Court of Appeal · Decided 26 September 2008

Mohammed Ali bin Johari v Public Prosecutor

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[2008] SGCA 40Case no. Cr App 11/2007

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Introduction
[1] The appellant was charged with and convicted of the crime of murder in the High Court by the trial judge (“the Judge”) under s 300 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Code”) for causing the death of one Nur Asyura bte Mohamed Fauzi (“the deceased”), known as Nonoi. The appellant was sentenced to suffer the mandatory death sentence (see PP v Mohammed Ali bin Johari [2008] 2 SLR 994 (“the GD”)). At the time of her death, the deceased was two years and ten months old.
[2] After hearing arguments made on behalf of both the appellant as well as the respondent, we dismissed the present appeal.
[3] We should observe, at the outset, that this is an extremely tragic case. It also raises significant legal issues – in particular, the issue of alleged judicial interference.
The facts
[4] Prior to marrying the appellant in November 2005, the deceased’s biological mother, Mastura bte Kamsir (“Mastura”) was married to the deceased’s biological father. The first marriage resulted in the birth of the deceased. Mastura’s second marriage to the appellant resulted in the birth of a son named Daniel. The nuclear family of four resided at Block 90 Pipit Road (“the Pipit Road flat”).
[5] The family’s daily routine consisted of bringing both children to the appellant’s parents’ home located in the vicinity of the Pipit Road flat, at Block 62 Circuit Road (“the Circuit Road flat”) so that the children could be cared for by their grandparents while the parents were both at work. After dropping the children off, the appellant would send Mastura to her workplace located in Serangoon. The appellant’s unmarried siblings continued to live with his parents in the three-room Circuit Road flat.
[6] As the details of the events on 1 March 2006 were particularly important, it would be apposite to reconstruct schematically the series of events that transpired, noting that although much of what took place was related by the appellant himself, much of that account was relatively uncontroversial – save for the circumstances surrounding the death of the deceased, which will be analysed in greater detail below. At around noon on 1 March 2006, the appellant and Mastura left the deceased and Daniel in the care of their grandparents at the Circuit Road flat. Both parents then left on the appellant’s motorcycle and proceeded to Kovan Mall in Hougang for lunch. At around 2.00pm, the appellant dropped Mastura off at her workplace located on Upper Serangoon Road. The appellant returned to the Circuit Road flat at around 2.15pm. Sometime later in the afternoon, he brought the deceased out of the Circuit Road flat.
[7] What happened after they left the Circuit Road flat and before they returned was hotly contested by both parties and was the subject of considerable contention. This will be considered in more detail below (see [11]–[19]). Suffice it to say, for now, the appellant admitted (in his numerous statements to the police and when testifying) that it was later in the course of the afternoon that he brought the deceased’s dead body from the Pipit Road flat back to the Circuit Road flat. According to him, on reaching the Circuit Road flat, he placed her dead body on a bed in one of the bedrooms while the family members in the Circuit Road flat were busy and did not pay any attention to him. The appellant stated that he next left the flat and only returned when his father, Johari bin Mohammed Yus (“Johari”), was performing his evening prayers. When Johari commenced his prayers, the appellant carried the deceased’s dead body out of the bedroom and left the Circuit Road flat on foot. It was Johari who was the first person to discover that the deceased was missing from the Circuit Road flat. At that time, he was under the impression that he was the only person in the flat with the deceased.
[8] Following the arrest of the appellant, he led the police down a footpath close to Block 101 Aljunied Crescent and onwards to the Aljunied flyover. Under the flyover, the police recovered the deceased’s naked and decomposed body in the chamber of a drain in which the appellant had placed her body. He had taken care to remove her clothes, wipe her body and camouflage it with some rubbish.
[9] Apparently, after concealing the deceased’s body in the dark area under the flyover, the appellant returned to the Circuit Road flat where, by this time, his family had discovered the deceased’s disappearance. He feigned ignorance and blamed Johari for failing to keep watch over the deceased. When he fetched Mastura from work later, he broke the news to her that the deceased was missing. A massive search was commenced by the police, family members and concerned members of the neighbourhood in a bid to locate the missing deceased. The search persisted relentlessly on 2 and 3 March 2006.
[10] On the morning of 4 March 2006, the appellant approached Mastura and her mother, Rozanah bte Salleh (“Rozanah”), in the living room of the Pipit Road flat to confess that he knew that the deceased was dead. Speaking in Malay, he broke down and cried that “Nonoi, no more”. Upon hearing this, Mastura and Rozanah wept and implored the appellant to tell them what he had done. The appellant responded by saying that he “had no intention to do that to her. She drowned.”[note: 1] This series of events culminated at around 11.45am on the same day when the appellant turned himself in at Bedok Police Station and led the police to the spot under the Aljunied flyover. It was there that they recovered the body of the deceased.
Circumstances surrounding the death of the deceased
[11] Some of the particulars of the circumstances surrounding the death of the deceased on 1 March 2006 were mildly contentious. Because the appellant was the only party privy to the events surrounding the deceased’s death in the last few hours, what transpired on that fateful afternoon had to be reconstructed from several statements he made to the police in which the appellant recounted, inter alia, how the deceased was already crying when she left the Circuit Road flat. While walking from the Circuit Road flat to the Pipit Road flat, the appellant recalled that the deceased kept crying despite his continuous pleas with her to stop crying. This was when he lost his patience, “began to get angry” and raised his voice “when directing her to be quiet”.[note: 2] He brought her to a provision shop at Block 64 Circuit Road to buy her something to pacify her but she refused. Following this, they walked to the tenth floor of Block 62 Circuit Road to look for a friend of the appellant but the front door was closed so he presumed his friend was not in.
[12] Upon returning to the Pipit Road flat, the deceased “sat on the mattress and [kept] quiet”.[note: 3] On switching on the television and radio, however, she began to cry again. Frustrated, the appellant “slapped her face, body and punched her thigh ... [but] [s]he cried even louder”.[note: 4] At this juncture, the appellant pulled her into the toilet and threatened to put her into a red colour plastic pail, filled with “water to about half” of the pail.[note: 5] In his first statement taken on 4 March 2006, the appellant recounted the events as follows:[note: 6]
[13] The appellant admitted to placing the deceased into the red pail of water for about two to three times, allegedly to stop her from crying:[note: 7]
[14] In a statement taken from the appellant on 5 March 2006, the appellant elaborated on the details of the dipping as follows:[note: 8]
[15] In total, the appellant admitted in several statements that he had immersed the deceased into the water “two or three times” and during the last immersion, his hand phone rang. In a statement recorded on 8 March 2006, the appellant related this incident but was clearly evasive about the details of the alleged phone call:[note: 9]
[16] After the immersions, the appellant realised the deceased was motionless and did not breathe. In his first statement, he recounted that he:[note: 10]
[17] In his second statement made on 4 March 2006, he explained how he tried to resuscitate the deceased on realising that she was dead:[note: 11]
[18] After dressing the deceased in the same clothes she had been wearing before leaving the Circuit Road flat, the appellant brought the body of the deceased back to the Circuit Road flat where the “other family members were busy and did not pay attention to” him.[note: 12] As alluded to earlier, the appellant only returned when the family members were no longer at home except his father, Johari. When Johari commenced his evening prayers, the appellant carried the body of the deceased to Aljunied flyover to hide her body and returned to the Circuit Road flat afterward.
The alleged phone call during the course of the immersions
[19] The investigation officer, Assistant Superintendent Ang Bee Chin, obtained a copy of the appellant’s call records (exhibit P227[note: 13]) from MobileOne Ltd for the period 27 February 2006 to 4 March 2006. The call records indicated that during this aforementioned period, there were only three answered incoming calls at the appellant’s number on 1 March 2006, at 12.07pm, 7.02pm and 7.04pm, respectively. Three other calls were made on the same day around 6.48pm to the appellant’s phone and these were forwarded.[note: 14] The importance of this discovery cannot be overemphasised; it established that, contrary to the appellant’s testimony, there were no phone calls answered on the appellant’s handphone during the time of the incident.
Injuries on the deceased
[20] A post-mortem examination of the deceased was conducted by the forensic pathologist, Assoc Prof Gilbert Lau (“Assoc Prof Lau”). In his autopsy report, Assoc Prof Lau recorded that the deceased’s body was in a state of moderate putrefaction, associated with patchy green-black discolouration and peeling of the skin over the body surface. The onset of early maggot infestation and abdominal distension, accompanied by protrusion of the tongue, was apparent. Assoc Prof Lau surmised that the deceased would have been dead for a period of two to three days when her body was discovered.
[21] Apart from the decomposition, blood was present over the external genitalia and perineum. Upon further examination of the external genitalia, Assoc Prof Lau found that there was extensive laceration of the fourchette and apparent obliteration of the hymen. This resulted in localised and acute haemorrhage. A rupture measuring 2cm in the right anterolateral wall of the mid-vagina was also present. These injuries were consistent with evidence of apparent sexual interference.
[22] Assoc Prof Lau testified that there was no evidence of any significant head injuries. However, both lungs were voluminous and the symptoms were consistent with acute pulmonary oedema and congestion. He further opined that there was no macroscopic evidence of any natural disease that could have caused or contributed to the deceased’s demise.
[23] In his supplementary autopsy report, Assoc Prof Lau established negative results for semen and DNA on specimens obtained from the internal and external genitalia of the deceased. He conducted a genetic analysis of a sample of heart tissue from the deceased and this yielded inconclusive results, and, hence, he stated that sudden death resulting from cardiac arrhythmia (ie, abnormal heart rhythm) in the presence of an environmental trigger could not be excluded.
Genetic screening and previous medical history of the deceased
[24] The medical reports of the deceased revealed that she had been admitted to the National University Hospital (“NUH”) on a number of occasions in 2003 and 2004 for various conditions, including an episode of gastroenteritis-provoked seizures when she was eight months old. The Prosecution sought to call two additional witnesses, Dr Edmund Lee Jon Deoon (“Dr Lee”) of the Pharmacology Department at NUH and Dr Foo Cheng Wee (“Dr Foo”), a member of the medical team who had treated the deceased when she was admitted into hospital on 29 January 2004. This was allowed by the Judge.
[25] Dr Foo testified that the seizures suffered by the deceased on 29 January 2004 were gastroenteritis-provoked and that the secondary diagnosis of the deceased’s medical condition at that point in time had been status epilepticus.
[26] Dr Lee noted that from a study of the genetic makeup of the deceased, two genetic variants were identified that were speculatively linked to the abnormalities of heart rhythm and that these could confer a risk of cardiac arrhythmia in the presence of an environmental trigger. On the other hand, Dr Lee testified that it was not proven that these two genetic variants were linked to sudden cardiac death; neither was it proven that cardiac arrhythmia could occur in the presence of an environmental trigger. As he opined, “the results of [the] study into the deceased’s genetic makeup have no diagnostic value whatsoever, and any possibility of a link between the genetic variants identified in her genetic makeup and sudden cardiac death is highly speculative”.[note: 15]
Findings by the trial judge
[27] The charge of murder against the appellant read as follows:
[28] The Judge focused on two primary issues in coming to the conclusion that, on the totality of the evidence, the elements of s 300(c) of the Code had been satisfied. He focused on two main issues: first, what the appellant did to the deceased and, second, what caused her death.
[29] Causation was one of the key issues that was raised time and time again during the course of the trial. The Judge considered the reports by the forensic pathologist, Assoc Prof Lau, who certified, first, that while the cause of death was unascertainable due to the state of decomposition of the body, the condition of the deceased’s lungs was compatible with drowning. Second, he testified that death by asphyxia could be excluded as a cause of death since the appellant had admitted in his testimony that the deceased was neither smothered nor suffocated prior to her death. Third, the medical reports of the deceased revealed she had been admitted into NUH on a number of occasions in 2003 and 2004 for various conditions including an episode of gastroenteritis-provoked seizures when she was eight months old (see also above at [24]). However, the evidence of Dr Lee supported the Prosecution’s case that there was no scientifically proven evidence that the deceased’s genetic makeup could have contributed to sudden cardiac failure causing death; neither was there any evidence that the deceased suffered from a seizure due to status epilepticus or other causes prior to her death. Hence, the Judge found that the deceased did not suffer from any life-threatening condition and, by the exclusion of other likely causes of death, he came to the conclusion that the deceased must have died from the effects of being immersed in water.
[30] In so far as the issue of molestation was concerned, the Judge found that there was no direct evidence of molestation and noted that the appellant did not make any admission of molestation in his statements. He concluded, therefore, that “the alleged molestation had a limited bearing on the charge of murder that the [appellant] faced as the genital injuries were not life-threatening” (see the GD at [56]).
[31] The Judge further held that there was no phone call as the call records confirmed that the appellant had lied about receiving any calls during the time of the incident. In brief, the appellant knew and intended, when he immersed the deceased head-first in the pail of water, that she would experience difficulty in breathing and might inhale water. On this reasoning, the Judge was of the view that if a person were immersed in water in that manner for a sufficient period of time, the person would die. Accordingly, he held that the appellant intentionally kept the deceased immersed in water for a longer duration during the third immersion (which was not a quick immersion as the appellant had claimed) and that he was not distracted by having to answer a phone call.
[32] In so far as the appellant’s defence of provocation was concerned, the Judge opined that the appellant’s actions were not consistent with being in such a state of fear and panic that he could not speak and thus call for help, since he did not lose the ability to speak as he was able to plead with Nonoi to wake up while trying to revive her (see the GD at [62]).
Issues
Arguments by the appellant
[33] Counsel for the appellant mounted several arguments in this appeal against conviction and sentence. Emphasising that there were no independent eyewitnesses present at the scene of the crime, the appellant argued that the Judge erred by deciding that the alleged molestation had a limited bearing on the charge of murder and that there should have been a finding as to whether the appellant was responsible for molesting the deceased and had killed her to cover up his acts.
[34] Second, the appellant, whilst not denying that he had immersed the deceased in the pail of water, submitted that the Judge erred in concluding that the third immersion was not a quick immersion without any evidence. He argued that it was important for the Judge to have made a finding on this issue. The appellant further argued that he had only intended to cause a partial deprivation of air to the deceased and not to drown her.
[35] Third, the appellant argued that he was in such a state of fear and panic that he could not speak. Fourth, no specific cause of death was ascertainable because of the state of decomposition of the body when the autopsy was performed. Further, due to the presence of the two genetic variants conferring a risk of cardiac arrhythmia, this could have been a possible cause of death instead. The appellant therefore contended vigorously that the Prosecution should have consulted a cardiologist to eliminate the cause of sudden death.
[36] The appellant also sought to rely on the defence of provocation, and argued that the Judge should not have concluded that he had intended to cause death or bodily injury sufficient to cause death under s 300(c) of the Penal Code.
[37] The appellant further submitted that the Judge had engaged in judicial interference by descending into the arena frequently to express his thoughts about how the Prosecution should proceed with the case and the evidence required by the Prosecution to prove their case. In doing so, the appellant expressed concern that he was not granted a fair trial.
Arguments by the respondent
[38] The Prosecution submitted that the statements of the appellant were consistent with establishing that there were three immersions of the deceased in the pail of water. The appellant alleged that there had been a phone call but this was disproved by the call records adduced in court. As such, the Prosecution argued the appellant’s intention was to cause a serious injury to the deceased.
[39] On the issue of causation, the Prosecution pointed out that the objective evidence and statements of the appellant suggested that the findings were consistent with death by drowning.
[40] Further, the Prosecution also submitted that the Judge was seeking to ascertain the full facts and most of the instances alleged as examples of judicial interference were directed at the technical and forensic aspects of the case. The Prosecution noted that the Judge also went into the appellant’s case in order to assist him and the appellant did not raise these instances as examples of judicial interference.
Our decision
Did the appellant sexually assault the deceased?
[41] The appellant contended that the Judge should have made a decision on this issue as it would have an effect of his evaluation of the rest of the factual evidence, particularly as the Prosecution’s case was premised on the appellant having molested the deceased and then killing her by immersing her into the pail of water. It was therefore critical, in the circumstances, for the Judge to have made a finding on the allegations of sexual molestation.
[42] We noted that the Judge did not make a determinative finding as to who could have been responsible for the injuries detected on the deceased. In particular, the following extract from his judgment was particularly significant and bears quoting in extenso (see the GD at [56]):
[43] Further, in evaluating the evidence on why the appellant might have placed the deceased into the pail of water, the Judge noted at [61] that:
[44] In our view, we agreed with counsel for the appellant that this was a critical issue that should have been addressed by the Judge. Indeed, there was overwhelming objective evidence adduced before the court below which led to the conclusion that the appellant was responsible for inflicting the sexual injuries on the deceased.
[45] In both his autopsy report and testimony in court, Assoc Prof Lau opined that there had been evidence of sexual interference and that the vaginal injuries inflicted on the deceased were likely to have been caused prior to death and would not be missed by a person who bathed the child. He premised his conclusion on several factors which he elaborated vividly and extensively upon in the course of his examination-in-chief:[note: 16]
[46] Assoc Prof Lau further explained that these genital injuries, such as the rupture in the anterolateral wall, laceration of the fourchette and obliteration of the hymen, were all manifestations of evidence of sexual interference with the deceased prior to death:[note: 17]
[47] Indeed, such injuries were unlikely to have gone unnoticed by anyone who was bathing the deceased; as Assoc Prof Lau emphasised as follows:[note: 18]
[48] During cross-examination, we noted that counsel for the appellant did not once question Assoc Prof Lau’s findings on the evidence of sexual interference of the deceased. In our view, this apparently considered “omission” was significant given the importance of this critical issue. We recognised that there was in fact an overwhelming amount of objective evidence that the deceased had in fact been molested by the appellant. First, on the morning of 1 March 2006, Mastura testified that she did not observe any injuries (save for an old burn mark on the deceased’s arm) on the deceased while bathing her, prior to dropping her off at the Circuit Road flat. Her testimony was further confirmed by Rozanah’s recollection of bathing the deceased during the preceding period from 24 to 26 February 2006 when she had not noticed any vaginal injuries on the deceased. In view of the fact that the appellant returned to the Circuit Road flat with the body of the deceased at about 6.00pm, any injuries on the deceased must have been inflicted between the crucial time period between 3.00pm and 6.00pm on 1 March 2006 and, notably, when she was under the care and supervision of the appellant.
[49] Second, while counsel for the appellant did not raise any objections to the allegations of sexual interference, during cross-examination of the appellant’s brother, Mohammed Rahim bin Johari (“Rahim”), he attempted to raise the possibility of another person possibly molesting the deceased. In his statements to the police, Rahim mentioned the events of 1 March 2006 briefly:[note: 19]
[50] Counsel for the appellant sought to suggest that Rahim could have molested the appellant because he was alone in the bedroom with the two children, and, in support of this contention, sought to establish that this was the first time Rahim had been asleep in the same room with Nonoi. The issue arose from a series of questions posed to Rahim:[note: 20]
[51] In our view, this was highly improbable given that Rahim’s girlfriend, Rosnita bte Ahmad, testified under cross-examination that she had visited Rahim at around 3.00pm and saw him sleeping inside one of the rooms of the Circuit Road flat, with Nonoi and Daniel:[note: 21]
[52] In the light of this, we could not, without the requisite corroborative evidence, make the unfounded and mischievous inference that Rahim might have molested the appellant. This was indeed a serious allegation to run in the face of the objective evidence that established that it was in fact the appellant who had sexually interfered with the deceased. Indeed, we were of the view that the deceased was molested by the appellant and that it was particularly important for the Judge to have made a finding on this issue. This was so for two related reasons. First, this would have buttressed our finding with regard to s 300(c) of the Code and, second, while motive is not the same as intention, it can, in our view, cast valuable and significant light on the intention of an accused in appropriate circumstances.
Motive and intention
[53] The framers of the Code were careful not to ascribe a definitive role to motive, whether good or bad, in the determination of criminal responsibility. In Indian Law Commissioners, First Report (cited in Sir Hari Singh Gour, The Penal Law of India (Law Publishers, 10th Ed, 1982) vol 1 at p 235), the rationale for not ascribing a greater weight to motive bears mention:
[54] The Singapore courts have also drawn a distinction between the intention and the motive of the accused. So, for instance, while it may be a person’s intention to murder another where he acts with a purpose to bring about a result, his motive centres on explaining why he behaves in a certain way. In Regina v Moloney [1985] AC 905 at 926, the distinction has been distilled into a simple but useful example:
[55] This dichotomy between motive and intention was considered by the Singapore courts in a long line of cases such as PP v Oh Laye Koh [1994] 2 SLR 385 (“Oh Laye Koh”), Thongbai Naklangdon v PP [1996] 1 SLR 497 (“Thongbai Naklangdon”), Lau Lee Peng v PP [2000] 2 SLR 628 (“Lau Lee Peng”) and, most recently, Took Leng How v PP [2006] 2 SLR 70 (“Took Leng How”). In Oh Laye Koh, Yong Pung How CJ clarified incisively that intention and motive were both different elements (at 393–394, [26]):
[56] In the later case of Thongbai Naklangdon, the accused appealed, inter alia, on the ground that he lacked a motive to murder the deceased. However, this court reiterated that motive was not necessary to establish guilt. This thread of reasoning is consistent with the decision of Lau Lee Peng where this court was confronted with the issue of what the reason for the murder in that particular case was. The observations of Chao Hick Tin JA on this issue bear quoting in full (at [43] of Lau Lee Peng):
[57] More recently, in Took Leng How, Chao Hick Tin JA observed as follows (at [54]):
[58] It would thus appear that while motive is not an essential element of the crime, it can “bolster the inference that an intention to commit the offence was existent”, as Yong CJ observed astutely in Oh Laye Koh (see [55] above). It is helpful in appropriate circumstances by casting valuable (and even significant) light on the intention of an accused. In our view, as there were no independent eyewitnesses present at the scene of the crime in the present case, ascertaining whether the appellant had sexually assaulted the deceased and, hence, whether the appellant had a motive in murdering her in order to silence her, was therefore an important issue which the Judge should have addressed directly.
Murder under section 300(c) of the Code
The elements of section 300(c) of the Code
[59] Section 300(c) of the Code reads as follows:
[60] The elements or requirements of s 300(c) of the Code are well established. They were laid down by V Bose J in the seminal Indian Supreme Court decision of Virsa Singh v State of Punjab AIR 1958 SC 465 (“Virsa Singh”). The principles in Virsa Singh have been applied in numerous Singapore cases. Indeed, it has been recently described by this court as containing “[t]he time-honoured pronouncement on s 300(c)” (see PP v Lim Poh Lye [2005] 4 SLR 582 at [17]). It will suffice for our present purposes to reiterate the well-established principles set out in Virsa Singh and applied by our courts.
[61] In Virsa Singh, Bose J observed thus (at [8]–[13]):
[62] The above statements of principle by Bose J are clear and are also consistent with the actual language of s 300(c) itself. A crucial point which emerges from these statements of principle is that there are two limbs in this particular provision. The first relates to the ascertainment (by the court) of the intention of the accused in so far as the inflicting of the specific injury which the victim suffered is concerned and such intention is ascertained on a subjective basis (based, of course, on the available objective facts and evidence) (“the first limb”). The second is that once the first limb has been satisfied (viz, that it is proved that the accused subjectively intended to inflict the specific injury which the victim suffered), then the court must proceed to ascertain, on an objective basis, whether that particular injury was “sufficient in the ordinary course of nature to cause death” (“the second limb”). The subjective and the objective bases of the first and second limbs, respectively, are important inasmuch as both limbs, whilst complementary, ought not to – and cannot – be conflated. This is an important point because if both limbs operate on a subjective basis, then the requirements of s 300(c) would not be satisfied if it is proved that the accused did not intend to inflict an injury that was “sufficient in the ordinary course of nature to cause death” – in other words, that the accused did not intend to cause the death of the victim through the said injury. As Bose J has correctly pointed out in the passage quoted in the preceding paragraph, where an accused intends to inflict an injury that was “sufficient in the ordinary course of nature to cause death”, such a situation would fall squarely within s 300(a) of the Code. Therefore, such an interpretation would not only render s 300(c) otiose in the process, it would also be completely contrary to the clear and unambiguous language of s 300(c) itself.
Application to the facts
(1) The immersions of the deceased by the appellant into the pail of water
[63] As already mentioned above (at [34]), the appellant sought to argue that the Judge had erred in concluding that the third immersion was not a quick immersion when there was no evidence. Indeed, the appellant maintained that each of the three immersions was merely a quick dipping of less than a second each time.
[64] It is important to note, in this regard, that the Prosecution’s case was that the appellant had sexually assaulted the deceased and, having done so, repeatedly immersed her into the pail of water to drown her in order to cover up his acts of sexual molestation.
[65] Even more importantly, given our finding above that the appellant had, in fact, sexually assaulted the deceased, the appellant’s argument that the third immersion was a quick one is wholly unpersuasive. Indeed, the Prosecution could, in our view, have proceeded with the charge of murder against the appellant under s 300(a) instead; the provision itself reads as follows:
[66] Indeed, a close perusal of the record of proceedings in the court below reveals that the Prosecution, whilst proceeding against the appellant under s 300(c) of the Code, had proceeded (in the alternative) under s 300(a) as well.
[67] However, the Judge focused wholly (and only) on s 300(c) of the Code. Given his finding that it was immaterial to his decision whether or not the appellant had sexually assaulted the deceased, it was not surprising that the Judge proceeded the way he did. Indeed, a finding pursuant to s 300(a) could only have been made if the Judge had in fact found that the appellant had sexually assaulted the deceased. This would, as the Prosecution argued, have then furnished the appellant with the requisite motive to cause the death of the deceased in order to cover up his acts of sexual molestation. As noted above (especially at [58]), whilst motive is not an essential element of the crime (here, of murder) as such, it can, in appropriate circumstances such as these, cast valuable (and significant) light on the intention of the accused (here, the appellant). We should also point out that such factual circumstances would (and, in some senses, a fortiori) justify a finding of guilt pursuant to s 300(c) as well (in accordance with the principles referred to briefly in the preceding section of this judgment). This is, in other words, an instance where there is, on the facts, an overlap between s 300(a) and s 300(c) of the Code.
[68] We should add, however, that even if we disregarded a finding that the appellant had sexually assaulted the deceased and assumed (as the Judge did) that the appellant had immersed the deceased into the pail of water as she (the deceased) was having a tantrum, we are of the view that the Judge was nevertheless justified in finding that the appellant was guilty pursuant to s 300(c) of the Code. In particular, like the Judge, we find the appellant’s explanation with regard to the immersions of the deceased by the appellant into the pail of water wholly contrived and unconvincing. It was clear, in our view, that the appellant intended to cause the specific injury which the deceased suffered, which injury was sufficient in the ordinary course of nature to cause her death within the meaning of s 300(c) of the Code. The appellant’s argument to the effect that the immersions were mere perfunctory dippings does not bear up, having regard to the relevant objective evidence. For example, the appellant’s sudden volte-face at the trial itself with regard to the telephone call allegedly received during the third immersion should be noted. It had hitherto been the appellant’s case throughout that he had been distracted by this telephone call and had answered it, consequently forgetting that he had left the deceased immersed (for the third time) in the pail of water. When confronted at the trial with clear objective evidence that he could not possibly have received such a call at the material time, he did a complete volte-face, claiming that he could not recall making the various statements relating to this telephone call. The fact of the matter was that there had been no telephone call to begin with and that the appellant had intended to inflict serious injury through his repeated immersions of the deceased into the pail of water. Indeed, it is clear, on the objective evidence (in particular, the medical evidence), that the appellant must have immersed the deceased into the pail of water for a prolonged period of time. This, in fact, resulted in the deceased drowning. To state that such a serious injury was sufficient in the ordinary course of nature to cause death must be an understatement of the highest order. The Judge was therefore more than justified, on the objective evidence before him, to come to this conclusion, regardless of the motive the appellant had for immersing the deceased repeatedly into the pail of water. We note that this evidence also included findings of fact by the Judge which we saw no reason whatsoever to interfere with. Indeed, it is not surprising, in the circumstances, that the appellant also argued before this court – in support of his argument that the immersions were perfunctory dippings – that the actual cause of death was not drowning. In this regard, he raised a number of other possible alternative causes of death instead. We will deal with this particular argument in the next section of this judgment. The appellant also argued that, assuming that he had indeed caused the deceased to die by drowning, that he had been provoked within the meaning of Exception 1 to s 300 of the Code. We will also deal with this particular argument in due course. We turn, first, to the appellant’s argument to the effect that the deceased had died not by his hand but by alternative causes.
(2) Causation
[69] In relation to the issue of causation, a dispute arose as to how the deceased could have died. Before us, the appellant contended, first, that it was not conclusive that the deceased had died from drowning because the pathological findings of acute pulmonary oedema and voluminous appearance of the deceased’s lungs were equivocal. Second, the appellant further argued that it was possible that the deceased had died from sudden cardiac arrest as a result of cardiac arrhythmia. Third, the appellant contended that the deceased could have suffered from status epilepticus. However, as will be seen, these suggested alternative causes of death are not convincing and highly speculative.
[70] In his statements to the police, the appellant explained that as the deceased had continued to cry persistently upon their return to the Circuit Road flat, he used his “right hand to punch her on her right thigh twice”. Despite executing a series of punches, she did not relent and continued to cry. The appellant then lost his patience and pulled her into the toilet. The events that transpired thereafter are set out as follows in the appellant’s statement taken on 8 March 2006:[note: 22]
This account of the events was also mirrored in the appellant’s statement to the police given pursuant to s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) as follows:[note: 23]
It would be apposite at this juncture to consider the various possibilities canvassed by counsel for the appellant as to the possible causes of the deceased’s death.
[71] In his autopsy report dated 5 March 2006, Assoc Prof Lau observed that the lungs of the deceased were “voluminous, with numerous post-mortem subpleural bulla”. Furthermore, the “[c]ut sections showed acute pulmonary oedema and congestion, bilaterally”. In his final report dated 17 August 2006, Assoc Prof Lau’s findings were particularly important in addressing the final cause of death; he stated:[note: 24]
[72] Under cross-examination, Assoc Prof Lau further testified that there was nothing exceptional about the appearance of the deceased’s heart on examination after her body was discovered:[note: 25]
Therefore, in view of the objective evidence, any conjecture that the deceased could have died from pulmonary oedema, but not drowning, was entirely unfounded and mischievous.
[73] Assoc Prof Lau opined that while genetic screening for sudden cardiac death could not exclude the possibility of cardiac arrhythmia in the presence of an environmental trigger, the prospect of some form of mechanical asphyxia, immersion or genital injuries causing cardiac arrhythmia remained an unverifiable possibility. He was of the view, under cross-examination, that in this case, there was no evidence of any congenital abnormality that could have predisposed the deceased to cardiac arrhythmia or to heart failure. In the course of his extensive inquiry into the cause of death of the deceased, Assoc Prof Lau was exhaustive and conscientious in his efforts of exploring all possible causes and sent a sample of the deceased’s heart tissue to the National University of Singapore Pharmacogenetics Laboratory for further examination. As he explained:[note: 26]
[74] Specialising in pharmacogenetics, Dr Lee concurred and confirmed (both in writing and in his oral testimony) that any argument with regard to this possible cause of death was, at best, speculative. While he acknowledged that there was the existence of two genetic variants present in the deceased that were identified as being linked to the abnormalities of heart rhythm, he emphasised that:[note: 27]
Dr Lee was therefore of the view that the possibility of the deceased suffering from sudden cardiac arrest was merely speculative and unsupported by any tangible or concrete evidence.
[75] We noted that it was particularly significant that, during re-examination, in response to a query from the Judge as to what the observable symptoms of cardiac arrhythmia were, Assoc Prof Lau opined that these included “collapsing suddenly, breathlessness”. According to the statements of the appellant, he did not mention any of these symptoms observable on the deceased prior to her demise.
[76] From the medical records of the deceased, while the deceased had a history of being admitted into hospital in 2003 and 2004 for various conditions (including an episode of gastroenteritis-provoked seizures), gastroenteritis-provoked seizures “constitute[d] a benign condition” and there appeared to be “no family history of epilepsy or any lethal hereditary disease among persons known to be the deceased’s biological parents”.[note: 28] Accordingly, Assoc Prof Lau’s conclusion was that the actual medical cause of death was not likely to be due to a natural disease process and, in view of the state of decomposition of the deceased’s body, the cause of death would have to be documented as unascertainable.
[77] In his testimony in court, Assoc Prof Lau reiterated, first, that while he had explored other possible causes of death, it was unlikely the deceased could have died from natural causes. Second, in the event of immersions into water, he was of the view that it would be possible to cause death by drowning in the ordinary course of nature but that:[note: 29]
[78] Third, he opined that having read the statements of the appellant, he could not think of any other possible cause of death.
[79] Fourth, under cross-examination, Assoc Prof Lau emphasised that, even if the deceased suffered from a gastroenteritis-provoked seizure on 1 March 2006, it was a relatively harmless condition and was not life-threatening. In his words:[note: 30]
Has the Defence raised a reasonable doubt as to the cause of the deceased’s death?
[80] It is well-settled law that the legal burden lies on the Prosecution to establish its case against an accused beyond a reasonable doubt. In Woolmington v The Director of Public Prosecutions [1935] AC 462, Viscount Sankey LC referred to this golden thread which has been woven through the intricate web of English criminal law as follows (at 481):
[81] It has been established in cases such as Syed Abdul Aziz v PP [1993] 3 SLR 534 and Ramakrishnan s/o Ramayan v PP [1998] 3 SLR 645 that the Prosecution bears the burden of proving its case beyond a reasonable doubt; this is firmly embedded in the Evidence Act (Cap 97, 1997 Rev Ed) as well as in the “conscience of the common law” (per V K Rajah J in Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR 45 (“Jagatheesan”) at [46]). It would be pertinent at this juncture to consider the nature of what amounts to a reasonable doubt. In Miller v Minister of Pensions [1947] 2 All ER 372, Denning J observed of the nature of this burden of proof, at 373:
[82] This recognition that fanciful or remote possibilities should be excluded has been echoed in recent Singapore decisions. As Prof Tan Yock Lin in Criminal Procedure (LexisNexis, Looseleaf Ed, 2007, Issue 18) at vol 2, ch XVII, para 2952 remarked, a reasonable doubt must be “a doubt which is material, which counts. Not any mere possibility of the prosecution case being false will amount to a reasonable doubt in the prosecution case.” He also stated (ibid, fn 1) quite correctly, in our view, that:
[83] In Teo Keng Pong v PP [1996] 3 SLR 329, Yong Pung How CJ emphasised that the burden is not “to prove the case beyond all doubts”. He recognised that in many cases, a “minutiae of doubt” might still exist. However, the crux of the issue is that (see 339, [68]):
[84] Most recently, in Jagatheesan, two important principles were reiterated by Rajah J. The first is that it would be erroneous to set up a standard of absolute certainty that the Prosecution must meet before an accused can be found guilty. What is necessary for sustaining a conviction is that the evidence establishes guilt beyond a reasonable doubt. The second concept is that not all doubts about the Prosecution’s case are reasonable doubts.
[85] In Took Leng How ([55] supra), the Prosecution’s case rested on the argument that the accused had sexually assaulted the deceased and murdered her to mask his deeds. Counsel for the accused in that case attempted to mount several possibilities as to the deceased’s cause of death, such as the deceased developing fits which resulted in her death or the causing of trauma to her head or suffocation from swallowing her tongue or oxygen deprivation after the accused wrapped her in plastic bags in preparation to dispose of her body. Chao JA, in rejecting these arguments, reiterated that the criminal standard of proof did not mean that “every doubt that is raised by the Defence will amount to a reasonable doubt” (at [28]).
[86] It is clear, therefore, that the paramount consideration of the courts is not the elimination of all doubts, but whether such doubts are real or reasonable or merely a fanciful possibility. To put it another way, even if there is some doubt, it remains an “untested hypothesis” unless counsel for the Defence is able to point to some evidence supporting the hypothesis he seeks to canvass.
[87] Returning to the present case, the evidence of Assoc Prof Lau essentially led us to draw three conclusions. First, he agreed that, having considered all the available forensic medical evidence, genetic abnormalities or variations in the deceased were of negligible significance. On the balance of probabilities, he opined that the deceased had died from an unnatural cause of death rather than a natural one. Second, he stated that he had to give a necessarily guarded opinion about the actual medical cause of death because of the state of decomposition of the body. This was understandable as the body of the deceased was only recovered some 72 hours after her death. Third, the only evidence upon which Assoc Prof Lau could make a pathological finding as to the cause of death consisted of the injuries he could find, namely, the voluminous lungs, acute pulmonary oedema and the genital injuries, though those were not necessarily lethal. In our view, the various possibilities as canvassed by counsel for the Defence were simply speculative possibilities that were unsupported by any clear evidence or basis.
[88] In contrast, the statements of the appellant verified how the deceased had been immersed into the water until her body became limp, soft and motionless. In other words, the deceased had drowned and this was in fact consistent with Assoc Prof Lau’s finding. We found, on the other hand, that the possibilities canvassed by his counsel remained an untested hypothesis and the appellant had therefore failed to raise a reasonable doubt as to the cause of death of the deceased. In our view, there was compelling evidence that the appellant had immersed the deceased into water and had thereby caused her death.
Defence of grave and sudden provocation
The applicable principles
[89] The appellant also sought to bring himself within Exception 1 to s 300 of the Code (“Exception 1”), which embodies (in statutory form) the doctrine of provocation which would reduce what would otherwise be an offence of murder to culpable homicide instead (bearing in mind that conviction under the former offence carries the mandatory death sentence). Exception 1 itself reads as follows:
[90] The law relating to the doctrine of provocation generally has resulted in a veritable plethora of academic literature. This is not surprising, perhaps, because of the many controversies that (unfortunately) bedevil the doctrine (see generally, for example, the UK Law Commission, Partial Defences to Murder (Law Com No 290, Cm 6301, 2004) (“UK Report”) at Part 3, and reference may also be made to the Law Commission’s earlier Consultation Paper of the same title (Consultation Paper No 173, 31 October 2003) (“UK Consultation Paper”)). Indeed, Lord Hoffmann observed thus in the House of Lords decision of Regina v Smith (Morgan) [2001] 1 AC 146 (“Smith (Morgan)”) at 159:
Not surprisingly, the UK Law Commission has proposed reforms in relation to the doctrine (see UK Report at Part 3, especially at para 3.168).
[91] Many of the controversies are by no means irrelevant in the Singapore context, particularly given the fact that Exception 1 was based on – and is related to – the relevant English law. One which raises particularly thorny issues is the question as to whether or not the accused’s personal idiosyncrasies can be taken into account in his or her favour in so far as the issue of the loss of self-control (as opposed to the gravity of the provocation) is concerned. The House of Lords in Director of Public Prosecutions v Camplin [1978] AC 705 (“Camplin”) had refused to follow its earlier decision in Bedder v Director of Public Prosecutions [1954] 1 WLR 1119 and held that the court could take into consideration the accused’s personal idiosyncrasies (including his age and physical characteristics) which would affect the gravity of the provocation. However, Lord Diplock also observed in Camplin (at 716) that:
Not surprisingly, perhaps, Camplin did not resolve conclusively the issue just referred to. Indeed, in the subsequent Hong Kong Privy Council decision of Luc Thiet Thuan v The Queen [1997] AC 131 (“Luc Thiet Thuan”), it was held that the accused’s personal idiosyncrasies ought not to be taken into account in so far as the issue of the loss of self-control (as opposed to the gravity of the provocation) was concerned, endorsing the view of Prof Ashworth in his seminal article (see A J Ashworth, “The Doctrine of Provocation” [1976] CLJ 292 (“Ashworth’s article”)).
[92] However, in the House of Lords decision of Smith (Morgan), Luc Thiet Thuan was not followed. Smith (Morgan), which was itself the subject of some trenchant criticism (see, in particular, John Gardner & Timothy Macklem, “Compassion without Respect? Nine Fallacies in R. v. Smith” [2001] Crim LR 623), was not followed in yet another subsequent Privy Council decision (on appeal from the Court of Appeal of Jersey) in Attorney General for Jersey v Holley [2005] 2 AC 580 (“Holley”) (perceptively noted by Prof Andrew Ashworth in “Murder” [2005] Crim LR 966). Interestingly, an enlarged board of some nine members was constituted to hear the appeal in Holley and the decision was rendered by a majority of six to three). Notwithstanding the fact that Holley was not a decision of the House of Lords, it is significant that Lord Nicholls of Birkenhead (who delivered the judgment of the majority of the Board) observed, right at the outset of the judgment, thus (at [1]):
[93] That the position in Holley now represents the applicable English law has been confirmed in no uncertain terms by the English Court of Appeal decision of Regina v James [2006] QB 588. On the specific (and interesting) issue of precedent in so far as the English position was concerned, Lord Phillips of Worth Matravers CJ, delivering the judgment of the court (which “sat five strong because [the appeals] raise a novel and important question of law relating to precedent” (see id at [1])), adopted a principled (yet practical) approach that ensured that substance would take precedence over form; he observed thus (at [40]–[45]):
[94] Fortunately, it is unnecessary (for the most part at least) to refer to the various controversies that are analysed as well as discussed in the relevant case law as well as literature – save to observe that the present Singapore position endorses the position laid down in Luc Thiet Thuan, which also represents the present English position as set out in Holley (see the decision of this court in PP v Kwan Cin Cheng [1998] 2 SLR 345 (“Kwan Cin Cheng”) at [49] and Lau Lee Peng ([55] supra at [29])). As we shall see, the facts in the instant appeal present different – and relatively more straightforward – issues. Indeed, to his credit, counsel for the appellant, Mr Bajwa, did not belabour the point. He relied on the strongest precedent he could find, which we will discuss in more detail below. Before proceeding to do so, it would be appropriate to set out briefly the law relating to provocation under Exception 1. The basic principles (as opposed to the specific controversies) have, we should observe, been well established in the local case law.
[95] In Kwan Cin Cheng, for example, Yong Pung How CJ, delivering the grounds of judgment of the court, observed thus (at [44]):
[96] In so far as the two distinct requirements set out above are concerned, Prof Ashworth helpfully (and perceptively) explains the underlying rationale for the above elements which (as the statement of principle in the preceding paragraph itself emphasises) contain subjective and objective conditions, respectively, as follows (see Ashworth’s article ([91] supra) at 317–318):
And the same author, in Andrew Ashworth, Principles of Criminal Law (Oxford University Press, 5th Ed, 2006) elaborates thus with regard to the first requirement (at p 264):
Reference may also be made, in this regard, to David Ormerod, Smith & Hogan Criminal Law (Oxford University Press, 11th Ed, 2005) (“Smith & Hogan”) at p 446.
[97] Returning to the principles set out in Kwan Cin Cheng, the learned Chief Justice also observed, in so far as the “reasonable man” test was concerned (at [63] and [65]), that:
[98] Also important are Yong CJ’s comments on the status of the “proportionality” requirement under Singapore law (at [66]–[69]):
[99] The principles set out in Kwan Cin Cheng (at [97] above) were reiterated in the decision of this court in Lim Chin Chong v PP [1998] 2 SLR 794 (“Lim Chin Chong”), where M Karthigesu JA, delivering the grounds of judgment of the court, observed thus (at [28]–[29]):
[100] The principles in Kwan Cin Cheng were likewise endorsed in Lau Lee Peng ([55] supra), where Chao Hick Tin JA, who delivered the grounds of judgment of the court, observed thus (at [28]–[31]):
[101] And, in the decision of this court in Seah Kok Meng v PP [2001] 3 SLR 135 (“Seah Kok Meng”), Chao Hick Tin JA, who delivered the judgment of the court, observed as follows (at [21]):
[102] It is also important to note (in so far as the first requirement relating to a loss of self-control is concerned) that the antithesis of a loss of self-control is deliberation (and even calculation). The former is a necessary (albeit not sufficient) prerequisite before the defence under Exception 1 will be successful. The presence of the latter, on the other hand, indicates that the provocation was not sudden and the defence would therefore not succeed (see, for example, the Singapore High Court decision of PP v Tsang Yuk Chung [1988] SLR 812 at 820, [33], where the court held that “the stabbing was a calculated and deliberate act”; see also Lim Chin Chong ([99] supra) at [30] and Seah Kok Meng at [25], as well as above at [96]). It is equally clear that “[m]ere assertion would not suffice” (per Chao JA in Lau Lee Peng at [32]).
[103] It is also important to emphasise that whilst (as clearly set out in the local case law noted above) there is no requirement of “proportionality” as such, the severity of the physical assault is a factor which the court would (in most cases at least) take into account (see, for example, Seah Kok Meng at [26]).
Our decision
[104] The appellant argued that the deceased’s continuous and incessant crying made him angrier and caused him to lose his self-control. He submitted that this amounted to cumulative provocation as there was no cooling-off period. Having regard to the circumstances leading to the deceased’s death, we were of the view that the appellant did not lose his self-control. Given our finding above that the appellant had sexually assaulted the deceased, the appellant’s argument centring on the alleged loss of self-control is wholly without merit. In any event, even leaving aside the allegation of sexual assault, it is clear that the appellant’s actions throughout bore all the marks of a person in clear control of his actions. Although we do not rely on what happened after the deceased had been immersed by the appellant in the pail of water, these actions are entirely consistent with our conclusion and are wholly contrary to the appellant’s own account to the effect that he had been in a state of panic and, as a result, did not get help for her. To summarise, after he realised the deceased was motionless, the appellant tried to revive her and, on realising that she was dead, he demonstrated the presence of mind to dress her in the same clothing that he had removed from her before the immersions into the pail of water. Further, we noted that he brought her body back to the Pipit Road flat so as not to arouse any suspicions. In the Pipit Road flat, he took elaborate precautions to warn his family members not to make any noise so as not to wake the deceased. The methodical and laborious steps taken to mask the fact that she was already dead were elaborate and calculated in nature; he placed her body on the bed, placing pillows on her legs and hands to create the appearance of slumber. He carried her out of the Pipit Road flat only when his father was having his evening prayers and he left the back door of the flat open such that it appeared that someone had walked in and might have taken the deceased away. After he had disposed of her body under the Aljunied flyover, he returned to the Pipit Road flat and pretended to be angry by punching Rahim on learning that the deceased was missing.
[105] Moreover, even if we had accepted the appellant’s account (and had therefore disregarded any allegation of sexual assault of the deceased by the appellant), the gravity of the provocation could hardly be such as to justify what the appellant did to the deceased and which resulted in her death. How the cries of a toddler could constitute provocation of the type envisaged by Exception 1 (in particular where, as here, the accused was not suffering from any unusual condition) defies imagination. Mr Bajwa’s reference to the appellant’s poor parenting skills is, with respect, wholly unconvincing and could not possibly pass legal muster even allowing for the most flexible of approaches adopted by the court.
[106] Mr Bajwa, however, referred us to the English decision of R v Stephen Clifford Doughty (1986) 83 Cr App R 319 (“Doughty”), where the defendant was charged with the murder of his 17-day-old son. The facts of this case were of some significance. The defendant admitted that he had tried to stop the son’s persistent crying by covering the boy’s head with cushions and kneeling on them. Defence counsel in that case tried to argue that the boy’s persistent crying prior to killing was evidence of provocation which should have been left to the jury to consider in accordance with s 3 of the Homicide Act 1957 (c 11) (UK) (“the 1957 Act”), which reads as follows:
[107] At first instance in Doughty, the trial judge ruled that the cries of the child did not allow the defendant to raise the defence of provocation. Despite the express wording of s 3 of the 1957 Act, he refused to leave the issue of provocation to the jury and convicted the defendant of murder on the ground that “perfectly natural episodes or events of crying and restlessness by a 17 day old baby does not constitute evidence of provocation in relation to the first subjective question” (see Doughty at 324).
[108] The defendant appealed against his conviction and before the English Court of Appeal, the issue that arose for consideration was whether the trial judge had erred in refusing to leave the issue of provocation for the jury’s consideration. On this issue, the Court of Appeal held that the wording of s 3 of the 1957 Act was mandatory and that the decision whether the defendant’s act would have been the response of a reasonable man should have been left to the jury.
[109] On one view, Doughty may be seen simply as endorsing a broad meaning of “provoked” as being equivalent to “caused” (and see UK Consultation Paper ([90] supra) at paras 1.33, 4.9 and 4.163). However, this broad meaning came about as a result of the specific introduction of s 3 of the 1957 Act (reproduced above at [106]). In particular, the abovementioned provision did away with the prior position to the effect that the court could rule, as a matter of law, as to what could and what could not constitute provocation (in other words, it used to be the case that not everything that might have “provoked” the accused to lose his or her self-control would be considered as constituting provocative conduct within the meaning of the law). Put simply, s 3 of the 1957 Act “removed from the judge the power to withdraw the defence of provocation from the jury in a case where there was evidence that in fact the defendant had lost his or her self-control but the judge did not believe that a reasonable man would have done so” and that “[t]he section does this by expressly providing that it is for the jury to decide whether the provocation was enough to make a reasonable do as the accused did” (see UK Consultation Paper (at para 4.6)). Indeed, this particular provision has been described, in the English Court of Appeal decision of R v Kuljit Singh Dhillon [1997] 2 Cr App R 104 at 114, as an “almost unique statutory requirement” and Prof J C Smith (in a commentary on this case in “Provocation” [1997] Crim LR 295) has correctly pointed out that the (English) law as it stands furnishes the accused with the opportunity to receive a perverse verdict at the trial, albeit not necessarily on appeal (at 296). It should, however, be noted that, even under s 3 of the 1957 Act, if there was “merely the speculative possibility that there had been an act of provocation”, it would be wrong of the judge to direct the jury to consider the defence of provocation (see, for example, the House of Lords decision of Regina v Acott [1997] 2 Cr App R 94 at 102). Viewed in this light, all that Doughty decides is that the trial judge in that case was wrong in not adhering to the position (just stated) which was the result of the introduction of s 3 of the 1957 Act and had erred in deciding, as a question of law, that the defence of provocation was not available to the accused. Indeed, it is of some significance, in our view, that the court in Doughty nevertheless did refer to the trial judge’s reasoning as being “understandable” (at 326). The court also stated that it arrived at its decision “though fully understanding [the trial judge’s] reasons” (ibid).
[110] And, as Prof Ormerod has observed (in Smith & Hogan ([96] supra) at pp 444–445):
[111] More importantly, perhaps, in Smith (Morgan) ([90] supra), Lord Hoffmann observed thus (at 171):
[112] The following observations by Prof Ashworth may also be usefully noted (see Principles of Criminal Law ([96] supra) at p 264):
[113] The following observations by Prof Ormerod with regard to the UK Consultation Paper ([90] supra) may also be usefully noted (see Smith & Hogan ([96] supra) at p 463):
[114] In the circumstances, even if we have regard to the ostensibly broad remit of s 3 of the 1957 Act, Doughty is – at best – controversial. In any event, Doughty has really no relevance in the Singapore context, where the legal position is quite different (and where there is, inter alia, no local equivalent of s 3 of the 1957 Act). Indeed, even under English law, the jury might still decide the issue against the accused in so far as the issue of loss of self-control was concerned (see above at [109]). Further, the issue as to whether or not provocation which allegedly came from a child would be sufficiently grave would still need to be decided (this would be the second (and objective) element (see above at [95])). In this regard, the following observations by Prof Ashworth are apposite (see Ashworth’s article ([91] supra) at 319):
The cases cited by the learned author may also be usefully noted. The first is the relatively early English decision of Regina v Mawgridge (1707) Kel J 119; 84 ER 1107, where Holt CJ observed thus (at 134; 1114):
The second case cited, the English Court of Criminal Appeal decision of R v Annie Smith (1914) 11 Cr App R 36, concerned an application for leave to appeal against a conviction of murder. Ridley J observed, arguendo (at 37), that:
And, in a commentary on Doughty, it was observed by the learned author thus (see Jeremy Horder, “The Problem of Provocative Children” [1987] Crim LR 655 at 660):
[115] The views in the cases referred to in the preceding paragraph are, of course, entirely consistent with the approach we have adopted in the present appeal (see, in particular, above at [114]).
[116] In the circumstances, we found that the appellant could not rely on Exception 1 as he had failed, in all respects, to meet the requirements contained therein.
Alleged judicial interference
[117] Turning to the next main ground of appeal, the appellant’s case rested on the allegation that the Judge had engaged in excessive judicial interference by descending into the arena frequently to express his thoughts about how the Prosecution should proceed with its case and the evidence required by the Prosecution to prove its case. He cited several instances in the notes of evidence to support his contention, which we propose to deal with closely. In considering this issue, we were of the view that this was a serious allegation to be made by the appellant. We propose to refer first to the applicable principles before focusing on the specific instances of judicial intervention alleged by the appellant in the context of the present proceedings.
The applicable principles
(1) Introduction
[118] The rationale for the proscription against judicial interference is virtually self-explanatory. It is part of the concept of the “due process of law” which Lord Denning has, in an extrajudicial context, succinctly described as follows (see Lord Denning, The Due Process of Law (Butterworths, 1980) at p v):
[119] However, the need to ensure that there is no judicial interference does not impact merely on procedural justice for, as we shall see, any such interference will also result in substantive injustice as well. That procedural and substantive justice are inextricably connected and that the latter is the ultimate aim of any judicial process is clear, as was observed in the Singapore High Court decision of United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR 425 at [8]:
[120] We pause here to observe that the judicial interference must obviously be excessive in ways that are described in further detail below. However, for ease of reference, the phrase “judicial interference” will be used.
[121] Let us turn now to the leading decision in relation to the doctrine which is at issue before us (viz, that proscribing judicial interference).
(2) Jones v National Coal Board
[122] The leading decision in relation to the doctrine proscribing judicial interference is that of the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 (“Jones”), handed down just over half a century ago. It is significant that the judgment of the court was delivered by a judge whose passion for justice was legendary. Indeed, in an extrajudicial context, Lord Denning described this case in which he delivered the judgment as concerning “[t]he judge who talked too much”. In his characteristic (and, dare we say, inimitable) style, this is how he described the background to the case itself (see The Due Process of Law ([118] supra) at pp 58–59):
[123] In Jones itself, the seminal observations of Denning LJ, who (as mentioned) delivered the judgment of the court, bear quotation in full, as follows (at 63–65):
[124] Unfortunately, this was not the only decision in which Hallett J had intervened in an unacceptable way. He had also done so in at least one other decision in the criminal sphere. The conviction was quashed by the English Court of Criminal Appeal: see R v Brian Edward Clewer (1953) 37 Cr App R 37 (“Clewer”).
[125] However, it is important to emphasise that Jones was a truly exceptional case. Indeed, the judge’s interference in that case was so egregious that both parties each made it a ground for appeal. In our view, the argument from judicial interference cannot – and must not – become an avenue (still less, a standard avenue) for unsuccessful litigants to attempt to impugn the decision of the judge concerned. This would be a flagrant abuse of process and will not be tolerated by this court. Parties and their counsel should only invoke such an argument where it is clearly warranted on the facts (for another clear instance, see the Canadian Supreme Court decision of Brouillard v R [1985] 1 SCR 39, especially at 48). That some litigants had sought to exploit the holding shortly even after Jones itself was decided is clear from Lord Denning’s own extrajudicial account. He would – quite rightly, in our view – have none of it. This is what he had to say (see The Due Process of Law ([118] supra) at p 62):
[126] It is appropriate, at this juncture, to turn to the principles enunciated in other Commonwealth decisions as well as significant extralegal speeches by the judges themselves before proceeding to summarise the principles that ought to be applicable in our courts – always bearing in mind the fact (as emphasised in the preceding paragraph) that the argument from judicial interference will succeed only in the most egregious cases.
(3) Other Commonwealth case law and speeches
[127] It is imperative that the judge concerned must not be perceived to have “descended into the arena”. In the oft-cited words of Lord Greene MR in the English Court of Appeal decision of Yuill v Yuill [1945] P 15 at 20:
[128] In the English Court of Appeal decision of R v Donald Walter Matthews (1983) 78 Cr App R 23 (“Matthews”), Purchas LJ, who delivered the judgment of the court, made the following important observations (at 32–33):
[129] Although the above observations were made in the context of a trial by jury, the general principles which they embody apply with equal force in the Singapore context.

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Mohammed Ali bin Johari v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

The facts

Circumstances surrounding the death of the deceased

The alleged phone call during the course of the immersions

Injuries on the deceased

Genetic screening and previous medical history of the deceased

Findings by the trial judge

Issues

Arguments by the appellant

Arguments by the respondent

Our decision

Did the appellant sexually assault the deceased?

Motive and intention

Murder under section 300(c) of the Code

The elements of section 300(c) of the Code

Application to the facts

(1) The immersions of the deceased by the appellant into the pail of water

(2) Causation

Has the Defence raised a reasonable doubt as to the cause of the deceased’s death?

Defence of grave and sudden provocation

The applicable principles

Our decision

Alleged judicial interference

The applicable principles

(1) Introduction

(2) Jones v National Coal Board

(3) Other Commonwealth case law and speeches