Tan Chor Jin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 18 July 2008
• Neutral Citation: [2008] SGCA 32
• Date: 18 July 2008
• Subject Matter: Preconditions and requirements,Accused consistently declined to be represented by counsel,Private defence,Whether right to counsel could be waived or taken away,Constitutional Law,Statutory offences,Whether accused fulfilled all four conditions for defence of accident to succeed,Whether accused had intention to commit offence,Section 80 Penal Code (Cap 224, 1985 Rev Ed),Accident,Whether aggressor had right of private defence,Right to counsel,Sections 96 to 106 Penal Code (Cap 224, 1985 Rev Ed),General exceptions,Whether presumption of using or attempting to use firearm with intention to cause injury to person was rebutted,Sections 84, 85, 86 Penal Code (Cap 224, 1985 Rev Ed),Criminal Law,Power of appellate court to reverse findings of fact,Criminal Procedure and Sentencing,Appeal,Accused person,Whether unsoundness of mind synonymous with insanity,Whether trial judge obliged to visit crime scene,Arms Offences Act (Cap 14, 1998 Rev Ed),Allegation of prosecution witness lying,Whether accused suffering from insanity to such degree that it rendered him incapable of knowing either nature of the act or that it was wrong or contrary to law,Article 9(3) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint),Intoxication
• Docket Number: Criminal Appeal No 9 of 2007
• Published date: 22 July 2008
• Defendant Counsel: Lee Sing Lit and Edwin San (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Subhas Anandan and Sunil Sudheesan (KhattarWong)

18 July 2008

V K Rajah JA (delivering the grounds of decision of the court):

Introduction

1 The appellant (“Tan”) was convicted by the High Court for an arms offence pursuant to s 4 of the Arms Offences Act (Cap 14, 1998 Rev Ed) (see PP v Tan Chor Jin [2007] SGHC 77 (“the Judgment”)). Briefly, Tan was found guilty of discharging six rounds from a 0.22 calibre Beretta (“the Beretta”) with intent to cause physical injury to the deceased (“Lim”), who had immediately succumbed to the wounds inflicted. Tan acknowledged having fired the Beretta, but maintained that he had not intended to cause any physical injury to Lim. The evidential burden therefore rested on Tan to rebut the statutory presumption raised pursuant to s 4(2) of the Arms Offences Act, which states:

In any proceedings for an offence under this section, any person who uses or attempts to use any arm shall, until the contrary is proved, be presumed to have used or attempted to use the arm with the intention to cause physical injury to any person or property.

2 Tan – who chose to appear in person at the trial – did not succeed in establishing his defences of intoxication and accident; neither did he manage to establish the right of private defence. These defences are found in ch IV (headed “General Exceptions”) of the Penal Code (Cap 224, 1985 Rev Ed). On appeal, Tan (who had by then decided to have counsel represent him) challenged the decision of the trial judge (“the Judge”) on these three defences. In addition, three new issues concerning procedural fairness – viz, Tan’s right to counsel, the conditions of remand in which Tan was placed while preparing for his trial and whether the Judge was obliged to visit the crime scene so as to ascertain if a witness was lying – were raised. It was contended that the cumulative effect of these breaches of procedural fairness warranted a retrial.

3 We dismissed the appeal, and now give the reasons for our decision. In these grounds of decision, we will address, first, the defences relied on by Tan and, second, the issues relating to procedural fairness. We have placed particular emphasis on three points, viz, the nature of the defence of intoxication, the extent of the right of private defence and the scope of the right to counsel in the context of a criminal trial.

Overview of the facts and the issues

4 As the Judge has admirably summarised the facts in the Judgment, only the salient facts need now be reiterated.

5 Until some seven or eight years ago, Tan had been the head of a secret society known as “Ang Soon Tong”. About three years prior to the shooting, Tan and Lim were involved in illegal betting activities. According to Tan, as at April 2004, Lim owed him some RM500,000, but refused to pay up. Instead, in July 2005, he told Tan that he would send someone to “settle with him” (see [58] of the Judgment). As time passed, Tan grew increasingly distressed about Lim’s callous disregard for him and the purported threat. Some time later, he purchased the Beretta in Thailand, purportedly for self-defence, in the light of the alleged threat made earlier by Lim.

6 On 15 February 2006, Tan went out for drinks with friends late at night. After several rounds of drinks, Tan was driven to Lim’s flat (“the Flat”) by a friend, Ah Chwee. Tan claimed that the purpose of this visit was to persuade Lim to resolve their differences. Lim was so taken aback that Tan knew where he lived that he refused to see Tan. A few hours later, Tan returned to the Flat in the same car and, this time around, he managed to gain entrance.

7 Armed with a knife and the Beretta, Tan tied up Lim as well as Lim’s wife, his daughter and his maid (“Risa”). They were later confined in different rooms. Tan also had a bag with him which was used to hold valuables that he ransacked from the Flat. Later, he confronted Lim alone in the study. Risa testified that even though her hands and legs were tied, she was still able to approach the study and peek inside. She saw Tan hold the Beretta very close to the right side of Lim’s face. Tan initially fired a single shot, whereupon Lim fell backwards against the chair behind him. Terrified and panic-stricken, Risa immediately retreated into another room. Five more gunshots followed before Tan left the Flat hurriedly. On his way out, he warned the family not to summon the police. Back in the car, Tan instructed Ah Chwee to let him alight near a canal, where he disposed of the Beretta. Just prior to leaving for Malaysia in another car, Tan told Ah Chwee to read that evening’s newspapers.

8 Tan was eventually arrested and extradited to Singapore on 1 March 2006. On 15 March 2006, he was remanded at Complex Medical Centre of Changi Prison (“CMC”) for psychiatric assessment. The assessment was completed on 14 May 2006. Tan, nevertheless, continued to be held in remand at CMC until he was transferred to Queenstown Remand Prison (“QRP”) on 27 October 2006, where he remained until the first day of his trial (ie, 22 January 2007).

9 During the trial, Tan testified that he had brought the Beretta to the Flat for the sole purpose of “negotiating”[note: 1] with Lim. It was only after Lim became abusive that Tan decided to rob him. Unexpectedly, while they were alone in the study, Lim suddenly grabbed a chair and attacked Tan. A scuffle ensued. Tan claimed that he panicked and his mind then went blank; he “misfired”[note: 2] the first shot, but could not remember what happened thereafter. To justify the homicide, Tan invoked the general exceptions of intoxication, accident and the right of private defence. Tan also contended that Risa could not possibly have witnessed the shooting of Lim. To substantiate this allegation, he invited the Judge to visit the Flat. The Judge, however, declined to do so, expressing his view that the photographs and the sketch plans of the Flat were clear.

10 As mentioned earlier (at [2] above), Tan chose to appear in person during the trial. He discharged his counsel before the preliminary inquiry and refused to be represented by assigned counsel. This was despite his allegations that while he was held in remand at CMC, he was kept in solitary confinement, deprived of sunlight and suffered from depression. Given that Tan’s psychiatric assessment was completed approximately two months after he was first remanded at CMC, counsel for Tan in the present appeal, Mr Subhas Anandan (“Mr Anandan”), argued before this court that Tan’s continued remand at CMC for another five months after the completion of the psychiatric assessment was oppressive and hampered Tan’s preparations for the trial.

11 Mr Anandan further contended on appeal that the Judge had summarily dismissed Tan’s request for a lawyer towards the end of the trial. To put matters into perspective, however, it bears mention that Tan had earlier confirmed on several occasions throughout the proceedings (including on the first day of the trial) that he did not wish to have legal representation. Yet, after all the witnesses had been called and just prior to closing submissions being made, Tan inquired of the Judge, “If I say I need a lawyer how [sic]?”[note: 3] (see further [50] below). This request was not directly addressed by the Judge in the Judgment as it was raised only on appeal. In the circumstances, the question arose as to whether Tan’s right to counsel, which is entrenched under Art 9(3) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”), had been contravened.

12 As we agreed with the reasoning of the Judge on the factual controversies, we shall, in these grounds of decision, address only the legal issues that merit elucidation (ie, the issues outlined at [3] above).

The defences raised by Tan

The defence of intoxication

The relevant statutory provisions

13 The defence of intoxication is spelt out in ss 85–86 of the Penal Code, as follows:

Intoxication when a defence

85.—(1) Except as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and —

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission.

Effect of intoxication when established

86.—(1) Where the defence under section 85 is established, then in a case falling under section 85(2)(a) the accused person shall be acquitted, and in a case falling under section 85(2)(b), section 84 of this Code and sections 314 and 315 of the Criminal Procedure Code [(Cap 68, 1985 Rev Ed)] shall apply.

(2) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(3) For the purposes of this section and section 85 “intoxication” shall be deemed to include a state produced by narcotics or drugs.

14 It has been rightly observed (in K L Koh, C M V Clarkson & N A Morgan, Criminal Law in Singapore and Malaysia: Text and Materials (Malayan Law Journal Pte Ltd, 1989) (“Koh, Clarkson & Morgan”)) that from the perspective of criminal responsibility (at p 232):

[A] person who commits a crime when involuntarily intoxicated should not be blameworthy while one who voluntarily gets into a state of intoxication should be responsible for his acts.

By way of historical background, it is pertinent to note that the current provisions on intoxication were introduced only after amendments were made to the Penal Code (SS Ord No 4 of 1871) in 1935 (via the Penal Code (Amendment No 2) Ordinance 1935 (SS Ord No 16 of 1935)). As pointed out in...