FAULT ELEMENT FOR HOMICIDE

Flowchart for fault element

At first blush,
was death or
injury either
intended or
known?

Yes No

Did the Accused If the risk of death was

contemplated but ignored: If the risk of death was not
intend to kill? contemplated: Negligence
Rashness

YES > NO >

Did the Accused If behaviour was
Murder under reasonable:
s300(a) intend to inflict the
injury found? Acquittal

YES > NO >

Was the injury found Did the Accused know that his acts
ordinarily sufficient to cause would certainly kill, and had no
death? excuse for doing so?

YES > NO > YES > NO >

Murder under Was the injury inflicted Murder under s Did the Accused
s300(c) likely to cause death? 300(d) know his acts were
likely to kill?

YES > Did the Accused NO > NO >

know that this would likely Did the Accused know YES >
cause the death of the Did the Accused
that he may cause Culpable homicide know that he may
specific victim? death? under s 299 (iii)
cause death?

YES > Murder YES > Rashness NO > Did the Accused fall YES > Rashness
under s 300 (b) under s 304A below an objective standard under s 304A
of behaviour?

NO > NO > Negligence

YES > Negligence or acquittal
Culpable homicide
under s 299(ii) under s 304A

NO > Acquittal

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Assessing intention

Factors used to assess the Accused’s intention (i.e. whether to kill, to inflict a severe injury, or to
inflict an injury likely to cause death), per PP v Thenegaran a/l Muragan [2013] MLJ:
1. Nature of the injury
2. Mode that caused the injury
3. Force used to inflict the injury
4. Where the injury was inflicted (Virsa Singh)
5. Motive, knowledge, and mental state of the accused (per PP v AFR)

Different approaches used in assessing the Accused’s intention:

(a) The Virsa Singh approach

1. What was the injury actually inflicted?
2. Did the Accused intend to inflict this injury?
3. Was this injury ordinarily sufficient to cause death?

(b) The McBride approach

1. What was the injury actually intended?

2. Was this injury ordinarily sufficient to cause death?

Assessing knowledge

(a) Knowledge is to be inferred from the circumstances of the case and connotes actual knowledge
or virtual certainty of the subject matter (PP v Koo Pui Feng)

(b) Wilful blindness also satisfies the requirement of knowledge (PP v Tan Kiam Peng):
 Did the accused have any reason for suspicion?
 If so, did he wilfully shut his eyes to inquiring about this suspicion?

(c) Per the Indian case of Behari v State on s 300(d):

“A conviction under s 300(d) requires (i) that the act is imminently dangerous, (ii) that in all
probability it will cause death or such bodily injury as is likely to cause death, and (iii) that the
act is done without any excuse for incurring the risk.”

Clause (4) of s 300 is not intended to apply to cases in which a person intends to inflict an injury
likely to cause death…Usually, it applies to cases in which there was no intention of causing
death or of causing any bodily injury. It may, however, also apply to an act in which the intention
is to cause simple grievous hurt merely, but the act is done with the knowledge and in the
circumstances mentioned in the clause.”

(d) What is meant by an inexcusable risk under s 300(d)?

 In the Indian case of Emperor v Dhijaria, a mother who jumped into a well with her baby
was found to have an excuse because she had feared her husband, who frequently ill-
treated her. She was convicted under s 299(iii) instead.
 The Malaysian case of PP v Kenneth Fook Mun Lee did not consider this clause when it
considered the instance where the accused was intoxicated. This suggests that this clause
can only apply to situations not covered by the defences in the Penal Code.

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Assessing rashness or negligence

(a) Rashness occurs when the accused consciously knows that illegal consequences (i.e. death)
may occur, but proceeds to perform the act causing death with the hope that death will not
ensue (PP v Teo Poh Leng).
(b) Inadvertence or indifference can also constitute rashness if this is particularly wilful or callous
(S Balakrishnan v PP)
(c) If the Accused took precautions to minimise the risk, but was aware that it still existed, then he
remains liable in rashness (PP v Poh Teck Huat).
(d) Negligence occurs when the accused has not taken reasonable care and precaution for the
safety of others. This is to be assessed on the civil standard of negligence, i.e. the standard of
the reasonable man in the accused’s shoes (PP v Ng Keng Yong)

Decided cases (does not include cases where partial defences successfully operate)

Intention
Intention to kill o Accused had sexually molested his stepdaughter and wanted to silence her
(PP v Mohamed Johari SGCA)
o Accused had inflicted twelve injuries at various parts of the victim’s body (PP
v Shaiful Edham)
o Accused had inflicted over 45 stab wounds on one of his victims (PP v Wang
Zhijian)
Intention to o A stab in the leg that severed a vital artery, even if the Accused was not
inflict injury aware of this artery (PP v Lim Poh Lye)
certain to cause o Accused used a spear and pushed it in the region of the abdomen of the
death deceased with such force that it went in and cut the intestines in six places
(Virsa Singh)
o Accused had immersed his stepdaughter’s face in a pail of water for a
prolonged period of time (PP v Mohamed Johari SGHC)
o Accused had stabbed victim on the abdomen and had also strangled her (Eu
Lim Hokkai v PP)
o Accused had inflicted five stab wounds on the victim’s chest (PP v Wang
Wenfeng)
Intention to o Accused threw her young daughter off the parapet of a flat, causing her
inflict injury death (PP v Chee Constance)
likely to cause o Accused had slapped a baby on the face repeatedly, leading to head injury
death and death (PP v Sarle Steepan)
Knowledge
Knowledge o Accused had callously fired a shot at the victim through the windscreen of a
one’s acts are car after the victim had refused to come out of the car (PP v Kenneth Fook
certain to cause Mun Lee MLJ)
death
Knowledge that o Wrapping the victim’s head with a bed sheet and applying a ligature to his
one’s acts are neck using a towel (PP v Md Mosharaf) – PG case
likely to cause o Accused had beat his young daughter violently upon seeing her chewing his
death cigarettes, something which he had told her not to do (PP v AFR)
o Accused pushed his girlfriend down into the MRT tracks (PP v Kwong Kok
Hing) – attempt case
o Accused had swerved his taxi into the path of a motorcycle travelling at high
speed (PP v Wan Chin Hon)
Rashness
o Accused had abetted the dunking of a trainee in a tub during a training course, causing his
death (PP v Pandiaraj)

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 o Accused had fallen asleep while behind the wheel (PP v Ng Jui Chuan)
o Accused had pressed a child’s nostrils together and tried to force-feed him (PP v Tiyatun)
Negligence
o Accused had negligently failed to supervise the restraining of a prisoner, resulting in his death
(PP v Lim Kwo Yin)
o Accused had been in negligent in steering a navy ship, resulting in a collision and death to her
fellow sailors (Ng Keng Yong v PP)
o Accused had lost control of her vehicle while driving (PP v Teo Poh Leng)

Development of interpretation of s 300(c)

Virsa Singh v The original formulation…

State of
Punjab 1. What was the injury actually inflicted?
2. Did the Accused intend to inflict this injury, and not some other sort of injury?
- If so, proceed. If not, no conviction under s 300(c), but under s 304A or one
of the knowledge-based limbs of s 299/ s 300.
3. Was this injury inflicted ordinarily sufficient to cause death?

Md Yasin v Applying the Virsa Singh approach…

PP
1. What was the injury actually inflicted?
- Fracture of the victim’s ribs (which was ordinarily sufficient to cause death)
2. Did the Accused intend to inflict this injury, and not some other sort of injury?
- As there was only an intention to sit on the victim’s chest (i.e. to cause some
superficial injury), and no intention to inflict some sort of internal injury, there
can be no conviction under s 300 (c).

PP v No requirement that the Accused had to inflict that particular bodily injury found…
Visuvanathan
1. Did the Accused intend to cause any bodily injury?
(No requirement that the injury found must be the injury intended)
2. Was the bodily injury found ordinarily sufficient to cause death?

Tan Chee Consideration of the Accused’s motive…

Hwee v PP
1. What was the injury actually inflicted?
- Strangulation of the victim
2. Did the Accused intend to inflict this injury, and not some other sort of injury?
- There was no intention to cause injury at all; the injury was accidentally
caused. Accused was presumably convicted under s 299 (iii), which
requires knowledge that one is likely to cause death.

Lim Poh Lye Restatement of Virsa Singh approach…

v PP
With the emphasis that there is a crucial distinction between:
 Accused intending a particular injury, and not knowing of its consequences
(conviction), and;
 Accused intending another minor injury altogether (no conviction)

PP v AFR The question is “to what extent would an accused person be imputed with the
knowledge that, by carrying out the acts on the deceased, he would cause injury
that would result in death?”

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1. What was the injury actually inflicted?
- Rupture of an important vein
2. Did the Accused intend to inflict this injury, and not some other sort of injury?
- There was no intention to inflict harm serious enough to rupture the IVC.
This was inferred from the lack of motive to cause serious injury, the lack of
knowledge that this may occur, and his mental state.
- Accused was convicted under s 299 (iii) because he “knew or ought
reasonably to know that it is likely to cause death”

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 PHYSICAL ELEMENT FOR HOMICIDE

An act or illegal omission

In cases where a positive act does not exist, s 32 of the Penal Code equates illegal omissions with
the commission of a positive act. s 43 of the Penal Code essentially tells us that an illegal omission
occurs when a person does not do something he is legally bound to do. Three such situations are
envisaged:

 Where the omission in question is expressly made an offence by the criminal law
 Where the omission in question involved the contravention of a lawful or statutory duty
 Where the omission in question would attract civil liability, e.g. a tortious duty of care
o Where the Accused had high degree of control over the Victim (Om Prakash)
o Where the Accused had voluntarily assumed responsibility towards the Victim (R v Taktak)
o Where the Accused had created the dangerous situation (R v Miller)

In line with this, an “act” can be construed more broadly than just the most immediate physical act
done by the Accused. This is often done if the immediate act is not voluntary, but the series of acts
before are.

 For example, the Australian case of R v Ryan characterised the Accused’s act as the
preparation of a loaded and cocked gun, instead of the act of squeezing the trigger.
 s 33 allows this to be done because it states that a series of acts or omissions can be deemed
an act or omission.

The act or illegal omission must be voluntary

The requirement of voluntariness is a fundamental tenet of criminal law and is somewhat

encapsulated in the Singapore High Court case of Yong Heng Yew v PP, which makes it clear that
the law will only punish acts done of one’s own volition. In addition, it can also be said that the
words “act” or “omission” in the Penal Code presuppose a voluntary act. In this regard, s 39 of the
Penal Code is helpful as it seems to establish voluntariness as willed or directed conduct. One can
also refer to Australian cases such as Falconer or Ryan, which summarises this as the intention to
commit the act in question (and not the intention to bring about the consequences of the act, which
goes into the fault element).

As to the distinction between an underlying mental infirmity which is prone to recur, which deprives
the accused of the capacity to control his or her act and which prevents him or her from appreciating
its nature and quality (insane automatism); and a transient, non-recurrent mental malfunction
caused by external factors which the mind of an ordinary person would be likely not to have
withstood and which produces an incapacity to control his or her acts (sane automatism),
see: R v Falconer (1990) 171 CLR 30 at 30, 53.

Illustrations of non-insane automatism include:

(a) the act of a sleepwalker: R v Tolson (1889) 23 QBD 168 at 187;
(b) post-traumatic loss of control due to head injury: Bratty v Attorney-General (Northern
Ireland) (1963) AC 386 at 401 and 415; Cooper v McKenna (1960) QldR 406;
(c) an act done in a state of temporary or transient dissociation following severe emotional shock
or psychological trauma, which was not prone to recur and which the mind of an ordinary person
(of the accused’s age and circumstances and of normal temperament and control) would be likely
not to have withstood: R v Falconer (1990) 171 CLR 30 at 56–57;

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 (d) an act done under the influence of an anaesthetic: R v Sullivan (1984) AC 156.
(e) some forms of epilepsy, depending on their aetiology: R v Youssef (1990) 50 A Crim R 1.

The act must have caused the victim’s death

The current law

In order to demonstrate causation, the High Court case of Ng Keng Yong v PP suggests that the
Accused’s conduct must have been an operating, significant, or substantial cause of the victim’s
death. Furthermore, two foreign cases cited with approval further delineate the requirements of
causation. The Malaysian decision of Lee Lai Siew appears to require a factually causative link
between the Accused’s act and the death of the victim. The Indian decision of Kurban Hussein
found that an independent act by a third-party ultimately causing death would break the chain of
causation between the Accused’s act and the victim’s deaths.

Put together, the requirements of causation under Singapore law appear as follows:

(a) A factually causative link between the Accused’s act and the victim’s death;
(b) The act must have been an operating, significant, or substantial cause of the victim’s death;
(c) If there exists an external event which also contributed to the victim’s death, causation is not
satisfied if this event is deemed so independent of the Accused’s act so much that the former
should be deemed the sole cause in law of the victim’s death. In other words – in causing the
victim’s death – did the subsequent event so overwhelm or crowd out the effects of the
Accused’s initial act?

Dealing with intervening causes

A. Where third-parties intervene
o The question is whether or not the act was an independent one, i.e. a “free, deliberate, and
informed one” (per Hart & Honore)
o If the accused had created the situation that caused the third-parties to intervene, he is more
blameworthy and the chain of causation is generally not broken (Ng Keng Yong v PP)
o If the third-party act was a reasonable one for the purposes of self-preservation or performing
a lawful duty that arose in response to the accused’s initial act, then the chain of causation is
generally not broken (R v Pagett)

B. Where medical treatment intervenes

o English case of R v Jordan: Medical treatment will break the chain of causation if it can be
proven that medically operative cause of death can be traced to the treatment; and the wound
no longer operates.
o Australian case of R v Smith: Medical treatment only breaks the chain of causation if it is done
without due care and attention (bad faith), or done without common skill (gross negligence)

C. Where natural events intervene

o The question is whether the natural event is something in the ordinary course of things that
would have flowed as a consequence of the Accused’s act (Hallett v R)

D. Where the victim himself intervenes

o If V was under pressure to take action to save his own life, was this a natural result of the
Accused’s act (R v Roberts) or a reasonable step to take in the circumstances? (R v Pitts)?
o If V’s act was voluntary:

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  Was this a reasonable step to take in the circumstances? (R v Storey; Nga Moe v The King)
 However, in cases where the victim’s act was due to his extreme religious beliefs, the courts
are more unwilling to say that this act was unreasonable (R v Blaue).

Alternative approaches
o The crux of the matter is how to ascertain whether or not a supervening cause is truly
independent of and distinct from the initial act.
o YMC suggests the foreseeability test, i.e. causation is only broken if the intervening cause is an
unforeseeable consequence of the initial act.
 However, a consequence can be unforeseeable yet not be so independent from the initial
act. For example, the victim not wanting a blood transfusion because of religious beliefs is
usually unforeseeable to the Accused, but this can have said to not be independent from
from the Accused’s stabbing.
o Professor Eric Colvin suggests that the causal connection is only broken if the latter actor has
the same or higher degree of culpability than the initial actor. However, he does not suggest a
determinative way to assess the degree of culpability.

The physical element and the fault element must concur

The Singapore Court of Appeal case of PP v Abdul Rauf is authority for the fundamental principle
that the fault and physical elements of any crime must coincide. However, a broader definition has
been used in exceptional scenarios. The Singapore courts have used two approaches.

A. The same transaction approach

o Shaiful Edham bin Adam v PP establishes the “same transaction” approach, whereby a series
of distinct acts may be regarded as forming part of a larger transaction; and it will suffice if the
accused had the necessary mens rea at some point in the transaction.
 There must either be a preconceived plan to kill or a spontaneously developed intention to
kill and hide the body if this approach is to be used. Thus, this can approach can also be
used for a charge under s 300(a).

o Wang Wenfeng v PP emphasised that there will always be concurrence between the two
elements in a charge under s 300(c). This is because if there is a severe enough bodily injury
present, death will by definition always result regardless of whatever happens after the act.
 The case also alluded to the fact that the same transaction approach cannot be used when
there is no premeditation or spontaneous intention to kill.

B. The causation approach

o Alternatively, Shaiful Edham bin Adam establishes the causation approach.

 The concurrence principle is satisfied so long as the Accused’s initial act (with the requisite
mens rea for the full offence) remained a substantial and operating cause of the victim’s
death.
 However, this was only briefly mentioned, and the same transaction approach would
usually be the test used to establish concurrence in such exceptional scenarios

o Criticisms of the approach:

 Danger of overextending liability. This is particularly so when the initial act is insufficient to
cause death, but where the act thereafter was neither unforeseeable nor independent (and

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 thus would not break the chain of causation). Furthermore, the unconsciousness of a victim
would generally always be an operating cause of his death.
 Not limited to where there is an intention or premeditation to kill
 Fails to adequately explain when the chain of causation can be broken

C. Extension of the same transaction approach

o More generally, when should a series of acts be regarded as one transaction?

 When they are so related to one another in point of purpose, or as cause and effect, or as
principal and subsidiary acts (Emperor v Sherufalli Allibhoy, affirmed in the Straits
Settlement case of Sakandar Khan v R) (albeit with reference to the Criminal Procedure
Code)

o This is similar to the moral congruence approach advocated by YMC and adopted by English
cases such as R v Le Brun.
 It appears that simply fleeing from the scene will not be sufficient to attract the application
of the same transaction approach (Muhammed Radi v PP). The approach would be
attracted in two situations, if there are two distinct acts (GR Sullivan, Cause and the
Contemporaneity of Actus Reus and Mens Rea)
(1) If it were perpetrated in order to gain some advantage
(2) If it manifested an indifference to the welfare of the victim

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 STRICT LIABILITY OFFENCES

1. Presumption of mens rea

o It is settled law that the mere omission of a mens rea requirement does not automatically entail
strict liability. The court will look towards the intentions of Parliament to determine whether or
not they had actually intended to create a strict liability offence (PP v Teo Kwang Kiang).

o Factors to consider (per Gammon v Attorney-General of Hong Kong; affirmed in many cases
including PP v Ng Chee Keong):
 If the statute is silent on whether or not a mens rea is required, this is a factor that supports
that mens rea is required (PP v Phua Keng Tong)
 The presumption that mens rea is required is particularly strong where the offence is
particularly criminal in nature
 The presumption can be displaced where the statute is concerned with an issue of social
concern, such as public safety where the prohibited act is not one which people can
protect themselves from through their own vigilance (Lim Chin Aik v R)
 The presumption can only be displaced when it is shown that the creation of strict liability
will promote the objects of the statutory offence in question.

o Mens rea has been required in:

 Printing documents which contain an incitement to violence, because of its roots in
sedition, the fact it covers a wide range of criminal situations , and that mandating a strict
liability offence could have a chilling effect on political speech (PP v Yue Mun Yew Gary)
 Having in possession a secret document, because this does not concern public safety or
public welfare, and the language of the statute did not signify that the mens rea
requirement should be displaced (PP v Phua Keng Tong)
 Insider trading because it would discourage competent entrepreneurial persons from
holding directorial positions in companies and place morally innocent persons at risk of
being convicted for mere possession of inside knowledge (PP v Ng Chee Keong)

o Mens rea has not been required in:

 Having in possession food intended for human consumption that was contaminated, as
the statute was meant to protect the public from such food (PP v Teo Kwang Kiang)
 Driving without a license, because this would promote observance of the law meant to
protect public safety (MV Balakrishnan v PP)
 Driving a tall vehicle without a permit, because Parliament had intended to stop reckless
drivers from not exercising due care and consideration in their driving; harm may be done
even if drivers were negligent or reckless (Teo Cheng Kwee v PP)
 Advertising tobacco products (PP v Philip Morris Singapore)

2. Due diligence approach or mistake of fact defence

Even if mens rea is not required for the offence, the accused may raise as a defence:

o The common law defence of due diligence, adopted by the High Court in MV Balakrishnan v
PP, which requires the accused to have taken reasonable care.
 The accused may be acquitted if he had taken due care and attention to comply with the
statute (Comfort Management v PP) or if he had a honest or reasonable belief that what
he was doing was not unlawful (Chng Wei Meng v PP)

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  In the recent case of PP v Philip Morris Singapore, the District Court had applied the first
formulation.

o The Penal Code defence of mistake of fact (Tan Khee Wan Iris v PP)
 This requires the accused to prove that he had despite due care and attention made a
mistake of fact, which caused him to believe that he was bound or justified by law in
performing the illegal act.

3. YMC’s criticisms & suggestions

o Presumption of mens rea approach artificial and unnecessary. If the statute purports to create
a strict liability offence, this should be respected.
o Due diligence approach is unnecessary and inconsistent with the use of the mistake of fact
defence (e.g. it requires only a reasonable or honest mistake, per Chng Wei Meng v PP). The
latter is sufficient to exculpate an accused and should be used instead of due diligence.

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 OTHER OFFENCES

List of offences

Unlawful assembly with a Gang robbery with murder Firearms offences

common object

Unlawful assembly with a common object

This offence is found under Sections 141, 142, 146, and 149 of the Penal Code.

Requirements
Five or more o Unlike common intention, common object does not require a meeting of
persons minds before the attack. (Mohammed Abdullah v PP)
assembled in
common object o What is required is an objective that is common to the persons who constitute
the assembly and that they are aware of it and concur in it. This can be
inferred through the nature of the assembly, the weapons used by the
offenders and the behaviour of the assembly at or before the scene of
occurrence. (Lim Thian Hor v PP)

The common o Overthrow the state or hinder any public servant

object is to do o Resist execution of the law or legal process
one of the five o Commit any offence
things covered  All offences are covered
under s 141  S40(3) states that if the conduct is punishable under any law under than
the Penal Code, such conduct must attract a maximum punishment of >
6 months imprisonment to qualify as an offence (PP v Tan Meng Khin)
o Obtain the possession of any property criminally
o Compel someone to do something illegal

Membership of o The following persons are deemed to be members of a unlawful assembly

the unlawful (per s 142):
assembly by the  Those who know that the assembly is unlawful
Accused  Those who intentionally join the assembly
 Those who are continually present at the assembly

o Examples:
 Yes – Appellant chose to remain at the scene when it became clear that
the common object was to cause hurt to the victim (Osman bin Ali v PP)
 Yes – Appellant participated in a 2nd assault, although he did not
participate in the first (Phua Song Hua v PP)
 No – Appellant watched the fight at first but then subsequently ran away
(Chen Jian Wei v PP)

An act done in o If nothing is done, all members are guilty of membership in an unlawful
pursuant of the assembly (s 143).
common object
o If force or violence is used, all members will be convicted for rioting (s 146)

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 o If an offence is committed pursuant to the common object, or if it is known
that such an offence is likely to be committed, then all members are guilty of
that offence (s 149).
 The offence must have been part of the common object of the assembly,
or known to have been likely to be committed by members of the
assembly (PP v Fazely bin Rahmat)

Gang robbery with murder

This offence is found under Sections 391 and 396 of the Penal Code.

Requirements
Five or more o There must be a total of five or more persons participating in the robbery,
persons including those who are present and rendering aid (s 391).

Conjointly o There must be united or concerted action of the persons participating in the
committing gang transaction to commit robbery (Prasong Bunsom v PP)
robbery
o All members participating in the robbery must have the common intention to
rob to attract liability (Daniel Vijay v PP)

Murder o As long as there is a murder committed by any one of the persons during the
committed in the course of the robbery, all members of the gang are liable for murder (s 396).
midst of the This means that the person must fulfil the mens rea for murder.
gang robbery
o The murder must be committed incidentally (Panya Martmontree v PP) or for
the end of the robbery (Ang Eng Beng v PP). It is not clear which stand
should be adopted, although Daniel Vijay v PP aligned the offence with that
of common intention. This suggests that the murder must have been done
for the purpose of the robbery.

o There is no requirement for murder to have been in the contemplation of the

accused, nor is there a requirement for being present at the scene of the
killing. Furthermore, the accused need not have also taken part in the murder
(Prasong Bunsom v PP).

Firearms offences

This offence is found under Section 5 of the Arms Offences Act.

Requirements
Definition of “arms” o Any kind of gun from which any shot or bullet can be discharged, or
noxious fumes can be emitted, and any component part of any such arms,
and bayonets, daggers, and spears (Arms Offences Act)

Principal offender o The principal offender must use or attempt to use an arm when committing
uses arms to or attempting to commit any scheduled offence (e.g. housebreaking,
commit any extortion, and robbery) (s 4A).
scheduled offence
o He will be sentenced to death even if he didn’t intend to injure anyone.

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 o All members participating in the robbery must have the common intention
to rob to attract liability (Daniel Vijay v PP)

The accused must o No case law defines what an accomplice is. YMC suggests that any
be an accomplice person who knowingly participates in the commission of the offence
present at the should be considered an accomplice.
scene of the
offence o YMC also submits that presence must go beyond participation in the
offence, because participation merely makes one an accomplice, and this
requirement of presence would be irrelevant. It suggests that presence is
found if the accomplice is within sufficiently close proximity to assist the
primary offender.

The accused must o This is an objective test, from the wording of the statute
know or be
presumed to know o Where a firearm is discharged more than once, the accused will be
that the primary deemed to have knowledge of the firearm after the 2nd shot, even if there
offender was was no such knowledge of the firearm before the first shot (PP v Ho Jin
carrying a firearm Lock MLJ)

The accused will o Running away from the scene of the robbery before the shots were fired
be sentenced to does not amount to preventing the use of the firearm (Remli Senallagam
death unless he v PP)
had taken all
reasonable steps
to prevent the use
of the firearm

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 ATTEMPTS

The offence of attempt in general

A. The law
Chan Sek Keong CJ in PP v Mas Swan bin Adnan [2012] SGCA in affirming Chua Kian Kok v PP
outlined the elements required to make out a conviction for attempt pursuant to Section 511 of the
Penal Code:

Mens rea o There must be an intention to commit the primary offence, i.e. the offence allegedly
attempted to have been committed.

Actus rea o The accused must have embarked on the “crime proper”, i.e. he must have gone
beyond merely preparing for the offence.

o PP v Ng Pen Hock [2008] SGDC citing Indian authority with approval appeared to
prefer the test of proximity suggested in R v Eagleton: “The moment he commences
to do an act with the necessary intention, he commences his attempt to commit the
offence. In essence, it is sufficient that the act was deliberately done and manifest
an intention to commit the offence, being reasonably proximate to the completion
of the offence.”

o The Colorado Supreme Court case of People v Thomas also uses the substantial
step test and requires the act or conduct proceed far enough to be "strongly
corroborative of the firmness of the actor's purpose," id., to complete those acts
that will produce a substantial and unjustifiable risk of the illegal result occurring.

The following cases have satisfied the requirement:

 Accused found guilty of attempting to march in a procession without a permit as he
would have continued if he had not been stopped (PP v Chee Soon Juan)
 Accused had broken into the window of a house in an attempt to housebreak (PP
v Shahrizal Shahan)
 Accused had tried to dishonestly induce the victim to believe he was the owner of
the $1,000 in question (PP v Abdul Aziz bin Abdul Majid)
 Accused had discussed the price of drugs and waited for over two hours for their
arrival and subsequent repacking, which constituted an attempt to possess drugs
(PP v Ng Pen Hock)
 Accused had sucked on victim’s breasts and attempted to insert his penis into
victim’s vagina (PP v Md Iskandah; PP v Teng Boon Leng)

o Other tests suggested by YMC were also briefly mentioned by the court in Mas
Swan bin Adnan:
 Substantial step test, i.e. accused must have “progressed a substantial way
towards the completion of the offence”
 Last act test, i.e. accused must have done all that he believed to be necessary
to commit the offence
 The accused’s conduct must have been such as to “clearly and unequivocally
indicate in itself the intention to commit the offence”

15
B. Impossible attempts
Chua Kian Kok v PP laid out four categories of impossible attempts, of which only the last would
exonerate an accused.

Physical o The intended crime would have been impossible to commit because of a
impossibility misconception of fact. For example, someone who tries to steal jewellery from
an empty safe.

Legal o The intended act would not be a crime because of a misconception of fact. For
impossibility example, someone who steals an umbrella who turns out to be his own (which
he believed to be the property of someone else)

Inept o The intended crime could not have been committed using the accused’s method
impossibility of committing the crime. For example, someone who tries to break open a safe
using a small knife.

Criminal o The intended act would not be a crime because of a misconception of law. For
impossibility example, someone who has sex with a 20-year old girl while mistakenly believing
that this is against the law.

C. Should legal impossibility & inept impossibility scenarios be criminalised?

YES
o The focus of this offence is on the accused o
attempting to commit a crime, regardless of
whether this was actually possible or not.
o Someone who genuinely intends a crime is
as equally culpable as someone who
performs it, even though he may have o
intended a crime by absurd means.
o It is difficult to draw a line between ineptitude
and absurdity,
NO
No culpability should attach to instances
where an act has no chance at all of
succeeding, i.e. such instances are not
sufficiently injurious to the public to warrant
criminalization.
No culpability as such acts are “inherently
defective”, to the extent that the failure of
performance is ultimately linked to the
accused’s own volition.

D. YMC’s proposal

(Drawn from the Indian decision of Asgarali Pradhania and implicitly affirmed by the Malayan Court
of Appeal in Munah bte Ali):
Liability for impossible attempts should attach only if the impossibility of performance was due to a
factor outside of the accused’s knowledge or control. This is because if not for the external factor,
the crime would have been committed. Thus, only then is the accused’s moral culpability similar to
an accused who has actually committed the crime. This would also allow accused persons to
voluntarily withdraw from their attempts without attracting liability.

Attempted murder and attempted culpable homicide

A. The law

16
This is enshrined in s 307 (murder) and s 308 (culpable homicide) of the Penal Code.

Mens rea o The express wording of s 307 and 308 acknowledges both intention and knowledge
as acceptable fault elements. They appear to state that as long as any fault element
in s 299 or s 300 is satisfied, the mens rea element is fulfilled.

Actus rea o The illustrations to s 308 and s 307 suggest that the actus rea required is the full
actus rea required to make out a charge of murder or culpable homicide, with the
exception of the requirement that the accused’s acts must have caused death

Is there such thing as attempted rashness or negligence?

YES
o In the Colorado Supreme Court case of People v Thomas, the court affirmed that attempted
reckless manslaughter existed. Reckless manslaughter is the equivalent to causing death by a
rash act in Singapore. In Colorado law, an intention to commit the offence in question is also
necessary before a conviction for attempt can be made out.

o The mens rea for attempted reckless manslaughter is an intention to engage in and complete
the risk-producing conduct. In addition, there must be a conscious disregard of a substantial
and unjustifiable risk that the accused’s acts will cause the death of another person.

o Similarly, the mens rea for attempted indifference murder is the intention to engage in the
negligent conduct.

o This is because the awareness of a practical certainty of the prohibited result (i.e. knowledge)
cannot be viewed as more dangerous than the conscious disregard of a substantial and
unjustifiable risk that the proscribed result will occur (i.e. rashness).

NO
o The concept of “intention” and “rashness/negligence” cannot coexist if attempt requires that
there is an intention to commit the specific offence in question.

o This excessively extends criminal liability, e.g. driving very fast on the wrong side of the road
while going around a curve.

17
 DEFENCES RELATING TO THE NATURE OF THE ACT

Which defences to utilise?

Private defence Provocation Sudden fight

Exceeding private defence
ACCUSED WAS DEFENDING ACCUSED WAS PROVOKED ACCUSED HAD KILLED IN
HIMSELF HEAT OF THE MOMENT
Was the Accused defending Did something that the victim Was there a sudden fight
himself against an attack by the do lead to the Accused losing between the Accused and the
victim? self-control? victim leading to a sudden
quarrel?

Private defence & exceeding private defence

A. The law
1. Preconditions to both defences (Per Tan Chor Jin v PP [2008] SGCA)
The Accused o s 97 of the Penal Code states that the Accused must have been subjected
must have been to any offence against the human body. These offences must have been
subject to an committed or reasonably apprehended using an objective test.
offence
o s 98 states that the definition of an offence under this section extends to
offences negated by successful defences of intoxication, mistake, or
unsoundness of mind, as well as by immaturity or youth.

o There is no right to private defence against an act which itself was done in
the exercise of private defence (PP v Mohd Sulaiman).

o While an initial aggressor will generally have no right to private defence, he

can raise the defence if the victim’s response to aggression did not amount
to private defence (Tan Chor Jin v PP):
 E.g. A punches B, who attempts to stab A. A’s act cannot be considered
an act of private defence because it exceeded the level of force required
to defend himself.

The Accused o s 99(3) of the Penal Code expressly stipulates an objective test that the
must not have defence is not available when there is time to seek the protection of the
had the public authorities.
possibility of
recourse to the o Hence, the defence is not available when the harm threatened is only in the
public future.
authorities
o The Malaysian case of PP v Dato Balwant Singh establishes that there is no
duty to retreat from a fight. However, there remains a duty to contact the
police about a future threat. In addition, the question of opportunity to retreat
is considered under limb C3 of the defence.

2. Elements of private defence

The Accused o This requirement was affirmed in Tan Chor Jin v PP and also alluded to in s
must have 100 (a) and (b) of the Penal Code.
reasonably

18
 apprehended o s 100 of the Penal Code states that the Accused is allowed to cause death
the commission if he apprehends homicide, grievous hurt, kidnapping, or rape. s 101 states
of a relevant that the Accused is allowed to cause any other type of harm if other offences
offence are apprehended.

o Tan Chor Jin v PP is also authority for the notion that this is an objective-
subjective test for all offences, in that the Accused’s subjective belief that an
offence was to be committed must be reasonably held.

o The Malaysian case of PP v Dato Belwant Singh also states that the
Accused need not have waited for the actual offence to be committed as
long as reasonable apprehension was present.

The Accused o s 102 of the Penal Code is clear authority that the relevant period during
must have which the defence is available is from the point where the Accused
utilised his right reasonably apprehends a threat or danger to himself, until the time this
to private apprehension ends.
defence when
the threat was
still operating

The Accused’s o s 99(4) of the Penal Code states that the right of private defence only
use of force extends to the infliction of the harm necessary for the purposes of self-
must have only defence.
caused harm
required to o Despite the objective slant of the statute, Tan Chor Jin v PP has adopted an
defend oneself objective-subjective test which takes into account the personal
circumstances of the accused. Textbook Criminal Law in Malaysia and
Singapore therefore submits that this provision requires a reasonably
necessary response, and not the minimum necessary response.

3. Elements of exceeding private defence

The right to Two possibilities for interpreting this:
private defence
was exercised o The right to private defence was relied upon honestly and reasonably by the
in good faith Accused (Criminal Law in Malaysia & Singapore)

o The Accused had defended himself with due care and attention (i.e. honestly
and reasonably) and not because of a grudge against the victim (Soosay v
PP). However, the objective element of due care and attention would
contradict the fully subjective wording of Exception 2.

The right to o Soosay v PP:

private defence
was exercised On the facts, it was held that, although S had acted in good faith in defending
when the threat himself, his right of private defence had ceased the moment the knife was
was still dislodged from L’s hold. When S took possession of the knife, there was no
operating longer any apprehension of danger to his life,

The death was o The wording of Exception 2 to s 300 of the Penal Code connotes a fully
not subjective test, in that the Accused must have caused the death without
premeditated, or premeditation and without any intention of doing more harm than is
necessary for the purpose of such defence.

19
 caused with an
intention to o There is no express requirement for the beliefs held to be reasonable, which
cause more was affirmed by the Court of Appeal in Soosay which only required an honest
harm than belief.
necessary

4. Case law
o Both defences failed because right of private defence no longer operated when accused took
control of the knife from the victim (Soosay v PP)

o Exceeding private defence failed because by hitting the victim on the head with a large mortar,
it can be inferred that he had intended to do more harm than necessary. It was found that a
threat of death had been apprehended because the victim had reached for what seemed to be
a revolver, and the two of them had been involved in a serious fight where the accused had
been choked by the victim (Roshdi v PP)

o Right to private defence had not arisen because victim was in fact running away from a quarrel;
no reasonable apprehension even though the victim had taken out a knife and had slashed at
one of the accused’s fingers (PP v Asogan Ramesh)

o Court inferred that the right to self-defence had not arisen because accused had not been so
shocked to have dropped the knife, and the fact that he had later stabbed the victim’s girlfriend
downstairs. In addition, multiple stab wounds but no defensive wounds were found on the victim,
signifying an intentional injury. Furthermore, exceeding private defence failed because accused
had an intention to using more force than necessary, given that he was bigger than the victim
and could have easily pushed him away (PP v Vijayakumar s/o Veeriah)

o Right of private defence had arisen because victim continued to be a road bully even after he
tried to pacify and avoid her. In addition, he had no recourse to the public authorities because
he was riding on a stolen motorcycle and had been detained by the police before. Reasonable
apprehension of an offence was found when the victim jabbed the accused with a large stick
multiple times, and could dislodge the gun he was holding. He then fired a warning shot, then
a second shot which killed the victim. (PP v Dato Balwant Singh).

Provocation

A. The law
Chan Sek Keong CJ in Pathip Selvan v PP [2012] SGCA outlined the requirements for the partial
defence of provocation under Exception 1 to s 300 can succeed:

An actual loss of o The question to answer is if there is a “sudden and temporary loss of self-
self-control by control, rendering the accused so subject to passion as to make him or her
the Accused for the moment not master of his mind” (quoted from R v Duffy)

o The loss of self-control must flow must have flowed from the provocative
conduct instead of being formed independently by the Accused (per YMC)

o The defence is unavailable if the killing contained elements of deliberation,

calculation or premeditation, or if the provocation was self-induced.

20
 o This is a subjective test which must be assessed at the time of the offence,
although the Accused’s conduct after the killing is relevant (PP v Sundarti
Supriyanto).

o The fact that the Accused was intoxicated is relevant in determining whether
self-control was lost, but the loss of the self-control must flow from the
provocative conduct rather than because of intoxication (PP v Astro bin
Jakaria).

o An interval between the acts can exist (Koh Swee Beng v PP). But the longer
the time interval between the provocative incident and the homicidal act, the
less likely loss of a self-control would be found (PP v Lim Chin Chong).

A provocation o Sudden provocation: The following definitions were cited –

that is:
 It immediately preceded the act causing death; this can encompass
(1) Grave repeated or continuous provocation (Gour’s Penal Law of India)
(2) Sudden  The fatal blow should be clearly traced to the influence of passion
(3) Cause an arising from that provocation and not after passion had cooled down by
ordinary person lapse of time (Nanavati)
to lose his self-  It must be unexpected; and the lapse of time between the provocation
control and homicide must be brief (Mahmood)

o Grave provocation: The following definitions were cited –

 It must be sufficiently serious enough to arouse a person’s passions
(Gour’s Penal Law of India)
 The provocative act must be illegal or improper (Gour Penal Law of
India).
 The provocative conduct must upset someone of ordinary sense and
calmness (Dhanno Khan)
 Whether a provocation is grave is assessed based on a reasonable
person sharing the characteristics of the accused that directly relate to
the subject of the provocative conduct. His emotional state and mental
background can also be considered.

o Loss of self-control: In addition to the graveness of the provocation, the

accused must then establish on a balance of probabilities that an ordinary
person of the same sex and age as the accused would have been so
provoked as to suddenly lose his self-control. The peculiarities of the
accused are not taken into account (PP v Kwan Cin Cheng)

o Other points: (Not cited in Pathip Selvan)

 Verbal provocation may be accepted in exceptional circumstances (PP
v Kwan Cin Cheng)
 Proportionality of the harm caused compared to the provocation is a
consideration in this limb (PP v Kwan Cin Cheng)
 The provocative act must be either illegal or improper (Gour’s Penal Law
of India).
 Provocation by a third-party can still be relied upon if the victim had
adopted this provocative conduct, i.e. the conduct was closely related
to his actions (PP v Tan Chun Seng)

21
B. Examples

YES
o Victim had taunted Accused that a third-party was a “better lover” than him even when they
were supposed to reconcile (Pathip Selvan v PP)
o Victim had callously told Accused she had a new boyfriend when the latter was begging her to
return to him / references to sexual performance in bed (Kwan Cin Cheng v PP)
o Victim had abused Accused for years (e.g. asking her to eat in the toilet and depriving her of
food). The fact that the injuries inflicted were frenzied highlighted loss of self-control, the severity
of the provocation was grave enough, and the court found that the provocation had been
ongoing till the homicide thus fulfilling the need for suddenness (PP v Sundarti Supriyanto)
o Victim propositioned to engage in anal intercourse. The accused refused but was faced with
the constant reminder of him being "cultivated" by the deceased. A scuffle ensued between the
two. Accused tied up the victim with a T-shirt, causing his death (PP v Astro bin Jakaria).

NO
o Victim had verbally abused the Accused, but then fled. Defence failed because the killing did
not flow directly from the provocation (Koh Swee Beng v PP)
o Victim had followed Accused’s girlfriend. Defence failed because the killing was deliberate
(Accused went to the scene to rescue his girlfriend, then grabbed a pole to hammer the victim)
and because this was not a reasonable response to in the situation (Seah Kok Meng v PP)
o Victim had been gagged and bludgeoned over a period of time, i.e. killed in a cool, calm, and
methodical way. Furthermore, the provocation (request for anal sex & forced kissing) would not
be grave to a prostitute, even if he does not provide such services (Lim Chin Chong v PP)
o Victim had tapped at the Accused’s car window for no reason and later pushed him down when
confronted. No grave provocation was found. (PP v Tan Chun Seng)
o Presence of cooling-off period (no loss of self-control) and the Accused could not remember
exactly what the provocation was about in the first place (PP v Jin Yugang)

Sudden fight

A. The law
This special exception is found under Exception 4 to s 300:

There must o The requirement of suddenness is not met when the Accused had planned the
be a sudden attack (PP v Mohamad Yasin bin Jappar).
quarrel
leading to a o There should not be an interval between the quarrel and the fight (Asogan
sudden fight Ramesh).

o A quarrel can also be manifested in conduct (Tan Chun Seng v PP).

o Where an accused had gone to rob the victim who tried to disengage herself,
this cannot constitute a quarrel (Tan Chee Wee v PP)

o A fight must be physical and not merely verbal. It must also physically involve
both parties (Tan Chee Wee v PP). However, the definition of a fight is also
met if the victim had been preparing to strike back (Chan Kin Choi v PP).
An act of o The provision clearly requires the act of homicide to have occurred during the
homicide course of the sudden fight (Tan Chee Wee v PP)
which occurs
in the heat of

22
passion o If the fight had ended in that either party had clearly emerged as the victor, any
during the act of homicide performed thereafter would not be able to attract this Defence
sudden fight (Tsang Yuk Chung v PP).

o However, the fact that the victim walks away from the fight does not necessarily
mean that it is over (Tan Chun Seng v PP)

Without o The provision clearly requires that the act of homicide must have been
premeditation performed without premeditation, which has been defined by the Malaysian
to kill in a case of Soh Cheow Hor as having “time to think about what one should do”.
heat of
passion o However, the defence has been denied when there is premeditation to cause
grievous hurt (Chandran v PP), or armed robbery (Tan Joo Cheng v PP).

o Direct or circumstantial evidence such as former grudges, previous threats, and

expressions of ill-will can constitute evidence of premeditation (PP v Tan Joo
Cheng).

o In addition, the statute requires the homicide to be committed in a “heat of

passion”, signifying the requirement for a spontaneous and sudden attack.

Without On the limb of undue advantage, Asogan Ramesh appeared to equate “undue
undue advantage” with “unfair” advantage. Thus, some degree of advantage is permitted.
advantage to
the Accused, In assessing this, Tan Chee Wee opined that this cannot be determined by a single
or him acting factor, but only with reference to the specific attributes of the parties. The courts
in a cruel or have considered the following factors:
unusual
manner o Numbers: An outnumbered victim will suggest an undue advantage to the
Accused (Chandran)
o Size and strength: A disparity in the physical size and strength of the parties is
a relevant factor in determining undue advantage (Tan Chun Seng)
o Skill: The fact that either party was professionally trained in unarmed combat is
relevant (Arun Prakash)
o Who started the fight: Would be relevant (Tan Chun Seng)
o Age: The respective ages of the parties is relevant (Mohd Sulaiman)
o Presence of weapons: However, the use of weapons may not be an undue
advantage if it is used to make up for weaknesses in other areas (Tan Chun
Seng). If a weapon had been used by the Victim, but was then acquired by the
Accused and used to kill the former, then this is generally not an unfair
advantage (Soosay).
o Element of surprise: Undue advantage may be found if the Accused had
attacked the Victim while he was trying to disengage himself from the situation
(Soosay; Jin Yugang) or when he was lying defenceless or staggering around
(Chandran).

The case law on what constitutes “cruel or unusual” behaviour is much less
comprehensive, given that what is cruel or unusual can often be subsumed under
the limb of undue advantage. Nonetheless, this limb has been satisfied when the
Accused had repeatedly struck a victim on the head with a hammer after she had
collapsed (Tan Chee Wee), or when the victim had been fighting to prevent theft or
robbery by the Accused (Teo Boon Ann).

23
B. Examples

YES
o Victim had tapped at the Accused’s car window for no reason and later pushed him down when
confronted. This amounted to a sudden fight from a sudden quarrel (the altercation relating to
the car). No premeditation was found, and no undue advantage was found because he was not
armed beforehand, there was parity in numbers, he was smaller than the victim, and the fight
was started by the victim’s push (Tan Chun Seng v PP)
o Accused went after victim for stealing a gold watch and money. Victim feigned ignorance and
became abusive. He drew out a knife and pointed it at Accused. Accused kicked him and victim
lost control of his knife. Seeing Victim reach out for the knife, Accused grabbed hold of it. There
was then a sudden fight during which Accused stabbed victim to death (Soosay v PP).

NO
o The victim’s act of cajoling the Accused and the Accused's brushing his advances off cannot in
any way be seen as quarrel, nor was there an exchange of blows (PP v Astro bin Jakaria)
o Accused entered the victim’s flat and tried to rob her. A struggle ensued and the appellant struck
the deceased several times on the head with a hammer. Defence failed because there was no
sudden quarrel, no exchange of blows, and the blow was said to be cruel and unusual (Tan
Chee Wee v PP)
o Accused took a knife to confront his victim about a prior remark. A fight ensued and the victim
was stabbed. Sudden fight not found because the victim was unarmed and not substantially
bigger than the accused; hence finding of undue advantage (Arun Prakash v PP).
o Accused and victim had engaged only in physical posturing and not a fight. Furthermore, as
there was a cooling off period, this could not have flowed from a sudden quarrel. Furthermore,
he had taken advantage of someone that was attempting to escape (PP v Jin Yugang).
o There was no real quarrel, and the victim had run away and didn’t want a fight. In addition, the
accused had his friends around; there was thus undue advantage found because of strength in
numbers (PP v Asogan Ramesh)

24
 DEFENCES RELATING TO THE CIRCUMSTANCES SURROUNDING THE ACT

Which defences to utilise?

Mistake Duress Necessity Consent

ACCUSED BELIEVED ACCUSED BELIEVED ACCUSED BELIEVED THE VICTIM HAD
HE WAS BOUND OR THAT DEATH WOULD THAT PERFORMING CONSENTED TO THE
JUSTIFIED BY LAW IN RESULT IF HE DID THE ILLEGAL ACT ILLEGAL ACT BEING
PERFORMING THE NOT PERFORM THE WAS NECESSARY TO PERFORMED
ILLEGAL ACT ILLEGAL ACT PREVENT HARM

Mistake

A. The law
This is encapsulated in s 76 and s 79 of the Penal Code. The question is whether the accused had
taken due care and attention in mistakenly believing that the factual circumstances were such as to
justify his doing the criminal act.
There must o A mistake of law does not excuse the accused (Sulong bin Nain v PP), even if
be a mistake this mistake of law was induced by the authorities (Chee Soon Juan v PP)
of fact
o A mistake of fact is a misconception or error of judgment not intended to
produce the result attained (Sulong bin Nain v PP)

o A mistake that is both of fact and law will most likely be treated as a mistake of
fact (State of Bombay v Jaswantlal Manilal Akhaney)

The mistake o This is clearly required by s 76 and s 79

induced the
accused to
do the illegal
act

The accused o For s 76 to succeed, the accused must have believed that he was legally bound
mistakenly to do the illegal act he had performed.
believed that
he was o For s 79 to succeed, the accused must have believed that he was justified in
bound (s 76) performing the act he performed.
or justified (s
79) by law in o Thus, this element is not satisfied if the Accused believed that he was
doing that committing a lesser offence than the one actually committed
criminal act

The mistake o Both s 76 and 79 require the mistake to be done in good faith.
was made in
good faith o Good faith is defined in s 52 to mean that the act must have been done with
due care and attention. Thus, the mistake must have been made with due care
and attention.

o Characteristics of the accused may be taken into consideration when assessing

this (State v Ram Bahadur Thapa)

25
 Exceptions o s 77 states that a mistake of law can exculpate a judge acting in good faith
within his judicial powers

o s 78 states that nothing is an offence which is done in pursuance of a court

order unless the court did not have such jurisdiction to pass this order.

o Exception 3 to s 300 states that a public servant who exceeds his lawful powers
in good faith (in doing an act which he deems to be lawful and necessary) will
only be guilty of culpable homicide.

o It has been held that an honest but erroneous belief in ownership is a defence
(Lim Soon Gong).

o The Privy Council decision of Lim Chin Aik also possibly opens another
exception that a mistake in law is permitted if the law was not promulgated or
the defendant could not have possibly known of the existence of the law which
he had offended against.

Necessity

A. The law
This is found under s 81 of the Penal Code. Note that although YMC suggests that this defence should
only be available when no other defences can apply, there is nothing in the express language of the
provision that suggests this.

(a) The Accused has reasonably perceived a threat of imminent harm

(b) The illegal act must have been necessary to avoid the threat in question
o This is implicit in the provision

(c) The severity of the accused’s illegal act was proportionate to the threat of harm perceived
o The illegal act need not clearly outweigh the severity of the harm perceived; they merely
need to be comparable (R v Latimer)

(d) The illegal act must have been performed without criminal intention, i.e. it was not the Accused’s
purpose to bring about the consequence of doing the illegal act.

(e) The situation must have not been brought about as a result of the Accused’s prior fault or
negligence (Illustration (a))

Duress

A. The law
This is encapsulated in s 94 of the Penal Code, except for the duty to escape which is an additional
common law requirement that has been read in by the courts.
Reasonable o This considers the personal circumstances of the Accused. A mere verbal
apprehension threat not backed by other evidence (e.g. knowledge that the coercer was
of instant powerful and influential) will not usually suffice. (PP v Nagaenthran)

26
 death to
someone at o The time between the accused is supposed to do the illegal act and the time
the point one the threat is to be performed has to be “instant”, i.e. infinitely short (PP v
does the illegal Nagaenthran)
act
Accused had o The Accused must have availed of a reasonable opportunity to lawfully
satisfied his neutralise the threat in question (PP v Ng Pen Tine). This is a subjective test
duty to escape tempered by a requirement of reasonableness.

o An alternative preposition is that the Accused would not have fulfilled his duty
to escape as long as there was time and opportunity to have recourse to the
public authorities (Mohd Sairi v PP; PP v Danial P)

Accused had o The proviso to s 94 clearly states that an Accused who had voluntarily
not voluntarily associated with his coercer cannot raise the defence, unless his association
associated was due to a threat of death to himself.
with his
coercer

Consent

A. The various scenarios

Where the o Consent was given by the victim to suffer the harm (or the risk of the harm)
harm is for a inflicted for a beneficial purpose
beneficial  The explanation to s 92 excludes “mere pecuniary benefit” from the
purpose (s 88) definition of a beneficial purpose.
 This suggests that the beneficial purpose can be anything of benefit to
the victim except for monetary reward.

o The Accused had acted in good faith i.e. with due care and attention
 Two possibilities to interpret this requirement. The first is that the harm
inflicted must have been done with due care and attention.
 The other is that the accused must have intended the victim to benefit
from the harm with due care and attention.
 It is submitted that the second interpretation is preferred because the
intention and not the harm should have been done with due care and
attention. S88 does not seem to be premised on conditional consent.

o The Accused had not intended to cause death

Where the o Applies if the child is below 12 years of age or is of unsound mind. The same
harm is for a requirements of good faith and exclusion of pecuniary benefit apply.
beneficial
purpose o Excludes scenarios where:
through a  Death is intended
guardian (s 89)  Death is known to be likely or grievous hurt is intended, unless this is for
the purpose of preventing death or grievous hurt, or for curing any
grievous disease or injury
 An offence is abetted

27
 Where the o The victim was above 18 years of age
harm was for
no specific o The Accused had not intended to cause death or grievous hurt; nor did he
purpose (s 87) know that grievous hurt was likely.

o If the victim had consented only to the risk of harm, the harm cannot be
intentionally inflicted.

Where the o The accused could not obtain the consent of the victim or his guardian
harm is in the
context of an o The accused had intended in good faith that the victim would benefit
emergency
(s 92) o Excludes scenarios where:
 Death is intended
 Death is known to be likely, unless this is for the purpose of preventing
death or grievous hurt, or for curing any grievous disease or injury
 Hurt is intended, unless this is for the purpose of preventing death or hurt
 An offence is abetted

Where consent o The victim was 18 years old and above

was given to
kill o The victim had consented to suffer death or suffer the risk of death
(Exception 5 to
s 300) o The victim must have specifically consented to death or the risk of death under
some definite circumstances at a certain time, and using a specific technique
(PP v Leong Siew Chor)
 Indian cases have allowed this partial defence in cases of a suicide pact
and a mercy killing.
 It must not involve the choice of alternatives to which the person taking
the life has driven another, such as the latter saying, “if you make me do
this, then you might as well kill me”

B. When is apparent consent vitiated?

s 90 of the Penal Code then prescribes what generally precludes consent:

(a)(i) If the consent was given because of fear of injury to oneself or some other person, and the
accused is aware or should be aware of this fact.
o Note that since “injury” under s 44: Whatever illegally caused to any person, in body, mind,
reputation or property.

(a)(ii) If the consent was given because of a misconception of fact, and the accused is aware or
should be aware of this fact.
o The High Court in Siew Yit Beng v PP followed the English approach in that consent is only
vitiated if there was a misconception as to the identity of the person or the nature of the act.
o However, given the libertarian underpinnings of this defence in the code, YMC submits that all
misconceptions of fact should be recognised.

(b) If the consent is vitiated on account of intoxication, mental incapacity, influence of drugs, or
unsoundness of mind that prevented the victim from understanding the nature and consequence of
what he consents to.

(d) If the victim was less than 12 years of age

28
 In addition, the courts have found two other scenarios whereby consent had been vitiated:

o If the accused was being entrapped, then the consent of the alleged undercover policeman
would not be real (PP v Tan Boon Hock).
o Similarly, consent to the crime of software piracy was not found when the owners of copyright
purposely released their master copies to entrap software pirates (PP v SM Summit Holdings).

C. What is hurt or grievous hurt?

Per s 319 and 320 of the Penal Code:

Hurt:
o Any bodily pain, disease, or infirmity

Grievous hurt:
o Castration / emasculation
o Fractures / Disfigurations
o Permanent impairment of sight, hearing, or any joint
o Any hurt that endangers life
o Hurt that causes the victim to be in severe bodily pain or unable to follow his ordinary pursuits
within a span of 20 days
o Penetration of the vagina or anus that causes severe bodily pain

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 DEFENCES RELATING TO THE ACCUSED’S STATE OF MIND

Which defences to utilise?

Intoxication-related defences Incapacity-related defences Automatism-related defences

1. s 85: Accused was insane 1. s 84: Accused was fully 1. (Proposed): Accused was
by reason of intoxication incapable of reasoning fully incapable of
about the morality or controlling his actions
legality of his actions. (sane or insane)

2. s 86(2): Accused had not 2. Exception 7: Accused was either (1) partially incapable of
formed the mens rea reasoning about his actions or was (2) substantially
required (intention) by incapable of controlling his actions
reason of intoxication

Overview

Complete inability to control one’s actions
Insane automatism: Internal mental condition =>
Incapacity to control
Sane automatism: External condition => Incapacity
to control
Complete inability to understand what one was
doing
Insane intoxication: Intoxication => Incapacity to
know
Unsoundness of mind: Internal mental condition
=> Incapacity to know
Intoxication negating intention: Intoxication =>
Incapacity to form intention

Intoxication-related defences

A. Insane & involuntary intoxication

Overview
On plain reading, this section requires the Accused to have either not known the moral wrongness
(“his act was wrong”) or the surface features (“he did not know what he was doing”) of his act.
 This defence relates whether he actually knew, not about his capacity to know
 s 85(2)(a): If the Accused’s intoxication was caused maliciously or negligently by a third-
party (involuntary intoxication)
 s 85(2)(b): If the Accused’s intoxication caused him to be insane, i.e. was self-induced.
Insanity relates to an abnormal state of mind and can be transient. It is found when someone
becomes so intoxicated that he comes legally insane (Tan Chor Jin v PP)

Case law
o Accused raised insane intoxication successfully because he was depressed & worried; the
stabbing of his brother had not preceded a quarrel but had occurred without reason. In addition,
he had stabbed his sister who he had never quarrelled with, did not tried to hide the knife, and
did not try to run away (PP v Tan Ho Teck)
o Accused failed to raise both defences successfully as he had the presence of mind to procure
a wooden pole for self-protection; thus he knew what he was doing (Seah Kok Meng v PP)

30
B. Intoxication negating intention
Overview
The burden of proof is on the Accused to show that he was so intoxicated that he could not have
formed the necessary intention to commit the offence he was charged with. (Jin Yugang v PP)
 This applies only to the fault element of intention, and not to any other fault element (Juma’at
bin Samad v PP)
 The prosecution in proving its case is entitled to assume that the Accused was sober
(Juma’at bin Samad v PP)
 The Accused must be in such a complete and absolute state of intoxication as to make him
incapable of forming the intention as charged; any lower level of drunkenness would not
suffice (PP v Ong Teng Siew)
 Self-induced intoxication will still be taken into account (PP v Teo Heng Chye)
 The court will at the conduct of the Accused immediately prior to and after the commission
of the crime to establish whether the intention was negated (Chan Swee Fong v PP MLJ)
 Intention will not be negated if the Accused had formed the requisite mens rea prior to being
intoxicated. This serves to narrow the applicability of the defence by excluding the
“culpable”, i.e. those who had voluntarily intoxicated themselves in the midst of committing
criminal acts (Chan Swee Fong v PP MLJ)

Case law
o Defence failed because the Accused followed the victim to the school, cut through the fence,
and forced open offices to steal; thus definitively showed requisite mens rea for housebreaking
(Juma’at bin Samad v PP)
o Defence failed because the Accused slashed the victim deliberately at a vulnerable area; he
also later stole money from the victim, wiped his hands, and disposed of his knife (PP v Ong
Teng Siew)
o Defence failed because Accused could move himself independently and converse with others
(PP v Kenneth Lee Fook Mun MLJ)
o Defence failed because inter alia, the Accused was able to give a reasonable account of what
had transpired before the killing had been performed (PP v Mohd Sulaiman; Jin Yugang v PP)

Incapacity-related defences

A. Unsoundness of mind
Overview
An o An unsoundness of mind is an underlying mental infirmity caused by some
unsoundness source which lies within the accused which is prone to recur (R v Falconer)
of mind
o Legal unsoundness of mind is different from its medical counterpart, and occurs
when the cognitive faculties of the Accused are impaired (John Nyumbei v PP
MLJ).

o The required standard is one of a state of mindlessness (PP v Arokiasamy MLJ)

o The required threshold also appears to be very high, as the Singapore Court of
Appeal in Rozman bin Jusoh did not consider subnormal intellect to be
unsoundness of mind.

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 o Local textbook Criminal Law in Malaysia and Singapore submits that the
required threshold is one of complete cognitive incapacity.

The Accused o Local textbook Criminal Law in Malaysia and Singapore posits that this requires
is incapable the Accused to be incapable of knowing the surface features of his acts.
of knowing
the nature of o In contrast, the Malaysian Court of Appeal decision of Selvaraju Mudaliar v PP
his acts; or appeared to adopt a broader interpretation and referred to the Accused’s
incapacity to understand the physical consequences of his acts.

o It is posited that the former interpretation should apply for two reasons.
 Firstly, acceptance of partial incapacity on this limb would be inconsistent
with the first limb of unsoundness of mind, which already appears to require
complete cognitive incapacity.
 Secondly, it can be argued that the other limb (“wrong or contrary to law”)
already covers instances whereby the Accused does not comprehend the
physical consequences of his acts.

The Accused o YMC presents three possible interpretations of this limb.

is incapable  The first is that “wrong” is equivalent to “legally wrong”.
of either  The second is that the Accused has to be incapable of knowing that his
knowing his acts were either morally wrong or legally wrong.
acts were  The third is that the Accused has to be incapable of knowing that his acts
wrong or were morally and legally wrong. It is submitted that the second
contrary to interpretation, i.e. the disjunctive approach is the correct one.
law
o It is submitted that the second interpretation, i.e. the disjunctive approach is the
correct one.
 Firstly, both plain reading and local case law offer no evidence in support
of the first proposition. It would be odd for the framers of the code to have
included both phrases if they had intended for “wrong” and “contrary to law”
to have the same meaning.
 Secondly, a plain reading of the statute (with particular emphasis on the
word “either”) appears to favours the disjunctive approach. In addition, the
strict construction rule will require us to take the interpretation that most
favours the accused.
 Thirdly, YMC suggests that there is little value in punishing someone who
is incapable of knowing that his acts were morally wrong, even if he was
capable of knowing that his acts were legally wrong. Clinical intervention
would be the more appropriate recourse.
 Fourthly, it can be argued that these two elements are merely two sides of
the same coin, in that both go towards proving that the Accused’s inability
to understand how the consequences of his acts would impact others.
 Finally, while the Court of Appeal case of Rozman bin Jusoh alluded to the
conjunctive view, the Court did not affirmatively endorse nor apply this
approach in ratio.
 However, it must be noted that Ratanlal and Dirajlal’s Law of Crimes cited
in John Nyumbei v PP appeared to favour the conjunctive approach.

32
Case law
o Defence successfully raised when the Accused was depressed and heard voices in his head.
He was suffering from delusional disorder, and a lack of motive to kill his wife signified that he
was incapable of knowing that what he did was wrong in law (PP v Md Suhaimi MLJ)
o Criminal Law in Malaysia and Singapore helpfully characterises what is meant by incapacity to
know that one’s acts were wrong. This means that the Accused is lacking the capacity to reason
about the morality or legality of his conduct in a manner in which ordinary people should be
capable of doing.

B. Diminished responsibility
Overview
The law on diminished responsibility was outlined in PP v Zailani bin Ahmad as follows:

There must o There must be a state of mind so different from that of ordinary human beings
be an that the reasonable man would term it abnormal (per R v Byrne) and includes
abnormality the following considerations:
of mind  Perception of physical acts and matters
 Ability to form a judgment on what is right or wrong
 Ability to exercise will-power to control physical acts in accordance with
rational judgment

o This should be assessed at the time of the offence, and that mental states that
arise in the ordinary course of things (e.g. anger or jealousy) would not be
considered an abnormality of mind (Took Leng How v PP) unless it has become
a pathological condition (Ong Pang Siew v PP)

o Acts or statement by the accused, his demeanour, and medical evidence are
all relevant considerations (per DZ v PP)

Arising from o The abnormality of mind must be the result of:

one of the  Arrested or retarded development of the mind
prescribed  E.g. subnormal intelligence (Osman bin Ali v PP)
causes  Any inherent causes
 Something natural to or originating from the person’s mind
 External factors that damage one’s psyche will fall under this category
(R v Whitworth).
 An inherent cause must be permanent in nature, although the
abnormality of mind that results from it may be temporary (R v
McGarvie).
 Disease or injury (to the mind)
 Excludes self-induced injury (e.g. intoxication) as this was illegally
caused (PP v Zailani bin Ahmad)
 But substance abuse that contributes to the onset or exacerbation of
a major depressive disorder is recognised (Ong Pang Siew v PP)

Substantial o The accused’s ability to exercise will-power to control and be answerable for
impairment of his physical acts must be substantially impaired by the abnormality of mind.
mental
responsibility o “Substantial” means something in between the extremes of minimal effect and
total impairment (PP v Juminem citing R v Lloyd)

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 o Inability to control one’s physical acts generally indicates substantial
impairment. Difficulty in controlling these acts may also qualify, but this will
depend on the degree of difficulty (R v Byrnes)

o A man may know what he is doing and intend to do it and yet suffer from such
abnormality of mind as substantially impairs his mental responsibility (Elvan
Rose v R cited in Ong Pang Siew v PP)

Case law
o Substantial impairment because the Accused had bizarre mood-swings, was banging the
victim’s head on the wall, was strangling her in the presence of a witness, was laughing and
crying simultaneously, and had apologised to her while strangling her (Ong Pang Siew v PP)
o Substantial impairment in the case of two victims because the Accused was extremely angry
and in a frenzied state. But no impairment for the last victim because a period of time had
passed, which would have allowed him to cool down. In addition, the court found that he had
killed the last victim to silence her (PP v Wang Zhijian).
o Substantial impairment because depression caused the loneliness and the young age of the
Accused, as well as the unfamiliar place and nature of work magnified words and actions by
her employer to unrealistic proportions. She could not distinguish rational from irrational urges
(PP v Juminem).
o No substantial impairment because the Accused displayed “great presence of mind in
continuing with his original plan of theft after the stabbing of the deceased” (PP v Mohd
Sulaiman)
o No substantial impairment because the Accused was sharp and not unpredictable or
unmeasured. Furthermore, his testimony that his mental responsibility was momentarily
impaired was rejected; the court did not believe that one can be substantially impaired for only
a short period of time (PP v Zailani bin Ahmad)
o No substantial impairment although Accused suffered from morbid jealousy because he made
detailed plans to kill, he knew the penalty for murder, and he had been wavering in his intention
to kill. In addition, his obsessive feelings were consistent with the state of mind of people who
were ordinarily jealous; thus no causative link between morbid jealousy and the act of killing
(PP v G Krishnaswamy Naidu)

Automatism-related defences

Overview
A lacuna in the law exists – what if the Accused’s unsoundness of mind had caused him to lose
complete control over his conduct (as opposed to not understanding his actions)? Criminal Law in
Malaysia and Singapore proposes a reading that would allow such an Accused to receive a special
acquittal under s 84 of the Penal Code. The words “acts”, and “done”, and “doing” can be seen to
connote voluntary behaviour, the absence of which would allow the Accused to avail of the s 84
defence.

The Malaysian courts in Kenneth Fook Mun Lee and Abdul Razak bin Dalek considered what
constituted insane automatism by use of the internal cause and continuing danger tests. The former
requires the involuntary behaviour to stem from a source internal to the Defendant, e.g. his
psychological makeup or innate pathology. The latter holds that involuntary behaviour caused by
any condition that is likely to recur and present a danger to the public should constitute insane
automatism. The Canadian Supreme Court in Stone has advanced beyond these two tests, treating
them as heuristic factors that may be used to further the aim of societal protection. This is notably

34
similar to the holistic approach used to assess unsoundness of mind under s 84, which makes
eminent sense given the symmetrical nature of these two defences.

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 JOINT & SECONDARY LIABILITY

Common intention, abetment, or conspiracy?

Common intention Abetment Conspiracy

PARTICIPATION
The accused is a joint offender,
i.e. he directly and intentionally
participates in the commission
of the offence
ASSISTANCE AGREEMENT
The accused is a secondary The accused had entered into
offender, i.e. he instigated, an agreement to commit an
conspired, or facilitated (but did offence
not partake in) the commission
of the offence in question

I. Common Intention

A. The law
Chan Sek Keong CJ in Daniel Vijay v PP [2010] SGCA outlined the elements required to make out a
conviction under common intention pursuant to Section 34 of the Penal Code.

Common o First, there must be a common intention to do the actual criminal act done by the
intention primary offender.
 This intention can be dormant, develop contemptuously, or be a mere
“remote wish”, but it must nonetheless be present.
 This intention must correspond to the mens rea of the offence in question.
For example, if the offence was one of s300(c), there must have been a
common intention to cause an injury ordinarily sufficient to cause death.

Criminal act o Second, the aggregate of all the acts performed by the offending parties must
(1) collectively satisfy the actus rea of the offence in question and (2) be done in
furtherance of the common intention.

Participation o Third, the accused must have participated in:

 The actual criminal act done by the primary offender; or
 Any other criminal act done in furtherance of a common intention
o Mere presence alone does not suffice, but presence for the purpose of facilitating
an offence will amount to participation (Quek Siew Hock David v PP).

B. Practicalities
In a twin-crime scenario, one can find the Accused not guilty by using one of two related approaches
(Note: Can still be liable for abetment under s 111 & 113 even if he is not liable for common intention):

1. By restricting the scope of the common intention:

(a) To commit the primary offence, and no other. > Not liable
(b) To commit the primary offence, and the collateral offence in question if necessary > Liable. This
is likely to be the inference if the secondary offender had participated in the collateral offence,
even though he may not have formed the common intention prior to the offence.
(c) To commit the primary offence, and it is known that the primary offender is likely to kill in the
course of the primary offence. > Liable only if this knowledge can facilitate an inference that the
scope of the common intention had been expanded to encompass the collateral offence.

36
2. By finding that the criminal act done by the primary offender was not done in furtherance of (or
not in line with) the common intention:
Daniel Vijay appears to suggest that one must consider the congruence of the criminal act with the
scope of common intention. Not everything done that can facilitate or result from the common
intention is necessarily done in furtherance of it. The example given is that if A and B form a
common intention to rape C, and B kills C in the process; the act of killing is inconsistent with the
common intention (to rape), even though it may have resulted from the common intention.

C. Development of the doctrine

Barendra  Required the common intention to encompass the collateral act

Kumar  Defined “a criminal act” as unity of criminal behaviour which results in something for
Ghosh v which an individual would be punishable if it were all done by himself alone.
Emperor
Mimi  Ruled that there only must be a common intention between the parties; did not rule
Wong v whether this meant a criminal act, or the collateral criminal act.
PP  As long as the men rea of the collateral offence was made out, and there existed a
common intention to perform a criminal act, liability for the collateral offence will
extend to all parties.
 However, the intention of the actual offender and the intentions of the other parties
must be still somewhat consistent. If this is not satisfied, then the act cannot be said
to be done in furtherance of the common intention.
 The level of abstraction which one uses to define the intention of the parties was
not clearly elucidated.

Ibrahim  Two persons were charged for kidnap and murder. B had strangled the victim when
bin A had been away from the flat.
Masod v  Court held that there was passive participation by A; in other words, no element of
PP active participation in the collateral criminal act (murder) was needed.

Too Yin  Appeared to hold all secondary offenders liable for collateral offences that could
Sheong have been objectively foreseen or contemplated.
v PP  However, the court later seemed to steer the course towards strict liability, in that
as long as the act had been performed in furtherance of the intended criminal act,
liability would be attached.

Asogan  Appeared to have also adopted an approach veering towards strict liability.
Ramesh
v PP
Shaiful  All that the Prosecution needed to prove was that there was in existence a common
Edham v intention between all the persons involved to commit a criminal act and that the
PP collateral offence was committed in furtherance of that criminal act.
 Additional requirement of “some knowledge” that the collateral offence would be
committed as put into place

Lim Poh  Alluded to the requirement that the common intention must encompass the
Lye v PP collateral offence

Lee  Removed the requirement for physical presence with regard to the accused’s
Chez participation in the crime (both main and collateral offences)
Kee v  Reaffirmed Mimi Wong in that no intention of the secondary offender to commit the
PP collateral offence was required

37
  Added a requirement of “subjective knowledge” by the secondary offender that the
collateral offence would likely be committed
 Ruled that section 35 (act done together by several persons requires full mens rea
to establish guilt) pertains only to situations outside of common intention
 Affirmed that s 111 and 113 (under abetment) requires subjective knowledge by the
abettor of the likelihood of the different act/effect actually performed by the person
abetted

Daniel  Required that the secondary offender have the common intention to perform the
Vijay v collateral offence
PP  The intention should be construed at a high level of specificity and must reflect the
mens rea for the collateral offence. Thus, for s300(c), the secondary offender must
have the common intention to inflict a life-threatening injury to attract liability.

D. Pros and cons

1. Criticisms of the Daniel Vijay approach

(a) Evidentiary difficulties in proving the common intentions of the parties
(b) Prosecutors will end up reframing the intention to a more general level of specificity
(c) Loss of consistency with reference to s 111 and 113, which seem more suited for situations
which s 34 intends to cover now
(d) Inability to apply s 34 to offences which do not have a fault element of intention

2. YMC proposals
An actual foresight approach, i.e. the mens rea required is knowledge instead of intention.

Issues:
(1) What is the degree of particularity with regard to the knowledge required?
(2) What happens when there is knowledge, but the collateral offence turns out to be inconsistent
with the primary offence?

II. Abetment

A. Abetment by aiding
Yong Pung How CJ in Daw Aye Aye Mu v PP [1998] SGHC outlined the elements required to make
out a conviction for abetment by aiding under s 107(c) of the Penal Code:

A facilitative o The accused must have done something to assist or facilitate the primary
act offender in the commission of an offence.
An intention o The accused must have performed the act with the intention of aiding the
to aid primary offender to commit the offence.
o The accused must have known the circumstances constituting the criminal act
with a high degree of particularity. For example, in:
 PP v Hendricks Glen Conleth: Accused was not guilty of abetting a corrupt
act because he did not know that the boarding passes he was to use were
obtained corruptly

38
  Purushothaman v State of Kerala: Accused was not guilty of abetting a
corrupt act because he did not know that his students would bribe another
teacher (even though he may have had reason to suspect this were so)
o If the accused had aided two parties, one must figure out the dominant
intention of the accused as to who he intended to aid

B. Abetment by instigation

Active o PP v Lim Tee Hian: There must be active suggestion, support, stimulation, or
instigation encouragement – direct or indirect – targeted at the primary offender to induce
him to commit the offence in question.
o PP v Ng Ai Tiong: This can be express or in the form of hints or insinuations

Instigation o PP v Datuk Tan Cheng Swee MLJ: Intention to stimulate the particular offence
must be and knowledge of all the facts that constitute the principal offence is required.
intentional
Examples o S Balakrishnan v PP: Accused found guilty of instigating the causing of grievous
hurt to a trainee soldier even when he was silent when men under him had
committed the offence.
o Chan Heng Kong v PP: No instigation as the principal offender had already
known that the bag given to him by the accused contained drugs
o PP v Whang Sun Lin: Arranging for a sale of kidneys does not amount to
instigation, but rather aiding
o PP v Tee Tian Song MLJ: Mere presence at the scene did not amount to
abetment by instigation.

C. Abetment by conspiracy

Agreement o Proof of an agreement or “meeting of minds” required (PP v Lee Yuen Hong)
to carry out o No need for physical meeting of persons (Ang Ser Kuang v PP)
an offence o Specific details of the conspiracy need not have been agreed upon, but there
must be awareness of the general purpose of the plot, which must be objectively
unlawful (PP v Nomura Taiji).
o In other words, the accused must know of the essential elements of the
underlying agreement to carry out the offence (Quek Hock Lye v PP)

Intention to o This is not satisfied if the accused had only purported to agree to the agreement,
be a party and had no intention of carrying it out (Kannan s/o Kunjiraman v PP)
to the o The accused must have intended to play some role in carrying out the conspiracy
agreement (Lau Song Seng v PP)

An act done o Any act or illegal omission done in furtherance of the agreement is required
pursuant to pursuant to s 107 (b).
the
agreement

D. The following situations still amount to abetment of the intended offence:

o If the person abetted did not actually perform the act (Explanation 2, Illustration A, s 108)
o If the person abetted actually did something lower in culpability than the intended act
(Explanation 2, Illustration B, s 108)

39
 o If the person abetted was acquitted because of unsoundness of mind, mistake of fact or other
defences (Explanation 3, s 108)
o If the person is abetting the abetment of an offence (Explanation 4, s 108)
o Similar to attempts or conspiracy, impossibility of performance of act abetted should be no bar
to culpability (Criminal Law in Malaysia and Singapore)

E. The following situations would amount to abetment of the actual offence:

o If the person abetted had committed another offence that the abetter subjectively knew to be a
likely consequence or likely effect of committing the offence abetted (s 111, 113, Lee Chez Kee)

III. Criminal Conspiracy

Agreement o Proof of an agreement or “meeting of minds” required (PP v Lee Yuen Hong)
to carry out o No need for physical meeting of persons (Ang Ser Kuang v PP)
an illegal o Specific details of the conspiracy need not have been agreed upon, but there
act or must be awareness of the general purpose of the plot, which must be objectively
offence unlawful (PP v Nomura Taiji).
o In other words, the accused must know of the essential elements of the
underlying agreement to carry out the offence (Quek Hock Lye v PP)

Intention to o This is not satisfied if the accused had only purported to agree to the agreement,
be a party and had no intention of carrying it out (Kannan s/o Kunjiraman v PP)
to the o The accused must have intended to play some role in carrying out the conspiracy
agreement (Lau Song Seng v PP)

An act done o Per s 120A, this is only required if the agreement was to carry out an illegal act
pursuant to (and not an offence)
the o S120A(b) holds that impossibility of performing an illegal act is not a bar to
agreement conviction. However, this is not so clear in the cases of an offence.

40
 LIST OF IMPORTANT CASES
1. Daniel Vijay
2. Lee Chez Kee
3. AFR
4. Lim Poh Lye
5. Shaiful Edham bin Adam
6. Wang Wenfeng
7. Kwan Cin Cheng
8. Tan Chor Jin
9. S Balakrishnan
10. Ng Keng Yong
11. Lim Poh Eng
12. Astro bin Jakaria
13. Ong Pang Siew
14. Sundarti Supriyanto
15. Rozman bin Jusoh
16. Tan Khee Wan Iris
17. Teo Kwang Kiang
18. Teo Eng Chan
19. Soosay
20. Tan Chun Seng
21. Kenneth Lee Fook Mun No 1 & 2
22. Chua Kian Kok
23. Teo Poh Leng
24. G Krishnasamy Naidu v PP
25. Tengku Jonaris Badlishah
26. Seah Kok Meng v PP
27. PP v Dato Balwant Singh (No 2)
28. Comfort Management Pte Ltd v PP
29. MV Balakrishnan
30. Ang Ser Kuang v PP
31. Kannan s/o Kunjiraman v PP
32. Fazely bin Rahmat

41