EXPANDING THE BOUNDARIES OF SUDDEN FIGHT THE TAN CHUN SENG DECISION

• Date: 01 December 2003
• Citation: (2003) 15 SAcLJ 333
• Author: CHRISTOPHER DE SOUZA
• Published date: 01 December 2003

The recent Court of Appeal decision in Tan Chun Seng1 stretched the boundaries of the sudden fight exception in four different ways. First, it re-defined the definition of sudden quarrel. Second, it lowered the threshold of the requirements needed for a fight. Third, it extinguished the need for strict proportionality. Fourth, it added to the debate on what type of conduct is sufficient to constitute an escape, or an attempted escape, from the fight. At first glance, it seems that these four developments over-liberalised the exception. It is the aim of this article to show that these developments must, in fact, be commended since they not only clarify the requirements for the sudden fight exception but they also augur well for the robust development of the exception in Singapore. As a precursor to the analysis of these four developments, the article will deal briefly with a philosophical point — namely, whether the sudden fight exception is excusatory or justificatory in nature. This brief philosophical exercise will give the reader a more complete understanding of why the sudden fight exception, and its four developments in Tan Chun Seng, have as their focus the accordance of the appropriate level of moral blameworthiness to the killer.

Excuses and justifications

1 Traditionally, exceptions and defences are divided into two categories — excuses and justifications. This part of the article will conclude that sudden fight, like the defence of provocation, operates as an excuse in criminal law because it does not ‘justify’ the wrongful act but seeks only to decrease the blameworthiness of the wrong-doer in relation to the wrong he committed. There is a difference between an excuse and a justification. A justification neutralises a wrongful act. An example of a justification is necessity — under section 81 of the Penal Code, if an accused person proves the elements of section 81 on a

balance of probabilities, he will secure for himself an acquittal.2 An excuse, however, goes only to reduce or decrease the blameworthiness of the committing of the wrongful act. For example, provocation under Exception 1 to Section 300 of the Penal Code goes only to reduce murder to culpable homicide.3

2 The reason why a justification neutralises rather than reduces moral culpability is because there is a good reason to account for what was otherwise morally objectionable conduct. Usually, if we conclude that there are in fact good reasons for acting, this conclusion is based primarily on (a) our (as arbiters of objective reason) assessment of the particular circumstances which include a survey of all the facts therein, and (b) whether there was in fact good reason to warrant the actor to do as he did. In this sense, justifications are objective in nature — the prima facie wrongful act is warranted, permitted, correct and universally so. If a justification is found to exist, what has really been proved is the existence of a good reason in the factual circumstances surrounding the wrongful act. If pushing someone forcefully out of the way of an on-coming bus to prevent him from being killed is a justified act, surely anyone acting in such circumstances, and for such a reason, will have the justification.

3 Excuses are different. There must be a clear sense that the act from which the actor wishes to be excused must be wrong even from the point of view of the actor. This requirement must exist before the concept of an excuse becomes operative.4 In seeking to establish an excuse, one takes the act as wrong but attempts to show reasons to suggest that no implications (i.e. blameworthiness) or, at least, only weaker implications should be drawn than otherwise seem appropriate. While the investigation for a justification is an objective one, in excuses the investigation is a subjective one. Unlike the focal point of justifications, the focal point of an excuse is not only the wrongful act. Rather, the

focus is also on what implications or imputations can be drawn from the concededly wrongful act to the actor of the wrong. There is a sense that excuses are subjective and individual.5 When we find a valid excuse, we find there must be something about the actor, or his character, or his capacity, or his reasons that must be established as sufficient to excuse him. There may of course be some feedback with the external circumstance, but at the core, there is something personal. Many times as a child, we were asked, “And what is your excuse?” Therefore, there is an observable distinction between excuses and justifications in the sense that justifications are in some way objective and universal, while excuses are in some sense subjective and individual.6

4 Where does the sudden fight exception find its philosophical home? Is its home in the justification camp or the excuse camp? The article takes the stance that it belongs in the latter camp. An excusatory defence is taken in criminal law doctrine to be a defence that arises because the defendant is deemed less blameworthy. The defendant though deemed less blameworthy (by virtue of his excuse) has

nonetheless done an act that is wrongful. The wrongfulness of the act, for example, a killing, does not extinguish upon proof of a valid excuse. Thus, defences such as provocation and sudden fight fit here. This is buttressed in the provisions of the Penal Code governing the punishment to be meted out upon the establishment of the provocation and sudden fight defences. These provisions do not go towards acquitting the accused, but merely reducing the sentence from one of death under s 302 to one of up to 10 years’ imprisonment, or life imprisonment under ss 304(a) and 304(b). This was exemplified in the case of Tan Chun Seng. At the High Court, the trial judge found that the accused was guilty of murder under s 300 and sentenced him to death. However, upon appeal to the Court of Appeal, the Court found that the defence of sudden fight was established and accordingly reduced the sentence from one of death under s 302 to one of 10 years’ imprisonment under s 304(b) of the Penal Code. The excuse of sudden fight reduced the moral culpability associated with murder to the moral culpability associated with manslaughter.

5 The article now moves into its second part. It will demonstrate that the decision in Tan Chun Seng expanded the boundaries of the sudden fight exception in Singapore. Nonetheless, it will be argued that the Court legitimately pushed the ambit of the following elements required for a sudden fight defence:

1. (a) sudden quarrel;

2. (b) the definition of a sudden fight;

3. (c) the need for proportionality in a fight and how that relates to the issue of undue advantage; and

4. (d) what constitutes an attempted escape by the deceased which would disqualify the accused from the defence.

6 Before the article discusses each of these elements in greater detail, a summary of the facts and holdings of the Court of Appeal in Tan Chun Seng will be provided. But prior to looking at the case proper, it would be helpful to refresh one’s mind of the requirements needed for the successful operation of the sudden fight exception. Exception 4 to section 300 of the Penal Code (Cap 224) states that in order for an accused to take benefit of the sudden fight defence, three statutory requirements must be met. It must be proved:

(a) that a sudden fight in the heat of passion upon a sudden quarrel had taken place;

(b) that the killing was not premeditated;

(c) that there was an absence of undue advantage and that the killing was not cruel or unusual.

Tan Chun Seng v PP 7

7 The appellant, Tan, was parking his newly purchased Nissan Sunny car along a street. Just as he was parking the car, he saw two Indian males walking towards his car. These two Indian males were Krishnan and Chandrasegaran. Tan had never met these two men before. Just as they approached the car, Chandrasegaran hit the glass window on the front passenger side of the car. Tan was furious that this had happened. Krishnan and Chandrasegaran stopped at the rear of the car. Chandrasegaran was gesturing for the appellant to come down from his car, with Krishnan standing beside him. All this happened when Tan was in the midst of parking his car. He was set on confronting Chandrasegaran. Tan walked a short distance to catch up with the two men but soon realised that Chandrasegaran was no longer in sight.

8 Not being able to confront Chandrasegaran about why he hit his car, Tan decided to approach Krishnan. When catching up with Krishnan, Tan was shouting at him, asking him why his friend had hit his car. The fact that Krishnan continued walking, unperturbed at Tan’s outburst, further enraged Tan. Tan was unaware that Krishnan was a deaf mute. He started to hurl Hokkien vulgarities at Krishnan. When Tan had almost caught up with Krishnan, the latter turned around and faced Tan. Krishnan, now facing Tan, just stood his ground and looked at Tan. Tan kept on hurling Hokkien vulgarities at Krishnan. Tan coupled his verbal outburst with expressive hand gestures. Krishnan, however, being a deaf mute, did not say anything in reply. Tan noticed that Krishnan was of a big physical build. The autopsy report showed that Krishnan weighed 94 kg and that he was 172 cm tall. As Tan continued his verbal onslaught and hand gesturing, he moved forward thereby closing the gap between himself and Krishnan. Krishnan then pushed Tan with great force such that Tan immediately fell to the ground. This push was not an ordinary shove. It was meant to fell Tan to the ground.

9 After being felled to the ground, Tan spotted a wooden pole on top of a pile of rubbish at the side of the street. Convinced that he was not going to overpower Krishnan in a bare-hand fight, Tan grabbed the pole, got up, and gave chase. Krishnan had advanced a few steps from the place where he had pushed Tan. Thus, Tan had a slight distance to make up for...