Daniel Vijay s/o Katherasan and others v Public Prosecutor

• Court: Court of Appeal (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 03 September 2010
• Neutral Citation: [2010] SGCA 33
• Citation: [2010] SGCA 33
• Defendant Counsel: Subhas Anandan and Sunil Sudheesan (KhattarWong),Mohamed Muzammil bin Mohamed (Muzammil & Co) and Allagarsamy s/o Palaniyappan (Allagarsamy & Co),S Jennifer Marie, David Khoo, Ng Yong Kiat Francis and Ong Luan Tze (Attorney-General's Chambers)
• Published date: 11 October 2010
• Plaintiff Counsel: James Bahadur Masih (James Masih & Co) and Amarick Singh Gill (Amarick Gill & Co)
• Hearing Date: 13 November 2008,09 April 2009
• Docket Number: Criminal Appeal No 1 of 2008
• Date: 03 September 2010
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

This is an appeal by the first appellant, Daniel Vijay s/o Katherasan (“Daniel”), and the second appellant, Christopher Samson s/o Anpalagan (“Christopher”), against the decision of the trial judge (“the Judge”) convicting them of murder in Criminal Case No 16 of 2007 (see Public Prosecutor v Daniel Vijay s/o Katherasan and others [2008] SGHC 120 (“the GD”)). The third appellant, Nakamuthu Balakrishnan (alias Bala) (“Bala”), originally appealed as well against his conviction for murder, but subsequently decided not to proceed with his appeal (see [46]–[47] below). For convenience, we shall hereafter refer to the three appellants collectively as “the Appellants”.

This appeal requires us to consider the scope of s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”). Section 34 of the 1985 Penal Code has its roots in s 34 of the Penal Code (Ordinance 4 of 1871) (“the 1871 Penal Code”), which was enacted in 1872 when Singapore was part of the Straits Settlements. Since 1872, s 34 of the 1871 Penal Code has remained unchanged in all the subsequent editions of the Penal Code up to the current edition (ie, the 2008 revised edition). For convenience, the generic term “the Penal Code” will hereafter be used to denote the particular version of the Penal Code that is relevant to the case or legal point being discussed, regardless of whether that version is the 1985 revised edition or some other edition, and s 34 of the Penal Code (ie, “the Penal Code” as just defined) will be denoted by the generic term “s 34”.

It might be thought that since s 34 was enacted some 138 years ago, its meaning would already have been settled through judicial interpretation. But, this does not appear to be the case. In 1999, this court (which will also be referred to interchangeably as “the CA”) said in Shaiful Edham bin Adam and another v Public Prosecutor [1999] 1 SLR(R) 442 (“Shaiful Edham”) at [52] that there were “two divergent lines of authority” on the scope of s 34, one of which was wrong. However, this statement did not have the effect of settling the law on s 34 as, in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (“Lee Chez Kee (CA)”), this court restricted the operation of the legal principle encapsulated in the accepted line of authority (see [42] below).

Despite the decision in Lee Chez Kee (CA), s 34 remains a troubling provision. In the present case, for instance, the Judge applied s 34 to convict Daniel and Christopher on a joint charge of murder arising from Bala’s criminal act of assaulting the deceased victim, Wan Cheon Kem (“Wan”), even though: the Appellants had not planned (ie, they had no common intention) to kill Wan or cause his death, but had only the common intention to rob him of the cargo of mobile phones which he was transporting (“the Cargo”) (see the GD at [40] and [51]–[52]); and it was Bala alone who caused the death of Wan by intentionally inflicting a series of blows on the latter’s head with a baseball bat (“the baseball bat”), resulting in Wan sustaining injuries which were sufficient in the ordinary course of nature to cause death and which did indeed cause his death a few days after the assault. In the light of these findings, the Judge held that he was compelled by law to convict both Daniel and Christopher of murder as secondary offenders pursuant to s 34 for the offence of murder arising from the criminal act committed by Bala, the actual doer of that criminal act.

The Judge’s decision highlights the apparent harsh effect of the application of s 34 in these circumstances. The outcome is particularly unjust when the offence charged is that of murder. This expansive interpretation of s 34 stems from certain statements on the scope of s 34 made by Wee Chong Jin CJ in the judgment of the Court of Criminal Appeal (“the CCA”) in Wong Mimi and another v Public Prosecutor [1971–1973] SLR(R) 412 (“Mimi Wong (CCA)”). It has led to uncertainty in the way our courts have been applying s 34 in cases where the offenders (ie, the actual doer and the secondary offender(s)) have a common intention to commit a particular offence (or a criminal act resulting in a particular offence) and, in the course of committing that offence or that criminal act, another (more serious) offence (or another criminal act resulting in a more serious offence) is committed (such cases are commonly referred to as “twin crime” cases (see further [41] below)). In the circumstances, we find it necessary to revisit Mimi Wong (CCA) and the relevant case law on s 34 in order to clarify this difficult area of the law. We shall do this after we have considered the factual and legal issues raised in this appeal.

Factual background Participants

Daniel was, at the material time, a male aged 23 who was a full-time national serviceman (“NSF”) with the Singapore Armed Forces (“the SAF”). He was, at the material time, absent without official leave (“AWOL”) from the SAF, and had been detained in the SAF Detention Barracks for being AWOL on four previous occasions. He had also been a secret society member in the past.¹ Christopher was, at the material time, a male aged 23 who was also a NSF with the SAF. He too was AWOL at the time of the offence. Previously, he had been detained in the SAF Detention Barracks for being AWOL on three occasions. Bala was, at the material time, a male aged 48 who had previously worked as an odd-job labourer.² He had spent time in prison for being AWOL from the SAF and for various drug offences.³ Bala played a key role in the execution and planning of the robbery. There was some evidence that Bala had a dominant influence over Daniel and Christopher, and was a father figure to them.⁴ (This relationship could explain why Daniel and Christopher initially attempted to shield Bala from prosecution (after the Appellants were arrested) by falsely claiming that Daniel had beaten up Wan during the robbery and that Bala had not had anything to do with the assault (see [19] below).)

Apart from the Appellants, there were two other persons who were involved in the initial planning of the robbery, viz, one Ragu a/l Ramajayam (“Ragu”) and one Arsan s/o Krishnasamy Govindarajoo (alias Babu) (“Babu”). Babu, in fact, played a major role in the planning of the robbery. Ragu was a driver employed by Sterling Agencies Pte Ltd (“Sterling”), a freight-forwarding company. His role was to provide information to Babu on when Sterling would be transporting expensive cargo from Changi Airfreight Centre (“CAC”) to consignees. Babu was a second-hand goods dealer. He was introduced to Ragu by one Shanker, a mutual acquaintance who was not involved in the robbery. Wan, the deceased victim, was, at the material time, working as a driver for Sterling and was a colleague of Ragu. Babu admitted that he was the originator of the idea that during the robbery, the driver of the targeted lorry should be beaten up until he became unconscious so that he would not know what was happening and would not be able to recognise the perpetrators (see sub-para (c) of [16] below). Both Ragu and Babu were, however, charged with lesser offences (see, respectively, [14] and [15] below).

Undisputed facts

Sometime in May 2006, Ragu and Babu hatched a plan to carry out a robbery of expensive cargo to be transported by Sterling from CAC for delivery to consignees. Babu recruited Bala to carry out the robbery. Bala then recruited Daniel and Christopher to assist him in carrying out the robbery. Sometime before the day of the robbery, Daniel took the baseball bat from a workshop at Changi where he had his car serviced. Several days before the robbery, Babu and Bala went to survey CAC. They were driven there by Christopher. On the evening of 29 May 2006, Babu and the Appellants met at a coffee shop at Block 125 Lorong 1 Toa Payoh to have some drinks. In the course of the evening, the robbery plan was discussed.

On 30 May 2006, at about 5.30am, Ragu contacted Babu and informed him that Sterling would be delivering the Cargo, which consisted of ten pallets of mobile phones (later found to contain 2,700 Sony Ericsson W700i mobile phones valued at about US$823,500), that morning from CAC to a consignee by lorry. Babu relayed the information to Bala, who was with Daniel and Christopher at that time. The Appellants then proceeded to the vicinity of CAC in a rented ten-foot lorry bearing the registration number GM9520E (“Lorry 9520”), taking with them the baseball bat. They subsequently met up with Babu, who told them that the lorry carrying the Cargo bore the registration number YM815B (“Lorry 815”).

At about 7.00am, the Appellants saw Lorry 815 being driven out of CAC (by Wan). Bala directed Daniel to follow Lorry 815 in Lorry 9520, while Babu, who was also at the scene, drove off separately in another lorry. Somewhere along Changi Coast Road, Daniel drove in front of Lorry 815, causing Wan to stop it by the side of the road. After Wan alighted from Lorry 815, he was assaulted by Bala repeatedly on the head and other parts of the body with the baseball bat, although he was not rendered unconscious. He was then carried into the cabin of Lorry 815 and put on the floorboard in front of the passenger seat.

Daniel, together with Christopher, then drove Lorry 815 to Pasir Ris Car Park A at Jalan Loyang Besar in the vicinity of Costa Sands Resort (“Car Park A”). Bala followed in Lorry 9520. After arriving at Car Park A, Daniel and Bala transferred two pallets of the Cargo (comprising 540 mobile phones) from Lorry 815 to Lorry 9520. Bala then instructed Christopher to drive Lorry 9520 with the two pallets on board to Daniel’s rented apartment in Ang Mo Kio (“the Ang Mo Kio Apartment”). Shortly after, Babu arrived at Car Park A to join Daniel and Bala, who transferred the remaining eight pallets of the Cargo (comprising 2,160 mobile phones) from...