[2011] SGCA 24
| Criminal Appeal No 18 of 2010 | |
| 24 May 2011 | |
| Court of Appeal | |
| Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA | |
| James Bahadur Masih (James Masih & Co) and Zaminder Singh Gill (Hilborne & Co) for the first appellant; N Kanagavijayan (Kana & Co) and Gloria James (Hoh Law Corporation) for the second appellant; Lee Lit Cheng and Gordon Oh (Attorney-General’s Chambers) for the respondent. |
Criminal Law
[LawNet Editorial Note: This was an appeal from the decision of the High Court in [2010] SGHC 212.]
24 May 2011
|
Judgment reserved.
|
V K Rajah JA (delivering the judgment of the Court):
Introduction
1 This is an appeal from the decision of the trial judge in Public Prosecutor v Galing Anak Kujat and another
[2010] SGHC 212 (the “GD”), where the learned trial
judge convicted Galing Anak Kujat (“Galing”) and
Jabing Kho (“Jabing”) (collectively “the appellants”)
of murder in furtherance of the common intention of both of
them, under s 302 read with s 34 of the Penal Code (Cap 224,
2008 Rev Ed) (“Penal Code”), and sentenced them both to
suffer the mandatory death penalty.
2 The trial judge’s decision was given before this Court delivered its judgment in Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”).
It was therefore necessary for us to reserve our
judgment in this case in order to carefully consider
the trial judge’s reasons and conclusions in light of
Daniel Vijay, where this Court comprehensively
reviewed both local and foreign case law on s 34 of the Penal
Code, and laid down what is required to be proved in
order to make out the requisite “common intention”
(see [32] and [33]
below) to render two or more persons jointly liable
for an offence. For ease of reference, s 34 of the
Penal Code is reproduced here:
Each
of several persons liable for an act done by
all, in like manner as if done by him alone
34. When
a criminal act is done by several persons,
in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as
if the act were done by him alone.
Facts
3 Unless otherwise stated, the following facts are undisputed.
4 Both
appellants are from Sarawak, Malaysia. Galing is 26
years of age, and was employed to load oil onto ships. Jabing is 24
years of age, and worked in Singapore for a rag and bone
company.
5 In
the afternoon of 17 February 2008, the appellants
agreed, together with three other Sarawakians, Vencent Anak Anding
(also known as “Vincent” or “Vencent”)
(“Vencent”), a construction worker; Anthony Anak Jaban
(“Anthony”); and Alan Anak Ajan (“Alan”), a
colleague of Jabing’s, to rob two Bangladeshi co-workers of
Vencent’s at a worksite at Tiong Bahru. The robbery was aborted
because the two targets fortuitously left the
worksite with their supervisor in his van. Despite
this, the appellants, Vencent, Anthony and Alan remained at Tiong Bahru
for some time, consuming liquor known as “Narcissus
Ginseng Wine Tonic”.
6 Eventually,
at about 7:00 pm, the five of them left Tiong Bahru
and travelled to Geylang. There was some dispute as to whether
or not there had been a plan to commit robbery at Geylang
after the earlier plan was aborted. In his various
statements, and during the trial, Galing maintained
that there was no intention to commit robbery at Geylang, and that the
intention (of all five individuals) in going to
Geylang was to continue drinking. Jabing, however,
stated to the police and at trial that the intention among them all in
going to Geylang was to rob.
7 At
Geylang, along Lorong 4, the appellants walked some
distance away from Vencent, Anthony and Alan. The appellants spotted
two persons, Wu Jun and Cao Ruyin (“the deceased”)
(collectively “the victims”), walking along a pathway
in an open space near Geylang Drive, and assaulted
them. Wu Jun was assaulted by Galing, by means of a
belt wrapped around Galing’s hand or fist, with the metal belt buckle
exposed. The deceased was assaulted by Jabing with what
was variously described as a piece of wood or a tree
branch (the “piece of wood”), which Jabing had
picked up while approaching the victims. The deceased was also
assaulted by Galing using the metal belt buckle. The deceased
suffered severe head injuries inflicted from the
piece of wood (from which he died on 23 February
2008), and his mobile phone was taken by Galing. Wu Jun escaped
with minor injuries.
8 The
exact chain of events which occurred during the
assault is disputed. Galing stated that Jabing led the way in:
(a) crossing the road (in order to reach the victims);
(b) intimating that the appellants should rob the victims;
(c) picking up the piece of wood; and
(d) striking the deceased with it.
Further, according to Galing:
(a) he told Jabing not to rob the victims but was ignored by Jabing;
(b) he assaulted Wu Jun (after
the deceased had already been assaulted by
Jabing with the piece of wood) because Wu Jun
seemed to be about to attack Jabing;
(c) he
chased Wu Jun for some distance before returning
to where Jabing and the deceased were located;
(d) Wu
Jun returned to the scene of the assault, and
Jabing chased Wu Jun away a second time before he
(Galing) called Jabing back.
9 Jabing, however, stated that:
(a) it was Galing who first crossed the road to approach the victims;
(b) Galing had by then already wrapped his belt around his hand;
(c) Galing
was already about to strike the deceased with
the belt in his hands by the time Jabing picked
up the piece of wood;
(d) he (Jabing) chased after Wu Jun, who had fled the scene of the assault;
(e) he
(Jabing) gave up the chase and returned to the
scene of the assault, where he saw Galing
struggling with the deceased; and
(f) he
(Jabing) then struck the deceased with the piece
of wood twice, after which he then fled the scene of the assault, but
not before noticing Galing hitting the deceased
with his belt and having taken the deceased’s
mobile phone.
10 To
complicate matters, Wu Jun’s evidence in his
statement was that, while walking together with the deceased at the
material time, he felt something hard hit him at the back
of his head. He ran a few steps forward, turned
round, and saw a man with a tanned complexion, wearing
a cap, coming towards him in a menacing manner with a clenched fist,
whereupon he (Wu Jun) fled the scene. Wu Jun’s
evidence was that he could hear the deceased groaning
in pain. After running for a while, Wu Jun called for the
police on his mobile phone, and subsequently returned to the scene
of the assault, where he discovered the deceased
lying unconscious and vomiting blood. Wu Jun also
noted that the deceased’s mobile phone was missing. At trial,
Wu Jun stated that he noticed only one assailant that night,
and was unable to say whether he or the deceased was
attacked first, how the deceased was attacked or who
attacked the deceased.
11 After
the assault, the appellants, Vencent, Anthony and
Alan eventually regrouped at a coffeeshop at Lorong 24 Geylang.
Galing’s and Jabing’s versions of how each of them ended up
at the coffeeshop differed. Galing stated that, after
he had called Jabing back from pursuing Wu Jun (see [8]
above), he and Jabing subsequently met the others at
the coffeeshop. Jabing, however, claimed that he had
become separated from the others (including Galing) after the
assault, and only joined them at the coffeeshop after
receiving a call from Vencent telling him where they
were. There was also some dispute as to what
transpired at the coffeeshop, such as whether Jabing had been chastised
by Galing and the others for using excessive force
against the deceased. What is not disputed, however,
is that Galing sold the deceased’s mobile phone to
Vencent for $300, and that all five individuals received $50 from the
proceeds (with the remaining $50 being used to buy
food and drink). Galing and Jabing were only arrested
several days after the incident.
12 Neither
appellant challenged the admissibility or
voluntariness of their statements. At trial, only Wu Jun and the two
appellants gave direct evidence as to what had
transpired. Jabing was largely content to stand by
the contents of his statements (although there were some
discrepancies, such as whether he had seen Galing hitting the
deceased); however, Galing challenged the veracity or
accuracy of various parts of his statements relating
to Jabing’s assault on the deceased, and his taking of
the deceased’s mobile phone (see [39]–[47] of the GD), claiming that
these had been made by him in response to suggestions
made by the investigating officer (“IO”). This claim
was raised rather late in the day, during the case
for the Defence, after these statements had already been
admitted into evidence during the Prosecution’s case (when the
relevant witnesses, the IO and the interpreter, were
not cross-examined on this issue) and after the
Prosecution had closed its case. The Defence then recalled the
relevant witnesses, but they rejected Galing’s allegations
that the recording of his statement was inaccurate or
improper. The trial judge rightly accepted their
evidence, as Galing was unable to provide any evidence or
explanation as to why the statements would have been recorded in
the fashion he had alleged, or why he would have
agreed to them if they were.
Decision below
13 The trial judge identified four key issues for determination:
(a) whether there was a common intention to rob the deceased;
(b) whether the appellants knew that death was likely to be caused;
(c) whether
the appellants had the necessary common
intention under s 34 of the Penal Code; and
(d) whether murder was committed in furtherance of the common intention.
14 In
relation to the first issue, the trial judge (at
[54] of the GD) rejected Galing’s evidence that there was no
intention to rob the victims, and found that Galing was “a
willing participant in the robbery with Jabing”.
15 In relation to the second issue, the trial judge found (at [55] of the GD) that the appellants’ intention was to rob the victims by the use of force,
and that Galing knew that when he and Jabing robbed
the deceased, the deceased would be assaulted and
serious injuries might be inflicted on him. Against this
background, the trial judge found (at [58] of the GD) that:
(a) the appellants had the common intention to commit robbery;
(b) each
of them knew that it was likely that serious
injury might be inflicted on the victims in the course of the
robbery;
(c) Jabing intentionally inflicted head injuries on the deceased; and
(d) the
injuries inflicted were sufficient in the ordinary course of nature to
cause death, and did cause the deceased’s death.
16 In
relation to the third issue, the trial judge
reminded himself of the law relating to common intention as it was
articulated in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (“Lee Chez Kee”) (at [253]), and reiterated (at [59] of the GD) that while the common intention of the appellants was to rob, and not to kill, they knew that there was the likelihood that serious injury might be inflicted.
17 In
relation to the fourth issue, the trial judge held
(at [62] of the GD) that Jabing’s actions satisfied
s 300(c) of the Penal Code, and concluded
from this that the murder was therefore committed in furtherance of the
common intention.
18 The
foregoing summary of the trial judge’s decision
reveals that he, unfortunately, fell into the same error
as the trial judge in Public Prosecutor v Daniel Vijay s/o Katherasan and others [2008] SGHC 120, in that there was a specific finding that the appellants did not have a common intention to kill
the deceased, but only to rob him; and that the
findings relating to the common intention of the
appellants were referable only to the robbery, and not to the killing (see [4], [44], [45], [59], [66], [148] and [164] of Daniel Vijay). The trial judge’s approach in this case was based on what was termed in Daniel Vijay the “putative Mimi Wong (CCA) test”, which was rejected by this Court in Daniel Vijay as a misunderstanding of what was truly decided and/or stated in Wong Mimi and another v Public Prosecutor [1971–1973] SLR(R) 412 (“Mimi Wong (CCA)”). The putative Mimi Wong (CCA) test, as expressed in [35] of Daniel Vijay, is that:
[F]or
the purposes of imputing constructive liability to secondary
offenders pursuant to s 34, there does not need to be a
common intention between C (the actual doer) and A
and B (the secondary offenders) to commit the
criminal act done by C which gives rise to the offence that A,
B and C are charged with; all that is required is that the
criminal act committed by C is in furtherance of
and is not inconsistent with the criminal act
commonly intended by A, B and C.
19 As
the trial judge’s judgment rested on a
misapprehension of the law, on that basis alone the convictions of the
appellants are unsafe. What follows, therefore, is a de novo
examination of how the appellants’ convictions ought
to be dealt with under the law on common intention as stated in Daniel Vijay.
Issues
20 The main issues for our consideration are:
(a) Jabing’s conviction for murder;
(b) Galing’s conviction for murder, which entails a consideration of:
(i) the criminal act;
(ii) the common intention;
(iii) whether the criminal act was done in furtherance of the common intention; and
(iv) whether there was the requisite participation by Galing in the criminal act.
Jabing’s conviction for murder
21 We are of the view that Jabing was rightly convicted of murder under s 300(c)
of the Penal Code, as the evidence shows that he had
intentionally inflicted on the deceased, using the
piece of wood he had picked up, a s 300(c) injury which caused the death of the deceased.
22 The requirements of s 300(c) are set out in the hallowed passage from [12] of Virsa Singh v State of Punjab AIR 1958 SC 465 (“Virsa Singh”), which was referred to by the trial judge (at [61] of the GD):
First, [the prosecution] must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly,
it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other
kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly,
it must be proved that the injury of the type just described
made up of the three elements set out above is sufficient
to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.
23 The first two Virsa Singh
requirements are clearly satisfied in this case: the
deceased had suffered horrific head injuries consisting of multiple
skull fractures, swelling of the brain, and severe
haemorrhaging.
24 In relation to the third Virsa Singh
requirement, Jabing’s evidence throughout was that
he had hit the deceased (with the piece of wood) twice, and in court he
maintained that he had not been aiming for the
deceased’s head, nor was he aware of the force he had
used (see [50] of the GD). Although he testified in
court that he could not remember where the second blow landed, this was
inconsistent with his statements, in which he
admitted hitting the deceased on the head on both
occasions, and, indeed, his statements indicate that Jabing was
in fact aiming for the deceased’s head, or was intending to
strike it. The trial judge in evaluating the evidence
noted that Jabing had admitted in his first
statement of 26 February 2008 that he swung the piece of wood towards
the head of the deceased and that the single blow
caused the deceased to fall onto the ground (see [56]
of the GD).
25 This account was confirmed by Galing’s statements to the police as follows:[note: 1]
[M]y friend Jabing was too violent
when hitting the Chinese man until he bled
profusely. I saw him hitting the Chinese man several times and his head cracked open. … I really regretted that Jabing hit him so many times until he died ...
Galing also stated:[note: 2]
When Jabing neared both of them, he used both his hands and swung the wood towards the right side of the bigger built male Chinese …
…
I gave up the chase and turned back towards Jabing who was
hitting the other Chinese with the wood in his hands repeatedly …
Although
Galing later attempted to question the accuracy of these
statements in what appears to be a belated attempt to downplay
Jabing’s culpability (see [12]
above), there was little reason to doubt that they
had been correctly recorded. Galing’s statements,
therefore, were evidence that Jabing struck the deceased more than
twice, and with considerable violence.
26 The violent assault on the deceased was corroborated by the medical evidence (summarised at [22]–[29]
of the GD), which was that the deceased had
sustained life-threatening injuries to his head and
brain. There was evidence from the forensic pathologist, Dr Teo Eng
Swee (“Dr Teo”), that there could have been more than
five blows to the deceased’s head, and both Dr Teo
and Dr Ho Chi Long (the physician who first attended
the deceased at the accident and emergency room) were
of the opinion that at least some of the injuries required “very
severe” or “huge” blunt force from several blows to be
inflicted. Dr Teo added that one of the fractures that
resulted in the initial fragmentation of the skull
required “severe force”.
27 In
light of all this evidence, as well as the fact that
the severe injuries found on the deceased were concentrated at the
region of his head, it is clear beyond a reasonable doubt
that Jabing intended to, and did, inflict multiple
head injuries on the deceased, and that such injuries
were certainly not accidental or unintentional.
28 As
for whether the injuries were sufficient in the
ordinary course of nature to cause death (the fourth Virsa Singh requirement), this was affirmed to be the case by Dr Teo.
29 Consequently,
the trial judge found as a fact that Jabing had
struck the deceased on the head in order to rob him, and that
the blow with the piece of wood was struck by Jabing with such
force that Galing saw his head crack open, and
concluded from this that Jabing’s actions fell within
s 300(c) of the Penal Code (see [62] of the GD).
30 Applying the Virsa Singh
test to the facts found by the trial judge, we affirm his
decision, and hold that Jabing was properly convicted of murder
under s 300(c) of the Penal Code, since his actions satisfied the actus reus and mens rea
required by that subsection. On appeal, the only
arguable defence raised by Jabing’s counsel was that he was drunk and
therefore not responsible for his actions. We reject
this and agree with the trial judge that the events
and Jabing’s statements to the investigators clearly
showed that he knew what he was doing. The defence of intoxication under
s 85(2) of the Penal Code applies in very narrow
circumstances, for the intoxication must result in
the accused not knowing that his actions were wrong
or not knowing what he was doing, and the intoxication must either have
been involuntary or the accused must have been, as a
result of the intoxication, insane at the material
time (see Tan Chor Jin v Public Prosecutor [2008] 4 SLR(R) 306 (“Tan Chor Jin”)
at [18]–[26]). Nor was there credible objective
evidence of Jabing’s level of intoxication at the
material time, and it could not be said that the surrounding facts
showed that Jabing was so intoxicated that he could
not form the intention required by s 300(c) of the Penal Code, ie,
the intention to inflict head injury. Hence, Jabing
could not avail himself of s 86(2) of the Penal Code by contending that
he was so intoxicated that he lacked the necessary mens rea under s 300(c) (see Tan Chor Jin at [27]–[29]).
Galing’s conviction for murder
31 Given
the clear evidence that Jabing was the one who
inflicted the fatal injuries on the deceased, the trial judge did not
find, and the Prosecution did not argue, that Galing’s
assault on the deceased caused or contributed in any
way to the latter’s death. Consequently, the
Prosecution has failed to establish that Galing’s blow
caused any serious injury to the deceased. Therefore, convicting him
of the murder of the deceased under s 302 of the
Penal Code is only sustainable in law if he is deemed
to be constructively liable under s 34 of the Penal
Code.
The common intention
32 It is clear from Daniel Vijay
(at [93], [107], [119], [143], [176] and [178]) that, in
order for Galing to be convicted of murder under s 302 read with
s 34 of the Penal Code, the common intention that
Galing must have shared with Jabing is a common intention to do the criminal act done by the actual doer which results in the offence charged (what was termed the “Barendra test” (after Barendra Kumar Ghosh v Emperor AIR 1925 PC 1) in [107] of Daniel Vijay), ie, a common intention to commit murder. This common intention can be contingent or remote (see [159] of Daniel Vijay), can even be predicated upon (or encompass) a common intention to commit robbery (see [104] of Daniel Vijay),
and implies a “pre-arranged plan” pursuant to which
the criminal act was done (see [108] and [109] of
Daniel Vijay).
33 When
murder is committed in the course of robbery by two
or more persons, a secondary offender is constructively liable
for the murder actually committed only if he has the common
intention with the actual doer to commit murder (as
defined in s 300 of the Penal Code). Such a common
intention may, depending on the circumstances, be inferred if the
secondary offender is found to have subjective knowledge
that “one in his party may likely commit the
criminal act (murder) constituting the collateral
offence in furtherance of the common intention of
carrying out the primary offence (robbery)” (see [89] and [168(f)] of
Daniel Vijay). This requirement of subjective knowledge derives from [253(d)] of Lee Chez Kee, and was termed the “LCK requirement” in Daniel Vijay
(at [42]). Such a common intention may, of course,
be also found as a fact from the conduct of the secondary
offender on the evidence before the court.
34 In
the present case, what is clear is that Jabing and
Galing had a common intention to rob the two victims. This is not
disputed. However, the trial judge found that Galing had an
intention in common with Jabing to commit a s 300(c)
injury on the deceased because he assaulted the
deceased with his belt buckle after Jabing had struck
the deceased several blows to the head. It was argued by the
Prosecution that Galing’s conduct evinced an intention in
common with Jabing to kill or to inflict an s 300(c)
injury on the deceased in order to rob him. Hence,
there was a common intention between them to rob as
well as to murder.
35 We
consider that the evidence does not support the
Prosecution’s case on this basis for the following reasons:
(a) While
Galing and Jabing had a common intention to
commit robbery at Geylang, there was no evidence of any prior
discussions or planning between the two of them as to how
the robbery would be carried out, whether any
weapons would be used, what force should be used
if the victims resisted, etc.
(b) Galing
and Jabing were unarmed when they decided to rob the two victims.
Jabing’s picking up and using the piece of wood was
opportunistic and improvisational and Galing’s
use of his belt was equally so (ie, hardly part of a “pre-arranged plan” (see [32] above)).
(c) There
was insufficient evidence as to what kind of
injury was caused by Galing using his belt buckle
and, unless Galing had used it to strike the deceased very
hard on the head (and there was no evidence that this had
occurred) it could not have been a s 300(c) kind of injury.
(d) Although
Galing was in a position, and afforded the opportunity, to inflict
more severe wounds on the deceased, the fact that he
did not do so suggests that his intention all
along was to rob, as well as cause hurt while doing so, and not to inflict a s 300(c) injury.
(e) Galing
did not assault the deceased in a manner which
would have made it easier for Jabing to cause the s 300(c) injury, eg,
by distracting the deceased, or restraining or
incapacitating him so that Jabing would have been
presented with a more vulnerable victim.
36 In our view, a common intention to rob, and if necessary, to inflict a s 300(c)
injury on two random victims, as here, cannot be
made out unless there is evidence of some kind of
planning or understanding between Jabing and Galing as to what they
would do and how they would do it in order to rob the
victims. There is no such evidence before us. The
trial judge appeared to have held (see [55] of the GD)
that Galing had a common intention with Jabing to inflict a s 300(c)
injury on the deceased because “Galing had not said
in his statements and his evidence that he was surprised when Jabing
held the branch in both hands and struck the deceased
with it.” This led the Judge to find (at [55] of the
GD) that:
Galing
knew that when he and Jabing robbed the deceased, the deceased
would be assaulted and serious injuries might be
inflicted on him.
We do not agree that this inference, even if supportable, is sufficient to satisfy the Barendra test. As this Court has said in Daniel Vijay
(at [65]), knowledge is not intention, although it
is a basis on which intention could be inferred. All
that can be said at the highest is that Galing failed to stop
Jabing from hitting the deceased so viciously on the head.
37 Nothing
we have said, however, should be taken to mean that
Galing’s role in this robbery-murder does not require severe
condemnation. Such violent crimes cannot be condoned in any
civilised society, and Galing was fortunate that the
evidence adduced by the Prosecution was insufficient
to support the charge brought against him.
Conclusion
38 For
these reasons, we agree with the finding of the
trial judge that Jabing committed murder, but under s 302 of the
Penal Code, and dismiss his appeal. We allow Galing’s appeal
but substitute for his conviction of murder a
conviction of the offence of robbery with hurt
committed in furtherance of a common intention under s 394 read
with s 34 of the Penal Code. Galing’s conviction is remitted
to the trial judge for sentencing.
[note: 1]Record of Proceedings, vol 4, pp 236 and 237
[note: 2]Record of Proceedings, vol 4, pp 252 and 255
Source: SingaporeLaw.sg
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