Criminal Law

Citation(2004) 5 SAL Ann Rev 208
Published date01 December 2004
Date01 December 2004
Elements of the offence: Actus reus

10.1 The case of Ng Keng Yong v PP[2004] 4 SLR 89 involved a collision on the night of 3 January 2003 between a Republic of Singapore Navy (‘RSN’) ship, RSS Courageous (‘Courageous’), which was at the time on a regular patrol of Singapore waters, and a merchant vessel, ANL Indonesia (‘ANL’), off Pedra Branca. The tragic sequence of events showed that when the Courageous reached the end of her patrol area, she made a U-turn which led her to be in close proximity to the ANL which was travelling in the opposite direction. The Courageous bridge team mistakenly reported that the ANL was on her starboard side when it was to her port side. Subsequent alterations to the course of the Courageous to port brought the two vessels even closer together. This led the ANL to respond by altering her course to starboard and sounding a whistle blast to alert the Courageous. Unfortunately, the Courageous continued to make further alterations to port which resulted in the collision of the two vessels and the death of four RSN servicewomen.

10.2 The first appellant was the Officer-of-the-Watch (‘OOW’) of the Courageous who was responsible for the safe navigation of the ship. The second appellant was a trainee OOW who had control of the steering of the vessel at the time. Both appellants were convicted by the lower court for causing the deaths by a negligent act not amounting to culpable homicide under s 304A of the Penal Code (Cap 224, 1985 Rev Ed). One of the issues raised at the appeal was whether the appellants were indeed to blame for the collision that occurred. It was argued that the ANL had been negligent as well in breaching r 8(b) of the Merchant Shipping (Prevention of Collisions at Sea) Regulations (Cap 179, Rg 10, 1990 Rev Ed) (‘the Collision Regulations’) (made under s 100(2)(h) of the Merchant Shipping Act (Cap 179, 1996 Rev Ed)) by making two small alterations by autopilot instead of a bold alteration by manual steering. Hence, this rendered the negligent alteration to port of the Courageous in breach of r 14(a) of the Collision Regulations no longer

the ‘proximate and efficient’ cause of the collision. In support of this argument, the appellants cited the case of Lee Kim Leng v R[1964] MLJ 285 where FA Chua J said (at 286):

[In order to impose criminal liability under s 304A of the Penal Code,] it is necessary that the death should have been the direct result of a rash [or] negligent act of the accused and that the act must have been the proximate and efficient cause without the intervention of another”s negligence.

10.3 The learned Chief Justice rejected the appellants” interpretation of Lee Kim Leng v R that ‘the chain of causation is necessarily broken whenever another party”s negligence in fact intervenes, irrespective of the parties” relative blameworthiness. … [S]uch an approach [is] so repugnant to common sense that it had to be rejected’ (at [65]). The case of Lee Kim Leng v R was to be interpreted such that (at [66] ):

[C]riminal liability under s 304A should attach to the person(s) whose negligence contributed substantially, and not merely peripherally, to the result. … The particulars of the factual matrix, and the event to which the third party”s negligence contributed to the deaths, have to be assessed as well. The court must ultimately direct its mind to whether the negligence of the accused contributed significantly or substantially to the result.

10.4 Thus, although the vessels would not have collided if the ANL had not been negligent (at [71]), the question was ‘whether the ANL”s contributory negligence had such causative potency that the appellant”s initial negligence could not be said to have contributed significantly to the collision’ (at [67]).

10.5 On the facts of this case, it was held that once the Courageous had made the U-turn such that it was travelling against the flow of traffic, it was incumbent on the appellants to take the necessary extra precautions to avoid any potential risk of collision with other vessels. Unfortunately, the appellants made a series of alterations to their course in breach of the Collision Regulations which led to the ANL to respond with her own manoeuvres. The appellants” negligence was held to be a substantial cause of the collision (at [71]).

10.6 There has therefore been a shift towards a more sophisticated analysis of who should bear ultimate responsibility for the harm inflicted. Neither the appellants” argument that it is the person who committed the last act of negligence nor a simplistic approach that it is the original wrongdoer who should be liable for all the harm that results is satisfactory. The use of relative blameworthiness in ascertaining the causation issue puts the focus

rightly on moral considerations (see also Stanley Yeo, ‘Blamable Causation’(2000) 24 Crim LJ 144).

10.7 However, care must be taken in applying the approach of relative blameworthiness. There should be a distinction drawn for purposes of causation between crimes of intention as compared to crimes of negligence. It should, on principle, be easier to impose liability where the result is intended. Reference may be made to the Australian case of Royall v The Queen(1991) 172 CLR 378 at 400 where Brennan J said:

[In cases where the accused intends his conduct to cause the death of his victim] foresight is subsumed in the intent and, as the ultimate result of the accused”s conduct — the death of the person who took that step — is intended, it is immaterial that the victim”s attempt at self-preservation is objectively unreasonable … having regard to the nature of the accused”s conduct and the fear it is likely to induce. As McGarvie and O”Bryan JJ said in Reg v Demirian[1989] VR 97 at 113: ‘If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected.’

10.8 Two issues could potentially arise in future cases. The first issue is: How can a case be decided if the parties involved were equally blameworthy? Can one dispute liability on the basis that the other had made an equally ‘significant or substantial’ contribution to the result? Such cases will be rare but they are not unknown. The second issue is whether there is a difference between the terms ‘significant’ and ‘substantial’. It can be argued that the term ‘substantial cause’ sets a higher threshold than ‘significant cause’ and if so, it may be preferable to opt for the former (see Stanley Yeo, supra para 10.6).

Unsoundness of mind

10.9 The case of PP v Boon Yu Kai John[2004] 3 SLR 226 was one in which the psychiatric condition of the accused was relevant to the case. The case involved the acquittal of the respondent by the trial court of an offence under s 45(b) of the Telecommunications Act (Cap 323, 2000 Rev Ed) for transmitting a message that he knew to be false. The facts showed that the respondent had called the police and said that there was a man who wanted to murder one Mdm Tan, the respondent”s mother.

10.10 In order to be convicted of the offence, three elements had to be proved by the Prosecution:

(a) that the respondent did transmit or cause the message to be transmitted;

(b) that the message was false; and

(c) that the respondent knew the message to be false (at [12] ).

Based on the evidence presented by the psychiatrist called by the Prosecution that the respondent was suffering from a delusional disorder at the time of the offence that he was being persecuted and harmed, the trial judge found that the third element was not proven since he did not know that the information was false. Consequently, the trial judge granted the respondent a discharge amounting to an acquittal.

10.11 The appellant conceded that the respondent lacked the requisite mental element for the offence but one of the issues contended at the appeal was that the absence of the requisite mental element was due to the respondent”s unsoundness of mind and not because he genuinely believed the truth of the message. Hence, the procedure stipulated in ss 314 and 315 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’) should apply and the respondent subject to involuntary confinement. Yong Pung How CJ agreed with this argument: ‘He knew the nature of his act and it was his unsoundness of mind that eradicated the presence of the requisite mens rea on his part’ (at [42]).

10.12 Two comments are made about this case. First, the concession by the Prosecution that the respondent was of unsound mind was based on the evidence of the prosecution psychiatrist that (at [8]):

Although he knew the nature of his act, he did not believe that it was wrong or against the law to notify the police as he firmly believe[d] that serious harm may befall his mother. [emphasis added]

Yong CJ also said (at [42] ):

[T]he respondent should be acquitted on the ground of his mental disorder as he did transmit a false message to the police, which would have constituted an offence but for the fact that he was found to be by reason of unsoundness of mind, incapable of knowing that his act was wrong or contrary to law. [emphasis added]

10.13 It may therefore be argued on the basis of these statements that the troublesome phrase ‘either wrong or contrary to law’ in s 84 of the Penal Code should be interpreted disjunctively. This is contrary to the suggestion made in the case of PP v Rozman bin Jusoh[1995] 3 SLR 317 that the phrase should be read conjunctively, that is, an accused will not succeed on the unsoundness of mind defence if he knows the act is against the law even if he is unable to discern right from wrong. However, since neither of these two cases have thoroughly considered the arguments for and against either approach, it cannot be said that the law is by any means settled in this area.

10.14 Second, it should be noted that the...

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