Tan Hung Thiam and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 23 April 1991
• Date: 23 April 1991
• Docket Number: Criminal Appeal No 16 of 1988
• Court: Court of Appeal (Singapore)

Tan Hung Thiam and another

Plaintiff

and

Public Prosecutor

Defendant

[1991] SGCA 9

Yong Pung How CJ

,

F A Chua J

and

M Karthigesu J

Criminal Appeal No 16 of 1988

Court of Appeal

Criminal Law–Complicity–Common intention–Murder–Whether incumbent on Prosecution to prove that there existed between participants a common intention to commit crime actually committed–Sections 34 Penal Code (Cap 224, 1985 Rev Ed)

The appellants were convicted of murdering their victim in furtherance of a common intention to rob their victim. The trial court found that they stabbed her in the neck and that the stab wounds caused her death. The appellants appealed against their conviction and disputed the pathologist's medical evidence as to the cause of death.

Held, dismissing both appeals:

(1) The trial judge was correct in his findings. It was clear from the evidence, that both appellants intended to stab the victim in the neck and that the injuries inflicted were sufficient in the ordinary course of nature to cause death: at [50] and [51].

(2) In a criminal prosecution where common intention was invoked, it was not incumbent on the Prosecution to prove that there existed between the participants a common intention to commit the crime actually committed. For s 34 of the Penal Code (Cap 224) to apply, it was sufficient for the Prosecution to prove that there existed a common intention between all the persons who committed the criminal act and that the act which constituted the offence charged was done in furtherance of that common intention: at [52].

(3) The intention that was an ingredient of the offences constituted by the criminal act was the intention of the actual doer and must be distinguished from the common intention of the doer and his confederates. It may be identical with the common intention or it may not. Where it was not identical to the common intention, it must nevertheless be consistent with the carrying out of the common intention, otherwise the criminal act done by the actual doer would not be in furtherance of the common intention: at [54].

Barendra Kumar Ghosh v EmperorAIR 1925 PC 1 (refd)

Mahbub Shah v EmperorAIR 1945 PC 118 (refd)

Mohamed Yasin bin Hussin v PP [1974-1976] SLR (R) 596; [1975-1977] SLR 34 (refd)

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

Penal Code (Cap 224,1985Rev Ed)s 34 (consd)

M N Swami (Swami & Narayanan) for the first appellant

Sant Singh (Sant Singh & Partners) for the second appellant

Seng Kwang Boon (Deputy Public Prosecutor) for the respondent.

F A Chua J

(delivering the grounds of decision of the court):

1 The two appellants, Tan Hung Thiam and Ng Siang Hee, were convicted and sentenced to death by the High Court on the charge that they on 11 February 1985, at about 2.35am, at house 34, Lorong 22, Geylang, Singapore, in the furtherance of their common intention, committed murder by causing the death of Ho Hor Song, a female aged 85. They appealed against their conviction. We dismissed the appeals and now give our reasons.

2 The facts can be briefly summarised. At about 2.41am on the morning of 11 February 1985, in response to a report that there was a robbery, a number of police cars converged on 34, Lorong 22, Geylang, which was a brothel. Bloodstains were observed on the road immediately outside the gates of number 34 and on the concrete forecourt. A number of police officers entered the house by way of the staircase to the reception room on the front upper level. They saw an elderly female Chinese lying motionless, in a pool of blood, in the reception room. Blood trails led along the passageway leading to the back door and the toilet. The door of the toilet was closed but the light was on. A police officer kicked the door open. Inside were found the two appellants. Their hands and clothes were stained with blood. They were arrested.

3 When the ambulance arrived at 2.45am the ambulance officer pronounced the elderly female Chinese as dead. She was subsequently identified as Ho Hor Song (“the deceased”), the mother of the brothel keeper, Yeo Kim Boon (“PW1”).

4 The two appellants were led to separate police cars. Sergeant Tan Boon Heng (PW2) asked the first appellant what had happened. The first appellant replied that he would tell Sgt Tan everything.

5 The first appellant said that his girlfriend was pregnant and that he was in financial difficulties. He and the second appellant had been advised by a third man, Lau Ah Chiew, to rob the brothel. During the commission of the robbery the deceased had put up a struggle and the second appellant had stabbed her with a knife. He (the first appellant) had tried to prevent the second appellant from stabbing the deceased and his hand had been cut as a consequence. The second appellant had handed him a black purse and had asked him to throw away the knife outside the premises.

6 The first appellant then led Sgt Tan to a dustbin at the entrance to the compound of the house. Sgt Tan saw two bloodstained knives in the dustbin. Sgt Tan retrieved a black purse from the first appellant's trouser pocket. It contained $207. He also found a further $337 in that pocket and the first appellant told him that the money was the proceeds of the robbery. A piece of cloth and a piece of thin yellow nylon twine were also found on the first appellant by Sgt Tan. The black purse was later identified as having belonged to the deceased by her daughter, Yeo Kim Boon.

7 Sgt Tan then proceeded to the police car into which the second appellant had been placed. He asked the second appellant: “Did you stab the deceased?” The second appellant denied having done so, but admitted that he had struggled with her. Sgt Tan did not pursue the matter further. The two knives were subsequently recovered from the dustbin. One had a narrow blade and a brown handle (P81) and the other a broader blade and a black handle (P82).

8 At about 3.40am Lau Ah Chiew was arrested in a flat at Dakota Crescent. At about 8.50am both the appellants were referred to Dr Naranjan Singh (PW4), the medical administrator of Changi Prison Hospital, for medical examination. The first appellant was found to have a 2cm incised wound over the lower part of his right index finger. The doctor asked the first appellant how it had been caused and the latter replied that it had been caused accidentally by the second appellant when the second appellant was stabbing the deceased.

9 Dr Naranjan Singh found a 2cm incised wound over the second appellant's left fifth knuckle. In response to a question from the doctor, the second appellant said that this injury had been accidentally caused by the first appellant “during the incident”.

10 The first appellant and the second appellant and Lau Ah Chiew were jointly charged for the murder of the deceased. Prior to the commencement of the trial of the first and second appellants, Lau Ah Chiew had been dealt with by another court. This resulted in the charge being amended to the extent only that Lau Ah Chiew was omitted, and the trial of the first and second appellants proceeded on the amended charge.

11 Statements were recorded by Inspector Lim Kwang Meng from the first appellant and the second appellant on 11 February 1985, in accordance with s 121 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). The admissibility of the statements was not challenged and they were duly admitted into evidence.

12 The first appellant's statement (P43C) was as follows:

I bear no grudge against the old lady. I have no intention of killing her. My intention was to rob her. In fact it was Lau Ah Chiew who suggested that we rob the premises. I went with Ng Siang Hee and Lau Ah Chiew in a taxi. On the arrival at the premises, Lau Ah Chiew pointed to the house to Ng Siang Hee and myself. Before coming to the house, Lau Ah Chiew has given me one hundred dollars for the purpose of renting the brothel and calling a prostitute. Lau Ah Chiew told us to rob a middle aged lady who is a brothel keeper after the door is closed. I wish to say that after Lau Ah Chiew has pointed to the premises, he left. I shared the same room with Ng Siang Hee. Sometime after 2am, Ng Siang Hee left the room. Shortly I also left the room. I saw Ng Siang Hee covered the mouth of the old lady with his left hand and at the same time he was holding a knife with his right hand and pointed at her stomach. The old lady was seated. I also heard Ng Siang Hee telling the old lady to be quiet. Ng Siang Hee then asked me to bring a piece of cloth to cover the old lady's mouth. I done so. I could not cover her mouth properly as the old lady was moving her head all the time. At this juncture Ng Siang Hee's knife came into touch with the old lady's stomach. I saw blood oozing out. I saw Ng Siang Hee pulling out the knife while the old lady was still struggling and Ng Siang Hee's knife came in contact with my right forefinger. Ng Siang Hee then told me to cut the telephone wire and to take the key to open the door. I cut the telephone wire with my own knife. I then wanted to open the door with a key but could not do so. I then went to the room to take our shoes and when I came out of the room I saw the old lady was lying on the floor. I again tried to open the door and finally succeeded. Both of us then came downstairs. While Ng Siang Hee was putting on his shoes, he asked me to go upstairs to take the knife which was lying beside the old lady. I went up and picked up the knife and came downstairs again. Ng Siang Hee then asked me to throw away the knives. I then threw the two knives into the dustbin. At this juncture I saw a police car arrived. Ng Siang Hee and myself ran back to the premises and hid ourselves in the toilet. The two knives and the ropes were provided to myself and Ng Siang Hee by Lau Ah Chiew.

13 The second appellant made the following statement (P44C):

On 10 February 1985 at about 11pm Tan Hung Thiam and...