Public Prosecutor v Azlin bte Arujunah and other appeals

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 July 2022
• Neutral Citation: [2022] SGCA 52
• Citation: [2022] SGCA 52
• Court: Court of Appeal (Singapore)
• Published date: 15 July 2022
• Docket Number: Criminal Appeals Nos 17, 24 and 25 of 2020
• Plaintiff Counsel: Mohamed Faizal SC, Senthilkumaran Sabapathy and Norine Tan (Attorney-General's Chambers)
• Defendant Counsel: Gill Amarick Singh (Amarick Gill LLC), Ng Huiling Cheryl (Trident Law Corporation) and Lee Zhe Xu (Wong & Leow LLC),Eugene Thuraisingam and Chooi Jing Yen (Eugene Thuraisingam LLP),Professor Goh Yihan SC (School of Law, Singapore Management University) as amicus curiae.
• Subject Matter: Criminal Law,Complicity,Common intention,Offences,Murder
• Hearing Date: 07 September 2021

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This is a tragic case. Over the course of a week, the respondents poured very hot water on their young son on four occasions and it ended in his death. The respondents had also cruelly abused the child in many other ways in the three months prior to that fatal week. The respondents are Azlin binte Arujunah (“Azlin”) and Ridzuan bin Mega Abdul Rahman (“Ridzuan”). They were jointly tried before the High Court judge (the “Judge”) on six and nine charges respectively of offences involving various acts of physical abuse they committed against their son (the “Deceased”) from July until October 2016. These included one charge of murder under s 300(c) read with s 34 and punishable under s 302(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) brought against each of them (“Murder Charges”). The Murder Charges arose out of the aforementioned four occasions when Azlin and/or Ridzuan intentionally inflicted severe scalding injuries on the Deceased by pouring very hot water on him. We refer to these scalding incidents as Incidents 1 to 4 respectively.

Azlin was solely responsible for Incidents 1 and 3, while Incidents 2 and 4 were carried out by her acting jointly with Ridzuan. Specifically, the Judge found that Azlin and Ridzuan both scalded the Deceased in Incident 2, while Ridzuan was the only one who physically committed the acts in question in Incident 4 (though these acts were intended by Azlin who had instigated Ridzuan). It is undisputed that it was the cumulative scald injury caused by the collective acts of scalding carried out by Azlin and Ridzuan over the four incidents (“Cumulative Scald Injury”) that killed the Deceased. The hot water that the respondents poured on the Deceased was between 70 and 90.5℃, and the undisputed medical evidence was that water hotter than 70℃ would cause mid to deep thermal burns even with minimal contact.

The Judge acquitted Azlin and Ridzuan of their respective Murder Charges primarily because she considered that there was insufficient evidence to infer that the respondents intended specifically to inflict what was referred to as a “s 300(c) injury”. By this, the Judge meant a bodily injury which is sufficient in the ordinary course of nature to cause death. The Judge thought that this had to be shown when a conviction was sought in the context of acts done pursuant to a common intention under s 34 of the Penal Code. The Prosecution then sought the conviction of Azlin alone on the following amended charge under s 300(c) of the Penal Code (“alternative s 300(c) charge”):

You, … are charged that you, between 15 October 2016 and 22 October 2016 (both dates inclusive), at [her home] … did commit murder by causing the death of [the Deceased], to wit, by intentionally inflicting severe scald injuries on him on four incidents, namely: a) On or around 15 to 17 October 2016, you poured/splashed hot water (above 70 degrees Celsius) at the Deceased multiple times [Incident 1]; b) On or around 17 to 19 October 2016, together with Ridzuan bin Mega Abdul Rahman (‘Ridzuan’) and in furtherance of the common intention of you both, both of you splashed several cups of hot water (above 70 degrees Celsius) at the Deceased [Incident 2]; c) On or around 21 October 2016, you threw 9 to 10 cups of hot water (above 70 degrees Celsius) at the Deceased [Incident 3]; and d) On 22 October 2016 at about 12 noon, together with Ridzuan and in furtherance of the common intention of you both, Ridzuan poured/splashed hot water (above 70 degrees Celsius) at the Deceased [Incident 4];

which injuries are cumulatively sufficient in the ordinary course of nature to cause death, and you have thereby committed an offence under s 300(c) read with s 34 in respect of incidents (b) and (d) above, and punishable under s 302(2) of the Penal Code (Cap 224, 2008 Rev Ed).

[emphasis added]

What was somewhat unusual about the alternative s 300(c) charge was that it sought to employ s 34 of the Penal Code not to impose constructive liability for the entire “criminal act” giving rise to the offence in question (which encompassed all of Incidents 1 to 4), but to attribute liability to Azlin for two discrete components (Incidents 2 and 4) that had been carried out by Ridzuan and treating these as part of the entire criminal act (Incidents 1 to 4) that is charged against Azlin.

The Judge rejected the alternative s 300(c) charge for two broad reasons: see Public Prosecutor v Azlin bte Arujunah and another [2020] SGHC 168 (“GD”). The first main reason was her view that s 34 is not a “free-standing principle of attribution” that allows the court to attribute liability for acts done by another that forms a part of the “criminal act” that is the subject of the charge against the accused person (GD at [121]). The second reason was that, in the Judge’s view, for Ridzuan’s acts in Incidents 2 and 4 “to be attributed to Azlin for the purposes of liability under s 300(c) of the Penal Code”, the “common intention they needed to share” was the common intention to inflict a s 300(c) injury (GD at [121]). In coming to the latter view, the Judge relied on what she understood to be this court’s ruling in Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”) to the effect that, if two offenders, A and B, intend to commit a certain offence, say robbery, but in the course of carrying out that intention, one of the offenders, A, commits the offence of murder under s 300(c) of the Penal Code, then B can only be held jointly liable for murder under s 300(c) read with s 34 of the Penal Code if B intended specifically that A should inflict a s 300(c) injury, meaning that B must have intended that an injury that is sufficient in the ordinary course of nature to cause death is inflicted (“Daniel Vijay test”) (see GD at [97]). The Judge found that the Prosecution was not able to prove a common intention to inflict the s 300(c) injury beyond reasonable doubt in this case, and so she held that the alternative s 300(c) charge was not made out (GD at [110] and [121]).

However, Daniel Vijay concerned a “dual crime” scenario (or what was referred to as a “twin crime” scenario in that judgment). This is where multiple offenders commonly intend to commit a primary offence (such as robbery), but one of the offenders (the “primary offender”) then commits an offence that was not part of the common venture (such as murder under s 300(c) of the Penal Code (“s 300(c) murder”)) in the course of committing the primary offence. The Daniel Vijay test was developed to answer the question whether the other offenders (the “secondary offenders”) in such a “dual crime” situation can be held liable for the collateral offence. On the other hand, the present case does not concern such a “dual crime” scenario because only one offence – the murder of the Deceased – had allegedly been committed pursuant to Azlin’s intention, and the alternative s 300(c) charge seeks to hold Azlin liable for that very offence, rather than some other “collateral offence” that had been committed by Ridzuan and that went beyond the scope of Azlin and Ridzuan’s original common intention. However, neither is the present case a “single crime” scenario, since Azlin and Ridzuan did not commonly intend to commit all four scalding incidents. This raises the question of whether there is a difference between “dual crime” and “single crime” scenarios when considering constructive liability under s 34 of the Penal Code, particularly in the context of s 300(c) murder, and whether s 34 can be applied in the present case given that it does not fit neatly into either scenario.

In the event, the Judge amended the Murder Charges to charges of voluntarily causing grievous hurt by means of a heated substance under s 326 of the Penal Code and sentenced Azlin to an aggregate sentence of 27 years’ imprisonment and an additional 12 months’ imprisonment in lieu of caning, and Ridzuan to an aggregate sentence of 27 years’ imprisonment and 24 strokes of the cane. CA/CCA 17/2020 (“CCA 17”) is the Prosecution’s appeal against the Judge’s decision not to amend the Murder Charge against Azlin to the alternative s 300(c) charge. CA/CCA 24/2020 (“CCA 24”) and CA/CCA 25/2020 (“CCA 25”) are the Prosecution’s appeals against the Judge’s decision not to sentence Ridzuan and Azlin respectively to life imprisonment for the amended s 326 charges. This case presents us with the opportunity to clarify the principles and operation of s 34 of the Penal Code and in particular, its operation in the context of murder under s 300(c).

Given the number of issues involved in the present judgment, it is helpful to set out a table of contents for reference:

Facts The respondents and the charges

Azlin and Ridzuan are both Singaporeans and were 24 years’ old at the time of the offences.

Azlin faced the following six charges in the joint trial: the Murder Charge against her (charge marked “C1A”); two charges of ill-treating a child, an offence under s 5(1) punishable under s 5(5)(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”), by hitting the Deceased on his body, back and legs with a broom (charge marked “C2”), and pushing the Deceased on the left shoulder, causing him to fall sideways (charge marked “C3”), both of which were committed in August 2016; one charge of abetment by instigating Ridzuan to voluntarily cause hurt to the Deceased by means of a heated substance, an offence under s 324 read with s 109 of the Penal Code, by using a heated metal spoon to burn the Deceased’s right palm, which caused a blister on his palm, sometime between end-August and early-September 2016 (charge marked “C4”); and two charges of ill-treating a child pursuant to a common intention with Ridzuan, an offence under s 5(1) punishable under s 5(5)(b) of...