Special Defences

Question 1

S 300 PC, Exception 1: Provocation -

Preconditions?

Answer 1

Provocation is:
1. Not self-induced: Not sought or voluntarily provoked by D as an excuse for killing or doing harm to any person;

2. Not lawful: Not anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;
3. Not from private defence: Not anything done in the lawful exercise of the right of private defence.

Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Question 2

S 300 PC, Exception 1: Provocation -
Elements -
2 Stage Test -
PP v Kwan Cin Cheng [1998] 2 SLR 345, SGCA

Answer 2

D charged with murder of ex-gf, claimed that he had been provoked by a hurtful remark made by her. TJ accepted plea, PP appealed.

Held: 2-stage test:
1. Subjective req that D was deprived of his self-control by provocation. (Finding of fact, determined on a case-by-case basis)

2. Objective req that provocation must be grave and sudden. Involves the use of the Reasonable Man Test.

Question 3

S 300 PC, Exception 1: Provocation -
Elements -
2 Stage Test -
Seah Kok Meng v PP [2001] 3 SLR 135, SGCA

Answer 3

D killed V for allegedly harassing and molesting his girlfriend. V did not retaliate and died from severe head injuries.

Held: Guilty. Court applied the 2-stage test from Kwan Cin Cheng. D in this case did not lose his self-control due to provocation (D was very much in control of the situation).

Provocation was also not grave and sudden (reasonable man would not have gone to search for weapon and carry out assault of this kind).

Question 4

S 300 PC, Exception 1: Provocation -
Elements -
2 Stage Test -
Mohamed Ali bin Johari v PP [2008] 4 SLR(R) 1058, SGCA

Answer 4

CA: Underlying rationale for the subj and obj requirements.

Subj condition: Ensures that it was not a revenge killing, but a sudden and uncontrolled reaction to perceived injustice. Coolly planned killings are excluded.

Obj condition: Looks to the element of partial justification and the conduct of the provoking party to assess if the provocation was grave enough to warrant a reduction of crime from murder to manslaughter. “the question of sufficiency is one of degree, and the legal rules…cannot determine this ultimate question”.

Question 5

S 300 PC, Exception 1: Provocation -
Elements -
Che Omar bin Mohd Akhir v PP [2007] 4 MLJ 309, FC

Answer 5

In order to bring a defence of grave and sudden provocation:
(i) D must have done the act whilst deprived of self-control;

(ii) D must have been so deprived bc of provocation;
(iii) the provocation must have been grave and sudden;
(iv) the provocation must not have been sought by D;
(v) the provocation must not have been sought by D as an excuse for doing the act;
(vi) the provocation must not have been given by anything done: either (a) in obedience to the law; or (b) by a public servant in the lawful exercise of his powers as such; or (c) in the lawful exercise of the right of private defence.

Question 6

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
PP v Astro bin Jakaria [2010]

Answer 6

1. Killing must have occurred during period of loss of self-control.
2. Provocation unavailable if the killing contained elements of premeditation or deliberation.
3. Loss of self-control need not be so severe as to prevent D from appreciating what he was doing. (No need for total loss of self-control).

Question 7

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
PP v Pathip Selvan s/o Sugumaran [2012] 4SLR 453, SGCA

Answer 7

A had killed V (his GF) after V told A that another man was a better lover than A is.

Held: Crucial question is whether A had suddenly lost self-control at the material time due to the provocation to the extent that he was no longer in control of his mind. If there was premeditation, no loss of self-control.

No need for A’s mind to be completely blank or for there to be automatism.

Question 8

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
Ithnin bin Kamari v PP [1993] 1 SLR (R) 547, SGCA

Answer 8

Would the act(s) alleged to constitute provocation have deprived a reasonable man of his self-control and induced him to do the act which caused the death of the deceased? (Whether A has the same degree of self-control of an ordinary person, not whether the killing was reasonable).

Relevant to look at and compare the act of provocation with the act of retaliation.

Question 9

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
KM Nanavati v State of Maharahrashtra AIR [1962] SC 605

Answer 9

Provocation can be satisfied if:
(1) V gave provocation to D. (not in Che Omar)

(2) Provocation must be grave and sudden.
(3) D, by reason of provocation, must have been deprived of power of self-control
(4) D should have killed the deceased during continuance of deprivation of self-control. (Astro bin Jakaria)
(5) D must have caused the death of person who gave the provocation or that of any other person by mistake or accident. (not in Che Omar)

Question 10

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
Inflicted injuries tend to be in a frenzied manner

Answer 10

PP v Pathip Selvan s/o Sugumaran [2012]: Injuries were inflicted in entirely random and frenzied manner.

PP v Sundari Supriyanto [2004] 4 SLR 622 SCM 1150: Loss of self-control was due to lengthy provocation. D killed V, claiming V had ill-treated her. Whether D had been in a frenzy and was blinded with rage can be inferred from the haphazard nature of injuries.

Lim Chin Chong v PP [1998] 2 SLR 794 CA, SCM 1146: Calculated and premeditated acts are not acts of a man who had lost control of himself and was in a frenzy.

Question 11

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
Intoxication can be taken as one of the factors in determining subjective loss of self-control

Answer 11

Per Astro bin Jakaria [2010] 3 SLR 862.

Intoxication does not contribute to the reasonable man test in objective test. Reasonable man is one who is of the same age and sex of D, who shares the peculiar characteristics (which form the subject of provocation) as D but is one who is sober.

Effect of intoxication on the defence of provocation relates only to the subj element.

Question 12

S 300 PC, Exception 1: Provocation -
Elements -
Stage 1: Actual loss of self-control -
Relationship of the parties

Answer 12

Chan Kwee Fong v PP: Court can take into account the circumstances in which the provocation was offered, any past conduct which may have coloured the provocative incident, and the relationship of the parties.

PP v Astro bin Jakaria: Relationship between D and V can be critical in determining if the defence of provocation would operate.

Question 13

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Provocation must be objectively grave and sudden -
PP v Pathip Selvan s/o Sugumaran [2012] 4SLR 453, SGCA

Answer 13

D must establish on a balance of probabilities that an ordinary person of the same sex and age of the accused, sharing his characteristics as would affect the gravity of the provocation, would have been so provoked as to suddenly lose his self-control. 2 factors:

1. Age: Youthful immaturity – young people have lesser capability at self-control. Consistent with the hot-headedness of youths.
2. Sex: Assumption that females have higher levels of self-control than men.

However, it promotes gender stereotyping and many jurisdictions have abandoned this characteristic as being sexist.

Question 14

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Provocation must be objectively grave and sudden -
Other characteristics may be considered only if they affect gravity of provocation

Answer 14

PP v Kwan Cin Cheng [1998]: Suggests D’s emotional state of mind should be taken into account as it affected the gravity of the provocation from V, and earlier events and the mental bg they created in D may be relevant.

Contrasted with Mohamed Ali bin Johari v PP [2008]: D’s personal idiosyncrasies ought not to be taken into account in so far as the issue of the loss of self-control (as opposed to the gravity of the provocation) was concerned.

Question 15

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Grave Provocation -
PP v Pathip Selvan s/o Sugumaran [2012] 4SLR 453, SGCA

Answer 15

Individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas those characteristics bearing on D’s self-control should not.

Mental background may to an extent be taken in account for gravity.

Question 16

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Grave Provocation -
PP v Sundari Supriyanto [2004]

Answer 16

With regards to gravity, D’s provocative acts of sustained abuse formed a mental background such that the provocative actions on the day of the murder became sufficiently “grave” to provoke a reasonable person.

Separate counts of abuse linked to each other, leading to act.

Question 17

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Grave Provocation -
PP v Astro bin Jakaria

Answer 17

Recognition that most heterosexual men would view such homosexual advances as sufficiently grave provocation.

V made a proposition for anal intercourse without prior loving relationship between D and V.

Question 18

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Sudden Provocation -
“Sudden” meaning?

Answer 18

Strict reading meant that provocation must be “unexpected” and must have occurred a short period of the time before the killing.

But courts have given the term a broad interpretation: suddenness of provocation must be read together with the gravity of the provocation as “grave and sudden provocation”.

Question 19

S 300 PC, Exception 1: Provocation -
Elements -
Stage 2: Sudden Provocation -
“Sudden” lasts for as long as D is deprived of self-control

Answer 19

PP v Sundari Supriyanto: “Breathing spaces” in between were not so significant or lengthy enough to constitute a cooling-off period sufficient to put an end to the provocation.

PP v Pathip Selvan: Provocation must be unexpected. Interval between provocation and homicide should be brief.

Astro bin Jakaria: There must be no evidence of pre-meditation.

Question 20

S 300 PC, Exception 1: Provocation -

Similarities with Sudden Fight?

Answer 20

1. Both involve loss of self-control in the form of “heat of passion”.
2. Both will fail if D had premeditated the killing or if mode of killing is cruel.

Question 21

S 300 PC, Exception 1: Provocation -

Differences with Sudden Fight?

Answer 21

1. In presence of fight:
   - P – no need to have arisen in the course of a fight.
   - SF – must involve a fight.
2. Physical contact:
   - P – can succeed where only words were exchanged.
   - SF – must have exchange of blows.
3. Knowledge:
   - P – V does not need to know that he has provoked D.
   - SF – must possess knowledge for there to be a sudden fight.

Question 22

S 300 PC, Exception 1: Provocation -

Similarities with Diminished Responsibility?

Answer 22

1. Both involve mental malfunctioning.

Question 23

S 300 PC, Exception 1: Provocation -

Differences with Diminished Responsibility?

Answer 23

1. Differences relate to the source of impaired control
   - P – reaction to V’s provocative conduct (external stimuli).
   - DR – abnormality of mind (internal stimuli).

Question 24

S 300 PC, Exception 4: Sudden Fight -
Elements -
Must be proven on balance of probabilities

Answer 24

Per s105 EA; Mohamed Kunjo v PP [1977-78] (PC Case).

Question 25

S 300 PC, Exception 4: Sudden Fight -

Elements

Answer 25

1. Must be without premeditation.
   - Soosay v PP [1993] 3 SLR 272 389, SGCA: D must have a reasonable apprehension of danger to his life.
2. Sudden fight in heat of passion upon sudden quarrel.
   - Whether D acted honestly, or whether he used the opportunity to pursue a private grudge and to inflict injuries which he intended to be inflicted regardless of his rights: Soosay v PP [1993].
3. No undue advantage.
   - Tan Chun Seng v PP [2003] 2 SLR 506, SGCA: SG courts put strong emphasis on the physiques of V and D when assessing whether the use of weapon by the latter procured an undue advantage.
4. No cruel or unusual acts.

Question 26

S 300 PC, Exception 4: Sudden Fight -
Elements -
Without premeditation -
Soosay v PP [1993] 3 SLR 272 389, SGCA

Answer 26

V pulled out knife and threatened D. D kicked V, disarmed him, picked up the knife and stabbed V each time he came at him. V eventually died of the wounds.

Held: Defence of sudden fight succeeded, especially as the knife belonged to V at first so there was no pre-meditation to cause injury.

“To constitute premeditated killing, D should have reflected with a view to determine whether he would kill or not; and that he should have determined to kill as a result of that reflection; that is to say, the killing should be a pre-determined killing upon consideration and not a sudden killing.”

Question 27

S 300 PC, Exception 4: Sudden Fight -
Elements -
Sudden quarrel

Answer 27

1. Chan Kwee Fong: Requires there to be no interval between the quarrel and the fight. If such interval exists, then reason should prevail to overcome passion; fight cannot be said to be sudden.
2. Asogan Ramesh and Ors v PP [1997] 3 SLR(R) 201, CA: Random fight after drinking - 3 Ds were walking home after drinks when they saw V, with whom D3 had fought with before. D3 called to V, and V swore at the group and fled. Ds gave chase. D1 disarmed; D2 slashed; and D3 swung chair at V’s head several times. Defence failed, no sudden quarrel.
3. Tan Chee Wee v PP [2004] 1 SLR(R) 479, CA: D entered V’s house to rob her. V struggled. D hit her on the head with a hammer, resulting in 18 scalp lacerations and skull fractures. Defence inapplicable because there was a quarrel but not a sudden one.

Question 28

S 300 PC, Exception 4: Sudden Fight -
Elements -
Sudden fight

Answer 28

1. Fight defined in Tan Chee Wee v PP [2004]: “Mutual provocation and blows on each side”.
2. Tan Chun Seng v PP [2003]: On the facts, D had no intention of getting into a fight that evening. Borne out of a fight and heat of passion. No evidence to suggest D hit V when he was on the ground. D did not start the fight first: the period when V pushed D to the ground was when the fight started.
3. PP v Awang Raduan Awang Bol [2005] 1 CLJ 649, FC(M): Held no sudden fight as elements of design or planning were in D’s mind.
4. Duration of fight is essential: Killing must have been committed in the course of sudden fight.
   - Soosay v PP [1993]: Exception 4 will NOT succeed if D had emerged the clear victor and had inflicted the fatal injury on V who was attempting to escape.

Question 29

S 300 PC, Exception 4: Sudden Fight -
Elements -
No undue advantage definition -
Mohamed Kunjo [1977-78] SLR (R) 211, PC

Answer 29

Undue advantage = Unfair advantage.

Parties were lorry drivers and friends. Fought while drunk. Ended up wrestling on the ground several times. Suddenly, D got an exhaust pipe of a motor vehicle from a store. He then rushed at V and delivered one blow. V went to the ground. Subsequently hit V 3 - 4 times more, until V died in his pool of blood.

Held: Although there was no premeditation (blows struck in sudden fight in heat of passion upon sudden quarrel), D could not show how he had not taken undue/unfair advantage: D was on the ground and defenceless. D ran to get an exhaust pipe – a truly murderous weapon. V was taken by surprise.

Question 30

S 300 PC, Exception 4: Sudden Fight -
Elements -
No undue advantage -
Soosay v PP [1993]

Answer 30

No undue advantage because V kept coming at him even though he was injured by a stab.

Suggests that undue advantage arises when clear victor inflicts fatal injury on escaping loser.

Question 31

S 300 PC, Exception 4: Sudden Fight -
Elements -
No undue advantage -
Relevant factors

Answer 31

Relevant factors that court may consider include: physique, age, ability, aggression, whether one or both were armed/one armed beforehand.

1. Tan Chun Seng v PP [2003]: No undue advantage in the use of weapons when opponent is sizeably bigger. D picked the weapon because he wasn’t convinced after being pushed to the ground that he would not overpower K in a bare hand fight. Hence, D had to resort to a weapon.
2. Tan Chee Wee v PP [2004]: Undue advantage as V was already unconscious on the ground.

Question 32

S 300 PC, Exception 4: Sudden Fight -
Elements -
No undue advantage -
Number of parties/Weapon?

Answer 32

1. If V outnumbered, can constitute undue advantage.
   Asogan Ramesh and Ors v PP [1997]: 3 Ds took an unfair advantage of the situation that they were in (numbers and strength), V was outnumbered and moreover was not the aggressor in the fight. Element of unfair advantage lies on the notion of proportionality, and this was precisely what was violated when the 3 Ds attached V together.
2. Nature of weapon used may signal undue advantage. T Paramasparan v PP [2012] 2 MLJ 545, CA(M) SCM 1381: Domestic quarrel between V and husband D. D had started to attack V even before V made the confession with rice cooker wire and broom. Held: Nature of weapon used indicated D had taken undue advantage.

Question 33

S 300 PC, Exception 4: Sudden Fight -
Elements -
Cruel or unusual manner?

Answer 33

1. Vague concept that is not defined (tends to be combined with undue advantage).
2. Tan Chee Wee v PP [2004] (SG CA): The “evidence of 18 scalp lacerations and skull fractures to V indicated prima facie that D had acted in a cruel or unusual manner”. On the facts, D “continued to attack V even after she had collapsed to the ground when she was clearly of no threat and danger to him” – a clear indication that D had acted “not only cruelly and unusually, but also vindictively and murderously”.
3. T Paramasparan v PP [2012]: Repeated assaults showed that the appellant had acted in a cruel or unusual manner. On the facts, it was A who had started and continued to assault V before she had confessed to the affair.

Question 34

S 300 PC, Exception 4: Sudden Fight -

Similarities with Private Defence?

Answer 34

1. Both require that killing of V must not be premeditated and both involve fights.

Question 35

S 300 PC, Exception 4: Sudden Fight -

Differences with Private Defence?

Answer 35

1. Presence of initial aggressor.
   - PD: Determination of initial aggressor required.
   - SF: Irrelevant
2. Harm.
   - PD: Harm must be necessary for the purpose of the defence.
   - SF: All that’s required is no undue advantage or acting in cruel or unusual manner, (i.e. can use disproportionate/unnecessary harm as long as it is not undue advantage/cruel/unusual manner).
3. Seek protection of public authorities.
   - SF: No requirement.

Question 36

S 300 PC, Exception 4: Sudden Fight -

SF and Intoxication?

Answer 36

If both parties were intoxicated, it would only add on to their individual blameworthiness.

If one were intoxicated, then sober party more to blame for not distancing himself away from the intoxicated party.

Question 37

S 300 PC, Exception 7: Diminished Responsibility -

General rule?

Answer 37

Whether medical evidence when considered on totality of objective facts establishes the required state of mind at the time of the offence on balance of probabilities.

Question 38

S 300 PC, Exception 7: Diminished Responsibility -
3-limbed Approach -
G Krishnasamy Naidu v PP [2006] 4 SLR 474, CA

Answer 38

1. D must be suffering from an abnormality of mind at the time of the killing.
2. Abnormality of mind must arise from the stipulated parameters in Exception 7, viz. proof that that the abnormality of mind was caused by an acceptable cause.
3. Abnormality of mind must have substantially impaired D’s mental responsibility for the killing.

Essentially an inquiry of fact.

Clarified in Ong Pang Siew v PP [2011] 1 SLR 606, CA: Composite approach taken but also considered whether there was substantial impairment operating at each murder.

Question 39

S 300 PC, Exception 7: Diminished Responsibility -
Elements -
PP v Wang Zhijian [2014] SGCA 58, CA at [55]

Answer 39

1. Abnormality of mind
2. Arising from one of the prescribed causes (mental impairment or any inherent causes or induced by disease or injury)
3. Which has substantially impaired the D’s mental responsibility.

Question 40

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind -
R v Byrne [1960] 2 QB 396

Answer 40

Refers to a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.

Dictum of Byrne accepted in Chua Hwa Soon Jimmy V PP [1998] 2 SLR 22, CA: Whether there was abnormality of the mind at the time of killing is a question of fact. While medical evidence is relevant, court isn’t bound by it and has to consider all other material including acts, statements and demeanour of D, and conflicting med opinions; the court can depart from doctors’ opinion if the other material conflicts and outweighs it.

Question 41

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind -
Zailani bin Ahmad [2005] 1 SLR 356, CA

Answer 41

D killed V in the course of robbery. Claimed Diminished Responsibility on basis of intoxication from drugs and alcohol. PP expert said that mental responsibility wasn’t substantially impaired at time of killing, but D expert stated that he was labouring under a stimulant effect due to drugs/alcohol, thus impairing his mental ability.

Held: No diminished responsibility. While abnormality was established, he wasn’t suffering from an abnormality caused by an accepted cause.

Abnormality due to voluntary intoxication falls outside the specific causes accepted for Diminished Responsibility.

On the facts, continuing the planned robbery inferred that D snapped out of the impairment and is just using it as an excuse.

Question 42

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind -
Phua Han Chuan Jeffrey v PP [2016] 3 SLR 706

Answer 42

1. Abnormality of mind = result of a condition of “arrested or retarded development of mind”, “an inherent cause”, or had to had been “induced by disease of injury”.
2. Abnormality had substantially impaired mental responsibility for his acts and omissions in relation to the offence. This was a fact for the court, rather than the medical experts, to determine.

Question 43

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind Test -
Took Leng How v PP [2006]

Answer 43

Court must be satisfied that:

1. D was suffering from a condition that a reasonable man would consider abnormal, and
2. The abnormality was of such a degree as to impair D’s cognitive functions/self-control.

Question 44

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing -
Mimi Wong and Anor v PP [1972] 2 MLJ 75, SGCA

Answer 44

Ds charged with murder. D diagnosed with Encephalitis (affecting brain substance/cells). Expert evidence was that impairment of brain function will only come about during the frank stage. Medical evidence was that D was likely in incubation stage of Encephalitis on day of killing. Another doc diagnosed her with viral brain infection (benign lymphocytic Meningitis), agreed she may have been suffering from Encephalitis, but couldn’t positively say she was so suffering at the time of murder and, even if she were, would be incubation or prodromal stage.

Held: No DR defence because D failed to prove on balance of probabilities that she was suffering from abnormality of mind due to weak medical evidence. Even if she’d been suffering from abnormality of mind, it didn’t impair her brain.

Question 45

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing within parameters of Ex 7 -
Ong Pang Siew v PP [2011]

Answer 45

D killed stepdaughter. D’s rs with V’s mum deteriorated bc of her job as masseuse. On day of murder, he visited V and was seen chatting normally. Witnesses reported a sudden scream and seeing D banging V’s head against floor. D then called his brother to tell him of killing and his intention to suicide. When police arrived, D was squatting on V. D claimed major depressive disorder.

Held: DR established as D proved that he had abnormality of mind that operated during the time of killing.

Med evidence showed symptoms of major depressive disorder leading up to murder.

Non-med factors also showed D’s abnormal behaviour at the time of murder – very agitated when he banged V’s head, violent conduct inconsistent with the fact that he kept apologising to V for having no choice but to kill her, called employer after murder to apologise about not being able to continue working.

Conduct after murder also abnormal – laughing and crying at the same time, banged his head against wall while being interviewed.

“Abnormality of the mind” covers all aspects of mind’s activities, including transient or ephemeral manifestation of illnesses. But due to policy reasons, ‘mental disorders’ due to maladmin of alcohol, drugs or other like substances are excluded as such disorders not due to inherent causes. Emotions of rage, prejudices etc. were also excluded unless it is due to inherent causes or it triggers an internal derangement that culminated in a pathological condition.

Question 46

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing within parameters of Ex 7 -
Iskandar bin Rahmat v PP [2017] 1 SLR 505, CA

Answer 46

Defence of DR open to those “who, although not insane under the test in M’Naghten’s Case (1843), are regarded in the light of modern knowledge as insane in the medical sense and those who, not insane in either sense, are seriously abnormal, whether through mental deficiency, inherent causes, disease or injury”.

Main aim to “exclude the mere outburst of rage or jealousy from the ambit of the defence”.

Question 47

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing within parameters of Ex 7 -
Arrested or retarded development of the mind

Answer 47

1. Disease or injury includes organic disorders, functional disorders, longstanding substance abuse.
2. Uncertain if this applies to personality disorders (contrasting cases of Lim Chin Chong (rejected) and Sek Kim Wah (accepted).

Question 48

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing within parameters of Ex 7 -
Inherent cause

Answer 48

1. Must be natural to person’s mind and originating from within it.
2. Does not need to be from birth, and does not exclude external factors such as a traumatic event or other environmental influence that causes the inherent mental abnormality.
3. Inherent cause must be permanent in nature even though abnormality of mind need only be transitory.

Question 49

S 300 PC, Exception 7: Diminished Responsibility -
Abnormality of mind at time of killing within parameters of Ex 7 -
Intoxication as a cause of abnormality of mind

Answer 49

Muhammad bin Kadar: D committed murder. Claimed that he was under effects of Dormicum that made him so bold as to rob and murder.

Held: No DR as there was no abnormality.

D expert could only say that it was ‘conceivable’ that D was suffering from effects.

PP expert stated that Dormicum won’t lead to abnormality of mind unless there are psychiatric complications and an unusual quantity was taken – both not made out by D.

PP expert also testified that D was in control of mental faculties at the time of killing.

Question 50

S 300 PC, Exception 7: Diminished Responsibility -
Substantial Impairment of Mental Responsibility -
General Rule

Answer 50

Court can decide in a broad, common-sense way as no exact scientific measurement for the degree of difficulty which an abnormal person finds in controlling his impulses.

General rule in Byrne accepted in Chua Hwa Soon Jimmy v PP [1998]: Determination of whether impairment of mental responsibility was substantial is question of degree to be ascertained from all the evidence.
- On facts, D showed ability to restrain himself: during murder, D had presence of mind to tie V up when assaulted, to avoid electrocution by using phone cord instead of pulling plug, to look for keys to escape, to put on boots before leaving the scene, and to dispose of his bloodied clothes. Totality of evidence demonstrated mind was not substantially impaired.

** Substantial doesn’t mean total. Inability to exercise willpower to control physical acts, provided that it is due to abnormality of mind from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury is enough.

Question 51

S 300 PC, Exception 7: Diminished Responsibility -
Substantial Impairment of Mental Responsibility -
PP v Wang Zhijian [2012] SGHC 238

Answer 51

D killed V1, V2, V3. Claimed DR based on adjustment disorders. At trial, med evidence showed that there was abnormality of mind that operated at time of murder.

Held: When considering if DR exists, need to look at whether abnormality substantially impaired D at time of each murder.

• (a) and (b) satisfied acc to 2 experts, so judge’s role limited to evaluating whether this conclusion flew in the face of proven extrinsic facts.
• (c) satisfied for Zhang and Feng (killed in frenzy) but not Yang - sufficient interval for D to have substantially recovered mental faculties.

D could remembers many details very vividly and his long statement showed understanding of the nature and consequences of his action (e.g. scared when one tenant escaped), indicating intentional stabbing, satisfying s 300(a). D had presence of mind to bathe and prepare to escape to China.

Question 52

S 300 PC, Exception 7: Diminished Responsibility -
Rs with Unsoundness of Mind -
Difference in scope?

Answer 52

DR is wider than that of UoM. DR allows court to have discretion in sentencing murderers if mental illness had substantially reduced his criminal responsibility for the killing, but for UoM partial cognitive incapacity insufficient.

Question 53

S 300 PC, Exception 7: Diminished Responsibility -
Rs with Unsoundness of Mind -
PP v Chia Moh Heng [2003] SGHC 108

Answer 53

D has history of mental illness. At 1am, D woke up, went to brush his teeth, and then spied a knife next to the kitchen sink, took it and walked to housemate V. He then plunged the knife deep into V’s chest. Doc concluded D had schizoaffective disorder at time of act. PP argued that D habitually did not take the medical treatment prescribed to him, and therefore a sentence of life imprisonment ought to be imposed.

Held: [6] Whether or not s84 PC or Ex 7 applies in any case is a matter for the court to determine, and not for experts to determine conclusively.

s84 PC: Medical evidence is required to determine if D is of unsound mind in the medical sense.

Exception 7: Medical evidence is required to determine if he was labouring under an abnormality of mind arising from a retarded development of the mind, or any inherent causes, or induced by disease of injury.

Question 54

S 300 PC, Exception 7: Diminished Responsibility -
Rs with Unsoundness of Mind -
Strict requirement for UoM draws distinction between insanity and acts of insanity

Per Choo Han Teck J in Chia Moh Heng [2003].

Answer 54

3. [12] Difficulty in determining whether an insane person was capable of knowing the nature of his act, or that what he was doing what was either wrong or contrary to law. Relies heavily on psychiatrist. This is ironic - if D is certified insane, then how can his testimony about his perceptions be relied on? It’s also strange that courts choose to accept some and reject other aspects of his evidence.
4. [10] Also, D can only be sentenced to IMH instead of prison if s84 is satisfied.

Question 55

S 300 PC, Exception 7: Diminished Responsibility -

DR and other defences

Answer 55

DR:

1. Reduced liability
2. Substantial impairment of cognitive capacities
3. Covers cognitive and volitional capacities.
4. Factor is on mental abnormality
5. Factors are internal
6. Requires some degree of permanence
7. Mental disorders must be different from normal

UoM:

1. Excludes liability
2. Complete and total deprivation of cognitive capacities
3. Covers only cognitive capacities

Sane Automatism:

1. May be raised concurrently
2. Deals with whether the relevant acts are willed

Provocation:

1. Often raised together
2. Both involve a substantial impairment of volitional capacities to control conduct
3. Focus is on external events which provokes
4. Factors are external
5. Fleeting loss of self-control
6. Normal powers of self-control