Criminal Law

Citation(2008) 9 SAL Ann Rev 247
Date01 December 2008
Published date01 December 2008
General concepts
Motive and intention

11.1 It is a well-established principle of criminal law that an accused”s motive is distinguishable from his or her intention. This principle was reiterated by the Court of Appeal in Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 which, however, provides a good illustration of the way motive can sometimes assist with proving intention and should therefore not be dismissed by a trial court. The appellant was convicted of murdering his two-year-old stepdaughter by drowning when he immersed her several times in a pail of water to stop her crying. The post-mortem examination of the deceased showed that she had been sexually interfered with and, in the course of the trial, the allegation was made that the appellant was the culprit and had killed the child to cover up his acts by silencing her.

11.2 One of the grounds of appeal was that the trial judge had erred in deciding that the alleged molestation had a limited bearing on the charge of murder. The appellate court agreed, holding that, while motive was not an essential element of murder, it could in circumstances such as those before the court cast valuable and significant light on the intention of the accused: Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 at [67]. This was especially needed since there were no independent eyewitnesses present at the scene of the crime. In its deliberations, the Court of Appeal referred to several Singapore pronouncements on the relationship between motive and intention, and found the following comment by Yong Pung How CJ in PP v Oh Laye Koh[1994] 2 SLR 385 at [26] particularly helpful, namely, that ‘“intention” is to be distinguished from “motive”, even though the presence of motive may bolster the inference that an intention to commit the offence was existent.’

‘Hurt’ under the Penal Code

11.3 This issue came before the Court of Appeal in PP v Kwong Kok Hing[2008] 2 SLR 684 in the context of sentencing the respondent for

the offence of attempting to commit culpable homicide under s 308 of the Penal Code (Cap 224, 1985 Rev Ed). That section provides for an increased penalty if ‘hurt’ were caused. The present case involved the respondent pushing the victim onto the tracks in front of an approaching train. Although the victim had suffered only superficial physical wounds as a result, she experienced longstanding psychological trauma. In passing sentence, the judge interpreted ‘hurt’ under s 308 to mean physical harm, whereupon the Prosecution appealed on the ground that this was an error of law and, consequently, that the sentence imposed was manifestly inadequate. The Court of Appeal agreed, holding that the meaning of ‘hurt’ under the Penal Code could extend to psychological trauma. It reached this conclusion by noting that the term is defined in s 319 of the Code as constituting ‘bodily pain, disease or infirmity’ [emphasis in original] and also citing a passage from the Sind High Court case of Jashanmal Jhamatmal v Brahmanand SarupanandAIR 1944 Sind 19 that it could include mental harm. The Court of Appeal went on to clarify that, while the duration of the infirmity was normally irrelevant in establishing hurt, where it was long term in nature such as in the case before it, this fact was relevant and, indeed, often crucial to sentencing: PP v Kwong Kok Hing[2008] 2 SLR 684 at [27].

Specific offences
The fault element for murder under s 300(c) of the Penal Code

11.4 The Court of Appeal in Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 reaffirmed the statement made in its earlier decision of PP v Lim Poh Lye[2005] 4 SLR 582 that the Indian Supreme Court case of Virsa Singh v State of PunjabAIR 1958 SC 465 contained ‘[t]he time-honoured pronouncement on s 300(c)’. The Court of Appeal noted (Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 at [62]) that the crucial point of this pronouncement was that s 300(c) of the Penal Code (Cap 224, 1985 Rev Ed) comprised two limbs. The first of these required a court to ascertain whether the accused subjectively intended to inflict the specific injury which the victim had suffered. Should this be proven, the court had then to ascertain, on an objective basis, whether that particular injury was ‘sufficient in the ordinary course of nature to cause death’. The court also emphasised that these two limbs cannot be conflated for otherwise they would result in the provision being read as requiring an accused to intend to inflict an injury which was sufficient in the ordinary cause of nature to cause death. Such a situation would fall squarely within s 300(a) of the Penal Code, namely, that the accused intended to cause death.

11.5 On the evidence before it, the court was satisfied beyond a reasonable doubt that the appellant had, by immersing the deceased”s head into the pail of water, intended to cause the specific injury which the deceased suffered, which injury was sufficient in the ordinary course of nature to cause death. Of the injury caused, namely, death by drowning, the court (Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 at [68]) said: ‘[t]o state that such a serious injury was sufficient in the ordinary course of nature to cause death must be an understatement of the highest order’.

Lack of consent as the key feature of rape

11.6 In PP v Lim Hwang Ngin Lawrence[2008] SGHC 171, an officer of the Serious Sexual Crime Branch (‘SSCB’) had, in the course of a police interview, informed the alleged victim that the offence of rape under s 375 of the Penal Code (Cap 224, 1985 Rev Ed) was committed if the accused had forced or threatened her into engaging in sexual intercourse with him. Consequently, the victim had stated that the accused had not raped her because he had not forced or threatened her in any way before or during the sexual intercourse, and that she had in fact been sexually aroused when he used his fingers to stimulate her vagina. At the trial, Kan Ting Chiu J criticised the officer”s handling of the case by observing that, if the officer had a proper legal understanding of the offence of rape, she would not have told the victim that there was no rape without force or threat, and would instead have advised her that rape is sexual intercourse without consent. He went on to stress (at [44]) that ‘[i]t is important that SSCB investigators have proper understanding of the offences they investigate. They should refer to the Penal Code or any applicable statutes when they inform and question victims or suspects of the offences that they are investigating’.

11.7 Kan Ting Chiu J was of course correct in holding that the crux of the offence of rape under the Penal Code (Cap 224, 1985 Rev Ed) is the victim”s lack of consent. This is even clearer now with the deletion of the former s 375(a) of the Penal Code where the nebulous concept of ‘against her will’ was used. The new s 375(1) defines rape as ‘[a]ny man who penetrates the vagina of a woman with his penis — (a) without her consent …’. The emphasis on consent (and not whether there was force used or active resistance by the victim, and so forth) can also be seen in the new s 377C(a), which provides that there can be a case of rape even if there was initial consent but this was subsequently revoked during the act of sexual intercourse.

The mental state of ‘not caring’ under Securities and Futures Act

11.8 By virtue of s 199(i) of the Securities and Futures Act (Cap 289, 2006 Rev Ed) (‘SFA’), it is an offence for a person to make a false or misleading statement or disseminate false or misleading information and who ‘does not care whether the statement or information was true or false’. The issue before the High Court in PP v Wang Ziyi Able[2008] 2 SLR 61, hearing an appeal against an acquittal of the respondent for this offence, was the meaning to be given to the fault element of ‘does not care’ for the purposes of s 199(i). The respondent was a fulltime private equities trader who had made two postings on the forum of a widely accessed financial portal alluding to a raid on a company by the Corporate Affairs Department of the Singapore Police Force. He had acted on unverified information supplied by a friend. The postings caused the company”s share prices to fall before the company was able to clarify that no raids had occurred.

11.9 As a preliminary matter, the High Court held that the trial judge was incorrect to have interpreted the fault element in question in terms of ‘being concerned about’ the truth of the statement or information. The court held that this form of fault comprised a subjective mental state, after noting that an objective form of fault was already recognised under s 199(ii), namely, ‘ought reasonably to have known’ that the statement or information was false or misleading. Since this latter form of fault is often equated with negligence, the adoption of an objective test of recklessness, as contended for by the prosecution, would result in both sub-ss 199(i) and 199(ii) of the SFA being ‘virtually synonymous’: PP v Wang Ziyi Able[2008] 2 SLR 61 at [74]. The court then proceeded to determine the nature of this subjective mental state by reference to the celebrated English case of Derry v Peek(1889) 14 App Cas 337 on the fault element for deceit and s 999 of the Australian Corporations Law (Cth) which is similar in wording to s 199 of the SFA. Based on its analysis of these sources of law, the court held that ‘does not care’ under s 199(i) involves subjective dishonesty in the dissemination of a false statement or misleading information. By way of elaboration, the court stated that such dishonesty could be established regardless of the accused”s motive. Also, when deciding whether the accused was dishonest, account could be taken of whether there were grounds on which a reasonable person having the attributes of the particular accused would have believed in the truth of the statement or information. However, this objective analysis was only of evidentiary...

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