothing in
this quoted comment that contends that the intoxication-induced
insanity need not have a degree of permanence, like unsoundness of
mind. Rather, the learned commentator was merely stating that, unlike
the concept of unsoundness of mind under s 84, the cause of the
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mental disorder had to be intoxication for s 85 to operate. As for the
view of Yeo, Morgan and Chan, it is respectfully submitted that the
court failed to pay sufficient attention to an earlier part of their work
(para 25.23) where they contend that the phrase temporary or
otherwise merely provides that the symptoms of the insanity may be
transient [emphasis in original] and that [sub-s] 85(2)(b) will operate
so long as those symptoms were present at the time of the commission
of the alleged act or omission constituting the offence charged. This
would then require the condition as opposed to symptoms of
insanity to have a degree of permanence. Also, the court appears to have
erroneously thought that the authors were suggesting that any mental
disease or defect would suffice for the purposes of s 85(2)(b) (see Tan
Chor Jin v PP [2008] 4 SLR 306 at [25], where the court stated that
s 85(2)(b) could apply to an accused even if he does not have a prior
mental illness or pre-existing mental deficiency). By contrast, the
authors say that s 85(2)(b) requires the mental disease or defect to have
been caused by longstanding drug abuse (see Yeo, Morgan & Chan,
Criminal Law in Malaysia and Singapore (LexisNexis, 2007) para 25.24).
Such cases would properly fall within the description of unsoundness
of mind under s 84. Section 86(1) affirms this view by stipulating that,
if an accused successfully invokes s 85(2)(b), s 84 of this Code shall
apply.
11.36 Academic views aside, as a result of the decision of the Court of
Appeal in Tan Chor Jin v PP [2008] 4 SLR 306, it is now clear that
s 85(2)(b) will apply to an accused who had experienced a temporary
bout of insanity caused by self-induced (ie, voluntary) intoxication and
that it was unnecessary for him or her to be suffering from a mental
disease or defect that was more than transient. In the words of the court
(at [24]):
In short, s 85(2)(b) reinforces the point that an otherwise normal
person can, under the influence of drink or drugs, become so
intoxicated that he becomes legally insane. This condition of insanity
can be transient, as opposed to the unsoundness of mind envisaged in
s 84, which must be permanent.
11.37 The court reached this conclusion based on the phrase
temporary or otherwise in s 85(2)(b) which, in its view, could not but
mean that temporary episodes of intoxication-induced insanity would
be covered by the provision. Furthermore, the court (Tan Chor Jin v PP
[2008] 4 SLR 306 at [25]) thought it unfair for accused persons who
experienced these episodes to be denied a defence when those who
lacked the requisite mens rea due to intoxication were entitled to an
acquittal under s 86(2) of the Penal Code.
11.38 One possible explanation for this differentiation may be because
s 86(2) requires the negation of intention which is the highest form of
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fault, whereas accused persons pleading s 85(2)(b) could have had such
an intention, so long as they did not know the nature of their conduct
or that it was wrong. Besides, the courts ruling that s 85(2)(b) could
cover temporary episodes of intoxication-induced insanity does not
explain why a person successfully pleading such a defence will be subject
to a court order of safe custody under ss 314 and 315 of the Criminal
Procedure Code (Cap 68, 1985 Rev Ed) whereas one who successfully
invoked s 86(2) would be entitled to an unconditional acquittal. Of
accused persons who pleaded s 85(2)(b), the court said (at [25]) that if
they could become insane (temporary or otherwise) under the
influence of drink or drugs [they were] a danger to society, and
consideration needs to be given to how future recurrent instances of
insane homicide by such an accused can be prevented [emphasis in
original]. (The reference to homicide was on account of the fact that, in
the case before it, Tan had fatally shot Lim.)

But what does insane
mean in this context? Unfortunately, the court does not explain it other
than to say that it could comprise a temporary intoxication-induced
episode of not knowing the nature of ones conduct or that it was
wrong. Also, it is difficult to understand why the same concern is not
raised in respect of a person who could become so intoxicated as to have
the intention required for the offence charged to be negated. Ultimately,
it is submitted that the clearest rationale for explaining the very different
outcomes of ss 85(2)(b) and 86(2) is that the former, but not the latter,
requires the accused to have been suffering from an intoxication-
induced mental disorder having a degree of permanence which required
treatment.
11.39 As far as Tans appeal was concerned, even the more liberal
interpretation given to s 85(2)(b) by the Court of Appeal did not assist
him. This was because the court agreed with the trial judge that Tan had
failed to prove clinically or otherwise that he was suffering from
intoxication-induced insanity to such an extent that he did not know
what he was doing or that his conduct was wrong.
11.40 From a law reform perspective, the wording of s 85(2)(b) leaves
much to be desired by having the phrase insanity, temporary or
otherwise. While Tan Chor Jin v PP [2008] 4 SLR 306 may have clarified
the law, the courts ruling poses conceptual and practical difficulties
which remain unresolved. The legislature should give serious
consideration to the proposal in Yeo, Morgan & Chan, Criminal Law in
Malaysia and Singapore (LexisNexis, 2007) at para 25.46 for s 85(2)(b)
to be revised so as to read:
Intoxication shall be a defence to any criminal charge if by reason
thereof the person charged at the time of the act or omission
complained of did not know the nature of the act or that he is doing
what is either wrong or contrary to law and the person charged was,
(2008) 9 SAL Ann Rev Criminal Law 261

by reason of intoxication, of unsound mind at the time of such act or
omission.
11.41 This revision would reflect the very close similarity between the
defences of intoxication-induced insanity and unsoundness of mind
which, it is submitted, was fully accepted by the drafters of s 85(2)(b).
Private defence
11.42 The Court of Appeal in Tan Chor Jin v PP [2008] 4 SLR 306 did
not take long to reject Tans plea of private defence on the ground that
he had failed to provide sufficient evidence to support it. However, the
court took the opportunity to clarify the law of private defence on
several fronts. The first of these concerned the fact that Tan had been
the initial aggressor and whether this automatically prevented him from
successfully relying on private defence. The court held the correct
position to be that, while the defender generally has no right of private
defence where he or she was the initial aggressor, much will depend on
the facts of the particular case (Tan Chor Jin v PP [2008] 4 SLR 306
at [45]). The court could have buttressed its ruling by referring to
s 97(2) of the Penal Code (Cap 224, 1985 Rev Ed) which states that
every person has a right to defend his own body and the body of any
other person, against any offence affecting the human body [emphasis
added]. Consequently, the right of private defence will be available to a
defender who may have been the initial aggressor so long as the facts
were such as to render the assailants attack an offence. Such an attack
would not be so described if the assailant was applying force which was
reasonably necessary to defend himself or herself, in which case, he or
she would have been lawfully acting in private defence and, therefore,
not committing an offence.
11.43 Secondly, the court accepted that the provisions on private
defence, extending as they were over 11 provisions, ie, ss 96106 of the
Penal Code (Cap 224, 1985 Rev Ed), posed difficulties of comprehension
and application. To bring increased clarity to the law, the court accepted
the proposal in Yeo, Morgan & Chan, Criminal Law in Malaysia and
Singapore (LexisNexis, 2007) of categorising the various elements of
private defence into pre-conditions and conditions (paras 20.620.7).
On this approach, a court would not need to proceed any further with
an inquiry on private defence if it determined, as a preliminary matter,
that either of the two pre-conditions of the defence had not been
established. These were:
(a) that the defender must have been the subject of an
offence (s 97 of the Penal Code); and
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(b) the defender must have sought help from the relevant
public authorities provided there was a reasonable opportunity
to do so (s 99(3) of the Penal Code).
11.44 This is a radical judicial pronouncement which, as far as this
author is aware, is not to be found in any of the other jurisdictions
which criminal law is governed by the Indian Penal Code. Besides the
obvious attraction of streamlining the judicial consideration of the plea
of private defence, the pre-conditions are supportable on the basis of
legal theory. As Yeo, Morgan and Chan note in Criminal Law in Malaysia
and Singapore (LexisNexis, 2007) para 20.6, the justificatory nature of
private defence results in norm modification by declaring that the
defenders conduct was lawful when it would otherwise constitute an
assault. Society through the criminal law is prepared to effect such norm
modification provided there were certain pre-conditions (or
prerequisites) before the right will arise. These pre-conditions are
specified in advance for future cases to follow, and they are objective in
nature so as to confine the right to a fixed set of circumstances.
11.45 Thirdly, the Court of Appeal (Tan Chor Jin v PP [2008] 4 SLR 306
at [46]) laid down step-by-step guidelines on how a trial judge might
deal with the plea of private defence of the body operating as a general
exception. In line with the courts acceptance of the pre-conditions to
private defence, the first two steps required a trial judge to consider
whether those pre-conditions were met. This was followed by a
consideration, in cases where the defender was the initial aggressor, of
the particular facts to determine if he or she could still invoke a right of
private defence. The next step was to inquire whether the defender
reasonably apprehended the danger posed by an attempt or threat by the
victim to commit an offence affecting the human body. Where the
defender had killed the victim, he or she had to prove that the offence
which occasioned the exercise of the right of private defence was one of
the offences listed in s 100 of the Penal Code (Cap 224, 1985 Rev Ed).
Finally, the trial judge would have to determine whether the defender
had caused harm to the victim which was reasonably necessary in
private defence [with] [d]ue allowance given to the dire
circumstances under which the defender was acting (ie, step (f) of the
guidelines at [46]).
11.46 It is expected that these step-by-step guidelines (Tan Chor Jin v
PP [2008] 4 SLR 306 at [46]) will greatly help to ensure that the many
requirements of the plea of private defence are properly considered by
the courts. Only two matters may be raised here. First, when laying
down the step concerning the defender having to have reasonably
apprehended the danger confronting him or her, the court described
this as a subjective test (ie, step (d) of the guidelines). Strictly speaking,
this description is only partially correct as the defenders apprehension
(2008) 9 SAL Ann Rev Criminal Law 263

(which is the subjective aspect of the test) must have been reasonable,
which entails an objective inquiry. The correct position is that what is
involved is a partly subjective/objective test and that, when considering
the reasonableness of the defenders apprehension, due consideration
should be given to his or her personal characteristics such as age,
cultural, educational and social background (see further Yeo, Morgan &
Chan, Criminal Law in Malaysia and Singapore (LexisNexis, 2007) at
paras 20.2620.31). Secondly, it is significant for the development of the
law in this field that the court had chosen to describe the response to the
danger as being reasonably necessary [emphasis added] (step (f) of the
guidelines at [46]). On the face of s 99(4) of the Penal Code (Cap 224,
1985 Rev Ed), all that is stated is that [t]he right of private defence in
no case extends to the infliction of more harm than it is necessary for
the purpose of defence. This provision could be afforded a restricted
meaning by requiring the defenders response to be the minimum harm
necessary for the purpose of private defence. By stating that the response
could be reasonably necessary, the Court of Appeal is to be applauded
for affording a defender a degree of leeway over his or her choice of
actions to take which is entirely in keeping with the laws recognition of
the immense pressure that the defender was operating at the time (see
further Yeo, Morgan & Chan, Criminal Law in Malaysia and Singapore
(LexisNexis, 2007) at paras 20.4020.46).
11.47 Although the grounds of appeal did not require it, the court
sought to add further clarity to the law of private defence by comparing
the general exception of the defence with the special exception under
Exception 2 to s 300 of the Penal Code (Cap 224, 1985 Rev Ed). The
court did this by accepting (Tan Chor Jin v PP [2008] 4 SLR 306 at [42])
the set of three questions proposed by Yeo, Morgan and Chan in
Criminal Law in Malaysia and Singapore (LexisNexis, 2007). These
questions should assist judges to keep separate their discussion of the
elements of the general and special exceptions of private defence in cases
where both these pleas have to be considered.
Provocation
11.48 Can the incessant crying or tantrums of a young child ever
satisfy the objective test in the law of provocation which requires that an
ordinary person would have lost his or her self-control due to such
provocation and to kill the provoker? A negative answer was given by the
Court of Appeal in Mohammed Ali bin Johari v PP [2008] 4 SLR 1058
at [114][115], citing both English case authorities and regarding as
apposite the observation by Professor Andrew Ashworth in The
Doctrine of Provocation [1976] CLJ 292 at 319 that:
[n]o one should be provoked into a violent rage by a young child, and
the defence of provocation should not be available to a person who
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uses serious violence and kills in such circumstances. The objective
test respects these moral distinctions
11.49 The Court of Appeal in Mohammed Ali bin Johari v PP [2008]
4 SLR 1058 also took the opportunity to examine recent developments
under English law on the objective test of provocation. It noted the
decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146
to attribute the accuseds personal idiosyncrasies to the power of self-
control expected of a reasonable person. This ruling was subsequently
rejected by the Privy Council decision, on appeal from Jersey, in
Attorney-General for Jersey v Holley [2005] 2 AC 580 (Holley) and
followed by the English Court of Appeal in R v James [2006] QB 588. In
Mohammed Ali bin Johari, the Court of Appeal observed that the
position in Singapore was as laid down in Holley. The court cited
pronouncements from its own decisions in PP v Kwan Cin Cheng [1998]
2 SLR 345 at [49] and Lau Lee Peng v PP [2000] 2 SLR 628 at [29]
holding that personal idiosyncrasies of an accused affecting the power
of self-control could not be taken into account.
Academic contributions to judicial lawmaking
11.50 In a comment appearing in the Singapore Law Societys Law
Gazette in 2004 (Academic Contributions and Judicial Interpretations
of Section 300(c) Murder Law Gazette (April 2004) at pp 2526), this
author sought to encourage our judges to take more notice of academic
writings, and to expressly acknowledge that this had been done in their
judgments. The Court of Appeal in Lee Chez Kee v PP [2008] 3 SLR 447
and Tan Chor Jin v PP [2008] 4 SLR 306 are prime examples of this.
Judges gain by reflecting upon academic opinions on often difficult
aspects of the law and, in turn, academics are heartened that their views
are being seriously considered by judges. The eventual outcome of this
exchange is the highly desirable one of an improvement to the
understanding and functioning of the law and, with it, an increase in the
effective meting out of justice.