Hypo 52 mins Case Analysis 23 mins o Can single out one issue and deal with it well o Compare

re with law in other jurisdictions o Effects of burden of proof, onus of proof, mandatory/discretionary sentencing Discuss the criminal liability any charge, discuss both offences and defences available to the person Reported in April that there will be a revision to the Criminal Procedure Code to allow for more communitybased sentencing shift to rehabilitative punishment?

PP v Ng Pen Tine (2009) duress Held: D had no alternative but to do what he did because he was labouring under a reasonable and genuine fear for his and his familys safety rare case that allowed the defence o Falls within classic example of a person who is forced at gunpoint to deliver prohibited drugs to a designated location and who is subsequently charged with drug-trafficking (Chu Tak Fai, Goh Hock Huat, Wong Yoke Wah, Mohammed Sairi bin Suri) o A more liberal approach was taken towards the interpretation of the requirements First local case where the defence succeeded Since penal code amendment in 2007 to allow r apprehension to others as well The law allows a time lapse between the accuseds refusal to break the law and the coercers execution of the threat o Imminent, persistent and extreme judicial legislation? But following precedent too o From Tan Seng Ann v PP o Imminent allows a greater time lapse, meaning of instant diluted o A more liberal approach was taken towards the interpretation of the requirements First time in application that meaning of imminent as distinguished from instant recognised o Judicial legislation Dworkin: undemocratic, Hart: necessary price to pay Explicitly did not require coercers presence good o The prosecution also relied on Goh Hock Huat to the extent that the defence of duress was found not to be established because there was no imminent threat of instant death to the accused once the coercer had left the flat. o In the case before me however, even though Ah Xiong was not present when the 2nd accused was driving to Singapore, his men were watching the 2nd accused very closely, from the very moment he left Ah Zhongs house till he entered Singapore. o Hence, Ah Xiongs threat of death, far from being removed from the 2nd accuseds mind, continued to operate on him. The test for whether there was a reasonable opportunity to escape is a subjective one, ie, it was the 2nd accuseds reasonable belief which mattered o Elucidation is needed under s 94 on the requirement to escape o Accords with move to subjective approach o Certainty in the law o Could clarify by stating it was an objective-subjective approach o Clarified Teo Hee Heng which seemed to be adopting a more objective approach it was partly the petitioners own doing for having placed himself in such a position since he could easily have extricated himself out of the situation by seeking help from the police instead of continuing to act on Leows instigation S Yeo: Considerations of Time & Space in Duress Close adherence to the underlying rationale of the defence promotes a liberal approach towards the interpretation and application of requirements o Rationale excusing persons whose only choice was the morally unacceptable one between either selfsacrifice or breaking the law Contended that the requirement of instant harm should be removed from s 94 o Imminent harm instead of instant harm used by UK, AUS, Canadian courts

If the laws concern is over the accuseds lack of free choice, the defence should succeed so long as the threat was a continuing menace significantly operating on the accuseds mind at the time of the offence o Situations where, although the threat was not of instant harm, there was no way of escape or any other avoiding action available to the accused Accused held in captivity by her or his coercers who could carry out the threat at their leisure o Requirement of instant harm under s 94 is too demanding and takes an unduly narrow view of circumstances when an accused can be said to lack free choice between breaking the law and selfpreservation Correct for s 94 not to require the coercers presence o Coercer aiming a high velocity rifle at the accused from a considerable distance away o Chu Tak Fai required presence Elucidation is needed under s 94 on the requirement to escape o Broader view of proviso in Teo Hee Heng v PP by SGHC o Regarding the appraisal of whether there was a reasonable opportunity to escape, it is submitted that it should be the accuseds reasonable belief o An attractive solution is for the law to presume that police protection will be effective unless shown otherwise (AUS: R v Brown) o nave for the law to ignore situations where no amount of police protection would be effective to counter the threat being carried out

Tan Chor Jin v PP (2008) intoxication, private defence Eunice Chua: Recent Developments In Intoxication, Private Defence And Right To Counsel Clarified law in relation to the defences of intoxication and the right of private defence It proceeded to address the relationship between the three provisions under the Penal Code under which a defence of intoxication could be invoked. (a) s 85(2)(a) where a third party maliciously or negligently causes the accused to become so intoxicated that the accused did not know his act to be wrong or did not know what he was doing; (b) s 85(2)(b) where the accused is so severely intoxicated as to be insane at the time of the alleged crime; (c) s 86(2) where intoxication, however caused, prevents the accused from forming the requisite mens rea. The effect of the first and last provisions would be the acquittal of the accused, and as for the second, section 84 of *the Penal Code+ and sections 314 and 315 of the Criminal Procedure Code shall apply. Tan Ho Teck: equated insanity with unsoundness of mind o One should not be too astute to attribute statutory superfluousness to Parliament where the use of the word insane in s 85(2)(b) is concerned o The reference to temporarily or otherwise in s 85(2)(b) is neither accidental nor superfluous Tan Chor Jin v PP correctly made clear that the courts will regard the two concepts as different not only because: o (a) the causes of these respective conditions are different the former being severe alcohol or druginduced intoxication and the latter an abnormality of the mind o (b) the former may be transient or temporal whereas the latter is a permanent condition, but because it preferred to afford statutory defences greater interpretative latitude provided the interpretation adopted dovetail*ed+ with both the letter and the intent of the provisions concerned S Yeo: but if transient then why 315 of CPC? But 315 is subject to discretion of the court and the minister But still little practical difference between them o The touchstone of being in a state of mind such that one did not know what one was doing was wrong or did not know what one was doing is the same o Section 86(1) equates s 85(2)(b) with s 84, and makes the penal consequences flowing from a finding of either unsoundness of mind or insanity the same Court of Appeal did not address in Tan Chor Jin was the meaning of insane was this the same as insanity in MNaghtens Case Or was insane to be regarded as a type of unsoundness of mind which was caused by intoxication and could be transient? o Submitted that this is what the court meant o Disease of mind in MNaghten not broad enough to cover a transitory effect caused to the body by an external factor such as drugs or alcohol An accused who can become insane (whether temporarily or otherwise) under the influence of drink or drugs is

a danger to society, and consideration needs to be given to how future recurrent instances of insane homicide by such an accused can be prevented prefer to afford statutory defences greater interpretative latitude provided the interpretation adopted dovetails, in the final analysis, with both the letter and the intent of the provisions concerned Elaborated on 86(2): Two requirements must be met before this subsection can be successfully invoked o accused must show evidence of his intoxication. In this regard, objective evidence of the accuseds level of intoxication is crucial (see Jin Yugang v PP) o even if the accused can prove that he had consumed a considerable amount of alcohol, the surrounding facts must show that he was so intoxicated that he could not form the intention which is a necessary element of the alleged offence (see Mohd Sulaiman v PP)

Private Defence Court agreed with the preconditions approach in YMC the Court of Appeal was hesitant to say that the initial aggressor could never avail himself of the right to private defence. Instead, in a manner designed to provide guidance to future cases, the Court of Appeal set out six conjunctive requirements gleaned from all the sections in the Penal Code relating to private defence that must be satisfied in order to establish the general exception of the right to private defence to the body o Offence committed (except s98 unsound mind) o no time to seek the protection of public authorities (s 99(3)) o If the defender was the aggressor at the material time, it is prima facie less likely that he had a right of private defence. o The defender must prove that, at the time of acting in private defence, he reasonably apprehended danger due to an attempt or a threat by the victim to commit an offence affecting the body (s 102) o Where the defender has killed the victim, he has to prove that the offence which occasioned the exercise of the right of private defence was one of those listed in s 100. o The defender must prove that the harm caused to the victim was reasonably necessary in private defence (s 99(4)) Requirement 3 The Court of Appeal in Tan Chor Jin appeared to be unduly concerned with the possibility of exceptional factual circumstances o whether or not there was a right of private defence ultimately depend*ed] on all the relevant circumstances of the case o This seems unnecessary, in light of the comprehensive guidelines, and perhaps somewhat unsatisfactory, since it suggests (although probably unintentionally) that there may be some factual situations where it would be permissible to go against the express provisions in the Penal Code. o Indian position inconceivable for an assailant to have a right of private defence against someone legitimately exercising his right of private defence against the assailant ... If it were otherwise, the right of private defence would swing back and forth infinitely between victim and assailant like a perplexed pendulum CA set the bar too low? o Since the right of private defence is premised on prevention, an aggressor is necessarily excluded from o enjoying such a right. o Whatever ensues, he can no longer rely on the right of private defence to justify his behaviour. Lee Chez Kee v PP (2008) common intention, common object Lord Macaulay In criminal cases we think that the accused party ought always to have the advantage of a doubt on a point of law, if doubt be entertained by the highest judicial authority, as well as a doubt on a matter of fact. As section 34 is silent on the actus reus and mens rea requirements, courts have been forced to try and work out exactly what is required. Potential problems arise when section 34 is used in what is often described as twin crime situations Ten years ago, Michael Hor undertook a comprehensive analysis of Singapores section 34 jurisprudence and highlighted the total disarray in this area: the actus reus requirements have ranged from mere participation in the primary offence to actual presence at the secondary offence, and the mens rea requirements have ranged from strict liability to actual intention.6 Where section 34 is used in the context of a murder charge, which in

Singapore carries the mandatory death sentence, the magnitude of this problem and the potential injustice of the law are glaringly obvious. Lee has now authoritatively stated that the mental element for section 34 is subjective knowledge of the likelihood that the primary offender may commit the secondary offence Considering its use in conjunction with section 302, which results in the mandatory death penalty, nobody would quarrel with an interpretation that requires a subjective fault element Thus, the recent shift toward subjective foreseeability is in line with the general trend in criminal law toward subjective fault and individual responsibility Knowledge of likelihood is a slightly more stringent standard compared to foresight or contemplation of likelihood Foreseeability on the other hand can be based on something less than knowledge, as one can foresee events even when one does not actually know all the facts Slightly higher standard than UK and AUS: In view of the mandatory death penalty, it is suggested that this distinction be adhered to and the higher test of knowledge be adopted in preference to the foreseeability test applied in the United Kingdom and Australia Lee has certainly clarified an extremely untidy area of law in Singapore and is a positive step forward in that it confirms that criminal liability under section 34 is based on subjective knowledge. It would have been preferable if the court had required an even higher level of mens rea, at least with respect to prosecutions that result in the mandatory death penalty o In so far as section 34 can be used for criminal charges that could result in the mandatory death penalty, the courts should require nothing less than intention to commit the secondary offence, or at least the moral equivalent thereof o Given that section 34 is a general provision, this interpretation cuts across the board for all section 34 prosecutions. If this sets the bar too high for the prosecution with respect to less serious crimes, then it is for the legislature to intervene

Common Object: A subjective knowledge approach would bring consistency with the courts current interpretation of s149 Common object in s149 = common intention in s34 ss 111 and 113 can be reconciled if one were to interpret both sections subjectively as well Would have the effect of harmonising s34, 111, 113 and 149 of the Penal Code, which undoubtedly overlap to some extent, as requiring subjective knowledge to affix liability for unintended consequences S Balakrishnan v PP (2005) abetment Toh Yung Cheong: Inadvertence As Rashness PP v Lim Poh Lye (2005) s300(c) murder PP v Sundarti Supriyanto (2004) BWS Shaiful bin Edham v PP (1999) concurrence Chua Kian Kok v PP (1999) attempts