Public Prosecutor v Ellarry bin Puling and another

Chan Seng Onn J:

[1] The first accused is Ellarry Bin Puling (“Ellarry”), a 27-year–old male Malaysian who was employed as a cleaner by Twin Creations Pte Ltd at the time of his arrest. The second accused is Fabian Adiu Edwin (“Fabian”), a 22-year-old male Malaysian employed by R Glazen Singapore Pte Ltd as a construction worker at the time of his arrest. Both Ellarry and Fabian were working in Singapore on work permits. They were friends who had known each other back in Sabah.

[2] Both accused persons were committed to stand trial in the High Court on the following joint charge:

[3] The trial lasted ten days and took place over three tranches. It concluded on 18 April 2011.

[4] The deceased, Loh Ee Hui, was a 35-year-old male Singaporean.

[5] On 23 August 2008, the police received a call at 3.53am reporting that the deceased was lying in a pool of blood at the bus-stop B13 along Sims Avenue. A Singapore Civil Defence Force ambulance arrived about 10 minutes later and immediately conveyed the deceased to Changi General Hospital. The deceased had severe head injuries and was in coma. The deceased eventually succumbed to his injuries at 8.32pm on 23 August 2008.

[6] Following investigations, Fabian was arrested in an ambush at Boon Lay Mass Rapid Transit (“MRT”) station on 7 September 2008 and the deceased’s EZ-Link card (a contactless stored value ticket used on several forms of public transport) was subsequently recovered from the rear pocket of Fabian’s pair of jeans (which was hanging in Fabian’s living quarters). Ellarry was arrested at his workplace on 8 September 2008 and the deceased’s Nokia N5610 XpressMusic hand phone was recovered from him.

[7] The autopsy was performed by Dr Teo Eng Swee (“Dr Teo”). Dr Teo certified in his autopsy report that the cause of death was intracranial haemorrhage and cerebral contusions with a fractured skull.

[8] The deceased suffered complex fractures to his skull. The following four fractures were detailed in the autopsy report:

[9] The autopsy report also revealed that the deceased had suffered severe brain injuries:

[10] Dr Teo gave oral evidence that the force that caused the above injuries would have been very great. According to Dr Teo, a simple fall alone could not have caused the skull fractures and brain injuries that were found on the deceased. In fact, the brain injuries suffered by the deceased were contracoup injuries where a “force from one side has caused a subdural haemorrhage on the opposite side”.

[11] For completeness, it should be noted that the deceased had other injuries present on him, which did not cause his death: a frontal laceration on his scalp, a contusion on his lungs, bruises on his upper back and underlying bleeding in his lower back.

[12] According to Dr Teo, the injuries on the back were consistent with the deceased being hit with a blunt object. When Dr Teo was shown the broken piece of wood and the brick found at the crime scene, he opined that it was unlikely that the brick was used to cause the injuries on the deceased’s head. However, with regard to the frontal laceration on the scalp, both the piece of wood and the brick were possible weapons.

[13] Dr Kim Guowei (“Dr Kim”), who attended to the deceased at Changi General Hospital, was of the opinion that the deceased’s brain injury appeared to be very severe from the initial scan carried out. As such, he felt that it was very unlikely that the deceased would have recovered from the injury.

[14] Lastly, Ms Ang Hwee Chen, the senior forensic scientist attached to the Forensic Biology Laboratory of the Health Sciences Authority (“HSA”) confirmed that the deceased’s blood was found on the two broken pieces of wood and the brick which were recovered from the crime scene. As the two broken pieces of wood fitted nicely together, I am satisfied that they originally constituted a single piece of wood. I further noted that the single piece of wood (if unbroken) was fairly heavy, and had a substantial solid cross-section. If indeed it were the case that the original piece of wood had broken into two pieces as a result of its use as a weapon, then the assailant must have used considerable force to hit the deceased with it.

[15] Both accused persons did not raise any issues regarding the recording of the statements (for instance, that the statements were recorded without the aid of interpreters, were poorly recorded or were obtained under threat, inducement or promise, etc). In other words, the admissibility and accuracy of recording of the statements were not challenged at trial.

[16] Seven statements from Ellarry were admitted in evidence as part of the Prosecution’s case:

[17] The material portions of Ellarry’s statements are reproduced below:

(a) Ellarry’s s 122(6) statement:

(b) Ellarry’s 1 s 121(1) statement:

(c) Ellarry’s 2 s 121(1) statement:

(d) Ellarry’s 3 s 121(1) statement:

(e) Ellarry’s 4 s 121(1) statement:

[18] A total of six statements from Fabian were admitted in evidence as part of the Prosecution’s case:

[19] The material portions of Fabian’s statements are reproduced below:

(a) Fabian’s s 122(6) statement:

(b) Fabian’s 1 s 121(1) statement:

(c) Fabian’s 2 s 121(1) statement:

(d) Fabian’s 3 s 121(1) statement:

(e) Fabian’s 4 s 121(1) statement:

[20] The Prosecution’s case against Fabian rests on s 300(c) of the Penal Code (Cap 224, 2008 Rev Ed) which stipulates that:

[21] The Prosecution submitted that it had discharged the burden of proving beyond reasonable doubt that Fabian had committed the offence of murder under s 300(c) of the Penal Code.

[22] The Prosecution’s case against Ellarry rests on s 34 of the Penal Code, which stipulates that:

[23] The Prosecution submitted that there wass enough evidence to show that Ellarry shared a common intention with Fabian to inflict a s 300(c) injury on the deceased in order to rob him.

[24] At the third tranche of the trial on 18 April 2011, the Prosecution made an application under s 399 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) for the court to allow the two accused persons to be further cross-examined in light of the decision in Daniel Vijay s/o Katherasan and others v Public Prosecutor [2010] 4 SLR 1119 (“Daniel Vijay”), a case concerning s 34 common intention.

[25] The Prosecution submitted that because the cross-examination of the two accused persons took place before the decision in Daniel Vijay was released, further cross-examination of the two accused persons was necessary for a just decision of the case in relation to Ellarry. The Defence objected to the Prosecution’s application, stating that the accused persons would suffer prejudice and that the Prosecution was trying to have “two bites of the cherry”.

[26] Section 399 of the Criminal Procedure Code stipulates that:

[27] Upon a careful consideration of the circumstances, I did not allow the application made by the Prosecution. In my view, further cross-examination of the two accused persons was not essential to a just determination of the case. The Prosecution had had ample opportunity to cross-examine both accused persons, and had in fact cross-examined them at length, in relation to (a) the extent of their participation in the criminal acts in question and (b) their states of mind, including their intentions at the material time.

[28] I did not think it was fair to recall the accused persons some nine months after they completed giving their evidence and to allow them to be cross-examined again by the Prosecution on their states of mind at the material time. In my view, the cross-examination would be repetitive and cover largely the same ground. As it was not likely to add substantially to the evidence that was already before the court, I dismissed the Prosecution’s application.

[29] The Defence conceded that Fabian intended to rob the deceased. However, it was emphasised that he had only hit the deceased to facilitate the robbery, and that the killing was neither premeditated nor intentional.

[30] The Defence insisted that Fabian did not strike the deceased without warning. According to the Defence, Fabian had confronted the deceased and demanded his hand phone. Fabian was holding the piece of wood for the purpose of intimidating the deceased into handing over his hand phone and only struck the deceased when the deceased failed to surrender his hand phone and began to shout and struggle.

[31] Thus, the Defence submitted that when Fabian struck the deceased, he did not have the mens rea for an offence under s 300 of the Penal Code.

[32] Indeed, the Defence contended, on the authority of Public Prosecutor v AFR [2010] SGHC 82 (“AFR”), that there must be a subjective inquiry into the question of intention, ie, whether Fabian had the intention to cause the bodily injury that was actually found to be present on the deceased. The Defence further suggested that Fabian’s profile (age, education and intelligence) should be taken into account in determining whether he could have formed the requisite intention.

[33] The Defence also urged me to consider whether the defence of diminished responsibility was made out on the facts. The Defence relied principally on (a) the evidence of their expert witness Dr Tommy Tan, who opined that the defence of diminished responsibility may not be wholly excluded; and (b) the fact that Fabian is of below average intelligence (with an intelligence quotient (“IQ”) in the range 77-85 on the Wechsler Adult Intelligence Scale (“WAIS”)), has a very low education level and was only 18 years old at the time of the offence. In the circumstances, the defence contended that Fabian should be entitled to the defence of diminished responsibility.

[34] The Defence further submitted that it was possible that the injuries which caused the deceased’s death may have been caused when he fell onto the pavement after being hit on the head with the wooden stick.

[35] The Defence submitted that Ellarry and Fabian lacked a common intention to commit s 300(c) murder for the following reasons:

[36] The Defence submitted that the only common intention the two accused persons shared was to rob the deceased.

[37] The seminal authority on the interpretation of s 300(c) of the Penal Code is the decision of the Supreme Court of India in Virsa Singh v State of Punjab AIR [1958] SC 465 (“Virsa Singh”). At [12] of Virsa Singh, the four elements of s 300(c) are set out:

[38] This analysis has been affirmed by the Court of Appeal in Public Prosecutor v Lim Poh Lye [2005] 4 SLR(R) 582 (“Lim Poh Lye”) and most recently in Public Prosecutor v Kho Jabing and Anor [2011] SGCA 24 (“Kho Jabing”).

[39] The first two elements of the Virsa Singh test have been made out in the present case. The autopsy report by Dr Teo and the medical report by Dr Kim show that the deceased suffered four fractures to his skull and severe contracoup brain injuries (see [10] above).

[40] The next (ie, third) element that must be proved is Fabian’s “intention to inflict that particular bodily injury, that is to say, that it was not accidental or otherwise unintentional, or that some other kind of injury was intended” (Virsa Singh at [12]).

[41] At [16] of Virsa Singh, Bose J elaborated on this third element of the offence:

[42] In Lim Poh Lye, the Court of Appeal emphasised at [22] that:

[43] In his statements to the police, Fabian admitted to hitting the deceased on the back and top of his head so as to make him “fall and faint faster” (see Questions 14-18 of Fabian’s 3 s 121(1) statement, reproduced at [19] above).

[44] However, at trial, Fabian claimed that he did not actually intend to hit the deceased on the head, and that his blows had just happened to land on the deceased’s head.

[45] Under cross-examination, Fabian was unable to explain the inconsistency between his oral evidence in court and the statements he gave to the police. In fact, Fabian had admitted during cross-examination that he had intended to hit the deceased on the head:

[46] I am of the view that Fabian did have the intention to cause the head and brain injuries that were found on the deceased. His evidence in court that the blows just happened to land on the deceased’s head appeared to be a mere attempt to absolve himself of liability for murder under s 300(c).

[47] I find it quite hard to believe that Fabian never intended to hit the deceased on the head, when in actual fact all three strikes of the wooden stick landed nowhere else on the deceased’s body but squarely on the back and top of the deceased’s head. It was clearly not a random raining of blows on the deceased’s body but a targeted series of blows to the deceased’s head. I am thus driven to infer that Fabian specifically intended to hit the deceased on the head using the heavy wooden stick with sufficient force so as to render the deceased unconscious. The fact that he had chosen to hit the deceased a few times on the head to achieve his professed aim of making the deceased “fall and faint faster”, suggested that he was plainly aware that the head was a vulnerable part of the body.

[48] In addition, Ellarry’s oral evidence in court and his statements to the police corroborate the other evidence showing that Fabian had used the piece of wood to hit the deceased on the head with the intention of inflicting those fatal injuries to the head (see Question 18 of Ellarry’s 4 s 121(1) statement, reproduced at [17] above).

[49] I reject the Defence’s suggestion that Fabian did not strike the deceased without warning (see [30] above). I am of the view that this was a clear case of Fabian “striking first” without any warning to catch the deceased totally by surprise so as to minimise the chances of retaliation from the deceased.

[50] I also reject the Defence’s argument (see [32] above) that Fabian could not have formed the subjective intention to cause the particular injuries that caused the death of the deceased. In my opinion, this argument must be rejected once the circumstances giving rise to and the manner of the attack are also taken into consideration. I cannot ignore the evidence that Fabian hit the deceased on the back and top of the head a few times with a heavy wooden stick with considerable force to cause him to fall and faint so that the deceased’s valuables could be taken away easily. At 18 years of age and despite his low average IQ and his low educational level, I find that he knew exactly what he was doing at that time and that he fully understood why he had to hit the deceased on the head to achieve their common purpose. No complex reasoning or high IQ is needed for a simple realisation of the kind of consequences that would naturally follow from inflicting multiple heavy blows to the head. Even after giving due consideration to his young age, his low educational level and low average IQ, I believe that it is not beyond Fabian’s knowledge and comprehension that using a heavy wooden stick to hit the deceased’s head several times with such force as he did would result in severe internal injuries to the head that might well be fatal. I have no difficulty in concluding that Fabian is sufficiently mature and he is intellectually capable of and had indeed formed the subjective intention at the material time to inflict the head injuries that eventually caused or resulted in the death of the deceased. Fabian had a clear purpose in mind ie to make the deceased “fall and faint” and he carried out that purpose in a cold-blooded manner.

[51] In AFR at [32] to [37], the High Court drew a distinction between injuries which were “ordinary and natural consequences” of the accused person’s acts and thus “well within the contemplation of any normal person” and those which were not.

[52] For the first category of injuries, the law would, in the absence of evidence that would indicate to the contrary, “infer an intention ... to cause the fatal injuries as such injuries would be the ordinary and natural consequences of that act and well within the contemplation of any normal person” (see AFR at [36]). This was the category of injuries which caused the deaths of the deceased persons in the cases of Public Prosecutor v Visuvanathan [1977-78] SLR(R) 27 (“Visuvanathan”), Tan Joo Cheng v Public Prosecutor [1992] 1 SLR(R) 219 (“Tan Joo Cheng”), Tan Cheow Bock v Public Prosecutor [1991] 2 SLR(R) 608 (“Tan Cheow Bock”), Tan Chee Wee v Public Prosecutor [2004] 1 SLR(R) 479 (“Tan Chee Wee”) and Lim Poh Lye.

[53] At [36] of AFR, Lee Seiu Kin J explained that:

[54] This justifies the apparently “strict” approach towards s 300(c) in the cases of Visuvanathan, Tan Joo Cheng, Tan Cheow Bock, Lim Poh Lye, Tan Chee Wee (see Annual Review of Singapore Cases 2010 (Teo Keang Sood, ed) (Academy Publishing, 2011) (“Annual Review of Singapore Cases 2010”) at para 12.80).

[55] As for the second category of injuries, the law should not draw the inference that the mere presence of such injuries means that the accused person must have intended to cause them. When the injuries that actually resulted in death are not within the “ordinary and natural consequences” of the accused person’s acts, the accused person would not ordinarily be imputed with the knowledge that, by carrying out such acts, he would cause those fatal injuries in question because such knowledge would not be “within the contemplation of a normal person”. As such, in the absence of any credible evidence proving to the contrary, an inference that the accused person intended to cause such unexpected and unusual fatal injuries through his criminal acts should not be drawn.

[56] In AFR, a father had caused the death of his 1 year and 11 month old daughter when he struck her repeatedly with his fist and feet. Lee J observed that, in the circumstances of the case, “[e]ven an experienced pathologist with expert training could not be certain as to how it had happened in this case” (AFR at [37]). Given the highly unusual nature of the fatal injury ie the rupture to the young child’s inferior vena cava (“IVC”), Lee J could not infer from the mere presence of the injury that the accused had the intention to cause that particular fatal injury (although it could only have been factually caused by the accused’s actions). In Lee J’s view, the accused person, a poorly educated young man with at best average (but more likely below average) intelligence, could not reasonably have known or foreseen that the beating that he was unleashing on the deceased could have caused the unusual and unexpected fatal rupture to the IVC.

[57] In the present case, the injuries found on the deceased were those in the first category – it is clearly well within the contemplation of a normal person that striking someone on the head a few times with a heavy wooden stick so as to render that person unconscious would likely cause skull fractures and severe brain injuries. Although Fabian has a low IQ, he must have known the consequences of his actions. Indeed he had intended those very consequences to happen as his stated objective was to make the deceased “fall and faint faster”. Such injuries were thus the “ordinary and natural consequences” of Fabian’s acts.

[58] In the absence of evidence to the contrary, the very presence of the injuries found on the deceased allows me to draw an inference that Fabian intended to cause those head and brain injuries. Based on Fabian’s admissions to the police, his evidence in court that he wanted to hit the deceased on the head to make him “fall and faint faster” and Ellarry’s statements to the police that Fabian had suggested using the “piece of wood so that the victims would fall easier”, I find beyond a reasonable doubt that the Fabian intended to cause the head and brain injuries found on the deceased.

[59] The last (ie, fourth) element to be proved is that the injuries found on the deceased were sufficient to cause his death in the ordinary course of nature. Dr Teo testified unequivocally that the head and brain injuries inflicted by Fabian were sufficient in the ordinary course of nature to cause the death of the deceased. Dr Teo was of the opinion that the degree of force used by Fabian to hit the deceased’s head must have been very severe (and see [10] above).

[60] The Defence has merely speculated that the injuries were not sufficient in the ordinary course of nature to cause death, without adducing any evidence of the same. In the circumstances, I am of the view that the Prosecution has established that the deceased’s head and brain injuries were sufficient in the ordinary course of nature to cause death.

[61] Given that all the elements of the Virsa Singh test are satisfied, Fabian will be convicted of s 300(c) murder unless the Defence can prove that any defences apply in Fabian’s case.

[62] Exception 7 to s 300 of the Penal Code stipulates that:

[63] In Ong Pang Siew v Public Prosecutor [2011] SGCA 37 (“Ong Pang Siew”), the Court of Appeal stated (at [58]) the criteria for establishing the defence of diminished responsibility:

[64] The definition of an “abnormality of mind” is laid out in the case of R v Byrne [1960] 2 QB 396 at 403:

This judicial elaboration of “abnormality of mind” has been cited by our Court of Appeal in Zailani bin Ahmad v Public Prosecutor [2005] 1 SLR(R) 356 (“Zailani bin Ahmad”) at 374 and Took Leng How v Public Prosecutor [2006] 2 SLR(R) 70 (“Took Leng How”) at 86.

[65] The Defence adduced no evidence to prove on a balance of probabilities that Fabian was suffering from an abnormality of mind at the time he caused the death of the deceased. Initially, Defence witness, Dr Tommy Tan, speculated that Fabian might have mild mental retardation but he required an IQ assessment to confirm this finding. Subsequently Ms Koo Shen Lin (“Ms Koo”) administered the WAIS test on Fabian and found his full scale IQ to be in the low average range (77-85). Based on Ms Koo’s finding, Dr Tommy Tan concluded that Fabian did not suffer from mental retardation and as such would probably not qualify for the defence of diminished responsibility.

[66] In the present case, Fabian cannot even cross the first hurdle of Ong Pang Siew’s three-limb test, as the Defence failed to show that Fabian was suffering from an abnormality of mind at the time he caused the death of the deceased. Indeed, the objective evidence leads me to the conclusion that Fabian fully understood the nature of his actions and made a rational decision to use the wooden stick to hit the deceased on the head to render him unconscious in order to facilitate the robbery. After the deceased was incapacitated, Fabian searched the deceased’s pockets for his hand phone and wallet. Fabian and Ellarry then split the loot between them. In my view, Fabian was clearly not suffering from any abnormality of the mind at the time he caused the death of the deceased. The chain of events before, during and after the robbery and attack on the deceased was the work of a calculated and rational mind.

[67] As such, the defence of diminished responsibility is not made out.

[68] I find Fabian to be guilty of the charge against him. I convict him of murder under s 300(c) of the Penal Code and I am compelled to impose the mandatory death penalty on him.

[69] Section 34 of the Penal Code stipulates that:

[70] The recent Court of Appeal decisions of Daniel Vijay, Kho Jabing and Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32 (“Muhammad bin Kadar”) have clarified the law on the interpretation and application of s 34.

[71] It is apposite at this juncture to lay out the present state of the law on s 34 as summarised in Kho Jabing at [32] and [33]:

[72] At [36] of Kho Jabing, the Court of Appeal opined that:

[73] In light of these recent decisions, Ellarry will only be found constructively liable for the murder actually committed by Fabian if the Prosecution can prove beyond a reasonable doubt that Ellarry shared the common intention with Fabian to commit a s 300(c) injury on the deceased. In particular, the Prosecution has to prove the existence of some kind of planning or understanding between Fabian and Ellarry as to what they would do and how they would do it in order to rob the deceased.

[74] Crucially, a high degree of specificity is demanded of Ellarry’s intent. In Daniel Vijay at [73]-[76], the Court of Appeal applied the Barendra test to s 300(c) murder:

[75] It is useful to briefly recall the facts of Daniel Vijay and to see how the Court of Appeal dealt with the constructive liability of the secondary offenders in that case. In Daniel Vijay, the three appellants – Daniel, Christopher and Bala –were part of a plan to rob a cargo of mobile phones. They brought along a baseball bat but it was disputed whether there was any prior agreement to beat up the driver of the cargo lorry to the extent that he could not identify the assailants later on. In the course of the robbery, the driver was repeatedly hit on the head and other parts of his body by Bala. Daniel and Christopher did not attack the driver. The trio looted the cargo and left the victim inside the lorry. The victim eventually died of his head injuries.

[76] The High Court found Bala liable for murder under s 300(c) and no defences were available to him. The trial judge, applying s 34, convicted Daniel and Christopher on a joint charge of murder arising from Bala’s act of attacking the driver even though they did not plan to kill the driver. The Court of Appeal disagreed with the trial judge on the convictions of Daniel and Christopher, noting that even though the trial judge found that Daniel and Christopher knew that the driver would be assaulted as part of the robbery plan, he did not find as a fact that they had a common intention to knock the driver unconscious. They only had a common intention to commit robbery with hurt, and not to kill. As such, the Court of Appeal substituted the charge of murder read with s 34 to a charge of robbery with hurt under ss 394 read with 34.

[77] In respect of the application of the Barendra test to a charge of s 300(c) murder, the Court of Appeal emphasised (at [145] and [147]) that:

[78] Bearing the above principles in mind, I shall proceed to an analysis of the evidence before me.

[79] The Prosecution submitted that there was enough evidence to show that Ellarry shared a common intention with Fabian to inflict a s 300(c) injury on the deceased in order to rob him:

[80] The Defence submitted that Ellarry and Fabian only shared a common intention to rob the deceased. There was no common intention to commit s 300(c) murder for the following reasons:

[81] Following a careful consideration of the evidence, I find that Ellarry did not share a common intention with Fabian to cause the deceased a s 300(c) injury. The Prosecution wrongly conflated the intention to cause hurt using the wooden stick (so as to cause the deceased to fall down to the ground) with the intention to cause a s 300(c) injury. At the highest, the Prosecution was only able to prove that Ellarry shared a common intention with Fabian to cause the deceased hurt with the wooden stick so as to make him fall down to the ground for the purpose of robbing him.

(1) Common intention to cause the deceased hurt with the wooden stick to make him fall down to the ground for the purpose of robbing him

[82] I have set out my analysis of the evidence in three parts:

[83] Both Ellarry and Fabian had admitted in their statements that they shared a common intention to hit the deceased with the stick so as to make him fall down to the ground and thereafter to rob him (see, respectively, Question 18 of Ellarry’s 4 s 121(1) statement, reproduced at [17] above; and Questions 9 and 17 of Fabian’s 3 s 121(1) statement, reproduced at [19] above).

[84] However, at trial, Ellarry claimed that he did not know that Fabian would use the stick to attack the deceased. When cross-examined, his version of events broke down:

[85] I disbelieve Ellarry’s evidence that he did not know that Fabian was going to use the stick to attack the deceased. Given that they had always picked victims smaller than themselves and were thus always able to overpower them, it did not make sense for Fabian to suddenly arm himself with a wooden stick for “protection”. They had always successfully attacked and robbed their victims by punching and kicking them. Ellarry’s volte-face at trial is nothing more than an attempt to absolve himself of the crime.

[86] From the totality of the evidence, I find that Ellarry was obviously aware that Fabian had brought along the wooden stick which, due to its length, was protruding out of the bag that Fabian was carrying when they looking for a victim to rob on that night. I further find that Ellarry expected and intended that Fabian would use the stick to attack and make their next victim fall down to the ground as part of their plan to facilitate their robbery. Ellarry clearly admitted in his own voluntary statement that “the piece of wood was to be used as a weapon to hit the victims to cause the victim to fall. Once they fall, it would be easier to search and take their belongings. If we do not make the victim fall and just approached them to rob, the victims might retaliate. So we strike first.” That also explains why on the night the deceased was attacked and robbed, although Ellarry himself did not bring his half of the wooden stick, he neither suggested that Fabian dispose of the other half of the wooden stick (which he knew Fabian had brought along to attack their next robbery victim), nor attempted in any way to dissuade or stop Fabian from using the weapon to commit their robbery.

[87] Given the extent and nature of the voluntary disclosures in Ellarry’s and Fabian’s statements regarding their plan to use the wooden stick as a weapon to attack their next robbery victim and to make the victim fall down to the ground, it is my view that Ellarry must have realised that it was almost a certainty that Fabian was going to use the stick he was carrying to attack the next victim.

[88] With the knowledge and full realisation that Fabian was going to use the wooden stick to attack their robbery victim, and instead of dissociating himself entirely from what Fabian intended to do, Ellarry continued to assist Fabian in looking for a suitable victim and was even prepared to act as a look-out for Fabian so that Fabian could successfully carry out the robbery and thereafter share the loot with him. I thus find that at the material time, Ellarry shared a common intention with Fabian to attack their next robbery victim with the wooden stick to cause the victim to fall down to the ground in order to commit the robbery.

[89] However, it must be stressed that, on the evidence, the Prosecution failed to show any common intention for (a) the stick to be used to hit the deceased on a specific part of his body, or for (b) the deceased to be rendered unconscious as a result of the attack. From Ellarry’s voluntary statement, it is clear that he only admitted to sharing the common intention with Fabian to cause the deceased to fall down to the ground. While the Prosecution had proven that Fabian intended to cause the deceased injuries on his head so as to render him unconscious (see above at [40] – [58]), no evidence was adduced to prove that Ellarry shared the common intention with Fabian to cause the injuries on the deceased’s head so as to render him unconscious.

[90] Ellarry’s role during the actual robbery and attack was significant. Even though he did not cause the deceased any physical injury, his role must still be regarded as one of active participation, because he:

[91] Ellarry himself admitted as much in his statements to the police (see Questions 15 and 16 of Ellarry’s 4 s 121(1) statement, reproduced at [17] above). Fabian’s statements to the police also support this version of the events (see Questions 25 and 26 of Fabian’s 3 s 121(1) statement, reproduced at [19] above)

[92] However, at trial, Ellarry, in an attempt to absolve himself of criminal liability, did another volte-face and claimed that he was not acting as look-out for Fabian. Under cross-examination and after some questions from the court, his oral testimony was shown to be inconsistent with his statements to the police.

[93] The evidence clearly showed that the ill-fated robbery and attack on the deceased was conducted in accordance with a common plan. Ellarry and Fabian acted instinctively on the basis of a shared understanding which had been developed over the course of a number of previous successful robberies. The objective of the ill-fated robbery and attack on the deceased was the same as the previous robberies: to cause the victims to fall down to the ground so as to facilitate the act of robbery. However, on this occasion, there was a further understanding between them that a wooden stick was to be used as a weapon to cause the victim to fall down to the ground.

[94] The conduct of Ellarry after the robbery and attack on the deceased is additional supportive evidence showing that Ellarry and Fabian had the common intention to cause the deceased hurt using the stick so as to cause him to fall down to the ground. If Ellarry did not intend that the deceased be attacked with the stick, it would have been natural for him to have been shocked, angered, scared and disappointed at Fabian for hitting the deceased with the stick. He would have confronted Fabian and asked him why he did what he did.

[95] Instead, from Ellarry’s and Fabian’s statements to the police, it is undisputed that they had proceeded to rob another victim together on the same night. They then calmly split the loot and sold the stolen hand phones. At the end of the night, they shared about six bottles of Tiger Beer and thereafter solicited prostitutes in Geylang (see Ellarry’s 3 s 121(1) statement, reproduced at [17] above, and Fabian’s 2 s 121(1) statement, reproduced at [19] above).

[96] At trial, Ellarry was cross-examined on why he had not confronted Fabian even though he felt disappointed or angry after Fabian had attacked the deceased with the stick. Ellarry’s only response was that after the robbery, they were “only interested in the loot”, and therefore he did not express his feelings of disappointment or anger.

[97] Once again, I find that this evidence of his at the trial is a clear afterthought. First, I have already found that Ellarry knew and intended that Fabian would use the stick to make their next victim fall down to the ground. Second, if indeed Ellarry was as angry, disappointed and upset as he claimed to be, he would naturally have confronted Fabian. He would not have robbed another victim with Fabian, drunk beer and solicited prostitutes together. The totality of Ellarry’s and Fabian’s conduct after the robbery and attack on the deceased leads to the conclusion that things turned out as they had planned insofar as the deceased had been attacked with the wooden stick. This is further corroborative evidence of their common intention to cause the victim to fall down to the ground so as to rob him.

[98] For the above reasons, it is thus clear that Ellarry and Fabian shared the common intention to hit the deceased with stick so that he would fall down to the ground and thereafter to rob him.

[99] Given the high level of specificity required of the secondary offender’s intent following the decision in Daniel Vijay, which in the case of s 300(c) murder requires proof that the secondary offender specifically intended to cause a s 300(c) injury, the Annual Review of Singapore Cases 2010 noted at para 12.56 that the case of Daniel Vijay:

[100] The Annual Review of Singapore Cases 2010 also noted, at para 12.58, that:

[101] On the facts of the present case, while the Prosecution can prove that Ellarry shared a common intention with Fabian to hit the deceased with the stick to cause him to fall down to the ground, I find that they are unable to prove that Ellarry and Fabian shared the common intention to cause, specifically, a Section 300(c) injury (see Daniel Vijay at [147], reproduced at [77] above).

[102] While I am able to accept that Fabian and Ellarry had the common intention to hit the deceased with the stick so as to cause him to fall down to the ground, it does not necessarily follow that this common intention was a common intention to inflict a s 300(c) injury on the deceased. Adopting the language and reasoning of the Court of Appeal in Daniel Vijay at [147], in the present case the Prosecution has not adduced medical or forensic evidence to show as a scientific fact that hitting a person using the wooden stick with enough force required to cause the person to fall down to the ground is sufficient in the ordinary course of nature to cause death.

[103] Instead, the Prosecution’s submission wrongly conflated the common intention to inflict hurt using the wooden stick so as to cause the victim to fall down to the ground with the common intention to cause a s 300(c) injury to the deceased. The Prosecution has not proved the high degree of specificity required of the secondary offender’s intent following the decision in Daniel Vijay: it had failed to prove that Ellarry had the intention to do the specific criminal act done by Fabian, ie hitting the deceased on the head with the wooden stick to render him unconscious. Ellarry also did not subjectively know that that specific criminal act might likely be committed or that that criminal act would result in a s 300(c) injury to the victim. The Prosecution has only been able to prove that the common intention of Fabian and Ellarry extended only to hitting the deceased with the wooden stick so as to cause him to fall down to the ground and thereafter to rob him. Post-Daniel Vijay, such a finding is insufficient to find Ellarry guilty of s 300(c) murder read with Section 34. As the Court of Appeal in Daniel Vijay opined (at [74]):

[104] Given my findings above, I shall, in substitution, convict Ellary of the offence of robbery with hurt under ss 394 read with 34. Sentencing for Ellarry shall be adjourned to a date to be fixed.