Criminal Law
| Citation | (2020) 21 SAL Ann Rev 446 |
| Date | 01 December 2020 |
| Published date | 01 December 2020 |
| Author | TAN Ee Kuan1 MA (Cantab), LLM (Harvard University); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and Deputy Senior State Counsel, Advocacy Group, Attorney-General's Chambers. Sarah SIAW BA (Jurisprudence) (Oxon); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and State Counsel, Crime Division, Attorney-General's Chambers. LU Yiwei BA (Cantab); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and State Counsel, Crime Division, Attorney-General's Chambers. |
| Publication year | 2020 |
14.1 This review is in four parts. These will examine cases relating to the general part of the criminal law, and cases involving offences under the Penal Code,2 the Misuse of Drugs Act3 (“MDA”), and other statutes respectively.
14.2 In Seah Lei Sie Linda v Public Prosecutor,4 the Court of Appeal considered the scope of causation in the context of maid abuse offences.
14.3 The applicant (“Seah”) was charged with and convicted on six charges for abusing her domestic helper. Three of these charges were framed in terms of Seah having abetted her domestic helper to voluntarily
14.4 Seah appealed against her conviction and sentence. On appeal, the High Court amended the three abetment charges, removing references to abetment and reframing the charges in terms of Seah having voluntarily caused hurt to her helper by instructing the latter to commit acts of selfharm. The High Court convicted Seah on the amended charges, and imposed the same sentence meted out at first instance.
14.5 Seah then sought leave to bring a criminal reference to the Court of Appeal, in respect of the following questions:
(a) Question 1: Whether the offence of voluntarily causing hurt under s 323 of the Penal Code can be committed by a person (the “first person”) who instructs a second person to carry out acts which form the actus reus of the said offence, if such acts are carried out by the second person in consequence of the said instructions?
(b) Question 2: If the answer to Question 1 is in the affirmative, whether the said offence under s 323 of the Penal Code is made out if the second person has, in consequence of the first person's instructions, performed the said acts on himself?
14.6 The Court of Appeal held that the answers to these questions were “clearly and obviously ‘yes’”; thus, the questions were not questions of law of public interest that could be the subject of a criminal reference.5
(a) The court observed that if Seah had poured the hot water on the victim, there would have been no issue of causation. Alternatively, if Seah had procured someone else to pour the hot water on the victim, there would also have been no question of causation, as Seah would have been liable for abetting the offence by instigation. The analysis could not differ simply because the victim was instructed to inflict the harm to herself, given that the victim had no real choice in the matter. When Seah instructed the victim to cause hurt to herself, she had every reason to believe that her instructions would be carried out, because the victim had no real choice to speak of. Thus, there was no doubt that Seah had caused hurt to the victim.6
(b) The court noted that the view that Seah had caused hurt to the victim was consistent with s 39 of the Penal Code, which
states that “[a] person is said to cause an effect ‘voluntarily’ when he causes it by means whereby he intended to cause it”. Here, the relevant “effect” was the hurt to the victim, the intended means was Seah's instruction to the victim to inflict that hurt on herself, and the hurt inflicted, pursuant to Seah's instruction, was precisely what Seah intended.7
14.7 The above sufficed to dispose of Seah's application for leave to bring a criminal reference. However, the court proceeded to consider the High Court decision of Chua Chye Tiong v Public Prosecutor8 (“Chua Chye Tiong”). In Chua Chye Tiong, the offender was the manager of a branch of a car trading company. An unknown person drove a de-registered car stationed at the offender's branch. The offender was charged and convicted of an offence under s 29(1) of the Road Traffic Act9 for causing a vehicle to be used without a licence. On appeal, the High Court upheld the conviction, holding that the offender's “endorsement of [a] lax practice”, which led to the removal of the car from the branch premises, fell within the meaning of “cause”.10
14.8 The Court of Appeal held that Chua Chye Tiong had adopted “an incorrect and unduly expansive view of causation”.11 Causation “denotes an active act that is within the control of the causative actor; the omission in Chua Chye Tiong could not have … come within this definition”. At best, the offender in Chua Chye Tiong was negligent or had “permitted” the unlicensed car to be used.12 The court endorsed Lord Goddard CJ's definition of causation in the similar case of Shave v Rosner,13 where the offender was charged with causing a van to be used on the road in a dangerous condition: “‘causes’ involves a person, who has authority to do so, ordering or directing another person to use it”. On this definition, the offender in Chua Chye Tiong could not be said to have caused the use of the unlicensed car, albeit the conviction might have stood on the basis that he had permitted the car to be used.14
14.9 The court concluded by noting that the issue of causation arises in different contexts: as part of the actus reus of an offence, in the context of sentencing, or in an inquiry into the damages caused by a tort. Where
14.10 The court's observation that causation requires an active act within the agent's control should be read in the light of the facts of Chua Chye Tiong. It is trite that illegal omissions — omissions that are offences, prohibited by law, or which furnish grounds for a civil action — can be offences.16 But in Chua Chye Tiong, the offender's omission does not appear to have been illegal. Thus, the offender could not be said to have caused the unlicensed car to be used without an active act on his part.
14.11 In Public Prosecutor v Aishamudin bin Jamaludin,17 the Court of Appeal considered whether the Prosecution may charge accused persons who participate in the same criminal enterprise with differing common intention charges (that is, charges based on a common intention between the accused persons, but of differing severity).
14.12 The respondent (“Aishamudin”) was tried in the High Court with two co-accused persons (“Azli” and “Roszaidi”). The Court of Appeal issued a separate judgment for Azli's and Roszaidi's appeals — this is discussed below.18 The key facts relevant to Aishamudin were as follows: Aishamudin and his colleague (“Suhaizam”) were truck drivers, who delivered goods from Malaysia to Singapore. In carrying out deliveries, Aishamudin would also deliver drugs he received from drug suppliers to recipients in Singapore and, before his arrest, had worked together with Suhaizam to deliver drugs. On the day of his arrest, Aishamudin collected drugs including a capital quantity of diamorphine from his supplier, and then agreed with Suhaizam that they would deliver the drugs to recipients in Singapore. The pair entered Singapore in a truck driven by Suhaizam. Upon reaching a specified location, Aishamudin handed the bag containing the drugs to Roszaidi. All parties involved in the delivery and collection of the drugs were then arrested by the Central Narcotics Bureau (“CNB”).
14.13 Aishamudin was charged, under s 5(1)(a) of the MDA and s 34 of the Penal Code, with a capital charge of trafficking in not less than 32.54g
14.14 The High Court considered that it was logically unsound for the Prosecution to have charged Aishamudin and Suhaizam with a common intention to traffic in different amounts of diamorphine.19 Thus, the High Court amended Aishamudin's charge such that it referred to not less than 14.99g of diamorphine and convicted him on the amended charge. The Prosecution appealed against the High Court's decision to amend the charge. The Court of Appeal allowed the Prosecution's appeal and convicted Aishamudin on the original charge, for the reasons below.
14.15 The Court of Appeal first reviewed the prevailing law on the Prosecution's entitlement to charge participants in a criminal enterprise with different offences, and distilled two principles from the cases (none of which involved differing common intention charges). First, the Prosecution could charge participants in a criminal enterprise with different offences, so long as the prosecutorial decisions were unbiased, not based on irrelevant considerations, and did not breach Art 12(1) of the Constitution of the Republic of Singapore20 (“the Constitution”). Second, the relevant issue was not the seeming inconsistency between differing charges, but whether the Prosecution was able to prove all the elements of the more serious charge.21
14.16 The court then turned to consider whether the position should be different where common intention charges were involved. The court observed that the text of s 34 of the Penal Code was of critical importance and anchored the analysis. Section 34 did not refer to the charge(s) or offence(s) arising out of a criminal act, nor purport to make each party to the criminal act liable in the same manner. Instead, it made an offender liable even for acts carried out by others pursuant to a shared common intention, as if the offender carried out those acts. There was therefore nothing in the language of s 34 that mandated the Prosecution to bring identical charges against all persons charged pursuant to a common intention to do a criminal act.22
14.17 That said, an accused person might challenge differing common intention charges on the...
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