Public Prosecutor v Ong Jun Yong

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 14 June 2022
• Neutral Citation: [2022] SGMC 37
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate Arrest Case No 902404 of 2020
• Published date: 21 June 2022
• Year: 2022
• Hearing Date: 10 June 2022
• Plaintiff Counsel: DPP Samyata Ravindran and Sruthi Boppana
• Defendant Counsel: Uthayasurian s/o Sidambaram and Divanan s/o Narkunan (Phoenix Law Corporation)
• Subject Matter: Criminal law,Elements of crime,What constitutes a voluntary act for the purpose of attracting criminal liability under the Penal Code?,General defences,Is the common law defence of automatism applicable to an offence under the Penal Code?
• Citation: [2022] SGMC 37

District Judge Kow Keng Siong: Introduction

The accused person, Ong Jun Yong (“the Accused”), claimed trial to the following charge (“the Charge”):

You, Ong Jun Yong … are charged that you, on the 23 November 2019, at about 2.30 am, at Zouk Singapore, located at 3C River Valley Road, Clarke Quay, #01-05 to #02-06, The Cannery, Singapore, did use criminal force to [the Victim], knowing it to be likely that you will outrage her modesty, to wit, by slipping your hand into her v-neck dress and touching her left breast over her bra (“the Offending Act”) and you have thereby committed an offence punishable under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”).

[emphasis and text in square brackets added]

The Defence’s case

The Defence’s case regarding the Charge is as follows:¹ First, the Accused did not commit the Offending Act. Second, even if the Offending Act is proved to have been committed, the Accused ought to be acquitted because the act was involuntary. The Offending Act was committed without the Accused’s control. Specifically, the Accused “was suffering from alcohol intoxication (Acute Alcohol Intoxication) which may have led to reactive hypoglycemia at the material time resulting in a state of automatism”² (“the Accused’s Claim”). The Accused’s Claim is a complete defence to the Charge under the common law defence of non-insane automatism.³ Although the Penal Code does not specifically provide for the automatism defence, this does not preclude the Accused from relying on it. This is because it has been held in Koh Jing Kwang v Public Prosecutor [2015] 1 SLR 7 (“Koh Jing Kwang”) at [44] that s 39 of the Penal Code – which defines the word “voluntarily” as used in the code – embodies the principle that an act must be voluntary before it can attract criminal liability, and this principle has its roots in the common law concept of automatism.⁴ Some Malaysian courts have also recognised the automatism defence.

The Prosecution’s case

The Prosecution accepted that pursuant to s 39 of the Penal Code and Koh Jing Kwang, an accused person cannot be held criminally liable for an involuntary act.⁵

The Prosecution submitted that the Accused’s Claim is legally unsustainable. Their reasons are as follows: An act is involuntary if it is done without the doer exercising deliberative functions of the mind. To determine whether an act is involuntary, a court would have to assess the accused person’s actions proximate to the act. If the evidence shows that the accused person is sufficiently conscious of what he is doing, then he cannot be said to be acting involuntarily.⁶ Furthermore, to recognise the Accused’s Claim as exculpatory would be to allow him to circumvent s 85(1) and s 86(2) of the Penal Code. These provisions stipulate that a criminal act induced by an accused person’s voluntary alcohol intoxication cannot be a defence unless the intoxication renders him unable to form the intention needed to constitute the offence.⁷

Preliminary issues

It is common ground between the parties that an accused person can only be held criminally liable for his act under the Penal Code if it is done voluntarily. Put in another way, an accused person is not liable for an involuntary act.

The Accused’s defence raises the question of what evidence he must show to establish that the alleged Offending Act was involuntary. During the trial, it was agreed that an early determination on this issue can assist parties to make an informed decision on how to conduct their respective case.

Accordingly, after hearing submissions on the issue, I find the applicable principles to be as follows: It is inappropriate to unquestioningly treat the common law defence of automatism as being directly applicable to the Penal Code in determining whether an act is done voluntarily or involuntarily. It is more appropriate to consider how the concept of a voluntary/involuntary act (i) would have been understood at the time the Penal Code was drafted and (ii) had been dealt with under the code. Applying the above approach – A voluntary act is one done consciously, intentionally and purposefully by the doer. An involuntary act is one where the doer is not acting consciously, intentionally, and/or purposefully.

The Defence had also raised the legal issue of whether an act committed as a result of a hypoglycaemic attack triggered by voluntary alcohol consumption attracts criminal liability. I decline to determine this issue given the uncertainty regarding the nature and factual basis of the Defence’s case.

Relevant Penal Code provisions

Before explaining my determinations, I wish to highlight that the offence in the present case allegedly took place on 23 November 2019. The Penal Code has been amended several times since then. The analysis in these grounds of decision will be in the context of the Penal Code provisions applicable at the time of the alleged offence. These provisions are set out in Annex A at the last column of the tables therein.

The common law defence of automatism

At the outset, it will also be helpful to set out the elements of the common law defence of automatism. In summary, control (or rather, the lack of it) is the foundation of the defence. This defence is available to an accused person if he can establish that his criminal act was committed without his control (“uncontrolled act”) and was hence involuntary: Bratty v AG for Northern Ireland [1963] AC 386 (“Bratty”); R v Cottle [1958] NZLR 999.

The common law distinguishes two types of automatism – insane and non-insane automatism. To establish that his act is involuntary by virtue of non-insane automatism, an accused person has the evidential burden of proving the following: First, he had suffered a complete loss of control over the act: Attorney-General's Reference (No. 2 of 1992) [1993] 3 WLR 982; Broome v Perkins [1987] Crim LR 271; Ryan v R (1967) 121 CLR 205; R v Burr [1969] NZLR 736. If the accused person had retained some control over the act, then the defence will fail. The mere fact that the accused person could not control his impulses does not mean that he had acted involuntarily: Bratty. Second, the loss of control was due to an external cause. Examples include reflex action and hypoglycaemia caused by excessive insulin intake: R v Quick [1973] 3 WLR 26. (If the cause of automatism is due to a disease of the accused person’s mind (an internal factor), then this would be a case of insane automatism.) Finally, the accused person’s loss of control was not due to his own fault or self-induced. If the cause for the loss of control is the consumption of alcohol or drugs, then the relevant defence to consider would be that of intoxication and not automatism: R v Bailey [1983] Crim LR 353.

If an accused person is able to discharge his evidential burden, then the Prosecution will have the legal burden to prove beyond a reasonable doubt that he had committed the act voluntarily. A failure to satisfy this legal burden will result in an acquittal.

My decision

Having summarised the common law defence of automatism, I will now explain why I have decided that it is inappropriate to treat the common law defence of automatism as being directly applicable to the Penal Code in determining whether an act is done voluntarily or involuntarily.

No local court has held that the common law defence of automatism is available under Singapore criminal law

The Defence submitted that Koh Jing Kwang and Malaysian courts have recognised that the automatism defence is applicable to Penal Code offences.

I am unable to accept this submission.

Turning first to Koh Jing Kwang, I note that the Defence had relied on the following passage to support their submission: 43 […] The general description of voluntariness in s 39 of the [Penal Code] is premised on a more fundamental principle in common law, which is that a person should not be liable for involuntary behaviour. This principle has its roots in the common law concept of automatism. As the authors in Chan, Yeo and Hor at para 3.2.2 explain:

In general, a person is not liable for involuntary behaviour for the simple reason that he or she has not done anything. At common law, this state is termed ‘automatism’. Hence, if there is evidence that the act was not voluntary, the accused in effect denies that there was in fact an offence. Lack of voluntariness is not a ‘defence’ as such and it remains the Prosecution’s burden to prove beyond reasonable doubt that the act was in fact voluntary.

[emphasis added]

Section 39, which was referred to in Koh Jing Kwang, provides that –

A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.

[emphasis added]

In my judgment, the Defence is reading too much into Koh Jing Kwang. In the very brief passage relied on by the Defence, the High Court was simply referring to the “concept” of automatism in very general terms. This was for the purpose of noting that the principle that accused persons should not be liable for involuntary acts has its origins in the common law. Importantly, I note that the High Court – did not go on to analyse the intricacies of the common law defence of automatism – e.g., the distinction between insane and non-insane automatism and the requirements to satisfy the defence of non-insane automatism, did not find that the automatism cases under the common law are directly applicable under Singapore criminal law, and did not determine what constitutes a voluntary/involuntary act under the Penal Code.

Next, I turn to the Defence submission that Malaysian courts have recognised the automatism defence. Having reviewed the reported Malaysian cases, my findings are as follows: In Public Prosecutor v...