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3. Anatomy of a Crime

3.1 Actus Reus

3.1.1 Definition: Latin term for the guilty act

3.1.2 Types of crimes:
1. Conduct Crimes
Criminal liability is imposed simply because the accused has done something
prohibited by law
These actions need have no result
E.g. S 6(a) of the Misuse of Drugs Act, s 64 of the Road Traffic Act

2. Result Crimes
Requires the conduct of the accused to cause a prohibited result
E.g. Culpable homicide as defined in s 299 of the Penal Code; act of accused
must cause death

3.1.3 What constitutes an act or conduct?

Conduct is said to be voluntary if it was a willed muscular movement.

Singapore does not allow the defence of non-insane automatism. Only insane automatism is
allowed under s 84 of the Penal Code.

Sinnasamy v PP (1956)
Facts:
Epileptic father caused the death of his own 21 month old baby
Claimed that a terrible blackness came over him
Held:
A person acting under a state of automatism will not be conscious at the time
Appellant had the clearest recollection of events going on around him
If an accused acted in an involuntary manner during an epileptic fit, the only possible
defence available to him would be that of insanity under s 84 of the Penal Code.
Bratty v Attorney-General for Northern I reland (1963)
Held:
Legal burden of proof is on the accused for defence of insane or non-insane
automatism on a balance of probabilities.

PP v Kenneth Fook Mun Lee (2002)
Facts:
Accused argued that he was suffering from a hypoglycaemic attack at the time of the
incident
Act and omission
S 33 The word act denotes as well a series of acts as a single act; the word omission
denotes as well a series of omissions as a single omission.

Voluntarily
S 39 A person is said to cause an effect voluntarily when he causes it by means
whereby he intended to cause it, or by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it.
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Held:
Abnormality of the mind that is caused by internal factors that manifests itself in
violence and are prone to recurring must be classified as insane automatism
No evidence of hypoglycaemic attack being caused by an external factor

R v Quick; R v Paddison (1973)
Facts:
Accused was diabetic and took insulin to control his condition. He missed a meal and
has some whiskey
He had a hypoglycaemic reaction and assaulted a patient
Held:
Alleged mental condition was not caused by his diabetes but by the use of the insulin
prescribed
Malfunctioning of the mind was caused by an external factor and not by a bodily
disorder in the nature of a disease which disturbed the working of his mind
Entitled to defence of automatism

R v Burgess (1991)
Facts:
Accused and victim fell asleep while watching television
Accused, while still sleeping, violently attacked the victim
Held:
Violent sleepwalking comes under the defence of insane automatism as violence in
sleep is not normal
Ordinary stress would be considered internal and not external

3.1.4 Includes illegal omissions to act
Failure to act which is an offence
Lee Sai Yan v PP
A site engineer did nothing to prevent the deceased from entering a hole without
proper equipment and it was held to be an offence

Failure to act prohibited by law
Certain failures to act could be prohibited by law, yet not be offences.

DeSouza v Pashupati Nath Sarkar
Defendant was the captain of a ship who failed to send the deceased for medical
treatment despite requests to do so. Held that there was a lack of causation and he
had no legal obligation to provide him with any medical treatment.

Failure to act which provides a ground for civil action
a. Special Relationship
Om Prakash v State of Punjab
The accused starved his wife by omitting to feed her and denying her
permission to leave the house. Held that one owes a duty to those who are
dependent on and reasonably expect assistance from one.

b. Duty Voluntarily Assumed
Q v Istan (1893)
Facts:
Accused live with 73-year-old aunt who was healthy until developed
gangrene in her leg
Gave her no food nor assistance until she died
Held:
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Moral duty translated into legal duty because:
1. Aunt was dependent on her
2. Reasonable expectation of assistance (aunt even paid her money)

c. Duty Assumed by Contract
R v Pittwood
Accused was a railway gatekeeper employed to keep the gate shut. One day
he left the gate open and a train hit a hay cart, killing one man and injuring
another seriously.
Held that there was gross and criminal negligence as the man was paid to
keep the gate shut and protect the public

d. Creating Dangerous Situation
R v Miller (1983)
Facts:
Accused accidentally set fire to a mattress with his cigarette
Instead of attempting to put it out, he simply moved to the next room
Held:
There was a duty to act since the accused was the one who started the
fire

Ngiam Chin Boon v PP (1999)
Facts:
Accused omitted to put up the signboard
Held:
Failing to ensure that sufficient warning sign was displayed behind
stationary motor lorry was negligence as opposed to rashness (he did
search for signs but there werent any, but he had a revolving light)

Benoy Chandra Dey v State of Calculatta
The accused had a live wire connected to his house. A 13 year-old boy while
passing in front of the house touched the wire and died instantly from electric
shock.
Held that it is not necessary under s304A IPC that the petitioner must have
personally got the electric connection. Allowing it to remain bare is sufficient
negligence. Charged with culpable negligence.




3.2 Mens Rea

3.2.1 Definition: Guilty mind that commits the crime

3.2.2 Rationale for MR
Words referring to acts include illegal omissions
S 32 In every part of this Code, except where a contrary intention appears from the
context, words which refer to acts done extend also to illegal omissions.

Illegal, unlawful and legally bound to do
S 43 The word illegal or unlawful is applicable to every thing which is an offence,
or which is prohibited by law, or which furnishes ground for a civil action: and a person is
said to be legally bound to do whatever it is illegal or unlawful in him to omit.
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Criminal liability is only imposed upon a blameworthy actor whose conduct has caused a
forbidden harm.
When a person acts with mens rea, he is a responsible agent who has chosen to break the
rules.
3.2.3 Types of Mens Rea
1. Intention
Yeo Ah Seng v PP (1967)
Maxim that accused knew the natural and probable consequences of his act was
rejected in Malaysia by the Federal Court.
It is not true in fact that a man necessarily intends the natural consequences of his
acts: and in law that he is compellingly presumed to do so.

2. Knowledge & Willful Blindness
Mohd Aslam s/o Jandad v PP (2006)
Facts:
2 charges of helping to make false statements in the application and
renewal of an employment pass
Held:
Merely neglecting to make inquiries which a reasonable and prudent
man would make did not constitute guilty knowledge
Sufficient proof to show that the appellant was willfully blind to the
falsity of the material details when he signed and submitted the renewal
form. By that time, the appellant was clearly aware of PW1s poor
command of English

PP v Tan Kiam Peng (2007)
Facts:
Accused attempted to import heroin (which was in the form of yellow
powder)
Defence argued that he knew he was importing illegal drugs but did not
think they were of the kind that attracted the death penalty because:
o Even CNB officers could not identify the drugs
o He did not run away and the reward was meager
Held:
Accused was willfully blind and therefore convicted
He knew they were controlled drugs because the drugs were strapped to
his body and he was being paid to carry this. He also referred to it as
number 3
Willful blindness can equate to actual knowledge when a person chooses
to turn a blind eye to an obvious fact
If willful blindness is to be treated on par with actual knowledge, then
the blindness must be normally equivalent to actual knowledge. A mere
suspicion is not enough

Nagaenthran a/L K Dharmalingam v PP (2011)
Willful blindness is actual knowledge that is inferred from the circumstances of
the case

Khor Soon Lee v PP (2011)
Negligence or recklessness does not amount to willful blindness. It is a high
threshold to be met and a finding of willful blindness ought not to be made
unless there is a strong factual basis for doing so.

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Chan Heng Kong and another v PP (2012)
Facts:
Chan claimed that he did not know they were drugs but suspected so
because he was paid $8,500 just for 1 delivery of a few mamee packets
Held:
Chan suspected they were drugs but did not do so because he did not
want to confirm his suspicions. This amounted to willful blindness

3. Recklessness
Recklessness is defined as heedless rashness. It is a more severe form of
rashness (Nidamarti Nagabhushanam).

Test for recklessness is subjective.

Seah Siak How v PP (1965)
Facts:
Appellant charged with causing the death of person by driving motor car
on road recklessly
Held:
Must be shown that driving is such as to amount to rash driving and the
driver of the vehicle in question must be heedless of the state of affairs
on the road at the time in question
Recklessness is heedless rashness
Accused was driving slow since passengers not affected and the
deceased probably died from impact when he hit the ground
Conviction set aside

4. Rashness
Culpable rashness is acting with the consciousness that the mischievous and
illegal consequences may follow, but with the hope that they will not, and often
with the belief that the actor has taken sufficient precaution to prevent their
happening (Re Nidamarti Nagabhushanam)

Test for rashness is subjective.

Mohamad Iskandar bin Basri v PP (2006)
Facts:
Accused was driving a fire vehicle and crossed a red light
Collided with a taxi and killed one passenger
Held:
Appellant was found to be rash since emergencies do not justify rashness
Driving at a high speed across the junction in spite of the red lights was
clearly a very reckless act. He was not merely trying to the beat the lights
before they changed they were already against him and he disregarded
them anyway

PP v Tiyatun (2002)
Facts:
Maid force-fed a child together with another maid
They pressed the childs nostrils together while holding down his hands
to force the child to open his mouth and then fed him
Child had difficulty breathing and died
Held:
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They were, conscious that death was at least a possible consequence
but had chosen to proceed regardless of their recognition of the risk
Severity of sentence depends greatly on degree of rashness or negligence
which was present
Degree of culpable rashness was low
o Accused fed the child with a meal of porridge blended with soft
minced meat and vegetables, a meal easily swallowed
o They had been feeding him in the same manner for 8 months
with no adverse consequence

S Balakrishnan & Anor v PP (2005)
Facts:
Dunking case; death of Sgt Hu and grievous hurt of Capt Ho
Held:
Both exhibited a recklessness of indifference as to the consequences of
the dunking
The very act of dunking was dangerous and the expert evidence given
was that even if the instructors had religiously followed the accuseds
instructions, the victims would have in all likelihood suffered the same
harm
Aggravating acts practiced by the instructors were a probable
consequence of Capt Pandiarajs instructions and his indifference to how
the treatment was carried out


5. Negligence
Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in the circumstances which show that the
actor has not exercised the caution incumbent upon him, and that if he had he
would have had the consciousness. The imputability arises from the neglect of
the civic duty of circumspection (Re Nidamarti Nagabhushanam)

Test for negligence is objective.

Lim Hong Eng v PP (2009)
Facts:
Appellant was driver of a vehicle that went against the red light
PW testified that the motorcyclist moved forward at the junction at
constant speed without evasive action
Held:
Intention to drive through red light was irrelevant since offence is not
dependent on intention
Rashness implied disregard to the possibility of injury or death
Appellants conduct was more negligent than rash from her conduct

PP v Teo Poh Leng (1992)
Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show that the actor
has not exercised the caution incumbent upon him, and that if he had he
would have had the consciousness.

Lim Poh Eng v PP (1999)
The degree of negligence in criminal cases is the same as that of civil cases
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Ng Keng Yong v PP (2004)
Facts:
Navy boat clashed with a merchant vessel
Held:
Correct approach is to consider whether a reasonable man in the same
circumstances would have been aware of the likelihood of damage or
injury to others resulting from such conduct
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appellant should be held to the same standard as a normal OOW,
otherwise that would be against public policy




3.3 Strict Liability

3.3.1 Definition: An offence where mens rea is not specified or dispensed with respect
to one aspect of actus reus (e.g. s 375 and 376 where we are concerned with whether
accused thought that victim consented)

3.3.2 Rationale
Used as a tool to prevent grave social harm need to protect public health and
safety
o E.g. Discharging pollutants into the river
Deterrence
Regulatory stimulates due diligence among enterprises
Makes it easy to prove regulatory violations

3.3.3 Points against strict liability
Unjust
Man should be treated as a moral agent and this results in unfair treatment
Offends utilitarian argument
Use of administrative controls could be a better solution
Provision of minimum mandatory sentences for breaches of strict liability
offences

3.3.4 Presumption of mens rea approach
Rationale
Adopted from English common law
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Even if mens rea is not stated in the statute, there will be a presumption of mens
rea
o Presumption of law that mens rea is required before a person can be
held guilty of an offence
o To favor the accused, if not it will be easy for prosecution to establish the
offence
o Presumption is particularly strong where the offence is truly criminal in
nature
However, the presumption of mens rea can be displaced

Criticisms
Difficult in many cases to ascertain whether the offence belongs to the category
of true crimes or regulatory violations
o Some offences comprise elements from both categories. It can be morally
reprehensible to violate some statutes which are technically there for
regulation, it is a matter of extent
What is defined as a matter of social concern
Deterrent aim may not be achieved
o Aim of greater vigilance by anyone who embarks on the activity
o However, the notion of strict liability is precisely that even if the accused
has exercised all possible vigilance and commits the offence, he will still
be liable for the offence
o Seems to be imposing higher standard of negligence


Displacement of presumption (Sweet v Parsely)
1. Words of the statute
Presumption applies to statutory offences and can be displaced only if this is
clearly or by necessary implication the effect of the statute

2. Object/subject matter with which it deals

3. Nature of the crime
Whether offence is truly criminal or merely regulatory or whether there is a
stigma attached to it

4. Punishment
How severe the punishment for that particular offence is


5. Matters of grave social concern
Strict liability will make these offenders more vigilant


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Sweet v Parsely (1970) [Affirmed in Lim Chin Aik v R, PP v Bridges Christopher]
Facts:
Quantities of narcotics found in the farmhouse which the appellant rents out and
comes occasionally to collect letters and rent
Held:
Mens rea is required to find guilt of an offence created by statute
Where legislation is silent on mens rea, requirement of mens rea will be
presumed
If presumption displaced then need to examine:
o Language of statute
o Nature of legislation
o Examine if interpreting offence as strict liability will be effective in
promoting statutory objective


Lim Chin Aik v R (1963)
Facts:
Appellant was convicted for remaining in Singapore when he had been
prohibited by an order
Immigration Ordinance made no provision for notification and the appellant did
not know about it
Held:
There is a presumption that mens rea is an essential ingredient in every offence;
but that presumption is liable to be displaced either by the words of the statute
creating the offence or by the subject-matter with which it deals, and both must
be considered
Presumption of mens rea not to be displaced even though the word knowingly
which was not found in the subsection involved in the cases did appear in
another subsection of the same section
Not enough to merely label the statute as one dealing with a grave social evil to
infer that strict liability was intended. Must inquire whether putting the
defendant under strict liability will assist in the enforcement of the regulations

Gammon Ltd v AG of Hong Kong (reaffirmed in Singapore case of PP v Tea Kwan Kiang)
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(1) There is a presumption of law that mens rea is required before a person can be held
guilty of a criminal offence; (2) the presumption is particularly strong where the offence
is "truly criminal" in character; (3) the presumption applies to statutory offences, and
can be displaced only if this is clearly or by necessary implication the effect of the
statute; (4) the only situation in which the presumption can be displaced is where a
statute is concerned with an issue of social concern, and public safety is such an issue; (5)
even where a statute is concerned with such an issue, the presumption of mens rea
stands unless it can also be shown that the creation of strict liability will be effective to
promote the objects of the statute by encouraging greater vigilance to prevent the
commission of the prohibited act.

Mohammed Ibrahim v PP (1963)
Facts:
Charged for selling obscene books
Held:
It was his business to ensure that his merchandise is such that the public who
buy from him do not suffer and the most the prosecution can be expected to
prove is not knowledge but the existence of means of acquiring knowledge
Knowledge of the bookseller is not a matter which affects the public. It is the
obscene books which he sells which poisons their minds

PP v Teo Kwang Kiang (1992)
Facts:
Vegetable importer who received snow peas containing sulphur disuphate in
excess of permissible amount
Held:
Public safety requires that the vegetable importer should bear the consequences
of importing food unfit for human consumption
Imposition of strict liability in this case is necessary for the protection of the
public

PP v Bridges Christopher (1998)
Facts:
Appellant was a lawyer charged with receiving information from CID officer
He then communicated the addresses to another lawyer
Charged under s 5(2) of Official Secrets Act
Held:
The general rule that mens rea was presumed to be a necessary ingredient of the
offence in the absence of clear words to the contrary applied in this present case
Offence is committed when the person in possession has communicated, used,
retained or failed to take reasonable care of the information not only are there
no clear words in s 5(1) dispensing with mens rea but on the contrary it is
abundantly clear that an offence under s 5(1) cannot be committed without
some mental element

Pharmaceutical Society of Great Britain v Storkwain Ltd (1986)
Facts:
Defendants had unlawfully sold certain retail medicines to people who had
prescriptions that were forgeries
Held:
Presumption of mens rea should be inapplicable to s 58(2)(a)
Pharmacists are in a position to put illicit drugs and perhaps other medicines on
the market. Happily this rarely happens but it does from time to time. It can
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therefore be readily understood that Parliament would find it necessary to
impose a heavier liability on those who are in such a position, and make them
more strictly accountable for any breaches of the Act

3.3.6 Due Diligence Approach
Rationale
Prosecution only has to show that the accused committed the physical elements
of the offence without having to prove that he was at fault
Accused then bears the burden of proof that he acted with due diligence
(reasonable care) in preventing the prohibited harm from occurring
Accuseds state of mind is important
Becomes a type of halfway house approach where even though it is an offence of
strict liability, the accused will not be liable unless he is negligent (did not take
all reasonable care)

Criticisms
Improperly ignores the Penal Code Provisions relating to defences such as
mistake

MV Balakrishnan v PP (1998)
Facts:
Accused charged with permitting employee to drive class 4 motor vehicle when
he only had class 3 driving license
Held:
In strict liability offences, prosecution must prove beyond reasonable doubt that
the accused had committed the offence (actus reus)
Accused can then prove on a balance of probabilities that he had taken all
reasonable care in preventing that prohibited harm from occurring
First instance of the due diligence approach being used in Singapore

Comfort Management Pte Ltd v PP (2003)
Facts:
Accused employed a worker as a driver, in contravention of a condition upon
which the work permit was issued
Held:
Once a presumption of mens rea is displaced, it is open to the accused to prove,
on a balance of probabilities, that he has taken due care and attention to comply
with the statutory requirements. This conclusion is not only just and logical, but
also mandated by s 79 read with s 40(2) and 52
Accused had not exercised due care and attention since they were aware of the
condition in the work permit and the director had to sign a form stating that it
would comply with the conditions
Possible shift towards a due diligence approach to strict liability offences

Chng Wei Meng v PP (2002)
Facts:
Appellant failed to appear in court to answer a parking summons
Chng was warned that he would be disqualified from driving if he failed to
attend court again
Prosecution disqualified him but did not notify him
Held:
S 43(4) of RTA was a strict liability offence
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Once prosecution had proved beyond a reasonable doubt the elements of the
offence, burden shifts to defendant to show that he took reasonable care
Defendant did not exercise reasonable care because he failed to attend court and
did not inquire about his qualification status. His belief was neither honest nor
reasonable

3.3.7 Chapter IV approach
Rationale
Similar to the due diligence approach in that an accused may escape liability by
proving absence of fault
Difference is the ways in which accused can prove this absence of fault
o Strictly limited to the defence found in Chapter IV of the Penal Code
o S 79 Mistake of fact made in good faith, S 80 - Accident


Tan Khee Wan Iris v PP
Facts:
Accused was convicted for providing public entertainment without a license
Held:
Defence of mistake under s 79 is rightly made
However, she must show that she had believed in good faith that she had a valid
license. The test is not whether the mistake was an easy one to make nor
whether a reasonable person could make the mistake The test is whether there
was due care and attention; laid down in s 52

Abdullah v Regina (1945)
S 79 applies to all offences whether under the Penal Code or otherwise. If the appellant
believed in good faith that the complainant was over 16 it would be a case of mistake of
fact.

PP v Teo Eng Chan (1988)
Facts:
4 accused charged with rape of a young woman, Kay in a lorry
Held:
To rely on s 79, the burden of proving mistake of fact is upon the accused person
and the court shall presume the absence of such circumstances

Comparison with Negligence
1. Objective standard of care
a. Objective standard applied to offences needing proof of negligence as
well as strict liability offences (using the Chapter IV approach)
b. Both required accused to have exercised due care and attention in
believing that he was justified by law in doing the act charged with
Act done by a person justified, or by mistake of fact believing himself justified
by law
S 79 - Nothing is an offence which is done by any person who is justified by law, or
who by reason of a mistake of fact and not by reason of a mistake of law in good faith
believes himself to be justified by law, in doing it.

Accident in the doing of a lawful act
S 80 - Nothing is an offence which is done by accident or misfortune, and without any
criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by
lawful means, and with proper care and caution.
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c. Accused must not have been negligent in his mistaken belief
2. Burden of Proof
a. Negligence
i. Prosecution bears burden of proof to show accused did not meet
the standard expected of him
b. Strict Liability Offences
i. Accused required to disprove negligence i.e. that he met the
standard of care expected of him
3. Standard of Proof
a. Negligence
i. Prosecution proves beyond reasonable doubt that accused did
not take reasonable care
b. Strict Liability Offences
i. Accused proves on a balance of probabilities that he did take
reasonable care and was not negligent

3.4 Absolute Liability
An absolute liability is an offence to which there is no defence whatsoever.



































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4. Murder and Culpable Homicide Not Amounting to Murder

4.1 Scheme of S 299 & S 300
299 Genus
S 300 Specie


4.1.1 Difference between s 300(c) & s 299.2
S 299.2 Probable
S 300(c) Most probable
Note: The difference is in the probability of death occurring (objectively, the bodily
injury must cause death)

4.1.2 Difference between s 300(d) & s 299.3
S 299.3 Probable
S 300(d) Practical certainty / highest degree of probability

Culpable homicide
S 299 - Whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

Explanation 1.A person who causes bodily injury to another who is labouring
under a disorder, disease or bodily infirmity, and thereby accelerates the death of
that other, shall be deemed to have caused his death.

Explanation 2.Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented.

Explanation 3.The causing of the death of a child in the mothers womb is not
homicide. But it may amount to culpable homicide to cause the death of a living child,
if any part of that child has been brought forth, though the child may not have
breathed or been completely born.

Murder
S 300 - Except in the cases hereinafter excepted culpable homicide is murder

(a) if the act by which the death is caused is done with the intention of causing death;

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

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

(d) if the person committing the act knows that it is so imminently dangerous that it
must in all probability cause death, or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk of causing death, or
such injury as aforesaid.
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4.1.3 Recommended Approach


4.2 Actus Reus

4.2.1 Act must be voluntary
The act must be a conscious, willed muscular movement.
Unless there is a case of automatism (refers to a state of defective consciousness
in which a person performs unwilled acts):
o An involuntary act
o Must be a complete loss of control
Types of automatism
1. Insane
S 84 of the Penal Code

Bratty v Attorney-General for Northern Ireland (1963)
If the involuntary act proceeds from a disease of the mind, it gives rise to
a defence of insanity, but not to a defence of automatism. Psychomotor
epilepsy was said to be a functional disorder amounting to defect of
reason due to disease of the mind.
In order to establish the defence of non-insane automatism, there must
first be supporting evidence for the defence to even be considered. It is
insufficient for the accused just to say, I dont remember a single thing
about it.

PP v Kenneth Fook Mun Lee (2002)
Accused was suffering from a hypoglycaemic attack at the time of the
incident.
There was no evidence of it being caused by any external factor and is
prone to recur. The abnormality must be classified as insane automatism
under s 84. The burden is on accused to establish his condition of mind
at the time of the commission of the offence.

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2. Non-insane
Singapore does not recognize the defence of non-insane automatism

Sinnasamy v PP (1956)
Appellant was charged and convicted with murder of his 21-month-old
daughter. He argued that he was epileptic in his defence.
Held that he had vivid recollection of events and deep wound indicated it
was a conscious act. Therefore defence of automatism failed since
evidence did not bring him within s 84

Factors to take into account in deciding insane or non-insane automatism
o Whether disease of the mind
o Whether condition caused by internal or external causes
o Likelihood of recurrence
o Need to protect public
o Need to treat offender



Note: Act includes omissions

4.3 Causation
Accused must cause death of victim.
Causation under common law
o Factual Causation but for rule
o Legal Causation proximate cause of harm (not too remote; must be at
least an operating and substantial cause)

R v Smith (1959)
If at the time of death the original wound is still an operating cause and a
substantial cause, then the death can properly be said to be the result of
the wound, albeit that some other cause of death is also operating.
Only if it can be said that the original wounding is merely the setting in
which another cause operates can it be said that the death does not
result from the wound (only if the second cause is so overwhelming as to
make the original wound merely part of the history can it be said that the
death does not flow from the wound).

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Shaiful Edham bin Adam & Anor v PP (1999)
Reaffirmed principle laid down in R v Smith.

Drowning in these circumstances was an additional cause of death
superimposed on the neck wounds and not an intervening cause of
death. Second cause was not so overwhelming as to make the original
wound merely part of the history can it be said that the death does not
flow from the wound.

Ng Keng Yong v PP (2004)
Held:
Correct approach is to consider whether a reasonable man in the
same circumstances would have been aware of the likelihood of
damage or injury to others resulting from such conduct
2
nd
appellant should be held to same standard as a normal OOW,
otherwise that would be against public policy

S Balakrishnan & Anor v PP (2005)
Held:
Both exhibited a recklessness of indifference as to the
consequences of the dunking
The very act of dunking was rash and dangerous, and the expert
evidence before the court was that even if the instructors had
adhered religiously to the instructions given by Capt Pandirak,
Capt Ho and Sgt Hu would in all likelihood have suffered the
same harm
In any case, the aggravating acts practiced by the instructors
were a probable consequences of Capt Pandiarajs instructions
and his indifference to how the treatment was carried out

Causation under the Penal Code

PP v AFR (2011)
Accused need not intend the precise injury. Prosecution only needs to show that
the accused needs to intend the particular injury and that injury is sufficient in
the ordinary course of nature to cause death.
AFR could not have possibly intended the rupture of the IVC. Even an
experienced pathologist with expert training could not be certain as to how it
happened in this case.

Causation & Acts of Victim


S299 Explanation 2.Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death, although
by resorting to proper remedies and skilful treatment the death might have
been prevented.
S299 Explanation 1.A person who causes bodily injury to another who is
labouring under a disorder, disease or bodily infirmity, and thereby
accelerates the death of that other, shall be deemed to have caused his death.
18

R v Blaue (1975)
It has long been the policy of the law that those who use violence on other
people must take their victims as they find them. It does not lie in the mouth of
the assailant to say that his victims religious beliefs which inhibited him from
accepting certain kinds of treatment were unreasonable (eggshell-skull rule).

R v Malcherek & R v Steel (1981)
The fact that the victim has died, despite or because of medical treatment for the
initial injury given by careful and skilled medical practitioners, will not
exonerate the original assailant from responsibility for the death.
The discontinuance of treatment in those circumstances does not break the
chain of causation between the initial injury and the death.

Tajammal Hussein v Nasar Mehdi PLD (1976)
Accused was rightly convicted of murder by virtue of Explanation 2, even though
the accused would not have died from the wound but for the negligent medical
treatment.

R v Jordan (1956)
Chain of causation is deemed to be broke if the treatment administered was an
abnormal treatment which was palpably wrong, which in turned, caused the
death at a time when the original wound was in the process of healing and
indeed had practically healed.

4.4 Mens Rea

4.4.1 Four Different Types of MR in Penal Code
1. Intention
2. Rashness
3. Negligence
4. Knowledge

4.4.2 MR for S 300 (a)
Intention: purposeful doing of a thing to achieve a particular objective
Factors taken into account to infer intention
o Facts of the case
o Nature and location of injury (usually if wound is deep a lot of force
intention)
o Number of injuries VS solitary injury (if solitary perhaps it was
accidental and unintentional)
o Type of weapon used (knife as opposed to tooth pick)
It is not true in fact that a man necessarily intends the natural consequences of
his acts: and it is not true in law that he is compellingly presumed to do so (Yeo
Ah Seng v PP).

4.4.3 MR for S 300(b)
Combination of 2 subjective states
o Intention to cause bodily injury and that injury is likely to cause death
(knowledge)
Based on offenders particular knowledge of the injury to cause death of victim
Particularly deals with situations where accused is aware of victims unusual
physical susceptibility and intends to cause death by an act which would not
19
otherwise cause death in a normal person (knew of the victims special
condition).

4.4.4 MR for S 300(c)
Intention to cause bodily injury
Elements of s 300(c) (Virsa Singh v State of Punjab)
o Intention to cause bodily injury
o Injury inflicted was intended, not accidental or unintentional, or some
other injury intended
o That bodily injury was sufficient in the ordinary course of nature to
cause death purely objective test and inferential
Commonsense approach to ascertain intention

Mohammed Yasin v PP (1976)
Held:
Not only must the act of the accused which caused the death be voluntary in this
sense; the prosecution must also prove that the accused intended, by doing it, to
cause some bodily injury to the victim of a kind which is sufficient in the
ordinary course of nature to cause death
Prosecution must prove specific intent to inflict some internal injury as distinct
from mere superficial injuries or temporary pain

PP v Visuvanathan (1978)
Facts:
Accused, in the course of a fight, stabbed the victim in the chest with a knife and
escaped
Held:
Confined Mohammed Yasin to its facts
The intention to cause bodily injury is a subjective test
Whether bodily injury is sufficient in the ordinary cause of nature to cause death
is medically ascertained (objective test)
**Irrelevant what kind of injury A actually intended to inflict (minor injury???)

Tan Joo Cheng v PP (1992)
Facts:
Accused, armed with a knife tried to rob the victims flat and defence claimed
that victim fell on knife
Held:
Reiterated Virsa Singh test
Not necessary to show intention to wound vital spot or cause an injury of a type
that would be sufficient in the ordinary course of nature to cause death
**S300(c) murder even if the bodily injury is relatively minor (problematic??)

PP v Lim Poh Lye (2005)
Held:
Reiterated Virsa Singh test
Minor injury relates to an injury that would not cause death in the ordinary
course of nature
Minor injury to be contrasted with an injury that was intended but accused did
not appreciate its gravity



20
PP v Mohammed Ali Bin Johari (2008)
Facts:
Stepfather had immersed victims head into pail of water and caused her to
drown
Body was disposed off under a flyover
Held:
Accused knew and intended, when he immersed the deceased head-first in the
pail of water, that she would experience difficulty in breathing and might inhale
water, which would eventually lead to death

Factors taken into account when ascertaining intention
o Type of bodily injury
o Number of injuries
o Degree of force
o Factual background against which the crime was committed
Issues behind a s 300(c) finding
o Problems with ascertaining intention
o No foresight of death extends beyond intentional killing
o Mandatory death penalty
o Objective assessment
o Intended bodily injury vs fatal injury (sometimes the injury might be
diffused)
o Problems with struggle cases; Tan Chee Hwee v PP (1993), PP v Lim Poh
Lye (2005)

4.5 Intention vs Motive

Motive is not the same as intention. However, motive can be a relevant factor for
ascertaining intention

4.5.1 Distinguishing between intention & motive

PP v Oh Laye Koh (1994)
Intention is to be distinguished from motive, even though the presence of a motive
may bolster the inference that an intention to commit the offence was existent. The
absence of motive, however, need not necessarily mean that no intention was present.

Took Leng How v PP (2006)
Motive is not an essential element of the crime. But where the accused seeks to rely on
the absence of motive to substantiate a particular defence, it is for the accused to prove
the absence.

Mohammed Ali Bin Johari v PP (2008)
Whilst motive is not an essential element of the crime as such, it can, in, appropriate
circumstances such as these, cast valuable (and significant) light on the intention of the
accused.

PP v AFR (2011)
Just as motive may be relevant in determining whether a person had the intention to do
an act, it must equally be relevant in determining if he did not have any such intention.



21
4.5.2 Purpose of motive
Regina v Moloney (1985)
A man who, at London Airport, boards a plane which he knows to be bound for
Manchester, clearly intends to travel to Manchester, even though Manchester is the last
place he wants to be and his motive for boarding the plane is simply to escape pursuit.
The possibility that the plane may have engine trouble and be diverted to Luton does
not affect the matter. By boarding the Manchester plane, the man conclusively
demonstrates his intention to go there, because it is a moral certainty that that is where
he will arrive.

4.6 Coincidence of AR and MR

4.6.1 General Rule
AR and MR must coincide

4.6.2 The Thabo Meli Approach series of acts constituting one transaction
approach
A series of distinct acts may in some circumstances be regarded as forming part of a
larger transactionl and it will suffice if th accused had the necessary mens rea at some
point in the transaction, even if it did not coincide precisely in time with the actus reus,
the act which caused the death.

Thabo Meli & Ors v Regina (1954)
It is impossible to divide up what was really one series of acts in this way. There is no
doubt that the accused set out to do all these acts in order to achieve their plan, and as
parts of their plan; and it is much too refined a ground of judgment to say that, because
they were under a misapprehension at one stage and thought that their guilty purpose
had been achieved before, in fact, it was achieved, there they are to escape the penalties
of the law.

Shaiful Edham bin Adam & Anor v PP (1999)
Endorsed the Thabo Meli approach.

22
5. Introduction to the Law on Defences

5.1 Burden of proof and the Evidence Act



Jayasena v The Queen (1970)
Burden of proof is always on the Prosecution to prove all elements of the offence.

5.2 General and Special Exceptions



5.2.1 Categorizing defences into justifications and excuses
Justification
o Rationale Denying wrongfulness of the conduct
o Focusing on the act
o E.g. Private defence, Consent, Necessity, Superior Orders
Excuses
o Rationale Denying blameworthiness of the mind
o Focusing on the actor
Evidence Act
Burden of Proof
S103 (1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove that
those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.

Burden of proving that case of accused comes within exceptions
S107 When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal
Code (Cap. 224), or within any special exception or proviso contained in any other
part of the Penal Code, or in any law defining the offence, is upon him, and the court
shall presume the absence of such circumstances.
23
o E.g. Mistake, Accident, Duress, Unsoundness of Mind, Intoxication

5.2.2 Mental Impairment as a defence & Criminal Responsibility
Rationale There is no point punishing someone who does not know what he is
doing
There is usually reliance on clinical expert opinion (experience and credentials)
Roles played by such defences Protect society and the accused
E.g. Ong Pang SIew v PP, Muhammad Bin Kada and Another v PP

5.2.3 General Exceptions
Effect Complete acquittal

5.2.4 Special Exceptions
Effect Reduce charge from murder to culpable homicide not amounting to
murder

5.2.5 Defences not available in Singapore
Entrapment
o How Poh Sun v PP (1991)
o Law Society of Singapore v Tan Guat Neo Phyllis (2008)

5.3 Defences of Incapacity


Definitions in this Code to be understood subject to exceptions
S6 - Throughout this Code every definition of an offence, every penal provision, and
every illustration of every such definition or penal provision, shall be understood
subject to the exceptions contained in the Chapter entitled General Exceptions,
though those exceptions are not repeated in such definition, penal provision or
illustration.

Offence
S40 (2) In Chapters IV, V and VA, and in sections 4, 187, 194, 195, 203, 204B, 211,
213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and
445, offence denotes a thing punishable under this Code or under any other law for
the time being in force.
24
5.3.1 Children

PP v Lim Ah Leng (1967)

Act of a child under 7 years of age
S82 - Nothing is an offence which is done by a child under 7 years of age.

Act of a child above 7 and under 12 years of age, who has not sufficient
maturity of understanding
S83 - Nothing is an offence which is done by a child above 7 years of age and under
12, who has not attained sufficient maturity of understanding to judge of the nature
and consequence of his conduct on that occasion.
25
6. Special Defences

6.1 Provocation
- Merely a partial defence (reduce murder to culpable homicide
not amounting to murder)
QUESTIONS TO ASK (CRITERIA)
Has the accused in fact lost self control.
Would reasonable man placed in shoes of acused also lost self control.
o Age
o Gender/Sexual Orientation
o Emotional state
o Background events and circumstances
o Class and ethnicity
o Education and IQ (???? Not resolved)
o Anorexic ( an example where the characteristic of accused must be
affixed to the reasonable man)
Rationale To accept human frailty. The defense of provocation acts a
compassion for human frailty.
Reasonable man test is imposed to ensure uniform standard of self-control


6.1.1 What constitutes provocation?
Subjective requirement A deprived of the power of self-control at the time of
killing
o Provocative conduct Sudden loss of self-control (homicidal act)
o Must not have premeditation or deliberation
o Murderous intent must not be independent of the provocation
o Factors taken into account in considering whether A actually lost self-
control:
Number of wounds (
Nature of wounds (attack in a frenzy)
Time interval between provocative act and fatal blow
Need not be recent
Presence of cooling period (did accused calmed down, if
he/she did, then defence of provocation cannot be
enacted)
Interval time irrelevant if there are subsequent
provocative incidents.
Last incident maybe trivial however it should not be
considered in isolation as it could be the last straw
Effects of intoxication is taken into account when considering
whether A lost self-control (PP v Astro bin Jakaria (2010))
o Loss of self control need not be total (Pathip Selvan s/o Sugumaran v PP
(2012))
o Sudden loss of self-control
When culpable homicide is not murder
S 300 Exception 1.Culpable homicide is not murder if the offender whilst deprived
of the power of self-control by grave and sudden provocation, causes the death of the
person who gave the provocation, or causes the death of any other person by mistake
or accident.
26
Final triggering provocative event

Objective requirement Provocation should have been grave and sudden
What constitutes sudden?
o Unexpected and;
o Period between provocation and killing brief (Pathip Selvan s/o
Sugumaran v PP (2012))
What constitutes grave?
o Provocation must be sufficient to arouse the passions of a person of
ordinary sense and calmness
o Test: Whether a reasonable man of the same gender and age and fixed
with such of As characteristics that would affect the gravity of the
provocation would be provoked to lose his self-control
Reasonable man = ordinary man
Characteristics that affect gravity of provocation
Mental infirmities and emotional state
Based on As perception not necessary for victim to
have directed it in fact at As characteristic
Earlier events and mental background created in A may
be relevant

PP v Sundarti Supriyanto (2004)
Held:
Accused was in a frenzy due to the haphazard nature of the injuries and facts of
the case (subjective requirement)
Separate events of abuse linked up to form mental background (grave)
Although there was breathing space, it was reignited by deceased (sudden)

PP v Kwan Cin Cheng (1998)
Facts:
a. Kwan and deceased had a relationship but broke up
b. He fooled her into thinking he was going to give her the tontine money
Held:
a. Mental background affected the gravity of provocation
b. What Kwan perceived was important even though it was not actually what was
said

R v Smith (2001)
Chronic depression is a characteristic that can be affixed to the reasonable man

Note: State of intoxication will not be a characteristic in the reasonable man. However, it
can be if A has alcohol dependence

6.1.2 Reasonable retaliation rule (proportional rule)
Act of retaliation is only a factor to consider. It is not useful at all (PP v Kwan Cin Cheng,
endorsed in Pathip Selvan s/o Sugumaran v PP).

6.1.3 Cumulative provocation
Past provocative incidents can have cumulative effect on A

6.1.4 Verbal provocation
Mere words can suffice as provocative conduct

27
6.1.5 Self-induced provocation
Self-induced provocation is no defence













6.2 Diminished Responsibility


6.2.1 Requirements for diminished responsibility
The partial defence is established if it is proved that, at the time of the offence,
a. A was suffering from an abnormality of mind; (judge decide)
Abiliy to exercise rational judgment (right or wrong)
Ability to exercise self control
b. Which arose from a condition of arrested or retarded development of mind or
any inherent causes or induced by disease or injury and; (doctor)
c. Which substantially impaired his mental responsibility for his conduct (judge)
- substance abuse can be considered to cause abnormality of mind, IF it has been
abused for a consistent period of time. Impairment must be caused by abnormality
of mind.
-

6.2.2 Elements of diminished responsibility
1. Suffering from abnormality of the mind at the time of the commission of
the offence
a. Definition of abnormality of mind
i. In Chua Hwa Soon Jimmy v PP, abnormality of mind covers:
1. Not only the perception of physical acts and matters, and
Exception 6.Culpable homicide is not murder if the offender being a woman
voluntarily causes the death of her child being a child under the age of 12 months,
and at the time of the offence the balance of her mind was disturbed by reason of her
not having fully recovered from the effect of giving birth to the child or by reason of
the effect of lactation consequent upon the birth of the child.

Exception 7.Culpable homicide is not murder if the offender was suffering from
such abnormality of mind (whether arising from a condition of arrested or retarded
development of mind or any inherent causes or induced by disease or injury) as
substantially impaired his mental responsibility for his acts and omissions in causing
the death or being a party to causing the death.
28
2. The ability to form a rational judgment as to whether an act is right or wrong
3. But also the ability to exercise will-power to control physical acts in accordance
with that rational judgment

b. Elements of abnormality of mind
i. A suffering from abnormal condition
ii. Abnormality must be of certain degree to impair cognitive
functions (Took Leng How v PP (2006))

c. Credentials and relevant experience of the experts must be scrutinized.
The judge cannot substitute his opinion but he can reject it (Ong Pang
Siew v PP (2011)).

2. Causes of abnormality of mind
a. Causes:
i. Condition of arrested/retarded development of the mind
or
ii. Inherent causes of the mind (abnormality of mind)
or
iii. Induced by disease or injury (pre dominant mental condition)
Note: This is ascertained by reference to expert medical evidence

3. Substantially impaired mental responsibility for his/her acts
a. Abnormality must cause impairment (Mimi Wong & Anor v PP (1974))
b. Substantial does not mean total impairment but more than trivial or
minimal (Ong Pang Siew v PP (2011))
c. What amounts to substantial impairment is a question of fact and
commonsense ultimately to be decided by the court on all the evidence
before it (Ong Pang Siew v PP (2011))
d. Factors taken into account in ascertaining whether impairment
substantial:
a. Conduct before, during and after the killing (PP v Chia Moh Heng
(2003))
b. Medical evidence
c. Nature of killing
d. History of mental abnormality, if any
e. Whether it was a situation of unable to resist or did not resist
(R v Byrnes)

Note: Exception 7 is not meant to be a three-stage provision. It is a composite clause that
must be read and applied as a whole (G Krishnasamy Naidu v PP (2006)).

6.2.3 Self-induced intoxication and diminished responsibility
Being voluntarily intoxicated (drugs or alcohol) would not amount to an abnormality of
mind unless there were psychiatric complications (PP v Muhammad bin Kadar and
another v PP (2011)).
However, chronic abuse could possibly be accepted as an inherent condition.

6.3 Sudden Fight

Rationale In a heated moment, the heat of passion must cause A to go overboard with
certain actions.

29
Note: Sudden fight can be established even if A was the one who provoked the fight.

6.3.1 Elements of sudden fight under Exception 4
a. In a sudden fight in the heat of passion upon a sudden quarrel
b. Without premeditation
c. Without offender having taken undue advantage
d. Acted in a cruel or unusual manner

Note: (c) and (d) are usually established together since they use the same factors

6.3.2 In a sudden fight in the heat of passion upon a sudden quarrel
a. Suddenness
Killing in the course of a planned fight is outside Exception 4

b. Sudden quarrel
A sudden quarrel has to precipitate a sudden fight

c. Fight
i. It must be more than a quarrel
ii. Fight must be physical and there must be an exchange of blows though
it did not hit the target (PP v Astro bin Jakaria (2010))
iii. Fight must be between A and V

d. Duration of the fight
i. Killing must be in the course of a fight and not after
ii. If there was a lapse of time between the quarrel and the death blow,
defence of sudden fight cannot be claimed
iii. Exception 4 cannot apply where A has emerged the clear victor and
inflicts a fatal injury on the loser who is attempting to escape

6.3.3 Without premeditation
Must not have premeditation or mens rea of any of S 300 offences
Whether there was any reflection (PP v Seow Khoon Kwee (1988))
Established by direct or circumstantial evidence:
i. Previous threats
ii. Expression of ill will
iii. Procuring of dangerous weapon beforehand
iv. Manner of killing:
1. Repeated shots
2. Blows or acts of violence

6.3.4 Taking undue advantage
Unfair advantage
Taking advantage allowed (issue is whether the advantage was undue)
Factor taken into account
i. Facts of the case
ii. Attributes of victim
1. Physique
2. Age
Exception 4. Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and
without the offender having taken undue advantage or acted in a cruel or unusual
manner.
30
3. Ability
4. Aggression
i. Outnumbering of A
ii. Type of weapon and the manner it was used
iii. Whether hit vital part
iv. Number of blows
E.g. Soosay v PP (1993), Tan Chun Seng v PP (2003)

6.3.5 Acting in a cruel or unusual manner
Usually merged with the 3
rd
condition for Exception 4
Factors:
i. Vs age and physique
ii. Type of weapon and the manner of usage (Roshdi v PP (1994))


31
7. General Defences

7.1 Insanity
Rationale A did not have a blameworthy state of mind, therefore they should not be
punished

Makes sure that they should be treated medically

There is no deterrence effect when punishing these individuals as they cannot
comprehend the nature of the act.

Protect Society.

If charged under unsound mind, they have to be sent to mental asylum or kept in
custody.

Unsound mind decided by the judge.





7.1.1 Elements of the defence of insanity
a. Unsoundness of the mind
b. Incapable of:
i. Knowing the nature of the act (both surface features and/or
consequences)
OR (disjunctive)
ii. Wrong or contrary to the law

Act of a person of unsound mind
S84 - Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.

Criminal Procedure Code
Acquittal on ground of unsound mind
S251 - If an accused is acquitted on the ground that at the time at which he is alleged
to have committed an offence he was by reason of unsoundness of mind incapable of
knowing the nature of the act as constituting the offence or that it was wrong or
contrary to law, the finding must state specifically whether he committed the act or
not.

Safe custody of person acquitted
S252 (1) Whenever the finding states that the accused committed the act alleged,
the court before which the trial has been held shall, if that act would but for the
incapacity found have constituted an offence, order that person to be kept in safe
custody in such place and manner as the court thinks fit and shall report the case
for the orders of the Minister.
(2) The Minister may order that person to be confined in a psychiatric institution,
prison or other suitable place of safe custody during the Presidents pleasure.
32
7.1.2 Unsoundness of the mind
Must be at the time of the commission of the act
Wider than McNaughten Rules since it includes cases where no disease of the
mind is involved, s84 includes unsoundness of mind not borne by a diseased
mind (includes drug induced insanity as well)
o c/f Sngapore s84
o read up on bratty insane v non insane automatism, which law it comes
under in the uk vis a vis Singapore s84.
Question of fact judge decide if it exists.
Determination involves a clinical component
Situation must be viewed in totality (PP v Rozman bin Jusoh & Another (1995))

Note: Unsoundness of mind can also relate to deficiencies of mind caused by injury, not
necessarily just disease of the mind (Tan Chor Jin v PP)

7.1.3 Incapable of knowing
Test The guiding light that distinguishes between right and wrong is
completely extinguished by the unsoundness of the mind
There must be complete loss of cognitive capacity

7.1.4 Nature of the act
The unsoundness must be of such an extent and severity that D did not know
nature of the act or that it was wrong or contrary to the law
Meaning of did not know nature of the act:
o Did not know surface features of the act & the consequences of the act
Identifying the act and

7.1.5 Wrong or contrary to law
Singapore approach: Wrong = Contrary to law


7.1.6 Unsoundness of mind and MR
2 effects
o Mental impairment negates MR of the crime
OR
o MR present but A did not know the nature of the act or that it was wrong
Notwithstanding As claim of unsoundness of mind, the prosecution still has to
prove the physical components of actus reus beyond reasonable doubt (PP v
Boon Yu Kai John)

7.1.7 Unsoundness of mind & AR
Insane automatism is classified under s 84 even though it relates to AR
Section 251 finding must state

7.1.8 Volitional disorders
Irresistible impulse cases
Problem may not be bale to resist but know the nature of the act that is wrong or
contrary to the law
Australia includes volitional disorders in DR
Singapore and India does not have law for volitional disorder



33
7.2 Intoxication








7.2.1 Three types of intoxication
1. S 85(2)(a)
2. S 85(2)(b)
Intoxication when a defence
85.(1) Except as provided in this section and in section 86, intoxication shall not
constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the
person charged at the time of the act or omission complained of did not know that
such act or omission was wrong or did not know what he was doing and
(a) the state of intoxication was caused without his consent by the malicious
or negligent act of another person; or
(b) the person charged was, by reason of intoxication, insane, temporarily or
otherwise, at the time of such act or omission.

Effect of defence of intoxication when established
86.(1) Where the defence under section 85 is established, then in a case falling
under section 85(2)(a) the accused person shall be acquitted, and in a case falling
under section 85(2)(b), section 84 of this Code and sections 251 and 252 of the
Criminal Procedure Code 2010 shall apply.

(2) Intoxication shall be taken into account for the purpose of determining whether
the person charged had formed any intention, specific or otherwise, in the absence
of which he would not be guilty of the offence.

(3) For the purposes of this section and section 85 intoxication shall be deemed to
include a state produced by narcotics or drugs.
34
3. S 86(2)

7.2.2 Section 85(2)(a)
A must satisfy the following conditions:
1. Did not know what he was doing or did not know that his act or omission was
wrong and;
2. As intoxication was caused without his consent by the malicious or negligent act
of another person

A is entitled to be acquitted even of offences that require a mens rea element falling
short of intention. Here intoxication can operate as a stand-alone defence.

7.2.3 Section 85(2)(b)
A must satisfy the following conditions:
1. Did not know what he was doing or did not know that his act or omission was
wrong and;
2. A was, by reason of intoxication, insane, temporarily or otherwise, at the time of
such act or omission

Tan Chor Jin v PP (2008)
Expert witness concluded that Tan had not gone over the precipice of sanity. Therefore
there is no unsoundness of mind at time of shooting.
Unlike in s 84 where unsoundness of mind must be permanent, s 85(2)(b) allows for the
condition of insanity to be transient.

PP v Therema Vejayan s/o Govindasamy (2009)
Defence required A to show that he was unaware of what he was doing or that his
actions were wrong. However, he was very much aware of what was happening




7.2.4 Section 86(2) Penal Code
Shown by 2 conditions:
o Medical evidence
o All other factors which are relevant
S 86(2) only applies where the mens rea for an offence is intention, in
contradistinction to offences requiring other forms of mens rea (Jumaat bin
Samad v PP (1993))
A needs to show that he was unaware of what he was doing or that his actions
were wrong (PP v Therema Vejayan s/o Govindasamy (2009))
2 effects:
1. Negates intention
2. Intoxication can amount to a mitigating factor
Standard of proof for s 86(2) is on a balance of probabilities

7.2.5 Intoxication as a mitigating factor
PP v Aw Teck Hock Intoxication is of no mitigating value in the case of a grown-up man
like the accused. He who imbibes excessively and is then imbued with Dutch courage
should not be heard crying, Dont blame me, its the alcohol when charged with some
offence committed in the state of intoxication


35
7.3 Private Defence
Rationale Allows the exercise of the right to defend yourself or another where the law
cannot adequately do so.

S 96 106 of the Penal Code

(I) Pre-conditions
1. There must have been an offence or an attempt

2. No
to public authorities
(II) Conditions for Private Defence (III)Conditions for Excess of PD
1. Reasonable apprehension of danger

2. Duration of private defence

3. Necessary force (minimum vs
necessary)
1. Good faith

2. Without premeditation

3. Without intention to do more harm than
necessary

7.3.1 Pre-conditions of private defence

Two preconditions which must be satisfied before the right of private
defence arises:
o The person purporting to exercise the right of private defence
must have been the subject of an offence
o Defender must have attempted to seek help from the relevant
public authorities if there was a reasonable opportunity for him to
do so
Conditions:
1. Reasonable Apprehension of danger (subjective) Tan Chor Jin
2. Duration of PD
3. Necessary/Reasonable use of force

**

Basis to establish whether there was a right of private defence
Effect: results in total acquittal.

Penal code provisions on PD
- property and person
o section 96 to 99
- private defence of person
o 100-102, 106 .(can kill, in all other crircumstances can only cause hurt)
- property
o 103-105
1. Offender must have committed an offence

36



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

S 97 when read together with s 79 (mistake) covers a situation where defender
mistakenly believe that an offence was about to be committed.

S 98 extends right of private defence to acts which would otherwise be an
offence except for aggressors youth, unsoundness of mind etc

7.3.2 Defender must not have recourse to public authorities
Section 99(3) of PC seek recourse of public authority
Objective inquiry whether there was time to seek police protection from
the assailant
Section 99(4) of PC The right to private defence in no case extends to the
inflicting of more harm than it is necessary to inflict the purpose of
defence.
o Only considered if there is no time to seek police protection
CASE: PP v Seow Khoon Kwee


7.3.3 Conditions of private defence
Basis To establish the extent of the right of private defence

Preconditions:
Offender must have commited an offence
o Section 97 (refer to box above)
Covers a situation where defender mistakenly believed that an
offence was about to be committed, subject to reasonable man
test as required under section 79 or PC. (nothing is an offence
which is done by any other person who is justified by law, or who
by reason of a mistake of law in good faith believes himself to be
justified by law, in doing it)
Right of private defence of the body and of property
S97 - Every person has a right, subject to the restrictions contained in
section 99, to defend
(a) his own body, and the body of any other person, against any offence
affecting the human body;
(b) the property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.

Right of private defence against the act of a person of unsound mind, etc.
S 98 - When an act, which would otherwise be a certain offence, is not that
offence, by reason of the youth, the want of maturity of understanding, the
unsoundness of mind, or the intoxication of the person doing that act, or by
reason of any misconception on the part of that person, every person has the
same right of private defence against that act which he would have if the act
were that offence.
37
o Section 98 (refer to box above)
Extends right to private defence to acts which would otherwise
be an offence except for aggressors youth, unsoundness of mind.

1. Reasonable apprehension of danger




Two preconditions which must be satisfied before the right of private
defence arises:
o The person purporting to exercise the right of private defence
must have been the subject of an offence
o Defender must have attempted to seek help from the relevant
public authorities if there was a reasonable opportunity for him to
do so


Test in Singapore (SUBJECTIVE) Whether a reasonable person in the
defenders position would have experienced apprehension of danger
Tan Chor Jin v PP
o Not subject to any offence by Lim. It was Tan who was committing an
offence against Lim
o Nothing to show that Tan had attempted to seek help from public
authorities which could have been easily done if he was genuinely
alarmed by Lims alleged threat to send someone to kill him.


Test is subjective with an objective element (Soosay VS Tan Chor Jin is there
a problem here between holdings and factual findings?)

2. Duration of the right of private defence
OFFENCES AGAINST PERSON: Can Kill, and in all other circumstances,
can only cause harm. (section 100- 102,106)

When the right of private defence of the body extends to causing death
S100 - The right of private defence of the body extends, under the restrictions
mentioned in section 99, to the voluntary causing of death or of any other
harm to the assailant, if the offence which occasions the exercise of the right
is of any of the following descriptions:
(a) such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
(c) an assault with the intention of committing rape;
(d) an assault with the intention of committing non-consensual penile
penetration of the anus;
(e) an assault with the intention of kidnapping or abducting;
(f) an assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for his release.
38
Right of private defence extends till danger continues
o Start of right of PD: reasonable apprehension arising from an
attempt or a threat to body or property
End of Right of PD: end of threat to body or property
o Theft: right exists as long as the offender is within sight. However, if
you see him the next day, he had already affected retreat and right
stops, whether you are still in process of looking
o Robbery: threat of eath, hurt, or wrongful restraint ends
o Criminal trespass or mischief: trespass or mischief stop.
Duration of the private defence will commensurate with the duration of
danger as reasonably apprehended by the A
o Refer to s 102 and 105 of PC (refer to table below)
o In Soosay v PP (1993), the right of private defence ceased when the
knife was dislodged and the weapon changed hands. There was no
longer any reasonable apprehension of danger
The danger does not have to be real or the offence actually committed


Note: S 102 requires at the least an attempt to commit the offence



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


S102 - The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or a threat to commit the
offence, though the offence may not have been committed; and it continues as long as
such apprehension of danger to the body continues.
39


3. Use of necessary force

An objective appraisal of the force used by A is carried out but it should not
be weight on golden scales
No legal duty to retreat in Singapore
Reasonable necessary force VS minimum necessary force
o Singapore use more of reasonable force
Factors taken into account when considering necessary force
o Physique

Can kill in these scenarios
- robbery
- House breaking by night (7pm)
- Mischief by fire
- Trespassing
- Theft

Can only hurt when:
- theft
- criminal trespassing
- mischief

Commencement and continuance of the right of private defence of property
S105 (1) The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.
(2) The right of private defence of property against theft continues till the offender
has effected his retreat with the property, or till the assistance of the public
authorities is obtained, or till the property has been recovered.
(3) The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful
restraint, or as long as the fear of instant death or of instant hurt or of instant
personal restraint continues.
(4) The right of private defence of property against criminal trespass or mischief,
continues as long as the offender continues in the commission of criminal trespass or
mischief.
(5) The right of private defence of property against house-breaking by night
continues as long as house-trespass which has been begun by such house-breaking
continues.
Extent to which the right may be exercised
S99(4) - The right of private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of defence.

Right of private defence against a deadly assault when there is risk of
harm to an innocent person
S106 - If, in the exercise of the right of private defence against an assault
which reasonably causes the apprehension of death, the defender is so
situated that he cannot effectually exercise that right without risk of harm to
an innocent person, his right of private defence extends to the running of that
risk.
For the last 3, it must be
accompanied by an
apprehension of death or
grievous hurt
40
o Use of weapons
o Factual matrix of the case
Case where both the offender and the defender differed in physical strength
o PP v Lim Twe Jeat (1994)
Home-turf argument
In Roshdi v PP (1994), A exceeded his right of private defence when he
struck the deceased with the mortar
Cases where weapons had changed hands (soosay v pp)




































41
7.4 Excess of the Right of Private Defence


Effect:
partial defence culpable homicide not amounting to murder
Justification v Excuse (inferred that intention to kill formed on the
spot?)
Rationale:
Applicable to person and property



7.4.1 Conditions
1. Right was exercised in good faith
Whether offender acted honestly , or whether he used the opportunity to pursue
a private grudge and to inflict injuries which he intended to be inflicted
regardless of his rights
Merely for PD
Soosay v PP

2. Death caused without premeditation

3. Death caused without any intention of doing any more harm than was
necessary for the purpose of such defence

a. Not what he did but what he intended when he did what he did.

4. Right of PD has arisen (2 pre-condiotions of PD must have been satisfied)















S300 Exception 2.Culpable homicide is not murder if the offender, in the exercise in
good faith of the right of private defence of person or property, exceeds the power
given to him by law, and causes the death of the person against whom he is
exercising such right of defence, without premeditation and without any intention of
doing more harm than is necessary for the purpose of such defence.
42


7.5 Accident
Rationale Provide for situations of or misfortune.

Lawful acts that had unforeseen unlawful consequences

7.5.1 Situations where it is not necessary to raise defence of Section 80 (raised by
prosecution)
1. Where s 80 negates an element of the offence
2. Where MR of the offence is negligence

7.5.2 When Section 80 should be raised
1. Strict liability offences
2. Status offences (situation where a crime is committed due to a state of affairs
surrounding you. Eg. Slipped drugs into your bag)
3. Private defence & consent

7.5.3 Elements of defence
1. Accident or misfortune
An effect is said to be accidental when the act by which it is caused is done
without intention of causing it and when its occurrence as a consequence of
such act is not so probable that a person of ordinary prudence ought under the
circumstances in which it is done to take reasonable precautions against it (R v
Ong Choon (1938)).

1 no intention to cause consequence of the lawful act
2 probability that the consequence occurring is low

2. Without criminal intention or knowledge

Not the same as the MR of the offence


3. Lawful act performed in a lawful manner by lawful means
A lawful act is taken to refer to any act that is not a criminal offence (Tan Chor
Jin v PP)

4. Without proper care and caution
A must not be negligent
Must have taken reasonable precautions (objective standard)
Relates to the conduct (contrast with due care and attention which relates
to the state of mind)




Accident in the doing of a lawful act
S80 - Nothing is an offence which is done by accident or misfortune, and without any
criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by
lawful means, and with proper care and caution.
43

7.6 Mistake

Rationale No blameworthy state of mind because if the facts were true, you would
have had the right to do whatever you did

Effect: Total acquittal

7.6.1 Purpose of Section 79 of the Penal Code
To exculpate one who has committed an offence on the mistaken belief that
he/she was justified to do what he/she did
Not to negate MR (MR is not important as there probably is an intent to act as
such)

7.6.2 Applications of Section 79 of the Penal Code
Applies to Penal and non-Penal offences
Offences with MR
Offences without MR
o Tan Khee Wan Iris (1995) public entertainment act.

7.6.3 Elements of Section 79
1. Mistake of fact
A mistake of fact, consists in an unconsciousness, ignorance or forgetfulness of a
fact, past or present, material to the transaction, or in the belief of the present
existence of the thing material to the transaction, which does not exist, or in the
past existence of a thing which has not existed (Ratanlal & Dhirajlals Law of
Crimes).
Mistake of mixed fact and law is treated as question of fact
Fact
o perceived by the senses
o would include a state of the mind



2. Justified by law
That which is not illegal
Not applicable to persons who thought they were committing a lesser
offence

3. Believed in good faith relates to As belief regarding the existence of the
factual circumstances.


Act done by a person justified, or by mistake of fact believing himself justified
by law
S79 - Nothing is an offence which is done by any person who is justified by law, or
who by reason of a mistake of fact and not by reason of a mistake of law in good faith
believes himself to be justified by law, in doing it.
Good faith
52. Nothing is said to be done or believed in good faith which is done or
believed without due care and attention.
44
Balance of probabilities on A to show that he exercised due care and
attention (Tan Khee Wan Iris (1995))
Relates to As belief regarding the existence of the factual circumstances
(state of mind)
Standard of care and caution assessed according to:
o Capacity and intelligence of A
o Considered with reference to the position of A and the
circumstances under which he acts (factual matrix)

7.6.4 Mistake of law & ignorance of the law
Ignorance of the law is no defence.
However, it can be used as a defence if A can show that he could not reasonably have
known about it even if he had exercised all possible due diligence (PP v Koo Cheh Yew &
Anor (1980)).
- when it is not reasonable to find out then it can be used as a defence

Chee soon Juan
4. court should use their prosecutorial discretion to not charge when mistake was
induced by officials
5. Even if charged, the charge should show a strong mitigating factor on the
defendant.



45
8. Offences Against Persons and Property

8.1 Voluntarily causing hurt

8.1.1 AR of the offence
Voluntarily (intends to cause, knew or had reason to believe) causing:
o Bodily pain or; - permanent or temporary
o Disease or;
o Infirmity covers both physical and mental
Note: There is some suggestions from academics that voluntarily goes towards
both the AR and MR
S 95 of the Penal Code (act causing slight harm) is not an offence.
o Standard is not pegged to reasonable but ordinary
Voluntarily
S39 - A person is said to cause an effect voluntarily when he causes it by means
whereby he intended to cause it, or by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it.

Hurt
S319 - Whoever causes bodily pain, disease or infirmity to any person is said to cause
hurt.

Voluntarily causing hurt
S321 - Whoever does any act with the intention of thereby causing hurt to any
person, or with the knowledge that he is likely thereby to cause hurt to any person,
and does thereby cause hurt to any person, is said voluntarily to cause hurt.

Voluntarily causing grievous hurt
S322 - Whoever voluntarily causes hurt, if the hurt which he intends to cause or
knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is
grievous hurt, is said voluntarily to cause grievous hurt.

Punishment for Voluntarily causing hurt

S323 Whoever, except in the case provided in section 334,voluntarily causes hurt,
shall be punished with imprisonment for a term which may extend to 2 years or with
a fine which may extend to $5000, or with both.

Voluntarily causing hurt by dangerous weapons or means.

S324 - Whoever, except in the case provided for by section 334, voluntarily causes
hurt by means of any instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by means of fire or any
heated substance, or by means of any poison or any corrosive substance, or by means
of any explosive substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment for a term which may extend to 7 years,
or with fine, or with caning, or with any combination of such punishments.


46
o Threshold is very low
o It is a cut off, does not constitute an offence.
Enhanced penalties for abuse of domestic maids under s 73 (Farida Begam d/o
Mohd Artham v PP (2001))
74 racial and religious aggravations
75 to deter people who commit crimes frequently.

8.1.2 Causation
Can be an extention of yourself.
Does not have to be direct physical contact (Farida Begam)

8.1.3 MR of the offence
1. Intention of causing hurt
2. Knowledge that hurt to any person is likely
a. Includes willfull blindness willfull blindness is equated to actual
knowledge (tan kiam ping)


8.1.4 Aggravated Hurt
S 324, 327, 328, 330, 332 of Penal Code
Punishment aggravated under certain circumstances
o Where A caused hurt in a certain manner
o Where hurt caused to a certain victim
o Where hurt caused with a specific intent























47
8.2 Theft
s22, 23,24,90,378,379 of Penal Code.


8.2.1 AR of the offence
1. Property is moveable property
a. S 22 of Penal Code - The words movable property are intended to
include corporeal property of every description, except land and things
attached to the earth, or permanently fastened to anything which is
attached to the earth.
2. A took the property out of the possession of another person
a. Temporary deprivation of property still constitutes theft even if
returned after.
Theft
S378 - Whoever, intending to take dishonestly any movable property out of the
possession of any person without that persons consent, moves that property in
order to such taking, is said to commit theft.



Exp 1: A thing so long as it is attached to he earth, not being movable property is not
subject of theft; but it becomes capable of being the subject to theft as soon as it is
severed from the earth
Exp 2: A moving effected by the same act which effect the severance may be a theft
Exp 3: A person is said to cause a thing to move by removing an obstacle which
prevented it from moving, or by separating it frm any other thing as well as by
actually moving it
Exp 4: A person who by any means causes an animal to move, is said to move that
animar and to move everything which is a consequence of the motion so caused is
moved by that animal.
Exp 5: The consent mentioned in the definition may be express or implied, and may
be given either by the person in possession, or by any person having for that purpose
authority either express or implied.

Punishment for theft
S379 - Whoever commits theft shall be punished with imprisonment for a term which
may extend to 3 years, or with fine, or with both.

S379A (1)Whoever commits theft of a motor vehicle or any component part of a
motor vehicle shall be punished with imprisonment for a term of not less than one
year and not more than 7 years and shall also be liable to fine.
(2) A person convicted of an offence under this section shal unless the court for
special resons think fit to order otherwise without prejudice to the power of the
court to order a longer period of disqualification, be disqualified for a period of not
less than 3 years form the date of his release from imprisonment frm holding or
obtaining a driving license under the Road Traffic Act
(3) In this section-
motor vehicle means a technically propelled vehicle inended or adapted for use on
roads and include a trailer drawn by a motor vehicle.;
component part in relation to a motor vehicle, inclused any tyre, accessory or
equipment.
48
b. Even though it is only a temporary deprivation of the article in
question, it is still an offence of theft (Ward v PP (1953))
3. Property in possession of another
a. Theft is an offence against possession and not ownership
b. Complainant need not be the owner
c. Types of possession (must haves to constitute possession)
i. Actual physical control over the subject matter
ii. Lawful custody Illustrations (j) & (k) S 378
iii. Within the claimants control but in anothers possession: S 27
(explanation: when property is in the possession of a persons
spouse, clerk, servant on account of that person, it is that persons
possession within the meaning of this code. )

Note: Taking a wallet on the floor is not theft but misappropriation.
Possession may be lost or abandoned as when there is no longer control
over the thing. For example, a watch lost when swimming in the sea 10
years ago, after such a long time, he may no longer have the control over
the thing. He may have abandoned the idea of gaining possession of
the thing.
4. No consent to taking
a. When a person consents to the taking, the actus reus of theft is not
committed. (where a person did consent, the fact that the accused
thought there was no consent is irrelevant no theft is committed)
b. S 90 of the Penal Code
i. 90a(i) : under fear of injury, or wrongful restraint to the person
of some other person
ii. 90a(ii) : under a misconception of fact.
And the person doing the act knows or has reason to believe, that the
consent was given in consequence of such fear or misconception.
iii. S90 (b) - if the consent is given by a person who, from
unsoundness of mind, mental incapacity, intoxication, or the
influence of any drug or other substance, is unable to understand
the nature and consequence of that to which he gives his consent;
or
iv. S90 (c) - unless the contrary appears from the context, if the
consent is given by a person who is under 12 years of age.


5. There must be some movement of the property to constitute taking
a. Must move property
b. Not necessary to move out of claimants property
c. In Raja Mohamed v Regina (1963), it is sufficient if the person who has
formed such dishonest intention moves that property in order to
such taking; and it is not necessary for him to move that property out of
the possession of the other persons

8.2.2 MR of the offence
1. Dishonest intention to take that property with intent to cause:
a. Wrongful loss to the person who has possession of the property S 23
OR
b. Wrongful gain to A S 23 and S 24
i. S23 wrongful gain is gain by unlawful means of property to
which the person gaining it is not legally entitled.
49
wrongful loss is loss by unlawful means of property to which
the person losing it is legally entitled.
ii. S24 whoever does anything with the intention of causing
wrongful gain to one person, or wrongful loss to another, is
said to do that thing dishonestly.
2. The intention to cause wrongful gain or loss must exist at the time of the
moving of the property
a. Dishonesty wrongful gain/wrongful loss must exist at the time of
moving the property.
i. No dishonest act if takes property belonging to a friend who
has carelessly left it behind with intention to return it later
ii. HOWEVER, if there subsequently exists an intention to not
return the property, he may be liable for criminal
misappropriation of property under s403 of the PC. (not theft
as no dishonest intention present at the time of the act)
Note: Taking of lost property does not constitute theft since there is no
possession
- allowing property to be taken as security without consent could result in
reprisal and violence. Creditor should proceed to the civil court to make his
claim.
3. Taking of anothers property as security for debt
In PP v Ramiah (1959), taking another persons property for security amounted
to theft.
Rationale Law does not allow reprisal/retaliation
4. Intention to take without consent
a. MR of theft includes taking property without consent
b. S 90 of the Penal Code
i. 90a(i) : under fear of injury, or wrongful restraint to the person
of some other person
ii. 90a(ii) : under a misconception of fact.
And the person doing the act knows or has reason to believe, tha the
consent was given in consequence of such fear or misconception.
iii. S90 (b) - if the consent is given by a person who, from
unsoundness of mind, mental incapacity, intoxication, or the
influence of any drug or other substance, is unable to understand
the nature and consequence of that to which he gives his consent;
or
iv. S90 (c) - unless the contrary appears from the context, if the
consent is given by a person who is under 12 years of age.


c. Seen from perspective of A
i. Whether A intended to take without persons consent. Whether
claimant consented or not in fact is not an issue
d. Illustrations (m), (n), (o)
e. Mustaza Bin Abdul Majid v PP (2004)
Facts:
Stealing from supermarket
Held:
Shopkeeper impliedly consents to customers taking and holding
items in full view within the store while shopping. This is so,
even if customer has intention to steal because theft is not an
inchoate offence. Mens rea alone is insufficient
50
Ability to pay does not negative an intention to steal
5. Bona fide right of claim of right
a. Results in intention be one have rightful gain or rightful loss.
b. Absence of a bona fide claim of right is an element in the mens rea
of theft.
i. A mere claim that the property, which the theft of which he is
accused, is his own property, unsupported by proof of by some
circumstances which tend to indicate that there is some truth in
the statement is insufficient. Claim must be tried and determined
by the court and must be proved by evidence to be fair and
good, not necessarily correct.
ii. Mere doubt is insufficient, doubt must be shown to be
reasonable.

c. Exercised in good faith
i. S 52 of Penal Code nothing is said to be done or believed in
good faith which is done of believed without due care and
attention.
ii. A bona fide claim negatives MR



























51
8.3 Robbery

Robbery is aggravated theft or extortion.

8.3.1 AR of the offence
The physical attack can be
1. before (to commit the act of theft)
2. during
3. after (to escape)
this must be linked to the theft itself.
Any threat or threat or forced used in the course of a theft must be for the purpose of
committing the theft or of carrying away or trying to carry away the property obtained
by the theft (PP v Chia Poh Yee (1992)).

8.3.2 MR of the offence
Voluntarily causing specified harm, plus fault element for theft.
















Robbery
S390 (1) In all robbery there is either theft or extortion.

When theft is robbery
(2) Theft is robbery if, in order to commit theft, or in committing the theft, or in
carrying away or attempting to carry away property obtained by the theft, the
offender, for that end, voluntarily causes or attempts to cause to any person death, or
hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant
wrongful restraint.

When extortion is robbery
(3) Extortion is robbery if the offender, at the time of committing the extortion, is
in the presence of the person put in fear, and commits the extortion by putting that
person in fear of instant death, of instant hurt, or of instant wrongful restraint to that
person or to some other person, and, by so putting in fear, induces the person so put
in fear then and there to deliver up the thing extorted.
52
8.4 Criminal Breach of Trust

Essential condition A must have been entrusted with the property or have dominion
over the property

8.4.1 The elements of criminal breach of trust
1. AR
a. Entrusted with property in any manner
OR
Have dominion over property

and

b. (a) Misappropriates (no intention to return)
OR
(b) Converts to his own use (even if you intend to return the money it is
still converting to own use)
OR
(c) Uses or disposes in violation of a law
OR
(d) Uses or disposes in violation of a legal contract
(e) Suffering any other person to do so (getting a third party to do so)

2. MR
a. Dishonesty
i. For 2(b)(i) to 2(b)(iv)
b. Willfully
i. For 2(e) applies to when 3
rd
party uses it

8.4.2 AR of the offence
1. Entrustment
Wide construction in any manner
Would include those person whose positions are analogous to that of
trustee
E.g. bailment (cannot use the product or good contrary to the purpose it
was given in the first place) - property received in the course of
employment
Essential factor Did A receive the property in a fiduciary capacity?
Fiduciary duty: law involving trusts (eg. Administrator of an
estate, administrator has a duty of care to the estate and the
beneficiaries.
Criminal breach of trust
S405 - Whoever, being in any manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to his own use that property,
or dishonestly uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of such trust, or
wilfully suffers any other person to do so, commits criminal breach of trust.

Punishment of criminal breach of trust
S406 - Whoever commits criminal breach of trust shall be punished with
imprisonment for a term which may extend to 7 years, or with fine, or with both.
53
If did not receive the goods in a fiduciary capacity to ground for
CBT.
o Visvanathan Ramachandran v PP (2003)
2. In any manner
Wide interpretation
o Includes property entrusted in the course of an illegal
transaction


3. Dominion
Includes a situation where A has sufficient degree of control over the
property though does not have physical possession (this is included in
CBT)
Illustration:
o A has overall control but not day to day control = dominion
o A has control over day to day but not overall control = dominion
Note: Dominion does not mean possession (you do not actually need
to have the items with you).

4. Misappropriation & Conversion
Conversion is a subset of misappropriation
Would include a situation where property comes to you in a neutral
manner
Conversion to ones use
o Definition Appropriation + use of ones property as if it was
his own
o Mere retention insufficient
o In Wong Seng Kwan v PP (2012),the fact that an accused person
charged with the offence of criminal misappropriation would
usually have come across the movable property in a legally
neutral manner is significant, because while civil rights and
liabilities would attach at the moment when the accused person
asserts possession over the property, criminal liability would
only attach when the accused person forms a dishonest
intention
Misappropriation
o Definition 2 interpretations
Misappropriation to its use. A must exclude property
from rightful owner and use it
Only to misappropriate
= appropriate dishonestly
= mere exclusion of owner from property would suffice
- already given the trust. Unless additionally
decide to exclude the owner(not wanting to
return it) and use it (this will result in
conversion)
o In Goh Kah Heng v PP (2010), there was clearly a
misappropriation, as the funds were diverted to the wrong
person and for a wrong use
5. Uses or disposes in violation of the law or contract
Violations of the law
o Illustration (a) S 405 Penal Code (role of an executor)
Alternative express or implied contract
o Illustration (e) S 405 Penal Code
54
6. Suffering any person to do so
Various approaches but the suggested one is that this elements applies to
2(b)(i) to 2(b)(iii)

8.4.3 MR of the offence
1. Dishonesty
a. S 23 and 24 Penal Code
b. Factors to take into account for purposes of inference in Criminal
Misappropriation:
i. No dishonest intention if A believes that he has bona fide
claim
1. E.g. Retaining property thinking that it belongs to him
Explanation 2 S 403
2. In respect of cases where property came in a neutral
manner
a. Where the property was found
b. Nature and value of property
c. Any identifying features
d. Whether sufficient effort made to trace rightful
owner
Wong Seng Kwa v PP (2012)
ii. More difficult to infer intention by mere taking
1. Can be construed as a neutral act for purposes of
returning property to rightful owner
iii. Temporary deprivation would suffice
1. Explanation 1 S 403
c. Factors to take into account for purpose of inference in Criminal Breach
of Trust:
i. Negligence or failure to account for entrusted property without
more is not dishonest intention (civil cases)
ii. Mere retention of monies without more is not dishonest
intention (must examine why A kept the money)
2. Willfully
a. Ricquier & Yeo suggest willfulness lies between negligence and
dishonesty
b. There must be evidence to show that:
i. A intentionally omitted to comply with the rules or;
ii. Deliberately connived at the misappropriation by shutting his
eyes to what was going on
c. Not necessary for third party to be dishonest
i. The words to do so only applies to the AR
d. If he got the third party to commit a d, he can be said to have
committed CBT. 3
rd
party could be completely innocent.









55
8.5 Cheating

8.5.1 Elements of Section 415
1. AR
a. Deception

AND

b. (i) Induced to deliver any property to any person
OR
(ii) Induces that person to consent to any person retaining property
OR


2. MR
a. Dishonestly or fraudulently b(i) & b(ii)
b. Intentionally b(iii) & c (Chua Kian Kok v PP (1999))

8.5.2 Deception
1. Victim has to be deceived (question of fact)
2. Natural & ordinary meaning of deception
a. Rahj Kama bin Abdullah v PP (1998)
i. Causing another to believe what is not true
ii. Misrepresentation can be acts or omissions
iii. The acts can be by words or conduct
iv. Fraudulent misrepresentation can be direct or indirect
v. Deception not necessary to be direct and be made by personal
representation. It can be effective through an agent
b. Hwa Lai Heng Ricky v PP (2005)

8.5.3 Inducement & property
1. There must be an inducement; and
Cheating
S415 - Whoever, by deceiving any person, whether or not such deception was the
sole or main inducement, fraudulently or dishonestly induces the person so deceived
to deliver any property to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit to do if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to any person in body,
mind, reputation or property, is said to cheat.

Aggravated Cheating

S420 -
(iii) Induced to do or omit to do anything which V would not do or oit
if he were not deceived

AND

c. that act or omission causes or is likely to cause damage to mind, body,
property or reputation
56
2. V induced to deliver property
3. Inducement:
a. Not necessary to be the sole or main reason for delivering the property
b. Would suffice if deception played some part and materially induced V
(Hwa Lai Heng Rick v PP (2005))
c. Immaterial if there were additional reasons for transferring the
property, so long as the transfer was done in reliance of the deception
d. Gunasegaran s/o Pavadaisamy v PP (1997)
i. Inducement does not have to be oral or expressed. It can be
inferred
ii. There must be delivery of the property because of the
inducement
4. Property:
a. Not necessary to belong to the party deceived
b. Not necessary to move towards the party who deceived

8.5.4 MR Dishonest & Fraudulent intention
1. Dishonesty
a. Defined in s 23 and 24 Penal Code
b. Ascertained from surrounding circumstances
2. Fraudulently
a. Defined in S 25 Penal Code (though it is not useful)
b. Wider than dishonesty
c. Seet Soon Suan v PP (1955)
i. Fraudulently different from dishonesty
ii. Not confined to transactions of which deprivation of property
forms a part
d. Sir James Stephen states that there are 2 elements
i. Deceit, intention to deceive or secrecy
ii. And in consequence of the above there is actual injury or
possible injury or intent to expose one to either of the
aforesaid
e. Approach taken in Chua Kian Kok (obiter) is that s 420 should be read as
if the words cheats and thereby were omitted. There was a call for
Parliament to take legislative action and amend s 420 to remove the
redundancy

8.5.5 Cheating by intentional inducement
1. 2 views
a. That intention relates to:
i. Act or omission AND damage or harm to body, mind, property
and reputation
ii. Need only intend act or omission
2. Definition of harm to mind
a. Would include damage to mental faculties and/or mental pain
i. Some damage to some part of the brain will do.

8.5.6 Section 420 (Aggravated Cheating)
1. Elements
a. V must be deceived
b. There must have been an inducement such that V delivered any property
to any person
c. Dishonest or fraudulent intention on the part of A to induce to deliver
the property
57
Note: Gunasegaran s/o Pavadaisamy v PP (1997) referred to Chua Kian Koks
case)

2. Points to note (Chua Kian Kok v PP (1999))
a. Additional requirement for A to have cheated under s 420 redundant
b. Difference between s 417 & s 420
i. S 417 no passing of property
ii. S 420 There must be passing of property & heavier sentence
iii. Simple cheating cases where the other limbs of cheating
defined ins 415 are made out
1. E.g. intentional inducement or dishonest inducement of
consent to retain property
iv. MR in S 420 should be clarified to mean dishonest intention
within the meaning of s 23 & 24


58
9. Abetment & Conspiracy, Attempts and Joint Liability

9.1 Abetment

9.1.1 Abetment by instigation
1. S 107(a) Penal Code
2. Elements of the offence
AR
Instigation
a. Instigation = active support, suggestion stimulation or encouragement
this is the ratio in PP v Datuk Haji Harun bin Haji Idris & Others (1977)
Note: Mere silence cannot constitute instigation
i. Whang Sung Lin v PP (2010) Organ trading case
Both parties needed no encouragement or goading. They were
obviously eager to engage in the transaction. Charged preferred
was intentional aiding.
ii. Balakrishnan v PP (2005) Dunking case
Omission in this case signified his support and encouragement of
the instructors actions
iii. PP v Tee Tean Siong & Others (1963) Blue film
Mere attendance cannot amount to abetment
iv. Jimina Jacee d/o CD Athananasius v PP (2000) Illegal Sri
Lankans on aircraft
Act of delivering air tickets and collecting boarding passes were
insufficient to constitute active support or encouragement.
Amended to intentional aiding.
v. PP v Aniza Bte Essa (2008) Malay affair case
There was constant instigation and pressure exerted on her
lover.
vi. Chan Heng Kong and another v PP (2012) Mamee in plastic
bag
No instigation since there was no need to goad or encourage
appellant into collecting heroin.
b. Instigation must refer directly to the thing done
Baby John v State (AIR) (1953) Instigation must have reference to
the thing that was done and not to the thing that was likely to have
been done by the person who is instigated.
Principle: what was instigated was not the same as what conspired. In
this case it wasnt the case and thus cannot be brought under instigation.
MR
Intention or knowledge
o It must be the MR of the abettor
Abetment of the doing of a thing
107. A person abets the doing of a thing who
(a) instigates any person to do that thing;
(b) engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
(c) intentionally aids, by any act or illegal omission, the doing of that thing.
59
o The MR of the abetted is not relevant (Explanation 3 to s 108) to
cover cases where the abetted person is of unsound mind etc.

9.1.2 Abetment by conspiracy
Agreement by persons to do some illegal act, or to effect a legal purpose by illegal means
(there must be 2 or more separate individuals).

Criteria: as defined in Koh Clarkson and Morgans Criminal Law in Singapore and
Malaysia,
The person abetting must engage 2 or more other persons in a conspiracy.
The conspiracy must be for the thing abetted
An act or illegal omission must take place in pursuance of the conspiracy in
order to the doing of that thing.
o Disclaimers:
o not necessary for a principal offender to exist before someone can be
charged under s107(b) for abetment by conspiracy so long as 2 persons
agree that they want to effect a substantive offence, and so long as one of
them commits an act in pursuance of that conspiracy. No reason why
both cannot be charged for abetting each other by conspiracy to commit
that substantive offence.

1. Elements of the offence
AR
a. Person abetting must engage, with one or more persons in a conspiracy
i. Fundamental question was there an agreement to commit an
offence?
It is generally a matter of inference

Lee Yuen Hong v PP (2000) Use money buy handphone
Failure to reject the disputed sum was not sufficient to constitute
an agreement. Foolishness and poor business sense is not
criminal.

Er Jo Huang & Anor v PP (2000) Walt Disney apparel
There was no evidence to support inference that there was an
agreement to commit CBT. Breach of trust in the absence of mens
rea cannot legally justify a criminal prosecution.

Nomura Taiji & Anors v PP (1998)
Before person can be convicted, he must at least know the
essential matters which constitute that offence.
Although there must be knowledge of a common design, it is not
necessary that all should be equally informed. However, they
must at least be aware of the general purpose of the plot and that
plot must be unlawful.

Goh Kah Heng v PP (2010) Ren Ci
There was an agreement to falsify the Payment Voucher. Their
words and actions illustrated their concert in pursuit of a
common object or design.
b. The conspiracy must be for the doing of the thing abetted
60
c. An act or illegal omission must take place in pursuance of the conspiracy
in order to the doing of that thing (contrast with S 120A) Er Jo Huang
v PP

MR Er Jo Huang v PP
a. There must be meeting of the minds
b. Knowledge of the abettor that he is engaged
c. Must be aware of the general purpose of the plot and that it is unlawful

2. Proof of criminal conspiracy
a. Matter of inference but the inference must be inexorable and irresistible
b. Meeting of the minds matter of inference
i. Factors to take into account
1) Surrounding circumstances
2) Conduct of parties (including words & actions and before
& after)
PP v Yeo Choon Poh (1994)
Method of proving conspiracy would be to show that the
words and actions of the parties indicate their concert in
the pursuit of a common object or design, giving rise to
the inference that their actions must have been
coordinated by arrangement beforehand. These actions
and words do not of themselves constitute the conspiracy
but rather constitute evidence of the conspiracy.
c. Must have knowledge of the essential elements of the offence
d. How much should the other conspirators know of the scheme?
a. Er Joo Nguang: Essence of conspiracy is the combination and
agreement by persons to do some illegal act, or to effect a legal
purpose by illegal means. While it is not necessary that all the
alleged conspirators should be equally informed as to the details
of the conspiracy, it is essential that there is a meeting of minds
so that they are all aware of the general purpose of the plot.
i. Agreement
ii. You must committed an overt act pursuant to the
agreement.
iii. They do not need to know all the details of the
conspiracy as long as there is a meeting of minds
iv. Knowledge of general awareness of the purpose of
the plot as mentioned in both Ang Ser Kuang and
Nomura Taiji

b. Johnson v Youden and others applied in Nomura Taiji and
Others v PP: if a person knows al the facts and is assisting
another person to do certain things, and it turns out that the
doing of those things constitutes an offence, the person who is
assisting is guilty of abetting that offence, because to allow him to
say I knew of all those facts but did not know that an offence
was committed would be allowing him to set up ignorance of
the law as a defence. (ABETEE)
i. If he knows all the facts, this is enough as courts will
not allow the accused to say that they did know the
fact but did not know it constituted an offence.
(ignorance of the law is not a defence)
c. Johnson v Youden and others applied in Nomura Taiji and
61
Others v PP: before a person can be convicted of aiding and
abetting the commission of an offence, he must at least know the
essential matters which constitute that offence. He need not
actually know that an offence has been committed because he
may not know the facts constitute and offence and ignorance of
the law is not a defence. (ABETTOR)

e. Should the consequences be interpreted objectively or subjectively?
a. Objectively.
b. Er Joo Nguang: Conspiracy is generally a matter of inference,
deduced from certain acts of the accused parties, done in
pursuance of an apparent criminal purpose in common
between them. Both the surrounding circumstances and the
conduct of the parties before and after the alleged
commission of the crime will be useful in drawing an
inference of conspiracy.
i. An inference of conspiracy would be justified only if it is
inexorable and irresistible, and accounts for all the
facts of the case. This would mean that the facts when all
facts are put together, it should only point to one
conclusion.

3. Chain conspiracy and wheel conspiracy
a. Wheel: one mastermind. Those helping do separate thing but liaise
with one central character. They do not need to know each others
role as long as they know the general plan based on the central
figure.
b. Chain: more than one mastermind. Roles passed down and more
recruited by subsequent conspirators. They may be links between
the conspirators.
General points
o Communication between each conspirator is not necessary
o Explanation 5 to S 108
o Must be aware of the general plot and that the act is unlawful
Chain conspiracy
o Ang Ser Kuang v PP (1998)
There was common purpose to rob. What is important is that the
appellant was kept informed of the developments in the plans
Wheel conspiracy
o Each of the party agrees with a central character
o Need for a link between all the individuals in the sense that they
view their agreements with the central character as part of the
broader plan

9.1.3 Abetment by intentional aiding
1. Proof of abetment by aiding
Elements
a. Intentional aiding
i. Must aid the commission of the offence with intent
ii. PP v Datuk Tan Cheng Swee & Others (1979)
Prosecution must prove intention on the part of the abettor to
aid and he must be shown to have known the circumstances
constituting the crime at the time when he voluntarily does a
positive act of assistance.
62
b. Must have knowledge of the circumstances constituting the crime
i. Insufficient if abettor only has mere knowledge that some offence
is going to be committed and render aid to that extent
ii. Not necessary to know the exact manner of commission or
details of the offence
PP v Mohamad Norhazri Bin Mohd Faudzi (2008) Prostitute
robbery
While the accused did not intend to rob nor commit sexual
offences, he knew that the others would rape the victims and yet
he went along with the plan of robbery and rape


2. Providing aid by illegal omission

For Illegal Omission: Fundamental question: Was there a duty to act?
o Examples
S 176 and 202 Penal Code




o Queen Empress v Latifkhan (1895) duty to act under bombay
police act.
Police constable had a duty to prevent torture.
Note: Mere presence cannot constitute abetment unless such
presence was calculated or intended to have the effect of
abetment this constitute an abetment via illegal
omission.
o Regina v Tan POh Keah (1884)
Omission to give notice or information to a public servant by a
person legally bound to give such notice or information
176. Whoever, being legally bound to give any notice or to furnish
information on any subject to any public servant, as such, intentionally
omits to give such notice or to furnish such information in the manner
and at the time required by law, shall be punished with imprisonment for
a term which may extend to one month, or with fine which may extend
to $1,500, or with both; or, if the notice or information required to be
given respects the commission of an offence, or is required for the
purpose of preventing the commission of an offence or in order to the
apprehension of an offender, with imprisonment for a term which may
extend to 6 months, or with fine which may extend to $3,000, or with
both.

Intentional omission to give information of an offence, by person
bound to inform
202. Whoever, knowing or having reason to believe that an offence
has been committed, intentionally omits to give any information
respecting that offence which he is legally bound to give, shall be
punished with imprisonment for a term which may extend to 6 months,
or with fine, or with both.

63
There was no duty to inspect estate. Therefore, there can be
no illegal omission of it
o Chuan Keat Chan Ltd v PP (1972)
There was no duty placed on the driver to drive without an
attendant. The duty was on the company.
3. Facilitation to be before or at the time of the act
Explanation 2 to S 107 Penal Code
o Explanation 2.Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate
the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.
Varatharajalu v PP (1960) Timber extraction
Action took place after and not contemporaneously with or before to
constitute the offence supposedly abetted.
4. MR of the offence
Daw Aye Aye Mu v PP (1988)
o Need to ascertain the dominant intention of the abettor when
there is a community of interests
Section 109 of Penal Code
o the abettor would be punished with the punishment provided for
the offence
Explanation 3 to S 108 Penal Code
o Explanation 3.It is not necessary that the person abetted should
be capable by law of committing an offence, or that he should
have the same guilty intention or knowledge as that of the abettor,
or any guilty intention or knowledge. (
o Liability is individual unlike in UK which is derivative
S 110 & 111 of Penal Code
o Abettor is still liable if he abetted X act but Y act was done
instead as long as Y was a probable consequence of X

9.1.4 General issues
1. A lesser MR for the offence of abetment
PP v Hendricks Glen Conleth (2003)
The scheme was so murky that it cannot be said with certainty that appellant
must have known or suspected anything.

2. Abetment of an offence to be committed abroad
Isaac Paul Ratnam v Law Society of Singapore (1976)
The guy wrote a letter in Singapore and posted it to KL. Even though
communication only took place in KL, he was taken to have committed an
offence within Singapore jurisdiction.

3. Where the act committed would not amount to a crime
Section 108
Section 40 (1) of the penal code
PP v Mirza Khan (1947)
You cannot abet a policeman to carry a gun simply because it is not an offence.

4. Where the person abetted is incapable by law of committing the offence
42
nd
Report Law Commission of India
64
The abettor in such circumstances should be held to be guilty of abetment of an
offence as if it had been committed by the person abetted, with the same
intention or knowledge as that of the abettor.
It does not deal with cases of criminal rashness or negligence.



5. When a different act or different effect is done by the person abetted



Suggested in Queen Empress v Mathura Das & Others (1884) that
foreseeability is objective test
Girja Prasad Singh & Ors v Emperor (AIR) (1935)
The use of the spear was not a probably consequence of anything said or
done but a most unexpected and unusual consequence.
Mok Swee Kok v PP (1994)
Events revealed by hindsight do not thereby become established as the
probable consequence of a prior act of abetment.
o Court took into account these factors
Original plan
Lookout stationed
Unarmed
Waited for deceased to leave
Sinniah Pillay v PP (1992) Formic acid on victim
Court gave a broad interpretation of abettors instruction to cause
grievous hurt.
Appellant had not specified the means to be adopted to cause the
grievous hurt. He left it entirely to the discretion of the co-conspirators.
What was done by the co-conspirators was within the scope of his
instructions to cause grievous hurt.
Ang Ser Kuang v PP (1998)
The use of a knife or a sharp weapon to facilitate the robbery was not a
probable consequence in order to carry out the instructions. It was a
distinct act.
Note: Distinguishable from Sinniah Pillay since this case there was only
intention to rob. The courts could have possibly taken a broad approach
like in Sinniah Pillay.

65
6. Where the person abetted has a personal defence available
Explanation 3 to S 108 of Penal Code
o Does not extend to abettor

7. Where the person abetted does not commit the offence
Ong Ah Yeo Yenna v PP (1993)
There cannot be intentional aiding if there was no act committed.
Chua Kian Kok v PP (1999)
Overruled Ong Ah Yeo Yenna, and extended principle that an abettor
may be liable even though the principal offence was not committed
to intentional aiding.
Er Joo Nguang & Anor v PP (2000)
There can be abetment even if there is no principal offender.


8. Where the abettor is a victim intended to be protected by the offence.
a. Suggested approach Abettor should not be responsible
b. Eample: R v Tyrell (English case, not binding no Singapore cases
yet on this matter) : defendant, a girl, below age of 16, acquitted of
aiding and abetting a man to have sexual intercourse with her.

9. Presence of an abettor at the offence

S 114 of Penal Code
o Abettor present when offence committed
o 114. Whenever any person who, if absent, would be liable
to be punished as an abettor, is present when the act or
offence for which he would be punishable in
consequence of the abetment is committed, he shall be
deemed to have committed such act or offence.
Barendra Kumar Ghosh v Emperor AIR (1925)
S 114 deals with cases where there has been actual commission of the
crime abetted and the abettor has been present. Presumption raised by s
114 brings the case within the ambit of s 34 (34 Each of several persons
liable for an act done by all, in like manner as if done by him alone)

Law Commission of India 42
nd
Report
Recommendation to delete the words if absent from s 114

10. Withdrawal :
a. Should abettor be responsible where he repents and withdraws
from criminal endeavor whilst the principal offendor commits the
crime regardless?
i. Yes, either way, he had abetted the crime and must still be
responsible for doing so.
ii. He may just be pretending (Law commission of India, 42
nd

report)
iii. The offence of abetment is complete with the instigation or other
act of the abettor. And the question whether or not the principal
offender has committee the act or not is immaterial except as
regards the quantum of punishment under s109, 115 and 116.
Withdrawal is therefore, out of the question as what is complete
cannot be withdrawn. (Law commission of India 42
nd
report)
66
9.2 Criminal Conspiracy

Very wide
o Covers an offence, an illegal act or an act done by illegal means
o Definition of illegal S 43 Penal Code
Wider than s 107(b)

9.2.1 Fundamental difference between Section 107(b) & 120A of Penal Code
S 107(b)
o There must be an agreement & an act done in furtherance of that
agreement
S 120A
o Only need an agreement
o No further act necessary
o An inchoate crime

9.2.2 Elements of an offence
1. AR
There must have been an agreement
o Proving the agreement
By inference (R v Chew Chong Jin (1956))
Words and actions can constitute evidence of the
conspiracy (PP v Yeo Choon Poh)
o Not necessary for a person to be a party to the conspiracy from
the start. Would suffice if he joins in the agreement before the
unlawful act is carried out
o Not necessary for each conspirator to communicate with each
and everyone. Would suffice, so long as there is a common design
between all
o Not necessary for each conspirator to be informed equally of the
details. Need only be aware of the general purpose of the plot and
that the plot is unlawful (Nomura Taiji & Others v PP (1998))
o Yash Pat Mital v The State of Punjab (1977)
As long as there is a unity of purpose/object and all acts
are done in furtherance of that object, it would suffice
Not necessary for each of the conspirators to know all the
details
Definition of criminal conspiracy
120A.(1) When 2 or more persons agree to do, or cause to be done
(a) an illegal act; or

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

(2) A person may be a party to a criminal conspiracy notwithstanding the existence
of facts of which he is unaware which make the commission of the illegal act, or the
act, which is not illegal, by illegal means, impossible.
67
o Under S 120A, the agreement to conspire continues so long as the
conspirators remain in agreement, acting in accord in
furtherance of the object
Where there are different groups of persons, the question
to ask is whether they are working towards a common
goal or separate ends
Saleem-Un-Din v State (1971)
A general conspiracy must be distinguished from a
number of separate conspiracies having a similar general
purpose

2. MR
Intention to agree
o Kannan s/o Kunjiraman & Anor v PP (1995)
There must exist an intention to put the common design into
effect. A common design necessarily involved an intention. A
conspiracy requires an actual intention in both parties at the
moment of exchanging the words of agreement to participate in
the act proposed; mere words purporting agreement without an
assenting mind to the act proposed are not sufficient
o Intention is a question of fact inferred from the surrounding
circumstances

9.2.3 Impossible conspiracies
There can be an agreement to conspire an act that is impossible to carry out
Emperor v Shankaraya Gurushiddhayya Hirematn (1940)
If the conspiracy is merely to do an act which is not illegal, though in the hope
and belief that the act may result in the death of or injury to some person, that
does not amount to a conspiracy to do an illegal act.
However, if the agreement is to commit the murder of X, the agreement being in
its essence to cause death and the means being subsidiary is a conspiracy to
commit an offence
Director of Public Prosecutions v Nock & Anor (1978)
No actus reus because there was no agreement on a course of conduct forbidden
by statute.




9.3 Attempts
You want to nip it in the bud. You dont want to allow a person who
attempted to committing and offence to be able to do it again. Stop accused
before the crime fusions into a full blown offence.

9.3.1 Types of attempts
1. Complete but imperfect (done everything possible but something stopped you)
2. Incomplete attempts (you stopped yourself)

9.3.2 Purpose of the law of attempts
Prevention is better than cure. You get the criminals before they have another change to
re-attempt an offence since he had the guilty mind to do it.

68
9.3.4 Manner in which attempt is dealt with under Penal Code
1. Offence & attempts dealt with under the same provision in Penal Code
S 121 Penal Code (waging war on government)

2. Attempts of some specific offences separately dealt with
S 393 Penal Code (attempt to commit robbery)

3. All other attempts covered by general provision
S 511 Penal Code

9.3.5 AR of the offence
1. An attempt to commit an offence punishable under the Penal Code or any
other written law
2. Any act towards the commission of the crime
a. An act immediately connected with it and must not be remote
i. R v Eagleton (1855)
Acts remotely leading towards the commission of the offence are
not to be considered as attempts to commit it
b. Mere forming of an intention and preparing towards commission of
offence without an overt act
i. Thiangiah & Anor v PP (1977)
There must be some further overt act on the part of the offender
which is directed towards the actual commission of the crime
and which is immediately and not remotely connected with the
crime in order to constitute an attempt within the meaning of s
511 of the Penal Code.
c. The overt act need not be the penultimate act. It would suffice if it is
reasonably proximate to the commission of the offence
i. State of Maharashtra v Mohd Yakub & others (1980)
It is sufficient if such acts were deliberately done, and manifest a
clear intention to commit the offence aimed, being reasonable
proximate to the commission of the offence.
d. PP v Mas Swan bin Adnan and Anor (2012)
Conclusive view on test to be adopted was not reached because Mas
Swan had done everything he possibly could to commit the primary
offence of importing ecstasy.
e. Whether there is an attempt is a question of fact dependent on the
surrounding circumstances
i. Chua Kian Kok v PP (1999)




f. Preparations VS Attempts: The Test

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9.3.6 MR of the offence
Intention to commit the offence
o Chua Kian Kok v PP (1999)
2 reasons why the mens rea of attempt is intention to commit the
offence:
S 511 is an inchoate offence; no actual crimes were committed.
However, the fact that inchoate offences are punishable under
criminal laws show that there is still some sort of harm inflicted on
the public
In order to punish a person under s 511, it must be shown that he
intended to commit the offence, even though a lesser mental state
would have sufficed for the completed offence

9.3.7 Impossible Attempts






9.4 Joint Liability
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9.4.1 Requirements of common intention
1. Criminal Act
There is usually a primary and collateral offence; unity of criminal behavior

2. Common Intention
Secondary offenders must intent the very criminal act done by the actual doer

3. Participation
There is no need to participate in the collateral offence itself. As long as there
was participation in the primary offence, it would constitute participation

9.4.1 Criminal Act
Refers to a series or group of acts of all the participants as a whole, which must include
(but is not limited to) an offence (Barendra Jumar Ghosh v Emperor).

9.4.2 Common Intention
There must be a common, shared purpose which may arise pursuant to a pre-
arranged plan or can arise on the spot
In Daniel Vijay s/o Katherasan, knowledge is not the same as intention. The
secondary offender must have the intention to commit the crime which the
primary offender committed

9.4.3 Participation
Participation can arise spontaneously (Daniel Vijay s/o Katerasan v PP).

Daniel Vijay v PP (2010)
Held:
Knowledge is not the same as intention and therefore, the presence of the
knowledge found by the trial judge was insufficient to justify the conclusion that
there was a common intention among the appellants
Appellants had not planned to kill or cause death. Insufficient to satisfy the LCK
requirement (lack of subjective knowledge)

Kho Jabing and another v PP (2011)
Held:
Appellants did not have a common intention to kill the deceased, but only to rob
him
There must be a common intention to do the criminal act done by the actual doer
which results in the offence charged for s 34 to operate
Each of several persons liable for an act done by all, in like manner as if done
by him alone
S34 - When a criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if the
act were done by him alone.

S34 must be able to distinguish between single crime and twin crime situations
For single if A inflict the stab wound, he would be liable. Question is, the others,
B,C,D have the common intention to do that one single act.

For twin crime two acts, primary and secondary. (robbery and murder etc
respectively) When A commits murder, whats the common intention for B,C,D? B,C,D
intend to rob? Or rob and kill?
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Common intention can be contingent or remote, can even be predicated upon a
common intention to commit robbery, and implies a pre-arranged plan pursuant
to which the criminal act was done
Common intention may be inferred if the secondary offender is found to have
subjective knowledge that one in his party may likely commit the criminal act
constituting the collateral offence in furtherance of the common intention of
carrying out the primary offence

PP v Ellarry bin Pulling and another (2011)
Held:
A secondary offender is constructively liable for the murder actually committed
only if he has the common intention with the actual doer to commit murder
When made constructively liable for s 300(c) murder, the secondary offender
must intend for the particular injury inflicted to be one that is sufficient in the
ordinary course of nature to cause death
The threshold set for a secondary offender is, therefore raised to that of s 300(a)
even though he would be held jointly liable for murder under s 300(c) read with
s 34