Court of Appeal · Decided 3 September 2010

Daniel Vijay s/o Katherasan and others v Public Prosecutor

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[2010] SGCA 33Case no. Criminal Appeal No 1 of 2008

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Penal Code 1871

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Chan Sek Keong CJ (delivering the judgment of the court):
Introduction
[1] This is an appeal by the first appellant, Daniel Vijay s/o Katherasan (“Daniel”), and the second appellant, Christopher Samson s/o Anpalagan (“Christopher”), against the decision of the trial judge (“the Judge”) convicting them of murder in Criminal Case No 16 of 2007 (see Public Prosecutor v Daniel Vijay s/o Katherasan and others [2008] SGHC 120 (“the GD”)). The third appellant, Nakamuthu Balakrishnan (alias Bala) (“Bala”), originally appealed as well against his conviction for murder, but subsequently decided not to proceed with his appeal (see [46]–[47] below). For convenience, we shall hereafter refer to the three appellants collectively as “the Appellants”.
[2] This appeal requires us to consider the scope of s 34 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”). Section 34 of the 1985 Penal Code has its roots in s 34 of the Penal Code (Ordinance 4 of 1871) (“the 1871 Penal Code”), which was enacted in 1872 when Singapore was part of the Straits Settlements. Since 1872, s 34 of the 1871 Penal Code has remained unchanged in all the subsequent editions of the Penal Code up to the current edition (ie, the 2008 revised edition). For convenience, the generic term “the Penal Code” will hereafter be used to denote the particular version of the Penal Code that is relevant to the case or legal point being discussed, regardless of whether that version is the 1985 revised edition or some other edition, and s 34 of the Penal Code (ie, “the Penal Code” as just defined) will be denoted by the generic term “s 34”.
[3] It might be thought that since s 34 was enacted some 138 years ago, its meaning would already have been settled through judicial interpretation. But, this does not appear to be the case. In 1999, this court (which will also be referred to interchangeably as “the CA”) said in Shaiful Edham bin Adam and another v Public Prosecutor [1999] 1 SLR(R) 442 (“Shaiful Edham”) at [52] that there were “two divergent lines of authority” on the scope of s 34, one of which was wrong. However, this statement did not have the effect of settling the law on s 34 as, in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (“Lee Chez Kee (CA)”), this court restricted the operation of the legal principle encapsulated in the accepted line of authority (see [42] below).
[4] Despite the decision in Lee Chez Kee (CA), s 34 remains a troubling provision. In the present case, for instance, the Judge applied s 34 to convict Daniel and Christopher on a joint charge of murder arising from Bala’s criminal act of assaulting the deceased victim, Wan Cheon Kem (“Wan”), even though:
(a) the Appellants had not planned (ie, they had no common intention) to kill Wan or cause his death, but had only the common intention to rob him of the cargo of mobile phones which he was transporting (“the Cargo”) (see the GD at [40] and [51]–[52]); and
(b) it was Bala alone who caused the death of Wan by intentionally inflicting a series of blows on the latter’s head with a baseball bat (“the baseball bat”), resulting in Wan sustaining injuries which were sufficient in the ordinary course of nature to cause death and which did indeed cause his death a few days after the assault.
In the light of these findings, the Judge held that he was compelled by law to convict both Daniel and Christopher of murder as secondary offenders pursuant to s 34 for the offence of murder arising from the criminal act committed by Bala, the actual doer of that criminal act.
[5] The Judge’s decision highlights the apparent harsh effect of the application of s 34 in these circumstances. The outcome is particularly unjust when the offence charged is that of murder. This expansive interpretation of s 34 stems from certain statements on the scope of s 34 made by Wee Chong Jin CJ in the judgment of the Court of Criminal Appeal (“the CCA”) in Wong Mimi and another v Public Prosecutor [1971–1973] SLR(R) 412 (“Mimi Wong (CCA)”). It has led to uncertainty in the way our courts have been applying s 34 in cases where the offenders (ie, the actual doer and the secondary offender(s)) have a common intention to commit a particular offence (or a criminal act resulting in a particular offence) and, in the course of committing that offence or that criminal act, another (more serious) offence (or another criminal act resulting in a more serious offence) is committed (such cases are commonly referred to as “twin crime” cases (see further [41] below)). In the circumstances, we find it necessary to revisit Mimi Wong (CCA) and the relevant case law on s 34 in order to clarify this difficult area of the law. We shall do this after we have considered the factual and legal issues raised in this appeal.
Factual background
Participants
[6] Daniel was, at the material time, a male aged 23 who was a full-time national serviceman (“NSF”) with the Singapore Armed Forces (“the SAF”). He was, at the material time, absent without official leave (“AWOL”) from the SAF, and had been detained in the SAF Detention Barracks for being AWOL on four previous occasions. He had also been a secret society member in the past. Christopher was, at the material time, a male aged 23 who was also a NSF with the SAF. He too was AWOL at the time of the offence. Previously, he had been detained in the SAF Detention Barracks for being AWOL on three occasions. Bala was, at the material time, a male aged 48 who had previously worked as an odd-job labourer. He had spent time in prison for being AWOL from the SAF and for various drug offences. Bala played a key role in the execution and planning of the robbery. There was some evidence that Bala had a dominant influence over Daniel and Christopher, and was a father figure to them. (This relationship could explain why Daniel and Christopher initially attempted to shield Bala from prosecution (after the Appellants were arrested) by falsely claiming that Daniel had beaten up Wan during the robbery and that Bala had not had anything to do with the assault (see [19] below).)
[7] Apart from the Appellants, there were two other persons who were involved in the initial planning of the robbery, viz, one Ragu a/l Ramajayam (“Ragu”) and one Arsan s/o Krishnasamy Govindarajoo (alias Babu) (“Babu”). Babu, in fact, played a major role in the planning of the robbery. Ragu was a driver employed by Sterling Agencies Pte Ltd (“Sterling”), a freight-forwarding company. His role was to provide information to Babu on when Sterling would be transporting expensive cargo from Changi Airfreight Centre (“CAC”) to consignees. Babu was a second-hand goods dealer. He was introduced to Ragu by one Shanker, a mutual acquaintance who was not involved in the robbery. Wan, the deceased victim, was, at the material time, working as a driver for Sterling and was a colleague of Ragu. Babu admitted that he was the originator of the idea that during the robbery, the driver of the targeted lorry should be beaten up until he became unconscious so that he would not know what was happening and would not be able to recognise the perpetrators (see sub-para (c) of [16] below). Both Ragu and Babu were, however, charged with lesser offences (see, respectively, [14] and [15] below).
Undisputed facts
[8] Sometime in May 2006, Ragu and Babu hatched a plan to carry out a robbery of expensive cargo to be transported by Sterling from CAC for delivery to consignees. Babu recruited Bala to carry out the robbery. Bala then recruited Daniel and Christopher to assist him in carrying out the robbery. Sometime before the day of the robbery, Daniel took the baseball bat from a workshop at Changi where he had his car serviced. Several days before the robbery, Babu and Bala went to survey CAC. They were driven there by Christopher. On the evening of 29 May 2006, Babu and the Appellants met at a coffee shop at Block 125 Lorong 1 Toa Payoh to have some drinks. In the course of the evening, the robbery plan was discussed.
[9] On 30 May 2006, at about 5.30am, Ragu contacted Babu and informed him that Sterling would be delivering the Cargo, which consisted of ten pallets of mobile phones (later found to contain 2,700 Sony Ericsson W700i mobile phones valued at about US$823,500), that morning from CAC to a consignee by lorry. Babu relayed the information to Bala, who was with Daniel and Christopher at that time. The Appellants then proceeded to the vicinity of CAC in a rented ten-foot lorry bearing the registration number GM9520E (“Lorry 9520”), taking with them the baseball bat. They subsequently met up with Babu, who told them that the lorry carrying the Cargo bore the registration number YM815B (“Lorry 815”).
[10] At about 7.00am, the Appellants saw Lorry 815 being driven out of CAC (by Wan). Bala directed Daniel to follow Lorry 815 in Lorry 9520, while Babu, who was also at the scene, drove off separately in another lorry. Somewhere along Changi Coast Road, Daniel drove in front of Lorry 815, causing Wan to stop it by the side of the road. After Wan alighted from Lorry 815, he was assaulted by Bala repeatedly on the head and other parts of the body with the baseball bat, although he was not rendered unconscious. He was then carried into the cabin of Lorry 815 and put on the floorboard in front of the passenger seat.
[12] At about 8.52am that same day, a member of the public reported to Pasir Ris Neighbourhood Police Centre that he had found a man covered in blood in a lorry. The police went to investigate and found Wan sitting in the front passenger seat of Lorry 815. Wan managed to alight from the lorry on his own when the police opened the door of the passenger compartment. He was sent to Changi General Hospital, where he underwent emergency surgery on his head. He died without regaining consciousness on 5 June 2006, about five days after the robbery. The autopsy performed by Dr Teo Eng Swee (“Dr Teo”), a consultant forensic pathologist with the Centre for Forensic Medicine, Health Sciences Authority, disclosed that at least 15 blows had been inflicted on Wan on the head and other parts of his body.
[13] Police investigations subsequently led to the arrest of Bala at about 6.50pm on 31 May 2006. Ragu and Babu were arrested separately on 1 June 2006. Daniel and Christopher surrendered themselves to the police separately on the morning of 5 June 2006.
Prosecution of Ragu
[14] On 24 April 2007, Ragu was charged with one count of abetment (by conspiracy) of robbery, punishable under s 109 read with s 392 of the Penal Code. He pleaded guilty and was sentenced by the District Court to six years’ imprisonment and 12 strokes of the cane. The sentence was reduced to four years and six months’ imprisonment and six strokes of the cane on appeal to the High Court.
Prosecution of Babu
[15] After his arrest, Babu was charged with:
(a) one count of abetment (by conspiracy) of armed robbery with hurt, punishable under s 109 read with ss 394 and 397 of the Penal Code;
(b) two counts of voluntarily assisting in the concealing and/or disposing of stolen property in furtherance of a common intention, punishable under s 414 of the Penal Code read with s 34; and
(c) one count of abetment (by conspiracy) of voluntarily assisting in the concealing of stolen property, punishable under s 109 read with s 414 of the Penal Code.
He pleaded guilty to all the charges and was sentenced by the High Court to a total of 16 years and six months’ imprisonment and 24 strokes of the cane. He did not appeal against the sentence.
[16] In the proceedings against Babu, the Prosecution tendered a consolidated statement of facts (“the CSOF”), which Babu unreservedly admitted to. The CSOF contained a number of statements by Babu on his role as well as the respective roles of each of the Appellants in the robbery and the killing of Wan. Amongst other things, the CSOF stated that:
(a) “[Babu’s] role was to execute the robbery”. Babu subsequently recruited Bala to commit the robbery, and Bala in turn recruited Daniel and Christopher to assist him.
(b) The Appellants “procured a baseball bat [ie, the baseball bat as defined at sub-para (b) of [4] above] from a car workshop at Changi Road, where [Daniel] had sent his motor car for repairs, for use during the robbery”.
(c) Babu told the Appellants that “during the robbery, they should beat up [Wan] until he became unconscious”. This would ensure that Wan “[would] not know what was happening and … would be unable to identify any of them subsequently”.
[17] The admissions by Babu in the CSOF incriminated Daniel and Christopher as to their knowledge that in the course of the robbery, Wan would be beaten up until he became unconscious. Babu, who was called as a prosecution witness, refuted the truth of the CSOF when cross-examined and claimed that he had admitted to the CSOF in order to escape the gallows. (Babu was not questioned by the Prosecution during re-examination on his claim that he had admitted to false facts in the CSOF.) In the GD, the Judge ruled that little or no weight should be given to the CSOF against the Appellants (see the GD at [31]).
Prosecution of the Appellants
The charge against the Appellants
[18] After their arrest and/or surrender, the Appellants were jointly charged as follows:
The Appellants’ statements to the police
[19] Each of the Appellants gave a number of statements to the police. In his statements, Bala tried to exculpate himself from the killing of Wan and to pin the blame on Daniel and Christopher instead, alleging that they had beaten Wan up with the baseball bat. In this regard, Daniel and Christopher had, in their first statements to the police, stated that Daniel had beaten Wan up and that Bala had played no part in the assault. In subsequent statements that were recorded after they had been charged with the murder of Wan, and likewise at the trial, both Daniel and Christopher repudiated what they had said in their first statements. In one of his subsequent statements, Daniel explained that he initially thought that he would face a charge of robbery and was thus willing to make his initial admissions in order to shield Bala, who was more than 20 years his senior, so that Bala would not be sent to prison. However, when informed that he faced a charge for the offence of murder, Daniel changed his story and decided to disclose his actual limited role in the robbery. It was clear, on the evidence, that both Daniel and Christopher were initially not aware that they could have committed the offence of murder.
[20] At the trial, the Prosecution sought to adduce all of the Appellants’ statements. The Appellants challenged the admissibility of some of the statements on the ground that they were involuntary statements. The Judge held, after a trial-within-a-trial, that all the statements had been voluntarily made and admitted them in evidence. Subsequently, after entering their respective defences, each of the Appellants retracted the incriminating portions of his respective statements.
[21] The material portions of the Appellants’ statements, as reproduced by the Judge at [23]–[25] of the GD, are as follows:
The trial in the court below
The case for the Defence
The case put forth by Bala
[22] As Bala has decided not to proceed with this appeal in so far as his conviction is concerned (see [46]–[47] below), we shall not, in this judgment, reproduce the material parts of his submissions in the court below. We shall, instead, only set out the Judge’s summary of these submissions, which was as follows (see the GD at [30]):
The case put forth by Daniel
[23] Daniel’s submissions on the facts at the trial, as summarised by the Judge in the GD, were as follows:
[24] In relation to the law, the material portions of Daniel’s written submissions in the court below were as follows:
[25] To sum up, Daniel’s defence was, in essence, that there was no common intention among the Appellants to use the baseball bat to assault or cause grievous bodily harm to Wan. The placing of the baseball bat in Lorry 9520 per se did not point to there being such a common intention; at least, Daniel had no such intention. Bala’s assault on Wan with the baseball bat was not in furtherance of the Appellants’ common intention to rob Wan, and it also exceeded the scope of that common intention. This defence was rejected by the Judge.
The case put forth by Christopher
[26] Christopher’s submissions on the facts at the trial, as summarised by the Judge, were as follows (see the GD at [29]):
[27] In respect of the law, the material portions of Christopher’s written submissions in the court below were as follows:
[28] To sum up, the defence of Christopher was, in essence, that his being privy to a pre-arranged plan (along with Daniel and Bala) to rob Wan had not been proved beyond reasonable doubt. He (Christopher) did not have prior knowledge of any such plan as he had merely been “an ignorant replacement driver”; he did not play an extensive role in the robbery; and he did not have subjective foresight that Bala might likely assault Wan and cause his death. These arguments were rejected by the Judge.
The case for the Prosecution
[29] We turn now to the Prosecution’s case at the trial. In this regard, we shall set out the more important parts of the opening statement and the closing submissions made by the Prosecution, with our comments on the Prosecution’s various arguments interspersed in between.
[30] The material portion of the Prosecution’s opening statement at the trial was as follows:
[31] The above submission rests on the proposition that where A, B and C have a common intention to rob D, and C, in furtherance of that common intention, intentionally inflicts fatal injuries on D, s 34 will apply to make A and B constructively liable for the offence arising from the criminal act committed by C (the actual doer). It may also be noted that, based on the above submission, A and B need not themselves have participated in the criminal act done by C (ie, the inflicting of fatal injuries on D) before they can be held constructively liable for the offence resulting from that criminal act.
[32] The Prosecution, however, took a different stance on the participation element of s 34 in closing its case at the trial. The material paragraphs of the Prosecution’s written closing submissions dated 24 January 2008 (“the Prosecution’s written closing submissions”) read as follows:
[33] As can be seen from para C.3 of the above extract from the Prosecution’s written closing submissions, the Prosecution, in closing its case at the trial, took the position that participation by A and B in the criminal act done by C (ie, the inflicting of fatal injuries on D) was necessary before A and B could be held constructively liable for the offence resulting from C’s criminal act. This submission by the Prosecution clearly contradicted the position set out in its opening statement, which did not mention that participation by Daniel and Christopher in the criminal act giving rise to the offence which they were charged with was necessary.
[34] Confusingly, in its oral closing submissions, the Prosecution appeared to revert to the position set out in its opening statement when it contended:
The above submission clearly indicates that, according to the Prosecution, participation by Daniel and Christopher in the criminal act done by Bala which gave rise to the offence charged (ie, the criminal act of assaulting Wan) was not a requirement for the purposes of imposing constructive liability on Daniel and Christopher under s 34 as Bala had committed that criminal act “in furtherance of the common intention” of all the Appellants to rob Wan.
[35] Thus, it appears that the Prosecution’s final position at the trial was that even though Daniel and Christopher had not participated in the criminal act done by Bala which gave rise to the offence charged, they could be held constructively liable for that offence pursuant to s 34 because Bala had done the criminal act giving rise to that offence in furtherance of the Appellants’ common intention to rob Wan. In the Prosecution’s view, Bala’s assault on Wan was in furtherance of the Appellants’ common intention to commit robbery as it “facilitate[d]” the robbery in terms of its execution and/or its successful accomplishment (eg, presumably, it enabled the Appellants to avoid being identified by Wan and to escape after removing the Cargo from Lorry 815). Based on the Prosecution’s approach as described in this paragraph, for 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. This proposition is said to have been established by the CCA in Mimi Wong (CCA) and Neoh Bean Chye and another v Public Prosecutor [1974–1976] SLR(R) 164 (“Neoh Bean Chye (CCA)”), and to have been subsequently endorsed and reaffirmed by the CA in, inter alia, Public Prosecutor v Lim Poh Lye and another [2005] 4 SLR(R) 582 (“Lim Poh Lye (CA)”). We shall hereafter refer to this proposition as “the putative Mimi Wong (CCA) test”.
[36] We shall now examine the findings of fact made by the Judge and his actual decision in respect of Daniel and Christopher. His findings on Bala are not particularly pertinent to our discussion on s 34 as Bala was the actual doer of the criminal act in the present case and, therefore, his liability for the offence of murder would depend solely on the operation of s 300(c) of the Penal Code (s 300(c) being the particular limb of s 300 which was relied on by the Prosecution).
The findings of the Judge
[37] In dealing with the retracted parts of the Appellants’ statements, the Judge reminded himself that case law required the court to treat those portions of the statements with circumspection (see the GD at [32], citing Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45 at [84]–[86]). With that caution in mind, the Judge made the following findings of fact against the Appellants:
(a) There might have been “some discussion among the [Appellants] in relation to hijacking Wan’s lorry at the pass-office” (see the GD at [34]), but the evidence showed that “the plan … had changed by the time of the evening before the crime” (see the GD at [34]). The new plan was to “forcibly take over the goods-laden lorry [ie, Lorry 815] while making sure that the driver thereof [ie, Wan] would be unable to stop them or recognize them” (see the GD at [34]). It was clear to the Appellants that “the new plan had to be executed when [L]orry 815 did not stop at the pass-office and when [Bala] directed [Daniel] to tail the said lorry” (see the GD at [34]).
(b) The assertion by Daniel that the assault on Wan was unexpected and that he (Daniel) had been shocked by it should be rejected in view of, inter alia, the following factors (see the GD at [35]–[36]):
(i) Daniel was in control of Lorry 9520 when the Appellants tailed Lorry 815;
(ii) it was likewise Daniel who staged the near accident along Changi Coast Road;
(iii) Daniel did not mention his alleged shock and fear in any of his statements to the police; and
(iv) following the assault on Wan, Daniel (among other things) helped to carry Wan into the passenger compartment of Lorry 815 and subsequently went clubbing and drinking that same evening, which actions “negated the assertion of shock” (see the GD at [36]).
In the circumstances, the Judge held, Daniel “was privy to the robbery plan and … knew that [Wan] would be assaulted as part of the [robbery] plan” (see the GD at [36]).
(c) Christopher was “clearly privy to the robbery plan” (see the GD at [39]). Bala had informed the police that when Christopher drove him and Babu to CAC to survey the place ahead of the robbery, Christopher was aware that there was a plan to steal mobile phones (see the GD at [37]). Also, Daniel’s testimony in court did not support the contention by Christopher that he (Christopher) was an ignorant last-minute replacement driver (see the GD at [37]). Furthermore, Christopher was present at the meeting at the coffee shop in Toa Payoh on 29 May 2006 when the robbery was discussed (see the GD at [38]). His evidence that he had been talking to his girlfriend on his mobile phone instead was not convincing (see the GD at [38]). Similarly, his assertion that he had made incriminating statements against himself so that his statements would tally with Daniel’s statements was “inherently unbelievable” (see the GD at [39]). In addition, his conduct during the robbery showed that he was part of the robbery plan (see the GD at [39]).
(d) Bala satisfied the requirements for liability for the offence of murder as set out in s 300(c) of the Penal Code (“s 300(c) murder”). He admitted that whatever injuries were found on Wan’s body had been caused by his assault (see the GD at [41]). In this respect, Dr Teo testified that, in his view, at least 15 blows had been inflicted on Wan and the injuries to Wan’s head were sufficient in the ordinary course of nature to cause death (see the GD at [41]).
(e) The interception of Lorry 815 and the subsequent assault on Wan by Bala were “clearly premeditated” (see the GD at [43]). As stated by Daniel, Bala took the baseball bat with him when he alighted from Lorry 9520 and tried to hide it behind his left leg (see the GD at [44]–[45]). Also, “the multiple forceful blows inflicted on the unarmed and defenceless [Wan] showed that the assault was nothing short of being cruel” (see the GD at [45]). On those two scores, the defence of sudden fight was clearly not available to Bala (see the GD at [45]).
(f) Bala also could not rely on the defence of provocation. His attack on Wan was clearly premeditated and did not result from his having been deprived of his self-control due to Wan’s alleged aggression (see the GD at [48]). It was highly unlikely that Wan had behaved in a provocative manner as:
(i) he was outnumbered;
(ii) his alleged aggressiveness was not mentioned in any of the Appellants’ statements to the police; and
(iii) his alleged provocative behaviour was not corroborated by either Daniel or Christopher.
[38] On the basis of these findings of fact, the Judge concluded that the fact that none of the Appellants had intended to kill or cause the death of Wan did not mean that they could not be convicted of murder. Vis-à-vis Bala, the Judge held that the requirements for him to be made liable for the offence of s 300(c) murder were clearly met. The Judge referred to Lim Poh Lye (CA), where this court reaffirmed the applicability of the principles set out by the Supreme Court of India in Virsa Singh v State of Punjab AIR 1958 SC 465 (“Virsa Singh”) apropos the Indian equivalent of s 300(c) of the Penal Code, which were as follows (see Virsa Singh at [12]):
[39] Since, on the facts found by the Judge, Bala had committed s 300(c) murder, the Judge held that Daniel and Christopher were also guilty of the same offence as they (together with Bala) had a common intention to rob Wan and “knew that violence would be necessary to overpower and incapacitate Wan … in order to facilitate the commission of the robbery” (see the GD at [51]). The Judge added that “[t]he brutal assault [on Wan] was undoubtedly in furtherance of [the Appellants’] common intention to commit robbery of the goods in [L]orry 815” (see the GD at [51]).
[40] To support his ruling that Daniel and Christopher’s knowledge that “violence would be necessary to overpower and incapacitate Wan … in order to facilitate the commission of the robbery” (see the GD at [51]) was sufficient for Daniel and Christopher to be made constructively liable for murder pursuant to s 34, the Judge referred to this court’s judgment in Lee Chez Kee (CA) and said (see the GD at [50]):
[41] It is crucial to note that Lee Chez Kee (CA) was a “twin crime” case – ie, a case where the offenders share a common intention to commit a criminal act (hereafter called a “primary criminal act”) such as breaking into a house to steal and, in the course of doing that criminal act, one of the offenders (ie, the actual doer) commits a different (or collateral) criminal act (hereafter called a “collateral criminal act”) such as inflicting a fatal injury on the occupant of the house with a knife. In a typical “twin crime” case, it is the collateral criminal act – and not the primary criminal act – that the secondary offenders are concerned about as the offence which they are charged with, read with s 34, is the offence resulting from the former (ie, the collateral criminal act). In contrast, in a “single crime” case, the offenders share a common intention to carry out the criminal act actually done by the actual doer (which would be the primary criminal act as just defined), and that criminal act is also the criminal act which gives rise to the offence charged against the secondary offenders.
[42] It was in the particular context of a “twin crime” case that this court laid down in Lee Chez Kee (CA) (at, inter alia, sub-para (d) of [253]) the additional mens rea requirement which had to be satisfied in order to hold a secondary offender (who might or might not himself have participated in the collateral criminal act done by the actual doer) constructively liable pursuant to s 34 for the offence resulting from the actual doer’s collateral criminal act, namely:
This mens rea requirement, which we shall hereafter refer to as “the LCK requirement”, refers to subjective knowledge that “the criminal act constituting the collateral offence” (see Lee Chez Kee (CA) at sub-para (d) of [253]) – ie, the collateral criminal act as defined at [41] above – may likely be committed, and not simply subjective knowledge that violence may be used in furtherance of the common intention to do the primary criminal act. As mentioned at [3] above, the LCK requirement is a restriction on the operation of the putative Mimi Wong (CCA) test. In the light of the decision in Lee Chez Kee (CA), it is no longer possible for the Prosecution to merely rely on the putative Mimi Wong (CCA) test when it seeks to hold a secondary offender constructively liable pursuant to s 34 for the offence resulting from the criminal act done by the actual doer; instead, the Prosecution must go further and show that the LCK requirement is satisfied. It is necessary to point out at this juncture that the putative Mimi Wong (CCA) test, as restricted by the LCK requirement, is relevant only in a “twin crime” situation.
[43] Reverting to the GD, it should be noted that the Judge held that the LCK requirement was satisfied by reason of the findings set out at [51]–[53] of the GD, which were as follows:
[44] These findings were, in summary, as follows:
(a) the Appellants had a common intention to rob Wan;
(b) the Appellants knew that violence would be used to incapacitate Wan in order to facilitate the commission of the robbery, although Daniel and Christopher were not aware of (ie, they did not know) the “actual method of execution” (see the GD at [51]);
(c) Wan was brutally assaulted by Bala in furtherance of the Appellants’ common intention to commit robbery;
(d) Daniel participated in the robbery by staging the near accident along Changi Coast Road and by acting as a lookout while Wan was being assaulted;
(e) Christopher participated in the robbery by directing Wan to Bala after Wan alighted from Lorry 815, knowing that Wan would be assaulted by Bala; and
(f) the Appellants had not planned to kill (ie, to cause the death of) Wan (see the GD at [40] and [52]).
[45] It is also crucial to note that although the Judge was of the view that the Appellants knew that violence would be necessary in order to facilitate the commission of the robbery (see the GD at [50]) and that Daniel and Christopher knew that Wan would be assaulted as part of the robbery plan (see the GD at, respectively, [36] vis-à-vis Daniel and [52] vis-à-vis Christopher), he did not ultimately find as a fact that the Appellants had a common intention to knock Wan unconscious, let alone a common intention to do so by (specifically) hitting him on the head. Instead, the Judge found as a fact that the Appellants had no plan (ie, no common intention) to kill Wan or cause his death, and stated the Appellants’ common intention solely in terms of a “common intention to commit robbery” (see the GD at [51]). A final point to note is that the Judge made express findings of participation by Daniel and Christopher only in relation to the robbery, and not in relation to the assault on Wan.
The appeal
The hearings before this court
[46] At the first hearing of this appeal on 13 November 2008, counsel for the Appellants informed us that their clients did not wish to proceed with the appeal and applied for leave to withdraw the appeal. However, having read the record of proceedings (“the RP”), including the GD, it was our view that the correctness of the convictions of Daniel and Christopher merited further consideration, given the Judge’s specific finding that the Appellants had not planned to kill or cause the death of Wan in carrying out the robbery. As both Daniel and Christopher were adamant in withdrawing the appeal in so far as their convictions were concerned, we appointed their respective counsel as amicus curiae to address us on the merits of the appeal vis-à-vis their convictions. The hearing was then adjourned to a later date. Subsequently, in a letter dated 15 January 2009, Daniel, through his counsel, informed the court of his decision to proceed with the appeal in relation to his conviction. Christopher’s counsel continued to act for Christopher as though they had been instructed to proceed with the appeal where his conviction was concerned.
[47] At the second hearing of this appeal on 9 April 2009, Bala maintained his decision to withdraw the appeal in so far as his conviction was concerned. After hearing the submissions of counsel for Daniel and counsel for Christopher as well as the Prosecution’s submissions, we reserved our judgment.
The submissions by Daniel and Christopher on appeal
Daniel’s submissions
[48] The main submissions by Daniel against his conviction were as follows:
(a) The Judge placed too much weight on the retracted parts of the Appellants’ statements and too little or no weight on the Appellants’ oral evidence at the trial.
(b) The Judge erred in law and in fact in failing to apply the correct test for imposing constructive liability under s 34.
(c) The Judge failed to properly consider and give due weight to the evidence adduced by or on behalf of Daniel that he did not do any act in furtherance of any common intention.
(d) The Judge erred in law and in fact in failing to properly consider Babu’s evidence, which contradicted the CSOF that Babu had earlier unreservedly admitted to at his trial (see [16] above). This contradiction raised doubts as to whether Wan’s death was caused in furtherance of the Appellants’ common intention to commit robbery.
(e) The Judge erred in law and in fact in convicting Daniel of murder on the basis that he had prior knowledge of the planned assault on Wan. The only plan which the Appellants had in common was to commit robbery by driving away Wan’s lorry (ie, Lorry 815) with the Cargo on board; Bala alone subsequently changed the plan and caused Wan’s death without the participation of Daniel and Christopher.
(f) The requirements for constructive liability to be imposed under s 34, as laid down in Lee Chez Kee (CA), were not satisfied as Daniel did not have subjective knowledge that Bala, in furtherance of the Appellants’ common intention to commit robbery, might likely cause Wan’s death by beating Wan until he was almost unconscious. Further, Daniel did not participate in the assault on Wan.
[49] In his oral submissions, counsel for Daniel contended that the Appellants’ common intention, if any, did not go beyond an agreement to rob. He argued that even if Daniel knew that Bala had the baseball bat with him at the material time, it did not necessarily follow that he knew that Bala would use the baseball bat to inflict on Wan bodily injury which was sufficient in the ordinary course of nature to cause death (hereafter referred to as “s 300(c) injury”). Counsel also contended that no medical evidence was adduced as to the degree of force necessary to either render a person unconscious or inflict on him s 300(c) injury.
Christopher’s submissions
[50] The main submissions by Christopher against his conviction were as follows:
(a) The Judge erred in fact and in law in relying on the retracted parts of the statements made by Bala and Daniel, which incriminated Christopher. In this connection, the Judge:
(i) did not place adequate weight on the reasons given by Daniel as to why he had initially falsely incriminated himself and Christopher in respect of Bala’s assault on Wan;
(ii) did not give adequate weight to the explanation by Bala as to why he had falsely claimed in his statements to the police that Daniel and Christopher were the ones who had assaulted Wan; and
(iii) did not state what weight he placed on the retracted parts of the statements of Bala and Daniel.
(b) The Judge erred in fact and in law in not placing any weight on that part of the evidence of Bala and Daniel which corroborated Christopher’s evidence. In this connection, the Judge:
(i) ignored the evidence of Bala and Daniel (in particular, the evidence of the former, who had no motivation to lie), which exculpated Christopher;
(ii) erred in failing to find that Christopher was not aware of a pre-arranged plan to commit robbery as he had only been asked to drive Lorry 9520 to a designated spot; and
(iii) erred in failing to find that Christopher could not have anticipated that violence would be used in furtherance of the Appellants’ common intention to commit robbery and that Bala would assault Wan using, specifically, the baseball bat.
(c) The Judge erred in finding that the retracted parts of Christopher’s statements were true and in failing to place adequate weight on Christopher’s oral testimony at the trial.
(d) The Judge erred in law in failing to explain clearly his reasons for convicting Christopher of murder under s 302 of the Penal Code read with s 34 and, in particular, in failing to explain the relevance of Lee Chez Kee (CA) as the basis for imputing constructive liability to Christopher for the murder arising from the criminal act committed by Bala (viz, the assault on Wan).
(e) The Judge erred in fact and in law in imputing constructive liability to Christopher for the murder arising from the criminal act committed by Bala as Christopher had not participated in that criminal act.
(f) The Judge erred in finding that Christopher shared the common intention to commit robbery as Christopher had been involved only as a last-minute replacement driver. Furthermore, the Judge erred in finding that Christopher had subjective knowledge that there was a likelihood of violence being committed against Wan.
[51] In his oral submissions, counsel for Christopher argued that the Judge should not have relied on the retracted parts of Christopher’s statements to find Christopher guilty of murder as Daniel and Bala, who had implicated him in the robbery, had subsequently retracted the incriminating parts of their statements. Counsel emphasised that Christopher had not known about the robbery plan or any plan to assault Wan so as to render him unconscious as Christopher had stepped in merely as a last-minute replacement driver. Counsel also submitted that since Daniel and Christopher had the opportunity to discuss between themselves what they would tell the police (a fact which the Prosecution did not challenge), the Judge should have given little or no weight to their admissions in relation to their roles in the alleged plan to rob Wan and to beat him up so as to facilitate the commission of the robbery.
The Prosecution’s submissions on appeal
[52] The Prosecution’s main submissions on appeal can be summarised as follows:
(a) The offence of s 300(c) murder had been made out vis-à-vis Bala, and none of the defences for murder was applicable.
(b) The evidence against Daniel and Christopher showed that they had prior knowledge of a plan to commit robbery of mobile phones which were being transported as well as to assault the driver of the targeted lorry with the baseball bat until he was unconscious so as to facilitate the commission of the robbery.
(c) Daniel and Christopher did not provide any satisfactory explanation for retracting the incriminating parts of their statements.
(d) Daniel and Christopher clearly participated in the offence of murder (in respect of which they were charged) as well as the offence of robbery (in respect of which they were not charged).
(e) The evidence showed that “[Daniel] was aware that [Wan] might be badly assaulted in [the course of] the robbery and might receive a bodily injury sufficient in the ordinary course of nature to cause death”, and that Christopher was aware that the baseball bat “might be used” to assault Wan.
Our decision on the conviction of Bala
[53] Even though Bala decided, at the hearing before this court on 13 November 2008, not to proceed with the present appeal in so far as his conviction was concerned (a decision which he subsequently confirmed at the hearing before us on 9 April 2009), it is incumbent on this court to nonetheless consider whether Bala’s conviction was correct both in law and in fact as it formed the foundation for the convictions of Daniel and Christopher.
[54] The offence of s 300(c) murder is defined in the Penal Code as follows:
[55] Having regard to the evidence, and applying the test set out in Virsa Singh (“the Virsa Singh test”) (see [38] above), we are of the view that Bala was properly convicted of s 300(c) murder as he had intentionally inflicted on Wan, using the baseball bat, s 300(c) injury which caused the death of Wan (see the evidence of Dr Teo as summarised at [41] of the GD). We accordingly affirm the Judge’s conviction of Bala for murder.
[56] For completeness, we should state that the defences relied on by Bala (viz, the defences of sudden fight and provocation), which the Judge rejected (see sub-paras (e) and (f) of [37] above), were correctly rejected on the evidence. In our view, the circumstances and the manner in which Wan was assaulted indicated that the defences of sudden fight and provocation were clearly inherently improbable.
The convictions of Daniel and Christopher
Key issues to consider vis-à-vis Daniel and Christopher
[57] Turning now to Daniel and Christopher’s convictions, in our view, the Judge’s findings that (a) Daniel and Christopher, together with Bala, had a common intention to rob Wan and (b) Daniel and Christopher participated in the robbery cannot be challenged on the evidence. Having regard to these finding as well as the Judge’s findings mentioned at [37]–[39] and [43]–[45] above, the key issues to be considered in this appeal are:
(a) first, whether Bala’s assault on Wan was in furtherance of the Appellants’ common intention to rob Wan (“Issue (a)”); and
(b) second, whether the LCK requirement was satisfied with respect to Daniel and Christopher on the evidence (“Issue (b)”).
We shall now examine these issues seriatim.
Issue (a): Was Bala’s assault on Wan in furtherance of the Appellants’ common intention?
[58] Issue (a) – viz, whether Bala’s assault on Wan was in furtherance of the Appellants’ common intention to rob Wan – is a question of fact. The Judge held at [51] of the GD that “[t]he [Appellants] knew that violence would be necessary … to facilitate the commission of the robbery”, and that “[Bala’s] brutal assault was undoubtedly in furtherance of [the Appellants’] common intention to commit robbery of the goods in [L]orry 815” (see, likewise, [51] of the GD). The question which we have to consider is whether this finding is correct, ie: was the Judge right to hold that Bala’s brutal assault on Wan was in furtherance of the Appellants’ common intention to rob Wan because it facilitated the robbery?
[59] We have grave doubts about the correctness of this finding by the Judge in the light of the fact that:
(a) the Judge found that the Appellants had a common intention to rob Wan, but had no common intention to kill him or cause his death; and
(b) the Judge did not make any finding that the Appellants had a common intention to knock Wan unconscious, let alone a common intention to do so by hitting his head with the baseball bat (ie, let alone a common intention to cause a specific injury to Wan).
In the circumstances, we find it difficult to accept that Bala’s assault on Wan to facilitate the robbery was in furtherance of the Appellants’ common intention to rob Wan. Certainly, it can be said that Bala’s assault on Wan furthered the robbery and contributed to its success. But, Daniel and Christopher might not necessarily have agreed to carry out the robbery at all costs, to the extent, for example, of causing Wan grievous hurt or killing him. There was no finding in the present case that Daniel and Christopher had a common intention with Bala to assault Wan in the way that Bala actually did. The Judge found that Daniel and Christopher stood by while Bala assaulted Wan, but he stopped short of finding that Daniel and Christopher participated in the assault in some way. In the light of these findings, we are unable to accept that Bala’s assault on Wan was done in furtherance of the Appellants’ common intention to rob Wan as that common intention did not encompass assaulting Wan. The assault on Wan was inconsistent with or, at least, outside the scope of the Appellants’ common intention to rob Wan.
[60] To provide a clearer illustration of this point, suppose A and B plan to abduct C with a common intention to rape her: they carry out the abduction successfully and confine C in a flat for the purpose of raping her. A, however, molests C instead of raping her. A’s act of molestation may be said to be consistent with A and B’s common intention to rape C, rape being a more serious sexual offence than sexual molest. Alternatively, suppose A were to sodomise C: it may be argued (although this should not be taken as representing our definitive opinion on this point) that A’s act of sodomy is also consistent with A and B’s common intention to rape C if the common intention to commit rape is pitched at the level of abstraction of a common intention to commit an offence of a sexual nature, like sexual assault or sexual molest. But, suppose A, in the course of raping C, were to suffocate her with a pillow while trying to stop her from screaming: in this situation, it cannot be said that because A’s act of suffocating C furthered the rape of C, the suffocation was therefore in furtherance of A and B’s common intention to rape C. Instead, the suffocation of C would be inconsistent with or, at least, in excess of the criminal act commonly intended by A and B (which was the rape of C).
[61] In the context of the requirement of consistency between the criminal act done by the actual doer which gives rise to the offence charged and the criminal act commonly intended by all the above offenders, the above scenario may be compared with the scenario that occurred in Ike Mohamed Yasin bin Hussin v Public Prosecutor [1974–1976] SLR(R) 596 (“Mohamed Yasin”). In that case, the common object of the appellant and one Harun bin Ripin (“HBP”), the appellant’s co-accused at the trial stage, was burglary (see Mohamed Yasin at [6]). As the appellant and HBP were trying to overpower the victim, the victim’s trousers fell off. On seeing this, the appellant was overcome by desire and raped the victim while HBP ransacked the hut (HBP did not participate in the rape at all). While raping the victim, the appellant sat on her chest, fracturing a number of her ribs. When the appellant finished raping the victim, he discovered that she was dead. The evidence showed that the fractures to the victim’s ribs had caused congestion of the victim’s lungs, resulting in a heart attack.
[62] The appellant and HBP were subsequently arrested and charged with committing murder in furtherance of a common intention under s 302 of the Penal Code read with s 34. The trial judges convicted the appellant of murder. In contrast, they acquitted HBP of murder and convicted him of robbery by night (ie, robbery committed after 7.00pm and before 7.00am (see s 392 of the Penal Code)) on the ground that the death of the victim was not caused by any act done by the appellant in furtherance of his and HBP’s common object to commit burglary, but was instead caused by an act “done in furtherance of the appellant’s own unpremeditated impulse to have sexual intercourse with the victim” [emphasis added] (see Mohamed Yasin at [6]). Only the appellant appealed against his conviction – ie, the case effectively became a non-s 34 case at the appellate stage. The appeal was dismissed by the CCA (see Mohamed Yasin bin Hussin v Public Prosecutor [1974–1976] SLR(R) 218). The appellant then appealed further to the Privy Council, which held (in Mohamed Yasin) that the appellant had not intended to cause the victim the type of injury which was in fact caused (viz, fracture of the ribs). Lord Diplock, who delivered the judgment of the Privy Council, stated:
The Privy Council thus set aside the appellant’s conviction for s 300(c) murder and substituted it with a conviction for the offence under s 304A of the Penal Code of causing death by doing a rash act not amounting to culpable homicide.
[63] Although Mohamed Yasin did not involve s 34 at the appellate stage (both before the CCA and before the PC), it was a s 34 case before the High Court, where HBP was acquitted of murder. Given the decision of the Privy Council that the appellant was also not guilty of murder, both the High Court’s decision vis-à-vis HBP and the Privy Council’s decision vis-à-vis the appellant were consistent with the principle that the appellant and HBP should not be held liable for murder under s 302 of the Penal Code read with s 34 as they did not have a common intention to inflict on the victim the specific injury which caused her death. Suppose, however, that in Mohamed Yasin, HBP had also been overcome by sexual desire upon seeing the victim’s trousers fall off and had spontaneously formed a common intention with the appellant to rape the victim, and had subsequently been charged with the offence of murder under s 302 of the Penal Code read with s 34: in that scenario, it can be inferred from the reasoning of the Privy Council that it would have ruled that the appellant’s criminal act of fracturing the victim’s ribs was inconsistent with or, at least, in excess of the criminal act commonly intended by the appellant and HBP (viz, forcible sexual intercourse with the victim), and would not have held HBP constructively liable for murder under s 302 read with s 34.
[64] Reverting to the facts of the present case, the Judge held that:
(a) all the Appellants “knew that violence would be necessary to overpower and incapacitate Wan (to the extent [that] he would not be able to resist and to identify them) in order to facilitate the commission of the robbery” (see the GD at [51]);
(b) Daniel “knew that [Wan] would be assaulted as part of the [robbery] plan” (see the GD at [36]); and
(c) Christopher likewise had “full knowledge of … the fact that Wan would be assaulted by [Bala]” (see the GD at [52]).
[65] In our view, knowledge is not the same as intention (see [87]–[90] below), and, therefore, the presence of the knowledge found by the Judge was insufficient to justify the conclusion that there was a common intention among the Appellants to use violence against Wan. Bala himself might have had such an intention (having regard to the fact that he was the one who assaulted Wan during the robbery as well as to the manner in which he carried out that assault), but it cannot be said that Daniel and Christopher would necessarily have shared this intention. It follows that the ruling by the Judge that Bala’s criminal act was in furtherance of the Appellants’ common intention to rob Wan was not supported by his findings of fact. In this regard, we note that in Rex v Vincent Banka & Anor [1936] MLJ 53 (“Vincent Banka”), where one of the two accused stabbed the victim to death in the course of a robbery (it was not clear from the evidence which of the accused actually inflicted the fatal wound on the victim), Huggard CJ rejected the following argument by the Prosecution (at 54):
Issue (b): Was the LCK requirement satisfied with respect to Daniel and Christopher on the evidence?
[66] Turning now to Issue (b) (viz, whether the LCK requirement was satisfied in respect of Daniel and Christopher on the evidence), we noted earlier (at [45] above) that although the Judge found that the Appellants knew that violence would be necessary in order to facilitate the commission of the robbery and that Daniel and Christopher knew that Wan would be assaulted as part of the robbery plan, he ultimately found that the Appellants had not planned to kill Wan or cause his death. In our view, these two findings are insufficient to satisfy the LCK requirement. There was no finding that Daniel and Christopher had subjective knowledge that Bala might likely commit the criminal act actually committed which resulted in the offence with which the Appellants were charged. In our view, these two findings are a far cry from a finding that Daniel and Christopher subjectively knew that Bala might likely inflict s 300(c) injury on Wan in furtherance of the Appellants’ common intention to commit robbery. Indeed, since (as the Judge held at [40] and [52] of the GD) the Appellants had no intention to either kill Wan or cause his death, there would have been no cause or reason for Daniel and Christopher to suspect, much less subjectively know, that Bala might likely inflict s 300(c) injury on Wan in furtherance of the Appellants’ common intention to rob Wan. In short, the evidence does not establish beyond reasonable doubt that Daniel and Christopher subjectively knew that Bala might likely cause Wan s 300(c) injury in furtherance of the Appellants’ common intention to commit robbery.
[67] The evidence is clear that Daniel and Christopher stood by (or, to be more precise where Daniel is concerned, waited in Lorry 9520) silently – and, according to Daniel’s testimony, helplessly – while Bala assaulted Wan. In our view, the fact that neither Daniel nor Christopher did anything to stop Bala from assaulting Wan so viciously does not entail that they therefore subjectively knew that Bala might likely inflict s 300(c) injury on Wan in furtherance of the Appellants’ common intention to commit robbery. The Judge’s finding that the Appellants had not planned to kill Wan or cause his death would support the inference that Daniel and Christopher did not have subjective knowledge that Bala might likely inflict s 300(c) injury on Wan in furtherance of the Appellants’ common intention to rob Wan. This might also explain their passivity at the material time.
[68] The next point which we need to consider is whether it may be argued that all that is needed to satisfy the LCK requirement in the present case (which involves, specifically, the offence of s 300(c) murder) is proof that Daniel and Christopher had subjective knowledge that some form of hurt (whether simple or “grievous” within the meaning of s 320 of the Penal Code) might likely be caused to Wan in furtherance of the Appellants’ common intention to commit robbery. This would not be an unreasonable approach, having regard to the established law (ie, the law laid down in Virsa Singh (see [38] above)) on how s 300(c) of the Penal Code should be applied. In other words, what we need to consider is: how specific must the secondary offender’s subjective knowledge of the collateral criminal act which might likely be committed by the actual doer be for the purposes of satisfying the LCK requirement? To answer this question (which we shall hereafter refer to as “the ‘degree of specificity’ question” for convenience), we must first examine this court’s decision in Lee Chez Kee (CA).
[69] In that case, the accused (“LCK”) and two others (“Too” and “Ng”) set out to rob the deceased at his house. In the course of the robbery, LCK stabbed the deceased. The deceased was then tied up by Too and LCK, and was later strangled by one of them. LCK was charged with murder committed in furtherance of a common intention to rob the deceased. LCK denied that he had any part in the killing of the deceased, and claimed that he had left the house thinking that the deceased was alive. The trial judge convicted LCK of the charge even though he did not make a finding that there was a common intention to kill the deceased (see Public Prosecutor v Lee Chez Kee [2007] 1 SLR(R) 1142). LCK, in other words, was treated as though he was the actual doer and s 34 was not applied to determine his guilt.
[70] LCK appealed against his conviction. On appeal, this court doubted whether it was LCK who had strangled the deceased and, accordingly, decided to consider whether LCK’s conviction could be sustained if s 34 were applied, even though the trial judge did not find that there was a common intention between Too and LCK to strangle the deceased (the strangulation of the deceased was the criminal act which gave rise to the offence charged in Lee Chez Kee (CA)). This court held (inter alia) as follows where the law on s 34 was concerned:
(a) In a “twin crime” case, it was not necessary for the secondary offender (ie, LCK in the case of Lee Chez Kee (CA)) to participate in the collateral criminal act giving rise to the offence charged (which, in Lee Chez Kee (CA), was the offence of murder). Instead, it sufficed so long as he participated in the primary criminal act which was commonly intended by all the offenders (ie, the acts constituting the robbery of the deceased in the case of Lee Chez Kee (CA)).
(b) The putative Mimi Wong (CCA) test was good law. For s 34 to apply in a “twin crime” case, it was not necessary for there to be a common intention among all the offenders to do the collateral criminal act done by the actual doer. However, before the secondary offender could be held constructively liable for the offence resulting from that collateral criminal act, the secondary offender must have subjective knowledge that the actual doer might likely commit that criminal act (ie, the collateral criminal act giving rise to the offence charged) in furtherance of all the offenders’ common intention to carry out a primary criminal act (see Lee Chez Kee (CA) at sub-para (d) of [253] (also reproduced earlier at [42] above)).
[71] On the facts of Lee Chez Kee (CA), this court held by a majority, vis-à-vis the requirement set out at sub-para (b) of the preceding paragraph (ie, the LCK requirement), that LCK had the requisite subjective knowledge. In this regard, it was held, inter alia, that LCK “must … have appreciated that the deceased would have to be killed to protect [the] identities [of LCK and Too] in the light of the harm they had inflicted on him” [emphasis added] (see Lee Chez Kee (CA) at [262]).
[72] Reverting to the “degree of specificity” question posed at [68] above, where a secondary offender is charged with murder read with s 34, the particular criminal act whose likely commission he must have subjective knowledge of, for the purposes of the LCK requirement, depends on the particular limb of s 300 which is invoked by the Prosecution. Section 300, part of which was quoted earlier (at [54] above), defines the offence of murder as follows:
[73] As a matter of statutory interpretation, the four limbs of s 300 of the Penal Code indicate that the criminal act which gives rise to the offence of murder may take on one of four distinct criminal acts. Accordingly, where s 34 is invoked to hold a secondary offender constructively liable for murder, the subjective knowledge which he must have is subjective knowledge of the likely commission of the criminal act that is relevant to the particular limb of s 300 relied upon by the Prosecution. At first glance, this may seem to require fine distinctions to be drawn between the various limbs of s 300 for the purposes of imposing constructive liability on a secondary offender pursuant to s 34. We are, however, of the view that in terms of application, there is, in substance, little or no difference between subjective knowledge of the likelihood of one of the criminal acts in s 300 occurring and subjective knowledge of the likelihood of another of those criminal acts occurring. Subjective knowledge that any one of the criminal acts set out in s 300 might likely be committed, whether that criminal act is the one delineated in s 300(a), s 300(b), s 300(c) or s 300(d), is in effect simply subjective knowledge that the victim might likely be killed or fatally injured, whatever the specific criminal act concerned might be.
[74] Leaving aside subsections (a), (b) and (d) of s 300 (all of which are not applicable in the present case as Bala’s criminal act was found to have given rise to the offence of s 300(c) murder specifically), where a secondary offender is sought to be made constructively liable pursuant to s 34 for s 300(c) murder, the LCK requirement would be satisfied only if the secondary offender has subjective knowledge of the likelihood of the victim receiving, specifically, s 300(c) injury. This corresponds to the type of bodily injury which must be inflicted on the victim for the purposes of s 300(c) murder. In this respect, it is not sufficient, in our view, for s 34 to apply if the secondary offender merely has subjective knowledge that the victim might likely suffer an injury (or, for that matter, if the secondary offender shares a common intention with the actual doer to inflict an injury on the victim), and that injury is subsequently shown to be of a type which is sufficiently serious to amount to s 300(c) injury.
[75] In this regard, it bears emphasis that the mens rea requirement for s 300(c) murder is an element of the substantive offence of s 300(c) murder. In contradistinction, s 34 does not create a substantive offence but merely lays down a principle of liability (see Mahbub Shah v Emperor AIR (32) 1945 PC 118 (“Mahbub Shah”) at 120), and the LCK requirement is only a factor in determining whether that principle of liability applies.
[76] Section 34 imputes constructive liability to a secondary offender by reference to the doing of a criminal act by the actual doer in furtherance of a common intention shared by both the actual doer and the secondary offender, whereas s 300(c) imputes direct liability to the actual doer by reference to an intentional act done by him. Different policy considerations apply when imputing direct liability for murder and when imputing constructive liability for that offence. It may be just to hold the actual doer liable for the offence arising from his own actions, but, in our view, it may not be just to hold the secondary offender constructively liable for an offence arising from the criminal act of another person (viz, the actual doer) if the secondary offender does not have the intention to do that particular criminal act. This is especially true of serious offences like murder or culpable homicide not amounting to murder. It does not necessarily follow that the Virsa Singh interpretation of s 300(c), which is applicable to the actual doer, is or should be equally applicable to a secondary offender, especially where the secondary offender did not inflict any injury on the victim at all. In other words, as a principle of criminal liability, it may not be unjust or unreasonable to hold the actual doer liable for s 300(c) murder by applying the Virsa Singh test since (as just mentioned) he was the one who inflicted the s 300(c) injury sustained by the victim. However, it may not be just or reasonable to apply the Virsa Singh test to hold a secondary offender constructively liable for s 300(c) murder where he had no intention to do the specific criminal act done by the actual doer which gave rise to the offence of s 300(c) murder, and also did not subjectively know either that that criminal act might likely be committed or that that criminal act would result in s 300(c) injury to the victim.
[77] In the present case (and assuming, contra our finding on Issue (a), that the inflicting of s 300(c) injury on Wan by Bala was in furtherance of the Appellants’ common intention to rob Wan), the evidence, as already indicated at [66]–[67] above, does not show that Daniel and Christopher had subjective knowledge that Bala might likely inflict s 300(c) injury on Wan in furtherance of the Appellants’ common intention. Accordingly, we answer Issue (b) in the negative; ie, on the evidence, it cannot be said that the LCK requirement was satisfied with respect to Daniel and Christopher. It follows that their convictions for murder have to be set aside (cf the decision in Lee Chez Kee (CA), where this court upheld (by a majority) LCK’s conviction of murder under s 302 of the Penal Code read with s 34 on, inter alia, the basis that LCK “must … have appreciated that the deceased would have to be killed to protect [the] identities [of LCK and Too] in the light of the harm they had inflicted on him” (at [262])).
Our decision on the convictions of Daniel and Christopher
[78] Our decision on Issue (a) and Issue (b) suffices to dispose of this appeal where Daniel and Christopher’s convictions for murder are concerned. These convictions are to be set aside. In substitution, Daniel and Christopher are to be convicted of robbery with hurt under s 394 of the Penal Code read with s 34 (see [185] below for our directions on sentencing).
The state of the law on s 34
[79] At the beginning of this judgment, we expressed concern that more than 130 years after the enactment of s 34, the law on this provision is still unsettled (see [3] above). We shall now revisit s 34 to see how this state of affairs came about. We start by examining the origins of the phrase “in furtherance of the common intention of all” in s 34 and how it came to be made part of this section.
Origins of the phrase “in furtherance of the common intention of all”
[80] Section 34 can be traced back to s 34 of the Penal Code 1860 (Act 45 of 1860) (India) (“the IPC”), which, in its original form, read as follows:
In 1870, the original version of s 34 of the IPC was amended by the insertion of the phrase “in furtherance of the common intention of all” (see s 1 of the Penal Code Amendment Act 1870 (Act 27 of 1870) (India) (“the 1870 IPC Amendment Act”)). It was this amended version of s 34 of the IPC (hereafter referred to as “s 34 IPC” for short) which was introduced into our legislation when the 1871 Penal Code was enacted in 1872. Thus, s 34, as it currently stands in the Penal Code, reads as follows:
[81] According to Hari Singh Gour, The Penal Law of India (Law Publishers (India) Pvt Ltd, 11th Ed, 2000) (“Gour”), the insertion of the phrase “in furtherance of the common intention of all” into the original version of s 34 of the IPC (at vol 1, p 260):
[82] It is important to note that even under the then prevailing English doctrine of common purpose, an accused had to be “cognizant of the intention of his companions to commit [the offence charged]” (see Gour at vol 1, p 260) before he could be made constructively liable for that offence. The law of common intention, like the law of common purpose, is concerned with the imposition of constructive liability on a secondary offender for an offence (or offences) arising from a criminal act committed by the actual doer. However, the amendment effected by s 1 of the 1870 IPC Amendment Act went further than the English doctrine of common purpose by requiring that the criminal act done by the actual doer which gave rise to the offence charged had to be done in furtherance of the common intention of all the offenders (ie, both the actual doer and the secondary offender(s)), instead of merely requiring the secondary offender to be “cognizant of the intention of his companions” (see Gour at vol 1, p 260).
[83] In Barendra Kumar Ghosh v Emperor AIR 1925 PC 1 (“Barendra (PC)”), the Privy Council explained the rationale of the amendment effected by s 1 of the 1870 IPC Amendment Act as follows (per Lord Sumner at 9):
[84] In Ibra Akanda and others v Emperor AIR (31) 1944 Cal 339 (“Ibra Akanda”), Khundkar J provided a similar explanation of the purpose of the amendment made by s 1 of the 1870 IPC Amendment Act. He said (at 361):

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Daniel Vijay s/o Katherasan and others v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

Factual background

Participants

Undisputed facts

Prosecution of Ragu

Prosecution of Babu

Prosecution of the Appellants

The charge against the Appellants

The Appellants’ statements to the police

The trial in the court below

The case for the Defence

The case put forth by Bala

The case put forth by Daniel

The case put forth by Christopher

The case for the Prosecution

The findings of the Judge

The appeal

The hearings before this court

The submissions by Daniel and Christopher on appeal

Daniel’s submissions

Christopher’s submissions

The Prosecution’s submissions on appeal

Our decision on the conviction of Bala

The convictions of Daniel and Christopher

Key issues to consider vis-à-vis Daniel and Christopher

Issue (a): Was Bala’s assault on Wan in furtherance of the Appellants’ common intention?

Issue (b): Was the LCK requirement satisfied with respect to Daniel and Christopher on the evidence?

Our decision on the convictions of Daniel and Christopher

The state of the law on s 34

Origins of the phrase “in furtherance of the common intention of all”