Criminal Law

• Citation: (2005) 6 SAL Ann Rev 199
• Published date: 01 December 2005
• Date: 01 December 2005

Common intention

10.1 In the case of PP v Lim Poh Lye[2005] 2 SLR 130 (HC), [2005] 4 SLR 582 (CA), two respondents (Lim and Koh), together with a third man who is still at large, planned to abduct a second-hand car dealer and force him to sign cheques in their favour. The victim later died from various injuries inflicted on him, including a stab wound in the leg. The two respondents were charged with committing murder under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). In this part, the court”s application of the doctrine of common intention under s 34 is considered while the court”s analysis of the murder provision in s 300 is considered below at paras 10.32—10.38.

10.2 The Court of Appeal accepted the trial judge”s finding that the two knives which were brought along by the two respondents were meant to be used to frighten the victim into submission if he proved difficult (at [52]). Hence, killing the victim was not part of the original plan agreed to by the trio and there was no evidence that the respondent, Koh, had used a knife on the victim. In such a situation, the doctrine of common intention must be used in order to find Koh liable for murder as well. The trial judge found (at [18]) that:

[T]he common intention of the trio was to rob [the victim], and to that end, the plan was to drug their victim, and threaten him with knives if it became necessary to do so. I am satisfied that there was no common intention to kill, and I would give the benefit of doubt to Lim that the gang did not have the common intention to use the knives for injuring [the victim], but merely to frighten him. It appears to me that the decision to stab [the victim] was formed by Lim on his own and not in concert with the others.

10.3 The Court of Appeal accepted the Prosecution”s submission that the trial judge had misapplied the law on s 34. There was no need to show that the trio had agreed beforehand to stab the victim. All that was needed was proof that the stabbing of the victim was carried out in furtherance of a

common intention of the trio to rob the victim with knives. It was held (at [56]) that:

[W]hat s 34 means is that where the actual crime committed is not what the participants had planned, then for the other participants to be vicariously liable for the act of the actual doer the actual offence must be consistent with the carrying out of the common intention, otherwise the criminal act done by the actual doer would not be in furtherance of the common intention.

10.4 However, academic commentaries have shown that ‘consistency’ between the actual offence and the common intention of the parties is an uncertain guide as to when a joint participant can be liable for an offence committed by another which is not part of their plan (see Michael Hor Yew Meng, ‘Common Intention and the Enterprise of Constructing Criminal Liability’[1999] Sing JLS 494). Some cases have suggested that the joint participant must have subjectively known that the other offence might be committed (Syed Abdul Aziz v PP[1993] 3 SLR 534; Shaiful Edham bin Adam v PP[1999] 2 SLR 57), while other cases have suggested that it is sufficient if the other offence is objectively consistent with the parties” common intention (PP v Tan Lay Heong[1996] 2 SLR 150; PP v Too Yin Sheong[1998] SGHC 286).

10.5 In this case, the Court of Appeal noted (at [59]) that:

[T]he decisive question to ask in each case is what nature of criminal acts could be considered to have been committed in furtherance of the common intention. Ratanlal & Dhirajlal”s Law of Crimes vol 1 … identifies three categories of such criminal acts, namely:

(a) acts directly intended by all the confederates;

(b) acts which the circumstances leave no doubt that they are to be taken as included in the common intention, although they are not directly intended by all the confederates; and

(c) acts which are committed by any of the confederates in order to avoid or remove any obstruction or resistance put up in the way of the proper execution of the common intention.

This classification was also adopted by the Court of Appeal in the cases of Too Yin Sheong v PP[1999] 1 SLR 682 at [33] and Shaiful Edham bin Adam v PP (at [59]).

10.6 The inclusion of the third category suggests that criminal liability under s 34 can extend to acts which are not intended by a joint participant so

long as the acts are found to have objectively furthered their common intention. On the facts of this case, it was found that the situation could fall within either the second or the third category (at [60]):

While it may well be that the knives were brought to frighten [the victim], it must have been within the contemplation of the trio to use them if [the victim] should turn out to be difficult which was, in fact, the case. In any event, we do not see how it could seriously be argued that using the knife to inflict physical injury … would not be in furtherance of the common intention to rob.

10.7 It is submitted that the court should have analysed the scope of liability under s 34 a little more. No attempt was made to explain its earlier decisions which have suggested that s 34 can only be used against a joint participant if he had subjectively known that the further offence might be committed. The extension of s 34 into the realm of objective foreseeability can also be argued to be contrary to the rejection of the felony-murder rule in the Penal Code and undercuts its abetment provisions (see Michael Hor, supra para 10.4).

Defences

Diminished responsibility

10.8 Three cases decided in 2005 have an important bearing on the scope of mental disorders as a defence to a criminal charge in Singapore. Two of these cases dealt with the defence of diminished responsibility and the third case touched on the relevance of mental disorders in general.

10.9 In the first case of PP v Took Leng How[2005] 4 SLR 472 (HC) and Took Leng How v PP[2006] 2 SLR 70 (CA), the accused was charged with the murder of an eight-year-old girl from China. When the defence was called, the accused put forward the defence of diminished responsibility based on his claim of schizophrenia at the time of the offence. The High Court (at [58]) as well as the Court of Appeal (at [46]) pointed out that in order to establish the defence of diminished responsibility, the accused must prove, on a balance of probabilities, that:

(a) he was suffering from an abnormality of mind at the time he caused the victim”s death;

(b) his abnormality of mind arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury; and

(c) his abnormality of mind substantially impaired his mental responsibility for his acts and omissions in causing the death.

10.10 The High Court pointed out (at [61], see also the Court of Appeal at [46]) that:

The first and third elements of the defence are essentially questions of fact, to be decided by the court (trier of fact) with the assistance of medical evidence; the court is however not bound by the medical evidence. The court can rely on other non-medical evidence in coming to its conclusion. Only the second element concerning the cause of the abnormality of mind is to be determined in accordance with expert medical evidence. In deciding the issue of diminished responsibility, the court must examine the conduct of the accused before, at the time of, and after the killing. In considering all the evidence, the court is to adopt a broad common-sense approach.

10.11 This is a point well worth noting in view of the fact that expert witnesses often express an opinion as to whether the accused was suffering from an abnormality of mind and whether his mental responsibility for his acts was substantially impaired (see also Stanley Yeo Meng Heong, ‘Improving the Determination of Diminished Responsibility Cases’[1999] Sing JLS 27).

10.12 On the facts of this case, the High Court rejected the submission that the accused was suffering from schizophrenia or mental disorder of any kind. He was, therefore, found not to be suffering from an abnormality of mind at the time of the offence. Thus, there was no need to go further to enquire into the cause of the abnormality, and whether his mental responsibility was substantially impaired (at [71]).

10.13 The implicit link made by the High Court is that mental disorders such as schizophrenia do amount to an abnormality of the mind. However, this is not necessarily true as it will also depend on the extent of the mental disorder suffered at the time of the offence (see Wong Mimi v PP[1972—1974] SLR 73).

10.14 As argued by Stanley Yeo (supra para 10.11), a better approach is to firstly, establish if the accused was suffering from a mental disorder; and secondly, whether the alleged mental disorder was of such nature as to amount to an abnormality of mind as defined in Regina v Byrne[1960] 2 QB 396. This was the approach adopted by the Court of Appeal (at [47]):

[L]imb (a) requires the court to be satisfied not only of the fact that the accused was suffering from a condition that a reasonable man would

consider abnormal, but further that the abnormality was of such a degree as to impair the accused”s cognitive functions or self-control. This latter requirement focuses on the ‘extent’ of the alleged abnormality. It is necessary because a person who suffers some sort of malady that may be deemed as abnormal need not necessarily suffer from any impairment of his or her cognitive functions or ability of self-control. Limb (a) should never be deemed satisfied unless the extent of the purported abnormality is also established.

10.15 With respect to the accused, the Court of Appeal found that ‘[t]he absence of any mental symptoms prior to the offence and the lack of any disorganised or catatonic behaviour subsequent to the killing preclude any finding that the accused had lost...