Ahmed Salim v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Chao Hick Tin SJ
• Judgment Date: 19 January 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 41 of 2020

Ahmed Salim

and

Public Prosecutor

[2022] SGCA 6

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA and Chao Hick Tin SJ

Criminal Appeal No 41 of 2020

Court of Appeal

Criminal Law — Offences — Murder — Appellant coming up with plan to kill now deceased girlfriend — Appellant choosing and bringing rope as weapon before meeting deceased at hotel — Appellant circling towel around deceased's neck and tightening it to strangle deceased — Whether intent to kill made out — Section 300(a) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law — Offences — Murder — Special exceptions — Diminished responsibility — Appellant claiming that his adjustment disorder caused him to kill deceased — Whether defence of diminished responsibility precluded for premeditated offence — Whether defence of diminished responsibility made out — Section 300(a) Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law — Offences — Murder — Special exceptions — Provocation — Appellant alleging deceased uttering humiliating words provoking appellant — Whether deceased uttered humiliating words — Whether defence of provocation made out — Section 300(a) Penal Code (Cap 224, 2008 Rev Ed)

Held, dismissing the appeal:

(1) The Appellant had the intent to kill, as he had planned the murder beforehand. He brought along the rope as his chosen murder weapon, selected the Hotel as the meeting place, and withdrew the money in his bank account that morning to remit it to his family in Bangladesh. He executed his plan systematically, indicative of the intent to kill: at [21].

(2) The defence of provocation was not made out. Yati did not utter the humiliating words as the Appellant claimed that she did. This was not mentioned in the appellant's police statements, or his statements to the psychiatrist from the Institute of Mental Health, Dr Christopher Cheok (“Dr Cheok”); these statements were not disputed by the Appellant on appeal: at [2] and [23].

(3) There were three cumulative requirements for the accused person to establish that a defence of diminished responsibility was made out on a balance of probabilities: first, he was suffering from an abnormality of mind; second, the abnormality of mind either: (a) arose from a condition of arrested or retarded development of mind; (b) arose from any inherent causes; or (c) was induced by disease or injury; and third, he had to show that the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in relation to his offence: at [32].

(4) The fact that an offence was premeditated did not preclude an accused person from proving the first two requirements of diminished responsibility, since it was possible for one to have an abnormality of mind which arose from a condition of arrested or retarded development of mind, from inherent causes, or was induced by disease or injury, and yet still be able to premeditate a murder: at [33].

(5) A more difficult question was whether the fact that the offence was premeditated precluded an accused person from establishing the third requirement, namely, that the abnormality of mind substantially impaired his mental responsibility for his acts. This requirement was a matter of common sense to be determined by the trial judge. The impairment need not be total, but had to be substantial. The impairment could be that: (a) it affected the person's perception of physical acts and matters; (b) it hindered the person's ability to form a rational judgment as to whether an act was right or wrong; and (c) it undermined the person's ability to exercise his will to control physical acts in accordance with that rational judgment: at [34] and [35].

(6) Premeditation would make it more difficult for an accused person to show that his self-control was substantially impaired, as he had to have had the capacity to understand events in order to execute a premeditated plan: at [36] and [37].

(7) Nonetheless, an accused person might be able to prove that his abnormality of mind had impaired his rationality in coming to the decision to commit the murder. The court had to take into account that the actions flowed from a decision that was a product of a disordered mind. The defence of diminished responsibility could be made out if the accused person was able to prove on a balance of probabilities that his mental disorder substantially impaired his ability to make rational or logical decisions, and this disorder caused him to decide to kill the victim: at [38] and [50].

(8) But this was subject to two refinements. First, the accused person had to show that but for his abnormality of mind, he would not have made that decision. Secondly, the accused person had to show that he had no realistic moment of rationality and self-control that would have enabled him to resile from that intention or plan: at [51] and [52].

(9) On the facts, the Appellant's adjustment disorder did not substantially impair his mental responsibility. He was rational, had self-control, and was fully able to comprehend events at the critical moment when he decided to kill Yati. His statements to the police and to Dr Cheok showed that the acts of killing were motivated by the Appellant's logical fear that Yati would report him to the police for assaulting her. This was corroborated by Dr Cheok who stated that the Appellant did not lose self-control, nor his judgment of what was right or wrong: at [58] to [60].

(10) The Judge was right in rejecting the view of the psychiatrist called by the Defence, Dr Ung Eng Khean (“Dr Ung”), that the Appellant's adjustment disorder substantially impaired his mental responsibility for his acts. The factual basis of Dr Ung's view was that Yati told the Appellant that 30 December would be the last time they met, and that this led to a sudden surge of negative emotions, which culminated in the killing. This was without factual basis. At the beginning of their meeting, Yati had told the Appellant that that would be the last time they met. Indeed, even before they met, Yati had told the Appellant the same. Hence, there was no sudden or shocking event that served as a stressor that triggered the Appellant's sudden reaction: at [65] and [68].

Case(s) referred to

Chua Hwa Soon Jimmy v PP [1998] 1 SLR(R) 601; [1998] 2 SLR 22 (refd)

G Krishnasamy Naidu v PP [2006] 4 SLR(R) 874; [2006] 4 SLR 874 (refd)

Iskandar bin Rahmat v PP [2017] 1 SLR 505 (folld)

Nagaenthran a/l K Dharmalingam v PP [2019] 2 SLR 216 (folld)

Ong Pang Siew v PP [2011] 1 SLR 606 (folld)

PP v G Krishnasamy Naidu [2006] 3 SLR(R) 44; [2006] 3 SLR 44 (refd)

PP v Wang Zhijian [2014] SGCA 58 (folld)

R v Brennan [2015] 1 WLR 2060 (refd)

R v Brown [2011] All ER (D) 05 (refd)

R v Byrne [1960] 3 All ER 1 (refd)

R v Golds [2017] 1 All ER 1055 (refd)

R v Matheson [1958] 2 All ER 87 (refd)

Zailani bin Ahmad v PP [2005] 1 SLR(R) 356; [2005] 1 SLR 356 (refd)

Facts

The appellant, Ahmed Salim (“the Appellant”), and the deceased, one Nurhidayati bt Wartono Surata (“Yati”), had been in an intimate relationship from around May 2012. In November 2017, they decided to get married. However, sometime in May or June 2018, Yati started seeing someone else. Although they reconciled and continued dating around July or August 2018, Yati began seeing another person by late October or early November 2018.

On 9 December 2018, Yati admitted to the Appellant that she had a new boyfriend. The Appellant was so upset that he decided that he would kill Yati by strangling her with a rope. He arranged to meet Yati on 23 December 2018 at a hotel (“the Hotel”), where they would usually meet, but did not follow through with the plan as Yati convinced him that they would continue dating. But Yati called him later that evening and told him that she wanted to end their relationship. The Appellant decided to kill her the next time they met.

The Appellant arranged to meet Yati again on 30 December 2018 at the Hotel. He threatened to kill her by circling a bath towel around her neck and then warned her to break off her relationship with her new boyfriend. Yati refused. The Appellant then tightened the towel. After he saw blood flowing out of one of Yati's ears, he realised that Yati would call the police if he let go and she survived. He decided to kill her by pulling the towel tighter. He then removed the towel, and took out the rope he brought and circled it around her neck two or three times to ensure that she was dead. To make sure she was dead, he placed a towel over her face and used his hand to press the towel down around the area of her mouth and nose, until Yati's face became discoloured.

The Appellant was convicted in the High Court of one count of murder under s 300(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) and sentenced to death under s 302(1) of the PC. The trial judge (“the Judge”) found that the Appellant had intended to kill Yati, based on the number, nature and sequence of physical acts committed by the Appellant which caused Yati's death. The Judge rejected the defence of grave and sudden provocation, as Yati had never uttered the humiliating words the Appellant claimed that she did. The Judge also rejected the Appellant's defence of diminished responsibility, finding that while the Appellant suffered from adjustment disorder, his adjustment disorder did not materially affect his self-control and did not substantially impair his mental responsibility for the offence. The Appellant argued on appeal that the Judge erred in finding that the defence of diminished responsibility was not made out, as: (a) his adjustment disorder had driven him to come to the decision to kill Yati in the first place; and (b) his adjustment disorder made it difficult for him to control himself, leading him to tighten the towel around Yati's neck.

Legislation referred to

Penal Code (Cap 224, 2008 Rev Ed) s 300(a)

Eugene Singarajah...