Criminal Law

Citation(2012) 13 SAL Ann Rev 240
Publication Date01 December 2012
Date01 December 2012
AuthorCHAN Wing Cheong MA (Oxford), LLM (Cornell), Barrister (Gray's Inn), Attorney and Counsellor-at-Law (New York State), Advocate and Solicitor (Singapore); Associate Professor and Amaladass Fellow, Faculty of Law, National University of Singapore.
General concepts


13.1 The appellant in Wang Wenfeng v Public Prosecutor[2012] 4 SLR 590 (‘Wang Wenfeng v PP’) was convicted by the High Court for the murder of a taxi driver under s 300(c) of the Penal Code (Cap 224, 2008 Rev Ed). The appellant robbed the victim, and in the course of a struggle, stabbed him in the chest while positioned behind him in the rear passenger seat of the taxi. The appellant then abandoned the victim's body in a forested area. The body was found about six days later in a highly decomposed and skeletonised state. Two main issues were raised at the appeal.

13.2 The first issue related to s 300(c) murder. The Court of Appeal affirmed the law on s 300(c) that (at [33]):

… it is not necessary for the accused to have known or intended the potentially fatal consequence of inflicting the bodily injury. It is sufficient that the accused intentionally caused the particular bodily injury inflicted …

13.3 Based on the evidence presented, the Court of Appeal found that there were five stab wounds inflicted and that these were inflicted intentionally. Section 300(c) murder was satisfied since these injuries were objectively sufficient in the ordinary course of nature to cause death.

13.4 The second issue involved the requirement of concurrence between the physical and fault elements of an offence. The Court of Appeal considered the possibility that the appellant thought the victim had died when he was in fact merely unconscious from the stab wounds and it was the subsequent act of the appellant abandoning the victim which led to his death. The Court of Appeal accepted (at [45]) that there is a ‘fundamental principle of criminal law that there must be a concurrence between the actus reus and mens rea for an offence to be established’. Two ways were noted which could overcome this requirement of concurrence. The first is the Thabo Meli approach (named after the Privy Council case of Thabo Meli v The Queen[1954] 1 WLR 228) such that (at [44]):

… if to the victim resulting in his death, those two acts should be treated as part of the same transaction if the accused had a pre-conceived plan to kill the victim even if this intention was not operative at the time the second act was done.

13.5 Hence, the physical and fault elements of murder do not have to be present at the same point in time so long as there is a ‘pre-conceived plan to kill the victim’. It was further noted (at [44]) that the Thabo Meli approach applied even if the intention to kill was ‘formed on the spot, just before the killing took place’. The Court of Appeal pointed out that there was, in fact, no lack of concurrence between the physical and fault elements of murder in this case owing to the peculiar way in which s 300(c) was drafted. For s 300(c) murder (at [61]), ‘[t]he mens rea is the intention to inflict the particular bodily injury whereas the actus reus is the actual infliction of that bodily injury’ [emphasis in original]. Consequently, s 300(c) by its very nature renders concurrent the mens rea and actus reus contained in that clause.

13.6 requirement can be overcome is through the use of a causation approach. The Court of Appeal held (at [59]) that:

… the abandonment of [the victim's] body in the undergrowth would merely have been a secondary cause of death as … [the victim] would have died from loss of blood even if he had been left in the taxi. In terms of causation of death, … there was no break in the chain of causation by the subsequent act of abandonment. The real cause of death was … the massive loss of blood from the stab wounds.

13.7 Four comments may be made with respect to this case. First, the Court of Appeal interpreted s 300(c) murder such that it does not require the appellant to intend to cause the victim's death. All that is required is an intention to cause an injury, which is objectively sufficient to cause death. Hence, by its very nature, proof of s 300(c) satisfied the concurrence principle required for murder. However, the broad way in which s 300(c) is interpreted can cause potential injustice. This can be seen from the following passage by the Court of Appeal (at [60]):

… as a matter of logic, even if the appellant had tried to save [the victim] by conveying [the victim] to a hospital, but [the victim] had died on the way, the appellant would still have been guilty of s 300(c) murder because the ingredients of the offence would have been satisfied.

13.8 Secondly, it is arguable that the Court of Appeal was incorrect in stating that for s 300(c) murder, the ‘actus reus is the actual infliction of that bodily injury’. On another view, all the words comprising s 300(c) describe the mens rea for that particular limb of s 300. This leaves the actus reus of s 300(c) to be exactly the same as the other three limbs of s 300, namely, ‘the act by which death is caused’. In the vast majority of s 300(c) cases, the accused's conduct of inflicting the particular injury which is sufficient in the ordinary course of nature to cause death will also be ‘the act by which death is caused’. However, this need not always be so – there may be instances where ‘the act by which death is caused’ was some other act of the accused which was committed without the mens rea for murder. It is in these rare cases that the concurrence principle may not be established. Take, for example, a case where, as in Thabo Meli, the victim had died not from the wounds inflicted by the accused, but from exposure to the elements, or if it were proven in Wang Wenfeng v PP that the deceased had died not from the stab wounds inflicted by the accused but from being abandoned in the forest by the accused who thought that he was handling a corpse.

13.9 Thirdly, the Court of Appeal appears to have adopted a narrow reading of the Thabo Meli approach such that it only applies if there is an intention to kill under s 300(a). On this reading, the approach is inapplicable to lesser mental states for murder such as those under s 299 limb 3 and s 300(d). This view may be compared with Shaiful Edham bin Adam v Public Prosecutor[1999] 1 SLR(R) 442 at [82] which expressly left this point open.

13.10 Fourthly, the use of a causation analysis to overcome lack of concurrence has been criticised for being too uncertain, arbitrary and potentially unjust (see Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 2nd Ed, 2012) (‘Yeo, Morgan & Chan’) at paras 6.12–6.17).

13.11 It was proposed by Yeo, Morgan & Chan that a better approach is to focus on the underlying reason why a series of acts which eventually led to the death of the victim ought to be considered as forming the same transaction (‘the moral congruence approach’). That reason is that the series of acts all share the same moral character of the accused taking steps to gain some advantage to himself or herself such as trying to conceal a crime or to avoid detection. If the subsequent acts of the accused which led to the death of the victim were done to help the victim instead, then the series of acts should be treated as distinct (see also the observations of the English Court of Appeal in R v Le Brun[1992] QB 61). This proposal may be contrasted with the position taken by the Court of Appeal cited above with regard to s 300(c).

13.12 In light of the above comments, it is suggested that the moral congruence approach as advocated by Yeo, Morgan & Chan should be seriously considered by the courts and also that a review be done of the particular operation of s 300(c) murder with respect to the concurrence principle.

Meaning of ‘reckless’

13.13 In Madhavan Peter v Public Prosecutor[2012] 4 SLR 613 (‘Madhavan Peter v PP’), the appellants, Madhavan Peter (‘Madhavan’), Chong Keng Ban (‘Chong’) and Ong Seow Yong, were directors of Airocean Group Limited (‘Airocean’), a company listed on the Singapore Exchange (‘SGX’) at the material time. In September 2005, the Corrupt Practices Investigation Bureau (‘CPIB’) questioned Airocean's Chief Executive Officer, Thomas Tay Nguen Cheong (‘Tay’), and three officers of two of Airocean's subsidiaries about suspected corruption in the air cargo handling industry. Airocean sought legal advice on whether it had to disclose to SGX that its officers were involved in CPIB investigations. Airocean's lawyers gave oral advice that no disclosure had to be made at that stage.

13.14 Chong and Madhavan were charged, inter alia, with having consented to Airocean's reckless failure to notify SGX of the information that Tay had been questioned by CPIB, had been released on bail and had his passport impounded. The Prosecution submitted that such information was likely to materially affect the price or value of Airocean shares, which was an offence under s 331(1) read with s 203(2) of the Securities and Futures Act (Cap 289, 2002 Rev Ed) (‘SFA’). Section 203(2) of the SFA provides:

The [issuer] shall not intentionally, recklessly or negligently fail to notify the securities exchange of such information as is required to be disclosed by the securities exchange under the listing rules or any other requirement of the securities exchange.

13.15 The only issue considered here is the meaning of ‘recklessly’ under s 203(2) of the SFA. The High Court adopted the meaning ascribed to this word by the House of Lords in the case of R v G[2004] 1 AC 1034; [2003] 4 All ER 765 that ‘the word ‘reckless’… comprises two elements: (a) subjective awareness of a risk; and (b) unreasonableness on the part of the offender in taking that risk’ (at [112]). It is not clear if this definition given to the word ‘reckless’ can be applied to other offences found in Singapore such as the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘RTA’). Unless there are good reasons why it should not, it is submitted that the definition of ‘reckless’ adopted in this case should apply to other statutes as well.

13.16 The definition...

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