Shaiful Edham bin Adam and Another v Public Prosecutor

JurisdictionSingapore
Judgment Date19 February 1999
Date19 February 1999
Docket NumberCriminal Appeal No 13 of 1998
CourtCourt of Appeal (Singapore)
Shaiful Edham bin Adam and another
Plaintiff
and
Public Prosecutor
Defendant

[1999] SGCA 94

Yong Pung How CJ

,

L P Thean JA

and

Tan Lee Meng J

Criminal Appeal No 13 of 1998

Court of Appeal

Criminal Law–Murder–Proof of common intention–Knowledge that participation in act causing death of deceased–Inference of common intention only if deducible from circumstances of case–Whether pre-arranged plan necessary to finding common intention–Applicable principles–Sections 34 and 302 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Law–Murder–Series of acts–Coincidence of mens rea and actusreus–Whether acts can be separated–Applicability of Thabo Meli approach–Criminal Procedure and Sentencing–Appeal–Findings of fact–Appellate court not to disturb findings of fact unless findings clearly against weight of evidence

The appellants were convicted of committing murder in furtherance of a common intention. They did not dispute that the deceased received stab wounds on her neck and jaw at the first appellant's flat and her body was later thrown into a canal. The certified cause of death was “multiple incised wounds on neck and drowning”. According to the pathologist, the deceased was already on the brink of death when her body was thrown into the canal. Both appellants gave statements implicating each other in the deceased's death. Their accounts of the incident differed as each attempted to push responsibility for causing the deceased's fatal injuries on the other. Both appellants, however, admitted to disposing the deceased's body in a canal after the incident. The trial judge accepted Prosecution evidence that a few days before the incident, the first appellant had professed his intention to kill the deceased to a witness and even offered the latter money to help dispose the body. The trial judge also found that although the evidence was inconclusive as to which of the appellants had caused some of the injuries, either one of them had acted in pursuance of their common object to kill.

On appeal, both appellants contended that they did not share a common intention to commit murder. The first appellant argued that (a) he had merely caused one of the injuries to the deceased's neck and that this was accidental, and (b) he had thrown her into the canal thinking that she was already dead. The second appellant claimed that he had assisted the first appellant because he was in shock and terrified of the latter as he had threatened to implicate him.

Held, dismissing the appeal:

(1) Where different participants committed different acts in a criminal enterprise, they might still be regarded as having done “a criminal act” for the purposes of liability under s 34. That section was designed to meet the situation where it was difficult, if not impossible, to distinguish between the acts of each individual member of a party or to prove precisely what part was played by each of them. Section 34 operated to impute liability to a participant who contributed to a result, though he could not be proved to have committed the actus reus himself. The Prosecution was only required to prove that a common intention existed between all the persons involved to commit a criminal act and that the act which constituted the offence charged (the “criminal act” in s 34) was committed in furtherance of that common intention. It was not necessary to prove that there was a common intention to commit the crime actually committed. The rider to this was that the participants must have had some knowledge that an act might be committed which was consistent with or would be in furtherance of the common intention: at [51], [56] and [57].

(2) Common intention meant a prior meeting of the minds and must be distinguished from same or similar intention. The common intention must precede the criminal act. However, it was not necessary to find a pre-arranged plan. The plan could develop on the spot. Common intention was to be inferred from all the facts and circumstances of the case, including the conduct of the accused: at [58]and [60].

(3) Acts done “in furtherance of a common intention” fell into 3 categories: (a) acts which were directly intended by all the confederates; (b) acts which in the circumstances were undoubtedly to be taken as included in the common intention, although they were not directly intended by all the confederates; and (c) acts which were committed by any of the confederates to avoid or remove any obstruction or resistance against the proper execution of the common intention: at [59].

(4) Section 34 required the criminal act to be “done by several persons”. There must be physical presence at the scene of crime coupled with actual participation. Presence at the scene for the purpose of facilitating or promoting the offence was itself tantamount to actual participation in the criminal act. “Criminal act” in s 34 would cover any word, gesture, deed or conduct, whether active or passive, which tended to support the common design: at [61] and [62].

(5) The evidence clearly established that the first appellant had formulated an elaborate plan to kill the deceased: he had attempted to ascertain whether the deceased's body could fit into a washing machine at his home so that he could dispose the whole thing at sea. The second appellant, on the other hand, formed the intention to kill, either when he covered the deceased's mouth to stop her from screaming, or when he secured her legs whilst the first appellant chopped her neck. Common intention could be inferred from the second appellant's participation in the murder of the deceased and the destruction of the evidence thereafter: at [64] and [65].

(6) The second appellant's claim that he participated out of fear of the first appellant, was rejected. The defence of duress under s 94 of the Penal Code was not raised. In any event, such a defence was inapplicable to an offence of murder. Even if the defence were applicable, it would not have succeeded on the facts. The alleged threats were neither imminent, persistent nor extreme, nor was there an apprehension of instant death. Furthermore, it was highly implausible that the alleged threats would have rendered the second appellant unable to think rationally or act voluntarily: at [66].

(7) As for the first appellant's contention that the injury he had caused was accidental, the trial judge had made a finding to the contrary and the appellant court would not disturb it as it was not shown to be against the weight of the evidence: at [70].

(8) The first appellant's contention that he genuinely thought that the deceased was already dead when he disposed of her body was also rejected. First, it was clear that both appellants had the intention to kill the deceased at all material times. Second, that intention to kill was in fact executed. There was no doubt that the appellants did all those acts which resulted in death. It could not be said that they could escape the penalties of the law because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it was achieved. Finally, the injuries inflicted on the deceased alone would have caused death, although death would have occurred more slowly over a prolonged period of time. Drowning was merely an additional, and not an intervening, cause of death: at [83], [84] and [86].

Asogan Ramesh s/o Ramachandren v PP [1997] 3 SLR (R) 201; [1998] 1 SLR 286 (refd)

Barendra Kumar Ghosh v EmperorAIR 1925 PC 1 (folld)

Bashir v State of AllahabadAIR 1953 All 668 (refd)

Bharwad Mepa Dana v State of Bombay [1960] Cri LJ 424 (refd)

Ismail bin Hussin v PP [1953] MLJ 48 (folld)

Kaliappa Goundan v EmperorAIR 1933 Mad 798 (folld)

King-Emperor v Nehal Mahto (1939) 18 Pat 485 (folld)

Krishna Govind Patil v State of Maharashtra [1963] 2 Cri LJ 351 (folld)

Lingaraj Das v EmperorAIR 1945 Pat 470 (folld)

Mahbub Shah v King-EmperorAIR 1945 PC 118 (folld)

Namasiyiam v PP [1987] 2 MLJ 336 (folld)

Neoh Bean Chye v PP [1974-1976] SLR (R) 164; [1972-1974] SLR 213 (folld)

Ng Soo Hin v PP [1993] 3 SLR (R) 703; [1994] 1 SLR 105 (refd)

Nga Aung TheinAIR 1955 Ran 89 (FB) 90 (refd)

Om Prakash v StateAIR 1956 All 241 (refd)

PP v Gerardine Andrew [1998] 3 SLR (R) 421; [1998] 3 SLR 736 (folld)

PP v Hla Win [1995] 2 SLR (R) 104; [1995] 2 SLR 424 (refd)

Palani Goundan v Emperor (1919) 42 Mad 547 (FB) (distd)

Queen-Empress v Khandu Valad Bhavani (1890) 15 Bom 194 (distd)

R v Chiswibo (1961) SR FC 714 (not folld)

R v Church [1966] 1 QB 59 (refd)

R v Smith [1959] 2 QB 623 (refd)

R v Vincent Banka [1936] MLJ 53 (not folld)

Rajwant Singh v State of KeralaAIR 1966 SC 1874 (refd)

Thavamani, ReAIR 1943 Mad 571 (folld)

Thabo Meli v R [1954] 1 WLR 228; [1954] 1 All ER 373 (folld)

Too Yin Sheong v PP [1998] 3 SLR (R) 994; [1999] 1 SLR 682 (folld)

Wong Mimi v PP [1971-1973] SLR (R) 412; [1972-1974] SLR 73 (folld)

Wong Yoke Wah v PP [1995] 3 SLR (R) 776; [1996] 1 SLR 246 (refd)

Penal Code (Cap 224,1985 Rev Ed)ss 34, 302

Penal Code (India)

James Bahadur Masih (James Masih & Co) and S Narayanaswamy (Nara & Associates) for the first appellant

Peter Fernando (Leo Fernando) and Surian Sidambaram (Surian & Partners) for the second appellant

Francis Tseng, Han Ming Kuang and Jeanni Eng (Deputy Public Prosecutors) for the respondent.

Yong Pung How CJ

(delivering the grounds of judgment of the court):

1 The appellants were jointly tried in the High Court on the following charge:

That you

  1. 1 Shaiful Edham bin Adam

  2. 2 Norishyam s/o Mohamed Ali,

sometime between 10pm on 11 January 1998 and 5.19pm on 13 January 1998, in Singapore, in furtherance of the common intention of you both, did commit murder by causing the death of one Iordanka Apostolova Apostolova, female aged 26 years, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224).

...

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