Public Prosecutor v P Mageswaran and another appeal

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] SGCA 22
• Plaintiff Counsel: Kow Keng Siong, Tan Zhongshan, Kelly Ho and Alexander Woon (Attorney-General's Chambers)
• Docket Number: Criminal Appeals Nos 36 and 37 of 2017
• Date: 11 April 2019
• Hearing Date: 21 February 2019
• Subject Matter: Offences,Criminal Law,Sentencing,Culpable homicide,Criminal Procedure and Sentencing
• Published date: 17 April 2019
• Defendant Counsel: Derek Kang Yu Hsien (Cairnhill Law LLC), Amogh Chakravarti (Dentons Rodyk & Davidson LLP) and Chong Yi Mei (Patrick Ong Law LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2019] SGCA 22
• Year: 2019

Steven Chong JA (delivering the judgment of the court):

These appeals arose from the decision of the High Court Judge (“the Judge”) in convicting the appellant (“the accused”) of culpable homicide not amounting to murder under s 299, punishable under s 304(a) of the Penal Code (Cap 224, 2008 Rev Ed). It is however material to highlight that the accused was charged and convicted for committing an act by which death was caused with the intention of causing the victim’s death – the most serious form of mens rea under s 299. The accused was however not sentenced to the maximum sentence of life imprisonment under s 304(a). He was instead sentenced to 18 years’ imprisonment.

Several interesting issues have emerged from the appeals. This judgment will examine the treatment of the three different levels of mens rea under s 299 and how each of them would impact on the eventual sentence under s 304. In doing so, we will bear in mind that there are aspects of s 299 which are co-extensive with the offence of murder under s 300(a) and how the exercise of prosecutorial discretion to proceed with a charge under s 299 instead of s 300(a) can impact the Prosecution’s burden in seeking for life imprisonment in relation to an act by which death was caused with the intention to cause the victim’s death. Finally, we will also address the Prosecution’s case that the default position for a conviction under s 304(a) should be life imprisonment and if this is not accepted, indicate when such a sentence would be warranted.

Facts

The accused was a family friend of the victim, Mdm Kanne Lactmy. He had come to know the victim through her sons. The victim’s younger son, Sivakumar s/o Chinapan (“Mr Sivakumar”), testified below that his elder brother had previously employed the accused.

The victim lived in a flat in Yishun with Mr Sivakumar and his family. On 9 December 2013, the day when she was killed by the accused, Mr Sivakumar and his family were away on holiday; she was all alone in the flat.

The accused lived with his wife, Parameswary A/P Thimparayan (“Mdm Parameswary”), in a rented room in a flat in Johor Bahru, Malaysia. On the day of the offence, the accused had asked Mdm Parameswary about the payment schedule for their new flat in Johor Bahru. The accused told her that he would try to convince his employer to lend them some money. He also told her that he would be collecting $2,000 in tontine money that day. With that, he left home at 6.30am. He returned later that afternoon around 1pm to 2pm. What happened in the interim would have been beyond Mdm Parameswary’s contemplation.

The accused had gone to the victim’s flat in Yishun. He wanted to borrow money from either Mr Sivakumar or the victim. When he reached the flat, the victim invited him in. She offered to make him some coffee. As he was having his coffee, the accused told the victim that he needed to borrow $2,000 to $3,000 to pay the deposit for his new flat. The victim replied that she did not have that much money. The victim then went to the toilet to brush her teeth. While she was there, the accused searched each of the three rooms in the flat for valuables. He found nothing in the first two rooms. He then entered the master bedroom. He forced open the locked cupboard door and found a box containing jewellery. He decided to steal the box of jewellery.

As he was holding the box, the victim entered the master bedroom. The accused placed the box on the bed. He pleaded with the victim to let him keep the jewellery. He promised to repay her the money in instalments. The victim refused. She threatened to call Mr Sivakumar. He pleaded with her not to do so. The victim came closer to him. That was when matters took an unfortunate turn.

The accused shoved the victim hard. She fell onto the floor. He knelt down over her; she struggled and pleaded with him to let her go. He grabbed a pillow lying nearby and covered her face with it. With his left hand, he grabbed her neck at the same time. After about three to four minutes, he released his left hand, as he felt tired. He continued pressing the pillow down on her face. The victim struggled throughout the entire ordeal, which lasted for about ten minutes. The accused only removed the pillow at the end of those ten minutes or so when he noticed that the victim was no longer struggling. He threw the pillow onto the bed. At this moment, he noticed that the victim was gasping for air, eyes open. He took the box of jewellery and left the flat.

When he arrived back in Johor Bahru that day, the accused called Mdm Parameswary and told her that he had collected $2,000 from his employer and another $2,000 in tontine money. He also bought jewellery for her. Over the next few days, he gave his wife various sums of money as well, including RM5,000 to pay the deposit for the new flat.

On 17 December 2013, the couple had a heated argument. Mdm Parameswary insisted on going to Singapore to verify with the accused’s employer that he had really taken a loan. While they were at the Woodlands immigration checkpoint, the accused was placed under arrest.

Procedural history

The accused claimed trial to the following charge of culpable homicide not amounting to murder, an offence under s 299, punishable under s 304(a) of the Penal Code:

That you … on 9 December 2013, sometime between 8.41am and 9.40am, at Blk 875 Yishun Street 81, #02-179, Singapore, did cause the death of one Kanne Lactmy … female / 62 years old, to wit, by strangling the said Kanne Lactmy with your hand and pressing a pillow on the said Kanne Lactmy’s face, with the intention of causing her death, and you have thereby committed an offence of culpable homicide not amounting to murder punishable under s 304(a) of the Penal Code (Cap 224, 2008 Rev Ed).

However, the accused did not deny that he caused the victim’s death. His sole defence at the trial was that he only had the knowledge that he was likely by his act to cause the victim’s death, and that he should therefore be found guilty of a lesser offence within s 299, punishable under s 304(b) of the Penal Code which attracts a sentence of up to ten years’ imprisonment.

At the end of the trial, the accused was convicted on the charge, ie, under s 304(a) of the Penal Code, for having had the intention to cause the victim’s death. He was then sentenced to 18 years’ imprisonment with effect from 17 December 2013, the date he was placed in remand. Since he was more than 50 years old at the time of sentencing, he could not be caned, by virtue of s 325(1)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). The Judge saw no reason to impose an additional term of imprisonment in lieu of caning given the substantial length of imprisonment already imposed. The accused appeals against the Judge’s decision on conviction and sentence, while the Prosecution appeals against the Judge’s decision on sentence.

Issues on appeal

The only issue in the accused’s appeal against conviction is whether the Judge had erred in finding on the evidence that he had acted with an intention to kill the victim. As there is no denial that the accused caused the victim’s death, it is apparent to us that the underlying purpose behind the accused’s appeal against conviction is not to seek an acquittal altogether but ultimately a reduction in the sentence.

On the assumption that the conviction stands, the issue in the two appeals against sentence is whether the Judge erred in imposing an 18-year imprisonment term on the accused. The Prosecution contends that the gravity of the crime justified a term of life imprisonment; the accused contends that even on a conviction under s 304(a) of the Penal Code, the circumstances of this case only warranted a 12-year imprisonment term.

Issue 1: Whether the accused acted with the intention of causing death

There are three types of mens rea elements under s 299 of the Penal Code for culpable homicide: first, where the act by which death is caused is done “with the intention of causing death” (“the first limb”); second, where the act by which death is caused is done “with the intention of causing such bodily injury as is likely to cause death” (“the second limb”); and third, where the act by which death is caused is done “with the knowledge that [one] is likely by such act to cause death” (“the third limb”).

Section 304, which is the punishment provision for the offence of culpable homicide, provides for a range of punishments where the accused was convicted on the first and second limbs, and for another range of punishments where the accused was convicted on the third limb:

Punishment for culpable homicide not amounting to murder

304. Whoever commits culpable homicide not amounting to murder shall — (a) if the act by which death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, be punished with — (i) imprisonment for life, and shall also be liable to caning; or (ii) imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning; or (b) if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, be punished with imprisonment for a term which may extend to 10 years, or with fine, or with caning, or with any combination of such punishments.

[emphasis added]

The legal principles on the ascertainment of an accused’s intention under the first limb are uncontroversial; the inquiry under the first limb is fully subjective: Public Prosecutor v Sutherson, Sujay Solomon [2016] 1 SLR 632 (“Sutherson”) at [46(a)]; Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 3rd Ed, 2018) (“Yeo, Morgan and Chan”) at para 9.28. Yet, since it is nigh on impossible...