PP v P Mageswaran

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 29 November 2017
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 62 of 2016
• Date: 29 November 2017

Public Prosecutor

and

P Mageswaran

[2017] SGHC 307

Hoo Sheau Peng J

Criminal Case No 62 of 2016

High Court

Criminal Law — Offences — Culpable homicide — Accused caught stealing from deceased — Accused strangling deceased and pressing pillow on deceased's face — Whether accused had intention of causing death or only had knowledge that he was likely by his actions to cause death — Section 299 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Culpable homicide — Whether sentence of life imprisonment warranted — Whether fact that accused suffered from executive deficits relevant to sentencing

Held, convicting the accused on the charge and sentencing him to 18 years' imprisonment:

(1) As regards proving the mens rea, the inquiry under the first limb of s 299 of the Penal Code was fully subjective. Thus, factors specific to the accused, such as any mental condition, should be taken into account. Intention was rarely proven by direct evidence and inevitably had to be inferred from the surrounding circumstances. Thus, when determining if there was intention to kill, the court had to consider all the relevant and admissible evidence, and the relevant personal characteristics of the accused. The relevant evidence would include an accused's evidence in court, what he told the police and the evidence of other witnesses. Importantly, it would also include the nature of the acts themselves: the type of weapon used (if any), the nature, location and number of injuries and the way the injuries were inflicted: at [52].

(2) In the context of a murder charge under s 300(a) of the Penal Code, it was well settled that an intention to cause death could be formed on the spur of the moment, just before the actual killing took place, and did not have to be pre-planned or premeditated. This observation was equally applicable in the context of an inquiry into whether an offender had the intention to cause death for the purpose of the offence under s 299: at [53].

(3) It was abundantly clear that the accused had the intention to cause the death of the deceased. First, the accused had not only strangled the deceased but suffocated her. The accused admitted to knowing that either strangulation or suffocation alone could cause a person to die. Second, the accused had strangled and suffocated the deceased for a prolonged period of time. Third, the accused had applied severe force in strangling the deceased, which was evident from the fractures of the deceased's hyoid bone and thyroid cartilage and his admission that his left hand was tired after three to four minutes of strangling the deceased. The accused had also applied a significant degree of force in suffocating the deceased: at [71].

(4) The maximum sentence of life imprisonment was not warranted. First, the accused's offence was not premeditated. The accused's decision to kill the deceased was made on the spur of the moment. Second, the cruelty involved in the accused's acts was confined to the very acts which caused death. There was no exceptional cruelty, and certainly no added element of inhumaneness in the accused's conduct, which would have placed the case at the end of the spectrum as being one of the worst type of cases of culpable homicide. Third, there were no aggravating factors as submitted by the Prosecution. In particular, the accused had not abused the deceased's trust: at [99] to [103].

(5) The accused had proved on a balance of probabilities that he suffered from executive deficits at the time of the offence. In determining the appropriate length of the sentence, the court took this into account as a mitigating factor: at [107] and [112].

(6) A sufficiently long sentence in the interest of specific deterrence was needed because the accused had committed a series of robbery offences in 2007 (which were also violent crimes) and had a long string of property-related offences: at [113] and [114].

(7) Based on the sentencing precedents, a sentence longer than 14 to 15 years' imprisonment, and between 18 to 20 years' imprisonment, was warranted: at [116] to [119].

(8) A sentence of 18 years' imprisonment was imposed to punish the accused for a heinous crime in which he unnecessarily took away a life, to deter him from committing further offences and to serve as a general signal that such acts were not to be condoned. Given the substantial length of the imprisonment term, the court saw no reason to impose a further term of imprisonment in lieu of caning: at [120].

Case(s) referred to

Amin bin Abdullah v PP [2017] 5 SLR 904 (folld)

Chang Kar Meng v PP [2017] 2 SLR 68 (folld)

Dewi Sukowati v PP [2017] 1 SLR 450 (refd)

Iskandar bin Rahmat v PP [2017] 1 SLR 505 (folld)

PP v Nurhayati Criminal Case No 29 of 2012 (refd)

PP v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 (refd)

PP v Sutherson, Sujay Solomon [2016] 1 SLR 632 (folld)

PP v Tan Kei Loon Allan [1998] 3 SLR(R) 679; [1999] 2 SLR 288 (folld)

PP v Tan Keng Huat Criminal Case No 25 of 2011 (refd)

PP v Tan Teck Soon [2011] SGHC 137 (refd)

PP v Vitria Depsi Wahyuni [2013] 1 SLR 699 (refd)

Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983; [2007] 2 SLR 983 (folld)

Sim Gek Yong v PP [1995] 1 SLR(R) 185; [1995] 1 SLR 537 (folld)

Tan Chee Hwee v PP [1993] 2 SLR(R) 493; [1993] 2 SLR 657 (distd)

Facts

The accused was a family friend of the deceased. On the morning of 9 December 2013, the accused went to the deceased's flat to borrow money either from the deceased or her son. The deceased told the accused that she did not have the money. While the deceased was in the toilet, the accused searched the rooms in the deceased's flat. He found a box of jewellery in the master bedroom and decided to steal it.

While the accused was taking the box, the deceased came into the master bedroom and asked him what he was doing. The accused pleaded with the deceased to let him keep the jewellery but she refused. The deceased asked the accused to return the box, failing which she would call her son. The accused pushed the deceased and she fell onto the floor. The accused placed a pillow on her face to stop her from screaming. He also used his hands to grab her neck. After about 10 minutes, the deceased stopped struggling. The accused removed the pillow and noticed the deceased gasping for air, her eyes still open. The accused took the box and left the house. The deceased was found by a neighbour and conveyed to hospital where she was pronounced dead that afternoon.

The accused face a charge of culpable homicide not amounting to murder, an offence under s 299 punishable under s 304(a) of the Penal Code (Cap 224, 2008 Rev Ed). The accused did not deny that he had caused the deceased's death. However, parties contested the mens rea possessed by the accused at the material time. The Prosecution framed the charge based on the first limb of s 299 – that the accused had the intention of causing death. The Defence contended that all the accused had was knowledge that he was likely by his acts to cause death – the third limb within s 299 – and that the accused was guilty of what was in effect a less serious offence.

The Prosecution pressed for the maximum sentence of life imprisonment on the basis that the present case fell within the range of the worst type of cases of culpable homicide. The Defence urged the court to impose 12 to 14 years' imprisonment and contended that there was no ground to order imprisonment in lieu of caning (the accused was more than 50 years old at the time of sentencing and, by law, he could not be caned).

Legislation referred to

Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 1985 Rev Ed) s 6(1)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 22, 23, 325(1)(b)

Penal Code (Cap 224, 1985 Rev Ed) ss 294, 300(c), 304(b), 376(1), 379, 380, 392, 397

Penal Code (Cap 224, 2008 Rev Ed) ss 299, 300, 300(a), 302, 304, 304(a), 304(b), 380

Wong Kok Weng, Kelly Ho Yan-QingandJoshua Rene Jeyaraj(Attorney-General's Chambers) for the Public Prosecutor;

Derek Kang Yu Hsien (Ho & Wee LLP), Amogh Nallan Chakravarti (Dentons Rodyk & Davidson LLP) andChong Yi Mei (Patrick Ong Law LLC) for the accused.

29 November 2017

Hoo Sheau Peng J:

Introduction

1 The accused claimed trial to the following charge of culpable homicide not amounting to murder, an offence under s 299 and punishable under s 304(a) of the Penal Code (Cap 224, 2008 Rev Ed):

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).

2 By way of overview, it was undisputed that the accused knew Mdm Kanne Lactmy (“the deceased”). On 9 December 2013, the accused went to the deceased's flat at Yishun (“the flat”) to borrow money. However, the deceased refused his request. While the deceased was in the kitchen, the accused searched the flat. When he tried to steal a box of jewellery, the deceased caught him in the act. A confrontation ensued, during which the deceased lost her life. The accused did not deny that he caused the deceased's death. His defence was that he did not have the intention to cause death, only the knowledge that he was likely by his act to cause death, and he should therefore only be found guilty of a lesser offence within s 299, punishable under s 304(b) of the Penal Code.

3 At the conclusion of the trial, I convicted the accused on the charge. Having heard parties' submissions on sentence, I sentenced the...