Mohamed Kunjo v Public Prosecutor

• Jurisdiction: UK Non-devolved
• Court: Privy Council
• Judge: Lord Diplock
• Judgment Date: 15 November 1977
• Neutral Citation: [1977] SGPC 2
• Citation: [1977] SGPC 2
• Defendant Counsel: Christopher French QC and Stuart McKinnon (Charles Russell & Co)
• Plaintiff Counsel: Mervyn Heald QC and George Newman (Coward Chance)
• Date: 15 November 1977
• Docket Number: Privy Council Appeal No 35 of 1976
• Published date: 19 September 2003
• 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

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...