Offences against Person - Culpable Homicide

Question 1

Culpable Homicide Not Amounting to Murder:

S 299 PC (Culpable Homicide)

Answer 1

Causes death by doing an act

1. With intention of causing death, or
2. With intention of causing such bodily injury as is likely to cause death, or
3. With knowledge that he is likely by such act to cause death.

Question 2

CHNM:

S 304 PC (Culpable Homicide Not Amounting to Murder)

Answer 2

A. If act causing death with the intention of causing death, or of causing such bodily injury as is likely to cause death, prison for life, and caning; or prison up to 20 years and fine or caning.

B. If act causing death with knowledge that it is likely to cause death, but no intention to cause death, or to cause such bodily injury as is likely to cause death, prison up to 10 years, or fine, or caning, or with any combination.

Question 3

CHNM:

Scope of Culpable Homicide - PP v Thenegaran a/l Murugan [2013] 3 MLJ 328, CA (M) at [18]

Answer 3

DEATH IS KEY. Once it is proved that death was caused by a deliberate act, and not the result of negligence or rashness, the offence of CH is committed.

S 299 PC deals with unlawful killing. For killing to warrant death penalty, one of the criteria set out in S 300 PC must be established.

Question 4

Murder v CHNM:
Intention to Kill
(S 300(a) v S 299)

Answer 4

Murder - intended to cause death.

CHNM - intended to cause death but offence is reduced to culpable homicide by operation of special exceptions.

Question 5

Murder v CHNM:
Intention to Cause Injury
(S 300(b)/(c) v S 299)

Answer 5

Murder -
(i) D intended to cause bodily injury; and

(ii) Knew that injury was likely to cause death (S300(b)); OR
Bodily injury intended to be inflicted was (likely to cause death and) sufficient in the ordinary course of nature to cause death (S300(c)).

CHNM -
D intended to cause bodily injury likely to cause death but insufficient in the ordinary course of nature to cause death.

I.e. where injury is likely to cause death, but it is not shown that D knew that death was a likely consequence. [Chung Kum Moey]

Question 6

Murder v CHNM:
Knowledge of Risk
(S 300(d) v S 299)

Answer 6

Murder -
(i) D knew that the act was so imminently dangerous that it must in all probability cause:
Either death;
Or bodily injury likely to cause death and;

(ii) D committed the act without any excuse for incurring the risk of causing such injury or death.

CHNM -
D did the act (which does not cause bodily injury) with the knowledge that he or she was likely (but not in all probability) by such act to cause death.

Question 7

CHNM:

Elements - Tham Kai Yau v PP [1977] 1 MLJ 174

Answer 7

2 forms of CHNM:
1. Where the evidence is sufficient to constitute murder, but one or more of the exceptions in s300 PC apply.

2. Where the necessary degree of MR specified in s299 PC is present, but not the special degrees of MR referred to in s300 PC.
   I.e. if death is a likely result (S 299 PC). If death is most probable result, S 300 PC)

Question 8

CHNM:

Likely to cause death - Chung Kum Moey v PP [1965-1967] SLR(R) 421, PC

Answer 8

D and 2 others entered a shop. D had a gun, searched V. Whilst searching, V brushed D’s hands away and a shot was fired by D which hit V in the arm. Struggled, 2 more shots fired, 3 shots hit V, 2 were fatal: 1 heart shot; 1 liver shot. D convicted of murder.

Held (PC): Overturned, charged with CH.

TJ erred by putting the irresistible inference before jury that D had knowledge that shooting V’s forearm was so imminently dangerous that it must in all probability cause death or bodily injury likely to cause death. Also not necessarily true that the jury would take the view that because the 1st shot hit the arm, that D had intended to shoot V in the arm, but not an appeal issue.

1. [24] If act causing death is done with intention of causing bodily injury sufficient in the ordinary course of nature to cause death, within s300(c) PC and is murder.
2. [24] If act causing death is done with intention of causing bodily injury likely to cause death and not shown that D knew that death was the likely consequence, is CH. Higher degree of certainty required to justify conviction for murder under this point.
3. Note that if D knew that death was likely, it would be s300(b) PC murder.

Question 9

CHNM:

Likely to cause death - Tham Kai Yau v PP [1977]

Answer 9

Ds attacked V with saw and chopper. Ds inflicted multiple deep incised wounds on V, including 2 serious head injuries. Probable COD: multiple injuries leading to shock and haemorrhage. Ds convicted for murder. Ds argued that TJ failed to direct jury properly with relation to distinction between murder and CHNM.

Held: Evidence that there was intention to cause bodily injury. Convictions of murder were substituted with CHNM.

1. Whether the offence is CH or murder depends upon the degree of risk to human life.
   Generally, if death is a likely result, it is CH, and if death is the most probable result, it is murder.
2. If death likely from bodily injury, CH;
   If D knew bodily injury likely to cause death (s300(b) PC), or if D did not know but death is sufficient in the ordinary course of nature from the bodily injury inflicted (s300(c) PC), Murder.
3. Where there is intention to cause death (s300(a) and 1st limb of s299 PC), it is always murder.

Question 10

CHNM:

Likely to cause death - State of Andhra Paradesh v Rayavarappu Punnayya AIR [1977] SC 45 - General?

Answer 10

Ds attacked V with heavy sticks. V died of injuries from attack. Ds convicted of murder under s300(a) PC. Conviction altered to CHNM: (i) no premeditation, (ii) injuries not on vital body parts, (iii) no compound fracture resulting in haemorrhage, (iv) death occurred due to shock and not haemorrhage, and (v) Ds knew injury likely to cause death but not so imminently dangerous that in all probability their acts would result in such injuries as are likely to cause death.

Held (SC): Overturned HC, elements for murder made out (injuries had a high probability of death in the ordinary course of nature). Crux of the matter is whether (i) the injuries were intentionally caused and (ii) was sufficient in the ordinary course of nature to cause death.

Question 11

CHNM:

Likely to cause death - State of Andhra Paradesh v Rayavarappu Punnayya AIR [1977] SC 45 - 3 Step Test?

Answer 11

1. Whether D has done an act by which he caused the death of V;
2. whether D’s act amounts to CH under s299 PC;
3. if the answer to (2) is yes, consider the 4 limbs of s300 PC.

Is CHNM if:
A. falls under one of the Exceptions of s300 PC (punishable under s304(a) PC); or

B. Answer to (2) is no.

Question 12

CHNM:
Likely to cause death - PP v Sutherson Sujay Solomon [2016] 1 SLR 632

[D (paranoid schizophrenic) fought with V (mom), claimed V had scratched him, stabbed V in neck. Then stabbed V to stop her from calling for help. Then slit her throat after she collapsed. Then cleaned the house and tried to hide the body.]

Answer 12

[44] Second limb of S299 invites two separate inquiries:

1. Subjective inquiry: whether D intended to inflict the injuries found on the deceased.
2. Objective inquiry: whether the injuries were ‘likely to cause death’.

Question 13

CHNM:
Likely to cause death - PP v Govindasamy s/o Nalliah [2016] 3 SLR 374

[D engaged H of V as lawyer but convicted. D did not pay legal fees, H sought to recover sum from D’s children (guarantors); D asked for more time from V, and assaulted V and set office on fire when V refused, hoping to destroy his case file.]

Answer 13

Difference between CHNM under S 299 PC and an offence of murder under S 300(d) was one of degree:

If an act was only likely to cause death, CHNM; if death was the most probable result, murder.

Question 14

CHNM:

“Knowledge that he is likely by such act to cause death” (s300(d) PC) - Yeap Boon Hai v PP [2010] 2 MLJ 433, FC

Answer 14

H and W fell out, H poured petrol on the shop house where they lived and set it on fire. Killed 6 people including W and son. H convicted of S 300 PC murder. The main issue: whether H’s actions fell within the definition of s299 or s300 PC.

Held: While H had no intention to cause death, judging the time and manner in which the fire was started, it was so imminently dangerous to human lives and that in all probability it will cause death.

To satisfy S 300(d) PC, D’s knowledge must be of the highest degree of probability (“in all probability”) in causing death.

Question 15

CHNM:

Mitigating factors for reduction of charge - PP v Thenegaran A/L Murugan [2013] 3 MLJ 328 (Malaysian CA)

Answer 15

D and V were at temple festival. D was seen attacking another person (V2) with a knife, and V intervened. D slashed V causing his death. D was charged with murder under s300 PC but was convicted on a lesser charge. PP appealed.

Held:
[16] Given the instantaneous and spontaneous response of D, it appears that D intended V to be severely injured, but not necessarily that death be the most probable result of the attack.

Mitigating factors are fact sensitive.

Question 16

CHNM:
Public Prosecutor v Aniza bte Essa [2009] 3 SLR(R) 327 - Mentally Disordered D - Hodgson Criteria?

[Under s 304(a) read with s 109, abetment of CHNM of 16yo to kill H. Suffered from moderate depression brought about by persistent spousal abuse. Sentenced to 9 years prison. PP’s appeal for life prison dismissed.]

Answer 16

[12] A guide to justify the sentence of life imprisonment for mentally unstable offenders who met those criteria (necessary for the protection of the public).

[11] In Hodgson, no mental disorder, but unstable personality by nature and number of offences committed.

1. Offence or offences are in themselves grave enough to require a very long sentence.
2. It appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future.
3. If the offences are committed, the consequences to others may be specially injurious.

Question 17

Murder:

S 300 PC

Answer 17

a. Act done with the intention of causing death;
b. Act done with intention of causing such bodily injury as known to be likely to cause the death;
c. Act done with the intention of causing bodily injury, and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
d. Knows act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

Question 18

Murder:

S 302 PC

Answer 18

(a) : Death

(b) , (c), (d): Death or life prison, and caning if not death.

Question 19

Murder:

Chung Kum Moey v PP [1965-1967] SLR(R) 421, PC

Answer 19

4 limbs not mutually exclusive, and more than one may apply, but they still amount to murder.

Question 20

Murder:
Sornarajah, “The definition of Murder under the Penal Code” (1994) -
On S 300(b) PC?

Answer 20

Requires subjective intention of causing bodily injury (that is objectively likely to cause death per 2nd limb of s299 PC) and subjective knowledge that the bodily injuries are likely to cause death.

Question 21

Murder:
Sornarajah, “The definition of Murder under the Penal Code” (1994) -
On S 300(c) PC?

Answer 21

May be unduly harsh, as it relies on retrospective medical evidence that the bodily injury caused is subjectively intentional, that will objectively be sufficient in the ordinary course of nature to cause death.

D who cuts V’s leg, but cuts an artery and V dies, the medical evidence may show that the cut was sufficient in the ordinary course of nature to cause death. Finding that D had committed murder in such a situation would be unjust.

Question 22

Murder:
Sornarajah, “The definition of Murder under the Penal Code” (1994) -
On S 300(d) PC?

Answer 22

Requires that D “knows the act is so imminently dangerous”; this could be easily subverted by the tendency to impute to D what other people in the circumstances could have foreseen.

But s300(d) PC has its own safeguards:
- “Must in all probability” requires a very high degree of probability as opposed to mere possibility.

• Subjective element aforementioned requires D’s subjective awareness of risk.
  • Courts will find it hard to justify the imposition of murder on D who can show that he was unable to appreciate the risk involved (i.e. when D has a mental deficiency).
• “Commits such act without any excuse” has been interpreted to mean that the excuse does not need to be lawful, but where the excuse is lawful, no liability can arise.
  • Derived from some moral or social excuse or even an excuse resulting from human frailty for taking the risk.
  I.e., ambulance driver/fire fighter is aware of the risk but is excused in taking it because they are on life saving missions.

Question 23

Murder:

Sornarajah, “The definition of Murder under the Penal Code” (1994) - On Indian Courts?

Answer 23

IN courts have addressed this issue by emphasising on the subjective element of intention to cause bodily injury, and by stressing that the consequences to follow from the injury are to be judged not only in the light of expert evidence, but in light of knowledge of the ordinary man: Harjinder Singh v Delhi Administration.

However, tendency in SG to favour objective notions to a greater extent.

Question 24

Murder:
PP v Kho Jabing [2016] 3 SLR 135, CA

(S 300(c))

Answer 24

D sentenced to death before 2012 amendment of death penalty. Courts held that they had considered all Ds on death row to see if they were fairly and equally considered for alternative punishment of life imprisonment and caning.

Held: Whenever D is charged with murder under s300(b)–300(d) PC (for which the death penalty is now discretionary), the manner of attack on V is now a matter of first importance as it would have a crucial impact on whether D is sentenced to life imprisonment and caning or to death.

Need to lead evidence re precise manner in which the attack took place, for it would have a vital bearing on the eventual sentence that is imposed.

Question 25

Murder:
S300(a) PC -
Tan Buck Tee v PP [1976] MLJ 176

Answer 25

D and V worked together and had been quarrelling. V was found with 5 wounds, 3 of which had penetrated the heart and liver. Injuries caused by a heavy sharp instrument like the axe found at the scene.

Held: D convicted of murder. In all cases, the nature and existence of intention is something which can be deduced from the evidence.

Wounds demonstrated that whoever inflicted those blows must have intended to kill the person.

Courts would have to prove beyond reasonable doubt that D was the one who inflicted the blows, and if so satisfied, D will be liable for murder.

Question 26

Murder:
S300(a) PC - Motive can help show intention -
Mohammed Ali bin Johari v PP [2008] 4 SLR(R) 1058

Answer 26

D (V’s father) wanted to stop V (3yo) from crying. Dunked V head first into a pail of water, left her unattended as he went to answer a phone call. PP’s case was that D molested V and then immersed V into a pail of water to kill her.

Held (CA): JA Phang upheld the conviction of s300(c) PC and also noted that D’s acts would have satisfied the definition of murder under s300(a) PC.

Whilst motive is not the same as intention, it can in our view cast valuable and significant light on the intention of D in apt circumstances.
- Presence of motive may bolster the inference that an intention to commit the offence was existent. The absence of motive, however, need not necessarily mean that no intention was present.

On the facts, D’s sexual assault would furnish D with the requisite motive to cause the death of V in order to cover up the acts of sexual molestation.

Question 27

Murder:
S300(b) PC -
Anda and Ors v State of Rajasthan AIR [1966] SC 148

Answer 27

Knowledge req must be in relation to V, even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person.

Illustration (b) of s300 PC: If D hits V, knowing that V has a disease and that the blow will likely cause V’s death, D is guilty of murder; but if D does not know of such disease, and hits V where V dies, D will not be guilty of murder if D did not intend to cause death, and the blow was not sufficient in the ordinary course of nature to cause death (CHNM s299(2) PC).

Question 28

Murder:
S300(b) PC -
Karu Marik v State of Bihar AIR [2001] SC 2266

Answer 28

D stabbed V with a dagger several times deep in the abdomen and V died 8 days later. D convicted under s300(b) PC and appealed on the basis that D had neither the intention to cause death, and D did not know that such bodily injury was likely to cause death

Held: MR in s300(b) PC is 2-fold: (1) intention to cause bodily harm; and (2) subjective knowledge that death will be the likely consequence of the intended injury.

Even a most illiterate and rustic person would know and realise that a savage blow with a short cutting weapon would result in death. Such intention can be inferred not just from circumstances but from the act itself.

Question 29

Murder:
S300(c) PC -
Virsa Singh v State of Punjab [1958] AIR 465 - General?

Answer 29

D thrust spear into V’s abdomen with considerable force. V died next day from the wound with peritonitis which hastened the death. Medical evidence was that wound was sufficient in the ordinary course of nature to cause V’s death. D charged s300(c) PC. On appeal, contended PP had not proved that there was an intention to inflict bodily injury that was sufficient in the ordinary course of nature to cause death.

Held: Argument is fallacious because intention to inflict bodily injury that was sufficient in the ordinary course of nature to cause death would mean that there was intention to cause death, and would fall under s300(a) PC.

Question 30

Murder:
S300(c) PC -
Virsa Singh v State of Punjab [1958] AIR 465 - For PP to establish?

Answer 30

1. PP must establish objectively that a bodily injury is present;
2. PP must prove the nature of the injury objectively;
3. It must be proved that there was an intention to inflict that particular (not precise) bodily injury; and
4. That injury is sufficient in the OCON to cause death, inferred objectively and nothing to do with the intention of D.

Question 31

Murder:
S300(c) PC -
Virsa Singh v State of Punjab [1958] AIR 465 - Intention to inflict particular bodily injury?

Answer 31

Does not matter that there is no knowledge of likely death.

Once intention to cause bodily injury actually found to be present is proved, rest of the enquiry is purely objective, and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.

Question 32

Murder:
S300(c) PC - CURRENT TEST -
Wang Wenfeng v PP [2012]

Answer 32

Subjective: Did the accused intend to cause the injury?

Objective: (to be answered by pathologist) Was the injury sufficient (highly likely, at [33]) in OCON to cause death – even though he may not have intended or even expected death?

Question 33

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
Mohamed Yasin bin Hussin v PP [1974-1976] SLR(R) 596, PC

Answer 33

D robbed a hut. V was 58yo. D decided to rape V, and when V attempted to resist the rape, D sat on V, causing her ribs to fracture which resulted in congestion of the lungs and cardiac arrest. Main issue on appeal was whether D’s acts fell within s300(c) PC.

Held: Murder conviction set aside and direction to convict under s304A PC.

Not only must D’s act which caused death be (1) voluntary in this sense, the prosecution must also prove that (2) A had intended, by doing it, to cause some bodily injury to V of a kind which is sufficient in the ordinary course of nature to cause death.

Enquiry into whether D had intended the type of injuries inflicted, is not one into the precise injuries which in fact happened, but one that is broad based and simple and based on common sense (i.e. look at whole picture).

Question 34

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
Virsa Singh and Mohamed Yasin are reconcilable?

Answer 34

Yes.

What D in Yasin intended to inflict was clearly different from what he ended up inflicting.

One must intend the injury which ultimately causes death, even though he did not actually intend death to be convicted under s300(c) PC.

Question 35

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
PP v Lim Poh Lye and Anor [2005] 4 SLR(R) 582, CA

[Suggests that s300(c) PC would only be attracted if D intended to inflict serious bodily injury.]

Answer 35

Ds tried to rob V, and when V tried to escape, Ds attacked him. The probable cause of death was 1 of 7 stab wounds on V’s legs which had penetrated a major blood vessel causing continuous bleeding and death. At HC, Ds were acquitted of s300(c) PC murder, PP appealed.

Held (CA): What is essential is that the particular injury which eventually caused death was inflicted by D intentionally and not accidentally.

Particular and not precise injury that must be intended (i.e. if only intended minor injury that did not cause death, s300(c) PC would not be triggered. But if there was intention to cause injury and offender did not realise true extent of injury, still liable for murder.

Question 36

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
PP v Tan Cheow Bock [1991] 2 SLR(R) 608, CA

Answer 36

D with knife robbed V’s flat. Struggle ensued, D stabbed V in neck. D argued that no intent to cause serious injury and that the stab was accidental in the struggle.

Held: Clear from evidence D inflicted fatal injury – sufficient evidence that great force was used.

PP v Visuvanathan [1977-1978]: PP needed to prove D intentionally inflicted a bodily injury sufficient in the ordinary course of nature to cause death, and s300(c) PC would apply.

Once intention proved, the rest of the enquiry was objective. Irrelevant and unnecessary to enquire what kind of injury D intended to inflict [Virsa Singh].

Question then turns on whether inflicted injuries were intentional or accidental. Can be convicted of murder if intentional.

Question 37

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
PP v Tan Cheow Bock [1991] 2 SLR(R) 608, CA - Distinguished from Yasin?

Answer 37

Distinguished from Yasin as D in Yasin only intended to rape.

Question 38

Murder:
S300(c) PC - Intention to inflict particular bodily injury -
Tan Chee Hwee and Anor v PP [1993] 2 SLR(R) 493, CA

Answer 38

Ds attempted to burgle friend’s parents’ house. Maid came back early, and Ds tied V up with an electric iron cable. Eventually V died of strangulation because cable around neck. Ds convicted for s300(c) PC. On appeal Ds argued no intent to cause death or bodily injury that is likely to cause death.

Held: The convictions were reduced from murder to CH.
[38] Evidence that no intention to strangle or to cause hurt to maid (only wanted to silence her). Injury caused was not intentional, but rather accidental or unintentional.

Question 39

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
PP v AFR [2011] 3 SLR 653, SGHC

Answer 39

D returned home with a doll for 2yo daughter (V). V was chewing D’s cigarettes and started crying when D scolded her. D became stressed and started to hit her. D’s blows got more frenzied and V died because of severe beating. 58 injuries found by the pathologist. D charged with s300(c) PC murder.

Held: Guilty of s299 PC because it was established that bodily injuries intentionally caused were likely to cause death (2nd limb), or that D knew/ought to reasonably know that the bodily injuries were likely to cause death (3rd limb).

Not murder because the bodily injury intended was not sufficient in the ordinary course of nature to cause death.

Though beating was severe, it was outside D’s reasonable contemplation that it could have led to the cause of death.
- Rupture of inferior vena cava usually seen in motor accidents or fall from heights.

Question 40

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
PP v AFR [2011] 3 SLR 653, SGCA

Answer 40

1. [12] SGCA made clear strong stance against parent/caregiver abusing young children.
2. Increased 6 yr prison to 10 yr prison and 10 strokes caning.
   GEN DETERRENCE that social and financial problems are absolutely no excuse for abusing young children.
   SPEC DETERRENCE that D’s other children would still be vulnerable after R’s term.
   RETRIBUTIVE mandated a heavy sentence to be proportionate to his culpability.

Question 41

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
PP v AFR [2011] 3 SLR 653, SGCA - Problems?

Answer 41

1. SGHC judge seemed to overly sympathise with D and give undue weight to D’s mitigating factors, as noted in SGCA judgment.
2. Per Tan Kah Wai in article examining AFR and its impact on s 300(c) PC, Courts should adhere to strict literal interpretation complying with wording and spirit of s 300(c). SGHC’s AFR “has unfortunately applied an additional gloss that is inconsistent with the literal wording of section 300(c)”.

Question 42

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
PP v Kho Jabing [2011] 3 SLR 634, SGCA

[A and friend robbed 2 people - A stabbed V with wood and intentionally caused head injuries which were sufficient in OCON to cause death.]

Answer 42

If accused commits bodily injury that is not accidental or unintentional that will be sufficient in the ordinary course of nature to cause death, he will be liable for murder (S 300(c)).

Question 43

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
PP v Ellary bin Puling [2011] SGHC 214

Answer 43

Ds intended to rob V. D1 hit V in the back of the head to make him fall and faint faster. The resulting head injuries caused V’s death. Both Ds were charged with murder under s300(c) PC.

Held: Murder as all strikes were on the head. Held this to be intention, and that the fact that D1 hit the V’s head demonstrates that he was aware the head was a vulnerable part of the body.

Can distinguish b/w injuries that were either “ordinary and natural consequence” and those that were not.

• Former without evidence to indicate the contrary would infer intention that D intended fatal injuries (i.e. murder).
• Latter would denote that inference that D intended to cause such unexpected and unusual fatal injuries through his criminal acts could not be drawn (i.e. not murder).

D1 guilty of murder, while D2 (who only shared common intention to hit V with stick) convicted of offence of robbery with hurt.

Question 44

Murder:
S300(c) PC - Intention can be ascertained on totality of evidence -
Wang Wenfeng v PP [2012] 4 SLR 590, SGCA

[D stabbed taxi driver and left him in the undergrowth of a nearby forested area. D convicted of s300(c) PC murder. D appealed arguing no MR since he had only stabbed V once, which was accidentally inflicted, and that the single stab wound was insufficient evidence as the cause of V’s death.]

Answer 44

Re-sentenced to life prison and 24 cane.

Intent =
A. Stab wound was severe and could only have been caused intentionally with a firm hand. Also, V had resisted D’s hand that was holding the knife, but the fact that D overcame V to stab V, meant that D intended to stab V.

B. Objective evidence also reflected that there were 5 cuts on V’s shirts and therefore court was certain that V was stabbed at least 5 times on the chest.

Accretive or secondary cause of death would not operate to displace the primary cause of death in such a case (i.e. liability does not cease even if D tried to save V). Even if there was argument that D inflicted another fatal injury to V (without intention), no difference to his criminal liability under s300(c) PC if the initial injury would, in any event, have caused death in the ordinary course of nature.

Question 45

Murder:
S300(c) PC - Common intention -
PP v Chia Kee Chen [2018] 2 SLR 249, SGCA

Answer 45

If no way of ID’ing the particular mortal blow on V, does not matter as s300(c) PC read with s34 PC indicts all Ds (i.e. secondary offender does not necessarily escape liability simply by disclaiming mortal blow).

Key question was whether the primary and secondary offenders shared a common intention to inflict the particular s300(c) injury or injuries on the victim.

Question 46

Murder:
S300(c) PC - Common intention -
PP v Ellary bin Puling [2011] SGHC 214

[Ds intended to rob V. D1 hit V in the back of the head to make him fall and faint faster. The resulting head injuries caused V’s death. Both Ds were charged with murder under s300(c) PC.]

Answer 46

1. [74] High degree of specificity demanded of D2’s intent (need some kind of planning to cause the head injuries).
2. Applying Danial Vijay’s Barendra test,
   D2 must have subjective knowledge of the likelihood of V receiving a S 300(c) injury.
   Not enough to find D2 knew V might suffer an injury and that injury was subsequently shown to be as severe as S 300(c).

Question 47

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Approach in Virsa Singh?

Answer 47

Approach in Virsa Singh is not problematic if there is congruence between the intended and actual injury [Accused intended to cause injury and that injury was sufficient to cause death].

In Virsa Singh, the particular injury sufficient to cause death need only be generally of the kind intended by the accused, and not exactly similar. (broad-based and simple and based on common sense).

Question 48

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
What if intended and actual injury different - D intended minor injury?

Answer 48

In Mohamed Yasin, Diplock J held that D must intend to cause “some bodily injury to V of a kind which is sufficient in the ordinary course of nature to cause death”.

This is arguably reconcilable with Virsa Singh since what D intended to inflict was clearly different from what he ended up inflicting. A fatal act accidentally caused is a defence to the S300(c) murder (Wang Wenfeng).

Question 49

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
What if intended and actual injury different - Struggle Cases, intended and actual not easily distinguishable?

Answer 49

Courts appeared to veer towards a stricter approach:

In Tan Joo Cheng, SGCA held that “even if the accused intended to inflict only a relatively minor injury, if the injury that he in fact inflicted pursuant to that intention was an injury sufficient in the ordinary course of nature to cause death” S300(c) would apply.

Question 50

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Criticism of stricter approach in Struggle Cases?

Answer 50

1. Makes D liable for a consequence which he may never have intended and is tantamount to the discredited common law maxim that a man is presumed to intend all the consequences of his act.
2. Also, this interpretation of S300(c) does not sit well with the high MR culpability required to satisfy its counterparts in S300.
3. This goes against the literal text of S300(c), which focuses on the injury intended to be inflicted and not the actual injury.

Question 51

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Suggestion in Struggle Cases?

Answer 51

The better approach would be adhere to Bose J’s test in Virsa Singh, and inquire, on the facts of the case, whether “some other kind of injury” was in fact intended. There would be no liability if the actual injury inflicted was accidental.

Entails assessment of the culpable difference/moral distance between what was originally intended and what was eventually inflicted.

Question 52

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Situation 1 in Tan Chee Hwee?

[Ds attempted to burgle friend’s parents’ house. Maid came back early, and Ds tied V up with an electric iron cable. V died of strangulation because cable. Ds convicted for s300(c) PC. On appeal Ds argued no intent to cause death or bodily injury that is likely to cause death.]

Answer 52

CA held that if the accused only intended to cause a particular minor injury, which in the normal cause of nature would not cause death, but in fact caused a different injury sufficient in the ordinary course of nature to cause death, S300(c) would not be attracted.

Appears to have discarded the Tan Joo Cheng test.

• 2 judges in common, Tan Chee Hwee a year later.
• Tan Joo Cheng more evidence of intent: Followed V up to flat, threatened with knife at door.

Question 53

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Situation 2 in Lim Poh Lye?

[Ds tried to rob V, and when V tried to escape, Ds attacked him. The probable cause of death was 1 of 7 stab wounds on V’s legs which had penetrated a major blood vessel causing continuous bleeding and death. At HC, Ds were acquitted of s300(c) PC murder, PP appealed.]

Answer 53

If the injury caused was clearly intended but the offender did not realise the true extent and consequences of that injury, S300(c) applies.

i.e where the intended injury and actual injury are congruent, accused cannot escape liability if he failed to realise the consequences of his act. This seems to bring in notions of rashness and negligence.

Question 54

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Distinction between Situations 1 (Tan Chee Hwee) and 2 (Lim Poh Lye)?

Answer 54

1. Court has rejected the role of motive in absolving the accused, and the moral assessment of the motive of the accused in committing the act is not relevant.
2. The seriousness of the intended injury is to be objectively determined, not subjectively from the accused’s viewpoint.

However, on whose objective standard does the question of seriousness rest? IN Courts insist that consequences that follow from an injury are to be judged, not only in light of expert evidence but also in light of the ordinary man’s knowledge. (Sornarajah). However, the CA in Lim Poh Lye was reluctant to go down this path.

Question 55

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
First Evaluation of distinction between Situations 1 (Tan Chee Hwee) and 2 (Lim Poh Lye)?

[Difficult to separate intended and actual injuries - Human variation]

Answer 55

Difficult to separate intended and actual injuries. Depends on whether fatal injury can be sufficiently distinguished from intended injury. Especially so in struggle cases, where the intended injury and actual injury are not wholly distinguishable. If the fatal injury ultimately caused death, highly unlikely that the accused will ever intend that very result.
Renders S300(c) otiose.

Given the myriad permutations of human conduct, achieving consistency is difficult.

Eg. Comparing Tan Cheow Bock with Tan Chee Hwee:
- Tan Cheow Bock: Charged with causing death by inflicting knife wound in V’s mouth to stop V from shouting; gave evidence that the fatal injury was difficult to inflict and that he never intended to inflict it. CA rejected this argument and emphasised that the injury was not caused accidentally.

• Tan Chee Hwee: Court was sympathetic to the accused, whom D could hardly have meant to kill or injure. D surprised by V’s sudden emergence and inflicted injuries in panic of a struggle while trying to silence V.

Question 56

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Second Evaluation of distinction between Situations 1 (Tan Chee Hwee) and 2 (Lim Poh Lye)?

[Illogical outcomes from adaptation of sentencing in individual cases]

Answer 56

Instinctive desire to avoid harsh results in individual cases leads to illogical outcomes.

E.g. Tan Chee Hwee: Charged for CHNM. Accused must be shown to possess the requisite MR that is coterminous with MR under S300.

Therefore, if there is no intention under S300(c), then it must necessarily mean that S299 is not made out either. However, the judges in Tan Chee Hwee were presumably unwilling to acquit the accused.

Eventuated in Virsa Singh test becoming malleable to suit the individual circumstances of each case, and individual facts like whether the accused knew V became important considerations.

Question 57

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Assistant Professor Victor Ramraj: ‘Qualified subjective approach’?

Answer 57

Liability under s. 300(c) should only be attracted if D intended to inflict a serious bodily injury

This bodily injury must bFe one which, at the minimum, he knew was an injury which might kill

There are 2 features to this approach:
1. D must have been aware of the seriousness of the injury

2. While D may not have intended to kill, he must have some subjective awareness that the injury was of a sort that might kill

Rejected by C.A. in Lim Poh Lye at pp. 598 para. 47:
- Runs counter to Virsa Singh

Question 58

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Prof. Stanley Yeo: Reminder of the test in Virsa Singh?

[1. Must establish objectively that a bodily injury is present;

2. Must prove the nature of the injury objectively;
3. Must prove intention to inflict that particular (not precise) bodily injury; and
4. Prove that injury is sufficient in the OCON to cause death, inferred objectively.]

Answer 58

PP must not only show that the particular injury was not accidental or unintentional.

They must also show intention to inflict the particular injury.

The test in Virsa Singh is not purely constructive in nature as some cases seem to suggest.

Whether the particular injury is intended has to be inferred from the circumstances:
Number of injuries inflicted, degree of force used etc.

Question 59

Murder:
S300(c) PC
Alan Tan, “Revisiting Section 300 (c) Murder in Singapore” (2005) -
Assistant Prof Chan Wing Cheong: Raise the sentencing level of s. 304A?

Answer 59

Would reduce the pressure on PP to bring borderline cases within s. 300(c).

Prosecutions where D did not have the subjective intention to kill should be brought under s. 304A instead (not even s. 299)

Question 60

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Where did guidelines to judges on whether or not to impose the discretionary death penalty in murder cases come from?

Answer 60

Kho Jabing v PP [2015].

Question 61

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Concerns in exercise of discretion?

Answer 61

In the absence of statutory guide lines, what factors ought a judge to take into consideration in imposing the death sentence?

More importantly, how would judges maintain sentencing consistency between cases with different factual matrices?

Question 62

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Usage of Parliamentary debates?

Answer 62

Court referred to the Law Minister’s comments on three “interconnected factors” which in his view were relevant to the application of the death penalty:
1. Seriousness of offence in terms of the harm to V and society and the accused’s personal culpability;

2. Prevalence of the offence; and
3. Need for deterrence.

But these factors did not constitute a “formulastic approach”.
- Not objective factors capable of exact measurement, certainly not meant to be part of any legal test to determine when the death penalty would be an appropriate sentence.

• At best, these factors point to the general principle that the facts of the case must be considered in their totality and merely constitute part of “the whole plethora of circumstances” (at [15]) relevant to a sentencing decision.

Question 63

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Cannot use foreign decisions?

Answer 63

Foreign decisions from the courts in IN, the Caribbean and USA where the death penalty was reserved for the worst cases or the “rarest of rare” cases.

Found this to be unhelpful:
- “Rarest of the rare” principle was inappropriate for SG as it would “artificially confine and sequester the death penalty to the narrowest of regions and to restrict the imposition of the death penalty based on whether the actions of the offender are ‘rare’ in comparison with other offenders” at [41].

Question 64

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Unclear on use of local decisions?

Answer 64

Sia Ah Kew and Ors v PP [1972-1974] SLR 208:
Wee Chong Jin CJ: Long and well established principle of sentencing that the Legislature, in fixing the max penalty for a criminal offence, intends it only for the worst cases.

But CA in Jabing (2015) disposed of the argument by opining that this principle must be viewed in the context in which it had been stated in Sia’s case, meaning it only applied where there was a wide range of penalties available.

Unclear why it won’t “make sense” to follow the principle even where the court had to choose between the 2 most serious punishments of life imprisonment or death.

Question 65

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
When death sentence should be imposed - Expression of society’s view of certain offences?

Answer 65

SGCA adopted 2nd principle in Sia Ah Kew and Ors v PP [1972-1974] SLR 208, followed in later decision in Panya Martmontree and Others v PP [1995] 2 SLR (R) 806, that max sentence of death was appropriate “where the manner of the kidnapping or the acts or conduct of the kidnappers are such as to outrage the feelings of the community”.

Capital punishment = Expression of soc’s indignation towards particularly offensive conduct

Fact that death penalty remains = “expression of society’s belief that certain actions are so grievous an affront to humanity and so abhorrent that the death penalty may, in the face of such circumstances be the appropriate, if not the only, adequate sentence” (Kho Jabing (2015) at [44]).

Question 66

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
When death sentence should be imposed - Judge’s assessment of when community’s feelings have been outraged?

Answer 66

Can be measured through when the offender’s acts have shown “viciousness or a blatant disregard for human life” (Kho Jabing (2015) at [45]).

Demonstrated by looking at the manner in which D had acted:
I.e. Jabing: Majority of judges found Jabing had attacked the deceased from behind and had struck the deceased at least three times on the head even after he had fallen to the ground, resulting in fatal injuries.

Death penalty would also be an appropriate sentence for any act showing disregard for life which is “just shy of the requisite intention to sustain a charge under s300(a) of the [Penal Code]” to reflect the offender’s moral culpability.

Question 67

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Relevance of other circumstances?

Answer 67

The CA next observed that “the court should still take into consideration all the
other circumstances of the case. While D’s disregard for human life remains at the forefront of the court’s consideration other facts such as D’s age and intelligence continue to be relevant”. (Kho Jabing (2015) at [47])

i.e. PP v Ellary bin Puling where the re-sentencing court had considered the facts that the accused was 18 years old and had sub-normal intelligence in not imposing the death penalty.

CA did not make clear the precise relevance of “other circumstances”. When will they amount to an appropriate miti plea? Only if they do not neutralise the manner in which the offender has acted in his blatant disregard for human life?

Question 68

Murder:
S. Chandra Mohan, “The Discretionary Death Penalty for Murder: Guidance at Last” (2015) -
Conclusion?

Answer 68

Differences in the findings of facts as to whether D has shown a blatant disregard for life, the manner in which he has done so, and considerations of the relevance of the “other circumstances”, could well lead to inconsistencies in sentencing.

Important to present evidence in manner that can assist D.

Question 69

Murder:
S 300(d) PC

Answer 69

Knows act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

Question 70

Murder:
S 300(d) PC -
Subjective test

Answer 70

Purely subjective because an objective reading of “likely to cause death” would result in some murders not falling within the definition of CH.

Question 71

Murder:
S 300(d) PC -
Subjective test -
Tan Cheng Eng William v PP [1970] 2 MLJ 244, CA

Answer 71

D and anor were both driving dangerously when D collided with V’s motorcycle. V died. D convicted under s300(d) PC murder. D appealed.

Held (CA): D not guilty of s300(d) PC murder.

Knowledge on the part of D of the consequences of his act which has resulted in death is an essential ingredient of the offence of murder under s300(d) PC.

In this case, D did not have the knowledge at all that his act would result in death. Most adverse inference that can be drawn from D’s manner of driving was that he intended to cause harm to the passengers of the other car.

Question 72

Murder:
S 300(d) PC -
Subjective test -
Kenneth Fook Mun v PP [2007] MLJ 334, CA(M) - General?

Answer 72

D had been drinking, parked car in middle of road, asked V to get out of car, V refused, D walked over and fired a shot through the windscreen hitting V in the chest and V died. D charged with s300(d) PC murder, but was convicted of s304(b) PC. PP appealed.

Held: Must be s300(d) PC as D discharged the gun in absolute callousness towards the result and cannot fall within s304(b) PC. D failed to show on a balance of probabilities that he did not know that his act of discharging gun at such close quarters to V is so imminently dangerous that it must in all probability cause death or bodily injury as is likely to cause death.

Question 73

Murder:
S 300(d) PC -
Subjective test -
Kenneth Fook Mun v PP [2007] MLJ 334, CA(M) - To establish beyond reasonable doubt?

Answer 73

1. D must know that it is so imminently dangerous that it must in all probability cause (a) death, or (b) bodily injury as is likely to cause death; and
2. Act must have been committed without excuse for incurring the risk of causing death or such injury.

Question 74

Murder:
S 300(d) PC -
Subjective test - 4 elements for s300(d) PC to be made out -
PP v Govindasamy s/o Nalliah [2016] 3 SLR 374

[D engaged H of V as lawyer but convicted. D did not pay legal fees, H sought to recover sum from D’s children (guarantors); D asked for more time from V, and assaulted V and set office on fire when V refused, hoping to destroy his case file.]

Answer 74

1. Accused performed an act which caused death.
2. Act was so imminently dangerous that it had to in all probability cause death.
   - Essence of the inquiry was whether the danger posed by the act was so immediate, and the prospect of death so swift and sure that as a practical matter, it was an almost certain outcome.
3. Accused knew that this act was so imminently dangerous that it had to in all probability cause death.
   - Must be shown that Accused subjectively knew, at the time he committed the act, that it was so imminently dangerous that it would in all probability cause death or such bodily injury as was likely to cause death (i.e. subjective awareness of dangerousness of act).
4. Act was performed without any excuse for incurring the risk of causing death.