2008 9 SALAnnRev 247 Criminal Law

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(2008) 9 SAL Ann Rev Criminal Law 247

11. CRIMINAL LAW

Stanley YEOLLB (Hons) (University of Singapore), LLM (Hons) (Wellington),LLM (Hons), PhD, LLD (Sydney);Professor, Faculty of Law, National University of Singapore.

General concepts

Motive and intention

11.1 It is a well-established principle of criminal law that anaccuseds motive is distinguishable from his or her intention. Thisprinciple was reiterated by the Court of Appeal in Mohammed Ali binJohari v PP [2008] 4 SLR 1058 which, however, provides a good

illustration of the way motive can sometimes assist with provingintention and should therefore not be dismissed by a trial court. Theappellant was convicted of murdering his two-year-old stepdaughter bydrowning when he immersed her several times in a pail of water to stopher crying. The post-mortem examination of the deceased showed thatshe had been sexually interfered with and, in the course of the trial, theallegation was made that the appellant was the culprit and had killed thechild to cover up his acts by silencing her.

11.2 One of the grounds of appeal was that the trial judge had erredin deciding that the alleged molestation had a limited bearing on thecharge of murder. The appellate court agreed, holding that, while motive

was not an essential element of murder, it could in circumstances suchas those before the court cast valuable and significant light on theintention of the accused: Mohammed Ali bin Johari v PP [2008]4 SLR 1058 at [67]. This was especially needed since there were noindependent eyewitnesses present at the scene of the crime. In itsdeliberations, the Court of Appeal referred to several Singaporepronouncements on the relationship between motive and intention, andfound the following comment by Yong Pung How CJ in PP v Oh LayeKoh [1994] 2 SLR 385 at [26] particularly helpful, namely, thatintention is to be distinguished from motive, even though thepresence of motive may bolster the inference that an intention tocommit the offence was existent.

Hurt under the Penal Code

11.3 This issue came before the Court of Appeal in PP v Kwong KokHing[2008] 2 SLR 684 in the context of sentencing the respondent for


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248 SAL Annual Review (2008) 9 SAL Ann Rev

the offence of attempting to commit culpable homicide under s 308 ofthe Penal Code (Cap 224, 1985 Rev Ed). That section provides for anincreased penalty if hurt were caused. The present case involved therespondent pushing the victim onto the tracks in front of anapproaching train. Although the victim had suffered only superficial

physical wounds as a result, she experienced longstanding psychologicaltrauma. In passing sentence, the judge interpreted hurt under s 308 tomean physical harm, whereupon the Prosecution appealed on theground that this was an error of law and, consequently, that the sentenceimposed was manifestly inadequate. The Court of Appeal agreed,holding that the meaning of hurt under the Penal Code could extendto psychological trauma. It reached this conclusion by noting that theterm is defined in s 319 of the Code as constituting bodily pain, diseaseor infirmity [emphasis in original] and also citing a passage from theSind High Court case of Jashanmal Jhamatmal v BrahmanandSarupanand AIR 1944 Sind 19 that it could include mental harm. TheCourt of Appeal went on to clarify that, while the duration of theinfirmity was normally irrelevant in establishing hurt, where it was longterm in nature such as in the case before it, this fact was relevant and,indeed, often crucial to sentencing: PP v Kwong Kok Hing [2008]2 SLR 684 at [27].

Specific offences

The fault element for murder under s 300(c) of the Penal Code

11.4 The Court of Appeal in Mohammed Ali bin Johariv PP [2008]4 SLR 1058 reaffirmed the statement made in its earlier decision of PP vLim Poh Lye [2005] 4 SLR 582 that the Indian Supreme Court case of

Virsa Singh v State of PunjabAIR 1958 SC 465 contained [t]he time-honoured pronouncement on s 300(c). The Court of Appeal noted(Mohammed Ali bin Johari v PP [2008] 4 SLR 1058 at [62]) that thecrucial point of this pronouncement was that s 300(c) of the Penal Code(Cap 224, 1985 Rev Ed) comprised two limbs. The first of these requireda court to ascertain whether the accused subjectively intended to inflictthe specific injury which the victim had suffered. Should this be proven,the court had then to ascertain, on an objective basis, whether thatparticular injury was sufficient in the ordinary course of nature tocause death. The court also emphasised that these two limbs cannot beconflated for otherwise they would result in the provision being read asrequiring an accused to intend to inflict an injury which was sufficient

in the ordinary cause of nature to cause death. Such a situation wouldfall squarely within s 300(a) of the Penal Code, namely, that the accusedintended to cause death.


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(2008) 9 SAL Ann Rev Criminal Law 24911.5 On the evidence before it, the court was satisfied beyond areasonable doubt that the appellant had, by immersing the deceasedshead into the pail of water, intended to cause the specific injury whichthe deceased suffered, which injury was sufficient in the ordinary courseof nature to cause death. Of the injury caused, namely, death by

drowning, the court (Mohammed Ali bin Johari v PP[2008] 4 SLR 1058at [68]) said: [t]o state that such a serious injury was sufficient in theordinary course of nature to cause death must be an understatement ofthe highest order.

Lack of consent as the key feature of rape

11.6 In PP v Lim Hwang Ngin Lawrence[2008] SGHC 171, an officerof the Serious Sexual Crime Branch (SSCB) had, in the course of apolice interview, informed the alleged victim that the offence of rapeunder s 375 of the Penal Code (Cap 224, 1985 Rev Ed) was committed ifthe accused had forced or threatened her into engaging in sexual

intercourse with him. Consequently, the victim had stated that theaccused had not raped her because he had not forced or threatened herin any way before or during the sexual intercourse, and that she had infact been sexually aroused when he used his fingers to stimulate hervagina. At the trial, Kan Ting Chiu J criticised the officers handling ofthe case by observing that, if the officer had a proper legalunderstanding of the offence of rape, she would not have told the victimthat there was no rape without force or threat, and would instead haveadvised her that rape is sexual intercourse without consent. He went onto stress (at [44]) that [i]t is important that SSCB investigators haveproper understanding of the offences they investigate. They should referto the Penal Code or any applicable statutes when they inform andquestion victims or suspects of the offences that they are investigating.

11.7 Kan Ting Chiu J was of course correct in holding that the cruxof the offence of rape under the Penal Code (Cap 224, 1985 Rev Ed) isthe victims lack of consent. This is even clearer now with the deletion ofthe former s 375(a) of the Penal Code where the nebulous concept ofagainst her will was used. The new s 375(1) defines rape as [a]ny manwho penetrates the vagina of a woman with his penis (a) without herconsent . The emphasis on consent (and not whether there was forceused or active resistance by the victim, and so forth) can also be seen inthe new s 377C(a), which provides that there can be a case of rape evenif there was initial consent but this was subsequently revoked during theact of sexual intercourse.


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The mental state of not caring under Securities and Futures Act

11.8 By virtue of s 199(i) of the Securities and Futures Act (Cap 289,2006 Rev Ed) (SFA), it is an offence for a person to make a false ormisleading statement or disseminate false or misleading information

and who does not care whether the statement or information was trueor false. The issue before the High Court in PP v Wang Ziyi Able[2008]2 SLR 61, hearing an appeal against an acquittal of the respondent forthis offence, was the meaning to be given to the fault element of doesnot care for the purposes of s 199(i). The respondent was a fulltimeprivate equities trader who had made two postings on the forum of awidely accessed financial portal alluding to a raid on a company by theCorporate Affairs Department of the Singapore Police Force. He hadacted on unverified information supplied by a friend. The postingscaused the companys share prices to fall before the company was able toclarify that no raids had occurred.

11.9 As a preliminary matter, the High Court held that the trial judgewas incorrect to have interpreted the fault element in question in termsof being concerned about the truth of the statement or information.The court held that this form of fault comprised a subjective mentalstate, after noting that an objective form of fault was already recognisedunder s 199(ii), namely, ought reasonably to have known that thestatement or information was false or misleading. Since this latter formof fault is often equated with negligence, the adoption of an objectivetest of recklessness, as contended for by the prosecution, would result inboth sub-ss 199(i) and 199(ii) of the SFA being virtually synonymous:PP v Wang Ziyi Able[2008] 2 SLR 61 at [74]. The court then proceededto determine the nature of this subjective mental state by reference tothe celebrated English case of Derry v Peek (1889) 14 App Cas 337 on

the fault element for deceit and s 999 of the Australian CorporationsLaw (Cth) which is similar in wording to s 199 of the SFA. Based on itsanalysis of these sources of law, the court held that does not care unders 199(i) involves subjective dishonesty in the dissemination of a falsestatement or misleading information. By way of elaboration, the courtstated that such dishonesty could be established regardless of theaccuseds motive. Also, when deciding whether the accused wasdishonest, account could be taken of whether there were grounds onwhich a reasonable person having the attributes of the particularaccused would have believed in the truth of the statement orinformation. However, this objective analysis was only of evidentiaryrelevance, with the test of dishonesty remaining ultimately purely

subjective: PP v Wang Ziyi Able [2008] 2 SLR 61 at [88]. As such,evidence of a lack of honest belief might be outweighed and inferencesof dishonesty rebutted.


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(2008) 9 SAL Ann Rev Criminal Law 25111.10 In the case before it, the High Court found that the respondentdid not have an honest belief in the truth of the information supplied byhis friend. This finding was supported by the fact that an individualsuch as the respondent, with his experience in the securities market,could not have reasonably believed in the truth of such information.

Ancillary liability

11.11 The Penal Code (Cap 224, 1985 Rev Ed) contains severalprovisions which embody the doctrine of common purpose found incriminal law systems around the world. That doctrine enables criminalresponsibility to be attached to an accused for a crime committed byanother person on the basis that the crime was part of the commondesign agreed upon by the accused and that other person. The primaryprovision is s 34 which reads:

When a criminal act is done by several persons, in furtherance of thecommon intention of all, each of such persons is liable for that act inthe same manner as if the act were done by him alone.

11.12 This provision purports to lay down a principle of generalapplication to address situations where it is difficult to prove the exactrole of the parties to a joint criminal enterprise and to determine theirindividual liability for acts done in furtherance of the commonintention of all those involved. The problem with s 34 is that it fails toclearly articulate the principle at hand due to the vagueness of the clausein furtherance of the common intention of all. This clause has vexednot only our courts but those of India and jurisdictions like Malaysia,Northern Nigeria and the Sudan which have adopted the Indian PenalCode.

11.13 The Court of Appeal in Lee Chez Kee v PP [2008] 3 SLR 447grappled at length with some of the main controversies occasioned bys 34. The facts of the case were that the appellant was one of a gang ofthree which had planned to rob the deceased, who knew them all well.Prior to the robbery, the gang had agreed to use a knife to threaten thedeceased and had discussed their concern that the deceased wouldidentify them to the police. During the course of the robbery, theappellant had inflicted a non-fatal wound on the deceased with theknife, but it was another gang-member who had caused death bystrangulation. The trial judge convicted the appellant of murder byinvoking s 34 as interpreted by earlier decisions of the Court of Appeal.

The appellant then appealed to the Court of Appeal against hisconviction. That court delivered a unanimous judgment (the mainjudgment was delivered by V K Rajah JA) in respect of the issues itcovered pertaining to s 34. Applying those pronouncements to the


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evidence before it, the court upheld the appellants conviction formurder.

11.14 The Court of Appeal noted that some of its earlier decisions ons 34 were either inconsistent with one another or else unclear, and that

the present case was a good opportunity to clarify the law. The issuewhich took the court the most effort to resolve concerned twin crimesituations such as the one before it, where members of a joint criminalenterprise agree on their main goal to commit a primary criminal act(eg, robbing) but did not share the intention of one of the members toalso commit a collateral criminal act (eg, killing) which was incidental tothe main goal. The question was what s 34 requires by way of the fault(or mens rea) of a group member (described by the court as thesecondary offender) for him or her to be liable for the collateraloffence committed by the member who had performed both theprimary and collateral criminal acts (described by the court as theprimary offender). Before examining the answer the Court of Appealgave to this question and its reasons for doing so, some of the otherpronouncements by the court on s 34 are worth noting.

Criminal act and participation under s 34 of the Penal Code

11.15 The Court of Appeal considered the meaning of the expressioncriminal act found in s 34 of the Penal Code (Cap 224, 1985 Rev Ed).It noted that some Singapore decisions had erroneously regarded thisexpression as being synonymous with offence as defined in s 40 of thePenal Code. The court clarified the position by holding that (Lee ChezKeev PP[2008] 3 SLR 447 at [137]):

When it is said that several persons do a criminal act in furtherance

of their common intention, the meaning is not that they commit anoffence in furtherance of their common intention. It is not theoffence that they plan or carry out but it is an act or a continuum ofacts.

11.16 The Court of Appeal also dealt with the question of whethers 34 requires the secondary offender to have been physically present atthe scene of the crime. It noted that in one of its own judgments,namely, PP v Gerardine Andrew[1998] 3 SLR 736 at [34], such presencewas held to be an indispensable requirement of participation, which wasthe main feature of s 34. The court had there made this ruling afterfinding that Indian case authorities were divided on the matter. In LeeChez Kee v PP [2008] 3 SLR 447, the Court of Appeal overturned its

earlier decision by holding that the correct approach was to consider, asa question of fact in each case, whether the accuseds participation wasto such a degree that it made him or her as culpable as the primaryoffender. The court also held that physical presence at the scene of the


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(2008) 9 SAL Ann Rev Criminal Law 253criminal act, whether primary or collateral, may or may not provideevidence of participation depending on the circumstances of the case.The court found support for its ruling by observing that moderntechnological advances enabled assistance in committing an offence tobe given from a distance.

11.17 Still on the issue of participation required by s 34, the Court ofAppeal considered the question of whether, in relation to twin crimesituations, the secondary offender had to have participated in theprimary criminal act as well as the collateral criminal act. The courtnoted that in its earlier decision of PP v Gerardine Andrew [1998]3 SLR 736, participation in the collateral criminal act was held to benecessary (at [23]). In the present case, the court overruled this decisionafter noting that if participation was required in respect of the collateralcriminal act, it was very likely that the common intenders would all haveintended the commission of the collateral act in the first place whichwould take the case outside twin crime situations (Lee Chez Kee v PP[2008] 3 SLR 447 at [157]). Accordingly, the court concluded that alls 34 required was for the secondary offender to have participated in theprimary criminal act.

The controversy over in furtherance of the common intention of allunder s 34 of the Penal Code

11.18 The Court of Appeal began its discussion of this issue by statingthat the controversy surrounding the meaning of in furtherance of thecommon intention of all in s 34 of the Penal Code (Cap 224,1985 Rev Ed) arises only in relation to twin crime situations. These aresituations where the primary offender commits a collateral offencewhich had not been agreed upon by the parties as forming part of thecommon intention. No problem is encountered in respect of singlecrime cases since all the parties to the criminal enterprise would haveshared the intention to commit the criminal act which occurred eventhough only one of them may have committed it. In thesecircumstances, s 34 renders all the parties criminally liable for theoffence resulting from the criminal act committed if it were shown thatthe remaining parties had participated in the criminal act in some wayor other: Lee Chez Kee v PP[2008] 3 SLR 447 at [120].

11.19 The court went on to express the controversy to be resolvedconcerning twin crime situations in the following terms (Lee Chez Keev PP[2008] 3 SLR 447 at [120]):

The issue which is in need of clarification is the fault element requiredof the parties under s 34 of the Penal Code in order to hold themliable for the offence which results from the collateral criminal actcommitted by one or more unidentified members of the group.


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11.20 As a preliminary matter, the court noted that the lexicaldefinition of the word in furtherance as helping forward,advancement, aid, assistance did not shed much light on the matter(Lee Chez Kee v PP[2008] 3 SLR 447 at [221]). With no help from thewording of s 34 of the Penal Code (Cap 224, 1985 Rev Ed), the courts in

Singapore, India and other jurisdictions where s 34 operated had toformulate their own answer to the question of what form of fault wasrequired of the secondary offender in cases where that primaryoffenders intention in doing the criminal act did not coincide squarelywith the common intention of the secondary offender. The Court ofAppeal observed that the Singapore courts had, over the years, given thefollowing five differing answers to this question (for a detaileddiscussion of the Singapore cases supporting answer 1, see Lee Chez Keev PP [2008] 3 SLR 447 at [162][167]; and for cases supportinganswers 2 to 5, see Lee Chez Kee v PP[2008] 3 SLR 447 at[224][235]):

(a) an intention to commit the collateral crime;

(b) subjective knowledge of the likelihood of the collateralact being committed;

(c) objective foreseeability of the likelihood of the collateralact being committed;

(d) strict liabilityper se; and

(e) strict liability plus an intention of the actual doer tofurther the common intention.

11.21 The first three of these are largely self-explanatory. As for theconcept of strict liability under the fourth and fifth answers, it coverscases where the secondary offender is held liable for the collateral crimeupon proof that the commonly intended criminal activity

led to or

resulted in that crime. Consequently, what was known or could havebeen known by the secondary offender as to the likelihood of thecollateral act being committed was irrelevant.

11.22 Throughout much of its analysis of the controversysurrounding the meaning of in furtherance of the common intentionof all under s 34 of the Penal Code (Cap 224, 1985 Rev Ed), the courtengaged with the views of Professor Michael Hor expressed in an articleentitled Common Intention and the Enterprise of ConstructingCriminal Liability (1999) Sing JLS 494. In particular, the courtconsidered but rejected Hors contention that the fault element of thesecondary offender for the collateral criminal act committed by the

primary offender is not to be found in s 34 but in s 35 of the Penal Code:Lee Chez Kee v PP [2008] 3 SLR 447 at [177][180] and [213][215].That section provides that the secondary offender is liable only if he or


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(2008) 9 SAL Ann Rev Criminal Law 255she possessed such knowledge or intention as would render him or herliable for the collateral criminal act.

11.23 After a lengthy examination of historical material, cases andacademic commentaries from both local and foreign sources, the Court

of Appeal came down in favour of subjective knowledge by thesecondary offender of the likelihood of the collateral act beingcommitted (hereinafter described as the subjective knowledge test).The court rejected the test comprising an intention to commit thecollateral offence despite noting that the Supreme Court of India andMalaysian courts had supported it: Lee Chez Kee v PP[2008] 3 SLR 447at [183] and [186]. The court rejected this test on the ground that,otherwise, the words in furtherance appearing in s 34 of the PenalCode (Cap 224, 1985 Rev Ed) would be superfluous: at [253]. However,the courts reasons for rejection went well beyond the mere wording ofs 34 to include what it regarded to be strong and sound arguments,based on legal history (at [188][195]) and legal doctrine (at [196][212]and [250]), for supporting the subjective knowledge test.

Abetment and other closely related provisions

11.24 The detailed analysis by the Court of Appeal in Lee Chez Kee vPP[2008] 3 SLR 447 of the abovementioned controversy resulted in thecourt considering other closely related provisions of the Penal Code(Cap 224, 1985 Rev Ed) dealing with ancillary liability. The courtobserved that the Penal Code gave effect to the common purposedoctrine, not only under s 34, but also ss 111, 113 and 149.

11.25 Regarding s 111 of the Penal Code (Cap 224, 1985 Rev Ed), thecourt acknowledged that, on its face, the test was cast objectively interms of the act done was a probable consequence of the abetmentwhich differed from the subjective knowledge test subscribed to in s 113.The court also noted that this objective reading of s 111 had been givenby some Indian courts. On the other hand, the court referred to twoearlier local cases, Mok Swee Kok v PP [1994] 3 SLR 140; and Ang SerKuang v PP [1998] 3 SLR 909, where the courts had left open thequestion of whether an objective or subjective interpretation should beapplied to the phrase probable consequence in s 111. The court foundin favour of applying a subjective interpretation, agreeing with thearguments for this position put forward by Professors Stanley Yeo, NeilMorgan and Chan Wing Cheong in Yeo, Morgan & Chan, Criminal Lawin Malaysia and Singapore (LexisNexis, 2007) at paras 34.4334.44.

Specifically, the court opined that the dichotomy between act(in s 111) and effect (in s 113) is much too close to justify theapplication of an objective test to one, and a subjective test to theother: Lee Chez Kee v PP[2008] 3 SLR 447 at [241]. This finding meant


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that s 34, along with ss 111 and 113, applied the same test of subjectiveknowledge of the likelihood of the act happening. The result was thepleasing one of achieving consistency among the provisions in the PenalCode which manifest the common purpose doctrine. (See furtherK Amirthalingam, Clarifying Common Intention and Interpreting s 34:

Should there be a Threshold of Blameworthiness for the Death Penalty?(2008) Sing JLS 435 for a critical evaluation of this test when applied tooffences attracting the mandatory death penalty.)

11.26 Turning its attention to s 149 of the Penal Code (Cap 224,1985 Rev Ed), the court noted that the provision contained the clausein prosecution of the common object of the assembly. That clause hadbeen considered by the High Court in PP v Fazely bin Rahmat [2002]4 SLR 655, where the two accused were charged with murdering S, whohad been fatally stabbed by other members of their gang. Their defencewas that they did not know that knives were being carried by the others.The court acquitted them after interpreting in prosecution of thecommon object of the assembly as requiring proof that the accusedknew of the gangs common object to cause hurt by dangerous weapons.The Court of Appeal in Lee Chez Kee v PP[2008] 3 SLR 447 endorsedthis ruling, and went further to say (at [246]):

[T]he expressions common object and common intention should beinterpreted as meaning the same thing. Indeed, in our analysis of theold English cases above, the two expressions are used interchangeablywith such other expressions as common purpose. These all mean thesame thing. I should not, as a line of decisions appear to have done,attempt to draw fine distinctions where such distinctions do not exist.

11.27 The court then said that, given the similarity between ss 34 and149 of the Penal Code (Cap 224, 1985 Rev Ed), a subjective knowledge

test would bring conformity to both provisions. The court concludedwith the statement that [u]ltimately, this would have the effect ofharmonising ss 34, 111, 113 and 149 of the Penal Code, whichundoubtedly overlap to some extent, as requiring subjective knowledgeto affix liability for unintended consequences: Lee Chez Kee v PP[2008]3 SLR 447 at [247].

11.28 In sum, Lee Chez Kee v PP[2008] 3 SLR 447 is a landmark casewhich has radically changed the way our courts approach ss 34, 35, 111and 149 of the Penal Code (Cap 224, 1985 Rev Ed). The most significantdevelopment has been the ruling by the Court of Appeal that in twincrime situations, the secondary offender must subjectively know that

one in his party may likely commit the criminal act constituting thecollateral offence in furtherance of carrying out the primary offence(at [253]).


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(2008) 9 SAL Ann Rev Criminal Law 257Criminal defences

Accident

11.29 In Tan Chor Jin v PP[2008] 4 SLR 306, the Court of Appeal hadoccasion to clarify several issues pertaining to the defences of accident,intoxication and private defence provided for under the Penal Code(Cap 224, 1985 Rev Ed). The appellant (Tan) was convicted by theHigh Court under s 4 of the Arms Offences Act (Cap 14, 1998 Rev Ed)of discharging a gun with intent to cause physical injury. Tan had goneto the flat of the victim (Lim) to retrieve a loan and had armedhimself with a gun on account of an alleged threat made by Lim. Upongaining entry into the flat, Tan tied up Lim and his family and ransackedthe flat. The Prosecution contended that Tan had shot at Lim whosehands were tied whereas Tan submitted that he had fired at Lim onlywhen Lim had suddenly attacked him with a chair.

11.30

Tan appealed on the ground that the trial judge had erred inrejecting his pleas that the discharge of the gun was an accident;alternatively, that he was intoxicated at the time or else that he had doneso in self-defence.

11.31 In relation to the defence of accident which is provided for bys 80 of the Penal Code (Cap 224, 1985 Rev Ed), the Court of Appealidentified the conditions of the defence as comprising four parts,namely:

(a) The act done by the accused was the result of accidentor misfortune.

(b) The said act was done without any criminal intentionor knowledge.

(c) The act was lawful and was performed in a lawfulmanner, by lawful means.

(d) The act was done with proper care and caution.

11.32 The court found that the third and fourth conditions were notsatisfied as it was obvious that everything that Tan had done in Lims flatwas unlawful and without proper care and caution. Noting that thePenal Code (Cap 224, 1985 Rev Ed) does not define lawful act for thepurposes of s 80, the court accepted Indian case authorities which haveadopted the English common law view that unlawful conduct might be

either conduct which is unlawful in itself (ie, crimes malum in se) orconduct which would not be a crime except for it being made one bylegislation (ie, crimesmalum prohibitum).


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Intoxication

11.33 A significant ambiguity in the law of intoxication was cleared bythe Court of Appeal in Tan Chor Jin v PP[2008] 4 SLR 306. The issueconcerned the types of cases envisaged by s 85(2)(b) of the Penal Code

(Cap 224, 1985 Rev Ed), which reads:Intoxication shall be a defence to any criminal charge if by reasonthereof the person charged at the time of the act or omissioncomplained of did not know that such act or omission was wrong ordid not know what he was doing and the person charged was, byreason of intoxication, insane, temporary or otherwise, at the time ofsuch act or omission.

11.34 The uncertainty was over the clause insane, temporary orotherwise. As a preliminary matter, the court observed that differencesin the language and history of the formulations of the defence ofintoxication under English and Indian law, compared to the provisionson intoxication in our own Penal Code (Cap 224, 1985 Rev Ed), meantthat one had to be careful when relying, if at all, on these formulations.The better course was to examine closely the wording of our ownprovisions.

11.35 The court thought that academics had expressed two divergentviews as to the meaning to be given to insane under s 85(2)(b) of thePenal Code (Cap 224, 1985 Rev Ed). One view, propounded in Yeo,Morgan & Chan, Criminal Law in Malaysia and Singapore (LexisNexis,2007) at paras 25.2625.27, was that the term was exactly the same asunsoundness of mind under s 84 of the Penal Code, with the resultthat, for a person to satisfy the defence under s 85(2)(b), he or she hadto have an underlying mental disorder. On this view, it would be

insufficient for an accused to manifest a temporary state of mentaldisorder caused by intoxication who would regain his or her normalstate of mind when the alcohol or other drug wore off. The opposingview was that the Code framers meant for there to be a distinctionbetween unsoundness of mind and insane with only the formerrequiring for the mental disorder to have a degree of permanence. Insupport of this view, the court quoted (Tan Chor Jin v PP [2008]4 SLR 306 at [23]) a passage from a case comment by Lee Kiat Seng,Case Notes: Public Prosecutor v Tan Ho Teck (1990) 2 SAcLJ 332 at 335who said that, although [ss 84 and 85] are very similar in that there isno perceivable difference between the prerequisite state of mind of theaccused, the cause of this state of mind to be proved is different, with

the cause for s 85 being intoxication. With respect, there is nothing inthis quoted comment that contends that the intoxication-inducedinsanity need not have a degree of permanence, like unsoundness ofmind. Rather, the learned commentator was merely stating that, unlikethe concept of unsoundness of mind under s 84, the cause of the


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(2008) 9 SAL Ann Rev Criminal Law 259mental disorder had to be intoxication for s 85 to operate. As for theview of Yeo, Morgan and Chan, it is respectfully submitted that thecourt failed to pay sufficient attention to an earlier part of their work(para 25.23) where they contend that the phrase temporary orotherwise merely provides that the symptoms of the insanity may be

transient [emphasis in original] and that [sub-s] 85(2)(b) will operateso long as those symptoms were present at the time of the commissionof the alleged act or omission constituting the offence charged. Thiswould then require the condition as opposed to symptoms ofinsanity to have a degree of permanence. Also, the court appears to haveerroneously thought that the authors were suggesting that any mentaldisease or defect would suffice for the purposes of s 85(2)(b) (see TanChor Jin v PP [2008] 4 SLR 306 at [25], where the court stated thats 85(2)(b) could apply to an accused even if he does not have a priormental illness or pre-existing mental deficiency). By contrast, theauthors say that s 85(2)(b) requires the mental disease or defect to havebeen caused by longstanding drug abuse (see Yeo, Morgan & Chan,Criminal Law in Malaysia and Singapore(LexisNexis, 2007) para 25.24).Such cases would properly fall within the description of unsoundnessof mind under s 84. Section 86(1) affirms this view by stipulating that,if an accused successfully invokes s 85(2)(b), s 84 of this Code shallapply.

11.36 Academic views aside, as a result of the decision of the Court ofAppeal in Tan Chor Jin v PP [2008] 4 SLR 306, it is now clear thats 85(2)(b) will apply to an accused who had experienced a temporarybout of insanity caused by self-induced (ie, voluntary) intoxication andthat it was unnecessary for him or her to be suffering from a mentaldisease or defect that was more than transient. In the words of the court(at [24]):

In short, s 85(2)(b) reinforces the point that an otherwise normalperson can, under the influence of drink or drugs, become sointoxicated that he becomes legally insane. This condition of insanitycan be transient, as opposed to the unsoundness of mind envisaged ins 84, which mustbe permanent.

11.37 The court reached this conclusion based on the phrasetemporary or otherwise in s 85(2)(b) which, in its view, could not butmean that temporary episodes of intoxication-induced insanity wouldbe covered by the provision. Furthermore, the court (Tan Chor Jin v PP[2008] 4 SLR 306 at [25]) thought it unfair for accused persons whoexperienced these episodes to be denied a defence when those who

lacked the requisite mens rea due to intoxication were entitled to anacquittal under s 86(2) of the Penal Code.

11.38 One possible explanation for this differentiation may be becauses 86(2) requires the negation of intention which is the highest form of


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fault, whereas accused persons pleading s 85(2)(b) could have had suchan intention, so long as they did not know the nature of their conductor that it was wrong. Besides, the courts ruling that s 85(2)(b) couldcover temporary episodes of intoxication-induced insanity does notexplain why a person successfully pleading such a defence will be subject

to a court order of safe custody under ss 314 and 315 of the CriminalProcedure Code (Cap 68, 1985 Rev Ed) whereas one who successfullyinvoked s 86(2) would be entitled to an unconditional acquittal. Ofaccused persons who pleaded s 85(2)(b), the court said (at [25]) that ifthey could become insane (temporary or otherwise) under theinfluence of drink or drugs [they were] a danger to society, andconsideration needs to be given to how future recurrent instances ofinsane homicide by such an accused can be prevented [emphasis inoriginal]. (The reference to homicide was on account of the fact that, inthe case before it, Tan had fatally shot Lim.)

But what does insane

mean in this context? Unfortunately, the court does not explain it otherthan to say that it could comprise a temporary intoxication-inducedepisode of not knowing the nature of ones conduct or that it waswrong. Also, it is difficult to understand why the same concern is notraised in respect of a person who could become so intoxicated as to havethe intention required for the offence charged to be negated. Ultimately,it is submitted that the clearest rationale for explaining the very differentoutcomes of ss 85(2)(b) and 86(2) is that the former, but not the latter,requires the accused to have been suffering from an intoxication-induced mental disorder having a degree of permanence which requiredtreatment.

11.39 As far as Tans appeal was concerned, even the more liberalinterpretation given to s 85(2)(b) by the Court of Appeal did not assisthim. This was because the court agreed with the trial judge that Tan had

failed to prove clinically or otherwise that he was suffering fromintoxication-induced insanity to such an extent that he did not knowwhat he was doing or that his conduct was wrong.

11.40 From a law reform perspective, the wording of s 85(2)(b) leavesmuch to be desired by having the phrase insanity, temporary orotherwise. While Tan Chor Jin v PP[2008] 4 SLR 306 may have clarifiedthe law, the courts ruling poses conceptual and practical difficultieswhich remain unresolved. The legislature should give seriousconsideration to the proposal in Yeo, Morgan & Chan, Criminal Law inMalaysia and Singapore(LexisNexis, 2007) at para 25.46 for s 85(2)(b)to be revised so as to read:

Intoxication shall be a defence to any criminal charge if by reasonthereof the person charged at the time of the act or omissioncomplained of did not know the nature of the act or that he is doingwhat is either wrong or contrary to law and the person charged was,


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(2008) 9 SAL Ann Rev Criminal Law 261by reason of intoxication, of unsound mind at the time of such act oromission.

11.41 This revision would reflect the very close similarity between thedefences of intoxication-induced insanity and unsoundness of mind

which, it is submitted, was fully accepted by the drafters of s 85(2)(b).

Private defence

11.42 The Court of Appeal in Tan Chor Jin v PP[2008] 4 SLR 306 didnot take long to reject Tans plea of private defence on the ground thathe had failed to provide sufficient evidence to support it. However, thecourt took the opportunity to clarify the law of private defence onseveral fronts. The first of these concerned the fact that Tan had beenthe initial aggressor and whether this automatically prevented him fromsuccessfully relying on private defence. The court held the correctposition to be that, while the defender generally has no right of private

defence where he or she was the initial aggressor, much will depend onthe facts of the particular case (Tan Chor Jin v PP [2008] 4 SLR 306at [45]). The court could have buttressed its ruling by referring tos 97(2) of the Penal Code (Cap 224, 1985 Rev Ed) which states thatevery person has a right to defend his own body and the body of anyother person, against any offenceaffecting the human body [emphasisadded]. Consequently, the right of private defence will be available to adefender who may have been the initial aggressor so long as the factswere such as to render the assailants attack an offence. Such an attackwould not be so described if the assailant was applying force which wasreasonably necessary to defend himself or herself, in which case, he orshe would have been lawfully acting in private defence and, therefore,not committing an offence.

11.43 Secondly, the court accepted that the provisions on privatedefence, extending as they were over 11 provisions, ie, ss 96106 of thePenal Code (Cap 224, 1985 Rev Ed), posed difficulties of comprehensionand application. To bring increased clarity to the law, the court acceptedthe proposal in Yeo, Morgan & Chan, Criminal Law in Malaysia andSingapore (LexisNexis, 2007) of categorising the various elements ofprivate defence into pre-conditions and conditions (paras 20.620.7).On this approach, a court would not need to proceed any further withan inquiry on private defence if it determined, as a preliminary matter,that either of the two pre-conditions of the defence had not beenestablished. These were:

(a) that the defender must have been the subject of anoffence (s 97 of the Penal Code); and


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(b) the defender must have sought help from the relevantpublic authorities provided there was a reasonable opportunityto do so (s 99(3) of the Penal Code).

11.44 This is a radical judicial pronouncement which, as far as thisauthor is aware, is not to be found in any of the other jurisdictionswhich criminal law is governed by the Indian Penal Code. Besides theobvious attraction of streamlining the judicial consideration of the pleaof private defence, the pre-conditions are supportable on the basis oflegal theory. As Yeo, Morgan and Chan note in Criminal Law in Malaysiaand Singapore (LexisNexis, 2007) para 20.6, the justificatory nature ofprivate defence results in norm modification by declaring that thedefenders conduct was lawful when it would otherwise constitute anassault. Society through the criminal law is prepared to effect such normmodification provided there were certain pre-conditions (orprerequisites) before the right will arise. These pre-conditions arespecified in advance for future cases to follow, and they are objective innature so as to confine the right to a fixed set of circumstances.

11.45 Thirdly, the Court of Appeal (Tan Chor Jin v PP[2008] 4 SLR 306at [46]) laid down step-by-step guidelines on how a trial judge mightdeal with the plea of private defence of the body operating as a generalexception. In line with the courts acceptance of the pre-conditions toprivate defence, the first two steps required a trial judge to considerwhether those pre-conditions were met. This was followed by aconsideration, in cases where the defender was the initial aggressor, ofthe particular facts to determine if he or she could still invoke a right ofprivate defence. The next step was to inquire whether the defenderreasonably apprehended the danger posed by an attempt or threat by thevictim to commit an offence affecting the human body. Where the

defender had killed the victim, he or she had to prove that the offencewhich occasioned the exercise of the right of private defence was one ofthe offences listed in s 100 of the Penal Code (Cap 224, 1985 Rev Ed).Finally, the trial judge would have to determine whether the defenderhad caused harm to the victim which was reasonably necessary inprivate defence [with] [d]ue allowance given to the direcircumstances under which the defender was acting (ie, step (f) of theguidelines at [46]).

11.46 It is expected that these step-by-step guidelines (Tan Chor Jin vPP[2008] 4 SLR 306 at [46]) will greatly help to ensure that the manyrequirements of the plea of private defence are properly considered by

the courts. Only two matters may be raised here. First, when layingdown the step concerning the defender having to have reasonablyapprehended the danger confronting him or her, the court describedthis as a subjective test (ie, step (d) of the guidelines). Strictly speaking,this description is only partially correct as the defenders apprehension


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(2008) 9 SAL Ann Rev Criminal Law 263(which is the subjective aspect of the test) must have been reasonable,which entails an objective inquiry. The correct position is that what isinvolved is a partly subjective/objective test and that, when consideringthe reasonableness of the defenders apprehension, due considerationshould be given to his or her personal characteristics such as age,

cultural, educational and social background (see further Yeo, Morgan &Chan, Criminal Law in Malaysia and Singapore (LexisNexis, 2007) atparas 20.2620.31). Secondly, it is significant for the development of thelaw in this field that the court had chosen to describe the response to thedanger as being reasonablynecessary [emphasis added] (step (f) of theguidelines at [46]). On the face of s 99(4) of the Penal Code (Cap 224,1985 Rev Ed), all that is stated is that [t]he right of private defence inno case extends to the infliction of more harm than it is necessary forthe purpose of defence. This provision could be afforded a restrictedmeaning by requiring the defenders response to be the minimumharmnecessary for the purpose of private defence. By stating that the responsecould be reasonably necessary, the Court of Appeal is to be applaudedfor affording a defender a degree of leeway over his or her choice ofactions to take which is entirely in keeping with the laws recognition ofthe immense pressure that the defender was operating at the time (seefurther Yeo, Morgan & Chan, Criminal Law in Malaysia and Singapore(LexisNexis, 2007) at paras 20.4020.46).

11.47 Although the grounds of appeal did not require it, the courtsought to add further clarity to the law of private defence by comparingthe general exception of the defence with the special exception underException 2 to s 300 of the Penal Code (Cap 224, 1985 Rev Ed). Thecourt did this by accepting (Tan Chor Jin v PP[2008] 4 SLR 306 at [42])the set of three questions proposed by Yeo, Morgan and Chan inCriminal Law in Malaysia and Singapore (LexisNexis, 2007). These

questions should assist judges to keep separate their discussion of theelements of the general and special exceptions of private defence in caseswhere both these pleas have to be considered.

Provocation

11.48 Can the incessant crying or tantrums of a young child eversatisfy the objective test in the law of provocation which requires that anordinary person would have lost his or her self-control due to suchprovocation and to kill the provoker? A negative answer was given by theCourt of Appeal in Mohammed Ali bin Johari v PP [2008] 4 SLR 1058at [114][115], citing both English case authorities and regarding as

apposite the observation by Professor Andrew Ashworth in TheDoctrine of Provocation [1976] CLJ 292 at 319 that:

[n]o one should be provoked into a violent rage by a young child, and the defence of provocation should not be available to a person who


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uses serious violence and kills in such circumstances. The objectivetest respects these moral distinctions

11.49 The Court of Appeal in Mohammed Ali bin Johari v PP [2008]4 SLR 1058 also took the opportunity to examine recent developments

under English law on the objective test of provocation. It noted thedecision of the House of Lords in R v Smith (Morgan)[2001] 1 AC 146to attribute the accuseds personal idiosyncrasies to the power of self-control expected of a reasonable person. This ruling was subsequentlyrejected by the Privy Council decision, on appeal from Jersey, inAttorney-General for Jersey v Holley [2005] 2 AC 580 (Holley) andfollowed by the English Court of Appeal in R v James[2006] QB 588. InMohammed Ali bin Johari, the Court of Appeal observed that theposition in Singapore was as laid down in Holley. The court citedpronouncements from its own decisions in PP v Kwan Cin Cheng[1998]2 SLR 345 at [49] and Lau Lee Peng v PP [2000] 2 SLR 628 at [29]holding that personal idiosyncrasies of an accused affecting the powerof self-control could not be taken into account.

Academic contributions to judicial lawmaking

11.50 In a comment appearing in the Singapore Law Societys LawGazettein 2004 (Academic Contributions and Judicial Interpretationsof Section 300(c) Murder Law Gazette(April 2004) at pp 2526), thisauthor sought to encourage our judges to take more notice of academicwritings, and to expressly acknowledge that this had been done in theirjudgments. The Court of Appeal in Lee Chez Kee v PP[2008] 3 SLR 447and Tan Chor Jin v PP [2008] 4 SLR 306 are prime examples of this.Judges gain by reflecting upon academic opinions on often difficultaspects of the law and, in turn, academics are heartened that their viewsare being seriously considered by judges. The eventual outcome of thisexchange is the highly desirable one of an improvement to theunderstanding and functioning of the law and, with it, an increase in theeffective meting out of justice.

2008 9 SALAnnRev 247 Criminal Law

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