Criminal Law

Citation(2015) 16 SAL Ann Rev 373
Published date01 December 2015
Date01 December 2015
Introduction

13.1 This review will be broken down into two parts: cases that involved offences under the Penal Code (Cap 224, 2008 Rev Ed) (the ‘Penal Code’) and cases that involved offences under other statutes.

Offences under the Penal Code

13.2 Two categories of offences in the Penal Code received noteworthy attention in 2015: offences against the person and offences against property. Murder and culpable homicide comprised the former category. Cheating and criminal breach of trust by a servant comprised the latter category.

Culpable homicide and murder

13.3 In 1883, Sir James Stephen had described the definitions of culpable homicide and murder (which exists in the form of ss 299 and 300 of the Penal Code) as ‘the weakest part of the Code’ and ‘obscure’ (Sir James Fitzjames Stephen, A History of the Criminal Law of England vol 3 (MacMillan and Co, 1883) at p 313). Stephen asserted that it was ‘obvious … that the subject had not been fully thought out when they were drawn’ (at p 313). Stephen lamented that culpable homicide and murder were ‘defined in terms so closely resembling each other that it is difficult to distinguish them’ and the ‘difficulty of these sections is that the definitions of culpable homicide and murder all but repeat each other; but not quite, or, at least, not explicitly’ (at p 314).

13.4 Section 300(c) has, since then, received much judicial attention so that the law on its interpretation is more or less settled. Section 300(a) and the first limb of s 299 (viz, causing death by doing an act ‘with the intention of causing death’) – the archetypical example of murder – also present few difficulties. The remaining sections/limbs in ss 300 and 299, however, are indeed somewhat ‘obscure’ for they are not often invoked in practice. The situation is compounded vis-à-vis the elements of s 299 because accused persons do not usually claim trial to such a charge but plead guilty (and so the contours of these elements do not receive much attention).

13.5 The decision in Public Prosecutor v Sutherson, Sujay Solomon[2016] 1 SLR 632 (‘Sujay Solomon’) is therefore significant, for it appears to be the first time that a local court has attempted to relate ss 299 and 300 (as opposed to academic commentary, below, para 13.8).

13.6 The accused in this case suffered from paranoid schizophrenia. He claimed trial to a charge of culpable homicide not amounting to murder, punishable under s 304(a). The charge under s 299 averred that he had repeatedly stabbed the deceased, his mother, on her neck with multiple knives ‘with the intention of causing such bodily injury as was likely to cause [her] death’ (Sujay Solomon at [1]).

13.7 In convicting the accused, the High Court made a number of observations about the relationship between ss 299 and 300.

13.8 First, the High Court reiterated that all instances of murder under s 300 constitute culpable homicide, but not vice versa (Sujay Solomon at [46]). The Malaysian Federal Court of Criminal Appeal in Tham Kai Yau v Public Prosecutor[1977] 1 MLJ 174 had similarly noted (at p 176) ‘the need to bear in mind that all cases falling within s 300 … must necessarily fall within s 299, but all cases falling within s 299 do not necessarily fall within s 300’–ie, culpable homicide is a generic offence, of which murder is a subset. The combined effect of ss 299 and 300 is that some cases of culpable homicide will amount to murder, but others will be classified as ‘culpable homicide not amounting to murder’: Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, Revised 2nd Ed, 2015) (‘YMC’) at para 8.9. The following Venn diagram expresses this relationship between ss 299 and 300:

13.9 Second, the High Court identified the two situations in which culpable homicide not amounting to murder may be made out (Sujay Solomon at [45]):

(a) where the elements of murder under s 300 have been proved, but one or more [of the special] exceptions contained in s 300 apply; or

(b) where the necessary degree of mens rea in s 299 have been proved, but not the special degrees of mens rea in s 300.

13.10 Third, drawing from the decision of the Indian Supreme Court in State of Andhra Pradesh v Rayavarapu Punnayya[1977] 1 SCR 601, the High Court correlated the various limbs of ss 299 and 300.

Comparing the sections

Section 300(a) versus the first limb of s 299

13.11 The High Court observed that the first limb of s 299 and s 300(a) ‘map onto each other and are coextensive’ (Sujay Solomon at [46(a)]). This is shown in the following table:

Culpable Homicide

Murder

299. Whoever causes death by doing an act with the intention of causing death… commits the offence of culpable homicide.

300. Except in the cases hereinafter excepted culpable homicide is murder —

(a) if the act by which the death is caused is done with the intention of causing death[.]

13.12 The two sets (or circles) in the Venn diagram (above, para 13.8) therefore overlap completely. The causing of death by doing an act with the intention of causing death is hence a culpable homicide amounting to murder, unless one or more of the special exceptions contained in s 300 apply (above, para 13.9(a)).

13.13 In relation to the mens rea, the High Court noted that the inquiry vis-à-vis the first limb of s 299 and s 300(a) is ‘fully subjective’ (Sujay Solomon at [46(a)]).

Section 300(d) versus the third limb of s 299

13.14 Unlike the other limbs in ss 299 and 300, s 300(d) and the third limb of s 299 are based on knowledge and not intention.

13.15 The High Court observed that both the first clause of s 300(d) and the third limb of s 299 require knowledge of the probability of causing death. They differed, however, in the degree of probability that death would result (Sujay Solomon at [46(b)]). These provisions are set out in the following table:

Culpable Homicide

Murder

299. Whoever causes death by doing an act … with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

300. Except in the cases hereinafter excepted culpable homicide is murder —

(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

13.16 Hence, while death may be foreseen as ‘likely’ (under the third limb of s 299), it may not be an outcome that ‘must in all probability’ result (under the first clause of s 300(d)): YMC at para 9.45.

13.17 In relation to the mens rea, the High Court noted that the inquiry vis-à-vis the third limb of s 299 and the first clause of s 300(d) is also ‘fully subjective’ (Sujay Solomon at [46(b)]). On this note, the observations of the Court of Criminal Appeal in Tan Cheng Eng William v Public Prosecutor[1968–1970] SLR(R) 761 (‘Tan Cheng Eng’) as to the subjectivity embodied by these provisions are instructive. The appellant there had been convicted of murder under the first clause of s 300(d). He was driving his car when he saw his ex-girlfriend seated in another man's car. He gave chase, and his car came into contact with the other man's car. As a result of the impact, the man's car ‘became unsteady and zig-zagged diagonally to the right and came into a headlong collision with the deceased who was approaching on his motorcycle travelling on its proper side of the road. The motorcyclist died almost instantaneously’ (Tan Cheng Eng at [5]). The Prosecution argued that an offence under the first clause of s 300(d) was made out as the appellant was ‘driving his car in an extremely reckless and dangerous manner with utter disregard for, or total indifference to other users of the road’ (Tan Cheng Eng at [6]). The Court of Criminal Appeal set aside the conviction of murder, reasoning as follows:

6 … The law is clear. Knowledge on the part of an accused person of the consequences of his act which has resulted in death is an essential ingredient of the offence of murder under [s 300(d) (and the third limb of s 299)]. In order to succeed the Prosecution must prove beyond a reasonable doubt that the appellant knew, when he drove his car in such a manner as to come into contact firstly with the rear and then with the front off-side mudguard of the Morris car, that it was so imminently dangerous that it must in all probability cause death …

7 The trial judge in a long and detailed summing-up to the jury however failed to direct the jury that in order to convict the appellant of murder they must be satisfied beyond a reasonable doubt on the evidence before them that the appellant, in driving as he did, was doing an act which he knew was so imminently dangerous that it must in all probability cause death …

[emphasis by the Court of Criminal Appeal omitted]

Sections 300(b) and 300(c) versus the second limb of s 299

13.18 The charge against the accused in Sujay Solomon was framed under the second limb of s 299 (above, para 13.6). The High Court observed that this limb of s 299 corresponds with ss 300(b) and 300(c) in that they all required proof of the accused's intention to cause bodily injury (Sujay Solomon at [46(c)]). This is shown in the following table:

Culpable Homicide

Murder

299. Whoever causes death by doing an act … with the intention of causing bodily injury as is likely to cause death… commits the offence of culpable homicide.

300. Except in the cases hereinafter excepted culpable homicide is murder —…

(b) if it is done with the intention of causing suchbodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; [or]

(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the...

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