Public Prosecutor v Miya Manik and another appeal and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 11 November 2022
• Neutral Citation: [2022] SGCA 73
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 16 and 26 of 2020 and Criminal Motion No 21 of 2022
• Published date: 16 November 2022
• Year: 2022
• Hearing Date: 11 November 2022
• Plaintiff Counsel: Kumaresan s/o Gohulabalan, Andre Chong and Grace Chua (Attorney-General's Chambers)
• Defendant Counsel: Eugene Thuraisingam, Chooi Jing Yen and Ng Yuan Siang (Eugene Thuraisingam LLP)
• Subject Matter: Criminal Law,Complicity,Common intention,Offences,Murder,Criminal Procedure and Sentencing,Sentencing
• Citation: [2022] SGCA 73

Tay Yong Kwang JCA (delivering the judgment of the court ex tempore): Introduction

CA/CCA 16/2020 (“CCA 16”) and CA/CCA 26/2020 (“CCA 26”) are cross-appeals against the decision of the High Court Judge (the “Judge”) in HC/CC 20/2019 (“CC 20”). In CC 20, the accused, Miya Manik (“Manik”) was tried on a single charge with two alternatives, namely, a charge under s 300(c) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (the “Original Charge”) and in the alternative, a charge under s 300(c) of the Penal Code read with s 34 of the Penal Code (the “Common Intention Charge”). He was acquitted on both alternatives and was convicted instead on a charge under s 326 of the Penal Code read with s 34 of the Penal Code (the “Substituted s 326 Charge”) substituted by the Judge. Manik was sentenced to 15 years’ imprisonment and 15 strokes of the cane, with the imprisonment backdated to the date of his arrest, 30 September 2016.

CCA 16 is the Prosecution’s appeal against the acquittal of Manik on the Common Intention Charge. CCA 26 is Manik’s appeal against sentence on the Substituted s 326 Charge. In addition, the Prosecution has also applied by way of CA/CM 21/2022 (“CM 21”) to amend its petition of appeal in CCA 16 to include the legal position clarified in Public Prosecutor v Azlin binte Arujunah and other appeals [2022] SGCA 52 (“Azlin”) that the test set out in Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 ("Daniel Vijay”) applies to dual crime scenarios while the test in Virsa Singh v State of Punjab AIR 1958 SC 465 (“Virsa Singh”) continues to apply to single crime scenarios. As the Judge’s decision was made in 2020 and the decision in Azlin was delivered in July 2022, we allowed the amendment sought in CM 21.

Factual background

Manik, aged 27 at the material time, is a male Bangladeshi who was working in Singapore. He was a member of a syndicate (“Syndicate 1”) that controlled the sale of contraband cigarettes at a field at Tuas South Avenue 1 in the latter half of 2016. Other members of Syndicate 1 included one “Aziz” and one “Mitho”. The deceased, Munshi Abdur Rahim (“the Victim”) was a member of another contraband cigarette syndicate (“Syndicate 2”) which was vying for control over contraband cigarette sales at the same field. The Victim was 32 years old at the time of the incident.

The Victim’s tragic death occurred as a result of an incident during the night of 24 September 2016 between members of the two rival syndicates, with Syndicate 1 seeking to monopolise the illegal trades at the said field. After a meeting at a canteen at around 7.00pm that night, members of Syndicate 1 proceeded towards the field, many of them armed with choppers. When they had reached the field, one of them approached the Victim and asked him why he was selling cigarettes in that area. Manik knew the Victim from a previous construction project that he had worked in. Manik went to speak to the Victim and shook his hand. One of the members of Syndicate 1 suggested that they talk at Tuas South Avenue 6 and the group of men started moving in that direction.

At this point, confusion erupted. The source of the confusion was unclear. According to one member of Syndicate 1, all of a sudden, another member, Aziz, wielded a knife and shouted: “Let’s chop hard this son of a bitch.” He testified that Aziz was “like that”, and that he “gets into [a] fight before everybody … else”. According to other members of Syndicate 1, there were shouts warning about police presence, following which people started running.

The Victim started running away. The evidence was that Aziz, Mitho, Manik and a few others (all members of Syndicate 1) started chasing the Victim who stumbled and fell. Aziz, Mitho, Manik caught up with the Victim and Mitho kicked the Victim. The three men then attacked the Victim with choppers while he was struggling and kicking on the ground. There were chopping motions made by the three attackers. Somehow, the Victim managed to get up and ran away from his attackers. The attackers did not give chase this time but turned to run towards where they came from. This incident from the time the Victim ran and fell up to the time he hobbled away was recorded fortuitously by a camera installed in a bus parked nearby (the “Video Footage”). This incident was recorded as having happened at 9.47pm for about nine seconds. As the area was not well lit, the Video Footage could not provide clear images.

The Victim managed to run some distance away before he phoned the police to report that “[p]eople chopped me with knife”. When the police and the ambulance arrived, the Victim was lying on his back in a pool of blood, with most of the bleeding coming from his lower left leg. He was pronounced dead at the hospital.

It was not disputed that the cause of death was acute haemorrhage due to incised wounds at the left leg and the back of the Victim. The incised wound at the left leg was identified as the fatal injury (“the Fatal Injury”) as it could have caused significant haemorrhage individually sufficient to cause death in the ordinary course of nature. The wound at the Victim’s back resulted in significant haemorrhage that contributed to death. The other injuries were relatively superficial and did not have a significant bearing on the death of the Victim.

In the meantime, Manik and several other Syndicate 1 members left in a taxi. Several of them went to the East Coast Park to discuss the events that happened earlier. Instead of returning to their dormitories, Manik and a few others went to stay in a hotel in Geylang. Thereafter, Manik stayed with a friend until his arrest on 30 September 2016 at a construction site in Tampines.

The charges

Manik was tried on the following Original Charge with the Common Intention Charge as its alternative:

That you, Miya Manik,

on 24 September 2016, at or about 9.47 pm, at the vicinity of Tuas View Dormitory located at 70 Tuas South Avenue 1, Singapore, did commit murder by causing the death of Munshi Abdur Rahim “the deceased”), to wit, by slashing the deceased’s left leg with a chopper, causing the deceased to suffer, inter alia, a 16 x 4 cm deep oblique incised wound on the proximal part of the lateral aspect of the left leg, with intention to cause said bodily injury, which injury is sufficient in the ordinary course of nature to cause death, and you have thereby committed an offence under s 300(c), punishable under s 302(2) of the Penal Code (Cap 224, 2008 Rev Ed).

Alternatively,

on 24 September 2016, at or about 9.47 pm, at the vicinity of Tuas View Dormitory located at 70 Tuas South Avenue 1, Singapore, together with two unidentified males known as “Aziz” and “Mitho”, and in pursuance of the common intention of you three, did commit murder by causing the death of Munshi Abdur Rahim “the deceased”), to wit, by slashing the deceased’s left leg with a chopper, causing the deceased to suffer, inter alia, a 16 x 4 cm deep oblique incised wound on the proximal part of the lateral aspect of the left leg, which injury is sufficient in the ordinary course of nature to cause death, knowing it likely that such injury would be caused, and you have thereby committed an offence under s 300(c) read with s 34 and punishable under s 302(2) of the Penal Code (Cap 224, 2008 Rev Ed).

Aziz and Mitho, the co-accused persons named in the Common Intention Charge, were not arrested. While some members of Syndicate 1 were called to testify, they could only relate what happened up to the point where confusion erupted and people started to disperse. The only evidence concerning the events leading up to the Victim running away and the attack by Manik, Aziz and Mitho therefore came only from Manik and the Video Footage.

The Judge’s decision

The Judge considered the evidence and concluded that each of the three attackers was armed with a chopper. Manik had claimed that he only had a wooden stick with him. The Judge held that while the Video Footage showed that it was either Aziz or Manik who inflicted the Fatal Injury, it was not clear who it was really was. However, the Judge also found that whoever inflicted the Fatal Injury had done so intentionally and not accidentally. As the Prosecution could not prove beyond reasonable doubt that Manik was the one who inflicted the Fatal Injury, the Original Charge was not proved.

In considering the Common Intention Charge, the Judge stated that it was clear from Public Prosecutor v Chia Kee Chen and another appeal [2018] 2 SLR 249 that it was the common intention to inflict the particular Fatal Injury that was crucial and it was not necessary to ascertain who struck the Fatal Injury, so long as the court was able to infer beyond reasonable doubt that the requisite common intention was shared by the participants. The Judge then referred to Daniel Vijay, where the Court of Appeal held that where a secondary offender was charged with murder under s 300(c) read with s 34 of the Penal Code, it was necessary to consider whether there was a common intention among all the offenders to inflict a s 300(c) injury on the Victim (the inflicting of such injury being the criminal act which gave rise to the offence of s 300(c) murder). The Judge held that in the context of s 300(c) read with s 34, the requisite intention is the common intention to inflict a s 300(c) injury. She disagreed with the Prosecution’s submissions that the common intention only needed to be to inflict the injury and the question whether it was sufficient in the ordinary course of nature to cause death was to be determined objectively, similar to the requirements for individual liability under s 300(c) as set out in Virsa Singh.

The Judge held that the evidence suggested that there was no plan to cause s 300(c) injury from the outset when Syndicate 1 members met earlier in the evening of 24 September 2016. The evidence indicated...