Case Note: RECENT DEVELOPMENTS IN COMMON INTENTION

• Author: Nathaniel Yong-Ern KHNG LLB (Hons) (University of Melbourne); Assistant Registrar, Supreme Court of Singapore. CHEN Siyuan LLB (Hons) (National University of Singapore); Lecturer of Law, Singapore Management University.
• Published date: 01 December 2009
• Citation: (2009) 21 SAcLJ 557
• Date: 01 December 2009

Lee Chez Kee v PP [2008] 3 SLR 447

The Court of Appeal recently delivered an important judgment on liability for common intention. This criminal law doctrine has demanded clarification for some time, especially in regards to what is commonly known as “twin crime” situations, ie, situations where there is a primary criminal act as well as a collateral criminal act incidental to the main goal of the participants to the primary crime. In the “twin crime” situation, the participants would have intended to commit the primary criminal act but not all would have shared in the intention of one or more unidentified members of the group to also commit the collateral criminal act. This note considers if the court came to an appropriate conclusion on the law.

I. Introduction

1 The law on criminal liability for common intention has long been contentious in Singapore,1 even with many decades of judicial interpretation of the concept. The much-maligned s 34 of the of the Penal Code,2 Singapore’s statutory foundation for criminal liability for common intention, states:

34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is

liable for that act in the same manner as if the act were done by him alone.

2 Liability for common intention under s 34 has often been invoked by the Prosecution for what is commonly known as “twin crime” situations, ie, situations where there is a primary crime as well as a collateral criminal act incidental to the main goal of the participants to the primary criminal act. In the “twin crime” situation, the participants would have intended to commit the primary criminal act but not all — those who may be described as “secondary offenders”— would have shared in the intention of one or more unidentified members of the group — those who may be described as “primary offenders”— to also commit the collateral criminal act. More often than not, twin crime situations that are prosecuted would be crimes of violence culminating in murder. In such cases, s 34 would affix liability on participants who claim to only have had the mens rea to the common initial violent crime (such as robbery) but not the ensuing murder. In cases where the evidence is inconclusive as to which member of a group inflicted the fatal wound, s 34 has been invoked as well. While a draconian interpretation of s 34 can be justified on the policy of deterring (and indeed punishing) group crimes of violence, as once opined, “it is certainly inequitable from the offender’s point of view, if he has to be put in peril of a conviction of murder for participating in a crime without contemplating the possibility of a killing in the course of it”.3

3 The Court of Appeal recently delivered an important judgment on s 34 in Lee Chez Kee v PP.4 Although the judgment also accorded substantial treatment to the issue of the admissibility of statements pursuant to s 378(1) (b)(i) of the Criminal Procedure Code,5 this note focuses solely on the subject of common intention. To that end, it considers whether the unhappy spectre over this area of criminal law has now been properly laid to rest. Before that, however, a summary of the facts and findings of Lee Chez Kee v PP is apposite.

II. Facts

4 On 14 December 1993, the police found the body of the deceased (“D”) in his house which appeared to have been ransacked. D was found with a pillow over his face. His wrists were tied together

with an electrical cord, and his feet bound by a belt. Another electrical cord was found across the front of his neck. A bent knife was found beneath his body, and a chopper was also found in the hall. In total, 18 external injuries (including stab wounds) were caused to D. The cause of death was asphyxia due to strangulation; the stab wounds were not acutely fatal. After the robbery, D’s cash-on-line (“COL”) card was used to make multiple bank withdrawals and purchases.

5 Three people were involved in the robbery-cum-murder: Too Yin Sheong, Ng Chek Siong and the appellant, Lee Chez Kee. Too and Ng were convicted in 1998. Too was convicted of murder, and Ng was convicted of robbery, theft and cheating, all with common intention. Lee was only arrested in 2006 and his trial proceeded without the oral testimonies of Too and Ng as the former had been sentenced to suffer death and had been executed and the latter had been repatriated.

6 Too had befriended D at a coffee shop some time in 1993. Their friendship grew. One day, Too accepted his invitation to visit his house. However, after D had showed Too the valuable antiques in his house, he started touching the latter’s body and thighs. Too felt uneasy and left. He then met up with his friends, Ng and Lee, and they came up with a plan to rob D at his house. The original plan was to tie D up and threaten him with a knife. Ng, however, volunteered only to drive them to D’s house.

7 On 12 December 1993, the trio carried out their plan. Too had called D on the pretext of wanting to introduce a friend to him. D agreed to meet them. Lee was extremely worried from the outset about being arrested after the robbery, given that D was seemingly well acquainted with Too. Lee even quarrelled with Too en route to D’s house, but decided to carry on with the robbery nonetheless. Upon reaching the house, Too and Lee chatted with D over drinks. What happened after that was the subject of conflicting accounts.

8 Too said that when D chatted with Lee, he slipped into the kitchen and found himself a knife. When he returned, Lee brandished his knife. Too did likewise and they demanded information from D as to where they could get money. They took D to the second storey and tied him up in his room and ransacked the house. Before they left, Lee stabbed D. The knife did not penetrate well so he used a cord to strangle him. Lee only released his grip after D began frothing at the mouth. Too and Lee continued searching for valuables and, at some point, Lee hit D’s head. Too and Lee then left the house.

9 Lee’s account differed. According to him, while Lee was chatting with D, Too had taken a knife from the kitchen and passed it to him, whereupon he used it to threaten D. D struggled, and Lee stabbed his

abdominal region twice, but the knife did not penetrate successfully. He also rained a few blows on D. After that, Too and Lee led D upstairs to a bedroom. They tied him up. Lee ransacked the house while Too remained in the room. Lee eventually went downstairs, and on his way, he saw Too covering D’s face with a pillow. Ng came into the house to search for more valuables before the trio escaped.

10 After the robbery, D’s COL card was used to make multiple bank withdrawals and purchases. At no point after leaving D’s house did Lee ask Too what happened to D or discuss with him what they would do if D freed himself.

III. The trial judge’s views on liability under s 34

11 The Court of Appeal provided a succinct summary on the trial judge’s views on liability for common intention under s 34 of the Penal Code:6

34… First, the trial judge stated that the evidence, considered in its totality, gave rise to the irresistible inference that [D] had been murdered in furtherance of the common intention among Too, [Lee] and Ng to commit robbery… To begin with, the Prosecution had established beyond a reasonable doubt that [D] had died as a result of asphyxiation with the black cord and, further, that the event of strangulation had occurred in the course of the robbery committed on the material date.

35… The trial judge placed considerable emphasis on the events which had occurred after the robbery … Apart from [Lee’s] own admission that he had shared in the spoils of the robbery, the trial judge accepted that the independent evidence adduced by the Prosecution also identified [Lee] as having been party to the subsequent usage of [D’s] COL card …

36 In the trial judge’s view, this inference was also supported by the events which had taken place before the robbery …:

On [Lee’s] own admission, he was, prior to the robbery, afraid of being recognised … These fears were sufficiently compelling to cause [Lee] to get into a quarrel …

… The complete lack of any discussion regarding what would happen when [D] was freed, coupled with the calm and calculated manner in which they went about repeatedly exploiting [D’s] COL card … could only support the conclusion that [Lee] and his accomplices were not worried about being identified because they knew [D] was dead.

37… [The trial judge], however, did not yet find that [Lee] had in fact inflicted the fatal strangulation … [Lee’s] evidence at trial that he had merely observed Too placing the pillow on [D’s] face from a distance while he was going downstairs was clearly inconsistent with his prior evidence …

…

39… the trial judge stated that, in his view, it was not necessary to establish the identity of the person who actually strangled [D] as the requirements of s 34 were satisfied …

40… the trial judge also opined that even if one were to accept that it was Too, and not [Lee], who was solely responsible for [D’s] death, the rest of the evidence showed that Too’s conduct to this effect was in furtherance of their common intention to rob [D] …

[emphasis in original]

IV. The Court of Appeal’s decision

12 The Court of Appeal dismissed Lee’s appeal, but applied a markedly different interpretation of s 34 of the Penal Code,7 with particular attention paid to “twin crime” situations.8 It observed that there was little difficulty in relation to “single crime” situations, as in such situations, the parties to the enterprise would all share the common intention to commit the criminal act that was eventually perpetuated even though only one or more of them may have physically perpetuated the offence itself. Section 34 would clearly apply to render all the participants criminally liable if it could be established that the...