Vijayan v Public Prosecutor
|Choor Singh J
|07 May 1975
| SGCA 5
|07 May 1975
|Provocation,Section 300 exception 1 Penal Code (Cap 103, 1970 Rev Ed),Special exceptions,Whether the retaliation in consequence of the provocation must be reasonably commensurate with the degree of provocation,Criminal Law,Whether defence of grave and sudden provocation was made out
|Criminal Appeal No 17 of 1974
|19 September 2003
|Tan Teow Yeow (Deputy Public Prosecutor)
|Court of Appeal (Singapore)
|Datuk David Marshall (David Marshall)
Cur Adv Vult
The appellant was convicted before the High Court consisting of two judges for the murder of a man named Murthi. We dismissed his appeal against his conviction and now proceed to give our reasons.
The only ground of appeal relied on by counsel for the appellant, accepting the trial judges were correct in accepting the evidence of an eyewitness, Subramaniam by name, and in rejecting the evidence of the appellant, was that the trial judges were wrong in law in finding that the defence of grave and sudden provocation (Exception 1 to s 300 of the Penal Code) could have no application to the facts of the present case.
The appellant is a Malaysian who came to Singapore some time back on a social visit. Permission to enter Singapore on a social visit is granted by the Immigration authorities by endorsement on one`s passport and is valid for only 14 days. It would appear that the appellant had contrived to remain in Singapore ever since he first came by going across the border between Singapore and Malaysia every 14 days and coming back on the same day with a fresh endorsement valid for another 14 days. A person such as the appellant who is in Singapore on a social visit is not entitled to work in Singapore without a work permit. The appellant has no such permit but has nevertheless been working in Singapore as a labourer. The relevance of these facts will appear when the issue of provocation is considered.
Subramaniam, a close friend of the deceased, gave evidence that a few days before the deceased was killed he enlisted the help of the deceased to bring about a settlement of whatever disputes there were between his two roommates and a person named Velu, a friend of the appellant. The parties to the dispute were brought together in the presence of the deceased and `his boys` on the one hand and the appellant on the other. The appellant was apparently dissatisfied with the manner in which the settlement had been negotiated and the following day told Subramaniam that he too had a gang and was not frightened. Subramaniam said he would arrange for the deceased to meet the appellant to discuss the matter that same evening and he later told the deceased about his conversation with the appellant. The deceased agreed to try and speak with the appellant if Subramaniam could arrange for them to meet. However, no meeting took place on that day.
A few days later, on 21 December 1973 at about 8pm, Subramaniam met the deceased at a bar. The deceased was in a quarrelsome mood having drunk too much and expressed a desire to meet the appellant that same evening. After they had a meal the deceased and Subramaniam walked in the direction of the house, No 60 Weld Road, in which the appellant had a room. They met a person by the name of Jabbar, a friend of the appellant, who shared the room with the appellant and another and the deceased asked Jabbar to lead him to the appellant`s room.
The appellant`s room is on one side of a corridor which leads to the kitchen of No 60 Weld Road. That evening the corridor was lighted and was empty except for the presence of the appellant and his lover, a girl named Letchmy, both of whom were seated outside the appellant`s room.
Jabbar led the deceased and Subramaniam to the corridor and there the deceased approached the appellant and stretching out his hand in friendship said that he wanted to speak to him about an important matter and asked him to go out of the premises. The deceased spoke to the appellant in a friendly manner and both shook hands. The deceased then asked the appellant who the girl was and when the appellant replied that she was his lover the deceased shouted, `Who has given houses to Malaysians?` Being drunk the deceased started shouting aggressively, `Come out. I`ll fight with you.` Subramaniam advised the deceased that it was not right to shout and took the deceased out to the front door leading to the street. While on the five-foot-way facing the street the deceased kept shouting, `Come out and fight.` Subramaniam stated that suddenly he saw the appellant coming out from inside the house. Subramaniam saw the appellant catch the deceased from behind by his trousers just below his waist. Subramaniam then shouted to the deceased to run. The deceased staggered a little and ran to the road in front of the house. He could not run very fast. He was more or less staggering and running and was being chased by the appellant. Subramaniam remained standing on the five-foot-way of the house. The deceased staggered and fell on the road about 40 yards from the house. When the deceased fell down, the appellant was about six feet from him. The appellant reached the legs of the deceased who started kicking though not with any great force. After he had kicked twice or thrice the appellant caught hold of his legs and pressed them down. It appeared to Subramaniam that the appellant took out a weapon from his person and stabbed downwards somewhere between the deceased`s neck and stomach. Subramaniam stated that the appellant stood across the deceased`s legs, stooped downwards and stabbed the deceased who was lying on the road. On seeing this Subramaniam became frightened and ra n away from the scene.
Jabbar was another eyewitness who saw the appellant stab the deceased. He stated that he saw the appellant stab the deceased on the left side of the body near the top of his pelvis. He stated further that he saw the appellant turn the deceased over as he was lying on his back face upwards. According to Jabbar, after stabbing the deceased the appellant stood up and remained there uttering abuse at the deceased. The appellant was still standing there when the police arrived at the scene. There was yet another eyewitness who saw the appellant stabbing the deceased. He was one Rengasamy who ran a coffee stall adjoining the premises in which the appellant lived. He stated that he saw the appellant chasing a man in front of him. He could not see the appellant holding anything in his hand from where he was but he saw the appellant catch the deceased after he fell on the road and saw him stab the deceased two or three times. He stated that when the appellant was making stabbing movements on the fallen man he could not see anyone else in the immediate vicinity.
When a police constable arrived at the scene he saw the deceased lying dead on the road in a pool of blood with the appellant standing next to him holding a bloodstained chopper.
An autopsy performed on the body of the deceased revealed that apart from eight superficial cuts and abrasions the deceased had six serious stab wounds:
(1) Stab wound at the back of the right side of the neck 3.5 cm in length with clean cut edges, one sharp and one rounded end, penetrated eight cm deep into the neck and cut the C7 cervical vertebra on the right side.
(2) A large stab wound at the centre of the chest slightly to the left side seven cm long with clean cut edges and sharp ends. It cut through the third to fifth costal cartilages on the left side and entered into the chest cavity splitting the pericardium and made a cut on the anterior surface of the right ventricle four cm in length.
(3) Stab wound at the right side of the chest two cm long with clean cut edges, one sharp and one rounded end, penetrated into the chest cavity at the ninth intercostal space and with a cut on the lower lobe of the right lung. Total depth five cm.
(4) Stab wound three cm in length with clean edges, one sharp and one rounded end, above the left side of the umbilicus and penetrated into the abdominal cavity. No vital structures involved.
(5) Stab wound on the left loin two cm in length with clean cut edges, sharp at one end and rounded at the other. There was a loop of intestines hanging outside this stab wound and the part of the intestines was slightly gangrenous.
(6) Stab wound at the left side of the back two cm with clean edges, one sharp and one rounded end, penetrated into the left chest cavity but did not hit the lung.
The pathologist explained that the second wound was the fatal wound; that considerable force must have been used to inflict it and that a person with such a wound would die within 10 to 15 minutes. According to the pathologist, the third wound was also sufficient to cause death in the ordinary course of nature if untreated.
The appellant`s defence was that it was the deceased who had first attacked him with the chopper and that he had acted in self defence. Counsel for the appellant conceded that the appellant`s version having been rejected by the trial judges, the question of provocation must be decided on the evidence tendered by the prosecution. He contended that there was evidence of provocative acts sufficient to reduce the offence from murder to the lesser offence of culpable homicide not amounting to murder.
The question that falls for decision in this appeal is one which, in our opinion depends entirely on the true construction of Exception 1 of s 300 of the Penal Code (Cap 103, 1970 Ed) of Singapore which provides as follows:
Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisos:
(a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person;...
(b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;
(c) that the provocation is not given by anything done in the lawful exercise of the right of private defence.
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