Criminal Law

• Citation: (2016) 17 SAL Ann Rev 366
• Published date: 01 December 2016
• Publication year: 2016
• Date: 01 December 2016

Introduction

13.1 This review is in two parts: cases that involved offences under the Penal Code;1 and cases that involved offences under other statutes.

Offences under the Penal Code

13.2 Two types of offences against the person received noteworthy attention in 2016: murder and culpable homicide; and sexual penetration of a minor under 16 years of age.

Culpable homicide and murder

13.3 The decision of the High Court in Public Prosecutor v Sutherson, Sujay Solomon2 (“Sujay Solomon”) was reviewed last year.3 This decision was significant, as it was the first time a local court (as opposed to local commentary) attempted to relate ss 299 and 300 of the Penal Code.4 Amongst others, the High Court in Sujay Solomon compared s 300(d) and the third limb of s 299. Unlike the other limbs in ss 299 and 300, s 300(d) and the third limb of s 299 are based on knowledge and not intention. These provisions are set out in the following table (emphasis added in italics):

Culpable Homicide	Murder
299. Whoever causes death by doing an act … with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.	300. Except in the cases hereinafter excepted culpable homicide is murder — … (d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

13.4 The High Court in Sujay Solomon had observed that both the first clause of s 300(d) (italicised in the table at para 13.3 above) and the third limb of s 299 require knowledge of the probability of causing death. They differed, however, in the degree of probability that death would result. Hence, while death may be foreseen as “likely” (under the third limb of s 299), it may not be an outcome that “must in all probability” result (under the first clause of s 300(d)).5 In relation to the mens rea, the High Court in Sujay Solomon noted that the inquiry vis-à-vis the third limb of s 299 and the first clause of s 300(d) is “fully subjective”.

13.5 The relationship between the third limb of s 299 and the first clause of s 300(d) was further examined in Public Prosecutor v Govindasamy s/o Nallaiah6 (“Govindasamy”). The Prosecution had charged the accused with murder under s 300(d). Acquitting the accused of this charge of murder, the High Court convicted the accused for the lesser offence of culpable homicide not amounting to murder under the third limb of s 299 instead.7

13.6 The accused in Govindasamy was convicted, after a trial, for corruption. The deceased's husband had been his defence counsel. The accused failed to pay his legal fees, and the deceased's husband commenced legal proceedings to recover these from the accused's children (who had stood as guarantors for the fees owed). The accused tried to ask for more time to pay the fees, but was told by the deceased (who assisted her husband with secretarial support) on two occasions “not to waste any more time, and to arrange for payment to be made”.8

13.7 The accused's son had been notified that a writ of seizure and sale against the property in his home would be enforced if payment was

not made by 10 August 2011. On that date, the accused went to the office of the firm in which the deceased's husband practised and pleaded with the deceased for forbearance. The deceased “did not listen, and said that she would take out bankruptcy proceedings against his children the next day”.9 Incensed, the accused hit the deceased's head with his bicycle chain and rendered her unconscious. The accused then set fire to the papers and files on a wooden table using a lighter he had also brought along,10 hoping to destroy his file on the table.11 The deceased was unconscious (but alive) when the fire was started, but had regained consciousness sometime after (“she was sufficiently conscious, at least at two points in time, to scream”).12 The fire spread through the office, and the deceased died owing to “a combination of inhalation of fire fumes and extensive severe burns”.13

13.8 The Prosecution contended that the accused should be convicted of murder under s 300(d) because his “act of setting the fire in the office after rendering the deceased unconscious and incapacitated inside the office was an act which he knew was so imminently dangerous that it must in all probability cause death”.14 The Defence argued, however, that:

(a) “[T]he Accused's act in starting the fire, though grave, was not of such a quality of dangerousness … as to attract liability for murder.”

(b) “[T]he Accused did not know that death would be a certainty.”15

Four elements of s 300(d)

13.9 The High Court observed that s 300(d) is “unique because it is the only form of murder for which an intention to cause death or bodily injury to a particular person is not an ingredient of the offence”.16 Instead, s 300(d) requires “the performance of an imminently dangerous act when one knows that the act in question ‘must in all probability cause death or such bodily injury as is likely to cause death’”.17 There

were, hence, two limbs to the actus reus – where the act in question was so imminently dangerous that it must in all probability:

(a) cause death; or

(b) cause such bodily injury as was likely to cause death.18

13.10 Given that the Prosecution had relied on the first limb to the actus reus,19 the High Court noted that the Prosecution had to prove the following four cumulative elements to make out a charge under s 300(d):20

(a) [T]he Accused must have performed an act which caused death [“Element 1”].

(b) [This] act must have been so imminently dangerous that it must in all probability cause death [“Element 2”].

(c) [T]he Accused must know that this act must have been so imminently dangerous that it must in all probability cause death [“Element 3”].

(d) [T]his act must have been performed without any excuse for incurring the risk of causing death [“Element 4”].

13.11 Elements 1 and 4 were not disputed. However, the Defence contended that Elements 2 and 3 were not satisfied – and the High Court focused on these two elements.

Element 2

13.12 The High Court noted that Element 2 relates to the “character of the actus reus”.21 According to the High Court, the essence of the inquiry vis-à-vis Element 2 was whether the danger posed by the act (which caused death) was “immediate, and the prospect of death so swift and sure that as a practical matter, it is an almost certain outcome”.22 In other words, the risk posed by the act which caused death must have been such that the probability of death “approximate[d] to a practical certainty”.23

13.13 The actus reus of the charge was the “setting [of a] fire in the office after rendering the deceased unconscious and incapacitated inside

the office”24 (viz, the act that caused death). The High Court agreed with the Prosecution that:25

[T]he inquiry [vis-à-vis Element 2] should not be narrowly confined to whether the act [that caused death] was dangerous in its intrinsic nature, but should properly take the surrounding circumstances into account in so far as they go towards increasing the hazard involved.

The court, therefore, accepted that:

[T]he office was an enclosed space which would eventually lead to the build-up of toxic fumes, the office contained wooden furniture with files and papers which formed combustible material, the Accused rendered [the deceased] unconscious, and (d) the deceased was left at the far end of the office when the fire was set …

Given these facts, the court “had no hesitation in finding that the act [that caused death] was clearly dangerous, and that death was likely”.26 That said, the court cited the following three reasons in support of its holding that the risk posed by the act that caused death did not approximate to a practical certainty:27

(a) At the time the fire was started, the deceased “was not injured so badly that she would not have regained consciousness, nor was she injured to the extent of being completely immobile”.28

(b) There was nothing to support a finding that “the fire would have spread so quickly and/or burnt so furiously in the office that the probability of death approximated to a practical certainty”29 as there was no evidence that the accused had used accelerants and because the fire had only been started at one place in the office (viz, the wooden table) as opposed to other points in the office.30 The question “was not how dangerous the fire eventually became [but] how dangerous the way the Accused started the fire was”.31

(c) Although death was likely, it was not a practical certainty because escape was not a practical impossibility. “There was no evidence there were any obstacles along the

passageway which obstructed the escape route.”32 Neither was there evidence that the accused had sought to further restrain, constrain, or confine the deceased in any way. “[The accused] had simply let [the deceased] be after she had fallen unconscious.”33 In addition, the door to the office was not locked.34

Element 3

13.14 The High Court observed that Element 3 relates to the mens rea of s 300(d),35 and “requires that an accused must subjectively know, at the time he committed the act [which caused death], that it was so imminently dangerous that it would in all probability cause death”.36 On this note, the court held that while the accused knew that his act of starting the fire was likely to cause death, it was not possible to go further to say that it could be inferred that the accused knew that death was a practical certainty. This was because:

(a) Although the accused had already knocked the deceased unconscious, it was not argued that: (i) he knew that she would not regain consciousness; or (ii) he had restrained or confined her in any...