Lau Lee Peng v Public Prosecutor

• Judgment Date: 11 March 2000
• Date: 11 March 2000
• Docket Number: Criminal Appeal No 30 of 1999
• Court: Court of Appeal (Singapore)

Lau Lee Peng

Plaintiff

and

Public Prosecutor

Defendant

[2000] SGCA 13

L P Thean JA

,

Chao Hick Tin JA

,

Lai Kew Chai J

Criminal Appeal No 30 of 1999

Court of Appeal

Criminal Law–Offences–Murder–Appellant alleging “low intellect”' and grave and sudden provocation–Failure to mention allegations–Charge and warning explained to appellant–Whether drawing of adverse inference appropriate–Sections 122 (6) and 123 (1) Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Criminal Law–Offences–Murder–Defence of grave and sudden provocation–Two requirements for defence to apply–Subjective requirement of deprivation of self-control–Whether court entitled to reject medical opinion on loss of self-control–Objective requirement that provocation be “grave and sudden”–Application of “reasonable man” test–Nature and proportionality of appellant's reaction–Section 300 Exception 1 Penal Code (Cap 224, 1985 Rev Ed)

The appellant (“Lau”) was charged with the murder of one Tan Eng Yan (“the deceased”).

Lau had gone to the deceased's flat on the day of the murder to get someone's address from her. He became angry when she did not find it. The appellant claimed that the deceased then used vulgar and abusive language on him and his mother, and threatened to kill him as well. An altercation ensued and blows were exchanged. Thinking that the deceased was reaching for a chopper and fearing for his life, he grabbed it first and started slashing her on the neck until she was motionless. After his arrest, Lau placed the blame for the killing on one “Ah Meng”, whom he later admitted was fictitious.

At the trial, Lau did not deny inflicting the injuries on the deceased. Neither did he challenge the admissibility of his six police statements. He unsuccessfully raised the defences of grave and sudden provocation and sudden fight. The trial judge disbelieved Lau's allegations about the deceased as he had not mentioned any of these in his six statements and only raised them for the first time at the trial. He found that Lau himself caused much of the provocation, and that there was no evidence of any fight between them of such nature or intensity for Lau to fear for his life. Lau was convicted of murder and sentenced to death.

On appeal, Lau only pursued the defence of grave and sudden provocation. He argued that he failed to mention the allegations about the deceased as he was of low intellect and did not understand the importance of doing so.

Held, dismissing the appeal:

(1) There were two requirements to the defence of grave and sudden provocation. The first was a subjective requirement that the accused was deprived of his self-control by provocation. The second was an objective requirement that the provocation should have been grave and sudden. In respect of the latter, the “reasonable man” test applied. As such, the accused's emotional state of mind at the material time could be considered as that would affect the gravity of the provocation from the deceased: at [28] and [30].

(2) In respect of the first requirement, Lau failed to show that he was deprived of self-control at the time of the incident: at [34].

(3) In respect of the second requirement, the court rejected Lau's allegations of the abuse and/or threats uttered by the deceased as he had not previously mentioned them in any of his six statements. The court agreed with the trial judge that Lau caused much of the provocation and the deceased was merely reacting to it. Even if the allegations were true, Lau had grossly over-reacted and a reasonable person in his position would not have reacted with such extreme violence. In this respect, the defence of grave and sudden provocation was not to protect those who were exceptionally pugnacious, bad-tempered or over-sensitive: at [35] and [42].

(4) Lau's claims that he was of low intellect, and that he failed to mention the allegations in his statements because he did not understand the importance of doing so, were unsustainable. In concocting “Ah Meng” in his statements, he showed that he was clever enough to think of a fictitious person to bear the brunt of the blame for the killing: at [39].

(5) In respect of Lau's s 122 (6) statement, both the charge and warning were read, explained and interpreted to him in his dialect. As he did not deny that, nor allege that the explanation was inadequate, the trial judge was entitled to draw an adverse inference against him in respect of his failure to mention the allegations: at [36], [37] and [40].

(6) In the result, the court was satisfied that the defence of grave and sudden provocation failed and the appeal was dismissed: at [44].

[Observation: The test of proportionality was probably not a distinct requirement for raising the defence of provocation. It was a factor to be considered in determining whether the objective test of gravity and suddenness was fulfilled. The fact that the retaliatory acts might have been out of proportion to the provocation did not necessarily mean that the defence had to fail: at [31].

There was no requirement in law that the Prosecution had to establish a pre-meditated design to kill. An accused was guilty of murder if the intention to kill was proved to exist, however sudden such an intention was formed: at [43].]

Govindasamy N v PP [1974-1976] SLR (R) 654; [1975-1977] SLR 165 (refd)

Koh Swee Beng v PP [1991] 2 SLR (R) 662; [1991] SLR 319 (refd)

Luc Thiet Thuan v The Queen [1997] AC 131; [1996] 3 WLR 45 (refd)

PP v Kwan Cin Cheng [1998] 1 SLR (R) 434; [1998] 2 SLR 345 (folld)

PP v Tan Boon Tat [1990] 1 SLR (R) 287; [1990] SLR 375 (folld)

R v Camplin [1978] AC 705; [1978] 2 All ER 168 (refd)

Shaiful Edham bin Adam v PP [1999] 1 SLR (R) 442; [1999] 2 SLR 57 (folld)

Wo Yok Ling v PP [1977-1978] SLR (R) 559; [1978-1979] SLR 78 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 122 (6), 123 (1) (consd)

Penal Code (Cap 224, 1985 Rev Ed) s 300 Exception 1 (consd)

Subhas Anandan (MPD Nair & Co) and Lim Chong Boon (Ong Tay & Partners) for the appellant

David Lim Jit Hee (Deputy Public Prosecutor) for the respondent.

Chao Hick Tin JA

(delivering the grounds of judgment of the court):

1 The appellant was charged with and convicted of the crime of murder in causing the death of one Tan Eng Yan alias Tan Ah Leng alias Lily (“the deceased”). He was sentenced to suffer death. The offence was committed on 26 August 1998, sometime between 1.00pm and 2.30pm at the deceased's flat at Block 467, Tampines Street 44, #08-140.

2 We heard the appeal on 24 January 2000 and dismissed it. We now give our reasons.

Evidence led by the Prosecution

3 The deceased and the appellant were friends prior to the killing. They had known each other for some three years. There was no known animosity between them. The deceased worked as a fruit-stall assistant at the market situated at Block 475 Tampines Street 43. Her work for the day would normally end at about 1.00pm. In the afternoons, she worked as a part-time hairdresser. The appellant was a fishmonger at a neighbouring stall in the same market.

4 On 26 August 1998, at or about 3.15pm, the deceased's daughter, one Chen Hui Min, on returning home from school noticed a trail of blood leading to her flat. The iron gate to the flat was wide open, with the padlock hanging from its metal chain. She opened the wooden door and entered the flat. She found the living room in a mess and there were blood stains all over the place. In the toilet adjacent to the kitchen, she saw her mother's lifeless body lying in a prone position, with her face submerged in a pail of water. The pail was placed under a tap which was still running. She called the police.

5 Sergeant Chua Chee San arrived at the flat some minutes later, at about 3.21pm. Sgt Chua noticed that the deceased had sustained multiple injuries on her head, back and neck. Both her wrists had also been severely injured, with the bones exposed. He also saw that there were bloodstains on the toilet wall and the floor of the flat. A bloodstained chopper lay in the kitchen sink. He further observed that there was a trail of blood which ran from the flat to a parking lot numbered “34” behind Block 469.

6 The deceased's husband, one Tan Cheng Guan, upon checking the flat later that evening discovered that a sum of S$6,600 was missing. This amount consisted of S$2,200 in notes and the balance in coins in denominations of 10 cent, 20 cent, 50 cent and S$1.

7 Dr Wee Keng Poh, a forensic pathologist from the Institute of Science and Forensic Medicine who carried out an autopsy on the deceased, noted that she had sustained a total of 58 injuries. The injuries consisted of fatal slash wounds, multiple cuts, bruises, fractures and a ligature mark around her neck. He certified the cause of death to be acute exsanguination or haemorrhage due to multiple slash wounds. Four of the injuries were identified by Dr Wee to be fatal and each of them were sufficient in the ordinary course of nature to cause death. The four fatal injuries were:

(a) injury No 4, a deep slash wound on the left posterior lateral lower neck, measuring 10cm by 0.8cm;

(b) injury No 16, a deep slash wound on the right anterior lateral upper neck, measuring 11cm by 2.5cm;

(c) injury No 44, comprising a set of multiple deep cuts on the back of the deceased's left wrist, causing near total amputation of the wrist, leaving only a strand of skin on the front of the left wrist; and

(d) injury No 49, comprising a set of multiple slash wounds on the right posteromedial hand and lower third forearm, also causing near total amputation of the right wrist.

8 In the opinion of Dr Wee, these fatal injuries were all intentionally inflicted and were not caused accidentally. Injury Nos 44 and 49 were caused by multiple blows of moderate to severe force, severely fracturing the underlying bones. These injuries were sustained while the deceased was on the ground...