Ithinin bin Kamari v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 02 April 1993
• Neutral Citation: [1993] SGCA 24
• Docket Number: Criminal Appeal No 1
• Date: 02 April 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: SH Almenoar (assigned)(Tan Rajah & Cheah)
• Citation: [1993] SGCA 24
• Defendant Counsel: Seng Kwang Boon (Deputy Senior State Counsel)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 300 Penal Code (Cap 224) Exception 1,Whether accused lost his self-control,Special exceptions,Test to be applied,Criminal Law,Provocation,Whether retaliation of accused bore any reasonable relationship with the provocation

This was an appeal against conviction and sentence on two charges of murder. The charges alleged that the appellant on 24 May 1989 at about 8.15am at the second storey corridor of Block 27, Tanglin Halt Road, Singapore, caused the death of one Mohd Said bin Abdul Majid (`Said`) and one Mohd Johar bin Selamat (`Johar`). After hearing arguments, we dismissed the appeal. We now give our reasons.

The prosecution`s case was as follows. On the morning of 24 May 1989 shortly after 8am, Said and Johar arrived at the corridor outside apartment #02-80, Blk 27 Tanglin Halt Road, a one-room one-hall unit in which Safardeen bin Hussein (`Safardeen`) lived with his grandfather. They were led there by Zainuddin bin Saini (`Zainuddin), a friend of Safardeen`s who had earlier been asked by Johar to take them there as Johar did not know the way. However, when they arrived at the flat, Johar asked Zainuddin to stay as he was afraid that there would be a big fight.

Said knocked loudly on the door of the flat a few times and upon Safardeen opening it, asked to meet Safardeen`s friend. Safardeen went to call the appellant, who then came out clad in a sarong, but otherwise bare-bodied.

Zainuddin, testifying on behalf of the prosecution, said that the appellant asked Johar in a normal tone what he wanted. In a normal tone, Johar questioned the appellant as to who had taken the belongings of Zanariah bte Aziz (`Zanariah`). The appellant denied taking the belongings. Zanariah turned out to be the appellant`s girlfriend who spent occasional nights with him in Safardeen`s grandfather`s apartment. She knew Johar and had previously slept with him on a few occasions. Zainuddin could not hear much of the rest of the conversation between the two men but at the end of it, he heard the appellant challenging Johar to a one-to-one fight. At this time, Zanariah and Safardeen were still inside the flat.

Zanariah testified under cross-examination that she heard raised voices. Safardeen testified that he heard the appellant say `I know that you are not satisfied about Ana [the other name for Zanariah]`. No evidence was led as to what this meant.

The appellant then went back into the flat. At about this point, Zanariah came out and saw that the appellant looked angry. She asked Johar why he had come but got no reply. Nevertheless, she suspected that he had come out of jealousy. She returned to the apartment and saw the appellant holding a kitchen knife. Horrified, she managed to snatch the knife away and threw it onto the sofa in the living room. The appellant made no protest. Together with Safardeen, she pacified the appellant and urged him to speak to the other parties peacefully. Both she and Safardeen stated in cross-examination that they believed that they had succeeded in calming the appellant down.

Soon afterwards, the appellant went out of the flat a second time. Zanariah, who had followed him, heard Said say, `Since you have challenged me, get dressed and come out`. She could not remember if abusive words followed at any time thereafter. According to Zainuddin, abusive words were uttered by Said after the accused went back into the flat. Said called out: `Puki mak [your mother`s cunt], why do you take so long, you don`t have to take a bath, you can come out.` Said also called the appellant `kurang ajar` (ill-mannered person). No other words were used. Safardeen testified that he heard Said telling the appellant to change and leave the house but thought that these words were uttered before the appellant had re-entered the house. He could not recall any abusive words.

The appellant then came out of the flat a third time, this time holding a knife. Zainuddin and Zanariah witnessed the stabbing of Said and Johar. Zainuddin saw the appellant thrust the knife at Said three times. Said fell on the floor, Johar came from behind the appellant and grabbed him. After a struggle, during which Zanariah tried to snatch the knife away from the appellant but failed, the appellant freed himself and stabbed Johar once. Johar slumped to the ground in a seated position.

Zainuddin fled at this juncture. Both witnesses described the stabbing of both deceased as forward waist/chest level thrusting actions with the knife.

Safardeen, who was in the flat, saw the appellant re-enter the flat with blood on his sarong. Immediately, the appellant reached out for his clothes which were on the living room table and ran out, still carrying the knife.

An ambulance officer who arrived at the scene shortly afterwards found Said and Johar dead.

Dr Clarence Tan, a forensic pathologist, gave evidence of the nature and extent of the injuries suffered by Said and Johar. His evidence was largely unchallenged. He found three injuries on the body of Said, two of which were stab wounds in the chest region whilst the third was a defensive oblique incised wound on the left mid-forearm. The fatal wound was a stab wound which had penetrated through the left lower anterior chest wall into the heart and the right lung resulting in death from massive haemorrhage. The total depth of the track of the wound was estimated to be within the range of 10 to 13cm. Moderate to severe force was used to cause the wound in question. Another stab wound had penetrated through the left lateral chest wall, incised the spleen and entered the pancreas. The depth of this wound was estimated to be between 8 and 10cm.

In respect of Johar, Dr Tan found only one single stab wound at the left lower anterior chest wall. It had penetrated the heart and lung resulting in death from massive haemorrhage. This was a fatal wound. He estimated the wound to be within the range of 9 to 12cm.

It was Dr Tan`s evidence that the two stab wounds suffered by Said and the single stab wound suffered by Johar were all `penetrating wounds` and for such wounds to be inflicted, a definite inward thrusting motion of the weapon into the body was required. By definite, he meant a deliberate muscular movement.

Dr Tan testified that the wounds on both Said and Johar were consistent with the wounds having been caused by the knife.

The knife was described as having a blade with a straight blunt edge and a cutting edge tapering gradually to a sharp point. The blunt edge measured 12.7cm. and the cutting edge measured 14cm. The maximum width of the blade at the hilt was 3.1cm.

Finally it was Dr Tan`s opinion that in respect of the fatal wound on Said, he would be incapacitated within about a minute. This wound would be sufficient in the ordinary course of nature to cause death.

As regards the fatal wound on Johar, it bore a degree of similarity to the fatal wound inflicted on Said in respect of its location. He would also be incapacitated within a minute and death would result within three minutes. The wound on Johar was likewise also sufficient in the ordinary course of nature to cause death.

The prosecution`s case was that the accused intended to stab both Said and Johar in the chest region, a vital part of the body.

The appellant`s defence was one of grave and sudden provocation under Exception 1 of s 300 of the Penal Code (Cap 224). According to him, he had been introduced to Johar about one or two weeks before the incident but he had not met Said before. He was not aware that there had been any intimate association between Zanariah and Johar.

On the evening of 23 May 1989, he met Zanariah at the flat of Sablan bin Abdan and Zaiton bte Muda in Jurong West. They then went to spend the night at Safardeen`s grandfather`s flat. At the flat, they and Safardeen shared three straws of heroin and then went to bed. The appellant did, however, smoke an extra straw after the others had retired.

The next morning he was awakened by...