Transferred Malice in the Singapore Penal Code

The article examines the application of the doctrine of transferred malice in Singapore.

I Introduction

The English common law doctrine of ‘transferred malice’ states that ‘where the actus reus and mens rea elements of the same crime coincide, in that a defendant, with the mens rea of a particular crime, has caused the actus reus of the same crime, then the defendant is guilty of that crime, even though the result, in some respects is an unintended one.’¹ For instance, if A intends to cause hurt to B but at the time of execution, A misses B and accidentally injures C instead, A commits an offence against C as A’s intention to hurt B has been ‘transferred’ to C.

Over the last 40 years or so, the doctrine of ‘transferred malice’ has come under heavy fire from a number of academic commentators, notably Andrew Ashworth² and Glanville Williams.³ More recently, even the House of Lords has frowned on the doctrine,⁴ calling it ‘a misleading label but one which is too firmly entrenched to be discarded’⁵ and criticising it for ‘its lack of any sound intellectual basis’.⁶

But in Singapore, the High Court case of Sim Yew Thong v Ng Loy Nam Thomas and other appeals⁷ in 2000 appeared to have breathed new life into the doctrine. Although the High Court recognised that there was no general common law doctrine of ‘transferred malice’ in Singapore law, the doctrine could still apply in a specific and limited way for the offence of voluntarily causing hurt under s 323 of the Penal Code (Cap 224).⁸

In this article, I shall illustrate that the doctrine of ‘transferred malice’ has a potentially wider role to play in the Penal Code than previously thought. Part II of this article will examine the origins of the English common law doctrine of ‘transferred malice’. Part III will discuss the Singapore High Court decision of Sim Yew Thong where the court referred to the doctrine of ‘transferred malice.’ Part IV will examine the challenges in applying the doctrine of ‘transferred malice’ to other sections of the Penal Code.

 II Origins of the Doctrine of ‘Transferred Malice’

The history of the English common law doctrine of ‘transferred malice’ goes back to 16th century Europe, just after the end of what is popularly known as ‘the Middle Ages’. In R v Saunders and Archer,⁹ John Saunders was found guilty of the murder of his daughter who had consumed part of a poisoned apple he had given to his wife. Saunders had only intended to kill his wife in order to marry another woman, but had no intention of harming his daughter.

In Gore,¹⁰ the accused tried to kill her husband by mixing rat poison into his medicine. He did not die but passed the tainted medicine to his apothecary who, in order to prove that there was nothing wrong with the medicine, drank it and died. The accused was convicted for the murder of the apothecary.

The doctrine of transferred malice is not ‘merely of transferred intention’.¹¹ It is not limited to a transfer of ‘malice’,¹² but applies to transfer recklessness as well.¹³ Although the doctrine of transferred malice may seem rather artificial, it rests on a very simple and logical principle, namely, that ‘the accused is as culpable, and society is harmed as much, as though he had accomplished the result he had intended’.¹⁴ The identity of the victim is immaterial since the accused has set out to commit a crime and does commit the crime.¹⁵ 

For example, in R v Latimer,¹⁶ the accused had quarrelled with one Thomas Evan Chapple in a public-house. After Chapple struck the accused, the accused left the public-house but returned five minutes later with a belt. As the accused passed by where Chapple was sitting, he aimed a blow at Chapple with his belt which struck Chapple lightly. However, the belt bounded off and accidentally struck the face of the victim, who had been standing close to Chapple. The Court of Crown Cases Reserved upheld the accused’s conviction for unlawfully and maliciously wounding the victim.

Even though the accused in Latimer did not set out to strike the victim with the belt, the injury sustained by the victim was the same as if Chapple had been struck. It was immaterial that the victim, and not Chapple, was struck. As one textbook writer puts it: ‘If A kills in furtherance of a murderous intention what principle of morality is breached and what aim of punishment confounded if we convict him of murder?’¹⁷ 

III Sim Yew Thong v Ng Loy Nam Thomas

The doctrine of ‘transferrted malice’ has been incorporated into the Penal Code by virtue of s 301¹⁸ for cases of culpable homicide. Prior to the decision in Sim Yew Thong, there was no suggestion by the Singapore courts that the doctrine of ‘transferred malice’ could apply to offences under the Penal Code other than s 301.

In Sim Yew Thong, two accused persons were alleged to have injured one Thomas Ng and his mother Madam Sim during a confrontation in a Chinese temple. After a heated exchange of words between the first accused and Thomas Ng, the first accused punched Thomas Ng hard, causing him to fall to the ground.

Madam Sim was an old woman who was hard of hearing. She had been oblivious to the confrontation between the first accused and Thomas Ng as she had been searching for her relative’s tablet on the shelves. Just when Thomas Ng fell to the ground, Madam Sim turned around to talk to him and found him lying on the ground. As she hurried over to his side to help him up by his left arm, the second accused came charging towards them, and pushed both of them to the ground. As a result, Madam Sim fractured a vertebrae located in the middle of the back and Thomas Ng sustained minor injuries. Subsequently, Thomas Ng and Madam Sim took out private summonses against the two accused persons.

At first instance, each of the accused persons was charged on two counts of voluntarily causing hurt to Thomas Ng and Madam Sim in furtherance of their common intention.¹⁹ At the end of the trial, the magistrate found that common intention had not been proven beyond a reasonable doubt and amended the charges against the accused persons by removing the element of common intention for three of the four charges. The first accused was acquitted of the charge of voluntarily causing hurt to Madam Sim.²⁰ 

The conviction of the second accused for the offence of voluntarily causing hurt to Madam Sim by pushing her and causing her to fall was one of the issues raised in the appeal. The second accused contended that he should not have been convicted for voluntarily causing hurt to Madam Sim as it was an ‘accident’ and he had intended to push and actually only pushed Thomas Ng.

It was not entirely clear from the decision in Sim Yew Thong whether the High Court had accepted the magistrate’s findings that the second accused had pushed Madam Sim on her palm, thus causing her to lose her balance and to fall down. The High Court nevertheless went on to consider the second accused’s contention that he had not pushed Madam Sim.

The High Court referred to the doctrine of transferred malice and commented that under English law, it was clear that the second accused would be liable.²¹ He referred to the English Court of Appeal case of R v Mitchell,^22t where the facts were rather similar to Sim Yew Thong. In Mitchell, the accused, a young man, had hit a person in an argument at a post office. As a result, that person fell against an 89-year-old woman who died of a fractured femur subsequently. The accused was convicted of manslaughter of the old woman. Staughton J held that although there was no direct contact between the accused and the old woman, she was injured as a direct and immediate result of his acts.²³ There was no policy reason for holding that an act calculated to harm A could not be manslaughter if it in fact killed B. The criminality of the doer of the act was precisely the same whether it was A or B who died.²⁴ 

The High Court held that there was no general common law doctrine of ‘transferred malice’ in Singapore law, but there was no doubt that the second accused was guilty of voluntarily causing hurt to Madam Sim on a plain reading of s 321 of the Penal Code. The court then went on to say:²⁵ 

In any event, s 321 of the PC is worded in such a way that the intended victim need not be the actual victim … Undoubtedly, the use of the words ‘any person’ throughout the section was deliberate. The purpose of this must have been to allow the section to cover cases where the defendant, with the intention to cause hurt to O, or knowing that he was likely by his act to cause hurt to O, actually causes hurt to P in the process. 
In effect, this is a very specific and limited statutory application of the doctrine of ‘transferred malice’ (emphasis added).

This was the very first time that the Singapore courts announced that the doctrine of ‘transferred malice’ had a role to play in offences under the Penal Code other than s 301. The implications of this unexpected statement will be examined in the next Part.

IV Extending the Doctrine of ‘Transferred Malice’ in Singapore

The High Court’s statement that s 321 of the Penal Code was a very specific and limited statutory application of the doctrine of ‘transferred malice’ was probably obiter dicta. Nevertheless, it was the correct view. In fact, the same point had been decided by the High Court of Calcutta in Empress v Sahae Rae²⁶ more than 130 years ago. In that case, the accused had been convicted of grievous hurt under s 322 of the Indian Penal Code²⁷ for striking an infant carried by the intended victim, even though he did not intend to injure the infant at all. The High Court of Calcutta found that the general language of s 321 of the Indian Penal Code²⁸ covered ‘a case in which a man intending to aim a blow at one person strikes another’.²⁹ 

However, the doctrine of ‘transferred malice’ does not apply in every case under s 321 of the Penal Code. For example, Ratanlal & Dhirajlal’s Law of Crimes³⁰ cites the case of Dayal Singh³¹ which was very similar to the facts in Sahae Rae. In Dayal Singh, the accused had also struck and killed an infant carried by the intended victim. But as it was too dark for the accused to have seen that the victim was carrying the infant, the court only convicted the accused of the offence of voluntarily causing grievous hurt to the victim.

The test as to whether the doctrine of ‘transferred malice’ applies under s 321 of the Penal Code therefore appears to be one of ‘foreseeability’. If the injury caused to the unintended victim was not a foreseeable result of the accused’s actions, the court would not be inclined to apply the doctrine of ‘transferred malice’ in order to convict the accused of an offence against the unintended victim. Thus, the cases of Sahae Rae and Dayal Singh can be distinguished on the ‘foreseeability’ principle. While the accused in Dayal Singh could not have reasonably foreseen that the intended victim was carrying an infant in her arms, the accused on the facts in Sahae Rae had no such difficulty and knew that his blows would probably cause grievous hurt to the infant.

It follows from the above that, subject to the ‘foreseeability’ principle, the doctrine of ‘transferred malice’ would also apply to the aggravated offences under s 324 (voluntarily causing hurt by dangerous weapons or means) and s 326 (voluntarily causing grievous hurt by dangerous weapons or means) of the Penal Code.

An interesting question arises whether the doctrine of ‘transferred malice’ would apply where mens rea may be transferred from one offence to a lesser crime of the same kind. For example, suppose A had intended to hurt B with a knife, but dropped the knife at the critical moment and instead punched C who suddenly appeared in front of B. Could A’s mens rea under s 324 of the Penal Code be transferred to the offence under s 323?

On a narrow interpretation of the doctrine of ‘transferred malice’, such transfer would not be allowed since only mens rea within the same offence may be transferred. On the other hand, one learned commentator, Andrew Ashworth, thought that the doctrine of ‘transferred malice’ should still apply if the harm intended in such cases was of the ‘same legal kind’.³² It is suggested that since the same mens rea is required under sections 323 and 324, the wider formulation of the doctrine of ‘transferred malice’ should be preferred.

Conversely, could the doctrine of ‘transferred malice’ apply where mens rea may be transferred from one offence to a more serious crime of the same kind? For example, in the case of McBride v Turnock,³³ A had a quarrel with B and assaulted B. In the course of the assault, some of the blows struck C, a police officer who was nearby and acting in the discharge of his duty. The court convicted A of aggravated assault of the police officer even though his ‘malice’ was only that of common assault.

In Singapore, would A be guilty of the more serious offence of voluntarily causing hurt to a public servant in the discharge of his duty as a public servant under s 332 of the Penal Code, even though he only had the mens rea for voluntarily causing hurt? It has been observed that the holding in McBride was technically justifiable because of the decision in R v Forbes and Webb³⁴ that it was no defence to a charge of assaulting a policeman in the execution of his duty that the accused had a positive belief that the person assaulted was not a constable on duty.³⁵ Since the ‘malice’ required for the crime of aggravated assault was the same as that of a common assault, it was therefore transferable.³⁶ While the point does not appear to have been decided in Singapore, it is likely that such a transfer of mens rea would be allowed, given that the same mens rea is required under sections 323 and 332.

Section 328 of the Penal Code presents a trickier problem for the application of the doctrine of ‘transferred malice’. Section 328 makes it an offence to administer, or caused to be taken by, any person any poison or any stupefying, intoxicating or unwholesome drug or other thing, with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt.

Unlike the wording in s 321 of the Penal Code, s 328 is less clear that the intended victim need not be the actual victim. Ratanlal & Dhirajlal’s Law of Crimes³⁷ suggests that by virtue of the words ‘any person’, the hurt need not be intended for any particular person and may be directed at someone unknown. However, it is difficult to see how an accused could have a specific intent to cause hurt to someone who he could not have reasonably foreseen to take the poison. Moreover, the phrase ‘with intent to cause hurt to such person’ in s 328 appears to bar the application of the doctrine of ‘transferred malice’. Suppose A, unknown to the accused, took the poison and passed it to B, another person unknown to the accused, who was also hurt as a result of taking the poison. It is unclear from the wording of s 328 whether the accused’s intent to cause hurt to A can be ‘transferred’ to B. This may be a good time for Parliament to review the language of s 328 to make it clear that the doctrine of ‘transferred malice’ applies in such a scenario.

Under the English common law doctrine of ‘transferred malice’, it is generally accepted that where the accused has the mens rea for one offence but commits the actus reus of another offence of a different legal kind, the doctrine does not apply.³⁸ Thus, in R v Pembliton,³⁹ the accused was drinking with others at a public-house. Late at night, a fight broke out in the street near the public-house. After fighting for some time, the accused broke away, picked up a large stone and threw it at the people he had been fighting with. The stone passed over the heads of those people, and struck a large plate glass window in the victim’s public-house, and broke it. At first instance, the accused was found guilty of unlawfully and maliciously damaging the window. On appeal, the court quashed the conviction on the basis that the accused had intended to strike the persons he had been fighting with, and did not intend to break the window.

If the facts in Pembliton were to occur in Singapore today, it is likely that the courts would come to the same conclusion, ie that the accused is not guilty of an offence of voluntarily causing hurt or using criminal force⁴⁰ as he does not have the requisite mens rea for those offences. Nevertheless, as some commentators have suggested,⁴¹ there is no reason why the accused cannot be charged with attempting to injure the other participants in the fight⁴² or for committing mischief.⁴³

Conclusion

While the doctrine of ‘transferred malice’ in England appears to be heading towards oblivion, the case of Sim Yew Thong has given it a new lease of life in Singapore. Potentially, the doctrine may be applied to a number of offences under the Penal Code, subject to the ‘foreseeability’ principle. Where mens rea may be transferred between different offences, the suggested approach is to see whether these offences are of the same legal kind. If, like in the English case of Pembliton, the offences are of entirely different species, the doctrine of ‘transferred malice’ is unlikely to apply and other alternatives will have to be explored. Section 328 of the Penal Code presents a unique challenge to the application of the doctrine and this may be a good time to refine its language. It remains to be seen how prosecutors and defence lawyers will test the limits of the doctrine of ‘transferred malice’ in the crucible of real-world application.

Alvin Chen^*

Lee & Lee

E-mail: alvinchen@leenlee.com.sg

Endnotes:

1      Sim Yew Thong v Ng Loy Nam Thomas and other appeals [2000] 4 SLR 193, at 200.

2      AJ Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ in P Glazebrook, Reshaping the Criminal Law (1978), 77–94 at 85–7.

3      Glanville Williams, Criminal Law: The General Part (2nd ed, 1961), paras 47–9.

4      Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936.

5      Ibid, at 941.

6      Supra, note 4, at 948.

7      [2000] 4 SLR 193.

8      Ibid, at 200–01.

9      (1573) 2 Plowden 473.

10   (1611) Co Rep 81.

11   AP Simester and GR Sullivan, Criminal Law Theory and Doctrine (2001) at 149.

12   Card, Cross and Jones, Criminal Law (15th ed, 2001) para 3.55.

13   Supra, note 14, at 197.

14   Wilfred J Ritz, ‘Felony Murder, Transferred Intent, and the Palsgraf Doctrine in the Criminal Law’ (1959) Washington and Lee Law Review 169, at 171.

15   CMV Clarkson and HM Keating, Criminal Law: Text and Materials (5th ed, 2003) at 188.

16   (1886–87) 17 QBD 359.

17   William Wilson, Criminal Law: Doctrine and Theory (2nd ed, 2003) at 200.

18   ‘If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.’

19   Singapore Subordinate Court Judgments Magistrate’s Appeals, vol 8, May 2002, 280–292, at 281.

20   Ibid, at 281 and 291.

21   Supra, note 7, at 200.

22   [1983] 2 All ER 427.

23   Ibid, at 432.

24   Ibid, at 431.

25   Supra, note 7, para 19 at 201.

26   [1873] ILR 3 Cal 623.

27   Which is identical to s 322 of the Singapore Penal Code.

28   Which is identical to s 321 of the Singapore Penal Code. The offence of ‘voluntarily causing grievous hurt’ under s 322 incorporates the definition of ‘voluntarily causing hurt’ under s 321.

29   Koh Kheng Lian and Molly Cheang, The Penal Codes of Singapore and Malaysia, vol II, at page 267.

30   25th ed, 2003, at 1657.

31   AIR 1924 Lah 47: (1923) 24 Cri LJ 4 (Lah).

32   Supra, note 2, at 82.

33   [1964] Crim LR 456.

34   (1865) 10 Cox CC 362.

35   Supra, note 33, at 457.

36   Ibid.

37   Supra, note 30, at 1689.

38   Mike Molan, Duncan Bloy and Denis Lanser, Modern Criminal Law (5th ed, 2003) at 81.

39   [1874–80] All ER Rep 1163, CCR.

40   See sections 350 and 352 of the Penal Code.

41   Alan Reed and Peter Seago, Criminal Law (2nd ed, 2002) at 92.

42   Under s 323 read with s 511 of the Penal Code.

43   Under sections 426 or 427 of the Penal Code, depending on the amount of damage caused.

*      The author contributes this article in his personal capacity.