Tan Chee Hwee and Another v Public Prosecutor

• Court: Court of Three Judges (Singapore)
• Judgment Date: 19 July 1993
• Date: 19 July 1993
• Docket Number: Criminal Appeal No 14

Tan Chee Hwee and another

Plaintiff

and

Public Prosecutor

Defendant

[1993] SGCA 51

Yong Pung How CJ

,

Goh Joon Seng J

and

M Karthigesu J

Criminal Appeal No 14 of 1992

Court of Criminal Appeal

Criminal Law–Complicity–Common intention–Murder–No common intention where principal does not have requisite intention to commit murder–Criminal Law–Offences–Murder–Construction of s 300 (c)Penal Code (Cap 224,1985 Rev Ed)–Test whether there was requisite intention to cause bodily injury described in s 300 (c) Penal Code subjective–Section 300 (c)Penal Code (Cap 224,1985 Rev Ed)–Evidence–Weight of evidence–Mixed statements–Whether incriminating and exculpatory parts should be considered together with surrounding circumstances in deciding where truth lies

The appellants were charged with murder in furtherance of common intention under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). The appellants arranged to burgle a house when the maid, who had gone out, returned sooner than they had expected. A struggle took place between the maid and the appellants, who were trying to subdue her. The first appellant had armed himself with a knife when the maid would not submit to his threats “to keep quiet” and ran towards her room screaming. The first appellant then tried to tie her up with a rope but it broke. He wrestled with the maid and both fell to the ground. He then tried to tie the maid with an electric iron cable. According to the first appellant, he intended to slide it under her body from the face towards the waist and tie her up. As the first appellant and the maid were sprawled on the floor and she was still struggling violently, the first appellant, with the second appellant's help, was unable to bring the cable to her waist level. Throughout this time, the second appellant placed his hand over the maid's mouth to help the first appellant to muffle the maid's screaming. During this struggle the maid was allegedly strangled to death by the cable which was around her neck.

Counsel for the appellants conceded that both appellants had wound the cord of the electric iron around the person of the maid but not intentionally around her neck. It was not their intention to “silence her forever”, as the trial judge had found, but to keep her out of the way. Hence, they should be guilty of culpable homicide not amounting to murder under s 304 of the Penal Code.

Held, allowing the appeal:

(1) The trial judge did not misdirect himself as to the proper test to be applied to s 300 (c) of the Penal Code. The Prosecution must prove: (a) that a bodily injury was present; (b) the nature of the injury must be proved; (c) that there was an intention to inflict that particular bodily injury, ie that it was not accidental or unintentional, or that some other kind of injury was intended; and (d) that the injury of the type described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. Parts (a), (b) and (d) of this inquiry were objective while part (c) was subjective: at [33] and [34].

(2) The evidence does not support the trial judge's finding that common intention to commit murder was formed at the time when the maid entered the house and started screaming. The appellant's first reaction on being told that the maid had returned was to tie her up. Even after he had armed himself with a knife, the first appellant's intention was not to cause hurt to the maid but to frighten her into submission. It was clear from the statements of the appellants that they were both in a state of panic. They did not know how to handle the situation. All this time the first appellant's intention was to stop the maid from screaming and to subdue her. It was clear that the second appellant's role was secondary to the first appellant's. The absence of evidence of manual strangulation was testimony of the fact that up to the time the first appellant and the maid fell to the floor, neither of the appellants had formed any intention to cause hurt to the maid: at [38].

(3) The statements are mixed statements containing incriminating as well as exculpating parts. The court had to approach the incriminating portion with the exculpatory or explanatory parts of the first appellant's statements together with all the surrounding circumstances to decide where the truth lay. Taken as a whole and giving such weight to the exculpatory portions of the statements, short of disregarding them altogether, the evidence was equally consistent with an intention to tie the maid up without any intention of causing her bodily injury. The evidence was far from being overwhelming to conclude that the appellants intended to strangle the maid. Intention, if it was formed at all, was formed by the first appellant alone when he used an electric iron cable to tie the maid up. However, the fact that the first appellant did not hit the maid with the iron to silence her and instead used it to tie her up while she was struggling violently strongly suggested that even at that critical moment the first appellant could not have formed an intention to strangle the maid with the cord of the electric iron as a means of “silencing her forever”. In the circumstances the court concluded that the injury which was in fact caused to the maid around her neck, in all probability, was not intentionally but accidentally or unintentionally caused: at [39], [40], [45] and [46].

(4) The charge against the second appellant was even weaker as he played a secondary role. As the court concluded that it was unsafe from the evidence as a whole to infer that the first appellant had formed the intention to cause bodily injury to the maid when he placed the cord of the electric iron about her body, a fortiori,it followed that the second appellant, who did no more than try to muffle the maid's screams with his hands and help with the cord at the first appellant's bidding, could hardly be said to have formed any intention himself to cause the maid bodily injury. There was only evidence of abetment on the second appellant's part and the second appellant could not have abetted what the first appellant had not intended: at [47] and [48].

(5) Accordingly, the trial judge's finding that the appellants' intention was to “silence her forever” and hence they intentionally strangled her which in the ordinary course of nature resulted in the maid's death was not supported by the evidence contained in the statements of both appellants. The trial judge wrongly convicted the appellants of the murder: at [50] and [56].

Anandagoda v R [1962] MLJ 289 (folld)

Chan Kin Choi v PP [1991] 1 SLR (R) 111; [1991] SLR 34 (folld)

Palani Goundan v Emperor [1919] 42 Mad 547 (folld)

PP v Visuvanathan [1977-1978] SLR (R) 27; [1975-1977] SLR 564 (refd)

Tan Cheow Bock v PP [1991] 2 SLR (R) 608; [1991] SLR 293 (folld)

Virsa Singh v State of Punjab AIR 1958 SC 465 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121 (1), 122 (6)

Evidence Act (Cap 97, 1990 Rev Ed) s 17 (2)

Penal Code (Cap 224, 1985 Rev Ed) s 300 (c) (consd);ss 34, 107 (c), 302, 304

R Palakrishnan, J D Theseira and Anna-Marie Kannangara (Palakrishnan & Pnrs) for the first appellant

Peter Fernando and R Tiwary (Leo Fernando) for the second appellant

Ismail Hamid (Dy Sr State Counsel) for the respondent.

Judgment reserved.

M Karthigesu J

(delivering the judgment of the court):

1 The two appellants, Tan Chee Hwee (“Tan”) and Soon Kin Liang (“Soon”) were convicted on 15 July 1992 of the murder of one Evangeline Diso (“the maid”), a Filipino maid. The charge against them read as follows:

That you,

1 Tan Chee Hwee

2 Soon Kin Liang Joseph @ Sun Jianliang Joseph

on or about 20 September 1989 between 8.30am and 1.40pm at No 10 Happy Avenue Central, Singapore, in furtherance of the common intention of you both committed murder by causing the death of one Evangeline M Diso, and you have thereby committed an offence punishable under s 302 read with s 34 of the Penal Code (Cap 224).

2 In September 1989 both Tan and Soon aged 19 years and 18 years respectively were students at the Ngee Ann Polytechnic. They were friends. Their circle of friends included two others, also in their teens, namely, Mok Swee Kok (“Mok”) and Tang Wei Ping (“Chris Tang”). Chris Tang was also a student at Ngee Ann Polytechnic but Mok was not.

3 Tan had lost money playing on jackpot machines and electronic games and to make up his losses was entrapped by another student friend to join him in an illegal money lending venture at Johore Bahru. In order to finance this venture Tan had instigated Soon to borrow large sums of money from a source that was available to Soon under the promise of sharing the profits with him. Unhappily for them the illegal money lending venture failed and the person from whom Soon had borrowed the money was pressing for repayment. There were discussions among the four friends as to how to raise the money to repay the debt.

4 Then one day Chris Tang suggested they should burgle his parents' house at 10 Happy Avenue Central. A plan was hatched. Chris Tang would make available the keys to the house. He suggested that the best time to burgle the house would be shortly after 12 noon when the maid would leave the house to take his younger brother to school. There would be no one in the house at that time until the maid returned in about half an hour or so. Accordingly it was arranged that Tan, Soon and Mok would burgle the house on 20 September 1989. Chris Tang made the keys of the house available to them and to provide himself with an alibi attended classes at the Ngee Ann Polytechnic that day.

5 On the morning of 20 September 1989, Tan, Soon and Mok arrived at Happy Avenue Central by bus shortly before noon and kept watch on No 10. At about noon they saw the maid leave the house with Chris Tang's younger brother. They let themselves into the house...