Public Prosecutor v Lim Ah Seng

• Jurisdiction: Singapore
• Judge: Sundaresh Menon JC
• Judgment Date: 07 July 2006
• Neutral Citation: [2006] SGHC 122
• Court: High Court (Singapore)
• Published date: 12 July 2006
• Year: 2006
• Plaintiff Counsel: Edwin San and Ong Luan Tze (Deputy Public Prosecutors)
• Defendant Counsel: Subhas Anandan and Sunil Sudheesan (Harry Elias Partnership)
• Subject Matter: Criminal Law,Offences,Culpable homicide not amounting to murder,Section 304(b) Penal Code (Cap 224, 1985 Rev Ed),Criminal Procedure and Sentencing,Sentencing,Principles and factors to consider,Unique combination of extenuating circumstances,Accused victim of prolonged abuse by deceased,Accused not aggressor and not armed,Whether accused deserving of lesser sentence
• Citation: [2006] SGHC 122

7 July 2006

Sundaresh Menon JC:

1 The sanctity of human life is a fundamental idea upheld by every civilised society. It is so zealously upheld in ours that in the appropriate case, the taking of another’s life is visited with the ultimate sanction of a capital sentence. However, a basic tenet of a civilised system of criminal justice is that offences are defined according to differences in their key elements. Thus the taking of a human life, though almost always deserving of society’s opprobrium, must be seen in a proper light having regard to such matters as the state of mind of the accused person and the circumstances in which he did the deed.

2 This is reflected in our law in the range of offences that are prescribed to cover the taking of human life. These include murder which carries a mandatory death sentence, culpable homicide not amounting to murder, and the causing of death by a rash or negligent act not amounting to culpable homicide. There are crucial differences between each of these and the differences tend to lie in the circumstances in which life has been taken and the mental element which accompanied that.

3 The accused pleaded guilty before me to a charge of culpable homicide not amounting to murder under s 304(b) of the Penal Code (Cap 224, 1985 Rev Ed). That section provides as follows:

Whoever commits culpable homicide not amounting to murder shall be punished —

(a) ...

(b) with imprisonment for a term which may extend to 10 years, or with fine, or with both, 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.

[emphasis added]

4 It may be seen that the offence is made punishable under s 304(b) of the Penal Code where the mental element does not encompass the intention to cause death but rather the act has been done with the knowledge that it is likely to cause death.

The facts

5 The charge arises out of a tragic incident that took place on the night of 25 October 2005. The accused and the deceased had been married since 1998 but their marriage had run into difficulties following the abortion of a child the deceased had conceived in 2003. There followed a horrendous period in the life of the accused when he was subjected to repeated physical and psychological abuse by the deceased.

6 According to the report of the consultant psychiatrist, Dr Tommy Tan of the Institute of Mental Health, at the time of the offence, the accused was suffering from an abnormality of mind, post-traumatic stress disorder, caused by the repeated physical and psychological abuse he had been subjected to by the deceased. On account of this, Dr Tan was of the view that the accused was entitled to rely upon the defence of diminished responsibility. This is provided for in Exception 7 to s 300 of the Penal Code which states that culpable homicide is not murder if the accused was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts in causing the death.

7 Mr Subhas Anandan who appeared for the accused in this case submitted that on the facts before me, this was but one of the mitigating factors his client could have relied upon to take his case outside the ambit of murder or culpable homicide under s 304(a) where the required mental element is the intent to cause death or such bodily injury as is likely to cause death.

8 Returning to the factual narrative, the accused had been estranged from the deceased. He sought help from the Ministry of Community Development, Youth and Sports and even spent some time in a shelter. It is not surprising that Mr Anandan described his client as a “battered husband”. In any event, the accused managed to avoid contact with the deceased for some months prior to the incident.

9 On 25 October 2005 at about 6.00pm, the accused received a phone call from the deceased who told him that she wanted to go to his mother’s home to see their six-year-old daughter, Angel (“Angel”). The accused told her to proceed on her own.

10 At about 7.00pm, the accused returned home to his residence. He took a bath, did his laundry, and just as he was about to leave for dinner, the deceased arrived at his home. She told him that she had come to his house as she did not have the keys to his mother’s house.

11 There followed a conversation in the course of which the deceased informed the accused that she wanted to bring Angel to Jakarta. The accused was not agreeable and they quarrelled, the deceased raising her voice at the accused. After this had gone on for a while, the deceased apparently invited the accused to make love to her, as they had not seen each other for a long time. The accused agreed, and they then engaged in sexual intercourse following which the deceased went to the bathroom to wash herself while the accused remained in the bedroom.

12 When the deceased returned to the bedroom, she again raised the subject of taking Angel to Jakarta, and added that if the accused were to refuse, she would lodge a police report against the accused for raping her. An argument broke out again in the course of which the deceased slapped the accused on his face. She also told him that as she had a record with the Institute of Mental Health, it would be alright for her to kill him. She then rushed into the kitchen and tried to grab a knife, but was stopped by the accused. The deceased then ran back into the bedroom. The accused followed her, in an attempt to prevent her from throwing things around, which she apparently was accustomed to doing during such quarrels.

13 It was about 9.00pm, when their quarrel in the bedroom took a turn for the worse. The deceased slapped the accused again and then strangled him by squeezing his throat and neck. The accused felt pain and finally retaliated by squeezing the deceased’s throat and neck, thus strangling her. After a while, he felt that her grip on his neck had loosened, and he realised that she had fallen down and become motionless. The accused called out to her and tried to wake her up, but to no avail.

14 The accused then called his mother and shortly after this, at about 9.24pm, police officers and officers from the Singapore Civil Defence Force arrived at the scene. They saw the accused sitting shirtless in the living room of his residence. The accused went to the kitchen and came back to the living room with two knives. There he apparently stabbed himself in the thighs. He initially refused entry to the officers and threatened to kill himself. Officers from the Police Crisis Negotiation Unit were called in to handle the situation and a few hours later, the accused surrendered to the police and was arrested.

15 The deceased was found lying motionless on the floor of the bedroom. She was pronounced dead at 12.42am. The pathologist certified the cause of her death as asphyxia due to manual strangulation.

Sentencing considerations

16 Where in relation to a particular offence, the court is given a wide discretion in terms of the punishment it may impose, it is critical that it exercises that discretion, so as far as possible, in a manner that remains faithful to two essential legal principles:

(a) that the punishment fits the crime having regard to the circumstances attending the case before the court; and

(b) that like cases be treated alike.

17 The following passage from the judgment of Choo Han Teck J in PP v Wan Chin Hon [2005] SGHC 121 at [5] is instructive:

The punishment for culpable homicide not amounting to murder under s 304(b) is a range of imprisonment that may extend to ten years, or a fine, or both imprisonment and fine. The sentencing of an offender requires a steadfast devotion to two broad principles – the principle that like cases must be treated alike, and that each case must be assessed on its own merits. These principles are more easily stated than applied. In the case of the act of causing death, the law discriminates a number of categories of culpability, and the range of sentences prescribed varies accordingly. The sentence in each case must be assessed according to such considerations as are right, proper, and fair. It is with these considerations in mind that I feel justified in taking into consideration the maximum punishment of two years’ imprisonment for the offence (under s 304A of the Penal Code) of causing death by a rash or negligent act, and comparing that to a case such as the present in which death was caused with the knowledge that the act was likely to result in death. Further, I think that such comparisons are proper only if one is also mindful that the base (minimum sentence) is one day’s jail in each of the two cases, and not that the punishment for a s 304(b) offence begins where that in s 304A leaves off, namely, a term of imprisonment of more than two years.

18 It is also instructive to have regard to what was said by the Court of Appeal in PP v Tan Kei Loon Allan [1999] 2 SLR 288 at [33]:

We were of the view that it is not desirable, unlike simple rape, to set a benchmark for culpable homicide. The range of circumstances in which such offences are committed is extremely varied, as our brief survey of the reported cases demonstrates. They are not easily classified, and there is no such thing as a ‘typical’ homicide. Similarly, to classify all culpable homicides as more serious than all rapes is overly simplistic. … Sentencing for culpable homicide should remain a matter within the trial judge’s discretion (subject to our power to review a decision made in error, or which is manifestly excessive or inadequate), and should be determined on the facts of each particular case.

19 With those preliminary observations, I turn to the case before me. There is no doubt that the taking of a human life is always a tragedy and it is none the less so here. However, to the extent one may seek extenuating circumstances, there is in my view an abundance of them...