Sentencing Principles and its Objectives

Some Sentencing Considerations:

1. Prescribed punishment
2. Factors pertaining to the offence (gravity? Nature?)
3. Number of charges
4. Sentences received by accomplices
5. Similar past cases
6. Factors pertaining to the offender (age? Illness?)
7. Others (Public interest?)

1960, Hart advocated hybrid model -> 3 questions:

(1) what is the ‘general justifying aim’ of the institution of punishment -> utilitarian -> reduction of crime for the benefit of society
(2) ‘distribution’ -> who should be punished? What type and quantum should be imposed? -> only the guilty should be punished,
extent of punishment limited to extent of wrongdoing -> question of consistency?

Retribution and desert

 Retribution sometimes means vengeance, sometimes probation.
 11(2) Halsbury’s Laws of England (4th Ed) para 1188 states: “The retributive element is intended to show public revulsion from
the offence and to punish the offender for his wrong conduct”
 The essence of the retributive principle is that the offender must pay for what he has done -> punishment restores the just order
of society which has been disrupted by the offender’s crime.
 Immanuel Kant: ‘Even if a civil society resolved to dissolve itself with the consent of all its members – as might be supposed in the
case of a people inhabiting an island resolving to separate and scatter themselves throughout the world – the last murderer lying
in prison ought to be executed before the resolution was carried out. This ought to be done in order that everyone may realize
the desert of his deeds, and that bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as
participators in the murder as a public violation of justice’
 Punishment as an institution inherently justified because of a person’s wrongdoing -> only guilty people should be punished
  Kant -> ‘eye for an eye’ philosophy -> more importantly, proportionality between harm caused and punishment imposed
 Criticism: punishment self-justifying even if it appears pointless
 Rebuttal: punishment achieves good in that it is a key component of justice / punishment of the guilty essential in marking
society’s censure or disapproval of the offender / punishment restores balance to society in the sense that the offender has taken
a degree of freedom that others have denied themselves

Deterrence
 General justifying aim of punishment: reduction of crime in the interests of society at large -> utilitarian philosophy of Bentham -
> every human act should be measured by its capacity to bring about a greater good
 Specific deterrence (deterrence of the offender): imposition of punishment that is sufficient to deter the individual from
behaving in a criminal way in the future.
o If the offender is a persistent offender, it would justify a longer term of imprisonment.
 General deterrence (deterrence of like-minded offenders): the imposition of punishment on one person will operate to send
a message to others that they should not act in the same way -> witnessing the enactment of punishment on others ->
discouraged from behaving in a similar manner. Basically, general deterrence aims at educating and deterring other like-minded
persons that such offences will not be tolerated.
o Where, however, an offense is a serious one and public interest mandates a sever sentence, or where the offense is
prevalent, considerations of a general deterrence must take precedence over those of specific or individual deterrence.
o Some examples of particular circumstances of an offence which might attract general deterrence include:
1. Prevalence of the offence
2. Group/Syndicate offences
3. Public disquiet
4. Difficulty of detention and/or apprehension
5. Offences involving several victims.
 Criticism: treating people as a means to an end -> ‘scapegoating’ -> problems of proportionality e.g. if shoplifting becomes
prevalent, would it be justifiable to impose harsher penalties for such offences (to reduce incidence) even if this results in
shoplifting being punished more severely than more serious offences against the person. Proportionality to the offence and the
culpability of the offender.
  Criticism: does it work? Unclear empirical evidence -> indications that it works best in the context of crimes based on planning
and calculation of risks by the offender -> less likely to have great impact in areas e.g. crimes of passion
 Criticism: You have to keep up the deterrence? But that would eventually affect the principle of proportionality  which will be
unjust.

Incapacitation / Prevention
 Embodies the idea of protective sentencing whereby dangerous or persistent offenders are incarcerated so as to make them
incapable of offending for long periods.
 It is more severe than deterrence.
 Corrective training and preventive detention embody the theory of incapacitation.
 An offender’s lack of remorse may dictate him to be incapacitated until he is fully rehabilitated or unlikely to reoffend.
 Goal: Crime prevention
 Based on idea that some people pose such a serious risk of further offending that they should be locked away from society or
otherwise incapacitated
 Assessment may be actuarial or clinical or both
 Criticism: empirical critique that we lack capacity to accurately predict future wrongdoing -> ‘false-positives’
 Criticism: theoretical critique that punishment should be based on past wrongdoings and not assessments of future risk

Rehabilitation:
 Treating the underlying causes of a person’s behaviour -> rehabilitate the person
 Consideration depends upon nature and circumstances of the offence and the personality and background of the offender
 Usually considered for:
o Offenders under the age of 21
o Mentally-disordered offenders (but not necessarily in all offences committed owing to psychiatric conditions)
 Main rehabilitation sentence is probation.
 Reformative training can function equally well, but it requires institutionalization
 Criticism: for criminal acts of a serious nature, rehabilitation may be too lenient.
 Criticism: proof of better effect over more traditional measures? Contradicts concept of personal responsibility for crime
Sentencing Options of the Singapore Courts:

1. Mandatory death penalty for several offences

a. Deterrence rationale ranks highly in consideration of drug offences, armed robberies, murder, kidnapping
2. Caning
a. As dictated by the Criminal Procedure Codes -> both individual and general deterrence
3. Imprisonment
a. For deterrence & retribution
b. District Courts may ordinarily impose a maximum prison term of ten years, while minimum term of Magistrate’s Court is 3
years.
c. High Court’s power limited by the statute under which the offence and the penalty have been prescribed.
4. Corrective Training
a. A separate imprisonment regime for a long period of imprisonment of between 5-14 years.
b. Imposed if offender needs to receive training of a corrective character for a substantial period of time, for his reform and
for the prevention of crime, in view of his previous convictions and imprisonment.
c. Offender must be > 18 years of age, a repeat offender who has been previously imprisoned + certified fit to undergo
corrective training.
d. Combination of rehabilitation and incapacitation
5. Preventive Detention
a. Imprisonment of an offender of at least 30 years of age, for a period of 7-20 years.
b. Purely incapacitative rationale -> ‘for the protection of the public’ -> used for repeat offenders who have an uncooperative
attitude towards authority or discipline -> considered by the court to pose a risk of further offending
6. Fines
a. Imposed as an alternate to prison sentence, or in addition to it.
b. If fine isn’t paid, offender may have to serve a sentence of imprisonment in default payment of the fine.
c. Rationalized on grounds of deterrence and retribution
7. Probation:
a. Offender is supervised by probation officer for a period between 6 months and 3 years
b. For an offense for which the sentence is not ‘fixed by law’.
 c. Courts will consider the nature and severity of offence, the age and character of the offender, degree of familial support
and supervision, and report by probation officer
d. Best suited for young offenders who have not committed previous offences and have not been engaged in serious crimes.
e. Offender may carry on with daily activities, but must not commit offences again, and must adhere to conditions attached
to probation (eg. Reporting to probation officer, curfews, performing community service)
8. Absolute and Conditional Discharges:
a. The court may grant an offender absolute discharge without imposition of any punishment or a conditional discharge for a
period not exceeding 12 months on condition he does not commit any further offences during this period
b. Executed where the nature and character of offender does not make it practical / suitable to inflict punishment and that a
probation order is not appropriate.
c. For minor offences where degree of culpability is low.
9. Community sentences:
a. For less serious offences.
b. Mandatory treatment orders:
- Rehabilitation/treatment of people who are mentally unwell
- Requires relevant psychiatric reports -> condition must have contributed to the offence
c. Day reporting orders:
- Court must be satisfied that person is susceptible to counseling & rehabilitation
- To report to a reporting centre for supervision and to undergo counseling and rehabilitation on a regular basis
for a period of 3-12 months
d. Community work orders:
- Based on reparation & punishment
- For the offender to develop a ‘sense of responsibility for, and an acknowledge of, the harm he has done’
- To perform supervised community work associated with the nature of his offence for a period of time
e. Community service orders:
- > 16 years of age
- Perform supervised community service work (ie. General cleaning, repair) under a community service officer
- Of more general application than community work orders -> focus on rehabilitation and reparation
f. Short detention orders:
- Courts deliver short, sharp shock to offenders -> community sentence which combines a short period in custody
with a period served in community.
Name of Facts: Judgment: Sentencing Sentencing Considerations: Conclusion / Application:
Case: Principles:
PP v Kwong  Respondent pleaded  Respondent 1. Deterrence  Respondent’s psychiatric 1. The need to consider all
Kok Hing guilty to attempting sentenced to one (Specific and condition (depression) the factors in the case to
[2008] 2 to commit culpable year’s General) weighed in favor of a shorter come up with an
SLR(R) 684 homicide (pursuant imprisonment 2. Rehabilitation sentence  HOWEVER, the appropriate sentence to
to section 308 of the  Prosecution 3. Retribution (to a mental condition was neither a protect the fabric of
Court of Penal Code (Cap 224, appealed  certain extent) serious nor permanent one, society through the
Appeal, 1985 Rev Ed)) by Increased to 3 with right treatment, risk of defense of communitarian
Singapore pushing the victim year’s relapse was low values such as the
into the path of an imprisonment.  Need for specific deterrence to preservation of morality,
oncoming train at a dissuade respondent from the protection of a person,
MRT station contemplating another assault the preservation of public
 Victim survived on the victim peace and order, respect
 Wrt to Rehabilitation, there for institutions and the
was no suggestion that he preservation of the state’s
could not be similarly wider interest (PP v Law
rehabilitated in prison. Aik Meng [2007] 2 SLR (R)
 Need for general deterrence 814 at [24] – [29])
and consideration of public 2. “Defendant’s act was
interest: To denounce the definitely not at the lower
conduct of the offender to the end of the scale, and
public and to create a deserved more than a
awareness in the public and simple fine. In fact,
dissuade potential offenders. pushing a person in front
 Court made allowance for the of an approaching train
fact that the respondent had arguably ranks among the
been released from prison worst conceivable conduct
custody before the sentence for an attempt to commit
 was enhanced. culpable homicide…”
PP v Tan Fook  Respondent (‘Tan’)  Initial sentence 1. Retribution (and  General deterrence is applied  The sentence must not
Sum [1999] 1 pleaded guilty to was a fine of public interest) in light of publicity given to the only be within the ambit of
SLR (R) 1022 charge of wilfully $2000 or in 2. Deterrence case, both local and overseas, + the punishable section, but
endangering the default four weeks Singapore’s position as the it must also be assessed
High Court, safety of an aircraft imprisonment premier air hub of the region and passed in accordance
Singapore and that of 237  Prosecution  if sentencing norm is not set, with established judicial
passengers and 21 appealed and was it may increase incidences of principles
crew members on allowed to such cases  The application of the
board by lighting a increase the  Gravity of offense is great given ‘established judicial
fire in the aircraft’s sentence by 12 not only was the safety of the principals’ requires the
toilet during the month’s passengers and crew was court, where the
flight imprisonment. imperiled but also that of the Legislature’s prescriptions
 The appellant had aircraft. as to punishment are
set fire to some  Consideration of retribution + open-ended, to balance the
tissues in the wash public interest in the sense that diverse and often
basin, as he was the public has a legitimate competing policy
annoyed with the expectation to be protected considerations.
crew upon being told from such acts.  The public policy
to leave the business  Not correct to say respondent consideration often means
class section of the committed the act impulsively; the protection of the
plane as he was there was a deliberate and public. It varies in
flying on an economy intentional act of retaliation proportion to the
class ticket. calculated. prevalence of the offence
 Not correct to travialise that in question. Sometimes it
the fire was started in the wash can mean quelling the
basin and hence was not life- sense of outrage felt by the
threatening  managed to set community.
off fire alarm  Main factor in sentencing
  There was a degree of harm to is determining whether a
victims  Psychological or number of options can be
mental harm. combined together
 Respondent pleaded leniency
as he had two parents, a wife
who is not working and 2
children  held little weight in
court as circumstances must be
exceptional before
consideration is given.
 Respondent had no previous
convictions  Might have been
a better mitigating factor if
there were positive evidence to
the character of respondent
rather than negative inference
from the absence of allegations
of other convictions.
PP v Vitria  Respondent, a  Sentenced to 10 1. Retribution  View expressed by High Court  Previous Section 304(a)
Depsi domestic worker, years 2. Deterrence in PP v Purwanti Parli [2004] left courts with limited
Wahyuni pleaded guilty of imprisonment by SGHC 224 supported case: “The discretion to calibrate
(Alias Fitriah) killing her 87-year High Court Judge sanctity of hearth and home sentences according to the
[2013] 1 SLR old employer.  Prosecution should be respected and culpability of the offender;
699  Incident occurred a appealed and preserved in such a manner difficult to apply
mere 5 days into sentence was that both household members proportionality principle
Court of Vitria’s employment enhanced to 20 and domestic workers enjoy (as there was a huge
Appeal, with the deceased years. secure expectations and total disparity between a 10
Singapore  Deceased chided the peace of mind that physical year and life imprisonment
respondent for her violence in any form is alien term)
 lapses in household and wholly impermissible” Appellate court should not
chores (had  It is in the public interest disturb the sentence
regularly done so) demands, because of the imposed by the trial court
 Thought of killing peculiar reliance on foreign unless:
the deceased domestic workers, that there is 1. Trial judge has erred
recurred in a safe domestic setting. with respect to the
respondent’s mind  Only mitigating factor was proper factual basis for
 Waited for deceased Vitria’s young age sentencing
to fall asleep and  This was a case of 2. Trial judge failed to
tried to smother her premeditated killing  there appreciate the
with a pillow over was a time difference between materials placed before
her face. deceased scolding and him
 In midst of struggle, deliberate action to kill the 3. Sentence is wrong in
ended up strangling deceased; waited for deceased principle
the deceased. to be in a defenseless and 4. Sentence is manifestly
 Respondent was 16 vulnerable moment (sleeping), excessive or
years and 11 months which is unlike spontaneous inadequate.
old at time of offense. response to provocation. Punishment must be
 Vitria did not suffer from any proportional to gravity of
mental illness or abnormality offence
of mind Punishment must give
 No evidence that the abuse sufficient consideration to
suffered by Vitria was physical the need for deterrence in
in nature the interest of the public –
as in this case, many
families engage domestic
workers
Public Respondent, a 16 year Placed on probation Rehabilitation and Age: “Rehabilitation is the Offenders of certain categories
Prosecutor v old male, joined N and F for 18 months with Deterrence dominant consideration where the of offences, especially those
Mohammad for a joyride in N’s car. additional conditions, offender is 21 years and below. inherently involving
Al-Ansari Bin Picked up the victim, a after appeal, Young offenders are in their gratuitous violence and/or the
Basri [2008] foreign sex worker, and sentenced to formative years and chances of preying upon of vulnerable
1 SLR(R) 449 subsequently N and F reformative training. reforming them into law-abiding victim, must be firmly dealt
robbed and assaulted adults are better.” – Yong Pung with, in conjunction with any
the victim in the car. The How CJ in PP v Mok Ping Wuen rehabilitative efforts that have
respondent participated Maurice [1998] 3 SLR(R) been found to be appropriate.
in the offence by
maintaining the car Probation vs ReformativeDue to the seriousness and
engine, pushing the Training 1 : Deterrence and nature of the offence
victim out of the car, rehabilitation are existent in both,
(robbery), the respondent
throwing one of her however, there is a higher level of
should expect to face a period
shoes out of the car to deterrence in that of reformative of incarceration, which is
avoid detection and training due to the attendant more apparent in reformative
assisting to count the element of incarceration. training, wherein the offender
stolen money. is detained in a structured
Seriousness of offence: Although environment.
Respondent pleaded the respondent did not engineer
guilty to one charge the plan, he had actively Despite the relevance and
under section 392 read participated in the robbery, and, applicability of rehabilitative
with section 34 of the most damning, had blithely turned efforts, one must not preclude
Penal Code (Cap 224, a blind eye to the very apparent the general necessity of
1985 Rev Ed) for having distress of the victim. deterrence as to serious
committed robbery with offences.
his accomplices. Another
charge, of intentionally

1 See SCM page 68-69 for details on sentences, namely, Probation and Reformative Training
 using criminal force on
the victim, under section
352 of the Penal Code,
was taken into
consideration for the
purposes of sentencing.
Public Respondent, a 17 year Placed on probation, Deterrence and Seriousness of offence: Trafficking, Nothing exceptional about the
Prosecutor v old male, was found in after appeal, Rehabilitation consumption, cultivation and facts presented which
Adith S/O possession of various sentenced to possession of prohibited drugs suggested that the
Sarvotham controlled drugs, reformative training. would ordinarily have warranted a respondent’s capacity for
[2014] SGHC including 2 cannabis sentence of reformative training. rehabilitation was so
103 plants. He was released demonstrably high that a term
on bail but a few months Lack of mitigating circumstances: of probation would be
later was found to be in Nothing remarkable or exceptional sufficient.
possession of about the level of familial support
diamorphine. or degree of remorsefulness. In District judge placed
addition, the respondent was not a considerable emphasis on the
The respondent pleaded first-time offender, nor did he start fact that when a court deals
guilty to three charges taking drugs recently. with a young offender, the
under the Misuse of paramount consideration is
Drugs Act. rehabilitation, however, this
may be displaced where
serious offences are involved.
Aside from this, it was
erroneous for the District
Judge to regard a sentence of a
term of reformative training
as being inconsistent with the
objective of rehabilitation. As
 compared to probation,
reformative training functions
‘equally well to advance the
dominant principle of
rehabilitation.’
Mohamad The appellant, in order Imprisonment of 3 Deterrence and Requirements of law: As set out in The fine was maintained as it
Fairuuz bin to repay his growing months and a fine of Rehabilitation section 5 of the MLA, the minimum was the minimum fine that
Saleh v Public debts (amounting to $30,000, after appeal, punishment for the offence had to be imposed by law in
Prosecutor approximately $23,000) imprisonment of 6 committed by the appellant relation to the offence.
[2014] SGHC accumulated from weeks and fine of warranted a $30,000 fine and an
264 borrowing from $30,000. imprisonment term (though not Although deterrence remains
unlicensed exceeding 4 years). of vital interest in offences of
moneylenders, agreed to this sort, on the whole, the
assist an unlicensed Medical condition: Appellant had appellant had excellent
moneylender. He set up submitted two medical reports prospects of rehabilitation.
various accounts and that opined he was unfit for prison. The appellant had been and
procured a total of 977 could continue to be a useful
deposits and 592 Mitigating circumstances: and contributing member of
withdrawals involving a Appellant had stopped his illegal society in his occupation, and
sum of $236,873 over a activities approximately three finally, due to the medical
period of almost seven weeks before he was apprehended, reports, mitigating
months from early Jan in addition, he had testified that he circumstances and generally
2012 to 27 Jul 2012. He had sought help from the police good character of the
was arrested on 15 Aug when his problems in dealing with appellant, the imprisonment
2012. the moneylenders had arisen, but term was reduced.
to no avail.
The appellant pleaded
guilty to a charge under Character of Appellant: Appellant
section 5(1) read with was in gainful employment and
 subsection 14(1)(b)(i) had no related antecedents.
and 14(1A)(a) of the
Moneylenders Act (Cap
188, 2010 Rev Ed). A
similar charge involving
a separate bank account
was taken into
consideration for the
purposes of sentencing.
Kalaiarasi The appellant was Imprisonment of 8 Deterrence Seriousness of offence: Courts take Community Based Sentencing
D/O adjudicated a bankrupt weeks, after appeal, a serious view towards bankruptcy (CBS) was to allow for more
Marimuthu on 7 Jan 2000 together conditional discharge offences because the bankruptcy flexibility in balancing the
Innasimuthu with her husband. She for a period of 12 regime requires bankrupts to various sentencing principles
v Public did not personally months. comply with various provisions for in individual cases, and that
Prosecutor prepare the Income and its smooth operation. custodial sentences, caning or
[2012] 2 SLR Expenditure Statements a fine may not be appropriate
774 that were required to be Oversight on the part of the for all offences and/or for all
filed but relied upon her prosecuting authorities: offenders.
husband to do so prior Inordinate delay was occasioned
to appending her not by the appellant; the offences As the appellant was of
signature on them. involved simple non-compliance demonstrably good character,
with the statutory requirements of and the circumstances in
After 2003, the appellant filing I and E statements. which she committed the
failed to continue to offences (her belief that her
submit her statements Character of Appellant: The estranged husband would file
because she incorrectly appellant was in gainful returns on her behalf), it is
assumed that her employment, was of demonstrably more probable that her
husband, with whom she good character, and had a lack of offending conduct was one
had become estranged, antecedents. due to inadvertent oversight
would submit the rather than a deliberate
relevant statements on infraction. As such, the
her behalf. Just two sentence was reduced.
reminders to file her I
and E Statements were
thereafter sent to the
appellant, on 17 May
2003 and 7 July 2010.
On 11 October 2010, the
Insolvency and Public
Trustee’s Office wrote to
the appellant informing
her that her case was
being reviewed for
possible discharge from
bankruptcy.

In the same letter, the

IPTO proposed that the
appellant pay a sum of
$5,000 to expedite her
discharge from
bankruptcy. The
appellant offered a sum
of $1,000 as she was
unable to raise the
$5,000. Shortly after,
without any apparent
attempt to elicit her
 reasons for failing to file
her relevant I and E
Statements for such a
substantial period
and/or why she was
unable to raise more
money to discharge her
bankruptcy, 30 charges
under section 82(1)(a)
of the BA were abruptly
brought against the
appellant.

The appellant pleaded

guilty to three charges
under section 82(1)(a)
of the BA for failing to
meet her obligations
under the said provision.
An additional 27 charges
under the same
provision were taken
into consideration for
the purpose of
sentencing.
PP v Law Aik  Respondent played a  Trial judge • Deterrence (both • Crime was premeditated, which • Public interest is of foremost
Meng key role in a sentenced him to specific and general) requires a harsh punishment to consideration when deciding
Malaysian criminal 52 months of • Retribution change the decision calculus of on an appropriate sentence
syndicate whose imprisonment, but potential offenders  hence • Factors that prompt a
 objective was to it was extended on making deterrence a relevant deterrent sentence include:
fraudulently appeal consideration nature/impact of crime;
withdraw money • General deterrence is important degree of premeditation
from ATMs in due to nature of crime – failure to • Need to strike a balance
Singapore New sentence: impose severe punishment would between proportionality and
• 849 bank accounts • 42 months’ undermine public confidence in deterrence – i.e. Courts should
were affected, and no imprisonment for the security of Singapore’s ATM not impose excessively
restitution was made each of the two network punitive sentences in an
charges under attempt to effect deterrence
Computer Misuse Act • Court also stressed that
• 15 months’ “deterrence must always be
imprisonment for tempered by proportionality” to
each of the 4 theft ensure that the sentence is “just”
cases
PP v Goh Lee  Respondent, a • Dismissed PP’s • Rehabilitation • Specific deterrence is not Proposed framework for
Yin and kleptomaniac, was appeal and imposed significant because kleptomania is dealing with kleptomaniacs:
Another serving probation for fresh probation term an impulse control disorder  • Offender must be diagnosed
previous theft of 18 months limited specific deterrence with kleptomania
offences when she because her future commission of • Value of items stolen does
was caught offence is not primarily deterred NOT add to culpability
shoplifting • General deterrence also not • Reoffending does NOT call
significant because of the for more severe sentence as
miniscule incidence of long as it can be proven that
kleptomania offender has tried to adhere to
• Rehabilitation is most important treatment program

HOWEVER:
• Deterrent sentence can be
imposed if offender shows
deliberate disregard/lack of
commitment to treatment
Actus Reus

Crimes Involving Conduct

 These are crimes where the physical element consists of conduct without the need for it to be performed under particular
circumstances or to have produced a specified result.
 Positive acts & Omissions -> punishable if have caused, intended to cause, have been known to be likely to cause a certain evil
effect -> @omission, failure to do an act required by law
 Illegal -> offence, prohibited by law, furnishes ground for civil action

Crimes Involving Conduct and Circumstances or Results

 These crimes comprise not only conduct but also the circumstances accompanying the conduct or the result of the conduct.
 Conduct criminalized only if they cause a proscribed result (result crimes)

Crimes Involving a State of Affairs

 Definition: These are crimes which do not explicitly require the prosecution to prove a conduct element, be it positive act or
omission. Instead, criminal liability is based on the accused’s status or relationship to a specified state of affairs, which may
comprise a circumstance or an event.
 Situational liability -> limited to individuals who have control of a proscribed situation
 Implicit conduct element
 Indirectly imposing liability for the accused’s failure to exercise the control he/she had over the situation

Voluntariness
 Where physical elements of crime include conduct, such conduct must be voluntary
 Ability to control conduct -> willed human behaviour
 Mental component -> bare intent -> fault element which is intention to produce a certain result e.g. harm
 Involuntary omission when failure to perform legally required act because incapable of performing act
Causation
 Result crimes -> require connection between accused’s conduct and the proscribed harm for criminal liability to be established
 Necessary/indispensable harm -> factual causation
 Imputable/legal causation -> moral or value judgment of whether conduct should be attributed with blame for causing
proscribed harm
 Intervening act
 Reasonable foresight test
 Omissions -> causal effect is such that permits other causal factors to produce proscribed harm
1. Omission must have been illegal (s. 43)
2. Omission must have caused proscribed harm

Crimes without a Subjective Fault Element

Only require proof of specified physical elements, with no subjective fault element needing to be proved for criminal liability – crimes of
negligence & strict liability.

Crimes of Negligence
 Evaluation of negligent conduct is by reference to the hypothetical reasonable person -> subjective mental state is immaterial ->
only bare intent required -> in order to show voluntariness

Crimes of Strict Liability

 Statutorily created crimes -> defined so that only proof of physical elements specified for the crime require
 Only mental element required is bare intent to perform conduct so as to make it voluntary
 Minor crimes -> serve regulatory function
 Actus Reus: ‘guilty act’ / Physical Element
 Voluntary, wilful, wrongful, deliberate act, prohibited by the law
 A.R. does not cover all non-mental aspects of crime:
1. Omissions
2. Circumstances
 A.R. is central aspect of crime -> without A.R. there is no crime
 Onus lies on the prosecution to prove A.R., that the act was conscious and voluntary -> non-insane automatism is not a defence ->
it’s an attempt to derail the case

Automatism: ‘refers to a state of defective consciousness in which a person performs unwilled acts. It may be caused by concussion,
sleep disorders, acute stress, epilepsy and other ailments like hypoglycaemia.’ There are 2 types of automatism, insane and non-insane
automatism. Insane automatism is where the primary cause of the abnormality is internal to the accused and prone to recur. The
condition will be classified as a disease of the mind. It will then fall within the M’Naghtn Rules. Non-insane automatism occurs where the
abnormality is caused by a factor external to the accused e.g. a blow to the head, medication, alcohol or drugs.’ [PP v. Kenneth Fook]

Police v. Bannin: ‘Public policy underlies the distinction drawn between sane and insane automatism. The principal consideration is
that if a person is so predisposed to dissociation that he may lose control of his conduct in circumstances which other members of the
community would be able to cope with, he is likely to be a continuing danger to the community. There is assumed to be a high risk that
history will be repeated when he is presented with the same circumstances in the future. As the problem is essentially ‘internal’ to the
accused, some form of treatment or oversight is then warranted to protect the community notwithstanding the absence of fault. The
contrary is true if the abnormality had an extraordinary cause such as a blow, ingestion of a harmful substance of a personal catastrophe
beyond the normal lot of mankind. Since the external event is unlikely to be repeated, there is little risk that the harmful behaviour will
be repeated.’

Case Facts Issues Judgment

Bratty v AG for The deceased had asked the appellant to driver her in his car.
Northern Ireland The appellant stated that he had then experienced a ‘terrible
[1961] feeling’ and ‘sort of a blackness’. He threw the deceased into
the backseat of the car, took off one of her stockings and
House of Lords strangled her to death. The appellant later described the
Voluntariness. Court defined Automatism as connoting the state of a person who, though capable
of action, “is not conscious of what he is doing… it means unconscious involuntary
action, and it is a defence because the mind does not go with what is being done”.
The defence must “be able to point to some evidence, whether it emanates from
 feeling as a feeling that he wanted to put his arms around the
deceased.
The appellant was convicted of murder.
Defence contended that the appellant could be found guilty
only if the prosecution had proved that the appellant’s acts
were conscious and voluntary, and that there was evidence
proving that the appellant’s acts were not conscious and
voluntary.
Queen v Falconer The accused was convicted of the wilful murder of her
[1990] husband. The deceased was killed when the accused fired a
shotgun at the deceased at close quarters. She gave evidence
High Court of at her trial of the difficulties she had had with her husband
Australia. during their marriage. They had separated when the accused
found out that the father had dealt with her daughters sexually
when they were young.
On the day of the incident, the accused stated that the
deceased sexually assaulted her, taunted and grabbed her, to
which she said she “remembered nothing until she found
herself on the floor with her shotgun by her and her husband
dead on the floor nearby”
PP v. Kenneth The accused was charged with murder under s302 of the PC.
Fook [2002] He had walked towards the car of the deceased, knocked at the
windscreen of window of the car and asked the deceased to
Hgh Court, come out. The deceased had refused and the accused then shot
their own or the Crown’s witnesses, from which the jury could reasonably infer
that the accused acted in a state of automatisn”
“The requirement that it should be a voluntary act is essential, not only in a
murder case, but also in every criminal case. No act is punishable if it is
done involuntarily: and an involuntary act in this context – some people
nowadays prefer to speak of it as ‘automatism’ – means an act which is done
by the muscles without any control by the mind such as a spasm, a reflex
action or a convulsion; or an act done by a person who is not conscious of
what he is doing such as act done whilst suffering from a concussion or
whist sleepwalking”.
When the only cause that is assigned for it is a disease of the mind, then it is only
necessary to leave insanity to the jury and not automatism.
Court was of the opinion that if the act of the appellant was an involuntary act, as
the defence suggested, the evidence attributed it solely to a disease of the mind
and the only defence open was the defence of insanity.
Voluntariness. Court stated that the accused “is criminally responsible for discharging the gun
only if that act were ‘willed’, that is, if she discharged the gun ‘of her own free will
and by decision’ or by ‘the making of a choice to do’ so. The notion of ‘will’
imports a consciousness in the actor of the nature of the act and a choice to do an
act of that nature”.
“the requirement of a willed act imports no intention or desire to effect a
result by doing of the act, but merely a choice, consciously made, to do an
act of the kind done. In this case, a choice to discharge the gun”.
Automatism. ‘The crux of the defence case is that at the time of commission of the offence, the
accused was undergoing a hypoglycemic attack and therefore in a state of
automatism.
Malaysia. at her.
The defence was one of automatism. The accused also pleaded
the defence of intoxication.
Abdul Razak bin The appellant was charged with murder of his wife. The
Dalek v PP [2011] deceased was found to have died from a fatal wound to her
throat which had been slit. The death occurred in the kitchen
Court of Appeal, of the appellant’s sister in law’s house.
Malaysia.
Both the appellant and deceased were arguing. A witness then
saw the deceased barely walking and subsequently collapsing
Automatism “refers to a state of defective consciousness in which a person
performs unwilled acts. It may be caused by concussion, sleep disorders,
acute stress, epilepsy and other ailments like hypoglycemia.”
There are 2 types of automatism, insane and non-insane automatism.
“Insane automatism is where the primary cause of the abnormality is
internal to the accused and prone to recur. The condition will be classified
as a disease of the mind.” It will then fall within the M’Naghtn Rules.
“Non-insane automatism occurs where the abnormality is caused by a factor
external to the accused e.g. a blow to the head, medication, alcohol or
drugs.”
“the defence of automatism can be reduced to the question whether at the
material time the accused had the mental capacity to form the particular
mental ingredients of the crime with which he is charged.”
“Where the condition is a disease of the mind…under section 84 of the Code”, the
onus to prove this is on the accused to establish the defence. “If the condition
does not produce a disease of the mind, the onus will be upon the prosecution to
exclude the alleged incapacity”.
The court found that on the facts of the case, the evidence showed that the cause
of the accused’s “alleged low blood sugar and the resultant hypoglycaemic attack
was not known. It was not caused by any medication and there is no evidence of it
being caused by any external factor. It was prone to recur.” The court therefore
found that the abnormality of the accused must be classified as insane
automatism. The burden therefore fell on the accused to establish his condition
of mind at the time of the offence.
Automatism. Court found no evidence that the appellant hit his head against the kitchen door
before he attacked the deceased. Hence, the counsel’s submission that the
appellant must have hit his head against the wall before the incident was “too
farfetched and a pure speculation”.
In court was of the opinion that “the appellant lost his mind and memory… not
because of any concussion but because he could not accept Rozita telling him that
 on the floor. The appellant had blood on his neck and was
hitting his head against the wall. The appellant stabbed his
own neck and collapsed to the floor when the knife was
attempted to be taken away from him.
The defence of provocation was put up.
High Court rejected the defence and convicted him.
Appellant appealed, saying he was suffering from non-insane
automatism, under s84.
they were no longer husband and wife” as it was clear that a moment later the
appellant regained his memory and was master of his mind and in complete
control of what he was doing.
“in the criminal case as act is not to be regarded as an involuntarily act
simply because the doer does not remember, “loss of memory afterwards is
never a defence in itself, so long as he was conscious at the time…nor is an
act to be regarded as an involuntary act simple because the doer could not
control his impulse to do it”.
Therefore, on the evidence, court was satisfied that the prosecution had
disproved the alleged incapacity of the appellant beyond reasonable doubt.

Appeal dismissed.
Regina v. Quick The defendants were jointly charged with assaulting a man. Whether a The court considered whether a mental condition arising from hypoglycaemia
[1973] person who amounted to a disease of the mind. The court needed to decide what the law
Both defendants pleaded not guilty to the charges and Quick commits a meant by the words ‘disease of the mind’. It decided that the fundamental concept
English Court of called medical evidence to show that at the material time he criminal act is of a malfunctioning of the mind caused by disease. A malfunctioning of the
Appeal, Queen’s had an abnormally low amount of sugar in his blood and was while under the mind of transitory effect caused by application to the body of some external
Bench. suffering from hypoglycaemia and submitted that evidence effects of factor such as violence, drugs, alcohol cannot fairly be said to be due to disease.
established that he had acted unconsciously as an automaton. hypoglycaemia Such malfunctioning, unlike that caused by a defect of reason from disease of the
can raise a mind, will not always relieve an accused from criminal responsibility.
Quick appealed on the grounds that (1) the judge was wrong defence of
in law in ruling that if the jury accepted the medical evidence, automatism, as “A self-induced incapacity will not excuse, nor will one which could have
the only verdict open to them was ‘not guilty by reason of the defendants been reasonably foreseen as a result of either doing, or omitting to do
insanity’; contending that if diabetic was in a temporary and submitted was something, as, for example, taking alcohol against medical advice after
reversible condition of hypoglycaemia, he was not, while in possible, or using certain prescribed drugs or failing to have regular meals while taking
that condition, suffering from any defect of reason from whether such a insulin.”
disease of mind; and (2) in ruling that the evidence could not person must rely
support a defence of automatism on a defense of The court found that Quick’s alleged mental condition, if it ever existed, was not
insanity if he caused by his diabetes but by his use of the insulin prescribed by his doctor. Such
wishes to relieve malfunctioning of his mind as there was, was caused by an external factor and not
himself of by a bodily disorder in the nature of a disease which disturbed the working of his
responsibility for mind. Quick was entitled to have his defence of automatism left to the jury.
his acts

Re Attorney The respondent, a heavy goods vehicle driver, drove his
General’s vehicle on a motor hard shoulder, and collided with a
Reference (No. 2 of stationary white van with flashing hazard lights, crushing two
1992) [1994] persons standing between the van and a recovery vehicle
which had rotating lights. He was tried on counts of causing
English Court of death by reckless driving. His defence was that he was driving
Appeal. in a state of automatism referred to as ‘driving without
awareness’, a trance-like state resulting from repetitive
stimuli received as a result of driving long journeys on
straight, flat, featureless motorways. Medical evidence for the
defence was that the focal point of forward vision of a person
when so driving shortened to just beyond the windscreen, but
that he could steer within the lines and would usually be
roused to full awareness by a major stimulus.
The defence of automatism was left to the jury and the
respondent was acquitted.
Conviction quashed. Appeal allowed.
Automatism. Court considered the report by Prof Brown, a chartered psychologist who “said
that this condition can occur insidiously without the driver being aware it is
happening. However, he also said that usually a driver would ‘snap out’ of the
condition in response to major stimuli appearing in front of him. Thus flashing
lights would usually cause him to regain full awareness. Prof Brown was unable
to explain why that had not happened in the present case”.
Court went to consider “the extent of the loss of control” which was crucial in this
case and reasoned that “the condition showed that it amounts only to reduced or
imperfect awareness. There remains the ability to steer the vehicle straight.
There is also usually a capacity to react to stimuli appearing in the road ahead. In
the present case the respondent admitted he had actually seen the flashing lights
a quarter of a mile from the scene.”
Court went to consider Reg v Burgess that “where the defence of automatism is
raised by the defendant, two questions fall to be decided by the judge before the
defence can be left to the jury. The first is whether a proper evidential
foundation for the defence of automatism has been laid. The second is
whether the evidence shows the case to be one of insane automatism, that is
to say, a case which falls within the M’Naghten Rules, or one of non-insane
automatism”
In this case, the ‘proper evidential foundation’ was not laid out as the defence of
automatism “requires there was a total destruction of voluntary control on
the defendant’s part. Impaired, reduced or partial control is not enough”.
PP v Yong Heng The respondent was charged with committed an offence
Yew [1996] under s 18(1)(a) of the Environmental Public Health Act by
throwing a cigarette butt onto the floor. The trail judge
SGHC. acquitted Yong on the basis that the prosecution had failed to
show any intention on Yong’s part to walk away without
properly disposing of the cigarette butt.
The prosecution appealed.
Sinnasamy v. PP This was an appeal against the conviction of the appellant for
[1956] the murder of his daughter aged 21 months. The facts are not
in dispute, nor is there any material discrepancy between the
Malaysian Court of evidence for the prosecution and the evidence of the accused.
Appeal. There is no discoverable motive for the killing of the child. The
appellant, though he remembered in considerable detail the
events and circumstances immediately preceding and
immediately following the act, maintained that he had no
recollection of the act itself or why he did it. A specialist in
mental disorders testified that the appellant is an epileptic.
The defence was that the appellant did the act in a state of
automatism, which is a temporary loss of consciousness
associated with some types of epilepsy. The onus was on the
appellant to set up this defence.
Automatism. The main area of factual dispute was the length of time which elapsed between
the throwing of the cigarette and being accosted.
Court considered the nature of s18(1)(a) which “requires the presence of a
mental element, namely, the basic intent to commit the physical act of depositing,
dropping, placing or throwing refuse.”, however, it did not require that the
accused “intended to leave the refuse permanently where it had fallen” because it
“appears to bear no relation to the actus reus of a section 18(1)(a) offence. It is
also difficult to see how the Prosecution could ever prove such an intention
beyond reasonable doubt…plainly, the requirement of an intention to walk away
without properly disposing of the refuse thrown away leads to inconsistent, even
absurd, results”.
As such, the offence is that of a ‘strict liability’ offence, in which “it refers to an
offence where no blameworthy mental element need be shown… Once the
act of throwing down the cigarette butt was shown to be a deliberate one,
the prosecution need not go on to show the presence of some blameworthy
state of mind”.
Appeal allowed.
Whether the The court found that the trial judge was in holding that the appellant had killed
appellant had his child on an irresistible impulse.
succeeded in
bringing himself The court considered the doctor’s evidence which although accepted that the
within the appellant was an epileptic and that automatism is associated with some cases of
exception set out epilepsy, stated that a person acting under a state of automatism will not be
in s84 of the PC conscious at that time. The court considered the appellant’s ability to recall the
(insanity) events preceding and after the killing and found it difficult to see how the
assessors could reasonably have found that the appellant was in a state of
unconsciousness when he did the act.
The court thus found that the defence of automatism failed.
Queen v Instan Accused was tried on a charge of feloniously killing the
[1893] deceased. The accused was the niece of the deceased and had
been living with and had been maintained by the deceased.
English Court of The deceased was possessed of a small life income.
Appeal.
The deceased suffered from gangrene in the leg, which
rendered her during the last ten days of her life quite unable
to attend to herself or to move about or do anything to
procure assistance. No one but the accused had previous to
the death any knowledge of the condition. The accused
continued to live in the house at the cost of the deceased, and
took in the food supplied by the tradespeople but did not
appear to have given any to the deceased, and she certainly
did not give or procure any medical or nursing attendance to
or for her, or give notice to any neighbor of her condition or
wants, although she had abundant opportunity and occasion
to do so.
The cause of death was exhaustion caused by the gangrene,
but substantially accelerated by neglect, want of food, of
nursing, and of medical attendance during several days
previous to the death.
Accused appealed against conviction.
Illegal Court was of the opinion that this convicted must be affirmed.
Omissions.
“It would not be correct to say that every moral obligation involves a legal
duty; but every legal duty is founded on a moral obligation. A legal common
law duty is nothing else that the enforcing by law of that which is a moral
obligation with legal enforcement.”.
In this case, there can be no question that “it was the clear duty of the prisoner to
impart to the deceased so much as was for the purpose of the maintenance of
herself and the prisoner…there was, therefore, a common law duty imposed upon
the prisoner which she did not discharge”.
“The prisoner was under a moral obligation to the deceased from which
arose a legal duty towards her; that legal duty the prisoner has wilfully and
deliberately left unperformed” – this was due to the fiduciary relationship
between the accused and the deceased.
Conviction affirmed.
R v Miller [1983] The defendant, a vagrant, went to live in an unoccupied house.
After returning there one night he lit a cigarette and lay down
House of Lords. on a mattress in the room he was using. He fell asleep before
he had finished the cigarette, and it dropped onto the
mattress, setting it alight. He woke later wen the mattress was
smoldering but did nothing to extinguish it and merely moved
to another room. The house caught fire and damage to the
value of $800 was caused.
The defendant was charged with arson, contrary to section
1(1) and (3) of the Criminal Damage Act 1971.
COA dismissed the appeal.
Lim Poh Eng v PP The appellant, a practitioner of traditional Chinese medicine,
[1999] was convicted under section 338 of the PC for having caused
grievous hurt to one H by negligently failing to attend to her
SGHC complaints adequately after administering colonic washout
treatments and failing to refer her to the hospital for
treatment. These omissions gravely endangered H’s lfe and
she lost her rectum.
Illegal Omission. Court considered the definition of arson as a ‘result-crime’ and that “the crime is
not complete unless and until the conduct of the accused has caused property
belonging to another to be destroyed or damaged”.
Court reasoned that since “arson is a result-crime the period may be
considerable, and during it the conduct of the accused that is causative of the
result may consist not only of his doing physical acts which cause the fire to start
or spread but also of his falling to take measures that lie within his power to
counteract the danger that he has himself created.”
Court reasoned that the accused would be criminally liable “if he refrains from
taking steps that lie within his power to try and prevent the damage caused by
the risk that he himself has created, and so refrains either because he has not
given any thought to the possibility of there being any such risk or because,
although he has recognized that there was some risk involved, he has nonetheless
decided to take that risk”
The accused “having by his own act started a fire in the mattress which,
when he became aware of its existence, presented an obvious risk of
damaging the house, became under a duty to take some action to put it out”.
Appeal dismissed.
Illegal Omission The appellant did not bother “to monitor her health and progress, and assumed
that she had chosen to visit another physician or doctor”, and that H was allowed
to “self-administer the washout without proper supervision”, “ignoring H’s
complaints when they arose” and “giving H minimal treatment and sending her
home when she was in a pre-collapse state”.
“In the present appeal which involves medical negligence, the civil standard of
negligence is not ‘possibility’ of injury but the test…is the standard of the ordinary
skilled man exercising and professing to have that special skill. A man need not
possess the highest expert skill at the risk of being found negligent. It is well
established that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art”.

Ngiam Chin Boon v The petitioner pleaded guilty to a charge under section 336 of
PP [1999] the PC of doing an act so negligently as to endanger human
life, to wit, by failing to ensure that sufficient warning signs
were carried and displayed by his driver behind the stationary
lorry while work was being carried out. This caused a car to
collide with the stationary lorry resulting in the death of the
driver of the car. The district judge sentenced him to 2
months’ imprisonment.
Petitioner appealed on the ground that there had been a
serious miscarriage of justice in that the charge was flawed as
there was an error in the place where the negligent act took
place and the statements of the facts did not disclose any
offence under section 336 of the PC.
R v Taktak [1998] The appellant TakTak was an associate of one Zouhier Rabih,
who conducted what was referred to as a ‘dog shop’ at
Court of Criminal premises at Randwick. Rabih also traded in drugs. The
Appeal, New South appellant was addicted to heroin and from time to time
Wales. obtained supplies of that drug from Rabih.
On the day of the incident, Rebih requested the appellant to
procure two prostitutes to attend a party. The appellant
approached the deceased and a young friend of hers and put
Rabih’s proposition to them. The girls agreed to the
proposition and went with the appellant where they were
introduced to Rabih. The girls then left with Rahib to the party.
Appeal dismissed.
Illegal Omission Court referred to section 32 of the Penal Code, an ‘act’ is defined to include an
‘illegal’ omission. The statement of facts did therefore disclose an ‘act’ within the
meaning of s32.
As for whether the act was so negligent as to endanger human life, it “was clear
that the lorry would have to be parked on one of the lanes of the expressway
while the plastic wrapping was being removed. Second, the work was to be done
in the early hours of the morning while it was still dark and while visibility on the
road was relatively poor as compared to visibility during the day. Third, vehicles
would generally travel at much greater speeds on an expressway.” Hence,
justifiable to say that the petitioner was so negligent as to give rise to criminal
liability.
“the responsibility of carrying and displaying sufficient warning signs
behind the stationary lorry did not fall solely on the petitioner’s driver. The
petitioner had a duty to furnish his driver with adequate warning signs and
lights before dispatching him…This duty was not negated by the mere fact that
the petitioner did not personally oversee the removal of the plastic wrapping and
was not informed of the exact lane.”
Petition for revision was dismissed.
Illegal Omission. The first question was whether in the circumstances of the present case, a jury
would be entitled to conclude upon the evidence that the appellant was under a
legally recognized duty to the deceased to seek medical aid for her.
Court referred to ‘‘at least four situations where the failure to act may
constitute the breach of a legal duty. One can be held criminally liable:
1. First, where a statute imposes a duty to care for another;
2. Second, where one stands in a certain status relationship to
another;
3. Third, where one has assumed a contractual duty to care for
another;
4. And fourth, where one has voluntarily assumed the care of another
and so secluded the helpless person as to prevent others from
 Some time later, Rahib rang the appellant to ask him to go and
pick out the deceased. The appellant found the deceased
moaning and unable to speak, sitting on the floor. Rahib told
the appellant to take her to his place. The deceased was
vomiting and the appellant tried to awaken her by slapping
her face and washing it with cold water. He also tried pumping
her chest and gave her mouth to mouth resuscitation.
However, the deceased died soon after. Appellant charged
with manslaughter by an omission to act in circumstances
where he wad under a legally recognized duty to act.
DPP v Santa- This was a prosecutor’s appeal.
Bermudez [2003]
The alleged victim of the offence was a woman police officer,
English High PC Hill when she saw the respondent by the ticket machines
Court. and after a brief conversation she asked him to accompany her
in order to cary out a full body search. PC hill asked the
respondent to turn out all his pockets and to place the
contents on a table to which he did. The items placed on the
table included one or more syringes without needles.
The respondent told PC hill that he did not have any needles
or sharps on him. But when PC hill commenced the search, she
felt a stinging sensation to her middle finger, and on
withdrawing her fingers from the pocket she saw that her
middle finger had been pierced by a hypodermic needle which
was still hanging from her fingertip.
The submission was to the effect that an omission to act
rendering aid.”
In this case, the appellants had undertaken the duty to care for the deceased, and
that the accused had voluntarily assumed the care of the deceased and so
secluded the helpless person as to prevent others from rendering aid.
However, court reasoned that for the “need for a very high degree of negligence
to proved before the felony of manslaughter is established” and in this case, it
would be unsatisfactory to hold the accused criminally negligent as “there was no
evidence that the appellant knew the extent of the ingestion by the deceased of
any drug or that, if medical help was not obtained by her, she would be likely to
die”.
Hence, “the evidence fell short of establishing negligence of the degree required
to justify a conviction for manslaughter.”
Appeal allowed, conviction quashed.
Illegal Omission Court stated that the test is “was it the natural result of what the alleged
assailant said and did, in the sense that it was something that could
reasonably have been foreseen as the consequence of what he was saying or
doing.”
Court reasoned “where someone (by act or word or a combination of the two)
creates a danger and thereby exposes another to a reasonably foreseeable risk of
injury which materializes, there is an evidential basis for the actus reus of an
assault occasioning actual bodily harm. It remains necessary for the prosecution
to prove an intention to assault or appropriate recklessness.”
In the present case, by giving PC Hill a dishonest assurance about the contents of
his pockets, the respondent thereby exposed her to a reasonably foreseeable risk
of an injury which materialized, hence this was the evidential basis for the actus
reus of assault occasioning actual bodily harm.
PP Appeal allowed.
cannot amount to an assault or battery and that there was no
evidence of any act on the part of the respondent capable of
amounting to an assault,
Mens Rea
Fault/Mental Element of Crimes
 ‘An act does not make a man guilty of a crime, unless his mind is also guilty’
 ‘Fault’ more accurate -> types of mens rea e.g. negligence -> more inclusive in recognizing ‘blameworthiness’ of conduct
 ‘Knowledge’ vs. ‘intention’ –> the former signifies a state of mental realization with bare state of conscious awareness of certain
facts vs. latter where mental faculties aroused into activity and summoned into action for the purpose of achieving a conceived
end
 ‘Intent’ should not be connected with ‘desire’ -> latter introduces motivational/emotional element -> may/may not be present in
intention
 Transferred intent -> whoever does any act with the intention of thereby causing hurt to any person and does thereby cause hurt
to any person is guilty

Intention:
 To have a desired purpose. Deliberation. Requires something more than the mere foresight of the consequence (knowledge),
namely the purposeful doing of a thing to achieve a particular end.
 ‘To intend is to have a fixed purpose to reach a desired objective’’
 ‘The state of mind of a man who not only foresees but also desires the possible consequence of his conduct’’
 ‘A conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a
conceived end’

Knowledge
 A state of mental realization with bare state of conscious awareness of certain facts in which the human mind reminds simple and
inactive -> intention is premised on knowledge of facts and circumstances and effects of one’s action
 Awareness with absolute certainty and conviction

Wilful Blindness
 Awareness of an obvious means of acquiring knowledge but shut mind to those means
  Knows of existence of certain facts but those facts insufficient to enable him to know proscribed harm will occur as a result of his
act or that circumstances exist
 Professor Glanville Williams in Textbook on Criminal Law, p 125: “If a person deliberately ‘shuts his eyes’ to the obvious, because
he ‘doesn’t want to know’, he is taken to know.”
 Wilful blindness -> equivalent of actual knowledge (in R v Griffiths)
 Low level of suspicion will not constitute willful blindness

Reason to Believe
 Sufficient cause to believe a particular thing, but not otherwise
 Partly subjective and partly objective -> subjective component: accused’s actual knowledge of relevant facts and circumstances is
critical -> objective component: a reasonable person possessing the accused’s knowledge of the relevant facts and circumstances
would by probable reasoning, infer or conclude
 Assume position of actual individual but reason like an objective reasonable man

Voluntarily
 3 different types of fault -> intention to cause a result, knowledge of the likelihood of causing a result and reason to believe he is
likely to cause a result

Rashness
 Criminal blameworthiness for rashness premised on accused’s actual knowledge of risk of harm produced by conduct
 Implies disregard to the possibility of injury or death
 Possibility vs. likelihood
 Criminal rashness – hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but
without intention or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with
recklessness or indifference as to the consequences. (Empress of India v Idu Beg (1881) ILR 3 All 776, by Straight J)
 Culpable rashness – acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope
that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The
imputability arises from acting despite the consciousness. (Holloway J in Re Nidamarti Nagabhushanam (1872) 7 MHC 119)
  Degree of ‘caring’ is higher than recklessness. Rashness has the hope that the event will not happen, and often has the believe
that they have taken sufficient precaution to prevent it.

Recklessness
 A person is reckless if he recognized there was some risk of that kind involved, but nevertheless went on to take it, or that he did
not even address his mind to the possibility of there being any such risk, and the risk was obvious and serious.
 ‘‘In respect of actions, conduct or things characterized or distinguished by heedless rashness”
 Subjective mental state of knowledge of a risk, or the objective standard of a failure to recognize an obvious risk
 Awareness of risk, but being indifferent (doesn’t care at all) to that risk
 Degree of risk in recklessness is higher than in rashness.

Negligence
 Culpable negligence is acting without the consciousness that the illegal and mischievous effect with follow, but in circumstances
which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the
consciousness. The imputability arises from the neglect of the civic duty of circumspection.’
 Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances
out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.’  test for criminal
negligence is objective
 The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
 Negligent conduct is criminally blameworthy since actor has been inattentive to the danger posed to others by his conduct
 Conviction & punishment of offender is aimed at deterring him as well as others from being negligent by prescribing a standard
of care which must be attained to avoid criminal liability
 Test for degree of negligence required  same as civil negligence but higher standard of proof required
 Ng Keng Yong v PP -> duty of care should be tailored not to the actor, but rather to the act which he or she elects to perform
 Partially subjectivising objective standard of care -> reference to general circumstances & capacity and intelligence of person
 Negligence Rashness Recklessness
Awareness of Not aware but should have been Aware Aware
risk aware by virtue of a reasonable
man (objective test)
Degree of risk Lower than rashness Lower than recklessness Higher than rashness
taken
Degree of N.A (because he is not aware) Higher than recklessness, Lower than rashness,
‘Caring’ hopes it will not happen, doesn’t care if it occurs, did
took some precautions not take any precautions
Yeo Ah Seng v Facts:
PP [1967]
This was an appeal case to the sentencing of murder.
INTENTION The accused shot 3 people, Itam, Retnam and Maniam.
Itam and Retnam was shot outside kuang heng bar AKA
“the bar” where all 3 of them drank at, albeit not
drinking together. Maniam was shot when the accused
went to his house and Maniam opened the door for him.
The appellant was convicted on three charges of
murder by a judge of the High Court sitting at Malacca.
Appeal based on grounds that accused’s lack of motive
pointed to insanity.
Appeal allowed, court set aside the convictions on the
three charges and the sentence on the first charge.
Jai Praskash v The appellant was having illicit relations with Agya
State (Delhi Devi, wife of the deceased and his visits to her house
Administration) were resented and objected to. On the day of
[1991] occurrence, the accused visited the house when the
deceased was not there and he went there armed with a
kirpan (dagger). When the deceased came and objected
INTENTION
to the presence of the appellant, an altercation and
exchange of hot words ensued. Thereupon the
‘purposeful appellant took out the kirpan and stabbed the deceased
commitment of in the chest resulting in instantaneous death of the
an act to deceased. Appellant convicted of murder under section
achieve a 302, IPC.
specific
outcome’ The accused appealed and the appeal was dismissed.
Is the presumption ‘‘ it is not true that a man necessarily intends the natural
that every man consequences of his acts: and it is not true in law that he is
intends the natural compellingly presumed to do so.” – Glanville Williams’ Criminal Law
and probable (2nd Ed) at page 89, para 35.
consequences of his
act valid? This maxim, though many judges have been fond of it, contains
serious threat to any rational theory of intention.
Was there an intent
to kill? “Instead of using this maxim, the jury should be told that they are
entitled to draw inferences as to the defendant`s intention from
what he did, but that if they have a reasonable doubt as to his
intention they must find for the defendant."
There is a need therefore to show that the accused had an intent, by
using the test of the objective reasonable man.
Was there intention? “In the absence of evidence or reasonable explanation that show
that the appellant did not intend to stab in the chest with a kirpan
with the degree of force sufficient to penetrate the heart, it would be
perverse to conclude that he did not intend to inflict the injury that
he did. Once the ingredient ‘intention’ is established then the offence
would be murder as the intended injury is found to be sufficient in
the ordinary course of nature to cause death.”
‘The question is not whether the prisoner intended to inflict a
serious injury or a trivial one but whether he intended to inflict the
injury that is proved to be present…But if there is nothing beyond
the injury and the fact that the appellant inflicted it, the only
possible inference is that he intended to inflict it.’
Whether the accused intended to inflict a serious injury or not a
 serious one depends on the fact and is a matter of proof, where
necessary, by calling in aid all reasonable inferences of fact in the
absence of direct testimony.

“once the existence of the injury is proved, the intention to cause it

will be presumed unless the evidence or the circumstances warrant
an opposite conclusion”

Appeal dismissed.
PP v Hla Win The respondent was arrested on arrival at Changi Did the accused have ‘‘settled law that an appellate court will not interfere with a trial
[1995] Airport and claimed to be carrying precious ‘stones’. He knowledge of the judge’s findings of fact based on the credibility and veracity of the
was found in possession of 3.648g of diamorphine in contents of the bag? witnesses…unless the findings are clearly against the weight of
KNOWLEDGE his bag. In his statement, he said that he had believed evidence and unsupportable…it cannot be argued that his findings
the bag contained gems and that he was asked by one Is it wilful blindness were against the weight of evidence and unsupportable.”
& WILFULL
Maung Maung whom he met in Bangkok to smuggle if he did not check
BLINDNESS
gems from Bangkok to Cebu, Philippines. the contents of the Held by the court of appeal that the accused was telling the truth
bag? and would not intervene with the trail judge’s judgment, based on
Miss Lim’s The trial judge accepted the respondent’s defense and the facts and testimony given.
investigation in acquitted him, holding that on a balance of
Bangkok probabilities, the respondent had rebutted the Appeal dismissed.
/evidence statutory presumptions of possession of the drugs and
adduced for the knowledge of their nature. Yong Pung How CJ (dissenting):
defence -> all ‘’I emphasize that where the accused, who is not an innocent
done to prove Charge was under section 7 of the Misuse of Drugs Act custodian in the sense that the drugs were planted in his bag
credibility of (Cap 185). without his being aware of them accepted the goods in
circumstances which rendered the taking of the precaution of
the accused ->
satisfying himself that the good were what they purported to be and
prove
were not drugs an imperative, then if he did not take the trouble to
consistency in inspect them, but merely relied on another’s assurance, he would
his story, that not rebut the statutory presumption of knowledge. In fact, he would
he’s not lying be guilty of willful blindness to the obvious truth of the matter.
The respondent did not want to know and chose not to find out that

Chiaw Wai Onn The appellant loaned Poon a total of $80,000 to make
v PP [1997] the purchase. The case against the appellant was that
he knew all along that the money was meant to buy
KNOWLEDGE stolen computers. In fact, he put up the money jointly
with Poon, and he later received a share of the profit.
& WILFUL
BLINDNESS The appellant Chiaw was charged and convicted, under
section 109 read with section 414 of the Penal Code
(Cap 224), for abetting the offence of voluntarily
assisting in disposing of 640 pieces of Hewlett Packard
computers by providing cash to acquire the stolen
computers. Chiaw’s main defence was that he did not
know that the goods were stolen.
Appeal dismissed. Sentence enhanced.
he was carrying drugs. Such willful blindness was tantamount to
knowledge.’’
Yong Pung How CJ argued that the most fatal weakness in the
defense was that in all the circumstances, he thought it incumbent
on the accused to check the bag for its true contents, however he did
not do so.
Did the appellant “even if I (the judge) had accepted that the appellant was never
know that the informed as such, it seemed to me that he must have known that
computers were there was a criminal enterprise going on. If it could be shown that
stolen? the appellant had deliberately shut his eyes to the obvious, then it
could be inferred from the present circumstances that he had the
Did the appellant requisite guilty knowledge”
have reason to
believe that the “…I was convinced that the appellant had clearly shut his eyes to the
computers inside the obvious or refrained from making further inquiry because he
container were stolen suspected the truth but did not want his suspicions confirmed...
property? However, where the facts obviously point to one result, and the
accused must have appreciated it but shut his eyes to the truth, then
together with the other evidence adduced, this can form a very
compelling part of the evidence to infer the requisite guilty
knowledge.
If a man says to himself, ‘‘despite all that I have seen and heard, I
refuses to accept what my brain tells me is obvious, it is an absurdity
to say that he does not have the relevant knowledge”
“On the circumstantial evidence alone, I concluded that there was
sufficient basis to reach the inevitable and inexorable conclusion
that the appellant was a participant in the criminal activity. The
appellant’s presence at all the relevant stages of theft went beyond
mere presence, but indicated that he was well aware of the theft and

Mohd Aslam The appellant was charged with: (a) abetting a
s/o Jahandad v company (“Eraz”) to make a false statement to the
PP [2006] Ministry of Manpower (“MOM”) so as to obtain an
employment pass (“the pass”) for a foreign worker
(“the first offence”); and (b) abetting Eraz to make the
KNOWLEDGE
same false statement to the MOM so as to obtain a
& WILFUL renewal of the pass (“the second offence”). The false
BLINDNESS statement, which was that Eraz would employ the
foreign worker (“PW1”) as a business development
manager at a monthly salary of $3,000, was made in
Eraz’s application for the pass (“the application form”)
and in its subsequent application for renewal of the
pass (“the renewal form”).
Khor Soon Lee v The Appellant was stopped after he entered into
PP [2011] Singapore on a motorcycle via the Woodlands
Immigration Checkpoint. A black sling bag in the front
KNOWLEDGE carrier basket of his motorcycle contained controlled
drugs. The controlled drugs were in four bundles
& WILFUL
wrapped in black masking tape. After the bundles were
BLINDNESS unwrapped in his presence, the Appellant identified the
substances in three of the four bundles as “E5”
(Erimin), “K” (Ketamine) and “Ecstasy”. The Appellant
stated that he did not know what the substance in the
fourth bundle was. The fourth bag was then tested to be
was an active participant”
Was the accused 1st Offence:
willfully blind to the Appeal allowed. ‘No supporting evidence to back up PW1’s account
fact that the of the above conversation. The trial judge effectively relied on PW1’s
statements he made uncorroborated evidence alone in convicting the appellant of the
on behalf of PW1 first offence…
were false? Did the
accused ‘ought to Prosecution failed to prove beyond reasonable doubt that the
know’ that the appellant had the requisite guilty knowledge
material details on
the forms were false? 2nd Offence:
‘Appellant had himself accepted…that PW1 understood ‘very little
English’…Without a working knowledge of English, PW1 could not
have possibly sourced for markets for Eraz in India and Singapore or
carried out market research…must, therefore, have been obvious to
the appellant when he completed the renewal form that PW1 could
not have been working for Eraz in that capacity.
I was satisfied that the appellant was willfully blind to the false
particulars…thus had the necessary mens rea..’
Did the appellant ‘’it bears emphasizing that negligence or recklessness does not
know of the nature of amount to willful blindness. It is a high threshold to be met and a
the drug he was finding of willful blindness ought not to be made unless there is a
carrying? If he did strong factual basis for doing so.’’
not know, was he
wilfully blind? ‘’In light of the consistent pattern and the relationship that had
hitherto existed between himself and Tony – understandable why he
had not check the package…Appellant had no reason, in light of the
specific facts and (especially) consistent pattern that had been
established, to strongly suspect that the package contains
diamorphine…A mere suspicion it could have been, but it was farm
 diamorphine. Tony instructed the Appellant not to open
the bundles and check their contents. The Appellant
further asserted that he had asked Tony whether
heroin (diamorphine) would be involved in the
deliveries as he was afraid of the death penalty. Tony’s
response was that he never placed heroin inside the
packages that he asked the Appellant to carry.
Khor had done this job multiple times before (5 times),
and had a close relationship with Tony.
PP vs Tan Kiam Appellant was convicted in the High Court under Did the appellant
Peng [2008] section 7 of the Misuse of Drugs Act (Cap 185) for know that precise
importing heroin. nature of the drugs
KNOWLEDGE he was carrying?
Appellant was in financial difficulties, sought a job in
& WILFUL
Malaysia where he met a man known as ‘Uncle’ whom
BLINDNESS he hoped could give him a job transporting drugs such
as ecstasy within Malaysia. Appellant travelled to
Malaysia, Uncle asked him to transport packets of
heroin to Singapore. Arrested at Woodlands Customs.
When asked what he was carrying, he replied ‘number
3’.
Nagaenthran He testified that he had met one King in Johor Bahru to Is the accused’s claim
a/I K ask for a loan to pay for his father’s heart operation. He of duress an
Dharmalingam had to complete the delivery of a packet wrapped in acceptable defence?
v PP [2011] newspaper to a location in Singapore before King
would lend the money. King told him that the Bundle
contained “company product” or “company spares”, and
KNOWLEDGE
tied the Bundle to his thigh. The appellant claimed that
from being a distinct enough peculiarity (in and of itself) to raise a
strong suspicion. At the very least, the suspicion must bear a
reasonable connection to the specific drug at issue…these instances
are insufficient to amount to wilful blindness’’
“There was an absence of a strong suspicion to which the Appellant
had turned a blind eye”
Appeal allowed
‘wilful blindness necessarily entails an element of deliberate action
inasmuch as to the extent that the person concerned has a clear
suspicion that something is amiss but then embarks on a deliberate
decision not to make further inquiries in order to avoid confirming
what the actual situation is, such a decision is necessarily a
deliberate one…’
“a key threshold element in the doctrine of wilful blindness
itself is that of suspicion following by (and coupled with) a
deliberated decision not to make further investigations”
Level of suspicion must “be firmly grounded and targeted on specific
facts” depending on the factual matrix of the case.
“Ultimately, regardless of whether possession is proved or
presumed, section 18(2) of the MDA would apply to presume that
the accused knew the nature of that drug unless he proves the
contrary”
“Wilful blindness...is an indirect way to prove actual knowledge; ie,
actual knowledge is proved because the inference of knowledge is
& WILFUL although he initially resisted King’s request, King
BLINDNESS abused him, threatening that if he refused to deliver the
Bundle, King would “finish” and “kill” Shalini, his
alleged girlfriend.
Was caught at woodlands immigration checkpoint. A
CNB officer testified that when asked about the
contents of the buddle, the appellant replied in English
‘Heroin’.
Dinesh Pillai a/I The appellant was introduced by a friend to a person
K Raja Retnam called Raja. According to the appellant, Raja paid him to
v PP [2012] deliver “food” wrapped in brown packets to Singapore
and told never to open the package of food. The
appellant was unemployed and in financial difficulty.
KNOWLEDGE
During the delivery, the appellant was detained at
& WILFUL
Woodlands Immigration Checkpoint, where
BLINDNESS diamorphine was found inside the brown packet to be
delivered by the appellant on that occasion. He had not
‘reasonable asked Raja what the package contained but suspected
suspicion, that he would be delivering something other than food.
deliberate
decision to turn
away and not
enquire’
irresistible and is the only rational inference available on the facts. It
is a subject concept, in that the extent of knowledge in question is
the knowledge of the accused and not that which might be
postulated of a hypothetical person in the position of the
accused…alleged wilful blindness must be proved beyond a
reasonable doubt.”
“Wilful blindness is not negligence or an inadvertent failure to make
inquiries. It refers to the blindness of a person to facts which, in the
relevant context, he deliberately refuses to inquire into. Such failure
to inquire may sustain an inference of knowledge of the actual or
likely existence of the relevant drug”
Appeal dismissed.
Did the accused have ‘The material issue was not what he actually knew or did not know
knowledge of what was in the Brown Packet…section 18(2) of the MDA applied to
was in the Brown presume that he knew the nature of the controlled drug- a
Packet? If he did not, presumption which he had to prove, on a balance of probabilities, to
was he wilfully blind? the contrary…”
“The presumption…could not be rebutted if the accused made no
effort to find out what he was bringing into Singapore in
circumstances which would have alerted a reasonable person that
he was being asked to do something illegal.”
Appeal dismissed.
Mervin Singh The First Appellant, on the instructions of one ‘Sopak’, Did the appellant ‘’It is significant, in our view, that there is no evidence on record
and Anor v PP picked up a pink detergent box which he believed to know of the contents contradicting the fact that the First Appellant was a dealer in
[2012] contain contraband cigarettes and was transporting it of the box? If he did contraband cigarettes. In any event, there is, in our view, sufficient
to one ‘Afghanistan’ coffee shop when he was not, was he wilfully evidence on record to demonstrate that this was indeed the case…”
ambushed by CNB officers. It was found that the pink blind? Did he manage
KNOWLEDGE
box had a total of nine packets wrapped in newspaper, to successfully rebut “The First Appellant had clearly been involved in dealing with
& WILFUL
each packet having a diamorphine content ranging the presumption of contraband cigarettes…It was therefore more than plausible –
BLINDNESS from not less than 17.21g to 25.39g. The appellants knowledge in s18(2) certainly on a balance of probabilities- that he had thought that the
were convicted for drug trafficking. on a balance of pink box contained contraband cigarettes…’
probabilities?
Appeal allowed.
Seah Siak How The appellant was charged with causing the death of Was the appellant “It follows that to bring home a charge under section 26 in respect of
v PP [1965] Lee Goh Thong by driving motor car on the road driving recklessly? driving recklessly it must be shown that the driving is such as to
recklessly, to wit, by failing to exercise due care and amount to rash driving and the driver of the vehicle in question
RECKLESSNESS attention. He was found guilty and sentenced. Is there sufficient must be heedless of the state of affairs on the road at the time in
evidence to find a question…”
The two ladies that were passengers in the trishaw conviction for
ridden by the deceased at the time when it was run into reckless driving? Reckless…means ‘in respect of action conduct or things
by the appellant’s car gave evidence merely to the effect characterized or distinguished by heedless rashness’
that almost immediately after the trishaw was
overtaking a parked vehicle the trishaw was hit by a car Judge found “In my opinion that evidence is not sufficient to find a
from behind. conviction for reckless driving...’’

A police sergeant who arrived one hour after, found the Appeal allowed, conviction altered to causing death by a rash or
road surface to be dry and the visibility was good, and negligent act
noted that the flow of traffic at 1.20 o’clock in the
morning was heavy.
 The defendant, driving a 14-wheeler, 60-foot long semi-
PP v Zulfliki Bin
Omar [1998] trailer low loader, carrying a load of iron rods, collided
into a group of 41 cyclists, killing 5 and injuring 4
RECKLESSNESS others while trying to overtake a motor van.
Charge for offence under s41(1) of the Road Transport
Act 1987 for ‘causing death by reckless or dangerous
driving’
Defendant was convicted. Deputy public prosecutor
appealed against the sentence.
PP v Wang Ziyi The respondent, a full-time equities trader, made 2
Able [2008] postings on the forum of a widely-accessed financial
portal in which he alluded to a raid on a company by
CAD. The respondent had acted on unverified
information which had been allegedly provided by a
friend and 2 reports generated by the same friend. The
news caused the company’s share prices to tumble. The
defense’s case was that the respondent honestly
believed that the CAD had raided the company’s office
Was the appellant ‘To be guilty of the more serious category of the offence of reckless
driving recklessly? driving the driver must have created an obvious and serious risk of
injury to the person or damage to property and must either have
given no thought to the possibility of that obvious risk, or have seen
the risk and nevertheless decided to run it.”
R v Lawrence – “a jury should convict a defendant of driving
recklessly if they are sure of the following: (i) that he was in fact
driving in such a manner as to create a serious risk of causing
physical injury to some other person who might happen to be using
the road, or doing substantial damage to property; and (ii) either (a)
that he recognized that there was some risk of that kind involved,
but nevertheless went on to take it; or (b) that, despite the fact that
he was driving in such a manner, he did not even address his mind
to the possibility of there being any such risk, and the risk was in
fact obvious”
“The risk created by the manner in which the vehicle is driven must
be both obvious and serious, and the court has to be satisfied that
the essential or core ingredients of recklessness have been proved
beyond reasonable doubt.”
Appeal allowed.
Did the respondent ‘the question of whether reasonable grounds exist to support a
care whether the belief in the truth of a statement should be analysed from the
statement or perspective of a reasonable person calibrated against the relevant
information was true qualities and characteristics of the accused person. This would
or false? accord with the ultimately subjective nature of the section 199(i)
mens rea, since it infuses the subjective qualities of the accused with
an objective analysis of the relevant facts…
I am satisfied beyond any reasonable doubt that the respondent did

The accused was charged for an offence under
s199(b)(i) of the Securities and Futures Act for an
offence of disseminating false information that was
likely to induce the sale of securities by others where
the person disseminating the information did not care
whether the information was true or false at the time of
the dissemination.
Madhavan The appellants were directors of Airocean Group
Peter v PP & Limited, a listed company on SGX. Airocean’s CEO was
other appeals placed under arrest by CPIB for suspected corruption.
[2012] Airocean sought legal advice on whether it had to
disclose to SGX that its officers were involved in CPID
investigations. Aircoean’s lawyers gave oral advice that
RECKLESSNESS
no disclosure had to be made at that stage. The
appellants were charged with having consented to
Airocean’s reckless failure to notify SGX of the
information that the CEO has been questioned by CPIB,
which information was likely to affect the price/value
of Airocean shares and was required to be disclosed.
The appellants were convicted for the alleged
contraventions of the disclosure provisions in the
Securities and Futures Act (Cap 289, 2002 Rev Ed). On
appeal, the High Court overturned the convictions.
not have a honest belief in what he posted…the respondent must
have known that the information about the alleged CAD raid was
false and misleading when he disseminated it…he ought reasonably
to have known that the information was flase and misleading.
Appeal allowed.
Were the appellants ‘’Airocean’s failure to ask Imran about the reasons underlying the
reckless in failing to Oral Advice did not entail that Airocean was therefore reckless in
inform SGX of the relying on that advice. Where a client relies on legal advice from his
information of the lawyer without asking the latter for reasons for his advice, if the
CPIB investigations? legal advice turns out to be wrong in law, it may, of course, cause the
client considerable problems or even financial ruin, but that would
be a consequence of the legal advice being bad advice, and not of the
client having deliberately taken the rise of the legal advice being
incorrect. Indeed, clients have no duty to question their lawyer’s
advice and it would not be reasonable to expect or require them to
do so… Airocean was far from being reckless…That was why it
sought legal advice immediately…’’
‘’premise that Airocean knew full well that the Information was
‘clearly likely to affect the price or value of the shares in Airocean’,
and yet, did not disclose the Information. In my view, there was no
basis for the District Judge to conclude that Airocean had such
knowledge…Airocean did not know whether the information had to
be disclosed…’
reckless – ‘(a) subjective awareness of a risk; and (b)
unreasonableness on the part of the offender in taking that risk’
‘’given the circumstances prevailing…it was not unreasonable for

Mohamad The appellant was a section commander leading a team
Iskandar bin of firefighters. He was driving a Red Rhino to respond
Basri v PP to a fire that had broken out (he was given 8 minutes to
[2006] respond). At a cross junction, the appellant failed to
stop the Red Rhino when the traffic lights were
showing red against it. With the Red Rhino’s siren and
RASHNESS / blinking lights turned on, the appellant assumed other
RECKLESSNESS vehicles would give way and thus drove it across the
junction. The Red Rhino collided with a taxi which had
the right of way. 1/3 passengers in the taxi died.
Appellant rendered assistance to the victims of the
collision, visited them in hospital and attended the
funeral.
Airocean to have continued taking the risk of non-disclosure after
the Board Meeting and after receiving legal advice. Far from
deliberately taking the risk of non-disclosure, Airocean considered it
prudent to hedge that risk by legal advice from a competent law
firm…’’
‘’DJ failed to appreciate that Chong and Madhavan were relying on
the legal advice from TRC precisely to establish that Airocean did
not have the mens rea of recklessness required by section 203.”
Refer to [370]
Should the appellant ‘’Driving in the manner that he did that day at a major intersection
be viewed with must qualify as one of the most reckless acts because he was not
greater merely trying to beat the lights before they changed – they were
charity/leniency already against him and he disregarded them anyway…
because he is a
firefighter? However…this was a case of a conscientious firefighter leading his
troops into battle with the forces of nature. This was not a young
man driving fast and furious for the sheer thrill of it. Surely
firefighters, ambulances, police officers and doctors rushing to save
lives and/or property in emergency situations ought to be viewed
with greater charity when they make mistakes of judgment,
however egregious they appear to be in retrospect…
This does not mean that emergencies justify rashness… This case is a
good reminder for all drivers of emergency services vehicles that a
duty of care is still owed to other road users whatever the

PP v Tiyatun The respondents were feeding the deceased, a child
[2002] aged 21 months. Tiyatun directed Sakdiah to press the
child’s nostrils together while holding down his hands
RASHNESS so as to temporarily incapacitate his movements. This
was to force him to open his mouth, whereupon
Tiyatyun poured food into his mouth. The child faced
difficulty breathing and died 3 days later.
Charged under s304A read with s34 for acting in
furtherance of a common intention to cause the death
of the child, by doing a rash act not amounting to
culpable homicide. They pleaded guilty and were
sentenced to 9 months imprisonment each.
Appeal by PP that charge was manifestly inadequate.
emergency may be.
The sentences imposed might have been appropriate for a reckless
driver speeding across a junction contrary to the light signals for no
particular reason…were manifestly excessive for a firefighter
rushing to attend to an emergency.’’
Appeal allowed. Sentence reduced from 15 to 7 months
imprisonment.
Did the degree of ‘’no dispute that the acts of the respondents in force feeding the
rashness warrant a child were rash. They had…confirmed that they were conscious that
more severe death was at least a possible consequence of their actions. Yet, in
sentence? spite of an awareness of the possibility of the inherent risk involved,
they had carried on…It was their rashness, in running the risk that
the possibility of death may ensure, that made them criminally
culpable under section 304A.”
“The severity of the sentence for a section 304A offence depends to a
great extent on the degree of rashness or negligence exhibited by the
accused in the circumstances wherein death resulted, the more
reprehensible his conduct and the more sever his sentence should
be. For the purposes of sentencing, the mere fact that a human life is
lost does not in itself justify the court in passing a deterrent
sentence.’’
“the circumstances did not smack of their total disregard for the
child’s life. The fact remained that the respondents were feeding the
child a meal of porridge…a meal that could have been easily
swallowed by the child. More importantly, they had been feeding
him in the same manner over the past eight months with no adverse
consequences… culpable rashness exhibited by the respondents was
of a lesser degree and deserving of a correspondingly lower

S Balakrishnan As a result of the treatment meted out to trainees by
& Anor v PP means of dunking in a water tub during the 80th CST
[2005] course, one trainee died and another was seriously
injured. The first appellant ‘WO Balakrishnan’ and
second appellant ‘Capt Pandiaraj’ were charged in their
RASHNESS
respective roles as course commander and supervising
officer of the 80th CST course.
Both were charged with causing the death of Sgt Hu and
the grevious hurt of Capt Ho. Wo Balakrishnan was
charged with abetment by illegal omission, while Capt
Pandiaraj was charged with abetment by instigation.
Offense punishable under section 338 read with section
109 of the penal code (cap 224).
sentence”
Appeal dismissed.
Capt Pandiaraj ‘Was On whether there was a rash act (Capt Pandiaraj):
there a rash act?’ WO
Balakrishnan ‘Was “Even if I had found that dunking was permitted by the rules (which
WO Balakrishnan in fact wasn’t in the lesson plan), I was of the opinion that the
rash or negligent?’ manner of dunking instigated by Capt Pandiaraj went far beyond
any permissible boundaries and qualified as a rash act…Capt
Pandiaraj was conscious of the danger inherent in the manner of
dunking stipulated by him but still instructed his subordinates to
carry on with the act in that particular manner. He may have
believed that he had minimized or even averted the danger by
setting down certain guidelines for the instructors, but his
criminality lay in his running the risk of doing the act. His failure to
supervise the water treatment, or to stop the instructors from going
beyond the guidelines he set, exhibited a recklessness or indifferent
as to the consequences of the dunking.”
On whether Balakrishnan was reckless or negligent:
“It goes without saying that one does not require a university
education to realize that dunking a person underwater repeatedly,
covering his nose and mouth when he is in the water and not
allowing him to catch his breath when he surfaces, is extremely
perilous…section 304A merely requires the court to consider
whether ‘a reasonable man in the same circumstances would have
been aware of the likelihood of damage or injury to others resulting
from his conduct’…any reasonable man in the same circumstances
would have known that the acts carried out…were rash, and there
was no reason at all for me to believe that WO Balakrishnan would
 have thought otherwise.’’

Appeal dismissed, sentences enhanced.

PP v Teo Poh Respondent had failed to exercise proper control of her Was the respondent ‘Culpable Rashness is acting with the consciousness that the
Leong [1992] motor car thus causing it to skid and lose control when negligent OR rash? mischievous and illegal consequences may follow, but with the hope
negotiating a bend, resulting in a collision with 2 that they will not, and often with the belief that the actor has taken
DISTINCTION deceased, who were then walking on the road sufficient precaution to prevent their happening. The imputability
pavement. arises from acting despite the consciousness’
W RASHNESS
AND
Charged for an offence under s304A of the Penal Code. ‘Culpable negligence is acting without the consciousness that the
NEGLIGENCE She pleaded guilty and was sentenced to a fine of $5000 illegal and mischievous effect with follow, but in circumstances
and disqualified from driving. which show that the actor has not exercised the caution incumbent
upon him, and that if he had he would have had the consciousness.
PP appealed against sentence on grounds that it was The imputability arises from the neglect of the civic duty of
manifestly inadequate. circumspection.’

‘Criminal rashness is hazarding a dangerous or wanton act with the

knowledge that it is so, and that it may cause injury, but without
intention to cause injury, or knowledge that it will probably be
caused. The criminality lies in running the risk of doing such an act
with recklessness or indifference as to the consequences.’

‘Criminal negligence is the gross and culpable neglect or failure to

exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in
particular, which, having regard to all the circumstances out of
which the charge has arisen, it was the imperative duty of the
accused person to have adopted.’

‘As between rashness and negligence, rashness is a graver offence…’

 ‘The mere fact that a human life is lost due to negligent driving of a
motor car does not justify a custodial sentence in the absence of an
allegation of callousness…’

No custodial sentence, fine increased from $5000 to $10000.

Lim Hong Eng v The appellant was the driver of a vehicle that had gone Since the accused did ‘As regards the finding that the appellant drove through the Junction
PP [2009] against the red light at a junction resulting in a collision not intend to beat the intentionally when the traffic lights were not in her favour, I am of
with a motorcycle. The motorcycle suffered a red light and had the view that this finding was irrelevant so far as guilty was
RASHNESS compound fracture to his left leg while his pillion driver entered the Junction concerned. The offence of dangerous driving is not an offence that
succumbed to her injuries and died. unaware not only of depended on an intention to drive dangerously. The subjective
the fact that the lights intention or knowledge of the accused is relevant only for the
The appellant was charged with one count of causing were red against her purposes of sentencing…
death by dangerous driving (section 66(1) of the Road but also the the
Traffic Act (Cap 276)) and one count of causing motorcycle was Rashness thus implies a disregard to the possibility of injury or
grievous hurt by doing a rash act (section 338 of the passing through, was death. The appellant…did not appear to have shown such
Penal Code (Cap 224)) – 18 months imprisonment and she rash or disregard…held that the appellant did not intend to beat the red
disqualified her for holding or obtaining a driving negligent? light and had entered the Junction unaware not only of the fact that
license for all classes of vehicles for ten years. the lights were against her but also that the motorcycle was passing
through the Junction.

…the appellant’s conduct was more negligent than rash.

Charge amended to dangerous driving simpliciter.

Ng Keng Yong v The first appellant was the OOW on the Courageous
PP [2004] while the second Appellant, a trainee OOW, had control
of the steering. When the Courageous reached the end
NEGLIGENCE of her patrol area, the second appellant ordered the
vessel to ‘U-Turn’, leading her to proceed against the
floor of traffic. The Closest Point of Approach (CPA)
alarm was activated, indicating that the closest distance
at which the Courageous would pass the target vessel
(the ANL0 was 3 cables. The ANL was on the port side
of the Courageous. The OOW ordered a series of
alterations to port to increase the CPA. The ANL altered
to starboard in accordance with the ‘Collision
Regulations’. This resulted in the vessels colliding. 4
crew members of the Courageous died and the
appellants were charged under s304A for causing their
deaths by negligently navigating the Courageous.
Did r14(a) of the ‘Although the appellants were not negligent in navigating the
Collision Regulations Courageous against the flow of traffic, it was incumbent on them to
apply? Were the take all the necessary safety measures including the maintenance of
appellants’ actions a sufficient CPA…I had no doubt that the situation clearly involved a
the proximate and risk of collision.
efficient cause of the
collision? Should the ‘the standard of negligence in criminal cases should be the civil
second appellant, a standard of negligence… the distinction between civil and criminal
trainee OOW, be held negligence is reflected in both the higher standard of proof for the
to the same standard Prosecution and the stricter test of causation that needs to be
of care as a qualified established for criminal liability to attach’
OOW?
Whether a lesser contributory negligence broke the chain of
causation: ‘evident that criminal liability under s304A should attach
to the person(s) whose negligence contributed substantially, and not
merely peripherally, to the result. [393]’
On the issue whether there should be the same standard of care
between qualified and unqualified: “A doctrine of varying
standards depending on the defendant’s experience was too
uncertain to be viable…The disadvantages of the resulting
unpredictability, uncertainty and indeed, impossibility of arriving at
fair and consistent decisions outweigh the advantages. The certainty
of a general standard is preferable to the vagaries of a fluctuating
standard
At the end of the day, the duty of care should be tailored not to the
actor, but rather to the act which he or she elects to perform.”
…S304A does not require proof of intention or knowledge. The
relevant mens area is rashness or negligence…therefore legally
inaccurate for the second appellant to argue that s304A requires an

Lim Poh Eng v The appellant, a practitioner of traditional Chinese
PP [1999] medicine, was convicted under s338 for having caused
grievous hurt to one H by negligently failing to attend
NEGLIGENCE to her complaints adequately after administering
colonic washout treatments and failing to refer her to
the hospital for treatment. These omissions gravely
endangered H’s life and she lost her rectum. She would
have to wear a colostomy bag indefinitely.
accused person to possess knowledge that his act was likely to cause
death or injury…The subjective knowledge of the second appellant
was irrelevant, so long as a reasonably competent OOW would have
known that the act was likely to cause death of injury.
To demand any less from these trainees would unduly place the
lives and property of other innocent parties at risk”
Both appeals dismissed.
Should the degree of ‘While there is no doubt a need to maintain a distinction between
negligence required civil liability and criminal liability, it is questionable whether it is
in criminal cases necessary to have an intermediate standard of negligence in order to
should be higher than maintain that distinction…standard of negligence in criminal cases
that in civil cases? should be the civil standard of negligence.’
Should the criteria to “First, in a crime which involves negligence, the breach of a civil
determine if there is standard of negligence has to be proved beyond reasonable
any criminal degree doubt…Secondly, in a crime which involves negligence, negligence is
of negligence be not the sole criteria of liability… there is therefore a difference in the
likelihood of injury as presence of additional elements which have to be proved, and
opposed to proved beyond reasonable doubt”
possibility of injury?
‘erroneous assumption that the civil standard of negligence is the
‘possibility of injury’…the civil standard of negligence varies in
accordance with the circumstances…

‘the test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the
highest expert skill at the risk of being found negligent. It is well
established that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art.’
Strict Liability
Criminal liability can be imposed on accused persons simply on proof that they have committed the physical elements required by the
statutory offence. (ie. No need Mens Rea to prove crime)

Rationale for this:

1. Costly – a lot of resources will be needed to prove minor offences (ie. To prove Mens Rea)

Problems arise when statute does not contain express fault element -> 3 approaches

3 Defenses to Strict Liability Offences:

Presumption of mens rea approach
Due diligence approach
Chapter IV approach

Strict liability -> offences which do not require prosecution to prove a specific fault element but allow accused to avoid liability on proof
of due diligence or reasonable mistake of fact

Absolute liability -> offences which do not allow an accused to raise due diligence or reasonable mistake of fact as a defence

Strict liability offences in English law = Absolute liability offences in Singapore

Presumption of Mens Rea Approach:

 Allows court faced with a statutory offence that does not employ a specific fault element to nevertheless presume accused must
be proved to possess mens rea in order to be convicted of a criminal offence
 Tumlong Kuandi v PP
 Statutory offence is one which ‘requires no guilty intention or knowledge. Not only the words ‘knowingly’, ‘intentionally’ or
‘wilfully’ are not used in [the statutory offence], the effect of the [statutory offence] would be nullified if a court were to interpret
the provisions as being otherwise than [a] strict liability offence.

 Criticisms: Difficult to find agreement as to whether a particular offence belongs to ‘true crimes’ or regulatory violations

 Assertion that conviction for regulatory violations carries less stigma is highly questionable

 Slight penalties do not correlate to strict liability offences -> Parliament has power to prescribe severe penalties for strict liability
offences in order to achieve legislative purpose

 Gammon: liability can only be imposed if there is something the accused could have done to conform to the law which any
reasonable person would have done -> little difference from negligence liability -> species of fault

Due Diligence Approach

 Prosecution only has to show accused committee physical elements of offence without having to prove he/she was at fault
 Accused bears burden of proof that he/she acted with due diligence in preventing prohibited harm from occurring in order to
secure acquittal
 State of mind important -> raised by defence
 Defendant’s onus to establish on a balance of probabilities that he has taken reasonable care
 Criticisms:
 Not generally used as a defence against SL because the defence is not based concretely on good law.
Improperly ignores Penal Code provisions relating to defences such as mistake -> imports potentially different standard of
liability: what amounts to ‘due care’ or ‘reasonable care’ -> may be different from standards set by Penal Code defences
 ‘honest mistake’ vs ‘mistake made in good faith (mistake made despite taking ‘due care and attention’) -> latter requires objective
& subjective inquiry
  possible for court to find offence is of absolute liability -> accused can be convicted of offence even if he/she acted with due
diligence
 Tools for deciding if offence is of absolute liability are similar/same as that of presumption of mens rea -> subject to same
criticisms

Chapter IV Approach
 Accused may escape liability by proving absence of fault -> ways absence of fault can be proved strictly limited to defences of
Chapter IV of Penal Code
 General Exceptions in Chapter IV apply to statutory offences found outside Code unless excluded by Legislature

Why is there no problem with penal code offences but there are with other statutory offences?
Element of mens rea already incorporated in the definition of penal code offences
Statutory offences do not state this explicitly. Therefore the court must determine if it exists.

6. Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal
provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions
are not repeated in such definition, penal provision or illustration.

All Chapter IV defences apply to all offences in the Penal Code

Case Facts
Sweet v Parsley s5 of UK Dangerous Drugs Act, 1965:
[1970] If any person – (a) being the occupier of any
premises, permits those premises to be used for the
House of Lords purpose of smoking…cannabis resin…or (b) is
concerned in the management of any premises used
Presumption of for any such purpose as aforesaid; he shall be guilty of
Mens Rea an offence against this act
Appellant, the subtenant of a farmhouse, let out
several rooms to tenants who shared the use of the
kitchen. She herself retained and occupied a
bedroom. Later she gave up living there, though came
occasionally to collect letters and rent. Quantities of
drugs, including cannabis resin, were found in
farmhouse and appellant was charged with being
concerned in the management of premises used for
the purpose of smoking cannabis resin, contrary to
section 5(b) of this Act.
Appeal Allowed.
Issue Judgment
Can the necessity of mens ‘Our first duty is to consider the words of the Act: if they show a clear intention to
rea be dispensed with in create an absolute offence that is an end of the matter…whenever a section is silent
this case? as to mens rea there is a presumption that…we must read in words appropriate to
require mens rea’
Is the offence an absolute
liability offence? ‘the fact that other sections of the Act expressly require mens rea, for example
because they contain the word ‘knowingly’, is not in itself sufficient to justify a
What was the intention decision that a section which is silent as to mens rea creates an absolute offence’
of Parliament?
‘The mere absence of the word ‘knowingly’ is not enough. But the nature of the crime,
Did the word ‘concerned’ the punishment, the absence of social obloquy, the particular mischief and the field of
in the statute carry an activity in which it occurs, and the wording of the particular section and its context,
element of knowledge? may show that Parliament intended that the act should be prevented by punishment
regardless of intent or knowledge’
‘One would first have to decide whether a person who is not actually assisting in the
management can be regarded as being ‘concerned in the management’... Even if such
a person could be regarded as ‘concerned in the management’…he could not be
convicted without proof of mens rea’
‘If someone is concerned in management there must at least be knowledge of what it
is that is being managed’
‘It is said that the intention of Parliament was to impose a duty on all persons
concerned in the management of any premises to exercise vigilance to prevent
smoking of cannabis. If that had been the intention…different words would have been
used.’
‘To manage or to be concerned in the management itself connotes control or
direction of an activity to achieve a result desired by those who control or direct the
activity’
‘But it would be very much harder for the guilty to escape if the burden of disproving

PP v Teo Kwang Respondent found in possession of snow peas which
Kiang [1991] when tested was found to contain a level of carbon
disulphide which exceeded the permissible level of
Presumption of carbon disulphide. The respondent claimed that he
Mens Rea had imported the peas and would not sell the pea
unless the health inspector had inspected them and
that he had no intention of selling the peas if they
were found to be unfit for human consumption.
Respondent charged under s40(1) of the
Envrionmental Public Health Act (Cap 95).
District judge acquitted the respondent. Prosecution
appealed and the High Court allowed the appeal.
Lim Chin Aik v The appellant was living in Malaysia, and made
PP [1963] frequent visits daily to Singapore, where his family
was living, then returned to Malaysia at night.
Presumption of
Mens Rea One day, the Minister Action under s9 of the
Immigration Ordinance made an order prohibiting
the appellant from entering Singapore but there was
no evidence at the trail, from which it could be
properly inferred that the order had in fact come to
the notice of the appellant. Appellant was arrested for
contravening s6(2) of the Immigration Ordinance, an
offence under s6(3) punishable under section 57
Mens rea or knowledge is thrown on the defendant. And if that were done, innocent
people could satisfy a jury of their innocence on a balance of probabilities…’
Is s40(1) of the Act an ‘’On a literal reading of Section 40(1) of the…Act, there is no word or phrase in it that
absolute liability suggests that the essence of the offence is that the person who has in his possession
provision? the article intended for human consumption should know or be aware that the article
is unfit for such purpose”
What was the intention
of the legislature in ‘’The policy of the Act is quite clearly the protection of the public: it is designed to
enacting 40(1)? prevent the sale of food for human consumption where the food is dangerous to
human health’’
“… difficulties that an importer will face in ensuring that the vegetables are safe for
human consumption are difficulties that the importer will have to live with and do his
best to overcome…imposition of strict liability…necessary for protection of the
public…no doubt that that is what the legislature intended when it enacted section
40(1)” – 40(1) is a strict liability offence, requirement of Mens Rea not needed.
Is the function of the law ‘it is with the question whether a guilty mind is a necessary requisite for the
to create luckless establishment of an offence under the relevant section...’
victims? Has the
application of the rule ‘It is in my opinion of the utmost importance for the protection of the liberty of the
that mens rea is an subject that a court should always bear in mind that unless a statute either clearly or
essential ingredient in by necessary implication rules out mens rea as a constituent part of a crime, a
very offence been defendant should not be found guilty of an offence against the criminal law unless he
displaced by the terms or has got a guilty mind’
subject-matter of the
Ordinance? ‘Where the subject matter of the statute is the regulation for the public welfare of a
particular activity… it frequently has been inferred that the legislature intended
Was there a need for that such activities should be carried out under conditions of strict liability”
mens rea in this statute /
offence? “But it is not enough…merely to label the statute as one dealing with a grave social
evil and from that to infer that strict liability was intended. It is pertinent also to
inquire whether putting the defendant under strict liability will assist in the

Tan Cheng Kwee The appellant ran operations of a company that
v PP [2002] transported containerized cargo using prime mover.
Some public structures were damaged when a vehicle
Presumption of with a container loaded on the trailer driven by one
Mens Rea/ Due of Tan’s drivers on his instructions, smashed into
Diligence them. This was because the overall height of the
vehicle exceeded the statutory height limit. Further,
the company did not have a permit to operate a heavy
motor vehicle exceeding four meters in overall height.
Appellant was charged under s79(1) of the RTA for
causing a vehicle exceeding four meters in height to
be drive on public roads without the requisite permit.
The district judge held that the offence was one of
enforcement of the regulations…. there must be something he can do, directly
or indirectly, by supervision or inspection, by improvement of his business methods
or exhorting those whom he may be expected to influence or control, which will
promote the observance of the regulations. Unless this is so…no reason in penalizing
him…cannot be inferred that legislature imposed strict liability merely in order to
find a luckless victim”
‘The subject-matter, the control of immigration, is not one in which the presumption
of strict liability has generally been made. Nevertheless, if the Courts of Singapore
were of the view that unrestricted immigration is a social evil which it is the object of
the Ordinance to control most rigorously, Their Lordships would hesitate to
disagree.’
‘… there is nothing that a man can do about it if, before the commission of the offence,
there is no practical or sensible way in which he can ascertain whether he is a
prohibited person or not’
‘the commonsense of the language presumes that he was aware of the order before
he can be said to have contravened it…clearly to the conclusion that the sense of the
language here in question requires for the commission of a crime thereunder mens
rea as a constituent of such crime’
Was section 79(1) of the ‘There is a presumption of law that mens rea is a necessary ingredient of any
RTA created as a strict statutory provision that creates an offence…This presumption, however, can be
liability offence? rebutted by the clear language of the statute, or by necessary implication, although it
is not sufficient if the provision merely lacks terms that are commonly associated
with mens rea’
‘Where an examination of the language of the statute does not assist, the court will
have to look at all the relevant circumstances to determine the true intention of
Parliament.’
‘Where the subject matter of the statute is the regulation for the public welfare of a
particular activity… it can be and frequently has been inferred that the legislature
intended that such activities should be carried out under conditions of strict liability’
– Lim Chin Aik v R.
 strict liability and convicted Tan.
Appeal dismissed. ‘patently clear to me that s79(1) of the Act fell within the class of statutory offences
that dealt with public safety’

‘while a slight penalty may be a factor in favor of construing an offence as one based
on strict liability, there is by no means a definitive correlation. Parliament has the
power to prescribe severe penalties for strict liability offences in order to achieve its
legislative purpose’

‘All the Prosecution needed to establish was the causal link, or actus reus…once this
is proved, it would then become incumbent on the Defense to prove on a balance of
probabilities that it had taken all reasonable care.’
PP v Phua Keng The first and second respondents were charged Was s5(1) of the Act ultra ‘(1) There is a presumption of law that mens rea is required before a person
Tong under the Official Secrets Act (Cap 223, 1970 Rev Ed). vires Art 14 of the can be held guilty of a criminal offence.
The second respondent who was the director of the Constitution?
Presumption of Protocol and Consular Division of the Ministry of (2) The presumption is particularly strong where the offence is ‘truly criminal’
Mens Rea Foreign Affairs at the material time, was charged on 3 Did s5(1) require mens in character
counts under sections 5(1)(e) and 5(1)(f) of the Act rea? Is it a strict liability
for communicating certain confidential documents to offence? (3) the presumption applies to statutory offences, and can be displaced only if
his close friend, the first respondent. Phua was in turn this is clearly or by necessary implication the effect of the statute;
charged on one count under section 5(2) of the Act If s5(1) required mens
for receiving these confidential documents. rea, did Tan possess the (4) the only situation in which the presumption can be displaced is where the
requisite mens rea? statute is concerned with an issue of social concern, and public safety is such an
The trial judge convicted Tan on all 3 charges and issue;
sentenced him to one day’s imprisonment and a fine Since s5(2) requires
of $750 on each charge. Phua was acquitted and mens rea, did Phua have (5) even where a statute is concerned with such an issue, the presumption of
discharged. the requisite mens rea? mens rea stands unless it can also be shown that the creation of strict liability
Whether at the time Phua will be effective to promote the objects of the statute by encouraging greater
The PP brought the present appeals against Phua’s received the documents, vigilance to prevent the commission of the prohibited act’ [441 SCM]
acquittal and Tan’s sentences. Tan in turn cross- did he know or had
appealed against his conviction and sentence, reasonable grounds to “…consider the Act and in particular section 5(1) thereof…it is not one dealing with
alleging, inter alia, that section 5(1) of the Act was believe that it was sent to an issue of social concern such as public safety or public welfare, and there does not
ultra vires Art 14 of the Constitution of the Republic him in contravention of appear any indication that the presumption of mens rea should be displaced”
of Singpoare and that Tan did not possess the the Act?
requisite mens rea, which was an essential ingredient In this case, wrt to Tan’s offense, the offense did require mens rea. ‘the mens rea is a
 of an offence under section 5(1).
PP v Bridge Section 5
Christopher (1) If any person having in possession of control
[1997] any secret official code word, countersign or
password, or any photograph… which
Presumption of (c) has been made or obtained in
Mens Rea contravention of this Act
Tan Chong Koay Appeal by Pheim Asset Management Sdn Bhd and Dr
& other v MAS Tan Chong Koay (CEO and chairman of the company)
[2011] against the judgment of the High Court ordering each
of them to pay to the respondent, the MAS, a civil
Presumption of penalty of $250,000 for infringing section 197(1)(b)
Mens Rea of the Securities and Futures Act.
The proceedings arose from certain share
transactions the appellants had been involved in.
knowledge of the wrongfulness in committing the act complained of’, ‘he knew to
whom these documents were authorized to be sent and he knew that Phua was not
one of such persons’
Phua “knew that such documents were meant for certain groups of persons
authorized to receive them and he was not one such person’
Convictions against Tan stood, Phua was convicted of the charge.
Whether an offence ‘In our view an inference that Bridges had reasonable ground to believe that the
under s5(1) of the OSA is information provided by Ganesan was ‘protected’ information could not be drawn
one of strict liability. from the prosecution’s evidence. Hence this vital element in the ingredient of the
If ‘no’, what are the mens rea required to be proved by the prosecution was not prima facie proved.
requisite elements of
mens rea for an offence Not only are there no clear words in section 5(1) dispensing with mens rea but on the
under s5(1)? contrary it is abundantly clear that an offence under section 5(1) cannot be
committed without some mental element…far from being a strict liability offence.’
Did the offences created ‘…prima facie objectionable to penalize a person for doing a person for doing a
by 197(1) require mens criminal act which he did not intend to do or did not know would be a criminal act…if
rea the law makes it an offence to do a negligent, rash or reckless act…it should say so
expressly. However, regulatory laws are an exception to this principle as such laws
are meant to protect the public interest rather than to condemn individual
behaviour…Most regulatory offences are strict liability offences and are expressed to
be so.’
‘s197(1) …is both a regulatory provision aimed at protecting the public interest as
well as a prohibition designed to condemn manipulative market behaviour…possible
that a mental element was implied.
‘However grave the mischief at which a statute is aimed may be, the
presumption is that the statute does not impose criminal liability without mens
rea unless the purpose of the statute is not merely to deter a person from
engaging in prohibited conduct but to compel him to take preventive measures
to avoid the possibility that, without deliberate conduct on his part, the
external elements of the offence might occur’

PP v Yue Mun The respondent was convicted on a charge of inciting
Yew Gary [2013] violence under s267C of the Penal code. On National
Day 2010, the Respondent had posted a comment on
Presumption of the ‘Wall’ of Temasek Review’s Facebook page
Mens Rea containing a link to a video entitled ‘Sadat
Assassination’ and included the comment that ‘We
should re-enact a live version of this on our own
grand-stand during our national’s parade’, ‘political
downfall is not within grasp, we should know what
and how next to escalate it’, ‘sure we all want the
physical removal of any influence of the incumbents
from the face of the earth’
Respondent was convicted and sentenced to a fine of
$6,000. Prosecution appealed against sentence on
grounds that the fine was manifestly inadequate and
pressed for a custodial sentence of at least 9 months’
imprisonment.
2 key issues:
(a) whether the Respondent had intended the
post to contain an incitement to violence; and
(b) whether the Respondent had intended to
incite violence
District Judge found (a) and not (b)
Quentin Loh J ‘I cannot discern any difference
between these two intentions’
‘It is pertinent also to inquire whether putting the defendant under strict liability will
assist in the enforcement of the regulations… there must be something he can
do…which will promote the observance of the regulations’
Whether the weight of ‘‘Section 267C is peculiar in that it contains no limiting mechanism to regulate the
the public interest ambit of the offence…Further, incitement is a loaded but ambiguous
protected by section term…Nonetheless, without some further check, section 267C is potentially very far
267C is sufficient to reaching…it cannot have been Parliament’s intention to criminalize such a wide
displace the presumption swath of content when the possible potential for harm would probably only
of mens rea and hence a arise in certain cases’
strict liability offence.
‘In addition, I am of the view… supports the presumption of mens rea’
Whether the offence was
a strict liability. ‘…clear that Parliament has never intended to create an unfettered offence under any
of these Ordinances…I am disinclined to regard s267C as having fallen so far from the
tree that it must constitute a strict liability offence…if Parliament had intended to
create a strict liability offence it would have expressly said so’
‘’I do not think it is correct to regard section 267C as a strict liability offence. There
are compelling reasons to refrain from displacing the presumption of mens rea even
though section 267C does perform an important function”
Prosecution appeal allowed, fine set aside, enhanced sentence to custodial sentence
of two months’ imprisonment.
Abdullah v Regina [1954] SGCA
Chapter IV
Buergin Juerg v PP [2013]
Chapter IV
The appellant was charged with and
convicted of rape under s376 of the
Penal code. There was ample evidence
that he had carnal knowledge of the
complainant and that her age was under
14. The appellant contended that he
thought she was over 16.
At the trial the learned Judge ruled that
this belief, if it existed, was immaterial
and refused to leave the matter to the
consideration of the jury.
The appellant was convicted and he
appealed on the point of law that he had
reasonable grounds for believing and
did in fact believe that the girl was older
than 14 and he was therefore entitled
for acquittal.
The accused appealed against the
decision of the district judge who
convicted him of 2 counts of having
commercial sex with a minor under the
age of 18, under s376B(1) of the Penal
Code.
He was convicted and sentenced to 4
months and 3 weeks’ imprisonment for
each charge with the sentences ordered
to run concurrently. He met the escort
twice and they had sexual relations on
both occasions. She was under 18 on
both occasions. The accused had asked
for the escort’s ID but was shown her
elder sister’s ID. The accused argued on
Point of law: whether mens
rea was a requirement for a
s376B(1) offence.
Was the prosecution obliged
to prove that the accused
knew that the minor was
underage.
Does the defence of no mens
rea apply?
Section 79 – nothing is an offence which is done by any person who is
justified by law, or who by reason of a mistake of fact and not by reason of
a mistake of law in good faith believes himself to be justified by law in
doing it.
‘according to modern ideas…an act only acquires its criminal character by
being forbidden by law…I do not think that it is possible to have an
intermediate area that is not forbidden but not justifiable’
Gour ‘the clause simply declares that an act even though committed with
the consent of a child then under fourteen years of age would be rape, her
consent and precocity being both immaterial. The fact that such a girl can
discriminate between right and wrong and had invited the accused to the
act are both wholly irrelevant, for the policy of the law is to protect
children of such immature age against sexual intercourse’
‘I have no difficulty with the proposition that there is a presumption that
Parliament would not intend to make criminals of persons who were not
blameworthy’
377D(1) subject to subsections (2) and (3) and notwithstanding anything
in section 79, a reasonable mistake as to the age of a person shall not be a
defence to any charge of an offence under section 376A(2), 376B ir 376C
‘s377D(1) leaves no doubt that an accused…cannot raise in his defence
that he did not know that the person he had paid sex with was under-
aged.’
In this case, the offence was an absolute offence.
Appeal dismissed.
 that basis that he did not know she was
under 18.
Tan Khee Wan Iris v PP [1995] The appellant was convicted of
providing public entertainment without
Chapter IV a license. The licence issued stated that
the appellant was licensed to provide
public entertainment until 6am on 1 Jan
1994. However, the licence also stated
that it expired on 31 Dec 1993. The
licensing offer admitted that she had
made a mistake and had intended to
issue a licence that was valid until 6am
on 1 Jan 1994. It was argued that the
appellant acted under a mistake of fact.
The DJ held that the offence was one of
strict liability and convicted the
appellant under section 18(1)(a) of the
Public Entertainment Act (Cap 257).
Comfort Management Pte Ltd v PP The appellant was convicted on the
[2003] charge that it had employed a foreigner
otherwise than in accordance with
Chapter IV condition 2(d) of his work permit,
namely, by authorizing him to drive
company vehicles outside construction
sites in the course of his employment,
and had thereby committed an offence
under s5(3) of the Employment of
Foreign Workers Act which was
punishable under section 22(2) of the
Was the appellant able to
establish the defence of
mistake of fact?
Is section 5(3) a strict liability
offence?
‘As there is nothing in the Act which excludes the operation of s79 of the
Penal Code in respect of an offence under s18(1)(a), it follows that the
Prosecution’s concession that the defence of mistake under s79 is available
to the appellant is rightly made. This is so even if the offence is one of strict
liability for an offence of strict liability is simply one where the Prosecution
need not show mens rea in respect of an element of actus reus.
S52 ‘Nothing is said to be done or believed in good faith which is done or
believed without due care and attention’
‘The test of whether a mistake was made in good faith is not whether the
mistake was an easy one to make nor whether a reasonable person could
make the mistake…s52…the test is whether there was due care and
attention…the defence is not made out unless it is show on a balance
of probabilities that the appellant exercised due care and attention’
‘…it is not a mistake that the same reasonable person will make if he
exercises due care and attention…if he gives it the barest thought, he will
not make the mistake’
Gammon Ltd, Lord Scarman (1) –(5)
MV Balakrishnan v PP’ however if the penalty involved is ‘slight, involving,
for instance, a fine, particularly if adequate enforcement depends upon
wholesale prosecution, or if the social danger arising from violation is
serious, the doctrine of basing liability upon mere activity rather than fault,
is sound’
‘First, the offence cannot be described as ‘truly criminal’ in character and
indeed, it carries little social stigma. Secondly, s5(3)… is concerned with an
issue of social concern. It is undoubtedly of social concern that the
government’s strategy of limiting foreign workers to sectors of the
 Act.
S5(3) ‘no person shall employ a foreign
work otherwise than in accordance with
the conditions of the work permit’
Condition 2(d) ‘engaged only in the
construction activities listed in Annex A
of this document (Note: …activities do
not include driving outside construction
site’
MV Balakrishnan v PP [1998] The appellant was convicted on a charge
of permitting his employee to use his
SGHC lorry when the employee was not a
holder of a Class 4 driving licence, an
Due Diligence offence under s35(1) RTA.
The appellant was also convicted of the
Magistrate’s Appeal No 198 of 1997 2
Grounds of Judgment consequent charge
of permitting the employee to use the
said vehicle without proper insurance
coverage against third-party risks in
contravention of section 3(1) Motor
vehicles (Third Party Risks
Compensation) Act (Cap 189).
Did MV Balakrishnan take
reasonable care / exercise due
diligence which could be
translated into a defense in
strict liability?
Is section 3(1) a strict liable
offence for which there is a
defense of reasonable care? –
yes.
economy where they are needed should succeed. Thirdly, it is also clear
that imposing strict liability here will encourage greater vigilance on the
part of employers to prevent the breach of work permit conditions.’
Appeal dismissed, judge’s decision upheld.
‘where a statutory provision creates an offence there is a presumption that
mens rea is an ingredient… Lord Pearce’s remarks in Sweet v Parsley…
commented that the mere absence of the word ‘knowing’ was not enough.
Other considerations included that nature of the crime, the punishment,
the absence of social obloquy, the particular mischief and the field of
activity in which the crime occurred’
‘if the penalty is slight… particularly if adequate enforcement depends
upon wholesale prosecution, or if the social danger arising from violation is
serious the doctrine of basing liability upon mere activity rather than fault,
is sound. The present offence under s35(1) was…such an offence.’
‘The prohibited act was not one which the public could easily protect by its
own vigilance but one that Parliament had legislated in the interests of
public safety…clear to me that construction of strict liability would
promote observance of the law by person s who possess the means to take
appropriate action to prevent the prohibited act’
‘I was not prepared to find…that the offence was one of absolute liability.’
“difficulty with words such as ‘permit’ and ‘cause’ in statutes creating
public welfare offences and was of the view that such offences ‘fit much
better into an offence of strict liability than either full mens rea or absolute
liability… Proof of the prohibited act prima facie imports the offence, but
the accused may avoid liability by proving that he took reasonable care’

‘The doctrine proceeds on the assumption that the defendant could have
avoided the prima facie offence through the exercise of reasonable care and
he is given the opportunity of establishing, if he can, that he did in fact
exercise such care.’

Appeal dismissed, on grounds that appellant ‘had the means to take

reasonable care to prevent his employee from carrying out the prohibited
act but failed to exercise those means.’
 Challenges to Establishing a Crime

A. The Concurrence Principle / Coincidence of AR and MR

One Transaction Approach

 Problem arises when fault element of the crime concerned was present during earlier part of the transaction but absent at the
later part. (ie. AR does not coincide with MR, as both are in separate acts). The problem distinctly separate interval of time
between existence of fault element and commission of the physical element of the crime
 In order for One transaction approach (Thabo Meli) to apply - Mens Rea must be very clear, the purpose is clear,
subsequent ARs are added together to form the crime.
 Major deficiency  does not describe what courts should look for to determine whether or not the act of accused causing the
proscribed harm formed part of the same transaction.
 Although no difficulty in concluding that acts were pursuant to preconceived plan  law does not insist on proof of a
preconceived plan for the concurrence principle to be met
 Transaction should not be adopted because it fails to explain why a series of acts comprises the same transaction.
 Based on the principle that  Lord Kenyon CJ, Fowler v. Padget ‘the intent and the act must both concur to constitute a crime’

Case Facts of Case: Issue Judgment held

Thabo Meli & The appellants acted under a preconceived plan first to kill Because there ‘’it appears to their Lordship impossible to divide up what was really
Others v R the deceased and then make the death look like an accident. was no one transaction in this way. There is no doubt that the accused set out
[1954] 1 WLR They struck the deceased on the head and, believing him to coincidence of to do all these acts in order to achieve their plan and as parts of their
228 SCM 503 be dead, rolled him over a cliff and faked the scene to AR and MR, plan; and it is much too refined a ground of judgment to say that, because
resemble an accident. Medical evidence revealed that death therefore no they were under a misapprehension at one stage and thought that their
was caused by exposure to the elements and not the head actual crime guilty purpose had been achieve before in fact it was achieved, therefore
wounds. committed? they are to escape the penalties of law.”

The appellants argued that the concurrence principle had “There could be no separation such as that for which the accused
 not been met since the blows which were intended to kill contend, so as to reduce the crime from murder to a lesser crime, merely
did not kill, and since their acts which did kill were not because the accused were under some misapprehension for a time
accompanied by murderous intent since they thought they during the completion of their criminal plot.’’
were handling a corpse.
Appeal dismissed.
Mohammad The deceased was a part-time waitress and was a drug Because there “the appellant’s acts of concealing and abandoning the body of the
Radi v PP addict. The appellant was a drug addict and supplied drugs was no deceased were so intimately connected with his acts of striking the
[1994] to the deceased. One evening, both of them smoked heroin coincidence of deceased that all the acts must be treated as only one transaction.”
and indulged in sex. Later, a quarrel ensued where the AR and MR,
SGCA appellant accused the deceased of stealing from him. He therefore no “The appellant in the present case took careful and calculated steps to
struck her several times with a stick and dragged her into actual crime ensure that the deceased would not be easily discovered by any third
the kitchen and forcibly pushed her into a crouching committed? parties, and left her in that position without taking any further interest in
position under the kitchen ledge and covered the body with her”
a canvas sheet. He took no further steps to find out about
her. “he had intended to inflict the injuries on the deceased, and the acts with
the injuries taken together were sufficient in the ordinary course of
The deceased’s body was discovered 2 days later in a badly nature to cause death”
decomposed state, which injuries such as a gaping
laceration on the left forehead and on the fourchette of the “the appellant’s acts…constituted one single transaction”
vaginal opening.
Appeal dismissed.
Appellant charged for murder, punishable under s302 of
Penal Code.

Two main grounds of appeal:

1. Could not be conclusively said that the injuries
inflicted by the appellant were sufficient in the
ordinary course of nature to cause death.
2. More than one inference could be drawn from the
appellant’s act of concealing and abandoning the
deceased, and the one most favorable must be
drawn by the court. Thus any injuries that resulted
 from or were aggravated by his subsequent acts
could not have been taken into account for the
purpose of section 300(c) as he may not have
intended to inflict those injuries.
Shaiful Edham The appellants had inflicted several stab wounds on the Because there From Thabo Meli approach: ‘‘A series of distinct acts may in some
bin Adam v PP deceased’s neck and jaw before disposing what they was no circumstances be regarded as forming part of a larger transaction;
[1999] 1 thought was a corpse into a canal. The autopsy showed that coincidence of and it will suffice if the accused had the necessary mens rea at some
SLR(R) 442 the deceased was then still alive and had died by drowning AR and MR, point in the transaction, even if it did not coincide precisely in time
SCM 508 and, furthermore, that her wounds would have bled slowly therefore no with the actus reus, the act which caused death.’’
for hours so as to cause her to lapse into unconsciousness actual crime
and to appear dead. The first appellant had professed his committed? “The crux of the appeal was that the appellants clearly intended to kill
intention to kill the deceased to a witness and even offered the deceased so that the entire series of acts by which they achieved
the latter money to help dispose of the body. their object had to be regarded as one transaction.”

The appellants’ appeal was that: “Putting it another way, only if the second cause is so overwhelming as to
1. Both did not share the common intention to commit make the original wound merely part of the history can it be said that the
murder. death does not flow from the wound”
2. Both genuinely thought that the deceased was
already dead when they threw her body into the Appeal dismissed.
canal, hence lacked the requisite mens rea for
murder.

Wang Wen Appellant convicted of murder under section 300(c) of the Can you apply “the evidence in the present case clearly showed that the appellant had a
Feng v Public Penal Code (Cap 224, 2008 Rev Ed), for the death of a 58 Thabo meli? preconceived plan to rob…there was insufficient evidence to show that
Prosecutor year old taxi driver. the plan included an intention to kill…and to abandon his body…what the
[2012] 4 SLR It is a one evidence showed…was that the appellant stabbed Yuen in the course of
590,CA SCM The appellant had set out to rob the deceased, and in a transaction the struggle and the stabbing caused Yuen’s death”
513 course of a struggle, had stabbed the deceased in the chest. approach?
Believing the deceased to be dead, the appellant then “The appellant’s stabbing and abandoning of Yeun’s body in the
SGCA abandoned the body amongst the undergrowth in a nearby undergrowth were separate and distinct physical acts which were done
forested area. The body was found 6 days later, highly sequentially…there was neither preconceived plan nor a spontaneous
decomposed. intention to kill Yuen and to conceal his body, the Thabo Meli approach

On Appeal, appellant argued that the deceased’s death was
caused not by the stabbing but by other natural causes. And
that assuming the deceased was not dead from the stabbing
and had died due to the abandonment, there was a problem
of non-concurrence of the mens rea and actus reus.
B. Causation
 Question is what was the main (substantial and operational) cause of death / injury, it would be considered the main cause of
death unless another cause which is more overwhelming than the original.
 Trying to link a cause and a consequence (ie. Act = death).
would not be applicable”
“In terms of causation of death, we would say that there was no break in
the chain of causation by the subsequent act of abandonment. The real
cause of death was, in our view, the massive loss of blood from the stab
wounds.”
“it was not necessary for us to rely on the Thabo Meli approach… In our
view, it is inherent in an offence under section 300(c), as statutorily
defined that there will always be a concurrence of the actus reas
and mens rea. The MR is the intention to inflict the particular bodily
injury whereas the AR is the actual infliction of that bodily injury. The
intention to injure and the actual bodily injury caused coalesce in the
single act of inflicting the injury.”
“Subsequent or additional AR will not displace the consequence which
flows from the initial AR…there was concurrence of the AR and MR when
the appellant intentionally stabbed Yuen and caused his death in the
ordinary course of nature, through the massive loss of blood from the
stab wounds”
Case Facts
R v. Smith [1959] The appellant, a private soldier, was charged
with the murder by stabbing of a soldier of
another regiment during a barrack-room fight.
The deceased man had received 2 bayonet
wounds, one of which pierced the lung and
caused hemorrhage.
While being carried to the medical reception
station for treatment he was dropped twice. At
the reception station he was given treatment
which was subsequently shown to have been
incorrect.
R v. Blaue [1975] The defendant came into the house of the
victim and asked her for sexual intercourse.
She refused. He then attacked her with a knife
inflicting 4 serious wounds. She was admitted
at the hospital. She refused a blood transfusion
as it would be contrary to her religious beliefs
as a Jehovah’s Witness. She was warned that
she would die without a blood transfusion and
said she did not care if she died.
The defendant was convicted of manslaughter.
He was also convicted of wounding her with
intent to do her grievous bodily harm.
He appealed against conviction on the ground
that the judge had misdirected the jury on
causation since the girl’s refusal to have a
blood transfusion on religious grounds had
Issues
Whether the knife wound
was a substantial cause of
death (as there was a
chance of survival if he had
received immediate and
different treatment)
Did the fact that the
deceased refuse blood
transfusion break the chain
of causation?
Judgments
“It seems to the court that if at the time of death, the original wound
is still an operating cause and a substantial cause, then the death can
properly be said to be the result of the wound, albeit that some other
cause of death is also operating…only if the second cause is so
overwhelming as to make the original wound merely part of the
history can it be said that death does not flow from the wound.”
“the death resulted from the original wound”
Appeal dismissed.
The court referred to Reg. v Holland, where it was held that ‘’the
real question is, whether in the end the wound inflicted by the
prisoner was the cause of death…He who inflicted an injury which
resulted in death could not excuse himself by pleading that his
victim could have avoided death by taking greater care of himself”
The defense argued that the jury should have been directed that if
they thought the deceased’s decision not to have a blood transfusion
was an unreasonable one, then the chain of causation would have
been broken. This gives rise to the question of the standard of
reasonableness which is hard to ascertain the standard of
reasonableness.
“The question for decision is what caused her death. The answer is
the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act
and death.”
 broken the chain of causation between the
stabbing and her death,
Ng Keng Yong v. PP The first appellant was the OOW on the
[2004] Courageous while the second Appellant, a
trainee OOW, had control of the steering. When
the Courageous reached the end of her patrol
area, the second appellant ordered the vessel
to ‘U-Turn’, leading her to proceed against the
floor of traffic.
The Closest Point of Approach (CPA) alarm was
activated, indicating that the closest distance at
which the Courageous would pass the target
vessel (the ANL) was 3 cables. The ANL was on
the port side of the Courageous. The OOW
ordered a series of alterations to port to
increase the CPA. The ANL altered to starboard
in accordance with the ‘Collision Regulations’.
This resulted in the vessels colliding. 4 crew
members of the Courageous died and the
appellants were charged under s304A for
causing their deaths by negligently navigating
the Courageous.
Appeal dismissed.
Whether ANL’s The judge accepted that the vessels would not have collided if the
contributory negligence ANL had not been negligent but emphasized that the appellants
broke the chain of were the ones who created the situation of danger to begin
causation with. Although they were not negligent in navigating against the
flow of traffic due to operational exigencies, the onus was on them to
take the necessary extra precautions to avoid any potential risk of
collision with other vessels…the appellants’ negligence was clearly a
substantial cause of the collision…the ANL was forced to react in
response to a risk of collision created by the appellants’ own
negligent actions.
“criminal liability…should attach to the person(s) whose negligence
contributed substantially, and not merely peripherally, to the result”
“it is axiomatic that a person who embarks on a deliberate act of
negligence should, in general, bear a greater degree of fault than one
who fails to cope adequately with the resulting crisis which is thus
thrust upon him” – The Miraflores and the Abadesa.
The judge could not see how the appellants could seriously argue
that their negligence had not contributed significantly to the
collision and the consequent deaths of the 4 servicewomen.
Both appeals dismissed
R v Maybin [2012] Late at night, in a busy bar, the accused
SCC 24 brothers T and M, repeatedly punched the
victim unconscious. Arriving on the scene
Supreme Court of within seconds, a bar bouncer then struck the
Canada. victim in the head. The medical evidence was
inconclusive about which blows caused death.
As a result, the trail judge acquitted the
accused brothers and the bouncer. On appeal
to the Court of Appeal, majority found that the
accused brothers were guilty of the offence,
though w dissenting judgments.
Whether the appellant had Issue of Factual Causation:
caused the death in fact,
and if so, whether the “The appellant’s actions were not the direct and immediate cause of
subsequent assault by the victim’s death, “but for” their actions, the victim would not have
another person constituted died” – in terms of factual causation, the appellant was factually
an intervening act that liable.
nonetheless broke the
chain of legal causation. “As Smithers and Nette made clear, factual causation is not limited
to the direct and immediate cause, nor is it limited to the most
Factual Causation vs Legal significant cause” – the assault by the brothers was either the
Causation. How to direct medical cause of death or it rendered the victim vulnerable to
determine each of them? the bouncer’s assault.
Issue of Legal Causation:
“Also referred to as imputable causation, is concerned with the
question of whether the accused person should be held responsible
in law for the death that occurred” – for the purpose of criminal
liability.
Two approaches to explain when an intervening act breaks the chain
of causation:
1. Objectively or Reasonably Foreseeable
- An intervening act that is reasonably foreseeable will
usually NOT break the chain of causation so as to relieve
the offender of legal responsibility for the unintended
act.
- Principle of moral accountability: The accused who
undertakes a dangerous act, and in so contributing to a
death, should bear the risk that other foreseeable acts

R v. Lewis (Robert A group of students were alighting from a taxi
Walter) [2010] and making their way across the road. The
appellant was driving a motor vehicle,
accompanied as passengers by his friend and 2
females to whom he was giving a lift. He
sounded the horn and remonstrated, then got
1) Whether the deceased
ran or continued to run as a
flight response to an attack
or threatened attack by the
appellant. If so, it was open
to the jury to find the
may intervene and contribute to that death.
- Reasonably foreseeable in the sense that the acts and the
harm that transpired flowed reasonably from the
conduct of the accused.
- This approach incorporates the notion of
blameworthiness.
2. Independent Acts
- Whether a more immediate causal action of another
party acting independently effectively overtook the
accused’s actions, if so, the accused’s liability diminishes.
- Depends on the relative weight of the causes and
whether the intervening cause is so overwhelming to
the original wound to make it merely part of history.
- Depends on how connected the original wound is to the
event.
- The intervening act must have independence (not
triggered or provoked by the initial act).
- Legal causation focusses on the connection (or
independence) between the actions of the individuals
and the effect of those actions, not on the connection
between actors.
Since it was reasonably foreseeable and that the action by the
bouncer was not an independent act, the appeal was dismissed as it
did not break the chain of causation.
The defence argued that the jury should have been directed not only
to consider whether the deceased’s action in running away was
‘foreseeable’ in addition to being ‘at least one of the responses which
might have been expected’
‘In our judgment the jury could not have been in doubt that they
 out and approached one of the students who
had, he said, hit the vehicle. During the course
of the incident which followed, it was the
prosecution case that the appellant pushed
aside one of the female students. Her brother
intervened either to punch/push the appellant
and subsequently ran from the scene into the
road, where an oncoming car collided with him,
causing fatal injuries.
appellant guilty of unlawful were being asked to measure the nature of the threat posed by the
act manslaughter. If, unlawful act with the form of escape adopted by the deceased…The
however, he was either words used by the judge are ordinary language to explain
unaware that he was under reasonable foreseeability.
attack or threatened attack,
or if his flight was of his Appeal dismissed.
own volition and unrelated
to any act of the appellant’s,
or not reasonably
foreseeable, then the
appellant was entitled to an
acquittal.

2) The proportionality
between the attack or
threatened attack, which
constituted the unlawful
act, and the response of the
deceased to run into the
road.

 Approach regards D’s initial act as a cause of V’s death -> as the initial act was performed with the requisite fault element -> no further
problem & D is guilty of culpable homicide.
 Subsequent act by D may have been a cause of death but does not negate criminal liability -> law recognizes possibility for more than 1 cause
 Unnecessary to establish causal link between D’s initial act & subsequent acts
 D is found guilty on the basis that his initial act was itself a substantial cause of death
 Concurrence principle satisfied so long as that act was done with requisite fault element
 Causation approach accepted by Singapore in Shaiful Edham as an alternative to transaction approach
  Causation approach defective in a number of respects
 Uncertainty & confusion surrounding law of causation -> ‘voluntary’ ‘foreseeable’ ‘intervening’ measures heavily driven by policy ->
broadly/narrowly construed on ‘fair’/’moral’ -> in themselves vague and imprecise
 Might work arbitrarily in favour of or against an accused: Empress v. Khandu Valad Bhavani
 Might apply to unjustly convict D even though a 3rd party, acting independently, had performed the fatal act -> held in Shaiful Edham
 Might lead to arbitrary results depending on whether there was a subsequent act/event so overwhelming so as to amount to a novus actus
interveniens -> when such act/event constitutes sole cause of prescribed harm, D’s earlier act can no longer remain a substantial cause ->
applied to Thabo Meli, the concurrence principle would not have been satisfied if V had died instantly from the impact of being thrown over
the cliff -> D’s criminal liability depends on chance element of whether V survived the immediate impact of the fall

C. Attempts:

 Ajiaib Singh J in Thiangiah v PP – “An attempt to commit a crime is an act done with intent to commit that crime, and forming
part of a series of acts, which would constitute its actual commission if it were not interrupted”
 Defined as “embarked on the act proper” - Lord Lane in R v Gullefer

Case Facts Issues Judgments / Principles

Thiangiah & First appellant was a senior conductor of the Did this act There are four stages in every crime:
Anor v PP estate while the second appellant was a field amount to an 1. Intention
[1977] 1 MLJ 79 worker who worked directly under the attempt to 2. Preparation
supervision of the first appellant. The assistant commit theft? 3. The attempt
Court of manager of the estate decided to set up an 4. The actual commission
Criminal ambush when he was suspicious that they were
Appeal, stealing bags of fertilizers. One day, the An attempt is an act done with the intention to commit that crime and forming
Singapore appellants were loading the bags of fertilizer part of a series of acts which would constitute the actual commission if it were
into the car when they were stopped. The not interrupted.
appellants were detained.
“this was insufficient to constitute an attempt…the acts of the appellants fell
Trail judge found appellants guilty and convicted short of the actual attempt to steal as the acts were not immediately connected
them on an attempt to commit theft. with the offence of theft”

Chua Kian Kok v The appellant, a partner of TT Hardware
PP [1999] 1 Supplies, was convicted of abetting Guok Sing
SLR(R) 826 King, a warehouse supervisor at Nordberg (S)
Pte Led by conspiring to cheat Nordberg into
SGHC paying TT under the mistaken notion that the
payment was for goods ordered by Nordberg.
Attempt + Under their scheme, Allen would sell goods to
Defense of TT Hardware Supplies cheaply and then
impossibility pretend to take delivery of them on Nordberg’s
behalf by signing false delivery notes. Chua
would then invoice Nordberg for these goods
which Nordberg never received.
Chua convicted of an offence punishable under
s511 read with s109 and s420 of the Penal
Code (224).
“The apprehension of the appellants were indeed premature…to find out if the
appellants were intending to take the bags to the store or out of the estate itself
or to some unauthorized or secret place and this would have afforded ample
proof of their guilt or innocence”
Appeal allowed.
Definition of an In order for an attempt to commit an offence under s511, MR and AR have to be
attempt? proved.
Can a defense of The MR of attempt is intention. “the accused must intent to commit the
impossibility substantive offence, even though a lower mental state would have sufficed to
hold against a satisfy the ingredients of the substantive offence.”
charge of
attempt? The general offense of attempt under section511 of Penal Code is the
intention to commit the primary offence.
For an offense under s511, to punish, it must be shown that he intended to
commit the offence, even though a lesser mental state would have sufficed for
the completed offence. This is because a section 511 offence is an inchoate
offence (ie. No actual crimes were committed; no one was hurt / property was
not damaged or stolen)
AR – by Lord Lane in R v Gullefer: “The Act envisaged a “midway course”. A
person can be said to have attempted an offence when he “embarks on the crime
proper””.
Singapore position follows Lord Lane. The offender must have “embarked on
the crime proper”.
Defense of Impossibility: 4 different types
1. Physical Impossibility

PP v Mas Swan Mas Swan and Roshamima were caught at Whether
Bin Adnan Woodlands checkpoint in a vehicle which Swan
[2012] 3 SLR carried 3 bundles containing one hundred and committed an
527 23 packets of substances containing not less offence
-
For example, attempting to steal jewels from an empty safe is an
offence that is impossible to commit simply because the jewels are
not physically there.
- However, under s511, it is clear that the section catches these types
of attempts.
2. Non-criminality of the intended offence
- When someone commits an act knowing it is illegal but in fact isn’t.
- Common sense dictates this type of impossible attempts not caught
under s511.
3. Impossibility by law
- For example, when a man takes away his own umbrella from a stand
with the intent to steal it as he genuinely believes that it belongs to
another. The person is liable for attempting to steal as if intending to
steal an umbrella belonging to another.
- The attempt was in respect of the intended offence.
- As such, legal impossibility is not a valid answer to a charge under
s511.
4. Impossibility through the ineptitude of the would-be criminal
- For example, trying to break into a safe with a jimmy that was too
small for the task. Compared to a man standing outside the house
and trying to use his telepathic powers to open the safe and
“teleport” the contents to him. The man genuinely believes that he
has the ability to do so and does so in full earnest. Both are equally
morally culpable as both intend to steal and have done their best to
achieve it.
- Faces the problem of absurdity.
- Conclusion is that there is very little room for the defense of
impossibility to operate in the law of attempt.
Mas Court agreed with decision in Chua Kian Kok that the MR for the general offence
had of attempt under s511 was the intention of the primary offence.
of “In our view, when Parliament enacted section 12 of the MDA, it must be
 than 21.48g of diamorphine. Trail judge attempted
SGCA acquitted Mas Swan as he had rebutted the importation
presumption that he knew the three bundles ecstacy.
contained drugs but convicted Roshamima
based on the evidence.
Appeal by Prosecutor to convict Mas Swan on
an amended charge of attempt to import
ecstasy.
presumed, in the absence of contrary indication, to have intended to follow the
of existing common law position on factually impossible attempts” – ie. Physically
impossible attempts are an offence under s511 of Penal Code.
Court found that Mas Swan “own evidence is that he thought he and Roshamima
were transporting ecstasy…intended to commit the primary offence of importing
ecstasy”  hence MR fulfilled
Court also found, “Mas Swan had done everything possible to complete the
offence of importing ecstasy”  AR fulfilled

Appeal allowed.
Law Society v Jenny, a part-time private investigator and part- Whether the The employment was impossible factually.
Bay Puay Joo time real estate agent, was engaged by a private respondent has
Lilian [2008] 2 investigation agency to assist in investigating the requisite On whether the fictitious employment precluded a finding of guilt: Held that “the
SLR (R) 31 whether certain law firms were touting for intention in essence of an attempt is the intention to commit the offence” and that “the law
conveyancing work by offering monetary attempting to does not preclude an attempt to do something which is impossible” – shows
SGHC incentives to real estate agents. Jenny procure that “the non-existence of the subject matter of an offence does not preclude an
telephoned the respondent claiming to be a real employment attempt to commit it” as held in Chua Kian Kok v PP.
estate agent of a prospective purchaser who from Jenny
needed to engage a conveyancing lawyer. Appeal dismissed.
Whether it was
When both of them met face to face, Jenny in fact Jenny
asked the respondent whether she would pay a who attempted
referral fee for the purported conveyancing to procure
case which Jenny was proposing to refer to the remuneration
firm. In response, the respondent wrote ‘10%’ for herself in
on a piece of paper and gave it to Jenny, when return for
asked what it meant, the respondent clarified promising to
that ‘10%’ referred to ten per cent of the procure
professional fees that the firm would receive employment for
from the client for the conveyancing the respondent
transaction. Subsequently, Jenny mentioned the
possibility of referring HDB transactions to the Whether the
respondent and a discussion ensued. fictitious and
non-existent
Jenny then informed the respondent that a employment
colleague of hers was looking for lawyers to which the
handle his HDB transactions, Jenny then asked respondent
what fee she would receive if she referred a agreed to
HDB sale or purchase transaction. The remunerate
respondent replied that she would pay a flat Jenny precluded
referral fee of $100 per case. She wrote down her from being
that number on a piece of paper and handed it found guilty of
to Jenny. the amended
charge
Charge against the respondent - guilty of
attempting to produce employment of herself
as an advocate and solicitor to act in a
conveyancing matter or conveyancing matters
by promising to pay a commission to Jenny in
exchange for referrals - of contravening section
83(2)(e) and/or section 83(2)(h) of the Legal
Profession Act.

Appeal by Law Society of Singapore for the

respondent.
PROPERTY OFFENCES

A. Theft

378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent,
moves that property in order to such taking, is said to commit theft.

“Dishonestly”
24. Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do
that thing dishonestly.

“Wrongful gain” and “wrongful loss”

23. “Wrongful gain” is gain by unlawful means of property to which the person gaining it is not legally entitled; “wrongful loss” is loss by
unlawful means of property to which the person losing it is legally entitled.

2 interpretations:
1. Actus reus: that A moved V’s moveable property
Mens rea: that A dishonestly intended to take the property out of V’s possession without V’s consent.

2. Actus reus: that A moved V’s movable property out of V’s possession, without V’s consent
Mens rea: that A was dishonest

1st interpretation favoured:

(i) sufficient if the accused has moved the property to some degree (even if the property still remains in the victim’s ‘possession’)
(ii) not necessary for the prosecution to prove that the other person did not consent; rather, they must prove that the accused
intended to take the property without consent.
(iii) To prove MR, the taking out of the possession without consent helps to prove intention.
Case Facts Issues Judgment
PP v Tan Kooi Was the accused ‘The fact that the Penang Port Commission suffered no loss does not of course mean that
Choo [1961] dishonest? the respondent did not cause a wrongful gain to himself.

Theft – Has it been shown as a necessary inference that his intention in taking the tea was
Intention to dishonest? It is to my mind not a necessary inference.
take
Dishonestly Appeal dismissed
Mustaza Bin The accused, at a place used for the custody of Whether the taking of the Overall, appellant was apprehended outside the premise of the supermarket 
Abdul Majid v property, committed theft of one carton of ‘Red carton was with the established that there was a taking of the carton without consent and that there was a
PP [2004] Bull’ from the possession of Mdm Neo Lay Wah, the consent of the proprietors dishonest intention on the appellant’s part to take the carton.
Store Manager of Prime Supermarket…charged for of the supermarket, and if
Theft – an offence punishable under s380 of the PC, there was no consent, ‘Theft, as defined in section 378 of the PC…requires a lack of consent on the part of the
Intention to Chapter 224. Appellant was sentenced and now whether the appellant had person whose movable property is dishonestly taken from his possession, before it
take appealed against the conviction. taken it with a dishonest can be fully constituted…such consent may be express or implied…”
Dishonestly intention?
s380 - ‘whoever commits theft in any building, tent, Theft is not an inchoate offence, MR alone will not be sufficient. However, the owner of a
or vessel, …is used for human dwelling, or for the Both ingredients tied to store does not, in the ordinary course of business, consent to patrons taking
custody of property’ – usually for shoplifting whether the appellant was merchandise out of the premises of the store without making payment. Such taking,
offences committed in supermarkets and shops. still within the premises of coupled with dishonesty would constitute theft, as it is noted that leaving the store
the supermarket when without making payment for an item is not necessary for theft to be committed, although
apprehended. it would certainly be sufficient.

AR, taking of item = “…the finding that the appellant had been stopped outside the
premises of the supermarket”

MR of dishonest intention = “appellant had been stopped…after taking the carton

without payment, and therefore without legal entitlement, led obviously to the inference
of a dishonest intention” – an accused person’s dishonest intention cannot be directly
proved, and has to be inferred from the conduct of the accused and from the surrounding
circumstances.

“The ability to pay does not, by itself, negative an intention to steal”

Appeal dismissed
Ward and The 2 appellants were convicted of the theft of
Anor v PP certain articles, under s380 of the PC.
[1953] The main point argued in the appeal was that the
evidence tended to show that the appellants,
Theft – although they admitted taking the articles, did not
Intention to take them with any criminal intention. They
take intended to obtain the consent from the owner in
Dishonestly due course and when he required the articles they
would return them to him.
Raja Appellant was a chemical mixer employed by the
Mohamed v Singapore Glass Manufacturers Co Ltd, was charged
Regina [1963] with theft of property in the possession of his
employer under s381 of the PC.
SGHC Alleged that he committed theft in respect of 2
dozen drinking glasses, in that he moved the
Theft - Moves glasses from the store on the ground floor to a box
on the first floor. He was convicted by the trial
Magistrate and sentenced to 1 day’s imprisonment
(s381 mandatory imprisonment) and a fine of $300.
Appeal was that it was not proved that the glasses
had been removed out of the possession of the
Company, and that the act of the appellant
amounted merely to preparation and not even to an
attempt to commit theft.
PP v Ramiah Appeal against acquittal of the first Respondent
and Others who, along with 2 others, were prosecuted for
[1959] housebreaking and committing an offence of theft
contrary to s454 of the PC.
Theft - Moves The 3 accused broke into the living room of the
Whether the appellants
had no criminal intention
prove that they were not
dishonest?
Whether the fact that the
accused had not moved the
glasses out of the
Company’s possession
meant that there was no
theft (wrt to definition ‘out
of possession’)?
And that it was merely an
attempt?
Whether the fact that the
first respondent did not
have the intention to steal
allowed an acquittal?
Conviction under s380, definition of theft under s378.
Definition of ‘dishonesty’ in section 24 and 23 of the Code. – ‘‘Whoever does anything
with the intention of causing wrongful gain to one person, or, wrongful loss to another
person, is said to do that thing ‘dishonestly’.’’
Judgment from Queen-Empress v Sri Churn Chungo
“When the section is read in this way it is evident that it was the intention of the
Legislature that it should be theft under the Code, to take goods in order to keep the
person entitled to the possession of them out of the possession of them for a time,
although the taker did not intend to himself appropriate them, or to entirely
deprive the owner of them.”
Appeal dismissed.
‘’to constitute theft there must be an intention to take dishonestly any movable property
out of the possession of another person without that person’s consent…But…it is
sufficient if the person who has formed such dishonest intention moves that
property in order to such taking; and it is not necessary for him to move that
property out of the possession of the other person.”
The second submission was that the act…amounted merely to preparation and not even
to an attempt to commit theft…the requisite dishonest intention (MR) was established
beyond reasonable doubt. The offence of theft was committed as soon as the accused
moved the property in order to the dishonest taking (AR).
Appeal Dismissed.
Reference to PC definitions of ‘theft’ and ‘dishonesty’:
Theft = dishonesty, taking any movable property out of the procession, without consent.
Dishonesty = intention of causing wrongful gain to one person, or wrongly loss to
another
 complainant and removed a trunk containing a
large quantity of property. Subsequently, the trunk,
with its contents intact, was found in the
possession of one of them. The Respondent’s
defense was that the Complainant owed him money
and he moved the property because he thought if
he kept it for a few days, the Complainant would
repay the debt. He had no intention to steal. The
defense of the others was that they thought the
property belong to the 1st respondent and that they
assisted him to remove it.
MR issue. Reference to Judgment from Queen Empress
“When the section is read in this way it is evident that it was the intention of the
Legislature that it should be theft under the Code, to take goods in order to keep the
person entitled to the possession of them out of the possession of them for a time,
although the taker did not intend to himself appropriate them, or to entirely
deprive the owner of them.”
Even though the respondent did not have the intend to steal, he took the items
dishonestly (wrongful loss to the complainant), thus, MR is satisfied under section 24
and section 378.
Appeal allowed

B. Robbery:

 Penal Code Section 390(2): “Theft is ‘robbery’ if, in order to commit theft…the offender, for that end…voluntarily causes or
attempts to cause to any person death, or hurt, or wrongful restraint…”
 Penal Code Section 390(3): “Extortion is ‘robbery’ if the offender, at the time of committing the extortion, is in the presence of the
person put in fear…by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.”
 Robbery = Theft or Extortion + Violence (with causal linkage)

Case Facts Issues Judgment

PP v Chia Poh The accused was in the same lift as a 7-year-old boy.
Yee [1992] He removed 40c from the boy’s pocket, at the same
time slapping the boy once and telling him not to
Robbery take the same lift again.
The accused pleaded guilty to a charge of robbery
with hurt under s394 of the PC. He was convicted
and sentenced to 7 years’ imprisonment and 12
strokes of the cane.
The PP brought this case before the High Court with
Whether the slap by the
accused was administered
for the purpose of stealing,
if not, does not amount to
an offence under section
394 of PC?
In order for theft to amount to robbery, the conditions specified in S390(2) must be
satisfied.
S390(2):
‘Theft is ‘robbery’ if, in order to commit theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, the offender, for that
end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful
restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.’’
“any force or threat of force used in the course of a theft must be for the purpose of
committing theft or of carrying away or trying to carry away the property obtained by
 the request that it exercises its powers of revision
under s268 of the CPC to review the propriety of the
charge and conviction and also the sentence
imposed.
C. Criminal Misappropriation:
Dishonest misappropriation of property
403. Whoever dishonestly misappropriates or converts to his own use movable property, shall be punished with imprisonment for a
term which may extend to 2 years, or with fine, or with both.
Case Facts
Wong Seng Kwan The appellant picked up a wallet that had been
v PP [2012] dropped on the floor by a Chinese national.
He took the wallet to the toilet and removed
Criminal $200 from the wallet.
Misappropriation He was then apprehended by the police and
charged under Section 403 of the Penal Code.
the theft.”
The facts…do not show clearly that the slap…was administered for the purpose of
stealing the 40c…or making off with the money once he had obtained it. Since the offence
of robbery simplicter was not made out, there can be no question of conviction for
aggravated robbery s394.
Conviction and sentence set aside, accused instead convicted of using criminal force in
committing theft under s356 of the Code.
Issues Judgment
Was Wong guilty of In order to prove misappropriation of property, the prosecution had to prove 3 things:
criminal 1. the movable property ("chattel") had to belong to some person other than the
misappropriation? accused person;
2. there had to be an act of misappropriation or conversion to his own use;
3. and the accused person had to possess a dishonest intention.
The difference is also made clear between misappropriation and other property
offences - misappropriation occurs when the person comes across the item in an
innocent manner, such as finding it, rather than setting out with the intention to steal
it. The finder of an object may be in possession of it but does not have true ownership
of it and hence if he keeps it, he must take reasonable steps to locate the true owner.
However, there is difficulty in covering a spectrum of situations such as picking up a
one dollar coin versus picking up a wallet with an identity card. Hence, the question is
if the finder can be reasonably expected to find the true owner of the item.
Appeal dismissed.
 D. Criminal Breach of Trust.

Criminal breach of trust

405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing
the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge
of such trust, or wilfully suffers any other person to do so, commits “criminal breach of trust”.

Precondition: the accused was entrusted with property or with dominion over property ‘in any manner’
Physical element:
(1) Misappropriation
(2) Conversion
(3) Use or disposal in violation of a direction of law
(4) Use or disposal in violation of a legal contract
(5) ‘Suffering’ another person to do any of (1) to (4)
Fault element: (1) – (4) -> ‘dishonestly’
(5) -> ‘wilfully’

Case Facts Issues Judgment

Gopalakrishnan The appellant was convicted by a district judge on 3 separate
Vanitha v PP [1999] charges under s408 of the PC of committing criminal breach of
trust by dishonestly misappropriating sums of money from
Criminal Breach of TRAC Chemicals Pte Ltd.
Trust The appellant was employed by the company as a confidential
secretary/office administrator during the material time. In the
‘Entrustment’ course of the appellant’s employment, she was often entrusted
with blank cheques pre-signed by her boss. These cheques
could be used to access the company’s funds kept in an account
with the UOB and were intended by her boss to be used for
Was the blank cheques = ‘’in order for an offence of criminal breach of trust to be made out, one
property? of the elements that must be established is that the accused was
‘entrusted with property’ (or had ‘dominion over property) …”
“’entrusted’… In its most general significance all it imports is a handling
over of possession for some purpose which may not imply the
conferring of any proprietary right at all.”
‘’Had it not been for Tracogna’s trusting… the appellant would not have
been in a position of being entrusted with the funds of the company so
 making payments on behalf of the company when he was not in
the office. The appellants used the signed cheques in an
unauthorized manner by using them to overpay her own salary.
She was sentenced to 18 months’ imprisonment. She appealed
against both conviction and sentence.
…argued by counsel that the Prosecution had failed to prove in
law and in fact that the appellant was entrusted with
property…at best entrusted with blank cheques per se…could
not amount to an entrustment of property belonging to the
company
PP v Koh Beng Oon The defendant worked at a business that sold cars. For payment
[2000] of the car and for the bidding of COE, customers could pledge
the vehicle document of their prior vehicle to the company.
Criminal Breach of
Trust The company would then help the customers bid for COE via a
financing company. In order to provide security to the financing
‘Entrustment’ company so that they would extend more credit, the defendant
sub-pledged his customers’ vehicle documents that they had
given him.
He was charged with 32 charges of criminal breach and 15
charges of cheating. He was acquitted by the trial judge.
Prosecution appealed.
Viswanathan The appellant had been charged and convicted in the district
Ramachandran v PP court on one count of criminal breach of trust as an agent in
[2003] respect of some Indium metal under section 409 and one count
of the Code. He was sentenced to imprisonment for 9 months
as to have assess and control to them and also the opportunity to
embezzle them”
‘’the property in a signed blank cheque is the entire value of the
funds to which the cheque is capable of having access to” – which
was the same property that the appellant is being charged with.
“When a person receives a pre-signed blank cheque, she would not be
entrusted with just the correct amount to be actually paid, but rather
with all the funds to which the cheque was capable of accessing,
since the person would be at liberty, albeit possibly without
authority, to fill in that maximum amount which the cheque could
access.”
Did the sub-pledging of In order for a charge of criminal breach of trust to stand under s409, the
the vehicle documents prosecution must show:
amount to criminal 1. that entrustment of property and
misappropriation of 2. misappropriation of the property occurred and also that
property? 3. there was dishonest intent.
However, the judge held that the second and third branches had not
been fulfilled as it was legal for the defendant to sub-pledge the vehicle
documents.
The prosecution argued that it could not be pledged for a future
incurring of charges in the form of the COE bidding as the bidding had
yet to be successful but there was case law disproving this and holding
that it could be made for future costs. “the underlying rationale for
security interests such as pledges … [was] to facilitate commerce, and
if a pledge for a contingent debt can serve a useful commercial
purpose … there seems to be no reason to unduly confine the pledge to
being a security device for existing debts.”
Whether it was right to ‘’I was of the opinion that the second charge as it stood was
separate the property fundamentally flawed as it envisioned the appellant being entrusted
and the proceeds of the with the sputtering machine but misappropriating the proceeds of its
sale? sale. This was… a fallacy as a property and its proceeds are not the
Criminal Breach of and 18 months respectively for simple criminal breach of trust
Trust in respect of a sputtering machine under s 406 of the PC.
‘Entrustment’ He appealed, contending that the second charge was
fundamentally flawed as he was not entrusted with the
sputtering machine, and that the trial judge had erred in her
finding of facts on both charges.
Lai Ah Kau v PP The appellants, who were directors and shareholders of certain
[1988] companies, implemented a scheme to withdraw money from the
companies for the purpose of an earlier withdrawal and
‘Dominion’ distribution of their expected profits otherwise than in the
proper way by declaring dividends. The scheme involved the
use of fictitious contracts and vouchers by which moneys
purportedly to pay a sub-contractor’s bills were drawn out and
paid eventually to the appellants. The Magistrate found their
actions to be dishonest in that they evaded payment of income
tax on the disguised payments.
Both appellants convicted of several charges of criminal breach
of trust and abetment of criminal breach of trust in respect of
transactions arising out of the scheme.
same thing under s405”
Was the charge for the
misappropriation of the Appellant was entrusted with the machine and the sales, but initially
machine or the proceeds charged for the misappropriation of the machine but should have been
of the sale? charged for the misappropriation of the proceeds of the sale.
“This was an appropriate case for the amendment of the charge from
the entrustment of a sputtering machine to the entrustment of the
proceeds of sale of the sputtering machine”
Whether the appellants “The directors of a company are trustees as to the moneys of the
did misappropriate the company which come to their hands or under their control and can be
property of the proceeded against for misapplication of the funds of the company… A
companies as they were person in total control of a limited liability company, by reason of
shareholders and his shareholding and directorship or two or more such persons acting in
directors of the company concert, are capable in law of stealing the property of the company”
and thus had rights to the – even though they had a share of the property, they were still capable
profits. to misappropriate from their own companies.
And if they did “the scheme was improper, dishonest and illegal and was designed to
misappropriate the benefit all of them and the two companies had suffered wrongful loss”
property, whether it was
done so dishonestly. “these two companies had paid out various sums of money as
contractual payments when there were no such contracts” = wrongful
loss.

“the appellants had not only caused wrongful losses to their respective
companies, but they had also caused wrongful gains to themselves.
Had the accounts been properly audited and a profit and less account
put up, their entitlements would have been less than what they had
arrogated to themselves.”

Appeals dismissed
Hon Chin Wan The appellant was employed by Philips Electronics Singapore Whether the appellant Factually, the appellant was “still holding on to his position as a service
Colman [2002] Pte Ltd as the regional service logistics manager of Philips had dominion over the logistics manager”
Consumer Communications Service, and was additionally good simply because he
‘Dominion’ appointed as accessories sales and marketing manager. The
appellant was accused on conspiring with and abetting his
colleague to illicitly sell goods belonging to Philip to third
parties.
Appellant appealed on basis that he had entrustment of the
goods in question.
Tong Keng Wah v PP The appellant was a police inspector and had in his possession a
[197-1878] service revolver and 12 rounds of ammunition. He was
dismissed by the Police Force and did not deliver up the said
Criminal Breach of revolver and ammunition as required under Section 24(1) of the
Trust Police Force Act. These were discovered by members of the
police force in an abandoned dilapidated hut in the premise of
‘Violation of any the Singapore Police Academy.
Direction of Law’
Appellant charged with criminal breach of trust in violation of
section 24(1) of the Police Force Act, an offense punishable by
section 406 of the Penal Code. Sentenced and appealed.
Counsel argued that appellant should only be charged under
section 24(2) of the Police Force Act and not s406 of PC.
had management
responsibility for them.
Whether sole dominion
over the goods was a
necessary element of
criminal breach of trust.
Whether s405 of the
Penal Code which defines
criminal breach of trust,
in so far as it applies to a
police officer, had been
repealed by s24(2) of the
Police Force Act.
Whether the appellant
had caused wrongful loss
to the government of
Singapore?
Court cited in Emporor v Birmala Charan Roy (1913), that a person who
“was under a duty to check and supervise…was held to have dominion”
And in State of Rajasthan v Kesar Singh (1969), “the court held that
where a person held dominion in the sense of ‘general control and
supervision’ over property”
“Both the above cases plainly support the proposition that a general
degree of control can amount to dominion over a property”
“The essence of the offense lies in the entrustment of property to
an employee and his subsequent betrayal of that trust. Whether or
not there is sole dominion over the property is irrelevant; what is
important is only the fact that the trust was breached, and this is so
equally whether or not dominion of the property was entrusted solely
to a specific employee or to a number of employees”
Appeal dismissed.
“A comparison of the different elements constituting the 2 offences
clearly shows that an offence created under s24(2) of the Police Force
Act is separate and distinct from the one under s405 of the Penal Code
and there can be no question of s24(2) repealing section 405 of the
Penal Code”
“To constitute a charge of criminal breach of trust there must be
dishonest misappropriation or conversion of the property to one’s
own use of the accused must dishonestly use of dispose of the property
in violation of any direction of law. In this case the direction of law
was s24(2) in the Police Force Act.”
“the fact remains that the appellant did not return the properties to the
police and had therefore violated section 24(1) of the PFA…there is
amply evidence to support the magistrate’s finding that the appellant
had intended to cause this wrongful loss and consequently this disposal
of the properties was ‘dishonest’…”
Cheam Tat Pang v. The appellants were former directors of IPH and was initially
PP [1996] convicted of having conspired with each other to commit
criminal breach of trust, contrary to section 409, read with s109
Criminal Breach of of PC. They were found to have dishonestly used IPH funds in
Trust violation of section 157(1) of the Companies Act which required
them to act honestly and use reasonable diligence to discharge
‘Violation of any their duties.
Direction of Law’
District judge found they had conspired to use IPH funds to buy
‘Express or shares in LMP with APL facilitating the purchase. They had
Implied Contract’ obtained a mandate from the IPH directors for the purchase.
They then bought the shares from APL at a higher price, which
profits they alleged with for themselves, therefore giving them
wrongful gain.
Appellants argued that there was never any ulterior motive
behind the LMP share acquisition.
Does the direction of law “such direction of the law must be express and explicit and it must
which is alleged to be prescribe the mode in which the property or money is to be used or
violated (section 157(1) disposed of… taking its natural and ordinary meaning, the word ‘mode’
CA) expressly prescribe in the ‘direction of law’ limb connotes that there must be a degree of
any specific mode as to specificity in the direction of law…it should not be construed so
how the appellants were expansively as to extend to a general direction to ‘act honestly’”
to deal with the
entrusted property? “The general exhortation contained in section 157(1) CA cannot
constitute a ‘direction of law’ for the purpose of section 405 of the Penal
Whether the appellants Code, since section 157(1) CA does not prescribe any specific mode in
had acted dishonestly? which trust is to be discharged”
“there was no real evidence of the appellant’s dishonestly to be gleaned
from the merits of the decision to acquire LMP shares. Directors may
take risks with the company’s property where they honestly believe
that to do so is in the interest of the company”
“in order for the respondent to extract any inference of ‘dishonesty’…it
would have to show that the degree of risk involved in the venture
was palpably unreasonable… If the decision to acquire LMP shares
had been palpably unreasonable, the mandate to acquire the shares
would not have been obtained from the IPH board.”
However, the appellate judge found that the behaviour of the appellants
was not unreasonable as managers of the company and found that they
had merely invested the money, without any personal interest. In order
to qualify as acting irresponsibly under this limb, he said that the
appellants must have been shown to behave recklessly, which was not
so in this case
Appeal allowed
 E. Cheating

Cheating.
415. Whoever, by deceiving any person, whether or not such deception was the sole or main inducement, fraudulently or dishonestly
induces the person deceived to deliver any property to any person, or to consent that any person shall retain any property, or
intentionally induced the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so
deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation or property, is
said to ‘cheat’.

420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person…shall be punished
with imprisonment for a term which may extend to 7 years, and shall also be liable to a fine.

To commit an offense under section 420, read together with section 415, three elements of the offence must be satisfied:
(Gunasegeran S/O Pavadaisamy v PP [1997])
1. “The victim must be deceived. To put it another way, deception must have been practiced on the victim”
2. “there must be an inducement such that the victim delivered any property to any person. There is no requirement that is
inducement must necessarily be oral…There is no need for this inducement to be express…the deceiving party need not
specifically induce the victim to deliver such property if it could reasonably be interred from the surrounding circumstances that
this was clearly what the deceiving party was seeking to do…Further, this inducement must lead to the delivery of the
property…There is no requirement that the property delivered must belong to the victim nor must the property be delivered to
the person who deceived the victim…the inducement need not be the sole or even main reason for the delivering of the
property by deceived party. So long as the deceiving party’s deception played some part in inducing the victim to deliver some
property, this element in the offence would be satisfied”
3. “there must be a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the
property… This would constitute the mens rea for the offence”

‘Fraudulently’
25. A person is said to do a thing fraudulently if he does that thing with intend to defraud, but not otherwise.
 Seet Soon Suan v. PP [1955]:
“a person acts fraudulently or with intent to defraud if he acts with the intention that some person deceived and by means of such
deception that either an advantage should accrue to him or injury, loss or detriment should befall some other person or
persons” – doesn’t need to refer to property, can refer to forms of other nature, unlike in ‘dishonesty’.

‘Dishonestly’
24. Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do
that thing dishonestly.

‘Wrongful gain’ and ‘Wrongful loss’

23. ‘Wrongful gain’ is gain by unlawful means of property to which the person gaining it is not legally entitled; ‘wrongful loss’ is loss by
unlawful means of property to which the person losing it is legally entitled.

Case Facts Issues Judgment

Seaward III The appellant was the director and chairman of the Calvary
Frederick Charismatic Centre in Singapore wanted to buy some audio
Oliver v PP visual equipment from an American company, the World
[1994] Missions Ministries Inc, where he was the chairman of the
board of directors.
SGHC
He made use of a hire-purchase to buy the equipment but
Cheating inflated the price greatly when selling it to Hong Leong
Finance Ltd and was subsequently charged with engaging in
conspiracy to cheat the financing company.
He appealed that the trail judge had erred in finding that there
was any deception practiced upon HLF and there was never
any dishonest intention to deceive HLF. And even if there had
been deception, HLF was not induced by that to offer hire
purchase financing to CCC.
Was there The judge held that the appellant was aware that inflated prices had been given to
deception? the financing company and not only did they deceive HLF into believing that the
figures in the invoice were the true purchase prices by not disclosing the true prices
Was there to HLF, they also deceived the financing company by not making it known that the
dishonesty? CCC and the WMM were headed by the same person.
Was there The court held that wrongful gain would have occurred as “the court below had
inducement? formed the view that both elements of wrongful loss and wrongful gain need not
necessarily be present in each case…CCC would have gained wrongfully through the
appellant’s acts in obtaining the financing from HLF on a false pretext. The gain was
wrongful since the appellant knew or must have known that HLF would not have
agreed to finance the equipment if it had known about the true state of affairs.”
“in reliance upon the invoice…there was no doubt that, by reason of the deception,
Lim had been induced to approve the transaction…As long as the deception played
some part in inducing HLF to approve the financing, the element of ‘inducement’
within s415 would have been satisfied”

Gunasegeran The victim was a Japanese National working in Singapore and
S/O decided to buy a car. He was introduced to the appellant, who
Pavadaisamy v was a mechanic at that time. The appellant showed him a
PP [1997] second-hand car and the victim decided to buy it. The victim
paid for the car and was then told by the appellant that the
Cheating transfer for the car would be effected in his name. He was also
told that there was no ‘red book’ for the car. The car was never
transferred.
A year later, the victim contacted the appellant and asked for
the return of the car’s log book, he had no idea the car had not
been transferred into his name. Appellant gave excuses, but
confessed that he had borrowed some money using the log
book. Eventually found that the appellant had forged the
victim’s signature to obtain the loan from ESH Credit Pte Ltd
using his car as a mortgage.
District judge convicted appellant on counts of cheating and
forgery under s420 and 471 of PC.
Appeal dismissed.
Whether there To commit an offense under section 420, read together with section 415, three
was inducement elements of the offence must be satisfied:
by the appellant 1. “The victim must be deceived. To put it another way, deception must
on the victim have been practiced on the victim”
which caused him 2. “there must be an inducement such that the victim delivered any
to deliver the property to any person. There is no requirement that is inducement
money for the car. must necessarily be oral…There is no need for this inducement to be
express…the deceiving party need not specifically induce the victim to
Whether the deliver such property if it could reasonably be interred from the
appellant had surrounding circumstances that this was clearly what the deceiving
dishonest party was seeking to do…Further, this inducement must lead to the
intention. delivery of the property…There is no requirement that the property
delivered must belong to the victim nor must the property be delivered
to the person who deceived the victim…the inducement need not be
the sole or even main reason for the delivering of the property by
deceived party. So long as the deceiving party’s deception played some
part in inducing the victim to deliver some property, this element in the
offence would be satisfied”
3. “there must be a dishonest or fraudulent intention on the part of the
deceiving person to induce the victim to deliver the property… This
would constitute the mens rea for the offence”
In this case, judge found that “there is no doubt that the circumstances surrounding
the sale and purchase of the car between the appellant and the victim pointed to the
appellant inducing him to pay for the car” and at the same time not intending to
transfer the ownership of the car to the victim’s name. It is on this basis that the
victim was cheated.
Wrt the act of deception, it was related to the fact that the victim had the belief that
“he would own the car after he had paid for it”. It was clear that both of them
“conducted themselves in the whole transaction for the sale and purchase of the car
with a view that the victim would be the sole and rightful owner of the car after he
had paid for it”. “The crucial fact was that the victim was led to believe, and he
conducted himself in a like manner, that he would be the owner of the car once

Chua Kian Kok The appellant engaged with Guok Sing King in a conspiracy to
v PP [1999] cheat. He made out a false delivery order for some goods and
addressed the receipt to Guok Sing King to sign.
Cheating He then sent an invoice for said goods to the Guok’s company
in an attempt to deceive the company that the goods were
received by Guok. By such manner of deception, he
dishonestly attempted to induce the company to release
payment for the said goods to him and thereby abetted an
offence of attempted cheating.
He was charged for an offence punishable under s511 read
with s109 and s420 of the PC.
Rahj Kamal bin The Appellant was charged with three counts of cheating and
Abdullah v. PP three counts of fraudulent trading. As a director of a company,
[1997] he had devised a scheme for people to donate to the company
and that the company would repay the loaned sum over a
SGHC period of time with high rates of return promised by the
he paid for it”
Wrt to any dishonest or fraudulent intention, “the actions of the appellant before the
victim handed over the money for the car had to be construed in conjunction with the
actions of the appellant after the car had been sold… such (dishonest) intentions
could also be inferred with the aid of subsequent events which occurred after
the victim had parted with the money”
Appeal dismissed.
What is the “The vital difference between offences under section 417 and section 420 is that
difference whereas an offence against the latter section is a cognizable one, that against the
between an former is noncognizable and investigation of it can only be undertaken by the police
offence under on the instructions of a Magistrate, whereas in the other case the police can act on
s418 and s420? their own motion”
“Section 417 covers ‘simple’ cheating cases whereas section 420 covers
‘aggravated’ cheating cases. ‘Aggravated’ cases are those where the cheating
involves a dishonest inducement of delivery of property. Conversely, ‘simple’
cheating cases are those where the other limbs of cheating as defined in section 415
are made out, such as intentional inducement or dishonest inducement of consent to
retain property”
“it is clear that the draftsman was endeavoring to create a more serious offence of
cheating in section 420”
Circumstances in this case “were clearly such that an inference arose that these
cheques were not personal loans and an explanation was required…that…the
appellant could not furnish adequately”
Appeal dismissed.
Whether indirect “The natural and ordinary meaning of the word ‘deceiving’ is causing another to
representations believe what is not true…a dishonest concealment of facts is a deception”
constituted
deception? “The element of deception can be satisfied without a direct and personal
representation. A fraudulent or dishonest representation can be made directly
 company. However, no tangible business was present to
Cheating generate profits and the only business activity was the
collection of funds from members of the public though various
schemes and programs of a similar nature.
Appellant argued no knowledge of the scheme and had never
made any representation about it to any of the victims. Also
that there was never any dishonest intention.
Seet Soon Suan During a trial by the Sessions Court, the appellant had used the
v. PP [1955] Police Diary, which was a false document and which he knew
was a false document, in disciplinary proceedings in order to
Cheating bolster up his defense to the disciplinary charges preferred
against him.
The appeal was against the convicted and sentence of the
appellant on the charge of fraudulently using as genuine a
1953 official Police Diary, an offence punishable under
sections 465 and 471 of the Penal Code.
The appeal was argued that on the correct meaning of the
term ‘fraudulently’ in the relevant sections of the Penal Code.
The distinction or indirectly”
between a mere
breach of contract “The distinction between a case of mere breach of contract and one of cheating
and one of depends upon one vital factor: whether at the time of the agreement there is
cheating. intention on the part of the accused to carry out the terms of the
agreement…there need not be any positive evidence of the dishonest intention. It
can be inferred from the surrounding circumstances and the subsequent
conduct of the appellant.”
In this case, “a dishonest intention could be inferred from similar circumstances of
concealment”
The trail judge “was entitled to draw the inference that the appellant was fully aware
that neither he nor the company had the financial ability to fully honor the
guaranteed payments indefinitely as represented…the appellant knew, at the time
the representations were made, that they were false, and that he possessed the
requisite mens rea for the cheating offences to be made out”
Appeal dismissed.
Meaning of the “There is a general agreement…that deception is an essential ingredient in the ‘intent
word to defraud’ and that deception by itself does not constitute fraud”
‘fraudulently’ or
‘intend to defraud’ Wrt to the second element of “intent to defraud”:
“The Bombay cases, of which Sanjiv Ratanappa Ronad v Emperor AIR 1932…take the
view that defraud implies deprivation of property or injury or risk of injury to an
individual or to the public, and that it is not enough to show that the deception was
intended to secure an advantage to the deceiver. The Calcutta cases take a wider view
and hold that such deprivation or loss or injury is not essential and there is an intent
to defraud if by the deception the deceiver intends to acquire an advantage”
“In my opinion, therefore, neither the acquisition nor the deprivation of property
is an essential ingredient of the intent to defraud; ‘fraudulently’ does not
necessarily connote deceit and injury to the person deceived; it may but it need not
do so; a person acts fraudulently or with intent to defraud if he acts with the
intention that some person deceived and by means of such deception that

PP v. Li The Respondents were charged with one charge of conspiracy
Weiming to falsify accounts under section 477A read with section 109
[2012] of the Penal Code and five charges of acquiring, possessing,
using, concealing or transferring benefits of criminal conduct
Cheating under section 47(1)(b) of the Corruption, Drug trafficking and
other serious crimes Act.
The Section 477A charge relates to an alleged conspiracy
between the Respondents to issue an invoice from a company,
Questzone Offshore Pte Ltd to a Chinese company ZTE
Corporation. The charge alleged that the invoice falsely
purported to seek payment to Questzone as a subcontractor
under a fictitious subcontract.
either an advantage should accrue to him or injury, loss or detriment should
befall some other person or persons.”
In this case, the diary was used fraudulently…the purpose of this deception was to
induce the adjudicating officer to clear the appellant of the charge against him and to
ensure thereby that the appellant be retained in the service”
Appeal dismissed.
Is a general or “an intention to defraud must have been present at the time that the forgery was
specific intent to committed, not that a specific intention to defraud any particular person must have
defraud been proven”
necessary?
“Under the common law offence of forgery, the mens rea requirement for forgery was
Possible an ‘intent to defraud’, but this was long accepted as including a general intent”
definitions of
‘intent to defraud’. Lord Denning in Welham v Director of Public Prosecutions [1961]: “Put shortly, with
intend to defraud’ means ‘with intent to practice a fraud’ on someone or other. It
need not be anyone in particular. Someone in general will suffice. If anyone may be
prejudiced in any way by fraud, that is enough”
The mens rea element in section 477A = ‘intent to defraud’. A ‘general intent to
defraud’ shall be sufficient for any charge under this section.
‘Intent to defraud’ is explained by the Supreme Court of India in S Harnam Singh v
The State (1976):
“that ‘intent to defraud’ contained two elements viz. deceit and injury. A person is
said to deceive another when…he intentionally induces another to believe a thing to
be true, which he knows to be false or does not believe to be true. ‘Injury’ has been
defined in Section 44 of the [IPC] as denoting ‘any harm whatever illegally caused to
any person, in body, mind, reputation or property’”
A slightly wider definition of ‘intent to defraud’ was adopted by the Court of Three
Judges in Law Society of Singapore v Nor’ain bte Abu Bakar [2009]:
“will be held to have acted fraudulently or deceitfully if he has acted with the
intention that some person…be deceived and, by means of such deception, that either
an advantage should accrue to him…or injury, loss or detriment should befall some
other person or persons. He need not make an explicit false representation; it is
fraudulent if he intentionally seeks to create a false impression by concealing the
truth”

“It may be observed that the latter definition, unlike the former, does not require loss,
injury or detriment to another…it is sufficient that a deception is intended to
result in an advantage accruing to the person alleged to have acted
fraudulently”.

“It is clearly possible that a person may carry out an act with an intent to defraud by
practicing a deception with the aim of causing an injury, loss or detriment or
obtaining an advantage, even if he is indifferent as to who the object of his fraudulent
intent is”

“The relevant mens rea in section 477A is simply an intent to defraud directed
at on object, which may be proven by adducing evidence that supports a finding
or inference of fact of an intention to either defraud persons generally or a
named individual or entity”
Offences against the Person
A. Voluntarily Causing Hurt:

‘Voluntarily’
39. A person is said to cause an effect ‘voluntarily’ when he causes it by means whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had reason to believe to be likely to cause it.

Hurt
319. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Explanation—A person is said to cause hurt if he causes another person to be unconscious.

- Can be mental or psychological hurt.

Voluntarily causing hurt

321. Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby
to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.

Elements for s321:

1. Intent to cause hurt or knew that the actions were likely to cause hurt
2. The victim was hurt
3. The accused’s actions caused the hurt.

Mens Rea  requisite mens rea for an offence under section 321 of the PC is possessing either ‘the intention to cause hurt to any
person’ or ‘the knowledge that one is likely thereby to hurt any person’
Actus Reus  the actus reus of the offence is the act of causing hurt to ‘any person’
Voluntarily causing grievous hurt
322. Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and
if the hurt which he causes is grievous hurt, is said “voluntarily to cause grievous hurt”.
Explanation—A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows
himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing himself to be likely
to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.

Punishment for voluntarily causing hurt

323. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment for a term
which may extend to 2 years, or with fine which may extend to $5,000, or with both.

Grievous hurt
320. The following kinds of hurt only are designated as “grievous”:
(a) emasculation;
(aa) death;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any member or joint;
(f) permanent disfiguration of the head or face;
(g) fracture or dislocation of a bone;
(h) any hurt which endangers life, or which causes the sufferer to be, during the space of 20 days, in severe bodily pain, or unable to
follow his ordinary pursuits;
(i) penetration of the vagina or anus, as the case may be, of a person without that person’s consent, which causes severe bodily pain.

Enhanced penalties for offences against domestic maids

73. —(1) Subsection (2) shall apply where an employer of a domestic maid or a member of the employer’s household is convicted of —
(a) an offence of causing hurt or grievous hurt to any domestic maid employed by the employer punishable
under section 323, 324 or 325;
 (b) an offence of wrongfully confining any domestic maid employed by the employer punishable undersection 342, 343 or 344;
(c) an offence of assaulting or using criminal force to any domestic maid employed by the employer punishable under section 354;
(d) an offence of doing any act that is intended to insult the modesty of any domestic maid employed by the employer punishable
under section 509; or
(e) an offence of attempting to commit, abetting the commission of, or being a party to a criminal conspiracy to commit, an offence
described in paragraphs (a) to (d).

Enhanced penalties for racially or religiously aggravated offences

74. —(1) Where a person is convicted of an offence specified in subsection (2) which is racially or religiously aggravated, the court may
sentence the person to one and a half times the amount of punishment to which he would otherwise have been liable for that offence.
w(4) For the purposes of this section, an offence is racially or religiously aggravated if —
(a) at the time of committing the offence, or immediately before or after committing such offence, the offender demonstrates towards
the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of
that group.

Case Facts Issue Judgment

Sim Yew Thong v The appellants, 2 brothers, were convicted under s323
Ng Low Nam of the Penal Code of voluntarily causing hurt to the
Thomas [2000] respondents, Thomas Ng and his mother. They
appealed against the conviction & sentence.
SGHC
The respondents and appellants were at a temple. The
Voluntarily first appellant was annoyed by the noise that the
Causing Hurt former’s group was making. A scuffle broke out
between Thomas Ng and the appellants over this, in
which both respondents were hurt. Thomas Ng
suffered minor injuries while his mother sustained a
fracture in the lowest vertebrae of her thoracic spine.
Defense argued that the appellant had not intended to
Whether the appellants “In Singapore Law, however, there is no general common law doctrine of
were guilty of offence ‘transferred malice’, as there is in English Law. Under local law, the closest
even though no principle to English doctrine of ‘transferred malice’ is a limited one, inculcated in
intention to hurt second section 301 of our PC, and dealing specifically with the offence of culpable
victim? homicide”
“The requisite mens rea…is either ‘intention’ or ‘knowledge’. In the first place,
intention…can only be proved by drawing inferences from the surrounding
circumstances and the acts of the person. A person is said to intend the natural
consequences of his act. Thus if the second appellant had indeed pushed Madam
Sim on her palm, then the law can infer that he had intended to cause her to lose
her balance and to fall down…he would still not escape liability, for he would still
possess the requisite mens rea of ‘knowledge’… In the circumstances, Madam
Sim’s fall was clearly a foreseeable and reasonably likely result of the second
 hurt the mother.
Farida Begam d/o The appellant’s domestic maid was cleaning the floor
Mohd Artham v PP outside the appellant’s flat. The appellant thought she
[2001] was using the brush wrongly and hit her several times
with the brush pole. She also hit the maid’s face with a
SGHC slipper. Upon medical examination, lesions and
hematomas were found on her face and scalp, and
Voluntarily swelling around her eyes.
Causing Hurt
The magistrate convicted the appellant of an offence
under s323 (VCH) and sentenced her to 3 months’
imprisonment.
Defense case was that the maid had sustained the
injuries from falls and also possibly through self-
infliction.
The appellant appealed against sentence and
conviction.
appellant’s actions. All this indicated that the second appellant possessed the
knowledge that he was, by his acts, likely to cause hurt to Madam Sim by causing
her to fall”
“section 321 of the PC is worded in such a way that the intended victim need
not be the actual victim – the section does not state that the accused must cause
hurt to that same person whom he had the intention to hurt, or knew would be
hurt by his conduct. Instead, the requisite mens rea for an offence under
section 321 of the PC is possessing either ‘the intention to cause hurt to any
person’ or ‘the knowledge that one is likely thereby to hurt any person’, and
the actus reus of the offence is the act of causing hurt to ‘any person’.
Appeal dismissed.
First appellant’s sentence commuted from 2 weeks’ imprisonment to $1000 fine.
Second appellant’s appeal dismissed, sentence of 3 months’ imprisonment
unchanged.
Whether the elements “The first element was that the appellant intended to cause hurt or knew
of the offence were that her actions were likely to cause hurt. As the Prosecution’s evidence has
present been accepted over the Defense’s version, it was plain that the appellant intended
to cause hurt”
Whether the sentence
was manifestly “The second element was that the victim was hurt.” S319 - ‘whoever cause
inadequate or excessive bodily pain, disease or infirmity to any person is said to cause hurt’, the results of
the medical report fell within s319.
“The third element was that the appellant’s actions caused the hurt.” The MO
opined that the injuries were caused by a blunt object, and looking at the
distribution of the injuries, they were unlikely to have been caused by a fall, in
any case, the falls could not have explained her other injuries.
…as the victim…was a domestic maid and the perpetrator her employer, the
court should have also considered s73
Appellant’s appeals dismissed, the respondent’s cross-appeal against the appeal
 allowed and sentence enhanced to 9 months’ imprisonment.
The PP cross-appealed against sentence, claiming that
the magistrate had overlooked s73 which provides for
enhanced punishment for causing hurt to domestic
maids.
PP v Kwong Kok The accused had a heated quarrel with his ex-girlfriend Definition of hurt. VR Manohar and WW Chitaley, The Indian Penal Code (All India Reporter Ltd, 3rd
Hing [2008] after he tried to convince her to remain in a Ed, 1980) Vol 2 at p 952, authors astutely note in commenting on s319 of the PC
relationship with him. She left to the train station and Hurt can go beyond (India):
SGCA at the train platform, he pushed her onto the train physical hurt. ‘’s44 ante defines ‘injury’ as denoting any harm whatever illegally caused to any
tracks into the path of an incoming train. She managed person in body, mind, reputation or property…But as ‘hurt’ includes any bodily
Voluntarily to escape the train by running to the side and jumping pain, disease or infirmity, the injury to the body need not be a visible one,
Causing Hurt over the parapet to safety but it was a very close shave. in order to constitute hurt.”
The previous judge took into consideration the mental
conditions of the accused as well as the fact that the “Indeed, it has long been established that hurt can extend to non-physical
victim survived the attack and hence sentenced the injury, eg, mental harm”
accused to one year of imprisonment. The prosecution
appealed. “In our view, the long-term psychological harm in matters of this nature is a
relevant, and indeed, often crucial sentencing consideration…Psychological
The respondent was charged with an offence under wounds, while invisible to the eye, can often by far more insidious and leave an
s308. The judge accepted that the victim had suffered indelible mark on a victim’s psyche long after the physical scares have faded.”
some physical hurt in this case, but he did not appear to
have appreciated fully the fact that the victim’s injury
extended beyond the apparently superficial
wounds…the Judge mistakenly alluded only to the
victim’s physical injuries.

B. Assault:

Assault
351. Whoever makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will
cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is
said to commit an assault.
 Explanation — Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparations
such a meaning as may make those gestures or preparations amount to an assault.

Mohamed Abdul The accused had been convicted of using criminal force
Kader v PP [1967] to a public servant to prevent him from discharging his
duty. The evidence was that the appellant had not
Assault permitted the public servant to inspect the rear of his
shop but had raised his hand holding a meat chopper
and had said ‘if you go in I will hammer you’
Whether there was a ‘s349 defines what is force and criminal force is defined in s350. The illustrations
need for contact to thereto show that some application of force to the other party is required to
amount to use of amount to using criminal force. Assault however requires no contact with the
criminal force and if body and section 351 says any gesture or preparation which causes the
words amounted to use other person to apprehend that he who makes that gesture or preparation
of criminal force. is about to use criminal force is assault”

Is there a need for “I find no evidence that Tan was prevented. It was an inference of Tan from the
physical contract for words that he would be prevented from doing so, and he did not try to enter the
assault? rear of the shop…the accused had been fairly co-operative…to the extent of
producing his National Registration Identity Card…that he was not likely to resist
any exercise of authority of PW1 if he was minded to do so.”

Appeal Allowed, conviction quashed.

C. Use of Criminal Force:

Force
349. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes
to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that
other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s
sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or
cessation of motion in one of the following 3 ways:
(a) by his own bodily power;
(b) by disposing any substance in such a manner that the motion, or change or cessation of motion, takes place without any further act
on his part, or on the part of any other person;
(c) by inducing any animal to move, to change its motion, or to cease to move.
 Criminal force
350. Whoever intentionally uses force to any person, without that person’s consent, in order to cause the committing of any offence,
or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause
injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

352. Whoever assaults or uses criminal force to any person, otherwise than on grave and sudden provocation given by that person, shall
be punished with imprisonment for a term which may extend to three months, or with fine which may extend to $500, or with both.

Using Criminal Force to deter a public servant from discharge of his duty
353. Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or
with intent to prevent or deter that person from discharging his duty as such a public servant, or in consequence of anything done or
attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment for
a term which may extend to 2 years, or with fine, or with both.

Elements for s353:

(a) that the victim of the criminal force was a public servant;
(b) that the accused used criminal force to such public servant;
(c) that the accused used criminal force on the public servant when the latter was in the execution of his duty as such public servant

Ng Eng Huat v PP The victims horned at the appellant’s car when they Whether the act of “On the evidence it is clear that the act of the appellant of reversing his car was
[1987] suddenly shot out of a road without looking out for the reversing to collide with not a negligent act but an intentional and deliberate act of the appellant to collide
victim’s car. The appellant then blocked the victim’s the victim’s car was into PW6’s car”
SGHC way and then alighted and assaulted the victims intentional or
through the window. After which, the appellants drove negligent? “the evidence accepted by the trial court clearly shows that the appellant had
Use of Criminal the car forward and reversed his car very quickly into committed the offence of using criminal force on PW6, an offence under s352 of
Force the victim’s car, causing it to collide into the front Whether the court the PC”
portion of the lorry behind him. should substitute the
offence under s336 to “the evidence adduced by the prosecution showed that the appellant did the act
The appellant was convicted on 2 charges, including that of s352 since it deliberately and not negligently”
that of doing a negligent act which endangered the clearly showed that the
 personal safety of others by reversing his motor car appellant had Conviction under s336 substituted to one under s352, sentence maintained.
into the front portion of the motor car driving by the committed the offence
complainant under s336. of using criminal
violence.
He was sentenced to 4 weeks’ imprisonment on this
charge.
Goh Ang Huat v PP The complainant worked for CISCO and was driving a Have the ingredients of “To convict on a s353 charge, the following ingredients must be proved:
[1996] van to transport CISCO officers to and from the an offence under 1. that the victim of the criminal force was a public servant;
Woodlands checkpoint. A bus driven by the appellant section 353 been made 2. that the accused used criminal force to such public servant;
Use of Criminal apparently overtook the van from the front from the out? 3. that the accused used criminal force on the public servant when the
Force right lane without signaling. To avoid the collision, the latter was in the execution of his duty as such public servant”
complainant had to jam his brakes. The bus sped off. Whether the
The complainant gave chase to warn the appellant of complainant was a “together with section 127(3) of the CISCO Act…no doubt that such a ‘police
the consequences of his dangerous driving. He turned public servant in the officer in uniform’ includes a CISCO officer who consequently has the same police
on blinkers and sounded the horn several times to execution of his duty conferred by section 127(3) of the RTA…the complainant, who at the relevant
indicate to the appellant to stop but the appellant time was in uniform, was thus a public servant lawfully executing his duty”
continued to speed off. Finally, the complainant Whether the
managed to stop the bus by cutting into its path from complainant was acting “It was beyond doubt that criminal force had been used on the complainant, and
the front. lawfully in stopping the the appellant must also have intended to use such force in that moment of rage.
appellant. The fact that he was all worked up was no excuse at all.” – 3 elements for a
Appellant allegedly became verbally abusive when conviction under s353 of PC made out and satisfied beyond reasonable doubt
asked to show his driving license. The appellant tried to Whether at the time the
snatch the complainant’s pen. abusive words were Section (f) of the Miscellaneous Offences (Public Order and Nuisance) Act
uttered, there was an states: “uses any indecent, threatening, abusive or insulting words, or
Appellant was charged and convicted in District Court intention to provoke a behaves…intent to provoke breach of the peace or whereby a breach of peace is
below of two offences. The first was for using criminal breach of the peace likely to be occasioned”
force on a public servant in the execution of his duty,
contrary to section 353 of the PC. The second was for Three elements that must be proved under section (f):
using abusive words with the intent to provoke a 1. that the accused uttered words complained of;
breach of the peace, contrary to section 13(f) of the 2. that the words were abusive;
Miscellaneous Offences (Public Order and Nuisnace) 3. that the accused uttered the said words with the intention of causing a
Act. breach of the peace

“violence is the essence of a breach of peace. Mere use of abusive words per
se without any intent to cause violence will not suffice. Thus, an intention to
 cause a mere disturbance not involving violence or threat or violence will not
amount to a breach of the peace” – must turn to the facts of the case, in this case,
third element not made out.

“Police officers are guardians of the peace, and it is thus always open to the
accused to argue that he will never expect the police to commit a breach of peace,
even if his behavior is appalling. Therefore, such legitimate expectation that the
police will preserve the peace negates any alleged guilty intent of the accused to
provoke a breach of peace on the police’s part”

Appeal on first charge dismissed. Appeal on second charge allowed. Sentenced

affirmed.
Mohamed Abdul The accused had been convicted of using criminal force Whether the so-called “the illustrations thereto show that some application of force to other party is
Kader v PP [1967] to a public servant to prevent him from discharging his movement of the required to amount to criminal force.”
duty. The evidence was that the appellant had not appellant’s hand which
Use of Criminal permitted the public servant to inspect the rear of his was at that time holding “Whatever that may be, certainly it did not constitute use of criminal force”
Force shop but had raised his hand holding a meat chopper a chopper followed by
and had said ‘if you go in I will hammer you’ the words ‘if you go in, I
will hammer you’
constituted criminal
force.

D. Sexual Offenses - Outraging Modesty

Assault or use of criminal force to a person with intent to outrage modesty

Section 354.
(1) Whoever assaults or uses criminal force to any person to any person, intending to outrage or knowing it to be likely that he
will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to 2 years,
or with fine, or with caning, or with any combination of such punishments
(2) Whoever commits an offense under subsection (1) against any person under 14 years of age shall be punished with
imprisonment for a term which may extend to 5 years, or with fine, or with caning, or with any combination of such punishments
 Word or gesture intended to insult the modesty of a woman
Section 509.
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending
that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such
woman, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.

Mrs Rupan Deol Following an incident at a dinner party where the Definition of ‘Modesty’ “The word ‘modest’ in relation to woman is defined in the above dictionary as
Bajaj v. Kanwar Pal respondent had ‘slapped her on the posterior’ in full ‘decorous in manner and conduct; not forward or lewd; shamefast’”
Singh Gill Lnind view of the guests, the appellant lodged a police report Whether a female child
[1996] and filed a complaint before a magistrate against the could have been said to “Webster’s Third New International Dictionary of the English language defines
respondent for an offence under s354 (using criminal be possessed of modesty as ‘freedom from coarseness, indelicacy or indecency; a regard for
Supreme Court force on any person, intending to outrage or knowing it ‘modesty’ which could propriety, in dress, speech or conduct”
India. to be likely that he will thereby outrage the modesty of be outraged.
that person) and s509 of the PC (intending to insult the “ultimate test for ascertaining whether modesty has been outraged is the action
Outraging modesty of any woman). Whether intention was of the offender such as could be perceived as one which is capable of
Modesty present? shocking the decency of a woman.”
(Distinguished Both her police report and complaint were
from Insulting subsequently quashed by the High Court. On does age matter? – “any act done to or in the presence of a woman is clearly
Modesty) suggestive of sex according to the common notions of mankind that must fall
The appellant appealed to the Supreme Court. within the mischief of section 354 IPC…the essence of a woman’s modesty is her
sex and from her very birth she possesses the modesty which is the attribute of
her sex”

“When the above test is applied in the present case…it cannot but be held that the
alleged act of slapping Mrs Bajaj on her posterior amounted to ‘outraging of her
modesty’ for it was not only an affront to the normal sense of feminine decency
but also an affront to the dignity of the lady – ‘sexual overtones’ or not,
notwithstanding.”

‘’It is undoubtedly correct that if intention or knowledge is one of the ingredients

of any offence, it has got to be proved…it is also equally true that those

Teo Keng Pong v. The offense took place when the accused was giving
PP [1996] tuition lessons to the Complainant, a 13-year-old
Indonesian student studying in Singapore.
SGHC
The appellant was convicted on 7 counts of using
Outraging criminal force with intent to outrage the modesty of the
Modesty complainant contrary to s354 of the PC.
4 of the charges against the appellant alleged that he
caressed the complainant’s thigh. A 5th alleged that the
appellant caressed her thigh and squeezed her on the
back. The 6th charge alleged that the appellant caressed
her thigh and touched her left breast. The last charge
alleged that he caressed her thigh, touched her breasts
and kissed her on the cheeks and lips. All the incidents
took place between on different days between 8.30-
10.30am.
Appeal against conviction dismissed, sentence in
respect of 5 charges reduced.
PP v Heng Swee The victim hailed the respondent who was driving his
Heng [2010] taxi. The victim, a foreigner studying in Singapore,
informed him that she was lost and had no money. She
SGHC asked if he would take her to where she lived and he
ingredients being states of mind may not be proved by direct evidence and may
have to be inferred from the attending circumstances…The sequence of events
which we have detailed earlier indicates that the slapping was the finale to the
earlier overtures of Mr Gill, which considered together, persuade us to hold that
he had the requisite culpable intention’’
“Even if we had presumed he had no such intention he must be attributed with
such knowledge, as the alleged act was committed by him in the presence of a
gathering comprising the elite of the society”
Appeal allowed
Sentencing outcomes. ‘’…trite law that an appellate court will defer to the trial judge’s finding of
fact…An appellate court will not lightly disturb the finding unless it can be shown
to be plainly wrong, or in the case of a criminal appeal, that there remains a
lurking doubt’’
“I take this opportunity to reiterate that in respect of relatively minor acts of
molest under section 354, a fine is generally more appropriate”
The judge drew a comparison between the instant case and PP v Nordin bin
Ismail, where the accused similarly had no previous conviction and had
committed offences which were, in essence, much the same as in the instant case.
Accordingly, he reduced the sentence on each of the first 5 offences to a $500
fine, in default 1 week’s imprisonment. Hence, the appellant’s total sentence was
7 months’ imprisonment and fines of $2,500, from an initial of nine months’
imprisonment.
Considerations for ‘’There was no doubt in my mind, therefore, that the present offence warranted a
sentencing in outrage of deterrent custodial sentence. A strong message has to be sent out to those
modesty cases. working in the public transport service sector: behavior taking advantage of
more helpless commuters utilizing these transport services will and shall not be
 agreed to give her a free ride home. tolerated by the courts…
Outraging
Modesty The respondent instead took her to a location 5km “In PP v QO…Kow DJ helpfully set out the following considerations as a guideline
from her home and in the course of the journey, used for sentencing in outrage of modesty cases:
his left hand to touch the right hand of the victim. The (a) Which part of the victim’s body did the offender touch?
victim eventually alighted from the taxi and when she (b) How did the offender touch the victim?
did so, the respondent also got out and hugged her. The (c) How long did the molestation last?
victim struggled and managed to break free. (d) Was the offense premeditated or committed in the spur of the moment?
(e) Were the circumstances in which the offense was committed inherently
The respondent then left the scene in his taxi. reprehensible?
(f) Is the offender recalcitrant?
Respondent pleaded guilty to one charge of outrage of (g) Is the offender suffering from a mental disorder or intellectual
modesty under Section 354 (1) of the PC. disability?”

The judge then referred to sentencing guidelines laid out in PP v QO and

concluded that the circumstances under which the offence was committed were
entirely reprehensible (given that the victim was lost at night with no money and
had placed her trust in the respondent, and instead of doing his utmost to ensure
the safety of the victim, chose to take advantage of her under the cover of
darkness, in a most odious manner) and that the fact that the offender was
neither a recidivist nor mentally disabled did little to mitigate his position.

Appeal allowed, sentence changed to 8 weeks’ imprisonment

Soh Yang Tick v PP The victim was the appellant’s secretary when the Whether the trial judge 1st Charge:
[1998] alleged offences of outrage of modesty were erred in finding that the “The first ground of appeal raised by the appellant related to the issue of
committed. appellant had molested corroboration… we should not be over concerned about the technicalities of the
SGHC the victim on the first concept of corroboration. It is important to realize that, especially in cases of
The first charge was when the appellant called her into occasion. sexual offenses, one should not convict an accused on the word of the victim
Outraging his office and then made several lewd and suggestive or complainant alone unless the evidence is unusually convincing. It
Modesty remarks to her, before outraging her modesty by using Whether the appellant matters not whether the complainant is a male of female, similar rules
his hand to touch her back and abdomen. She also intended to outrage the should equally apply to both”
claimed that earlier that morning, the appellant made victim’s modesty.
similar lewd remarks to her. ‘’For supporting evidence to carry weight, an essential ingredient which it must
possess is that of independence’’ - The judge decided that too much weight had
 The second charge was a week later, when the victim
was about to leave the office, the appellant emerged
from his office and expressed surprise that the victim
was still around. He then used his hand and slapped
her lightly on her buttock. The victim subsequently
made a police report on the first OM incident.
Appellant’s defense for the first OM incident was one of
alibi.
As for the second incident, the appellant admitted to
having touched her buttock but insisted that it was
simply a light slap and he meant no harm or to outrage
her modesty.
He was convicted as charged and sentenced to an
imprisonment term of 6 months on the first charge and
2 months’ imprisonment on the second.
He appealed against the judge’s decision.
Cadawanaltharayil The appellant is a 73-year-old general practitioner in
John Benjamin v PP medicine who has been in private practice for 30 years.
[1995] He has been a doctor for some 42 years.
SGHC He was convicted by the District Court on a charge of
using criminal force to outrage the modesty of a
Outraging patient, the complainant. The appellant was alleged to
Modesty have used improper examination skills to squeeze both
the complainant’s breasts and nipples.
He was alleged to have committed an offense of
been given to PW2’s testimony; such evidence was essentially self-serving.
‘‘Prima facie just because the appellant’s witnesses were in some way related or
connected to him did not render their testimonies suspect. There must be
additional grounds for rejecting the evidence of such witnesses, or alternatively
the testimonies of these witnesses were so littered with inconsistencies that they
could not be believed…neither of these were present.’’ – no justification for
disbelieving all of the appellant’s witnesses.
The judge then held that in the light of the overwhelming evidence from the
Defence, the Prosecution had not satisfied their burden of proving their case
beyond a reasonable doubt. Appeal allowed for first conviction.
2nd Charge:
‘The appellant’s defence here was not that he did not touch the victim. The fact
that he intended to have some physical contact said it all. He intended to
touch her, but unfortunately did not realize the consequences of his actions.
Singapore, by many standards, is still a conservative society. Physical contact
between persons who do not know each other well is not appropriate and should
not be encouraged…but for those who wish to protect their privacy, the law
should do its bit to see that this is respected’’
Appeal allowed in respect of the first conviction and dismissed against the
second conviction but the sentence was altered to a fine of $2,000.
Whether the method “Unless the expert evidence shows that one method of doing something is
conducted by the definitely and completely wrong so that no doctor in his right mind would
appellant was do it in the manner done by the accused, the court would find it very difficult
inappropriate and could to say that it is certain, beyond reasonable doubt, that what the accused doctor
have been inferred as did was not only medically improper, but was not done bona fide as well.”
an outrage of modesty.
“this is unlike usual outraging of modesty cases…often simply a matter of
Whether the fact that ascertaining whether the accused person did touch the complainant…and…the
the complainant was accused did intend to outrage the complainant’s modesty” – in this case, the
beautiful leaned in favor appellant went for a medical check up.
of OM.
 outraging modesty punishable under section 354 of the
PC.
Main point of contention was the medical evidence and
the question of how the breast examination can be
better carried out.
On conviction, he was sentenced to ten month’s
imprisonment.
Tan Boon Hock v PP The appellant was charged with having used criminal
[1994] force to outrage the modesty of the complainant by
way of touching the complainant’s penis and thereby
SGHC committing an offence punishable under s354.
Outraging He pleaded guilty and was sentenced to 4 months’
Modesty imprisonment and 3 strokes of the cane.
The court found it hard to infer from the facts of the case that the accused had
OM in medical check up deliberately outraged the modesty of the complainant simply because, for
context. example, the examination took longer than usual or that simply using his palms
instead of his fingers.
“In my view, in a criminal case such as this, which relates to how a doctor should
examine a patient, the court should be slow in getting itself drawn into a
medical debate on, essentially, which is the preferred way of doing
something. It must be remembered that, for the purpose of section 354,
which part of the victim’s body is touched is often irrelevant for the
purpose of proving the offense…there must be room for some differences in
practice among different doctors”
Judge also held that since the complainant was under the impression that no
breast examination was necessary and she had never had a breast examination in
which she was not asked to lie down, “her recollection and perception of what
happened might have been colored by her mistaken expectations of what the
examination entailed, especially when she was feeling very embarrassed at the
time. This might have been further aggravated by her difficulty in understanding
English”
On whether the fact that the appellant was beautiful affected the opinion that the
accused intended to OM, “it must be remembered that the appellant is a 73-year-
old doctor. He must have seen many woman patients before. It is therefore not
surprising if he pays no attention at all to whether they were attractive or not.
Besides, attractiveness is a matter of subjective opinion.”
Appeal allowed, conviction set aside.
Whether the fact that ‘’Unlike the appellant in Chandresh Patel, the present appellant had not forced
the ‘victim’ of OM was his attentions upon an unsuspecting and vulnerable victim of the fairer sex.
consenting will mitigate The complainant in the present case was a young male police officer who had
the sentence of being taken active part in a police operation expressly designed to catch out
excessive. homosexuals engaged in homosexual activity in a secluded area. It would be
rigidly dogmatic of a court, in passing sentence, to refuse consideration of these
factors.”
 The appeal was brought against the sentence as being
manifestly excessive.
The complainant was a policeman, in disguise, who
participated in an ‘anti-gay’ operation. He approached
the complainant and struck up a conversation with
him. Shortly thereafter, they proceeded into some
nearby bushes where the appellant placed his right
hand on the complainant’s penis. The complainant
identified himself at this juncture and promptly
arrested the appellant.
“The accused meets another man in an area well-know for being a homosexual
haunt…then invites this other man to proceed to a more private spot, the
intention being to engage in homosexual activity of some sort…must be plain to
both parties having regard to the circumstances of their interaction…little
question of consent being forthcoming from this other man’’
“although a technical offense under section 354 might have been committed”, the
judge is puzzled that the accused caught in such a manner should be sentenced to
a harsh punishment of imprisonment and canning.
Appeal allowed, substituted a fine of $2000 for the sentence.

E. Sexual Offences – Absence of Consent, Submission

Rape
375. – (1) Any man who penetrates the vagina of a woman with his penis -
(a) without her consent; or
(b) with or without her consent, when she is under 14 years of age, shall be given of an offense.
(2) Subject to subsection (3), a man is guilty of an offense under this section shall be punished with imprisonment for a term
which may extend to 20 years, and shall also be liable to fine or to caning.
(3) Whoever –
(a) in order to commit or to facilitate the commission of an offence under subsection (1) –
(i) voluntarily causes hurt to the woman or to any other person; or
(ii) puts her in fear of death or hurt to herself or any other person; or
(b) commits an offence under subsection (1) with a woman under 14 years of age without her consent,
shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with
caning with not less than 12 strokes.

Consent given under fear or misconception, by person of unsound mind, etc, and by child
90. A consent is not such a consent as is intended by any section of this code –
 (a) if the consent is given by such a person –
(i) under fear of injury or wrongful restraint to the person or to some other person; or
(ii) under a misconception of fact,
and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or
misconception;
(b) if the consent is given by a person who, from unsoundness of mind, mental incapacity, intoxication, or the influence of
any drug or other substance, is unable to understand the nature and consequence of that to which he gives his consent; or
(c) unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.

PP v Victor Rajoo
(1995) 3 SLR(R)
189

SGCA

Absence of
Consent
Augustine Foong
Boo Jang v PP
(1990)

COA, Malaysia

Submission
Siew Yit Beng v PP
(2000)

SGHC

Submission
PP v Teo Eng Chan
(1987)
SGHC

Bona fide Mistake

as to Consent

Absence of
Consent
Abdullah v. Regina The appellant was charged with rape under s376 of the Was the appellant
[1954] Penal Code. There was ample evidence that he had justified by law because
carnal knowledge of the complainant and that her age he believed ‘in good
Bona fide Mistake was under 14. The appellant contended however, that faith’ that the girl was
as to Consent he thought she was over 16. The trial judge ruled that over 14 years of age?
this belief, if it existed, was immaterial and refused to
leave the matter to the consideration of the jury. He
was convicted and appealed to the Court of Criminal
Appeal on the point of law that he had reasonable
grounds for believing, and did in fact believe that the
girl was more than 14 years of age and thus was
entitled to be acquitted under s79 of the PC.
R v. Morgan The defendant Morgan invited the other 3 defendants, ‘whether in rape a
much younger men, to his house and suggested that defendant can properly
Bona fide Mistake they should have intercourse with his wife, telling them be convicted
as to Consent that she was ‘kinky’ and any apparent resistance on her notwithstanding that he
part would be a mere pretense. Accordingly, they did in fact believed the
have intercourse with her despite her struggles and woman consented if
protests. They were subsequently charged with rape such belief was not
and also, together with M, with aiding and abetting based on reasonable
rape. The wife gave evidence that she resisted and did grounds’
not consent.
The trial judge directed the jury that if they came to the
conclusion that the wife did not consent but that the
defendants believed, or might have believed, that she
did, they should convict the 3 defendants if they were
satisfied that they had no reasonable grounds for so
‘It is clear that if the appellant believed ‘in good faith’ that the complainant was
over 16 it would be a case of mistake of fact.
The judge then considered if the appellant was justified by law because he
believed ‘in good faith’ that the girl was over 14 years of age, and thus concluded:
‘…an act only acquires its criminal character by being forbidden by law. What the
law does not forbid it allows, and what a law allows is I think justified by law.
New trial ordered.
Lord Cross:
No one suggests that rape is an ‘absolute’ offence to the commission of which the
state of mind of the defendant with regard to the woman’s consent is wholly
irrelevant. The point in dispute is as to the quality of belief which entitles the
defendant to be acquitted and as to the ‘evidential’ burden of proof with regard to
it.
The first question…is whether according to the ordinary use of the English
language a man can be said to have committed rape if he believed that the woman
was consenting to the intercourse and would not have attempted o have it but for
this belief, whatever his ground for so believing. I do not think he can.
Rape…imports at least indifference as to the woman’s consent
Lord Hailsham:
‘prohibited act of rape is non-consensual sexual intercourse, and that the guilty
state of mind is an intention to commit it…either the prosecution proves that the
 believing. The HOL was asked to decide on a point of
law of general public importance: ‘whether in rape a
defendant can properly be convicted notwithstanding
that he in fact believed the woman consented if such
belief was not based on reasonable grounds’
PP v. Zainal Abidin The first 3 defendants were charged with raping a 20
Bin Ismail [1987] year-old girl, an offence punishable under s376 of the
PC. The 4th defendant was charged with attempting to
Bona fide Mistake rape her. She was taken in a car by the 4 defendants,
as to Consent who had identified themselves as members of the
Religious Department CID, to a beach. When the car
arrived they took turns to rape her. She made a report
and on the following day, was examined by a specialist
gynaecologist. No spermatozoa nor any positive
evidence of recent intercourse or injury was found.
accused had the requisite intent, or it does not…A failure to prove this involve an
acquittal because the intent, an essential ingredient, is lacking.
Lord Edmund Davies:
The correct view, we think, is that on proof of the fact of absence of consent from
circumstances which in the nature of the case must have come to the notice of the
defendant he may be presumed to have appreciated their significance, and nit is
this presumption which casts upon the defendant the evidential burden of
showing an honest and reasonable belief in consent before any issue as to his
state of mind can arise for the jury’s consideration.
Appeals dismissed.
(a) That in a At the close of the case for the defence, the issues were greatly narrowed. It was
charge of rape no longer in dispute…that Miss X had sexual intercourse on that beach with D2
or attempted and D3…no longer in dispute that D1 had made love to the girl; on his evidence,
rape, this did not amount to intercourse, though on the girl’s evidence, it did.
corroboration
of the evidence The judge considered whether the prosecution had convinced him that these acts
of the of intercourse took place in such circumstances as to constitute rape under s376
complainant is – ie did she consent to what was done to her
required, and
that the judge He referred to R v Morgan where the view was that the crime of rape consisted in
must direct having sexual intercourse with a woman, with intent to do so, without her
himself as consent or with indifference to whether or not she consented. The offence could
required by R v not be committed if that essential intention was absent. If the accused believed
Kilbourne that the woman had consented, whether or not the belief was based on
(b) That having so reasonable grounds, he could not be found guilty of rape.
directed
himself that it The judge assessed the credibility of the woman. He considered the number of
is dangerous to differences between various descriptions provided by her/unlikelihood that a
act on the woman would give her willing consent to sexual intercourse or indecent
evidence of the behaviour by 4 strangers/ other evidence, in which he could find nothing which
complainant amounted to, in law, to corroboration of the evidence of the complainant, in
alone, he may, relation to the issue of consent…he thus concluded it would be unsafe to convict
nevertheless the defendants.
act on her
evidence alone Accused discharged.
if he finds it so
credible that he
is sure of guilt
and am
prepared to act
on it
Culpable Homicide
Culpable homicide
299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as
is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

- Culpable homicide – Rash/Negligent Act – (murder – exceptions) = Culpable homicide not amounting to murder

- Culpable homicide – “If the act is done with the intention of causing the bodily injury likely to cause death and it is not shown
that the accused knew that that was the likely consequence, it is culpable homicide”

- Culpable homicide may not amount to murder

(a) Where the evidence is sufficient to constitute murder, but one or more of the exceptions to section 300, Penal Code
apply, and
(b) Where the necessary degree of mens rea specified in section 299 is present, but not the special degrees of mens rea
referred to in section 300, Penal Code.

- “Speaking generally, if the act must in all probability cause death, the offense is within section 300, Penal Code, and if the act is
only likely to cause death, the offense falls within section 299, Penal Code”
o The test is one of probability of death.
o Probability – higher threshold of knowledge than ‘likelihood’

- Comparison between s300a and first limb of s299:

The offense is always murder.

- Comparison between s300c and second limb of s299:

 o It is culpable homicide if the bodily injury intended to be inflicted is likely (aka. Probable, rather than a mere possibility)
to cause death; it is murder if such injury is sufficient in the ordinary course of nature (aka. most probable result) to cause
death.
o It is a question of degree of probability of death.

- S300b and s299

S300b combines the subjective elements contained in the second and third limbs of s299 -> s300b is narrower than the generic
offence of culpable homicide.
S300b rarely invoked in practice because of high degree of culpability -> either s300a or s300d

- Comparison between S300d and third limb of 299:

o Depends on degree of risk to human life. If death was a likely result, it is culpable homicide. If it is the most probably
result, it is murder.
o Both based on knowledge / both require knowledge of the probability of the causing death.
o S300d – knowledge of death must be of the highest degree of probability.
o S300d -> second clause -> so imminently dangerous it must in all probability cause such bodily injury as is likely to cause
death -> ‘likely to cause death’ -> objective: murder might not amount to culpable homicide because s299 (third limb)
requires contemplation of death whereas 2nd clause of s300d only requires contemplation of bodily injury
o S300d -> second clause -> therefore must be given fully subjective interpretation
o S299 culpability may extend to an inference of knowledge that it was ‘so imminently dangerous’ -> cause second clause of
s300d
o Yeap Boon Hai v. PP -> set fire to shop house
o PP v. Selvraj Subramaniam -> suffocated wife -> pleaded guilty to s299, requirements for s300d not tested.
Chung Kum Moey v The appellant was convicted of murder, an offence
PP [1965-67] under s300 of the PC.
Privy Council. The appellant had entered the deceased’s shop with
2 other men. He asked the deceased for his keys and
CHNAM tried to search the deceased. The deceased brushed
the appellant’s hands away. The appellant then fired
a shot in the direction of the deceased, which hit his
arm. There was a subsequent struggle between the
deceased and one of the 2 other men over the
possession of a chair. When the deceased tried to
reach for a telephone the appellant fired again.
The post-mortem revealed that the cause of death
was 2 bullets fired into the chest.
Defense main contention on appeal that the judge
failed to leave to the jury the vital question whether
the appellant, if he fired the fatal shots, had any of
the states of mind necessary to constitute the crime
of murder.
Tham Kai Yau v PP The appellants, armed with a saw and choppers,
[1977] attacked the deceased after the deceased had
refused the first appellant’s challenge to a fight. The
Federal Court, appellants inflicted multiple deep incised wounds
Malaysia. on the deceased, included 2 head wounds of a
serious nature. The probable cause of death was
CHNAM multiple injuries leading to shock and hemorrhage.
The appellants were convicted of murder under
s300 of the PC.
On appeal, the defense’s main contention as that the
trial judge had failed to direct the jury properly. The
Whether it was murder “The learned judge appears to have proceeded on the basis that the 4 limbs of s300 are
or Culpable homicide mutually exclusive. That would not appear to be the case. For instance, an act may be
not amounting to done with the intention of causing bodily injury sufficient in the ordinary course of
murder. nature to cause death and also with the knowledge that it is so imminently dangerous
that it must in all probability cause death or such bodily injury as is likely to cause
death.” – 4 limbs of s300 are not mutually exclusive.
The judge did not put before the jury other possible views of consideration, the jury
might have taken the view that shooting at the deceased’s forearm was not of itself
likely to cause death or such bodily injury, or if it was, that the accused did not know it.
“If the act causing death is done with the intention of causing bodily injury sufficient
in the ordinary course of nature to cause death, it comes within the 3rd limb of
s300 and the offence is murder. If the act is done with the intention of causing the
bodily injury likely to cause death and it is not shown that the accused knew that
that was the likely consequence, it is culpable homicide. It is not possible to define
with precision the meaning to be given to the word ‘likely’ but the contrast between the
use of that word in s299 and the words in the 3rd limb of s300 indicates that a higher
degree of certainty is required to justify conviction under that limb for murder”
Appeal allowed. Verdict of guilty of culpable homicide substituted, sentence of
imprisonment for life.
How to differentiate ‘‘Where there is more than one inference which can reasonably be drawn from a set of
s299 and s300. facts, the inference most favorable to the accused should be adopted…It cannot be
disputed that intention is a matter of inference.”
“S299 enacts that a person commits culpable homicide, if the act by which the death is
caused is done: (a) with the intention to cause death; (b) with the intention of causing
such bodily injury as is likely to cause death; (c) with the knowledge that he is likely by
such act is likely to cause death.
S300: except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done: (1) with the intention of causing death; (2) with
the intention of causing such bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused; (3) with the intention of causing
defense argued that where there is more than one
inference which can be reasonably drawn from a set
of facts, the inference most favorable to the accused
should be adopted.
such bodily injury to any person, and… is sufficient in the ordinary course of nature
to cause death; (4) with the knowledge that the act is so imminently dangerous that it
must in all probability cause death, or such bodily injury as is likely to cause death”
“Where there is intention to kill, as in (a) and (1) the offence is always murder.
Where there is no intention to cause death or bodily injury, then (c) and (4) apply.
Whether the offence is culpable homicide or murder depends upon the degree of risk
to human life. If death is a likely result, it is culpable homicide; if it is the most
probable result, it is murder.”
“The essence of (b) and (3) is this. It is culpable homicide if the bodily injury intended
to be inflicted is likely to cause death; it is murder, if such is sufficient in the ordinary
course of nature to cause death…it is a question of degree of probability”
“Culpable homicide may not amount to murder
(c) Where the evidence is sufficient to constitute murder, but one or more
of the exceptions to section 300, Penal Code apply, and
(d) Where the necessary degree of mens rea specified in section 299 is
present, but not the special degrees of mens rea referred to in section
300, Penal Code.”
“Speaking generally, if the act must in all probability cause death, the offense is
within section 300, Penal Code, and if the act is only likely to cause death, the
offense falls within section 299, Penal Code”
‘’in view of the nature of the injuries sustained by the deceased and the time and place
of the incident, there was evidence of an intention on the part of the appellants to cause
bodily injury to the deceased…the present cases must fall within the second part of
s299 or the third clause of s300”
“In ordinary circumstances we should probably have had little difficulty in upholding
the convictions of the appellants for murder but in view of the nature of the medical
evidence…the case might not unreasonably be brought within the lesser offence of
culpable homicide not amounting to murder, falling within the first part of s304.”

Andhra Pradesh v The deceased had previously assisted in lodging a
Rayavarapu police report against the respondents’ faction. On
Punnayya [1977] the day of the incident, the deceased had alighted
form a bus with his companions. The respondents
Supreme Court, also alighted from the bus.
India They picked up heavy sticks and went after the
deceased, using the sticks to beat the deceased’s
CHNAM arms and legs. The deceased died of injuries
resulting from the attack. The respondents were
convicted of murder under s300.
On appeal to High Court, the conviction was altered
to one of culpable homicide, punishable under s304.
On appeal the State contended that the case fell
under s300(3). The respondents sought to support
the judgment of the High Court. The High Court had
reasoned that the respondent were not guilty of
murder because (i) there was no premeditation in
the attack; (ii) injuries were not on any vital part of
the body; (iii) there was no compound fracture
resulting in heavy hemorrhage; (iv) death occurred
due to shock and not due to hemorrhage and (v)
though the accused had knowledge while inflicting
injuries that they were likely to cause death, they
might not have had the knowledge that they were
so imminently dangerous that in all probability
their acts would result in such injuries as are likely
to cause death.
Convictions for murder set aside, substituted with culpable homicide not amounting to
murder.
Distinction between “Clause (b) of s299 corresponds with clauses (2) and (3) of s300. The distinguishing
limbs of s299 and that feature of the mens rea requisite under clause (2) is the knowledge possessed by the
of s300. offender regarding the particular victim being in such a peculiar condition or state of
health that the intentional harm caused to him is likely to be fatal… ‘‘intention to
cause death’ is not an essential requirement of clause (2). Only the intention of
causing the bodily injury coupled with the offender’s knowledge of the likelihood
of such injury causing the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause.”
“The High Court has held that the accused had no intention to cause death because they
deliberately avoided to hit any vital part of the body, and confined the beating to
the legs and arms of the deceased… But that finding…does not necessarily take
the case out of the definition of ‘murder.”
Issues: ‘whether the bodily injuries found on the deceased were intentionally inflicted
by the accused? (ii) If so, were they sufficient to cause death in the ordinary course of
nature?
“If both these elements are satisfactorily established, the offence will ‘murder’,
irrespective of the fact whether an intention on the part of the accused to cause death,
had or had not been proved. In the instant case, the existence of both these elements
were clearly established by the prosecution.”
‘The expression ‘bodily injury’ in clause 3rdly includes also its plural, so that the clause
would cover a case where all the injuries intentionally, caused by the accused are
cumulatively sufficient to cause the death in the ordinary course of nature, even if
none of those injuries individually measures up to such sufficiency.”
Conviction of murder as “all the conditions which are a pre-requisite for the
applicability of this clause have been established”
Yeap Boon Hai v The appellant fell out with his wife. She wanted a
PP [2010] divorce and chased him out of the shop house
where they lived. The appellant purchased
Federal Court, containers of petrol and set the shop house fire at
Malaysia about 3.30am. 6 victims perished in the fire,
including the appellant’s wife and son.
CHNAM
He was convicted of murder under s300.
Whether the “Applying Tham Kai Yu and Ors v PP [1977] 1 MLJ 174, the court of Appeal held that in
appellant’s actions fell starting the fire by means of petrol clearly brought about enormous degree of
within the definition of risk to the lives of the occupants. Thus the court ruled that: …it is certainly the most
culpable homicide probably result. It is therefore murder”
under s299 of the PC.
The judges applied the guiding principles from Ratanlal and Dhriajlal’s Law of Crimes:
“Clause 4 applies to a case of dangerous action without an intention to cause specific
bodily injury to any person. The distinction between the first 3 clauses and the last
clause is that whether in the former there is an intention to kill or to cause bodily
injury, in the latter there is no such intention.”
“The appellant in this case may have no intention to cause the death or any bodily
injury as is likely to cause death to the occupiers of the shop house but judging from the
time and manner in which the fire was started, in all circumstances we are satisfied
that it is so imminently dangerous to human lives and that in all probability it
will cause death. In the circumstance death approximates to practical certainty.”
“In the case of Hyam v Director of Prosecutions [1975] AC 55…the House of Lords held by
majority of 3:2 that a person who, without intention to endanger life, did an act
knowing that it was probably that grievous, in the sense of serious bodily harm
would follow was guilty of murder if death resulted...the facts in the present case
are no different”
“The appellant started the fire…knowing full well that the shop house was occupied by
so many people including his own wife and children. His act had put the lives of so
many innocent people in grave danger… it cannot be denied that his act was
imminently dangerous and that in all probability it will cause death.”
Appeal dismissed.
Murder

Murder
300. Except in the cases hereinafter excepted culpable homicide is murder —
(a) if the act by which the death is caused is done with the intention of causing death;

- An intentional killing is always murder unless it comes within one of the special exceptions in section 300.

(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to
whom the harm is caused;

- “‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled
with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring
the killing within the ambit of this clause.” [Andhra Pradesh v Rayavarapu Punnayya [1977]
- Must have intention and knowledge.
- The injury need not be generally fatal

(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death; or

- “the clause would cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient to cause
the death in the ordinary course of nature, even if none of those injuries individually measures up to such sufficiency” [Andhra
Pradesh v Rayavarapu Punnayya [1977]
- Current test for 300c: Virsa Singh -> affirmed in Tan Cheow Bock

1) First, it must establish, quite objectively, that a bodily injury is present. (objective)

2) Secondly, the nature of the injury must be proved; these are purely objective investigations (objective)
a. Nature = whether the injury is on the leg/arm/stomach etc, how deep it penetrated, whether any vital organs were cut
 3) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kind of injury was intended. (subjective)
a. If there is nothing beyond the fact of the injury and that he intended to inflict the injury in question, the only possibly
inference is that he intended to inflict it.
b. Whether there is intention is one of fact. (Lim Poh Lye)
c. To escape this charge, just need to prove, in all probability, that the injury inflicted was not intentional, but rather
accidental or unintended.
d. Do not need to prove that the injury was serious or not, only need to prove that the accused intended the injury in
question.

4) Once these 3 elements are proved to be present, the enquiry proceeds further and,

5) Fourthly, it must be proved that the injury of the type just described made up of the 3 elements set out above is sufficient to
cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing
to do with the intention of the offender.

- Intended Injury vs Actual Injury.

(d) if the person committing the act knows that it 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.

- Does not need an intention to cause death or bodily injury.

- Rests on knowledge.

Differentiate from 299:

299 – ‘likely’ result
300 – ‘most probable’ result
 - Based on degree of certainty / risk.
Mohamed Yasin:
Remote injuries -> Prosecution would have to prove that it was within the reasonable contemplation of the appellant that such injuries
could be the result of his act
Case Facts
Tan Buck Tee v PP The deceased and the appellant were colleagues.
[1961] They had been quarreling. The deceased was later
found with 5 appalling wounds, 3 of which had
MURDER 300A penetrated the heart and liver.
These must have been caused by violent blows with a
heavy sharp instrument like an axe which was
recovered at the scene.
The appellant was charged with the offence of
murder under s300(a). He was convicted of murder
after a jury trial and sentenced to death.
Mohamed Ali Bin The appellant was convicted of murder under s300c
Johari v PP [2008] of the PC.
SGCA The appellant was the stepfather of the deceased,
who was two years and ten months old at the time of
MURDER 300(a) death. The appellant testimony was that he had
Issues Judgment
Whether it was “In all cases of homicide the question of the intention of the accused person in doing the
culpable homicide or act which is the cause of death, supposing such act is made out be the evidence, is of
murder. fundamental important. In all cases that intention is something the existence and
nature of which are to be deduced from the evidence”
300a can be made out
through the evidence. “There was the body with 5 appalling wounds on it, wounds penetrating to the heart
and liver which must, have been caused by violent blows with a heavy sharp
instrument like an axe.”
“In the absence of anything else, whoever inflicted those blows must have
intended to kill the person on whom they were inflicted. There was no evidence as
to the circumstances surrounding the killing. No question of insanity or provocation or
self-defense or anything else was raised by the defense. There was not a scrap of
evidence with which any such defense could be even remotely linked up”
“The only question for the jury to consider was whether they were satisfied beyond
reasonable doubt that it was the appellant who inflicted the injuries. If they were so
satisfied, then it was the appellant who inflicted the injuries.”
Appeal dismissed.
Distinction between “While it may be a person’s intention to murder another where he acts with a purpose
motive and intention. to bring about a result, his motive centres on explaining why he behaves in a certain
way”
“While motive is not the same as intention, it can…cast valuable and significant light on
the intention of an accused in appropriate circumstances.”
wanted to stop the deceased’s crying. He had lowered
the deceased three times, head first, into a pail of
water and when he had left her unattended to attend
to a phone call she had drowned.
Alternatively, the appellant could also have been
charged with an offence of causing death by an act
which was done with the intention of causing death,
under 300(a) of the PC.
“In Oh Laye Koh, Yong Pung How CJ clarified incisively that intention and motive were
both different elements: “… ‘intention’ is to be distinguished from ‘motive’, even though
the presence of a 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”
“In the later case of Thongbai Naklangdon… this court reiterated that motive was not
necessary to establish guilt”
“It would thus appear that while motive is not an essential element of the crime, it
can ‘bolster the inference that an intention to commit the offence was existent’”
In this case, the judge did not consider whether or not the appellant had sexually
assaulted the deceased, the finding of which would allow him to be charged under
s300(a). However, judge could still charge under s300(c) in this case.
“We should also point out that such factual circumstances would justify a finding of
guilt pursuant to section 300(c) as well. This is, in other words, an instance where there
is, on the facts, an overlap between section 300(a) and section 300(c) of the Code.”
Conviction under s300(c) held.
Anda v The State The appellants were charged with murder under
of Rajasthan s300 of the PC and in the course of the judgment the
[1966] court explains the ambit of s299 and s300 of the
murder provision in section 300(b).
Supreme Court of
India.
MURDER
Section 300(b)
Karu Marik v. State The appellant, armed with a dagger, had inflicted
of Bihar several deep injuries onto the deceased’s abdomen
with the dagger. This resulted in the deceased’s death
Supreme Court of 8 days later.
India
The appellant was convicted of murder under
MURDER s300(b), viz, an offence of causing death by an act
done with the intention of causing such bodily injury
Section 300(b) as the offender knows to be likely to cause the death
of the person to whom the harm is caused.
The High Court upheld his conviction.
On appeal to the Supreme Court, the defense
contended that the appellant had neither the
intention to cause the death of the deceased, nor such
bodily injury which he knew was likely to cause
death.
Distinction of 300a “Murder is an aggravated form of culpable homicide”
and 300b.
“We now refer to the circumstances which turn culpable homicide into murder…
…the first clause of s300 culpable homicide is murder when the act by which death is
caused is done with the intention of causing death…an intentional killing is always
murder unless it comes within one of the special exceptions in s300. If an
exception applies, it is culpable homicide not amounting to murder”
Putting aside the exceptions in s300 which reduce the offence of murder to culpable
homicide not amounting to murder, culpable homicide is again murder if the offender
does the act with the intention of causing such bodily injury which he knows to be
likely to cause the death of the person to whom harm is caused. This knowledge must
be in relation to the person harmed and the offence is committed 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.” – describing 300(b)
Definition of 300(b) “The manner of causing injuries, the nature of injuries caused, the part of the body
where they were inflicted, the weapon of assault employed in the commission of the
offence and conduct of the accused are relevant factors in determining whether the
offence committed is one of murder or culpable homicide not amounting to murder.
Even a most illiterate and rustic person would know and realize that a savage blow
with a short cutting weapon on vital part like chest and abdomen would cause bodily
injury which would result in death.”
“This court, dealing with the second clause of section 300 IPC in Rajwant Singh v State
of Kerala AIR 1966 SC 1874, in para 10 has observed that: … The mental attitude here is
two-fold. There is first the intention to cause bodily harm and next there is the
subjective knowledge that death will be the likely consequence of the intended
injury”
“In the case on hand…it must be deemed that his intention was at least to cause such
bodily injury as was likely to cause death... The injuries were grievous in nature and
dangerous to life which resulted in causing death of the deceased… The injuries were
inflicted by the dagger, a sharp cutting weapon; even an illiterate and ignorant can be

Virsa Singh v State The appellant had thrust a spear with considerable
of Punjab [1958] force into the abdomen of the deceased. The deceased
died the next day from his wound with peritonitis
Supreme Court of having hastened his death. The medical evidence was
India that this injury was sufficient in the ordinary course
of nature to cause death.
MURDER 300C
On appeal, it was contended that the offence of
murder was not made out because the prosecution
had not proved that there was an intention to inflict a
bodily injury that was sufficient to cause death in the
ordinary course of nature.
presumed to know that an intense assault with such weapon on such vital parts of the
body would cause death.”
“Intention or knowledge under which a person acts is an important
consideration…intention is to be inferred from the facts and circumstances of the case.”
Appeal dismissed as court did not find any merit in the appeal.
Definition of 300(c) ‘‘If there is an intention to inflict an injury that is sufficient to cause death in the
ordinary course of nature, then the intention is to kill and in that event, the ‘thirdly’
Whether there is a would be unnecessary because the act would fall under the first part of the action,
need to have an namely ‘if the act by which the death is caused is done with the intention of causing
intention to inflict the death’”
injury that was
sufficient to cause Fallacious argument that the intention the section requires must be related, not only to
death in the ordinary the bodily injury inflicted, but also to the clause, ‘and the bodily injury intended to be
course of nature. inflicted is sufficient in the ordinary course of nature to cause death’
“All it means is that it is not enough to prove that the injury found to be present is
sufficient to cause death in the ordinary course of nature; it must in addition shown
that…the injury found to be present was the injury that was intended to be inflicted.”
“In considering whether the intention was to inflict the injury found to have been
inflicted, the enquiry necessarily proceeds on board lines…it is broad based and
simple and based on common sense”
‘‘First, it must establish, quite objectively, that a bodily injury is present. (objective)
Secondly, the nature of the injury must be proved; these are purely objective
investigations (objective)
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some other
kind of injury was intended. (subjective)
Once these 3 elements are proved to be present, the enquiry proceeds further and,

Ike Mohamed The appellant and his accomplice had gone into a hut
Yasin Bin Hussin v. in Pulau Ubin with the intention of committing
PP [1974-1976] robbery by night. In the course of the robbery, the
appellant had grabbed the deceased, aged 58 years,
Privy Council. thrown her to the ground and raped her. The
deceased’s death was caused by fractures of the ribs
MURDER 300C in the front portion of her chest which had resulted in
congestion of the lungs and cardiac arrests. These
injuries were caused by the accused when he forcibly
sat on the victim’s chest, in the course of a violent
struggle, when she was resisting his attempt to rape.
The appellant was convicted of murder under s300,
Fourthly, it must be proved that the injury of the type just described made up of the 3
elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.”
“It does not matter that there was no intention to cause death…It does not even matter
that there is no knowledge that an act of that kind will be likely to cause death”
“The question is not whether the prisoner intended to inflict a serious injury or a
trivial one but whether he intended to inflict the injury that is proved to be
present. If he can show that he did not, or if the totality of the circumstances justify
such an inference, then, of course, the intent that the section requires is not proved. But
if there is nothing beyond this injury and the fact that the appellant inflicted it,
the only possible inference is that he intended to inflict it.”
“The question, so far as intention is concerned, is…whether he intended to inflict the
injury in question; and once the existence of the injury is proved the intention to cause
it will be presumed unless the evidence or the circumstances warrant an opposite
conclusion” – it is a question of fact.
Appeal dismissed
Whether the act of the Trial judges:
accused in causing the ‘‘on the evidence before us we have no doubt at all that the aforesaid fatal injury was
injury to the intentionally caused by the second accused and that it was not caused accidentally or
deceased’s chest, otherwise unintentionally. Consequently, the act of the second accused in causing the
resulting in her death, fatal injury was an act which clearly falls within s300c because he intended to inflict
fell within the that injury within the meaning of the said third limb and we accordingly find him guilty
definition of murder of murder as defined in the PC”
in section 300c
The Lordships held that this by the trial judges fails to give effect to the distinction
drawn in s299 and 300…not only must the act of the accused which caused the death
be voluntary in this sense; the Prosecution must also prove that the accused
intended, by doing it, to cause some bodily injury to the victim of a kind which is
sufficient in the ordinary course of nature to cause death (dictum by Lord Diplock
 viz, the offence of causing death with the intention to
cause such bodily injury to any person, where the
bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.
Accused was acquitted of murder because he did not
intend to inflict internal injuries, instead of mere
superficial, injuries or temporary pain or any harm at
all, which are very common even in sports.
Consequence was remote to the action.
Tan Cheow Bock v The appellant who was in debt visited the deceased’s
PP [1991] house knowing fully well that only she would be in,
intending to get some money by any means, even to
SGCA commit robbery if necessary. The deceased proved
more difficult than the accused expected. In the
was factually appropriate in this case but it was not of universal application)
“The lacuna (gap) in the prosecution’s case which the trail judges overlooked was the
need to show that, when the accused sat forcibly on the victim’s chest in order to
subdue her struggles, he intended to inflict upon her the kind of bodily injury
which, as matter of scientific fact, was sufficiently grave to cause the death of a
normal human being of the victim’s apparent age and build even though he himself
may not have had the sufficient medical knowledge to be aware that its gravity was
such as to make it likely to be fatal”
“but to fall on someone’s chest, even forcibly, is something which occurs frequently in
many ordinary sports, such as rugby football, and though it may cause temporary pain,
it is most unusual for it to result in internal injuries at all, let alone fatal injuries”
It is not necessary for the judges to enter into an enquiry whether the appellant
intended to cause the precise injuries which in fact resulted or had sufficient
knowledge of anatomy to know that the internal injury which might result from his act.
This enquiry is usually broad-based and simple and based on commonsense.
…essential for the prosecution to prove, at very least, that the appellant did
intend by sitting on the victim’s chest to inflict upon her some internal, as distinct
from mere superficial, injuries or temporary pain. The trail judges did not find this
to be proved. There was no evidence upon which such a finding could have been
based…it follows, therefore, that the appellant’s conviction for murder must be set
aside.
It was decided that the act of the accused in sitting forcibly on the chest of the deceased
was a ‘rash’ act within the meaning of s304A
Appeal allowed.
Whether it was The judge referred to the case of Virsa Singh v State of Punjab, where 4 guiding
needed to prove that principles were laid out in interpreting the provisions of 300c
the accused had the
intention to the cause He also referred to PP v Visuvanathan where it was found that the dictum of Lord
the injury which is Diplock in Mohamed Yasin’s case was factually appropriate in that case but it was not of
MURDER 300C course of a struggle the deceased fell to the ground.
She started shouting and screaming ‘catch the thief’.
The accused stabbed her twice and when she still
continued shouting and screaming, the accused
stabbed her in the mouth so as to stop her from
shouting further. This proved to be the fatal wound
and it was not disputed that anatomically, the fatal
injury was a very difficult injury to inflict, had one
intended to inflict that particular injury.
The appellant was convicted of murder under s300c
of the PC.
On appeal, the defense contended that the trial judges
had erred in failing to appreciate that the fatal injury
was a very difficult injury to inflict, and that the
prosecution had failed to prove the intention on the
appellant’s part to inflict that particular injury which
in the ordinary course of nature was sufficient to
cause death.
PP v Ow Ah Cheng The accused had gone to the deceased’s residence to
[1992] look for her father. He saw valuables lying on the
table and as he took the valuables, the deceased
SGHC entered the master bedroom and grabbed the
accused’s left arm. The accused pushed her away and
MURDER 300C she fell onto the bed. When the deceased started to
scream, the accused panicked; covered her face with a
pillow and grabbed her throat to stop her from
further screaming. The deceased’s cause of death was
asphyxia. The accused was charged with murder
under s300c of the PC.
The defense contended that when the accused used
his hand to grab the neck of the deceased, he did not
sufficient in the universal application… and that ‘‘it is irrelevant and totally unnecessary to enquire
ordinary course of what kind of injury the accused intended to inflict. The crucial question always is, was
nature to cause death. the injury found to be present intended or accidental’’
In the present case, court held that the trail judges in Visuvanathan was right in saying
that all the prosecution needed to prove was:
1. That the accused did an act which caused the death of the deceased
2. That the said act was done with the intention of causing bodily injury;
3. That the injury caused –
a. Was intended was not accidental or otherwise unintentional; and
b. Was sufficient in the ordinary course of nature to cause death
Court opinioned that the submission of counsel for the defence based on Lord Diplock’s
dictum in Mohamed Yassin that ‘the prosecution must also prove that the accused
intended to cause some bodily injury to the victim of a kind which is sufficient in the
ordinary course of nature to cause death’ was untenable because such a requirement
would make cl (c) otiose in view of the provisions of cl (a)
Appeal dismissed.
The question was Counsel for the respondent drew a distinction between causing the death by asphyxia
whether the degree of and…’strangled’. If the latter meant throttled, which means a deliberate grasping by the
force used was so hands, the medical evidence merely established that the wife died of asphyxia
extreme as to be caused by pressure on the chest and throat or neck. On the facts and in the
consistent only with circumstances, there is a clear foundation for the possibility of accident.
an intent to cause
bodily injury, and the The pressure on the neck was not disputed. The degree of force, duration and
bodily injury intended intention that accompanied the pressure on the neck was disputed. They were
to be inflicted was facts that had to be inferred and taken together with the evidence given by the
sufficient in the accused.
ordinary course of
nature to cause death. It was finally decided that the evidence adduced was not consistent only with
murder. The fact that the deceased was strangled did not prove beyond a
reasonable doubt that the accused intended to cause the death of Ah Lian.
 have the intention to inflict any injury at the neck
which in the ordinary course of nature would cause
death.
Tan Chee Hwee Two appellants were polytechnic students in debt.
and Anor v PP They had arranged to burgle the house of the parents
[1993] of a classmate who had suggested the house-breaking
and provided them with the keys to the house. The
SGCA maid, who had gone out, returned sooner than
expected whilst they were ransacking the house.
Murder 300(c)
The appellants struggled with the maid. The first
appellant tried to tie her up with a rope but it broke.
He then tried to tie her up with an electric iron cable.
She died from strangulation caused by the electric
iron cable.
The appellants were convicted under section 300(c)
read with section 34 of the PC of committing murder
in furtherance of their common intention.
On appeal, the defense contended that the appellants
did not have the intention to cause death, or cause
such bodily injury as is likely to cause death.
PP v Lim Poh Lye The respondents, together with one other person,
and Anor [2005] planned to rob the deceased, a second-hand car
dealer. The trio was to abduct the deceased and force
SGCA him to sign cheques. A knife would be used to frighten
the deceased if he should prove to be difficult.
MURDER 300C However, when the deceased repeatedly tried to
escape, the trio attacked him to prevent his escape.
The probable cause of death was one of seven stab
wounds on the deceased’s legs, which had penetrated
the right femoral vein, causing continuous bleeding
There was no intention to cause that bodily injury that which inflicted would in the
ordinary course of nature, cause death.
Charge of murder reduced to the lesser offence of culpable homicide not amounting to
murder.
Whether they had the The judicial commissioner held that it was clear that the common intention was formed
intention to cause at the time when the maid entered the house and started screaming.
bodily injury to the
maid. However, the SGCA opinioned that the evidence does not support such a finding.
Can acquit when the The fact that they entered the house only after the maid had left the house shows that
injury inflicted was “murder or causing hurt to the maid of any kind was not in the minds of any one
unintended / of them during that phase of these unhappy events”. “Even after he had armed
accidental. himself with a knife, Tan’s intention was not to cause hurt to the maid but to
frighten her into submission”
“it is clear from the statements of Tan and Soon that they were both in a state of panic”
Court found that the accused did not have the intention to kill the maid but only to
silence her from screaming. “In the circumstances we are driven to the conclusion that
the injury which was in fact caused to the maid around her neck, in all probability,
was not intentionally but accidentally or unintentionally caused.”
Appeal allowed, conviction of murder set aside, convicted of CHNAM punishable under
section 304(b) of the Penal Code.
How to resolve Tan The court referred to the 4 elements needed to be proved under section 300c in Virsa
Cheow Bock Singh v State of Punjab, and in particular, the 3rd element. The court considered
whether ‘or that some other kind of injury was intended’ was an elaboration of
Whether it is the earlier exclusion of an ‘accidental or unintentional’ injury and was inclined to think
necessary that the that, in most instances, it was.
accused know the
seriousness of the In resolving Tan Cheow Bock, the court recognized that the statement that it was
injury inflicted. unnecessary to enquiry what kind of injury the accused intended to commit could give
rise to misunderstanding, and clarified “clearly, what injury the accused intended to
inflict would be relevant in determining whether the actual injury caused was intended
 and death.
The 2 respondents were charged with murder under
s300c of the PC.
At the High Court trial, the respondents were
acquitted of murder and convicted on a lesser charge
of robbery with hurt punishable under s394 of the PC.
The prosecution appealed.
Accused convicted because he intended the injuries
on the leg, and objectively speaking, the wounds,
having severed the femoral vein, was sufficient in the
ordinary course of nature to cause death. The injury
was perhaps not so remote to the act. Inference can
be drawn that the fatal injuries were intended as they
would clearly be the outcome of such actions.
PP v Astro bin The deceased, a transvestite, performed fellatio on
Jakaria [2010] the accused. The deceased, who had been provided
the accused food and accommodation, then
SGHC propositioned him to engage in anal intercourse. The
accused refused; the deceased then incessantly
MURDER 300C cajoled and reminded the accused of being ‘cultivated’
by the deceased.
to be caused, or whether it was caused accidentally or was unintended. However,
viewed in that context, it seems to us that what the court was seeking to convey
was that it was immaterial whether the accused appreciated the true nature of
the harm his act would cause so long as the physical injury caused was intended”
The court compared the circumstances of the instant case to that of Harjinder Singh
and decided that in the latter, the question in concern was whether the accused
intended to cause the particular injuries that were actually found on the victim
and not whether he intended to sever the artery. In contrast, in the instant case, the
respondents intended to stab Bock’s thigh it prevent him from struggling and escaping
and in the case of Ng, to teach Bock a lesson.
Whether the fatal stab wound was caused to a part of the body which is not commonly
known to be a vulnerable region of the body was not a consideration that affects the
operation of s300c, instead, the crucial question to ask is whether the wounds
that were caused were in fact wounds which the respondents intended to cause.
Court said that Lord Diplock’s dictum in Mohamed Yasin’s case was considered to be
not of universal application as when considered in isolation, it gives a different
meaning to the 3rd limb of s300, but it is clear from a reading of the whole judgment
that the privy council has not differed from the views in Virsa Singh’s case.
Court then held that the accused need not be aware, or have subjective awareness,
of the seriousness of the injury. Pointed out that in Virsa Singh “whether the accused
knew of its seriousness or intended serious consequences is neither here nor there”
Charge of robbery set aside, respondents convicted of murder under s302, read with
section 34 of PC.
Can acquit when the The judge referred to Lim Poh Lye where it was stated that whether a particular
injury inflicted was injury was accidental or unintended is a question of fact which has to be
unintended / determined by the court in light of the evidence adduced and taking into account all the
accidental. surrounding circumstances of the case…it is incumbent upon this court to decide on the
totality of the evidence having regard to all the surrounding circumstances, whether
the requisite intention in section 300c had been proved beyond a reasonable doubt by
the prosecution.
 A scuffle ensued during which the accused punched
the deceased. As the deceased was lying face down on
the floor, the accused tied up the deceased with a
long-sleeved shirt. The deceased’s death was caused
by a ligature tied around his neck.
The accused was charged with murder under s300c.
The defense’s position was that the applying and
tightening of ligature around the neck was accidental
or unintentional.
PP v. AFR [2011] The accused returned home with his wife from
shopping, with a doll his had bought for his two-year-
SGHC old daughter for her birthday. He had been in a good
mood until he saw his daughter playing with and
Murder s300(c) chewing on his cigarettes, which he had previously
told her not to do. He scolded her, grew stressed and
started to hit her when she began to cry. His blows
and kicks became more and more frenzied.
His daughter died as a result of severe beating. The
cause of death was certified as ‘haemopericardium’,
due to ruptured inferior vena cava (IVC)’ and the
Pathologist found a total of 58 external injuries on
The judge also cited Tan Joo Cheng v PP [1992] that if the court at the end of the day
find that the accused only intended to cause a particular ‘minor injury’ which would
not in the ordinary course of nature cause death, but in fact caused a different injury
sufficient in the ordinary course of nature to cause death, section 300(c) would not be
attracted.
The judge considered whether the accused had the motive of tying the ligature in order
to rob the deceased of his jewelries and decided that it would be highly unlikely.
The lack of an ‘‘unbreakable and credible chain of evidence’’ seem to indicate that
there are decidedly reasonable doubts concerning the accused’s intention in inflicting
the ligature around the deceased’s neck in order to strangle the deceased to death.
The judge found that the prosecution had failed to prove beyond a reasonable
doubt that the act of tying the ligature around the deceased’s neck was one that
was intentional and not accidental.
Accused was found guilty of culpable homicide not amounting to murder under s299,
punishable under s304b of the PC, as during the struggle, the accused was not given a
clear view of the exact position of the ligature beneath at the time he tightened the
ligature with a considerable amount of force.
Whether the offense Court clarified in Virsa Singh, that the phrase ‘broad-based’ and ‘commonsense’, “must
fell under s300c of PC. be that which an ordinary person would view as the intention of the accused person in
the circumstances of the case. If the death caused by the injury were within the
Can AFR be held to realm of ordinary human experience, a jury would surely make a finding that there
have intended to was such an intention. But if the act causing injury was so remote, so little known or
cause the injury (the there existed some other circumstances under which it would be impossible to
rupture of the IVC) impute such intention to an accused person, then it could not be said that in
that resulted in inflicting the harm on the deceased, an assailant had the intention to cause that
death? injury”
Principle of Court re-examined Mohamed Yasin, saying that, similarly, the inquiry was to what
remoteness? “extent an accused person might be imputed with the knowledge that, by carrying out
the acts on the deceased, he would cause injury that would result in death…in my view,
 her. Distinguishing two the finding in Mohamed Yasin was that the injuries on the deceased were such a
types of injuries? remote outcome from the point of view of the appellant that it was not sufficient just
The accused was charged with murder of his to prove that he intended to sit on her forcefully to justify the inference that he
daughter under section 300(c) of the PC. intended to cause the fractures. In those circumstances, the Prosecution would have to
prove that it was within reasonable contemplation of the appellant that such injuries
could be the result of his act of sitting on her”

“the true question therefore is whether the accused intended to inflict the fatal
injuries on the deceased…there must be evidence that in carrying out the act
proved against him, the accused had the intention to cause the injuries that
caused the death of the deceased. Thus in Virsa Singh… under those circumstances,
the law would infer an intention on the part of the appellant to cause the fatal injuries
as such injuries would be the ordinary and natural consequences of that act and
well within the contemplation of any normal person”

“The cause of death was the rupture to the IVC – an injury which Dr [X] said was very
rare…From Dr [X]’s testimony, I can only conclude that he could not say exactly how a
rupture of this nature…could occur in the present case”

“In deducing intention, the knowledge and intellect of AFR were relevant
considerations.”

Courts considered that the injuries intended to be inflicted would not be

sufficient in the ordinary course of nature to cause death, using the broad-based,
simple and founded on commonsense enquiry.

Accused found not guilty of charge of murder, convicted of culpable homicide not
amounting to murder under section 299 of PC.

On appeal by PP against sentence, COA enhanced sentence of 6 years imprisonment to

10 years and 6 strokes of the cane in view of the brutal violence inflected on a young
child, and on the ground that the trail judge had given insufficient weight to the
aggravating factors.
Kho Jabing v. PP The deceased was robbed by the appellants and in the Application of Virsa Jabing’s conviction for murder:
[2011] course of the robbery sustained fatal head injuries. Singh ‘‘…the evidence shows that he had intentionally inflicted on the deceased, using the

SGCA The appellants were convicted of murder in
furtherance of a common intention under s300c read
MURDER 300C with s34.
PP v Ellarry bin The two accused, Ellary and Fabian, had intended to
Puling [2011] rob the deceased. Fabian hit the back of the
deceased’s head 3 times with a heavy wooden stick to
SGHC make him ‘fall and faint faster’. The resulting head
injuries caused the deceased’s death.
MURDER 300C
Both were charged with murder under s300c of the
PC.
The defense argued that Fabian had only hit the
deceased to facilitate the robbery, and that the killing
piece of wood he had picked up, a section 300(c) injury which caused the death of the
deceased.
The first 2 Virsa Singh requirements are clearly satisfied in this case: the deceased had
suffered horrific head injuries consisting of multiple skull fractures, swelling of the
brain, and severe hemorrhaging.
3rd requirement: Galing’s statements were evidence that Jabing had struck the deceased
more than twice, and with considerable violence.
4th requirement: The doctor affirmed that the injuries were sufficient in the ordinary
course of nature to cause death.
Conviction of murder upheld.
Galing’s conviction for murder:
Given the clear evidence that Jabing was the one who inflicted the fatal injuries on the
deceased, the trial judge did not find, and the prosecution did not argue, that
Galing’s assault on the deceased caused or contributed in ay way to the latter’s
death. The prosecution failed to established that Galing’s blow caused any serious
injury to the deceased.
Conviction for murder substituted with a conviction for robbery with hurt committed
in furtherance of a common intention, under s394 read with s34.
Whether a charge The court referred to the 4 elements of s300c set out in Virsa Singh and decided that
under 300c was made the first 2 elements had been made out.
out. In proving the 3rd element, the judge found it hard to believe that Fabian never
intended to hit the deceased on the head, when in actual fact all 3 strikes of the wooden
Whether the hitting of stick landed nowhere else on the deceased’s body but squarely on his head…thus
the head with a heavy driven to infer that Fabian specifically intended to hit the deceased on the head…with
wooden stick was sufficient force so as to render the deceased unconscious. The fact that he had chosen to
sufficient in the hit the deceased a few times on the head to achieve his professed aim of making the
ordinary course of deceased ‘fall and faint faster’, suggested that he was plainly aware that the head was a
nature to cause death. vulnerable part of the body.
was neither premeditated nor intentional. Fabian The two categories of The court considered 2 categories of injuries as distinguished in AFR – those which
lacked the mens rea for an offence under s300 of the injuries, broadly or were ‘ordinary and natural consequences’ of the accused person’s acts and thus
PC. narrowly based. ‘well within the contemplation of any normal person’ and those which were not.

For the first category of injuries, the law would ‘infer an intention…to cause the fatal
injuries as such injuries would be the ordinary and natural consequences of that
act and well within the contemplation of any normal person’

As for the second, the law should not draw the inference that the mere presence of
such injuries means that the accused must have intended to cause them. When the
injuries that actually resulted in death are not within the ‘ordinary and natural
consequences’ of the accused person’s act, the accused person would not ordinarily
be imputed with the knowledge that, by carrying out such acts, he would cause those
fatal injuries in question because such knowledge would not be ‘within the
contemplation of a normal person’. As such, in absence of any credible evidence
proving to the contrary, an inference that the accused intended to cause such
unexpected and unusual fatal injuries through his criminal acts should not be
drawn.

The court found that the injuries in the instant case belonged to the first category –
clearly well within the contemplation of a normal person that striking someone
on the head… would likely cause skull fractures and severe brain
injuries…although Fabian has a low IQ, he must have known the consequences of his
actions, he had intended those consequences to happen so as to make the deceased ‘fall
and faint faster’

All elements of the Virsa Singh test satisfied, Fabian will be convicted of s300c unless
the defense can prove any defenses apply.

The court found that while the prosecution can prove that the 2 shared a common
intention to hit the deceased with the stick to cause him to fall to the ground, they were
unable to prove that they shared a common intention to cause a s300c injury.

For Ellary, Prosecution had not adduced medical or forensic evidence to show as a
scientific fact that hitting a person using the wooden stick with enough force required

Wang Wenfeng v The appellant stabbed a taxi driver in the course of a
PP [2012] robbery. He subsequently left him in the undergrowth
of a nearby forested area. He was convicted of murder
SGCA under s300c of the PC.
MURDER 300C The appellant appealed against his conviction and
sentence in relation to the murder charge, arguing
that the judge erred in finding that (a) he had caused
the death of Yuen; and (b) he had the requisite mens
rea under s300c of the PC.
He argued that he had not intentionally inflicted any
bodily injury on Yuen, and that there had only been
one stab wound, which was accidentally inflicted.
Furthermore, the appellant argued that there was
insufficient evidence to show that the single stab
wound had caused Yuen’s death.
Appeal dismissed.
Tan Cheng Eng The appellant was driving his car when he saw his ex-
William v PP girlfriend in a car driven by another man. He gave
[1970] chase and overtook Say’s car, then slowed down and
stopped his car abruptly so Say had to brake to avoid
MURDER 300D a collision. He repeated it once more then collided
with Say’s car, causing the appellant’s car to zig-zag
and collide with the deceased’s motorcycle. The
deceased died almost immediately.
to cause the person to fall down to the ground is sufficient in the ordinary course of
nature to cause death.
Ellary’s conviction substituted with offence of robbery with hurt under s394 read with
s34.
The judge referred to Virsa Singh and considered where ‘that bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause death’
‘‘sufficiency’ in this context refers to the high probability of death in the ordinary
course of nature. The test of whether a bodily injury is sufficient in the ordinary
course of nature to cause death is objective – it is not necessary for the accused to have
known or intended the potentially fatal consequence of inflicting the bodily injury. It is
sufficient that the accused intentionally caused the particular bodily injury
inflicted…a fatal act accidentally caused is a defense to a charge of s300c murder.
Based on the evidence, the court agreed with the trial judge that the stab wound could
have only been intentionally inflicted and thus was satisfied that the stabbing was
intentional and not accidental, and as such, s300c mens rea was established.
The court observed that the intention to inflict the bodily injury actually inflicted is
crucial in proving a s300c murder charge. Even if another fatal injury had been inflicted
to the victim, after the infliction of the initial bodily injury, it would have made no
difference to his criminal liability under s300c if the initial injury would, in any event,
have caused death in the ordinary course of nature. An accretive or secondary cause
of death would not operate to displace the primary course of death in such a case.
Appeal dismissed.
It was found that the trial judge failed to direct the jury that in order to convict the
appellant of murder they must be satisfied beyond a reasonable doubt on the evidence
before them that the appellant, in driving as he did, was doing an act which he know
was so imminently dangerous that it must in all probability cause death, or such bodily
injury was likely to cause death.
The direction omitted that the prosecution had to prove that the appellant knew the
consequences of his act. ‘‘It is not sufficient to amount to murder under s300 for an act
 to be so imminently dangerous that it must in all probability cause death. Such an act
He was convicted of murder under s300d, causing becomes murder only if the person who commits the act, and death results, knew
death by committing an act which the offender knows when committing the act, that it was so imminently dangerous that it must in all
is so imminently dangerous that it must in all probability cause death, or such bodily injury was likely to cause death.
probability cause death, or such bodily injury as is
likely to cause death. Conviction for murder set aside, conviction under s26 of Road Traffic Ordinance
substituted.
On appeal, the prosecution argued that the appellant
was driving his car in an extremely reckless and
dangerous manner with utter disregard for other
road-users, thus his actions fell under s300d.
 Abetment

Abetment of the doing of a thing.

107. - A person abets the doing of a thing who-
(a) instigates any person to do that thing
(b) engages with one or more person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing; or
(c) intentionally aids, by any act or illegal omission, the doing of that thing

Explanation 1 – A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing
Explanation 2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of
that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Abettor
108. A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if
committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 1 – The abetment of the illegal omission of an act may amount to an offence, although the abettor may not himself be bound
to do that act
Explanation 2 – To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect
requisite to constitute the offence should be caused.
Explanation 3 – It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the
same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Explanation 4 – The abetment of an offence being an offence, the abetment of such an abetment is also an offence
Explanation 5 – It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence
with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
For the offence of aiding and abetting to constituted, the Prosecution must prove (Per PP v Datuk Tan Cheng Swee [1979], followed in
Daw Aye Aye Mu v PP [1998]:
1. An intention on the part of the abettor to aid in the offence
2. A knowledge of the circumstances constituting the offence

Abetment by Instigation

Physical element for abetment by instigation

 PP v. Datuk Haji Harun bin Haji Idris [1977] - definition of instigation: ‘‘Instigation consists of acts which amount to active
suggestion or support or stimulation for the commission of the main act or offence. Advice can become instigation if that
advice is meant to actively suggest or stimulate the commission of an offence’’
 Mere acquiescence or silence is not sufficient to constitute the offence of abetment by instigation. Required to prove that there
has been active suggestion, support, stimulation or encouragement as affirmed by Raja Azlan Shah CJ in Haji Abdul Ghani
bin Ishak v PP [1981]: “there must be some evidence to show that the abettor actively suggested or stimulated the principal
offender to act by any means of language, direct or indirect, in the form of ‘expressed solicitation’ or of ‘hints, insinuations or
encouragement’… the word ‘instigates’ in section 107 of the Penal Code does not merely mean placing of temptation to do a
forbidden thing but actively stimulating a person to do it…”
 PP v Gerardine Andrew [1998] – there is no requirement that an abettor must be present at the immediate scene of the crime in
order for there to be liability for abetment
 Balakrishnan S v PP [2005] - indifference/silence to the offence committed is sufficient to constitute offence of abetment by
instigation, to prove abetment by illegal omission, it has to be shown that the accused intentionally aided in the commission of
the act by his non-interference.
 High threshold -> passivity or mere acquiescence does not amount to instigation -> requires encouragement & goading -> ‘active
suggestion or support or stimulation for the commission of the main act or offence’
 ‘bound to disclose’ -> there must be a duty on the part of the abettor to disclose the facts concealed in order to be said to instigate
the person abetted
 Mere presence does not amount to abetment by instigation -> encouragement must be provided
  Offence of abetment complete when encouragement is communicated -> distinction between communication not reaching
intended recipient vs. successful communication but recipient declines to commit crime -> former situation = attempted
abetment

Abetment by ‘Intentionally Aiding’

Ratanlal and Dhirajlal’s law of Crimes vol. 1 (24th Ed, 1997) – “the intention should be to aid an offence or to facilitate the commission
of an offence…it is necessary that the intervention should have been made with the intent to facilitate the commission of the crime”

Physical element for abetment by aiding

Explanation 2 —Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission
of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
 Aid must be given either prior to or at the time of commission of the act, Varatharajalu v. PP
 May be given by act/illegal omission to act when there is a legal duty to do so

Fault element for abetment by instigation or aiding

 The accused must have intended that the person abetted carry out the conduct abetted, and must also have known about the
circumstances constituting the crime -> but not necessary to prove precise knowledge of the details of the plan.
 The person abetted need not have any guilty intention or knowledge, or even by capable of committing the offence.
 Abetment by aiding under s107c requires ‘intentional aiding’ -> PP v. Hendricks ‘should have known’
 Accessory can be held criminally liable even if the actual offence is not committed

Abetment by Conspiracy.

3 essential elements of abetment by conspiracy: [Lee Yuen Hong v PP [2000]] and [Chai Chien Wei Kelvin v. PP]
(1) the person abetting must engage, with 1 or more persons, in a conspiracy;
(2) the conspiracy must be for the doing of the thing abetted; and
(3) an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing
Johnson v Youden [1950] – the mens rea as an ingredient in aiding and abetting in a conspiracy = “he must at least know the essential
matters which constitute that offence. He need not actually know that an offence has been committed…ignorance of the law is not a
defense” “there must be an intention to be a party to an agreement to do an unlawful act”

Er Joo Nguang and Another v PP [2000]:

 “The offence of ‘abetment by conspiracy’, postulates proof of a criminal conspiracy coupled with proof of some further act
which has been done in pursuance of that conspiracy.”
 “it is not necessary for a principle offender to exist before someone can be charged under section 107(b) for abetment by
conspiracy – so long as two accused persons agree that they want to effect a substantive offence, and so long as one of them
commits an act in pursuance of that conspiracy, there is no reason why they cannot both be charged for abetting each other by
conspiracy to commit that substantive offence.”
 “The essence of conspiracy is the combination and agreement by persons to do some illegal act, or to effect a legal
purpose by illegal means. While it is not necessary that all the alleged conspirators should be equally informed as to the details
of the conspiracy, it is essential that there is a ‘meeting of minds’ so that they are all aware of the general purpose of the plot.”
 “conspiracy is generally a matter of inference, deduced from certain acts of the accused parties, done in pursuance of an
apparent criminal purpose in common between them. Both the surrounding circumstances and the conduct of the parties before
and after the alleged commission of the crime will be useful in drawing an inference of conspiracy… an inference of conspiracy
would be justified only if it is inexorable and irresistible, and accounts for all the facts of the case”

PP v Yeo Choon Poh [1993] – “the essence of conspiracy is agreement, in most cases, the actual agreement would take place in private
such that direct evidence of it would rarely be available.” No requirement in law that the alleged conspirators should remain in each
other’s company throughout or at all.
“One method of proving conspiracy would be to show that the words and actions of the parties indicate their concert in the pursuit of a
common object or design, giving rise to the inference that their actions must have been coordinated by arrangement beforehand. These
actions and words…constitute evidence of the conspiracy.”

Vinit Sopon v PP [1994] – a conspiracy may be proved by oral or circumstantial evidence, as well as the conduct of the accused both
before and after the alleged commission of the crime.
 Nomura Taji and Ors v PP [1998] – “Thus, in essence, although there must be knowledge of a common design, it is not necessary that
all the co-conspirators should be equally informed as to the details. However, they must at least be aware of the general purpose of the
plot and that plot must be unlawful. The test of guilt is not what was the object of the accused, but whether having regard to the
immediate object of the instigation or conspiracy, the act done by the principal is one which according to ordinary experience
and common sense, the abettor must have seen as foreseeable”

Cases Facts Issues Judgment

PP v. Lim Tee Hian The accused was charged under s306 of the PC
[1992] with abetting the suicide of a girl by instigating
her to fall to her death.
SGHC
The prosecution’s case was that the accused had
Abetment by instigated the deceased, who was naïve and
Instigation trusting, and whom the accused knew loved him
deeply, to sacrifice herself to commit suicide and
he would make it appear as an accidental death.
His aim was to defraud 2 insurance companies of
$500,000 under 2 policies which he had earlier
procured on her life
Did the accuse abet The prosecution had to prove 2 ingredients against the accused to bring home the charge,
the committing of namely: (a) the commission of suicide by the deceased; and (b) the accused did abet by
suicide? instigating the deceased to jump to her death thereby committing suicide.
Definition of Evidence of the deceased’s naiveté was given by her colleague.
abetment by
instigation. Significance – definition of instigation (PP v Datuk Haji Harun bin Haji Idris by
Abdoolcader J):
‘‘Instigation consists of acts which amount to active suggestion or support or
stimulation for the commission of the main act or offence. Advice can become
instigation if that advice is meant to actively suggest or stimulate the commission of an
offence’’
“in my view, mere acquiescence or silence is not sufficient to constitute the offense of
abetment by instigation. That the Prosecution must show that there has been active
suggestion, support, stimulation or encouragement to make good the offence of abetment
by instigation”

PP v. Ng Ai Tiong Appeal by the prosecution against the acquittal
[2000] of the respondent Ng, who was charged with
abetting one Ong, by instigating him to give false
The judge deduced from the evidence that the girl did commit suicide and that the accused
did abet her in the commission of the suicide by instigating her to jump to her death so that
he could attempt to benefit from the insurance policies
Whether it was Trial judge held that it was immaterial that Ng’s charge was for an inchoate offence since
necessary for the offence of abetment could still be made out even if the act abetted was not committed.
prosecution to
SGHC evidence in a civil suit. The trial judge found the prove that the A person abets an offence who abets either the commission of an offence, or the commission
statement that Ong had taken a loan from one person abetted, Ong, of an act which would be an offence, if committed by a person capable by law of committing
Abetment by Yong to be false and Ng knew it to be so. had the requisite an offence with the same intention or knowledge as that of the abettor.
Instigation intention or
However, the judge held that there was no knowledge for the Explanation 2
instigation by Ng as he had not any point, commission of the To constitute the offence of abetment, it is not necessary that the act abetted should be
expressly asked Ong either to give evidence or to principal offence i.e. committed, or that the effect requisite to constitute the offence should be caused.
make a statement for Ng’s use in the civil suit. As must it be shown
the element of instigation was not proved, the that the abettor had The prosecution must prove beyond a reasonable doubt the following ingredients:
trial judge held the charge was not made out and expressly made (a) the statement that Ong had taken a loan from Yong was false;
therefore Ng as acquitted. known his criminal (b) Ng knew such statement to be false;
intention to the (c) Ng instigated Ong to make the false statement; and
The prosecution appealed person abetted (d) Ng intended to use such false statement in the civil suit

Explanation 3
It is not necessary that the person abetted should be capable by law of committing an offence,
or that he should have the same guilty intention or knowledge as that of the abettor, or any
guilty intention or knowledge.

The prosecution relied on explanation 3 of s108 and contended that the

intention/knowledge of Ong was actually immaterial to the question of whether there
was any instigation by Ng. “a person could be guilty of abetting an offence even though
the person abetted did not have the same extent of knowledge or intent as the abettor”
The judge agreed with the prosecution and decided that the query was answered by
explanation 3.

The judge also found that it was immaterial that Ng did not expressly tell Ong to assist him
in the civil suit by admitting to the false statement or of his intentions to rely on the false
statement from Ong to his benefit in the civil suit.

“It was also immaterial whether or not Ong had any knowledge of Ng’s true intentions in
asking him those questions.”

Appeal allowed, Ng found guilty as charged, sentenced to a term of one year’s imprisonment

S. Balakrishnan v. The first appellant, Balakrishnan, and second
PP [2005] appellant, Pandiaraj, were charged in their
respective roles as course commander and
SGHC supervising officer of the 80th CST course.
Abetment by Both were charged with causing the death of Sgt
Instigation Hu and the grievous hurt of Capt Ho, but whilst
Balakrishnan was charged with abetment by
illegal omission, Capt Pandiaraj was charged
with abetment by instigation.
Significance – To constitute abetment, the illegal act need not be committed. The person
abetted need not have the same extent of knowledge or intent as the abettor. “it was not
necessary for the abettor to express directly to the person abetted what exactly was to be
done”.
Whether both had The trial judge found that “Capt Pandiaraj had been conscious of the danger of using the
intended to abet the water tub for water treatment.”
actions done
Appeal by Capt Pandiaraj:
Issue 1 – abetment by instigation
The judge considered s107a of the PC ‘A person abets the doing of a thing who- (a) instigates
any person to do that thing’ and was convinced that Capt Pandiaraj’s very presence that
afternoon, coupled with his indifference to the sadistic treatment meted out to the
trainees, signified (a) his intention that his instructions be carried out; and (b) his support
and encouragement of the instructors’ actions, which may have stimulated them to greater
heights.
Significance: Indifference to the action can be deemed as abetment.
Appeal of WO Balakrishnan
Issue 1 – whether WO Balakrishnan witnessed the water treatment of the victims
Eyewitness evidence identified WO Balakrishnan as being present.
The judge also noted that there is no requirement that an abettor must be present at the
immediate scene of the crime in order for there to be liability for abetment.
This ground of appeal dismissed.
Issue 2 – Whether he intentionally aided in the commission of the offences with full
knowledge of the circumstances
The judge considered s107c of the PC ‘A person abets the doing of a thing who – (c)
intentionally aids, by any act or illegal omission, the doing of that thing.
“To prove abetment by illegal omission, it has to be shown that the accused intentionally
aided the commission of the offence by his non-interference, and that the omission
involved a breach of legal obligation.”

Err Joo Nguang v Both appellants were convicted in the District
PP [2000] Court of abetment by conspiracy to commit
criminal breach of trust, contrary to s109 and
SGHC s409 of the PC. The offence was committed in
relation to certain goods. The first appellant was
Abetment by sentenced to 4 years and 6 months’
Conspiracy imprisonment. The second appellant was
sentenced to 5 years and 6 months’
imprisonment.
B1 was the Managing director of a company of
freight forwarders. B2 was the Managing
director of an apparel company. The
complainant was a Filipino businessman. B2 was
to pay a bank for the goods in order to obtain
certain endorsed documents. B1 was only
supposed to receive the goods upon
presentation of the endorsed documents but
released them to B2 prior to receipt.
B2 gave assurance he’d pay B1 and take
responsibility for any subsequent problems.
PW13 was alerted of a sale organized by B2.
B1 assured PW13 the goods were still in his
custody but in actual fact all of them had been
released to B2. B1 lied to the complainant
multiple times.
Charges were brought against B1 and B2 for
The trial judge found that by omitting to stop the conduct of water treatment of the
victims, Wo Balakrishnan intended to aid the commission of the offences against them.
Significance - Even an illegal omission can be deemed as an abetment by instigation.
The judge agreed with the trial judge’s finding. Appeal dismissed.
Whether 2 1st issue: Whether 2 defendants can be charged under s107b of the PC for abetting each other
defendants can be by conspiracy in the absence of a principal offender.
charged under
s107b of the PC for Appellants argued if no principal offender existed, then there was no one for the appellants to
abetting each other abet.
by conspiracy in the
absence of a The judge decided it was not necessary for a principal offender to exist before someone can
principal offender. be charged under s107b for abetment by conspiracy – “it does not follow from this that where
two or more persons are involved in an offence, one must be the principal and the others the
accomplices. Two or more persons can be the co-principals, so long as each of them satisfies
the definition of the substantive offence.”
Judge went on to clarify the distinction between limb (b) of s107 with (a) and (c), saying
that “the offence of abetment by ‘conspiracy’ is, in substance, more closely related to the
concept of ‘criminal conspiracy’ than the traditional English notion of ‘abetment’. The offence
of ‘abetment by conspiracy’, postulates proof of a criminal conspiracy coupled with proof of
some further act which has been done in pursuance of that conspiracy.”
“it is not necessary for a principle offender to exist before someone can be charged under
section 107(b) for abetment by conspiracy – so long as two accused persons agree that they
want to effect a substantive offence, and so long as one of them commits an act in pursuance
of that conspiracy, there is no reason why they cannot both be charged for abetting each
other by conspiracy to commit that substantive offence.”
The judge referred to Chua Kian Kok v PP where it was held that since an accessory’s
liability was not strictly dependent on the liability of the principal, the fact that the
principal offender was convicted of a different offence from that which the appellant was
charged with abetting, did not pose any difficulty.
 abetting each other in a conspiracy to commit
CBT.
Nomura Taiji v. PP The first appellant was charged with 2 counts of
[1998] aiding and abetting one Okada to fraudulently
use as genuine, a forged bank draft by
Abetment by presenting it to 2 banks for the purpose of
Conspiracy opening an account and encashing the draft,
pursuant to s467 read with s471 and s109 of the
PC.
The 2nd, 3rd and 4th appellants and one Heng
were charged with 2 counts of conspiracy to
The prosecution had to prove beyond reasonable doubt
(a) firstly, that B1 and B2 were knowingly engaged in a conspiracy to commit the crime
of aggravated CBT as defined under s409 of the PC
(b) secondly, that B1 had dishonestly released the goods to B2 in pursuance of that
conspiracy; and
(c) thirdly, that the other elements of aggravated CBT under s409 of the PC had been
made out, namely that those goods had been entrusted to B1 in the way of his
business as an agent.
“The essence of conspiracy is the combination and agreement by persons to do some
illegal act, or to effect a legal purpose by illegal means. While it is not necessary that all
the alleged conspirators should be equally informed as to the details of the conspiracy, it is
essential that there is a ‘meeting of minds’ so that they are all aware of the general purpose
of the plot.”
‘…conspiracy is generally a matter of inference’ thus the judge considered the conduct of the
parties before and after the alleged commission of the crime and surrounding
circumstances…’an inference of conspiracy would be justified only if it is inexorable and
irresistible, and accounts for all the facts of the case’…and came to the conclusion that the
evidence did not support the irresistible and inexorable inference that there was an
agreement between B1 and B2 to commit CBT of the goods. Even if it could be said that actus
reus was made out, the prosecution must still prove the mens rea element i.e. dishonesty on
the part of the accused.
B1’s appeal against conviction allowed, B2’s charge amended to ‘cheating’ under s420
Conspiracy. PP v. Yeo Choon Poh - essence of conspiracy is agreement.
‘Thus, in essence, although there must be knowledge of a common design, it is not necessary
that all the co-conspirators should be equally informed as to the details. However, they must
at least be aware of the general purpose of the plot and that plot must be unlawful. The test
of guilt is not what was the object of the accused, but whether having regard to the
immediate object of the instigation or conspiracy, the act done by the principal is one
which according to ordinary experience and common sense, the abettor must have
seen as foreseeable’
assist Okada in the aforementioned offences.
The appellants’ defense was that they did not
know or had reason to believe that the bank
draft was forged. The 1st appellant also claimed
that he merely lent Okada money to come to
Singapore and accompanied her on her trip here
but had not gone to the banks with her nor made
any representations to them.
The trial judge convicted them and sentenced
the 1st and 2nd appellants to 4 years’
imprisonment on each charge, and the 3rd and 4th
appellants to 54 months’ imprisonment on each
charge, the sentences on both charges for all the
appellants to run concurrently.
They appealed against both conviction and
sentence.
The judge found clear evidence that they all knew or had reason to believe that the cheque
was forged and that Okada intended to encash it at a bank in Singapore. The judge concluded
that there was a conspiracy to encash the bank draft.
He then referred to s107 of the PC and Tan Siew Chay v PP where it was stated that the “act
of aiding is not confined only to an act carried out or executed at the time of the
commission of the principal act. The act of aiding might take place before the principal act,
as long as it was carried out in order to facilitate the commission of the offence and did in fact
facilitate the commission thereof”
Nomura admitted that he had subsequently given Okada money and knew that she wanted it
for the purposes of coming to Singapore to encash the draft.
The judges opined that the acts carried out by Nomura were carried out in order to facilitate
the commission of the offences and did in fact facilitate their commission -> irrelevant
whether he knew of Okada’s visit to the banks so long as he knew that his assistance was
rendered to enable Okada to cash the draft in Singapore.
Hwa Lai Heng The appellant was an assistant sales manager of
Ricky v. PP [2005] Yamazaki. Cheong was a majority shareholder
and Managing Director of Sin Yuh. Joyce was Sin
SGHC Yuh’s Finance Manager.
Sin Yuh purchased machines from Yamazaki. Sin
Abetment by Yuh was not able to complete payment due to
Conspiracy cash flow problems and applied to DBS for a
loan. The loan detailed a precondition that Sin
Yuh had to furnish documentation which
evidenced payment of a certain payment to
Yamazaki.
Cheong and Joyce were both aware that Sin Yuh
did not satisfy this precondition but Cheong
nevertheless asked Joyce to request Yamazaki
for such a letter.
The appellant was aware that DBS would
provide financing of only $1.94m but eventually
complied with Joyce’s instructions and also
requested DBS to transfer to Yamazaki’s account
the balance $1.94m.
The appellant was charged under s420 read with
s109 of the PC for allegedly conspiring with one
Cheong and one Joyce to cheat DBS into
disbursing money to Yamazaki.
The district judge convicted the appellant and
sentenced him to a term of 20 months’
imprisonment.
The appellant appealed against both conviction
and sentence.
Goh Kah Heng v. The appellant was the Chairman and CEO of Ren
Whether there was Joyce had admitted to cheating DBS. The trial judge found that at all material times, Joyce did
a conspiracy not explicitly convey to the appellant her intention to cheat DBS. Nonetheless, he found that
between Cheong, the appellant was clearly party to the cheating scam and had acted with dishonest intention.
Joyce and the
appellant. The judge disagreed, however, that there was a conspiracy between Cheong, Joyce and the
appellant. He referred to the 3 elements s107(b) where abetment by conspiracy is defined.
1. “the person abetting must engage, with one or more persons, in a conspiracy”
2. “the conspiracy must be for the doing of the thing abetted”
3. “an act or illegal omission must take place in pursuance of the conspiracy and in
order to the doing of that thing”
“Agreement is the basic element in conspiracy. The idea of agreement entails a meeting of
minds”
He then referred to Johnson v Youden, where it was held that mens rea was only an essential
ingredient in conspiracy in so far as there had to ben an intention to be a party to an
agreement to do an unlawful act.
No such intention on the part of the appellant could be found here and there was no explicit
intention conveyed by Joyce to the appellant. He was of the view that both parties had
independently intended to cheat DBS, the appellant wishing to do so because he wanted the
machines to be paid for, while Joyce was simply seeking ways to pay up the money owed.
The judge opined that a charge for abetment by intentionally aiding the commission of the
offence of cheating under s107c would have been more appropriate. It was found by the
trial judge that the appellant had ‘played an active role by supplying Joyce with the necessary
supporting document to facilitate the cheating scam’. The false documentation prepared by
the appellant was a vital link. Without the letter, DBS would have never disbursed the sum
and the offence could not have been committed. The appellant acceded to Joyce’s request,
thereby intentionally aiding Joyce in committing the offence of cheating DBS.
Significance: Agreement must be found to prove conspiracy.
Did SMY conspire The judge referred to the definition of abetment by conspiracy found in the PC and also the
PP [2010] Ci. The appellant’s personal executive RY gave
instructions for a cash cheque for $50,000 and a
Abetment by payment voucher reflecting a loan of the same
Conspiracy amount from Ren Ci to Mandala. The cash
cheque was later encash and RY took the cash.
This was reflected in Ren Ci’s accounts as a loan
to Mandala but no corresponding entry was
found in Mandala’s books.
An inquiry was initiated by the MOH to look into
Ren Ci’s affairs. During the course of the inquiry,
SMY gave untruthful evidence that the $50,000
was a loan for Mandala to purchase wood. He
was later asked to provide documentary
evidence to the Commissioner and gave a letter
purportedly from a Chinese company which
stated it had delivered 2 statues to Mandala. This
was untrue as the statutes were in fact
purchased and paid for by a different entity.
SMY was charged with and convicted on four
charges, including a charge of engaging in a
conspiracy with his personal executive, RY to
falsify the payment voucher, an offence
punishable under s477A read with s109 of the
PC.
He was sentenced to 10 months’ imprisonment
and appealed against his conviction and
sentence.
Jimina Jacee v. PP The appellant was involved in a scam where she
[1999] procured and distributed air tickets for certain
persons – the principal offenders – who then
SGHC used them to obtain boarding passes which were
then passed to others to enable them to board
Abetment by the flight. Jimina then paid the principal
with RY to falsify the requirements for the offence of abetment by conspiracy which were spelt out in Lee Yuen
payment voucher Hong v. PP.
wilfully with the
intent to defraud? “Proof of an agreement between the parties can be inferred from the words and actions of
the parties, as elaborated upon in PP v. Yeo Choon Poh:
‘One method of proving a conspiracy would be to show that the words and actions of the
parties indicate their concert in the pursuit of a common object or design, giving rise to the
inference that their actions must have been coordinated by arrangement beforehand. These
actions and words do not of themselves constitute the conspiracy but rather constitute
evidence of the conspiracy.”
The judge examined the evidence and agreed with the District Judges finding that there was
an agreement between SMY and RY to falsify the payment voucher. This was deduced from
the application of the test in PP v. Yeo Choon Poh. He concluded that the intent to defraud
was therefore present.
Given that (a) SMY and RY engaged in a conspiracy to falsify the payment voucher, (b) SMY
and RY did so wilfully and with intent to defraud and (c) the payment voucher was falsified,
all 3 requirements for the offence of abetment by conspiracy were satisfied.
Conviction affirmed.
Whether there was The judge was of the view that the offence of abetment by instigation had not been made out
abetment by on the facts. He referred to s107a of the PC and explanation 1.
instigation
The judge considered the acts of the appellant delivering the air tickets/collecting the
boarding pass from the principal offender to not per se constitute abetment by instigation
and instead found that this was a case where a charge for abetment by intentionally aiding
intentionally offenders for their role.
aiding
She was charged with 4 counts of abetment by
instigation of cheating, which was punishable
under s420 read with s109 of the PC. This
offence arose out of a fraudulent scheme to
enable some Sri Lankans to get on board an
aircraft bound for Sydney even though they did
not possess the requisite visas to enter Australia.
The plan was for the principal offenders, who
had the necessary visas, to check in for a flight
which was scheduled for Sydney. The boarding
passes procured by these principal offenders
would subsequently be handed to the Sri
Lankans.
The district judge convicted her and sentenced
her to 9 months’ imprisonment for each of the 4
charges, with 2 of the sentences running
consecutively.
Chan Heng Kong The appellants, Chan and Sng, were convicted of
v. PP [2012] drug trafficking.
SGCA Sng was convicted under s5(1)(a) read with
s5(2) and s12 of the MDA of abetting his
Abetment by younger brother, Choon Peng, to traffickin drugs
intentionally by instigating the latter to be in possession of
aiding drugs for the purpose of trafficking.
the commission of the offence of cheating under s107c of the PC would have been more
appropriate. Explanation 2 to s107 states that a person abets by aiding, when by any act done
prior to or at the time of the commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission thereof.
Ratanlal and Dhirajlal’s law of Crimes vol. 1 (24 th Ed, 1997) – “the intention should be to
aid an offence or to facilitate the commission of an offence…it is necessary that the
intervention should have been made with the intent to facilitate the commission of the crime”
‘The appellant had clearly facilitated the commission of the offence of cheating by providing
the principal offenders with the air tickets. She had done so with the full knowledge that the
principal offenders would not be travelling to Australia as she had waited for them to return
their boarding passes to her after checking-in for the flight.’
The judge thus decided that on evidence, the elements of abetment by intentional aid would
have been established beyond reasonable doubt.
Overlap between (a) and (c)?
Diff between (a) and (c) -> degree of mens rea/degree of actus reus
Whether there was It was submitted that all Sng had done was to make a simple request to Choong Peng. There
abetment by was no ‘‘active suggestion, encouragement, incitement or urging on the part of Sng to get
instigation on Sng’s Choong Peng to agree to collect the drugs, which the word ‘instigation’ necessarily implies”
part.
The judge referred to the offence of abetment under the MDA and Iwuchukwu Amara Tochi
v. PP where it was held that ‘abet’ in s12 of the MDA had the same meaning as that in
s107 of the PC.
‘To make good the offence of abetment by instigation, there has to be ‘active suggestion,
support, stimulation or encouragement’ of the primary offence.”
The court agreed that Sng should not have been charged with the offence of abetment by
instigation. Choong Peng was already in the habit of collecting heroin for Sng and, as such,
would not have needed any goading or encouragement to collect the heroin delivered by
Chan. Choong Peng also had prior knowledge of the contents of the bag which he collected
 from Chan.

PP v. Hendricks The respondent was a former customer services
Glen Conleth office with the SATS. His former colleague, Madu,
[2003] asked the respondent to help him smuggle
people into the USA. Both the respondent and
SGHC Madu were to board a flight to the USA along
with the people smuggled but disembark at
Abetment by Hong Kong, the transit point of the flight. In
intentionally return for his help, the respondent would get
aiding $4,5000. The responder agreed. Madu procured
2 blank boarding passes to which he had access
as a SATS employee which he duly filled up with
his and the respondent’s name. As planned, they
disembarked in Hong Kong and returned to
Singapore. The respondent received the money
from Madu.
Madu was later caught and convicted on several
counts of corruption under s6(a) of the
Prevention of Corruption Act, one of which was
for procuring boarding passes in his and the
respondent’s names in return for a gratification.
Charge against Sng amended from that of abetment by instigation to that of abetment by
aiding. Sng was convicted of that charge.
‘As the district judge had found, Hendricks had no details of the scheme save what Madu had
told him. Notably, nothing was mentioned about the boarding passes. The scheme to smuggle
was so murky that it cannot be said with certainty that Hendricks must have known or
suspected that Madu to breach his duties by preparing false boarding passes as part of the
scheme.
In contrast, the district judge found Hendricks’ defence believable since it was entirely logical
for him not to have known much about the scheme, save that generally it was to smuggle
people into the USA. There was no reason, to think, on the evidence, that Hendricks would
have had knowledge of Madu’s corrupt activities’
The judge then deemed Hendricks’ conduct dishonest and reprehensible, but concluded that
he had not been proven to committed an offence punishable under our laws. ‘Moral
culpability by itself is not a sufficient basis to found criminal liability’
Appeal dismissed.

The respondent was charged with abetting by

intentional aid, the commission of this offence by
Madu. The trial judge found that it had not been
proven beyond reasonable doubt that the
respondent had, or ought to have had,
knowledge of Madu’s actions. Consequently, she
acquitted the respondent.

The prosecution appealed.

Daw Aye Aye Mu The appellant was charged in the court below for
v. PP [1998] abetting one Ng in the employment of San Lwin,
while he overstayed in Singapore. San Lwin was
SGHC on a social visit pass. Aye took San Lwin to a
lodge where he found employment and worked
Abetment by there till he was arrested for overstaying.
intentionally
aiding Aye’s defence was that she had taken San Lwin
to the lodge to look for cheap accommodation
and everything that happened after that was
independent of any participation on her part.
She was convicted and appealed.
Govindarajulu The first appellant was convicted of trafficking
Murali v. PP diamorphine by delivery and the second
[1994] appellant of abetting the first appellant’s
trafficking by intentional aiding. The appellants
SGCA appealed.
Abetting a Non- The second appellant submitted that (a) the trial
offender judge erred in failing to consider whether the
Prosecution’s evidence was sufficient to
establish the charge of abetment (b) he should
have been charged under a different charge of
trafficking by offering to sell drugs to an
undercover narcotics officer; (c) as he was
Can the appellant be ‘It is arguable that it is impossible to abet Ng without abetting San Lwin and, vice
convicted of versa…whom the appellant actually aided would depend on the appellant’s ‘dominant
abetting an offence intention’ at the time she did the act which led to San Lwin’s employment by Ng.
which San Lwin had
not technically been The judge observed that the difference it makes as to the person aided is that the punishment
convicted of? will be different. Under s109, the abettor will be punished with the punishment provided for
the offence… ‘the appellant should receive the appropriate sentence commensurate with her
Whether when the dominant intention.’ The judge decided it would be appropriate to amend the charge to one
appellant did the act under s110 as the charge of abetting Ng would not be made out on the facts as the appellant
of abetment, she did did not have the dominant intention to aid him.
it with the intention
that San Lwin would The judge considered Yenna Ong where it was clear that the principal does not even have to
commit the offence be convicted of the offence before the abettor can be convicted of abetting the offence, as long
of working while on as the actus reus of the offence he is alleged to have aided was in fact committed…. still a
social visit pass. possibility that the appellant could be convicted of the charge above even in San Lwin had not
been convicted of the particular offence.
The judge decided that it was clear that the appellant knew that San Lwin did not possess a
work permit and merely had a social pass. Therefore she was aware of the circumstances
which could constitute the present offence.
Charge amended and sentence reducing accordingly
Whether the First submission:
evidence as adduced ‘‘Counsel appeared to suggest that, since the prosecution had presented the second appellant
by the prosecution as the ‘mastermind’ of the whole affair, it was wrong to charge him with abetment and treat
had answered the the first appellant as the principal offender…it is not for a court of law to consider the moral
charge of abetment complicity of each accused person and question the prosecution’s absolute discretion in
by intentionally deciding what charge to prefer. In any event, we failed to see how any prejudice could have
aiding. arisen as against the second appellant in charging him with abetment, given that his defence
was a total denial of anything to do with drugs.”
The judge referred to Yenna Ong where it was held that it was necessary in an abettor’s trial
for the prosecution to establish that the act aided must have been committed. The conviction
of an abettor turns on the evidence against him, which may be different from that admitted
against the principal, such that an acquittal of the principal may still result in a conviction of
 charged as an abettor, his conviction was
contingent on the principal – the first appellant’s
– state of mind, such that if the act contemplated
by the principal was different from that
performed, the substantive offence was not
established against the principal and the charge
of abetment should fail.
Chua Kian Kok v. The appellant was convicted on 13 charges of
PP [1999] abetting an attempted cheating and was
sentenced to 9 months’ imprisonment.
SGHC
The appellant engaged with Guok in a conspiracy
Abetting a Non- to cheat. He made out a false delivery order for
offender some goods and addressed the receipt to Guok
to sign. He then sent an invoice for said goods to
the Guok’s company in an attempt to deceive the
company that the goods were received by Guok.
By such manner of deception, he dishonestly
attempted to induce the company to release
payment for the said goods to him and thereby
abetted an offence of attempted cheating.
He was charged for an offence punishable under
s511 read with s109 and s420 of the PC.
the abettor.
The court had no doubt that it was as a result of the second appellant’s negotiations with NO
Lee that there resulted the delivery of the drugs by the first appellant to NO Lee. Such
negotiations could clearly be said to have facilitated the delivery of the drugs to NO Lee by the
first appellant.
Both appeals dismissed, convictions and sentences of death confirmed.
The prosecution had to establish the following:
(a) The accused had agreed with Allen to:
(i) Deceive Nordberg; and thereby
(ii) Induce Nordberg to pay money to him
(iii) With dishonest intention
(b) The accused had done an act which was done in consequence of the abetment
(c) While the cheating had not actually taken place, an attempt to cheat was made out in that
there was an intent by Allen to cheat Nordberg and Allen had done an act which showed that
he had embarked on the crime of cheating proper
The judge referred to the explanation to s109 which states that:
‘An act or offence is said to be committed in consequence of abetment, when it is committed
in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which
constitutes the abetment’ and explained that the phrase ‘act or offence’ does not mean ‘act’
and ‘offence’ have the same meaning but simply refers to the possible type of actions that may
be ‘done in consequence of the abetment’…the act must show that the abettor has committed
himself to the agreement.
The judge held that the principle that an abettor may be liable even though the principal
offence was not committed should be extended to cover abetment by intentional aiding as
well. The judge also amended the charge to one of ‘abetment by conspiracy of cheating’
The judge examined the issue that the accessory was convicted of an offence different from
the offence for which the principal was convicted and concluded that this did not present any
difficulty as the accessory’s liability is not derivative under the PC.
Appeal dismissed.
 Criminal Conspiracy

Abetment by conspiracy
107. ‘A person abets the doing of a thing who – (b) engages with one or more other person or persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.

Definition of Criminal Conspiracy

120A. (1) When 2 or more persons agree to do, or cause to be done —

(a) An illegal act; or

(b) An act, which is not illegal, by illegal means,
Such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof.

(2) A person may be a party to a criminal conspiracy notwithstanding the existence of facts of which he is unaware which make the
commission of the illegal act, or the act, which is not illegal, by illegal means, impossible.

 Under s120A, all that is needed is the agreement to commit an offence.

 DPP v Nock and Anor [1978] – “The agreement itself constitutes the offence. The mens rea of the offence is the intention to
do the unlawful act: the actus reus is the fact of agreement” ; “common sense and justice combine to require of the law that no
man should be punished criminally for the intention with which he enters an agreement unless it can also be shown that what he
has agreed to do is unlawful”
 NMMY Momin v The State of Maharashtra (1971) - “Criminal conspiracy postulates an agreement between two or more
persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means. It differs from other
offences in that mere agreement is made an offence even if no step is taken to carry out that agreement”
  Kannan s/o Kunjiraman v PP [1995] - “Of course once the intention to agree, in the true sense, is proven, the mere fact of
agreement would constitute the offence of conspiracy. It would then be no answer to say that the conspiracy was never
carried out or that one conspirator or another did not do what he was supposed to have done under the conspiracy.”
 Emperor v SG Hiremath AIR [1940] - “The offense of criminal conspiracy is a highly technical one and the essential ingredient is
the agreement to commit an offence, irrespective of the means decided upon to carry out the object of the conspiracy.
Whether those means are legal or innocuous, would not affect the question of criminality”
 Er Joo Nguang and Another v PP [2000] – “The essence of conspiracy is the combination and agreement by persons to do
some illegal act, or to effect a legal purpose by illegal means. While it is not necessary that all the alleged conspirators should
be equally informed as to the details of the conspiracy, it is essential that there is a ‘meeting of minds’ so that they are all aware
of the general purpose of the plot.” ; “conspiracy is generally a matter of inference, deduced from certain acts of the accused
parties, done in pursuance of an apparent criminal purpose in common between them. Both the surrounding circumstances
and the conduct of the parties before and after the alleged commission of the crime will be useful in drawing an inference of
conspiracy… an inference of conspiracy would be justified only if it is inexorable and irresistible, and accounts for all the facts
of the case”
 PP v Yeo Choon Poh [1993] – “the essence of conspiracy is agreement, in most cases, the actual agreement would take place in
private such that direct evidence of it would rarely be available.” No requirement in law that the alleged conspirators should
remain in each other’s company throughout or at all. “One method of proving conspiracy would be to show that the words and
actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their
actions must have been coordinated by arrangement beforehand. These actions and words…constitute evidence of the
conspiracy.”
 Ad idem can be achieved without physical meeting -> mutual understanding must be reached

Fault element
 Intention to be party to the agreement & the intention to carry it out
 Subjective assessment as to whether a person intends the object of the agreement to be achieved -> if so, does not matter that
agreement is not carried out at all
 Withdrawal only relevant in terms of sentencing -> abetment & criminal conspiracy can be committed whether or not
substantive offence has been committed
Case Facts
Chai Chien Wei The appellant and the first accused were jointly tried in
Kelvin v. PP the High Court. Yeo was charged with attempting to
[1998] export controlled drugs from Singapore to Taipei. The
appellant was charged with abetment of the offence by
Abetment by engaging with Yeo ‘in a conspiracy to do a certain thing’
conspiracy namely, the export a controlled drug in Class ‘A’ of the
First Schedule to the Misuse of Drugs Act from Singapore
to Taipei in that he strapped the drugs, which he
transported into Singapore, on to the body of Yeo with
tapes at Changi Airport, in order to enable Yeo to
transport the drugs out of Singapore.
The appellant and Yeo were both found guilty and
sentenced to death. Only the appellant appealed.
Kannan s/o A bookmaker, Rajendra, offered the first Appellant,
Kunjiranman v. Kannan, to bribe the Singapore national goalkeeper, Lee,
PP [1995] to let in goals during a match. Kannan asked the second
appellant, Ong, to offer a bribe to Lee.
SGHC After the match, thinking that he had spoken with Lee,
Rajendran gave Ong the bribe as well as a reward for
Criminal arranging the bribe. Ong had actually never spoken to Lee
conspiracy and kept the money for himself.
The appellants were found guilty of conspiring with
Rajendran to bribe Lee. Both of them were found guilty of
corruptly receiving money.
Both appealed against sentence but the court addressed
some questions of law arising in the appeal.
Quek Hock Lye v. The appellant, Quek, was convicted by the judge in the
PP [2012] High Court of possession of not less than 62.14g of
Issues Judgment
Definition of The judge referred to the offence of abetment by conspiracy as defined in s107b of
criminal conspiracy. the PC, then distinguished between abetment by conspiracy and criminal conspiracy
under s120A in that abetment by conspiracy requires some further act to be
done pursuant to the conspiracy.
NMMY Momin v The State of Maharashtra (1971) - “Criminal conspiracy postulates
an agreement between two or more persons to do, or cause to be done, an illegal act
or an act which is not illegal, by illegal means. It differs from other offences in that
mere agreement is made an offence even if no step is taken to carry out that
agreement”
The judge concluded that there was no reasonable doubt that the appellant had
abetted the first accused by conspiring with the latter to export the drugs. This was
after contemplating the evidence adduced by the prosecution.
Appeal dismissed.
‘Pretence The first question relates to what is commonly called a pretence conspirator.
conspirator’
The judge referred to the Canadian case of R v. O’Brien, which said “to be guilty of
conspiracy, a party to such an agreement must also have the co-existent intent
to effect that design” and the English case of R v. Thomson and found that s120A of
the PC was not inconsistent with these cases, for ‘agree’ connotes a true intention to
enter into the agreement, which in turn connotes an intention to carry into effect
the agreement. Had it been the legislative intention to catch a pretence conspirator,
the words or ‘purport to agree’ would have been added in the definition. The mens
rea required for that would then be a mere intention to pretend to enter into the
agreement.
“Of course once the intention to agree, in the true sense, is proven, the mere fact of
agreement would constitute the offence of conspiracy. It would then be no answer to
say that the conspiracy was never carried out or that one conspirator or another did
not do what he was supposed to have done under the conspiracy.”
Whether Quek and The judge referred to the definition of criminal conspiracy in s120A of the PC and
Winai could be said reiterated that a charge of criminal conspiracy requires 2 or more persons in
 diamorphine, a controlled drug specified in Class A of the to be parties to the agreement to do or cause to be done an illegal act (or an act, which is not illegal,
SGCA First Schedule of the Misuse of Drugs Act in furtherance of same criminal by illegal means) which is in the present case is the trafficking of 62.14g of
a criminal conspiracy with one Winai to traffic the seized conspiracy to traffic diamorphine.
Criminal drugs, an offence under s5(1)(a) read with s5(2) of the diamorphine despite As such, a finding of the existence of a co-conspirator, in the present case Winai, is
conspiracy Act. being separately necessary in order for this court to uphold Quek’s conviction under the amended
charged for charge.
Quek was sentenced to the mandatory death penalty different quantities 2 questions arise:
under s120B of the PC read with s33 of the Act. of the same parcel of (a) Whether the evidence before this court supports a finding that there was an
seized drugs found underlying agreement between Winai and Quek to traffic the seized drugs;
Quek appealed against his conviction and sentence. in their possession; and
and (b) If so, notwithstanding the court’s satisfaction with the evidence in relation to
if not, whether this the underlying agreement, whether the difference in the precise quantity
court should of the seized drugs in Quek and Winai’s respective charges per se,
exercise its undermines a positive finding of criminal conspiracy
discretion to amend
the charge on which Wrt (a), the judge found that the evidence overwhelmingly showed that Quek and
Quek was convicted Winai had agreed to traffic in the total quantity of the seized drugs.
and to offer him an
opportunity to plead Wrt (b), on the present facts, the incongruity in the charges faced by Quek and Winai
hereto does not impact their underlying agreement to traffic in diamorphine. Winai’s
charge specifying a lower quantum of diamorphine “reflects the PP’s discretion to
prefer a less serious charge.”

The judge then referred to Paduman v. State of Maharashtra and Director of Public
Prosecutions v. Shannon where the convictions of the accused were challenged on
the basis that his co-conspirator had been acquitted and concluded that ‘‘where
sufficient evidence can be adduced to prove the underlying agreement between the
co-conspirators beyond a reasonable doubt, the outcome per se of the proceedings
of a co-conspirator, or the death of disappearance of the co-conspirator is not ipso
facto a reason to set aside the conviction or amend the charge preferred against
the other co-conspirator.”

The incongruity in charges does not change the fact that the evidence adduced
establishing the underlying agreement between the respective co-conspirators
remains undisturbed.

Director of PP v. The defendants agreed to produce cocaine by separating
Nock [1978] it from other substances in a powder which they believed
to be a mixture of cocaine and lignocaine.
House of Lords. In fact, it was a substance which contained no cocaine so
that cocaine could not in any circumstances have been
Criminal produced from it.
conspiracy
They were indicted for conspiracy to contravene s4 of the
Misuse of Drugs Act in having ‘conspired… to produce a
controlled drug of Class A, namely cocaine’ and were
convicted.
The Court of Appeal upheld their conviction.
Defendant’s appealed to HOL
‘‘There is however authority for the proposition that it is not necessary that all the
conspirators must know each and every detail of the conspiracy as long as they
are co-participators in the main object of the conspiracy.’’ in Yash Pal Mittal v
State of Punjab. The judge then considered whether (a) knowledge of the precise
quantity of the controlled drugs specified in the charges…can be characterized as a
mere detail...or (b) whether it should more rightly be viewed as an integral element of
the underlying agreement as part of the main object of the criminal conspiracy.
For (a), the quantity per se is not a factor which each co-conspirator need be alive to.
For (b), the PP’s ability to establish the individual’s actual knowledge of the specific
quantity of the controlled drugs in the preferred charge will directly impact the
fundamental enquiry before the court as to whether the criminal conspiracy has been
made out.
Quek’s appeal dismissed.
When 2 or more The lords considered the auxiliary nature of the crime and concluded that “so as to
persons agree upon agree to pursue a course of conduct which, if carried out in accordance with the
a course of conduct intention of those agreeing to it, would not amount to or involve the
with the object of commission of any offence, would not have amounted to criminal conspiracy at
committing a common law nor does it constitute an offence of conspiracy”
criminal offence, but
unknown to them, it The lords considered the classic description of the crime of conspiracy at common
is not possible to law: it consists of an agreement to do an unlawful act or a lawful act by unlawful
achieve their object means. “The agreement itself constitutes the offence. The mens rea of the
by the course of offence is the intention to do the unlawful act: the actus reus is the fact of
conduct agreed agreement.”
upon, do they
commit the crime of The trial judge and the Court of Appeal treated the impossibility of extracting cocaine
conspiracy? as an irrelevance. In their view the agreement as what mattered; and there was plain
evidence of an agreement to produce cocaine. The lords however found that neither
judgment contained any reference to the limited nature of the agreement proved: it
was an agreement upon a specific course of conduct with the object of producing
cocaine, and limited to that course of conduct. Since it could not result in the
production of cocaine, the 2 appellants by pursuing it could not commit the statutory

Emperor v. The charged against the 6 accused was first that they
Shankaraya agreed to do an illegal act to wit the murder of one
[1940] Muchkandappa and thereby commited an offence under
s120B of the IPC. There were 3 attempts to murder, the
Criminal last of which was successful.
conspiracy
The first attempt was via witchcraft. There was abundant
evidence that all the accused did conspire together at the
instance of accused #1 to murder the deceased via
witchcraft.
The judge acknowledge that there was plenty of evidence
of a conspiracy to murder the deceased by witchcraft but
offence of producing a controlled drug.
“If, therefore, their agreement, limited as it was to a specific course of conduct which
could not result in the commission of the statutory offence, constituted a criminal
conspiracy, the strange consequence ensues, that by agreeing upon a course of
conduct which was not criminal, the appellants were guilty of conspiring to commit a
crime.”
“common sense and justice combine to require of the law that no man should be
punished criminally for the intention with which he enters an agreement unless it can
also be shown that what he has agreed to do is unlawful”
“this is a case…of an agreement upon a course of conduct which could not in any
circumstances result in the statutory offence alleged.”
The HOL applied the line of reasoning in Reg v. Smith and decided that in the present
case there was no actus reus because there was no agreement upon a course of
conduct forbidden by the statute. They also decided that the second grounds of
decision, the common law principle, ran parallel to this line of reasoning.
Appeal allowed.
Whether there was The judge referred to the definition of criminal conspiracy as found in s120A and
an agreement to found that it was “plain that an agreement to commit murder, being an agreement to
conspire. commit an offence, falls within s120B.”
“if the conspiracy is merely to do an act which is not illegal, though in hope and
belief that that act may result in the death of or injury to some person, in my
opinion that does not amount to a conspiracy to do an illegal act”
He found that the actual witchcraft practiced by the witness as a result of this
conspiracy, was certainly not witchcraft which could in the ordinary course of nature
cause death.
The judge also agreed that if the only agreement between the accused was to perform
this curious act, the mere fact that accused #1 and possibly some of the others might
did not think that such a conspiracy was a criminal have anticipated that the death of the deceased, would not constitute an offence
offence fell within s120B. under s120B.

However, he found that there was “ample evidence on which the jury could find, and
that they in fact did find, that the real agreement was to cause the death of the
deceased, the means to be tried in the first instance being a form of witchcraft the
nature of which, as the evidence makes clear, none of the accused understood, when
they entered into this conspiracy.”

It was argued that “an agreement to commit murder by witchcraft…which in its

consequence cannot result in any corporal damage, cannot amount to a criminal
conspiracy within the meaning of section 120B”, however, the judge found that “if the
act intended or agreed upon does not lack the essential element of the offence of
murder, in my opinion, it is immaterial whether the means adopted in the first
instance are ineffective to carry out the act”.

Judge found that the “object of the conspirators was essentially to cause the death of
their victim and not merely to experiment on the efficacy of the art of witchcraft”

“The offense of criminal conspiracy is a highly technical one and the essential
ingredient is the agreement to commit an offence, irrespective of the means
decided upon to carry out the object of the conspiracy. Whether those means
are legal or innocuous, would not affect the question of criminality”
 Common Intention

Each of several persons liable for an act done by all, in like manner as if done by him alone.

34. 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.

When such an act is criminal by reason of its being done with a criminal knowledge or intention.

35. Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons,
each of such persons who joins in the act with such knowledge or intention, is liable for the act in the same manner as if the act were done
by him alone with that knowledge or intention.

2 Reasons for Constructive Liability:

Moral rule: person who intentionally embarks on a joint criminal enterprise with another is just as blameworthy as the person who
actually commits the offence
Practical concern: extremely difficult to pinpoint specific contributions made by each individual participant in the collective criminal
enterprise.

Common intention is a common intention to do the criminal act done by the actual doer which results in the offence charged.

Purpose of Section 34: Muhammad Ridzuan Bin MD Ali v PP [2014]

“to impute constructive liability on a secondary offender in relation to an offence arising from a criminal act committed by the actual
doer in furtherance of the common intention shared by the actual doer and the secondary offender”

Prosecution has to prove: PP v Ellary bin Puling [2011]

1. The secondary offender had the intention to do the specific criminal act done by the actual doer.
2. Or that the secondary offender had the subjective knowledge that that specific criminal act might likely be committed.
4 Elements: (In Daniel Vijay, it is 3 elements namely: (a) the criminal act element, (b) the common intention element and (c)
the participation element)

(a) Criminal act:

a. Lee Chez Kee v PP [2008] - “section 34 does not refer to the actual crime committed only. It is essential to realize that the expression
‘criminal act’ is not synonymous with ‘offence’ as defined in section 40 of the Penal Code”. “a criminal act may involve and give rise to
several ‘offences’… ‘criminal act’ in section 34 means the whole of the criminal transaction in which the co-offenders engage
themselves by virtue of their common design and not any particular offence or offences that may be committed in the
course of such a transaction”. “refers to all the acts done by the persons involved which cumulatively result in the criminal offence
in question”
b. Daniel Vijay s/o Katherasan and Others v PP [2010] – “The ‘criminal act’ in section 34 refers to the aggregate of all the diverse acts
done by the actual doer and the secondary offenders, which diverse acts collectively give rise to the offence of offences that the actual
doer and the secondary offenders are charged with. It is ‘that unity of criminal behavior, which results in something, for which an
individual would be punishable, if it were all done by himself alone, that is, in a criminal offence’”
(b) Participation:
a. Lee Chez Kee v PP [2008] - “the mere agreement between a number of persons to commit a certain crime is not enough for the
purpose of this section”. “It should be a question of fact in each case whether the accused had participated to a sufficient degree such
that he is deemed to be as blameworthy as the primary offender”. “Presence at the scene of the criminal act, primary or collateral,
need no longer by rigidly insisted on…in a ‘twin crime’ situation, there is no need for participation in the collateral criminal
act…participation in the primary criminal act would be sufficient for liability to fix on all subsequent secondary offenders…the
crux of the section is participation, and presence may or may not provide evidence for participation; this is a question of fact”
b. Barendra (PC), cited in Daniel Vijay s/o Katherasan and Others v PP [2010] – “(a) if he participates in the specific criminal act
committed by the actual doer which gives rise to the offence charged; or (b) he participates in some other criminal act that is done in
furtherance of the common intention of all the offenders, i.e. he participated in any of the diverse acts which altogether formed the
unity of criminal behavior by all the offenders.”
(c) Proving the common intention:
a. Lee Chez Kee v PP [2008] - “Common intention refers to the common design of two or more persons acting together. It is the reason
or object for doing the acts forming the criminal act. This is different from the intention to commit the offence which is the result of
the criminal act committed”. “It has also been said that a common intention can be formed only a moment before the commission of
the offence or during the course of the commission so long as the evidence shows that the parties were acting in concert”.
 “…inferences must be made from the circumstances of the case to show that the criminal act was committed in furtherance of a pre-
arranged plan such as the conduct of the parties, the weapons used and the nature of the wounds inflicted. However, such inferences
should never be made unless it was necessary inference deducible from the circumstances of the case”
b. Daniel Vijay s/o Katherasan and Others v PP [2010] – “The existence (or otherwise) of such a common intention must frequently
be inferred from the offenders’ conduct and all the other relevant circumstances of the case”
(d) In furtherance of the common intention:
a. Lee Chez Kee v PP [2008] - “There is no need for the common intention of the parties to be to commit the offence actually
committed in a ‘twin crime’ situation…The Mini Wong approach…is justified… the additional mens rea required of the secondary
offenders is that of a subjective knowledge on the part of the secondary offender in relation to the likelihood of the collateral
offence happening. To be precise, the secondary offender must subjectively know that one in his party may likely commit the
criminal act constituting the collateral offence in furtherance of the common intention of carrying out the primary offence.”. “It
suffices that the intention of the primary offender was ‘consistent’ with the common intention of the secondary offenders. If this is so,
all will be liable for the eventual criminal act committed”
b. Daniel Vijay s/o Katherasan and Others v PP [2010] - ‘‘In our view, the requirement of common intention is, in principle, a
more exacting requirement than the LCK requirement of subjective knowledge for the purposes of imposing constructive
liability’’ – higher degree of specificity.

(ii) A common intention between the parties -> Ellary bin Puling v. PP -> requires the existence of some kind of planning or
understanding between the parties

Case Facts Issues Judgment

Mimi Wong v. PP The 2 appellants were charged with an offence under
[1971-1973] s300(c) of the PC read with s34, namely causing death by
an act which was done with the intention of causing bodily
injury to any person, and the bodily injury intended to be
inflicted was sufficient in the ordinary course of nature to
cause death. They were alleged to have committed the
offence in furtherance of a common intention. Both
appellants were convicted of murder.
The first appellant had started dating the deceased’s
‘There is no doubt that for this section to apply there must be in existence a
common intention between all the persons who committed the criminal act,
and that a criminal act be done in furtherance of that common intention. When
these 2 requirements are proved, each of such persons would be liable for the
entire criminal act in the same manner as if he had done it alone.
‘a criminal act’ means that unity of criminal behaviour, which results in
something for which an individual would be punishable if it were done by
himself alone, that is a criminal offence’
 husband and they lived together at her home. The
deceased later arrived in Singapore. The first appellant
asked her husband, the 2nd appellant, to assist her in killing
‘a certain person’ and said that she would give him money
in return for his assistance. The 1st appellant told the
deceased that the second appellant was a plumber. The 2 nd
appellant threw some toilet cleansing liquid onto the
deceased’s eyes then the 1st appellant stabbed the
deceased on vitals parts of her body with great force,
resulting in her death.
Lee Chez Kee v. PP The appellant, with 2 others Too and Ng, robbed the
[2008] deceased at his house. Although there was a pre-arranged
plan to tie up the deceased and to threaten him with a
SGCA knife, the appellant was deeply troubled from the outset
about being apprehended after the robbery. This was
Common because the deceased was acquainted with Too. He was so
Intention afraid that he quarreled with Too on the way to the
deceased’s house.
The deceased was punched and stabbed by the appellant
with a knife taken from the kitchen. The deceased was
later tied up in his bed by the appellant and Too. The cause
of death was revealed to be asphyxia due to strangulation,
effected by an electrical cord.
The trial judge convicted the appellant of the charge of
murder in furtherance of a common intention to commit
robbery under s302 read with s34 of the PC.
The appellant appealed.
The prosecution contended that there was no need for the
appellant to have intended to kill the deceased. It was
sufficient so long as he had intended to rob the deceased
and the deceased was killed in the course of the robbery.
Trial judge’s reasoning:
‘The intention that is an ingredient of the offence constituted by the criminal
act is the intention of the actual doer and must be distinguished from the
common intention of the doer and his confederates. It may be identical with
the common intention or it may not. Where it is not identical with the common
intention, it must nevertheless be consistent with the carrying out of the
common intention, otherwise the criminal act done by the actual doer would
not be in furtherance of the common intention.
Appeal dismissed.
(a) Admissibility of The judge observed that the trial judge had failed to make any express finding
Too’s statements to the effect that the act of strangulating the deceased was in furtherance of
the common intention of the parties to rob the deceased.
(b) Whether the weight
of evidence was ‘twin crime’ situations are when “a group of participants in a criminal
sufficient to establish enterprise agree on the main goal to commit a primary criminal act but did not
the guilt of the share in the intention of one or more unidentified members of the group to
appellant for murder also commit a collateral criminal act which is incidental or collateral to the
pursuant s302 read main goal of the group”
with s34 of the PC
Singapore courts’ present requirement:
Clarification of the fault (e) Criminal act: “section 34 does not refer to the actual crime committed
element required of the only. It is essential to realize that the expression ‘criminal act’ is not
parties under s34 of PC. synonymous with ‘offence’ as defined in section 40 of the Penal Code”.
“a criminal act may involve and give rise to several ‘offences’…
‘criminal act’ in section 34 means the whole of the criminal
transaction in which the co-offenders engage themselves by
virtue of their common design and not any particular offence or
offences that may be committed in the course of such a
transaction”. “refers to all the acts done by the persons involved
which cumulatively result in the criminal offence in question”
(f) Participation: “the mere agreement between a number of persons to
commit a certain crime is not enough for the purpose of this section”.
“It should be a question of fact in each case whether the accused had
participated to a sufficient degree such that he is deemed to be as
The evidence proved beyond a reasonable doubt that the
appellant actually strangled the deceased to death.
Therefore it was unnecessary to rely on s34 to convict the
appellant of murder since he was primarily responsible for
the murder.
Secondly, if this finding was wrong, the application of s34
meant that it was not necessary to establish whether it
was the appellant who strangled the deceased to death.
By this reason, so long as there existed a common
intention between the parties to rob the deceased, and the
criminal act of strangulating him was then found to be in
furtherance of this common intention (to rob), the
appellant would be guilty of the charge, even if it could not
be established that he was the actual person who
strangled the deceased to death.
blameworthy as the primary offender”. “Presence at the scene of the
criminal act, primary or collateral, need no longer by rigidly insisted
on…in a ‘twin crime’ situation, there is no need for participation in the
collateral criminal act…participation in the primary criminal act
would be sufficient for liability to fix on all subsequent secondary
offenders…the crux of the section is participation, and presence may
or may not provide evidence for participation; this is a question of
fact”
(g) Proving the common intention: “Common intention refers to the
common design of two or more persons acting together. It is the
reason or object for doing the acts forming the criminal act. This is
different from the intention to commit the offence which is the result
of the criminal act committed”. “It has also been said that a common
intention can be formed only a moment before the commission of the
offence or during the course of the commission so long as the evidence
shows that the parties were acting in concert”. “…inferences must be
made from the circumstances of the case to show that the criminal act
was committed in furtherance of a pre-arranged plan such as the
conduct of the parties, the weapons used and the nature of the
wounds inflicted. However, such inferences should never be made
unless it was a necessary inference deducible from the circumstances
of the case”
(h) In furtherance of the common intention: “There is no need for the
common intention of the parties to be to commit the offence
actually committed in a ‘twin crime’ situation…The Mini Wong
approach…is justified… the additional mens rea required of the
secondary offenders is that of a subjective knowledge on the part of
the secondary offender in relation to the likelihood of the collateral
offence happening. To be precise, the secondary offender must
subjectively know that one in his party may likely commit the
criminal act constituting the collateral offence in furtherance of the
common intention of carrying out the primary offence.”. “It suffices
that the intention of the primary offender was ‘consistent’ with the
common intention of the secondary offenders. If this is so, all will be
liable for the eventual criminal act committed”

Daniel Vijay s/o The appellants, Daniel, Christopher and Bala had planned
Katherasan v. PP to rob the deceased, Wan, of a cargo of mobile phones. The
[2010] appellants caused Wan to stop his lorry, which contained
the cargo.
SGCA Wan was assaulted by Bala repeatedly on the head and
other parts of the body with a baseball bat. He was then
Common placed in his lorry, which was then driven to Pasir Ris
Intention Carpark. There, the cargo was transferred to other lorries
and taken away. Wan was left in his lorry in the carpark
and was found later than same day by a member of the
public. He died 5 days after the robbery.
The appellants were charged with murder committed in
furtherance of a common intention, pursuant to s302 read
with s34 of the PC.
The trial judge held that on the evidence, Bala had satisfied
the requirements for liability for the offence of murder as
set out in s300c. Daniel and Christopher were convicted of
murder pursuant to s34.
The judge considered the circumstances of the case and concluded that the
appellant knew further, in that only did he know that Too (or himself) would
have seriously harmed the deceased if the deceased had struggled or
retaliated…he must also have appreciated that the deceased would have to be
killed to protect their identities.
“evidence would need to show that the appellant subjectively knew…this is not
to say that the courts should ‘objectivize’ subjective knowledge with what they
think the accused ought to have known; what this simply requires is for a
careful evaluation of the evidence to disclose what the accused actually
knew but had not stated explicitly” – in this case, appellants were armed,
there was a pre-conceived plan, hence inference could be made.
Appeal dismissed.
Requirement of The court found that the judge had applied s34 to convict D and C on a joint
Common intention. charge of murder even though (a) the appellants had no common intention to
kill Wan or cause his death, but only to rob him of the cargo and (b) it was Bala
(a) whether Bala’s alone who caused the death of Wan by intentionally inflicting a series of blows
assault on Wan was in on the latter’s head…resulting in Wan sustaining injuries which were sufficient
furtherance of the in the ordinary course of nature to cause death. The court found this decision
appellants’ common highlighted the ‘apparent harsh effect of the application of s34’.
intention to rob Wan
and Issue (a): The court considered whether the judge was right to hold that Bala’s
brutal assault on Wan was in furtherance of the appellants’ common intention
(b) whether the LCK to rob Wan because it facilitated the robbery and found it difficult to accept
requirement was that it was so. It was decided that “the assault on Wan was inconsistent with
satisfied wrt D and C on or, at least, outside the scope of the appellants’ common intention to rob Wan.”
the evidence. Judge found that even though the appellants knew that violence would be
necessary to facilitate the commission of robbery, “knowledge is not the same
as intention”, therefore, “the presence of knowledge found by the Judge was
insufficient to justify the conclusion that there was a common intention among
the appellants to use violence against Wan”
Issue (b): The court noted that the trail judge had found both Daniel and
The judge stated the appellants’ common intention solely
in terms of a common intention to commit robbery. He
also did not find that Daniel and Christopher had
participated in the assault. He found, however, that they
knew that violence would be necessary in order to
facilitate the commission of the robbery, and that the
assault on Wan was in furtherance of the common
intention to rob him. The judge held that this satisfied the
additional mens rea required to render them liable for the
criminal act of Bala – subjective knowledge that one in the
party might likely commit the criminal act constituting the
collateral offence in furtherance of the common intention
to carry out the primary offence.
Appellants appealed to Court of Appeal.
Christopher knew that violence would be necessary in order to facilitate the
commission of robbery. In their view, they found that the trial judge’s findings
were insufficient to satisfy the LCK requirement. There was no finding that D
and C had subjective knowledge that Bala might commit the criminal act
actually committed with which resulted in the offence with which the
appellants were charged…since the appellants had no intention to either kill
Wan or cause his death, there would have been no cause or reason for D and C
to suspect, much less subjectively know, that Bala might likely inflict s300c
injury on Wan… In short, the evidence does not establish beyond reasonable
doubt that Daniel and Christopher subjectively knew that Bala might likely
cause Wan section 300(c) injury in furtherance of the Appellant’s common
intention to commit robbery.
The court then considered how specific the secondary offender’s subjective
knowledge of the collateral criminal act which might likely be committed by
the actual doer must be for the purposes of satisfying the LCK requirement and
concluded that the “LCK requirement would be satisfied only if the
secondary offender has subjective knowledge of the likelihood of the
victim receiving, specifically, s300c injury.”
“It may be just to hold the actual doer liable for the offence arising from his
own actions, but, in our view, it may not be just to hold the secondary offender
constructively liable for an offence arising from the criminal act of another
person (viz, the actual doer) if the secondary offender does not have the
intention to do that particular criminal act. This is especially true of serious
offences like murder or culpable homicide not amounting to murder.”
“It may not be just or reasonable to apply the Virsa Singh test to hold a
secondary offender constructively liable for s300c murder where he had no
intention to do the specific criminal act done by the actual doer which gave
rise to the offence of s300c murder, and also did not subjectively know either
that that criminal act might likely be committed or that that criminal act would
result in s300c injury to the victim.”
“it is not sufficient, in our view, for section 34 to apply if the secondary
offender merely has subjective knowledge that the victim might likely suffer
an injury (or for that matter, if the secondary offender shares a common
intention with the actual doer to inflict an injury on the victim), and that injury
is subsequently shown to be of a type which is sufficiently serious to amount
to section 300(c) injury”

‘‘In our view, the requirement of common intention is, in principle, a

more exacting requirement than the LCK requirement of subjective
knowledge for the purposes of imposing constructive liability’’

Common intention in a 300(c) murder:

- “Where the secondary offender is concerned, however, we are of the
view that he should not be made constructively liable for the offence
of section 300(c) murder arising from the actual doer’s criminal act
unless there is a common intention to cause, specially, section 300(c)
injury, and not any other type of injury”
- “(where a secondary offender is charged with murder under section
300(c) read with section 34) …it is necessary to consider whether
there was a common intention among all the offenders to inflict
section 300(c) injury on the victim”

‘‘A criminal act is done in furtherance of a common intention only if it furthers

that common intention, which must be an intention to do something or to
achieve a purpose…A criminal act which is not commonly intended by all
the offenders is inconsistent with or, at least, outside the scope of the
offenders’ common intention, and cannot be regarded as having been
done in furtherance of that common intention…legislative purpose of s34 is
to make a secondary offender constructively liable for the offence resulting
from a criminal act done by another person only where the secondary offender
and the actual doer have a common intention to commit that particular
criminal act.”

Illustration:
A, B and C have a common intention to rob D, but not to cause any physical
harm to him. A, however, kills D to facilitate or accomplish the robbery.

Muhd Bin Kadar v. The first appellant, Muhd, and the second appellant, Ismil
PP [2011] were charged with the murder. The deceased, who was
attacked at her home, received more than 110 incised and
stab wounds and had died due to severe blood loss.
The judge rejected the appellants’ arguments and, without
making a finding as to which of the appellants was
responsible for the actually killing of the deceased,
convicted both of them of murder in furtherance of a
common intention under s203 read with s34 of the PC and
sentenced them to death. The appellants appealed against
the judge’s decision. At the appeal, the prosecution took
the position that Ismil was not guilty of murder but was
present at the scene of the killing and was guilty of
robbery with hurt under s394 read with s34 of the PC.
At the start of the trial, the prosecution unequivocally
asserted that Ismil was the sole assailant. However, after
Provided B and C do not participate in A’s criminal act, section 34 would not
apply as the criminal act would not have been done in furtherance of the
common intention of A, B and C. A’s criminal act would be inconsistent or at
least outside the scope of that common intention. If, however, B and C
participate, an inference may be made that their common intention changed
on the spot into a common intention to kill D, section 34 would apply to B and
C. Note, if B and C have subjective knowledge that A might likely kill D in the
course of the robbery, LCK requirement will be satisfied if it can be proven that
B and C had the specific subjective knowledge to inflict that particular injury to
kill D.
Overall, court agreed that the appellants did not have a common intention to
inflict section 300(c) injury or any other specific injury on Wan, although all 3
knew that violence would be necessary to facilitate the robbery. Section 34 not
applicable to Daniel and Christopher.
Appeals allowed, convictions for murder set aside
Conclusion on Ismil’s conviction
The court found that the prosecution had failed to even establish that Ismil
was even present at the flat when the deceased was killed, let alone that he
shared in any common intention to commit robbery. The prosecution failed to
prove that Ismil is guilty of any offence.
The court also decided that the judge’s approach in applying s34 of the PC to
the facts at hand was wrong, with the decision of the court in Daniel Vijay in
mind. ‘For joint liability under the doctrine of common intention as set out in
s34, it was stated by this court in Daniel Vijay that the common intention of all
the offenders must include an intention to commit the very criminal act done
by the actual doer which resulted in the offence. The conclusion of the judge
was that the deceased was killing in furtherance of a common intention to
commit robbery. Applying Daniel Vijay, such a common intention would not
suffice for joint liability for murder to be established..
Muhd’s appeal dismissed, conviction for murder in furtherance of common
intention to commit robbery under s302 read with s34 with a conviction for
 Muhd testified to his sole involvement in the killing, the murder under s302. Ismil’s appeal allowed, conviction set aside.
prosecution contended that Muhd alone had inflicted the
fatal wounds. The prosecution maintained that both the
appellants were equally liable for murder pursuant to s34
of the PC as they shared a common intention to commit
robbery. The judge did not make a finding as to the
identity of the actual assailant but concluded that by
virtue of s34, both should be held liable for murder as
they had shared a common intention to rob.

During the appeal, the prosecution conceded that the

judge had erred in that only Muhd should be found liable
for murder, and that Ismil should not be held to be equally
for liable. The prosecution submitted that Ismail should be
found guilty of committing robbery with hurt since he was
present at the scene of the crime and there was sufficient
evidence to show that he shared a common intention with
Muhd to commit robbery.
Kho Jabing v. PP The first and second appellants, Jabing and Galing, had
[2011] agreed with 3 others to rob 2 co-workers. Jabing and
Galing walked some distance away from the rest where
SGCA they spotted 2 persons, the deceased and Wu Jun and
assaulted them. Wu Jun was assaulted by Galing by means
of a belt wrapped around his fist, with the metal belt
buckle exposed. The deceased was assaulted by Jabing
with a piece of wood, which Jabing had picked up while
approaching the victims, and was also assaulted by Galing
using the metal belt buckle.
The deceased suffered severe head injuries from which he
died. Wu Juan escaped with minor injuries.
Jabing and Galing were charged with murder committed in
furtherance of a common intention, pursuant to s302 read
with s34 of the PC.
The trial judge held that Jabing’s and Galing’s intention to
Applying Daniel Vijay. The court applied the approach in Daniel Vijay, where that in order for Galing
to be convicted of murder under s302 read with s34 of the PC, “the common
intention that Galing must have shared with Jabing is a common intention to
do the criminal act done by the actual doer which results in the offence
charged” (the Barendra test) i.e. a common intention to commit murder. ‘‘This
common intention can be contingent or remote, can even be predicated upon a
common intention to commit robbery, and implies a ‘pre-arranged plan’
pursuant to which the criminal act was done.”
When murder is committed in the course of robbery, “the secondary
offender is constructively liable for the murder actually committed only
if he has the common intention with the actual doer to commit murder.
Such a common intention may, depending on the circumstances, be inferred if
the secondary offender is found to have subjective knowledge that ‘one in his
party may likely commit the criminal act (murder) constituting the collateral
offence in furtherance of the common intention of carrying out the primary
offence (robbery)”
 rob the victims by the use of force, and that Galing knew
that when he and Jabing robbed the deceased, the
deceased could be assaulted and serious injuries might be
inflicted on him. The trial judge also found that while
Jabing and Galing had the common intention to commit
robbery and not to kill, they knew that there was the
likelihood that serious injury might be inflicted and the
trial judge convicted both of them. Jabing and Galing
appealed against their convictions and sentences.
Jabing and Galing appealed.
PP v. Ellarry Bin The accused Ellarry and Fabian were working in Singapore
Puling [2011] on work permits.
SGHC They were jointly charged with causing the death of one
Loh in the course of committing a robbery, under s302
read with s34 of the PC.
The defence submitted that the only common intention
that the 2 accused persons shared was to rob the deceased
and lacked a common intention to commit section 300(c)
murder.
The court did not dispute that Jabing and Galing had a common intention to
rob the 2 victims, but considered that the evidence does not support the
prosecution’s argument that Galing’s conduct evinced an intention in common
with Jabing to kill or to inflict a section 300c injury on the deceased in order to
rob him. The court took into account the appellant’s improvisation, lack of pre-
planning, lack of evidence as to the nature of the injury caused by Galing and
that Galing did not assault the deceased to the best of his ability.
The court found that a common intention to rob, and if necessary, to inflict a
s300c injury on 2 random victims “cannot be made out unless there was
evidence of some kind of planning or understanding between the 2 as to
what they would do and how they would do it in order to rob the victims.”
The court found that the Barendra test was not satisfied.
Jabing’s appeal dismissed, Galing’s appealed allowed, conviction for murder
substituted with a conviction of the offence of robbery with hurt committed in
furtherance of a common intention under s394 read with s34.
What does the The court reiterated the Daniel Vijay approach and stated that Ellary would
prosecution have to only be found constructively liable for the murder actually committed by
prove in order to satisfy Fabian if the prosecution “could prove beyond a reasonable doubt that Ellary
s34. shared the common intention with Fabian to commit a s300c injury on the
deceased. In particular, the Prosecution has to to prove the existence of some
kind of planning or understanding between Fabian and Ellary as to what they
would do and how they would do it in order to rob the deceased.”
The court also held that a high degree of specificity was demanded of Ellary’s
intent.
The court found that Ellarry “did not share a common intention with Fabian to
cause the deceased a s300c injury”. The court considered the conduct of the
accused persons before, during and after the robbery and attack on the
deceased and found that Ellary must have realized that it was ‘almost a
certainty’ that Fabian was going to use the stick he was carrying to attack the
next victim. The court also found that Ellarry shared a common intention with
 Fabian to attack their next robbery victim with the wooden stick…in order to
commit the robbery.

The court considered the high level of specificity required of the secondary
offender’s intent following Daniel Vijay and concluded that the threshold set
for a secondary offender is, therefore, raised to that of s300a even though
he would be held jointly liable for murder under s300c read with s34.

The court found that the prosecution was unable to prove that Ellarry and
Fabian shared the common intention to cause, specifically, a s300c injury. The
prosecution had not adduced medical or forensic evidence to show as a
scientific fact that hitting a person using the wooden stick with enough force
required to cause the person to fall down to the ground is sufficient in the
ordinary course of nature to cause death.

“The Prosecution has not proved the high degree of specificity required of the
secondary offender’s intent following the decision in Daneil Vijay: it had
failed to prove that Ellary had the intention to do the specific criminal act
done by Fabian, i.e. hitting the deceased on the head with the wooden
stick to render him unconscious. Ellary also did not subjectively know
that that specific criminal act might likely be committed or that that
criminal act would result in a section 300(c) injury to the victim”

Ellarry was, in substitution, convicted of the offence of robbery with hurt

under s394 read with s34.
Muhd Ridzuan v. Ridzuan and one Abdul Haleem were convicted on both Whether the judge The ‘actual doer’, Abdul Haleem, was convicted by the judge of trafficking
PP [2014] the capital and non-capital charges in respect of trafficking erred in finding that controlled drugs pursuant to s5(1)(a) read with s5(2) of the MDA. Therefore,
in heroin. Abdul Haleem did not appeal against his Ridzuan and Abdul should it be proven beyond a reasonable doubt that the elements of s34 are
SGCA conviction on both charges. Haleem were satisfied, constructive liability for the offence of trafficking in controlled drugs
The trial judge found that Ridzuan was deemed to have trafficking in would be imposed on Ridzuan and he would have accordingly been convicted
been in joint possession with Abdul Haleem of the 7 furtherance of a of the capital charge. “In other words, the elements for the charge of trafficking
bundles of heroin pursuant to s18(4) of the Misuse of common intention under section 5(1)(a) read with section 5(2) of the MDA did not need to be
Drugs Act as he knew that Abdul Haleem would be additionally made out against him’”
collecting additional bundles of drugs from the jockey and Whether the common
the former had collected the said bundles with his consent intention between The court referred to the decision in Daniel Vijay, where 3 elements must be
and on his instructions. Alternatively, Ridzuan was
presumed to have been in possession of the said bundles
pursuant to s18(1) of the MDA. The judge also held that,
based on Ridzuan’s own account, both of them had the
common intention to traffic the 7 additional bundles of
heroin as they had received them from the jockey for the
purpose of transporting, sending or delivering the bundles
to other customers of Gemuk, a drug dealer.
Ridzuan was jointly charged with Abdul Haleem for
trafficking in furtherance of a common intention i.e.
s5(1)(a) read with s5(2) of the MDA, read with s34 of the
PC.
Ridzuan and Abdul present before constructive liability can be imposed pursuant to s34, namely:
Haleem had included an (a) the criminal act element, (b) the common intention element and (c)
intention to commit the the participation element.
very criminal act done
by Abdul Haleem i.e. The court decided that on the facts of the case, (a) and (c) were satisfied. The
the possession of the crux of the case was that Ridzuan and Abdul Haleem had, at the very highest,
said seven additional the common intention to receive some drugs from the jockey for the purposes
bundles of heroin for of handing them over to other customers subsequently and did not extend to
the purpose of receiving the 7 additional bundles of heroin which formed the subject matter
trafficking. of the charge.
The court agreed with the judge’s finding that Ridzuan had actual knowledge
that the 7 additional bundles contained heroin. It was also of the view that
there was nothing from the available evidence to make a finding as to whether
Ridzuan had actual knowledge of the number of additional bundles.
The court considered pertinent that despite his averment that he was only
willing to receive 1-2 extra bundles, he had not asked Gemuk how many
bundles would be passed to him/informed Gemuk he was only willing to
accept a limited number of bundles...even if the court accepted Ridzuan’s case
that he was prepared to receive only up to 2 additional bundles…the total
amount would have exceeded the threshold with respect to a sentence of
capital punishment.
The court found that neither of the accused had addressed their minds to the
specific number of additional bundles to be collected and that the common
intention of both Ridzuan and Abdul Haleem had been to collect any number
of bundles of heroin handed to them by the hockey and that this common
intention encompassed the intention to commit the very criminal act done by
Abdul Haleem i.e. the possession of the 7 bundles.
Thus the criminal act was carried out in furtherance of their common intention
and element (b) of section 34 of PC was therefore satisfied.
Appeal dismissed.
 Common Object

Unlawful assembly
141. An assembly of 5 or more persons is designated an “unlawful assembly”, if the common object of the persons composing that
assembly is —
(a) to overawe by criminal force, or show of criminal force, the Legislative or Executive Government, or any public servant in the exercise
of the lawful power of such public servant;
(b) to resist the execution of any law, or of any legal process;
(c) to commit any offence;
(d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
(e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do
what he is legally entitled to do.

Explanation—An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.

Being a member of an unlawful assembly

142. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in
it, is said to be a member of an unlawful assembly.

Force used by one member in prosecution of common object

146. Whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of
such assembly, every member of such assembly is guilty of the offence of rioting.

Every member of an unlawful assembly to be deemed guilty of any offence committed in prosecution of common object
149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that offence.
Elements:
(i) A combination of 5 or more persons,
(ii) they were members of an unlawful assembly, -> presence per se not sufficient to prove membership, continued presence sufficient
where there was a chance to dissociate himself from the group once the facts which rendered the assembly unlawful became known
(iii) they were united in a common object, -> to be inferred from the facts and circumstances of each case -> to be made only if ‘irresistible’ ->
no requirement for pre-arrangement, common object may mutate
(iv) to do one of the things listed in s141, and
(v) the offence was committed in prosecution of the common object or known to be likely to be committed by a member or members of the
unlawful assembly.

General:
Chandran v PP [1992]
- “Section 149 does not require proof of a pre-arranged plan and a common intention which a prosecution involving s34 would require.”
- “The identity of the person who inflicted the fatal wound is immaterial so long as it is established beyond a reasonable doubt that that person
is a member of the unlawful assembly in question, seeing that the kind of constructive liability for crime with which we are concerned arises out of
the membership of an unlawful assembly in respect of an offence done by one more of those members’’

Barendra Kumar Ghosh v Emperor [1925], cited in Chandran v PP [1992] – “the element of participation in action which is the leading feature of
s34, is replaced in s149, by membership of the assembly at the time of the committing of the offence.’

Shambhu Nath Singh v State of Bihar [1960], cited in Chandran v PP [1992]:

- “If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the
object by any member of the unlawful assembly, all members of the assembly will be vicariously liable for the offence, even if one or more,
but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly, and that offence is one which the
members of the unlawful assembly knew to be likely to be committed in prosecution of the common objet, every member who had that
common object will be guilty of the offence so committed”

Gour’s ‘Penal Law of India’ 7th Ed at pg 710 states: “The purpose for which the members of the assembly set out or which they desired to achieve is
the object…If the object desired by all the members is the same, the knowledge that that is the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved; the object then becomes the common object of the assembly…A common
object may be found by express agreement after mutual consultations but that is not necessary. It may be formed at any stage by all or some
members of the assembly and the other members may join and accept it. It may be modified or altered or abandoned at any stage. What the
 common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined by
keeping in view the nature of the assembly, the arms it carries and the behavior of its members at or near the scene of the incident”
Case Facts
Chandran v. PP The 3 appellants and 5 others had gone to an ice
[1992] factory with the intention of seeking revenge for, inter
alia, a slash wound inflicted on the 3rd appellant by the
SGCA deceased during an earlier altercation. Once they
arrived, the 8 persons attacked the deceased and his
Common friends. The deceased died from multiple injuries that
Object he received.
The 3 appellants were charged with, and convicted of,
being ‘constructively liable’ for the murder of the
deceased. Though it was found that the 3 appellants
did not inflict the fatal wound that resulted in the
deceased’s death, they were nonetheless convicted for
the offence of murder within the meaning of s300 read
with s149 of the PC as the High Court had found that
they were members of an unlawful assembly whose
object was to cause grievous hurt to one Suppiah and
his men, that the murder of the deceased was caused
by 1 of the 8 members of the lawful assembly and that
the appellants knew that the offence of murder was
likely to be committed in the prosecution of the
common object.
Issues Judgment
Distinction The first appellant argued that ‘there was no finding by the trial judges that (the 1 st
between s34 and appellant) shared with the others the common object of killing any of the occupants of the
s149. premises’. The court found it erroneous to suggest that the prosecution must prove the
common object of killing in a prosecution involving s149.
“Section 149 does not require proof of a pre-arranged plan and a common intention
which a prosecution involving s34 would require.”
The court then referred to Barendra Kumar Ghosh v Emperor [1925], where the
difference between object and intention was explained:
‘There is a difference between object and intention; for though their object is common, the
intention of several members may differ and indeed may be similar only in the respect that
they are all unlawful while the element of participation in action which is the leading feature
of s34, is replaced in s149, by membership of the assembly at the time of the committing of
the offence.’
“The identity of the person who inflicted the fatal wound is immaterial so long as it is
established beyond a reasonable doubt that that person is a member of the unlawful
assembly in question, seeing that the kind of constructive liability for crime with
which we are concerned arises out of the membership of an unlawful assembly in
respect of an offence done by one more of those members’’
Shambhu Nath Singh v State of Bihar [1960]:
“If an unlawful assembly is formed with the common object of committing an offence
and if that offence is committed in prosecution of the object by any member of the
unlawful assembly, all members of the assembly will be vicariously liable for the
offence, even if one or more, but not all committed the offence. Again, if an offence is
committed by a member of an unlawful assembly, and that offence is one which the
members of the unlawful assembly knew to be likely to be committed in prosecution
of the common objet, every member who had that common object will be guilty of the

Fan Meng Siong The appellants together with two others were
& Anor v PP originally jointly charged for the murder of one Te Lui
[2012] Yet, under section 302 of the Penal Code read with
section 34 of the same Code.
Court of Appeal,
Malaysia The cause of death was due to multiple stab wounds.
Eye witness accounts showed that the first appellant
had used a baseball to hit the deceased’s head and that
the second appellant had hit the deceased with his
hands. In the midst of the trail in the high Court, the
prosecution tendered an alternative charge under
section 149 of the PC and punishable under section
302 of the Code.
The trail judge found them guilty on the alternative
charge and sentenced them to death.
offence so committed”
Clarification of Court referred to Sukha and Ors v State of Rajasthan [1956] in India holding: “Common
Common Object. object is different from a common intention in that it does not require prior concert and
a common meeting of minds before the attack, and an unlawful object can develop
after the people get together”
Court referred to Lalji and Ors v State of UP [1989] in India, holding: “Section 149 make
every member of an unlawful assembly at the time of committing of the offence guilty of
that offence…the vicarious liability of the members of the unlawful assembly extends only to
the act done in pursuance of the common object of the unlawful assembly, or to such
offences as the members of the unlawful assembly knew to be likely to be committed in
prosecution of that object. Once the case of a person fails within the ingredients of the
section, the question that he did nothing with his own hands would be immaterial.”
Gour’s ‘Penal Law of India’ 7th Ed at pg 710 states: “The purpose for which the members of
the assembly set out or which they desired to achieve is the object…If the object desired by
all the members is the same, the knowledge that that is the object which is being pursued is
shared by all the members and they are in general agreement as to how it is to be achieved;
the object then becomes the common object of the assembly…A common object may be
found by express agreement after mutual consultations but that is not necessary. It may be
formed at any stage by all or some members of the assembly and the other members may
join and accept it. It may be modified or altered or abandoned at any stage. What the
common object of the unlawful assembly is at a particular stage of the incident is
essentially a question of fact to be determined by keeping in view the nature of the
assembly, the arms it carries and the behavior of its members at or near the scene of
the incident”
In this case, the court found that “there was sufficient evidence to support the learned
judge’s findings of fact that the appellants had participated in the unlawful assembly with
the common object of causing the death of the deceased.”
Thongthot The first accused, Thongthot, was angered by the
Yordsa-art v. PP deceased’s treatment of his girlfriend. Accordingly, he
[2002] assembled a group of men, including the second
accused, D, and they confronted the deceased, with a
SGCA deadly arsenal of weapons. The accused tried to flee
but he was cornered and killed by them.
Both accused persons were jointly tried for being
members of an unlawful assembly whose joint
common object was to cause grievous hurt to the
deceased and while they were members of the
unlawful assembly, they or 1 or more of the members
murdered the deceased.
The trial judge convicted both accused persons and
imposed on them the mandatory death penalty.
Both accused appealed on the basis that the trial judge
had erred as they had only intended to extract an
apology from the deceased and not to kill him.
Mohd Haikal v. The 8 appellants were all students of a school.
PP [2009]
They were jointly charged under s302 read together
Court of Appeal, with s149 of the PC for the murder of a student of the
Malaysia. same school. The merciless attack on the victim by the
8 appellants practically killed the victim on the spot.
There were 24 external injuries on the victim and his
death was caused by head and abdominal injuries due
to blunt instruments.
Whether the Court held that firstly, ‘‘It cannot be disputed that T and D and the other members of the
appellants did gang were, by virtue of s141 of the PC, members of an unlawful assembly as there was
not do the ample evidence at the trial that their common object was to cause grievous hurt to the
offence in deceased.”
common object.
The court considered the meaning of ‘common object’ as mentioned in Chandran v. PP and
Barendra, and concluded that “the trial judge could not be faulted for holding that the
appellants and the other members of the unlawful assembly knew that it was likely that the
deceased would be killed when they acted in pursuit of their common intention to cause
him grievous hurt.”
The appellant’s effort to play down the significance of their deadly weapons by saying that it
was for self-defense, but court found that the circumstances of the case and the ferocity of
the attack said otherwise. If it had been for self-defense, the court was of the opinion that
the deceased would not have died.
The court also considered the manner in which the group slashed the deceased and decided
that there was “no doubt that the assailants knew that it was likely that their actions in
furtherance of their common object of causing the deceased grievous hurt would result in
his death.”
The court compared s149 ‘common object’ to s34 ‘common intention’ and observed that
although s34 does not like s149 create a specific offence, both sections have something in
common and that is that each prescribes conditions in which a person may be convicted for
something that is constituted a substantive offence by the other provisions of the code.
The court referred to Lalji v. State of UP:
‘…The basis of constructive guilt under s149 is mere membership of the unlawful assembly,
with the requisite common object or knowledge. Thus, once the court holds that certain
accused persons formed an unlawful assembly and an offence is committed by any member
of that assembly in prosecution of the common object of that assembly, or such as the
member of the assembly knew to be likely to be committed in prosecution of that object,
every person who at the time of committing of that offence was a member of the same
assembly is to be held guilty of that offence.’
Sukha v. State of Rajasthan:
‘common object is different from a common intention in that it does not require prior
concert and a common meeting of minds before the attack, and an unlawful object can
develop after the people get there’

‘‘As much as the ‘common object’ may change, so does the attendance of ‘membership’
of the unlawful assembly…there is no necessity to have a total of 5 or more persons at
any one time, so long as the total number of the unlawful assembly over the whole
duration constitutes 5 or more that would be sufficient to attract s149 of the PC’’
 Defence of Accident

Accident in the doing of a lawful act

80. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a
lawful act in a lawful manner, by lawful means, and with proper care and caution.

Illustration
A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part
of A, his act is excusable and not an offence.

4 conditions for the defence of accident to succeed, namely: Tan Chor Jin v. PP [2008]
(a) the act done by the accused must be the result of ‘accident or misfortune’
(b) the said act must be done ‘without any criminal intention or knowledge’
(c) the said act must be lawful, and must be performed ‘in a lawful manner, by lawful means’ and
(d) the said act must be done ‘with proper care and caution’

Case Facts Issues Judgment

R v. Ong The appellant was charged with the murder of one Lim
Choon [1938] and on his trial, was convicted with culpable homicide
bit amounting to murder and was sentenced to 6 years’
imprisonment. He appealed against his conviction and
the only ground of appeal argued before the court was
that the accused at his trial had raised as a defence that
the deceased met with his death by accident and that
this defence was not put, or was inadequately put, to the
jury.
The trial judge clearly told the jury that on the evidence the accused had an intention to do
injury to the deceased and did not clearly leave a defence of accident under s80 to the jury.
It was argued that what had transpired, according to the accused’s description, was an
occurrence which the accused could foresee and expect and therefore not an ‘accident’.
Definitions of ‘accident’ was referred to and one of them was ‘an effect is said to be
accidental when the act by which it is caused is not done with the intention of causing it, and
when its occurrence as a consequence of such act is not so probably that a person of
ordinary prudence ought, under the circumstances in which it is done, to take reasonable
precautions against it.’

The court opined that it was doubtful whether the wound could have been inflicted in the
manner described by the accused, but this was for the jury to consider whether it was

Kong Poh Ing The person, whom the accused was charged with
v. PP [1977] murdering, was her boyfriend whom under a promise of
marriage she had allowed to seduce her. The
Malaysian prosecution could produce no eye-witness. The evidence
Federal Court consisted largely of dying declarations allegedly made
by the deceased before his death. The other witnesses
were his family members. The other evidence against
the accused consisted of her statement in which she
admitted to a desire to commit suicide in the presence of
the deceased.
She wished to reproach him for his betrayal in now
refusing to marry her. She had brought a knife and
waited for him for this purpose. When he came, she
showed him the knife. He hugged her and told her not
die. There was an obvious attempt to wrench the knife
away from her in which they fell and he was stabbed.
Death was due to shock from massive haemorrhage
Ismail Bin The appellant and the deceased were former colleagues
Abdul in CISCO. The deceased was on overnight duty and had
Rahman v. PP been issued with revolver and ammunition.
[2004]
The appellant and the deceased were alone in the
caused in this manner, whether the accused intended the wound or a similar wound to be
inflected, and if not, whether wound was as might reasonably been expected…’
The court concluded that the evidence was not ‘so cogent and convincing that the
conclusion is not to be resisted that the jury properly directed, would certainly have arrived
at the same conclusion’
Conviction quashed.
Was the act The court found that the trial judge’s summing up only left the verdict of guilty of murder, or
intentional? of culpable homicide not amounting to murder, or of voluntarily causing grievous hurt.
There was no question whatsoever of acquittal on the defense of the accident. There was no
“direction that accident, if accepted, must necessarily nullify any intention to cause death or
bodily hurt.”
The court referred to Ratnam v. R to illustrate the possibility that the summing-up might
have led the assessors to take a wrong view of the law in that the judge had misdirected the
jury in two aspects:
1. “if the jury had accepted the appellant’s story that the fatal blow was unintentional
and a pure accident, there would be no evidence to support a charge of CHNAM, as
criminal intention had to be fully established as in murder.”
2. “the jury were not directed that if the offence of accident were accepted, the
appellant was entitled to an acquittal”
The court then went on to invalidate the prosecution’s argument that since suicide was a
felonious offence, the accused’s act of stabbing the deceased in the course of committing
suicide, even if accidental, could not bring the offence within s80. This was because the
court did not think that s80 excludes the defense of accident from cases other than those in
the circumstances therein mentioned.
Appeal allowed.
The revolver was found to be in fully serviceable condition. Mention was made about the
pressure required to depress the trigger at ‘single’ and ‘double’ action.
The appellant’s version was that the discharge was unintentional. He had gone to the
Exchange not to get a gun but to borrow money. The deceased did not have cash on him but
SGCA guardhouse and the deceased handed his revolver to the
appellant and asked him to demonstrate shooting
techniques. The deceased took back his revolver
eventually and carried on his patrol duties, then
returned and asked the appellant to demonstrate
shooting techniques again.
The appellant then caused 3 live rounds to be discharged
from the revolver into the deceased. He thought the
deceased was dead and took his revolver and bullet
pouch, ash tray, and glass cup, and all CCTV tapes and
placed all of them at home.
He then went to a nearby NPP where he was arrested.
agreed to withdraw the money for him the next morning. They started chatting. He claimed
that the revolver was not loaded the first time he demonstrated shooting techniques and
asserted that he was unaware that it was loaded the second time it was handed to him. The
first 2 shots were discharged when the appellant demonstrated the ‘double-clicking’
technique. The third was supposedly discharged unintentionally when the appellant
somehow accidentally pulled the trigger a 3rd time.
The trial judge highlighted certain improbabilities in the appellant’s version which
pertained to the initial load status of the revolver, the probability of the deceased informing
the appellant of loading the gun, etc
The court affirmed the trial’s judge preference for the prosecution’s version of events.
However, it found that the trial judge had adopted an incorrect method of analysis of the
operation of the presumption of intention to cause physical injury under s4(2) of the Arms
Offences Act in that he presupposed he could choose whether or not to apply the
presumption. The court found “that the presumption was meant to be automatic and
comes into operation the moment a person uses or attempts to use any arm. It was
apparent to us that the parliamentary intention underlying the amendments was that
punishment for such offences should not be made dependent on the accused’s state of mind
due to the extreme gravity of arms offences”
The court also noted that the operation of s4 of the Act is subject to the general exceptions
contained in Chapter IV of the PC. However, the defence of accident was “not available to the
appellant since he did not possess a valid license for the revolver at the material time
and instantly failed the ‘lawful act’ requirement.”
The appellant had the burden to rebut the presumption in s4(2) and had to prove he
discharged the 3 rounds “without the intention to cause physical injury” to the deceased.
Appeal dismissed.
Tan Chor Jin The appellant was a former head of a secret society and
v. PP [2008] was convicted of an arms offence under s4 of the Arms
Offences Act. He had fired 6 rounds from a gun at the
SGCA deceased. The bullets hit Lim and killed him.
They were involved in illegal betting activities and
according to Tan, Lim owed him money but refused to
pay up. Lim instead told Tan he would send someone to
‘settle with him’
One night, Tan, after consuming drinks with his friends
was driven to Lim’s flat to persuade him to resolve their
differences. After been refused to see Lim, Tan returned
in the same car armed with a Beretta and a knife. He tied
the wife, daughter and maid up in a separate room.
He confronted Lim alone in the study room. Lim’s maid
testified seeing Tan hold the beretta very close to the
right side of Lim’s face. A shot was fired and Lim fell
backwards. Tan fled the country.
Tan was eventually arrested and extradited to
Singapore.
Defense of intoxication, accident and the right to private
defence was raised.
Leu Xing-Long The Appellant, Leu Xing Long, was convicted on one
v. PP [2014] charge under s376B(1) of the PC for having commercial
sex with a minor under 18 years of age. He was
sentenced to 15 weeks’ imprisonment by the District
Court. The appellant appealed against his conviction.
The Appellant admitted to having sexual intercourse
with the minor whom he procured from an online vice
ring and paid $450 for her sexual services. His defence
was that he had taken proper care and caution to
Elements to satisfy The court listed out 4 conditions for the defence of accident to succeed, namely:
in s80. 1. “the act done by the accused must be the result of ‘accident or misfortune’
2. the said act must be done ‘without any criminal intention or knowledge’
3. the said act must be lawful, and must be performed ‘in a lawful manner,
by lawful means’ and
4. the said act must be done ‘with proper care and caution’”
The court found that it was glaringly obvious the 3 rd and 4th conditions had not been
satisfied. Tan had no lawful reason to carry the gun with him and force his way into the flat
that morning…everything he did was unlawful, regardless of what his actual intentions
were.
The court acknowledged that ‘lawful act’ for the purposes of s80 is not defined in the PC,
and referred to the English common law view “that unlawful conduct may take the form
of either conduct which is unlawful in itself or conduct which would not be a crime
except for legislation stipulating it to be such.” Tan’s actions fell within both categories
and thus clearly could not amount to ‘lawful acts’ within s80.
It was found that the judge’s determination that there was no chance at all that the 6 shows
had been misfired was irrefutable. The trial judge had examined the force required to
discharge the gun and concluded the firing of the 6 shots required ‘determined
deliberateness’.
Appeal dismissed.
(a) Whether there is Being one of the general exceptions in the PC, I am of the view that s80 remains applicable
a presumption that as a possible statutory defence to exculpate an accused person for an offence under s
mens rea is an 376B(1), provided that the alleged exculpatory facts do come within s 80 in the first place
ingredient of an and provided that there is no specific statutory provision to curtail the scope of application
offence under s of the statutory defence in whole or in part in respect of that particular offence.
376B(1)? If so, has
this presumption The court referred to the definition of ‘accident’ and considered the 4 conditions required to
been displaced? be satisfied in order for the defence of accident to succeed.
ascertain that she was above 18 years of age by asking (b) Is s 376B(1) an The court found that there can be factual circumstances where both s79 and s80 defences
her for her age and identity card. She lied to him that she absolute or a strict are applicable.
was 18 years of age and produced the identity card of liability offence? ‘There may be circumstances where either the defence of accident under s 80 or of mistake
her elder sister to prove that she was above the age of of fact under s 79 could apply. This is because the circumstances which caused an accused
18. He believed her. If he had known that the minor was (c) Can s 80 PC be person to misconceive the facts and to act in a certain way, might also cause an ordinary
below 18 years of age, he would not have gone through raised in defence to person in the accused’s position not to foresee the effect of that act. Since the effect is not
with the sexual engagement. a charge under s reasonably foreseeable, it could be described as an accident’
376B(1)?
The defence argued that since Parliament had only excluded a s79 defence but not a s80
defence, the appellant should nevertheless be acquitted under the s80 defence although s79
was not available to him.

The court agreed with the trial judge’s findings that this argument was in substance the
same as the defence of reasonable mistake as to the age of the minor but under a different
label. It also found that the exculpatory facts relied upon by the appellant were all about his
mistaken view or belief of the minor’s age being above 18, which was formed as a result of
him not foreseeing or expecting that the prostitute could ever by below 18 since so much
care and caution had been taken by him to reduce the likelihood of that event happening.

‘In my view, all this is nothing more than a mistake made in ascertaining the correct age of
the prostitute and that is precisely the very defence that s 377D precludes him from
raising…no matter how reasonably the mistake came to be made, it was no defence to the
charge. To allow the Appellant to circumvent s 377D in this manner would be to subvert
Parliament’s intention and severely undermine the enforcement and purpose of s 376B read
with s 377D.’

Appeal dismissed.
 Defence of Mistake

Act done by a person bound, or by mistake of fact believing himself bound by law
76. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.

Act done by a person justified, or by mistake of fact believing himself justified by law
79. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a
mistake of law in good faith believes himself to be justified by law, in doing it.

‘…there must be a bona fide intention to advance the law, manifested by the circumstances attending the act which is the subject of the
charge; and the party accused cannot allege generally that he had a good motive, but must allege specially that he believed in good faith
that he was bound by law (s76) to do as he did; or that being empowered by law (s79) to act in the matter, he had acted to the best of his
judgment exerted in good faith.’

Elements of mistake of fact under s76 and 79:

(1) he or she had been induced by a mistake to commit the criminal act in question;
(2) the question was one of fact and not of law;
(3) the accused mistakenly believed that he or she was bound or justified by law in doing the criminal act; and
(4) the mistake was believed by him or her in good faith.

‘Good Faith’
52. Nothing is said to be done or believed in good faith which is done or believed without due care and attention.
Case Facts
Lim Chin Aik v. The Minister, acting under s9 of the Immigration Ordinance,
Regina [1963] made an order prohibiting the appellant from entering
Singapore.
Privy Council There was no evidence from which it could properly be
inferred that the order had in fact come to the notice or
attention of the appellant.
He was convicted of remaining in Singapore whilst prohibited
by the order made by the Minister, thereby contravening
s6(2) of the Immigration Ordinance.
PP v. Koo Cheh In this case the accused persons were charged with being
Yew and Anor concerned in importing 6 pianos which, being the products of
[1980] South Africa, were then, by law, prohibited by law.
Malaysia Federal They were convicted and appealed to the High Court. The
Court High Court held that on the facts of the case the accused had
no mens rea and therefore the convictions were quashed.
PP then applied for certificate to refer to the Federal Court.
Issues Judgment
The magistrate held that there was in this case no need for any evidence of mens
rea.
The court opined that even if the making of the order by the Minister be regarded as
an exercise of the legislative as distinct from the executive or administrative
function, the maxim cannot apply to such case as the present where it appears that
there is in Singapore no provision, corresponding, for the publication in any form of
an order of the kind made in the present case or any provision designed to enable a
man by appropriate enquiry to find out what ‘the law’ is.
Court basically held that the appellant could not possibly have known of the
existence of this ban and because the law did not impose on the authorities a
duty to publish the ban, the result was that there was “no practical or sensible
way” in which Lim could ascertain whether he was a prohibited person or not.
The court drew a distinction in the Ordinance itself between an order directed to a
particular individual on the one hand and an order directed to a class of persons on
the other.
Does a denial by Court considered the general proposition that it has “long been settled law that
the accused of ignorance of law will not excuse any person who has the capacity to understand the
knowledge of the law from the consequences of any action which transgress that law: R v Crawhaw”
relevant
prohibition order Court found that because of this, “the law therefore implies a duty on the part of a
entitle him to an resident if not to acquaint himself with a knowledge of, at least to so conduct
acquittal? himself as to conform at all times and conduct himself legitimately within the laws
of the country or he faces the consequences of his action”
Court was unable to “understand how and why a person actively engaged in the
importation of goods did not think it a duty he owed at least to himself to find out
what the law on importation of goods was and to act accordingly”
However, the court did consider that this “strict application of the rule of
ignorance has been somewhat tempered by a consideration, where it existed,
of a situation where a person could not possibly with reasonable diligence, if
he had reasons to put himself on enquiry, know of the existence of an adverse
law, prohibition or ban.”

Court went on to cite Lim Chin Aik v The Queen [1963], saying that the reason for
the acquittal was that there was no practical or sensible way in which Lim could
ascertain whether he was a prohibited person or not.

Per Lord Evershed MR in Lim Chin Aik – “that means that there must be
something he (the accused) can do, directly or indirectly, by supervision or
inspection, by improvement of his business methods or by exhorting those
whom he may expected to influence or control, which will promote the
observance of the regulations”

Court therefore opined that “the exception to the rule against ignorance of law as a
defence should not be extended beyond the cases where the defendant could not
possibly have known of the existence of the law he had offended against”

Court found in this case that the mistake as to the ban is a mistake of law and not of
fact – “the importers of the goods did not make a mistake as to the fact of the origin
of the goods but they themselves said they were ignorant of the statutory ban”.
Hence, appeal dismissed.

“Ignorance or mistake of fact may in some cases amount to an excuse on the

assumption that the accused acted under an honest and reasonable belief in a
state of affairs which if true would have justified the act done”
Tan Khee Wan The appellant was charged with providing public Whether Tan Court found that s18 was a strict liability offence and only had to consider if the
Iris v. PP [1995] entertainment without a valid licence under s18(1)(a) of the could establish the appellant was able to establish the defence of mistake of fact under section 79.
Public Entertainments Act. defence of mistake
SGHC The licence in question was only valid until 31/12/1993 and of fact under s79 To establish a defence of mistake of fact under s79 of the Penal Code, one must
Tan provided public entertainment in the early hours of of the PC, and by prove that the mistake was made in good faith. The court consented that it was an
01/01/1994. The irregularity on the license was due to a reason of that easy mistake to make, but it was not enough for the defendant to show that she had
mistake on the licensing officer’s part. The licensing officer’s mistake, believed made a mistake of fact, but she must also show that she believed in good faith that
intention was to issue a licence that would be valid until in good faith that she had a license.
01/01/1994. she had a valid
licence for the The test of whether a mistake was made in good faith is laid down in s52 of the
Appellant Appealed. relevant period. Penal Code – whether there was due care and attention.

Whether s18 was a The defence is not made out unless it is shown on a balance of probabilities that the
strict liability appellant exercised due care and attention. Burden of proof is on the appellant to
offence. show on a balance of probabilities that she acted under a mistake and by reason of
that she believed in good faith that she had a valid license for the relevant period.

Court held that although it was not apparent on the face of the licence that it was
not valid for the relevant period, it was nevertheless patent on its face that there
was something wrong with it. The mistake was so obvious that she ought to go back
to the licensing officer to inquire about it. It is not a mistake that a reasonable
person will make if he exercises due care and attention.

Therefore, defence of mistake not made out, Appeal dismissed.

Abdullah v. The appellant was charged with rape under s376 of the Penal Was the appellant ‘‘It is clear that if the appellant believed ‘in good faith’ that the complainant was over
Regina [1954] Code. justified by law 16 it would be a case of mistake of fact.”
because he
Mistake as to There was ample evidence that he had carnal knowledge of believed ‘in good The judge then considered if the appellant was justified by law because he believed
Consent the complainant and that her age was under 14. The appellant faith’ that the girl ‘in good faith’ that the girl was over 14 years of age, and thus concluded:
contended however, that he thought she was over 16. was over 14 years
of age? ‘‘…an act only acquires its criminal character by being forbidden by law. What the
The trial judge ruled that this belief, if it existed, was law does not forbid it allows, and what a law allows is I think justified by law.”
immaterial and refused to leave the matter to the
consideration of the jury. New trial ordered.
He was convicted and appealed to the Court of Criminal
Appeal on the point of law that he had reasonable grounds for
believing, and did in fact believe that the girl was more than
14 years of age and thus was entitled to be acquitted under
s79 of the PC.
 Intoxication

Intoxication when a defence

85. —(1) Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.
(2) 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 —
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission.

Effect of defence of intoxication when established

86. —(1) Where the defence under section 85 is established, then in a case falling under section 85(2)(a) the accused person shall be
acquitted, and in a case falling under section 85(2)(b), section 84 of this Code and sections 251 and 252 of the Criminal Procedure Code
2010 shall apply.
(2) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific
or otherwise, in the absence of which he would not be guilty of the offence.

Interpretation
(3) For the purposes of this section and section 85 “intoxication” shall be deemed to include a state produced by narcotics or drugs

Intoxication negates mens rea needed for the offence.

There are essentially 3 avenues through which the defence of intoxication can be raised, namely: [Tan Chor Jin v. PP [2008]
(a) Where a third party maliciously or negligently caused the accused to become so intoxicated that the accused did not know his
act to be wrong or did not know what he was doing (s85(2)(a))
(b) Where the accused was so severely intoxicated as to have been insane at the time of the alleged crime (s85(2)(b))
(c) Where the intoxication prevented the accused from forming the requisite mens rea of the offence in question (s86(2)))
 a. For the defence to be available, the accused has to prove on a balance of probabilities that by reason of his consumption of
alcohol he was so intoxicated that he was incapable of forming any intention for the offence. [Suradet Senarit v
PP[1993]] and [Indra Wijaya Ibrahim v PP [1995]]
i. “the defence in section 86(2) was not available to the petitioner, as the defence applied only where the mens rea
for an offence was intention and not other forms of mens rea” eg. knowledge or rashness. [Balasubramanian
Palaniappa Vaiyapuri v PP [2002]]
b. First, the accused must show evidence of his intoxication. In this regard, objective evidence of the accused’s level of
intoxication is crucial (Jin Yugang v PP [2003]).
c. Second, even if the accused can prove that he had consumed a considerable amount of alcohol, the facts must show that he
was so intoxicated that he could not form the intention which is a necessary element of the alleged offence. (Mohd
Sulaiman v PP [1994])

Case Facts Issues Judgment

Jin Yugang v. PP The appellant killed a fellow Chinese national. They were
[2003] colleagues who shared a rented room. The appellant had
consumed half a bottle of wine. An altercation broke out
SGCA between the appellant and the deceased.
The appellant was suddenly seen holding a knife and
charging at the deceased. The deceased ran out of the
room and the appellant chased after him. When the
appellant and deceased reached the ground floor, the
former stabbed the latter who was lying on the ground
numerous times. The appellant thereafter threw the
knife away, gave a few kicks to the deceased, walked
away a few steps and then turned back to kick the
deceased again a few more times.
A consultant psychiatrist opined that although the
appellant was intoxicated, he did not believe that the
appellant was so intoxicated that he could not appreciate
Whether the “The burden was on the defence to show, on a balance of probabilities, that the accused
appellant was was so intoxicated that he could not have formed the necessary intention to commit the
intoxicated to that offence he was charged with.” – Suradet v PP [1993] and Indra Wijaya Ibrahim v PP
he could raise the [1995]
defence of
intoxication. The court considered the objective evidence, namely the appellant’s conduct during and
after the stabbing and also the fact that he “was able to give a reasonable account of the
events up to the stage when he said that the deceased tried to attack him with a smashed
beer bottle and he took a knife from his pillow to defend himself. This indicated
knowledge and awareness. In Mohd Sulaiman v. PP [1994], the court dismissed the
defence of intoxication because of, inter alia, the accused’s ability to recount his activities
after he had stabbed the victim. That showed that the accused could not have been
seriously intoxicated.”
The court found that while the appellant had consumed ‘quite an amount’ of alcoholic
drinks, it did not follow that he was intoxicated to such an extent he did not know what he
was doing. “It is common sense that alcohol tolerance varies from person to person”
 the nature of his acts at that time.
Tan Chor Jin v. The appellant was a former head of a secret society and
PP [2008] was convicted of an arms offence under s4 of the Arms
Offences Act. He had fired 6 rounds from a gun at the
SGCA deceased. The bullets hit Lim and killed him.
They were involved in illegal betting activities and
according to Tan, Lim owed him money but refused to
pay up. Lim instead told Tan he would send someone to
‘settle with him’
One night, Tan, after consuming drinks with his friends
was driven to Lim’s flat to persuade him to resolve their
differences. After been refused to see Lim, Tan returned
in the same car armed with a Beretta and a knife. He tied
the wife, daughter and maid up in a separate room.
He confronted Lim alone in the study room. Lim’s maid
testified seeing Tan hold the beretta very close to the
right side of Lim’s face. A shot was fired and Lim fell
backwards. Tan fled the country.
Tan was eventually arrested and extradited to Singapore.
Defense of intoxication, accident and the right to private
defence was raised.
Conviction upheld.
How to distinguish “There are essentially 3 avenues through which the defence of intoxication can be raised,
between s85(2)(b) namely:
and s84. (a) Where a third party maliciously or negligently caused the accused to become so
intoxicated that the accused did not know his act to be wrong or did not know
Requirements of what he was doing (s85(2)(a))
s86(2). (b) Where the accused was so severely intoxicated as to have been insane at the time
of the alleged crime (s85(2)(b))
(c) Where the intoxication prevented the accused from forming the requisite mens
rea of the offence in question (s86(2)))”
First avenue (a):
Prima facie inapplicable on the facts as it was clear that any imbibing of alcohol by Tan
leading up to the shooting was completely of his own volition.
Second avenue (b):
The court acknowledged that s85(2)(b) has been identified as problematic because it is
also not immediately clear if the alcohol-induced insanity alluded to in the provision must
be long-standing or whether it can be merely transient (‘temporarily or otherwise’). The
court also reiterated that “the question of whether unsoundness of mind has been
established for the purposes of s84 is a question of fact to be decided in the light of any
relevant medical evidence.”
The court then decided that unsoundness of mind in s84 and insanity by reason of
intoxication in s85(2)(b) are different, in that “the cause of this state of mind to be proved
is different”
The latter refers to a “different basis for exoneration from that afforded by s84 as it is
grounded on intoxication-induced insanity. In contrast, the unsoundness of mind
embraced by s84 refers to an abnormal state of mind that covers diseases and
deficiencies of the mind, both of which are invariably permanent conditions. The
reference to ‘temporarily or otherwise’ in s85(2)(b) is neither accidental nor superfluous.
They do not refer merely to the temporary symptoms of effects of intoxication. Rather,
they refer to an abnormal state of mind that can, inter alia, be transient…s85(2)(b)

PP v. Astro Bin The deceased, a transvestite, performed fellatio on the
Jakaria [2010] accused. The deceased, who had been provided the
accused food and accommodation, then propositioned
SGHC him to engage in anal intercourse. The accused refused;
the deceased then incessantly cajoled and reminded the
accused of being ‘cultivated’ by the deceased.
A scuffle ensued during which the accused punched the
deceased. As the deceased was lying face down on the
floor, the accused tied up the deceased with a long-
sleeved shirt. The deceased’s death was caused by a
ligature tied around his neck.
The accused was charged with murder under s300c.
reinforces 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 s84, which must be
permanent”
The court finally found that on the facts, Tan could not prove, clinically or otherwise, that
he was suffering from intoxication-induced insanity to such a degree that he did not know
that his actions were wrong or did not know what he was doing…s85(2)(b) not satisfied.
Third avenue (c):
“2 requirements must be met before this subsection can be successfully invoked. First, the
accused must show evidence of his intoxication. In this regard, objective evidence of the
accused’s level of intoxication is crucial (Jin Yugang v PP [2003]). Second, even if the
accused can prove that he had consumed a considerable amount of alcohol, the facts must
show that he was so intoxicated that he could not form the intention which is a necessary
element of the alleged offence. (Mohd Sulaiman v PP [1994])”
Tan did not satisfy these requirements as his “ability to form intent was not impaired, and
there was no evidence of any alcohol related psychotic process”.
Appeal dismissed.
Effect of intoxication on the subjective assessment of loss of self-control
“The court took the view that the subjective assessment of whether the accused lost his
self-control was essentially a finding of fact. Such a finding of fact would only adhere to
and reflect reality if the accused’s state of intoxication (or lack thereof) is taken into
account. Any concern that an intoxicated man would be able to exonerate himself from an
offence solely because he was intoxicated could be alleviated as intoxication, at this stage,
is taken as one of the factors in determining whether he was in fact deprived of his
self-control. A finding of intoxication does not automatically in itself warrant the
operation of the defence of provocation, bearing in mind the need for the semi-objective
test that has to be satisfied for this defence as a whole…the effect of intoxication on the
defence of provocation relates only to the subjective element and the assessment of its
effect should be determined on a case-by-case basis, depending on the factual matrix of
each case.”
 The defence’s position was that the applying and
tightening of ligature around the neck was accidental or
unintentional.
Balasubramanian The appellant was charged for outrage of modesty under
v. PP [2002] s354 of the PC. He pleaded guilty and admitted that
whilst on board a flight he did use criminal force on a
flight stewardess by touching her right breast. He was
sentenced to 12 months’ imprisonment.
The appellant subsequently petitioned for a criminal
revision, arguing, inter alia, that his plea of guilt was not
qualified as he had informed the court during mitigation
that he drank heavily before the incident.
Kenneth Fook The accused was charged with murder. During the trial,
Mun Lee v. PP the sole defence relied upon by the appellant was
[2007] automatism. However, the trial judge rejected the
defence but held that the defence of intoxication was
made out and convicted him on the lesser charge of
culpable homicide not amounting to murder. The Court
of Appeal reversed the decision and held him guilty of
murder. The accused appealed to the Federal Court.
“this court, however finds it proper to take into account and consider with some weight
the effect of alcohol as another factor in the subjective determination of whether or not
the accused had in fact lost his self-control”
S86(2) applies To make out a defence under s86(2), “the accused had to prove on a balance of
only to where probabilities that by reason of his consumption of alcohol he was so intoxicated that
mens rea for an he was incapable of forming any intention for the offence.”
offence is
intention. The judge found that in any event, “the offence in this case involved the mens rea of
‘knowledge’ and not intention and the defence in s86(2) was not available to the
petitioner, as the defence applied only where the mens rea for an offence was
intention and not other forms of mens rea.”
“It is to be noted that an anomalous consequence of the drafting in s86(2) is that it
applies only where the mens rea for an offence is intention, in contradistinction to
offences requiring other forms of mens rea specified in the PC, for example,
knowledge or rashness.”
The application of The trial judge was satisfied that the twin requirements of s300d had been satisfied.
s86(2) in relation
to the mens rea for The question therefore was whether, having come to a finding that the appellant was
the offence of intoxicated at the material time the learned judge was precluded as he held, by reason of
murder as defined the application of s86(2) from considering s300d despite the availability of evidence to
in s300 with the warrant such consideration.
factual matrix of
the case forming The Court of Appeal disagreed with the trial judge’s approach by emphasizing that
the backdrop ‘knowledge’ as embodied in s300d is also a mens rea for the offence of murder. The Court
of Appeal then referred to CJ YPH’s dicta in Juma’at bin Samat v. PP where it was held
that where s300d had been established s86(2) did not apply.
The current court thus held that s86(2) only affected offences which require intention,
specific or otherwise, and excludes other types of mens rea. But since s300d involves
merely knowledge and not intention, it is therefore not within the ambit of s86(2). The
court thus agreed with the direction taken by the Court of Appeal.
Affirming the trial judge’s approach would tantamount to side-stepping s300d as one of
the elements if mens rea for the offence of murder. It would mean that on a charge for
murder where the defence is intoxication an accused person does not have to be
concerned with s300d…such an approach would render s85 otiose.

The court held the answer to the question was that s300d, being one of the categories of
mens rea for the offence of murder as defined in s300, should not be disregarded even if
s86(2) is raised. The reason is simply because under s86(2), the fact of intoxication is only
a circumstance to be taken into account in proving intention where the mental element of
an offence is one of intention, specific or otherwise and if knowledge is the required
mental element s86(2) does not apply.
 Unsoundness of Mind

Act of a person of unsound mind.

84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

Criminal Procedure Code (Cap 68) Provisions

Acquittal on ground of unsound mind.

251. If an accused is acquitted on the ground that at the time at which he is alleged to have committed an offence he was by reason of
unsoundness of mind incapable of knowing the nature of the act as constituting the offence or that it was wrong or contrary to law, the
finding must state specifically whether he committed the act or not.

Safe custody of person acquitted.

252 – (1) Whenever the finding states that the accused committed the act alleged, the court before which the trail has been held shall, if
that act would but for the incapacity found have constituted an offence, order that person to be kept in safe custody in such place and
manner as the court thinks fit and shall report the case for the orders of the Minister.
(2) The Minister may order that person to be confined in a psychiatric institution, prison or other suitable place of safe custody
during the President’s pleasure.

Case Facts of Case Issues Judgment / Ratio:

M’Naughten’s Daniel M’naughten shot and killed Edward
Case [1843] Drummond, the secretary to the Bristish Prime
Minister whom he mistook for the Prime Minister.
House of Lords
He was acquitted at his trail on the ground that he
was not of sound mind at the time of shooting.
M’Naughten Rules. “notwithstanding the party accused did the act complained of with a view,
under the influence of insane delusion, of redressing or revenging some
supposed grievance or injury, or of producing some public benefit, he is
nevertheless punishable according to the nature of the crime
committed, if he knew at the time of committing such crime that he
was acting contrary to law.”

PP v Rozman Bin Respondents were jointly tried in the High Court on
Jusoh and Anor charges of drug trafficking under the Misuse of Drugs
[1995] Act (Cap 185).
SGCA Rozman was charged with having trafficked in a
bundle A containing 1040.8g of cannabis. The second
respondent, Razali, was charge with having abetted
Rozman in the commission of the offence. The third
charge jointly charged both Rozman and Razali with
having in their possession one other bundle B
containing no less than 943.3g of cannabis.
In his defence, counsel for Rozman claimed that he
did not have the mens rea of trafficking on account of
his subnormal intellect. Evidence was given that
Rozman was educationally subnormal and of
borderline IQ and that he could be easily
manipulated by others and in addition, that he might
not have been able to discern right from wrong.
“every man is to be presumed to be sane and to possess a sufficient degree
of reason to be responsible for his crimes until the contrary be proved”
“To establish a defence on the ground of insanity it must be clearly
proved that, at the time of the committing of the act the party accused
was laboring under such a defect of reason, from disease of the mind,
as not to know the nature and quality of the act he was doing, or if he
did know it, that he did not know he was doing what was wrong”
“the usual course, therefore, has been to leave the question to the jury
whether the party accused had a sufficient degree of reason to know that he
was doing an act that was wrong”
Whether a low IQ Judge held that the trail judge “has confused the presence of mens rea”.
and intellect
would constitute a The fact that Rozman was a victim of an entrapment by CNB agents, or the
defence of fact that the CNB officer had no taken an excessively active and
unsound mind. overpowering role in persuading Rozman to sell the drugs, all of which “do
not constitute a defence to the charge; nor can they in any way be said to
eradicate Rozman’s mens rea in trafficking in the drugs which he had
agreed to sell”
“low or subnormal intellect is not unsoundness of mind and is not a
defence to a criminal charge, and an educationally subnormal person
can be criminally culpable for his actions…Rozman’s “low intellect”
and his disposition of being easily susceptible to manipulation by
others is not a defence to a criminal charge. Nor can such low intellect
and malleable disposition diminish or eradicate the presence of mens
rea.”
Appeal allowed.
 Trail judge acquitted Rozman on the grounds that he
could have been easily manipulated due to his
subnormal IQ.

PP Appealed
PP v Boon Yu Kai The Respondent was charged under section 45(b) of Knowing the Judge held that it was clear “that the respondent’s belief that it was not
John [2004] the Telecommunications Act for knowingly nature of the act wrong or unlawful to make the telephone call to the police was inextricably
transmitting a false message to the police that a and knowing linked to his unsoundness of mind.”
SGHC person driving a dark green Corolla bearing a specific whether it was
licence plate number was intending to kill one contrary to the “He knew the nature of his act and it was his unsoundness of mind that
Madam Tan who was wearing a yellow dress. law or not. eradicated the presence of the requisite mens rea on his part.”

The psychiatrist for the Prosecution testified that the
respondent knew that nature of his act but that he
was of unsound mind at the time of the alleged
offence. It was this unsoundness of mind that led the
respondent to believe that it was not wrong or
contrary to the law to give his message to the police
The judge therefore agreed with the appellant that the respondent should
be acquitted on the ground of his mental disorder because he was, by
reason of his unsoundness of mind, “incapable of knowing that his act
was wrong or contrary to law”

The magistrate found that the respondent lacked the

requisite mens rea for the offence, not because of his
delusional disorder, but because he genuinely
believed in the truth of the information that he gave
the police. Trail judge held AR was not established
and acquitted the respondent.

PP appealed.
Lim Chwee Soon The Appellant stole a Yamaha motorcycle and Whether the Judge referred to the judgment in the lower court “PP v Lee Chwee Soon
v PP [1996] together with his accomplice, Lau, proceeded to rob a appellant was [1996] SGHC 215… to successfully raise this defence, it must be proved that
shop, firing a Colt.45 indiscriminately. The appellant acting in the accused was (a) incapable of knowing the nature of the act or (b)
SGCA then shot the sales manager when he stood up and unsoundness of incapable of knowing that what he had done was either wrong or contrary
took two steps towards the appellant. The appellant mind. to law”
took 4 Rolex watches valued at $81,821.96.
The Appellant and Lau made a successful getaway.
However, when the appellant and Lua took a bus to
Kuala Lumpur, the former was arrested and later
brought back to Singapore where he was charged
with discharging seven bullets from a Colt .45
causing physical injury whilst committing a robbery
contrary to s4A of the Arms Offences Act (Cap 14).
Judges held that “the evidence of the planning and the execution of the
armed robbery” that “these were the acts of a rational and thinking man
who knew what he was doing and who knew that what he was doing
was wrong. The steps he took to avoid detection both before and after the
armed robbery amply demonstrate this”
Appeal dismissed.

Judge convicted the appellant.

Appeal to SGCA.
 Defence of Duress

Act to which a person is compelled by threats

94. Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to
do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person or any other person will
otherwise be the consequence:
Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant
death, place himself in a situation by which he became subject to such constraint.

Explanation 1 – A person who, of his own accord, or by reason of a threat of being beaten, joins gang-robbers knowing their character, is
not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by
law.
Explanation 2 – A person seized by gang-robbers, and force by threat of instant death to do a thing which is an offence by law – for
example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and plunder it – is entitled to the
benefit of this exception.

PP v Ng Pen Tine [2009] SGHC: suggested to prove duress -

(i) “the harm that the accused was threatened with was death
(ii) the threat was directed at the accused or other persons which would include any of his family members
(iii) the threat was of “instant” death
(iv) the accused reasonably apprehended that the threat will be carried out; and
(v) the accused had not, voluntarily or from a reasonable apprehension of harm to himself short of instant death, placed himself in
that situation”

‘Instant’ death:
Mohd Sairi Bin Suri v PP [1997] - “M’Growther’s Case 168 E.R 8, and R v Stratton 99 ER 156 that duress to be pleaded successfully must be
imminent, extreme and persistent”
PP v Ng Pen Tine [2009] – “The word “imminent” suggest that the threatened harm need not be carried out immediately or within a very short
time span. Instead, there could be a time lapse between the accused’s refusal to break the law and the coercer’s execution of the threat”. Note:
SGHC decision.
 Opportunity to seek relief or help:
Mohd Sairi Bin Suri v PP [1997] - “The defence would not succeed if the threat was that death would be caused at a later date or time. In
particular, where a person had an opportunity of seeking relief or help, or where he had the time to remove himself physically from the
possibility of instant death he could not claim the protection under that provision”
PP v Ng Pen Tine [2009] – “The test for whether there was a reasonable opportunity to escape is a subjective one, i.e. it was the 2nd accused’s
reasonable belief which mattered”

Case Facts of Case Issues Judgment / Ratio:

Mohd Sairi Bin The Appellant was convicted and sentenced to death in
Suri v PP [1997] the High Court for having in his possession 124.38g of
diamorphine for the purpose of trafficking, on offence
SGCA punishable under section 5(1)(a) read with s5(2) and
punishable under section 33 of the Misuse of Drugs Act.
Defence claimed that the appellant was forced to carry
and deliver the drugs as Joe had threatened to harm
him and members of his family.
Trail judge did not believe the appellant was so
threatened.
Whether the Judge held that the trail judge was justified in coming to the conclusion
appellant was that the evidence added by the appellant was because he needed a way to
under duress. raise the defence under section 94.
However, the court then went on to say that “even accepting the evidence
of the appellant the defence of duress would still fail”.
“The defence would not succeed if the threat was that death would be
caused at a later date or time. In particular, where a person had an
opportunity of seeking relief or help, or where he had the time to
remove himself physically from the possibility of instant death he
could not claim the protection under that provision”

The appellant appealed. “only fear of immediate death would be sufficient excuse”

“M’Growther’s Case 168 E.R 8, and R v Stratton 99 ER 156 that duress to

be pleaded successfully must be imminent, extreme and persistent”

Appeal dismissed.
PP v Ng Pen Tine The two accused were charged with trafficking in 61 How the defence Judge laid out the following requirements to be satisfied before the plea of
and Anor [2009] packets of diamorphine. of duress was duress may be successful:
made out in this (vi) “the harm that the accused was threatened with was death
SGHC The second accused had arrived in a Malaysian case. (vii) the threat was directed at the accused or other persons
registered vehicle to meet the first accused to hand which would include any of his family members
over the drugs. (viii) the threat was of “instant” death
(ix) the accused reasonably apprehended that the threat will
At the trail, the second accused successfully raised the be carried out; and
defence of duress. (x) the accused had not, voluntarily or from a reasonable
apprehension of harm to himself short of instant death,
placed himself in that situation”

Court took a wider approach to “The word “imminent” suggest that the
threatened harm need not be carried out immediately or within a
very short time span. Instead, there could be a time lapse between
the accused’s refusal to break the law and the coercer’s execution of
the threat”

Court was satisfied that the 2nd accused was indeed threatened with
‘instant’ death within the meaning of s94. The fact that that Ah Xiong had
conveyed to the 2nd accused the relative ease at which he would be able to
hire a killer, and even though he was not present, his men were watching
the 2nd accused very closely, showed that Ah Xiong’s threat of death
continued to operate on the 2nd accused.

In rebutting the contention that the 2nd accused ought to have escaped
where a reasonable opportunity presented itself to an authority. The court
was of the opinion that “these actions would in reality not have been
available to the 2nd accused. The test for whether there was a
reasonable opportunity to escape is a subjective one, i.e. it was the
2nd accused’s reasonable belief which mattered”. In this case, the 2nd
accused believed Ah Xiong to be a very influential and powerful gangster,
 and feared the consequences that would flow should he have alerted the
respective authorities. Alerting would have only compounded the matter.
“As a general rule, there could be situations where no amount of police
protection would be effective to counter the threats levied at the accused
and the accused’s family members”. Judge was of the opinion this case was
one such instance.

Overall, the judge found that the 2nd accused “had no alternative but to do
what he did because he was laboring under a reasonable and genuine fear
for his and his family’s safety”. Hence he had successfully shown on BOP
that he did not know or suspect that there was any controlled drug in his
car, and even if he did, he did not know or suspect that there was heroin,
and he was acting under duress at all material times.

Charge against 2nd accused acquitted.

PP v The accused, a Malaysia national, was arrested at Whether there Court agreed with the trial judge’s holding that:
Nagaenthran A/L Woodlands Checkpoint and charged with the offence of was duress. 1. “there was no credible evidence of a threat to kill Shalini; and
K Dharmalingam illegality importing into Singapore not less then 42.72g 2. even if there was such a threat, it could not be said that it had
[2011] of diamorphine under section 7 of the Misure of Drugs “reasonably caused the apprehension that instant death to
Act. [Shalini] would otherwise be the consequence” as is required
SGCA under section 94.”
The accused was riding pillion on a motorcycle when
he was stopped at Woodlands checkpoint and the Hence, no duress under section 94.
diamorphine was then contained in a newspaper-
wrapped bundle secured by yellow tape over the
accused’s left thigh, concealed under the outer pants he
was wearing at the time.

A CNB officer testified that the appellant mentioned

that the bundle contained ‘thool’, tamil for drugs.
Another officer also testified that the appellant
answered ‘heroin’ when asked about the contents of
the bundle.

In the defence, the accused pleaded the lack of

knowledge of the actual contents of the bundle and that
he was under duress by one King because he had
earlier threatened to kill his girlfriend Shalini.

The trail judge found that the accused had actual

knowledge that the bundle contained heroin, had failed
to rebut the presumption that he knew the nature of
the drug under section 18(2) of the MDA and the
defence of duress was not made out.

Accused appeal to Court of Appeal.

 Defence of Private Defence

Nothing done in private defence is an offence

96. Nothing is an offence which is done in the exercise of the right of private defence.

Right of private defence of the body and of property

97. Every person has a right, subject to the restrictions contained in section 99, to defend —
(a) his own body, and the body of any other person, against any offence affecting the human body;
(b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Right of private defence against the act of a person of unsound mind, etc.
98. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding,
the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every
person has the same right of private defence against that act which he would have if the act were that offence.

Acts against which there is no right of private defence

99. —(1) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if
done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by
law.
(2) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly
justifiable by law.
(3) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised

(4) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
When the right of private defence of the body extends to causing death
100. The right of private defence of the body extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any
other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions:
(a) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(b) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(c) An assault with the intention of committing rape;
(d) An assault with the intention of committing non-consensual penile penetration of the anus;
(e) An assault with the intention of kidnapping or abducting;
(f) An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will
be unable to have recourse to the public authorities for his release.

When such right extends to causing any harm other than death
101. If the offence is not of any of the descriptions enumerated in section 100, the right of private defence of the body does not extend to the
voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant
of any harm other than death.

Commencement and continuance of the right of private defence of the body

102. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or a
threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body
continues.

When the right of private defence of property extends to causing death

103. The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any
other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, is an
offence of any the following desciptions:
(a) Robbery;
(b) House-breaking by night;
(c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the
custody of property;
(d) theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exercised.

When such right extends to causing any harm other than death.
104. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, is theft,
mischief, or criminal trespass, not of any of the descriptions enumerated in section 103, that right does not extend to the voluntary causing death,
but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.
Commencement and continuance of the right of private defence of property
105. (1) The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
(2) The right of private defence of property against theft continues till the offender has effected his retreat with the property, or till the
assistance of the public authorities is obtained, or till the property has been recovered.
(3) The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person
death or hurt or wrongful restraint, or as long as the fear of instant death or of instant hurt or of instant personal restraint continues
(4) The right of private defence of property against criminal trespass or mischief, continues as long as the offender continues in the
commission of criminal trespass or mischief.
(5) The right of private defence of property against house-breaking by night continues as long as house-trespass which has been begun
by such house-breaking continues.

Right of private defence against a deadly assault when there is risk of harm to an innocent person
106. If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is
so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the
running of that risk.

Murder
300. Except in the cases hereinafter excepted culpable homicide is murder –
…

Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property,
exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without
premeditation and without any intention of doing more harm that is necessary for the purpose of such defence.
Comparison between s96’s general defence of private defence with Exception 2: Tan Chor Jin v PP [2008]
 “s96 of the Penal Code operates as a general defence that will acquit an accused entirely of an offence, Exception 2 operates only as a defence
to the specific offence of murder and does not exonerate the accused from liability for culpable homicide not amounting to murder, which is
punishable under section 304 of the Penal Code. As a matter of logic, this must mean that it is more difficult to plead the general exception of
the right to private defence as compared to Exception 2”
 “Lack of premeditation does not feature in the scheme of ss 96-106 of the PC”
 “Good faith, which is a requirement under Exception 2 but not under s96 (except for the purpose of Illus (b) to section 98 and ss 99(1)-
99(2))”

In a situation where the defender has killed a person while purporting to exercise the right of private defence: Tan Chor Jin v PP [2008]
(1) “Were there circumstances giving rise to the right of private defence?
If ‘yes’ both the general plea of private defence and Exception 2 may be available. If ‘no’ both pleas are unavailable and the inquiry is at an
end

(2) Was the [defender] confronted with one of the specific types of threats mentioned in section 100 or 103 [of the PC], and did his or her act of
killing constitute no more harm than was necessary to inflict for the purpose of private defence?
If ‘yes’ the general plea of general defence is likely to be available. If ‘no’ the general plea is unavailable but Exception 2 may be available.

(3) Was the [defender]’s act of killing done without premeditation and without an intention of doing more harm than was necessary for the
purpose of private defence?
If ‘yes’ Exception 2 is likely to be available. If ‘no’ the defence is unavailable

The second of the scenarios postulated above presuppose, of course, that section 97 and 99(3) of the PC are fulfilled where the defender seeks to rely
on section 96 of the PC”

Pre-conditions of Private Defence

1. Defender must be subjected to an offence. Tan Chor Jin v PP [2008]
 S97 -> right of private defence only arises when an offence affecting the human body or property was being committed against defender or
another person -> determined by law -> that the law alone decides this is affirmed in s98.
 Where the defender mistakenly believes that an offence is about to be committed -> mistaken belief based on reasonable grounds (s79) ->
defender entitled to right of private defence
2. Defender must have attempted to seek help from the relevant public authorities if there was reasonable opportunity for him to do so. Tan Chor Jin
v PP [2008]
 S99(3) -> There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities ->
objective inquiry -> should be read as denying existence of right of private defence in situations where someone was threatened with
violence in the future

Conditions for Private Defence (General defense)

1. Need for a reasonable apprehension of the danger (objective – [soosay (RATIO), subjective – tan chor jin (DICTA)]
 Soosay v. PP - The test of whether reasonable apprehension of danger to life “obviously an objective one”.
 S100 & s103 -> accused’s apprehension must be based on reasonable grounds.
 Tan Chor Jin v. PP -> ‘the defender must prove that, at the time of acting in private defence, he reasonably apprehended danger due to an
attempt or a threat by the victim to commit an offence affecting the body. This was a subjective test.’ (note, may be obiter dicta in this case)
2. Duration of the right of private defence
 Justificatory nature of private defence of person or property -> people are afforded the right only so long as the danger continues
3. Use of necessary force (objective-subjective test – some due allowance is allowed. Objective test put on the circumstances of the accused)
 S99(4) -> ‘the right of private defence in no case extends to the infliction of more harm than it is necessary to inflict for the purpose of
defence’
 Whether the right of private defence was exceeded  the test is a subjective test per Soosay v PP.

To raise defence of Private Defence to Exception 2 (Excess of PD – Special defence): Soosay v PP.
(a) the right of private defence had arisen – preconditions must be satisfied
(b) the right was exercised in good faith;
- Gour in The Penal Code of India (10th Ed, 1987) stating the requirement of good faith was “whether the offender 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”.
(c) the death was caused without premeditation; and
(d) the death was caused without any intention of doing more harm than was necessary for the purpose of such defence (Subjective)
 To raise general exception of the right to private defence of the body (s96), have to fulfilled these conjunctive requirements: Tan Chor Jin v
PP [2008] DICTA.
(a) Save for the situation where the defender is defending himself against an act of a person of unsound mind (s98 of PC), the defender must
show that an offence affecting the human body has been committed or is reasonably apprehended (s97 of PC)
(b) The defender must show that there was no time to seek the protection of public authorities (s 99(3) of PC). The test for whether the defender
had time to have recourse to the protection of the public authorities is an objective one. Further, the defender should not be expected to seek
the protection of the public authorities if the time needed to do so would result in the mischief being completed.
(c) If the defender was the aggressor at the material time, it is prima facie less likely that he had a right of private defence. If deadly weapons
were used by the defender from the outset, it is very unlikely that the right of private defence would ever arise, as the intention of the
[defender] is clearly discernible.
(d) The defender must prove that, at the time of acting in private defence, he reasonably apprehended danger due to an attempt or a threat by
the victim to commit an offence affecting the body (this was a subjective test – obiter dicta in that case?).
(e) Whether the defender has killed the victim, he has to prove that the offence which occasioned the exercise of the right of private defence was
one of the offences listed in s100.
If (e) is not satisfied, his right of private defence will not extend to the causing of the victim’s death, although s101 would still permit to cause ‘any
harm other than death’ to the victim.
(f) The defender must prove that the harm caused to the victim was reasonably necessary in private defence. Due allowance should be given to
the dire circumstances under which the defender was acting.

Case Facts Issues Judgment

Soosay v. PP The appellant was charged with the murder of the Was the defence of The court found that the trial judge failed to sufficiently direct his mind to the
[1993] deceased by stabbing him to death. The appellant and Private defense unchallenged and uncontradicted evidence of Soosay and hence failed sufficiently to
his friend, Kuppiah, had confronted the deceased on made out? direct his mind to the question of premeditation and the statutory exceptions to s300
SGCA. suspicion of him stealing from another friend. on which Soosay’s defence was based.

The deceased, upon confrontation, became abusive.
Kuppiah threatened the victim with assault. The victim
then drew out a knife and pointed it at Kuppiah and
made as if to go at the latter with the knife. The appellant
kicked the victim in the stomach and the victim fell and
lost hold of the knife. The appellant did not go for the
knife until he noticed that the victim was reaching out
Soosay had to prove that (Exception 2)
(a) the right of private defence had arisen;
(b) the right was exercised in good faith;
(c) the death was caused without premeditation; and
(d) the death was caused without any intention of doing more harm than was
necessary for the purpose of such defence.
for it. The appellant picked it up and stabbed the victim’s
buttock when he rushed at the appellant. The victim
grabbed the appellant’s arm and the appellant stabbed
the victim a second time to free himself, the first fatal
wound. The victim was unrelenting and charged again
and ran into the knife, inflicting the second fatal wound.
The appellant was convicted under s300c of the PC.
The court examined the sequence of events and found that it seemed that there was
“no premeditation on the part of Soosay to engage Lim in a fight” to recover the gold
chain. Lim was plainly the aggressor despite the fact it was Soosay armed with the
knife. (c) satisfied.
The test of whether reasonable apprehension of danger to life “obviously an
objective one”.
The court found that the learned trial judge was right in concluding that ‘there was no
danger or apprehension of any grievous bodily harm to him [Soosay] after he had
kicked the deceased [Lim] and deprived the deceased of the knife.’ The court referred
to s102 and found that any apprehension of danger to Soosay “ceased the moment the
knife was dislodged from Lim’s hold and Soosay had taken possession of it.” Therefore,
(a) failed.
Even if the right of private defence had not ceased or had resumed when the victim
charged at Soosay, it was ‘abundantly clear’ that Soosay had inflicted more harm than
necessary for the purpose of defence.
Applying s99(4), the court had to consider questions of “good faith, want or
premeditation and want of intention of doing more harm than is necessary for the
purpose of such defence”
Court referred to Gour in The Penal Code of India (10th Ed, 1987) stating the
requirement of good faith was “whether the offender 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”. Hence, the court was satisfied
that Soosay acted in good faith in defending himself. (b) satisfied.
The court then considered the subjective test of whether the right of private defence,
if the right of private defence was available, was exceeded. The court found that the
“use of a knife on an enraged but unarmed person cannot be justified when the person
can surely be quietened by other means, for example by a few well-aimed punches or
being subdued physically by Soosay and Kuppiah acting together”
 The court thus held that the right of private defence, if it is at all applicable in this case,
was far exceeded by Soosay. (d) failed.

Appeal dismissed.

PP v Seow The accused was a detainee at the medium security Whether he could Court considered section 99(3) of the penal code which “provides that there is no right
Khoon Kwee prison and so was the deceased. rely on the defence to private defence in cases where there is time to have recourse to the protection of
[1988] of ROPD. the public authorities”. Hence, since at the time when the accused first encountered
One day, both had a quarrel. The deceased was taken the deceased and they were staring at each other, and if the accused had reasonable
SGHC away for questioning and put into an isolation ward for Time to recourse to apprehension that he might be beaten up, the accused had “time to have recourse to
some four hours. The accused found a piece of glass at the protection of the protection of the prison officers” instead of proceeding to collect the piece of glass
the rear of an empty shed, and using a piece of wood he public authorities. hidden. Thus, the accused was not entitled to exercise the ROPD.
knocked it into the shape of a knife with a pointed end.
He then hid the pointed glass beneath the sink near the Accused made out a defence of sudden fight, found guilty of offence of culpable
mess hall. homicide not amounting to murder by causing the death of the deceased punishable
under section 304(b) of the Penal Code.
On the day of the incident, both were doing exercise and
stared at each other. The accused then went and took the
piece of glass which he had previously hidden. The
deceased then provoked and punched the accused on
the left eye. Following that they fought and the accused
stabbed and slashed the deceased, inflicting one fatal
stab wound at the chest.

The accused was charged with murder.

Sainal Abidin Appellant was charged in the High Court for the offence Was there excessive The counsel for the appellant conceded that the appellant had exceeded his right of
Bin Madang v of murder under section 302 of the Penal Code. The use of force? private defence due to the use of an iron rod with a sharp edge to inflict injuries upon
PP [1999] medical evidence led by the prosecution showed that the the deceased.
deceased sustained numerous stab wounds and died as a
Court of Appeal, result of those wounds. Trail judge correctly evaluated the evidence from both sides and accepted the version
Malaysia as described by the witnesses that “the deceased would appear to have no chance at all
An eye-witness further revealed that the accused had to defend himself, let alone attacking the accused”.
stabbed the deceased unprovoked, without quarrel or
fight and in such a manner that the deceased was not Trail judge ruled that the issue of self-defense did not arise.
able to defend himself.

The appellant raised the defence that he had no
intention to kill the deceased and relied on the right of
private defence.
Lim Chin Chong The accused was a 19-year-old Malaysia who worked as
v PP [1998] a freelance male prostitute, was convicted of murdering
the deceased, a 65-year-old man who ran a brothel for
SGCA male prostitutes at his residence.
The deceased had offered to pay him for anal sex at the
material time. When the accused refused, the deceased
forcibly pulled him over and kissed his face. The
appellant responded by punching the deceased’s face,
causing the latter’s nose to bleed. The deceased
screamed for help, threatening that he would get help
from secret society members to deal with the appellant.
The appellant then tied up the deceased and later
bludgeoned him to death with repeated blows on the
head with a wooden pestle.
On appeal, the appellant raised the defence of right of
private defence.
Roshdi v. PP The appellant was an informer of the CNB. He was
[1994] convicted of the murder of a CNB officer.
SGCA Both were involved in horse betting activities and would
also bet against each other. The appellant claimed that
he had lost $4370 to the deceased and the deceased had
turned up at his flat to demand the money back.
After discussions broke down, the deceased started
assaulting the appellant. The appellant claimed he was
punched in the fact, mouth, head and ears. Suddenly, the
deceased kicked him on his abdomen, felling him. He
picked up a mortar he saw in the kitchen. The deceased
Court of appeal were satisfied that the trail judge committed no errors.
Appeal dismissed.
Whether the defence The counsel for the defendant sought to rely on 100(c) and 100(d) of the Penal Code
of ROPD could be which was the ROPD in the situation of an assault with the intention of committing
made out. rape (c), and an assault with the intention of gratifying unnatural lust (d).
However, the defense was not available to the appellant as the court reasoned that the
“blow to the deceased’s nose” was able to subdue the deceased, and the “threat to set
secret society members on the appellant was hollow and was not an immediate
threat”.
In their view, “the right of private defence had not arisen at all and even if it had, the
punch on the nose was amply sufficient for the appellant to defend himself, abate any
threatened assault and make his escape. The further concerted assault with the
long wooden pestle cracking the deceased’s skull was more harm than was
necessary for the purpose of defence and by reason of section 99(4) deprived
the appellant of the right of private defence.”
Appeal dismissed.
Whether ROPD was The court found that this was not a premeditated killing. However, it had to be shown
made out. that there was no intention of doing more harm than was necessary for the purpose of
such defence.
The court found that the appellant was exercising the right of private defence when
the appellant first struck the deceased with the mortar as he thought the deceased was
going for his revolver.
The court found that the appellant’s belief that the deceased was armed with a
revolver was a reasonable assumption and that it was also a reasonable assumption
that the deceased was going for his revolver when the appellant noticed the deceased’s
hand going to his waist. The court obtained the impression that the appellant suffered
 was coming at him, trying to unzip his waist pouch to get
his service revolver. The appellant swung the mortar
and hit the deceased on the body. The deceased pushed
the appellant back and started choking him. When the
appellant could not breathe, he used the mortar to hit
the deceased on the head.
The appellant was convicted of murder.
Main thrust of the defence was that he did not have the
intention to kill the deceased.
PP v Lee Twe The respondent, Lee, was prosecuted for voluntarily
Jeat [1994] causing hurt to one Lim who suffered injuries to his
teeth and lower lip, and a 2cm preauricular haematoma
SGHC. and a contusion to the left groin.
The magistrate found the respondent guilty of having
voluntarily caused hurt to Lim but held that he had, on a
balance of probabilities, done so in exercise of his right
of private defence and acquitted.
Prosecution appealed, arguing that Lee had exceeded his
right of private defence.
a relentless assault and was fearful of being strangled and shot. Furthermore, the fact
that the deceased was of a “stronger physique than the appellant had overpowered the
appellant and had had him at his mercy when the appellant struck him on the head
with the mortar”.
The court was unable to draw the inference that the appellant intended to do more
harm than was necessary for the defence of the right of private defence.
The court however found that although the appellant acted in good faith in the
exercise of the defence of the right of private defence and without premeditation, he
did “exceed his right of private defence when he struck the deceased on his head
with the mortar, which, after all, is a solid and weighty object, more than once.”
PD exceeded. EPD granted.
Courts allowed defence of sudden fight. Appeal allowed.
Whether Lee had Court found no reason to differ from the finding that the hurt suffered by Lim was
exceeded his ROPD. voluntarily caused by the respondent.
Court; stated that the right of private defence in itself “could not have translated into
an untrammeled liberty for the respondent to employ any amount of force he chose”,
since under s 99(4) the right cannot extend to inflicting more harm than it is necessary
for the purpose of defence.
Court went to consider the “huge disparity between the physiques of the two men”
as the respondent was “a whole 33kg” bigger than Lim. Court could not accept the
magistrate’s finding, as the bigger party “cannot be entitled to do more than ward off”
the blows. “Certainty, he cannot be allowed to put his physical superiority to such use
as to “beat up”” the other party. The court “did not think it lay within the ambit of
private defence in this case for the respondent to punch Lim with such ferocity
as to lacerate his mouth and knock his teeth backwards.”
Court said that the respondent should have “merely shielded himself from Lim’s blows
and then alerted the police” as it was clear that “Lim’s blow did not carry that much
force at all”.

Tan Chor Jin v. The appellant was a former head of a secret society and
PP [2008] was convicted of an arms offence under s4 of the Arms
Offences Act. He had fired 6 rounds from a gun at the
SGCA deceased. The bullets hit Lim and killed him.
They were involved in illegal betting activities and
according to Tan, Lim owed him money but refused to
pay up. Lim instead told Tan he would send someone to
‘settle with him’
One night, Tan, after consuming drinks with his friends
was driven to Lim’s flat to persuade him to resolve their
differences. After been refused to see Lim, Tan returned
in the same car armed with a Beretta and a knife. He tied
the wife, daughter and maid up in a separate room.
He confronted Lim alone in the study room. Lim’s maid
testified seeing Tan hold the beretta very close to the
right side of Lim’s face. A shot was fired and Lim fell
backwards. Tan fled the country.
Tan was eventually arrested and extradited to
Singapore.
Defense of intoxication, accident and the right to private
defence was raised.
PP appeal allowed. Custodial sentence replaced with 1000$ fine.
How to distinguish The court stated the two preconditions which must be satisfied before the right of
ropd in exception 2 private defence arises, namely:
and that of section 1. “the person purporting to exercise the right of private defence must have been
96-106. the subject of an offence (see section 97 of the PC); and
2. the defender must have attempted to seek help from the relevant public
Laying the authorities if there was a reasonable opportunity for him to do so (see section
framework. 99(3) of the PC)”
Court found that the 2 preconditions had not been met. Tan had not been the subject of
any offence committed by Lim; on the contrary, it was Tan who was committing an
offence against Lim. There was nothing to suggest that Tan made any attempt to seek
help from the public authorities although he could have easily have done so if he had
been genuinely alarmed by Lim’s alleged threat to send someone to kill him…Tan
therefore could not avail himself of the right of private defence.
Comparison between s96’s general defence of private defence with Exception 2:
 “s96 of the Penal Code operates as a general defence that will acquit an
accused entirely of an offence, Exception 2 operates only as a defence to the
specific offence of murder and does not exonerate the accused from liability
for culpable homicide not amounting to murder, which is punishable under
section 304 of the Penal Code. As a matter of logic, this must mean that it is
more difficult to plead the general exception of the right to private defence as
compared to Exception 2”
 “Lack of premeditation does not feature in the scheme of ss 96-106 of the PC”
 “Good faith, which is a requirement under Exception 2 but not under s96
(except for the purpose of Illus (b) to section 98 and ss 99(1)-99(2))”
The court also found that on the facts of the case, Tan could not avail himself of the
right of private defence.
In a situation where the defender has killed a person while purporting to exercise the
right of private defence:
 (1) “Were there circumstances giving rise to the right of private defence? If ‘yes’
both the general plea of private defence and Exception 2 may be available. If
‘no’ both pleas are unavailable and the inquiry is at an end
(2) Was the [defender] confronted with one of the specific types of threats
mentioned in section 100 or 103 [of the PC], and did his or her act of killing
constitute no more harm than was necessary to inflict for the purpose of
private defence? If ‘yes’ the general plea of general defence is likely to be
available. If ‘no’ the general plea is unavailable but Exception 2 may be
available.
(3) Was the [defender]’s act of killing done without premeditation and without an
intention of doing more harm than was necessary for the purpose of private
defence? If ‘yes’ Exception 2 is likely to be available. If ‘no’ the defence is
unavailable
The second of the scenarios postulated above presuppose, of course, that section 97
and 99(3) of the PC are fulfilled where the defender seeks to rely on section 96 of the
PC”

The court set out a sequence of conjunctive requirements which must be satisfied in
order to establish the general exception of the right to private defence of the body:
(g) Save for the situation where the defender is defending himself against an act
of a person of unsound mind (s98 of PC), the defender must show that an
offence affecting the human body has been committed or is reasonably
apprehended (s97 of PC)
(h) The defender must show that there was no time to seek the protection of
public authorities (s 99(3) of PC). The test for whether the defender had time
to have recourse to the protection of the public authorities is an objective one.
Further, the defender should not be expected to seek the protection of the
public authorities if the time needed to do so would result in the mischief
being completed.
(i) If the defender was the aggressor at the material time, it is prima facie less
likely that he had a right of private defence. If deadly weapons were used by
the defender from the outset, it is very unlikely that the right of private
defence would ever arise, as the intention of the [defender] is clearly
discernible.
(j) The defender must prove that, at the time of acting in private defence, he
 reasonably apprehended danger due to an attempt or a threat by the victim to
commit an offence affecting the body…
(k) Whether the defender has killed the victim, he has to prove that the offence
which occasioned the exercise of the right of private defence was one of the
offences listed in s100.
If (e) is not satisfied, his right of private defence will not extend to the causing of the
victim’s death, although s101 would still permit to cause ‘any harm other than death’
to the victim.
(l) The defender must prove that the harm caused to the victim was reasonably
necessary in private defence. Due allowance should be given to the dire
circumstances under which the defender was acting.

Appeal on grounds of ROPD dismissed.

 Defence of Provocation

Exception 1. —Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
Exception. —The above exception is subject to the following provisos:
(a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;
(b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of
such public servant;
(c) that the provocation is not given by 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.

2 requirements to be met: PP v. Kwan Cin Cheng [1998]

1. “First, a subjective requirement that the accused was deprived of his self-control by provocation”

2. “secondly, an ‘objective’ requirement that the provocation should have been ‘grave and sudden’. The latter requirement
involves the application of the ‘reasonable man’ test.” This test involves considering “whether an ordinary person with the
same sex and age as the respondent, and sharing such of his characteristics as would affect the gravity of the
provocation, placed in the same situation, would have been so provoked as to lose his self-control”
a. “The objective test demands only that the accused should have exercised the same degree of self-control as an ordinary
person. It does not require that his act of killing must be somehow capable of being viewed as ‘reasonable’. In applying the
test, care must be taken not to peg the standard of self-control and degree of provocation required at an unrealistically
high level”
Subjective requirement - Loss of self-control:

Cited by COA in PP v Pathip Selvan on what constitutes loss of self-control in R v Duffy [1949] – “sudden and temporary loss of self-control,
rendering the accused so subject to passion as to make him or her for the moment not master of his mind”

 Essentially a finding of fact.

 Personal peculiarities such as age, class and size should not be taken into consideration when considering loss of self-control, per Mohamed
Ali bin Johari v PP - “the accused’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) is concerned”.
 Deliberate and calculated acts do not support the loss of self-control Per Lim Chin Chong v PP and Mohamed Ali bin Johari v PP - “it is also
important to note (in so far as the first requirement relating to a loss of self-control is concerned) that the antithesis of a loss of self-control is
deliberation (and even calculation).”
 Nature of injuries can go towards proving loss of self-control per PP v Pathip Selvan and PP v Sundari Supriyanto
 Personal factors to be taken into consideration to support claim of loss of self-control, emotional state can make the accused more vulnerable
to lose self-control Per PP v Pathip Selvan.
 Total deprivation of self-control not required Per PP v Pathip Selvan - “there is no need for his mind to be completely blank or for there to be
automatism when the deceased was stabbed to establish” the defence of provocation, as “while the accused appeared at some level of
consciousness to be aware of what was happening during the killing, this did not, without more, mean that he did not lose self-control. The
human mind has several levels and streams of consciousness.”
 Intoxication can be one of the factors to determine loss of self-control Per Astro Bin Jakaria v PP [2008] SGHC - intoxication as “one of the
factors in determining whether” the accused was in fact deprived of self-control. The state of intoxication is taken into account “in the
subjective determination of loss of self-control” and “relates only to the subjective element”.
 Whether post-killing conduct can be used to draw inferences to loss of self-control, depends on the facts of each case, Per PP v Sundari
Supriyanto - “different people react differently in different situations”. And it “cannot be said that a particular trait or pattern of behavior
must be observed on the part of the accused-post killing, in order to determine whether she had lost her self-control during the time of the
killing”

Objective requirement – Grave and sudden + reasonable man’s test.

 Considers if a reasonable person in the same or similar circumstances could have likewise lost self-control and done what the accused did
  Per PP v Pathip Selvan s/o Sugumaran - the test “is a contextual one that must take into account the accused’s background and all relevant
circumstances”
 Singapore: ‘reasonable person’ only requires accused to have exercised the same degree of self-control as an ordinary person per Kwan Cin
Cheng v PP - “The objective test demands only that the accused should have exercised the same degree of self-control as an ordinary person.
It does not require that his act of killing must be somehow capable of being viewed as ‘reasonable’. In applying the test, care must be taken
not to peg the standard of self-control and degree of provocation required at an unrealistically high level”
 Per PP v Pathip Selvan s/o Sugumaran – “It is now settled that there are at least two types of characteristics which the court can take into
account in assessing whether the objective test has been met, namely the characteristics affecting a similarly placed reasonable man’s level of
self-control and characteristics affecting the gravity of the provocation. However, an accused’s exceptional hot temper alone should not be
taken to exonerate an exceedingly violent response”
 The reasonable man is one who is sober as Per Astro bin Jakaria.

Grave provocation
 Characteristics that affect the gravity of the provocation can be considered as Per Ithnin bin Kamari v PP - “the class of society (whatever
that might mean) to which the accused belongs, like any other characteristic of the accused, is not a factor to be considered unless it is
relevant in the sense that it tends to affect the gravity of the provocation. Where a characteristic of the accused is not relevant as tending to
affect the gravity of the provocation, it is not necessary to refer to it, let alone consider it.”
 Mental infirmities can also be considered Per PP v Kwan Cin Ceng [1998] – “any characteristics of the accused, including mental infirmities,
could be taken into account if they affected the gravity of the provocation”
 Cumulative provocation  comprises of ‘mental background’ of accused which is relevant to determination of grave provocation as Per PP v
Sundari Supriyanto – “the seemingly separate events of abuse linked up with each other like a chain.” and “relevant to establishing the
accused’s ‘mental background’ at the time of the killing”
 On whether the provocation is grave as Per Astro bin Jakaria, in the context of anal sex – “The classic justification for the existence of the
provocation defence is that it provides a concession to human frailty”
 Verbal provocation can constitute grave provocation depending on the characteristics of the person Per Ithinin bin Kamari v PP - “the
gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is
addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered… to be
more offensive to the person addressed…if the facts on which the taunt is founded are true than it would be if they were not”.
 Indirect provocation -> defence is available to a person who was affected by the provocative conduct which was aimed at someone else.
 Misdirected provocation -> provocation required to have emanated from the deceased -> provocative conduct of a third party may be
adopted
 Suddenness of provocation
 Question of whether the accused was still deprived of his or her power of self-control at the time of killing
 The longer the time interval between the provocative incident and the homicidal act, the more likely the accused had killed due to pre-
meditation or revenge as there was time to cool-off.
 If there was no sufficient time to cool-off, it would more often be considered ‘sudden’ as Per PP v Sundari Supriyanto – “part of an ongoing
process. The events were actually contemporaneous and not spaced out”

Response to Provocation (Proportionality)

 Accused’s act of retaliation only one factor to be taken into consideration when determining whether the accused had exercised self-control
for the objective test Per PP v. Kwan Cin Cheng - ‘proportionality’ criterion would be more accurately expressed “in deciding if an accused
had exercised sufficient self-control for the objective test, a relevant question may be whether the degree of loss of self-control was
commensurate with the severity of the provocation.”
o Per Seah Kok Meng v PP – “the test of proportionality is a factor to be taken into account in determining whether the objective
condition is satisfied. All we stated was that the fact that the act of retaliation may be out of proportion to the provocation offered
does not mean that the defence must fail.”

Case Facts Issues Judgment

KM Nanavati v The appellant’s wife had confessed to the appellant that she Whether the Court laid out the following conditions to be complied with if to satisfy the
State of was having an affair with the deceased. The appellant, a deceased gave exception:
Maharashtra Navy Commander, dropped his wife and children at the provocation to the “(1) The deceased must have given provocation to the accused.
[1962] cinema, went to his ship and retrieved a revolver and accused within the (2) The provocation must be grave
ammunition on a false pretext. He went to the deceased’s meaning of the (3) The provocation must be sudden
Supreme Court flat, according to the accused to confront him and to ask him exception of s300 (4) The offender, by reason of the said provocation, shall have been deprived
of India whether he would marry his wife and look after his children. and whether the of his power of self-control
Upon hearing the deceased’s alleged response “am I to provocation was (5) He should have killed the deceased during the continuance of the
marry every woman I sleep with?”, the appellant shot the grave or sudden. deprivation of the power of self-control.
deceased a number of times. (6) The offender must have caused the death of the person who gave the
provocation or that of any other person by mistake or accident.”
The appellant was charged with murder under section 300
of the PC. Court went on to consider the position of a reasonable man and the effects of
provocation on him, and on the English position whether mere words and gestures
He was convicted by the High Court. He appealed. would amount to provocation.
 Defence contended that the deceased’s acts constituted Court went on to decide that “it is not necessary in this case to ascertain whether a
provocation, which was communicated to the appellant by reasonable man placed in the position of the accused would have lost his self-
his wife. control momentarily or even temporarily when his wife confessed to him of her
illicit intimacy with another”

Court went out to state the law, relevant to the present enquiry:
1. “The test of “grave and sudden” provocation is whether a reasonable
man, belonging to the same class of society as the accused, placed in
the situation in which the accused was placed would be so provoked
as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances,
cause grave and sudden provocation to an accused so as to bring his
act within the first Exception to section 300 of the Indian Penal Code.
3. The mental background created by the previous act of the victim may
be taken into consideration in ascertaining whether the subsequent
act caused grave and sudden provocation for committing the offence
4. The fatal blow should be clearly traced to the influence of passion
arising from that provocation and not after the passion had cooled
down by lapse of time, or otherwise giving room and scope for
premeditation and calculation”

In this case, the appellant had sufficient time in between for him to regain his self-
control. His conduct clearly shows that the murder was deliberate and calculated
one. The contention that the conversation had caused the provocation could not be
sustained as the accused “entered the bed-room of the deceased to shoot him”.

Appeal dismissed.
Ithinin Bin The appellant was convicted on two charges of murder, he Whether there was Court agreed with counsel for the defence that indeed “the appellant had lost
Kamari v PP had caused the death of Said and Johar by fatally stabbing deprivation of self- control of himself when he stabbed the two deceased”
[1993] both with a knife. control and grave
and sudden However, the court rejected the view that any provocation which the appellant
SGCA The defense was that the appellant had smoked heroin the provocation. might have been subjected to “justified the infliction of the brutal injuries on a vital
night before, had woken up on the morning of the incident part of the body of each of the deceased with a weapon as deadly as the knife that
with a headache and was feeling agitated. The appellant Whether the class of was used. The retaliation of the appellant was entirely out of proportion to the
claimed that in the course of his interaction with Said and society mattered in alleged acts of provocation. On this alone, the defence failed”
 Johar, he had become confused and angry. His mind went
blank before he rushed and stabbed both of the deceased.
The defense was that both the deceased had challenged the
appellant to a fight, had hurled abusive words at him and
Said had kicked and pushed him – giving rise to grave and
sudden provocation.
Trail judges rejected the defence.
Appellant appealed.
PP v. Kwan Cin The respondent was charged with murder for having
Cheng [1998] stabbed the deceased to death. The respondent and the
deceased had been lovers for a long while. The deceased
SGCA began dating another man but did not tell the respondent.
She subsequently ended her relationship with the
respondent. The respondent arranged to meet her on the
pretext of repaying her some money he owed her, intending
to beg her to resume their relationship. He bought a knife
shorting before the meeting as he planned to kill himself if
she rejected him. At the meeting, when told of his thoughts
of suicide, the deceased replied in a callous tone that he was
‘useless’ and doubted if he dared to kill himself. She also said
that she was happy with a new boyfriend and his death
would have nothing to do with her. Upon hearing this, he
stabbed her to death.
the reasonable
man’s test. When considering whether the reasonable man had to belong “to the same class as
the accused”, the court explained that “the test is normally and primarily an
objective one” – they agreed with Lord Diplock when he said “[the reasonable man]
is a person having the power of self-control to be expected of an ordinary person of
the sex and age of the accused, but in other respects sharing such of the accused’s
characteristics as [the jury] think would affect the gravity of the provocation to
him”
In the courts view, “the class of society (whatever that might mean) to which
the accused belongs, like any other characteristic of the accused, is not a
factor to be considered unless it is relevant in the sense that it tends to affect
the gravity of the provocation. Where a characteristic of the accused is not
relevant as tending to affect the gravity of the provocation, it is not necessary
to refer to it, let alone consider it.” – Individual peculiarities of the
provocation should not be taken into account unless it affects the gravity of
the provocation.
Appeal dismissed.
The court found that there are “two distinct requirements for the provocation
defence to apply: first, a subjective requirement that the accused was
deprived of his self-control by provocation; and secondly, an ‘objective’
requirement that the provocation should have been ‘grave and sudden’. The
latter requirement involves the application of the ‘reasonable man’ test”
The prosecution argued that the objective requirement had not been met: the
provocation was not ‘grave and sudden’.
The court disagreed with the prosecution’s submission that the mental anguish
suffered by the respondent at the time must be ignored in considering whether this
test had been satisfied. The court referred to Luc Thiet Thuan v The Queen [1996]
where it was “clarified that any characteristics of the accused, including mental
infirmities, could be taken into account if they affected the gravity of the
provocation. However, these must be contrasted with individual peculiarities of
the accused which merely affected his power of self-control but not the gravity of
The trial judge held that the respondent had established a
defence of grave and sudden provocation and convicted him
on a reduced charge of culpable homicide not amounting to
murder and sentenced him to 10 years’ imprisonment.
On Appeal, the prosecution, while accepting that the
respondent had lost his self-control upon being provoked by
the deceased, contended on appeal that such provocation
was not grave and sudden as a reasonable man in the
respondent’s position would not have reacted the same way.
the provocation; such peculiarities could not be takin into account for the purposes
of the objective test”. The court thus found that the respondent’s emotional state of
mind could have properly been taken into account i.e. not a peculiarity to be
discounted.
Court went on to consider that “there is no rule of law in Singapore that mere
words cannot amount to grave and sudden provocation save in exceptional
circumstances” and that “the lack of a romantic relationship…could not be
decisive”
The ‘reasonable man’ test:
The court found that the relevant “question was whether an ordinary person
with the same sex and age as the respondent, and sharing such of his
characteristics as would affect the gravity of the provocation, placed in the
same situation, would have been so provoked as to lose his self-control.”,
citing (PP v Ithinin bin Kamari). Account therefore had to be taken of the
cumulative impact of all her statements.
“The objective test demands only that the accused should have exercised the
same degree of self-control as an ordinary person. It does not require that his
act of killing must be somehow capable of being viewed as ‘reasonable’. In
applying the test, care must be taken not to peg the standard of self-control
and degree of provocation required at an unrealistically high level”
The court found that “an inquiry into ‘proportionality’ does little to answer the
essential question of whether an ordinary person would, upon receiving the
provocation in question, have lost his self-control to this extent and reacted
as the accused did.” This is because “where the provocation defense in Exception 1
to section 300 is concerned, the accused’s loss of self-control would ex hypothesi
always have been of an extreme degree, resulting in the killing of another person.”
In their view, a ‘proportionality’ criterion would be more accurately expressed
“in deciding if an accused had exercised sufficient self-control for the
objective test, a relevant question may be whether the degree of loss of self-
control was commensurate with the severity of the provocation.”

PP v. Lim Chin The appellant, who worked as a freelance male prostitute,
Chong [1998] was convicted of murdering the deceased, a man who ran a
brothel of male prostitutes at his residence. The appellant
SGCA. admitted that he killed the deceased with repeated blows on
the head with a wooden pestle. According to the appellant,
the deceased had offered to pay him for anal sex at the
material time.
When he refused, the deceased forcibly pulled him over and
kissed his face. The appellant responded by punching the
deceased’s face, causing the latter’s nose to bleed. The
deceased screamed for help, threatening that he would get
help fro secret society members to deal with the appellant.
The appellant then tied up the deceased and later
bludgeoned him to death.
On appeal, the appellant raised the defence of grave and
sudden provocation.
Seah Kok Meng The appellant was found guilty of murdering the deceased
v PP [2001] under section 300(c) of the Penal Code.
SGCA On the night of the incident, the appellant’s girlfriend
telephoned the appellant and told him that she was being
harassed and had been molested by the deceased. When the
appellant arrived at the scene, he assaulted the deceased on
The court considered the emotional vulnerability of the respondent at the material
time and found that the deceased’s callousness would have greatly distressed him.
The court found that the provocation was grave and sudden and that the
respondent had satisfied the ‘reasonable man’ test.
Prosecution Appeal dismissed.
Whether there was The court referred to the 2 distinct requirements laid down in PP v. Kwan Cin
sudden and grave Cheng, where first, a subjective requirement that the accused was deprived of his
provocation. self-control by provocation; and the second, an objective requirement that the
provocation should have been grave and sudden.
Application of
principles set in PP The court found that, on application of these principles, the defence of provocation
v Kwan Cin Cheng. was not made out. The court found that on the evidence, “the subjective element
had not been satisfied”. The court agreed with the trial judge in finding that the
appellant did not lose his self-control. This was derived from the cool, calm and
methodical killing. The court considered the acts of the appellant as “calculated and
premeditated acts.”
The court also found that the provocation was not grave and sudden. The court
considered the propositioning of sex and kissing to hardly be provocative or so
“disgusting and abhorrent as to have aroused revulsion in a person who, on his own
admission, made a living by prostituting himself to other men even if he was to be
believed that his services did not include kissing or anal intercourse. If it did, then
the immediate and spontaneous reaction was the punch on the nose…on any
objective test, the provocation of being sodomised had simply evaporated and the
threat of being got at by secret society members, as just a hollow threat.”
Appeal dismissed.
Was there Court reiterated the 2 requirements laid down in Kwan Cin Cheng: namely the
provocation? subjective and objective requirements.
Proportionality of Counsel argued that what constituted provocation was a series of acts, starting with
assault? the molestation, the appellant being informed about it and with the deceased
raising his right hand as if wanting to strike (according to the accused).
 the head and the body with a wooden pole. The deceased
was unarmed and did not retaliate, and died from severe
head injuries.
Defense argued that the appellant had hit the deceased
because of a grave and sudden provocation. The trail judge
dismissed those submissions.
The appellant appealed.
PP v. Sundarti The accused, a female Indonesian domestic maid, was tried
Suryanto on a charge of murder of her employer. The pathologist
[2004] found 2 stab wounds on the deceased’s neck, one of which
was the fatal wound, as well as other extensive injuries.
SGHC
The accused claimed that in the course of this fight, she had
held the deceased’s daughter as a human shield. The
deceased then struck her daughter with a knife when she
was waving the knife at the accused, thus killing the girl. The
accused claimed that after the deceased had killed herself,
but later claimed that she was the one who inflicted the
injuries, she left the units to purchase some petrol, which
she ten used to set fire to the units. She had initially planned
to kill herself in the fire, fearing arrest. However, when she
noticed the deceased’s infant son walking towards the fire,
she grabbed him and carried him out of the units.
Court found that the appellant was very much in control of the situation and that
the only reason why he went to Bok was to “rescue” her, the only proper thing to do
in his mind. It seemed to the court that “every move of the appellant was very
deliberate”.
Secondly, the court did not think the provocation was “grave and sudden”. The
severity of the physical assault showed in the circumstances “that the appellant was
bent on teaching Salim a lesson”.
As regards to the question of proportionality of the assault, court reiterated what
was stated in Lau Lee Peng v PP, that “the test of proportionality is a factor to be
taken into account in determining whether the objective condition is
satisfied. All we stated was that the fact that the act of retaliation may be out
of proportion to the provocation offered does not mean that the defence must
fail.”
Court stated that the provocation and response does not always need to match, and
it all depends on the overall circumstances which the judge must weigh.
Can provocation be The court referred to the 2 requirements which had to be met before the defence of
accumulative? grave and sudden provocation could be raised successfully as stated in Kwan Cin
Cheng and also to the consideration of proportionality.
Whether the
accused had lost her The court found that there was some truth to various aspects of the accused’s
self-control as a version of events. First, the accounts of abuse, forcing her to eat noodles in the toilet
result of the etc. Second, the account pertaining to the quarrel and scuffle between the 2 women.
provocation that she
had been placed First requirement: loss of self-control:
under. The court found that from the objective facts, for the accused to inflict that kind of
injuries found on the deceased’s body, the accused had to have been in a frenzy of
sorts. She must have been so blind with rage that she lost all control over herself
and lashed out repeatedly at the deceased, resulting in the ‘haphazard’ nature of the
injuries. The loss of self-control must have been of such magnitude that she was
able to inflict the severe wounds on the deceased ‘with tremendous force’.
The court found that this was an irresistible inference from the nature of the
injuries and the surrounding circumstances. The court also noted that it cannot be
The accused testified that she and the deceased shared a
poor relationship, in which the accused was subjected to
various forms of physical and emotional abuse. The accused
also claimed that on the day of the incident, the deceased
had not given her food for 3 days, save for some noodles in
which the deceased prevented her from sitting down on a
chair but ordered her to eat then in the toilet instead. 2 of
the Prosecution’s witnesses corroborated these facts.
said that calmness of an accused post-killing meant that she must have been calm
throughout the time of the killing – “different people react differently in
different situations”. And it “cannot be said that a particular trait or pattern of
behavior must be observed on the part of the accused-post killing, in order to
determine whether she had lost her self-control during the time of the
killing”. The court thus found that the first subjective requirement was satisfied.
Second requirement: ‘grave and sudden provocation’:
The court found that “the seemingly separate events of abuse linked up with
each other like a chain. The chain of each separate event was consistent, ie the
deceased had acted in a manner that humiliated the accused and caused her
physical pain.” As such, the court found that “the many separate events were
actually closely linked to each other as they presented an overall picture of an
abusive and poor employer-employee relationship”, and this was “extremely
relevant to establishing the accused’s ‘mental background’ at the time of the
killing.”
Court mentioned how all the series of nagging, scolding, insults, abuse and lack of
food over a period of time, culminating in a quick succession of abuse “would be
sufficiently grave to provoke a reasonable person in the accused’s position”. The
instances of abuse added up over a period of time and weighed on the mind of the
accused, and the accused’s words to the deceased asking her why she was treating
her that way “was an example of the total effect the separate instances of abuse had
on her”.
Therefore, the question of whether a reasonable maid in the position of the accused,
i.e. a maid with this sort of ‘mental background’, would have been so provoked by
the acts of the deceased at the material time would have to be answered in the
positive. Element of a “grave” provocation was met.
The court was “unable to find that there was a break in time that provided the
accused with a cooling-off period” and that the incidents between the 2 women
were “part of an ongoing process. The events were actually contemporaneous
and not spaced out”. The ‘breathing spaces’ in between were “not so significant or
lengthy enough to constitute a cooling-off period sufficient to put an end to the

Mohammed Ali The appellant was convicted of murder under s300c of the
Bin Johari v PP PC.
[2008]
The appellant was the stepfather of the deceased, who was
SGCA two years and ten months old at the time of death. The
appellant testimony was that he had wanted to stop the
deceased’s crying. He had lowered the deceased three times,
head first, into a pail of water and when he had left her
unattended to attend to a phone call she had drowned.
Alternatively, the appellant could also have been charged
with an offence of causing death by an act which was done
with the intention of causing death, under 300(a) of the PC.
PP v. Astro bin The deceased, a transvestite, performed fellatio on the
Jakaria [2010] accused. The deceased, who had been provided the accused
food and accommodation, then propositioned him to engage
SGHC. in anal intercourse.
The accused refused; the deceased then incessantly cajoled
and reminded the accused of being ‘cultivated’ by the
deceased. A scuffle ensued during which the accused
punched the deceased. As the deceased was lying face down
provocation.” Therefore, the second requirement of “suddenness” was satisfied.
Exception of provocation found available to the accused, charge of murder reduced
to charge of culpable homicide not amounting to murder.
Whether or not the Court went to stated that the present position “endorses the position laid down in
accused’s personal Luc Thiet Thuan” which was held that “the accused’s personal idiosyncrasies
idiosyncrasies can ought not to be taken into account in so far as the issue of the loss of self-
be taken into control (as opposed to the gravity of the provocation) is concerned”.
account in his or her
favor in so far as the Court went to consider Prof Ashworth explanation on the subjective and objective
issue of the loss of conditions in his article – “The law’s subjective condition operates to ensure that it
self-control (as was not a revenge killing, but rather a sudden and uncontrolled reaction to
opposed to the perceived injustice. The objective condition looks to the element of partial
gravity of the justification and, inevitably, to the conduct of the provoking party.”
provocation) is
concerned. “it is also important to note (in so far as the first requirement relating to a
loss of self-control is concerned) that the antithesis of a loss of self-control is
deliberation (and even calculation).”
In this case, the court was of the view that the appellant did not lose his self-control,
and that his actions bore all the marks of a person in clear control of his actions. He
had demonstrated the presence of mind to dress her in the same clothing that he
had removed from her before the immersions into the pail of water. The methodical
and laborious steps taken to mask the fact that she was already dead were
“elaborate and calculated in nature”. Court stated that the gravity of the
provocation could hardly be such as to justify what the appellant did to the
deceased and which resulted in her death.
Was the defence of The court considered the 2 requirements which had to be satisfied.
Provocation made
out? The first subjective requirement:
Court went to consider the effect of intoxication on the subjective assessment of
Does intoxication loss of self-control. Court distinguished Seah Kok Meng saying that the accused in
matter? this case was inebriated prior to the scuffle. The court found that the subjective
assessment of whether the accused lost his self-control was a “finding of fact.” This
finding of fact “would only adhere to and reflect reality if the accused’s state of
 on the floor, the accused tied up the deceased with a long-
sleeved shirt. The deceased’s death was caused by a ligature
tied around his neck.
The accused was charged with murder under s300c. The
defence’s position was that the applying and tightening of
ligature around the neck was accidental or unintentional.
The defence of provocation was raised.
PP v Pathip The accused stabbed his girlfriend (the deceased), with
Selvan s/o whom he had had an intimate relationship, immediately
Sugumaran after she told him, when questioned about a man she was
[2012] seen hugging and kissing in bed, that the other man was a
intoxication (or lack thereof) was taken into account”.
The court thus found it proper to take into account and consider with some weight
the effect of intoxication as “one of the factors in determining whether” the
accused was in fact deprived of self-control. The state of intoxication is taken
into account “in the subjective determination of loss of self-control” and
“relates only to the subjective element”.
Note: The accused’s state of intoxication is not attributed to the reasonable man.
The reasonable “is one who is sober”.
The court therefore found that, on a balance of probabilities, the accused had lost
his self-control.
The second objective requirement:
On the requirement of ‘suddenness’, the court referred to PP v Sundarti
Supriyanto and was of the view that the “series of abuse” took the form of caressing
and touching by the deceased. And on the night of the incident, the accused had
given up his dignity and allowed the deceased to perform fellatio on him, and when
the request for anal sex was made, the accused had had enough and “suddenly
erupted in rage and lost control of himself”.
On whether the proposition of anal sex was ‘grave’: “The classic justification for
the existence of the provocation defence is that it provides a concession to
human frailty. The extension of this defence to ‘non-violent homosexual advances’
as per the instant case would rest in the recognition of the fact that most
heterosexual men would view such homosexual advances as sufficiently
provocative. The more intrusive the advances, the more grave and provocative.”
The court considered the accused’s emotional reaction to the proposition for anal
intercourse and found that objectively viewed, an unwanted proposition for anal
intercourse in the circumstances of this case does amount to a grave provocation.
The court thus found that the second requirement was fulfilled.
Appeal allowed. Charge of murder reduced to culpable homicide not amounting to
murder.
Court stated that the defence of provocation recognizes “that individuals can in
limited situations be emotionally overwhelmed and offend under conditions of
extreme fear, sadness, depression or even jealousy”.
 better lover than he.
SGCA.
The accused admitted to killing the deceased and was
charged under s300(c) of the PC. The defence relied on the
partial defences of provocation and diminished
responsibility. High Court judge rejected this defence.
Appellant appealed, raising the same defences.
The subjective test:
Court referred to the classic direction on what constitutes loss of self-control in R
v Duffy [1949] – “sudden and temporary loss of self-control, rendering the
accused so subject to passion as to make him or her for the moment not
master of his mind”
Court found that there was no premeditation in this case. Court also opined that
“there is no need for his mind to be completely blank or for there to be
automatism when the deceased was stabbed to establish” the defence of
provocation, as “while the accused appeared at some level of consciousness to
be aware of what was happening during the killing, this did not, without
more, mean that he did not lose self-control. The human mind has several
levels and streams of consciousness.”
Court found that on the facts, the accused’s heightened emotional state probably
made him “even more emotional and vulnerable to loss of self-control”. The fact
that “multiple injuries were inflicted in an entirely random and frenzied manner all
over the deceased’s body also suggests that the accused had suddenly lost self-
control”.
Court considered whether post-killing conduct can be taken into account as per PP
v Sundarti Supriyanto, and was right to conclude that it “depends on the facts of
each case. The conduct of different individuals after they recover their composure
(partially or completely) after momentarily losing it can vary infinitely and is
contingent upon the existence of incalculable imponderables.”
The objective test:
Court considered the definition for ‘sudden’ and referred to Dr Sri Hari Singh
Gour’s Penal Law of India vol 3 – “A person may by repeated or continuous
provocation arouse another to a state of mind when the provocation
immediately preceding the act is only the last straw”.
In this case, the “deceased’s utterance about the accused’s unsatisfactory sexual
prowess was sudden and totally unexpected”.
Court stated that it “is clear that both ocular and verbal conduct can constitute
provocation”, but considered whether words of this nature amount to a grave
provocation. Court referred to Ithinin bin Kamari v PP which stated that “the
gravity of verbal provocation may well depend upon the particular characteristics
or circumstances of the person to whom a taunt or insult is addressed”. As such, “no
single abstract standard of reasonableness can be laid down. This is a fact-
centric assessment that has to be made in the context of the established facts.
It is now settled that there are at least two types of characteristics which the
court can take into account in assessing whether the objective test has been
met, namely the characteristics affecting a similarly placed reasonable man’s
level of self-control and characteristics affecting the gravity of the
provocation. However, an accused’s exceptional hot temper alone should not
be taken to exonerate an exceedingly violent response”. The court can take into
account “any of the accused’s personal characteristics which affect the gravity of the
provocation”.
Court then referred to Kwan Cin Ceng which agreed that the “accused’s emotional
state and mental background leading to it could be taken into account in assessing
the gravity of the provocation”, and that “romantic and sexual relationships arouse
the strongest of human emotions”.

In their view, the test “is a contextual one that must take into account the
accused’s background and all relevant circumstances”.

In this case, the court found that given the heat of the moment and in the context of
the unfortunate couple’s overwhelming emotional turbulence, an objective review
of the facts suggests that the requirement that the provocation be “grave” was
satisfied.
 Defence of Sudden Fight

Exception 4. —Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault.

3 Requirements to fulfill: Tan Chun Seng v PP [2003]

(1) “Sudden fight, heat of passion, sudden quarrel;
(2) Absence of premeditation
(3) no undue advantage, or cruel or unusual acts”

Suddenness
‘sudden’ - “the fight is not pre-arranged. In other words, there should not be a lapse between the quarrel and the fight. If there is such an intervening
period, it means that ‘reason’ would be then overcome ‘passion’ and the fight is said not to be sudden” - T Paramasparan v. PP [2012]

Sudden Quarrel
 Sudden escalation of quarrel into a sudden fight with no opportunity for the parties to regain composure
 Asogan Ramesh v. PP -> the deceased had run away and the appellants had given chase -> no sudden quarrel
 ‘Quarrel’ -> any disagreement or dispute between parties which could be manifested in either conduct or words or both

Fight
 Chan Kwee Fong -> ‘Takes 2 to make a fight’
 Must be physical, not merely verbal -> exchange of blows

Duration of the fight

 Act of killing must be committed in the course of a sudden fight -> cannot be after
 Mohamed Kunjo v. PP -> Exception 4 will not succeed if the accused had emerged the clear victor and had inflicted the fatal injury on the
loser who was attempting to escape
 Premeditation
 Established by direct or circumstantial evidence
 Former grudges, previous threats, expressions of ill will, procurement of weapon -> constitute evidence of premeditation

Undue advantage
 “the element of unfair advantage lies on the notion of proportionality” - Asogan Ramesh S/O Ramachandren and Others v PP [1997]
 Sarjug Prasad v State AIR [1959] - ‘undue advantage…means unfair advantage’
 “Whether, during the fight, the appellant had reason to resort to a weapon – ie. Here the courts have placed substantial emphasis on the
disparity of size between the deceased and the accused” - Tan Chun Seng v. PP [2003]
 Weapon changed hands -> likely that no undue advantage taken -> Soosay v. PP
 Both initially unarmed, one obtained weapon in midst of fight -> likely that undue advantage taken
 Consider: outnumbering, disparity in physical size/strength, training in unarmed combat, weapon and way it was used, vitality of body parts
targeted, number of blows

Acting in a cruel or unusual manner

 Consider age, type of weapon and way it was used, state of helplessness, role of the deceased

Case Facts Issues Judgment

Soosay v. PP The appellant was charged with the murder of the deceased
[1993] by stabbing him to death. The appellant and his friend,
Kuppiah, had confronted the deceased on suspicion of him
SGCA stealing from another friend.
The deceased, upon confrontation, became abusive. Kuppiah
threatened the victim with assault. The victim then drew out
a knife and pointed it at Kuppiah and made as if to go at the
latter with the knife.
The appellant kicked the victim in the stomach and the
victim fell and lost hold of the knife. The appellant did not go
for the knife until he noticed that the victim was reaching
out for it. The appellant picked it up and stabbed the victim’s
buttock when he rushed at the appellant. The victim
Whether Soosay took The court found that there was “no premeditation on the part of Soosay to
undue advantage or engage the deceased in a fight.” The court also found from the evidence that there
acted in a cruel or was a sudden quarrel over the request for the return of Lim’s gold chain which
unusual manner. immediately resolved itself into a sudden fight and the blows were struck in the
heat of the fight.
The court found that the trial judge had overlooked the uncontroverted fact that
“Lim kept coming at Soosay each time he was repulsed and Soosay was
unable to disengage himself from the fight which was in fact started by Lim
drawing the knife from his handbag and threateningly pointing it at Kuppiah.”
The court also found that it cannot be said that Soosay had taken ‘undue
advantage’ or acted in a ‘cruel or unusual manner’ as the injuries he inflicted on
 grabbed the appellant’s arm and the appellant stabbed the
victim a second time to free himself. The victim charged
again and ran into the knife.
The appellant was convicted under s300c of the PC
Mohamed The appellant and the deceased were intoxicated, were
Kunjo v. PP talking and laughing and then began to argue. The argument
[1977-1978] degenerated into wrestling. They punched each other, as
they fought.
Privy Council Suddenly the appellant ran towards the store, returned with
an exhaust pipe and delivered one blow on the deceased’s
head with the exhaust pipe. The deceased fell to the ground.
The appellant then hit at his head 3 or 4 times with the
exhaust pipe. The deceased died from a fracture of the skull.
The appellant was found guilty of murder.
Lim were inflicted while he was involved in a fight with Lim during which Lim
could well have taken hold of the fallen knife before Soosay did or even wrested it
from him in which judging from Lim’s temperament shown earlier he would have
used it on both Soosay and Kuppiah with devastating effect; furthermore the
tenacity with which Lim kept charging at Soosay gave Soosay little chance to
disengage himself from the fight.
“Considerations of doing more harm than is necessary as in the case of
Exception 2(private defence) do not arise in a sudden fight.”
Therefore, the court found that Soosay had not, on a balance of probabilities,
taken undue advantage or acted in a cruel or unusual manner, and thus Exception
4 had been established.
Appeal allowed, conviction for murder quashed and a conviction for culpable
homicide not amounting to murder substituted.
Whether the defence The court found that on evidence, the act of causing death was done without
of sudden fight was premeditation…the evidence suggested strongly the absence of any element of
available to the design or planning. There was also evidence that the blow, or blows, were struck
appellant. ‘in a sudden fight in the heat of passion upon a sudden quarrel’.
However, the court found that “formidable difficulties face the appellant when he
attempts to show that the act causing death was committed ‘without the offender
having taken undue advantage or acted in a cruel or unusual manner”
“the evidence of the assault shows that the deceased was taken by surprise and
attacked with a very unusual and unexpected weapon”. The court then went to
cite Sarjug Prasad v State AIR 1959 that ‘undue advantage…means unfair
advantage’, hence the appellant could not have been said to have not taken undue
advantage or acted in a cruel or unusual manner.
Appeal dismissed.
Asogan The three appellants were walking home after a night of
Ramesh S/O drinks when they spotted Saravanan. The second and third
Ramachandren appellant did not know Saravanan well, but the first
and Others v appellant had fought with him before. The third appellant
PP [1997] called out to Saravanan. The latter scolded the group in
vulgarities and fled, but the three appellants gave chase. The
SGCA second appellant caught up with Saravanan, who pulled out
a knife and slashed him. The first appellant arrived and
disarmed Saravanan. He beat Saravanan while the second
appellant stabbed him repeatedly. The third appellant
swung a chair at his head several times.
The deceased suffered 18 stab wounds. The possible cause
of death was a fractured skull.
3 appellants were convicted of murder in furtherance of a
common intention.
On appeal, they argued that the trail judge had erred in
rejecting their defence of sudden fight.
Tan Chun Seng Whilst parking his newly-purchased car, the accused saw 2
v. PP [2003] Indian males, Chandrasegaran and Krishnan, walking
towards his car. Without any reason, the former hit a glass
SGCA window of the car. The accused got out swiftly, caught up
with the 2 men but soon realized that Chandra was no
longer in sight. Instead, he shouted to Krishnan, asking him
why his friend had hit his car. The fact that Krishnan, whom
the accused did not know was a deaf-mute, continued
walking, unperturbed at the accused’s outburst, further
enraged the accused.
When the accused had caught up with Krishnan and began
abusing him, the latter turned around, then push the
accused forcefully, causing him to fall to the ground. The
accused picked up a wooden pole and went after Krishnan
Whether the defence Court found that the appellant’s defence failed for two main reasons.
of sudden right was 1. First, the court “were unable to find that there was a sudden quarrel
made out. between the three appellants and the deceased which initiated or started
the fight between them”
2. “The appellants could not be said to have not taken unfair advantage of
the situation they were in” as they had “brutally attacked the deceased”
and “had an unfair advantage in terms of number and strength to start
with, and they exploited this advantage to the full”
Court viewed that “the element of unfair advantage lies on the notion of
proportionality, and this was precisely what was violated when the three
appellants attacked the deceased together.”
Defence of sudden fight rejected.
Whether the defence The court considered the 3 main ingredients to be satisfied:
of sudden fight had 1. “sudden fight, heat of passion, sudden quarrel;
been made out. 2. absence of premeditation;
3. no undue advantage or cruel or unusual acts”
(Case was criticized) Court went to discuss 3 main guidelines in cases involving the defence of sudden
fight namely:
1. Premeditation – “whether the fight and injuries suffered by the
deceased were premeditated by the appellant”
2. Armed beforehand - “whether the appellant was armed with the
relevant weapon before the fight began – ie. Whether he came
armed”
3. Undue advantage – “Whether, during the fight, the appellant had
reason to resort to a weapon – ie. Here the courts have placed
substantial emphasis on the disparity of size between the deceased
 who had continued walking and hit Krishnan numerous
times with it, resulting in his death.
The accused was charged with murder under s300c of the
PC. He admitted to killing Krishnan, but claimed he had done
so on a grave and sudden provocation.
On appeal, only the defence of ‘sudden fight’ was considered.
PP v Awang The deceased and the respondent, together with some
Raduan Awang friends were consuming alcoholic drinks in a coffee shop.
Bol [2005] The respondent then asked money from the deceased. The
deceased told the appellant that he didn’t have the money,
Malaysian to which the appellant reacted in an angry manner. The
Federal Court deceased then went to the road junction to play chess with
some friends. The respondent came and left to go back to his
home to look for an axe and knife, and came back and
hacked the deceased with an axe. The axe was thrown off,
after which the respondent took out the knife and stabbed
the deceased to death.
The respondent was charged with murder and convicted in
and the accused”
The court found on the evidence, that the appellant had no intention of getting
into a fight that evening…he had decided to confront Krishnan but was pushed
forcefully to the ground. The fight was thus not planned – no premeditation.
The court also noted that the appellant had not come armed. It was only after he
was felled by Krishnan that he picked up the wooden pole. One could have argued
that it was the appellant’s vulgarities and gesturing that provoked Krishnan…this
would correctly negate a provocation defence but ought not to negate a sudden
fight defence since “it is clearly explained in the Penal Code that the defence
of sudden fight does not depend on which party provoked the other into the
fight.” – Not armed beforehand
The court found that there was no undue advantage despite that Krishnan was hit
multiple times by the pole. The court found the fact that there was a considerable
disparity in size between the accused and the deceased to be of great importance.
The court opined that the appellant’s act of hitting Krishnan while the latter was
on the ground was borne out of a fight and thus carried out in the heat of passion.
– no undue advantage.
Appeal allowed and the appellant convicted of CHNAM.
Whether there was Court referred to case of Mohamed Kunjo v PP[1978].
the defence of sudden
fight. The result of which, the court found there was no sudden fight, even that there
was no fight at all; “there was no quarrel at all”.
Court found that in going back to look for the weapons, the respondent did not
hack or attack the deceased “in the heat of passion, upon a such quarrel. The
element of design or planning is there”.
Court found also that the respondent could never succeed in proving that he did
not take undue advantage or acted in a cruel manner and that it “was a cold
blooded attack”.
 the High Court. Appeal allowed, conviction affirmed and sentence imposed.

Respondent appealed to the Court of Appeal which allowed

the appeal.

PP appealed to the Federal Court.

T The appellant had allegedly assaulted the deceased
Paramasparan repeatedly using a rice cooker wire and a broomstick and
v. PP [2012] these repeated beatings had led to the eventual death of the
deceased.
Malaysian
Court of Appeal The appellant was charged with murder under s300 of the
PC.
He was convicted and sentenced to death. During the appeal,
the appellant raised the defence of sudden fight.
Whether there was Court laid out 4 facts to prove for exception of sudden fight:
evidence of a sudden 1. “there is a sudden fight in the heat of passion upon a sudden quarrel;
fight. 2. that there is no premeditation
3. that the offender does not take undue advantage or act in a cruel or
unusual manner; and
4. it is immaterial who started the fight first”
Court held that ‘sudden’ meant “the fight is not pre-arranged. “In other
words, there should not be a lapse between the quarrel and the fight. If
there is such an intervening period, it means that ‘reason’ would be then
overcome ‘passion’ and the fight is said not to be sudden”

Court viewed that ‘fight’ meant that “it takes two to start a fight. If blows are
exchanged, then there is a fight. But if it is only a one-sided attack with no
response from the adversary, then it is not a fight”

“there must be no premeditation. The killing must be in the heat of passion upon a
sudden quarrel. You can prove premeditation by way of direct or circumstantial
evidence”

The court referred to the guidelines set in Mohamed Kunjo v. PP .

The court found that ‘‘The nature of the weapon used by the appellant was also
indicative that the appellant had taken undue advantage. And when the appellant
repeatedly assaulted the deceased using the rice cooker wire and a broom stick he
had acted in a cruel or unusual manner.”

Appeal dismissed.
 Diminished Responsibility

Exception 7 - ‘Culpable homicide is not murder if the offender was suffering from such abnormality of mind (whether arising from a
condition or arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired
his mental responsibility for his acts and omissions in causing the death or being a party to causing the death’

3 elements to be satisfied: Tengku Jonaris Badlishah v PP [1999] and Mansoor S/O Abdullah & Anor v PP [1998] and Took Leng How v. PP
[2006]
1) the accused was suffering from an abnormality of mind at the time he caused the victim’s death;
2) the abnormality of mind must have arisen from a condition of arrested or retarded development of mind, or from any inherent cause, or was
induced by disease or injury; and
3) the abnormality of mind must have substantially impaired the accused’s mental responsibility for his acts and omissions in causing the death

General:

Zailani Bin Ahmad v. PP [2005] - “appellant’s acute intoxication was a direct result of his own overdose, such an abnormality of mind could not
have been a result of one of the specified causes in the defence of diminished responsibility.” – Self-induced intoxication does not satisfy DR.

Ong Pang Siew v. PP [2011] - “a man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially
impairs his mental responsibility”

Took Leng How v. PP [2006]

- “limb (b), otherwise known as the etiology or root cause of the abnormality, is largely a matter within the purview of expert opinion. Limbs (a) and
(c), however, are matters which cannot be the subject of any medical opinion and must be left to the determination of the judge, as the finder of fact”
- The court brought emphasis to limb (a) which “requires the court to be satisfied not only of the fact that the accused was suffering from a condition
that a reasonable man would consider abnormal, but further that the abnormality was of such a degree as to impair the accused’s cognitive functions
or self-control... Limb (a) should never be deemed satisfied unless the extent of the purported abnormality is also established. It must be
remembered that the role of the court is to determine the state of the accused’s mind at the time of the offence. As such, more emphasis should be
placed on scrutinizing the evidence pertaining to that period”
Abnormality of mind:

R v. Byrne [1960] – “means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It
appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to
form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with
that rational judgment”

David Augustus Walton v. The Queen [1978] which was approved in Zainul Abidin bin Malik v PP [1996], where it was proposed that the jury
“consider not only medical evidence but evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the
conduct of the defendant before, at the time of and after it and any history of mental abnormality…to ascertain whether at the time of the killing the
defendant was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense
way.”

Substantially impaired:

Chua Hwa Soon Jimmy v. PP [1998] – “determination of whether impairment of mental responsibility was substantial would involve a question of
degree, to be tested against and ascertained from all the evidence of each individual case.”

PP v. Wang Zhijian [2012] – “the phrase ‘substantially impairs his mental responsibility’ in the defence of diminished responsibility had has no
precise definition and endorsed Ashworth J’s common-sense definition of ‘substantially’ in R v Lloyd [1967]”

Ong Pang Siew v. PP [2011]

- “What in fact amounts to substantial impairment of mental responsibility is largely a question of commonsense to be decided by the trail
judge as the finder of fact.”
- “Substantial does not require total impairment; neither is it trivial nor minimal…whether an accused’s mental responsibility was
substantially impaired is ultimately a question to be decided by the court based on all the evidence before it”
- “‘abnormality of mind’ is wide enough to over all aspects of the mind’s activities including transient or ephemeral manifestations of illnesses”
- “The exception would also not apply to emotions of rage, prejudices, hate, passing jealously and the like unless they are due to inherent
causes rather than external stimuli alone. However, if those emotions trigger an inherent internal derangement that culminates in a
pathological condition, then the exception could apply”
Case Facts
R v. Byrne The appellant was convicted of murder at first instance.
[1960] The appellant had strangled a young girl and mutilated her
body. Medical experts testified that the appellant was a
sexual psychopath and that he suffered from abnormality
of mind arising from a condition of retarded development
of the mind.
The appellant suffered from violent perverted sexual
desires which he found difficult or impossible to control.
He may be normal when not under the influence of his
perverted sexual desires. The doctors opined that he was
not insane within the meaning laid down in the M’Naghten
Rules.
The defence was that in killing his victim the accused was
suffering from diminished responsibility as defined by s2
of the Homicide Act and was accordingly, guilty not of
murder but of manslaughter.
Issues Judgment
Whether the accused ‘To satisfy the requirements of the subsection the accused must show: (a) that he
had an abnormality of was suffering from an abnormality of mind, and (b) that such abnormality of mind
the mind, and if he (i) arose from a condition of arrested or retarded development or any inherent
did, did it causes, or was induced by disease or injury and (ii) was such as substantially
substantially impair impaired his mental responsibility for his acts in doing or being a party to the
the mental killing.
responsibility.
‘Abnormality of mind’, which as to be contrasted with the time-honoured
expression in the M’Naughten’s Rules ‘defect of reason’, “means a state of mind so
different from that of ordinary human beings that the reasonable person
would term it abnormal. It appears to us to be wide enough to cover the
mind’s activities in all its aspects, not only the perception of physical acts and
matters, and the ability to form a rational judgment as to whether an act is
right or wrong, but also the ability to exercise will power to control physical
acts in accordance with that rational judgment”
The court left the question of whether the accused was at the time of the killing
suffering from any ‘abnormality of mind’ to the jury. It then went on to consider,
assuming the above was satisfied, whether the abnormality such as substantially
impaired his mental responsibility for his acts in doing or being a party to the
killing. This was a question of degree.
“such abnormality as ‘substantially impairs his mental responsibility’
involves a mental state which in popular language (not that of the
M’Naughten Rules) a jury would regard as amounting to partial insanity or
being on the border-line of insanity.” The court decided that inability to exercise
will power to control physical acts, provided that it is due to abnormality of mind is
sufficient to entitle the benefit of the section.
It was for the jury to decide whether such inability or difficulty has, on a balance of
probabilities, been established, and in the case of difficulty whether the difficulty is
so great as to amount to a substantial impairment of the accused’s mental
responsibility for his acts.

Wong Mimi v. The first appellant Mimi Wong and her husband were
PP [1971- convicted of the murder of Mrs. Watanabe about 2 weeks
1973] after she arrived in Singapore to join her husband, who
had earlier been living with Mimi Wong.
Court of
Criminal For the first appellant it was contended that the trial
Appeal, judges were wrong in holding that at the time of the
Singapore commission of the offence the first appellant was not
suffering from any abnormality of the mind and in holding
that even if she were so suffering it had not caused
impairment of her brain function so as to have
substantially impaired her mental responsibility for her
acts in causing the death of the deceased.
The defence case was that at the time of the commission of
the offence she was suffering from encephalitis which had
reached the stage when there would be impairment of the
brain function to an extent as to have substantially
impaired her mental responsibility for her acts.
The court considered the medical evidence as to the appellant’s ability to control
his physical acts at the time of the killing was all one way and concluded that the
defence under section 2 of the Homicide Act was made out. Appeal allowed.
Whether the first Dr Tan admitted he could not positively say she was suffering from encephalitis or
appellant was a viral infection of the brain on the date of the commission of the offence and
suffering from an assuming she had a viral infection of the strain she would be very likely in the
abnormality of the incubation or prodromal stage of her illness. He said her actions on that day did not
mind. suggest to him there was impairment of the function of the brain.
Dr Ngui said that assuming she was suffering from encephalitis on the date of the
commission of the offence, the stage of development of the illness was important
from the point of her mental responsibility at the time of the offence. If it was
during the frank stage that she committed the offence alleged, then depending on
the severity of the symptoms, she was very likely to come under the purview of
either the M’Naghten rules of insanity or of diminished responsibility. Likewise
could be said for the prodromal stage. If it was during the incubation stage, it was
very unlikely that there would be impairment of the brain function and therefore
very unlikely she would come under said purview. He concluded that it was
improbably and unlikely that she could have been suffering under the frank and
prodromal stage respectively.
The trial judges were not satisfied on the balance of probabilities that at the time of
the commission of the offence the first appellant was suffering from any
abnormality of the mind. They also found that even if she were so suffering it had
not caused impairment of her brain function so as to have substantially impaired
her mental responsibility for her acts in causing the death of the deceased.
The court agreed that there was ample evidence to support the trial judges’
findings.
Appeals dismissed.
Chua Hwa The appellant was convicted of the murder of his sister-in-
Soon Jimmy v. law and for the attempted murder of his 4-year-old
PP [1998] nephew whom he attacked the same day. There was no
dispute that the appellant was the one who committed the
SGCA offences. The only question raised was whether he
possessed the requisite mens rea at the time to constitute
the offence, having invoked the defence of diminished
responsibility.
The appellant wanted to borrow $1000 from his brother
and spoke to the deceased who asked him to go to her flat.
The appellant said that during the course of their
conversation, the deceased appeared demonic to him. He
proceeded to punch her, and later, a voice told him to chop
and stab her. The appellant lost control and after the
killing, when he saw his nephew in the hall, also turned to
chop him. Following the attack, he claimed that he was in a
daze as he left the flat and drove to a vacant plot where he
disposed of his bloodied clothes, washed his hands and
tended to his wounds.
Whether the The court referred to the interpretation of the defence of diminished responsibility
impairment of mental found in R v. Byrne where the broad sense of ‘abnormality of mind’ was explained.
responsibility The court approved of what was stated but cautioned that the test of ‘partial
resulting from the insanity’ or ‘on the borderline of insanity’ may be inappropriate in some cases.
abnormality of mind
was substantial. The defence was grounded in the expert medical evidence given by Dr
Nagulendran, who was of the opinion that the appellant was suffering from
psychosis, a condition that was an abnormality of mind that amounted to
diminished responsibility. This evidence was disputed by Dr Chan who opined that
the appellant had suffered from mild depersonalization at the material time.
The court adopted the approach in David Augustus Walton v. The Queen [1978]
which was approved in Zainul Abidin bin Malik v PP [1996], where it was
proposed that the jury “consider not only medical evidence but evidence upon the
whole facts and circumstances of the case. These include the nature of the killing,
the conduct of the defendant before, at the time of and after it and any history of
mental abnormality…to ascertain whether at the time of the killing the defendant
was suffering from a state of mind bordering on but not amounting to insanity.
That task is to be approached in a broad common sense way.”
The court also held that the “determination of whether impairment of mental
responsibility was substantial would involve a question of degree, to be tested
against and ascertained from all the evidence of each individual case.” The court
then made a distinction between whether the appellant ‘did not resist his impulse’
or ‘could not resist his impulse’ as stated in Byrne.
It concluded that on the totality of evidence, “the appellant could have restrained
himself, even if it was accepted that he was commanded by a voice. His abnormality
of mind was not such as to substantially impair his mental responsibility for the
offence committed…His behavior during and immediately after the murder was
inconsistent with a person who claimed to be out of control…thus demonstrated
that the appellant was not substantially impaired as to absolve him of mental
responsibility for his foul crime.”
Appeal dismissed.
PP v. Chia Moh The accused was renting a flat with his friend Pang at the
Heng [2003] time of the offence. The accused woke from sleep and went
to brush his teeth at the kitchen sink. He saw a knife next
SGHC to the sink, took it and plunged it into Pang’s chest. Pang
woke up with shock and ran out of the flat where he
collapsed and died. The accused was charged under s304a
of the PC, culpable homicide not amounting to murder. He
pleaded guilty.
The accused had a history of mental illness. Medical
evidence found that he had ‘psychomotor retardation’. The
psychiatrist opined that he had a ‘schizoaffective disorder’
at the time of the offence which ‘substantially impaired his
mental responsibility for the acts that caused the death of
the deceased and that the accused qualified for the defence
of diminished responsibility because of the impairment to
his mind caused by the disorder.
The distinction The court found that in the eyes of the layman and any reasonable man, the
between s84 and accused with his long history of mental illness was undoubtedly of unsound mind,
Exception 7 and the or insane.
difficulties it poses.
The court then considered the distinction between s84 and exception 7. “Section 84
is an absolute defence – and the burden of proving so is on the accused – the
accused may be acquitted and pursuant to s315 of the CPC, be ordered to be kept in
safe custody and subsequently be confined in mental hospital or other suitable
place during the President’s pleasure. A person to whom Exception 7 applies is
guilty of culpable homicide but by reason of that exception, culpable homicide is
not murder and he cannot, therefore, be tried of or convicted on a capital charge.”
The DPP argued that the accused is a danger to himself and society as long as he
was laboring under the schizoaffective disorder and submitted that a sentence of
life imprisonment should be imposed. The defence instead recommended that
should a sentence of life imprisonment be handed down, the court should instead
incarcerate the accused in a mental institution. This, however, could only apply if
s84 applied.
The court stated that the accused had precluded himself from the s84 defence by
pleading guilty although it accepted that an order under s315 of the CPC was the
most appropriate in the present circumstances. It also found that s84, by reason of
its stringent requirements, has proved to be virtually inaccessible to accused
persons who are mentally ill…difficulty arises as it compels doctors and courts to
draw a distinction between insanity and acts of insanity.
There is also “difficulty in determining whether an insane person was capable
of knowing the nature of his act, or that what he was doing was either wrong
or contrary to law.” In practice, that depends very much on what he tells the
examining psychiatrist. How badly his perception of himself and his own conduct
was been warped/preserved by his illness has not been raised in any antecedent
case.
The court, using the protection of the public and the accused himself, sentenced
him to life imprisonment.
Zailani Bin The appellant was convicted of murder committed in
Ahmad v. PP furtherance of the common intention with his girlfriend
[2005] Rachel. The appellant had killed the deceased in the course
of a robbery at the deceased’s living quarters.
SGCA
At trial, one of the defences the appellant relied on was the
defence of diminished responsibility, claiming that his
mental responsibility had been substantially impaired as a
result of him having consumed drugs and alcohol.
The medical witness for the defence, Dr Lim, testified that
the appellant was laboring under a paradoxical stimulant
effect at the time of the killing, as a result of having
consumed the drugs and alcohol. The defence argued that
this effect substantially impaired the appellant’s mental
responsibility and caused the appellant to become
aggressive, leading to the killing.
The trial judge dismissed the appellant’s defence on the
ground that the medical evidence for the defence was
inconsistent with the accused’s actions and manifestations
at the time of the killing.
The appellant appealed to the Court of Appeal.
Whether the defence The court examined the evidence and concluded that it was clear that the
of DR was made out. appellant’s arguments were devoid of merit and that he had failed to establish that
he was suffering from diminished responsibility at the time of the offence. The
appellant’s arguments only listed the types of ‘mental’ illnesses he allegedly
suffered from, without explaining whether these illnesses actually resulted in his
mental responsibility being substantially impaired at the time the offence was
committed.
The judge referred to the 3 limbs that the appellant had to establish in order to
satisfy the court that he was indeed suffering from diminished responsibility at the
time of the offence [Mansoor v. PP]
The court then explained why it opined that the appellant had not, on a balance of
probabilities, established that the defence of diminished responsibility was
available to him.
2nd limb: The court decided that the trial judge was right in finding that the
appellant’s actions at the time of the offence were inconsistent with that of
suffering from a paradoxical stimulant. The court also found that since the
“appellant’s acute intoxication was a direct result of his own overdose, such
an abnormality of mind could not have been a result of one of the specified
causes in the defence of diminished responsibility.” – Self-induced intoxication
does not satisfy DR.
3rd limb: The court found upon examination of the evidence adduced by and on
behalf of the appellant that it was “clear he was vainly attempting to
compartmentalize his mental responsibility during the time of the offence into
split-second journeys of rational thinking and substantial impairment.”
The court agreed with the trial judge’s finding that the appellant’s ‘levels of
awareness and reaction were quick and sharp’ and that there ‘was nothing in his
actions that was unpredictable or unmeasured’ and thus found that the appellant
had failed to establish the defence of diminished responsibility on a balance of
probabilities.
 Appeal dismissed

Took Leng The appellant appealed against his conviction for murder, Whether the evidence The court stated that the accused had to satisfy the 3-limb test to successfully plead
How v. PP under s300 of the PC of Huang Na, a 8 year old female. adduced at trial in the defence of diminished responsibility.
[2006] support of the
appellant’s allegation Court stated that “limb (b), otherwise known as the etiology or root cause of the
SGCA that he was suffering abnormality, is largely a matter within the purview of expert opinion. Limbs (a)
from schizophrenia at and (c), however, are matters which cannot be the subject of any medical opinion
the material time had and must be left to the determination of the judge, as the finder of fact”
substantiated the
appellant’s defence of The court brought emphasis to limb (a) which “requires the court to be satisfied
diminished not only of the fact that the accused was suffering from a condition that a
responsibility. reasonable man would consider abnormal, but further that the abnormality was of
such a degree as to impair the accused’s cognitive functions or self-control... Limb
(a) should never be deemed satisfied unless the extent of the purported
abnormality is also established. It must be remembered that the role of the court is
to determine the state of the accused’s mind at the time of the offence. As such,
more emphasis should be placed on scrutinizing the evidence pertaining to that
period”

The defence argued that there was insufficient evidence to establish any motive for
the accused’s act, thus proving that the act of killing was a ‘disorganised’ or
‘catatonic’ event; secondly, the accused had a prior history of suffering from mental
disorders; thirdly, the disposal of the deceased’s body subsequent to the killing
may not necessarily indicate that the accused was of sound mind; and fourthly, the
accused had displayed a symptom known as ‘blunting of affect.

1st contention: Motive is not an essential element of the crime. But where the
accused seeks to rely on the absence of motive to substantiate a particular defence,
it is for the accused to prove the absence. This was not done. Furthermore, even if
allowance is made for the possibility that the accused was suffering from an acute
onset of schizophrenia and thereby committed to what amounted to a senseless
act, it does not stand to reason that the accused would only exhibit one single
disorganized act and nothing more.

G Krishnasamy The appellant, motivated by feelings of jealousy over his
Naidu v. PP suspicion that his wife was having yet another affair, had
[2006] attacked his wife and was arrested, charged accordingly,
but eventually released on bail. His feeling of jealousy
SGCA continued unabated after his release, culminating in the
killing of his wife after approaching her on the pretext of
asking her to sign papers for their divorce.
At his trial for murder, the appellant raised the defence of
diminished responsibility.
The trial judge rejected the defence and convicted the
appellant.
2nd contention: There was nothing to indicate that the accused’s earlier behaviour
was anything but normal…the “facts paint a picture of a man suffering from the
rigors of a demanding job rather than one who is suffering from some form of
mental abnormality”
3rd contention: …it is possible for a person who had suffered an acute onset of
schizophrenia to suddenly regain his sense after committing the act of killing and
attempt to hide the damning evidence…any inferences to be drawn from the
accused’s conduct in disposing of the deceased’s body must be drawn from the
evidence in its entirety.
4th contention: The court found that the facts showed that the accused was fully
capable of expressing his emotions during the commission of the offence and
shortly thereafter.
The court considered that the accused had exhibited no mental symptoms prior to
the killing of the deceased and also his conduct during and after the killing. The
court also considered how he was capable of appreciating the nature of his acts
when he spoke to the police. The court thus found that the defence of diminished
responsibility was not available to him.
Appeal dismissed.
Narrow inquiry Vs The court referred to the 3-limb test and fond that it was a reference which
broad inquiry of sometimes admits of misapplication, as was in this case. The conclusion at one
stage may be irreconcilable with another. It should instead be read as a whole.
The court below had found that the first and second limb of the test was satisfied.
However, the court below found that the third was not satisfied. It had found that
the mental responsibility of the appellant was not substantially impaired and this
was upon taking into account the appellant’s pre-meditation as well as his
awareness of the penalty for murder and that he wavered in carrying out the plan.
‘‘This is where the examination of Exception 7 in 3 distinct steps instead of a single
whole had resulted in a serious incongruity. When a person has already been
determined to be suffering from an abnormality of mind in present circumstances,

On appeal, it was argued that the findings of the trial judge
that the mental responsibility of the appellant was not
substantially impaired was wrong.
Ong Pang Siew The appellant was charged and convicted of the murder of
v. PP [2011] his 15 year old step-daughter. The appellant was the
former husband of the deceased’s mother, Xiu whom he
SGCA married in 2002. The appellant then made arrangements
for the deceased to continue her education in Singapore.
Xiu gave birth to their son, GHK, but their relationship
deteriorated and they divorced in 2007.
On the day of the incident, the appellant called Xiu to ask
for access to GHK. He had been drinking and a heated
quarrel ensued. The appellant decided to go to Xiu’s flat to
how does one determine what sort of conduct, and at which point that person’s
action may be said to be impaired, and when it has not? If the court has not
determined that the person had suffered any abnormality of mind, then it might
take such actions and conduct into account in deciding whether or not there was
sufficient evidence of abnormality…it is a difference that would be better
appreciated…by asking…’Did the accused suffer from an abnormality of mind as
substantially impaired his responsibility?’’
The court found a conceptual distinction between applying the 3-stage test and
answering the composite question. By applying the 3-stage test, “it had
narrowed the sphere of its inquiry, from the broader one of whether the
appellant had an abnormality of mind that substantially impaired his mental
responsibility, and obligated itself to explain why it did not follow the more
natural conclusion that the appellant’s mental responsibility was probably
substantially impaired since he had an abnormality of mind caused by the
illness”. The court eventually found that the court below had not made the right
inference, especially given the well-reasoned medical evidence and the accepted
facts.
Conviction for murder set aside, convicted instead for culpable homicide not
amounting to murder.
Whether the defense Court went to reestablish the law of DR:
of DR had been made - That limb a and c are matters that cannot be the subject of medical opinion
out. and must be left to the determination of the judge.
- The test for ‘abnormality of mind’ “is not necessarily ‘the borderline of
insanity’” as stated in Elan Rose v The Queen [1961].
- Lord tucker correctly emphasized that “a man may know what he is
doing and intend to do it and yet suffer from such abnormality of
mind as substantially impairs his mental responsibility”
- “What in fact amounts to substantial impairment of mental responsibility
is largely a question of commonsense to be decided by the trail judge as
the finder of fact.”
- “Substantial does not require total impairment; neither is it trivial
 wait for GHK.
The Appellant was seen talking normally to the deceased
but later there was a scream and the appellant was seen
banging the deceased’s head against the floor and
repeatedly asking ‘Who am I’. Deceased died due to
strangulation.
The appellant relied on defence of diminished
responsibility, but it was rejected.
Muhd Bin The appellants were convicted of the murder of a 69-year-
Kadar v. PP old woman in the course of a robbery.
[2011]
SGCA
nor minimal…whether an accused’s mental responsibility was
substantially impaired is ultimately a question to be decided by the
court based on all the evidence before it”
- “‘abnormality of mind’ is wide enough to over all aspects of the mind’s
activities including transient or ephemeral manifestations of illnesses”
- “The exception would also not apply to emotions of rage, prejudices, hate,
passing jealously and the like unless they are due to inherent causes rather
than external stimuli alone. However, if those emotions trigger an inherent
internal derangement that culminates in a pathological condition, then the
exception could apply”
In review of the other evidences, the appellant’s violence was not in keeping with
his character and temperament; it was curious why even though the appellant had
committed murder, he would be unduly concerned over an inconsequential matter
such as informing that he would not be able to carry out his driving assignment the
next day.
Court favored Dr. Tan’s report and reasoned that the appellant’s actions before,
during and after the incident were irrational, inexplicable and unexplainable. They
“were of the view that this conduct was abnormal behavior”.
Appeal allowed.
Was the defence of DR Court went to state the 3 elements to establish the defence of DR as elaborated in
made out. Ong Pang Siew v PP [2011], and went to explain what constitutes an ‘abnormality
of the mind’ as in R v Byrne [1960].
Court found no reason to differ from the trail judge’s assessment of Muhammad’s
state of mind at the material time and rejected the medical assessment of Dr. Fones.
Court found that the “conduct of Muhammad after attacking the deceased also
indicates that he was firmly in control of his mental faculties and was able to think
and act rationally… all these steps to conceal his role in the killing cumulatively
suggest clarity of thought and that a rational mind was at work, and further
support the conclusion that he was no suffering from an abnormality of mind.”

PP v. Wang The accused was charged with 3 counts of murder (of
Zhijian [2012] Zhang, Feng and Yang) under s300 of the PC.
SGHC Zhang had initially been in a romantic relationship with
the accused. Zhang had subjected the accused to constant
emotional abuse. On the day of the incident, Zhang had
berated the accused, a few hours later, he fetched a knife
from the kitchen and stabbed Zhang repeatedly around 40
times. When Feng opened the door, the accused stabbed
her in the abdomen until she collapsed and died.
The accused then went to the kitchen to retrieve a chopper
before attacking Yang and Li. The accused cut Yang’s
fingers with a knife, causing her to lose her grip and plunge
down six storeys to her death.
Both prosecution and defence reports showed that the
accused was suffering from a medical condition known as
‘adjustment disorder’ but disagreed on whether it had
substantially impaired the mental responsibility of the
accused.
Appeal of DR dismissed.
Whether the accused Court found that the accused had satisfied limbs a and b of the defence of DR for all
could rely on the 3 murder charges.
defence of DR for all 3
murders. When considering limb c, court recognized that “the phrase ‘substantially
impairs his mental responsibility’ in the defence of diminished responsibility
had has no precise definition and endorsed Ashworth J’s common-sense
definition of ‘substantially’ in R v Lloyd [1967]”
For the murder of Zhang and Feng:
Court was of the opinion that the facts were consistent with the description of a
person who had anger building up in him, coupled with his adjustment disorder,
had gone into a “frenzy” and was unable to control himself. With the murder of
Feng, the “similar nature of the attacks on Zhang and Fend, in terms of type,
location and number of wounds” led the court to hold that the defence of DR could
be made out.
For the murder of Yang:
Court found that there was “sufficient interval of time for Wang to substantially
recover his mental faculties and self-control” and “able to exercise greater self-
control”. They opinioned that the killing of Yang was in “order to silence them” as
they had witnessed the attack, and the fact that the accused was able to “converse
coherently” and “could issue calculated instructions” with Li showed that “his
mental responsibility for his acts was no longer impaired”. Court also reasoned that
the killing of Zhang would have “assuaged his anger” and there was enough time
“for reason to resume its seat”. On the evidence, “his acts were clearly deliberate,
purposeful, directed and methodical”. Hence, defence of DR for murder of Yang not
made out.
Find Wang guilty of his murder of Yang. Sentenced to death.