Criminal Law

Citation(2018) 19 SAL Ann Rev 395
Date01 December 2018
Published date01 December 2018

13.1 This review is in three parts. These will examine, respectively, cases that involved offences under the Penal Code1 (“the Code”), the Misuse of Drugs Act2 (“the MDA”), and the Medical Registration Act3 (“the MRA”).

Penal Code
Elements of attempted murder under s 307

13.2 In Public Prosecutor v BPK,4 the offender was charged with attempted murder under s 307 of the Code. He had attacked the victim with a knife, inflicting multiple stab and slash wounds to various parts of her body.5 The victim, fortunately, survived the attack. The offender's defence was that at the material time, he did not have the intention to kill the victim and, in fact, did not even have the capacity to form intent.6

13.3 This was the first local decision that discussed the elements of the offence of attempted murder under s 307 of the Code.7 The High Court made observations on the mens rea and actus reus requirements of the offence.

13.4 In relation to the mens rea element, the court held that this was encapsulated by the phrase “such intention or knowledge … that … he would be guilty of murder” in s 307, which tied the mens rea of the offence under s 307 to the mens rea of the offence of murder under s 300 of the Code.8 Therefore, for both ss 307 and 300, there were “four alternative limbs of mens rea”:9

(a) intention to cause death;

(b) intention to cause such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(c) intention to cause bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; and

(d) knowledge that the offender's act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death.

13.5 The court made two further comments on the mens rea element. First, while there might be Indian cases suggesting that an intention to kill was required for the offence to be made out, the court doubted that such a reading of s 307 could be accommodated by the language of the provision.10 Second, the four-limbed approach to mens rea under s 307 might result in inconsistency with the mens rea requirement under the general attempt provision in s 511 of the Code, which was an intention to commit the substantive offence with which s 511 was read. However, this was not an insurmountable difficulty because, as the High Court had noted in Public Prosecutor v Ketmuang Banphanuk,11 “[f]or offences where the legislature provides for specific definitions of attempt [such as s 307 of the Code], the general definition [under s 511 of the Code] will not apply”.12

13.6 In relation to the actus reus element, the court held that this was captured by the phrase “does any act … under such circumstances that if he by that act caused death he would be guilty of murder”.13 The court observed that there might be some difficulty in delineating the extent to which an offender must have embarked on the crime for the actus reus element to be satisfied, and noted that there were five possible approaches:14

(a) Proximity test. The offender must have done some overt act which is directed towards the actual commission of the crime and which is immediately and not remotely connected with the crime.

(b) Last act test. The offender must have done all the acts which he believed to be necessary to commit the substantive offence.

(c) Apparent intention test. The offender must have conducted himself in a manner which indicates in itself a clear and unequivocal intention to commit the offence.

(d) Substantial step test. The offender must have progressed a substantial way towards the completion of the offence.

(e) Embarked on the crime proper test. The offender must have “embarked on the crime proper”.

13.7 The court stated that it was not necessary to reach a conclusive view on the appropriate actus reus test because, on all of the five approaches, the test was satisfied in the case at hand.15 Nevertheless, the court opined that the illustrations to s 307 suggested that the “last act” test applied.16

13.8 On the facts, in relation to mens rea, the court found that the offender had the capacity to form intent at the material time.17 The court also found that the offender had intended to kill the victim based on the evidence of the victim, a witness whom the offender had spoken to soon after the incident, and a police officer; the offender's statements to the police; the number and nature of the injuries; and the presence of a motive: the offender had been angry with the victim for her perceived infidelity.18 The court also observed that an intention to commit suicide

was not inconsistent with a concurrent intention to kill the victim,19 which could have been formed by the offender immediately prior to his attack on the victim.20

13.9 Alternatively, even if the offender had not intended to kill the victim, he had intended to cause such bodily injury as he knew to be likely to cause her death, and knew that his actions were so imminently dangerous that they must in all probability cause her death.21 Thus, the mens rea element under s 307 of the Code was satisfied.

13.10 In relation to the actus reus element, the court found that the offender had struck repeatedly, relentlessly and forcefully at several parts of the victim's body, including vulnerable regions such as her head and neck, even after she had fallen to the ground. He had used such significant force that the tip of the knife blade bent when he missed a strike and the knife hit the floor. He had not stopped striking at the victim until her father arrived at the scene and pushed him.22 In this light, the actus reus requirement was satisfied on all of the five possible approaches to that element.23

13.11 Finally, the court considered whether the partial defence of provocation – which had not been raised by the offender, but which the Prosecution had made submissions on – applied. The court held that the partial defence of provocation was a defence to a charge under s 307 of the Code: if the defence was established, the charge would be reduced to a charge for attempted culpable homicide under s 308 of the Code.24 However, the court found that the subjective element of the defence – that the offender was deprived of self-control at the material time – was not made out.25 It was therefore unnecessary to consider whether the objective element of the defence (that the provocation was sufficiently grave and sudden) was fulfilled.26

Mens rea for voluntarily causing grievous hurt under s 322

13.12 The offender in Muhammad Khalis bin Ramlee v Public Prosecutor27 (“Muhammad Khalis”) had been part of two separate group fights that took place spontaneously and in quick succession. His

involvement in these two group fights led to him being charged with two counts of rioting, an offence under s 146 of the Code.

13.13 The offender had later returned to the scene of the first group fight. A dispute was then taking place between the offender's friend and the deceased's friend near a taxi stand. The deceased, who had only observed the two group fights (that is, he was not involved), attempted to intervene and mediate in this dispute. The offender, intending to stop the deceased from intervening:28

… ran towards the deceased and delivered a lunging punch from behind to the lower jaw of the deceased, causing him to fall and land heavily with his head and shoulders hitting the kerb.

An eye-witness testified that “the deceased was knocked unconscious by the blow and fell directly to the concrete ground without taking any evasive action to break his fall”.29 The deceased was sent to the hospital unconscious, and found to have severe head injuries. He died from these injuries a few days later. For this, the offender was charged and convicted (after trial) of one count of voluntarily causing grievous hurt – an offence under s 322 of the Code, which reads as follows:

322. Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said ‘voluntarily to cause grievous hurt’.

Explanation.—A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.

[emphasis added in italics and bold italics]

13.14 On appeal, the High Court affirmed the lower court's findings that the offender's punch was “a very forceful one”.30 The:31

… eyes of the deceased [had] rolled back upon being punched and … he fell without taking any steps to break his fall. … [T]he punch was sufficient to and did in fact knock the deceased unconscious.

The High Court noted that the evidence was:32

… clear … that regardless of whether the punch came from the deceased's left or back, the deceased did not see or anticipate the [offender's] punch, and was wholly unable to and in fact did not defend himself or take any steps to limit his injuries.

13.15 The offender had, on appeal, contended that he “never intended the deceased to lose consciousness, or to fall and fracture his skull”.33 This was, in effect, a challenge to the mens rea of the offence.34 To satisfy this element, the High Court observed that:35

… it must be shown that the accused intended or knew that his actions were likely to cause some form of grievous hurt. So long as this is so, it does not matter if by his actions, the accused in fact caused grievous hurt of some other kind (for instance, death) and not the precise kind of grievous hurt he intended or knew that he was likely to cause (for instance, a skull fracture).

13.16 To...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT