CASE NOTES: PUBLIC PROSECUTOR V. TAN HO TECK1

Citation(1990) 2 SAcLJ 332

There are not many decisions that clarify the relationship between the defences of unsoundness of mind under s 84 of the Penal Code2 and insanity due to intoxication under s85(2)(b) of the same code. Another area that has not been covered adequately by the local courts is the special exception of diminished responsibility in relation to alcoholism. One such case did come before the High Court of Singapore in 1987 in the case of Public Prosecutor v. Tan Ho Teck3. The decision of the Court, consisting of their Lordships Thean and Rajah JJ., was delivered on the 6th March 1987. At the end of the day, the decision of the court was based on the defence of insanity due to intoxication.

One of the fundamental questions that the court failed to clarify is that relating to the relationship between s 84 and s 85(2)(b) — are they different or is s 85(2)(b) merely repetitive or redundant? Or is 85(2)(b) intended to cover a different situation from that of s 84? The other question left lingering is that of when can someone who kills while under the influence of alcohol claim the special exception of diminished responsibility.

The Decision

The accused was charged with the offence of causing the death of his brother. It transpired from the evidence tendered in court that on the day of the killing the accused was unhappy with his own inability to pay off a debt which he owed to his uncle, whom he had no choice but to avoid. On the relevant day, the accused was involved in an argument with his brother over his failure to pay off his debt. The quarrel was complicated by past incriminations being brought up. After the quarrel the accused was feeling even more upset on reflecting on his inability to pay off the debt and the problems he now had with his family. He felt generally alienated and inferior as he was under the perception that others were looking down on him and were laughing at him. It was with this state of mind that he proceeded to consume an entire bottle of brandy. It was in this state of intoxication that the accused fatally stabbed the deceased.

The accused pleaded the defence of insanity caused by intoxication under s 85(2)(b) of the Penal Code. Expert evidence was put before the court showing that the accused was suffering from delirium due to acute

intoxication. As a result of this, the accused was incapable of knowing the nature of his act or that what he was doing was wrong, i.e. he did not know what he was doing.

The court accepted the expert testimony tendered by the defence and was therefore satisfied, on a balance of probabilities, that the accused was suffering from unsoundness of mind due to intoxication at the time of the killing and ordered that the accused be kept in safe custody pending the order of the Minister under s 314 of the Criminal Procedure Code.4

The court observed that in view of its accepting the defence under s 85(2)(b)5, there was no necessity to deal with the other defences: (1) that the accused was incapable of forming the specific intention for the offence for which he was charged by reason of his intoxication, and (2) that the accused was suffering from an abnormality of the mind induced by disease or injury which substantially impaired his mental responsibility for the act for which he was charged.

Insanity and Unsoundness of Mind

The court in the present case felt that it was sufficient to dispose of the case on the ground of insanity caused by intoxication. The court was of the opinion that

“the accused did … stab and cause the death of his brother … but he was, by reason of unsoundness of mind at that time, incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law.”6

It will be noticed that the court, in couching its observations in such language seemed to using the formula found in s 84.

It must be said in all fairness that the High Court is not alone in this delusion that s 84 and s 85(2)(b) are one and the same. Mooney in “Intoxication As A Defence Under The Penal Code7 says this of s 85:

“[S 85(2)(b)] is not clear. If [(1)] above requires proof of insanity it is difficult to know what more [(2)(b)] requires. If in fact [(1)] above requires proof of insanity it is difficult to see that section [85(2)] as a whole is much more than an addendum to section 84 providing that

where insanity arises from non-voluntary intoxication caused by malice or negligence or another, the verdict shall be acquittal and that, by implication, the provisions of the Criminal Procedure Code does not apply.

If the foregoing construction of section 85 is correct, its importance in law is negligible, for a plea under section 85 is tantamount to a plea of insanity which may be preferable alternative since it is much clearer.”

Another commentor, Davis,“The Defences of Insanity and Intoxication in Malayan Criminal Law8 takes a similar view of s 85(2)(b):

“…section [85(2)(b)] … are superfluous. If, as a result of intoxication, a man becomes insane so as not to know what he is doing or that he is doing what is either wrong or contrary to law, then he is protected by the defence of insanity, and not by the defence of intoxication for it matters not how the insanity was caused, be it by accident, drunkedness, disease or any other cause, provided that the accused did not know what he was doing or that he was doing what was either wrong or contrary to law.”

To enable a discussion of the relationship between s 84 and s 85(2)(b), it is pertinent to examine the two respective provisions:

  1. S 84 Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is capable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

  2. S 85(1) Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

  3. (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and —

    1. (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

    2. (b) the person charged was by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission.

  1. S 86(1) Where the defence under section 85 is established, then in a case falling under paragraph (a) of subsection (2) thereof the accused person shall be acquitted, and in a case falling under paragraph (b) the provisions of section 84 of this Code and section 314 and 315 of the Criminal Procedure Code shall apply.

It will be noted that in order to prove a defence under s 84 the accused has to show that at the time of the commission of the...

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