Asogan Ramesh s/o Ramachandren and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 14 October 1997
• Date: 14 October 1997
• Docket Number: Criminal Appeal No 34 of 1996
• Court: Court of Appeal (Singapore)

Asogan Ramesh s/o Ramachandren and others

Plaintiff

and

Public Prosecutor

Defendant

[1997] SGCA 60

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 34 of 1996

Court of Appeal

Criminal Law–Complicity–Common intention–Whether accuseds committing murder in furtherance of common intention–Whether incumbent upon Prosecution to show common intention of accuseds to commit crime for which they were charged–Section 34 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Law–Offences–Murder–Defence of sudden fight–Whether there was sudden quarrel–Whether unfair situation taken advantage of–Section 300 Exception 4 Penal Code (Cap 224, 1985 Rev Ed)

The three appellants were walking home after a night of drinks when they spotted Saravanan. The second and third appellants did not know Saravanan well, but the first appellant had fought with him before. The third appellant called out to Saravanan. The latter scolded the group in vulgarities and fled, but the three appellants gave chase. The second appellant caught up with Saravanan, who pulled out a knife and slashed him. The first appellant arrived and disarmed Saravanan. He beat up Saravanan while the second appellant stabbed him repeatedly. The third appellant, who arrived last, swung a chair at Saravanan's head several times.

The three appellants were convicted of committing murder in furtherance of a common intention. On appeal, they argued that the judge erred: (a) in finding that there was a common intention; and (b) in rejecting their defence of sudden fight.

Held, dismissing the appeal:

(1) To invoke common intention under the Penal Code (Cap 224, 1985 Rev Ed), it was imperative that the common intention of the accused led to the commission of the offence as charged. It was not incumbent upon the Prosecution to show that the common intention of the accused was to commit the crime for which they were charged. Common intention could develop on the spot, if it preceded the commission of the offence or it could mean a prearranged plan decided well in advance of its implementation: at [33] and [34].

(2) It was clear that the three appellants had the common intention, developed on the spot when they were scolded, to assault the deceased for what he said. It was also clear from the surrounding facts and circumstances that it was this assault which ultimately led to the death of the deceased. The three appellants intended to beat up the deceased together, and it was in furtherance of carrying out this common intention that the deceased was killed: at [35].

(3) The defence of sudden fight was rejected. First, there was no sudden quarrel between the appellants and the deceased which initiated or started the fight between them; second, the appellants took an unfair advantage of the situation that they were in, for the deceased was outnumbered and moreover was not the aggressor in the fight: at [37] to [39].

(4) In respect of the second appellant, the defence of grave and sudden provocation under Exception 1 to s 300 of the Penal Code was not made out. This defence only applied in a situation when a person was deprived of his self-control and induced to do an act which consequently caused the death of the deceased. Here, the second appellant was not provoked in any way - he was only cut slightly by the deceased's knife when the deceased swung his blade at him. Even if he was provoked, his act of retaliation far exceeded the reasonable reaction justifiable from the act of provocation: at [40] and [41].

Ithinin bin Kamari v PP [1993] 1 SLR (R) 547; [1993] 2 SLR 245 (refd)

Kirpal Singh v The State AIR (38) 1951 Pun 137 (folld)

Krishna v State of Maharashtra [1963] 2 Cr LJ 351 (refd)

Mahbub Shah v Emperor AIR (32) 1945 PC 118 (folld)

Mohamed Kunjo v PP [1977-1978] SLR (R) 211; [1975-1977] SLR 75 (distd)

Namasiyiam v Public Prosecutor [1987] 2 MLJ 336 (refd)

PP v Neoh Bean Chye [1974-1976] SLR (R) 61; [1972-1974] SLR 213 (folld)

PP v Seow Khoon Kwee [1988] 2 SLR (R) 310; [1988] SLR 871 (distd)

Ramachandran a/l Suppiah v PP [1991] 1 SLR (R) 42; [1991] SLR 26 (folld)

Samlee Prathumtree v PP [1996] 2 SLR (R) 841; [1996] 3 SLR 529 (folld)

Sivakumar s/o Kurusamy Pandian v PP [1994] 1 SLR (R) 119; [1994] 1 SLR 671 (distd)

Soosay v PP [1993] 2 SLR (R) 670; [1993] 3 SLR 272 (distd)

Tan Hung Thiam v PP [1991] 1 SLR (R) 689; [1991] SLR 101 (folld)

Vijayan v PP [1974-1976] SLR (R) 373; [1975-1977] SLR 100 (refd)

Wong Mimi v PP [1971-1973] SLR (R) 412; [1972-1974] SLR 73 (folld)

Penal Code (Cap 224, 1985 Rev Ed) ss 34, 300Exception 4 (consd);ss 300, 300Exception 1

Peter Keith Fernando (Leo Fernando) and P Padman (Padman & Co) for the first appellant

Subhas Anandan, Sharmila Nair (MPD Nair & Co) and Ang Ching Peng (Ang & Lee) for the second appellant

John Abraham and V Suresh (John Abraham) for the third appellant

Peter Lim and Cheung Phei Chiet (Deputy Public Prosecutors) for the respondent.

Yong Pung How CJ

(delivering the grounds of judgment of the court):

1 This is an unfortunate case involving the three appellants, who beat and stabbed the deceased to death in the early morning of 26 May 1996. On 5 July 1997, they were tried and convicted of the murder of the deceased, Saravanan Michael s/o Ramalingam, in the court below. They appealed against the decision of the learned judge [see PP v Asogan Ramesh s/o Ramachandren [1997] SGHC 181]. We dismissed the appeal and we now give our reasons for so doing.

The charge

2 The three respective appellants were jointly charged as follows:

You are charged at the instance of the Attorney General as Public Prosecutor and the charge against you is:

That you, 1 Asogan s/o Ramachandren (23 yrs/m);

2 Mathavakannan K (18 yrs/m); and

3 Selvar Kumar s/o Silvaras (24 yrs/m)

on or about 26 May 1996 between 4am and 4:30am at Blk 93 Whampoa Drive, Singapore, in furtherance of the common intention of you all, committed murder by causing the death of one Saravanan Michael s/o Ramalingam, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224).

The background facts

3 The deceased was a male Indian of 25 years of age, and resided at Block 101, Whampoa Drive, #04-174, Singapore. He was commonly known as Babu to his friends. Before he met with his tragic death, he was a member of a secret society known as the Ang Koon or Sio Ang Koon. During the trial, it transpired that this secret society operated in Redhill or, as it is known in Hokkien, Ang Suah. The deceased was also a member of a group called the Lion Brothers. This group was not known to be a secret society and the members of this group, including the deceased, regularly got together to play football and engaged in other social activities.

4 On the day of the murder, the deceased had a fairly busy day. In the earlier part of the day on 25 May 1996, he was in the company of his girlfriend Shanti d/o Annamalai. They went to the National Registration Office at Colombo Court in the morning and applied for a replacement identity card for him. Next, they proceeded to the Tanglin police station to extend his bail. From there, they went to Balestier Hotel where they checked into a room and spent the afternoon there. Thereafter, from the hotel, they went for dinner at Bras Basah Road at a McDonald's restaurant before going to Henderson Crescent where they parted company. At Henderson Crescent, the deceased met up and joined some friends and they then spent the night drinking, first at West Coast Drive, and then at Redhill Market. The group eventually broke up at about 4.00am in the morning when the deceased was seen boarding a taxi to return to his home at Block 101, Whampoa Drive.

5 The appellants were associated with different groups from the deceased. For the first appellant, Asogan Ramesh s/o Ramachandren, who was also known as Kutty Boy, he admitted to previously being a member of a secret society known was Sio Loh Kuan. However, he has since left the society, after being sent to a reformative training centre while he was still a teenager. He was also known as a Veerasamy boy, a term casually given to himself and some of his friends as they frequented a coffee shop along Veerasamy Road. In addition, he was associated with a dance group known as the Tiger Rose. Although he was not formally a member of this dance group, he was closely linked to the group as some of his friends performed for the group. He either lent this group his moral support or carried things for them whenever they went to various places to perform. During the trial, it was confirmed that neither the Veerasamy Boys nor the Tiger Rose dance group were secret society groups.

6 The second appellant, Mathavakannan K, was a friend of the first and third appellants. He acknowledged to being a member of the Tiger Rose dance group, but denied he was one of the Veerasamy boys. Like the first appellant, he often hung out with the other members of the Tiger Rose group or the Veerasamy boys either to play football or to engage in other social activities. He maintained that he was not a member of any secret society group.

7 Then there was the third appellant, Selvar Kumar s/o Silvaras. He was a close friend of the first appellant. According to him, this relationship between them both developed as a result of the tragic death of his mother. From then on, he frequently visited the first appellant's home, and both of them...