The appellant was convicted of the murder of one Jenny Cheok Cheng Kid and was sentenced to death. According to the prosecution, the offence was committed at sea near two islands off Singapore. The appellant had hired a sampan from a boatman and on his directions, the boatman brought the appellant and the girl to a place near the two islands where he dropped anchor. According to the appellant, his object in going there was to collect corals; the prosecution contended that his real intention was to murder the girl, and that in pursuance of that intention he assisted her to put on the diving equipment and allowed her, a novice diver, to go down alone, wearing a flipper, which had been previously cut, in waters which he knew were dangerous and hazardous, with the result that she met her death. Evidence was given that the girl had been insured against accidents with several insurance companies; and that some of the policies had been renewed by the appellant on the morning of the girl's death, although he had not renewed or extended his own insurance policy. The prosecution relied on circumstantial evidence and on the cumulative effect of such evidence. On appeal, a number of grounds were relied on and it was alleged, inter alia, that: (a) the learned trial judge had erred in law in failing to direct the jury on a possible verdict of culpable homicide not amounting to murder; (b) the learned trial judge erred in law in permitting the prosecution to abuse the provisions of s 192(3) of the Criminal Procedure Code (Cap 132, 1955 Ed) by adducing the evidence of witnesses who had not been called at the preliminary inquiry after giving only a few minutes' notice of the intention to call such witnesses; (c) the learned trial judge erred in law in permitting the prosecution to adduce evidence of attempts to suborn the boatman; (d) the learned trial judge was prejudiced and biased against the appellant; (e) the learned trial judge erred in law in failing adequately to direct the jury on the danger of convicting an accused person upon circumstantial evidence.

Held: (1) having regard to the facts and circumstances in this case, the case was one in which the appellant was either guilty of murder or not guilty of any offence whatsoever and it was unnecessary for the trial judge to direct the jury on a possible verdict of culpable homicide not amounting to murder; (2) while it was true that the learned trial judge expressed himself with great emphasis and in strong terms on various matters, the jury were left in no doubt that they were the sole judges of the facts in the case and there was no substance in the grounds that the judge was biased and prejudiced against the appellant; (3) the directions of the learned trial judge on the effect and in particular, the cumulative effect of circumstantial evidence were perfectly adequate; (4) although the body of the deceased has never been found, there was overwhelming evidence on the record that the appellant murdered her.

Ang Sunny v Public Prosecutor [1966] 2 MLJ 195 Federal Court, Singapore (Tan Ah Tah Ag CJ, Chua and Winslow JJ).

Ramu Annadavascan & Anor v Public Prosecutor [1985] 1 MLJ 407 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, LP Thean and Chua JJ).

See CRIMINAL LAW, Vol 4, para 1378.

Lee Choh Pet & Ors v Public Prosecutor (No 2) [1972] 1 MLJ 187 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1388.

The three accused were charged with the murder of D while being members of an unlawful assembly whose common object was to cause grievous hurt to the deceased. Before the fatal incident, the deceased, D, and some of his friends were involved in an attack on some of the accused and their friends. After that, the accused and some others went to a place where D and his friends were and attacked them. In the attack, D was killed. The three accused were charged with murder.

Held, convicting the accused: (1) on the evidence before the court, the learned judges were satisfied beyond a reasonable doubt that all the members of the unlawful assembly must have known that in the prosecution of their common object, they were likely to cause the death of those whom they attacked. There were seven of them and they were armed with an axe, four pipes and two swords. Their common object was to attack D and the other men. It was a fair inference that they knew that death was likely to be caused in the attack; (2) the accused and one or more of their companions attacked D with deadly weapons. He suffered severe multiple bodily injuries and one of such injuries caused his death. In a fact situation like the present, the prosecution does not have to prove who was the actual person who inflicted the fatal wound. It was sufficient that one of the members of the unlawful assembly did inflict the fatal wound; (3) the defence of provocation was not available. The attackers came in a group of seven and were armed. They came specifically to cause hurt to D among others. The defence of sudden fight was also rejected for the reasons stated above. The accused came looking for a fight and to inflict grievous hurt. There was nothing sudden about the events that followed at all. The accused were accordingly convicted of murder.

Public Prosecutor v Chandran a/l Gangatharan & Ors Criminal Case No 37 of 1986 High Court, Singapore (LP Thean J and Chao Hick Tin JC).

The accused, who was a mechanic, was charged with the murder of R, his lover, under s 302 of the Penal Cade (Cap 224). At the scene of the murder which was an area filled with undergrowth, there were six clear tyre marks on the cemented pavement beside the body. There were various injuries found on the deceased, such as stab wounds, bruises, abrasions, fractures of the jaw, ribs and pelvis. There was also a tooth recovered from the stomach of the deceased; some jewellery ornaments and a chipped-off tooth fragment were also found in the goods compartment of the accused's delivery van. Expert and medical evidence revealed that the body fractures and the flattened vegetation were consistent with the deceased having been run over by a vehicle and that the tooth fragment came from the deceased. There was also expert evidence that the tyre marks of the delivery van matched the tyre prints found at the murder scene and that it was unusual for a motor vehicle to have a combination of varying tyre widths as seen on the accused's van. In his defence, the accused revealed that the deceased often travelled in his van which became the rendezvous of their extra-marital liaisons. He stated that at the time of the murder, his van gave trouble and he had stopped at the side of a road. He then took 1 hour 20 minutes repairing the van before he went back to his place of work at 2pm. Later that evening he washed his van, cleaning the seats and exterior. The accused also testified that on their outings, the deceased and he consumed drinks and food at the back of the van; that the deceased had used her teeth to open bottled drinks on more than one occasion and on these occasions, the deceased had worn jewellery. The defence also introduced expert evidence disputing that of the prosecution's in respect of the DNA match of the tooth fragment and the tyre marks.

Held, convicting the accused: (1) it was proved beyond reasonable doubt that the deceased sustained numerous stab wounds and fractures. There was no doubt that the injuries inflicted were intentional and not accidental or suicidal; (2) having evaluated the evidence as a whole, the accused did not raise a reasonable doubt as to the prosecution's proof; (3) the court was satisfied beyond reasonable doubt that the fragment of the tooth was the fragment of the recent fracture of the deceased's mandibular right first permanent molar. The court rejected the accused's evidence which suggested that it could have come off the deceased when she used her teeth to open bottled drinks. This piece of evidence was an afterthought; (4) it was also proved beyond reasonable doubt that the tyres of the van of the accused made the marks found at the scene. The court rejected the defence's expert evidence; (5) the court did not believe the accused's evidence that his van broke down during the period of the murder.

Public Prosecutor v Nadasan Chandra Secharan Criminal Case No 80 of 1995—High Court, Singapore (Lai Kew Chai J).

Public Prosecutor v Jamaludin bin Ibrahim Criminal Case No 91 of 1993 High Court, Singapore (Sinnathuray J).

See CRIMINAL LAW, Vol 4, para 1569.

The appellant was convicted in the High Court on a charge of murder. His defence was one of grave and sudden provocation in that the deceased had said certain rude words to the appellant, uttered certain disrespectful and threatening words to him and had used the word 'dah' which was used to call a small boy. The deceased also shouted at the appellant and had said, 'Born in Haram, born of a sin, you son of a prostitute.' In addition, the deceased told the appellant, 'You are seeking for a whore desperately. You are born out of haram the son of a prostitute. Get out of this room, you cur. If you are that frustrated, go and fuck Basheer outside. Get out, you dog'. It was the evidence of the appellant that the abusive words resulted in his loss of self-control. A key prosecution witness, who witnessed the appellant strangling the deceased with a gold chain and a rope, gave evidence that the deceased had only been rude to the appellant before the killing. The trial judge found that the deceased had not uttered the abusive words at the appellant. He was further of the opinion that the rude, disrespectful and threatening words allegedly spoken by the deceased were insufficient to deprive a reasonable man, placed in the appellant's position, of his self-control and that the appellant's retaliation would be disproportionate to such provocation. The appellant appealed.

Held, dismissing the appeal: (1) there was no reason for not accepting the findings of the learned judicial commissioner that the deceased had not uttered 'the abusive words' at the appellant. The learned judicial commissioner had found that the appellant was not a witness of truth and had concocted 'the abusive words' which he claimed the deceased had used on him. The learned judicial commissioner also drew an adverse inference against the appellant in respect of his credibility for not mentioning the particulars of his defence in his cautioned statement as 'the abusive words' allegedly spoken by the deceased were facts which he could have reasonably been expected to mention when charged and when the caution was being administered for the s 122(6) Penal Code statement. Instead, he blamed one of the witnesses for causing the deceased's death; (2) it was not open to argue that the appellant had no motive to kill the deceased. To find the reason for the appellant killing the deceased would be akin to trying to discover his motive for the killing. Unlike the mens rea of the appellant for murder, his motive for killing the deceased was totally irrelevant. It was not open for counsel to argue that since the appellant and the deceased had a good relationship prior to the killing, he would not have killed the deceased unless he was provoked into doing so; (3) to raise the defence of provocation, counsel would have the task of adducing evidence that the deceased had provoked the appellant by his actions or words. The court would not draw any inferences that since there was no motive for the killing, the appellant must have been provoked into doing so. The burden of adducing evidence of provocative acts or words remained on the defence throughout. It was conceded by the appellant's counsel in the court below that if the appellant's story concerning the use of 'the abusive words' was not accepted by the court, the defence of provocation would fail. The learned judicial commissioner was of the same opinion; (4) the retaliation of the appellant, in strangling the deceased with the gold chain and the rope was entirely out of proportion to the alleged words of provocation spoken by the deceased. Indeed, even if 'the abusive words' were spoken, the retaliation would not be proportionate. On this alone, the defence failed.

Jahabar Bargurdeen v Public Prosecutor Criminal Appeal No 21 of 199 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

Lim Heng Soon & Anor v Public Prosecutor [1970] 1 MLJ 166 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

See CRIMINAL LAW, Vol 4, para 1379.

The accused was charged with murder, an offence punishable under s 302 of the Penal Code (Cap 103, 1970 Ed). While in custody, the police recorded a statement from the accused and the prosecution sought to admit this in evidence. Counsel for the defence objected to the admissibility of the statement on the grounds that s 26 of the Evidence Act (Cap 5, 1970 Ed) operated to exclude the statement by virtue of it not having been made in the presence of a magistrate and that it would be necessary for s 121(5) of the Criminal Procedure Code (Cap 113, 1970 Ed) to contain the words 'notwithstanding s 26 of the Evidence Act' or, alternatively, the words 'whether in police custody or not', in order for the statement to be admissible under that section. The court also had to consider whether the accused's statement could be admitted, having regard to the manner and circumstances under which it was recorded.

Held, inter alia: (1) s 121(5) of the Criminal Procedure Code lets in a confession, whether or not made pursuant to s 121(6), so long as the maker has been charged, and whether or not it is made while he is in police custody. That follows directly from the very wide language of the subsection, and not by inference; (2) it was plain from the evidence that the charge was not explained to the accused, nor was the s 121(6) warning. By reason of this, the accused's statement cannot be admitted in evidence; (3) apart from the statement, there existed at the end of the prosecution's case credible evidence which established that the accused murdered the deceased within the period specified by the charge; (4) as the accused elected to remain silent when called upon to enter his defence, the court had no alternative but to convict him.

Public Prosecutor v Chan Sway Beng [1988] 2 MLJ 405 High Court, Singapore (Chua J and Grimberg JC).

A was charged with the murder of D. He had gone to her house in order to rob the place. When she resisted, he had seized a kitchen knife and stabbed her. The fatal wound was inflicted in D's mouth. The knife was lodged in the mouth with the handle protruding. The evidence was that such an injury was very rare and unlikely. A's primary defence was that the prosecutor had to prove that he intended to cause the very injury which caused D's death.

Held, convicting A of murder: it is unnecessary to prove that the accused intended to inflict the very injury that caused death. The question is whether or not the fatal injury was deliberately inflicted. The unusual nature of the fatal injury does not exclude the inference of culpable intention to kill or cause such injury as would in the ordinary course of nature cause death. On the evidence, A intended to stab D. Accordingly, A was guilty of murder.

Public Prosecutor v Tan Cheow Bock Criminal Case No 15 of 1988 High Court, Singapore (Lai Kew Chai J and Karthigesu JC).

See criminal law, para VII [59].

Public Prosecutor v Ong Teng Siew Criminal Case No 22 of 1996—High Court, Singapore (Amarjeet JC).

The accused was charged with committing two offences of murder on 26 February 1993, by causing the deaths of the two deceased Lau Gek Lang and Like Yip Khuan. Both these offences are punishable under s 302 of the Penal Code (Cap 224). It was not disputed by the defence that the accused had committed the killings. The accused had confessed to the killings in three cautioned statements made to the police, under s 121(1) of the Criminal Procedure Code (Cap 68), on three different occasions. The accused, however, claimed diminished responsibility as a defence. Medical evidence was tendered for the accused that there was a real possibility that the accused had been in a dissociated state of mind at the time he committed the killings as a result of the valium he had taken that the accused had been suffering from paradoxical rage while he committed the killings. It was put to the court that while valium is used for its calming and sedative effect, in rare occasions, consumption of such could have the opposite effect, ie it may turn the consumer violent so that he may have no recollection of what took place while under its effects. The defence also pointed out to the court that there was no motive for the accused to have killed the deceased, with whom he was on rather good terms.

Held, convicting the accused on the charges: (1) it was clear, beyond a reasonable doubt that the accused had committed the offences with which he was charged; (2) the accused had not, on a balance of probabilities, proved the defence of diminished responsibility. The court opined that the accused was not suffering from paradoxical rage at the time he committed the murders because such a condition would last for a substantial length of time. However, the killings must have taken place within a short period of time and within this time frame, the accused had acted rationally by trying to make it look as if there had been a robbery in the flat of the deceased. This coupled with the fact that the accused was able to commit these offences within the short time period, negates that the accused was suffering from paradoxical rage at the time he committed the killings. Moreover, had the accused been suffering from such a condition at the time he committed the killings, he would not have remembered what had transpired while under the influence of the valium. The accused, however, was able to recollect how the killings had taken place and was even able to describe the killings. This showed that the accused was not suffering from any abnormality of the mind at the time he committed the offences; (3) motive is not an ingredient that needs to be proved for the offence of murder. The accused was convicted of the charges in the absence of motive for the crime and was sentenced to death.

Public Prosecutor v Jamaludin bin Ibrahim Criminal Case No 91 of 1993 High Court, Singapore (TS Sinnathuray J).

Tan Kheng Ann & Ors v Public Prosecutor [1965] 2 MLJ 108 Federal Court, Singapore (Thomson LP, Wee Chong Jin CJ (Singapore).

See CRIMINAL LAW, Vol 4, para 1442.

The appellant had been charged that 'together with three other persons unknown, in furtherance of the common intention of all of you, committed murder by causing the death of one Mohamed Salleh bin Haji Hassan, and have thereby committed an offence punishable under s 302 of the Penal Code read with s 34 of the Penal Code'. At the trial, at the close of the prosecution case, counsel for the appellant submitted that he had no case to answer on the ground that the prosecution had failed to make out a prima facie case against the appellant. This submission was rejected. The appellant was later convicted and sentenced to death.

Held, allowing the appeal: (1) the trial court is required by s 177C of the Criminal Procedure Code at the close of the prosecution case to determine whether or not the evidence tendered on behalf of the prosecution, if unrebutted, has established the case against the accused beyond a reasonable doubt. If the court finds at that stage of the trial that it has not been so established, there is nothing left but to acquit the accused; (2) in this case, the evidence tendered by the prosecution was clearly insufficient to establish that at the time, when one of the four occupants of the car fired the two shots which killed the deceased, the killing of the deceased was done in furtherance of the common intention of all of them, so that it mattered not which of them actually fired the fatal shots; (3) it was clear that if at the close of the prosecution case, the evidence was such that it was possible for the fatal shots to have been fired by any of three of the four men in the car, no case had been made against the appellant which, if unrebutted, would warrant his conviction of murder simpliciter; (4) the trial court was therefore wrong in law in calling on the appellant to enter on his defence whether on the charge of murder read with s 34 or of murder simpliciter and the appellant should have been acquitted at the close of the case for the prosecution.

Ong Kiang Kek v Public Prosecutor [1970] 2 MLJ 283 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Winslow JJ).

This was an appeal against the conviction of the appellants for murder. The principal ground of appeal was that the appellants were prisoners of war within the meaning of art 4 of the Geneva Convention Relative to the Treatment of Prisoners of War 1949. It was also urged that the learned trial judge was wrong in law in admitting in evidence the statements made by the appellants to police officers and to a magistrate and that as they had retracted their confessions, these could not be made the basis of a conviction unless they were corroborated.

Held: (1) but even if they were, they had forfeited their rights to be treated as prisoners of war within the meaning of art 4 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War because they had set off explosives while they were in civilian clothing in a non-military building, where civilians were doing work unconnected with any war effort; (2) the learned trial judge was correct in ruling that the statements made by the appellants were admissible in evidence as they were voluntary statements, the making of which was not caused by any inducement, threat, promise or force; (3) there was ample evidence in this case to support the finding of the trial judge that the appellants were not members of the regular armed forces of the Republic of Indonesia;an accused person can be convicted on his own confession, even if it is retracted, if the court is satisfied of its truth and in this case, the trial judge, notwithstanding that the confessions were retracted, was entitled to come and was amply justified in coming to the conclusion that the confessions were true and in convicting the appellants.

Osman & Anor v Public Prosecutor [1967] 1 MLJ 137 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Ambrose J).

The accused was a Filipino maid. The first deceased was also a Filipino maid and the second deceased was the child of the first deceased's employers. On 4 May 1991, when the first deceased's employers returned home to their flat, they found the second deceased lying on the bathroom floor with his head inside a pail of water. They also saw the first deceased lying on the bathroom floor with a red elastic cord wound round her neck. The accused was arrested and charged with the murder of both deceased. At the trial, the forensic pathologist gave evidence that the most significant injury found on the first deceased was a tight ligature of an elastic cord around the upper neck. The pathologist certified that the death was caused by asphyxia due to strangulation and in his opinion the ligature could not have been self-inflicted. It was also his opinion that with moderate force and with the elastic cord wound as it was around the neck, it would take about five minutes to cause death. In respect of the second deceased, he certified that death was caused by asphyxia due to drowning and in his opinion, the drowning was caused by immersion of the face in water sufficient to cover the nostrils and mouth. He was further of the opinion that it would take approximately five minutes of sustained immersion for death to occur. The pathologist's evidence was not challenged. The prosecution sought to admit the statements of the accused made to the police which were objected to by the defence. After a trial-within-a-trial, the statements were found to be voluntary and admitted in evidence. In the statements, the accused admitted to strangling the first deceased because 'she felt very strong'. She also admitted to having drowned the second deceased as he 'looked so small and tiny'. When her defence was called, the deceased elected to remain silent.

Held, convicting the accused: the court was satisfied beyond all reasonable doubt that the prosecution had made out a case against the accused on both murder charges.

Public Prosecutor v Contemplacion Criminal Case No 23 of 1992 High Court, Singapore (TS Sinnathuray J).

Ong Chin Seng & Anor v R [1960] MLJ 34 Court of Criminal Appeal, Singapore (Rose CJ, Chua and Wee Chong Jin JJ).

See CRIMINAL LAW, Vol 4, para 1436.

Public Prosecutor v Sagar s/o Suppiah Retnam Criminal Case No 6 of 1994 High Court, Singapore (Kan Ting Chiu J).

See CRIMINAL LAW, Vol 4, para 1439.

Lim Chew Yoong v R [1960] MLJ 111 Court of Criminal Appeal, Singapore (Rose CJ, Chua and Ambrose JJ).

See CRIMINAL LAW, Vol 4, para 1440.

On 14 December 1990, the appellant and 13 other members of a secret society called Ang Soon Tong went to Marsiling in a van to visit members of Gee Leng Hor, a rival secret society. There had been some unhappiness between the two rival groups. Weapons were distributed and the appellant was armed with an axe. When they arrived, a fight broke out during which several people were injured. The appellant and/or other members of the unlawful assembly attacked one Sivapragasam a/l Subramaniam (the deceased). The fatal injury was on the head of the deceased and was consistent with a wound inflicted by an axe. According to the prosecution, the purpose of the visit by the appellant and his group members was to start a fight, which they did. Four accomplices testified for the prosecution. After a voir dire, the cautioned statement and long statements of the appellant were also admitted into evidence. The appellant alleged that he made the statements as a result of inducement or promise offered by an officer to reduce the charge of murder to that of rioting. The same officer also threatened that if he did not cooperate, he would be hanged. The allegations were not accepted by the trial judge. In the material portions of the statements, the appellant admitted that the party went to attack the members of Gee Leng Hor. He also admitted hitting the deceased on the head. The appellant did not give evidence in his own defence. Instead, three members of Ang Soon Tong testified on his behalf. In effect, the defence's case was that they went to Marsiling to talk to the members of Gee Leng Hor in the hope of an amicable settlement. They were armed with weapons for their protection only. The main dispute was the purpose of the visit. The trial judge accepted that on all the evidence presented, especially of the appellant's statements, the intention of going to Marsiling was to attack the rival group. In his view, the appellant must have known that when they attack with such deadly weapons, someone was likely to be killed. Indeed, the deceased was fatally wounded by the appellant and/or others of his party. As such, the trial judge convicted the appellant. On appeal, the appellant submitted that the trial judge had erred in (a) finding that the appellant's statements were made without threat, inducement or promise; (b) giving too much weight to the appellant's statements; and (c) failing to scrutinize the credibility and motive of the accomplices who testified against the appellant.

Held, dismissing the appeal: (1) on a review of the evidence on the voir dire, the trial judge's finding that the statements were made by the appellant without inducement, threat or promise was upheld. The statements were properly admitted into evidence; (2) the material parts of the statements disputed by the appellant concerned the purpose of the visit. Although the appellant had the opportunity to explain why he said in the statements that the purpose of the visit was to attack the rival gang, he chose to remain silent. In such circumstances, the trial judge correctly decided, based on all the available evidence, that the purpose of the visit was for a fight. The trial judge had not given undue weight to the statements; (3) at trial, various allegations were made against the accomplices, questioning their self interests in testifying against the appellant. The trial judge was clearly aware of the dangers of accepting the evidence of the accomplices. Having carefully considered all the evidence in support and in denial of the allegations, it was found that the there was insufficient evidence to support the allegations. In the premises, the trial judge had not failed to scrutinize the credibility and motive of the accomplices.

Sagar v Public Prosecutor [1995] 1 SLR 660 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The facts showed that the appellant was responsible for and took part in the beatings which caused the injuries resulting in the death of the accused. He was convicted of murder and he appealed against his conviction.

Held: (1) if the evidence is sufficient to show that the intention of the assailant was to cause such bodily injury as the assailant knew to be likely to cause death, then the assailant would be guilty of murder, even though at the same time, the primary object of the beating was to extract a confession from the victim; (2) in this case, there was misdirection in the summing up and as the appellate court was unable to say that the assessors would have inevitably arrived at the same verdict if they had not been so misdirected, the conviction for murder must be quashed.

Thambi Durai v Public Prosecutor [1948] MLJ 48 Court of Appeal, Singapore (Willan CJ (Malayan Union).

The appellant was convicted of murder under s 302 of the Penal Code. The evidence showed that he with others beat the deceased to death in October 1944, and that they all had the common intention of beating the deceased with sticks to obtain information from him. At the trial, counsel for the defence specifically raised the question that one of the possible verdicts was a conviction under s 331 of the Penal Code, that is, causing grievous hurt with a view to extorting a confession or information. In spite of this specific submission, the learned trial judge in his summing up directed the assessors that there were only four possible verdicts: (a) murder; (b) culpable homicide not amounting to murder; (c) causing grievous hurt; and (d) acquittal.

Held: (1) since the evidence clearly showed that the beating which caused the death was inflicted with the object of obtaining a confession or information, and also since a possible verdict under s 331 of the Penal Code was specifically raised by counsel for the defence, the learned trial judge should have directed the assessors on that point, and left it to them to decide whether the facts as proved amounted to the lesser offence under s 331 of the Penal Code rather than the offence of murder; (2) his omission to do so amounted to a clear misdirection and such misdirection occasioned a failure of justice; (3) the court had no option but to quash the conviction and sentence for murder and substitute a conviction under s 331 of the Penal Code.

Karthigasu v Public Prosecutor [1946] MLJ 124 Court of Appeal, Singapore (Willan CJ (Malayan Union).

The appellant was charged on two separate charges with having caused the death of two named persons in circumstances amounting to murder, an offence punishable under s 302 of the Penal Code. The High Court convicted him as charged and sentenced him to death. He appealed, inter alia, that the High Court erred in applying s 181(2) and 186A, two recent provisions which were enacted by Parliament and came into operation on 1 January 1977. He claimed that he had a substantive right, which accrued to him when he was first charged on 13 December 1976 to make an unsworn statement under the law as it stood before s 181(2) and 186A came into operation. He further contended that these two statutory provisions were void as being repugnant to art 7 of the Malaysian Federal Constitution, which is law in Singapore by virtue of the Republic of Singapore Independence Act 1965.

Held, dismissing the appeal: (1) before the trial of the appellant, the Legislature by s 186A of the Criminal Procedure Code (Cap 113, 1970 Ed) had expressly taken away the right of an accused person at his trial to make an unsworn statement from the dock; (2) the two new sections did not contravene the provisions of art 7 of the Malaysian Federal Constitution; (3) there was overwhelming evidence which showed that the appellant intentionally and deliberately inflicted the fatal injuries on two unarmed persons.

Haw Tua Tau v Public Prosecutor [1980] 1 MLJ 2 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and D'Cotta JJ).

The appellant was charged with having murdered one Thampusamy Murugian Gunasekaran ('the deceased') on 25 October 1993 with two other unknown persons in furtherance of the common intention of them all. It was the prosecution's case that a male Indian armed with an axe and a male Chinese armed with an iron pipe attacked the deceased from behind in a coffee shop at Chander Road. A third person stood watching at the entrance of the coffee shop. After the attack, the three assailants fled the scene. According to the autopsy report, the appellant died of a fractured skull. One of the injuries to the head was probably caused by an axe. The other two head wounds were caused either by an axe or a parang. On 2 March 1994 the appellant surrendered himself to the police and confessed to a murder at Desker Road. The account which he gave of the offence he committed fitted the murder of the deceased. On the morning of 3 March 1994, a s 122(6) statement was recorded from the appellant. It was admitted into evidence after a voir dire. In it, the appellant described how he attacked the deceased with a parang. An expanded account of the murder was contained in the long statement. This was admitted into evidence at the request of the defence. On 23 March 1994, the appellant was taken to the scene of the crime. He was able to direct the police officers how to get to the coffee shop. He also showed them where he attacked the deceased. At the trial, the appellant denied that he was the assailant who attacked the deceased at the coffee shop. The eye witnesses were unable to identify him as the assailant. He surrendered to the police for the weapons he had in his possession and not for a murder. To cooperate with the police, he fabricated the statements based on facts told to him by the police officers. Furthermore, he denied the visit to the scene. The trial judge accepted that the appellant had made the various confessions to the police. Accordingly, he found that the appellant had committed the murder and convicted him. The appeal was brought on the grounds that: (a) the trial judge had wrongly admitted the s 122(6) statement into evidence; (b) the trial judge erred in relying on the confessions to convict because the contradictions within the confessions compared with the main of the prosecution case undermined the entire prosecution case; (c) apart from the confessions, there was no other evidence to identify the appellant as the assailant or to link him to the offence and (d) that the defence of the appellant should have been accepted.

Held, dismissing the appeal: (1) the appellant alleged that on the morning of 3 March 1994 he was brought out of the lock-up three times. On the second occasion he was assaulted by the police for 15 minutes. As a result, he suffered injuries including blue-black bruises on his palms, a red line depression on his wrist and swelling of his ankles which lasted for two days. The s 122(6) statement was recorded the third time he was brought out of the lock-up. Prior to the recording of the statement, no medical examination was conducted. In a substantially different account, the prosecution said that the appellant was taken out of the lock-up only once for the recording of the statement. He was examined medically prior to and after the statement was recorded at 10.05am and 12.40pm respectively. The injuries he alleged were not noticed by the doctor. On a review of the evidence on the voir dire, the trial judge's decision to reject the allegations of the appellant was found to be justified. The appellant's narration of the morning's events was inconsistent with the entries in the lock-up diary. Also, the medical examination conducted at 10.05am showed that the appellant could not have been assaulted by the police at the time he alleged in his version of the morning's events. Further, his allegation of the assault was also not supported by the medical evidence. Therefore, the statement was properly admitted into evidence; (2) counsel for the appellant pointed out the following contradictions in the confessions with the prosecution case. First, the appellant admitted to a murder in Desker Road when he first surrendered to the police, not to a murder in Chander Road. In his statements, he said he used a parang in the attack, contrary to the prosecution evidence that an axe was used. Also, the circumstances of the murder as described in the statements were different compared with the main of the prosecution case. These inconsistencies were considered and rejected as immaterial. Each of the separate confessions gave detailed accounts of the murder in the material aspects. As such, they were to be accorded due weight. The importance with which the trial judge treated the confessions was justified in all the circumstances; (3) there was not one but four separate occasions when the appellant admitted his crime. These confessions provided sufficient evidence to prove beyond reasonable doubt the guilt of the appellant. Moreover, there was other circumstantial evidence linking the appellant to the offence. In the premises, the trial judge was justified in rejecting the defence of the appellant. There was no reason to reverse the finding of the trial judge that the appellant was the assailant who attacked the deceased and fled from the scene.

Anbuarsu v Public Prosecutor [1995] 1 SLR 719 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Public Prosecutor v Neoh Bean Chye & Anor [1975] 1 MLJ 3 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

See CRIMINAL LAW, Vol 4, para 1387.

The accused, a police inspector aged 35, was charged with culpable homicide not amounting to murder by causing the death of his wife, a police corporal, on 17 August 1982, an offence punishable under s 304(b) of the Penal Code. The prosecution evidence shows that the accused, his wife ('the deceased'), his 14-year-old stepson Henry and their natural daughter Sheila were staying in police quarters. Their marriage had not been a happy one, largely owing to the unfaithfulness of the accused, who had several affairs outside marriage. After the accused returned home at about 11.30 pm on 16 August 1982, a heated quarrel broke out as love-bites were found by the deceased on the neck of the accused. The deceased continued to question the accused about the love-bites. When they were in the master bedroom, quarrels between them resumed and Henry heard punching sounds. He heard two screams from the deceased. The first scream was a loud one but the second scream was muffled. Later, Henry heard the accused say over the phone, 'This is an emergency. My address is Room 11, Block 'E', Queensway, Police Task Force II. Come quick.' Henry also heard the accused say over another phone call, 'I believe my wife is dead. Please come quick.' The police radio division received a message at 0114 hours on 17 August 1982 from the accused who said 'Dead .... Dead'. The accused telephoned his superior saying: 'Sir, this is Inspector Selvraj. I have killed my wife.' An ambulance officer, Madam Lee saw foam or froth in the mouth of the deceased. She certified the deceased dead. The cloth containing the wet patch was sent for examination and it was proved that the deceased's saliva was present and there was no gastric juices of the deceased. Forensic pathologist, Prof Chao, examined the deceased at the scene at about 0230 hours of the same morning and he ascertained that death had occurred within two hours of his examination. The autopsy was carried out on the same morning and Prof Chao certified that the cause of death was asphyxia from smothering. The court called upon the accused to enter upon his defence. His version was substantially similar to that given in his statement. The crux of the defence was that the deceased charged at him and attempted to claw his eyes. He stopped the advance of the deceased by holding her neck with his left hand and stabbed her with a clenched fist on her left arm. The accused said he then rained blows on the deceased who fell forward, face down. The deceased fell with her face on his pillow on his side of the bed. She was groaning, crying and mumbling. He later found her dead. The accused called expert forensic pathologist, Dr Dharamvir, to testify on his behalf. Dr Dharamvir offered the opinion that the deceased could have suffered concussion and could have asphyxiated accidentally.

Held: (1) no reasonable inference favourable to the accused could be reasonably drawn from the evidence. The deceased had not concussed or asphyxiated accidentally; (2) the court is irresistibly drawn to the conclusion that the accused did smother the deceased to death, knowing that his act of smothering would be likely to cause her death. Accordingly, the accused was convicted as charged; (3) taking into account the mitigating factors, the court sentenced the accused to eight years' imprisonment, taking effect from 17 August 1982.

Public Prosecutor v Selvraj Subramanian [1985] 2 MLJ 190 High Court, Singapore (Lai Kew Chai J).

See evidence, x-ref 68.

The appellant was convicted of culpable homicide not amounting to murder and was sentenced to life imprisonment. The evidence at the trial and the summing up of the judge clearly indicated that the main and indeed, the only defence, relied on in the closing stages of the trial was diminished responsibility. The jury, by a majority, found the appellant guilty of culpable homicide not amounting to murder, but they were not asked whether their verdict (in reducing the crime of murder to culpable homicide not amounting to murder) was on the ground of diminished responsibility or some other ground raised by the defence. On appeal, it was submitted that the judge should have applied the second limb of s 304 of the Penal Code which imposed a maximum punishment of ten years' imprisonment or fine or both.

Held, (1) dismissing the appeal: on the evidence in this case, there was no doubt that the jury reduced the crime of murder to one of culpable homicide not amounting to murder on the ground of diminished responsibility and the appeal against sentence must therefore be dismissed; (2) (per Chua J) 'This appeal gives us an opportunity for suggesting a rule of practice in cases where on a charge of murder a defence of diminished responsibility and some other defence such as grave and sudden provocation are raised. If the jury return a verdict of culpable homicide not amounting to murder the judge, to enable him to assess the sentence he ought to impose, may and should generally then ask whether their verdict is based on diminished responsibility or on the other ground or on both.'

Tan Freddy v Public Prosecutor [1969] 2 MLJ 204 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Chua J).

The respondent was charged under s 304A of the Penal Code (Cap 224) with causing the death of a pedestrian by doing a negligent act by not giving way to the said pedestrian at a signalized pedestrian crossing. The trial judge acquitted the respondent without calling for his defence. The prosecution appealed successfully and the case was returned to the trial judge to hear the accused's defence. The accused elected to remain silent and the trial judge acquitted him. The prosecution appealed again. The evidence showed that the pedestrian was crossing when the lights were in her favour when the respondent who was then driving a motor bus collided into her. Photographs and other documents indicated that the pedestrian was some 4ft into the pedestrian crossing at the signalized junction when the respondent's bus collided into her.

Held, allowing the appeal: (1) it was a general rule that once a prima facie case had been made out, the accused may give evidence or elect to remain silent. In the event that the accused elected to remain silent, the trial judge may assess the credibility of the witnesses in deciding whether the prosecution had proven its case beyond a reasonable doubt. However, apart from the disputed facts and credibility of the witnesses, where there was hard evidence, whether in the shape of photographs or other documents which in itself would be sufficient to constitute a prima facie case, the accused could not choose to remain silent as the case then would have been proven against him beyond reasonable doubt by such default; (2) though the prosecution witnesses' evidence was contradictory, they were not material and may be attributed to lapse of time and memory. Nevertheless, the evidence of both witnesses clearly pointed towards the fact that the pedestrian crossed the road when the green pedestrian light was in her favour. Furthermore, the photographs and other documents clearly indicated that the pedestrian was some 4ft into the road when the respondent's motor bus collided into her and this alone would be sufficient to make a prima facie case. If the respondent chose to remain silent, a conviction was inevitable; (3) the Road Traffic (Pedestrian Crossings) Rules gave pedestrians in Singapore greater protection. Pedestrians have right of way at a crossing; (4) if death was caused by a negligent act, it would be sufficient in most cases to inflict a fine. The respondent was fined S$6,000 and disqualified from driving all classes of vehicles for five years.

Public Prosecutor v Gan Lim Soon [1993] 3 SLR 261 High Court, Singapore (Yong Pung How CJ).

The appellant, an omnibus driver, was charged and convicted by the district court under s 304A of the Penal Code and sentenced to a fine of S$1,500 or nine months' imprisonment in default and he was disqualified from driving for three years. The appellant appealed. It was, inter alia, contended for the appellant that (a) the learned district judge erred in rejecting the evidence of the expert and (b) the district judge misdirected himself in holding that the collision took place in the centre of the road and that the causa causans of the accident was the negligent act of the appellant.

Held: (1) in the circumstances of the case, there was little light the expert could throw on the cause of this accident; (2) it did not in this case matter whether the collision took place at the centre or on the wrong side of the road. The act of the appellant was the causa causans of the collision and he was solely responsible; (3) the imposition of a fine in the circumstances was manifestly inadequate.

Ong Chan Tow v R [1963] MLJ 160 High Court, Singapore (Winslow J).

To impose criminal liability under s 304A of the Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another's negligence. It must have been the causa causans; it is not enough that it may have been causa sine qua non. In this case, the deceased, a pedestrian, was killed while she was using the pedestrian crossing by an impact caused by the appellant's car colliding into the rear portion of a stationary taxi (which had stopped suddenly at the said crossing), forcing the taxi to lurch into her. He was convicted under s 304A of the Penal Code and sentenced to four months' imprisonment and disqualified from driving any motor vehicle for three years. On appeal,

Held: (1) the taxi driver was negligent in that he failed to see the pedestrian until he was almost upon her and he had stopped suddenly without giving any signal; (2) the appellant was therefore not wholly or mainly responsible for the collision and the appeal should be allowed.

Lee Kim Leng v R [1964] MLJ 285 High Court, Singapore (Chua J).

The appellant was charged with causing death by negligence under s 304A of the Penal Code. At the commencement of the hearing in the district court, his counsel applied for particulars of the negligence alleged, but it was refused on the authority of Public Prosecutor v Chang Wan Seng [1954] MLJ 186, a Federation of Malaya case, where it was held that an accused person was not entitled to particulars of negligence under s 304A of the Penal Code because it was tantamount to a request for particulars of the evidence which the prosecution proposed to call.

Held: (1) the charge in this case did not contain sufficient particulars of the negligence alleged to enable the appellant to know the case he had to meet. Merely to tell the appellant in this case that he was charged with doing a negligent act negligently was insufficient and on that ground alone, the appeal must succeed; (2) at the close of the case for the prosecution, a number of versions as to how the accident occurred were disclosed and it was incumbent on the court in the light of the provisions of s 172(f) of the Criminal Procedure Code (Cap 132, 1955 Ed) to make up its mind as to which, if any, of the possible but incompatible versions of the facts had been proved. It is not enough that the learned district judge in his grounds of decision should in effect have done so. The appellant at the conclusion of the prosecution case was entitled to know which of the several alternative versions of the accident the court found to be satisfactorily established and which constituted negligence. If it found itself unable to decide which account of the accident was the true one, then the prosecution had failed to make out their case and the appellant should not have been called on for his defence. The learned district judge should have come to a decision regarding the facts before calling upon the defence.

Lim Gais Khee v R [1959] MLJ 206 High Court, Singapore (Buttrose J).

The appellant was convicted on a charge under s 304A of the Penal Code and sentenced to a term of imprisonment for one year and was disqualified for a period of ten years from holding or obtaining a licence to drive all classes of vehicles. The appellant was driving a motor car at about 11.25pm along a straight stretch of road which was well lit and has a dual carriageway. Travelling ahead of him was a taxi. As the taxi approached a junction of crossroads, it slowed down. The appellant overtook the taxi on its near side and in so doing, knocked down a pedestrian who was crossing the road in front of the taxi from the concrete centre road divider towards the nearside of the road. The impact took place when the pedestrian was about three feet from the nearside of the road. The appellant did not stop and proceeded onwards at a speed slightly faster than that at which it was travelling when it overtook the taxi. The impact of the collision threw the pedestrian to the nearside of the road and he received fatal injuries. The appellant testified that he had the impression that the taxi was either going to turn right or was going to make a 'U' turn, but without giving any sign or signal to that effect. The appellant pulled out to his left to pass the taxi and just as he was about to pass the taxi, felt a bump and saw that his front windscreen had fractured on the nearside. The appellant stated that he neither saw nor knew what caused the bump or the fracture of the windscreen but thought that something had been thrown at his car from the side of the road. After the bump, he continued to drive along because as he was in an area strange to him, he was afraid to stop in case he got involved in an incident and got beaten up. He did not report the accident immediately because, according to him, he did not know the location of any police station at that time although he intended to report the accident immediately to the police. He made a report to the police the next morning after consulting a solicitor. On appeal, it was argued firstly, that on the facts as found by the district judge, the appellant had not failed to do something which a reasonable man would have done and was therefore not guilty of negligence within the meaning of s 304A of the Penal Code and secondly, that the failure of the appellant to stop at the scene of the accident did not, as a matter of principle, increase the degree of negligence on the part of the appellant and that the district judge was influenced by that fact in deciding upon imposing a term of imprisonment instead of a fine.

Held: (1) to overtake at night, at a speed of over 30 miles an hour, another vehicle, which was slowing down but had given no signals that it was going to make a turn, on an admittedly straight stretch of a dual carriageway, the road being dry and fairly well lit, and in the process of overtaking, to knock down a pedestrian who had almost crossed the road to the extent of being only about three feet from the nearside edge of the road, without seeing him and without knowing what object, be it a person or a thing, one had come into contact with, is clear evidence of a failure to keep a proper look-out such as to amount to criminal negligence within the meaning of s 304A of the Penal Code; (2) the fact that a motorist failed to stop after the accident should not be taken into consideration in assessing sentence on a charge under s 304A of the Penal Code. In the present case, the district judge was possibly influenced by the appellant's failure to stop immediately after the accident. Taking all the circumstances of the case into consideration, the appropriate sentence would be one of three months' imprisonment and disqualification from holding or obtaining a licence for a period of three years.

Gould v R [1962] MLJ 435 High Court, Singapore (Wee Chong Jin J).

Held: the degree of negligence required to be proved in charges under s 304A of the Penal Code is that laid down in cases of manslaughter by negligence in England.

Lee Ah Chai v R [1947] MLJ 195 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: It must be noted that Murray-Aynsley CJ stated he thought Lai Cheow Keok v Public Prosecutor [1940] MLJ 104 was wrongly decided, but followed it anyway on grounds of convenience. See, however, the later decision of Woo Sing & Anor v R [1954] MLJ 200.]

The appellant appealed against his conviction on a charge of causing death by doing a negligent act not amounting to culpable homicide being an offence under s 304A of the Penal Code (Cap 103). The appeal was referred by the judge of the High Court for hearing before a court consisting of three or more judges under s 295(3) of the Criminal Procedure Code (Cap 132). The appeal was allowed as the evidence given by the prosecution witness was contradictory and unsatisfactory. During the hearing, a point of law was raised by the appellant relating to the standard of negligence applicable in cases under s 304A of the Penal Code. The learned district judge had held, following the decision of the full bench of the High Court in Woo Sing v R [1954] MLJ 200 that the English law of manslaughter has no relevance to the interpretation of s 304A of the Penal Code and that the standard of negligence was the same in civil and in criminal cases. It was contended on behalf of the appellant, relying on the decision of the Court of Appeal of the Federated Malay States in Cheow Keok v Public Prosecutor [1940] MLJ 103 that the same high degree of negligence must be proved before a person could properly be convicted of an offence under s 304A of the Penal Code, as would be required to be proved to sustain a conviction for manslaughter in England.

Held: by virtue of the provisions of s 88(3) of the Malaysia Act 1963 (Act 26/1963) and s 13 of the Republic of Singapore Independence Act 1965 (No 9/1965), the High Court in Singapore is bound by the decision of the Court of Appeal of Sarawak, North Borneo and Brunei in Public Prosecutor v Mills (No 3 of 1955) which is of like effect as if the court was the Federal Court and therefore, it must be accepted that the nature and degree of negligence in an act causing death required to support a conviction under s 304A of the Penal Code is the same as that in any other act carried out so rashly or negligently as to endanger human life or the safety of others where that act was the immediate cause of the death and not the remote cause.

Mah Kah Yew v Public Prosecutor [1971] 1 MLJ 1 High Court, Singapore (Wee Chong Jin CJ, Chua and Winslow JJ).

In the interpretation of the Penal Code, it is not justified to look outside the code in order to give a special meaning to the words used in it. The Penal Code is not a codification of English law. The law of manslaughter in England has no relevance in the interpretation of s 304A. This section does not require a degree of negligence comparable to that required to support a conviction for manslaughter in England. It is unnecessary to lay down a different standard of negligence in civil and criminal cases, although a higher standard of proof is required in the latter cases. In the first appeal, the appellant was driving a lorry along Connaught Drive towards the Town Hall. Connaught Drive was a one-way street. The appellant was travelling on the right hand side of the road, more towards the centre and was following a motor car. In front of the motor car was a bus. The appellant swerved to the right in order to overtake the motor car. Just then, the bus stopped at a bus stop and the motor car swerved to the right to pass the bus. The appellant, in order to overtake the motor car, went further to the right of the road and collided with a cyclist who was then about ten feet from the edge of the road.

Held:

Woo Sing & Anor v R [1954] MLJ 200 High Court, Singapore (Murray-Aynsley CJ, Pretheroe Ag CJ (FM).

[Annotation: Cheow Keok v Public Prosecutor [1940] MLJ 103; [1939] FMSLR 90, not followed.]

R pleaded guilty in a district court to having caused the death of two persons by the negligent manner in which she drove her motor car. She was fined S$5,000 and disqualified from driving all classes of vehicles for five years. The public prosecutor appealed against the sentence.

Held, allowing the appeal: (1) there was a distinction between rashness and negligence. Having chosen to proceed on the less serious of the two ingredients, the prosecution could not be heard to say that the sentence did not truly reflect the seriousness of the offence; (2) the mere fact that a human life was lost due to the negligent driving of a motor car did not justify a custodial sentence. The circumstances of each case must be considered in imposing a sentence; (3) the sentence must also reflect the degree of damage caused as a result of the negligent act. The sentence of the district court was manifestly inadequate. The respondent was sentenced to pay a fine of S$10,000 and disqualified from driving all classes of vehicles for life.

Public Prosecutor v Teo Poh Leng [1992] 1 SLR 15 High Court, Singapore (Rubin JC).

The appellant was convicted under s 304A of the Penal Code (Cap 20) for causing the death of one Ah Sin by a negligent act not amounting to culpable homicide, to wit, by driving a motor car, in a manner so negligent as to collide with a rickshaw, of which the deceased was the puller. The district judge found that the appellant had shown a wicked disregard of his duties as a driver and that he was guilty of the high degree of negligence required for a conviction under s 304A of the Penal Code.

Held: (1) the evidence showed that the appellant lost his head in the emergency in which he found himself, through his careless lookout, and there was a doubt as to whether he was reckless or just careless; (2) it did not matter that this defence was not raised and it must be considered if it could reasonably be supported by the evidence; (3) therefore, the conviction under s 304A of the Penal Code must be set aside and a conviction under s 10 of the Traction Engines and Motor Cars Ordinance (Cap 214) for driving in a manner dangerous to the public substituted. The appeal court also made observations on the giving of expert evidence showing that the driver was sober though he had taken alcohol shortly before the accident and on the production and use of photographs and sketch plans of the scene of the accident.

Teh Leong Cheh v R [1947] MLJ 71 High Court, Singapore (McElwaine CJ).

Lim Chin Poh v Public Prosecutor [1969] 2 MLJ 159 High Court, Singapore (Choor Singh J).

See CRIMINAL LAW, Vol 4, para 2025.

Mohamed Yasin bin Hussin v Public Prosecutor [1976] 1 MLJ 156 Privy Council Appeal from Singapore (Lord Diplock, Lord Kilbrandon and Lord Edmund-Davies).

See CRIMINAL LAW, Vol 4, para 1469.

The appellant appealed against his conviction on a charge of causing the death of a person by driving a motor car on the road recklessly, by failing to exercise due care and attention.

Held: (1) to bring home a charge under s 26 of the Road Traffic Ordinance 1961 (No 26/1961) in respect of driving recklessly, it must be shown that the driving is such as to amount to rash driving and the driver of the vehicle in question must be heedless of the state of affairs on the road in question; (2) in this case, the evidence was not sufficient to found a conviction for reckless driving under s 26 of the Road Traffic Ordinance and the conviction must be altered to one under s 304A of the Penal Code for causing death by negligence.

Seah Siak How v Public Prosecutor [1965] 1 MLJ 53 High Court, Singapore (Wee Chong Jin CJ).

A was charged with having abetted the suicide of one Yvonne Lim by instigating her to jump from a window of A's ninth floor flat. Evidence was led to show that A came to know the deceased as early as November 1985. The prosecution also adduced evidence that on 1 June 1987 two insurance policies were taken out on the life of the deceased. The total sum assured was S$250,000. A was named as the sole beneficiary. The evidence also revealed that A had arranged for the deceased to take out the policies. On 16 June 1987, A called the police informing them that the deceased had fallen from his flat. A told the police that the deceased fell from the window while trying to adjust the venetian blinds. At trial, the prosecution sought to admit A's statement recorded under the provisions of s 122 of the Criminal Procedure Code (Cap 68). A challenged the voluntariness of this statement but after a trial-within-a-trial, the statement was found to have been voluntarily made and was admitted into evidence. In this statement, A admitted that he had persuaded the deceased to take out an insurance policy on her life naming him as the beneficiary. He had then persuaded her to jump from his flat making it look like she had fallen out so that he could collect the insurance moneys. In his evidence in court, A admitted that he and the deceased had conspired to defraud the insurance companies by taking out the policies and then 'faking' the deceased's death. Unfortunately on 16 June 1987, when the deceased visited the accused she actually accidentally fell out of the window of his flat while adjusting the blinds.

Held, convicting A as charged: (1) mere acquiescence or silence was not sufficient to constitute the offence of abetment by instigation. The prosecution must show that there had been active suggestion, support, stimulation or encouragement; (2) at the close of the prosecution case, the court was not required nor entitled to make a finding on the truth or otherwise of confessions. At that stage of the proceedings, it was only right and proper that the court determine whether the confessions of A were capable in law of proving the two ingredients of the charge against A; (3) the court was satisfied beyond a reasonable doubt that the deceased had committed suicide and that A had instigated her to do so by challenging and encouraging her. The court was further satisfied that A planned to make the suicide look like an accidental fall in the way he had first described it to the police; (4) the offence was very serious. A manipulated and took advantage of the deceased whom he knew loved him so deeply that she was prepared to sacrifice her life for him. A claimed trial, instead of pleading guilty which would have counted in his favour and which might have added substance to his claim in mitigation that he was remorseful. In the course of the trial, A had lied and maligned his wife and sought to discredit the deceased. He was sentenced to eight years' imprisonment.

Public Prosecutor v Lim Tee Hian [1992] 1 SLR 45 High Court, Singapore (Lai Kew Chai J).

Tham Wing Fai Peter v Public Prosecutor [1988] 2 MLJ 424 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1703.

Tan Wee Meng v R [1955] MLJ 239 High Court, Singapore (Whyatt CJ).

See CRIMINAL LAW, Vol 4, para 1690.

A was originally charged with causing hurt under s 321 of the Penal Code (Cap 224) ('the Code'). At the conclusion of the trial, he was found guilty under s 350 of the Code. He appealed against the conviction.

Held, allowing the appeal and acquitting A: (1) the prosecution had failed to call a material witness and therefore an adverse inference must be drawn against the prosecution; (2) A's defence was that he had no intention of hurting the victim and that he did not exert any strength. The record did not show that A's evidence was shaken; (3) the learned magistrate did not appear to have analysed the evidence or made any finding of fact; (4) the learned magistrate had not properly considered the defence of A, as to whether the defence had created a reasonable doubt.

Fong Khee Leng v Public Prosecutor Magistrate's Appeal No 467 of 1989 High Court, Singapore (TS Sinnathuray J).

The appellant, a police officer, was convicted of voluntarily causing hurt to one Leong Peng Keen. The assault complained of was alleged to have taken place inside the Beach Road police station just prior to or in the course of the complainant's removal to the lock-up. Shortly before the alleged assault, the complainant, a taxi-driver, had been involved in an altercation with two women passengers in his taxi; his behaviour apparently became so threatening as to lead to the intervention of the appellant. The complainant declined to proceed to the police station peaceably and assaulted the appellant. The complainant alleged that upon arrival at the charge room at the police station, he was assaulted by two police officers, one of them being the appellant, in the course of which he received a kick from the appellant on the inner side of his left thigh. The case for the prosecution depended entirely upon the evidence of the complainant and the doctor who examined the complainant on the day following the incident. The defence was that the complainant was a man of violence who was not only obstreperous outside the police station, but continued to be so after his arrival in the charge room. In the course of getting him under control, a struggle developed in which the complainant and a number of police officers were concerned. It was suggested that the injuries which the doctor spoke were incurred in the course of this struggle and that no deliberate kick was aimed at the complainant either by the appellant or by any other police officer at the station.

Held: (1) such an injury to the thigh could have been caused by a kick with a shoe as alleged by the complainant, but it could also have been caused in other ways, and when it comes to conjecture as to the circumstances of the impact which was responsible for this particular injury, a doctor is in no better position to speculate than is anybody else; (2) the fact that there were discrepancies in the accounts given by witnesses is a matter which might well be in favour of their truthfulness rather than the reverse. It would seem to be highly probable that the persons taking part in a brief and confused episode of this nature would not be in a position to state precisely how any particular bruise or injury was sustained. It is therefore not a ground for suspicion that the defence witnesses should have ventured differing suggestions as to the cause of the injury; (3) however obstreperous a member of the public may be at the time of his detention outside the police station, there can be no justification for a retaliatory assault upon him once he has arrived inside the police station. Any such conduct on the part of a police officer would be regarded by the courts as a most serious matter, and severe penalties would be appropriate, regardless of the serious professional results which would almost certainly follow a conviction.

Leo Fernando v R [1959] MLJ 157 High Court, Singapore (Rose CJ).

J and B were employees of Guthrie & Co Ltd. On the day in question, there was a strike at the said firm. While J and B and other employees were leaving the premises in some form of protective formation, the appellants, who were not members of the said firm, assaulted them. They were then charged under s 4(a) of the Trade Disputes Ordinance (Cap 153, 1955 Ed). Subsequently, this charge was amended to that of an offence punishable under s 323 of the Penal Code. It was argued for the appellants that the trial was a nullity because the charges as constituted at the outset contained an illegality which was incurable.

Held: (1) as the two persons were charged with assaulting the same person at the same place at the same time, the offences were committed in the same transaction. Further, the two appellants were in no way prejudiced, hindered or embarrassed in their defence by reason of the form of the charges; (2) having regard to the episode itself and to the position that the appellants occupy in union circles, three months' imprisonment in each case would not be inappropriate and the appeal should be dismissed.

Foo Yong Fong & Anor v R [1962] MLJ 156 High Court, Singapore (Rose CJ).

Chow Kim Hoong v Public Prosecutor [1971] 2 MLJ 137 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1485.

The appellant was convicted on the charge of voluntarily causing hurt to another under s 324 of the Penal Code (Cap 103, 1970 Ed). During the exchange of blows, a sharp instrument with a cutting edge, or edges, had been used by the accused to inflict one or more of the three stab wounds. Of the three wounds, one was inflicted in the stomach. The appeal before the court turned on the cause of the stomach wound and the exact circumstances in which it was caused. It was the appellant's case that he had stabbed the complainant in the stomach with the jagged edges of a broken bottle in self-defence.

Held, dismissing the appeal against conviction but allowing the appeal against sentence: (1) the court had made a careful inspection of the tear on the front right side of the shirt and had compared the shape of the tear with the shape of the broken bottle and pieces of glasses. The two shapes fit each other; (2) the medical officer's evidence on the nature of the weapon that was used raised a reasonable, if not serious, doubt as to the validity of the opinion, having regard to the facts. Her evidence on the shape of the wound and its precise cause was at the lowest contradictory and the highest unsure. Further, the fact that no sharp instrument with a cutting edge was recovered from the scene, which was the trial judge's reason for accepting PW2's opinion, did not make it any the more probable that the appellant had used such an instrument. Similarly, not all pieces of glass from the broken bottle had been found at the scene. There was therefore more than a reasonable doubt as to the cause of the wound; (3) the court agreed that the plea of self-defence must fail on the facts of this case. As PW1 was more or less drunk and was in no position to defend himself against two persons, the use of a broken bottle to stab PW1 must have exceeded whatever right of self-defence the appellant might have had in the circumstances. However, it was not necessary for the trial judge, in rejecting the plea of self-defence, to find that 'weapons with cutting edges' were used; (4) having found that the other two injuries on PW1's back were not caused by the appellant but by another person who joined in the fray, the trial judge should not have taken these two injuries into account for the purpose of punishing the appellant. The appellant did not cause these injuries and he was not charged on the basis that he had a common intention with the other person to voluntarily cause hurt to PW1; (5) the court was of the view that the sentence of six months' imprisonment and three strokes of the cane was manifestly excessive. There was reasonable doubt as to the degree of premeditation that the appellant had when he inflicted the wound. The appellant had no criminal record. He surrendered himself to the police and admitted to stabbing PW1 with a broken bottle, albeit by way of self-defence. He was genuinely remorseful. The appellant was, apart from this incident, a useful citizen; (6) the court did not see the need to send him to prison for an offence committed in circumstances which did not necessarily prove that he had a propensity to acts of violence. In the court's view, he should be given another chance. Accordingly, the court set aside the sentence of imprisonment and caning and substituted therefor a fine of S$5,000 and in default two months' imprisonment.

Bannister v Public Prosecutor [1990] 2 MLJ 208 High Court, Singapore (Chan Sek Keong J).

The accused had been convicted for attempting to murder one Azman bin Yahaya while with another accomplice during a period of racial tension. Azman was said to have been stabbed by the first appellant while being held by the other two men in the Jalan Kayu area at about 11am on 13 June 1969. The accused were sentenced to ten years' imprisonment. On appeal, it was argued that the learned trial judge had erred in law in holding that the appellants had the intention to kill their victim.

Held: (1) the evidence in this case fell short of establishing an intention to commit murder and therefore, the conviction under s 307 of the Penal Code cannot stand; (2) the evidence did not show that the injury to the victim was such that his life was ever in danger and therefore, the accused could not be convicted of causing grievous hurt with a dangerous weapon, but only of voluntarily causing hurt with a dangerous weapon; (3) whatever the situation in the country may be, no one who causes physical injury to someone else motivated or actuated solely by racial hostility, if he is convicted and the facts bear out such motive, can expect to be dealt with other than with the utmost severity and unless there are mitigating circumstances he can expect to be sentenced or punished to the maximum allowed by the law and therefore, in this case, where there were no mitigating circumstances, the accused must be sentenced to three years' imprisonment and three strokes of the rotan each.

Koh Lee Beng & Anor v Public Prosecutor [1971] 1 MLJ 7 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Winslow JJ).

Held: the question, in determining whether the charge is properly laid under s 324 of the Penal Code, is whether the instrument is intrinsically likely to cause death; not whether the instrument, if used in a certain way, might cause death. The magistrate ought to show in his grounds of judgment that the defence has been carefully considered and his reasons for rejecting it.

Sultan Mohamed v R [1952] MLJ 186 High Court, Singapore (Brown J).

The first and second respondents were husband and wife while the third respondent was their son, then 15 years old at the time of the offences charged. The complainant was a Filipina maid employed in the respondents' household. The first respondent was charged with having voluntarily caused the complainant grievous hurt by punching her on the face and kicking her in the ribs. The second respondent was charged with having voluntarily caused her hurt by punching her on the face while the third respondent was charged with voluntarily causing her hurt by kicking her in the stomach. They were alleged to have attacked the complainant at some time between 5.30pm and 6pm on 18 June 1990. On the evening of the same day, the complainant was out at Punggol Point Restaurant with the respondents when she suddenly approached strangers nearby to ask for help and resisted attempts by the first respondent to compel her to return to the company of his family. She was eventually taken to hospital where a medical examination showed her to have suffered various injuries, including three fractured ribs which later formed the basis of the charge against the first respondent. Some bruises which appeared to be a few days' old were also discovered on her chest and abdomen. All three respondents denied the charges against them. It was suggested that the complainant might have been injured through falling from a stepladder while cleaning an air-conditioner in the respondents' flat. At the conclusion of the trial the district judge, holding that he found the complainant's evidence unsatisfactory, acquitted the respondents. The prosecution appealed against the orders of acquittal.

Held, allowing the appeal and convicting all three respondents on the charges remaining against them: (1) the case really turned upon the comparative plausibility of the respective accounts of events proffered by the complainant and the three respondents. The district judge's decision was based largely on his unfavourable assessment of the veracity of the complainant's testimony. However, his assessment was based not so much on her demeanour as a witness but on inferences drawn from the content of her evidence. As such, the appellate court was in as good a position as the trial court to assess the same material; (2) having examined the evidence on record, the arguments of counsel and the district judge's grounds of decision, the appellate court was of the view that the evidence in the case did not altogether support the conclusions made by the district judge on the veracity of the complainant's evidence: for example, his finding that she had lied about previous assaults. Also the complainant's credibility ought not to have been adjudged to be adversely affected by immaterial factors such as her inability to specify to the hour the exact time when the respondents attacked her; (3) moreover, the complainant's allegations were substantiated by undisputed objective evidence. In particular the height of the stepladder she allegedly used and the height of the respondents' flat made it very unlikely that she could have fractured her ribs in falling from the stepladder. Her conduct at Punggol Point Restaurant, which manifested desperate fear, was further evidence tending to demonstrate the general veracity of her testimony; (4) taking into consideration all relevant factors, therefore, the appellate court was of the view that the complainant's account of events should have been preferred over those of the three respondents and that the charges against the respondents should have been found proven beyond reasonable doubt. Accordingly, the appeal was allowed and the acquittals set aside. The first respondent was convicted on the charge of voluntarily causing grievous hurt to the complainant and sentenced to nine months' imprisonment. The second and third respondents were convicted of voluntarily causing hurt to the complainant and fined S$1,000 each (in default, one month's imprisonment).

Public Prosecutor v Choo Thiam Hock & Ors [1994] 3 SLR 248 High Court, Singapore (Yong Pung How CJ).

The accused were charged with acts of causing hurt for the purpose of extorting a confession, contrary to s 330 of the Penal Code. At the material time, Japan was the occupying belligerent power in the Colony and she had imposed on this country by force of arms, a military government. The second and third accused were in the Straits Settlements Police before the fall of Singapore and continued to serve under the Japanese. The first accused joined the police force at the request of the Japanese.

Held: the Penal Code does not recognize the mere duty of blind obedience to the commands of a superior as sufficient to protect a soldier from the penal consequences of his act. The law requires that the soldier should exercise his own judgment, and unless the actual circumstances are of such a character that he may have reasonably entertained the belief that the order was one which he was bound to obey, he will be responsible like any other sane person for his act, although he may have committed it under the erroneous supposition that his superior was by law authorized to issue the order. His mistake must be a mistake entertained in good faith on a question of fact. Such a construction of law may subject a soldier to military penalties and, in certain cases, place him in the serious dilemma of either refusing to obey an order which he believed to be unjustifiable in fact, thereby rendering himself liable to military law, or obeying it, to subject himself to the general criminal law of the land. A mistake in law in either case would afford no protection, though it might go in mitigation of punishment.

R v Alsagoff & Ors [1946] 2 MC 191 Singapore Assizes (Worley J).

Thambi Durai v Public Prosecutor [1948] MLJ 48 Court of Appeal, Singapore (Willan CJ (MU).

See CRIMINAL LAW, Vol 4, para 1578.

Karthigasu v Public Prosecutor [1946] MLJ 124 Court of Appeal, Singapore (Willan CJ (Malayan Union).

See CRIMINAL LAW, Vol 4, para 1579.

Ng Eng Huat v Public Prosecutor [1988] 1 MLJ 417 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1450.

The accused was convicted on the following charge: 'That he, on or about the 26th day of November 1946 at about 3pm at Upper Serangoon Road, 5th milestone, Singapore, did cause hurt to one Tan Choon Lim by doing an act, to wit, driving taxi S 1403 so negligently or rashly as to endanger human life or the personal safety of others and thereby committed an offence punishable under s 337 of the Penal Code.' He appealed against this conviction.

Held: the charge was bad for duplicity.

Lim Mong Hong v R [1947] MLJ 94 High Court, Singapore (Murray-Aynsley J).

The appellant was charged that he on or about 25 September 1951 at 12.0am at East Coast Road, Singapore, did cause grievous hurt to one Tay Heah Heang by doing a negligent act, so negligently as to endanger human life or the personal safety of others etc, and thereby committed an offence under s 338 of the Penal Code. The appellant was tried, convicted and sentenced to six months' rigorous imprisonment. There was no dispute that the appellant was driving one of the vehicles and that as a result of the collision, the driver of the jeep station wagon lost his arm. The question at issue was of what degree of negligence, if any, the appellant was guilty and whether the appellant should have been convicted under the Penal Code or under the Road Traffic Ordinance.

Held: it has been laid down that the relevant sections of the Penal Code are only applicable where a high degree of negligence has been proved, similar to that which would justify a verdict of manslaughter under English law. Having regard to all the circumstances in this case, the appellant should have been convicted of dangerous driving and the proper penalty would have been a fine of S$200 or one month's rigorous imprisonment together with disqualification for a period of three years.

Tan Siong Kok v R [1952] MLJ 137 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: For degree of negligence, see also Public Prosecutor v Mohamed Salleh [1940] MLJ 187. Whatever the degree of negligence required, it is doubted if the standard necessary for a conviction under the Penal Code is the same high degree of negligence required for a conviction of manslaughter by negligence under English law. See further the comment by Koh Kheng Lian and Myint Soe: 'The Penal Codes of Singapore and States of Malaya, Cases, Materials and Comments', Vol 1 (1974), at pp 242249.]

Held: to invoke the aid of s 34 of the Penal Code successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all: if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.

Chin Hon v Public Prosecutor [1948] MLJ 193 Court of Appeal, Singapore (Pretheroe Ag CJ (Malayan Union).

A was convicted in the district court of armed robbery of her husband and his mistress. (See [1987-1988] BLD Yearbook 1959.) L and O, her alleged accomplices, were the prosecution witnesses. A was sentenced to three years' imprisonment. She appealed against both her conviction and the sentence. The fact that a robbery occurred was not in dispute. The only issue was the role of A in it.

Held, allowing the appeal: (1) and that the items mentioned in the charge were taken from the victim; (2) on the evidence, two of the ingredients were not proved. A was not at the scene of the crime, which was an apartment. Rather, she was downstairs in the car park at the time. In addition, she was not armed and it was L and O who were carrying the knives; (3) the conviction could not therefore stand and was wrong in law; (4) although defence counsel had not at the trial argued that there was no case to answer at the end of the prosecution case, this omission could not relieve the prosecution from its burden of proof. The court was not precluded from quashing a conviction if the evidence of the prosecution, even if believed, would not prove the charge; (5) case law has established that an appellate court should be slow to interfere with a finding of fact by a lower court as an appellate court does not have the advantage of seeing and hearing the witnesses and therefore of assessing their credibility. What was basically in issue here was a question of fact. A said that she had merely asked L to trail her husband and to get pictures of him and his mistress. L claimed that A had wanted to teach her husband a lesson by robbing him. Although L as an accomplice was certainly a competent witness, his evidence should be assessed with caution; (6) to warrant A's conviction, the following had to be proved: that A was at the scene of the crime with L and O; that the common intention of the three of them was to commit robbery; that A was armed;the trial judge had failed notwithstanding that he said he had assessed the evidence of L and O with caution, to closely scrutinize and examine their evidence bearing in mind that they were accomplices. If he had critically examined the evidence, he would have noticed the lies in the evidence of L and the incredibility of some of the answers and if he had placed the version of the events given by A alongside that of the two accomplices, he would not have thought that the defence of A was implausible. Her evidence was every bit reasonable and credible. The evidence of L, the main prosecution witness, was totally unreliable and the conviction of A on the charge must be quashed and the sentence set aside. The appeal was accordingly allowed.

Sim Ah Ngoh v Public Prosecutor [1985] 2 MLJ 340 High Court, Singapore (Chao Hick Tin JC).

Public Prosecutor v Lim Ah Poh & Anor [1992] 1 SLR 87 High Court, Singapore (TS Sinnathuray J and Kan Ting Chiu JC).

See CRIMINAL LAW, Vol 4, para 607.

A1 and A2 were convicted of the murder of D by the High Court. A1 appealed, inter alia, on the ground that there was no direct evidence that he shared a common intention to murder D. The relevant facts were as follows. A2 had been a lodger in D's house previously. He and A1 agreed to rob D in order to get money to return to Malaysia. They chose a time when they knew D would be alone in the flat. When they got into the flat, A1 held and kicked D. A2 stabbed him with a letter opener that he had brought along. They then ransacked the flat and took money and jewellery. A1 claimed that he did not know that A2 was armed with a letter opener and that their intention had been to overpower D and tie him up. A1 also submitted that the trial judges had failed to remind themselves of the danger of convicting on uncorroborated accomplice evidence.

Held, dismissing the appeal: (1) it is no longer a requirement for a trial judge to say, as part of his grounds of decision, that he had warned himself before accepting uncorroborated accomplice evidence to convict an accused. However, it is still incumbent on the trial judge to scrutinize and weigh carefully the uncorroborated evidence of an accomplice before acting on it; (2) it was not unreasonable to infer that both accused knew that if D was left alive after the robbery he would identify them to the police. Moreover, despite A1's contention that the plan was to overpower and tie up D, they brought nothing with which to tie him up. No effort was made to tie D up when the accused entered the flat. There was in fact no evidence of any struggle in the living area where D was fatally injured; (2) the Court of Criminal Appeal held that the trial judges were entitled to infer from the circumstances that A1 knew that A2 was carrying a letter opener in order to stab D. They were satisfied beyond doubt that there was a common intention on the part of A1 and A2 to cause hurt to D which in the ordinary course of nature had caused his death. The appeal was therefore dismissed.

Ramachandran & Anor v Public Prosecutor [1991] 1 MLJ 267 Court of Criminal Appeal, Singapore (TS Sinnathuray, Chua and Rajah JJ).

The appellant was arrested on 26 March 1987 and charged in DAC 2754/87 with trafficking in 2.6kg of cannabis. He was released on bail. On 22 December 1988, the appellant was arrested and charged in DAC 13751/88 and 13752/88 for two offences, one of trafficking and one of possession of drugs. No bail was granted and he was remanded. On 10 May 1989, the appellant was produced in court where he pleaded guilty to all charges. He, however, disputed the facts in DAC 2754/87, claiming that he did not commit this offence in common intention with one Tan Chuan Ten. He admitted that he did traffic in the amount of cannabis charged. All three charges were adjourned. On 17 May 1989, the appellant was produced in court again and asked to plead to DACs 13751/88 and 13752/88 only. He pleaded guilty and was sentenced to three years' imprisonment and three strokes of the cane on the trafficking charge, and to one year's imprisonment in respect of the possession charge, the sentences to run consecutively. On 20 February 1990, the appellant was produced in court again and pleaded guilty to DAC 2754/87. He was sentenced to five years' imprisonment and three strokes of the cane. The sentence of imprisonment was ordered to commence on 20 February 1990 pursuant to s 234(1) of the Criminal Procedure Code (Cap 68, 1985 Ed) ('the CPC'). The appellant appealed against the sentence, claiming that he had been prejudiced by the adjournment of 10 May 1989 and having to plead to the charges separately.

Held, dismissing the appeal: (1) there is no express provision in the CPC requiring an accused to admit a statement of facts presented to court before his plea can be accepted. The practice of presenting a statement of facts setting out the circumstances in which the offence was committed and the accused admitting such facts enables the court to ascertain that the accused understands the nature of his plea and intends to admit without qualification the offence alleged against him; (2) it is therefore essential that what the accused admits to in the statement of facts contains all the ingredients of the offence. It is not essential, however, that the accused should admit every iota of fact contained in the statement. If what he admits contains all the ingredients of the offence and what he disputes or does not admit is irrelevant or immaterial to the offence, such an admission is sufficient and the court should accept the plea; (3) s 34 of the Penal Code (Cap 224, 1985 Ed) did not create a substantive offence. It lays down only a rule of evidence to infer joint responsibility for a criminal act performed by a plurality of persons; (4) the appellant's plea should have been accepted on 10 May 1989. Since he admitted committing the offence of trafficking, it was immaterial whether or not there existed the common intention between him and Tan; (5) however, it was difficult to say and it would not be right to speculate the sentence that the court would have handed down or ordered had it dealt with all three charges on 10 May 1989. It therefore could not be said that the appellant had been seriously prejudiced by the events that had occurred; (6) an accused ought to be punished in the circumstances in existence at the time of commission of the offence and in accordance with the legislation then in force. It was not correct to take into account subsequent legislation; (7) the amount of cannabis involved was substantial. In addition, while the accused was on bail, he committed two further offences of trafficking and possession of drugs. They go to show his attitude of mind. The term of five years' imprisonment was not manifestly excessive in the circumstances.

Chota bin Abdul Razak v Public Prosecutor [1991] 3 MLJ 77 High Court, Singapore (LP Thean J).

Ng Eng Huat v Public Prosecutor [1988] 1 MLJ 417 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1450.

Tan Beng Chye v Public Prosecutor [1966] 1 MLJ 173 Federal Court, Singapore (Tan Ah Tah Ag CJ, Buttrose and Chua JJ).

See CRIMINAL LAW, Vol 4, para 1717.

In this case, the appellant had been convicted of an offence under s 354 of the Penal Code. One of the grounds taken on appeal was that there was no corroboration of the evidence of the complainant.

Held: in such a case, corroboration is desirable and as the learned magistrate had not given sufficient attention to this matter, the conviction must be quashed.

Koh Eng Soon v R [1950] MLJ 52 High Court, Singapore (Murray-Aynsley CJ).

In this case, the appellant appealed against a conviction under s 354 of the Penal Code. The alleged offence was in respect of a young girl of eight years of age who was not sworn. Her evidence was not corroborated. In his grounds of judgment the learned magistrate said, 'I was so convinced that the accused went to the secluded quarry with the girl that that only possible defences to which I could reasonably have paid attention would be that accused saw an animal crawling up the girl's skirt, or that he smacked her because she misbehaved herself while out with him.'

Held: (1) in such a case the absence of corroboration is not by itself a fatal objection to the validity of the conviction, but the appellate court will scrutinize the record very carefully, because it is always an extreme thing to convict anyone on unsworn evidence; (2) in this case, the learned magistrate had in his judgment displayed a wrong attitude to the child witness and therefore the conviction must be quashed.

XY v R [1950] MLJ 51 High Court, Singapore (Murray-Aynsley CJ).

The appellant, a doctor, was charged with using criminal force to outrage the modesty of the complainant. The complainant was referred to the appellant's clinic for a medical examination by a life insurance company. The appellant was alleged to have committed the offence when examining the complainant's chest and breasts. At the trial, there was strong disagreement about whether the incident occurred on 20 February or 22 February 1993. The prosecution called an expert witness to testify that a chest and breast examination should be carried out with the patient lying down as it was more accurate. The defence's expert testified that the examination may be carried out with the patient sitting up. The district judge preferred the prosecution's expert evidence over that of the defence's. The district judge believed the complainant and her witnesses, and disbelieved the appellant and his witnesses. He also made remarks about the beauty of the complainant. The appellant appealed.

Held, allowing the appeal: (1) the court could not dismiss the defence's expert evidence. It was not contradicted by the prosecution's expert evidence as the prosecution's witness was unable to say that no doctor would carry out the chest and breast examination in the manner done by the appellant. In such a case, the court would find it very difficult to say that it was certain, beyond any reasonable doubt, that what the appellant did was not only medically improper, but was not done bona fide as well. In a criminal case such as this, the court should be slow in getting itself drawn into a medical debate on, essentially, which was the preferred way of doing something; (2) at the time of the medical examination by the appellant, the complainant was under the mistaken impression that no chest or breast examination was necessary. This impression may have been coloured by the fact that in the complainant's experience, she had never had a breast examination in which she was not asked to lie down. This might further have been aggravated by her difficulty in understanding English. There was therefore a very real likelihood that the complainant may have been mistaken as to the nature of the appellant's examination of her chest and breasts. This ought to have been considered by the district judge; (3) although evidence of the complainant's former complaints was technically corroboration, attention must be paid to the nature of the corroboration and the question of what exactly was meant to be corroborated. The fact remained that the complaints originated from the complainant herself and was not independent evidence. Hence, great care should be exercised by the court when assessing the weight of this evidence; (4) the demeanour of the complainant and her former complaints were perfectly consistent with her being mistaken. Distress may be due to some other extraneous reasons and also added little to the evidence when it was part and parcel of the complaint. Where the accused had to touch the complainant in the place where she said he touched her, spontaneous complaints and immediate demeanour after the event was often of little assistance to the court in assessing what happened. They could only tell the court what the complainant's perception of the medical examination was; (5) it could not be said beyond reasonable doubt that the incident occurred on 22 February 1993 and not 20 February. However, this was not really material as the question of the corroboration here was not really important. There were also doubts about relying too much on the appellant's police statement in this case as there was evidence that the appellant was not really in the right frame of mind when he made the statement. There was no basis for the district judge's finding that the appellant measured the complainant's appendicitis scar as it was not alleged by the complainant at all. It was a necessary part of the examination to look at her scar. There was accordingly no basis to find that the appellant used this as an excuse to touch different parts of the complainant's abdomen. The fact that the complainant's gastritis and subretinal of the eyes were not recorded by the appellant did not show that the appellant was lackadaisical in his examination as it may simply have been due to miscommunication because of the complainant's difficulty with the English language; (6) the district judge's comments about the beauty of the complainant were regrettable. Regardless of whether the district judge had allowed his perception of the complainant's beauty or otherwise to influence his decision, they may legitimately convey the impression that his findings had been so coloured.

John Benjamin Cadawanaltharayil v Public Prosecutor [1995] 3 SLR 805 High Court, Singapore (Yong Pung How CJ).

The appellant was charged and convicted in the district court on two counts of aggravated outraging of modesty under s 354A(1) of the Penal Code (Cap 224). The appellant was a supervisor in a restaurant. The complainant was a waitress there. The complainant alleged that the appellant molested her and that in doing so, the appellant had wrongfully restrained her. Apart from the complainant's complaints to her sister, Zaiton, and her police report, there was no corroboration of the complainant's evidence. The complainant alleged that she had told one 'aunty' about the incident shortly after it happened. However, 'aunty' was not called by the prosecution, offered to the defence or even identified. The appellant denied the allegations. The appellant's defence was that on the day in question, the complainant had told her that she had broken up with her boyfriend. The appellant maintained that he merely tapped her on her shoulders to console her. The appellant also admitted that he might have touched the complainant's arms when talking to her. Apart from this, he denied any encounter between the complain-ant and himself which was in any way sexual. The defence was not disclosed in the appellant's police statements, in which he had merely made a bare denial to the allegations. In convicting the appellant, the district judge held that the complainant's testimony was corroborated by the testimony of her sister and the making of the police report, and that the court could convict without corroboration if it was totally convinced of the truth of the complainant's testimony. He drew an adverse inference against the appellant for not disclosing his defence in his statements to the police. The district judge held that the appellant had lied because the complainant did not have a boyfriend, basing the finding on Zaiton's evidence that to her knowledge, the complainant had no boyfriend. The district judge was of the view that the appellant's lies corroborated the complainant's testimony. He also declined to draw an adverse inference against the prosecution for not calling 'aunty' as a witness. In reaching his conclusion, the district judge was of the view that the complainant had no reason to bring false evidence against the appellant. The appellant appealed.

Held, allowing the appeal: (1) although the complainant's previous complaints to her sister and the police amounted to corroboration by virtue of s 159 of the Evidence Act (Cap 97, 1990 Ed), the complaints were not corroboration by independent evidence. All the complaints originated from the complainant. They, therefore, had little additional evidential value. It would be dangerous to equate corroboration by virtue of s 159 with corroboration by independent evidence. There is no reason why a s 159 corroboration of a complainant's testimony should necessarily carry more weight than a s 159 corroboration of the accused's denial. Both were equally self-serving. Hence, the court should treat Zaiton's evidence with great circumspection. It would be erroneous to attach to them such weight as would have been the case had they been independent evidence; (2) a mere corroboration by virtue of s 159 of the Evidence Act was insufficient to remove the caution that the complainant's testimony in a case involving sexual offences must be unusually convincing for the court to be able to convict without corroboration. If the complainant's evidence was not unusually convincing, the fact that she repeated it several times could not add much to its weight. Even though a previous complaint went beyond the question of consistency in Singapore, it normally did not go very far, so far as weight was concerned; (3) whether the complainant did or did not have a boyfriend was immaterial and of little relevance. Similarly, whether the appellant did or did not console the complainant and tapped her on the shoulders had no bearing to the relevant issue, which remained whether the appellant molested the complainant as alleged; (4) as the alleged incident about consoling the complainant was immaterial and irrelevant, there was no reason to expect the appellant to disclose this when making his s 122(6) statement. That being the case, it would be improper to draw an adverse inference against the appellant for failing to mention it; (5) there was insufficient evidence to come to the conclusion that the complainant did not have a boyfriend. The only evidence was Zaiton's statement that, to her knowledge, the complainant did not have a boyfriend. This was at best an equivocal answer. It was also pertinent that when it was put to the complainant that she was unhappy because she had broken up with her boyfriend, she did not deny that she had a boyfriend; (6) four criteria had to be satisfied before a lie could amount to corroboration. The lie must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realization of guilt and a fear of truth. Fourthly, the statement must be clearly shown to be a lie by independent evidence. As the alleged lies related to immaterial issues, they could not amount to corroboration. In any event, there was no clear independent proof that what the appellant had told the court were lies; (7) in this case, not only had the prosecution not offered 'aunty' to the defence, but it has not even told them who this 'aunty' was. The prosecution had not discharged in any way its duty to make 'aunty' available to the defence. Furthermore, the entire case turned on the credibility of the complainant. If the complainant had not told 'aunty' of the incident as she alleged, it would have had a very material bearing on the credibility of her testimony. By not calling 'aunty' and not making her available to the defence, the defence was put in an invidious position of being unable to rebut a bare allegation by the prosecution's chief witness. In order to be fair to the defence, an adverse inference ought to be drawn against the prosecution under s 116(g) of the Evidence Act; (8) once an adverse inference was drawn against the prosecution under s 116(g) of the Evidence Act, in the present case, the credibility of the complainant would have been shaken. It was thereafter very difficult to come to the conclusion that the complainant's evidence had been unusually convincing. This was fatal to the prosecution's case as well as to the safety of the conviction; (9) if a trial judge was going to rely on the fact that the complainant had no reason to falsely accuse the appellant, then this should be found as a fact based on credible evidence. The burden of proving a lack of motive to falsely implicate the appellant was on the prosecution, even though the prosecution was making a negative assertion. It was not for the defendant to prove that the complainant had some reason to falsely accuse him. This was a fact that would be wholly within the complainant's knowledge and nobody else's. The defence therefore could not be expected to prove this. It was precisely because there could be reasons why a complainant would make false allegations against an accused that it was often unsafe to convict in cases of sexual offences where there was no independent evidence to corroborate the complainant's allegations; (10) having examined the notes of evidence, the court was also not satisfied that the complainant's evidence was unusually convincing. There were inconsistencies in the complainant's evidence. Some of these could be attributed to the pressures of giving evidence in court. However, the same benefit must also be given to the accused when assessing his evidence. Some of the inconsistencies may even be explained by her youth and the much made observation that victims of sexual offences did not always react in a predictable manner. However, not all the inconsistencies could be so explained away. They would be sufficient to raise a reasonable doubt; (11) (per curiam) it was important in a case of this nature to scrutinize the evidence with great care, and to bear in mind at all times that, essentially, all that was before the court was a bare allegation and a bare denial. The court should be vigilant against being sidetracked by irrelevant issues.

Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR 767 High Court, Singapore (Yong Pung How CJ).

The accused was a van driver and the complainant (AB), an Indian national, was at the material time in Singapore on a social visit pass. The accused was charged with having committed the following offences: (a) abduction of AB with the intention of forcing her into illicit sexual intercourse (under s 366 of the Penal Code (Cap 224)); (b) having carnal intercourse with AB against the order of nature under s 377; (c) rape of AB and putting her in fear of hurt to herself under s 376(2)(b); (d) robbery under s 392 of the Code; and (e) theft of other items belonging to AB under s 379 of the Code. The accused pleaded guilty to the fifth charge only and claimed trial on all the other charges. The prosecution's case was this. On 22 January 1995, AB while walking along Hampshire Road was accosted by the accused, who drove his van and stopped by her side. He represented to her that he was a police officer and demanded to see her passport. She produced her passport, and having inspected it he placed it in front on the dashboard and asked her to board the van, as he wanted to bring her in for further investigation. Under threat of being handcuffed, she boarded the van. He drove her all the way to Changi Coast Road and at a certain point he stopped the van and asked her to board the rear compartment and thereafter he drove the van to an isolated vacant land. He then entered the rear compartment and forced her to commit an act of fellatio on him and he also raped her. Thereafter whilst she was dressing, he noted that she had some money tied in a knot in her saree and he forcefully took her money. In his defence, the accused admitted that he had accosted her while he was driving along Hampshire Road. A conversation between them ensued, as a result of which she willingly boarded the van and he drove her to Changi Coast Road. At a certain point along the way he stopped the van and asked her to board the rear compartment which she did. He then drove to a vacant land where he stopped the van and joined AB in the rear compartment. At his request the complainant performed the act of fellatio on him and thereafter they had sexual intercourse. While they were dressing, he noticed her money tied in a knot in her saree and he took the money from her. In snatching the money back from him, AB ripped off his pocket and fell in a sitting position on the floor. The learned trial judge found the accused's evidence closer to the truth and that the accused came across as an honest witness. He did not believe AB, whom he found to be not entirely forthright. Not only had the learned trial judge some doubts as to whether AB had consented to travel in the accused's van and to the sexual acts but he was convinced that in all probability she did consent. Accordingly, he acquitted the accused on the first and third charges and found him guilty on the second charge. As for the fourth charge, he amended it and found the accused guilty of theft. The prosecution appealed.

Held, allowing the appeal: (1) the evidence of AB and the accused had to be tested against the primary facts which were not in dispute and the material evidence before the court. So tested, the evidence of the accused was inherently incredible and the evidence of the complainant was more consistent with the primary facts. On the evidence, the accused had, by deceitful means, induced AB to board the van and brought her all the way to a spot off Changi Road to which she would otherwise not have gone. This constituted abduction under s 362 of the Penal Code. The accused abducted her with the intent that she might be compelled to have illicit intercourse with him. The necessary ingredients of the offence under s 366 of the Penal Code had, therefore, been established beyond any reasonable doubt; (2) the absence of injury on an alleged victim of rape, though a relevant consideration, was not fatal to the charge of rape. In the case before the court, despite the absence of a scratch on either the accused or AB, and in spite of the fact that no weapon was used, the evidence of AB tested against all the evidence led to the irresistible conclusion that she had been raped by the accused and had been put in fear of him; (3) certain degree of force must have been used by the accused on AB to restrain her from getting back her money, which accounted for the ripping off of his pocket and her fall onto the floorboard. She did not persist in making a further attempt to get back her money because she had been put in fear of further hurt to herself. What the accused did in those circumstances amounted to robbery under s 390(2).

Public Prosecutor v Victor Rajoo [1995] 3 SLR 417 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and LP Thean JA).

A was charged with rape and robbery. The prosecution led evidence that on 8 December C was accosted by A near her home. A took C to a secluded spot along the Pan-Island Expressway near Bedok North Secondary School and robbed her of her wristwatch, bracelet and S$10. After robbing C, A raped her. A then brought C to Bedok Reservoir Road where he hailed a taxi for her and allowed her to return home. In the taxi, C told the driver of the incident. On being brought home, C told her sister of the incident and then later lodged a police report. C was sent for a medical examination and it was discovered that there were fresh hymenal tears indicating that this was the first time C had intercourse. In addition, the fourchette was found to be lacerated. On 14 December, C identified A at a identification parade. In his defence, A admitted that he had sex with C but claimed that she had consented. He denied robbing her.

Held, convicting A on all charges: (1) in a case of a sexual offence involving a young complainant, corroborative evidence was desirable; (2) the medical evidence revealed that the intercourse was forceful because the laceration of the fourchette did not usually occur when a virgin had voluntary intercourse; (3) there was the evidence of C's statement to the taxi driver that she had been robbed and raped. Although the statement was a weaker form of corroboration insofar as it was not evidence from an independent source, it was nevertheless corroborative evidence under s 159 of the Evidence Act.

Public Prosecutor v Govindaraju Criminal Case No 5 of 1991 High Court, Singapore (Kan Ting Chiu JC).

A was charged with the rape of V. The evidence revealed that V was set upon by A near her home. V gave evidence that A had bundled her into a van and driven her to a secluded spot. There he pinned her to the floor of the van, stripped her and raped her. A was convicted. He appealed.

Held, allowing the appeal and quashing the conviction: (1) in deciding at the close of the prosecution case whether to call on an accused to enter his defence, the trial judge has to decide, as a question of law, whether there was some evidence not inherently incredible which, if he were to accept as accurate, would establish each essential ingredient of the alleged offence; (2) the trial judge must consider all the relevant evidence adduced up to that point in the proceedings before he decides that a prima facie case had been made out, for evidence other than the complainant's may disprove the complainant itself; (3) the essential elements of an offence of rape which have to be proved are that there was sexual intercourse and that the sexual intercourse was without the consent or against the will of the complainant; (4) in the present case, without the later evidence of A that there had been penetration, there was only the evidence of V that sexual intercourse took place; (5) an allegation of rape is one of the easiest allegations to make and one of the most difficult to refute, and a conviction which is based merely on a bare accusation which is then repeated in evidence in court would be unsatisfactory; (6) the swabs taken during the medical examination of V disclosed no evidence of spermatozoa. No seminal stains were found on the clothing of V or A or on the tissue and carpet recovered from the scene of the crime; (7) V's evidence of the events of the alleged rape when taken as a whole appeared to be as inherently incredible as such evidence could possibly be; (8) notwithstanding that counsel had made no submission at the close of the prosecution case, the trial judge should have found that the necessary evidence to prove the essential ingredients of the offence was lacking and should not have called upon A to enter on his defence, but should have recorded an order of acquittal.

Wong Kok Meng v Public Prosecutor Magistrate's Appeal No 263 of 1989 High Court, Singapore (Yong Pung How CJ).

A was charged with the rape of his two eldest daughters, K and V. Both victims gave evidence that A would force them to have sexual intercourse with him when their mother was not present. If they cried or resisted, A would assault them. Their medical examination revealed several hymenal tears. A's defence was a bare denial.

Held, convicting A: (1) the medical evidence corroborated both the victims; (2) A was a wholly untruthful witness and his defence could not be accepted; (3) an oral judgment was perfected as soon as it was pronounced and the effect thereof entered into the judge's notebook and signed.

Public Prosecutor v Ramasamy Criminal Case No 14 of 1988 High Court, Singapore (TS Sinnathuray J).

Held: (1) on a charge of rape under the Penal Code, an accused's belief that the woman consented is, as such, no defence. The English case of DPP v Morgan [1976] AC 182 has no application under the Penal Code; (2) 'reasonable cause to believe that the woman consented' constitutes, under the Penal Code, a defence of 'mistake of fact' under s 79 and must be examined under that section and other provisions of the Penal Code; (3) what is not 'consent' is defined in s 90. Where an accused claims he made a mistake of fact believing the woman consented, his claim must be examined, besides s 79, in the light of s 90 and the explanations of the following terms in the Penal Code: (a) 'reason to believe' in s 26; (b) 'injury' in s 44; and (c) 'good faith' in s 52; (4) s 79 ('mistake of fact') comes under Chapter IV ('General Exceptions') of the Penal Code. By s 107 of the Evidence Act (Cap 97, 1985 Ed), the burden of proving the existence of circumstances bringing the case within a general exception is on the accused and the court shall presume the absence of such circumstances. The burden is discharged on a balance of probabilities; (5) where, on a charge of rape, there is no allegation that physical force was used, the absence of injury on the complainant is immaterial; (6) the word 'hurt' in s 376(2) is to be given its ordinary lay meaning. It is not limited by s 319, in which the word is defined not for purposes of the whole code, but only in relation to offences where 'causing hurt' is the offence itself or an ingredient in an offence.

Public Prosecutor v Teo Eng Chan & Ors [1988] 1 MLJ 156 High Court, Singapore (Coomaraswamy J).

Public Prosecutor v Fadlilalaili bin Abdul Kadeh & Anor Criminal Case No 46 of 1990 High Court, Singapore (TS Sinnathuray J).

See CRIMINAL LAW, Vol 4, para 1391.

Public Prosecutor v Victor Rajoo [1995] 3 SLR 417 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and LP Thean JA).

See CRIMINAL LAW, Vol 4, para 1625.

The accused faced two charges one for attempted rape on 31 January 1994 and the other for rape on 1 February 1994. There was a unique feature in this case as the complainant and the accused, although not married, lived as husband and wife. They had a daughter together. The accused and the complainant had been together for many years and they had a good relationship. The relationship, however, turned sour for two reasons. The first was that the accused was in debt and the second, because the complainant had another boyfriend. The complainant and the accused stopped cohabiting. On 2 February 1994, the complainant made a report at the Sembawang Neighbourhood Police Post that the accused had raped her. The police arrested the accused on 5 February 1994 at which point the accused made some oral statements and a s 122(6) statement to the police which the prosecution sought to admit as evidence. The defence objected to this on the ground that the accused had been assaulted and shouted at by the police at the time he made the statements and that the accused had made those statements in fear of being further assaulted. The prosecution did not seek to adduce the report as evidence; the defence, however, did.

Held, acquitting and discharging the accused on both charges: (1) the oral statements and the s 122(6) statement could not be admitted as evidence as there were witnesses to support the defence's allegation that when the accused was arrested, there had been an assault and that the accused had screamed in pain; (2) there were unsatisfactory features in the prosecution's case their failure to produce the first report by the complainant to the police; the fact that there was no mention in the report by the complainant that she had been raped; the medical examination conducted on the complainant pursuant to the report showed no evidence that the complainant had been raped.

Public Prosecutor v Lee Thiam Hock Criminal Case No 50 of 1994 High Court, Singapore (Rajendran J).

The appellant was convicted for the rape of an 18-year-old girl. He appealed against the conviction and sentence of 15 years' imprisonment and 12 strokes of the cane. He denied that he threatened the victim and contended that the victim consented to the removal of her clothes and there was no penetration.

Held, dismissing the appeal: (1) throughout a criminal trial, the burden lay with the prosecution to prove beyond a reasonable doubt each and every ingredient of the charge brought against an accused. An accused had no burden to prove anything, for even if he was called to give his defence, he had only an evidential burden to cast a reasonable doubt on the prosecution case, either from the prosecution case itself of from the defence, to earn an acquittal; (2) without question, the conviction made on sworn and tested testimony and with all corroborative evidence, where there was no doubt whatsoever that the appellant was guilty as charged; (3) this court, sitting as an appellate court, had to be slow to disturb the trial court's sentence, even if it would have passed a different sentence, unless the sentence was manifestly harsh and excessive; (4) in the passing of an appropriate sentence, a court had to satisfy foremost the public interest. On the facts and circumstances of the instant appeal, and taking into account the gravity and the execution of the offence, the sentence of 15 years' imprisonment and 12 strokes of the cane was not harsh or excessive.

Seok Fook San v Pendakwa Raya Rayuan Jenayah No 42-275-94—High Court, Penang (Jeffrey Tan JC).

The victim and her boyfriend had gone to Marina Park where they had some drinks which caused them to lose consciousness. When the victim regained consciousness she was in the hospital. The victim was found by two witnesses who also saw the first accused holding her and then running away from the scene with another man. When the victim was found, her skirt was lifted up and she did not have her panties and pantyhose on and there was blood on her thighs. A wallet was recovered from beneath her buttocks and inside it was found the identity card of the first accused. The police searched the area and found the first and second accused nearby. They were arrested and the first accused charged with rape while the second accused was charged with abetment. The victim was taken to the Singapore General Hospital for examination. Fresh blood stains were found on both sides of the vulva. There was an abrasion of the vulva and fresh hymenal tears. In the course of the trial the prosecution sought to admit in evidence certain oral and written statements of the accused. As regards the oral statements, the accused alleged that he made no such statements. The oral statements were admitted in evidence without a voire dire, while the written statements were admitted after a voire dire. The statements revealed that the accused had come upon the unconscious body of the victim and decided to rape her. The first accused had raped her while the second accused kept watch. They ran when they heard somebody coming. Both accused elected to remain silent when their defence was called.

Held, convicting both accused: (1) where an accused person alleges that he did not make a particular statement, voluntariness did not have to be determined before the statement was admitted in evidence and no voire dire would be conducted for that purpose. The weight to be given to the statement would have to be determined by the judge of facts; (2) the court accepted the victim's evidence that she lost consciousness after having a drink. The court also accepted the evidence of the witnesses who saw the first accused with the victim and then two men running away from where the victim was found; (3) the circumstantial evidence and the oral and written admissions constituted sufficient evidence to call the defence of the accused persons. It was open to the accused persons to persuade the court that they did not make the oral statements and that no weight should be placed on the written and oral statements. However, electing to remain silent, they left little scope for such argument to be made; (4) for abetting the offence the second accused was sentenced to four years' imprisonment and four strokes; (5) it could not be said that there was no trauma caused to the victim because she was unconscious. The knowledge and anguish that she was raped should be no less real or painful for that. The first accused was sentenced to ten years' imprisonment and four strokes of the cane.

Public Prosecutor v Yong Kou Lin & Anor Criminal Case No 37 of 1992 High Court, Singapore (Kan Ting Chiu JC).

Abdullah v R [1954] MLJ 195 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ, Pretheroe Ag CJ (FM).

See CRIMINAL LAW, Vol 4, para 1405.

The three accused in these criminal appeals were charged with the offence of rape under s 376 of the Penal Code (Cap 224, 1985 Ed). Rape is a non-bailable offence. They applied to the High Court to be admitted to bail pending their trial. These applications were made pursuant to s 354 of the Criminal Procedure Code (Cap 68, 1985 Ed). Bail was refused. The three accused appealed.

Held, dismissing the appeal: (1) the jurisdiction of the Court of Criminal Appeal is to hear appeals against orders of finality, ie those resulting in conviction and sentence, or acquittal; (2) an order made on a bail application, being interlocutory and tentative in nature, does not fall within the purview of s 44 of the Supreme Court of Judicature Act (Cap 322, 1985 Ed) and is thus a non-appealable order.

Mohamed Razip v Pubic Prosecutor and other appeals [1988] 1 MLJ 84 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, LP Thean and Coomaraswamy JJ).

The appellant was convicted in the subordinate courts on a charge of having committed an act of gross indecency with another male person contrary to s 377A of the Penal Code (Cap 224). He was alleged to have touched the penis, chest, nipples and buttocks of one Koh on 13 September 1993 while performing his duties as a radiographer, conducting an X-ray on Koh's injured left wrist in the X-Ray room of Alexandra Hospital. The appellant had placed a gonadal shield over Koh's scrotum and had then asked him to lie down on an X-ray table, whereupon the offence was allegedly committed. Koh had suspected that something was amiss but had assumed that the appellant was complying with established medical procedures. He did not protest until the appellant asked to examine his anus as well. Koh eventually obtained confirmation from one Dr Phipps of the same hospital that his wrist injury did not necessitate any examination of the genitals and anus. He became angry and lodged a police report against the appellant. At the close of the prosecution's case, the defence contended that there was no case to answer. It was contended that a charge under s 377A required the prosecution to show that the appellant had committed the act of gross indecency 'with' Koh. This meant that consent was an ingredient of the offence, and the word 'with' in s 377A did not carry the broader meaning of 'directed towards' or 'against'. The magistrate disagreed, ruling that consent was not an ingredient of the offence, but he directed that the charge be amended to specify only that the appellant had touched Koh's penis. In his defence, the appellant said that he had acted in accordance with prudent medical procedures. He could have accidentally touched Koh's penis in the process of putting on the gonadal shield. He denied asking Koh to lie down on the X-ray table. The magistrate accepted that Koh was a witness of truth and rejected the appellant's version of the events. He convicted the appellant on the amended charge and sentenced him to ten months' imprisonment. On appeal, it was submitted that the magistrate had erred, firstly, in ruling that consent was not an element of a s 377A offence, rejecting the English Court of Appeal decision of R v Preece [1977] QB 370; [1976] 2 All ER 690; secondly, in ruling without legal authority that the act of touching Koh's penis was a grossly indecent act; thirdly, in applying the wrong standard of proof, on account of various references in his grounds of judgment to 'possibilities' and 'probabilities'; and, finally, in drawing the wrong inferences from the totality of the evidence. It was further submitted in mitigation of sentence that the sentence of ten months' imprisonment was manifestly excessive, having regard to the nature of the offence.

Held, dismissing the appeal against conviction but allowing the appeal against sentence: (1) the state of the law on gross indecency in Singapore reflected the law in England prior to the enactment of s 1 of the Sexual Offences Act 1967, which created a defence where the act of gross indecency was a private act of homosexuality between consenting adults. There was no justification for adopting the approach of the English Court of Appeal in R v Preece when the local legislation remained on an entirely separate plane; (2) the meaning of 'with' in s 377A included 'directed towards' and 'against'. The appellant was thus properly charged under s 377A, as consent was not an element of the offence; (3) what amounted to a grossly indecent act depended on whether in the circumstances, and the customs and morals of the time, it would be considered grossly indecent by any right-thinking member of the public. From the evidence, there was no doubt that the acts complained of in the present case would be considered grossly indecent by any right-thinking member of the public; (4) the references to 'possibilities' and 'probabilities' made by the magistrate were not employed in dealing with any material aspects of the prosecution's evidence. The magistrate was well aware of the standard of proof required of the prosecution and had not applied the wrong standard of proof; (5) this was not a case where the facts were equivocal, nor one where the conviction depended largely on inferences which have to be drawn from the circumstances. The appellant had no business to do the acts which he was found to have done. The totality of the evidence pointed only to the conclusion that the appellant had committed the offence as charged; (6) the offence was a serious one, having been committed in the course of the appellant's employment as a radiographer. Nevertheless, there were varying degrees of gross indecency and it was difficult to say that the present act was one which was so gravely repugnant as to warrant a very lengthy custodial term. In the particular circumstances of this case, and hav-ing regard to the nature of the offence, ten months' imprisonment was excessive and unjustifiably harsh. A sentence of three months' imprisonment was substituted; (7) (per curiam) it was true that perfectly respectable gentlemen who may well be innocent 'victims' of a grossly indecent act could find themselves named within a charge under s 377A as persons 'with' whom the offence of gross indecency had been committed. Nevertheless, there was no real cause for concern. If they did have any homosexual ten-dencies, they would almost invariably have been charged with the offence as well. The very fact that they were not similarly charged could only attest to their innocence of the act. No aspersions were being cast on their sexual proclivities. Technically, as consent was not an element of the s 377A offence, they could also be charged with the offence, but the judicious exercise of prosecutorial discretion should prevail to ensure that such travesties of justice did not occur.

Ng Huat v Public Prosecutor [1995] 2 SLR 783 High Court, Singapore (Yong Pung How CJ).

Chew Cheng Lye v R [1956] MLJ 240 High Court, Singapore (Whitton J).

See CRIMINAL LAW, Vol 4, para 1392.

The appellant was convicted of stealing a motor car with one other accused person. The evidence showed that the two men were found in possession of a motor car which had been stolen a few hours before. The appellant in his defence said that as he was driving his taxi, his co-accused, whom he knew by sight and who was a paid driver who drove many types of car, stopped him and said that his car had run out of petrol and asked him to tow it. The learned trial judge, in the course of his summing up, said the accused 'have to give a reasonable explanation. They do not have to prove it with the same strictness, but it is for them to give a reasonable explanation'.

Held: (1) the direction was inadequate as it failed to explain to the jury that if they thought that the appellant had given an explanation which might reasonably be true, even though they were not convinced of its truth, that would mean that the prosecution had, upon the whole of the case, left them in a state of doubt and so had failed to discharge their burden of proving the accused's guilt; (2) the direction was incorrect as it implied that the burden of proof could, to some extent, be shifted to the accused, the correct principle being that from the beginning of the case until the end, the burden remains upon the prosecution to prove the guilt of the accused; (3) therefore, the conviction in this case must be quashed; (4) (semble) The direction suggested as a proper direction to the jury by the Court of Criminal Appeal in England in R v Garth [1949] 1 All ER 774 'If the prisoner's account raises a doubt in your minds, then, of course, you ought not to say that the case has been proved to your satisfaction' is recommended as it is likely to be more easily understood by the jury.

Rajoo v R [1949] MLJ 250 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ, Evans and Brown JJ).

The accused had been convicted of three offences of theft of plants belonging to the Public Works Department and were fined S$50 on each charge. The value of the plants on the first charge was S$10, on the second charge, S$6 and on the third charge, S$50. The Public Prosecutor appealed alleging that the sentences were inadequate.

Held: the learned magistrate, in deciding to be lenient to the respondents, had failed to consider the public interest, which should be the first and foremost consideration. The sentences in this case were manifestly inadequate and must be increased to S$100 on the first charge, S$100 on the second charge and S$200 on the third charge.

Public Prosecutor v Gursevar Singh [1971] 1 MLJ 16 High Court, Singapore (Chua J).

The appellant was charged with abetting theft by a servant, Ahmad, of 168 tonnes of plastic resin in the possession of the servant's employer, Chang Fong. Ahmad, who had been convicted of the theft on a guilty plea, was Chang Fong's storekeeper. He gave evidence that the appellant telephoned him and that they had agreed to the theft of the plastic resin. On the first occasion, the appellant arranged for the lorry and the driver required to move the plastic resin. Ahmad said that he was paid S$3,200 that time. Subsequently, plastic resin was removed from Chang Fong's on regular intervals. Sometimes the appellant arranged for the lorries; at other times Ahmad did. Three lorry drivers, who were mere innocent agents, gave evidence that they were requested by the appellant to transport plastic resin from Ahmad's workplace. The drivers were paid S$100 or S$200 on each occasion. They also handed copies of the delivery orders to the appellant. One of them testified that his load was delivered to the appellant who unloaded the goods with a forklift. The appellant's defence was that he was asked by Ahmad whether he knew any rag and bones man who would purchase scrap and damaged materials. The appellant introduced him to one Mohd Sani. Thereafter, he had only arranged for the lorries because he was asked to by Ahmad. The appellant denied taking any part in the disposal of the plastic resin. Mohd Sani's statement P5, made to the police investigating officer, was admitted by the district judge under s 32(c) of the Evidence Act (Cap 97). It implicated the appellant. The appellant was convicted, and he appealed.

Held, dismissing the appeal: (1) there was no doubt that P5 was a statement made to a police officer in the course of a police investigation. Section 122(3) of the Criminal Procedure Code (Cap 68) made a specific exception only for evidence admissible under s 32(a) of the Evidence Act. The exception did not cover evidence admissible only under s 32(c). As no other exception was applicable, s 122(1) of the CPC applied and P5 should not have been admitted; (2) the admission of inadmissible evidence was an irregularity which could be cured if no miscarriage of justice had occurred. No miscarriage of justice would have occurred if the appellate court could be certain that the trial court would have come to the same conclusion if the wrongly admitted evidence had been excluded; (3) even excluding P5 and attaching much less weight to Ahmad's evidence, the evidence showed: (i) theft of 168 tonnes of plastic resin from the warehouse; (ii) an arrangement between Ahmad and the appellant to procure lorries and drivers to transport the plastic resin; (iii) the appellant requested the drivers to transport the plastic resin; (iv) the appellant paid the drivers S$100 or S$200 for each trip; (v) on at least one occasion, the plastic resin was delivered to the appellant who unloaded them himself and paid the driver. In the circumstances, even assuming that the investigation officer's investigations were incomplete and there were other possible members of the conspiracy, the appellant's defence could not be true. Ahmad's evidence remained amply corroborated by independent testimony and the court could safely say that the district judge would nevertheless have come to the same conclusion.

Abdul Rahim bin Ali v Public Prosecutor [1997] 2 SLR 249 High Court, Singapore (Yong Pung How CJ).

The respondents (Chua and Lim) were jointly charged under s 385 read with s 34 of the Penal Code (Cap 224) (the Code) with having attempted to extort S$3,000 from one Mdm Low Ah Yoke (Low). Chua was attached to the Police Coast Guard as a detective corporal and was vested with legal powers to arrest Low. Chua had been told by an informer that Low was running an illegal lottery as a 'Chap Ji Kee' collector. The prosecution case at the trial was that Chua and Lim had threatened to arrest Low for operating an illegal 'Chap Ji Kee' syndicate unless they were paid S$3,000. Chua had searched Low's handbag and had found slips of paper with 'Chap Ji Kee' writings, thus furnishing reasons to believe that she had committed a seizable offence under s 5(3) of the Betting Act (Cap 21). The district judge ruled that an offence of attempted extortion had not been established. In his opinion, Chua had merely threatened to exercise his legal powers of arrest. Consequently, there was no 'injury' or 'harm illegally caused' to Low, having regard to s 383 read with ss 44 and 43 of the Code. He amended the charge to one of attempted corruption (s 6(a) of the Prevention of Corruption Act (Cap 241)). Chua and Lim both pleaded guilty to the amended charge and were convicted and sentenced accordingly. In MA 322/94/03, Lim appealed against his conviction and sentence. Counsel contended that the conviction should be set aside as Lim was not aware of the facts constituting the amended charge and had misunderstood the nature and consequences of his plea of guilt. In MA 322/94/01-02, the prosecution appealed against the district judge's decision to amend the charges against Chua and Lim. The prosecution contended that there was attempted extortion; harm would been 'illegally caused' to Low if the threat of arrest had been carried out because Low did not accede to a demand for payment of money which was not due.

Held, dismissing all appeals: (1) Lim's plea of guilty had been properly accepted by the district judge. There was no indication at all that Lim had misunderstood the effect of his plea. He did not seek to qualify or retract it at any time, at least until his notice of appeal was filed. The appeal against conviction was entirely misconceived and completely devoid of merit; (2) the moral obliquity in this case was serious. Lim had actively assisted Chua in abusing his authority. In the circumstances, Lim's sentence of one year's imprisonment was not manifestly excessive; (3) there were two distinct limbs within s 383 of the Code, namely, (a) intentionally putting a person in fear of injury to himself or another and (b) thereby dishonestly inducing that person so put in fear to deliver to any person any property or valuable security; (4) in respect of the first limb of s 383, the relevant 'injury' in question would have been the threatened act of arrest by Chua. The threat of arrest by a police officer could not constitute an injury to the 'victim' owing to the fact that the 'victim' had brought it about himself. The threat is not illegal if the 'victim' himself had done an act which justified action being taken against him; (5) rather, he would have acted bona fide in the exercise of his legal powers. In other words, the arrest of Low would not have been illegal, in the sense of the term as defined in s 43. It follows that the threat of arrest was not a threat to cause harm illegally; (6) the circumstances had in fact disclosed grounds for Chua to exercise his legally-vested powers of arrest as a police officer. Had Chua gone on to arrest Low, as he should have done, he would not have done something which was either an offence or prohibited by law, or which furnished grounds for a civil action;nothing turned on the purpose of the threat, except in relation to the element of 'dishonesty' in the second limb of s 383. If Low had been arrested, the legality of the arrest could not be impugned by pointing to the fact that there were improper motives behind the arrest the fact that Low had brought the arrest upon herself did not change.

Public Prosecutor v Chua Boon Teck & Anor and another appeal [1995] 3 SLR 551 High Court, Singapore (Yong Pung How CJ).

The accused was charged with extortion under s 384 of the Penal Code. In the course of the hearing, a police officer gave evidence of statements made by a witness apparently to corroborate the evidence within the meaning of s 157 of the Evidence Ordinance (Cap 13). The learned district judge convicted the accused, who appealed against his conviction. In his grounds of judgment, the learned district judge said that by paying the money under threat, the complainant did not become an accomplice.

Held: (1) as the statements were made in the course of a police investigation, they were inadmissible because of s 124 of the Criminal Procedure Code (Cap 21) and therefore, they could not be used to corroborate the evidence of a witness under s 157 of the Evidence Ordinance; (2) a person who gives money to a policeman in order to cause him to fail in his duties is guilty of a criminal offence and this is so even if the first suggestion is from the policeman and therefore, the complainant in this case was an accomplice within the meaning of the Evidence Ordinance; (3) as the admission of the statement did not influence the learned district judge in coming to his decision and as there was ample corroboration of the evidence of the complainant in this case, the conviction must be upheld.

Wee Boo Soh v R [1947] MLJ 93 High Court, Singapore (Murray-Aynsley CJ).

The accused was an acting superintendent of police in the Federation of Malaya. It was alleged that while he was in Singapore, he demanded the sum of $50,000 from one Lee Seng Chwee with the implied threat that one Lee Seng Kee, who was alleged to have entered into Malaya illegally, would be arrested if the money was not paid. The learned district judge acquitted the accused although he found that the prosecution had proved its case on the facts, as he felt bound to hold that under the law, a threat to exercise a legal power of arrest did not constitute putting a person in fear of injury for the purposes of s 385 of the Penal Code. The Public Prosecutor appealed.

Held: the accused was not a person invested with any of the powers and duties of a police officer in Singapore and he had no legal powers to arrest any person in Singapore; and therefore, assuming that the correct principle to be that, so far as extortion under the Penal Code is concerned, the exercise of legal powers however done can never constitute 'injury' as defined in the Penal Code, the trial judge was wrong in holding that on the facts as found by him, he was bound to acquit the respondent at the close of the case for the prosecution.

Public Prosecutor v Johar [1965] 1 MLJ 139 High Court, Singapore (Wee Chong Jin CJ).

The essence of the offence of extortion as defined in s 386 of the Penal Code, is the putting of a person in fear of death or of grievous hurt being caused to him or to some other person. To sustain a conviction under this section, there must be evidence that the accused person made a threat to the complainant of death or of grievous hurt being caused to him or to any other person. In this case, it was held that the evidence on record did not support the charge of extortion. The sum of S$20,000 was paid by the deceased's father to the kidnappers not because he was put in fear of grievous hurt being caused to his son, but because he believed that his son would be released upon payment of the said sum. The inducement was the promised release of his son and not fear of the causing of grievous hurt. Therefore, the charge of extortion was groundless and the conviction of the three appellants on this charge must be quashed.

Lee Choh Pet & Ors v Public Prosecutor (No 2) [1972] 1 MLJ 187 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

The appellant was convicted by a majority verdict of the jury of robbery and abetment of rape. The case for the prosecution depended on the uncorroborated testimony of a girl of some 17 or 18 years of age, whom the judge considered to be of insufficient intelligence to be sworn or affirmed. On appeal, it was urged on behalf of the appellant that s 5(2) of the Oaths Ordinance (Cap 8, 1955 Ed) was not complied with in that the witness was not cautioned, in express terms, 'to speak the truth, the whole truth and nothing but the truth', in accordance with the requirements of the subsection; secondly, that by virtue of the provision of s 5 of the Criminal Procedure Code (Cap 132, 1955 Ed), the provisions of s 38(1) of the Children and Young Persons Act 1933 should be imposed into the law of Singapore and lastly, that the conviction on the uncorroborated evidence of a child should not be allowed to stand.

Held: (1) that however is merely an irregularity and is therefore a proper subject for the exercise of the discretion referred to in the proviso to s 6(1) of the Court of Criminal Appeal Ordinance (Cap 129, 1955 Ed); (2) s 5 of the Criminal Procedure Code is limited to matters of criminal procedure and therefore cannot fairly be held to extend to matters of evidence. The law applicable to Singapore on the question of corroboration of the unsworn evidence of a child is the same in this respect as that applicable to India and is correctly stated in the Privy Council case of Mohamed Sugal Esa Mamasan Rer Alalah v The King [1946] AC 57 at p 62; (3) the caution laid down in s 5(2) of the Oaths Ordinance was not given in the form prescribed by the section;in the light of the special factors in this case, it is eminently a case in which any jury should hesitate long before relying upon the entirely uncorroborated evidence of an unintelligent girl. The evidence in this case was by no means strong and was such that it required the very closest examination before acceptance. In this light, it was unfortunate that the learned trial judge qualified, or put a gloss upon, his very necessary warning that in practice, corroboration in such a case is always looked for. It should be accepted now in criminal courts that the rule of prudence is one of such practical good sense that it should only be departed from in the most exceptional case and it can certainly not be said that this case is such a case. While no doubt the jury took an adverse view of the appellant and by their verdict expressed their satisfaction of his guilt, it is considered that this is a case, for reasons already given, where it is unsafe to allow the conviction to stand.

Ng Kwee Piow v R [1960] MLJ 278 Court of Criminal Appeal, Singapore (Rose CJ, Tan Ah Tah and Chua JJ).

[Annotation: Whether it is permissible upon a charge of murder to convict of robbery, see Hashim v Public Prosecutor [1956] MLJ 233.]

Public Prosecutor v Victor Rajoo [1995] 3 SLR 417 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and LP Thean JA).

See CRIMINAL PROCEDURE, Vol 4, para 1625.

Goh Lian Hock & Anor v R [1963] MLJ 251 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 1652.

The respondent was jointly tried in the High Court with three other accused persons on a charge for murder committed in the course of gang robbery under s 396 of the Penal Code (Cap 224). The case against all four accused at the trial was based primarily on statements made to the police by the respondent's co-accused (the first, second and fourth accused). At the close of the prosecution case, the trial judge held that the prosecution had failed to make out a case against the respondent because the statements adduced from the respondent's co-accused did not positively identify the respondent as one of the perpetrators of the offence charged. The judge held further that there was no other evidence in the case which sufficiently incriminated the respondent in respect of the charge against him. Accordingly, he discharged and acquitted the respondent without calling on his defence. On appeal, the prosecution argued that the statements made by the respondent's co-accused in fact identified the respondent as an accomplice, and that, in addition to the statements, there existed other evidence showing the respondent's involvement in the offence charged.

Held, allowing the appeal: (1) the cautioned statements of the second and fourth accused identified the respondent as an accomplice in the offence charged; (2) in addition to the statements, there existed other evidence led by the prosecution which showed the respondent's involvement; (3) accuracy is not a relevant factor in a trial court's consideration of the evidence at the close of the prosecution case; (4) the respondent himself had also been identified by the fourth accused from photographs shown to the latter by the police. The investigating officer's failure to describe or produce in court the photographs in question was a factor which affected only the accuracy of the identification evidence;a case had been made out by the prosecution against the respondent which, if unrebutted, would warrant his conviction. The case against the respondent was to be remitted to the High Court for his defence to be called.

Public Prosecutor v Manit Wangjaisuk [1995] 1 SLR 326 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The three accused were jointly charged with committing gang robbery and murder in the commission of the gang robbery, an offence under s 396 of the Penal Code. After their arrests, the three accused made both written and oral statements and then challenged their admissibility in a voir dire, following which the statements were admitted into evidence. The first accused admitted in his cautioned statement under s 122(6) of the Criminal Procedure Code ('the CPC') that he and four other workers went to the site but claimed that he was very drunk, that he only acted as the lookout and took no part in the killing. He named one Manit as the one responsible for the killing. In the first accused's s 121 statement, he expanded on the details and maintained that he had not taken part in the killing. The third statement consisted of oral statements made during a site visit. The third accused made a s 122(6) cautioned statement in which he admitted being involved in the incident but claimed that he had been forced to do so by Manit who threatened him. No further details were given. In the third accused's lengthy s 121 statement, he admitted entering the work site and joined in attacking the caretaker with another person. He claimed Manit had told them to attack anyone who came to investigate the alarm. After the incident, Manit drove them away in a van that had been stolen. He stated he did not receive any money from the sale of the stolen goods. The third statement of the third accused consisted of oral statements made during a site visit. No statements of the second accused were tendered in evidence.

Held, convicting all three accused and im-posing the maximum penalty of death: (1) gang robbery is defined in s 391 of the Penal Code in such a way that every person present who commits, attempts to commit or aids in the robbery or attempted robbery, commits gang robbery. The essential element of the offence of gang robbery is that there must be five or more persons acting conjointly in the commission of the robbery. 'Conjointly' is defined in Ratanal & Dhirajlal on the Indian Penal Code as the united or concerted action of the persons participating in the transaction; (2) under s 396, it is not necessary that murder should have been in the contemplation of some or all of the offenders. It is not even necessary that they took part in the actual killing or were actually present or even that they knew that it had occurred (Punjab Singh v R AIR 1933 Lah 977); (3) it is not necessary for the prosecution to prove the existence of a common intention to commit the robbery as between the person charged and the person who caused the hurt (Ang Eng Beng v PP [1990] 3 MLJ 321); (4) the evidence against the first accused was mainly his own confession. His defence that he was drunk and had merely been taken there by the second accused was not accepted and on the facts alone, he had beyond any doubt taken part in the gang robbery; (5) the second accused sought to argue that there was insufficient evidence from the first and third accused's statements, which statements were subsequently retracted. The statements, considered in their totality, showed that the second accused had considerable involvement as the leader who drove them to the site, effected entry, destroyed the alarm and drove the van after the offence had been committed. The second accused's acknowledgment of his stealing the van and driving it with four others to the crime scene where he remained until the others returned is sufficient evidence to convict; (6) the evidence against the third accused was mainly his own admissions. His evidence was full of contradictions and not believed.

Public Prosecutor v Prasong Bunsom & Ors Criminal Case No 66 of 1994 High Court, Singapore (TS Sinnathuray J).

The four appellants were found guilty under s 396 of the Penal Code (Cap 224) of committing the murder of two persons in the course of gang robbery. The robbery occurred on 17 September 1993 at a construction site in Tampines. Two persons were murdered and a third person was attacked and injured. The four appellants were subsequently arrested. The only material evidence against them comprised the statements of the first, second and fourth appellants. The statements disclosed that the appellants with some others had gone to the construction site armed with various weapons. The door to the site office was forced open and four of them, including the first, third and fourth appellants, had gone in. Inside the office, the third appellant ordered the rest to attack two guards sleeping there. The others did as they were told, and the two guards were killed. While this was occurring, another guard was awakened. However, this guard was unable to escape for, according to the fourth appellant, his path was blocked by the second appellant. This guard was then attacked by, among others, the first appellant. The gang stole some surveying equipment and walkie-talkies, and escaped in a pick-up which had been stolen earlier. This pick-up was subsequently found but there was no direct evidence linking the appellants to it. The first, second and fourth appellants challenged the admissibility of the statements on the basis that they were involuntary because of assaults and threats made by police officers investigating the offence. The third appellant, who did not have any statements made by him adduced in evidence, argued that he had not been not sufficiently identified by the statements of the other appellants. The judge held after a voir dire that all the statements had been made voluntarily. On being called to give their defence, the first appellant chose to remain silent and called no witnesses. The second appellant's defence was that he had been asleep at the time of the commission of the offence. The third appellant initially claimed he could not remember where he had been at that time but subsequently testified that he had been in Malaysia. The fourth appellant's defence was that he could not remember where he was at the time of the robbery. On appeal, it was argued that the statements were inadmissible as being involuntary. It was also contended that the accused had a right to cross-examine the prosecution witnesses during the voir-dire of the co-accused. Further, the use of the confessions of each appellant against the co-appellants was challenged as the confessions had been retracted. The third appellant further argued that the claim that he could not remember where he was, which was not an alibi but merely a denial, ought to have been believed. He also claimed not to have been implicated by the statements of the other appellants. All the appellants argued that there were material inconsistencies in the statements, which rendered it unsafe to rely upon them. Finally, it was put forward that each of the appellants deserved to be awarded the lesser of the sentences prescribed by s 396, namely, life imprisonment with not less than 12 strokes of the cane, rather than death.

Held, dismissing the appeal: (1) the burden was on the prosecution to prove the voluntariness of statements beyond a reasonable doubt but it was not sufficient for the appellants to raise only the slightest doubt. The use of the word 'appears' in the proviso to s 122(5) CPC did not lead to the conclusion that the prosecution had any higher burden than the normal one in criminal trials; (2) it is unnecessary for the prosecution to remove every lurking shadow of their influence and the remnants of fear which each accused may have before recording his confession. All that was required was that the trial judge, in the voir dire, determine whether the evidence of inducements, threats, promises or assaults, taken together with the prosecution's evidence, had raised a reasonable doubt that the accused was influenced into making the statement. The judge did not err in rejecting the evidence of the first, second and fourth appellants that the statements were made involuntarily; (3) an accused in a joint trial had no right to cross-examine witnesses during the voir dire of a co-accused. The rationale of a voir dire was to allow the maker of the statement to challenge the admissibility of the statement sought to be used against him. No prejudice would be suffered by the accused as the statement of the co-accused would only be admitted if its voluntariness was proved beyond a reasonable doubt. The accused may then test the evidence, as he may other evidence, at the main trial. The evidence adduced during a voir dire could not, in any case, be used during the trial proper and the trial judge himself would have been trained to set his mind against inadmissible evidence; (4) the retraction of the confession of an accused which was sought to be used against a co-accused only affected its weight. In this case, the judge had exercised care in determining whether the confessions could be relied upon. He had indicated that he was aware of the danger of the accused lying and had examined the evidence carefully. The judge had thus not erred; (5) on the evidence, the third appellant was sufficiently identified by the second and fourth appellants; (6) the statements indicated clearly that an offence under s 396 of the Penal Code had been committed in that all were agreed that they had gone to the site to steal, that some of them had attacked three workers in all, and that they had actually taken items away from the site. The differences between the various statements were not sufficient to indicate that any of them ought not to be believed; (7) the third appellant's defence that he was not in Singapore at the time, and could not remember where he was, was evidence of denial only and not evidence in support of an alibi. But the judge was correct in regarding the passport as unreliable evidence in support of that denial; (8) s 396 stipulated alternative penalties, namely, life imprisonment with a minimum of 12 strokes of the cane, or death. The judge had a discretion as to which to impose. By analogy with s 3 of the Kidnapping Act, which also prescribed similar alternative sentences, the maximum penalty was appropriate where the manner, act or conduct was such as to outrage the community's feelings. The appellants had intended to cause grievous harm or death to those who stood in their way. Their acts were merciless and gravely abhorrent and sufficient to outrage the feelings of the community. No distinction could be made between the appellants as it could not be said which of them inflicted the fatal blows and which were passive. The judge had not erred in sentencing each of them to death; (9) common intention was not a requirement of s 396 of the Penal Code.

Panya Martmontree & Ors v Public Prosecutor [1995] 3 SLR 341 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellants were jointly tried in the High Court for gang robbery under s 396 of the Penal Code (Cap 224) and were convicted and sentenced to death. They appealed, raising the same issues before the Court of Appeal. The first appellant's defence was that although he had participated in the robbery, he was not present when the deceased was beaten and he was not aware that the deceased had been murdered. The second appellant admitted participating in the robbery by driving the getaway vehicle but denied entering the compound of the robbery site and taking part in the murder of the deceased. The third appellant's defence was simply that he had not been there that night. The appellants contended that the learned judge had erred in the interpretation and application of s 396 of the Penal Code and objected to the admissibility of the first and third appellants' statements on the basis that they had been involuntarily obtained through inducement, threat or promise. Counsel also objected to the use of the statements against the second appellant.

Held, dismissing the appeal: (1) the trial judge had conducted a voir dire and ruled that the statements were voluntarily made without any threat, inducement or promise and that the first and third appellants had lied. The court would be reluctant to disturb this finding as the trial judge had the opportunity of assessing the demeanour of the first and third appellants and there was nothing to indicate that he had made a wrong assessment on the evidence before him; (2) under s 396 of the Penal Code, so long as the appellants had gone to a place in furtherance of a plan to commit a robbery, and in the course of it a murder was committed, there was no need to prove that each and every one of them had the intention to bring about the result of death as well; (3) the natural interpretation of s 30 of the Evidence Act (Cap 97, 1990 Ed) allowed for the conviction of an accused to be sustained solely on the basis of the confession of a co-accused provided that the evidence emanating from the confession satisfied the court beyond reasonable doubt of the accused's guilt; (4) looking at the evidence as a whole, including the confessions which had been rightly admitted, the prosecution had proven the case against the appellants beyond reasonable doubt.

Prasong Bunsom & Ors v Public Prosecutor [1995] 3 SLR 433 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellants, who had been convicted of armed robbery, had been sentenced to whipping in addition to their sentences of imprisonment.

Held: (1) the sentence of whipping should be imposed only where there is evidence of a substantial degree of actual physical violence; (2) in the cases before the court, the degree of violence employed was not such as to justify a sentence of whipping.

Lim Thian Hen & Ors v R [1953] MLJ 213 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ, Brown and Buttrose JJ).

The 25 accused were arrested and charged with being members of an unlawful assembly, the common object of which was to commit the offence of gaming in a common gaming house, which was an offence punishable under s 7 of the Common Gaming Houses Act (Cap 49), and that they had thereby committed an offence punishable under s 143 of the Penal Code (Cap 224) read with s 40(3) of the Penal Code. The case was heard at the subordinate courts where the magistrate acquitted and discharged all 25 accused without calling for their defence, on the basis that he was bound by the decision of the majority of the Court of Appeal in PP v Fo Son Hing [1994] 2 SLR 561, which had held that the charge as framed did not disclose an offence under the Penal Code. The prosecution appealed to the High Court, where the appeal was dismissed by Rubin J who also held himself bound by Fo Son Hing. However, Rubin J allowed the prosecution to reserve for the decision of the Court of Appeal under s 60 of the Supreme Court of Judicature Act (Cap 322) four questions of law of public interest, even though two of the questions were a restatement of the questions referred to and determined by the Court of Appeal in Fo Son Hing. The questions were: first, whether the phrase 'is punishable under such law with imprisonment for a term of 6 months or upwards' in s 40(3) of the Penal Code applied to any offence punishable under such law where the maximum term of imprisonment that could be imposed was 6 months; secondly, if the answer to the first question was in the affirmative, whether the offence of gaming in a common gaming house under s 7 of the Common Gaming Houses Act (Cap 49) was an offence falling within s 40(3) of the Penal Code and therefore constituted a common object of an unlawful assembly within the meaning of s 141 of the Penal Code; thirdly, whether the words 'or other offence' in s 141(c) of the Penal Code, read with s 40 of the same Code, also referred to any offence punishable by the Penal Code; and finally, whether the words 'or other offence' in s 141(c) of the Penal Code referred only to an offence which by its nature inherently prejudiced or affected public tranquillity.

Held, answering the first three questions in the affirmative, the last question in the negative and remitting the case to the subordinate courts for accused's defence to be called: (1) the phrase 'is punishable under such law with imprisonment for a term of 6 months or upwards' in s 40(3) of the Penal Code not just to any offence which was punishable with a term of imprisonment of at least six months, but also applied to any offence where the maximum term of imprisonment that could be imposed was six months; (2) the offence of gaming in a common gaming house under s 7 of the Common Gaming Houses Act was an offence falling within s 40(3) of the Penal Code and therefore constituted a common object of an unlawful assembly within the meaning of s 141 of the Penal Code; (3) the words 'or other offence' in s 141(c) of the Penal Code read with s 40 of the same Code, also referred to any offence punishable by the Penal Code; (4) the words 'or other offence' in s 141(c) of the Penal Code did not refer to an offence which by its nature inherently prejudiced or affected public tranquillity; (5) with the overruling of Fo Son Hing, the basis for the accused's acquittal no longer existed. The case was therefore to be sent back to the subordinate courts and for the accused's defence be called; (6) (per curiam) the powers which the Court of Appeal could exercise in a criminal reference were the same powers which the High Court had for the disposal of the appeal from the subordinate court to the High Court. Such powers included the power to quash the conviction below; the power to make no orders pertaining to the acquittal or conviction of the accused at the court below; and the power to order a retrial by the court below or send the case back to the court below for the accused's defence to be called. The powers of the Court of Appeal in a criminal reference were wide-ranging and all-encompassing, and were not limited in any way by any statutory restrictions.

Public Prosecutor v Tan Meng Khin & Ors [1995] 2 SLR 505 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA, Goh Joon Seng and Chao Hick Tin JJ).

The main question in this appeal was whether the criminal breach of trust by a district court bailiff of S$1,838.25 was 'dishonest' within the meaning of s 405 of the Penal Code.

Held: the conviction and sentence must be set aside as there was a degree of doubt on the matter of intention to the benefit of which the appellant was entitled.

Tan Eng Lock v R [1961] 3 MC 294 High Court, Singapore (Rose CJ).

The appellant had a securities trading account with DBS Securities Pte Ltd, pursuant to which he issued a standing order authorising DBS Securities to debit directly from his DBS bank account moneys paid for the purchase of shares and to credit directly to the same account moneys accruing from the sale of shares. At the same time he also entered into a share-financing arrangement with a company known as Trans-Pacific Credit Pte Ltd ('TPC'), whereby he was granted credit facilities enabling him to buy and sell shares. Pursuant to this share-financing arrangement, he deposited a large quantity of stocks and shares with TPC; and whilst the exact status of the shares so deposited was disputed during the appellant's trial, it was not denied by the appellant himself that any withdrawal and sale of those shares was 'subjected to the approval of the Trans-Pacific Credit'. On 16 October 1989, the appellant sold through DBS Securities a number of stocks and shares deposited with TPC. He was allowed to collect the share scrip personally from TPC, for the purpose of delivery to DBS Securities. Cover notes were apparently prepared by TPC for delivery in conjunction with the share scrip, which cover notes directed DBS Securities to credit TPC directly with the sale proceeds from the shares. The appellant admitted reading the cover notes. However, it appeared that these cover notes were not handed over to DBS Securities; nor did the appellant inform DBS Securities of TPC's directions. DBS Securities failed, therefore, to credit TPC with the sale proceeds and instead paid the total amount of S$258,254 into the appellant's DBS bank account. Although the appellant later withdrew a sum of S$20,000 for payment into his TPC account, the bulk of the sale proceeds credited into his DBS bank account was used by him to pay off sums owing to other financial institutions. The appellant was tried in the district court on five charges of criminal breach of trust. Each charge alleged that he had been entrusted with certain shares and that he had dishonestly misappropriated the sale proceeds of these shares. The appellant was convicted of all five charges and sentenced to a total of 34 months' imprisonment. On appeal it was argued by his counsel (inter alia) that all five charges were fatally flawed in alleging entrustment of one sort of property but misappropriation of another sort of property.

Held, allowing the appeal: (1) the five charges of criminal breach of trust brought against the appellant were fatally flawed in simultaneously alleging that the appellant had been entrusted with shares but that he had misappropriated the sale proceeds of the shares. The wording of s 405 of the Penal Code clearly indicated that for an offence of criminal breach of trust to be established, the property misappropriated must be the same property entrusted to the appellant. The Indian cases cited by the prosecution stated only that the word 'property' in s 405 should not be confined to physical goods but should extend to the non-physical cash value of such goods. In none of these cases was it suggested that a charge of criminal breach of trust could allege that an accused had been entrusted with one sort of property (shares) but that he had dishonestly misappropriated another sort of property (sale proceeds from the shares); (2) it was doubtful whether the appellant could be said to have been 'entrusted' with the sale proceeds he allegedly misappropriated. As far as DBS Securities were concerned, there was no question on their part of 'entrusting' the sale proceeds to the appellant, since he was, by virtue of his standing order, entitled to be credited with these moneys. As far as TPC was concerned, the intention was that the appellant should never receive the sale proceeds, which were to have been paid directly to TPC. Again, it was difficult to see how TPC could be said to have 'entrusted' the sale proceeds to the appellant. Whilst it might conceivably have been argued that a constructive trust was created over the sale proceeds when the appellant failed to have them credited to TPC, this was never the prosecution's case, either in the district court or on appeal; (3) whilst the appellant's conduct throughout the entire affair had been far from meritorious, the charges against him were of a fairly serious nature and it was the prosecution's burden to prove these charges. On appeal the charges had been shown to be defective and the prosecution had failed to submit on how, if at all, these defects might be rectified. In the circumstances, the High Court was not minded to amend the charges of its own accord; (4) having found in the appellant's favour on this issue, the court was not inclined to pronounce on the other issues raised during the appeal. Accordingly, the appeal was allowed and the appellant's conviction and sentence set aside. In addition, the sum which the appellant had paid for the prosecution's costs below was ordered to be refunded to him; (5) the validity of the charges touched on the very basis of the prosecution's case;(per curiam) although s 256 of the Criminal Procedure Code (Cap 68) contained no express provision allowing the High Court to amend the charge against an accused in an appeal against conviction by the subordinate courts, it should be noted that s 256(b)(i) empowered the High Court to deal with such an appeal by ordering the accused to be 'committed for trial'. This must, in most cases, refer to committal for trial on an amended charge: in other words, the High Court's power to amend a charge on appeal must at the very least be implicit in s 256(b)(i). Otherwise, the scope of the provision would be so limited as to be practically useless. Moreover, although the High Court in Wee Toon Boon v PP [1976] 2 MLJ had stated that s 256 gave 'no power on appeal to alter or amend a charge', no reasons had been given by the court for this view.

Carl Elias Moses v Public Prosecutor [1995] 3 SLR 748 High Court, Singapore (Yong Pung How CJ).

The appellant appealed against his conviction for criminal breach of trust as a servant. The evidence showed that the appellant, as sales representative of a motor company, utilized his position and authority therein to divert goods to the value of S$18,000 belonging to the firm to recipients falling outside the scope of his authority with considerable cunning and resourcefulness. The appellant had been sentenced to six months' imprisonment and the Public Prosecutor cross-appealed against sentence.

Held: on the facts, the appellant was rightly convicted, but as the sentence was manifestly inadequate having regard to the degree of cool and calculated resolution revealed in the perpetration of the frauds, the sentence should be increased to one year's imprisonment.

Koh Seng Wah v Public Prosecutor [1966] 1 MLJ 12 High Court, Singapore (Winslow J).

Yeow Fook Yuen & Anor v R [1965] 2 MLJ 80 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 1664.

This was an appeal against convictions on three charges of criminal breach of trust. The appellant was employed by the Singapore Traction Co Ltd as a conductor on an omnibus. It was proved that he issued a used ticket to a passenger who happened to be a detective. At the trial, the deputy accountant of the Singapore Traction Company produced certain records in an attempt to show that the money received had not been paid to the company. The records were not compiled by the witness and he had no personal knowledge of the facts recorded.

Held: (1) as the records were not compiled by the witness and as he had no personal knowledge of the recorded facts, they should not have been admitted in evidence; (2) apart from the records, there was no evidence of the failure to pay over the money, and the charges were therefore not proved.

Tan Siak Heng v R [1950] MLJ 214 High Court, Singapore (Murray-Aynsley CJ).

The appellant was the former manager of South British Insurance Co Ltd. He was convicted by the first district judge on each of four charges of corruption under s 6(1)(c) of the Prevention of Corruption Act (Cap 104, 1970 Ed) and a charge of criminal breach of trust in respect of some S$102,000 under s 408 of the Penal Code and sentenced to two years' imprisonment on each of the five charges. All the charges related to one transaction, namely, that the accused had made a profit of some S$102,000 as a result of knowingly practising a deception on his principal company at their office at Auckland. The allegation was that he deceived the company into the belief that he had sold some 201,250 rights (which the company had been entitled to) to one Choudhury in March 1969 at 25 cents per right when in fact they were sold to others at a profit. On appeal, the main question for determination was whether Choudhury was an absolutely truthful witness when he denied in evidence that he had never been approached to buy these rights in March 1969. It was contended on behalf of the appellant that the district judge: (a) did not consider the confession made by Choudhury on 31 May 1971 after lunch at the Tanglin Club with the appellant's version of what had happened at the meeting; (b) did not consider the fact that Choudhury had told a lie as to his reason for not going to his usual stockbrokers, Fraser & Co, for the sale of his own shares; and (c) misdirected himself when he found that on 5 March 1969, far from Choudhury owing money to Robert Wee, it was Robert Wee who was owing money to him.

Held: (1) the appellant's version of the meeting at Tanglin Club was not considered at the end of the whole case by the district judge, who had accepted the evidence of Choudhury on the point at the conclusion of the case for the prosecution. The district judge did not also examine the evidence relating to the alleged confession by Choudhury in any detail and he misdirected himself on the point; (2) the learned district judge had failed to consider item (b) and had misdirected himself regarding item (c) above. In view of this, the appellate court could not be sure that if the district judge had considered and adopted the right approach to these matters, he would nevertheless have found the charges proved beyond reasonable doubt at the end of the case as a whole. The convictions on the four charges must therefore be quashed; (3) with or without Choudhury's connivance and/or complicity in the scheme to make a profit, the charge of criminal breach of trust was proved beyond reasonable doubt. The conviction on this charge by the district judge was well founded notwithstanding the criticisms relating to the evidence of Choudhury.

PG Ralph v Public Prosecutor [1973] 1 MLJ 81 High Court, Singapore (Winslow J).

A was initially investigated by the CPIB on suspicion of corruption. He was eventually charged with criminal breach of trust. He was tried and convicted in the district court and appealed against his conviction. Among his grounds, A stressed that the statement recorded by the CPIB investigator should not have been admitted in evidence at trial.

Held, dismissing the appeal: (1) the investigative powers of CPIB officers were not restricted to the investigation of corruption offences. They could investigate any seizable offence under any written law which came to light in the course of their investigations under the Prevention of Corruption Act (Cap 68) ('the PCA'). In so far as offences under the Penal Code (Cap 224) were concerned, their investigations were deemed to be police investigations and s 122 of the Criminal Procedure Code (Cap 68) ('the CPC') applied in the same manner and to the same extent as if CPIB officers are police officers. It followed, therefore, that the test to be applied in determining the admissibility or otherwise of a statement given under s 26 of the PCA was the test of voluntariness in that the making of the statement was not caused by any inducement, threat or promise; (2) the mere fact that s 26 of the PCA was brought to the attention of A by showing it to him could not import a threat or inducement rendering A's statement inadmissible. If a person is legally bound to give information, it meant that there was an obligation under law to tell the truth and the performance of that obligation alone could not be equated to a threat; (3) the mere fact that the proviso to s 16 of the PCA did not specify a police rank for a CPIB officer did not make a statement recorded by a CPIB officer inadmissible under s 122(5) of the CPC; (4) A's statement which he voluntarily gave incriminated him. Although the statement contained exculpatory matters, it should be borne in mind that the incriminating parts were likely to be true whereas the excuses need not carry the same weight.

Tang Tuck Wah v Public Prosecutor [1991] 2 MLJ 404 High Court, Singapore (TS Sinnathuray J).

A1 was the chief officer of the vessel 'Mungia' which took on fuel oil from a barge on which DT was the bunkering clerk. A2 was the bunkering clerk of the lighter 'Good Services' which also took on fuel oil from DT's barge. It was later discovered that 157 metric tonnes of fuel meant for the 'Mungia' had been transferred to the 'Good Services' and then sold to S. DT was charged with criminal breach of trust of the fuel oil and A1 with abetting him. A2 was charged with dishonestly receiving stolen property. DT pleaded guilty and gave evidence against A1 and A2. Both A1 and A2 were convicted. They appealed. A1 claimed that he did not know that the transfer of the oil was illegal. A2 claimed that he did not know or had any reason to believe that the oil was stolen.

Held, dismissing the appeals: (1) DT having pleaded guilty to and having been sentenced to five months' imprisonment had nothing to gain by falsely implicating A1 or A2; (2) just because there were discrepancies in DT's evidence did not mean that his evidence must be rejected in toto; (3) A1 was aware that 157 metric tonnes of fuel oil meant for the 'Mungia' were being retained for transfer to another source; (4) there were inconsistencies between A1's evidence and his instructions to counsel on the very important issue of the transfer of the oil; (5) the essence of the offence of receiving stolen property consisted of the receipt or retention with full knowledge at the time of receipt or retention that the property was obtained in one of the ways specified in s 410 of the Penal Code (Cap 224). It was immaterial whether the receiver knew or not who stole it; (6) the issue whether A2 had reason to believe that the oil was stolen was one of inference from all the circumstances; (7) the oil was sold at a very cheap price, less than half the market price, and A2 was aware of this; (8) A2 knew that DT was only a bunkering clerk and must have realized that DT could not have come by such a large quantity of oil by honest means; (9) in the circumstances, A2 clearly had reason to believe that the oil was stolen.

Samad bin Kamis & Anor v Public Prosecutor [1992] 1 SLR 340 High Court, Singapore (Chua J).

The first appellant, Loh Shak Mow, met one Lee Kwong Fai of Broadview Finance Pte Ltd of Hong Kong ('BVF'). Lee Kwong Fai was the chairman of BVF. BVF was a registered member of the Hong Kong Commodities Exchange Ltd. In Hong Kong, both Lee and Loh discussed setting up a company in Singapore to trade in spot gold and gold futures. In April 1981, Loh and Lee incorporated a commodities firm in Singapore called Broadview Commodities Pte Ltd ('BVC'), in order to trade in spot gold, gold and gold futures and other commodities. The second appellant, Alan Wong Hoi Ping, was then practising as an advocate and solicitor in the firm of Lee & Lee. He was engaged in March 1981 to incorporate BVC. BVC was incorporated on 20 April 1981. Thereafter, the second appellant became the chairman and director of BVC. Two weeks after its operations had started, both Lee and Loh became aware that BVC was getting low profits. Therefore, sometime in June 1981, Loh and Lee decided to 'bucket' clients' orders, which meant that BVC was to retain the margin deposits paid by these clients without placing their orders on the market at the various international exchanges and was to meet the clients' orders itself. It kept the commissions paid to BVC on each lot of orders and also absorbed all its clients' losses in gold trading as its own profits. They succeeded in doing this without being discovered by their clients and brokers by adopting various measures. The secret profits derived from the bucketing operations of BVC were shared amongst the directors. To avoid detection of these drawings, documents were manufactured and accounting books adjusted to give the impression that the moneys were remitted to BVF in Hong Kong as payment of margin deposits or that they were returns of loans made by the directors of BVC. The first appellant was charged with and convicted on six charges of abetment of cheating under s 420 read with s 109 of the Penal Code, and 14 charges of criminal breach of trust as an agent under s 409 of the Penal Code. The second appellant was charged with and convicted on three charges of criminal breach of trust as an agent and one charge of dishonestly retaining stolen property. Both appellants appealed against their convictions and sentences.

Held: (1) having regard to the evidence, the trial judge was entitled to find that the first appellant and Lee Kwong Fai were in fact engaged in a conspiracy to cheat, and that subsequently they secreted the proceeds of the cheating by disguising them as margin payments to BVF and then obtaining the money unlawfully through all these means and putting them into their respective bank accounts, as evidenced by the bank documents; (2) on the evidence adduced, distinct offences of abetment of cheating and criminal breach of trust were committed by the first appellant. The acts alleged constituted offences falling within two separate definitions of law by which offences are defined or punished. The provisions of the Criminal Procedure Code (Cap 113, 1970 Ed) permit the first appellant to be charged and tried at one trial for each of those offences; (3) having regard to the first appellant, the sentences imposed were manifestly excessive in the circumstances. The sentences should be set aside and substituted with a sentence of two years' imprisonment on each charge, the sentences on the first two charges to run consecutively and the sentences on the other charges to run concurrently, making a total of four years' imprisonment.

Loh Shak Mow v Public Prosecutor; Wong Hoi Ping, Alan v Public Prosecutor [1987] 1 MLJ 362 High Court, Singapore (Chua J).

In this case, the appellant appealed against his conviction and sentence on a charge under s 409 of the Penal Code. It was alleged that the appellant, being entrusted in his capacity as director of a company with 3,000 shares held by that company in another company, had dishonestly disposed of those shares. The appellant had sold the shares at par to Dr Goh Kim Hua, a nephew of the appellant, and Dr Goh's wife and mother.

Held: (1) in this case, there was ample evidence to show that the appellant was entrusted with the shares in the way of his business as an agent. The appellant was at all material times a director and an agent of the company and he had received the shares and had arranged for their disposal in his capacity as agent; (2) on the evidence in this case, the learned district judge was right in coming to the decision that the appellant had dishonestly disposed of the shares; (3) the sentence in this case was not manifestly excessive.

Tay Choo Wah v Public Prosecutor [1976] 2 MLJ 95 High Court, Singapore (Chua J).

The appellant in this case was a car dealer. He applied to Sim Lim Finance Ltd (SLF) to be the latter's agent in respect of motor hire purchase. His application was successful and on 26 December 1980, he signed a dealer's master recourse agreement ('the master agreement') with SLF. The transaction leading to the present charge involved the sale of a second-hand car by the appellant to one Seow. The purchase price of the car was S$12,800. Seow paid the appellant S$3,300. The balance S$9,500 was financed by SLF. In accordance with the master agreement, SLF purchased the car from the appellant and entered into a hire-purchase agreement with Seow. Under the hire-purchase agreement dated 23 October 1982, Seow was to repay the loan in 35 instalments of S$375 each on the 23rd of each month plus one final instalment of S$365. At the end of June 1984, Seow had paid 20 instalments and settled the outstanding balance amounting to S$5,444.80 on 3 July 1984. All instalments as well as the final payments were, as required by SLF in their Third Schedule Notice to Seow, paid to the appellant as SLF's dealer. The appellant failed to remit the 20th instalment of S$375 and the final payment of S$5,444.80 to SLF. Instead, the appellant used these two sums of money to pay his other expenses. SLF was not informed that Seow had fully settled his account. On 29 June 1984, the appellant applied to SLF for the release of the log book for the vehicle. The reason given was 'ROV vehicle inspection'. The log book was released to the appellant and SLF never got it back. On these facts, the appellant was charged with criminal breach of trust as an agent, an offence under s 409 of the Penal Code. The learned district judge rejected the appellant's defence and found that SLF lent the S$9,500 to Seow and not to the appellant. The learned district judge further found that the money paid by Seow under the hire-purchase agreement to the appellant had been received by the appellant on behalf of SLF and until the money was forwarded to SLF by the appellant, the appellant held it in trust for SLF. Thus, the district judge concluded, the appellant had no right to use the money for his own purpose. The appellant was convicted on the charge of criminal breach of trust as an agent and sentenced to six months' imprisonment. He appealed against both conviction and sentence.

Held, allowing the appeal: (1) the charge being under s 409, the prosecution would have to prove, firstly, that the appellant had committed breach of trust in that he had been entrusted with dominion over the property as charged, and that he had dishonestly misappropriated the money within the meaning of s 405, and, secondly, that dominion over the money had been entrusted to the appellant in his capacity as agent for SLF; (2) there was no loan from SLF to the appellant. The appellant was receiving the payments for and on behalf of SLF, holding such payments on trust for SLF until the due dates when the appellant had to remit the payments to SLF; (3) on the evidence on record, no finding could be made that the appellant had, beyond reasonable doubt, the necessary dishonest intention; (4) whilst the false reason used by the appellant in the application to SLF for the release of the log book may show an intention to conceal the payments made by Seow, the accounts maintained by the appellant on behalf of SLF pursuant to the master agreement indicated otherwise. In such circumstances, the appellant must be given the benefit of the doubt; (5) dishonesty not having been proved beyond a reasonable doubt, the conviction must be set aside and an acquittal be recorded instead.

Ang Teck Hwa v Public Prosecutor [1988] 1 MLJ 279 High Court, Singapore (Wee Chong Jin CJ).

Samad bin Kamis & Anor v Public Prosecutor [1992] 1 SLR 340 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1671.

One of the points raised on appeal was that the learned magistrate had not applied the presumption under s 115 of the Evidence Ordinance to the facts in evidence for the defence and that in effect, the burden of proving his innocence had been cast upon the appellant.

Held: the facts of the case were sufficient to raise a presumption under s 115 of the Evidence Ordinance (Cap 4) in favour of the appellant and as the learned magistrate had failed to deal with this aspect of the case the conviction must be quashed.

Goh Bok Hai v R [1948-49] MLJ Supp 72 High Court, Singapore (Gordon-Smith Ag CJ).

The district judge in convicting the accused imposed a fine in addition to a sentence of imprisonment.

Held: there was no reason for the imposition of the fine in addition to the sentence of imprisonment in this case and therefore, the fine must be deleted.

Abdul v R [1948-49] MLJ Supp 38 High Court, Singapore (Gordon-Smith Ag CJ).

The district judge in convicting the accused imposed a fine in addition to a sentence of imprisonment.

Held: there was no reason for the imposition of the fine in addition to the sentence of imprisonment in this case and therefore, the fine must be deleted.

Abdul bin Hassan & Anor v R [1949] MLJ 77 High Court, Singapore (Gordon-Smith Ag CJ).

N was found in possession of three lorries soon after they were stolen. He was charged with three counts of theft of motor vehicles. N's foreman gave evidence that in respect of two of the lorries, N had given him instructions to re-paint the lorries and change the chassis numbers. At the end of the prosecution case, the trial judge amended the charge to one of dishonestly retaining stolen property. N gave evidence that he had purchased two of the lorries in question and in respect of the third, he was buying it on hire-purchase but was unable to complete the last two payments. Consequently, the lorry was repossessed but later was found near his worksite by one of his employees. N was convicted. He appealed.

Held, allowing the appeal in respect of one charge and dismissing the rest: (1) N's wife had given evidence that in respect of one of the lorries, she had called the police and informed them that the lorry had been recovered by N; (2) the trial judge had not given due weight to this piece of evidence. The conviction on that charge was unsafe; (3) in respect of the other two charges, the owners of the respective lorries were able to positively identify their lorries from various identifying marks; (4) the trial judge had accepted the evidence of the foreman; (5) where property sufficiently identified to be property of one person is found to be in the possession of another without leave or licence or any legal permission of the owner, it is for the party in whose possession the property is found duly to account for its possession, and unless he can do so, a jury might fairly infer in such circumstances that it was with guilty knowledge that the accused took that which he knew to be not his own.

Neo Hong Huat v Public Prosecutor [1992] 1 SLR 312 High Court, Singapore (Rubin JC).

Loh Shak Mow v Public Prosecutor; Wong Hoi Ping, Alan v Public Prosecutor [1987] 1 MLJ 362 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1672.

Held: it is not the function of the Court of Criminal Appeal to examine in microscopic detail the summing up of a trial judge to see whether there has been any inaccuracy in summarizing all the evidence given at the trial. It was open to the jury in this case to find the second appellant guilty of the principal charge of house-breaking in order to commit the offence of theft or guilty of the alternative charge of dishonestly retaining stolen property and the jury have by their verdict found the second appellant guilty of the principal charge. It is not for the Court of Criminal Appeal to usurp the functions of the jury and to say that it would not have arrived at the same verdict as the jury on the evidence; (2) (per Wee Chong Jin J) 'We are of the opinion that the evidence that the second appellant arranged for the making of a copy of one of the two keys to the strongroom door, that the second appellant pointed to the police the green suitcase where part of the stolen jewellery was found, that the second appellant pointed to the police a bundle containing S$3,000 in notes of one dollar denomination each which had printed Bank of India slips, taken cumulatively, was sufficient evidence on which the jury could come to the conclusion that the S$2,000 in notes of ten dollar denomination each were part of the cash stolen from the Bank of India on 30 March 1957 and that the second appellant was in possession of these S$2,000 in notes. It follows therefore in our opinion that on the doctrine of recent possession, which principle is set out in the case of Seymour v R [1954] 1 WLR 678; [1954] 1 All ER 1006; 38 Cr App R 68, it was open to the jury to find the second appellant guilty of the principal charge of housebreaking in order to the committing of the offence of theft or guilty of the alternative charge of dishonestly retaining stolen property having reason to believe the same to be stolen property and the jury have by their verdict found the second appellant guilty of the principal charge.'

Syed & Ors v R [1958] MLJ 126 Court of Criminal Appeal, Singapore (Whyatt CJ, Chua and Wee Chong Jin JJ).

The three appellants were charged with disposing of stolen property, ie 338 taels of gold. The gold was stolen from a goldsmith's shop by robbers who had in all taken approximately S$450,000 of gold ornaments. One of the robbers, PW11, gave evidence at the trial. He testified that he had asked a friend, PW2, to find a buyer for the gold. PW2 approached the second appellant, who in turn secured the help of the third appellant, who had a licence to deal in gold. Contact with the third appellant was made through his brother the first appellant. All three appellants were informed that someone wanted to sell a large quantity of gold. The price for the gold was quoted at S$830 a tael. The market price for gold of the same purity was S$1,000 per tael. A meeting with an Indonesian buyer was arranged at the Apollo Hotel. PW11 produced a bag of gold ornaments which the buyer examined and weighed. The buyer and the first appellant then paid PW11 S$209,000 in cash. No documents changed hands or were displayed, inspected or signed. All three appellants were convicted as charged and sentenced to between six and ten months' imprisonment. They appealed.

Held, dismissing the appeals: (1) a person must be held to have 'reason to believe' property to be stolen, when circumstances are such that a reasonable man would be led by probable reasoning to the conclusion or inference that the property he was asked to deal with was stolen property although the circumstances may fall short of carrying absolute conviction to his mind on the point; (2) whether or not a person had 'reason to believe' certain property was stolen property for the purposes of ss 411 and 414 of the Penal Code (Cap 224) was a test to be applied by the court but from the perspective of the accused person. It must relate to the standards of belief of a reasonable man and not those of any particular accused person since the legislature could hardly have intended that ceteris paribus a conviction might depend on whether the accused reasons like a cretin or a genius. However, some elements of subjectivity must be involved because what might be apparent to a person with specialized knowledge of a certain field might not be apparent to a layman of even very high intelligence; (3) there was sufficient evidence to support the conviction of the accused persons. The price of the gold was well below the market rate. A large quantity of gold was sold in very suspicious circumstances. The payment of over S$200,000 was made in cash. No certificates or receipts were issued; no one was introduced by name when the transaction took place in the hotel room and none of their particulars were given.

Koh Hak Boon & Ors v Public Prosecutor [1993] 3 SLR 427 High Court, Singapore (Yong Pung How CJ).

A was charged with having cheated K Ltd into believing that an inspection certificate and delivery orders in respect of a shipment of plywood and timber were true and thereby induced K Ltd into discounting S$11,253,438.22 in bills of exchange. A was convicted and sentenced to five years' imprisonment. A appealed on the grounds that the trial judge failed to consider if K Ltd's representative was actually deceived.

Held, dismissing the appeal: (1) when property was delivered by a person who was cheated, there must always be a stage when the person made up his mind to give the property on accepting the false representations made to him; (2) K Ltd made up its mind after seeing the inspection certificate and the delivery orders, and it was then that the deception was practised; (3) a person charged with cheating was entitled to set up inconsistent and alternative pleas; (4) he may deny the allegations made against him by the prosecution, and give his own version and ask the court to accept it; (5) he may admit the facts alleged by the prosecution and may either tender his own explanation which if found to be reasonably true may be accepted by the court; (6) he may contend that on the facts alleged against him no criminal offence was disclosed; (7) he may also contend that he had not made any false representations or that the complainant did not rely upon or was not influenced or induced by his representations, or that the acts did not amount to cheating but a breach of contract.

Tan Yew Beng v Public Prosecutor [1992] 1 CLJ 751 High Court, Singapore (KS Rajah JC).

The appellant was convicted in a district court on one charge of attempted cheating and five charges of cheating, contrary to s 420 of the Penal Code (Cap 224). The offences were committed while she was employed as an accounts clerk with Prime Leasing Pte Ltd (PL). She was in charge of raising payment vouchers and preparing cheques. She also handled the standard cash float, from which payment for urgent commission claims was made to PL's sales staff. Every payment from the standard cash float had to be reimbursed by a corresponding `cash' cheque prepared by the appellant. Vincent Mah, PL's accounts supervisor, and the appellant were the only persons who had access to and control of the cash box containing the float fund of S$5,000. During office hours, the appellant had custody of the cash box. She was responsible for balancing the float fund before the cash box was kept in the safe after office hours. The six charges related to claims made from the standard cash float, corresponding to payment vouchers prepared by the appellant. According to the established claims procedure, as double claims had been submitted, there should have been excess money in the cash box. This was not the case. There was also evidence that the appellant had confessed in respect of three of the charges (DAC 9793, 9795 and 9797/96). In her defence, the appellant contended that she was simply preparing vouchers and cheques as the claims came to her. She sought to show that PL's haphazard documentation procedures invited abuse, and that double claims could have been submitted by the sales staff. The district judge held that the charges had been proved beyond reasonable doubt. He accepted the prosecution's explanation of how the documents showed that double claims had been made by the appellant. He also accepted the evidence that the appellant had confessed to the three charges. On appeal, the appellant contended that there was no evidence to show that she had misappropriated any funds. She repeated her stand that double claims could have been made by other persons. She also argued that her conviction in respect of DAC 9796/96 could not stand as the prosecution did not cross-examine her in respect of that charge.

Held, dismissing the appeal: (1) the absence of any excess money in the cash box virtually spoke for itself. The appellant would have borne ultimate responsibility for missing funds in the cash box, in that she had to account for the funds entrusted under her charge; (2) the state of the cash box was therefore a crucial consideration. Moreover, all the payment vouchers were prepared and filed by the appellant. She attempted to show that other sales personnel could have submitted double claims, either mistakenly or intentionally. However, as the district judge noted, she was not able to point to a single instance of such a mistaken claim; (3) even if there had been double claims by other sales staff, the cash box would have been augmented with excess payments since every payment made from the standard cash float had to be reimbursed. The fact that this was not the case strongly suggested that any allegations that other sales personnel could have double-claimed were, in all probability, spurious; (4) although the general proposition was that testimony not subjected to contradiction in cross-examination might have been treated as unchallenged and thus accepted by the opposing party, the court was still entitled to reject such testimony. A careful evaluation of the totality of the evidence still had to be undertaken to determine the cogency and weight of such testimony. In other words, it did not always have to follow that the whole of the appellant's testimony would have to be accepted by the court, nor that the conviction in respect of DAC 9796/96 would ineluctably be considered flawed; (5) the appellant's story in relation to DAC 9796/96 was obviously fanciful. It was wholly unsupported by the documentary evidence. As such, the prosecution's failure to cross-examine her, while undertaken at some peril to its own case, was not productive of any adverse consequence; (6) in all the circumstances, there was no reason to differ from the district judge's conclusion that all six charges had been proved beyond reasonable doubt; (7) (per curiam) if a defence witness's testimony stood in material contradiction to the prosecution's case, it would have been prudent for the prosecution to cross-examine that witness. More importantly, the rule in Browne v Dunn (1893) 6 R 67 might have been infringed if such a course was not adopted. As a matter of procedural fairness, the witness should have had the opportunity to explain the material contradictions

Liza bte Ismail v Public Prosecutor [1997] 2 SLR 454 High Court, Singapore (Yong Pung How CJ).

A was an advocate and solicitor. The prosecution's case was that A had prepared a false option over a house in conspiracy with W. The house belonged to J and was purportedly to be sold to L. L paid S$100,000 as a deposit. The sale proved abortive and L demanded her money back. She was repaid S$55,000 first and S$34,500 later. These facts formed the basis of a cheating charge under s 420 of the Penal Code (Cap 224). A was also charged with two counts of criminal breach of trust in respect of S$55,000 and S$4,200 paid out of the client's account of his firm. A's defence on the cheating charge and the first criminal breach of trust charge was that he had acted on the instructions of J who wanted to raise money for his business. L lent the money to J and an option was prepared as security. J borrowed money from a bank to redeem the mortgage on his house. Of this money, S$55,000 was paid to A who repaid it to L. A's defence on the second criminal breach of trust charge was that he had advanced several small loans to J. J had authorized him to deduct the amount from the bank loan.

Held, acquitting the accused: the court believed A rather than J and L, the principal prosecution witnesses. They were found not to be reliable witnesses. It was found that some of the documentary evidence was fabricated. A had raised reasonable doubts as to his guilt and was accordingly acquitted.

Public Prosecutor v Tham Kok Leong Thomas Magistrate's Appeal No 308 of 1988 District Court, Singapore (FG Remedios, District Judge).

For a conviction on a charge of cheating to be sustained in the case of the dishonour of a cash cheque tendered to the accused from a third party, the prosecution must show that from the circumstances of the case, it can be presumed that the accused was aware that the cheque would be dishonoured. In this case, the conviction should be sustained because such evidence was supplied by the third party (the drawer of the cheque) and the third party was not an accomplice because he had no knowledge of the transaction between the accused and the complainant. The dishonest inducement on the facts was the deceiving of the complainant into believing that the cheque in question would be honoured.

Lim Chin Huat v R [1963] MLJ 314 High Court, Singapore (Buttrose J).

See criminal procedure, x-ref 155.

A was a doctor. He was accused of cheating six patients of various sums of money by deceiving them into believing that they were suffering from serious diseases. By this means, he induced them to return repeatedly to him for treatment. He was convicted and sentenced to one year's imprisonment on the charges, two of the sentences to run consecutively. A appealed against conviction and sentence, on the ground, inter alia, that the charges were bad in that they overstated the amount allegedly obtained by cheating. The submission was that a certain amount of each fee charged was that a certain amount of each fee charged was legitimately owed to A for treatment given, and the failure to deduct the legitimate portion from the fees fraudulently obtained rendered the charges bad in law. A also submitted that the prosecution had not proven that the money had been given to him as a result of the deception, since the patients would have come back for treatment of their perceived ills anyway.

Held, dismissing the appeal: (1) as to A's submission that the charges were bad because they overstated the amount obtained fraudulently, neither the patient nor the prosecution would be able to specify what was the correct amount that was legitimately due to A unless A himself gave a detailed breakdown of the fee demanded. If A's submission was correct, a doctor who deceived patients as A did could not be charged with cheating since the prosecution could not prove what fees were legitimately obtained and what were obtained by reason of the deception. This could not be so; (2) in any case, the error relating to the sums involved was inconsequential. A knew full well the charges that he had to meet. He was not prejudiced by the prosecution's failure to specify the quantum of the illegitimately obtained fees; (3) as to the submission that A's misrepresentations must have induced the patients to pay fees to him, it was immaterial that the victims may also have had other reasons to return to A. It is not necessary that the misrepresentations of the accused be the sole cause of the loss. It is sufficient if the victim was partly and materially influenced by the false pretences of the accused; (4) the appeal against conviction was dismissed. As it had not been shown that the sentences were manifestly excessive, the appeal against sentence was also dismissed.

Chow Dih v Public Prosecutor [1990] 2 MLJ 197 High Court, Singapore (Chao Hick Tin JC).

The question raised in this appeal was whether a shipping guarantee is a 'valuable security' or is a document capable of being converted into a valuable security within the meaning of ss 30 and 420 of the Penal Code. Shipping guarantees are issued by banks in Singapore to enable consignees to obtain delivery of cargo from vessels arriving in Singapore without production of the relevant bill of lading. The appellant had been convicted under s 420 of the Penal Code in this case as the learned district judge found that he had obtained the shipping guarantees by cheating.

Held: (1) a shipping guarantee, at the time it is issued, does not create a legal right and consequently, is not a valuable security as defined in the Penal Code; (2) a shipping guarantee is not a document capable of being converted into a valuable security; (3) therefore, the charges brought against the appellant under s 420 of the Penal Code must fail.

Tan Wee Meng v R [1955] MLJ 239 High Court, Singapore (Whyatt CJ).

This was a reference to the High Court on a case stated under the provisions of s 317 of the Criminal Procedure Code (Cap 21). The accused was charged with the offence of cheating in respect of a pressure lamp valued at $40, punishable under s 420 of the Penal Code. The magistrate found the accused guilty. As the article involved was of small value and as the accused had no previous conviction, the magistrate discharged the accused on condition that he commit no offence for a period of 12 months under the provisions of s 8 of the Probation of Offenders Ordinance (No 27 of 1951). The matter was referred to the High Court as the magistrate was doubtful whether he had power to apply the Probation of Offenders Ordinance to cases where an accused person is found guilty under a section of the Penal Code like s 420, which appears to make the imposition of the penalty of imprisonment mandatory.

Held: the words 'fixed by law' mean a sentence which is fixed both in quantum and kind and therefore, in this case, the sentence under s 420 of the Penal Code was not fixed by law and the magistrate had discretion to act under the Probation of Offenders Ordinance.

R v Goh Boon Kwan [1955] MLJ 120 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: Section 317 of Criminal Procedure Code (Cap 21) was replaced by s 306 of the Criminal Procedure Code 1955. This new section was based on the provisions of the Summary Jurisdiction Act 1857 and the Administration of Justice (Miscellaneous Provisions) Act 1938, and provided not merely for the reservation by inferior courts of points of law, but also for cases to be stated for the consideration of the High Court on the application of the parties.]

The question for the determination of the Court of Criminal Appeal in this reference was: 'Whether or not a magistrate's court in Singapore has jurisdiction to try an offence under s 420 of the Penal Code without an authorization by the Public Prosecutor under s 11 of the Criminal Procedure Code (Cap 132, 1955 Ed) ('the Code') authorizing the magistrate's court to try such offence.' The material facts were: the accused was charged with and tried before the 4th magistrate's court for having committed an offence under s 420 of the Penal Code. The Public Prosecutor did not authorize the trial of the accused by a magistrate's court. At the conclusion of the trial, the accused was found guilty and convicted. He appealed to the High Court and at the hearing of the appeal, it was contended on his behalf that the magistrate had no jurisdiction to try him because there was no authorization by the Public Prosecutor in terms of s 11 of the Code authorizing the 4th magistrate's court to try the offence set out in the charge against him. Choor Singh J held that the trial was a nullity as the magistrate's court before which the accused was charged, tried and convicted did not have jurisdiction to hear the case.

Held: (1) prima facie where the 8th column of Schedule A to the Code shows that a particular offence is triable by a magistrate's court, the provisions of s 11 of the Code are inapplicable; (2) the question before the court must be answered in the affirmative.

Public Prosecutor v Kwan Richard [1970] 2 MLJ 286 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Winslow JJ).

These seven appeals were heard before the learned Chief Justice in the High Court. They arose out of a joint trial of five charges against Wong Hong Toy ('Wong') and JB Jeyaretnam, an advocate and solicitor ('Jeyaretnam'), respectively the Chairman and Secretary-General of the Workers' Party. In two of these five charges (DAC 4151/83 and DAC 4152/83), they were charged separately under s 199 read with s 193 of the Penal Code. In the other three charges (DAC 4153/83, DAC 4154/83, and DAC 4154A/83), they were charged jointly under s 421 and s 34. The five charges centred around three cheques for the respective sums of S$2,000, S$200 and S$400. In each of these cheques, the name of the Workers' Party as the payee was written by the person who issued it. All these cheques were delivered by the drawers to either Wong or Jeyaretnam. None of these cheques was paid into the account which the Workers' Party maintained with its bankers. The S$2,000 cheque was endorsed by Wong and Jeyaretnam in favour of and paid into the account of a third party. The S$200 cheque was endorsed by Jeyaretnam and the Treasurer of the Workers' Party and paid by Wong into his personal bank account. The S$400 cheque was not endorsed by the Workers' Party and was cashed by an unknown person. The fact of the receipt of the three cheques by the Workers' Party did not appear in any of the Workers' Party account books or in any statements of accounts prepared by its Treasurer for the period 1 January 1982 to 16 June 1982. Having failed in its defamation actions, the Workers' Party owed one Tay Boon Too taxed costs of S$17,101 as at 10 July 1975. It also owed the Attorney General taxed costs of S$15,189 as at July 1975. On execution by Tay Boon Too, the Workers' Party had S$18.47 in its bank account. Subsequently, the Official Receiver was on 11 June 1982 appointed receiver of the assets of the Workers' Party. Wong and Jeyaretnam made a joint declaration of accounts on 3 August 1982 before a Commissioner for Oaths in terms of the draft of the receiver. As a result, they were charged on the five charges.

Held, in respect of the s 421 Penal Code charges: (1) the defence that the property in the S$2,000 cheque never passed to the Workers' Party was rejected. The cheque was a gift from Dr Ivy Chew to the Workers' Party. In all the circumstances, the inference clearly arises that by their acts, Wong and Jeyaretnam intended to place the proceeds of the cheque, when cashed, out of the reach of creditors of the Workers' Party and in particular, Tay Boon Too, a judgment creditor, in circumstances which constitute an intent to defraud within the meaning of s 421; (2) at all material times, the S$200 cheque given by Ping was the property of the Workers' Party. The inference is irresistible that by their acts, Wong and Jeyaretnam intended to place the proceeds of the S$200 cheque out of the reach of the creditors of the Workers' Party and in particular, Tay Boon Too, in circumstances which constitute an intent to defraud within the meaning of s 421; (3) the S$400 cheque was a donation by Willie Lim to the Workers' Party. The arguments of Wong and Jeyaretnam were rejected. The trial judge was right in finding that Jeyaretnam was fully aware of what had taken place and that from the conduct of Wong and Jeyaretnam, when the cheque was retained by Wong and then handed to an unknown person to be encashed on 2 July 1982 instead of being handed over to the receiver, they were acting in concert; (4) the appeals against acquittals of Wong and Jeyaretnam on the s 421 Penal Code charges (DAC 4153/83 and DAC 4154A/83) were allowed; (5) the appeals of Wong and Jeyaretnam against their convictions on the charge numbered DAC 4154/83 were dismissed; (6) Wong and Jeyaretnam are found guilty on charges numbered DAC 4153/83 and DAC 4154A/83 and sentenced to a fine of S$1,000 each in respect of each charge, in default three weeks' imprisonment; (7) the appeal by the Public Prosecutor against the adequacy of the fines (S$1,000 each) imposed on Wong and Jeyaretnam was dismissed in respect of charge numbered DAC 4154/83.

Public Prosecutor v Wong Hong Toy & Anor [1986] 1 MLJ 133 High Court, Singapore (Wee Chong Jin CJ).

Jeyaretnam Joshua Benjamin v Law Society of Singapore [1988] 3 MLJ 425 Privy Council Appeal from Singapore (Lord Bridge, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle).

See CRIMINAL LAW, Vol 4, para 1697.

On 19 October 1987, the High Court of Singapore (consisting of a full bench of three judges presided over by the Chief Justice) ordered that the appellant be struck off the roll of advocates and solicitors. The ground on which the order was made was that the appellant had been convicted of criminal offences implying a defect of character making him unfit for his profession under s 80(2) of the Legal Profession Act (Cap 161, 1985 Ed). (See [1988] 1 MLJ 353.) The circumstances under which the convictions came about were as follows. The appellant was the secretary-general of the Workers' Party. The Workers' Party sued one Tay Boon Too ('Tay') for slander in respect of words spoken in the 1972 general election campaign. The action was dismissed with costs, which were not paid. On 19 January 1982, the appellant received a cheque for S$2,000 from a Dr Chew payable to the Worker's Party (the S$2,000) cheque. This cheque was endorsed by the appellant and Wong Hong Toy ('Wong'), the party chairman, in favour of a Madam Chiew to help meet her liability for the costs of an unsuccessful election petition brought against the appellant's opponent in 1980 general election. This was done with the concurrence of the donor, Dr Chew. On 23 January 1982, Tay's solicitor wrote demanding payment of the outstanding costs of the Workers' Party's unsuccessful slander action aginst him. On 3 February 1982, Tay applied for leave to execute for the unpaid costs. On 17 February 1982, the S$2,000 cheque was handed to Madam Chiew's solicitors. On 22 February 1982, Tay was granted leave to execute and the court made a garnishee order on the Workers' Party's bank account. There was only S$18.47 standing to that account. On 10 March 1982, the appellant and Wong received a cheque for S$200 (the 'S$200 cheque') from a Mr Ping. This cheque was made out to the Workers' Party. Mr Ping altered the cheque to a bearer cheque, and it was paid into Wong's personal account. Wong drew out S$200 and handed it to Madam Chiew's solicitors as a contribution towards her liability for costs on her unsuccessful election petition. On 22 May 1982, Tay applied to the court for the appointment of a receiver by way of equitable execution. On the same day, a Mr Lim made a donation of S$400 to the Workers' Party in the form of a crossed cheque (the 'S$400 cheque'). On 1 June 1982, the Official Receiver was appointed as receiver of the Workers' Party's asset. Some days later, Mr Lim was invited by Wong in the presence of the appellant to alter the S$400 cheque to a cash cheque. In the course of the receivership, the Official Receiver requested the appellant and Wong to make a statutory declaration to confirm the accounts. This was duly done. The accounts contained no entries referring to any of the three cheques. The declaration was not a valid statutory declaration as material words had been omitted. The declaration was, however, exhibited in an affidavit sworn by the Official Receiver. Arising out of the facts narrated, the appellant and Wong were charged with three counts under s 421 of the Penal Code (Cap 103, 1970 Ed) for dishonestly or fraudulently removing property of the Workers' Party intending to prevent the distribution of the same to the Party's creditors. They also faced one charge under s 199 of the Penal Code (Cap 103, 1970 Ed) for making a false declaration receivable in evidence. At the trial before Mr Michael Khoo, the senior district judge, the appellant and Wong were acquitted of the charges in relation to the S$2,000 and $200 cheques but convicted on the charge in relation to the S$400 cheque. They were also acquitted on the s 199 charge. On appeal to the High Court, the Chief Justice reversed the acquittals on the two s 421 charges and remitted the s 199 charge for a re-trial (see [1986] 1 MLJ 133). He declined to reserve a question of law for the decision of the Court of Criminal Appeal. The re-trial was heard by Mr Errol Foenander, the new senior district judge. The appellant and Wong were convicted. The appeal against his conviction was dismissed by the High Court (see [1988] 2 MLJ 553). Lai J, who heard the appeal, also declined to reserve a question of law for the decision of the Court of Criminal Appeal. As a result of the convictions, the Law Society began disciplinary proceedings against the appellant. The instant appeal to the Privy Council was consequent upon the decision of the full bench of the High Court to strike the appellant off the roll.

Held, allowing the appeal: (1) the Chief Justice should not have sat as a member of the full bench of the High Court which heard the show cause proceedings, since one of the primary submissions of the appellant was that the Chief Justice's own decision on the appeal from Judge Khoo and his refusal to reserve questions of law for the Court of Criminal Appeal were erroneous. Section 95(6) of the Legal Profession Act (Cap 161, 1985 Ed) is not mandatory but directory only; (2) although it is usually not open to the court hearing a show cause action against an advocate and solicitor to go behind a conviction in order to determine whether or not the conviction was proper, the circumstances in this case were exceptional enough to warrant examination of the grounds on which the convictions were attacked as being bad in law; (3) as the High Court had declined to reserve questions of law for decision by the Court of Criminal Appeal, the appellant had no opportunity to test any of the questions of law involved by appeal to the Court of Criminal Appeal. Their Lordships found it difficult to understand how any serious question of law arising in a criminal case on which a person's conviction might depend could be said not to be of public interest within the meaning of s 60(1) of the Supreme Court of Judicature Act (Cap 15, 1970 Ed). If it could be shown that there were questions of law of public interest which should have been reserved for decision by the Court of Criminal Appeal and that this would have led to the quashing of the convictions, the convictions should not be conclusive against the accused in the course of disciplinary proceedings. The instant appeal therefore turned on the question whether the convictions were vitiated by errors of law; (4) the declaration sworn by the appellant and Wong was not per se admissible as evidence of any fact so as to bring it within the scope of s 199 of the Penal Code (Cap 103, 1970 Ed). The s 199 charge was misconceived in law as held by Judge Khoo; (5) to prove the s 421 charges, it was necessary to show that the money became the property of the Workers' Party. It was found by Judge Khoo that the S$2,000 cheque and the S$200 cheque had been transferred with the concurrence of the donors. Similarly, the S$400 cheque had been disposed of with the consent of the donor before it was presented for payment by the Workers' Party. The Workers' Party never had more than a defeasible title to the proceeds of the cheques. Before the title was perfected, the cheque was in each case lawfully disposed of in accordance with the donor's instructions. Accordingly, the proceeds of the cheques never became the property of the Party and the appellant and Wong could not have been guilty of an offence under s 421 of the Penal Code; (6) the Chief Justice, as an appellate judge, was not entitled to substitute his own findings of fact for those of Judge Khoo on the question of the donors' consent to the disposal of the S$2,000 cheque and the S$200 cheque. The judgment of the Chief Justice had started from a false premise with respect to the trial's judge assessment of the evidence and had proceeded upon a clear misdirection with respect to the onus of proof. For these reasons, it could not be supported; (7) the convictions of the appellant were vitiated by errors of law. His appeal against being struck off the roll was accordingly allowed.

Jeyaretnam Joshua Benjamin v Law Society of Singapore [1988] 3 MLJ 425 Privy Council Appeal from Singapore (Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle).

[Annotation: Section 9 of the Legal Profession (Amendment) Act 1989 now makes it impossible for the court to go behind the conviction for a criminal offence.]

The appellant was a masseuse. On 10 October 1992, she was served a persona-non-grata notice by Westin Stamford Hotel in respect of her soliciting hotel guests as clients for her services. She was prosecuted for this activity on 12 October 1992 and fined S$500. On 23 October 1992, the appellant was detained at the premises of the hotel for soliciting clients. She was prosecuted again for criminal trespass and sentenced to two weeks' imprisonment. She appealed.

Held, dismissing the appeal and enhancing the sentence to four weeks' imprisonment: (1) the appellant's criminal record was not confined to criminal trespass. She had a previous conviction for deterring a public servant from his duty; (2) the appellant entered the premises of the hotel to conduct the very activities in respect of which the notice was served and which she had been prosecuted for already in the recent past. In the circumstances, the degree of severity beyond that adopted by the district court was condign.

Leong Shiaw Ling v Public Prosecutor [1993] 2 SLR 275 High Court, Singapore (Yong Pung How CJ).

Public Prosecutor v Johar [1965] 1 MLJ 139 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 1647.

The appellant, a volunteer special constable, was charged and convicted under s 384 of the Penal Code. It was alleged that the appellant had, to extract money, threatened various persons who were smoking chandu with arrest.

Held: a threat to exercise the legal powers of a person against another does not constitute putting that other person in fear of 'injury' within the meaning of s 44 of the Penal Code and therefore, the appellant should not have been convicted of extortion.

Lee Vincent v R [1949] MLJ 296 High Court, Singapore (Murray-Aynsley CJ).

The respondent was convicted and sentenced by the district court for offences under s 467 of the Penal Code. The Public Prosecutor (the appellant) appealed against the decision of the trial judge that his sentencing powers were governed by the law prior to the 1984 and 1986 amendments on sentencing made to the Criminal Procedure Code (Cap 113, 1970 Ed). The respondent contended, inter alia, that an enhancement of the sentencing powers of the district court is in effect a substantive change in the law, and any retrospective application of changes of the court's sentencing powers would infringe art 11(1) of the Constitution of the Republic of Singapore.

Held, allowing the appeal: (1) the punishment for the offences of which the respondent was convicted is prescribed in s 467 of the Penal Code. There has been no change in the punishment prescribed in s 467 by the amendments. The amending statutes have not increased the penalties for the offences of which the respondent was convicted, over and above those which were in existence at the time of the commission of the offences by the respondent. The only change has been to increase the sentencing powers of the district court. No new disabilities or obligations have been created by the amending statutes, they do not alter the character of the offence or take away any defence which was formerly open to the respondent. It is a mere matter of procedure and according to all the authorities, it is therefore retrospective; (2) the second limb of art 11(1) of the Singapore Constitution was not infringed. That article protects accused persons from greater punishment for an offence than that prescribed at the time of the commission of the offence.

Public Prosecutor v Tham Peter Wing Fai [1988] 2 MLJ 341 High Court, Singapore (Chua J).

The appellant pleaded guilty to 36 charges of forging documents which purported to be valuable securities, being offences punishable under s 467 of the Penal Code. He was sentenced to four years' imprisonment on each of the 36 charges, to run concurrently except sentences on two of the charges to be served consecutively. Effectively, the appellant has to serve a total of eight years' imprisonment. The appellant appealed against the decision of the trial judge in respect of these two rulings, ie that a share certificate is a valuable security and that s 71(1) of the Penal Code does not apply. The appellant contended that the offences were all part of a single transaction and were not distinct offences for the purposes of sentencing. The appellants also appealed against the sentences imposed.

Held, dismissing the appeal: (1) s 30 of the Penal Code defines 'valuable security' as any document by which a legal right is, inter alia, created, or whereby a person acknowledges that he lies under a legal liability. A share certificate is more than just evidence of title to shares. The purpose of share certificates is to give to the holders of shares additional facilities for dealing with and transferring their shares. The holder of a certificate has a right to register his interest. In order for a person to be registered as holder of shares, the production of a share certificate is necessary. The share certificate gives the holder or possessor of the certificate the right to demand to be registered as a shareholder. A share certificate is therefore a valuable security within the meaning of s 30 of the Penal Code; (2) it would depend upon the circumstances whether there was only one transaction and one offence committed. A series of offences of the same or a similar character could also be distinct, as could offences committed in the same transaction; (3) 'distinct' means not identical. Offences which were not inter-related would be distinct, but inter-related offences could also be distinct;s 71 of the Penal Code applies to 'composite offences', ie offences where the constituent acts are themselves offences. This section would have applied if the appellant had been additionally charged with forging the company seal and forging the director's signature. The forging of each share certificate and each transfer form stood separately by itself as a distinct offence. They were not parts of one offence. Each forgery was an offence in its own right. The senior district judge was therefore right in holding that there were 36 distinct offences.

Peter Tham Wing Fai v Public Prosecutor [1988] 2 MLJ 424 High Court, Singapore (Chua J).

Held: fraud involves deceit and also a course of action on the part of the person deceived by which he suffers detriment, but this detriment must be loss of money or other property. Where the object is to secure some advantage other than the covering up of past defalcations or the provision of an opportunity for further defalcations, it is not an attempt to defraud.

Loo Wee Wan v R [1955] MLJ 73 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ, Brown and Knight JJ).

Shum Wai Tong & Anor v Public Prosecutor [1972] 1 MLJ 196 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1397.

Held: in so far as arriving at a finding of fact as to whether a forged document, in this case a currency note, was or was not a good forgery, it was undesirable for the trial judge, without the benefit of any evidence at all on the question, to import his own view of the forgeries in question.

Melvani v Public Prosecutor [1971] 1 MLJ 137 High Court, Singapore (Wee Chong Jin CJ).

A was a Malaysian working in Singapore. He contracted a marriage with a woman in Malaysia at a time when his prior customary marriage, also entered into in Malaysia, was still subsisting. A was charged with bigamy. He pleaded guilty.

Held, quashing the conviction upon revision: (1) s 9 of the Criminal Procedure Code (Cap 68) gives to Singapore courts the jurisdiction to try acts that amount to offences under Singapore law; (2) however, s 494 of the Penal Code (Cap 224) (the section that creates the offence of bigamy) has no extra-territorial application. Therefore, a bigamous marriage taking place abroad is not an offence punishable under that section. Thus, A's conviction was wrong and accordingly was quashed.

Public Prosecutor v Pong Tek Yin [1990] 3 MLJ 219 High Court, Singapore (LP Thean J).

The accused was charged with bigamy. He married his first wife in 1937 at the Hokkien Association, Kuala Lumpur, by Chinese custom. The accused was, at the time of the Chinese marriage, a Christian.

Held: by virtue of s 3 of the Christian Marriage Ordinance (Cap 82), which provides that any marriage solemnized otherwise than in accordance with such section shall be void, the 1937 ceremony was not a valid marriage and that the accused could not therefore be charged under s 494 of the Penal Code.

R v Teo Kim Choon [1948] MLJ 145 High Court, Singapore (Brown J).

Held: no authority was cited to show that compliance by a party with an order of court to produce constituted publication which could form a basis for an action in tort or a basis for criminal action under s 499 of the Penal Code. On the contrary, it is settled law that statements contained in documents made in judicial proceedings are absolutely privileged. However, a party who obtains documents by process of court can only use them for the purposes of those proceedings and nothing else.

Coopers & Lybrand v Singapore Society of Accountants & Ors [1988] 3 MLJ 134 High Court, Singapore (Chao Hick Tin JC).

The respondents were charged as follows: 'You are charged that you (a) Straits Times Press (Malaya) Ltd being the publishers of a newspaper known as the Straits Times and (b) LC Hoffman being the editor-in-chief of the said newspaper did on 10 May 1959 publish in the said newspaper of and concerning David Saul Marshall some matter, to wit, ÒHe (Tun Lim) said it was Mr Marshall who suggested that the chairman should be Dr Chuang Chu Lin. 'His friends went to see Dr Chuang and now he said it was I who was trying to get Dr Chuang to join us. That is the height of dishonesty,' Tun Lim said.Ó knowing or having reason to believe that the same was defamatory and you thereby committed an offence punishable under s 500 of the Penal Code.' This was an appeal from the district judge who acquitted the respondents on the ground that they had established a case under exceptions 3 and 6 of s 499 of the Penal Code. The appellant contended that the district judge was premature in acquitting the accused and asked that the matter should be remitted for completion and determination according to law.

Held: (1) the dishonesty referred to was not financial but political. In the context of the newspaper report, the accusation of dishonesty meant no more than the height of disingenuousness; (2) nor is there anything in the circumstances of the matter to rebut the presumption of good faith; (3) there was no reason to believe and no ground for supposing that the newspaper report was inaccurate or compiled without due care and attention;in the event, there was therefore no injustice from the action of the learned district judge in acquitting the accused without calling upon their defence, as the prosecution case itself disclosed a situation from which it may reasonably be inferred that the relevant exceptions to s 499 of the Penal Code were applicable.

R v Straits Times Press (Malaya) Ltd & Anor [1960] MLJ 113 High Court, Singapore (Rose CJ).

This was an appeal against the conviction of the appellant for an offence of defamation under s 500 of the Penal Code. On appeal, it was contended, inter alia, that: (a) the learned trial judge had not directed his mind to the question of whether the words alleged to be defamatory were true; (b) the learned judge failed to direct his mind to the question of whether or not the impugned words were spoken in good faith; and (c) the learned trial judge had exercised his discretion wrongly and acted contrary to s 173(m) of the Criminal Procedure Code (Cap 113, 1970 Ed) in refusing the appellant's application to issue a subpoena to the Prime Minister of Singapore.

Held: (1) under s 105 of the Evidence Act, if an accused claims the benefit of exceptions, the burden of proving his plea that the case falls under any of the exceptions is on the accused. That burden is discharged if the accused person succeeds in proving a preponderence of probability. On the evidence on the plea of justification, the appellant fell far short of discharging the onus on him; (2) the finding of the learned trial judge that the impugned words were not spoken in good faith was amply supported by the evidence; (3) on the evidence, the application to subpoena the Prime Minister was vexatious and although the trial judge had not in his recorded reason for refusing the application complied with the exact terms of s 173(m) of the Criminal Procedure Code, that was no ground for vitiating the conviction as there had been no failure or miscarriage of justice.

Harbans Singh Sidhu v Public Prosecutor [1973] 1 MLJ 41 High Court, Singapore (Wee Chong Jin CJ).

The appellant was convicted of making statements with intent to incite, or which were likely to incite, any class or community of persons to commit any offence against any other class or community of persons under s 505(c) of the Penal Code. The appellant appealed against his conviction. One of the points raised by the appellant was that his guilt or innocence was a question of politics.

Held, dismissing the appeal: (1) in this case, the words relevant for the purposes of the charge, even in cold print, were words which indicated and were clearly likely to incite persons to violence and when in fact those words were uttered at a political rally during general elections, then there could be no doubt at all that they were likely to incite people to violence and not only against just one individual, the Prime Minister, but ministers, members of Parliament and community leaders who were mentioned specifically in his speech; (2) that this offence was committed at an election rally in times of election is far from being a mitigating factor. Having regard to the contents of the offending speech and the class of persons, to which it was directed, the sentence of one month's imprisonment and S$3,000 fine was manifestly inadequate and should be enhanced to four months' imprisonment and S$3,000 fine.

Leong Mun Kwai v Public Prosecutor [1973] 1 MLJ 227 High Court, Singapore (Wee Chong Jin CJ).

The respondent pleaded guilty to the charge that he, on 22 May 1973 at about 10.45am at Somapah Road, Singapore, committed criminal intimidation by using a chopper and a knife to threaten one Kehar Singh with injury to his person with intent to cause alarm to the said Kehar Singh, and had thereby committed an offence punishable under s 506 of the Penal Code. On conviction, he was fined S$200 in default one month's imprisonment. The complainant, Kehar Singh, was an overseer attached to the Ministry of Health. At the time in question, he and a party of officers from his ministry conducted a raid on unlicensed hawkers hawking at Upper Changi Road and Somapah Road, and when he saw the accused selling sugarcane water, the complainant and his colleagues approached the accused and identified himself. The accused asked in Malay what the complainant wanted. The complainant told the accused that he wanted to seize his goods, whereupon the respondent shouted in Malay 'Try kalau mahu angkat' which means 'Try if you want to get it'. As the complainant was about to seize the property, the accused took up a knife and pointed it at the complainant and said in Malay 'Mahu ankat'. The accused's friend caught hold of the accused and took away the knife from him. The complainant then moved forward to take possession of the accused's property. The accused once again took up another knife and pointed it at the complainant and defied him to take possession of the property. Again, the accused's friend intervened and took the knife from the accused's hand. At this juncture, the accused was arrested by a police officer who was attached to the same Ministry. The officer seized the two knives and other exhibits and brought the accused to the police station.

Held: in the circumstances of the case, a fine of S$200 was manifestly inadequate. The sentence should be enhanced by the imposition of a term of imprisonment for one week, besides the fine.

Public Prosecutor v Aziz bin Wee [1974] 2 MLJ 139 High Court, Singapore (Wee Chong Jin CJ).

The appellant pleaded guilty to 36 charges of forging documents which purported to be valuable securities, being offences punishable under s 467 of the Penal Code. He was sentenced to four years' imprisonment on each of the 36 charges, to run concurrently except sentences on two of the charges to be served consecutively. Effectively, the appellant has to serve a total of eight years' imprisonment. The appellant appealed against the decision of the trial judge in respect of these two rulings, ie that a share certificate is a valuable security and that s 71(1) of the Penal Code does not apply. The appellant contended that the offences were all part of a single transaction and were not distinct offences for the purposes of sentencing. The appellants also appealed against the sentences imposed.

Held, dismissing the appeal: (1) s 30 of the Penal Code defines 'valuable security' as any document by which a legal right is, inter alia, created, or whereby a person acknowledges that he lies under a legal liability. A share certificate is more than just evidence of title to shares. The purpose of share certificates is to give to the holders of shares additional facilities for dealing with and transferring their shares. The holder of a certificate has a right to register his interest. In order for a person to be registered as holder of shares, the production of a share certificate is necessary. The share certificate gives the holder or possessor of the certificate the right to demand to be registered as a shareholder. A share certificate is therefore a valuable security within the meaning of s 30 of the Penal Code; (2) it would depend upon the circumstances whether there was only one transaction and one offence committed. A series of offences of the same or a similar character could also be distinct, as could offences committed in the same transaction; (3) 'distinct' means not identical. Offences which were not inter-related would be distinct, but inter-related offences could also be distinct;s 71 of the Penal Code applies to 'composite offences', ie offences where the constituent acts are themselves offences. This section would have applied if the appellant had been additionally charged with forging the company seal and forging the director's signature. The forging of each share certificate and each transfer form stood separately by itself as a distinct offence. They were not parts of one offence. Each forgery was an offence in its own right. The senior district judge was therefore right in holding that there were 36 distinct offences.

Tham Wing Fai Peter v Public Prosecutor [1988] 2 MLJ 424 High Court, Singapore (Chua J).

Harry Lee Wee v Public Prosecutor [1980] 2 MLJ 56 High Court, Singapore (Choor Singh J).

See CRIMINAL LAW, Vol 4, para 1463.

The two appellants and another accused person were all members of the police force stationed at Joo Chiat Police Station. On 9 June 1946 at 2.30 am, they were driving a truck belonging to Joo Chiat Police Station along a road from the sea in the direction of the police station and in that truck, there were 4,200 katties of rice and six coolies. They were stopped by other police officers who had been in hiding, observing the movements of this police truck and were taken to the Joo Chiat police station. They were eventually charged and convicted on two charges: (a) they had in their possession a controlled article in such circumstances as to raise a reasonable suspicion that an offence under the Food Control Proclamation (No 10 of 1945) had been committed or was intended to be committed, an offence under s 15 of the Food Control Proclamation, and (b) they did move a controlled article without a permit from the Assistant Food Controller, an offence under s 2 of the Foodstuffs Movement Restriction Order of 1945. It appeared that the third person was the senior of the three police officers. He was a detective. The first appellant was an acting detective and the second appellant was merely a driver. The first and second appellants alleged that they had acted the whole time under the orders of the third person. The learned district judge convicted all the accused on both the charges against them and in his grounds of judgment said, inter alia, 'Whatever the value of each separate item of evidence in favour of the accused, the cumulative effect, to my mind, told against them. I therefore convicted the first accused. It follows, therefore, that I must convict the other accused'. The first and second appellants, who were the second and third accused in the lower court, appealed against their conviction and sentence. Held: (1) there was evidence in this case to show that the second and third accused were acting under the instructions of the third person and that they were acting under a mistake of fact, which was a defence under s 79 of the Penal Code; (2) the learned district judge had on this point failed to appreciate that the first and second appellants had a separate and distinct defence from that of the third person and that therefore, the conviction of the two appellants on the second charge must be quashed.

Arumugam & Anor v R [1947] MLJ 45 High Court, Singapore (Worley J).

[Annotation: See also Sulong v Public Prosecutor [1947] MLJ 138.]

Public Prosecutor v Teo Eng Chan & Ors [1988] 1 MLJ 156 High Court, Singapore (Coomaraswamy J).

See CRIMINAL LAW, Vol 4, para 1634.

The appellant was charged with rape under s 376 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, however, 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. He was convicted and he 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 that he was therefore entitled to be acquitted under s 79 of the Penal Code. Section 79 reads: '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'.

Held, per Murray-Aynsley CJ with Whitton J concurring: (1) if the act would have been a tort though not an offence, he would not have been 'justified by law'. On the other hand, in the present case, if his belief had been correct, he would have committed neither a crime nor a tort. Such an act is always 'justifiable by law'; (2) (per Pretheroe Ag CJ (FM) dissenting) where in fact the girl is under 14, it is immaterial in law whether her consent had been given because on account of her age, she was incapable of giving consent.

Abdullah v R [1954] MLJ 195 Court of Appeal, Singapore (Murray-Aynsley CJ, Pretheroe CJ (FM).

[Annotation: See s 140(1)(i) and s 140(4), Women's Charter (Cap 353, 1985 Ed).]

Public Prosecutor v Rozman bin Jusoh & Anor [1995] 3 SLR 317 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 585.

The appellant, a police supervisee under s 47(b) of the Criminal Law (Temporary Provisions) Ordinance 1955 (No 26/1955) was convicted for failure to comply with the restrictions imposed upon him under s 49(A)(1)(f), to wit 'he shall remain within doors' at No 23 Jeddah Street between the hours of 7pm and 5am. His only defence was that he had been to a bar in the afternoon and although he intended to leave at 6 pm, he became drunk and fell asleep. At 9.30pm, he was returning home with a friend when he was arrested by the police. It was contended for him that mens rea was a constituent part of the offence and as he was drunk, he was incapable of forming the specific intention in the absence of which he would not be guilty of the offence by virtue of s 86 of the Penal Code.

Held: (1) in deciding whether mens rea is excluded as a necessary constituent of a crime, it is always necessary to consider whether the offence consists in doing a prohibited act or in failing to perform a duty which only arises if a particular state of affairs exists; (2) as there was in this case an absolute prohibition against being out of doors during a specific period, mens rea is not a necessary constituent of the offence.

Seah Eng Joo v R [1961] MLJ 252 High Court, Singapore (Buttrose J).

[Annotation: See article 'The Defences of Intoxication in Malayan Criminal Law' by WED Davis, [1958] MLJ lxxvi.]

The appellant was charged with the murder of one Loo Kwee Hwa (the deceased). The defence raised was that the appellant was intoxicated at the time he killed the deceased and that he could not have formed the intention to kill her. The defence's expert witness testified on the effects that Dormicum and Dormicum mixed with alcohol could have on a person but did not testify on what effect it would have had on the appellant in particular, as he had not seen or examined the appellant. He also said that it was beyond his expertise to evaluate a person's ability to rationalize or to form an intent to do a particular act. The prosecution's expert witness, who had attended to the appellant, gave evidence that the appellant was capable at the material time of forming the intention to do the acts in question. The trial judge convicted the appellant. The appellant ap-pealed.

Held, dismissing the appeal: (1) in order for the appellant to make good his defence that he did not have the intention to murder the deceased, he had to prove, on a balance of probabilities, that by reason of his consumption of four tablets of Dormicum followed by a small bottle of stout he was so intoxicated that he was incapable of forming any intention for the offence; (2) the trial judge was correct in finding that the appellant not only did not suffer from any paradoxical rage reaction from the Dormicum and stout but that his claim that he had only a very limited memory of what happened was not true. The appellant had clearly set out to commit robbery after arming himself with a dangerously sharp paper-cutter. He had every intention of causing the bodily injury on the deceased. As the bodily injury was sufficient to cause death, the appellant was guilty of murder; (3) the trial judge's reasons for accepting the opinions of the prosecution's expert witness over that of the defence's were that the prosecution's expert's opinions were based on his interview with the appellant and his assessment of the appellant's evidence in court, and that the defence's expert was not a psychiatrist and was in no position to comment on the psychiatric effects of the drugs. In the light of these reasons, the appellant had failed to show that, on a balance of probabilities, he had not possessed the necessary intention to commit murder as, on the day in question, he had consumed four Dormicum tablets and a bottle of stout and thereby had been rendered incapable of forming any such intention.

Indra Wijaya Ibrahim v Public Prosecutor [1995] 2 SLR 442 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Public Prosecutor v Teo Eng Chan & Ors [1988] 1 MLJ 156 High Court, Singapore (Coomaraswamy J).

See CRIMINAL LAW, Vol 4, para 1634.

The petitioner was charged with abetting one Lim Teck Cheng ('Lim'), a director of Wyno Marine Pte Ltd ('Wyno'), to commit criminal breach of trust of S$282,000. The petitioner was alleged to have intentionally aided Lim in misappropriating the said sum which was the property of Wyno. The petitioner pleaded guilty to the charge in a district court and admitted to the facts read out by the prosecutor. The facts revealed that at at the material time, the petitioner and Lim were directors of Wyno and Hong Lam Marine Pte Ltd ('Hong Lam'). In June 1990, Lim told the petitioner that he had obtained a loan of S$4.2m from International Factoring Marine ('IFM') for the construction of a vessel. As a condition of the loan, Hong Lam had to show that it had incurred S$500,000 in expenses towards the construction of the vessel. To show this, Lim arranged for the issue of false invoices from Lee & Kong Engineering Works to the amount of S$282,000. Lim, who controlled the moneys belonging to Wyno, issued a cheque for that sum to Lee & Kong, who promptly issued a cheque returning the sum to the petitioner who handed it back to Lim. This cheque was encashed by Lim and the moneys deposited in Hong Lam's bank account. Lim instructed the petitioner to credit the amount deposited as a loan from Lim. Before Lim left Hong Lam in 1991, the petitioner told Lim that he should reverse the S$282,000 that was recorded in Wyno's accounts as construction cost and in Hong Lam's accounts as a loan. Up to the date that the petitioner pleaded guilty, this had not been done. The petitioner was sentenced to six months' imprisonment. She then applied by revision to set aside the conviction on the grounds that as the principal offender had not been dealt with, she could not be guilty of abetment and that the statement of facts did not disclose the offence.

Held, allowing the petition: (1) in the normal case, the charge against an abettor should state the act he is alleged to have abetted. This is true of charges of abetment by intentional aid as it is of charges of abetment by instigation or conspiracy. This act therefore formed part of the prosecution's case against the abettor. There was in the meaning of 'instigation' and 'conspiracy' no inherent assumption that either the instigation or conspiracy came to fruition, and so while the act instigated or conspired towards by the abettor could and must be identified, the fact that its actual commisssion might not be proved was unobjectionable. Conversely, the word 'aid' did not imply that the act aided was committed, so it followed that the prosecution must prove the commission of the act which an abettor was alleged to have aided intentionally. An accused may only be said to have intentionally aided an offence if the whole actus reus of the offence itself is proved to have been committed; (2) the fact that the act intentionally aided must have been committed does not mean that the principal should of necessity have been convicted prior to the alleged abettor in order that the latter may be found liable for aiding him. The sequence in which the principal and the intentional aider were tried was frequently a matter of chance and indeed, on occasion it may not be possible to try the principal at any time at all, for example, where he died before the trial or where he could not be found. It was quite unacceptable that in those cases the intentional aider should also be immune from liability; (3) in the instant case, it was not shown anywhere in the statement of facts that at the time the petitioner arranged for the said payment, she knew that she would be asked to record the money returned from Lee & Kong as a loan to Hong Lam rather than as an asset belonging to Wyno. If anything, the statement of facts indicated that the petitioner would have thought that the money would be returned to Wyno, which would then have been no worse off than before the payment out was made. Her intention at the time she did the acts for which she was charged, namely arranging for Wyno to pay the money to Lee & Kong was simply not addressed at all. The petitioner had not been shown to have arranged for the payment to Lee & Kong with the intention that Lim should misappropriate the moneys.

Ong Ah Yeo Yenna v Public Prosecutor [1993] 2 SLR 73 High Court, Singapore (Yong Pung How CJ).

The appellants were convicted on the charge under s 143 of the Penal Code (Cap 224) of being members of an unlawful assembly, the common object of which was to commit the offence of gaming in a common gaming house. They appealed against the conviction. It was conceded by counsel that the 26 appellants were gathered at the common gaming house for the purpose of gaming. The issue raised on appeal was that the charge did not disclose an offence known to law as the common object of gaming did not render the assembly unlawful within the meaning of s 141 of the Penal Code (Cap 224) ('the Code').

Held, allowing the appeal: the offence of gaming in a common gaming house under s 7 of the Common Gaming Houses Act (Cap 49) ('the Act') was an offence which did not have as an ingredient for its commission an element of violence or threatened violence. It was not and could not be an offence against the person or property, and it was not such an offence that was likely to endanger the public peace and be an offence against the public tranquillity. Hence, the offence of gaming in a common gaming house was not caught by the words 'or other offence' in s 141 of the Code and gathering in a common gaming house for the purpose of gaming did not amount to an unlawful assembly.

Fo Son Hing & Ors v Public Prosecutor Magistrate's Appeal No 280/91/01-26 High Court, Singapore (Karthigesu J).

The appellants (the first and fourth accused respectively, the second and third being acquitted) were charged with an offence under s 149 of the Penal Code in that they, while being members of an unlawful assembly whose common object was to cause hurt by dangerous weapons, caused the death of one Ong Hock Soon. Counsel for the appellant contended that the common object alleged, ie to cause death by dangerous weapons, does not expressly come within the ambit of s 141 although it could possibly come under the third head of s 141. However, the phrase 'or other offence' appearing in the third limb of the said section should be read ejusdem generis with 'mischief or criminal trespass', and causing hurt with dangerous weapons is not within the third head of s 141. Secondly, there was inadequate particularization of the common object in the charge to the extent which gravely prejudiced the defence.

Held: (1) the third head of s 141 is intended to include all offences, both against person and property, and not only mischief, trespass and ejusdem generis; (2) failure to specify the common object in a charge under the appropriate section would not be fatal to the trial if it can be shown that there was ample evidence on the record to prove what the common object of the assembly was.

Ong Chin Seng & Anor v R [1960] MLJ 34 Court of Criminal Appeal, Singapore (Rose CJ, Chua and Wee Chong Jin JJ).

The appellants were originally charged in the criminal district court under ss 124, 143, 147 and 152 of the Penal Code. They claimed trial and made an application under s 176 of the Criminal Procedure Code (cap 132, 1955 Ed) for the case to be transferred to the High Court for trial. The application was granted and without any further steps being taken, except service of notice of trial, the matter came on for trial before the Chief Justice of Singapore on the same charges. The appellants were convicted by the Chief Justice of unlawful assembly and rioting under ss 143 and 147 respectively of the Penal Code. On appeal, it was contended that (a) by reason of no preliminary inquiry being held, the trial was a nullity and (b) the findings of the Chief Justice were against the weight of the evidence.

Held: (1) the High Court had jurisdiction and power to try the case under s 176 of the Criminal Procedure Code and a preliminary inquiry is not a necessary precondition of the exercise of that jurisdiction and power; (2) on the facts, the appellants were rightly convicted of the charges against them and the appeals against conviction must be dismissed; (3) having regard to the changed circumstances since the time the sentences on the appellants were imposed and bearing in mind that the appellants are of excellent personal character, justice will be served and the public interest will not be affected if the sentences of imprisonment are set aside and the appellants conditionally discharged.

Fung Yin Ching & Ors v Public Prosecutor [1965] 1 MLJ 49 Federal Court, Singapore (Thomson LP, Barakbah CJ (Malaya).

The appellants were convicted under s 116 and 161 of the Penal Code on a charge of abetting the offence by a public servant of accepting gratification other than legal remuneration as a motive for showing favour in the exercise of his official duties. The learned magistrate at the trial found as a fact that neither of the public officials was capable, in the proper exercise of his official functions, of doing what the accused required. On appeal, it was argued that for a charge under s 161 to succeed, the favour to be shown must be a favour which the public servant is capable of granting.

Held: a public official can be guilty of an offence under s 161 of the Penal Code, whether or not he was in a position in the exercise of his official duties to grant the favour asked for so long as he was aware that the bribe was offered to him in the belief that he could show such favour.

Bhaskaran & Ors v R [1949] MLJ 290 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: See also Wong Poh Ching v Public Prosecutor [1957] MLJ 160.]

The appellant had been convicted of giving false evidence punishable under s 193 of the Penal Code. It appeared that the appellant made a statement to the police in the course of an investigation and later, when giving evidence in the course of a criminal trial, differed materially from what he had said before. The two versions of the facts could not be reconciled, but there was no evidence to show which of the two statements was true and he was charged in the alternative. The statement to the police was recorded in narrative form and did not record the actual questions and the answers thereto.

Held: (1) s 123(2) of the Criminal Procedure Code (Cap 20) imposes an obligation on the person giving a statement to answer truly all questions relating to the case under investigation; (2) as the statement in this case was taken in narrative form, it could not form the basis of a charge under s 191 of the Penal Code.

Kandiah v R [1953] MLJ 64 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: Followed in Public Prosecutor v Fernandez [1954] MLJ 5.]

Public Prosecutor v Wong Hong Toy & Anor [1986] 1 MLJ 133 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 1695.

This was an application for an order that the two cases, DAC 4151 and 4152 of 1983, presently pending in the subordinate court, be transferred to the High Court pursuant to s 184 of the Criminal Procedure Code (Cap 113, 1970 Ed). In the two cases, the applicants were respectively charged for having committed the offence of making a false statement in a declaration which was by law receivable as evidence under s 199 read with s 193 of the Penal Code. The applicants were first tried on the said charges before the learned senior district judge, who acquitted and discharged them on the ground that it was not a statutory declaration. The Public Prosecutor appealed and the learned Chief Justice held that although it was not a statutory declaration under the Statutory Declarations Act 1835 (United Kingdom), it was nevertheless a declaration within the meaning of s 199 of the Penal Code. He allowed the appeal and ordered a fresh joint trial of the applicants before another district judge. The applicants advanced three grounds for this application: (a) it was not open to them to plead before the subordinate court that the declaration was not a declaration within the meaning of s 199 of the Penal Code, as the court would be bound by the ruling made by the Chief Justice and they would therefore be deprived of a fair trial; (b) the two cases involved some questions of law of unusual difficulty; and (c) they were chairman and secretary general respectively of a political party in opposition to the party in power, and it was expedient for the ends of justice that they be tried in the High Court.

Held, dismissing the application: (1) the applicants cannot raise the same issue again in the subordinate court. It had been fully argued and had been decided upon, and such a decision is binding on the applicants; (2) in seeking to transfer the two cases to the High Court with a view to raising the same issue again, which had been decided upon after full argument, is tantamount to an abuse of court process; (3) the court is unable to discern any question of law of unusual difficulty which is likely to arise in these cases; (4) the fact that they hold such positions in a political party is irrelevant.

Wong Hong Toy & Anor v Public Prosecutor [1986] 2 MLJ 8 High Court, Singapore (Thean J).

The accused was charged with having murdered one Madikum Puspanathan on 23 January 1976 at 7pm. The accused had earlier that day been drinking liquor with the deceased and some others in a bar at the junction of Jalan Besar and Upper Weld Road, Singapore. The accused became aggressive, pulled the deceased by the hand and challenged the deceased to a fight. They were separated. Soon after, the accused again seized the deceased's hand and pulled him out on to the road and there started a fight with the deceased in the course of which the accused pulled out a concealed knife, stabbed the deceased in the chest and ran away. The deceased collapsed on the road and died in a pool of blood. At the autopsy, the pathologist found a fatal gaping stab wound below the left clavicle which was 8cm deep and had cut through the third and fourth ribs, penetrated the left lung and produced a 2cm cut at the anterior surface of the heart. The cause of death was certified as 'stab wound into the heart'. At the trial of the accused, the prosecution relied on clause (c) of s 300 of the Penal Code and contended that as the accused's act of stabbing was done with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, he was guilty of murder. Counsel for the defence submitted that there was no evidence that the accused inflicted the fatal wound with the intention of causing such injury as would in the ordinary course of nature cause death. Counsel cited Mohamed Yasin v Public Prosecutor [1976] MLJ 156, and relied on the passage in Lord Diplock's judgment at p 157 which reads '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'. The trial judges, in rejecting this submission and convicting the accused,

Held: (1) there is a clear distinction between the intention to cause the bodily injury found to be present and the intention to cause 'some bodily injury of a kind which is sufficient in the ordinary course of nature to cause death.' The prosecution does not have to prove the latter intention; (2) and (ii) was sufficient in the ordinary course of nature to cause death; (3) for the application of clause (c) of s 300 of the Penal Code, all that the prosecution need prove is: (a) the accused did an act which caused the death of the deceased; (b) the said act was done with the intention of causing bodily injury; (c) the injury caused (i) was intended and was not accidental or otherwise unintentional;the dictum of Lord Diplock relied upon by counsel for the defence was factually appropriate in Mohamed Yasin's case but it is not of universal application. When considered in isolation, it gives a different meaning to the third limb of s 300, but it is clear from a reading of the whole judgment in Mohamed Yasin's case that the Privy Council has not differed from the views of the Supreme Court of India in Virsa Singh's case, AIR 1958 SC 465, where the correct legal position as regards the third limb of s 300 of the Penal Code has been set out.

Public Prosecutor v Visuvanathan [1978] 1 MLJ 159 High Court, Singapore (Choor Singh and Rajah JJ).

The appellant, with two other men, entered a shop in Tanjong Katong Road, Singapore. He produced a revolver and told Chia Mui Song, its owner, to come out from behind the counter. Chia Mui Song did so and the appellant asked him for his keys and tried to search him. Chia Mui Song brushed his hands away and the appellant then fired a shot in the direction of Chia Mui Song, which hit him in the arm. After a struggle, Chia Mui Song tried to get hold of the telephone, which was on the counter behind which he had been sitting. The appellant fired again and Chia Mui Song died. Three bullets had struck his body, two on his right arm; one or both of these which went through his arm might have entered his body, but there was no evidence to that effect. The appellant was tried before a jury and the trial judge in summing up, having explained the first, third and fourth limbs of s 300 of the Penal Code, said: 'If you take the same view as myself, you will decide that the injuries to the chest and abdomen were not intentionally inflicted by the accused ... the irresistible inference is that he had the knowledge that the act of shooting at the deceased's forearm was so imminently dangerous that it must in all probability cause death or bodily injury likely to cause death. ... It seems to me, therefore, that the prosecution has established beyond reasonable doubt one of the states of mind required for the offence of murder. ... Your main task is, therefore, to decide whether you fully accept the evidence ... that it was the accused who fired the bullets which penetrated the deceased's chest and abdomen'; and just before the end of his summing up, the learned trial judge said: 'If you are fully satisfied on this point, that is, satisfied beyond reasonable doubt, you will find the accused guilty of murder'. The appellant was convicted of murder and his conviction was upheld by the Federal Court (Barakbah CJ (Malaya), Wylie CJ (Borneo) and Tan Ah Tah J) (22 February 1965). By special leave in forma pauperis in an appeal to the Privy Council,

Held: (1) the four limbs of s 300 of the Penal Code were not mutually exclusive, and the words used by the trial judge near the end of his summing up, following as they did his firm expression of opinion that the appellant, if he fired the shots, had the state of mind necessary to constitute the offence of murder, might have led the jury to conclude that in substance, the only issue for them was whether the accused fired the shots. That amounted to a misdirection and the conviction should not be allowed to stand; (2) the contrast between the use of the words 'likely to cause death' in s 299 and the words 'sufficient in the ordinary course of nature to cause death' in the third limb of s 300 of the Penal Code indicated that a high degree of certainty was required to justify a conviction under that limb for murder. Where the question whether a case comes within the third limb of s 300 is in reality left to a jury, it is difficult to envisage a case in which reference ought not to be made to the contrast in the words aforesaid and it is difficult to envisage a case in which it would not be right to leave the question of a verdict of culpable homicide to the jury. In this case, although the trial judge did tell the jury that they had to consider the third limb of s 300, his direction was such as to amount to a direction that that part of s 300 did not apply; (3) the proviso to s 60(1) of the Courts of Judicature Act 1964 was not applicable, because it could not be said that a reasonable jury, properly directed, would inevitably have reached the conclusion that the person who fired the shot was guilty of murder because the learned judge who heard the evidence, formed the view that the accused's intention was only to shoot the deceased in the forearm and their Lordships were therefore unable to exclude the possibility that a reasonable jury, properly directed, would have reached the same conclusion.

Chung Kum Moey v Public Prosecutor [1967] 1 MLJ 205 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson and Lord Pearce).

The accused was charged with murder under s 302 of the Penal Code. The evidence showed that there had been previous quarrels between the accused and the deceased who were both working on a ship. On the morning of the day of the incident, there had been a quarrel between them and the deceased had scolded, threatened and chased the accused with a knife. The deceased did not retaliate immediately. Later in the day, the accused went to his cabin and brought a knife to the pantry to stab the deceased. There was a struggle between them as the deceased was trying to prevent the accused from stabbing him. The accused stabbed the deceased, causing the injuries which led to his death. A statement was recorded from the accused and after a trial within a trial, this was admitted in evidence. It was contended on behalf of the accused that (a) the defence had created a reasonable doubt as to whether the accused had intended to kill the deceased or to cause him injury as was sufficient in the ordinary course of nature to cause death, (b) the deceased was deprived of the power of self-control by grave and sudden provocation when he caused the death of the deceased who gave the provocation, and (c) the accused had killed the deceased 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.

Held, convicting the accused: (1) having regard to the evidence in the trial within a trial, the court was satisfied that the charge and the warning had been read and explained to the accused and/or at any rate that he understood both the charge and the warning. It was clear from the accused's own testimony that his real complaint was that certain parts of his cautioned statement had not been recorded accurately; (2) the court admitted the cautioned statement as a voluntary statement, but without prejudice to the accused's position that the cautioned statement might be inaccurate in the respects alleged by the accused; (3) the stabbing was a calculated and deliberate act. The stabbing was done with the intention of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death; (4) the accused did not behave as if he had been provoked. He did not lose his self-composure, much less his self-control. Instead, he decided to teach the deceased a lesson. The accused had therefore not discharged the burden of proving exception 1 to s 300 on a balance of probabilities; (5) the evidence showed that there was no sudden fight when the stabbing took place. The accused waited in the pantry for the deceased to appear in order to stab him. Furthermore, the accused took undue advantage of the deceased, who was then unarmed, by concealing a knife in his pocket and when the deceased came into the pantry, attacked him by surprise; (6) the prosecution had proved beyond a reasonable doubt under s 300(c) of the Penal Code that the accused had intended to stab the deceased and that the injury intended was sufficient in the ordinary course of nature to cause death. The accused was therefore convicted.

Public Prosecutor v Tsang Yuk Chung [1988] 3 MLJ 437 High Court, Singapore (Chan Sek Keong and Chua JJ).

The appellant was 14 years old at the time of the offence. He admitted to entering the deceased's flat at Block 1, Marsiling Drive to steal. The deceased was heard shouting 'robbery' and was found with some eight stab wounds from which she later died. The fatal wounds did not require much strength to inflict. Nobody witnessed the stabbing but a person fitting the appellant's description was seen running away from Block 1 towards the direction of Block 2, which the appellant admitted doing at the time. He was arrested some 34 months later. His s 122(6) and s 121 statements were admitted without a voir dire. In the s 122(6) statement, the appellant said that he went to the deceased's flat to steal and that there was a struggle in which he accidentally stabbed her. In the s 121 statement, he provided more details and said that he only waved the knife to scare the deceased off but she kept advancing towards him. When the trial started, the appellant alleged that a second intruder had caused the injuries. The trial was adjourned and the appellant retracted the police statements he had given and gave a new one alleging that a second intruder had stabbed the deceased. The appellant's reason for giving the earlier statements was that he was afraid of being assaulted as he had heard from his friends that the police assaulted suspects. The appellant was convicted.

Held, dismissing the appeal: (1) the trial judge had considered both versions given by the appellant in their entirety as well as the other evidence. The appellant's explanation that he gave the CID officers the earlier version because he was afraid, due largely to self-induced fear, and that this version was concocted by him from his recollection of the 'Crimewatch' programme was unworthy of belief. If there was indeed a second intruder who had stabbed the deceased, this would have been the first thing the appellant would have told the officers; (2) there was no evidence at all of the existence of the alleged second intruder. The defence was a fanciful one. Even if the appellant had not given the earlier s 121 and s 122(6) statements, it would have been very difficult in the circumstances of this case to overturn a finding that the story about the third person was fabricated. The likelihood that there was indeed a second intruder at the same time that the appellant was in the flat was so very slim that in the absence of independent evidence, no tribunal of fact could be faulted for throwing the defence out. Looking at the statements and the appellant's testimony in their entirety and comparing them with the other evidence, even though the appellant's testimony and later statement directly contradicted the appellant's earlier s 122(6) and s 121 statements, this later version was so weak and tenuous that it could not nullify the evidential value of the earlier statements, even only to the extent that it raised a reasonable doubt; (3) Given the nature and extent of the injuries found on the deceased, they could not be anything but intentionally inflicted. It mattered not whether the appellant intended to cause death or serious bodily injuries. It was sufficient if he intended to cause the bodily injuries and the injuries were sufficient in the ordinary course of nature to cause death; (4) Even though no defence or exception was raised by the appellant, the trial judge had considered every possible defence or exception and had rightly rejected all of them. The appellant was not so intoxicated as to be unable to form the requisite intention. The defence of sudden fight was not available as the appellant had taken undue advantage of the deceased by using a knife. Self-defence was also not available as the deceased was only exercising her own right of private defence over property.

Mohd Iskandar bin Mohd Ali v Public Prosecutor Criminal Appeal No 7 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

On 2 December 1989, the accused and three others went to a brothel to engage the services of a prostitute. They were not happy with the deceased, who helped manage the brothel, as they believed he had overcharged them. They therefore planned to rob the deceased later that night. However, one of the accused's friends did not want to involve himself in the robbery and left. The rest of them thereupon decided not to proceed with the robbery. While the accused was lying on a sofa outside the bedroom they had rented for the night, the deceased came up to the accused and started to fondle his private parts. The deceased urged him to go into another room and the accused went. In the room, the deceased took off all his clothes and pulled away the towel that the accused was wearing and started to fondle his private parts again. The accused became angry and assaulted the deceased by pushing his face and stepping and kicking him on his stomach. The accused then woke up his friends who were in the other bedroom and told them what had happened and asked them to get ready to leave. The accused and one of his friends, 'Kalai', went to the room where the deceased was and he tied the deceased's legs and asked Kalai to tie his hands and gave Kalai a towel to tie his mouth. He said, 'Don't let him make any noise'. He then left to get dressed and subsequently all of them left. The cause of death was asphyxiation as the deceased's tongue had fallen back into his throat and blocked the air passage causing suffocation. The forensic pathologist agreed that gagging does not neccessarily result in the tongue being pushed back and thereby resulting in the victim's death.

Held, convicting the accused on reduced charges of wrongful confinement and causing grevious hurt: (1) to establish an offence under s 300(c), the prosecution has to prove not only that the accused caused the injury that caused the death but that the accused intended to cause that particular injury, that is to say, it was not accidental or unintentional, which caused death; (2) the accused asked his friend to gag the deceased in order to stop him from continuing to make noise and left after that. He did not see or supervise the gagging. The gag that was too tightly applied by his friend caused the deceased's tongue to roll back and caused his death; (3) the accused was therefore not privy to any intention other than to gag the deceased. If his friend had decided to strangle the deceased or slit his throat, the act would be outside the purview of the common intention; (4) the accused therefore did not intend to cause the death of the deceased. Neither did he have the knowledge that by such an act, he was likely to cause the death of the deceased under s 299 of the Penal Code (Cap 224) ('the Code'); (5) the accused also did not have an intention to rob the deceased as the plan to rob him was abandoned once one of his friends left. The accused, however, did wrongfully confine the deceased under s 342 of the Code. He was sentenced to one year's imprisonment on this charge. He also intended to cause grevious hurt to the deceased by kicking him which resulted in a fracture of one of his ribs. He was sentenced to two years' imprisonment and six strokes of the cane on this charge.

Public Prosecutor v Karnan Criminal Case No 14 of 1992 High Court, Singapore (Amarjeet JC).

A young girl of about ten years was found dead and the medical evidence disclosed that the cause of death was violence employed in the course of a rape. There was no indication of any violence other than that used in effecting the rape. The accused was convicted of murder.

Held: (1) as there was no indication of any intention other than to rape or of any violence other than that necessary to effect the rape, the conviction for murder cannot stand; (2) there was a misdirection in the summing up of the learned judge and that this prevented the substitution of a conviction for any lesser offence; (3) (per curiam) 'In view of the specific intention required by ss 299 and 300 of the Penal Code (which differs considerably from the English common law), we considered (following the Indian case of Shambu Khatri (1924) 3 Patna 410, in which we agree with the reasoning of Bucknill J and do not find it necessary to add anything) that there was no evidence on which the appellant could be convicted under s 299 or s 300.': per Murray-Aynsley CJ.

Ali v Public Prosecutor [1948] MLJ 46 Court of Appeal, Singapore (Murray-Aynsley CJ, Spenser-Wilkinson and Brown JJ).

[Annotation: See Director of Public Prosecutions v Beard [1920] AC 479.]

The first four appellants in this case were convicted of murder, and the fifth and sixth appellants of an offence under s 149 of the Penal Code. All the appellants were sentenced to death. At the hearing of the appeal, a number of objections were taken to the summing up, both as to misdirection on the law and the facts. The counsel for the first four appellants contended that the learned trial judge failed to explain to the jury the difference between murder under s 300 of the Penal Code and culpable homicide not amounting to murder under s 299, and this was a fatal omission. Counsel further contended that the illustration to s 216 of the Criminal Procedure Code created an absolute duty to do this in all cases.

Held, the illustration to s 216 of the Criminal Procedure Code (Cap 21) merely tries to explain in a simple way the difference in the functions of a judge and a jury in a typical instance. The expressions 'culpable homicide not amounting to murder' and 'murder' are defined in terms so closely resembling each other that a judge should not attempt to draw a distinction between them unless there is evidence from which the jury might deduce that the lesser offence of culpable homicide not amounting to murder had been committed.

Tamby & Ors v R [1952] MLJ 220 Court of Criminal Appeal, Singapore (Murray-Aynsley CJ (Singapore).

The appellant was convicted of the murder of a young woman Wong Mee Hong. The incident took place in a flat in Tanjong Katong which the appellant and the deceased shared with other occupants. The deceased and her boyfriend shared a room the flat. On 1 December 1990, the deceased's boyfriend returned home from work and could not find the deceased. He then discovered that her jewellery was missing. It was also discovered that the appellant had not returned from his job. The flat was searched and the body of the deceased was found in a closet. The appellant was arrested and at his trial his cautioned statement was admitted in evidence. In the cautioned statement the appellant had admitted to having stabbed the deceased so he could steal her jewellery. The forensic pathologist gave evidence that he found four stab wounds on the body of the deceased. He identified two of the stab wounds as being fatal, testifying that they punctured the deceased's lungs causing massive haemorrhage. However he was not asked if the wounds were sufficient in the ordinary course of nature to cause death. The appellant was convicted and he appealed.

Held, dismissing the appeal: (1) the question whether an injury inflicted is sufficient in the ordinary course of nature to cause death was essentially a question of fact. The evidence of experts was no doubt helpful. But the fact that an expert did not expressly testify to it did not preclude a trial court from coming to a view on the issue on the basis of all the evidence before it, and applying common know-ledge and common sense; (2) if from the intentional act of injury committed the probability of death resulting was high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary course of nature to cause death and the conviction should be for murder; (3) the trial judge was of the opinion that the probability of death following from the two fatal stab wounds was very great and that either of them was sufficient in the ordinary course of nature to cause death. This was a correct finding in view of all the evidence.

Yap Biew Hian v Public Prosecutor [1994] 1 SLR 657 Court of Criminal Appeal, Singapore (LP Thean JA, Rajendran and Warren LH Khoo JJ).

A was charged with the murder of one Goh Bock Eng. The cause of death was established by P as asphyxia by strangulation. A produced her own expert who suggested that there was some degree of traumatic asphyxia caused by A sitting on the deceased's chest.

Held, finding A guilty of culpable homicide: (1) the court found that A did not intend to cause death; (2) the absence of internal injuries in the neck indicated that the pressure applied was not sufficiently severe; (3) the court was, however, satisfied that A intended to cause such bodily injury as was likely to cause death; (4) the court was further satisfied that A's conduct was provoked by the sarcastic and insulting remarks the deceased made about A, and A committed the offence at a time when she was so provoked as to be deprived of her power of self-control.

Public Prosecutor v Phuah Siew Yen Criminal Case No 3 of 1989 High Court, Singapore (Rajendran and Karthigesu JJ).

On 23 December 1992, the deceased, a taxi driver, did not return to his home at Block 115 Hougang Avenue 1. His family received several telephone calls between the afternoon of 23 December and the morning of 24 December by a man claiming to be a loan shark, who stated that the deceased was being held by them for his failure to pay off a loan, and who demanded a sum of S$10,000. To substantiate his story, the man read out the full particulars of the deceased's identity card. Shortly after the last telephone call at 9 or 9.30am on 24 December, the deceased's son-in-law looked out of the window and observed a man standing in the void deck on the tenth floor of a nearby building, Block 129. The man was watching the deceased's apartment and behaving suspiciously. The police were alerted, and they arrested the first appellant at the void deck on the tenth floor of Block 129. He admitted to having made the telephone calls. He was taken to Geylang Police Divisional Headquarters. He admitted that he had boarded the deceased's taxi at Orchard Towers the previous morning, and had instructed the deceased to drive him to a dirt track off Lorong Mayang in Yishun, where he robbed the deceased and subsequently tied the deceased's neck with a piece of string. The first appellant led a team of detectives from Geylang Police Divisional Headquarters to the dirt track in Yishun where the deceased's taxi was found. It was empty and the doors were locked. The first appellant then gestured towards some undergrowth further up the track, saying, 'Inside, inside'. The party proceeded into the undergrowth and found the dead body of the deceased lying face down on the ground, covered with tapioca leaves. A piece of yellow nylon string, eight feet long, with its ends knotted together, was found lying on the turf along the dirt track, some 11.5m away from the taxi and 9.5m from where the deceased's body was found. The second appellant was also brought in for questioning, and admitted to having accompanied the first appellant on the morning of 23 December 1992 to Orchard Road where they had boarded a taxi driven by the deceased and had later robbed the deceased at the dirt track in Yishun. The forensic evidence was that death had occurred between 4am and 4pm on 23 December 1992. An external examination of the body revealed that the face was muddy, with multiple ant bites all over it. The neck had four ligature marks on the left upper side, three on the midline, tapering to two main ligature marks on the right side. The back of the neck showed irregular linear marks which were continuations from the marks on the lateral aspects of the neck. All the ligature marks were roughly horizontal. There were extensive haemorrhages of the major neck muscles, and the hyoid bone and laryngeal cartilage were fractured. The pathologist stated that the cause of death was asphyxia due to strangulation by ligature. He opined that the ligature marks were consistent with having been caused by the yellow nylon string found at the scene which had its ends tied together, forming a doubled string with a knot at the end; namely, with having the doubled string wound round the neck twice, the knot against the neck, and being pulled from either side consistently. These injuries were sufficient in the ordinary course of nature to cause death. He was of the view that it would have taken less than five minutes of strangulation for the injuries he found to have occurred, and that death would have occurred within that time, or very shortly thereafter. The extensive damage caused to the neck structures also indicated that considerable force was used. The first and second appellants both made long statements that were admitted in evidence without challenge. The first appellant admitted that he and the second appellant, who were neighbours in Bedok, had had a discussion on 22 December 1992 concerning ways to get money. They decided to rob a taxi-driver. The next morning the two of them boarded the deceased's taxi near Orchard Towers, the second appellant in the front passenger seat and the first appellant in the back behind the dri ver. The deceased was directed to go to Yishun. The first appellant had with him a clutch bag containing items to be used in the robbery: a length of nylon string to tie the driver up, a toy gun to frighten him, and two pairs of gloves. At Yishun, the first appellant pulled out the toy gun and ordered the deceased to drive the taxi onto the dirt track. The deceased did so. When the taxi arrived at a secluded spot on the track, the first appellant ordered the deceased to stop the taxi and to hand over all his money. The deceased did so, handing over about S$200. After a scuffle with the deceased, the first appellant stood up, brought both the deceased's hands to his back and was using the yellow string to tie the deceased's hands when the deceased struggled and ran out of the taxi. The appellants gave chase. While the deceased was running, he managed to work the yellow string off his hands. The first appellant stopped to pick the string up. The appellants then caught up with the deceased and pounced on him. They pulled him to his feet, the first appellant holding his right arm, and the second appellant, his left. The first appellant used his free right hand, which was holding the string, to cover the deceased's mouth, but the deceased struggled violently and shouted. In the struggle, the first appellant wound the string around the deceased's neck once; the second appellant, seeing this, took hold of the other end of the string and pulled it. The first appellant used both his hands to pull his end of the string. A few seconds later, the deceased fell to his knees, breathing heavily. On seeing this, both appellants released their grips on the string. They then carried him into the undergrowth and put some tapioca leaves on top of him so that no one could see him. The second appellant in his statement gave a similar account of events, which differed at several material points. He claimed that he did not know what was inside the first appellant's clutch bag, as the first appellant had told him that he would handle everything necessary for the robbery. When the deceased ran out of the taxi, the two appellants gave chase; the first appellant stopped to pick the string up, and the second appellant pounced on the deceased and pulled him up from behind by both arms. The first appellant then stood in front of the deceased and tried to cover the deceased's mouth with his right hand, which was holding the string, but when he could not stop the deceased from shouting, the two of them panicked. The second appellant then saw the first appellant wind the string around the deceased's neck, with one end placed on the left shoulder of the taxi driver. The first appellant told him to hold that end while he held the other end, and then told him in Malay, 'Pull, pull'. The second appellant did as he was told, although he had some difficulty as the string kept slipping out of his hands and he had to use both hands to pull the string. The firstulling, the deceased continued to struggle although he stopped shouting. They kept pulling the string until the deceased fell to his knees. They then released the string andcarried thedeceased into the bushes; while he was doing so, the second appellant said that he could hear the deceased breathing heavily although his body was weak. The appellants put him down and covered him with tapioca leaves so that he could not be seen by passers-by. The second appellant then hurried out of the dirt track. At the trial, both appellants testified in their own defences. The first appellant stated that he had a pressing need of money, which had led to the formulation of the plan to rob a taxi-driver. He said that he had brought the string with him for the robbery to tie the taxi-driver up, and that he had picked up the string that had fallen from the deceased's hands when chasing the deceased because he wanted to use the string to tie the deceased up again when they caught him, so as to make their escape safe. He had no explanation as to why the appellants had, after pouncing on the deceased, pulled him to his feet, rather than tie his hands when he was lying on the ground, saying that it made no difference as they were two against one. He stated that his purpose for winding the string around the deceased's neck was to keep him quiet, since all other attempts to quieten him had failed. He stated that he had not told the second appellant to pull the string. He stated that he had had the gloves on while he pulled the string. He demonstrated how he had wound the string around the deceased's neck twice (but later said that he had wound it only once), put his fingers into the loop of the doubled string, and pulled. He stated that he had pulled for less than a minute before the deceased went limp. He stated that when he left the deceased in the undergrowth the deceased was breathing heavily; he did not use the s tring to tie up the deceased then since the deceased was very weak. The second appellant testified that the first appellant had been in charge of the robbery, and he had merely assisted the first appellant, doing what he was told. He stated that he would not have pulled the string if the first appellant had not told him to, and if he had known that pulling the string would have caused the deceased's death, he would not have done so. He thought that the duration of pulling did not exceed one minute. He stated that when they left the deceased in the undergrowth he could see the deceased struggling for breath, and said that since the deceased was so weak, tying his hands would have been a waste of time. He added that they had left the deceased lying on his back, facing upwards. He stated that he had no part in the scheme to extort money from the deceased's family. The trial judge found that the appellants had the common intention to rob the deceased. He concluded that the strangulation of the deceased had been done in furtherance of the common intention to rob. A bodily injury was present, and the nature of the injury was proved. The injury found was also indisputably sufficient in the ordinary course of nature to cause death. The trial judge accepted the evidence of the pathologist that considerable pressure must have been exerted to have caused the extensive damage to the neck structures that was noted. He also accepted that the bruises on the hands of both appellants after their arrest were bruises caused by their pulling the doubled string with considerable pressure and for some time, as these bruises were inflicted even though both the accused were wearing gloves at the time. He convicted both the appellants of murder and sentenced them to death. On appeal, the second appellant filed a motion to adduce further evidence in the form of an affidavit filed by the first appellant, in which the latter confessed to having strangled the deceased to death in a further incident after the initial pulling of the string by both appellantsthe appellant ha that had caused the deceased's death. In the alternative, the second appellant contended that when he pulled on the string he had only intended to cause such injury as would be sufficient to stop the deceased from shouting. The first appellant withdrew his appeal.

Held, dismissing both appeals: (1) relevance and reliability must be satisfied before leave to adduce additional evidence can be granted. The additional evidence which the second appellant sought to adduce did not meet the condition of reliability; (2) the three conditions of non-availability;by admitting to having pulled the string which the first appellant had wound around the deceased's neck in conjunction with the first appellant, coupled with the degree of force shown to have been used and the duration of the strangling, the second appellant had effectively admitted to having committed an act which caused bodily injuries sufficient in the ordinary course of nature to cause death.

Junalis bin Lumat & Anor v Public Prosecutor Criminal Appeal No 7 of 1994 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

Public Prosecutor v Maniam s/o Rathinswamy Criminal Case No 75 of 1993 High Court, Singapore (TS Sinnathuray J).

See CRIMINAL LAW, Vol 4, para 1368.

The appellant was charged with the murder of one Ho Hon Sing (the deceased). He was convicted and sentenced to death. He appealed against his conviction. At the trial before the High Court, evidence was led to show that the deceased was found dead at the bottom of Blk 1 Beach Road on 3 August 1989. The medical evidence suggested that the deceased's death was caused solely by his fall from a height. It was also shown that all the deceased's jewellery had been removed and that the accused disposed of the same. It was also shown that on the date of the offence the appellant had paged the deceased several times. The appellant's statements to the police were also admitted in evidence after a voir dire and in those statements he admitted that he had pushed the deceased from one of the upper floors of Blk 1 Beach Road. In his evidence, the appellant told the court that he and the deceased had consumed triazolem tablets and that he was very 'high'.

Held, dismissing the appeal: (1) there was substantial evidence showing the events which had happened on 3 August 1989; (2) the trial judge found that the appellant's contention that he was acting under the influence of triazolam was a 'brazen lie'. This finding of fact was sound and there was no reason to question it.

Yeo Watt Song v Public Prosecutor Criminal Appeal No 40 of 1992 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Both appellants were tried for the murder of a 78-year-old housewife. They had gone to the deceased's home after purchasing some chili powder and raffia string. Their intention was to rob the deceased. When the deceased opened the door of her flat the first appellant threw the chili powder at her. The second appellant went behind her and clasped her mouth with his hands. She began to scream and struggle. The second appellant held the victim while the first appellant used the length of raffia that he had with him to tie her hands together and then used the same length of raffia to tie a knot at her neck. They then left the deceased on the floor and proceeded to take jewellery from the flat. The forensic pathologist was of the opinion that the deceased died from asphyxia by strangulation as a result of the raffia tied around the neck and that the injuries at the neck were sufficient in the ordinary course of nature to cause death. The defence of both appellants was one of lack of intention to cause injury to the neck. They testified that they intended to tie the raffia around her mouth with a view to subduing her. The trial judge found that the first appellant's act of tying the raffia around the neck of the deceased was a deliberate act committed by the first appellant in furtherance of the common intention of both the ap-pellants to cause injury to the deceased which was sufficient in the ordinary course of nature to cause death. The appellants were convicted and they ap-pealed.

Held, dismissing the appeals: (1) the first appellant in his cautioned statement to the police had said that the second appellant asked him to tie the deceased's neck. The second appellant in another statement to the police had stated that the first appellant tied the raffia round her neck; (2) on the findings of fact that the trial judge made, all the requirements of s 300(c) of the Penal Code were satisfied. The trial judge was therefore justified in finding the first appellant guilty of murder; (3) it was not disputed that the two appellants had entered the deceased's premises with a view to robbing her. Although it was the first appellant who tied the deceased's hands and neck it was clear from the evidence that he was doing so in the presence of the second appellant and indeed with the encouragement of the second appellant. On those facts, it was clear that the acts of the first appellant were being done by the first appellant in furtherance of their common intention to rob the deceased. That being so the second appellant, by virtue of s 34 of the Penal Code (Cap 224) was also guilty of murder.

Yacob Rusmatullah v Public Prosecutor Criminal Appeal No 28 of 1993 Court of Criminal Appeal, Singapore (LP Thean JA, Rajendran and Warren LH Khoo JJ).

The appellant was tried on a charge of murder. The prosecution case was that the appellant, who was heavily indebted to the deceased, an unlicensed moneylender, had invited the deceased to his flat with a view to getting another loan from the deceased. While at the appellant's flat, the deceased refused to grant the appellant another loan. The appellant decided to rob the deceased. In the course of the robbery, the appellant slashed the deceased on the neck twice with a chopper. The forensic evidence showed that the deceased's wounds were caused with great force and either wound would have been sufficient in the ordinary course of nature to cause death. The appellant admitted that the two fatal wounds were caused by a chopper held by him but his defence was that the wounds were inflicted accidentally. He had placed the chopper against the left side of the deceased's neck in order to evict the deceased from his flat as the deceased was abusive and violent. While the appellant was trying to open the front door with one hand, the deceased lurched to his left to grab a chair, cutting himself severely on the chopper held against his neck in the process. The second cut was sustained when the deceased grabbed the appellant's neck and the appellant pushed him away with the chopper. The appellant's alternative defence was that the wounds were inflicted in the course of a sudden fight with the deceased. The appellant denied any intention of robbing the deceased. The trial judge disbelieved the appellant's version of the incident and rejected his defences. The trial judge was satisfied that the wounds were inflicted intentionally and that the wounds were sufficient in the ordinary course of nature to cause death. The appellant was accordingly convicted and sentenced to death. The appellant appealed.

Held, dismissing the appeal: (1) the forensic evidence was sufficient to prove that the wounds were inflicted intentionally. It was impossible to believe that the severe wounds found on the deceased were caused in the manner described by the appellant. It was incredible that the deceased would have wanted to grab the appellant's neck after suffering the first cut on the neck; (2) on the evidence, the defence of sudden fight did not avail itself to the appellant. Also, the defence of sudden fight was incongruous with the defence of accident maintained by the appellant all along.

Phua Soy Boon v Public Prosecutor [1995] 1 SLR 285 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with the murder of one Clementina Curci-Di Girolamo. The prosecution led evidence to show that at the time of the offence, the accused was employed by a cleaning company and was assigned, with three other employees, to clean the deceased's home. The accused and his colleagues were supposed to work from 8 to 10 October 1990. The accused worked the first two days but did not report on the third day. On that day, the deceased's body was found in the bathtub of one of the bathrooms upstairs. The deceased's brown leather handbag was missing. The body was discovered at about lunch time on 10 October 1990. The water had been turned on and the tub was overflowing. The time of death was fixed at between 7am and 9am on 10 October 1990. The cause of death was asphyxia due to constricting force applied to the neck. The pathologist also agreed, under cross-examination, that the asphyxia could have been caused by drowning. The prosecution also sought to admit in evidence four statements made by the accused to the police. The admissibility of the statements were objected to but after a trial-within-a-trial, the statements were found to have been voluntarily made. In the statements, the accused had admitted to having strangled the deceased by placing his arm around her neck and squeezing until she became soft. He then carried her to the bathtub which was filled with water and threw her in. The accused gave evidence in his own defence and sought leave to adduce evidence of an alibi, which was granted. The accused claimed that on the day in question, he felt ill and decided not to go to work. He claimed that he was awakened by his mother at 9am and he went to see the doctor. He saw the doctor at about 10am and then went back to his mother's house. He denied having been at the deceased's home or to having strangled the deceased. He called six alibi witnesses.

Held, convicting the accused: (1) all the alibi witnesses were close relatives of the accused. The evidence of close relatives especially in a defence of alibi arouses natural suspicion and reserve. There was, however, no reason to belittle such evidence for those reasons alone. The testimony of close relatives was not tainted if it was otherwise reliable in the sense that the witnesses were competent witnesses who were at the scene of the occurrence and could have seen what had happened; (2) in so far as the onus of proof was concerned, an accused who put forward an alibi as an answer to a charge did not assume any burden of proving that answer. It was not for the accused to disprove the prosecution case. Only the evidential burden was borne by the accused whilst the prosecution continued to bear the persuasive burden and it was enough therefore if the accused raised a reasonable doubt as to the prosecution case; (3) having scrutinized the alibi evidence with care, the court was of the opinion that no reliance could be placed on such evidence. They did not offer any credible evidence to raise a reasonable doubt.

Public Prosecutor v Maksa bin Tohaiee Criminal Case No 7 of 1992 High Court, Singapore (Amarjeet Singh JC).

The appellant was convicted of murder. At his trial, the prosecution had led evidence to show that the appellant and three of his colleagues had been assigned by their company to perform general cleaning at the deceased's home over a period of three days. On the day when the deceased's body was found, the appellant did not report for work. When the appellant's colleagues reached the deceased's home, they found the house unlocked and several items of furniture out of place. The deceased was found in a bathtub completely submerged in water. Death was caused as a result of asphyxia brought about by the combined effects of strangulation and drowning. The appellant's statement to the police was admitted after a trial-within-a-trial. In the statement, the appellant admitted going to the house to steal. He came upon the deceased in the house and struggled with her. He claimed that he did not mean her any harm but when she screamed and bit his hand, he strangled her and then threw her into the bathtub. Further evidence was led that the appellant was in possession of a wallet belonging to the deceased. In his defence, the appellant claimed that at the time of the murder, he was at the doctor's clinic. He tendered a medical certificate to support his testimony. However, evidence was led to show that the appellant had more than ample time to travel from the scene of the crime to the doctor's clinic in time for his medical appointment. He also called upon the evidence of his family members who supported the alibi. The appellant claimed that he had stolen the wallet from the deceased the day before the offence. At the appeal, the appellant suggested that the trial judge had not considered the alibi evidence. He also contended that the trial judge had failed to consider the appellant's statement in the light of the testimony in court. He suggested that if he had gone to see the doctor after murdering the deceased, there would have been several injuries at the time of the consultation and this would have been noticed by the doctor.

Held, dismissing the appeal: (1) the trial judge had carefully scrutinized the evidence of the defence witnesses and found them to be unreliable. It was not difficult to see why the trial judge rejected the alibi evidence; (2) it was too much to expect a doctor, who was being consulted by a patient for flu and sore throat, to look for injuries or other marks on the body of his patient; (3) while the statements given by the appellant were not absolutely consistent in every aspect, there was consistency in the crucial area; (4) the irresistible conclusion was that the appellant stole the wallet on the morning of 10 October 1990. He was there that morning.

Maksa bin Tohaiee v Public Prosecutor Criminal Appeal No 38 of 1992 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean and Chao Hick Tin JJ).

The appellant was tried for the murder of one Foo Chin Chin committed on 24 March 1990 at the East Coast Park. The evidence led showed that on 24 March 1990 at about 10pm, the appellant was seen by four prosecution witnesses dragging the deceased into some bushes at the East Coast Bird Sanctuary. The deceased was pleading with the appellant to let her go. The appellant subsequently emerged from the bushes and fled pursued by these witnesses. The deceased's body was later discovered near some bushes inside the bird sanctuary. The forensic evidence revealed that there were 14 stab wounds on the body. They penetrated the lobe of the right lung causing the lung to collapse. Death was due to haemorrhage from the stab wounds. In his statement, which was admitted in evidence, the appellant told the police that he had stabbed the deceased because she was heartless and had rejected him. After his arrest, the appellant had led the police to the recovery of the murder weapon which the forensic pathologist confirmed could have caused the fatal injuries. The prosecution also led evidence to show that just prior to stabbing the deceased the appellant had caused the death of the deceased's friend, Ng Leng Kheng, by pushing her from the 15th storey of a block of flats. The appellant's defence was one of diminished responsibility. The defence psychiatrist testified that at the time of both killings the appellant was suffering from one or several types of mental disorders which substantially impaired his mental responsibility for the killings of the deceased and her friend. The prosecution psychiatrist was of the view that the appellant was not suffering from any mental illness or personality disorder. He was of the opinion that the deceased's rejection of the appellant might have caused the appellant some stress, but not sufficient to cause any traumatic emotional stress. The trial judge, after a review of the evidence, preferred the opinions of the prosecution's psychiatrist. He was satisfied that the appellant killed the deceased out of jealousy because she rejected him. The appellant appealed.

Held, dismissing the appeal: (1) the burden of proving diminished responsibility, which was on a balance of probability, rested on the appellant. This was a question of fact which must be decided in the light of all the evidence before the court, including the medical opinion; (2) an appellate court will not disturb findings of fact unless they are clearly reached against the weight of the evidence. In examining the evidence an appellate court had always to bear in mind that it had neither seen nor heard the witnesses and had to pay due regard to the trial judges' findings and their reasons therefor; (3) the finding of the trial judge could not be said to have been reached against the weight of the evidence.

Ng Soo Hin v Public Prosecutor [1994] 1 SLR 105 Court of Criminal Appeal, Singapore (LP Thean JA, Goh Joon Seng and Warren LH Khoo JJ).

A was a national serviceman in the army. He was disciplined for misconduct by the company sergeant major (CSM). A felt that he was being victimized by the CSM. He accordingly armed himself with an assault rifle and ammunition, and went to confront the CSM. After a short confrontation, A shot and killed the CSM. He then ran away but was apprehended. He attempted to shoot himself but failed. A was charged with murder. Diminished responsibility was pleaded as a defence. The consultant psychiatrist who examined A in the remand prison was of the opinion that he was suffering from psychotic depression with a personality disorder at the time of the killing. Another psychiatric consultant, however, concluded that A was not suffering from any mental illness which would substantially impair his mental responsibility for his acts.

Held, convicting A of murder: having considered the evidence of A's behaviour both before and after the killing, the trial judges were not convinced that A was suffering from psychotic depression at the material time. The defence of diminished responsibility was rejected and A was accordingly convicted of murder.

Public Prosecutor v Chia Chee Yeen [1990] 3 MLJ 455 High Court, Singapore (Coomaraswamy J and Chao Hick Tin JC).

[Annotation: Affirmed on appeal. See [1991] 3 MLJ 397.]

The accused was charged with the murders of Foo Chin Chin ('Ah Chun') and Ng Lee Kheng ('Ah May'). The prosecution proceeded with only the first charge. The defence did not challenge the prosecution as its defence was one of diminished responsibility. The defence sought, however, that evidence of the second murder be led as it had a bearing on the defence. On 24 March 1990, the accused was seen dragging Ah Chun into some bushes at the East Coast Park. Ah Chun was heard pleading with the accused to let her go. Soon after, the accused was seen emerging from the bushes and was then chased by some members of the public. The body of Ah Chun was found lying supine and motionless. Her blouse was soaked with blood. On 27 March, the accused led the police to the East Coast Park where the knife used to stab Ah Chun was recovered. The forensic pathologist testified that he found 14 stab wounds on Ah Chun's body. Two of the wounds were fatal. They entered the chest and penetrated the lobe of the right lung. Both lungs had collapsed. There was a heavy loss of blood. The cause of death was haemorrhage due to stab wounds in the right lung. Death would have occurred between five and ten minutes. The accused's statement to the police was admitted into evidence. The accused confessed that he stabbed Ah Chun because he found her behaviour intolerable. He claimed that Ah Chun had ignored him and spoken to other men and that this upset him. He claimed that when he complained to her about this, she was insensitive and raised her voice. In his evidence-in-chief, the accused admitted that he stabbed Ah Chun because he was jealous of her relationships with other men. He also admitted that he had killed Ah May by pushing her off the 15th floor of Block 37 Circuit Road. The accused called a consultant psychiatrist to give evidence on his behalf. This psychiatrist testified that at the time of the stabbing, the accused was suffering from borderline personality disorder, brief reactive psychosis and acute idiosyncratic intoxication. He was of the opinion that the accused was suffering from such an abnormality of the mind that had substantially impaired his mental responsibility when he killed Ah Chun. The prosecution called a government psychiatrist who testified that there was no evidence that the accused was suffering from any mental illness or personality disorder. He was of the opinion that at the material time, the accused was in bereavement over his father's death. Moreover, it was in a fit of jealousy, from a passion of unrequited love that the accused had brutally stabbed Ah Chun to death.

Held, convicting the accused of murder: (1) it is settled law that the burden of proving diminished responsibility, on a balance of probabilities, is on the accused. This is a question of fact for decision by the trial judge, after a careful consideration of all evidence, including the evidence of medical experts; (2) on a review of the medical evidence, the court found that the evidence of the government psychiatrist was to be preferred to that of the consultant. There was scarce evidence that the accused had suffered from any mental illness. It may be that the killing of Ah May and then of Ah Chun on the same day would suggest to some laymen on a cursory view that there was something wrong with the accused, but on a careful review of the facts, the court found that the accused did not suffer from any mental illness; (3) the accused had admitted in evidence that he killed Ah Chun because he was jealous and he could not stand the idea that she was with some other men. It was clear that he had killed her out of jealousy because she rejected him for someone else and would not reconcile with him.

Public Prosecutor v Ng Soo Hin Criminal Case No 4 of 1992 High Court, Singapore (TS Sinnathuray J).

The appellant was tried and convicted of the double murder of a maid and the son of her employer. Della, a female Filipino, was at all material times, prior to her death, working as a maid and living at Gangsa Road. Della's employers were Wong Sing Kiong ('Wong') and his wife, Oon Lay Khim ('Oon') and they had a four-year-old son, Nicholas. The appellant at the material time was also working as a maid at Cardiff Grove. On 4 May 1992 at about 1.30pm, when Wong and Oon returned home to their flat, they found their son, Nicholas, lying on the bathroom floor with his head inside a pail of water. They also saw their maid, Della, lying on the bathroom floor with a red elastic cord wound around her neck. At the trial, Dr Wee Keng Poh, the forensic pathologist, testified that their deaths occurred at about 10am that day. There were four external injuries on the body of Della, the most significant being the tight ligature of the elastic cord (originally a luggage fastener) around her upper neck. Dr Wee testified that Della had died from asphyxia due to strangulation and that the ligature could not have been self-inflicted. As to Nicholas, Dr Wee certified that he had died from asphyxia due to drowning and that the drowning in question had been caused by the immersion of Nicholas' face in the water sufficient to cover his nostrils and mouth. He was further of the opinion that it would have taken approximately five minutes of sustained immersion for death to occur. It was not in dispute that the appellant visited Della on 4 May and had strangled her and drowned Nicholas. The appellant also admitted that she had stolen some jewellery and a camera from the house. The appellant claimed that Della had suddenly seemed small and tiny. The appellant then felt that she wanted to strangle Della. She wrapped the string around Della's neck and pulled it as tight as she could. Della did not struggle. The appellant then saw Nicholas inside the bathroom playing with water. Again she felt that Nicholas looked small and tiny. So she pushed him into a pail with water and held him by the head. After that she walked out of the apartment and took all the belongings that were on the dinning room table. The appellant claimed that she was not herself. The appellant called the evidence of a forensic psychiatrist, who testified that at the time of the murders the appellant was suffering from a partial complex seizure due to temporal lobe epilepsy. In rebuttal, the prosecution adduced evidence from a consultant psychiatrist who testified that the appellant suffered only mild migraine and that this was the condition which had afflicted her at the time she committed the offences. At the conclusion of the hearing, the learned trial judge accepted the evidence of the prosecution psychiatrist. He convicted the appellant.

Held, dismissing the appeal: (1) that in giving evidence she was 'nimble in thought and quick to answer questions, and that she was a wilful and cunning person'. The trial judge was entitled to take into consideration such and other factual matters in deciding the issue of diminished responsibility; (2) it has to be shown not merely that the trial judge erred in preferring the psychiatric evidence adduced by the prosecution to that led by the defence, but also that he erred in disbelieving the appellant's testimony regarding the symptoms she allegedly manifested on 4 May 1991; (3) the trial judge found that the appellant was not a witness of truth; that she was not an unintelligent person;bearing in mind the advantage the learned judge had in being able to observe the appellant's demeanour over the course of the five-day trial, there was no reason to differ from his finding in this respect.

Contemplacion v Public Prosecutor [1994] 3 SLR 834 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The appellant was convicted in the High Court on two charges of murder. His defence was one of grave and sudden provocation under exception 1 to s 300 of the Penal Code (Cap 224), in that the deceased had challenged him to a fight, verbally abused him and one of them had kicked and pushed him. The trial judges rejected the defence, finding that a reasonable man belonging to the same class of society as the appellant would not have been so provoked as to lose his self-control as the appellant claimed he had. They also held that the appellant had acted out of proportion to the effect of the abusive words which they found had been uttered. The appellant appealed, contending that the trial judges had erred in their findings, and that the conviction was against the weight of the evidence.

Held, dismissing the appeal: (1) the learned trial judges appeared to have ignored the evidence of the three prosecution witnesses who had stated that the appellant was in a rage, had lost control, and was like a wild man running amok. Otherwise, they would have set it out in their judgment as they had set out the other matters. Had they given sufficient consideration to such other evidence, they might have come to the view on a balance of probabilities that indeed the appellant had lost control of himself when he stabbed the two deceased; (2) following the case of Vijayan v Public Prosecutor, it is relevant to look at and compare the act of provocation with the act of retaliation in deciding whether the act of provocation would deprive a reasonable man of self-control and induce him to do the act that caused the death of the deceased. Taking the defence version of what happened on its face, any provocation which the appellant might have been subjected to by no means justified the infliction of the brutal injuries on a vital part of the body of each of the deceased with a weapon as deadly as the knife that was used. The retaliation of the appellant was entirely out of proportion to the alleged acts of provocation; (3) in ascertaining the sufficiency of provocation, one looks at the effect of the provocative act on the ordinary reasonable man belonging to the same class of society as the accused. The test is primarily an objective test. However, the characteristic of the accused may be a factor to be taken into consideration in a particular case. Verbal provocation may be more offensive when applied to a particular person to whom it is addressed. The class of society to which the accused belongs, like any 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 the 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. The matter should not be reduced to one of mere formula. In the instant case, it is not clear what relevance the 'class' characteristic had to the question of provocation. The point was not raised in the proceedings nor was any point made that any such characteristic of the accused increased his susceptibilities to the provocation addressed to him; (4) the remarks of the trial judges that 'as society advances, it requires and recognizes a greater degree of tolerance and self-control against common place insults and minor physical assaults' could have been more happily worded. They were, however, not irrelevant nor highly prejudicial to the accused but could be understood as no more than laying down an objective standard of reasonableness of contemporary society.

Ithinin bin Kamari v Public Prosecutor [1993] 2 SLR 245 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chao Hick Tin and Warren LH Khoo JJ).

The appellant was convicted of the murder of one Ng Keng Hua (the deceased) on 27 February 1991. The prosecution evidence was that the appellant and two others planned to rob the deceased at his home at Lorong 8 Geylang. On the day in question, the appellant and his accomplices entered the deceased's home and encountered the deceased and his family. The appellant was armed with a large knife at the time of the incident. One of his accomplices was armed with a small knife. In the course of the robbery the deceased and the appellant struggled and the deceased was stabbed. The forensic evidence revealed that the deceased died of massive loss of blood due to stab wounds in the chest. The pathologist testified that there were two fatal stab wounds. The first wound pierced the right ventricle of the heart and was inflicted with the blunt edge of the knife facing skywards. Moderate force was required to cause this wound. The second fatal wound penetrated the chest wall and cut through two ribs before entering the lungs. Moderate force was required. This wound was consistent with having been caused by a small knife. In his statements to the police the appellant admitted that he went to the deceased's home to commit robbery. He also admitted that he was armed with the small knife. In his testimony in court, the appellant claimed that he was armed with the large knife. He also claimed that in the struggle with the deceased he had been hit on the back by one of the other occupants of the house as a result of which he fell forward against the deceased and claimed that might have been the time that the stab wound was caused. The trial judge disbelieved his version of the evidence and held that the appellant's version that he had the bigger knife was conceived after he heard the pathologist's evidence that the fatal wounds were caused by the smaller knife.

Held, dismissing the appeal: (1) the appellant's evidence as to the manner in which the deceased was probably stabbed was incredible. It was not accepted by the trial judge; (2) there was no dispute that the appellant and his accomplice went to rob the deceased, and that each of them were armed with a knife. Neither was there any dispute that the appellant stabbed the deceased. On the evidence it was difficult to see how it was possible for the injuries to be inflicted on the deceased in the manner described by the appellant. The trial judge was amply justified in reaching the conclusion that the appellant inflicted the injuries on the deceased and that the injuries were not caused accidentally or unintentionally; (3) (obiter) in the circumstances of this case, plain common sense dictated that there could be no question at all of the appellant and his accomplice or either of them exercising 'in good faith' any right of 'private defence' as against the deceased and exceeding 'the power given to him by law', thereby causing the death of the deceased. Nor could there be any question of a 'sudden fight in the heat of passion upon a sudden quarrel' between the deceased on the one hand and the appellant and his accomplice on the other.

Tan Bee Hock v Public Prosecutor Criminal Appeal No 24 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant and Chia Joo Hock (the deceased) were colleagues at Seiko Motor Services. On 15 November 1989, the appellant and the deceased quarrelled at work and had to be separated by their supervisor. The deceased was heard to tell the appellant that if they fought the deceased would surely win. Later the appellant and the deceased quarrelled again and exchanged blows. The appellant then poured a tin of thinner over the deceased and set fire to him. The body of the deceased was found to be burnt and the cause of death was extensive and severe burns. The appellant was charged and tried for the murder of the deceased. In his defence, the appellant testified that he thought that the deceased was reaching for an iron rod. He claimed that he then poured some thinner on the deceased and lit it to protect himself. When he realized what he had done, he tried to put out the fire by pouring water on the deceased. Unfortunately he mistakenly poured a tin of thinner over the deceased causing a fire ball to erupt on the deceased's body. The trial judge disbelieved the appellant's version and convicted him. He appealed.

Held, dismissing the appeal: (1) an appellate court would not disturb the findings of fact unless they have been clearly reached against the weight of evidence. In examining the evidence, it will always bear in mind that it has not had the benefit of seeing or hearing the witnesses; (2) in the present case the trial judge was entitled to find that the appellant was not exercising the right of private defence. Water in that workshop was kept in pails. If the appellant was stunned by what he had done and wanted to undo the damage, his instinctive reaction would surely have been to go for a pail, not a tin; (3) it was plain that the trial judge was entitled to come to the conclusions he arrived at.

Lum Weng Kay v Public Prosecutor Criminal Appeal No 33 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with the murder of a transvestite at Queens Street. The accomplice who pleaded guilty to a reduced charge of robbery gave evidence for the prosecution. He testified that the accused and he had confronted the deceased in an attempt to recover a gold chain which they believed the deceased had stolen from a friend. The deceased had then produced a knife and threatened the accused who kicked the deceased in the chest. The deceased fell to the ground and dropped the knife. The accused then picked up the knife and stabbed the deceased once. When the accomplice saw the accused stab the deceased, he took flight. The forensic pathologist gave evidence that five stab wounds were found on the body of the deceased, two of which were fatal. The accused's statements to the police were admitted in evidence after a trial-within-a-trial. In those statements, the accused claimed that he stabbed the deceased because the deceased had abused him verbally. When called upon to give his defence, the accused claimed that he had stabbed the deceased in self-defence. He claimed that some of the stab wounds were accidentally caused in the course of the struggle.

Held, convicting the accused: (1) the fatal stab wounds, according to the pathologist, required at least moderate force and a definite thrusting action. The testimony of the accomplice established conclusively that the injuries found on the deceased were caused by the accused. Having regard to the injuries inflicted, there could be no doubt that the accused caused those injuries wilfully and were sufficient in the ordinary course of nature to cause death; (2) where an accused claims the benefit of exception 1 to s 300 of the Penal Code (Cap 224), the test to be applied is whether the act or acts alleged to constitute provocation had deprived a reasonable man of self-control and induced him to do the act which caused the death of the deceased. There was evidence that the deceased uttered some abusive words and took out a knife. However, the use of the knife on the deceased and the severe injuries inflicted on him, in particular the two fatal wounds on the vital parts of the body were entirely out of proportion to the provocation offered; (3) to avail himself of the defence of sudden fight, the accused would have to satisfy the court that there was a sudden fight, that there was an absence of premeditation on his part and that the accused did not take undue advantage or commit any unusual or cruel act. The accused, however, did not have to resort to the use of a knife or at least, he could have stopped after the first stab; (4) to rely on private defence, the accused must prove by either independent evidence or surrounding circumstances that what he did was in the exercise of the right of self-defence. There was no imminent danger to the accused at the material time. There was no danger or apprehension of any grievous bodily injury to him after he had kicked the deceased and deprived the deceased of the knife. There was no danger either actual or perceived. In fact, the deceased was at the receiving end, being attacked by the accused and the accomplice. There was no factual basis to justify the defence under exception 2 of s 300.

Public Prosecutor v Soosay Criminal Case No 54 of 1991 High Court, Singapore (Rubin JC).

The accused was charged with the murder of one Ambalagan s/o Rathanam. There were several eye witnesses to the incident. The prosecution evidence revealed that on 17 December 1990 at about 8pm, the deceased and the accused were at a coffeeshop at Serangoon North Avenue with other friends. Suddenly, the deceased and the accused walked away from the table. Their friends followed. They walked towards a nearby PUB sub-station. The accused and the deceased suddenly began to fight, and the accused was seen holding a knife and stabbing the deceased. The eye witnesses were unable to say who first produced the knife. The forensic evidence revealed that the cause of death was haemorrhage due to multiple stab wounds. The accused's cautioned statement was admitted in evidence after a trial-within-a-trial. In his statement, the accused admitted to having quarrelled with the deceased and stabbing the deceased with a knife that the accused carried in his right rear pocket. When called upon to enter his defence, the accused claimed that the deceased had insulted his mother and that was why he fought with the deceased. In the course of the fight, it was the deceased who produced the knife. The accused testified that he managed to wrench the knife from the deceased's grasp. He was still angry with the deceased and in a state of fury, stabbed the deceased. The accused retracted his confession. He claimed that he was in a state of confusion when he made the cautioned statement. The accused relied on the defence of grave and sudden provocation, sudden fight and private defence.

Held, convicting the accused of murder: (1) it is settled law that a person may be convicted on his retracted confession; (2) that the deceased demeaned the accused and vilified his mother; (3) to rely on the defence of grave and sudden provocation, the accused has to show that the deceased was the person who gave the provocation and that the said provocation was grave and sudden. In addition, the accused must show that the act of retaliation was in reasonable proportion to the provocation offered and that he was deprived of his power of self-control and committed the offence during the continuance of such loss of self-control. If the acts of provocation and retaliation more or less balanced each other, the accused would be entitled to the benefit of this defence. But if the act of retaliation was entirely out of proportion to the provocation offered, the plea of grave and sudden provocation would fail. The medical evidence revealed that there were 15 stab wounds on the body of the deceased. The act of the accused on the deceased who was unarmed at the time of the attack was totally unjustified. Even if the accused's version that it was the deceased who produced the knife was accepted, the danger to his body had ceased the moment he had admittedly disarmed the deceased of the offending weapon. He could have resorted to many things at that stage, yet, he chose to stab the deceased and did so many times. It was a dastardly attack on the deceased and clearly out of proportion to the so-called provocation, if any, offered by the deceased; (4) to invoke the defence of sudden fight, the accused would have to show that there was absence of premeditation and that he did not take advantage or commit any unusual or cruel act. The accused had taken undue advantage when he attacked the deceased with the knife. He had also acted in a cruel and unusual manner when he stabbed the deceased several times; (5) the court disbelieved the accused's version of what took place;in order to rely on private defence, the accused must show that there was reasonable apprehension of danger to the body and that there was no alternative to the use of force. There was no imminent danger to the body of the accused especially when he had already disarmed the deceased. The danger of apprehension of death or any grievous bodily injury should have ceased at the time he retrieved the knife from the deceased. The action by the accused on the evening in question was vengeful and without any regard to the life of the deceased. The attack on the deceased was carried out with the intention of doing more harm than was necessary.

Public Prosecutor v Nadunjalian Criminal Case No 51 of 1991 High Court, Singapore (Rubin JC).

The accused was charged with murdering one Peter Martin on 20 December 1991 at around 1.35am. The prosecution adduced evidence that the accused had been confronted by one Ravichandran a few days before 20 December 1991. The deceased was seen standing near Ravichandran. The accused was accosted again by Ravichandran a day after. The accused and his friends decided to look for Ravichandran on 20 December 1991. The accused was armed with a knife. The group of ten youths including the accused spotted Ravichandran. However, he managed to flee. The accused and his friends then spotted the deceased. The accused was asked by his friends whether the deceased was with Ravichandran when he was insulted. On giving a affirmative reply, the accused's friends assaulted the deceased. A group of Chinese men testified that they saw a group of Indians chasing an Indian youth. Upon seeing this, they shouted at them to stop fighting. The accused's friends then rushed towards the group of Chinese men and assaulted them. The accused, at this juncture, took out his knife and stabbed the deceased who later succumbed to the injuries. The long statement which contained most of the details was admitted as part of the prosecution's case after a trial -within-a-trial. The accused gave evidence that he had the knife with him for self-protection as he was afraid of Ravichandran whom he wanted to meet. He stated that some of his friends had assaulted the deceased when he affirmed that the deceased was in the company of Ravichandran on an earlier occasion when he was insulted. Thereafter, the deceased punched the accused and told him that he was a bastard. The accused was thrown back and knocked against the pillar. The deceased came towards him again and at this point of time, the accused took out his knife and stabbed the deceased. The accused also testified that he has had no disputes with the deceased and did not intend to hurt him. The pathologist gave evidence that the injury was sufficient in the ordinary course of nature to cause death. The accused's friend, one Ansari, also gave evidence that he only witnessed the deceased punching the accused.

Held, convicting the accused: (1) the evidence of the accused that he was punched by the deceased and that the stabbing was pursuant to this incident could not be believed in view of the evidence of independent eye witnesses who testified that they saw a group of Indians chasing a youth; (2) Ansari's evidence was partial and selective, he was unworthy of any credit; (3) the accused had confessed in his long statement that he stabbed the deceased because he thought that he belonged to Ravichandran's group; (4) the retracted confession was still admissible and the court may act on it; (5) the injuries need to be intentional as opposed to being unintentional or accidental to substantiate limb (c) of s 300 of the Penal Code; (6) the injury inflicted by the accused was deliberate and not accidental; (7) sudden fight is an exception to the charge of murder but it must be done without premeditation in the heat of passion and without the prisoner taking undue advantage or acting in a cruel manner; (8) the burden of proving the exception is with the accused; (9) the accused acted in a most cruel manner on the night in question even taking into account the facts alleged that he was punched and abused by the deceased; (10) normally, a person armed with a deadly weapon fighting another who is unarmed would be considered to take undue advantage and not be entitled to the benefit of exception 4 to s 300 of the Penal Code; (11) the accused had taken undue advantage of the deceased and in the premises, exception 4 to s 300 did not apply; (12) exception 1 to s 300 requires the provocation to be grave and sudden and the act of retaliation must be in reasonable proportion to the provocation offered; (13) the accused person's act of stabbing the deceased with a knife was entirely out of proportion to the alleged acts of provocation; (14) exception 2 which relates to self-defence was also not available to the accused as he had other courses of action available to him when the deceased allegedly punched him; (15) the defence of intoxication under s 85 would have to be proven by the accused on a balance of probabilities and this he failed to do so; (16) the accused had intentionally inflicted the injuries on the deceased which resulted in his death.

Public Prosecutor v Sivakumar Criminal Case No 4 1993 High Court, Singapore (Rubin JC).

On 30 November 1992, a white Nissan Coupe was found badly burnt at Lorong Lada Hitam. The police discovered some charred skeletal remains in the boot of the car. The remains were later identified to be those of the deceased. On the same day the police were summoned to the Tan Tock Seng Hospital to investigate blood stains on the wall of an office. No foul play was suspected but photographs of the room were taken. On 6 January 1993 the appellant was arrested at Tan Tock Seng Hospital where he worked as a security officer. Shortly after his arrest the appellant made a statement to the police the voluntariness of which was not disputed. In the statement the appellant admitted that his friend Asokan had arranged to meet the deceased at Tan Tock Seng Hospital on 29 November 1992. Asokan had brought a knife and an axe to the place where the meeting was to take place. During the meeting Asokan and the deceased had quarrelled over a loan. Suddenly Asokan took out the axe and struck the deceased on the neck. Asokan hit the deceased several times more. According to the appellant Asokan then forced him to stab the deceased in the stomach with the knife. Both of them then searched the deceased and relieved him of his valuables. They then carried the body to the Nissan Coupe which the deceased had driven to the hospital. The body was placed in the boot and Asokan drove the car away. That was the last that the appellant had seen of the deceased or the car. The appellant led the police to the room where the meeting had taken place; it turned out to be the room where the blood stains on the wall had earlier been discovered. The appellant was charged with the murder of the deceased. At the trial the forensic pathologist testified that the death of the deceased occurred prior to the burning of the body in the car. He also testified that from the photographs produced, the blood patterns on the wall in the room where the deceased was attacked indicated that they had been caused by arterial bleeding. Death would have ensued within five minutes. Asokan did not give evidence as he was serving sentence in Malaysia. The appellant gave evidence in his own defence. He testified that Asokan told him that the deceased was a secret society member and that he would come armed, and that the axe and the knife were necessary for their own defence. He maintained that he had no prior knowledge of Asokan's intentions and there was no plan to cause harm to the deceased. The trial judge found that there was a common intention to commit murder and convicted the appellant. He appealed. He submitted that the trial judge had not considered the explanations he had given for being present in the room.

Held, dismissing the appeal: (1) it was clear that the trial judge did not accept the exculpatory parts of the evidence of the appellant. The trial judge had seen and heard the appellant and found him to be untruthful and disbelieved him. The trial judge as the decider of facts having considered the whole of the evidence was justified in disbelieving him; (2) the exculpatory parts of the appellant's evidence with regard to the part he played in the attack on the deceased were also simply ludicrous and defied belief. The meeting took place in a surreptitious manner on a Sunday afternoon in an empty and unoccupied part of a hospital. On seeing the deceased being attacked without apparent cause, there was no reason why the appellant could not have intervened and prevented the deceased from being further attacked. The appellant then helped to search the deceased and relieve him of his valuables. Such conduct was wholly inconsistent with that of an innocent, frightened bystander; (3) the trial judge correctly applied the law of common intention to the facts proved before him. There was no direct evidence of any common intention, but like in most cases, the common intention here was a matter of inference from the surrounding circumstances and the conduct of the appellant before, during and after the killing of the deceased. There was ample evidence of primary facts to found an inference of common intention to kill the deceased.

Maniam Rathinswamy v Public Prosecutor [1994] 2 SLR 506 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Two accused persons were charged with the murder of an elderly woman under s 302 of the Penal Code (Cap 224) read with s 34 of the said section. The prosecution adduced evidence that the accused persons went to the house of the deceased and overpowered her. Both the accused persons used a raffia string to strangle the deceased and robbed her of jewellery items. The prosecution established that the accused persons had pawned some of the items belonging to the deceased. In their statements which were admitted as part of the prosecution's case without any objection as to the issue of voluntariness, both the accused persons admitted to commission of robbery but insisted that they tied the deceased to prevent her from shouting and that she was alive when the couple left with the loot. The second accused also insisted during cross-examination that certain parts of his statement resulted from suggestions of the recording officer. The pathologist had testified that the cause of death was strangulation and that it could not have been accidental.

Held, convicting both accused: (1) the evidence adduced by the prosecution established the charges beyond reasonable doubt; (2) the injury caused to the deceased was an intentional one and not accidental; (3) it was sufficient in the ordinary course of nature to result in death; (4) the actions of the accused clearly indicated meeting of minds and the act which resulted in the death of the deceased was done in furtherance of the common intention of the two; (5) the second accused's contention that answers in the statement were suggestions of the recording officer could not be substantiated by the evidence adduced; (6) as a general rule, an accused person will not be allowed to raise the issue of voluntariness when no such objections had been raised during admission of the statement but there may be exceptional circumstances which may warrant this.

Public Prosecutor v Yacob & Anor Criminal Case No 15 of 1992 High Court, Singapore (Amarjeet Singh JC).

On 22 November 1990, the body of Tan Chin Liong was found at the Singapore Polytechnic were he worked as a lecturer. The police were summoned and they followed a trail of blood to a toilet nearby where the accused was arrested. There were blood stains in the immediate vicinity of the body which were analyzed and found to be that of the accused and the deceased. The police also recovered a bloodstained knife from the bag of the accused. The deceased's driving licence was also found in the possession of the accused. The accused was tried for the murder of the deceased. At the trial, the forensic pathologist testified that he found four stab wounds on the body of the deceased. The fatal wound was a chest wound that had cut into the anterior surface of the heart and caused massive haemorrhage. There was another stab wound to the chest which had pierced the right lung. The accused's cautioned and long statements were admitted in evidence without objection. In the cautioned statement, the accused admitted that he had planned to rob the deceased and had bought a knife for that purpose. He stabbed the deceased once in the stomach to incapacitate him but as the deceased continued to struggle he stabbed him in the chest. In his defence, the accused testified that he had deserted from National Service and was short of funds. He, therefore, decided to rob the deceased and bought the knife for that purpose. However, as he was unable to incapacitate the deceased, they struggled for about one to two minutes and then the deceased collapsed. He testified that he could not recall stabbing the deceased in the chest and that throughout the struggle the deceased was holding on to the knife.

Held, convicting the accused: (1) and (d) did the accused intentionally cause those bodily injuries. Issues (a) to (c) were all objective inquiries. The only subjective inquiry was issue (d). This inquiry must be approached in a broad-based and commonsense manner; (2) there was undisputed evidence that the accused had purchased a knife days before the killing. His intention was to use the knife to stab the deceased in the stomach and to rob him. The accused did, in fact, then ambush the deceased and stab him in the stomach; (3) it was settled law that when considering s 300(c) of the Penal Code (Cap 224), four issues must be decided: (a) what were the bodily injuries that were present; (b) what were the nature of those injuries; (c) whether those injuries were sufficient in the ordinary course of nature to cause death;the court disbelieved the accused's testimony that during the struggle the deceased had held onto the blade of the knife. This was not borne out from the injuries found on the deceased. There were no injuries on either of the palms of the deceased. The court found that the deceased had caused both stab wounds found on the deceased's chest.

Public Prosecutor v Lee Teck Seng Criminal Case No 55 of 1991 High Court Singapore (TS Sinnathuray J).

The deceased was a taxi driver. On 4 May 1988, the deceased was found at Toh Tuck Avenue with stab wounds in his neck and cheek. He was taken to hospital where the right internal jugular vein was found to be cut. Five wounds were observed on the deceased's neck. The bleeding from the injuries caused the tissues around the airway to swell and block the airway. The deceased was diagnosed to be brain dead on 4 May 1988 and he died on 12 May 1988. The cause of death was brain death following stab wounds in the neck. Four suspects were originally arrested, but only the accused was tried for the murder of the deceased. The other three suspects pleaded guilty to robbery. At trial, the accused's cautioned statement was admitted in evidence after a voire dire. In the statement the accused admitted that he had participated in the robbing of the deceased with the other three suspects. He stated that he used a screwdriver during the robbery and when the deceased struggled he stabbed the deceased in the neck five or six times. The accused gave evidence in his own defence and testified that it was not his idea to rob the deceased but he went along. He further testified that in the course of the robbery the deceased grabbed hold of him and he stabbed the deceased with the screwdriver. He stated, however, that he did not know where he stabbed the deceased. The defence called one of the suspects, Ganesan, to give evidence on behalf of the accused. Ganesan testified that he did not see the accused armed with a screwdriver nor did he see the accused stab the deceased. The prosecution sought to impeach Ganesan's credit with his cautioned statement taken in the course of the murder investigation. The statement was admitted into evidence after a voire dire after which his credit was impeached.

Held, convicting the accused: (1) when the statement is sought to be admitted to impeach the maker's credit when he appears as a witness, its admissibility would be founded on s 122(2) of the Criminal Procedure Code (Cap 68) ('the Code'). The proviso to s 122(6) of the Code regarding statements tainted by inducement, threat or promise must also apply to statements sought to be admitted under s 122(2); (2) when a witness's credit was impeached, it meant that some part of his evidence departed materially from something else that he had said before and he did not have a good explanation for it. The task of the court was to determine the extent to which it was damaged. The fact that a witness lied in one part of his evidence did not necessarily mean that he could not be believed in everything else he said; (3) no weight was also placed on the cautioned statement of Ganesan which was admitted in evidence. Section 147(3) of the Evidence Act (Cap 97) represented a radical change to the evidential character of a statement admitted for impeaching credibility. The weight to be attached to such a statement was left to the discretion of the court and should be determined in the same way as the weight of the witness' evidence. No reliance was placed on the cautioned statement because the court had doubts over Ganesan's credibility in his statement as over his evidence; (4) by his own admission the accused had stabbed the deceased repeatedly in the neck after he had come out of the taxi. The forensic evidence was that the injury to the jugular vein was sufficient in the ordinary course of nature to cause death. It was sufficient for the prosecution to prove that the accused intended to cause stab wounds to the deceased's neck and that the stab wounds caused were in fact sufficient to cause death in the ordinary course of nature. The accused must have known that the screwdriver would penetrate the skin and cause internal injuries to the neck, a vital part of the body, as opposed to superficial injuries or temporary pain. It was no defence for the accused to say that he did not intend or anticipate the injury to the jugular vein.

Public Prosecutor v Murgan Criminal Case No 48 of 1990 High Court, Singapore (Kan Ting Chiu JC).

On 2 October 1989, the deceased left home for school, Mayflower Secondary School, in her regular school bus which was driven by the accused. She did not return home at the usual time of 1.20pm. At 7.15pm the deceased's father made a missing persons report. Attempts to trace the deceased were futile. She was last seen at about 1pm on 2 October 1989 in a bus resembling the accused's outside her school. On 14 October 1989 the decomposing body of the deceased was recovered at a vacant plot of land off Yishun Avenue 2 by NS men on exercise. The accused was arrested and led the police to the scene at the vacant plot of land where the body was found. He also led the police to the seaside near Jalan Ketua where the school uniform, books and a ring belonging to the deceased were recovered. The accused was charged with the murder of the deceased. At his trial evidence was led from some of the deceased's school friends who testified that the deceased had complained that the accused had expressed an interest in the deceased and that the deceased was disgusted by his attentions. The forensic pathologist testified that owing to the advanced stage of decomposition of the body with parts missing, it was not possible to determine the cause of death exactly. He did testify that there was evidence of trauma to the body in the form of straining and fracture of the bones. The pathologist agreed, however, that the trauma could have been caused by a fall. The prosecution also sought to admit in evidence two oral statements and a written statement made by the accused to the investigating officer. The accused objected to the admission of the statement on the ground that he had been oppressed, assaulted and induced to make the statements. At the end of the voire dire the trial judge found that the prosecution had not proved the statements beyond a reasonable doubt and declined to admit them in evidence.

Held, acquitting the accused without calling his defence: (1) the accused had been interrogated for some 52 hours over four days prior to the recording of the statements. His photograph had been released to the press and he had been detained for over six days prior to the recording of the statement. The medical reports also showed that the accused had sustained injuries to the neck and chest. Although the doctors had testified that the injuries could have been self-inflicted, they could not rule out the use of force. The prosecution had not discharged the heavy burden of proof placed on them of proving the statement beyond a reasonable doubt; (2) in order for the accused's defence to be called on circumstantial evidence it must be such evidence as to be of a conclusive nature and tendency and should exclude every hypothesis but that proposed to be proved by the prosecution; (3) no evidence was adduced as to how the trauma might have been applied to the body of the deceased. The pathologist had opined that the trauma in respect of the anti-mortem injuries on the head of the deceased, apart from being caused by a blow, would be equally consistent with a fall and that the deceased was either hit by a hard object or hit on a hard object. In respect of injuries to the ribs, he further agreed that they could be due to a fall and were in fact suggestive of an accident. The prosecution had therefore failed to prove that the injury caused fell under any of the limbs (a)(d) of s 300 of the Penal Code (Cap 224).

Public Prosecutor v Oh Laye Koh [1994] 2 SLR 385 High Court, Singapore (Amarjeet JC).

A was tried and convicted by the High Court of two judges of having committed murder of a old woman in the course of a robbery. At the appeal, A argued that it was unclear whether the trial judges found A guilty under limb (b) or (c) of s 300 of the Penal Code. A also claimed that the one of the witnesses against him was prejudiced against him. It was also said that the trial judges had failed to find, as they were required to under limb (c) of s 300 of the Penal Code, that A had inflicted a particular injury which in the ordinary course of nature would cause death.

Held, dismissing the appeal: the evidence was sufficient to establish murder under either limb of s 300. It was for the trial judges to consider the evidence and they had accepted the evidence of the prosecution witnesses. The appeal was therefore dismissed.

Teo Boon Ann v Public Prosecutor [1989] 2 MLJ 321 Court of Criminal Appeal, Singapore (TS Sinnathuray, Lai Kew Chai and LP Thean JJ).

This was an appeal against the conviction of the appellant for murder. At the trial and at the close of the prosecution case, the appellant was given the usual warning: 'You may give evidence on oath in which case you have to do so from the witness box where you may be cross-examined like any witness, or you may make a statement from the dock to the jury in which case you cannot be cross-examined by anyone, or you may remain silent'. The appellant elected to make a statement from the dock. One of the points raised on appeal was that as there was no provision in the Criminal Procedure Code for an accused to make an unsworn statement from the dock, it was an irregularity, which could be cured only by a retrial, for the trial judge to tell the appellant that he had the choice of whether to give evidence on oath from the witness box or to make an unsworn statement from the dock. It was also alleged that this was prejudicial to the appellant as having offered the appellant the right to make the unsworn statement from the dock, the trial judge in his summing up told the jury that the unsworn statement was practically worthless as it was not on oath and as the appellant could not be cross-examined on it. Submissions were also made that the direction in this case was defective and in particular, that the learned trial judge had failed to give an adequate direction on the quantum of grave and sudden provocation, which was raised by the appellant in his statement from the dock. It was alleged that the trial judge had expressed his own views on whether there was provocation and that he had misdirected the jury on the question of proof required of an accused person.

Held, dismissing the appeal: (1) the right of an accused at his trial on a criminal charge to make an unsworn statement from the dock is not a procedural right but a substantive right and accordingly, does not depend on whether or not there is a specific provision for it in the Criminal Procedure Code; (2) and in this case, the direction of the trial judge on this point was perfectly proper and in no way prejudicial to the appellant; (3) a judge is entitled to express his own views, provided the jury are told at the same time that they are not bound by those views and are told they are not relieved thereby of arriving at their own conclusions and in this case, the summing up was not defective on this point as the judge repeatedly emphasized to the jury that they were not bound to accept his opinion or view on any issue of fact and that it was for them to decide; (4) it is proper for a judge in his summing up to remind the jury that a statement from the dock is not sworn evidence which can be the subject of cross-examination; they can attach to it such weight as they think fit and that they should take it into consideration in deciding whether the prosecution have proved their case;even assuming there was a misdirection, a reasonable jury properly directed on this point, would be left in no genuine doubt that the provocative conduct and acts of the deceased as related by the appellant in his statement from the dock could not amount to provocation under exception 1 of s 300 of the Penal Code.

Mohamed Salleh v Public Prosecutor [1969] 1 MLJ 104 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Choor Singh J).

A was charged with the murder of D. He admitted stabbing D but claimed that there was provocation. D had allegedly assaulted TAS, who was the father of A's 'sworn brother' and whom A treated as a 'foster father'. Upon hearing of the assault on TAS and TAS's sons, attacked D. During the fight, A stabbed D.

Held, convicting A: the defence of provocation failed because on the evidence, A did not lose his self-control on being provoked. He had the presence of mind to arm himself with a knife upon hearing of the assault on TAS. Moreover, at the time D was stabbed, he was struggling under the attack of four or five persons and did nothing which could be considered provocative to any ordinary reasonable person, taking into account A's age and the class of society from which he came. A was accordingly convicted of murder.

Public Prosecutor v Koh Swee Beng [1990] 3 MLJ 151 High Court, Singapore (Chan Sek Keong J and Tan Teow Yeow JC).

[Annotation: Affirmed on appeal. See [1991] 3 MLJ 401.]

See criminal law, para VII [59].

Public Prosecutor v Ong Teng Siew Criminal Case No 22 of 1996—High Court, Singapore (Amarjeet JC).

A engaged the help of four persons to cause hurt to V. In consequence of this conspiracy, formic acid was thrown at V, who later died from his injuries. A was charged with abetting his four accomplices to cause grievous hurt to V and was convicted. He was sentenced to ten years' imprisonment, the trial judge refusing to backdate the sentence to the date of his remand. A's four accomplices pleaded guilty to an offence under s 4 of the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65). A appealed on the ground that he did not have the intention to cause grievous hurt by means of a corrosive substance within s 326 of the Penal Code (Cap 224).

Held, dismissing the appeal: (1) it was reasonable for the trial judge to draw the inference that A knew that acid would be used. Although A had not specified the means to be adopted to cause the grievous hurt and had left it entirely to the discretion of the accomplices, what was done by the accomplices was within the scope of his instructions to cause grievous hurt to V so that V would be sent to hospital; (2) the fact that A was charged under a different Act from that of the accomplices was neither here nor there. It was the prerogative of the prosecution to decide which charge it would prefer; (3) even though A chose to remain silent when the defence was called, the fact was he pleaded not guilty as a result of which the prosecution had to prove its case. The credit given for a plea of guilty in sentencing did not apply to A; (4) the power of the court to backdate sentences of imprisonment was discretionary. The trial judge did not err in not giving A a discount on the custodial sentence. The sentence without taking into account the backdating was not manifestly excessive in the circumstances of the case.

Sinniah Pillay v Public Prosecutor [1992] 1 SLR 225 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chan Sek Keong and Chao Hick Tin JJ).

A1 had told one RR that his life had been made miserable by the victim and he wanted someone 'to break a hand or a leg' of the victim and to send him to hospital. Subsequently, RR secured the help of L to cause hurt to the victim. A1 gave L, through RR, S$2,000 to cause hurt to the victim. Al secured the help of A2, A3, A4, and A5 who arranged and executed an acid attack on the victim. On 14 July 1985, the victim died from his injuries. A2 to A5 were charged under s 4 of the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65). They pleaded guilty. A1 was charged with abetment to voluntarily causing grievous hurt. At the close of the prosecution case, A1 was called upon to enter his defence. He elected to remain silent.

Held, convicting A1 and sentencing him to ten years' imprisonment: (1) one set of facts could give rise to a number of different kinds of charges. The fact that the charges against A1 were different from that of A2 to A5 was of no significance; (2) even if it were true that A1 had wanted the assailants to cause a particular kind of hurt to the victim, to break the victim's hand or leg, the fact that the assailants caused some other kind of hurt did not exculpate A1 of the abetment of the offence. Clearly, the different act done by the assailants in causing grievous hurt to the victim was a probable consequence of the abetment and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment; (3) A1 had not intended that the victim should suffer merely a fracture of the hand or leg. What A1 wanted done was that the victim should suffer grievous hurt of some kind and that he should be hospitalized for the injury; (4) there was evidence that after the attack A1 did not disassociate himself from the deed of the assailants. Instead, on being satisfied that the assailants had caused grievous hurt to the victim, he paid them for it.

Public Prosecutor v Sinniah Pillay & Ors Criminal Case No 22 of 1986 High Court, Singapore (TS Sinnathuray J).

Koh Lee Beng & Anor v Public Prosecutor [1971] 1 MLJ 7 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Winslow JJ).

See CRIMINAL LAW, Vol 4, para 1605.

The first accused was charged with abetment of murder in that she conspired with the second and third accused to cause the death of the deceased. The second and third accused were charged with the murder of the deceased in furtherance of the common intention of them both. The second accused was the brother of the first accused. The prosecution led evidence to show that the first accused befriended the deceased sometime in 1987. Towards the end of 1988, their relationship turned sour and the first accused complained that the deceased was constantly pestering her. On 27 January 1989, all the accused met at the first accused's home and had dinner together. They then left the apartment together at about 7pm. On 28 January 1989, the body of the deceased was found at Chao Chu Kang Christian Cemetery. The cause of death was established to be massive haemorrhage due to stab wounds. Five fatal stab wounds were found on the body of the deceased, each capable in the ordinary course of nature to cause death. The forensic pathologist testified that the injuries were caused by a sharp object similar to a knife and that the injuries were consistent with the victim having been stabbed while in a seated position. The prosecution sought to admit into evidence the statements of the third accused, who objected to its admissibility on the ground that the statement contained no warning against self-incrimination and that it was not made voluntarily. After a trial-within-a-trial, the statement was admitted in evidence. In the statement, the first accused admitted that she planned to 'get rid' of the deceased and engaged the second and third accused to do this. The second accused admitted that the deceased was stabbed to death but that the deceased was stabbed by the third accused. The second accused claimed that his only involvement was in disposing of the body. However, he admitted that he was present at the time of the stabbing and that he knew that the deceased was to be stabbed. The third accused claimed that it was the second accused who stabbed the deceased. He claimed that he was only present at the time of the stabbing. However, he admitted to purchasing the knives that were used in the assault. All three accused were called upon to enter their defence and all three remained silent.

Held, convicting all three accused as charged: (1) the present s 121(2) of the Criminal Procedure Code (Cap 68) ('the CPC') has been retained since it was first enacted in the Criminal Procedure Code which, in essence, is based on the Indian Criminal Procedure Code. What is significant is that since the first enactment of the Criminal Procedure Code in Singapore, based on its Indian equivalent, until 1960 whilst the right against self-incrimination was recognized under the Criminal Procedure Code, it expressly forbade the administration of a caution to a person from whom a statement was intended to be taken as was the position in India which continues presently. Subsequent amendments to the Criminal Procedure Code introduced a caution and later, a notice of warning. It is therefore clear that the administration of the warning or caution is a creature of statute and no implication can be made under s 121(2) of the CPC that the right against self-incrimination provided therein must be a right of which the maker of a statement or an accused must be made aware of prior to his making of the statement. All the provision does is to give the accused a choice or an election to decline to make a statement that may incriminate him. The criterion is whether the accused objects to making the statement and if he does not, but voluntarily subjects himself to giving the statement, the statement is admissible as evidence in the proceedings against him. No warning or caution is necessary, therefore, to be administered to any person in terms of s 121(2) of the CPC informing him of his right against self-incrimination when he made a statement under s 121 of the CPC; (2) the evidence of an accused person in a joint trial is not evidence against the co-accused. However, a court is entitled to take into account the statement to lend assurance to the co-accused's statements to the police; (3) for s 34 of the Penal Code (Cap 224) to apply, it is sufficient that the prosecution prove that there was in existence a common intention between all the persons who committed the criminal act and that the act which constituted the offence charged was done in furtherance of that common intention; (4) the first accused had admitted that she wanted to 'get rid' of the deceased. The use of equivocal words and phrases by an accused in a confessional statement or admission is not necessarily evidence of guilt of the accused. Words or phrases used, however, have to be judged for their appropriate meaning in the context of and within the ambit of the evidence of the case. The words 'get rid' used by the first accused in her two statements could reasonably only have one meaning when seen in the light of the prosecution evidence. When the second accused told her of the death of the deceased, the first accused was not surprised. Instead, she readily understood the second accused's words that the deceased would not 'harass' her anymore as meaning she was dead; (5) although the second accused alleged that he did not personally stab the deceased, the charge was one involving common intention. In crimes involving common intention, it does not matter who actually struck the fatal blow to the deceased if the medical evidence shows that the injuries sustained by the deceased were deliberate and not accidental, and were sufficient in the ordinary course of nature to cause death. The primary facts set out showed that the intention of the second accused was to cause the death of the deceased with the third accused and that the common intention to kill the deceased was known to each other and shared by them when the deceased was stabbed by one or the other; (6) the third accused had blamed the second accused for the stabbing in his statements and contended that he was therefore not liable for the offence charged. The primary facts as set out succinctly showed that the second and third accused were acting in concert and were co-extensively liable; (7) it did not matter whether it was the second or third accused who stabbed the deceased. The stabbing was perpetrated, whether done by the second or the third accused, in furtherance of the common intention of them both.

Public Prosecutor v Chin Siew Noi & Ors Criminal Case No 6 of 1990 High Court, Singapore (Amarjeet Singh JC).

Tan Kheng Ann & Ors v Public Prosecutor [1965] 2 MLJ 108 Federal Court, Singapore (Thomson LP, Wee Chong Jin CJ (Singapore).

See CRIMINAL LAW, Vol 4, para 1442.

Three Thai construction workers were charged with having the common intention to murder the deceased. They were working together with the deceased, a Bangladeshi, at a Senoko site in Woodfield Road. On 9 June 1992, two other workers had a drinking and singing session in their room and the first and third accused were also part of the merrymaking. The deceased came to this room and told the Thais to reduce their noise level as he wanted to sleep. When he entered the room, he picked up a cigarette lighter to light a cigarette but when it did not work, he threw it down and left. The first and third accused were unhappy over his behaviour and complained to the second accused. The deceased was then lured out of his room by the first accused and attacked by all three accused persons. Fifteen groups of injuries were found on the deceased of which two were fatal. The injuries in the opinion of the pathologist could have been caused by square blocks of wood and by more than one person. The cautioned statements of all three accused persons admitted to hitting the deceased.

Held, convicting the accused: (1) all three accused persons hit the deceased at one stage or another. They all participated in the assault and each of them admitted having used a piece of wood to hit the deceased; (2) the three accused congregated that evening to assault the deceased as he had earlier disturbed the first accused while he was drinking and singing with his friends. All three accused were upset over this incident hence, the luring of the deceased by the first accused and the subsequent assault culminating in his death; (3) the statements of the accused persons were not given in vacuo but were admissions given in response to a warning under s 122(6) of the Criminal Procedure Code (Cap 68). Each suggested the inference that each accused person committed the offence and implicated each of them substantially. They were doubtless confessions; (4) common intention is a question of fact and it can be deduced from the way the accused persons acted or reacted even at the moment of the commisssion of the offence; (5) the evidence for the prosecution suggests that there was pre-concert and the accused persons acted in unison on the night in question to give effect to that common intention. The inference of common intention is irresistible; (6) the prosecution could not pin-point by direct evidence as to who caused the fatal wounds but there was incontrovertible evidence that the deceased was attacked on all sides in a most cruel manner. The accused persons had intended to inflict grievous bodily injuries to the deceased and whilst they were raining blows with the pieces of wood at the head and body of the deceased, there was unity of criminal behaviour and wilful intention to cause serious injuries to the deceased. All three acted in concert in pursuance of their original plan to deal with the accused on account of his going over to their room and telling them to reduce the noise of their merriment; (7) the accused were therefore convicted on the charge of having the common intention to cause the death of the deceased.

Public Prosecutor v Suradet Senarit & Ors Criminal Case No 13 of 1992 High Court, Singapore (Rubin JC).

Mimi Wong & Anor v Public Prosecutor [1972] 2 MLJ 75 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Kulasekaram JJ).

See CRIMINAL LAW, Vol 4, para 1529.

The appellants, Tan and Soon, were convicted of murder of one Evangeline M Diso ('the deceased'). At the time of the offence, the appellants were students at the Ngee Ann Polytechnic. Together with two other students, the appellants had hatched a plan to fake a theft at one of their friends' homes. The friend provided them with the key to the premises and tipped them off as to when his parents and the maid ('the deceased') would not be present. On the day set aside for the theft, the appellants had gone to the house in question and gained access by means of the key. However, while they were still in the house, the deceased returned. In their statements to the police, the appellants stated that they had tried to stop the maid from screaming by covering her mouth and tying her up. They used the cord of an electric iron to tie up the maid. Unfortunately, in the course of the struggle, the cord came to be trapped around the neck of the maid and she became unconscious. Both appellants stated that they had no intention to kill the maid and were scared and confused at the time of the incident. The cause of death was established to be by asphyxia due to strangulation by the cord of the electric iron. The forensic pathologist found a linear ligature mark on the front of the upper neck. His opinion was that the ligature mark was the result of asphyxia due to strangulation. He testified that considerable force was used by the perpetrators of the injury and that the force was applied for a period of between three to five minutes. The appellants gave evidence in their own defence. The first appellant testified that he tried to silence the deceased with his bare hands on her throat but could not say for how long he maintained the pressure. When the maid became unconscious, he panicked. He thought she was dead. He wanted to cover his finger marks on her neck. He and the second appellant tied the cord around the neck of the deceased to conceal the finger marks. The second appellant echoed the first appellant's testimony. The trial judge disbelieved the appellants' testimony. From their statements, the trial judge found that the appellants were afraid of being recognized by the deceased and strangled her to silence her for good. The appellants appealed against their conviction. They contended that their intention was to keep the deceased quiet. They had tried to cover her mouth but to no avail. They had tried to wind the cord around the deceased but not intentionally around her neck. They contended that at the highest, the death was caused with the knowledge that by their acts they were likely to cause death but without any intention to cause death or with such bodily injury as was likely to cause death.

Held, allowing the appeal: (1) and (d) that the injury was sufficient to cause death in the ordinary course of nature. It was well established that parts (a), (b) and (d) of this inquiry were objective while part (c) was subjective. Intention as stated in part (c) must be a subjective inquiry for a man's intention can only be inferred from what he supposed were the circumstances. If an accused thought that the victim was already dead even if he were actually not dead, then, he could not be said to intend to cause bodily injury to what he supposed was a corpse; (2) the evidence did not support a finding that the appellants had formed a common intention to commit murder after being discovered by the maid. Murder or causing hurt to the deceased was not in their minds when they entered the house. It was clear from both their statements that the appellants were in a state of panic when they were discovered by the deceased. It could not be safely said that either of them had formed any intention to cause hurt to the maid; (3) the trial judge had discarded the appellants' oral evidence. This left the statements which contained incriminating as well as exculpatory parts. A trial judge as decider of fact must approach the incriminating portions of an accused's statement with the exculpatory parts together with all the surrounding circumstances to decide where the truth lay; (4) it would be totally unsafe to disregard the explanations given in the appellants' statements. The evidence of the strangulation was equally consistent with an intention to tie up the maid without any intention of causing her bodily injury; (5) when the prosecution relied on s 300(c) of the Penal Code, it must prove: (a) that bodily injury was present; (b) the nature of the injury; (c) that there was an intention to inflict that particular injury;the appropriate test of whether a statement was a confession depended on whether the words of admission, in the context, expressly or substantially admit guilt or whether they, taken together in the context, inferentially admit guilt.

Tan Chee Hwee & Anor v Public Prosecutor [1993] 2 SLR 657 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Goh Joon Seng and Karthigesu JJ).

Yacob Rusmatullah v Public Prosecutor Criminal Appeal No 28 of 1993 Court of Criminal Appeal, Singapore (LP Thean JA, Rajendran and Warren LH Khoo JJ).

See CRIMINAL LAW, Vol 4, para 149.

On 30 November 1992, the burnt remains of a Nissan Coupe was found at Lorong Lada Hitam. Some human skeletal remains were found in the car. The car was traced to the deceased, one Tan Keng Yong, and the car and personal effects recovered were identified by the deceased's family. The accused was subsequently arrested and he gave a statement to the police in which he admitted that he was present on 29 November 1992 when the deceased was assaulted by one Asokan. The accused stated that the deceased had met Asokan to settle a debt and, in the course of the argument, Asokan had struck the deceased on the neck with an axe. The deceased had slumped to the floor and remained still. Asokan had then told the accused to stab the deceased in the stomach, otherwise he (Asokan) would kill the accused. The accused took a knife and stabbed the deceased. Photographs of the room where the assault took place were taken by the police, and these photographs showed that there were blood stains on the walls of the room. The accused was charged with murder and at his trial he did not challenge his statement. The forensic pathologist who gave evidence testified that he was sure, from the examination of the skeletal remains, that the deceased was dead prior to the burning of the car. The pathologist was also of the opinion, from the blood patterns on the wall of the room where the assault took place, that they had been caused by arterial bleeding. According to the pathologist, death would have ensued in about five minutes. The accused was called to give his defence and he testified that he had no grudge against the deceased. He claimed that it was Asokan who had brought the deceased to Tan Tock Seng Hospital where the accused worked as a security officer and had assaulted the deceased in one of the dinning rooms. He repeated his claim in his statement that Asokan had forced him to stab the deceased in the stomach.

Held, convicting the accused: (1) whatever acts are done by several persons in furtherance of a common intention of all constituted, as a whole, the particular criminal act for which each person will be liable. All such acts which were either contemplated or were done ordinarily in furtherance of that common intention will be included in the criminal act; (2) there was overwhelming evidence of common intention on the part of the accused and Asokan to murder the deceased. It mattered not that it was not the accused who dealt the deceased the fatal injury. So long as his and Asokan's acts were all done in furtherance of a common intention to commit murder, that was sufficient for the accused to be found guilty of murder.

Public Prosecutor v Maniam s/o Rathinswamy Criminal Case No 75 of 1993 High Court, Singapore (TS Sinnathuray J).

Yacob Rusmatullah v Public Prosecutor Criminal Appeal No 28 of 1993 Court of Criminal Appeal, Singapore (LP Thean JA, Rajendran and Warren LH Khoo JJ).

See CRIMINAL LAW, Vol 4, para 1491.

Maniam Rathinswamy v Public Prosecutor [1994] 2 SLR 506 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, , Vol 4.

Public Prosecutor v Yacob & Anor Criminal Case No 15 of 1992 High Court, Singapore (Amarjeet Singh JC).

See CRIMINAL LAW, Vol 4, para 1506.

The two appellants were tried in the High Court for the murder of one Packiria Pillai ('the deceased') in furtherance of their common intention. Evidence was led at the trial to show that on 27 July 1984 the body of the deceased was found in his flat by his daughter. The deceased was naked and lying in a pool of blood. A blood-stained letter-opener was found at the scene. About S$3,000 worth of cash and jewellery was also found to be missing. Death was caused by a stab wound to the neck which had severed the jugular vein. The police also found shoe imprints on patches of blood in the hall of the flat. The first appellant made a statement to the police which was admitted in evidence. He admitted that he had gone to the deceased's flat with the second appellant to steal. He kept watch while the second appellant went into the flat. When the second appellant returned, he told the first appellant that he (the second appellant) had stabbed the deceased. The first appellant then went into the flat with the second appellant to try to recover the murder weapon but they were unable to find it. A pair of the first appellant's shoes was seized and the pattern on the sole was found to be similar to the pattern of the imprint found in the flat. Four imitation stones were also found on the first appellant's person. These stones were identified as being part of the jewellery stolen from the deceased's flat. The second appellant's statement was also admitted in evidence after a trial-within-a-trial. In his statement, the second appellant claimed that both he and the first appellant went into the flat. The first appellant had held the deceased while he, the second appellant, stabbed the deceased. Both of them then ransacked the house and stole the money and jewellery. Both appellants were convicted as charged and they both appealed.

Held, allowing the appeal in respect of the first appellant and dismissing the appeal in respect of the second appellant: (1) before an accused person can be called upon to enter his defence, the court has to be satisfied that the requirements of s 189 of the Criminal Procedure Code (Cap 168) ('the CPC') are satisfied. There was nothing in the first appellant's statement which showed, or from which it could be inferred, that the first appellant had, either by himself or in concert with the second appellant intended to kill or even to cause hurt to the deceased. All that the statement showed was that the first appellant had accompanied the second appellant that day in order to steal from the flat but had refused to actually go into the flat. There was nothing in the statement to indicate that the first appellant knew that the second appellant was armed with a weapon. There was also no evidence to indicate that the first appellant knew that there would be anyone in the flat at the time; (2) the only evidence against the first appellant was the confession of the second appellant. The trial judges in calling for the defence of the first appellant had relied entirely on the statement of the second appellant; (3) to use a confession of an accused against a co-accused, s 30 of the Evidence Act (Cap 97) would have to be complied with. All that s 30 provides is that 'the court may take into consideration' such confession as against the co-accused. It is abundantly clear that the confession of a co-accused can only play a supportive role in a criminal prosecution. It cannot, not by itself, form the basis of a conviction; (4) in the instant case, apart from the confession of the second appellant, there was no evidence before the court to establish that the first appellant on 27 July 1984 'in furtherance of the common intention between him and the second appellant committed murder by causing the death of the deceased'. That being so, by reason of s 189 of the CPC, his defence should not have been called and the court should have recorded an acquittal; (5) as for the second appellant, the case against him at the close of the prosecution's case consisted essentially of his confession. Although this was retracted, the trial judges were satisfied that it was voluntarily given. There was no reason to interfere with this finding of fact by the trial judges. At the close of the case for the prosecution, there was a prima facie case against the second appellant under s 302 of the Penal Code (Cap 224); (6) the second appellant gave evidence in his own defence which the trial judge found to be incredible. The trial judges considered the evidence against each appellant separately. Having done so, they concluded that the second appellant, when he stabbed the deceased, intended to kill him. That was a finding of fact which the trial judges, on the evidence before them, were entitled to arrive at. There was no reason to interfere with that finding.

Ramachandran & Anor v Public Prosecutor [1993] 2 SLR 671 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Rajendran and Warren LH Khoo JJ).

The accused persons were charged with the kidnapping and murder of the deceased. At the commencement of the trial, the prosecution proceeded with the murder charge only. The accused persons did not dispute much of the prosecution evidence. They admitted that they had abducted the deceased and that he had been held to ransom. It was also not disputed that the deceased's body had been left at Pasir Ris with his head covered by a pillow case and tied with a raffia. The forensic pathologist testified that he had certified the cause of death as asphyxia due to strangulation by ligature. He stated that he came to this conclusion as a result of congestion of the skin above the ligature. He further testified that the ligature was applied with moderate force and that death would have occurred within three to five minutes. In his opinion, the ligature was not accidentally caused. Both accused gave evidence in their own defence. The first accused testified that he was just an employee of the second accused. He claimed that when they met the deceased, he had no idea that the second accused intended to kidnap the deceased. According to him, the second accused claimed that the deceased owed him, the second accused, money. He claimed that the second accused kept the deceased at a flat at Thomson Plaza. According to him, it was the second accused's idea to tie up the deceased with raffia and it was the second accused who covered the deceased's head with the pillow case. He further testified that when he went to the flat at Thomson Plaza some days after the abduction, he found the deceased's body under the bed and that the second accused had placed it there. He claimed that the second accused then got a cardboard box and they both took the body in the box to a construction site at Pasir Ris and abandoned it there. The second accused testified that it was his idea to abduct the deceased. He further admitted that the deceased had died while he was alone in the flat. He said he thought that the deceased had died of a heart attack. He claimed that in the process of tying the raffia to secure the pillow case, part of it may have touched the skin around the neck thereby accidentally strangling the deceased to death.

Held, convicting both accused: (1) the criminal act done need not be identical to the common intention of all the players so long as it was committed in furtherance of the common intention of them all. A court would be justified in taking into account, inter alia, the disposal of the deceased's body in finding that there was a common intention to abduct the deceased and that in furtherance of that common intention, they had committed murder by causing the death of the deceased; (2) the fact that the second accused was not present when the raffia was tied around the neck of the deceased would not absolve him from liability; (3) all these factors led the court to the conclusion that the killing was done in furtherance of the common intention of both the accused to kidnap the deceased; (4) the second accused's defence of accidental killing was rejected. Apart from the contradictions between his testimony and his statements, he was generally an evasive witness; (5) the deceased knew the second accused and would easily recognize both of them if he was released alive. The first accused had failed to alert the police when he had ample occasion to do so; the medical evidence was that the deceased had been intentionally strangled; the subsequent acts of the accused persons in disposing the body;the court found that the deceased was deliberately and not accidentally strangled by the second accused. It was done with either an intention to kill or an intention to cause bodily injury which was sufficient in the ordinary course of nature to cause death.

Public Prosecutor v Ibrahim bin Masod & Anor Criminal Case No 4 of 1990 High Court, Singapore (TS Sinnathuray J).

The appellant and Liow Han Heng were convicted of murdering one Phang Tee Wah. The prosecution led evidence to prove that the appellant drove Liow's car and on his instruction had lured Phang to meet Liow at Thomson Plaza. At Thomson Plaza, the appellant was present when the deceased spoke to Liow. After the meeting, the trio went to Liow's flat. At the flat, Liow had further discussions with the deceased while the appellant was watching television. Suddenly, Liow raised his voice and a quarrel ensued between Liow and the deceased. Liow threatened the deceased with a knife and asked the appellant to tie the deceased. This the appellant did without further questions. Thereafter, the appellant, upon Liow's instruction, called the deceased's family demanding ransom for his release. The appellant went back to Liow's flat the second day and stood guard over the deceased while Liow left the flat. The deceased pleaded with the appellant to let him leave the flat but the appellant refused, claiming that he was afraid of Liow. When Liow returned the deceased made a lot of noise and upon Liow's instruction the appellant applied a plaster over the deceased's mouth to silence him. The appellant asked Liow for his wages after his return but Liow replied that he had no money. The appellant then suggested that they sell the deceased person's Rolex watch. The appellant went out of the flat with the watch seeking a buyer. The appellant sold the Rolex watch under a false name for S$6,000. He then told Liow about the sale. At this juncture, Liow informed him that the deceased had become motionless and asked the appellant to buy a box. The appellant understood that the deceased was dead and as instructed bought a large sized box. He also went to his home and handed over part of the proceeds to his wife intending to deprive Liow of some of the proceeds of the sale of the watch. The appellant and Liow placed the deceased in the box and disposed of his body at Pasir Ris. The appellant then helped to dispose of the belongings of the deceased but held on to his wallet. After the disposal of the body the appellant continued to accompany Liow to make further ransom calls demanding money. Sometime later, police discovered the deceased's body and the two were subsequently arrested. The appellant admitted kidnapping the deceased and stated that it was Liow who killed the deceased. He further claimed that he was merely acting upon Liow's instructions. Evidence also indicated that the appellant did not have any driving licence. The pathologist gave evidence that the deceased died due to strangulation by ligature. Liow also appealed against the trial judge's conviction but passed away in prison while waiting for the appeal. The Court of Appeal considered the scope of common intention as the learned defence counsel contended that the prosecution had failed to prove common intention to murder the deceased as the appellant was not present when Liow killed the deceased. He further contended that the defence should not have been called as at the most what had been established was a common intention to kidnap the deceased and the murder was not in furtherance of such an enterprise.

Held, dismissing the appeal: (1) in accordance with practice in England which is applicable under s 5 of the Criminal Procedure Code (Cap 68), the appeal of Liow had abated due to his death in prison while waiting for the appeal; (2) the trial judge had correctly called the defence as there was sufficient evidence substantiating that there was a common intention between the appellant and Liow to kidnap the deceased and the murder was in furtherance of it; (3) the evidence of the appellant being seen with the box which contained the deceased body, the disposal of the body, the fact that the deceased's wallet was found in the appellant's possession, disposal of the deceased's watch and the appellant's admission that he kidnapped the deceased leads to an inference which is not inherently incredible that the common intention was to kidnap and the murder was committed in furtherance of it, and as such defence had been properly called; (4) for common intention to be established, the prosecution need only prove that there was a meeting of minds to commit a criminal act and the final act resulting in the murder followed in furtherance of such a meeting of minds and there is no need for the prosecution to prove that all the participants intended the death of the deceased; (5) the appellant's absence was not fatal to the prosecution's case as one may still become liable under s 34 even if the offence for which he had been charged had been committed in his absence so long as it is proven that the offence was in furtherance of the common intention to kidnap and was an ordinary result of such common intention or something contemplated by the parties; (6) in the instant case the appellant's participation before, during and after the death of the deceased led to the irresistible inference that the appellant wanted the deceased dead and hence the act of murdering the deceased should be considered as done in furtherance of the kidnapping; (7) the accused had participated, at least passively in the murder and this was sufficient to attract the ambit of common intention under s 34 of the Penal Code (Cap 224).

Ibrahim bin Masod v Public Prosecutor [1993] 3 SLR 873 Court of Criminal Appeal, Singapore (Karthigesu JA, Goh Joon Seng and Chao Hick Tin JJ).

The appellant was convicted on two charges, namely, that he, with two other persons (Beh and Chng), in furtherance of a common intention, committed murder by causing the deaths of two persons. He was sentenced to death. He appealed. On appeal, it was contended that (a) the trial judges should have totally disregarded Beh's evidence as they had found that his evidence had been successfully impeached and that as the case against the appellant rested solely on the evidence of Beh, an accomplice, there was no evidence to support the convictions; (b) as Beh had been charged and convicted on a plea of guilty of the lesser offence of culpable homicide not amounting to murder, the appellant's conviction on the charge involving common intention was wrong in law; (c) as Beh had been charged on the same facts with the lesser offence, the appellant had been discriminated against contrary to art 12(1) of the Constitution of Singapore.

Held, dismissing the appeal: (1) the unchallenged and undisputed evidence was that both deceased were fatally stabbed with knives in circumstances which amounted to murder by one or more of them and that the stab wounds were inflicted in furtherance of their common intention to commit armed robbery and if necessary, to use the knives they were armed with; (2) the contention that Beh's conviction on the lesser offence made the appellant's conviction wrong in law was without substance and contrary to long established authorities.

Sim Min Teck v Public Prosecutor [1987] 2 MLJ 269 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Rajah JJ).

The appellant was convicted of the charge that he, together, with two other persons and in furtherance of their common intention, committed the murder of one Chia Lap Lai (the deceased). The appellant and the deceased belonged to rival gangs. Prior to the tragedy, there was some misunderstanding between the two groups. On 5 January 1995, the deceased was walking home alone when the appellant and two of his friends (the assailants) chased after him, armed with wooden sticks. The assailants caught up with the deceased outside a lift in a block of flats. In the confined space of the lift, the assailants attacked the deceased who was completely defenceless. The deceased collapsed from the attack. Subsequently, he died of head injuries inflicted by the assailants, which were sufficient in the ordinary course of nature to cause death. The appellant explained that he did not have the intention to kill and only wanted to teach the deceased a lesson. The trial judge found the ingredients within s 300(c) of the Penal Code (Cap 224) established beyond reasonable doubt and convicted the appellant. Being 17 years of age at the time of the offence, the appellant was sentenced to be detained at the President's pleasure pursuant to s 213 of the Criminal Procedure Code (Cap 68). On appeal, counsel contended that the assailants did not have the intention to inflict the fatal injuries. In the alternative, the intention to cause the fatal injuries on the part of the actual perpetrator was not shared by and common to all the assailants.

Held, dismissing the appeal: (1) with respect to the intention to inflict the fatal injuries, the manner of the attack using the wooden sticks was significant. The assailants intended to beat up the deceased when they chased after him. They were each armed with a wooden stick of about 2[1/2]ft in length. Knowing that the deceased was outnumbered and completely defenceless, they followed him into a lift. They proceeded to hit the deceased all over his body, causing multiple injuries from the head to the lower limbs. Each of the blows was deliberate and intended. Furthermore, a considerable degree of force was used because the skull was fractured and there was profuse bleeding in the brain. From a totality of the evidence, there was no reason to disturb the finding that there was the requisite intention to inflict the fatal injuries; (2) for s 34 of the Penal Code to apply, a common intention among the participants to commit the actual crime was not required and need not be proved by the prosecution. As long as the act which constituted the criminal offence charged was committed in furtherance of a common intention among the participants, then all the participants would be made vicariously liable for the criminal offence. The intention to inflict the fatal injuries need not be shared by all the assailants. The common intention of the assailants was to cause the deceased bodily injury and it was in furtherance of the common intention to cause hurt that the fatal injuries was inflicted which led to the death of the deceased.

Ng Beng Kiat v Public Prosecutor [1995] 3 SLR 335 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted in the High Court on the charge that he, together with one Maniam s/o Rathinswamy (Maniam) and in furtherance of their common intention, committed the murder of one Tan Heng Hong (Ah Hong). Ah Hong's charred skeletal remains were found in the boot of a badly burnt Nissan Coupe at Lorong Lada Hitam off Mandai Road on 30 November 1992 at about 7am. Maniam was convicted of the offence of murder and his appeal against conviction was dismissed on 16 March 1994. (See [1994] 2 SLR 506.) In his s 122(6) and s 121 statements to the police, the appellant said that one Don Koh had promised him a commission for introducing prospective purchasers for Dupont pens and lighters. He introduced Ah Hong to Don Koh, but later suspected that Ah Hong had connived to deprive him of the commission. He procured Maniam's assistance to help him persuade Ah Hong to pay him the commission. They planned to lure Ah Hong to meet them at the dining room in the administration block of Tan Tock Seng Hospital on the pretext that Maniam had some gold to sell to Ah Hong. They armed themselves with a knife and an axe as a precaution. In case Ah Hong should turn aggressive, Maniam would give a signal to the appellant to hit Ah Hong from behind with an axe. They met Ah Hong as arranged on 29 November 1992. A brief discussion between Ah Hong and Maniam erupted into a heated argument. Upon Maniam's signal, the appellant took the axe and hit Ah Hong lightly at the back of the head. Ah Hong turned around and charged at him, whereupon he hit Ah Hong a second time with the axe on the left side of the head. Ah Hong collapsed to the floor. Maniam then stabbed Ah Hong's body around the stomach region a number of times. Ah Hong succumbed to his injuries. The appellant and Maniam then relieved Ah Hong of his cash and valuables and decided to dispose of the dead body by having Ah Hong's car driven to a secluded area in Mandai and setting fire to the car with the body within it. The forensic expert, Professor Chao Tzee Cheng (Professor Chao) examined photographs of blood spatters on the wall found at the scene of the killing. Professor Chao opined that the pattern and spread of the blood spatters indicated that the blood had shot out forcefully from the carotid artery, given the height and source of the spray. The artery could have been cut by a knife thrust or by the slicing action of a knife or by a chop from an axe. A person whose carotid artery had been cut would probably die in about five minutes and such injury would be sufficient in the ordinary course of nature to cause death. The appellant gave evidence in his defence, and his evidence was substantially in line with what he had said in his statements. However, he said that he struck Ah Hong on the side of the face above the ear and blood merely flowed. It was Maniam who stabbed Ah Hong all over the body and blood spurted out. The appellant's defence was that Maniam was the one primarily responsible for killing Ah Hong. There was no common intention to inflict any grievous bodily injury as the weapons were only meant to threaten Ah Hong. The trial judge rejected the defence. He found that the common intention existed between the appellant and Maniam to cause grievous bodily injury to Ah Hong and to take his valuables. The trial judge found that, in furtherance of that common intention, the appellant inflicted the fatal injury by striking Ah Hong at the neck with the axe, thereby severing the carotid artery. On appeal, it was submitted that the trial judge erred in finding that there was a common intention. It was also contended that the appellant did not inflict the fatal injury, Maniam did. In view of Professor Chao's tenuous evidence about the pattern of blood spatters, the conviction was unsafe. Finally, it was contended that the appellant was guilty only of rash acts, and had acted in self-defence, or in response to grave and sudden provocation, in the midst of a sudden fight.

Held, dismissing the appeal: (1) all the evidence revealed a clear premeditation as well as preparatory acts in furtherance of the common intention of the appellant and Maniam to attack Ah Hong. The trial judge was correct in concluding that there existed the common intention between them to cause grievous bodily injury to Ah Hong and to take his valuable belongings and, in furtherance of that common intention, the fatal injury was inflicted on Ah Hong; (2) both were liable for the death of Ah Hong caused thereby; (3) as the fatal injury was inflicted in furtherance of their common intention, it did not matter whether the appellant or Maniam inflicted the fatal injury;the appellant's conduct in striking Ah Hong twice with the axe could not be termed a rash act in any sense of the word. The attack was premeditated and vicious and it was wholly disproportionate to any grievance which the appellant might have had against Ah Hong. There was no basis whatsoever for any argument that the appellant had acted in exercising his right of private defence, in response to grave and sudden provocation, or in the midst of a sudden fight.

Asokan v Public Prosecutor [1995] 2 SLR 456 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A1, A2 and A3 were originally charged with the murder of L in pursuance of a common intention. They had intended to rob L. A2 was the driver. A1 confronted L at the door of his flat. L struggled and A1 stabbed him once with a knife. A3 was close behind A1. L subsequently died.

Held: (1) at the end of the prosecution case, the trial judges found that the prosecution had not made out a case of murder against A2. The charge was amended to one of attempted robbery. A2 then pleaded guilty; (2) the wound inflicted on L by A1 was intentional and sufficient in the ordinary course to cause death. The defence of sudden fight was rejected. A1 was convicted of murder; (3) A3 was not present when A1 stabbed L, although he was close by. There was no participation by him, whether active or passive, in the holding up of L. A person sought to be made liable under s 34 of the Penal Code (the common intention section) must in some manner participate in the act constituting the offence; (4) A3 was acquitted of murder but convicted on the lesser charge of attempted armed robbery.

Public Prosecutor v Tan Joo Cheng & Ors [1991] 1 MLJ 196 High Court, Singapore (LP Thean J and Chao Hick Tin JC).

[Annotation: Affirmed on appeal. See [1992] 1 SLR 620.]

The deceased was a Filipino maid. She was found dead lying prone on the floor of her employers' home. The cable of an electric iron was found around the neck of the deceased. The master bedroom of the house was ransacked. The accused persons were charged for murder committed in furtherance of their common intention. They were originally charged with two of their friends, Mok and Tang. The house in question was Tang's home. The charges against Mok and Tang were reduced, and they pleaded guilty and were dealt with separately. At their trial, the accused persons statements were admitted in evidence with no objections as to their voluntariness. In these statements, the accused admitted to intending to steal. They were in financial difficulties at the time. They had been given the key to the house by Tang. They were confronted by the maid, a struggle ensued and in the course of the struggle, the deceased was strangled to death by the wire of the iron. The pathologist gave evidence that the cause of death was asphyxia due to strangulation by the wire. The first accused in his evidence claimed that he had squeezed the maid's throat while the second accused covered her mouth. The next thing they knew, the maid was motionless and still. They thought she was dead. In order to cover the finger marks around the maid's neck, they wrapped the wire around her neck and pulled hard for about five seconds. They claimed that the maid had never seen them before and they had not killed her in order to silence her. They submitted that they had no intention to harm the deceased.

Held, convicting both accused of murder: (1) and (b) whether that injury was sufficient in the ordinary cause of nature to cause death. The second question was resolved by the conclusive evidence of the forensic pathologist. He was emphatic that the maid was conscious and struggling at the time when she was strangled; (2) having observed the first accused and contrasting his evidence with his statements to the police, the court arrived at the conclusion that the evidence he gave in court could not possibly be the truth. His statement was detailed and left no doubt that the encircled cord was pulled when the maid was struggling. His account that he thought she was dead and therefore, he wanted to make the whole thing look like an accident was a story which was difficult to believe. His assertion that she was already unconscious and had never seen either of the accused before, made the story of the first accused as to why he wanted the whole thing to look like an accident all the more incredible; (3) the court also disbelieved the evidence of the second accused. His statement that he did not even know that she had died on the spot and that he learnt of it only the following morning when he woke up and read the newspapers undermined his evidence in court that he and the first accused pulled the cord when the maid was lying motionless and still on the floor. It was glaring that in his first statement, he clearly admitted that he helped the first accused to pull the other end of the wire cord and 'after a while, the maid stopped screaming'; (4) there was active participation and unity in their criminal behaviour to commit the murder of the deceased. Though both of them might not have had any preconceived intention to commit murder when they originally entered the house, it was clear that the common intention was formed at the time when the maid entered the house and started screaming. The court disbelieved the evidence that the maid could not identify them. If that was the case, they could have simply left the moment she became unconscious; (5) the questions before the court were: (a) whether both accused did intend to cause the injury found on the neck of the deceased;it was true that in this case, there was an attempt to retract the confessions but the principles of law were well-settled that accused persons could be convicted on their own confessions even if such confessions were retracted if the court was satisfied of their truth and it was not necessary to have supportive corroborative evidence.

Public Prosecutor v Tan Chee Hwee & Anor Criminal Case No 12 of 1991 High Court, Singapore (Rubin JC).

The three appellants were tried by a court of two judges constituted under s 185 of the Criminal Procedure Code (Cap 113, 1970 Ed). They were tried on three charges and were found guilty and sentenced to death on the charges of abduction for murder, and murder, in furtherance of their common intention. The prosecution failed to make out a case on the third charge of abduction for ransom. However, the trial court found that a prima facie case of extortion was made out against the appellants and they were convicted on this charge, but the sentence on this charge was suspended. This was an appeal against their convictions and sentences. The evidence led by the prosecution was that on the evening of 24 May 1968 at about 7pm, the deceased was taken in a car from the Rex Theatre, Singapore, to a dark side lane off Clementi Road. The deceased was seated in the front seat of the car. Apart from the driver, there were three other persons in the back seat. The deceased was attacked from behind with a weapon or weapons by one or more of the persons in the back seat of the car. After some time, his body was dumped into a sewerage manhole in Jurong. The deceased's abductors then commenced negotiations for the payment of S$20,000 from the father of the deceased for the promised release of the deceased, the father being unaware that his son had already been killed. This payment was made on 5 June 1968. The second and third appellants were subsequently arrested and they made cautioned statements regarding the parts they played in the whole transaction. Their cautioned statements were held to be admissible in evidence. At the trial of the three appellants, the driver of the car, although an accomplice, gave evidence for the prosecution. He identified the three appellants as the persons who were sitting in the rear seat of the car. He described in detail the attack on the deceased and how the deceased resisted and tried to escape.

Held: (1) the evidence on record did not support the charge of extortion. The sum of S$20,000 was paid by the deceased's father to the kidnappers, not because he was put in fear of grievous hurt being caused to his son, but because he believed that his son would be released upon payment of the said sum. The inducement was the promised release of his son and not fear of the causing of grievous hurt. Therefore, the charge of extortion was groundless and the conviction of the three appellants on this charge must be quashed; (2) in the circumstances of this case, having regard to the character of the assault on the deceased, the preparations that had been made for the assault and for the subsequent disposal of the body of the deceased, the injuries received by the deceased and the fact that none of the appellants intervened to stop the assault, the trial judges were justified in coming to the conclusion that there was a common intention amongst the three appellants, first, to abduct the deceased in order that he may be murdered and secondly, that in furtherance of their common intention, they had committed murder by causing the death of the deceased; (3) as regards the question of corroboration, even without the evidence of the accomplice driver, the prosecution had adduced sufficient direct and circumstantial evidence for the trial judges to be satisfied beyond reasonable doubt that the death of the deceased was caused by the acts of the three appellants and the driver in circumstances which amounted to the offence of murder, read with s 34 of the Penal Code; (4) the trial judges, on the evidence before them, did not exercise their discretion under s 121(5) of the Criminal Procedure Code wrongly or in any manner which was contrary to law, in admitting in evidence the cautioned statements made by the second and third appellants; (5) therefore, the appeals of all the three appellants against their convictions under ss 364 and 302 of the Penal Code failed and must be accordingly dismissed; (6) (per curiam) the essence of the offence of extortion as defined in s 386 of the Penal Code is the putting of a person in fear of death or of grievous hurt being caused to him or to some other person. To sustain a conviction under this section, there must be evidence that the accused person made a threat to the complainant of death or of grievous hurt being caused to him or to any other person. The law as regards corroboration discussed.

Lee Choh Pet & Ors v Public Prosecutor (No 2) [1972] 1 MLJ 187 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

The appellants were charged with having committed murder in furtherance of the common intention of them both. The deceased was the manager of the Smart Supermarket at Bukit Batok. The prosecution relied heavily on the evidence of an accomplice, Jumaat, who had acted as a look-out for the appellants. Jumaat testified that he had been approached by the appellants to commit robbery of the said Smart Supermarket. All of them went to the said supermarket, Jumaat remained outside and acted as the look-out. After a while, he heard a scream. Upon hearing the scream, he ran. While running, he saw the appellants come from the direction of the rear entrance of the supermarket and run in different directions. The defence sought to impeach Jumaat's credit on his previous statement but the trial judges declined to rule on the impeachment until after the defence case. The cautioned statement of the first appellant was admitted in evidence. In that statement, the first appellant admitted that he had gone to the supermarket to commit robbery. He, however, claimed that the deceased had been stabbed by an unknown Malay male whose idea it was to rob the supermarket. The only evidence against the second appellant was the testimony of Jumaat. When called upon to give their defence, the second appellant called evidence of an alibi. His family members testified that he was at home at the time of the murder. The appellants were convicted of murder and they appealed.

Held, allowing the appeal: (1) where an accused raised an alibi, the burden of proving the alibi was on the accused but this was only an evidential burden and all the defence had to do was to raise a reasonable doubt. It was clear that the trial judges had accepted that in order to raise an alibi the defence need only raise a reasonable doubt. The trial judges heard the alibi witnesses and rejected their evidence. There was no reason to interfere with this finding; (2) a court was not obliged at the completion of an impeachment exercise to make a ruling whether the credit of a witness was impeached or not. There could, of course, be cases where a court confronted with a materially inconsistent previous statement made by a witness was prepared at that stage to indicate that the witness was not worthy of credit and that the evidence of that witness would be disregarded but that did not mean that the court was obliged in every case to make such an immediate ruling; (3) there was sufficient evidence in this case for the trial judges to find, as they did, that there was a common intention between the appellants to commit robbery. There was no evidence, however, before the trial court that prior to entering the supermarket, the first appellant knew that the Malay male with him was armed with a knife. In fact, the evidence of Jumaat was that he did not see any of the robbers carry any weapon. The only evidence before the court from which an inference could be drawn that the person who stabbed the deceased did so in furtherance of the common intention between him and the first appellant was the fact that the first appellant was in the room when the stabbing occurred; (4) it could not be said that on the basis of the first appellant's cautioned statement and Jumaat's evidence, the inference that the deceased was stabbed in furtherance of the common intention to rob could properly be drawn. The evidence did not establish beyond reasonable doubt that the first appellant was guilty of the charge of murder. The conviction of the first appellant was highly unsafe and was set aside; (5) the evidence against the second appellant rested solely on the oral testimony of Jumaat. The trial judges, in view of the inadequacies of Jumaat's evidence, were only prepared to accept Jumaat's evidence to the extent that Jumaat with the others had gone to the supermarket to commit robbery. That being the position and bearing in mind the character of Jumaat and the fact that he was an accomplice, there was a grave doubt as to the weight to be given to that part of Jumaat's evidence that he saw the appellants running from the direction of the store's rear entrance. If this piece of doubtful evidence was excluded, there was a total absence of any evidence that the second appellant was in the supermarket when the stabbing occurred; (6) the conviction against both appellants for murder was set aside and substituted with a conviction for attempted robbery.

Syed Abdul Aziz & Anor v Public Prosecutor [1993] 3 SLR 534 Court of Criminal Appeal, Singapore (LP Thean JA, Rajendran and Warren LH Khoo JJ).

Public Prosecutor v Tan Hung Thiam & Anor Criminal Case No 39 of 1985 High Court, Singapore (TS Sinnathuray J and Grimberg JC).

See CRIMINAL LAW, Vol 4, para 1555.

The appellants were convicted on a joint charge of the murder of a detective in the Singapore Police Force on the night of 5 February 1968. They appealed to the Federal Court and it was contended on appeal that the convictions should be set aside because the bearing scraper, which was alleged to have been used as the weapon of offence, was not marked as an exhibit though it was handed to the jury after they had retired to find their verdict. Further, there was no proper direction on common intention and the judge misdirected the jury on this.

Held, dismissing the appeal: (1) the handing over to the jury after they had retired of the bearing scraper which was introduced in evidence (but not marked as an exhibit) at the trial did not amount to the introduction of fresh evidence at the trial after the jury had retired to consider their verdict; (2) the trial judge directed the jury on common intention in accordance with the law laid down by the Privy Council in Mahbub Shah v King-Emperor, LR 72 IA 148, and accordingly, it cannot be said that he failed to direct the jury adequately.

Lim Heng Soon & Anor v Public Prosecutor [1970] 1 MLJ 166 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

Ramli bin Awang v Public Prosecutor [1988] 3 MLJ 435 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua J and Grimberg JC).

See CRIMINAL LAW, Vol 4, para 1557.

Kee Ah Tee & Anor v Public Prosecutor [1971] 2 MLJ 242 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 1558.

Both appellants were convicted in the High Court of having committed murder in furtherance of a common intention. The trial court found that they had both stabbed the deceased in the neck and that the stab wounds were the cause of death. Both appellants appealed against their convictions and disputed the medical evidence of the pathologist as to the cause of death.

Held, dismissing both appeals: (1) the findings of the trial judges were correct. There was no doubt that both appellants had stabbed the deceased in the neck. The injuries were sufficient to cause death; (2) in a criminal prosecution where common intention is invoked, it is not incumbent on the prosecution to prove that there existed between the participants a common intention to commit the crime actually committed. For s 34 of the Penal Code to apply, it is sufficient if the prosecution proves that there was in existence a common intention between all the persons who committed the criminal act and that the act which constituted the offence charged was done in furtherance of that common intention.

Tan Hung Thiam & Anor v Public Prosecutor [1991] 2 MLJ 137 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chua and Karthigesu JJ).

The two accused were jointly charged with murder. The deceased was found lying supine on Bukit Timah Avenue in front of a parked motor lorry. There were bloodstains on the road but none on the lorry, the driver's cabin or the road below the cabin. There was no objection to the four statements made by the second accused to the police being admitted in evidence. In his statements, the second accused admitted that he and the first accused had planned to rob a Chinese woman at Bukit Timah. The deceased turned up instead of the intended victim. He was confronted by the first accused. In the ensuing struggle, the second accused went to the assistance of the first accused. However, the second accused denied committing the murder. The first acccused challenged the admissibility of three statements made by him. After a trial-within-a-trial, the cautioned statement of the first accused was admitted. In this statement, the first accused admitted that he was armed. The court called upon the defence of both accused on the murder charge. The first accused gave evidence in his defence. The second accused elected to remain silent. In his defence, the first accused said that he was feeling 'high' at the time of the offence due to the drugs and alcohol he had consumed earlier. He also could not remember the events of the offence nor could he confirm that the second accused was with him at that time.

Held, convicting the first accused of murder and the second accused on a lower charge of robbery: (1) the first accused dragged the deceased down from the seat of the lorry and a struggle ensued during which the first accused, using considerable force, inflicted stab wounds on the back region of the deceased when the deceased was standing on the ground. There were no bloodstains in or around the vicinity of the driver's cabin that would indicate that the deceased was stabbed while he was in the driver's cabin; (2) the first accused's defence that he could not remember the events that took place during the morning of the killing because he had consumed alcohol and drugs earlier was rejected. The first accused only chose to remember selectively what occurred at the time of the offence. The first accused was not so intoxicated with alcohol and drugs that he did not know what he was doing; (3) the first accused was also not so intoxicated with alcohol and drugs as to be unable to form any intention to inflict any of the wounds on the deceased. He did intentionally inflict the bodily injuries that were inflicted on the deceased. These bodily injuries were sufficient in the ordinary course of nature to cause death and did cause death; (4) the statements made by the second accused could not be taken into consideration against the first accused for the offence of murder as the second accused did not in the statements himself confess to the charge of murder. Section 30 of the Evidence Act (Cap 97) was therefore not applicable; (5) the version of how the stab wounds were inflicted, as given by the second accused in his statement, required an explanation in view of contrary expert forensic evidence; (6) in calling for the defence of the second accused, the court was not required to (and it did not) consider the weight to be given to the statements he made to the police. Once the defence was called, the whole statement, both the incriminating parts and the excuses or explanations, must be considered in deciding where the truth lies; (7) the second accused agreed to join the first accused to rob a Chinese woman but he did not have a common intention with the first accused to cause the death of the deceased. The second accused did not know that the first accused was armed and had consistently maintained that he was shocked when he saw the first accused holding the bloodstained knife and had immediately released the deceased and took no part in the killing; (8) only such inference as appear to be proper in the circumstances of the case can be drawn from the accused's failure to give evidence in his defence. The first accused did not give any evidence to incriminate the second accused in the killing. It would appear that the second accused, seeing that the first accused did not incriminate him, decided to repay his debt to his friend by electing to remain silent so that he need not have to say anything further to incriminate the first accused. In the circumstances, the court was not prepared to draw an adverse inference against the second accused by reason of his failure to testify; (9) s 121(2) of the Criminal Procedure Code (Cap 68) ('the CPC') gives a person who is being examined by a police officer during police investigations a right to decline to answer any questions that may incriminate him. Section 121(2) of the CPC sets out the so-called 'right of silence' enjoyed by suspects when interrogated by the police. It is expressed in the Latin maxim nemo debet se ipsum prodere and has been described by the Privy Council in Haw Tua Tau v Public Prosecutor as one of the fundamental rules of justice within the meaning of the word 'law' in art 9(1) of the Constitution; (10) art 9(1) of the Constitution provides that no person shall be deprived of his life or personal liberty save in accordance with law. Since the 'right to silence' in s 121(2) of the CPC is a constitutional right, an accused or a suspect should be cautioned of his right to decline to make an incriminating statement notwithstanding that s 121(2) does not specifically require that any such caution be administered. A statute should be construed in such a way as will give effect to a constitutional right; (11) art 4 of the Constitution (1992 Ed) provides that any law enacted by the legislature after the coming into operation of the Constitution which was inconsistent with the Constitution shall, to the extent of the inconsistency, be void. The Constitution came into operation in 1963. The proviso to s 122(5) of the CPC (1985 Ed) was effected by Act 10 of 1976. By reason of art 4, if the provisions of s 122(5) are inconsistent with the Constitution, those provisions, to the extent of the inconsistency, would be void. To admit a statement under s 122(5) without regard to the right of silence contained in s 121(2) of the CPC would create an inconsistency. There would, however, be no inconsistency if s 122(5) was read as being subject to the right of silence contained in s 121(2); (12) the warning in the s 122(6) notice makes it clear that the accused has a right to remain silent. To that extent, therefore, there is no inconsistency between s 122(6) and s 121(2). As the first accused was not told of his right to remain silent, the statements recorded from him under s 121 of the CPC were inadmissible in evidence. Section 122(5) must be construed in such a way that it will give effect to the right of silence contained in s 121(2) of the CPC. The reasons given by the Privy Council in Haw Tua Tau applies, mutatis mutandis, to the provisions of s 121(2) and s 122(5) of the CPC; (13) besides the fact that the first accused was not told of his right to silence, he was wrongly told that he was 'bound to tell the truth, the whole truth and nothing but the truth' to the police. In addition, having heard the evidence of the accused, the police officers and the interpreter, and bearing in mind that the two statements were recorded eight and 11 days respectively after the first accused had been in police custody, it was unsafe to admit those statements as evidence even if the caution had in fact been correctly interpreted to the first accused.

Public Prosecutor v Mazlan bin Maidun & Anor [1993] 1 SLR 512 High Court, Singapore (Rajendran J and Goh Phai Cheng JC).

The appellants were convicted of murder under s 302 read with s 34 of the Penal Code and was sentenced to death. The learned trial judge found it was the second appellant who inflicted the fatal blow on the deceased's head, and that there was a common intention of both the appellants to cause injuries to the deceased which in the ordinary course of nature would cause death. There was evidence that the deceased was still alive when the second appellant poured petrol on the deceased and the first appellant set fire to the deceased.

Held, dismissing the appeal: (1) at the time or immediately before the fatal blow was inflicted on the deceased, the appellants had the common intention; (2) so far as the second appellant is concerned, the absence of a common intention was immaterial as he inflicted the injuries which caused the death of the deceased.

Ramu Annadavascan & Anor v Public Prosecutor [1985] 1 MLJ 407 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, LP Thean and Chua JJ).

Ong Kiang Kek v Public Prosecutor [1970] 2 MLJ 283 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Winslow JJ).

See CRIMINAL LAW, Vol 4, para 1571.

The accused was charged that he, together with one Maniam, and in furtherance of the common intention of them both, committed murder, an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224). The evidence led by the prosecution showed that the accused felt cheated by the deceased when the deceased did not give him the commissions for introducing buyers to the deceased for his Dupont lighter business. He then planned with Maniam to lure the deceased to the place of the murder on the pretext that Maniam had some gold to sell to the deceased. During the ensuing heated argument between Maniam and the deceased, the accused took out an axe and struck the deceased. Maniam then stabbed the deceased with a knife and the deceased died shortly thereafter.

Held, sentencing the accused to death: (1) the law on common intention is set out in s 34 of the Penal Code under which it is sufficient to prove that there was a common intention between the participants and that the crime actually committed was committed in furtherance of that common intention; (2) the prosecution is not required to prove specifically that there was between the participants a common intention to commit the offence actually committed. However, there must exist between or among the criminal participants a common intention. Neither the 'same' or 'similar' intention will be sufficient to connect the participants in the joint liability for the crime committed; (3) when inferring common intention within the meaning of s 34 courts must not reach that inference, which has the consequence of attaching accused persons with joint criminal liability unless it is a necessary inference deductible from the circumstances of the case; (4) on the facts of the case, there must have existed between the accused and Maniam the common intention to cause grievous injury to the deceased and to take his valuable belongings and in furtherance of that common intention, the accused was the one who inflicted the fatal blow by striking the deceased at his neck with the axe thereby cutting the carotid artery; (5) evidence of Maniam and the accused not being prepared with brushes and detergents to wash away the bloodstains and that the driver of the car used to dispose of the body was recruited at the eleventh hour were by themselves wholly insufficient to negative the existence of such a common intention or even to raise a reasonable doubt.

Public Prosecutor v SS Asokan Criminal Case No 81 of 1994 High Court, Singapore (Lai Kew Chai J).

Anbuarsu v Public Prosecutor [1995] 1 SLR 719 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 1581.

The first accused Neoh, and the second accused Lim, were jointly tried for murder in furtherance of a common intention. Lim carried a loaded revolver and both accused entered a 'wine shop' in order to rob the proprietor. When the proprietor was about to close the shop, they attempted to rob him, but when he resisted, Lim shot him and both accused ran out. When Neoh was arrested and charged with the murder of the proprietor, he made a cautioned statement to the police and another statement to a magistrate. When Lim was arrested and charged some months later, he also made a cautioned statement to the police. The accused were separately represented by counsel at the trial. The second accused Lim contended (a) that a separate trial was desirable as Neoh had blamed him for the proprietor's death in his earlier statements and he would therefore be prejudiced and embarrassed in his defence; (b) that his own statement to a police inspector was inadmissible because Neoh's cautioned statement had not been furnished to him before his own statement was taken from him, but only some time afterwards and accordingly there had been a breach of r 9 of Schedule E of the Criminal Procedure Code; and (c) that his gun had gone off accidentally during a struggle with the deceased proprietor. The first accused Neoh contended (a) that there was no case to answer at the end of the prosecution case as there was no evidence of a common intention to cause the death of the proprietor; and (b) that the proprietor's death was in any event accidental.

Held: (1) the question of joint or separate trials, being left to the discretion of the presiding judges, who must consider the interests of justice as well as the interests of the prisoners, a joint trial was appropriate in the circumstances, as the charge was one of murder in furtherance of the common intention of both the accused; (2) it is sufficient if it is proved there was a common intention between all the persons who committed the criminal act and that the act which constituted the offence charged, was done in furtherance of that common intention; (3) in a criminal prosecution, where s 34 of the Penal Code is involved, it is not incumbent on the prosecution to prove that there existed a common intention to commit the crime actually committed;the evidence was sufficient to establish beyond a reasonable doubt that both accused had a common intention not only to rob the deceased, but also to use their gun if any resistance was offered; and that in furtherance of that common intention, the second accused deliberately shot the deceased to overcome his resistance, with the intention of causing him bodily injury (the gunshot wound), such injury being sufficient in the ordinary course of nature to cause death and in fact, causing the death of the deceased. As such, the second accused was guilty of murder and by the application of s 34 of the Penal Code, the first accused was also guilty of murder. On appeal by both accused, the Court of Criminal Appeal upheld the trial judges' decision and dismissed the appeal.

Public Prosecutor v Neoh Bean Chye & Anor [1975] 1 MLJ 3 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

The accused pleaded guilty to a charge under s 304 read with s 34 of the Penal Code (Cap 224). The facts revealed that the accused belonged to a secret society. One of the accused's accomplices had been assaulted by the victim. When news of this assault was heard by the accused and his two other accomplices, they decided to attack the victim. They armed themselves with knives and meat cleavers and went in search of the victim. When they found the victim, they chased him and attacked him with the meat cleavers. The victim died of the injuries received from this attack. In mitigation, the accused highlighted the fact that he had no antecedents, had surrendered to the police and pleaded guilty.

Held, sentencing the accused to ten years' imprisonment and six strokes of the cane: (1) the accused surrendered to the police two-and-a-half years after the offence. The three accomplices had all been arrested within three months of the offence. The accused's surrender was not out of remorse but as a result of a realization that he was bound to be arrested. No weight could be attached to this as a mitigating factor; (2) there was preparation for this attack and there was intention to inflict injury upon the victim. The assailants also outnumbered the victim four to one and attacked him when he had fallen to the ground. This was clearly a case punishable under s 304(a) of the Penal Code.

Public Prosecutor v Tay Peng Gim Criminal Case No 27 of 1992 High Court, Singapore (Coomaraswamy J).

The two accused were jointly charged with rape and administering a stupefying drug, Erimin, to facilitate its commission. The victim came to know the two accused through her boyfriend. When her boyfriend was in DRC, he sent letters to her through the second accused. The second accused would call the victim and inform her that her boyfriend had sent a letter and then they would agree to meet for the purposes of handing over the letter. On 23 September 1988, the second accused called the victim and arranged a meeting at a hawker centre on that Sunday as he had received another letter from her boyfriend. When the victim went to the meeting place, the second accused was waiting there with the first accused. The second accused then informed the victim that he had forgotten to bring the letter and if she wanted it, she could follow them to Hougang to get it. She agreed and left with them in a taxi to Hougang. Before they left, the second accused went to a stall and bought two packets of 'Fruit Tree' drinks. At a flat in Hougang, the victim was given a glass of 'Fruit Tree' drink which had been bought earlier. The second accused then told her to drink it up otherwise she would not get the letter. She did as she was told and the second accused then gave her the letter. As she was feeling shy reading the letter from her boyfriend in front of the two accused, she asked to go into the bedroom to read it. As she stood up, she felt drowsy. The second accused then led her to the bedroom and left her there. She could not read the letter as she became more drowsy. Then, the first accused came into the bedroom and raped her. After he left, the second accused in turn came into the bedroom and also raped her. She did not have the strength to resist them as she was drowsy and feeling very weak. The second accused then led her to another bedroom for her to wash her face. Thereafter, he brought her to the ground floor and took her home in a taxi. In their defence, the two accused said that the victim started making advances and she consented to the sexual intercourse.

Held, convicting both accused of rape: both accused knew full well what they were going to do to the victim on the material day. They had planned to take her to the flat. They were then going to drug her by spiking her drink with Erimin tablets. To carry out this design, the first accused bought two Erimin tablets. That afternoon, the second accused bought two 'Fruit Tree' drinks. Both of them brought the victim to the flat. In the flat, the first accused crushed the two Erimin tablets and poured the crushed powder into the drink which he served to the victim. Later, when she became drowsy, she was taken into the bedroom where, in furtherance of the common intention of them both, the first accused and then later the second accused had sexual intercourse with her against her will and without her consent.

Public Prosecutor v Fadlilalaili bin Abdul Kadeh & Anor Criminal Case No 46 of 1990 High Court, Singapore (TS Sinnathuray J).

The appellant and another person were charged with the offence of theft of a bicycle at the five-foot way of North Bridge Road. The facts shortly were as follows. About 5.30 pm on 11 April 1956, a police constable and a detective saw the appellant and the other man walking along Victoria Street and the officers' suspicions were aroused when they noticed the two men examining bicycles and conversing together. As a result of their suspicions, they followed the men. The two men entered North Bridge Road. The other man walked along the five-foot way and when he came in front of house No 359 North Bridge Road, he placed his hand on a bicycle and started to push it along. The police constable ran towards him. The man then let go of the bicycle and ran away. The constable chased him and arrested him. Meanwhile, the appellant who had been walking on the road near the drain, also started to run and was arrested by the detective. The other man and the appellant were both convicted of theft of the bicycle.

Held: (1) it must be established that more than one person participated in the commission of the criminal act which forms the subject of the charge, although in certain circumstances, mere presence may constitute participation; (2) one of the requisite conditions to bring s 34 of the Penal Code into operation is that a criminal act is done by several persons and before the section can be applied, there must therefore be more than a joint venture to commit a crime;in this case, it had not been shown that the appellant had participated in the criminal act and therefore the conviction must be quashed.

Chew Cheng Lye v R [1956] MLJ 240 High Court, Singapore (Whitton J).

[Annotation: See also Wong Kim Wah v Public Prosecutor [1948-49] MLJ Supp 134.]

The two accused were charged jointly under s 392 and 397 of the Penal Code ('the Code'). The evidence showed that in the commission of the robbery, the first accused was not armed, but that the second accused was armed. At the conclusion of the case for the prosecution, the trial judge amended the charge and directed that both accused be charged under s 392 of the Code and the second accused only be charged under s 397 of the Code. He held that s 34 of the Penal Code had no application to s 397 of that Code. The jury found the accused guilty. The accused were each sentenced to five years rigorous imprisonment and the second accused only to whipping of six strokes with a rotan as an additional punishment under s 397 of the Code. The trial judge then stated a case for the decision of the Court of Criminal Appeal as to whether he was correct in his view that s 34 of the Code had no application to s 397 of that Code.

Held: since s 392 or s 393 of the Code read together with s 397 of the Code create separate and distinct offences, there is no reason why s 34 of that Code should not apply to those offences to the same extent as it applies to other offences.

R v Yeo Kim Watt & Anor [1946] MLJ 155 Court of Appeal, Singapore (Willan CJ (Malayan Union).

A and two others were convicted of causing hurt to W during a robbery. A did not personally hurt W but was jointly concerned in the robbery. It was T who punched W. A question was reserved for the opinion of the Court of Criminal Appeal as to whether it was necessary for the prosecution to prove a common intention to commit robbery between T and A in order for A to be convicted.

Held, answering the question in the negative: in a prosecution for robbery with hurt under s 394 of the Penal Code (Cap 224), it is not necessary for the prosecution to prove a common intention to commit robbery between the person causing the hurt and the accused. Section 394 deals with the group liability of robbers one or more of whom causes hurt in the course of the robbery. The guilty act of the robber who causes hurt is imported to all the others who are jointly concerned in the commission of the robbery. Such hurt must be caused voluntarily to facilitate the robbery.

Ang Eng Beng v Public Prosecutor [1990] 3 MLJ 321 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Yong Pung How JJ).

Lai Ah Kau & Anor v Public Prosecutor [1988] 3 MLJ 391 High Court, Singapore (Chua J).

See CRIMINAL LAW, Vol 4, para 1663.

Public Prosecutor v Wong Hong Toy & Anor [1986] 1 MLJ 133 High Court, Singapore (Wee Chong Jin CJ).

See CRIMINAL LAW, Vol 4, para 1695.

The two appellants were tried before the High Court, convicted and each was sentenced to eight years imprisonment under s 489A of the Penal Code for counterfeiting currency notes, to wit, Malaysian S$50 notes to the value of approximately S$70,000, in furtherance of the common intention of both of them. They appealed against the conviction and sentence. The only evidence against the second appellant was that of an accomplice. So far as the second appellant was concerned, the accomplice's evidence was uncorroborated, and this the learned trial judge recognized although he had found that there were 'some elements of corroboration'. In the case of the first appellant, the apparatus used for the counterfeiting process was found both in his business premises and his flat.

Held: (1) as there was clear corroboration of the accomplice's evidence against the first appellant, therefore, the learned trial judge was justified, on all the evidence before him, in finding the first appellant guilty and therefore, his appeal against conviction should be dismissed and sentence confirmed; (2) on the evidence, the conviction against the second appellant could not stand and therefore, his appeal should be allowed, and the conviction and sentence set aside.

Shum Wai Tong & Anor v Public Prosecutor [1972] 1 MLJ 196 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

On 27 February 1991, Ng Keng Hua ('the deceased') was stabbed to death in his home at Lorong 8 Geylang. The accused was charged with the murder in common intention with an unknown person. At the trial, the prosecution led evidence to show that on the day in question the accused and another person had entered the deceased's home armed with knives. They held the deceased and his family at knife point and demanded money. In the course of the robbery, the deceased rushed at the accused and they struggled. One of the deceased's friends separated them and the accused and his accomplice fled. The deceased gave chase. Moments later, the deceased's body was found in the hallway of his house in a pool of blood. The accused's statement was admitted in evidence without challenge. In the statement, the accused admitted that he had masterminded the robbery of the deceased's home. The accused also admitted stabbing the deceased but claimed that it was accidental and committed while the two of them were struggling. The forensic pathologist gave evidence that he found six injuries on the body of the deceased. Two of them were fatal. These injuries were stab wounds that had pierced the lung and the heart. He also opined that the amount of force necessary to cause both injuries would be seven on a scale of ten. In his own defence, the accused testified that he was uncertain whether or not he stabbed the deceased but said that it could have occurred during the struggle. He claimed that during the struggle he was hit from behind and fell forward and that was when he might have stabbed the deceased.

Held, convicting the accused as charged: (1) having regard to all the evidence, it was the conclusion of the court that the accused had caused the fatal injuries; (2) the prosecution had clearly established that it was the accused who caused the fatal injuries. The court found that those injuries were not accidentally caused but were so inflicted with a willed mind by the accused; (3) the court accepted the pathologist's evidence that there were two fatal wounds and that they were sufficient in the ordinary course of nature to cause death; (4) for s 34 of the Penal Code (Cap 224) to be applicable, there must first be a common intention among all the persons who committed the criminal act. Secondly, a criminal act must be done in furtherance of this common intention. The criminal act may be identical with the common intention or it may be not. Where it is 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; (5) even though the accused claimed that there was no pre-arranged plan between him and the accomplice to cause hurt to anyone, his claim could not be accepted in the circumstances of this case. The court found that the accused planned the execution of the robbery in great detail and nothing deterred him from entering the house on the day in question, not even the presence of other persons; (6) there was overwhelming evidence that there existed a common intention between the accused and the accomplice to commit armed robbery and the act of murder was committed in the course of the robbery. In the circumstances, even if the fatal injuries found on the deceased were inflicted by the accomplice, the accused would still be guilty of the offence of murder by virtue of the operation of s 34; (7) the court rejected the defences of sudden fight and private defence raised by the accused; (8) a right of private defence of person or property must have first accrued to the accused for the exception to succeed. For such a right to be available, the accused must show that there was reasonable apprehension of danger to his body and in using force in self-defence there must be no other alternative to its recourse. The deceased was not armed whereas the accused and his accomplice were armed with lethal weapons. Though a struggle or a scuffle took place, there was nothing to suggest that the injuries inflicted on the deceased were done so in the course of the accused exercising his right of private defence; (9) in order to be entitled to the defence of sudden fight, the killing should have taken place without premeditation or any pre-arrangement. In the case at hand, the accused and his friend had planned to rob the deceased that evening. Both of them armed themselves with knives. It was a reasonable inference that they were prepared for all eventualities including the use of knives during the execution of the planned robbery. The injuries inflicted on the deceased could not be regarded as having been inflicted in the course of a sudden fight and upon a sudden quarrel. The accused and his friend had also taken undue advantage over the deceased.

Public Prosecutor v Tan Bee Hock Criminal Case No 49 of 1992 High Court, Singapore (Rubin JC).

The three appellants were charged for the commission of the murder of one Annuar Hossain ('the deceased') pursuant to a common intention of all of them. The appellants and the deceased were co-workers and lived at the same worker's quarters. The three appellants admitted having used wooden sticks to hit the deceased in their respective s 122(6) statements. The prosecution also adduced evidence that the first appellant called the deceased out of his room just before the attack. The pathologist who examined the deceased person's body gave evidence that there were 15 injuries of which two were fatal. He also opined that the deceased had been attacked from all sides and the fatal injuries had been inflicted with great force. There was also evidence that the first appellant had consumed some liquor prior to the attack. At the trial, the appellants elected to remain silent and the learned trial judge convicted the three appellants after considering all the evidence. The learned trial judge also applied s 30 of the Evidence Act and took into consideration the confessions of the three appellants. The three appellants appealed against the decision of the trial judge. The first appellant contended that the trial judge failed to consider the defence of intoxication. The second appellant argued that other than the confessions of the co-accused, there was no evidence to substantiate common intention. The third appellant contended that the prosecution failed to establish that the injuries inflicted were intended to be fatal injuries.

Held, dismissing the appeal: (1) to raise the defence of intoxication, the first appellant must show on a balance of probabilities that he had not formed the intention to commit the offence due to the level of intoxication and this he failed to do; (2) the principles in relation to common intention under s 34 of the Penal Code do not require the criminal act to be identical to the common intention but only requires that the criminal act be done in furtherance of the common intention; (3) common intention may be inferred from surrounding circumstances and evidence in the instant case established that there was a common intention to cause grievous injuries to the deceased and the murder was caused pursuant to this; (4) the learned trial judge had considered the evidence against the second appellant separately and had not lumped the evidence together as submitted by the defence; (5) a weapon which may not be inherently deadly may turn out to be one when the manner in which it is used is taken into consideration; (6) the number of injuries, manner in which they were inflicted and the fact that the deceased was outnumbered, clearly indicated that all the injuries were intentionally inflicted; (7) the test, whether a statement is a confession, is an objective one and a statement would be a confession where the words of admission expressly or substantially admit guilt or taken together, in the context, inferentially admit guilt.

Suradet & Ors v Public Prosecutor [1993] 3 SLR 265 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJ).

On 20 August 1991, the accused was in the same lift as a seven-year-old boy. He removed 40 cents from the boy's front shirt pocket, at the same time slapping the boy once and telling him not to take the same lift again. The accused pleaded guilty to a charge of robbery with hurt under s 394 of the Penal Code (Cap 224) ('the Code'). He was convicted and sentenced to seven years' imprisonment with effect from 22 August 1991 and 12 strokes of the cane. The public prosecutor brought this case before the High Court with the request that it exercise its powers of revision under s 268 of the Criminal Procedure Code (Cap 68) to review the propriety of the charge and conviction and also the sentence imposed.

Held, setting aside the conviction and sentence: for theft to amount to robbery under s 390(2) of the Code, any force or threat of force used in the course of the theft must be for the purpose of committing the theft or of carrying away or trying to carry away the property obtained by the theft. The slap the accused dealt his victim was not shown to be for such a purpose. However, the facts did support a conviction of using criminal force in committing theft under s 356 of the Code. Accordingly, the conviction and sentence in this case was set aside and substituted with a conviction under s 356 and a sentence of two years' imprisonment.

Public Prosecutor v Chia Poh Yee [1992] 2 SLR 804 High Court, Singapore (Yong Pung How CJ).

The accused was charged with kidnapping a female minor under 16 years of age from the lawful guardianship of her father, contrary to s 363 of the Penal Code (Cap 119). The girl in question, aged 14 years, voluntarily left Singapore in the company of the accused for Seremban without the consent of her father, with a view to getting married to him there which they did. At the end of the prosecution case, the learned district judge acquitted the accused on the ground that the girl was of the Hanafi sect and as she had attained puberty, she no longer had a lawful guardian and in the circumstances, she could not be said to have been taken away from lawful guardianship within the meaning of s 361 of the code. On appeal by the Crown,

Held: (1) in this case, there was no evidence to support the proposition that the girl was an adherent of the Hanafi sect. If the respondent had wished to rely on Ghouse v R [1946] MLJ 36, it was for him to establish this or to raise it in his defence; (2) although McElwaine CJ held in Ghouse's case that a Muslim girl who had attained puberty had no guardian and therefore, she could not be taken out of the keeping of the lawful guardian, on an examination of his judgment and the authorities cited by the learned Chief Justice, it was clear that only a girl of the Hanafi sect was free from the custody of her guardian as regards the selection of a husband. The emphasis is on her capacity to marry and not on her absolute freedom from the custody of her guardian for all purposes; (3) the attention of McElwaine CJ was not drawn to s 5 of the Guardianship of Infants Ordinance (Cap 16, 1955 Ed) in Ghouse's case and his conclusion would have been different if this was done; (4) in this case, in the absence of other evidence, the lawful guardian of the girl was her father until her marriage; (5) the expression 'lawful guardian' in s 361 of the Penal Code must be given a meaning which accords with the provisions of s 5 of the Guardianship of Infants Ordinance and the explanation to s 361. If, in its discretion, the court decides to modify its strict construction of who the guardian is, it may have recourse to Muslim law so as to do justice to the facts of any particular situation; (5) (per curiam) in the light of the authorities, it would be dangerous to regard a Muslim girl of the Hanafi sect as being without any lawful guardian for the purposes of the Penal Code merely because she has attained puberty and is free, without the guardian's consent, to make her own selection of her future husband. To hold otherwise would be to expose every Muslim girl professing the tenets of the Hanafi school, who has attained puberty, to the rapacity or cunning of every would-be Lothario, enticer or potential seducer who would only need to cite Ghouse's case to escape conviction and punishment.

Deputy Public Prosecutor v Abdul Rahman [1963] MLJ 213 High Court, Singapore (Winslow J).

A was prosecuted for the rape of C. He was also charged with voluntarily causing hurt to C in order to commit rape, and with robbery of cash and a radio pager in the possession of C. C's evidence was that she met A through R, an acquaintance. C wanted some sleeping pills. A suggested that they meet a friend of his who could supply the pills free. She was taken to a deserted building, where A assaulted her, hitting her on the head with a piece of concrete in order to force her to have intercourse with him. A then raped her, and took her radio pager and money. A's defence was that C had consented to the intercourse.

Held, convicting the accused: (1) the court accepted C as a truthful witness. C's behaviour following the incident and the injuries on her body supported her testimony. A, on the other hand, had made a statement to the police admitting that he had slapped C before she agreed to have intercourse. The defence of consent was rejected; (2) A was sentenced to ten years' imprisonment and 12 strokes of the cane on the rape charge, and two years' imprisonment and six strokes of the cane on the robbery charge; (3) where an offence consists of parts, each of which is itself a separate offence, the sentences of imprisonment in respect of each separate offence should run concurrently. A's jail sentences accordingly were ordered to run concurrently.

Public Prosecutor v Rajendra Prasad Criminal Case No 18 of 1989 High Court, Singapore (Tan Teow Yeow JC).

held{eb] 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. It is sufficient if the person who has formed such dishonest intention moves that property in order to such taking; it is not necessary for him to move that property out of the possession of the other person.

Raja Mohamed v R [1963] MLJ 339 High Court, Singapore (Ambrose J).

The respondent and three other unknown persons went to the victim's factory and told the victim that they had arrested seven illegal workers in his factory. The respondent told the victim that they were all government officers. When the victim asked the respondent to give him a chance, the respondent asked the victim for S$80,000 to settle the matter. The victim bargained the sum down to S$50,000 and paid the respondent. The respondent was charged with extortion. At the close of the prosecution before the district court, the respondent was acquitted, the district judge holding that no injury to the victim was proven as required by the Penal Code (Cap 224) ('the Code'). The prosecution appealed.

Held, allowing the appeal: (1) the injury that the victim was alleged to have been put in fear of was allegedly caused by telling the victim the consequences of employing the illegal workers. This action self-evidently described not the injury itself but how the fear of such injury was instilled. The actual injury threatened was that of prosecution and conviction for hiring illegal workers; (2) as the respondent had no more legal powers to exercise than any ordinary member of the public in Singapore, the injury threatened was illegally caused within the definition in s 44 of the Code.

Public Prosecutor v Tham Chien Tin [1993] 1 SLR 226 High Court, Singapore (Yong Pung How CJ).

The appellant appealed against his conviction under s 384 of the Penal Code. The facts were shortly as follows: The appellant approached the complainant and said he wanted to collect S$10.80 for expenses. He said further, 'everyone here has joined, what about you?'. The complainant, who was a stall holder, took this as a threat and feared that if he did not pay, he would be beaten or his stall upset. He therefore paid over a sum of money. There was no suggestion that the appellant had any business to collect any money from the complainant.

Held: all that is necessary under s 383 is that a person should be intentionally put in fear of any injury and should be thereby dishonestly induced to deliver any property or valuable security. Accordingly, on the facts, there was sufficient evidence on which to convict the appellant.

Beh Tuck Seng v R [1947] MLJ 197 High Court, Singapore (Murray-Aynsley CJ).

The appellant, a volunteer special constable, was charged and convicted under s 384 of the Penal Code. It was alleged that the appellant had, to extract money, threatened various persons who were smoking chandu with arrest.

Held: a threat to exercise the legal powers of a person against another does not constitute putting that other person in fear of 'injury' within the meaning of s 44 of the Penal Code and therefore, the appellant should not have been convicted of extortion.

Lee Vincent v R [1949] MLJ 296 High Court, Singapore (Murray-Aynsley CJ).

This was an appeal from the conviction of the appellant by a court of two judges of two offences under s 5 of the Arms Offences Act 1973. The evidence showed that the appellant was an accomplice in a robbery in which a pistol was used.

Held, dismissing the appeal: (1) and (e) the accused may reasonably be presumed to have known that the person who used the arm was carrying or had in his possession or under his control such arm; (2) in this case on the first charge, on the evidence led by the prosecution, the trial judges were correct in their finding that (a) there were ample circumstances present from which they considered it reasonable to presume that the accused knew that the person who used the firearm was carrying it and (b) the evidence showed that the gun was fired with the intention of causing physical injury and therefore used within the meaning of s 2 of the Act; (3) to bring home a charge under s 5 of the Arms Offences Act 1973, the prosecution must prove that (a) an offence was committed or an attempt to commit an offence was made; (b) the accused was an accomplice in the said offence or attempted offence; (c) the accused was present at the scene of the said offence or attempted offence; (d) an arm was used within the meaning of s 2 of the Act by a person in the commission or attempted commission of the said offence;on the second charge, the trial judges were correct in their finding that on the evidence tendered by the prosecution, the appellant might reasonably be presumed to have known that the person who used the arm in the robbery was carrying such arm and that the arm was used in the robbery.

Talib bin Haji Hamzah v Public Prosecutor [1976] 2 MLJ 2 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

The appellants were charged with having committed an offence under s 394 of the Penal Code. At the close of the prosecution case, the charge against the appellants was amended to one under s 392, and after their defence was called they were found guilty on the amended charge. The main ground of appeal was that the district judge had no jurisdiction to proceed with the trial after the admission of evidence that one of the appellants was armed with a knife in that such evidence added an element which raised the offence from one under s 394 to one under s 397 of the Penal Code, an offence which the district court had no jurisdiction to try under s 177 of the Criminal Procedure Code (Cap 132, 1955 Ed).

Held: although evidence was adduced in the district court to support a charge under s 397, that fact alone in no way affected the jurisdiction of the district judge in proceeding to deal with the charge before him.

Goh Lian Hock & Anor v R [1963] MLJ 251 High Court, Singapore (Wee Chong Jin CJ).

R v Yeo Kim Watt & Anor [1946] MLJ 155 Court of Appeal, Singapore (Willan CJ (MU).

See CRIMINAL LAW, Vol 4, para 1393.

The appellant was a police inspector. He was issued by the police force with a service revolver and 12 rounds of ammunition. He was dismissed from the force on 14 February 1975, but subsequent to his dismissal, he did not deliver up the said revolver and ammunition as required under s 24(1) of the Police Force Act (Cap 78, 1970 Ed). He was consequently convicted on the re-amended charge for criminal breach of trust of the said revolver and ammunition and for failing to deliver them to the police force in violation of s 24(1) of the Police Force Act, an offence punishable under s 406 of the Penal Code. He appealed. Counsel for the appellant argued, inter alia, that s 24(2) had created a specific offence and the appellant, for failing to deliver up the revolver and ammunition, should have been charged under s 24(2) of the Police Force Act and not under s 406 of the Penal Code and to have done so contravened the specific provisions of s 24(2). The court had therefore to decide whether s 405 of the Penal Code which defines criminal breach of trust, in so far as it applies to a police officer, had been repealed by s 24(2) of the Police Force Act.

Held: (1) an offence created under s 24(2) of the Police Force Act is separate and distinct from the one under s 405 of the Penal Code and there can be no question of s 24(2) repealing s 405 of the Penal Code; (2) the manner in which the criminal breach of trust itself was committed need not be specified in the charge unless the nature of the case is such that the particulars required by ss 151 and 152 of the Criminal Procedure Code have not given the accused sufficient notice of the matter with which he is charged; (3) the appellant had abandoned the revolver and ammunition in a dilapidated and unoccupied hut and had caused wrongful loss to the government of Singapore. There was ample evidence to support the magistrate's finding that the appellant had intended to cause this wrongful loss and consequently, this disposal was 'dishonest' within the meaning of s 405 of the Penal Code.