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The Court of Appeal: Wounded Murder Decisions?

This article examines the reasoning of the trial courts and the Courts of Appeal in the cases of Lim Poh Lye and Took Ling How. It considers the elements of culpable homicide and murder in Lim’s case and causation in Took’s case where there was a strong dissenting judgment which concluded that the offence committed was that of causing hurt and not murder.

Introduction

The Sunday Times of 2 April 2006 in an article entitled ‘Maids who killed – and spared the gallows’ noting the final decisions in six cases where maids were involved, asked:

… the question that is being asked by cynics: What signal is being sent to the public with the recent spate of killer maids being spared the gallows?

The maids Thamayanthi, Sundarti, Juminem and Siti Aminah who were charged with murder were convicted of causing grievous hurt, culpable homicide not amounting to murder, culpable homicide not amounting to murder and culpable homicide respectively whereas the maids Purwanti and Rohana who were charged with culpable homicide not amounting to murder were convicted as charged. Thamayanthi was sentenced to four-and-a-half years in prison after being convicted of causing grievous hurt.

Mr Subhas Anandan, a leading member of the criminal bar who defended one of the maids charged with culpable homicide and convicted of culpable homicide not amounting to murder, in the same article, said ‘every case is different, with its own unique circumstances’.

There are, however, cases where the question is not being asked by cynics but by lawyers and the accused are not maids but citizens whose right to life and liberty are protected by the Constitution. The cases of Lim Poh Lye and Took Leng How will be considered – Lim Poh Lye in respect of the elements of the offence of murder and Took Leng How on establishing causation beyond a reasonable doubt.

No person must be punished for an act which is not punishable by law when it was done and no person shall suffer greater punishment for an offence that was prescribed by law at the time it was committed (art 11(1) Constitution of the Republic of Singapore).

Two decisions of the Court of Appeal:

1 on an appeal from an order of acquittal on a charge of murder under s 300(c) by the High Court; and

2 on an appeal from conviction for murder where an appellate judge of the Court of Appeal wrote a lengthy dissenting judgment raising threshold issues that must be considered carefully in the public interest, especially since the dissenting judge disagreeing with his bretheren concluded:

… the appellant should be convicted for an offence of involuntarily causing hurt an offence under s 323 of the Penal Code …

The punishment prescribed by law for an offence of causing hurt is imprisonment for a term which may extend to one year or a fine which may extend to $1,000, or both. The punishment for murder is a mandatory death sentence and the punishment for culpable homicide not amounting to murder extends from imprisonment for life to a fine.

The question is whether Lim Poh Lye, who was acquitted, suffered greater punishment and whether Took Leng How could in good conscience be punished for murder on the strength of the doctor’s evidence being accepted by the majority when the expert was disposed to speculate with respect to sexual assault in the manner set out in para 30 of the trial judges’ judgment (see ‘Sexual Assault’ below), and the conclusion of the dissenting appellate judge.

In this paper, it is submitted that Lim Poh Lye who was acquitted was only guilty of the offence of culpable homicide not amounting to murder and that he has suffered greater punishment. Took who was convicted of murder cannot in good conscience suffer death since there is a reasonable doubt as to whether he committed an offence of murder. Public interest is not served when persons are made to suffer greater punishment.

PP v Lim Poh Lye

In Public Prosecutor v Lim Poh Lye and anor [2005] SLR 130 the prosecution’s presentation of the murder case was described by the trial judge (Choo J) as follows:

The learned Deputy Public Prosecutor, Mr Amarjit Singh, presented his case on the basis of s 300(c). The evidence does not seem to suggest otherwise. From Dr Tan we know that the injury known as “Stab Wound No 2” was sufficient in the ordinary course of nature to cause death. The person who intentionally caused Stab Wound No 2 must, therefore, be guilty of murder. But the case is not that simple.

The question that is being asked by lawyers is whether the fine distinction that exists between offences, especially between murder and culpable homicide, and the facts in relation to the law of causation under the Penal Code are properly considered?

In Lim’s case, Choo J following the Singapore Court of Appeal’s decision in Tan Chee Hwee v PP [1993] 2 SLR 657 made a vital finding of fact in the following terms (para 16):

… I find therefore that the severing of Bock’s femoral vein was not intentional, but in the language of Tan Chwee Hwee accidental.

Choo J further relied on the Indian Supreme Court case of Harjinder Singh Alias Jinda v Delhi Administration [1968] 2 SCR 246 where the accused at first instance was convicted of murder for stabbing the deceased in the thigh, and in so doing, severed the artery. On appeal, the Supreme Court of India after considering Virsa Singh’s case [1958] SCR 1495 accepted the appellant’s submission that when the accused stabbed the deceased, the accused did not aim ‘the blow at this particular part of the thigh knowing that it would cut the artery.’ [emphasis mine]

Choo J reduced the charge of murder to an offence of robbery with hurt, the legal effect being that the accused was acquitted of the charge of murder.

The prosecution appealed against the acquittal under the provisions of the Supreme Court of Judicature Act. The Court of Appeal allowed the appeal and convicted the respondents of an offence of murder and sentenced the respondents to death. The Court of Appeal’s decision to convict the respondents on appeal and sentence the respondents to death is a long story, to which we must come back later.

Briefly, the question is whether it is proper for a Court of Appeal on an appeal by the prosecution against acquittal to set aside an acquittal and convict the respondents and sentence them to death when art 11 provides as follows:

11(1) …

11(2) A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.

PP v Took Leng How

I must now turn to another case that is of interest to lawyers. In PP v Took Leng How [2005] SGHC 154 the accused was charged with murder for causing the death of an eight-year-old girl. Took, a Malaysian, was convicted and sentenced to death.

At the trial, the defence submitted that the prosecution had not proved the cause of death as there were alternative ways by which the deceased could have died. The prosecution’s expert witness, Dr Chui, who had certified the cause of death as ‘acute airway occlusion’, had accepted that the deceased could have died from fits or of suffocation. In other words, the accused may not have caused the death of the deceased as required by law.

Mr Anandan who defended Took submitted that the prosecution had not established an essential ingredient of the charge of murder under s 300(a) or (c) of the Penal Code. It was not sufficient for the prosecution to simply say that it was possible for the deceased to have died from being smothered by the accused. The trial court rejected the defence submission, convicted Took and sentenced him to death. Took appealed.

Sexual Assault

The prosecution’s case, among other things, was that the accused had sexually assaulted the victim after having stripped off her clothes.

Dr Paul Chui who conducted the autopsy is a pathologist. Besides certifying the cause of death as being ‘acute airway occlusion’, he also testified on the sexual assault. The trial judges’ findings on the sexual assault are as follows (para 30):

With regards to the question of sexual assault, Dr Chui in his report stated that there was no physical evidence to indicate as such. In particular, there was no injury or interference to the deceased’s vagina or anus based on the physical evidence on the body at the time of autopsy. However, Dr Chui explained at trial that this did not automatically mean that no sexual assault had in fact taken place. This was because the negative finding could mean a few things. First, it could mean that there was no sexual assault. Second, there might have been sexual assault but it left no evidence. In particular, no damage might have been caused to the hymen even if the accused had in fact used his finger to penetrate the deceased’s vagina, due to the inherent elasticity of the hymen. The same could be said of penetration to the anus. Third, the negative finding could mean that there was sexual assault but the indicators that were initially present had been removed or destroyed due to the deterioration. For instance, any discharged semen, which is biological material, might have deteriorated with time and hence became undetectable. [emphasis mine]

In the absence of physical evidence, Dr Paul Chui’s evidence on what may have taken place should have been supported by medical literature.

On a lighter note, it is useful to recall the exchange that took place between a doctor and Mr Justice Stable in a different case if only because the dissenting judge Kan J, at the Court of Appeal found it necessary to say (para 87):

Dr Chui is not a clinician, and did not state any views on the likelihood of a fit as a cause of death in his autopsy report or his conditioned statement.

[Mr Justice Stable] The Judge: “Doctor, I recall you appeared before me some time ago in a matrimonial case as an expert in psychiatry, and I seem to remember you appearing before me in a road traffic case as an expert in orthopaedic surgery. Now you are today appearing in a medical negligence case as an expert in cardiology. I would like to know precisely what it is you are an expert in?”

The doctor replied without hesitation: “I am an expert in giving evidence in a court of law, my Lord.”

The Court of Appeal

Before the Court of Appeal in Took Leng How v Public Prosecutor [2006] SGCA 70 the appellant submitted, inter alia:

1 that the conviction was unsafe given the judges’ erroneous finding of fact that the appellant had caused the death of the deceased; and

2 that the conviction was unsafe given the judges’ erroneous finding of fact that the appellant had intentionally caused the death of the deceased.

It was pointed that:

1 Dr Paul Chui’s evidence was that smothering was only one of the possible causes of death.

2 The smothering hypothesis was not consistent with the evidence of the appellant on which the judge relied.

3 Dr Paul Chui had accepted the possibility of the deceased choking on her own vomit or blood as possible causes of the occlusion.

4 Dr Paul Chui had accepted a possible head trauma could have caused a seizure which resulted in the occlusion.

Took’s appeal was dismissed but there is a refreshing dissenting judgment by Kan J where Kan J, in a carefully reasoned dissenting judgment, stressed the importance of legal causation. He said:

The absence of injuries to the nose when bruises to other regions were present raised a doubt whether there was smothering of the nose. The vomitus, bruised tongue and faecal discharge, the possibility of a spontaneous fit and the incomplete family history also created a doubt whether death resulted from smothering. This is not a fanciful possibility. It was a serious doubt the prosecution had to remove if it were to prove its case, and the prosecution had not done that. [emphasis mine]

He then concluded as follows:

My conclusion is that the appellant’s conviction for murder should be set aside as there was a reasonable doubt whether the appellant caused the deceased’s death by smothering her mouth and nose, or whether she died as a result of a fit. In place of that, the appellant should be convicted for an offence of voluntarily causing hurt, an offence under s 323 of the Penal Code on the basis of the admissions in his investigation statements, as corroborated by the post-mortem findings. [emphasis mine]

In Took’s case, two judges of the Court of Appeal disagreed with the dissenting judge on the cause of the death. Two judges were of the view that the accused had killed the deceased by smothering her mouth and nose on the strength of Dr Paul Chui’s evidence. Kan J’s conclusion was that there was a reasonable doubt as to whether the appellant had caused the death by smothering her mouth and nose, and whether she died as a result of a fit emphasises the need to look at the facts of a case closely even as Choo J did in Lim Poh Lye’s case especially when the prosecution’s case is that there was murder within the meaning of limbs (a) and (c) of s 300.

The Straits Times

Senior writer of the Straits Times, Andy Ho, commenting on the decision of the Court of Appeal (Straits Times Saturday, 25 February 2006 ‘Huang Na Verdict: The Nose and the Noose’) and recognising the importance of Kan J’s observation, wrote:

To be sure, the pathologist was a pathologist and not a paediatric neurologist. The latter would have been able to say more authoritatively how likely a fit would have led to Huang Na’s death.

Mr Ho could have added with equal force that unsupported theories of causation suggested by the pathologist may have resulted in the majority of the Court of Appeal favouring the pathologist’s suggestion that ‘the bruised tongue, the vomitus in her (mouth) the spasms and loss of bowel control described by the accused could also occur in the last minutes before death’ when the case for the defence was that a ‘thud’ was heard and the accused found the deceased on the floor in a fit. Therefore, Kan J the dissenting judge, properly observed in his dissenting judgment (para 91):

It should also be noted that Dr Chui’s answer that a seizure could be a manifestation of the dying process was made in reply to a general question, not against the background of the events described by the appellant, where the deceased was vomiting and going into spasms even before the appellant touched her. If the fits and spasms happened at that initial stage, they would not be a part of the dying process. There was also no clarification on the likelihood of a person like the deceased having a seizure in the course of dying from an occlusion of the airway. [emphasis mine]

Causation

One of the basic requirements of actus reus is that the accused must have caused the harm in question. The law of causation has both a common law and a statutory component. At common law, a distinction is made between factual causation and legal causation. Not everything that is considered a cause ‘in fact’ is also considered a cause ‘in law’. A ‘cause in fact’ (also known as a ‘but for’ or ‘sine qua non’) is any cause without which the event in question would not have come to be. Without factual causation, there is no liability.

A legal cause is one that is ‘not too remote’ or that is ‘proximate’ to the harm. In homicide cases, it has been described as an ‘operating and substantial cause’ of the harm. It must be the operating and substantial cause because an intervening act can break the chain of causation. (See Chan, Hor, Ramraj, Fundamental Principles of Criminal Law p 121).

The common law principles are codified in the Penal Code. The explanation to s 299 of the Penal Code on culpable homicide provides:

… where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

The chain of causation is not broken by the negligent conduct of third parties but it can be broken by the conduct of the victim who is negligent eg refusing a blood transfusion to save his life.

There was, in Took’s case, no conclusive evidence of the cause of occlusion of the airway. If it was caused by smothering as Dr Chui had concluded, it was murder. If it was the result of a fit, no offence of murder was disclosed and the prosecution failed to prove a case of murder beyond a reasonable doubt.

It is therefore submitted that Kan J correctly concluded that the conviction for murder should be set aside as there was a reasonable doubt whether the appellant caused the deceased’s death by smothering her mouth and nose, or whether she died as a result of a fit.

The Law on Murder

There are international standards for protecting the innocent. UN Safeguard No 4 for the protection of the rights of those facing the death penalty states that ‘capital punishment may be imposed only when the guilt of the person charged is based on clear and convincing evidence leaving no room for an alternative explanation of the facts’. (Roger Hood, The Death Penalty: A World-wide Perspective).

In Took’s case, we have an alternative judicial explanation of the facts. Took is a Malaysian. It is submitted that regard must be had to International Standards for both domestic and international cases.

The cases raised by the Sunday Times and the decisions by Choo J and Kan J make it most desirable that an effort should be made to distinguish between premeditated murder, the perpetrator of which is never an object of pity, and unpremeditated killing. Sir James Fitzjames Stephen urged that the right course was to define murder as to include the class of cases which ought to be punished with death, and to make all other cases manslaughter, which would be culpable homicide not amounting to murder in the Penal Code.

In the scheme of the Penal Code, culpable homicide is genus and murder, its specie. All murder is culpable homicide but not vice versa. The distinction between murder and culpable homicide not amounting to murder must always be undertaken whenever the principal question that has to be considered is whether the offence disclosed by the facts and circumstances established by the prosecution is ‘murder’ or culpable homicide not amounting to murder, as in the case of PP v Aguilar Guen Garlejo [2006] SGHC 94 where the maid was charged with having caused the death of Jane Parangan by strangling the deceased with both her hands with the intention of causing her death and thereby committing an offence of culpable homicide not amounting to murder punishable under s 304(a) of the Penal Code, Chapter 224 when causing death with the intention of causing death is always murder by reason of the words used in the first limb of ss 299 and 300(a) of the Penal Code, which are identical.

For the purpose of fixing punishment proportionate to the generic offence of culpable homicide defined in s 299 of the Code, it is, in effect, recognised that there are, what may be called, three degrees of culpable homicide:

1 culpable homicide of the first degree, the gravest form of culpable homicide which is defined in the first limb of s 300(a) as murder and is punishable under s 302 with death;

2 culpable homicide of the second degree. This is punishable for a term which may extend to life as provided in s 304(a); and

3 culpable homicide of the third degree punishable under s 304(b).

Fortunately for the accused Aguilar, who pleaded guilty to the charge of what in effect was a murder charge; the trial judge took into account the facts and circumstances that could have established the exceptions to murder: (a) sudden fight; (b) provocation; and (c) diminished responsibility, that were available to reduce murder to culpable homicide not amounting to murder. He then sentenced her to 10 years’ imprisonment under s 304 although Aguilar Guen Garlejo was charged with the intention of causing death, which is an offence of murder under s 300(a).

Starting Point

The starting point for a proper analysis to answer both the cynics and lawyers must be the law in ss 299 and 300, and other sections of the Penal Code to which a charge may be reduced for one of murder. The dilemma that was faced by the Singapore Court of Appeal in Lim Poh Lye’s case is not new. Indian judges have wrestled with it since 1876 and it is useful to look at an Indian case where unintended bleeding caused the death as in Lim Poh Lye’s case and the judicial problem it posed before it was clarified.

In Reg v Govinda Vol 1 1876–77 1 LR 343 (Bombay series) the prisoner knocked his wife down, put one knee on her chest and struck her two or three violent blows on the face with a closed fist, producing extravasation of blood on the brain, and she died in consequence, either on the spot or shortly afterwards.

‘Extravasation’ means an escape of fluid from the vessels or passages which ought to contain it. (Black’s Medical Dictionary, 38th edn, p 179).

A sentence of death was passed on the prisoner by the Sessions Judge, on a conviction of murder. The trial judge was of the view that the case raised three issues:

1 Whether the wife died from violence or not?

2 Whether the violence was inflicted by the prisoner?

3 Whether this was murder or the offence of culpable homicide?

The judge answered the first issue by saying that the wife died from effusion of blood on the brain, arising from a blow just above and towards the inner view corner of the left eye. There were 10 marks of beating on the back in several places as well as the contusion on the eye, and the bleeding at the nose was probably caused by the blow in this neighbourhood. More injuries may have been inflicted. The medical evidence was clear on one point – that death arose from effusion of blood on the brain.

The second issue was decided in the affirmative.

On the third issue the judge said:

I must hold that it was the more serious offence. There was no grave and sudden provocation, but this last beating seems to have been the conclusion of a long-continued series of beatings and the violence committed was such that the prisoner in committing it, took on himself the risk of causing death thereby … .

When the case went up on appeal before the High Court of two judges in India, their Lordships at the outset said that there was a difference of opinion between them as to what offence the prisoner had committed. Cynics, lawyers, prosecutors and judges at all levels may wish to note the difficulty that was detected as early as 1876 and which still exists in our law on murder. An opinion was requested from a third judge, Melvill J.

The first judge, Justice Kemball of the High Court, minuted (p 343):

That the prisoner was exceedingly cruel to his wife, and that he was legally guilty of her murder, I have no doubt; but having regard to the circumstances, the age of the prisoner, and the manifest state of doubt of the judge as to what would be the appropriate sentence, make(s) me hesitate to confirm the sentence of death, and I am disposed to alter it to transportation for life.

The state of doubt of Choo J in Lim Poh Lye’s case would appear to have made no impression on the prosecution or the Court of Appeal in Singapore.

The second judge, Justice Harida, minuted:

I am not satisfied that the prisoner intended to murder his wife. There is hardly evidence sufficient to prove the intention or “knowledge” requisite under s 300, Indian Penal Code.

That the prisoner acted cruelly, is quite clear. Still there is no evidence that he beat her otherwise than with his fist on the face, the blow or blows on the nose causing effusion of blood on the brain which proved fatal. The kicks on the back and the blows on the chest were not the cause of death according to the doctor’s evidence. It is quite possible – by no means improbable – that he may have, as he says, only intended to chastise her, though rather severely. I am disposed to think his act was culpable homicide not amounting to murder, and that it is punishable under s 304, Indian Penal Code.

The finding of Choo J in Lim Poh Lye’s case was that the intention behind the stab wounds was to prevent the deceased from escaping. At the highest, the offence established was culpable homicide not amounting to murder. It would appear that this was not considered by the prosecution.

Melvill J

The third judge, Melvill J, had to decide whether the offence committed by the prisoner was murder or culpable homicide not amounting to murder. It is useful to note that when ‘The Royal Commission on Corporal Punishment’ (Cmd 8932) (1949–1953) considered the distinction between murder and culpable homicide in India, Pakistan and Ceylon (to which Singapore can be added) the report in para 17 (p 438) adopted the view that the distinction between the two offences is very ably set forth by Melvill J in R v Govindra in 1876. The Supreme Court of India in State of AP v R Punnaya 1977 Crime Law Journal adopted Melvill J’s comparative table set out below.

Melvill J began by comparing the provisions of ss 299 and 300 of the Indian Penal Code and setting out the sections on culpable homicide and murder as follows:

Section 299

A person commits culpable homicide, if the act by which the death is caused is done:

a With the intention of causing death.

b With the intention of causing such bodily injury as is likely to cause death.

c With the knowledge that … the act is likely to cause death.

Section 300

Subject to certain exceptions, culpable homicide is murder, if the act by which the death is caused is done:

1 With the intention of causing death. (Singapore s 300(a))

2 With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. (Singapore s 300(b))

3 With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. (Singapores 300(c))

4 With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death. (Singapore s 300(d))

He then analysed the differences between the two offences in four steps:

1 (a) under s 299 and (1) under s 300(a);

2 (c) under s 299 and (4) under s 300(d);

3 (2) under s 300(b);

4 (b) under s 299 and (3) under s 300(c) on doubtful cases.

Melvill J after marking the differences between the two offences said (p 345):

I have underlined the words which appear to me to mark the differences between the two offences.

(a) and (1) show that where there is an intention to kill, the offence is always murder.

(c) and (4) appear to me intended to apply (I do not say that they are necessarily limited) to cases in which there is no intention to cause death or bodily injury. Furious driving, firing at a mark near a public road, would be cases of this description. Whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.

Melvill J then considered s 300(b) under s 300 and said (p 345):

The essence of (2) appears to me to be found in the words which I have underlined. The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, or immature age, or other special circumstance, to be killed by an injury which would not ordinarily cause death. The illustration given in the section is the following:

A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health.

Melvill J then considered the second limb (b) under s 299 which is considered in the second and third limbs of our s 300 in ss 300(b) and 300(c) in the context of doubtful cases similar to Lim Poh Lye’s case and said:

… it is on a comparison of these two clauses that the decision of doubtful cases like the present must generally depend. The offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death. The distinction is fine, but appreciable. It is much the same distinction as that between (c) and (4), already noticed. It is a question of degree of probability. Practically, I think, it will generally resolve itself into a consideration of the nature of the weapon used. A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is sufficient in the ordinary course of nature to cause death.

Melvill J then proceeded to apply the principle of the law to the facts of the case and demonstrated the application of legal principle to the facts of a doubtful case. He said (p 346):

In the present case the prisoner, a young man of 18, appears to have kicked his wife (a girl of 15) and to have struck her several times with his fist on the back. These blows seem to have caused her no serious injury. She, however, fell on the ground, and I think that the evidence shows that the prisoner then put one knee on her chest, and struck her two or three times on the face. One or two of these blows, which, from the medical evidence, I believe to have been violent and to have been delivered with the closed fist, took effect on the girl’s left eye, producing contusion and discoloration. The skull was not fractured, but the blow caused an extravasation of blood on the brain, and the girl died in consequence either on the spot, or very shortly afterwards. On this state of facts the Sessions Judge and the assessors have found the prisoner guilty of murder, and he has been sentenced to death. I am myself of opinion that the offence is culpable homicide, and not murder. I do not think there was an intention to cause death; nor do I think that the bodily injury was sufficient in the ordinary course of nature to cause death. Ordinarily, I think, it would not cause death. But a violent blow in the eye from a man’s fist, while the person struck is lying with his or her head on the ground, is certainly likely to cause death, either by producing concussion or extravasation of blood on the surface or in the substance of the brain. A reference to Taylor’s Medical Jurisprudence (4th edn, p 294) will show how easily life may be destroyed by a blow on the head producing extravasation of blood. [emphasis mine]

One of the accused in Lim Poh Lye’s case inflicted seven stab wounds to prevent the deceased from escaping. One of the stab wounds cut a blood vessel. The trial judge considered the degree of probability. The Court of Appeal took the ‘neither here nor there’ approach. The respondents, it is submitted, at the highest were guilty only of the offence of culpable homicide because seven stab wounds were likely to cause death within the meaning of s 299. The required knowledge can be inferred that the act of stabbing seven times is likely to cause death. It was not sufficient in the ordinary course of nature to cause death because only one of seven stab wounds, inflicted to prevent escape, cut a blood vessel. It was an ‘accidental’ injury within the meaning of Virsa Singh’s case. The stab wounds were clearly not inflicted with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. Six of the seven stab wounds were not fatal.

Melvill J was of the opinion that the prisoner should be convicted of culpable homicide not amounting to murder, and sentenced him accordingly.

On the above analysis of Melvill J, it would appear that Choo J in Lim Poh Lye’s case erred not in acquitting the accused of the murder charge but in failing to convict the accused of culpable homicide not amounting to murder, an offence punishable under s 304. The Court of Appeal would not have convicted the respondents with murder and sentenced them to death if Reg v Govindra had been placed before it or the court was given discretion in a doubtful case to pass a sentence other than death.

Appeal against Acquittal

I must now return to Lim Poh Lye’s case and consider the law on murder as applied to the facts by the trial court and the Court of Appeal. The trial judge Choo Han Teck J in Lim Poh Lye’s case followed the Court of Appeal’s decision in Tan Chee Hwee’s case where the Court of Appeal found as a fact that the accused intended only to stop the maid from screaming and struggling and not silence her forever. The Court of Appeal said:

This strongly suggests to us that even at that critical moment Tan could not have formed the intention to strangle the maid with the cord of the electric iron as a means of “silencing her forever”. In the circumstances we are driven to the conclusion that the injury which was in fact caused to the maid around the neck, in all probability, was not intentionally but accidentally or unintentionally caused. [emphasis added]

Choo J applying Tan Chee Hwee’s case to the facts in Lim Poh Lye reasoned:

Tan Chee Hwee, therefore, applies only in very special circumstances, namely, that the intended action (strangulation in that case, stabbing in this) was inflicted for a specific non-fatal purpose. In either case, the resulting injury, although of a different nature, might have varying degrees of severity. In one there might be bruising or a discomfort of choking of a transient nature, and in the other, varying degrees of puncture with bleeding and pain …

and recorded his finding in the following terms:

I find that the general act intended by Lim was to cause stab wounds to Bock’s legs to prevent him from escaping. The evidence of witnesses amply showed that Bock had made at least two determined attempts to escape. The principle enunciated in Tan Chee Hwee seems applicable to the facts before me. Suffice to say that it is not necessary to draw distinctions on the broad facts between Tan Chee Hwee and the present, for example, that the act of strangulation and the act of stabbing caused injuries of a completely different nature. … The two causes of death (asphyxia and haemorrhage) could, of course, be the result of murder. But, as Tan Chee Hwee shows, in certain factual circumstances, they might not be. The intended act of strangulation in one case, and the intended act of stabbing in the other, were found (as a finding of fact) to accompany the intention of preventing the victim from crying for help or escaping, and no more. If any difference can be ascertained, it would be an extremely fine one, and I would be loath to attach any significance to such in a capital case. I find, therefore, that the severing of Bock’s femoral vein was not intentional, but, in the language of Tan Chee Hwee, accidental.

Choo J found further support for acquitting the accused of murder in the Indian case of Harjinder Singh [1968] 2 SCR 246 where the deceased was stabbed in the thigh. The appellant in the Indian case in the course of a fight took out a knife and caused an injury on the deceased’s thigh which cut an artery. It resulted in the victim’s death. The Sessions Judge applying Virsa Singh’s case [1958] SCR 1495 said:

In this case, the prosecution has proved that the bodily injury, the nature of which has been described above was present. This injury was caused with the pen knife deliberately. It was not accidental or unintentional. Injury of any other kind was not intended. This injury in the opinion of this doctor was sufficient in the ordinary course of nature to cause death. This being so the case 1958 SCR 1495 would apply and the offence which the accused Jinda has committed falls [under s] 302 Indian Penal Code.

The High Court of India, on appeal said:

Lastly, the counsel has attempted to take the case out of the purview of the offence of murder. It has been contended that it was just a small knife with which a blow was given and that it was not on the vital part of the body and, therefore, the appellant should not be held guilty of murder. In my opinion, the contention is wholly unsustainable. The deceased, a boy of about 16 years of age had merely come to help his brother, when the appellant, who had deliberately come armed with knife from his house, stabbed the deceased with that knife on vulnerable part. I do not see how the offence can be considered not to fall within the purview of murder.

The High Court further added:

It is futile to contend that he did not intend to kill the deceased. The injury and the weapon are quite eloquent in this respect.

Fortunately for the appellant in the Indian case, there was a second level of appeal to the Indian Supreme Court. On appeal, it was submitted no offence under s 302 had been committed – that the appellant should have been convicted under s 326 or under s 304. The prosecution relied on Virsa Singh’s case, a case much followed in Singapore.

Bose J speaking for the Supreme Court of India said the ingredients laid down in Virsa Singh’s case had not been established. He analysed Virsa Singh’s case and said:

To put it shortly, the prosecution must prove the following facts before it can bring a case under s 300, …

First, it must establish, quite objectively, that a bodily injury is present.

Second, the nature of the injury must be proved. These are purely objective investigations.

Third, 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. [emphasis mine]

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourth, 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.

Bose J of the Supreme Court then said:

It seems to us that the High Court has not considered whether the third ingredient laid down by Bose, J in Virsa Singh v State of Punjab has been proved in this case or not. In our opinion the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh. The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant finding himself one against two took out the knife and stabbed the deceased. It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two. It cannot, therefore, be said with any definiteness that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. It may be observed that the appellant had not used the knife while he was engaged in the fight with Dalip Kumar. It was only when he felt that the deceased also came up against him that he whipped out the knife.

In these circumstances it cannot be said that it has been proved that it was the intention of the appellant to inflict this particular injury on this particular place. It is, therefore, not possible to apply cl 3 of s 300 to the act of the accused. [emphasis mine]

In Lim Poh Lye’s case, stabbing took place only when the deceased attempted to escape. Only one of seven stab wounds cut a blood vessel.

The question that must now be asked is whether the Court of Appeal in Singapore on the prosecution’s appeal in Lim Poh Lye’s case asked and answered the third question. Whether there was an intention to inflict the particular bodily injury, that is to say, it was not accidental or unintentional or that some other kind of injury similar to the six stab wounds was intended and not a stab wound that would cut a blood vessel to cause death.

The Crucial Question

The Court of Appeal in Singapore, however, ruled as follows:

It is true that the fatal stab wound was caused to a part of the body which is not commonly known to be a vulnerable region of the body. However, that is not a consideration that affects the operation of s 300(c). As the forensic pathologist had emphasised, the thigh is a less vital region of the body only from the strictly lay perspective. The crucial question to ask is whether the wounds that were caused were in fact wounds which Lim and Ng intended to cause. Whether they knew the seriousness of the wounds is neither here nor there: see [18] above. As this court stated in Tan Chee Wee (at [42]):

Section 300(c) thus envisions that the accused subjectively intends to cause a bodily injury that is objectively likely to cause death in the ordinary course of nature. There is no necessity for the accused to have considered whether or not the injury to be inflicted would have such a result. It is in fact irrelevant whether or not the accused did intend to cause death, so long as death ensues from the bodily injury or injuries intentionally caused.

The trial judge, however, viewed the crucial question as being (p 138):

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. [emphasis added by the court]

It is submitted that the question asked by the trial court is consistent with the third element that must be proved by the prosecution before it can bring a case under s 300(c).

The Court of Appeal ruled that the trial judge had erred in his appreciation of the decision in Tan Chee Hwee when the true question should have been ‘whether the trial court had erred in his appreciation and application of s 300(c) to the facts of the case’. The Court of Appeal further noted that the trial judge had relied on the Indian case of Harjinder Singh Alias Jinda v Delhi Administration [1968] 2 SCR 246 and said (para 38):

… It seems to us that in Harjinder Singh, the Supreme Court … was not concerned with the question of whether the accused intended to sever the artery but whether he intended to cause the particular injuries that were found on the victim …

The Court of Appeal in Singapore then said (para 40):

The crucial question to ask is whether the wounds that were caused were in fact wounds which Lim and Ng intended to cause.

The Court of Appeal in Singapore, however, appears to have overlooked the statement made by the Indian Supreme Court (p 250):

It cannot, therefore, be said with any definition that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. [emphasis mine]

The Indian Supreme Court further said (p 251):

In these circumstances it cannot be said that it has been proved that it was the intention of the appellant to inflict this particular injury on this particular place. It is therefore, not possible to apply cl 3 of s 300 to the act of the accused and allow the appeal altering the conviction to one under s 304. The appellant was sentenced to seven years’ imprisonment.

The Court of Appeal in Singapore, however, was of the view that ‘whether they know the seriousness of the wounds is neither here nor there’. This approach ignores the need to make a fine distinction between murder and culpable homicide that was demonstrated as early as in 1876 by Melvill J to protect those not guilty of murder in doubtful cases. The case of Virsa Singh was followed as was done by the Indian Supreme Court in Harjinder Singh’s case. We must not slip into the ‘neither here nor there’ reasoning when it is necessary for the court to find knowledge that the stab wound would cut an artery.

The need for the proper application of Virsa Singh’s case was made abundantly clear in Harjinder Singh by the Indian Supreme Court when it said (p 250):

It seems to us that the High Court has not considered whether the third ingredient laid down by Bose, J in Virsa Singh v State of Punjab has been proved in this case or not. In our opinion the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh. The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant finding himself one against two took out the knife and stabbed the deceased. It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two. It cannot, therefore, be said with any definiteness that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. It may be observed that the appellant had not used the knife while he was engaged in the fight with Dalip Kumar. It was only when he felt that the deceased also came up against him that he whipped out the knife.

The legal question in Lim Poh Lye’s case is not whether the trial judge had erred in his appreciation of the decision in Tan Chee Hwee or Harjinder Singh’s case , but whether the fine distinction that exists between culpable homicide and murder in doubtful cases under s 300(c) of the Penal Code was appreciated by the prosecution and the Court of Appeal when the Court of Appeal sentenced the respondents to death. The question that should have been considered carefully in Took’s case was whether the mandatory death sentence should be administered in the face of the dissenting judgment, the constitutional protection guaranteed to life by art 9(1) and improper or greater punishment to persons under art 11(1) of the Constitution of the Republic of Singapore when a reasonable doubt has been expressed categorically by an appellate judge.

K S Rajah, SC

Harry Elias Partnership

E-mail: ksrajah@harryelias.com.sg