Mohamed Kunjo v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Lord Diplock
• Judgment Date: 15 November 1977
• Neutral Citation: [1977] SGPC 2
• Date: 15 November 1977
• Subject Matter: When new defence can be raised,Whether findings of fact should be reviewed,New defence on appeal,Special exceptions,Sudden fight,Section 300 exception 4 Penal Code (Cap 103, 1970 Rev Ed),Criminal Procedure and Sentencing,Privy Council,Appeal,Section 105 Evidence Act (Cap 5, 1970 Rev Ed),Criminal Law,Findings of fact at trial,Burden of proof
• Docket Number: Privy Council Appeal No 35 of 1976
• Published date: 19 September 2003
• Defendant Counsel: Christopher French QC and Stuart McKinnon (Charles Russell & Co)
• Court: Privy Council
• Plaintiff Counsel: Mervyn Heald QC and George Newman (Coward Chance)

Cur Adv Vult

On 11 February 1976 the appellant was found guilty by the High Court of murder, and sentenced to death. Murder being an offence punishable by death, he was tried by a court consisting of two judges, whose decision had to be unanimous for him to be convicted of the offence: Criminal Procedure Code (Cap 113, 1970 Ed) s 185(1) and (2). The trial, which extended over 12 days, was notable for a painstaking and meticulous examination by the two judges of the evidence of eye-witnesses and doctors. The appellant appealed against his conviction to the Court of Criminal Appeal. The appeal was dismissed on 12 August 1976. Now, by special leave granted on 9 December 1976, he appeals against conviction to the Judicial Committee of the Privy Council.

Three questions have been canvassed before this Board:

(1) the cause of death,

(2) whether the appellant was so intoxicated as to be incapable of forming the intent necessary to constitute the offence of murder,

(3) the defence of `sudden fight` which, if proved by an accused, reduces the offence to one of culpable homicide: Exception 4 to s 300 of the Penal Code (Cap 103, 1970 Ed) and s 105 of the Evidence Act (Cap 5, 1970 Ed).

At the time of his death the deceased was 54 years of age and was employed as a lorry driver. The appellant was also 54 years of age and was employed as a lorry attendant by the same firm. The two men were friends. Both of them lived at No 8 Pulau Saigon Road, where they had separate rooms in a store belonging to their employer. The store was adjacent to a yard, which was used for a variety of industrial purposes including the loading, unloading, and parking of lorries.

On 25 May 1975, a Sunday, their employer`s manager, Tan Chwee Siong, who gave evidence, went to the store at about 7.40pm to ask the two men to load and deliver some timber that night. As soon as he approached them, he realized they were highly intoxicated. He, therefore, made no request of them but told them to go and sleep. He went to this office where shortly before 8pm they asked if they could do the job the following morning. He agreed, and left. He said they were, when he saw them in his office, unsteady on their feet.

There then occurred the incident in which the deceased lost his life. The trial judges, faced with conflicting evidence of two eye-witnesses, Phasaram Misa, an office boy aged 16, and Saeroen bin Rakiman, an old man (76 years old), accepted the evidence of Misa in preference to that of Saeroen whom they found to be an unreliable witness. Misa first saw the appellant and deceased sitting on a stack of poles. The two men were talking loudly and laughing. They got down from the stack and then began to argue. The argument degenerated into wrestling. As they grappled with each other, they fell down, got up, and fell down again. This happened several times. They punched each other, as they fought. Suddenly the appellant ran toward the store of No 8 Pulau Saigon Road, where a lorry was parked, and returned with the exhaust pipe of a motor vehicle. He then rushed at the deceased, who was standing up, and delivered one blow on his head with the exhaust pipe. The deceased tried to defend himself with his hands, but almost at once fell to the ground. The appellant then hit at his head three or four times with the exhaust pipe. He then threw the exhaust pipe on the ground, and walked away. The deceased was lying in a pool of blood. When the ambulance arrived at 9pm, the deceased was found to be dead.

The appellant was medically examined at the Changi Prison Hospital at about 2.30am. The doctor noted that his breath smelt of alcohol, that his gait was staggering, and that he had a sub-conjunctival haemorrhage in the right eye and that he had an abrasion of some five inches over the back of the right forearm. When his blood was analysed, it was found to contain 100 mg of alcohol per 100 ml of blood. An autopsy of the deceased revealed the following fractures:

(1) comminuted fractures in the region of the left forehead,

(2) comminuted fractures involving both temporal bones (ie behind each ear),

(3) a fracture line across the base of the skull.

Dr Seah, who conducted the autopsy, also gave evidence and was subjected to a prolonged cross-examination by defence counsel, in the course of which he conceded that there was a number of possibilities as to the cause of death including that of a fall. He concluded that the fractures to the left forehead occurred after death because they were not associated with any haemorrhage, and gave as his opinion that most probably the deceased died of a fractured skull resulting from two blows with a blunt instrument behind the ears.

The appellant did not give evidence, but made an unsworn statement from the dock. In a short statement made by him under caution, and given in evidence, he said:

The fight started because I told Arunmugam not to drink when he drove lorries. He got angry and punched me on the eye. He also used a wood to hit me on my left hand. I got angry and hit him back. I do not remember with what I hit him. I had no intention to kill him. I did not know he will die. That`s all.

The trial judges found that the deceased was standing up when the appellant delivered the first blow, that the cause of death was a fractured skull, and that the appellant inflicted the fatal blows. In their grounds of decision they dealt at length with what they said was `the main question` for their consideration, namely the appellant`s intention, and stated their conclusion in...