Answer

As a DPP, the following charges are to be considered to be made on 3 accused’: Andrew, Goh and Rajoo based on the following observation of the facts mentioned;

1. Andrew punched Bernard who suffered a fracture of the skull and was hospitalised for seven days

Andrew should be charged under s322 of the Penal Code which refers to voluntarily causing grievous hurt. Under s319 defines hurt as,” whoever causes bodily pain, disease or infirmity to any person is said to cause hurt[1]. While under s320 provides the following examples of “grievous hurt” in which includes fractures of a bone (s320 (g)). Under s323A provides the punishment range to include a term that may extend to 5 years, a fine may extend to $10,000 or both[2].

Andrew would rely on the defence of voluntary intoxication under s86 (2) of the Penal Code. In Tan Chor Jin mentioned this, “A person who commits a crime when involuntarily intoxicated should not be blameworthy while one who voluntarily gets into a state of intoxication should be responsible for his action. S86 is confined to intention-based crimes only. Crimes based on other fault elements such as knowledge, rashness or negligence are not covered by the section (Balasubramanian). To illustrate this is that the section would be applicable to someone with the first three limbs of murder but not of the fourth which requires knowledge. In YMC Rev 2^nd, Academics commented as there appears to be no strong reason why the defence of intoxication should not be extended to cover knowledge-based crimes. .

In the case of Tan Chor Jin, there are two requirements that must be met. First the accused must show evidence of his intoxication based on an objective evidence of the accused’s level of intoxication which is crucial. Second, even if the accused can prove that he had consumed a considerable amount of alcohol, the surrounding facts must show that he was so intoxicated that he could not form the intention which is a necessary element of the alleged offence. It similar to the case of Balasubramanian in which the court affirmed that it is settled law that for the defence to be available, the accused has to prove on a balance of probabilities that by reason of his consumption of alcohol that he or she was so intoxicated that he was incapable of forming any intention for the offence (Jumaa’t bin Samad v PP). s86 (2) and intoxication should not be construed as providing unqualified exception or excuse for an offence which requires intention, specific or otherwise (Kenneth Fook[3]).

In Kenneth Fook, the process of determining the state of mind of an accused person at the time of commission of the offence for which he is charged should be by way of inferences from the known relevant facts and on totality of the surrounding circumstances including his conduct at the material time and intoxicant state. The application under s86(2) requires the judge to take into account the evidence of intoxication and determine whether it is weighty enough to leave the judge with reasonable doubt about the accused person’s guilty intend[4]. In Astro bin Jakaria, the Court will take a subjective assessment of whether the accused lost his self-control is a finding of fact based on the factual matrix of the case.

There was already an intention to cause hurt to Bernard based on an already existing enmity between Andrew and Bernard since the days when Bernard’s marriage to Alice had ended in an acrimonious divorce. The intention was further propelled by the voluntary intoxication that followed Andrew’s act in punching Bernard. The Deputy Public Prosecutor (DPP) should rely on s103-108 of the Evidence Act to prove beyond any reasonable that Andrew had a prior intention to harm Bernard before intoxication.

• Rajoo’s finding the wallet

Equally, Rajoo can be charged under s403 of the Penal code that deals with criminal misappropriation. Misappropriation refers to situations where the property was found in a morally and legally neutral manner (for example, finding the property at a bus stop). To be charged under this offence, the dishonest intention is only formed after obtaining the property. As per Shafiq Farid and Ho Man Yuk established that innocent possession will only be defence when there is no proof of dishonest intention that follows after possessing of the moveable property.

In Wong Seng Kwan v PP [2012], video evidence showed that the plaintiff picked the wallet within the casino and headed straight to the gents. After he came out, he was immediately arrested, and no wallet was found however the contents such as monetary items were in his possession. He was later convicted under s403 and his appeal was dismissed. The case produced the essential elements that are necessary for establishing an offence under s403 PC. These include presence of moveable property, the accused having misappropriated or converted the property to his own use, and the accused person not being a person entitled to the immediate and exclusive possession of such property possessed a dishonest intent at the time of such misappropriation or conversion.

If all three elements are found, then an offence of dishonest misappropriation would be established. Therefore, Rajoo can be proceeded to be charged under s403 of the Penal Code.

• Rajoo encouraged on by shouts of “get the bastard”.

Additionally, the crime made to Charan Singh, Rajoo’s act of encouragement made by the shouts of “get the bastard” from his friend Rajoo could be held liable under the same offence as charged to Goh which is shortly to be discussed. S107 of the Penal Code defines “abettor” someone who instigates, engages in any conspiracy or intentionally aids in the doing of any act to facilitate the commission of the offence and is liable to the same punishment as the offender as per s109 PC[5].

In Lim Tee Hiam, defines “instigates” as giving active suggestion or support or stimulation for the commission of the main act or offence. While Hwa Lai Heng Ricky explains “conspiracy” as the essence of an agreement to do the thing abetted and an act or illegal omission must result from it. In Jimina asserted that there must be an intention to aid to the commission of the offence. Therefore, the words used, “get that bastard” can be recognized as an active suggestion. Rajoo could possibly be relying on the defense of intoxication under s86(2) A which is based on voluntary intoxication in that he spill those words based on being intoxicated[6]. The principles of this defense are the same as discussed in the above in which would not be repeated here again. Rajoo is likely to fail in this defense because there is a high threshold requirement to prove that the intoxication interrupted with his mental capacity in being to form reasoning from the facts.

• Goh stabbed Charan with broken beer glass

The facts of the matter show that Goh stabbed Charan on his chest with broken beer glass and Charan died on the 2^nd day in the hospital. The possible charge to be considered in s304 (a) of the Rash or Negligent Act. The offence was a result of an intention to harm, which was sufficient in ordinary cause of death. Under s302 (2), the punishment includes death or imprisonment for life and shall, if he is not punished with death, also be liable to caning (excepted for woman and man from the age of 50 and above.

Goh can be held liable under this offence since there was an intention to cause bodily injury, which is sufficient in the ordinary course of nature to cause death of another person. In proving the criminal liability, we must first identify whether the act was inflicted intentionally or accidentally. Secondly, whether the injury is sufficient to cause the death of a person. Virsa Singh provided the following test under this section;

1.  A bodily injury is present or established (objective)
2. Nature of the injury must be proved (objective)
3. Intention to inflict that particular bodily injury (subjective whether it was not accidental or unintentional or that another kind of injury was intended)

The intended bodily injury was sufficient in the ordinary course of nature to cause death. This part of the enquiry as affirmed by cases of Ellary 201, Kho Jabling and Lim Poh Lye is purely objective and inferential and has nothing to do with the intention of the offender[7]. Goh’s probable defense is based on three possible argument; 1) defense for intoxication (in which this requires a higher threshold to prove (Tan Chor Jin) and based on the facts, the defense would failed), 2) Sudden Fight and 3) Chain of causation.

• Sudden fight

The defence of sudden fight is a partial defence to crimes of murder. The partial defence of sudden fight is set out in Exception 4 to s 300 of the Penal Code[8]. The following elements must all be present, before an offender can avail himself or herself of the partial defence:

• Sudden fight in the heat of passion upon a sudden quarrel:
  •  “Sudden fight”: The term “fight” has been judicially defined by the Court of Appeal as consisting of mutual provocation and blows on each side, and it is not sufficient that there is at least an offer of violence on both sides, and it must mean “more than a mere quarrel”.(Tan Chee Wee v PP [2004][9])

Where a person strikes another, there will only be a fight if the other hits him back or at the very least prepares himself to strike back, even if he ultimately does not strike back because of the lack of opportunity, as there cannot be a fight if the victim keeps quiet and does nothing, as that would constitute a one-sided attack (Tan Chee Wee)

To constitute a fight, it is necessary that blows should be exchanged even if they do not all find their target (Atma Singh).  Pushing would constitute a fight (Tan Chun Seng)

•  “upon a sudden quarrel”:

It has been held that an actual verbal exchange is not required. In Tan Chun Seng, it was accepted that there was a standoff between the deceased (deaf-mute) and the offender just before the offender pushed the offender to the ground, causing the deceased to subsequently react and hit the deceased. Although there was no verbal exchange, it was held that the defence of sudden fight was established.

• Requirement for immediacy of the fight:

Courts have found that there needs to be immediacy between the quarrel and the fight, and if there is a cooling off period between the quarrel and the fight, it would suggest that reason has overcome passion and the fight is not sudden. (Lee Kiat Seng)

• Absence of premeditation:

The definition of “premeditation” is in a state of confusion. Premeditation has been unsatisfactorily defined variously as follows:

• An intention to kill; (Kunjo (1977-1978))
•  An intention to cause grievous hurt; (Soosay v PP)
•  An intention to do the act which caused death; (Lee Kiat Seng)
•  Any kind of pre-planned conduct to get into a fight or an element of design or prior planning.(Tan Chun Seng and Kunjo)

• No undue advantage and not acting in a cruel or unusual manner:

Undue advantage has been judicially defined as “unfair advantage” (Kunjo). All the facts of the case must be taken into consideration especially those attributes unique to the other party in the fight (eg physique, age, ability, aggression, etc. (Tan Chee Wee). In Tan Chun Seng added the following considerations;

• Whether the fight and injuries suffered by the deceased were premeditated by the accused
• Whether the accused was armed with the relevant weapon before the fight began
• Whether during the fight, the accused had reason to resort to a weapon

Generally, an offender who had acted in a cruel and unusual manner would have also taken undue advantage of the deceased. However, the converse is not true. From the facts, it remain unclear whether there were exchange of blows between Goh  and Charan to rely on the defence of sudden fight that is a possible argument to deny the defence. Secondly Goh by hitting Charan on the head with his beer glass had the intention to cause grievous bodily injury. Therefore, the defence is likely to fail

• Break in the chain of causation based on the second doctor’s inference

Based on the thin skull rule, Goh have to take Charan as he is. In R v Blaue provide the two steps enquiry for causation. First is the factual causation on whether the accused’s conduct contribute at all to the death. Factual causation merely establishes the preliminary connection between the act and its consequences. This normally employs the “but for” test (Ng Keng Yong v PP. For instance, in murder, the victim would not have dead but for the act of the accused. Factual causation will not be established if V’s death would not have occurred without A’s conduct (R v White)[10]. The act must be the operating cause and a substantial cause of victim’s death (R v Smith).

Is there a physical or factual connection between A’s conduct and V’s death. Second is there a legal causation on whether there was factual connection sufficient strong to justify imposing criminal responsibility. In Guay Seng Tjong Nickson stated that the general question is whether there is sufficient nexus between the negligent conduct and damage to justify the attribution of responsibility to the individual. In Shaiful Edham v PP, the learned court noted that the neck would alone would have caused death from the loss of blood although death would have occurred more slowly over prolonged period of time; drowning in the circumstances was additional cause of death superimposed on neck wounds. The drowning was not sufficient to be considered as an intervening act and that the neck wound was still the operating and substantial cause.  There are generally two questions to ask based on factual and legal causation.

1. The act must be the operating cause and a substantial cause of victim’s death (R v Smith)
2. Whether there was an intervening act which broke the chain of causation

Here, although the facts stated that the bruises on Charan’s head were minor injuries remain still to be the operating and substantial cause. Goh could be relying the defence of break in the chain of causation by the second doctor with the use of Explanation 2 to s299 PC which provides, “here 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.”.

In R v Cheshire, affirmed that the test on whether there is a break in the chain of causation caused by medical intervention. The Courts in Cheshire held that whilst the original wounds were no longer an operative cause of death, the response of the medical professionals in inserting the tracheotomy was a direct and reasonable result of the wounds caused by the defendant. The Court of Appeal laid down the following test: in order for medical treatment to constitute a supervening act which breaks the chain of causation, the medical treatment provided must be so independent of the defendant’s act and so potent in causing the death, that the jury regard the defendant’s acts as insignificant.

The current facts remain unclear based on the lack of medical report on whether the second doctor’s act can indeed be considered sufficient to dismount Goh’s charge under s300 (c) PC, this is to be determined by the court alone[11]. In such the DPP’s argument should remain that the act of Goh’s with the use of the broken beer glass is sufficient to prove that the accused had the intention to inflict a grievous bodily injury that would result in the ordinary cause of death.

Bibliography

Pillai, Philip Nalliah. State enterprise in Singapore: legal importation and development. NUS Press, 1983.

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[1] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 123.

[2] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 37

[3] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 164.

[4] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 87.

[5] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 101.

[6] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 186.

[7] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 12.

[8] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 131.

[9] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 160.

[10] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 160.

[11] Pillai, Philip Nalliah. 1983. State enterprise in Singapore: legal importation and development. Pg. 54.

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