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SINGAPORE LAW REPORTS (REISSUE)
[1999] 1 SLR(R)
Shaiful Edham bin Adam and another
v
Public Prosecutor
[1999] SGCA 94
Court of Appeal — Criminal Appeal No 13 of 1998
Yong Pung How CJ, L P Thean JA and Tan Lee Meng J
11 January; 19 February 1999
Criminal Law — Murder — Proof of common intention — Knowledge that
participation in act causing death of deceased — Inference of common intention only
if deducible from circumstances of case — Whether pre-arranged plan necessary to
finding common intention — Applicable principles — Sections 34 and 302 Penal
Code (Cap 224, 1985 Rev Ed)
Criminal Law — Murder — Series of acts — Coincidence of mens rea and actus reus
— Whether acts can be separated — Applicability of Thabo Meli approach
Criminal Procedure and Sentencing — Appeal — Findings of fact — Appellate court
not to disturb findings of fact unless findings clearly against weight of evidence
Facts
The appellants were convicted of committing murder in furtherance of a
common intention. They did not dispute that the deceased received stab wounds
on her neck and jaw at the first appellant’s flat and her body was later thrown
into a canal. The certified cause of death was “multiple incised wounds on neck
and drowning”. According to the pathologist, the deceased was already on the
brink of death when her body was thrown into the canal. Both appellants gave
statements implicating each other in the deceased’s death. Their accounts of the
incident differed as each attempted to push responsibility for causing the
deceased’s fatal injuries on the other. Both appellants, however, admitted to
disposing the deceased’s body in a canal after the incident. The trial judge
accepted Prosecution evidence that a few days before the incident, the first
appellant had professed his intention to kill the deceased to a witness and even
offered the latter money to help dispose the body. The trial judge also found that
although the evidence was inconclusive as to which of the appellants had caused
some of the injuries, either one of them had acted in pursuance of their common
object to kill.
On appeal, both appellants contended that they did not share a common
intention to commit murder. The first appellant argued that (a) he had merely
caused one of the injuries to the deceased’s neck and that this was accidental,
and (b) he had thrown her into the canal thinking that she was already dead. The
second appellant claimed that he had assisted the first appellant because he was
in shock and terrified of the latter as he had threatened to implicate him.
Held, dismissing the appeal:
(1) Where different participants committed different acts in a criminal
enterprise, they might still be regarded as having done “a criminal act” for the
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443
purposes of liability under s 34. That section was designed to meet the situation
where it was difficult, if not impossible, to distinguish between the acts of each
individual member of a party or to prove precisely what part was played by each
of them. Section 34 operated to impute liability to a participant who contributed
to a result, though he could not be proved to have committed the actus reus
himself. The Prosecution was only required to prove that a common intention
existed between all the persons involved to commit a criminal act and that the
act which constituted the offence charged (the “criminal act” in s 34) was
committed in furtherance of that common intention. It was not necessary to
prove that there was a common intention to commit the crime actually
committed. The rider to this was that the participants must have had some
knowledge that an act might be committed which was consistent with or would
be in furtherance of the common intention: at [51], [56] and [57].
(2) Common intention meant a prior meeting of the minds and must be
distinguished from same or similar intention. The common intention must
precede the criminal act. However, it was not necessary to find a pre-arranged
plan. The plan could develop on the spot. Common intention was to be inferred
from all the facts and circumstances of the case, including the conduct of the
accused: at [58] and [60].
(3) Acts done “in furtherance of a common intention” fell into 3 categories:
(a) acts which were directly intended by all the confederates; (b) acts which in
the circumstances were undoubtedly to be taken as included in the common
intention, although they were not directly intended by all the confederates; and
(c) acts which were committed by any of the confederates to avoid or remove
any obstruction or resistance against the proper execution of the common
intention: at [59].
(4) Section 34 required the criminal act to be “done by several persons”.
There must be physical presence at the scene of crime coupled with actual
participation. Presence at the scene for the purpose of facilitating or promoting
the offence was itself tantamount to actual participation in the criminal act.
“Criminal act” in s 34 would cover any word, gesture, deed or conduct, whether
active or passive, which tended to support the common design: at [61] and [62].
(5) The evidence clearly established that the first appellant had formulated an
elaborate plan to kill the deceased: he had attempted to ascertain whether the
deceased’s body could fit into a washing machine at his home so that he could
dispose the whole thing at sea. The second appellant, on the other hand, formed
the intention to kill, either when he covered the deceased’s mouth to stop her
from screaming, or when he secured her legs whilst the first appellant chopped
her neck. Common intention could be inferred from the second appellant’s
participation in the murder of the deceased and the destruction of the evidence
thereafter: at [64] and [65].
(6) The second appellant’s claim that he participated out of fear of the first
appellant, was rejected. The defence of duress under s 94 of the Penal Code was
not raised. In any event, such a defence was inapplicable to an offence of murder.
Even if the defence were applicable, it would not have succeeded on the facts.
The alleged threats were neither imminent, persistent nor extreme, nor was
there an apprehension of instant death. Furthermore, it was highly implausible
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that the alleged threats would have rendered the second appellant unable to
think rationally or act voluntarily: at [66].
(7) As for the first appellant’s contention that the injury he had caused was
accidental, the trial judge had made a finding to the contrary and the appellant
court would not disturb it as it was not shown to be against the weight of the
evidence: at [70].
(8) The first appellant’s contention that he genuinely thought that the
deceased was already dead when he disposed of her body was also rejected. First,
it was clear that both appellants had the intention to kill the deceased at all
material times. Second, that intention to kill was in fact executed. There was no
doubt that the appellants did all those acts which resulted in death. It could not
be said that they could escape the penalties of the law because they were under a
misapprehension at one stage and thought that their guilty purpose had been
achieved before in fact it was achieved. Finally, the injuries inflicted on the
deceased alone would have caused death, although death would have occurred
more slowly over a prolonged period of time. Drowning was merely an
additional, and not an intervening, cause of death: at [83], [84] and [86].
Case(s) referred to
Asogan Ramesh s/o Ramachandren v PP [1997] 3 SLR(R) 201; [1998] 1 SLR 286
(refd)
Barendra Kumar Ghosh v Emperor AIR 1925 PC 1 (folld)
Bashir v State of Allahabad AIR 1953 All 668 (refd)
Bharwad Mepa Dana v State of Bombay [1960] Cri LJ 424 (refd)
Ismail bin Hussin v PP [1953] MLJ 48 (folld)
Kaliappa Goundan v Emperor AIR 1933 Mad 798 (folld)
King-Emperor v Nehal Mahto (1939) 18 Pat 485 (folld)
Krishna Govind Patil v State of Maharashtra [1963] 2 Cri LJ 351 (folld)
Lingaraj Das v Emperor AIR 1945 Pat 470 (folld)
Mahbub Shah v King-Emperor AIR 1945 PC 118 (folld)
Namasiyiam v PP [1987] 2 MLJ 336 (folld)
Neoh Bean Chye v PP [1974–1976] SLR(R) 164; [1972–1974] SLR 213 (folld)
Ng Soo Hin v PP [1993] 3 SLR(R) 703; [1994] 1 SLR 105 (refd)
Nga Aung Thein AIR 1955 Ran 89 (FB) 90 (refd)
Om Prakash v State AIR 1956 All 241 (refd)
PP v Gerardine Andrew [1998] 3 SLR(R) 421; [1998] 3 SLR 736 (folld)
PP v Hla Win [1995] 2 SLR(R) 104; [1995] 2 SLR 424 (refd)
Palani Goundan v Emperor (1919) 42 Mad 547 (FB) (distd)
Queen-Empress v Khandu Valad Bhavani (1890) 15 Bom 194 (distd)
R v Chiswibo (1961) SR FC 714 (not folld)
R v Church [1966] 1 QB 59 (refd)
R v Smith [1959] 2 QB 623 (refd)
R v Vincent Banka [1936] MLJ 53 (not folld)
Rajwant Singh v State of Kerala AIR 1966 SC 1874 (refd)
Thavamani, Re AIR 1943 Mad 571 (folld)
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[1999] 1 SLR(R)
Shaiful Edham bin Adam v PP
445
Thabo Meli v R [1954] 1 WLR 228; [1954] 1 All ER 373 (folld)
Too Yin Sheong v PP [1998] 3 SLR(R) 994; [1999] 1 SLR 682 (folld)
Wong Mimi v PP [1971–1973] SLR(R) 412; [1972–1974] SLR 73 (folld)
Wong Yoke Wah v PP [1995] 3 SLR(R) 776; [1996] 1 SLR 246 (refd)
Legislation referred to
Penal Code (Cap 224, 1985 Rev Ed) ss 34, 302
Penal Code (India)
James Bahadur Masih (James Masih & Co) and S Narayanaswamy (Nara &
Associates) for the first appellant;
Peter Fernando (Leo Fernando) and Surian Sidambaram (Surian & Partners) for the
second appellant;
Francis Tseng, Han Ming Kuang and Jeanni Eng (Deputy Public Prosecutors) for the
respondent.
[Editorial Note: This was an appeal from the decision of the High Court in [1998]
SGHC 364.]
19 February 1999
Yong Pung How CJ (delivering the grounds of judgment of the court):
1
The appellants were jointly tried in the High Court on the following
charge:
That you
1
Shaiful Edham bin Adam
2
Norishyam s/o Mohamed Ali,
sometime between 10pm on 11 January 1998 and 5.19pm on
13 January 1998, in Singapore, in furtherance of the common intention
of you both, did commit murder by causing the death of one Iordanka
Apostolova Apostolova, female aged 26 years, and you have thereby
committed an offence punishable under s 302 read with s 34 of the
Penal Code (Cap 224).
Both appellants were convicted and sentenced to death. They appealed
against their conviction and sentence. At the conclusion of the hearing we
dismissed the appeal and now give our reasons. We begin with the
background facts to the case.
The background facts
2
The deceased, one Iordanka Apostolova Apostolova, was a Bulgarian
national who was in Singapore on a student pass at the time of her demise.
She was also known as Dani, Dany or Danny. She became acquainted with
the first appellant in July or August 1997 when she was a client of
commodity brokers Moldavite Consultants Pte Ltd (“Moldavite”) where the
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first appellant was a trade director. The deceased subsequently became close
friends with the first appellant and his wife Hezlinda bte Abdul Rahman
(“Hezlinda”), who is also known as Linda. They went on social outings,
shared accommodation and engaged in some business activities together.
3
In November 1997 the deceased and the first appellant pooled their
resources and bought a used Toyota Celica motor car (licence plate no
SBG800Y) (“the car”) for $100,000. $44,600 of the purchase price was paid
out of the deceased’s bank account and the balance was raised from a
finance company. The purchase and the loan were in the name of the first
appellant. They intended to re-sell the car for a profit but ran into
difficulties when they could not find a buyer. Friction developed between
them when the deceased became increasingly concerned over the losses she
was incurring as the Singapore dollar was falling in value against the
American dollar. She had planned to make a business trip to Bulgaria and
needed to use American currency for that trip.
4
Sometime in December 1997, the deceased and the first appellant
decided to rent an apartment together upon the expiry of the lease of the
Pasir Ris flat which the deceased had been living in. On 8 January 1998 the
deceased, the first appellant and his wife signed a lease for an apartment,
unit #04-10 in Park Court, Lorong 101 Changi Road (“the Park Court
apartment”). The lease was taken in Hezlinda’s name. At about 6.30pm on
11 January 1998 the deceased, the first appellant, his wife and infant
daughter left the Park Court apartment and went to the Depot Road flat
where the first appellant and his family had been staying previously. This
flat belonged to one Kevin Walter Hector, the first appellant’s senior officer
at Moldavite. They were going to move some of the belongings of the first
appellant and his family out of the flat and bring them to the Park Court
apartment. The deceased had never resided at the Depot Road flat and was
there to help with the packing. After they arrived at the flat, the second
appellant joined them.
The agreed facts
5
The Prosecution and the Defence produced a statement of agreed
facts. It was agreed that the injuries to the deceased were inflicted between
12.00am on 12 January 1998 and 5.19pm on 13 January 1998 at the Depot
Road flat and that the deceased’s body was thrown into a canal at Tanah
Merah Ferry Road sometime past 12.00am on 13 January 1998. The lastmentioned time was at odds with the pathologist’s assessment of the time of
death.
The pathologist’s findings
6
Forensic pathologist Prof Chao Tzee Cheng (“Prof Chao”) performed
the autopsy on the deceased’s body and put up an autopsy report. He
certified the cause of death as “multiple incised wounds on neck and
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drowning” and estimated the time of death as at least 24 hours before the
body was examined on 13 January 1998 at 8.30pm.
7
Prof Chao listed the external injuries found on the deceased’s body as
follows:
1
Shallow stab wound 1cm on the left side of the sternal border at
fourth intercostal space 6cm below the left nipple. It did not penetrate
into chest cavity.
2
Shallow stab wound 1cm on the left side of abdomen 2cm below
the costal margin. Non-penetrating.
3
Two shallow stab wounds 1cm on the right hip.
4
Shallow stab wound 1cm on right forearm below the elbow.
5
Cut 1.5cm on the left thumb.
6
Small abrasions at outer angle of both eyes.
7
A group of small abrasions on the chin more on the left side.
8
Small bruise at left cubital fossa.
9
Incised wound 10cm long at the centre of the neck at thyroid
region with sharp edges but shallow only cutting the skin. The deeper
structures of the neck were not involved.
10
Incised wound on the right side of jaw 10cm long. The angle of
the mandible was cut but the rest of the wound only involved the skin.
No large blood vessel was cut.
11
Incised wound 7cm long on the left side of neck below jaw.
Superficial cutting the skin only.
12
Incised wound at the nape of the neck 5cm long. The wound was
2cm deep and had cut the spinal process of the third cervical vertebra
and the skin. The spinal cord was not involved. No large blood vessel
was involved.
Each of the pleural cavities was found to contain about 300ml of slightly
bloodstained fluid. The trachea and bronchi also contained a small amount
of slightly bloodstained fluid.
8
Prof Chao explained that the injuries numbered 1 to 4 were shallow
wounds which could have been caused by the tip of a knife. A sharp-edged
weapon could have caused the cut in injury 5. The injuries listed 6 and 7
could have been caused by a blunt object like a fist or by striking against a
rough surface. Injury 8 may have resulted from gripping by the fingers.
9
The next four injuries were more significant. Injury 9 – the 10cm
incised wound in the centre of the neck at the thyroid region – penetrated
the skin but did not cut the underlying structures of the neck (ie the muscles
and blood vessels). This was consistent with a slicing action with a small
sharp knife like a kitchen knife. Prof Chao discounted the possibility that
this injury was caused during a violent struggle because in a violent struggle
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when the deceased was moving her neck the cut would not be so even and
superficial, the deeper structures would be involved. As the wound was
shallow there was no rapid loss of blood but there was slow oozing of blood
which would eventually have led to death.
10 Injury 10 – the 10cm incised wound on the right side of the jaw which
cut the jawbone – could have been inflicted by a heavy weapon like a
chopper or a parang. This wound also did not cut any major blood vessel
and the resultant loss of blood would have been gradual rather than rapid.
11 Injury 11 – the 7cm incised wound on the left side of the neck below
the jaw – was a large wound but, like injuries 9 and 10, it was also superficial
and did not involve the blood vessels. It could have been caused by an
instrument with a sharp edge like a chopper or a knife.
12 Injury 12 – the 5cm incised wound at the nape of the neck – cut into
the third cervical vertebra but did not penetrate to the blood vessels and
spinal cord. A heavy weapon like a chopper or a parang could have caused
the injury.
13 Injuries 1 to 8 were not life-threatening. Injuries 9 to 12, the four
incised wounds on the neck, were different. Although no major blood
vessels were cut, the large surfaces of the wounds led to slow oozing of
blood. The deceased would have bled slowly for hours, lapsed into
unconsciousness and appeared to be dead before dying, and the whole
process would have taken hours. In fact she could have bled for 24 hours
before dying. The fluid discovered in her chest cavity showed that she was
alive when she was submerged in water and that she had inhaled water into
her lungs which seeped out into her chest cavity.
14 Prof Chao was firm that the wounds on the neck alone could have
caused death from the loss of blood, albeit slowly. The deceased would have
died without being placed in water because she was already on the brink of
death. The pathologist added that death could have resulted from each of
the injuries 9 to 12, or from all of them collectively.
The Prosecution case
The first appellant’s statements
15 After the first appellant was arrested on 15 January 1998, he made
several statements to the police. The first (P311 and P311T) was recorded
by Senior Staff Sergeant Zainal Abidin bin Ismail (“SSSgt Zainal”) on the
night of 16 January and the morning of 17 January 1998. In this statement,
the first appellant purported to describe the events of 11 and
12 January 1998 from his arrival (together with the deceased and his family)
at the Depot Road flat to the infliction of the injuries on the deceased. This
was not a complete account as the second appellant’s role was entirely
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omitted. The first appellant subsequently gave a more complete account in
his investigation statements (P315A and P315B) to the investigating officer.
16 The second (P313 and P313T) was a cautioned statement recorded on
17 January 1998. In this statement, the first appellant stated that the
deceased was his friend, that his actions were not premeditated and that he
had no intention to commit murder.
17 The first appellant made further statements to the investigating officer
Inspector Richard Lim Beng Gee (“Insp Lim”) setting out what he said were
the true events: P315A and P315B. The portions of these statements which
related the circumstances leading to the assault on the deceased were
recorded on 24 January and 3 February 1998 respectively. In P315A the first
appellant said (we set out these rather lengthy statements in some detail as
an understanding of the events in question is essential to a consideration of
the defence case):
2
At about 6.30pm, the deceased, Linda [the first appellant’s wife]
and I left my newly rented apartment at No 9 Lorong 101 Changi Road,
#04-10 Park Court. My 11-month-old daughter Nur Esteela Marthia
Bte Shaiful Edham was with us as well. All of us left in a taxi.
3
At about 7pm on the same day, we arrived at Blk 107 Depot
Road #04-659. On entering the flat, Linda and the deceased switched
on the television. The television set was placed inside the front room
where Linda, my daughter and I were occupying since June 1997.
While they were watching the television programme, I went through
my clothing to choose my working cloth [sic] for the following day. I
was supposed to report back for work on the following day. I instructed
my wife to pack her clothes as well. She did as told. While I was in the
kitchen attending to some other things, the deceased called me to
watch the news about the exchange rate in particular the US dollars.
4
I went into my room and saw the exchange rate telecast on the
TV screen. I noticed the rate hit a new high of 1.7996. The deceased
was very upset and agitated. She started to question me. She asked me
what we were suppose [sic] to do. She said that she was right that the
US dollars was going up to 1.8. I wish to say that every time when the
US dollars hit new high, she would always get hysterical. She would
start to blast me with stupid questions. Most of the time, I would have
to pacify her. Thus, when I told her not to worry, she angrily
responded why she should not be worried and added that she was
losing more every day from the exchange rate. She said that the
exchange rate was killing her. I also wish to say that every time when
this happened, I did not like it to happen in front of my wife Linda. I
then brought her to the kitchen as I intended to talk to her there.
5
At the kitchen, the deceased asked me what I was going to do
and my counter measure [sic]. I replied to her that I will get in touch
with the car dealer and I would tell the car dealer to speed up the whole
process. When she heard what I had said, she became angry. She said
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the car dealer cannot be trusted. She added that they were going to
make use of me for one month and then we were going to end up with
nothing but problems. I told her that we had agreed and also signed an
agreement in letting them to settle [sic] in one month. She then asked
me what was going to happen if by that one month, the exchange [rate]
hit 2.0. On hearing that, I became dumbfounded. I then told her to give
me five minutes for me to try and get in touch with the car dealer and
the buyer.
6
I then left the flat for the ground floor as I intended to contact
the car dealer, who is known to me as Michael and the buyer who is
known to me as Philip Koh. The reason for me to contact the car dealer
and the buyer downstairs was that I did not want to do [so] in the
presence of the deceased as she might jeopardized [sic] the whole deal.
I contacted them by making pager calls to them. While waiting for
them to return calls to me, I was thinking of the ways to talk to the
deceased to stay calm … . However, I was unable to think of an answer.
When I received no call from Michael or Philip Koh, I proceeded to the
nearby 7-eleven store where I bought a packet of cigarettes and a can of
Guinness Stout. Thereafter, I drank the stout outside the 7-eleven
store. I was still waiting for Michael and Philip Koh to return call to
me. While my mind was thinking of how to give the answer to the
deceased, I was also thinking of the removal of my things from the
Depot Road flat to my newly [rented] apartment at Changi Road. By
then it was almost 8pm.
7
At about 8.15pm or so, I returned to the flat. My wife Linda and
the deceased were talking about the packing of those stuff and
furniture which were to be moved to my new apartment. I noticed both
of them were jovial. On seeing me, the deceased came to me in the
living room area, and asked me how. I told her that Michael and Philip
Koh had not return [sic] call to me. I also told her to wait for another
few more minutes. When she wanted to talk about the same topic
again, I told her to give me some time to think about the counter
measure. At one stage, I went into my room to talk to my wife about
the packing of the stuff. The deceased followed behind me. At one
point, I wanted to be by myself. I then proceeded to the kitchen and
drank my stout. I had two more cans of Guinness Stout kept in the
refrigerator. I drank one of the cans. I was there to think of what to do
about the current situation.
8
Here I wish to add that sometime in the middle of November
1997, the deceased and I decided to purchase a Toyota Celica car which
was a rare collectible car and to sell it with a profit. The said car,
registration no SBG800Y, belonged to my second boss Mr Eric Tan.
The latter actually wanted to sell it between … $108,000 and $112,000.
However, when I informed Mr Eric Tan that I was interested in buying
the car, he agreed to sell it to me at $100,000 after negotiation. Thus,
when I brought this to the notice of the deceased, she agreed to my
suggestion to buy it as it was a good bargain. Subsequently, at the end
of November 1997, the deceased and I bought the said Celica car from
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Shaiful Edham bin Adam v PP
Mr Eric Tan at … $100,000. When we bought the car, the deceased
made a transfer of $44,600 from her Citibank account to my Citibank
account to make the initial payment for the car. The deceased also
withdrew another $4,000 from her Citibank account to pay up the
insurance for the car. … the initial down payment for the car was
$40,000. The amount of $4,600 was actually for the transfer fee
[amounting] to $1,200, the first monthly instalment of $1,200 for the
hire purchase, agent fee of $200, and other miscellaneous fees. We took
up a loan of $60,000, being the balance of the payment of the car, from
Focal Finance Ltd. I wish to say that the deceased had trusted me and
allowed the ownership of the car to be registered under my name.
Some of my office colleagues and her friends were aware of the
transaction.
The first appellant continued in P315B as follows:
9
While I was drinking the stout in the kitchen, the deceased came
to me. We had some conversation. The deceased asked me what was
my counter measure. I told her to give [me] some time. Short while
[sic], I went into my room as I decided to go through my things. I flick
[sic] through some of my old photographs which were taken during
my national service days. By chance, I saw Shot’s photograph among
those photographs. Shot [the second appellant] was my buddy during
my NS days. I knew Shot’s real name as Norishyam. It then occurred to
me that I have not been in contact with my friends particularly Shot.
Shortly [sic], I decided to go downstairs to buy a packet of cigarettes for
myself. I actually wanted to get out of the house for a short while to buy
time to think what I was going to tell the deceased about the
transaction of the selling of the Toyota Celica car. I then told my wife
Linda and the deceased that I was going downstairs to buy myself a
packet of cigarettes.
10
On my arrival at the coffeeshop downstairs, I had a cup of tea. I
sat there and started to think what I was going to do. I was unable to
come up with a solution. About 10 to 15 minutes later, I left the
coffeeshop and walked around the vicinity. I came across a 7-eleven
store located nearby. I went into the store but did not buy anything. I
was actually trying to buy time and not to buy thing [sic]. When I came
out of the store, I made a telephone call to my wife Linda to my
handphone which I had left in the flat when I came downstairs earlier
on. I asked Linda if the deceased had cool down [sic]. Linda told me
that the deceased had told here that she, referring to the deceased, had
said that friend is friend and business is business. Linda added that the
deceased also said that she, referring to the deceased, will take counter
measure [sic] on the following day if I cannot think of a solution. Linda
did not elaborate further as to what counter measure the deceased was
referring to. Linda then asked me why I was taking such a long time
downstairs. I replied that I wanted to make telephone calls to the car
dealer. I then asked Linda if the car dealer had called and she replied in
the negative. Thereafter I hung up.
451
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11
I remained at the public telephone booth for a short while and
suddenly the thought came to mind that I wanted to call Shot as I had
not been in contact with him for a long time after seeing his
photograph earlier. I made a telephone call to Shot at his house
telephone from the public telephone booth. I chatted with Shot. In the
course of the conversation, I came to know from Shot that he was then
employed as a lorry driver. Having learnt that, the thought of seeking
Shot’s assistance in helping me in the removing of my furniture from
Depot Road flat to my newly rented apartment at Park Court came to
my mind. I then asked Shot if he had a lorry with him as I wanted to
ask him to use his lorry for the removal of the furniture … . Shot told
me that he did not drive his company’s lorry home. As the
conversation continued, Shot asked me where I was calling from. I told
him that I was at Depot Road and was packing my things to be
removed to my newly rented apartment at Park Court. Shot told me
that he was free on that night. I then invited him to come over to my
place and he agreed. I then gave the address of Depot Road to Shot.
Shortly [sic] I returned to the flat. I recall by then it was around 10pm.
12
On my return to the flat, I told my wife Linda that I had called
Shot and that the latter would be coming to visit us shortly. Shot is
known to Linda as ‘Shyam’. While at the kitchen, the deceased asked
me if the car dealer had called. I told her that the car dealer had yet to
return my call. The deceased kept on saying that I would not get any
money from the car dealer. She added that the car dealer cannot be
trusted. I then excused myself and went into the bedroom as I wanted
to ask Linda something. As I went into the bedroom, the deceased
followed. I told her that I wished to talk to Linda privately. She then left
the room for the kitchen with my daughter.
13
I asked my wife Linda what counter measure she was talking
about earlier. Linda replied that the deceased was saying that as a sort
of verbal threat. Linda then told me to talk to the deceased amicably.
Linda then advised me to tell the deceased to wait for one month as
agreed in the agreement signed between the new buyer and myself on
9 January 1998. Here I wish to add that sometime in early
December 1997, the deceased had spurred [sic] me to sell off the
Toyota Celica car for the purpose of getting back the money to venture
a business in Bulgaria. In this respect, I had, through the car dealer
Michael, signed an agreement with the new buyer stating that the
Toyota Celica car would be sold in a month [sic] time. For that matter,
I had received a sum of $1,000 from the buyer as a deposit.
14
After talking to Linda, I proceeded to the kitchen where the
deceased was. Linda came along and took my daughter from the
deceased. Linda then proceeded back to the bedroom. I then asked the
deceased what counter measure she was referring to. She told me not to
bother … so much and went on to ask me what I was going to do about
the whole problem. I told her that there was an agreement signed on
the sale of the car and that there was nothing I could do then. She kept
repeating that she was losing a lot of money from the current exchange
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Shaiful Edham bin Adam v PP
rate in US dollars and if we were to drag on with the sale of the car, it
may affect our plan to venture our business in Bulgaria as planned. I
wish to say that what the deceased meant was if we were to leave for
Bulgaria early, we could have make [sic] cheaper purchases in line with
the exchange rate in US dollars. I kept telling her that … the matter was
… beyond my control. In spite of my explanation, she kept on
debuting [sic] the whole matter. The deceased was rather tense and I
kept trying to calm her down. I then excused myself that I was going
downstairs to receive my friend. Here I wish to add that earlier, when I
returned to the flat, I had also told the deceased that my friend,
referring to Shot, was coming to visit me. Thereafter, I left the flat.
15
When I arrived at the ground floor, I proceeded to the same
coffeeshop where I had a cup of tea and at the same time waited for
Shot. In the midst of my drink, I saw Shot alighted [sic] from a taxi. I
went up to Shot. I chatted with Shot in front of the coffeeshop. In the
midst of the conversation, I decided to buy a can of stout from the 7eleven store. Shot then followed me to the 7-eleven store where I
bought myself a can of Guinness Stout and a small [packet] of
Marlboro cigarettes for Shot. I paid for the items. About 5 to 10
minutes thereafter, Shot followed me to the flat upstairs.
16
On arrival at the flat, I introduced Shot to the deceased.
Thereafter, I asked Shot if he was going to work on the following day as
I wanted him to help me to remove my furniture to my newly rented
apartment. Shot told me that he would take a day [sic] leave.
Thereafter, I pointed to Shot the furniture that I intended to remove
and also those unwanted thing [sic] that I did not want to bring along.
17
Shortly, Shot assisted me to carry my washing machine from the
kitchen to the living room. I actually wanted to bring it to the living
room in preparation for the removal. Thereafter, I dismantled a dining
table which was placed in the kitchen area. Shot and the deceased
assisted me. There were four chairs at the kitchen and I decided to
throw them away. I told Shot that I intended to discard the four chairs
along the third floor corridor. Both Shot and I then carried the four
chairs to the third floor corridor. There was a big paper card box which
contained some kitchen utensils which Linda and I decided not to
bring … to the apartment at Park Court. Shot and I then carried the
said box with the utensils to the ground floor where it was discarded …
. Shot and I then returned to the flat. Shot and I then took a rest as we
were too tired. Shot was sitting in the living room while I was in the
kitchen. The deceased was with my wife Linda in the bedroom. By then
it was around 10.45pm.
18
Shortly, the deceased and Linda came to me at the kitchen area.
Again, the deceased started to talk to me about the same problem.
Linda was carrying my daughter. She said that I was not doing
anything about it. Our conversation started to grow more tensed. At
one point, I did not want Shot to listen to what transpired between the
deceased and I. I then told Shot to excuse us. Shot told me that he
might as well go downstairs for a while. Shot then left.
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19
While Linda was talking to the deceased, I pulled the deceased’s
shoulder aside and at the same time told Linda to go into the bedroom
and added that I wanted to talk to the deceased alone. Linda did as told.
As soon as Linda entered … the bedroom, I asked the deceased why
she had to talk loudly to me in front of my friend. The deceased replied
that she did not care whoever was around me. The deceased went [on]
to say that all she cared about was the car sales transaction. She added
that she had told Linda about the counter measure. I then asked her
what her counter measure was all about. She replied that she will be
going to a money changer on the following day with a guy as she
wanted the said guy to find out if the money was counterfeit and
thereafter she would bring the said guy to see me. I took it as a threat as
she used to said [sic] this previously whenever she wanted to confront
me on certain matter [sic]. I asked who was the guy she was referring
to. She replied that I need not have to know [sic] who he was. I then
asked her why she must resort to this sort of threat when I had treated
her so nicely. Following that, I told her that while waiting for the final
transaction of the sales [sic] of the Toyota Celica car, I had taken care
about [sic] her accommodation and her welfare. In the midst of the
conversation, she got agitated and pulled the table cloth which was
placed on top of an ironing board happened to stand beside us [sic]. As
she did that, those things such as an ash tray, my wallet, packet of
Marlboro cigarettes and some other things, which were placed on top
of the ironing board earlier by me, dropped and fell onto the kitchen
floor. The ash tray broke on impact. Here I wish to add that, earlier,
when I dismantled the dining table, I had put the table cloth on top of
the ironing board and placed those things, which I had mentioned, on
top of it.
20
On seeing this, I scolded the deceased why she had done that. I
also told her that the flat did not belong to me. She then told me not to
underestimate her capability. She then started to talk again about her
connection with her foreign friends. The situation became more
tensed. I then decided to go into the bedroom in order to avoid her. I
told the deceased nicely that I wanted to excuse myself for a while. I
then went into my bedroom where Linda and my daughter were. I took
the can of unfinished Guinness Stout along.
21
A few seconds later, the deceased came into the bedroom with
my handphone in her hand, and asked me for the PIN to my
handphone. I asked if she was going to call that guy whom she had
mentioned earlier. She replied that I did not have to worry. I told her
that my handphone battery was low. She replied to me not to lie to her.
She then walked out towards the kitchen. I followed behind and at the
kitchen area, I asked her for my handphone and she handed it to me.
22
We continued to exchange tensed [sic] words. I told her to lower
down her voice as the neighbour [sic] might hear our loud
conversation. The front door was then opened when Shot left the flat.
She replied that she did not care at all. In the midst of this, I walked
away from her as I intended to go to the living room area. As I was
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Shaiful Edham bin Adam v PP
doing so, I brushed her aside with my shoulder and this caused her to
fall backward towards the refrigerator behind her. She became angry
and started to abuse me with vulgarity. I was shock [sic] to hear what
she said. I was still in the kitchen area. She then asked me what I
wanted to do and added if I wanted to kill her. I was shock [sic] to hear
that. She said that if anything happened to her, her friends would look
for me and my family members. The situation became more tensed
[sic] than earlier. I then told her that if I wanted to kill her, I could
break her neck with two fingers as I was a trained sniper. She then
challenged me by telling me to do it.
23
Suddenly, the deceased picked up two knives from the opened
kitchen cabinet drawer and placed them on top of the cabinet. When
she did that, she asked me to choose one of them to kill her. Here I
wish to add that earlier, I had used the masking tapes and a scissors
[sic], which was kept inside the said cabinet drawer, to tape the box
which contained the utensils which I had mentioned earlier. I must
have forgotten to close the cabinet drawer when I made use of the
masking tapes. I kept calming her down in spite of her challenge.
24
As I was going to walk away from the deceased to go into the
bedroom, she suddenly grabbed my right arm and asked me where I
was going. As she did that, I became a little angry and asked her to let
me go. I then pushed her away from me. As a result my right arm was
scratched by her fingernails. When I pushed her, she fell backward
against the kitchen cabinet behind her. I then noticed the two knives,
which were … placed on top of the kitchen cabinet by the deceased
earlier, were very near to her left hand. On seeing that, I had the
thought to push away the knives from her. As I was in the process of
pushing the knives away from the deceased with my left hand, she
grabbed my left hand. Somehow or rather [sic], I managed to push the
knives a little further away on the same cabinet. The deceased kept
holding on my left hand and I told her to stop. We struggled. In the
midst of this, she used her knee to knock my left thigh. Suddenly she
got hold of one of the two knives which I had pushed away from her.
She held the knife in her left hand. My instant reaction was to take the
knife away from the deceased. I used my right hand to go behind her
body. By doing so, I had gone behind her body. She then pressed her
body backward against me while I held on to her and with my right
hand, I tried to take away the knife from her left hand. As I was doing
that, I felt my right thumb being cut. I felt pain and scolded her with
some vulgarity. When I let go my right hand, I saw blood on my right
thumb. She then turned herself and faced me with the knife in her left
hand. I kicked her at the waist region. As a result, the deceased fell
backward towards the kitchen cabinet behind her. All I wanted was to
take away the knife from her hand. I somehow managed to pin her on
the floor. She was pinned onto the floor on her left side. However, I
cannot [sic] reach the knife. My right leg was over her right leg. I then
lifted my right hand to the kitchen cabinet behind me as I intended to
grab hold of the other knife which was then placed on top of the
kitchen cabinet. There was struggle [sic] and she managed to sit up. By
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then her back was facing me. I managed to grab hold of the other knife
with my right hand. She tried to use her right hand to pull my right
hand and in the midst of it, her right hand was cut. I was still holding
on her left hand with my left hand. With the knife on my right hand, I
placed it in front of her throat and told her that if I wanted to kill her I
could do it then and there. She was angry and panting. I calmed her
down and told her that I wanted to nurse her right hand which was
then bleeding. She replied okay and added that we could talk things
over. I noticed the knife which the deceased was holding was being
placed on the floor and her left hand was on top of it. I then told her to
let go her left and I would let go the knife on my hand.
25
When I noticed the deceased letting go her left hand from the
knife, I thought everything was going to be okay. I then bring my right
hand away from her as I intended to place the knife from my right
hand onto the kitchen cabinet. Suddenly, her left [sic] went for the
knife which she had left on the floor. I immediately pushed my body
against her back trying to pin her down again. Whilst I was doing so, my
right hand, which was still holding on the other knife, went in front of
her neck. In the midst of the struggle, her face was being pressed on the
floor. In the process, I cut her neck. She screamed and I got [sic]
panicked. I quickly threw the knife away from my right hand. Just then,
I noticed that the front door to the flat was opened. I let go of her. I
went into the bedroom and told Linda that I had stabbed the deceased.
Linda was shock [sic] to hear what I said and kept asking me if the
deceased was dead. She wanted to go to the kitchen to see the deceased.
I stopped Linda and asked her to look for Shot as all of a sudden, I
forgot where Shot was. Linda then left the flat with my daughter to look
for Shot.
26
When Linda left the flat, I proceeded to the kitchen to see how
the deceased was. She was sitting on the kitchen floor with her face
facing the direction of the kitchen window. Her back was facing the
living room. I saw the deceased was holding the right side of her neck
with both her hands. I went up to her and hugged her from her back. I
said sorry to her and added that I did not mean to hurt her. On hearing
what I said, she said she too was sorry that this had happened. I told
her that I was going to call for an ambulance. I then showed her how to
stop her neck from bleeding further. I then went into the living [room]
where I retrieved two pillows and brought them to the deceased and
made her lie on the kitchen floor with her head resting on the pillows. I
took a piece of cloth from the kitchen cabinet and placed it on the
deceased’s neck and asked her to press it against her wound. I also told
her to straighten her legs so that the wound would not bleed that fast.
She did as told. As the deceased was lying down, I again told her that I
would be calling for an ambulance. She told me not to call for the
ambulance and added that if the ambulance was to be called, I would
get into trouble. I proceeded to check her wound on her neck. I saw a
deep wound with some bleeding. I told her that the wound was rather
small as I did not want her to panic. To calm her down, I told her that
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when I get the money from the sales [sic] of the Toyota Celica car, I
would send her to a plastic surgeon and she would be beautiful again.
27
Shortly, the deceased told me that she wanted to sit up. While I
was assisting her to sit up, she stepped her right foot on my right foot.
She then went on her left side and tried to grab the knife which was left
by her on the kitchen floor earlier. On seeing this, I quickly stretched
myself and retrieve the knife, which I had earlier threw [sic] away, from
the side of the dining table a little further from where the deceased and
I were. I managed to grab hold of the knife and at the same time, she
managed to grab hold of the other knife. A struggle ensued between us.
In the course of me trying to subdue her hand, which was holding the
knife, I accidentally stabbed her back with my knife. She began to curse
at me and said that she was going to kill me. The struggle continued. In
the course of this, I stabbed her once on her stomach region. Just then,
Linda and Shot came into the flat.
28
On seeing Shot, I shouted at him to come to assist me. Shot came
to the kitchen and held on to the deceased by arm locking the
deceased’s neck. The deceased [was] facing Shot’s chest region. On
seeing [sic], I told Shot not to press the deceased’s neck as she had a
wound on her neck. Shot let go of the deceased’s neck and held on to
her arms. I then told the deceased [why] she wanted to try me. On
hearing what I said, the deceased replied okay and that we could talk
things over. I made her to promise that she would stop being
rebellious. She agreed. Shot and I then let go our hands on the
deceased. I then took the knife away from the deceased and together
with the knife I was holding, I placed them on the stove beside the
kitchen cabinet. I was angry and told the deceased that she had forced
me to do that. The deceased told me to ask Shot to leave adding that
she wanted to talk to me alone. I told Shot to leave us which he did.
Shot then went into the bedroom.
29
I lit a cigarette and had a sip of stout from the can. I told the
deceased to hold on for a while. I went into the bedroom as I intended
to tell Linda what had happened. I told Linda to stay in the bedroom
and to take care of our daughter. I told Shot to watch the deceased and
to ensure that she did not do anything unnecessary again. Shot then
stood at the living room and watched the deceased from there. I
remained in the bedroom and started to think what was going to
happen next. I actually had the thought that the police might come to
the flat any time as what had happened earlier might have made the
neighbour [sic] to call for them.
30
Shortly, I went out to the living room. Shot asked me what
actually had happened. As I was in the midst of telling Shot what had
happened, the deceased called out to me. I went up to the deceased. She
asked for a drink. I took a plastic bottle of plain water and poured it
over her mouth. She complained of abdominal pain. I asked her for
permission for me to look at her abdomen and she had no objection. I
lifted her shirt and noticed some blood stains on the stomach region. I
then took a piece of cloth from the living room and proceeded to the
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wash basin where I wet it. Thereafter, I placed the cloth on the wound
at her stomach region. I again suggested to her that I wanted to call for
an ambulance. She told me not to do that. She told me that she was
going to die anyway. I told her that she will die if I did not call for an
ambulance. I checked her pulses [sic] and assured her that she was not
going to die. I then retrieved my handphone, which was then placed on
top of the kitchen cabinet, and pressed the number ‘995’ and handed it
to Shot and told him to call the ambulance on behalf of me [sic]. I wish
to say that I had pressed the number ‘995’ and did not press the ‘yes’
button, thus the line was not connected yet. Shot took the handphone
from me and hesitated for a while. On seeing this, the deceased told
Shot not to do it. The deceased then told Shot to leave us alone. … Shot
did as told and proceeded to the living room.
31
The deceased then told me that if the police were to come, she
will tell them that she was being attacked by Thai construction workers
and I must say the same thing to them. I told her that it sounded rather
stupid and added that the investigation will prove that I was the person
who had done that to her. I further told her that I will admit to the
police what had happened. There was other things being said between
us and the main thing was that she told me to finish her off as she could
not bear the pain. She asked me being a sniper, I should know the
[fastest] way to end a person’s life. I told her that I did not know how to
do that and I also could not do it. She kept telling me that she was in
pain. She asked me if I had kept any poison in the house saying that she
wanted to drink it to end her life. I then went to the bedroom and
asked Linda if there was any poison in the flat. Linda replied if I was
crazy and asked why I wanted the poison for. I told her the deceased
had wanted to drink it to end her life. On hearing that, Shot told me to
leave the deceased alone like that, she would die anyway. I told Shot
that we should not leave the deceased like that and … let her suffer.
32
I subsequently went to the deceased and told her that I could
[not] find any poison. She then asked me if I have any detergent in the
house adding that she wanted to drink. I proceeded to the wash basin
where I took a plastic bottle of Clorox and a plastic bottle of floor
detergent. Thereafter, I showed them to the deceased who told me to
mix them together and [give] it to her to drink … . I mixed the Clorox
and the detergent in a glass and asked her if she really wanted to do it.
At this point I was cautious. The deceased said that she wanted to drink
it by herself. Here I wish to say that I did not want the deceased to
drink the mixture of the two liquids by herself as I was afraid that she
would throw the liquid into my eyes. I told her that I would pour the
liquid into her mouth and she would swallow it. I also warned her not
to blow the liquid into my eyes. She told me that she would not do that
and added that all she wanted was to die. I then looked away from her
and poured the liquid into her mouth. As I did that, I asked her if she
had swallowed it. She murmured. I looked at her with the corner of my
eyes and saw her swallowed [sic] the liquid. Thereafter, I put the glass
away. I turned myself away from her. The deceased asked me for some
more. I took back the glass, which was still containing some of the
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mixture of the two liquid, and poured some more into her mouth. She
tried to swallow and in the midst of it, she coughed and vomited some
faeces. I could not stand the smell and sight of the vomit. I walked away
to the living room. I sat down on the sofa and continued to drink the
leftover stout from the can. Shot was then standing in between the
living room and the kitchen area.
33
A short while later, the deceased called out to me to sit beside
her. I went up to her and was shocked to see that she was still strong
and well alive. She asked me if it was painful to cut her throat and
added that she wanted me to do that to her if it was fast and painless. I
told her that I did not know and did not want to do that. She told me
that she would do it by herself. She then asked me for a bigger knife. I
remember that [sic] was a bigger knife in the same kitchen cabinet
drawer where the deceased had earlier taken out the two knives. I took
a chopper from the said drawer and showed it to her. She then
reminded that I had a parang in my room. I placed the chopper on top
of the kitchen cabinet and proceeded to my bedroom. I wish to say that
I had a parang which I had obtained from the army when I was doing
my national service. I then went into the bedroom where I retrieved the
said parang from my army bag and returned to the kitchen and showed
it to the deceased. I then asked how she was going to kill herself with
that parang. She said that she wanted me to do that for her. It was
actually a favour. I told her to give me some time as I wanted to be by
myself. I then went into the living room. I was with Shot at the time.
34
Shot suggested to me that we should just suffocate the deceased
by putting a pillow over her face. I asked Shot how we were going to do
that. Shot said that we would have to tie the deceased up and press the
pillow over her face. I told him that I could not do that. Shot then told
me that he would do that himself. I took some nylon strings from my
army bag and I went up to the deceased. I told her that if she wanted
me to cut her neck, I would have to tie her up. She agreed. I then tied
her legs and hands with the nylon strings. While I was tying the
deceased, I told her to hold on. I went into the living room where Shot
was and asked him if that was the right thing to do. I asked Shot what if
the deceased scream [sic]. Shot replied that when we suffocate the
deceased, she would not scream. Shot then told me that I was wasting
time and added that the police might come to the flat anytime if we
hesitate. I told Shot that I could not do it. In the midst of the situation,
Shot took a pillow from the sofa seat and proceeded to the kitchen and
pressed it over the deceased’s face. He did that alone.
35
While Shot was doing that, I heard the deceased shouting my
name. I could [not] stand the pleas and the sight of what Shot was
doing. I shrugged Shot off. He was quite angry at me for doing that. I
told Shot that I would do that by myself. My intention was to stop Shot
from suffocating the deceased. Shot left to [sic] the living room angrily.
The deceased then told me that she did not want to die in [sic] Shot’s
hand and that she wanted to die in [sic] my hand. She told [me] not to
make her suffer and added that she wanted me to just chop off her
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head. Again I wanted to buy time. I then went into the bedroom to sit
beside Linda. I had a short conversation with Linda.
36
Shortly after, Shot came into the room and sat beside me. Shot
told me that if I wanted to chop off the deceased’s head, I would have to
do it fast as the smell could be detected. I told Shot that it was not easy
to do that. Shot tried to calm me down. He told me that human flesh
was rubbery and if I wanted to chop off the deceased’s head, I had to it
with all my might. I was panic [sic] and told Shot that I could not do it.
At this point of time, the deceased called out to me. While I was on my
way to the kitchen, Shot told me not to waste time and to do it and
added that we could planned [sic] about the disposal of the deceased’s
body later on. At this point of time, my mind was confused.
Nonetheless, I proceeded to the kitchen where the deceased was.
37
When I sat beside the deceased, she asked me for a glass of water.
I then took the same plastic bottle of plain water which I had earlier
given to her. I held her head up and poured the water into her mouth.
After drinking the water, she told me to cut her head as she could not
bear the pain. I hesitated for a while. The deceased then told me to take
the chopper and to take a deep breath and chop her head. I took the
said chopper from the kitchen cabinet and held it in my right hand.
The deceased held on to my right hand [and] with her left hand, placed
the chopper on her neck. She then told me to [tell] Linda that she was
sorry and that after I kill her, I was to go far far away. She told me to
take a sip of her blood so that when she die, she would not find me. I
then did as told by rubbing my finger on some blood stains from her
hand and sucked it. Thereafter, she told me to do it that [sic] and then.
I had already placed the chopper on her neck by then. She kept on
telling me to do it. I told her that I was going to do it. Nonetheless, I
could not do it. I then placed the chopper on the kitchen floor and left
the deceased.
38
I proceeded to the living room where I lit a stick of cigarette.
Shot told me not to waster any more time but just do it. I told him why
didn’t he do it himself if it was easy for him. I smoke [sic] and kept
quiet. I then went into the bedroom where I told Linda that the
deceased had said sorry to her and that the deceased had wanted me to
cut her neck. Shortly after, the deceased called me again. I then went up
to the deceased. Shot was then standing in between the living room and
the kitchen area. The deceased again told me not to waste any more
time and added that I was to do it there and then. I asked Shot for a
towel as I could not bear to look at the deceased’s face. Shot handed me
a towel and I placed it over the deceased’s face. I lifted up the chopper
and brought it down near to the deceased’s neck several times but could
not bear to chop her neck. Shot kept on telling me to do it. By then he
was standing in the kitchen area beside me. I started to feel sorry and I
cried. At the same time I was rather angry at Shot for pestering me to
do that. In the midst of anger, I let go the chopper and told Shot to do it.
Shot, who was also angry with me, came up and picked up the said
chopper which I left on the kitchen floor. I went backward and looked at
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461
Shot. He lifted the chopper and took a deep breath. When I saw the
chopper was coming down onto the deceased’s neck, I turned away. I
heard some hacking sound. I heard the deceased blowing some short
breath. I turned to look at the deceased whom I thought was already
dead. A while later, I saw her chest was still moving. She was still alive.
By then Shot had already put down the chopper. I told Shot that the
deceased was still alive. Shot scolded something at the deceased and
kicked her once. As a result, the deceased moved to her right side.
Thereafter, Shot took the parang, which I left on top of the kitchen
cabinet, and took a deep breath again and brought it down at the
deceased’s neck. As Shot did that, I looked down to avoid seeing the act.
A few seconds later, Shot told me that the deceased was already dead. I
looked at the deceased for a while and noticed that he chest was not
moving anymore. She was motionless. …
[emphasis added]
18 The first appellant subsequently made three more statements to Insp
Lim on 10, 11 and 20 February 1998: P315C, P315D and P315E
respectively. In P315C, the first appellant narrated how he and the second
appellant proceeded to clean up the Depot Road flat and the steps they took
to dispose of the deceased’s body and other evidence such as bloodstained
clothing. In particular, the first appellant stated that the second appellant
had withdrawn about $250 from his POSB account in order to pay the
rental fee for a lorry (which was needed to dispose of the body and other
items) and other expenses. According to the first appellant, the second
appellant had offered to withdraw the money from his bank account. The
first appellant implied that this was a kind of “consideration” for a loan of
$7,000 which he was to make to the second appellant for the latter’s
wedding expenses when he received the proceeds from the sale of the car.
As will be seen later, the figure of $7,000 is not without significance.
Thereafter, both appellants rented a lorry for a day and drove around
looking for a big paper box into which they could place the deceased’s body.
Having found a suitable one in an industrial park in the vicinity of Depot
Road, they returned to the Depot Road flat and placed the body in the box.
They then carried the washing machine, which had been placed in the living
room, down to the lorry first as they did not want to arouse the suspicion of
the neighbours. This was followed by the box containing the deceased’s
body and another box containing all the bloodstained items. P315D dealt
with the disposal of the deceased’s body in the sea, including how the first
appellant obtained a sack of stones to weigh it down, and the destruction by
burning of the bloodstained items. The first appellant stated that he tied the
sack of stones to the right leg of the body and that the second appellant
pushed the body into the canal whilst he (the first appellant) pushed the
sack of stones. P315E was concerned with the events of 13 January 1998, the
next day. In this statement, the first appellant described how he and the
second appellant disposed of the remaining items, namely, a nail clipper
which had been used to clip the deceased’s nails (the first appellant might
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have been scratched by the deceased and was afraid that his skin fragments
would be found under her nails), the deceased’s wallet, credit cards and two
knives.
The second appellant’s statements
19 The second appellant also gave statements to Insp Lim recounting the
events of 11 and 12 January 1998. In his statement of 21 January 1998
(P314A), he said:
2
On 11 January 1998, which was a Sunday, sometime after 7pm,
while I was at home, I received a telephone call from my friend Adam
[the first appellant]. Adam is my buddy while I was serving my
national service. Adam told me that he wanted to kill someone. He
added that he wanted my favour to dispose [sic] the body of that
person. He further told me that he would give me seven thousand to
help him dispose the body of that person. I then told him that I wanted
to meet him. He told me that he was at Blk 107 Depot Road and added
that I was to meet him at the ground floor of that block. At about 9pm,
I left home and arrived at the ground floor of Blk 107 Depot Road in a
taxi. I remember I arrived there sometime before 10pm.
3
When I alighted from the taxi, I saw Adam waving at me. He
approached me and told me to follow him. I did as told. Thereafter, he
told me that he wanted to kill a female foreigner. When I asked him for
the reason, he told me that he had been framed up by her. He also told
me that he had lost a large amount of money and added that his
family’s reputation was involved. However, he did not elaborate
further. We reached a stone table and sat there. I then asked him if he
know [sic] the punishment for murder. He replied in the affirmative. I
then asked him if he had thought about it thoroughly. He told me not
to worry as the said female foreigner had no identity. He also told me
that the said female foreigner had entered Singapore illegally. I was
afraid of being caught if I get myself involved. I then tried to talk to
him. I said that the world is small, no matter how the authority [sic]
will find out. He again told me not to worry adding that he had
planned it beautifully. Thereafter he took out a knife from one of his
trouser pockets and told me that this would be the murder weapon.
After that, he put back the said knife and told me that he had already
booked a lorry. He also told me that he wanted to dump the body into
the sea together with a washing machine so that the body would sink.
He further told me that he also know [sic] how to get rid of the
evidence and continued to say that he had already bought some
detergents and burning fuel. He then invited me to go up to his place. I
did not object and followed him up to a flat in a lift. I did that as I
thought that I can do something to stop [him] from carrying out his
plan.
4
I followed Adam and on arrival along the common corridor of a
floor, Adam told me to wait along the corridor outside a flat. He then
went into that flat. I did as told. A short while later, Adam came out
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Shaiful Edham bin Adam v PP
and asked me to go into the flat. As I entered the flat, Adam said ‘Lin,
Shyam is here’. I took it to understand that he was informing his wife,
whose name I know is Linda, that I had arrived. I then saw Linda
walking out of the front room with his daughter in her hand. I also saw
a Caucasian female standing in the kitchen area. This Caucasian was
wearing a white T-shirt with a pair of white long pants. I then greeted
Linda. Adam then introduced the Caucasian female to me. I remember
her name was something like ‘Dini’ or ‘Danny’. Adam then invited me
to take a seat in the living room adding that he had something to
discuss with Caucasian female in the kitchen.
5
From the living room, I could see Adam and the Caucasian
female sitting at a table and both of them were quarrelling. A while
later, they stopped quarrelling. The Caucasian female came to me and
apologised for keeping me waiting. I kept quiet and gave her a smile.
Adam then interrupted and asked me if we should take the washing
machine, table and chairs and the big mattress. I was rather confused
on what he said. The Caucasian female asked me where did I parked
[sic] my lorry. I was again confused. Adam interrupted and replied on
my behalf that my lorry was parked behind the block.
6
The Caucasian female then walked into the front bedroom to
play with Linda’s daughter. Adam called out to me and brought me to
the kitchen and pointed to me two washing machines. One of the
washing machines was a new one. Adam asked me if the Caucasian
female could fit into the older washing machine. I replied that I have
no idea. Adam then told me that he had previously asked the
Caucasian female to go into the said washing machine and it fitted her.
Adam then asked me to carry some of the household furniture out of
the flat. I then helped Adam to carry a few chairs from the kitchen and
a big mattress from the front room our to the common corridor.
Thereafter, Adam proceeded to the kitchen and dismantled a table. I
squatted beside him. Adam asked the Caucasian female to buy a drink
and a packet of cigarettes for me. The Caucasian female did as told and
left the flat.
7
Just when the Caucasian female left the flat, Adam told me about
his plan. He said he will pretend to dismantle the table and when the
Caucasian female come back [sic], he will ask her to help him. I asked
Adam what was the purpose. He replied that he will pretend to have
difficulty in dismantling the table and when the Caucasian female help
him, he will cut her throat. I then asked Adam what if the Caucasian
female struggle and scream. He told me not to worry. Short while later,
the Caucasian female returned with a packet of chrysanthemum tea
drink and a packet of Marlboro cigarettes. I received the packet of
drink and cigarettes from the Caucasian female and walked out to the
common corridor to get some fresh air. While there, I made up my
mind not to get involve [sic] in Adam’s plan. Shortly, Adam came to
me and suggested taking a walk with him downstairs. I then followed
Adam to walk down the staircases to the ground floor.
463
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8
While at the ground floor, Adam told me to wait there. When
Adam walked up to the staircases [sic], I walked away. I actually
wanted to leave the place. When I was walking away, I heard a scream
coming from above me. I then heard Linda’s voice calling for me. I
turned and looked up but did not see any sign of Linda. Immediately, I
suspected something had happened. I ran up the staircases [sic] and
shortly arrived at Adam’s flat. As I entered the flat, I saw the Caucasian
was lying on her back on the kitchen floor with Adam arm-locking her
from behind. Immediately, I asked what had happened. There was no
reply. The Caucasian female was screaming and struggling. I saw blood
on the kitchen floor. I was terrified. Adam then said loudly to the
Caucasian female not to scream or he will poke her again. I then went
to them and covered the mouth of the Caucasian female and told her
not to shout. She did as told. A while later, I let go my hand and wanted
to leave. Adam told me not to leave and added that I was already
involved. I then went into Linda’s bedroom.
9
As I entered Linda’s bedroom, I saw Linda holding onto her
daughter and was squatting at the corner of the room beside the bed. I
also did the same beside Linda. While doing that, I noticed my hands,
shirt and jeans were stained with blood. Linda then asked me what
Adam was doing then. She then told me that she had asked Adam to
poke the back of the Caucasian female. I then asked Linda what
actually happened. Linda replied it happened so fast. Just then, Adam
walked into the room and told Linda to buy me a drink and added that
I was in shock. Adam handed some money to Linda who then left the
flat with her daughter. Adam then left the room and started to bring in
those furniture [sic] into the flat. Adam then told me to look after the
Caucasian female and not to allow her to jump down from the flat or
leave the flat. I went to the side of the entrance of the front bedroom
and squatted there and looked at the direction where the Caucasian
female was. I saw her moving on the kitchen floor.
10
Not long after that, Linda returned to the flat. On entering the
front bedroom where Adam and I were, Linda remarked as to why the
Caucasian female was not dead yet. Adam then said ‘Don’t push me’.
When I heard that, I took it to mean that Adam did not want Linda to
pressure him. Linda then said to Adam to effect ‘We don’t have much
time. I need to clear up the mess’. A while later, I saw Adam was
holding a rope. Adam then left for the kitchen. I squatted at the
entrance to the front bedroom and looked at the direction of the
kitchen. I saw Adam tying the wrists and legs of the Caucasian female.
Shortly, I saw Adam … holding a parang. I then heard the Caucasian
female talking to Adam to the effect ‘Please don’t chop me’. Following
that I heard the Caucasian female said something to Adam which I did
not hear clearly. However, I heard the word ‘poison’ being mentioned.
11
Shortly I saw Adam holding a bottle of detergent and poured its
content into a plastic container similar to that of the plastic container
of mineral water. Thereafter, he poured the liquid from the plastic
container into the mouth of the Caucasian female. I could see the
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465
Caucasian female coughing as though she was choked. Adam then
walked towards my direction and entered the front bedroom. Adam
told Linda to the effect ‘Let her die’. Linda expressed as to why the
Caucasian female was not dead yet. Linda said to Adam to the effect
‘We are running out of time. I need to clear up the mess’. Adam then
proceeded to the kitchen and made the Caucasian female lie with her
face facing downward. Adam then picked up the parang which he had
left on the floor earlier. Adam called out to me and asked me to help him
hold on to the legs of the Caucasian female so that she would not move. I
then went forward and squatted over the legs of the Caucasian female
with her head behind me. I looked backward at the direction of the back
of the head of the Caucasian female and noticed Adam was in the act of
raising both his hands with the parang as though he wanted to bring it
down onto the back of the head of the Caucasian female. I knew what
Adam was going to do. I was terrified. I turned back to face forward with
my eyes closed. Following that, I heard a few chopping sounds and felt
the body of the Caucasian female move. I was shivering with fright. As I
turned to have a glimpse at the Caucasian female, I noticed she was
motionless. Thinking that she was already dead, I stood up and walked
into the front room where Linda and her daughter were. A while later
Adam walked into the room behind me. Adam said to Linda that the
Caucasian female was already dead.
12
As I looked at the direction of the kitchen, I was surprised to see
the Caucasian female was moving. I exclaimed to Adam that the
Caucasian female was moving. Immediately, Adam left the room and
proceeded to the kitchen. Following that, I saw Adam holding a small
knife which had a black handle. I next saw Adam lifting the head of the
Caucasian female by grabbing the hair and with his other hand, he ran
the knife along the neck region of the Caucasian female. Thereafter,
Adam let go of his hand which was holding the head of the Caucasian
female. Immediately, I heard the Caucasian female screamed [sic]
loudly.
13
Here I wish to add that I now remember that earlier on when
Linda returned to the flat with the drink, and when she heard that the
Caucasian female was not dead yet, she asked me to help Adam. She
suggested to Adam and I to [sic] suffocate the Caucasian female so that
the latter would not scream. Both Adam and I then went to the
Caucasian female and covered her face with a sofa seat. Somehow, the
Caucasian female put up a struggle and screamed. Adam and I then let
go of her. I noticed the Caucasian female was still breathing. After that,
Adam took the rope. …
[emphasis added]
20 In a statement recorded on 13 February 1998 (P314C), he clarified as
follows:
When I was holding on to the legs of the Caucasian female, I looked
backward and saw Adam was wearing an army hat. Adam was holding
the parang in his hands and brought it up and down as though he
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wanted to bring it down onto the back of the head of the Caucasian
female. When I saw him doing this, I saw a piece of cloth on the kitchen
floor beside the left side of the head of the Caucasian female. I knew
what Adam was going to do. I turned back to face the living room and
seconds later, I heard a few chopping sound and felt the body of the
Caucasian female moved. As I turned to have a glance, I saw Adam
pressing the neck region of the Caucasian female with the cloth and
there were [sic] blood flowing down to the floor from the neck. I had
the impression that Adam was trying to stop the blood from spilling.
[emphasis added]
In this statement, the second appellant also described how he and the first
appellant cleaned up the Depot Road flat and disposed of the deceased’s
body. The second appellant’s account was consistent with that of the first
appellant in material particulars. In relation to the disposal of the body, the
second appellant stated that he and the first appellant placed the body in
disposable black plastic bags which the first appellant sealed with masking
tape. They placed the whole package into a large paper box which had been
lined with gunny sacks (to prevent the blood from seeping through) and
sealed the box with masking tape. Both of them then carried the washing
machine down to the lorry first to avoid arousing suspicion. This was
followed by a smaller paper box containing the bloodstained items and the
larger paper box containing the body. The latter was supported by an
ironing board so that it would not give way. However, as the second
appellant stated, the box nearly fell off while they were carrying it as the
base of the box was too wide for the small ironing board.
21 In another statement made on 14 February 1998 (P314D), the second
appellant described how he and the first appellant threw the deceased’s
body into the water. Again, this was consistent with the first appellant’s
version:
48
Sometime past midnight, by then it was already …
13 January 1998, we arrived at Tanah Merah Ferry Road. Adam parked
the lorry at the same empty space beside the bridge. Adam and I then
carried the bigger box containing the body of the Caucasian female …
below the bridge. …
49
… Adam said that we would have to tie the wrists and the ankles
to the sack of stones and thereafter [dump] the body into the sea. I then
asked him where we should dump it and Adam pointed at the bridge,
where we had left the bigger box containing the body of the Caucasian
female, and said that was a good place to dump the body. …
51
Thereafter, Adam carried the sack of stones and placed it on the
edge of the concrete pavement by going around the end of the iron
railing directly below the bridge. After that, Adam tied one of the legs
of the Caucasian female with the nylon string. The end of that nylon
string was tied to the sack of stones. When Adam had finished tying, I
kicked the body while he lifted the sack. The body of the Caucasian
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467
female and the sack of stones went into the canal. There was a big
splash. …
Other evidence
22 The Prosecution led evidence that the first appellant had been
thinking and talking of murder before it happened.
23 A friend and colleague of the first appellant at Moldavite, one
Mohammed Noor bin Rahmat (who is also known as “Bob”) (“Mohammed
Noor”), gave evidence that the first appellant had told him of his intention
to kill the deceased and had offered him $14,000 to help dispose of her
body. The offer was made over the telephone. Mohammed Noor was at the
office on either 7 or 8 January 1998 between 10.00pm and 11.00pm having a
meeting with his colleagues Kevin Walter Hector (“Kevin Hector”) and
Erickson Pereira when he received the call. He rebuked the first appellant,
asked him if he was crazy and advised him to return to work (the first
appellant had not been reporting for work since Christmas). After talking to
the first appellant Mohammed Noor told Kevin Hector about the
conversation. In his testimony in court, Mohammed Noor conceded that he
was unsure of the date and time of the conversation, and that his
recollection of the date of the conversation could be out by a day either way.
Counsel for the first appellant put it to him that the conversation did not
take place and that he had made it up because the first appellant was
pressing him for the repayment of some loans. Mohammed Noor
maintained that he was telling the truth.
24 Mohammed Noor’s evidence of the conversation with the first
appellant was corroborated by Kevin Hector and Erickson Pereira, who
were also colleagues of the first appellant. In his statement of evidence
Kevin Hector stated that a few days prior to 12 January 1998, Mohammed
Noor had answered a telephone call in his presence and told the caller not
to be stupid or crazy and to return to work. After Mohammed Noor hung
up he told him (Kevin Hector) that it was the first appellant who had asked
him (Mohammed Noor) to help kill the deceased. Kevin Hector
remembered that the call took place at about 10.30pm or 10.45pm. The first
appellant alleged that Kevin Hector may have put pressure on Mohammed
Noor to lie about the conversation because their relationship was strained
at the time. Counsel for the first appellant put it to Kevin Hector that the
first appellant did not make the call to Mohammed Noor but did not
dispute that the second conversation, ie the conversation between
Mohammed Noor and Kevin Hector took place.
25 Erickson Pereira in his statement of evidence recalled that one night a
few days before 12 January 1998 at about 10.00pm or 11.00pm Mohammed
Noor had received a telephone call while they were with Kevin Hector in his
office. Mohammed Noor indicated that it was the first appellant and
continued talking to the latter, telling him not to be crazy. After the call
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Mohammed Noor told him and Kevin Hector that the first appellant had
sought his help to kill the deceased. Again, counsel for the first appellant
did not dispute that the second conversation took place.
26 The first appellant was also alleged to have discussed murder with one
Gan Fong Kai or Michael (“Gan”), a car dealer involved in selling the car.
Gan’s evidence was that he was with the first appellant on the night of
7 January 1998. They were at the Star Breeze Pub located at East Coast Park
and the first appellant gave him a lift to Hougang Central. Sometime during
that period the first appellant had asked him if he could recommend
someone to kill a man who showed interest in his wife. Gan repeated this
information to Koh Tee Yang later that night and to Koh Tee Hong (Philip
Koh) the following day. Counsel for the first appellant put it to him that he
had fabricated the alleged conversation because he was unhappy about
losing his commission when the sale of the car fell through.
27 Koh Tee Yang was the intending buyer of the car. On the night of
7 January 1998, he had gone with Gan to meet the first appellant in order to
take delivery of the car but had left without doing so. Later that night, at
about 11.00pm, he met Gan at Hougang where they talked about the
aborted delivery of the car. It was then that Gan told him that the first
appellant wanted to hire a killer. Koh Tee Yang agreed with counsel for the
first appellant that he did not hear the conversation between Gan and the
first appellant but counsel did not dispute that the conversation between
Gan and him took place.
28 Koh Tee Hong (or Philip Koh), the elder brother of Koh Tee Yang,
had learnt that the car was for sale and had enlisted the assistance of Gan to
purchase it. He confirmed that on 8 January 1998, Gan telephoned and told
him that the first appellant wanted to hire a killer. Counsel for the first
appellant also did not dispute that this conversation took place.
The defence
The first appellant
29 His defence went along the lines of his investigation statements. He
had no forethought of harming or killing the deceased. He denied that he
had offered the second appellant $7,000 to help dispose of her body; the
$7,000 was to be a loan for the latter’s wedding expenses. He also denied
that he had sought Gan’s help to procure a hired killer or that he had
offered Mohammed Noor $14,000 to help dispose of the body.
30 He admitted that he had inflicted injury 9 – the 10cm wound in the
centre of the neck – with a kitchen knife but said that it was an accident.
During the struggle with the deceased he had pushed her down so that her
face was against the floor. When she turned her neck the knife he was
holding hit the floor and cut her neck in the process.
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31 Later on he had attempted to hack the deceased’s neck with the
chopper but could not do it despite raising the chopper several times. The
second appellant then took the chopper and struck the deceased three or
four times with it, and followed that up by hacking the deceased once with a
parang.
32 It was also his defence that he thought the deceased was already dead
when he, his wife and the second appellant set about disposing of her body.
33 His wife Hezlinda gave evidence on his behalf. Her evidence touched
on the friendship between her husband, herself and the deceased and the
strains that developed when the car could not be sold. She saw her husband
and the deceased struggling on the kitchen floor with knives in their hands
before her husband instructed her to leave the flat and fetch the second
appellant. After she returned to the flat with the second appellant, she heard
her husband say “I can’t do it” and the second appellant’s response, which
was “If you can’t do it let me do it”, followed by chopping sounds but she
did not see what they were doing as she was in the bedroom while they were
in the kitchen or living room.
The second appellant
34 Like the first appellant, his defence went along the lines of his
investigation statements. He had gone to see the first appellant on the
fateful night in order to dissuade him from carrying out his plan to kill the
deceased, but failed. Later he saw the first appellant struggling with the
deceased. He did not leave because the first appellant told him he was
already involved.
35 He denied that he wanted a loan of $7,000 from the first appellant for
his wedding expenses, and said that he had no wedding plans at the time.
36 He did not inflict any injury on the deceased, and did no more than
hold onto her legs. He saw the first appellant hold a parang in both hands,
raise his arms and bring the parang down slowly to the deceased’s neck, and
raise them again. He did that three times, then he brought the parang down
and chopped her neck. He chopped her neck three or four times. He also
saw the first appellant run a knife around the front of the deceased’s neck.
However, he later contradicted himself by saying that he did not see the
weapon used and then saying that the first appellant had used a small knife.
37 He participated in throwing the deceased into the canal in the belief
that she was already dead.
The decision below
38 The trial judge found on the evidence that the first appellant had
formed an intention to kill the deceased several days before
11 January 1998.
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39 He accepted the evidence of Mohammed Noor that the first appellant
had offered him $14,000 to help dispose of the deceased’s body. It was
incredible that Mohammed Noor had lied about the conversation because
the first appellant was pressing him for payment, or that Kevin Hector had
influenced him to do that. In any event, the evidence was that Mohammed
Noor had related the conversation to Kevin Hector and Erickson Pereira
immediately after the telephone call. There was no reason for him to lie to
them that night about the first appellant’s sinister design even if the first
appellant was pressing him for payment.
40 As for the suggestion that Gan had lied about the first appellant’s
request for assistance in procuring a hired killer because he was unhappy
about losing his commission on the sale of the car was beyond reason. At
the time he told the Koh brothers of the request the sale was still
proceeding.
41 The second appellant’s evidence that the first appellant had called him
specifically to offer him $7,000 to help dispose of the body was consistent
with these two events. The first appellant did not maintain regular contact
with the second appellant. They had only met once or twice since they
completed their national service in 1995, and had not met since
September 1996. It was also noteworthy that the first appellant admitted
agreeing to pay the second appellant $7,000 which he described as a loan for
the latter’s wedding expenses, although the second appellant’s evidence that
he had no wedding plans at the time was not disputed.
42 The first appellant’s defence was that he had caused the injury to the
front of the deceased’s neck (injury 9) by accident. When the deceased
turned her neck the knife he was holding hit the floor and cut her neck. The
trial judge noted that this was inconsistent with the description of that
incident in his first statement made to SSSgt Zainal on 16 and
17 January 1998 (P311 and P311T) where there was no mention of any
accident:
I grabbed her and used my body weight to pin her to the floor. The
knife that I was holding was on her neck. Out of the spontaneous
struggle I don’t understand why I reacted rashly by slashed [sic] her
throat once.
Further, Prof Chao’s evidence that the injury was caused by a slicing action
should not be overlooked. It tied in with para 12 of the second appellant’s
investigation statement (P314A) where he said:
I … saw Adam lifting up the head of the Caucasian female by grabbing
her hair and with his other hand, he ran the knife along the neck region
of the Caucasian female.
His evidence in court was to the same effect. Taking all this evidence
together, the trial judge rejected the evidence that the injury to the
deceased’s neck was accidental.
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43 As for the second appellant, he knew of the first appellant’s intentions
before he left home to meet him at Depot Road. If he had gone there to
dissuade the first appellant from proceeding with his plan, he could have
left without taking part in the events that followed. In fact he did leave and
was on the ground floor by himself at one stage, but he chose to return.
After he returned, he did nothing to stop the assault on the deceased or to
raise an alarm. By his own admission he assisted in the assault by holding
onto the deceased’s legs when the first appellant hit her repeatedly with the
parang. After witnessing the brutal assault he stayed to help clean up the flat
and played an active part in transporting the deceased to Tanah Merah
Ferry Road where they threw her into the canal.
44 There was no third person involved in the assault on the deceased.
The injury to the front of the neck (injury 9) was inflicted by the first
appellant. The evidence conflicted as to which of the appellants had caused
injuries 10, 11 and 12, as each appellant blamed the other for them. The first
appellant said that he had tried to chop the deceased’s neck and when he
found that he could not do it, he asked the second appellant to do it. On this
evidence, the chops were delivered by the second appellant in pursuance of
their common intention. The second appellant said that it was the first
appellant who inflicted the injuries while he helped by holding onto the
deceased’s legs. He saw the first appellant raise the parang three times and
knew what the first appellant was going to do before he chopped the
deceased. On the basis of this evidence the resultant injuries were inflicted
by the first appellant in pursuance of their common intention. The trial
judge therefore concluded that both appellants were answerable for injuries
10, 11 and 12, each by his own evidence.
45 Although injuries 9, 10, 11 and 12 were sufficient singularly and
collectively to cause death, the post-mortem examination revealed that the
deceased succumbed only after she was thrown into the water, even though
she would have died from the injuries to her neck even if she did not drown.
The result was that the injuries which the appellants inflicted intentionally
did not cause death and that death occurred only after they threw her into
the water thinking that she was already dead. There thus appeared to be
(what the trial judge termed) at first sight “an intriguing legal situation”
because the appellants’ intentional acts did not cause death but death was
caused when they had no intention to cause death or injury. The trial judge
did not think that these circumstances presented an insurmountable legal
problem. He considered several Indian authorities and the leading case of
Thabo Meli v R [1954] 1 All ER 373, in which the Privy Council held (on
similar facts) that it was impossible to divide up what was really one series
of acts and to find the appellants not guilty of murder simply because they
were under some misapprehension for a time as to the condition of the
deceased during the commission of the killing. The trial judge held that the
appellants had intentionally inflicted the fatal injuries on the deceased
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which were sufficient to cause her death; the fact that they accelerated her
death when they threw her into the canal in their mistaken belief that she
was already dead should not reduce their culpability. He accordingly found
them guilty of the offence charged and passed the mandatory sentence of
death.
Grounds of appeal
46 Both appellants essentially contended that they did not share a
common intention to kill the deceased.
The first appellant
47 The first appellant repeated his allegations that the injury to the front
of the deceased’s neck (injury 9) had been caused accidentally and that
injuries 10, 11 and 12 had been inflicted by the second appellant. Also, he
thought that the deceased was already dead when he and the second
appellant threw her body into the canal and thus could not have had any
intention to kill the deceased thereby, because he thought he was disposing
of a corpse. Taken together, this meant that the trial judge had erred in
holding that the Prosecution had proven its case against him beyond a
reasonable doubt.
The second appellant
48 The second appellant repeated the defence raised in his investigation
statement (P314A) and made before the trial judge. He had gone to meet
the first appellant at the latter’s Depot Road flat with the intention of
dissuading him from killing the deceased; after the first appellant told him
how he intended to kill the deceased, the second appellant decided that he
did not want to have anything to do with the matter and left the flat. While
waiting for a taxi to go home, he heard a scream and rushed back up when
he heard the first appellant’s wife calling for him. When he arrived at the
flat, he saw the first appellant and the deceased struggling on the kitchen
floor and heard the former telling the latter not to scream or he would poke
(ie, stab) her again. The second appellant then placed his hand over the
deceased’s mouth to stop her from screaming as he did not want the first
appellant to stab her again. Thereafter when he turned to leave the first
appellant ordered him to stay as he was already involved. He was in shock
and was terrified of the first appellant, and as a result of the shock and fear
he acted recklessly in participating in what the first appellant told him to
do. Thus, in all the circumstances, it could not be said that he shared a
common intention with the first appellant to kill the deceased.
The appeal
49 This appeal clearly turned on two points. First, common intention:
did the appellants share a common intention to murder the deceased? We
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will call this “the common intention point”. Second, if, as was alleged, both
appellants genuinely thought that the deceased was already dead when they
threw her body into the canal, did this mean that they lacked the requisite
mens rea for murder with the result that an essential element of the offence
was not made out? We will call this “the mens rea point”. Counsel for the
second appellant did not raise the mens rea point before us, nor did he seek
to associate himself with the arguments of counsel for the first appellant to
us on it. However, this was immaterial as our determination on the mens
rea point would be equally applicable to the second appellant, if it is found
that he shared a common intention with the first appellant to murder the
deceased. It was on this basis that we approached the mens rea point. It will
be convenient to deal with the common intention point first.
The common intention point – the law
50 Section 34 of the Penal Code (Cap 224) (“the Penal Code”) which
embodies the principle of joint liability in the doing of a criminal act, the
essence of that liability being the existence of a common intention, reads as
follows:
When a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for that act in
the same manner as if the act were done by him alone.
It is not without significance that the original draft of the Indian Penal Code
did not contain the phrase “in furtherance of the common intention of all”.
The words were inserted by s 1 of Act xxvii of 1870 (India). When the
Indian Penal Code was introduced into the Straits Settlements in 1872 and
the Federated and Unfederated Malay States, the section as amended was
also received.
51 Section 33 states that the word “act” denotes a series of acts as well as a
single act; and the word “omission” denotes a series of omissions as well as a
single omission. It follows that the words in s 34 “when a criminal act is
done by several persons” may be construed to mean “when criminal acts are
done by several persons”. Thus, where different acts in a criminal enterprise
are committed by different participants, such participants may still be
regarded as having done “a criminal act” for the purposes of liability under
s 34. The raison d’être, as it were, of s 34 was to meet the situation where it
may be difficult, if not impossible, to distinguish between the acts of each
individual member of a party or to prove precisely what part was played by
each of them. Section 34 operates to impute liability to a participant whose
participation contributed to the result, though he cannot be proved to have
committed the actus reus himself. This was recognised by Lord Sumner in
the Privy Council decision in Barendra Kumar Ghosh v Emperor AIR 1925
PC 1 at 5:
The doing to death of one person at the hands of several by blows or
stabs, under circumstances in which it can never be known which blow
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or blade actually extinguished life, if indeed one only produced that
result is common in criminal experience and the impossibility of doing
justice, if the crime in such cases is the crime of attempted murder
only, has been generally felt. It is not often that a case is found where
several shots can be proved and yet there is only one wound, but even
in such circumstances it is obvious that the rule ought to be the same as
in the wider class, unless the words of the Code clearly negative it. Of
course questions arise in such cases as to the extent to which the
common intention and the common contemplation of the gravest
consequences may have gone, and participation in a joint crime, as
distinguished from mere presence at the scene of its commission, is
often a matter not easy to decided in complex states of fact, but the rule
is one that has never left the Indian courts in much doubt.
52 The problem is to define the conditions under which liability is to be
imposed. In this respect, s 34 has had a chequered interpretation, though
the position is not now in doubt due to the numerous judgments (which we
will refer to in due course) in which the leading authorities have been stated
and re-stated. At the outset, however, the controversy had its genesis in the
words “criminal act” and “common intention” contained in s 34. This
found expression in two divergent lines of authority. On the one hand,
there were those authorities (R v Vincent Banka [1936] MLJ 53 is always
cited) which held that the common intention should refer to the crime
actually committed and that it was not sufficient that there should be
merely a common intention to “behave criminally”. On the other hand
there were those authorities which took a wider view of the expression
“criminal act”: it was not necessary to show that there existed a common
intention to commit the crime actually committed and for which the
accused were ultimately charged; it was sufficient so long as the criminal act
complained of was committed in furtherance of the common intention.
Really the difference in the two views, as will be shown, lies in the content of
the expression “common intention”. We propose to discuss the elements of
s 34 under the following headings: (a) common intention; (b) “in
furtherance of the common intention of all”; and (c) participation in the
criminal act.
Common intention
53 In Vincent Banka, the two appellants were charged with committing
robbery and murder in the course of robbery. Evidence was inconclusive as
to which of the two appellants had carried the knife or inflicted the fatal
wound. They were convicted on both charges and appealed against their
convictions for murder. The appeal was allowed. Huggard CJ said at 69:
It follows that it is the duty of the trial judge, in cases where s 34 of the
Penal Code is relied on, to direct the attention of the jury to any
evidence from which they may legitimately infer the existence of a
common intention to commit the criminal act actually committed; at
the same time making it clear that the question whether or not such
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common intention existed is a question of fact and is for them to
determine.
And at 70:
… under the terms of that section [ie s 34 of the Penal Code] as has
already been pointed out, there must exist a common intention to
commit the crime actually committed, and it is not sufficient that there
should be merely a common intention to ‘behave criminally’.
It was clear that the two appellants had set out to commit robbery.
Regarding the murder, however, evidence was inconclusive as to who had
carried the knife or inflicted the fatal wound. Applying the test enunciated
by Huggard CJ, the court held that there must be evidence that there was a
common intention between the robbers not merely to commit robbery but
also, if necessary, to kill the deceased. Since there was no evidence of any
express agreement between the appellants that a knife should be carried or
that the victim should be stabbed, the court convicted them only of robbery
and acquitted them of murder.
54 The fallacy in this kind of reasoning was demonstrated by Lord
Sumner in Barendra Kumar Ghosh v Emperor ([51] supra), the leading
Indian authority. The facts were that the appellant, together with a few
others, had gone to a Post Office in Bengal to demand money from the subpostmaster. All of them fired at the sub-postmaster with their pistols. He
was hit in two places and died almost instantly. The appellant was arrested
after the others fled. The trial judge directed the jury that the appellant
might be the man who fired the fatal shot and that if the jury were satisfied
that the sub-postmaster had been killed in furtherance of the common
intention of all, the appellant was guilty of murder whether he fired the fatal
shot or not. The appellant was convicted of murder by the jury. Lord
Sumner said at 5–6 and 9 of the report:
The appellant’s argument is, in brief, that in s 34, ‘a criminal act’, in so
far as murder is concerned, means an act which takes life criminally
within s 302, because the section concludes by saying ‘is liable for that
act in the same manner as if the act were done by himself alone’, and
there is no act done by himself alone, which could make a man liable to
be punished as a murderer, except an act done by himself and fatal to
his victim.
Thus the effect is that, where each of several persons does something
criminal, all acting in furtherance of a common intention, each is
punishable for what he has done as if he had done it by himself. Such a
proposition was not worth enacting, for, if a man has done something
criminal in itself, he must be punishable for it, and none the less so that
others were doing other criminal acts of their own at the same time and
in furtherance of an intention common to all.
It follows from the appellant’s argument that the section only applies to
cases where several persons (acting in furtherance of a common
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intention) do some fatal act, which one could do by himself. Criminal
action, which takes the form of acts by several persons, in their united
effect producing one result, must then be caught under some other
section and, except in the case of unlawful assembly, is caught under
attempts or abetment.
By way of illustration it may be noted that, in effect, this means, that if
three assailants simultaneously fire at their victim and lodge three
bullets in his brain, all may be murderers, but, if one bullet only grazes
his ear, one of them is not a murderer and, each being entitled to the
benefit of the doubt, all must be acquitted of murder, unless the
evidence inclines in favour of the marksmanship of two or of one.
This argument evidently fixes attention exclusively upon the accused
person’s own act. Intention to kill and resulting death accordingly are
not enough; there must be proved an act which kills, done by several
persons and corresponding to, if not identical with, the same fatal act
done by one. The answer is that, if this construction is adopted, it
defeats itself, for several persons cannot do the same act as one of them
does. They may do acts identically similar, but the act of each is his
own, and because it is his own and is relative to himself, it is not the act
of another, or the same as that other’s act. The result is that s 34,
construed thus, has no content and is useless. …
He then outlined a hypothetical situation to illustrate his point:
Suppose two men tie a rope round the neck of a third and pull opposite
ends of the rope till he is strangled. This they said really is an instance
of a case under s 34. Really it is not.
Obviously each is pulling his own end of the rope, with his own
strength, standing in the position that he chooses to take up, and
exerting himself in the way that is natural to him, in a word in a way
that is his. Let it be that in effect each pulls as hard as the other and at
the same time and that both equally contribute to the result. Still the
act, for which either would be liable, is done by himself alone, is
precisely not the act done by the other person.
There are two acts, for which both actors ought to suffer death,
separately done by two persons but identically similar. Let us add the
element, that neither act without the other would have been fatal; so
that the fatal effect was the cumulative result of the acts of both. Even
this does not make either person do what the other person does: it
merely makes the act, for which he would be liable if done by himself
alone, an attempt to murder and not an act of murder, and accordingly
the case is not an illustration of s 34. …
On the other hand, if it is read as the appellant reads it, then, returning
to the illustration of the rope, if both men are charged together but
each is to be made liable for his act only and as if he had done it by
himself, each can say that the prosecution has not discharged its onus,
for no more is proved against him than an attempt, which might not
have succeeded in the absence of the other party charged. Thus both
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will be acquitted of murder, and will only be convicted of an attempt,
although the victim is and remains a murdered man.
And ended by saying:
If s 34 was deliberately reduced to the mere simultaneous doing in
concert of identical criminal acts, for which separate convictions for
the same offence could have been obtained, no small part of the cases
which are brought by their circumstances within participation and
joint commission would be omitted from the Code altogether.
If the appellant’s argument were to be adopted, the Code, during its
early years, before the words ‘in furtherance of the common intention
of all’ were added to s 34, really enacted that each person is liable
criminally for what he does himself, as if he had done it by himself,
even though others did something at the same time as he did. This
actually negatives participation altogether and the amendment was
needless, for the original words express all that the appellant contends
that the amended section expresses. One joint transaction by several is
merely resolved into separate several actions, and the actor in each
answers for himself, no less and no more than if the other actors had
not been there. …
Instead of enacting in effect that participation as such might be ignored,
which is what the argument amounts to, the amending section said that,
if there was action in furtherance of a common intention, the individual
came under a special liability thereby, a change altogether repugnant to
the suggested view of the original section. [emphasis added.]
Really the amendment is an amendment, in any true sense of the word,
only if the original object was to punish participants by making one man
answerable for what another does, provided what is done is done in
furtherance of a common intention, and if the amendment then defines
more precisely the conditions under which this vicarious or collective
liability arises. In other words, ‘a criminal act’ means that unity of
criminal behaviour, which results in something, for which an individual
would be punishable, if it were all done by himself alone, that is, in a
criminal offence. [emphasis added]
55 We also found the remarks of Sir Madhavan Nair in Mahbub Shah v
Emperor AIR 1945 PC 118 at 120 instructive:
Section 34 lays down a principle of joint liability in the doing of a
criminal act. The section does not say ‘the common intentions of all’
nor does it say ‘an intention common to all’. Under the section, the
essence of that liability is to be found in the existence of a common
intention animating the accused leading to the doing of a criminal act
in furtherance of such intention. To invoke the aid of s 34 successfully,
it must be shown that the criminal act complained against was done by
one of the accused persons in the furtherance of the common intention
of all; if this is shown, then liability for the crime may be imposed on
any one of the persons in the same manner as if the act were done by
him alone.
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56 Barendra Kumar Ghosh and Mahbub Shah were approved and
adopted by the Court of Criminal Appeal in Wong Mimi v PP [1971–1973]
SLR(R) 412 and Neoh Bean Chye v PP [1974–1976] SLR(R) 164. The court
disapproved of Vincent Banka ([52] supra), a decision of the Court of
Criminal Appeal of the Straits Settlements and held that it was not
incumbent on the Prosecution to prove that there existed between the
participants a common intention to commit the crime actually committed.
For s 34 to apply it was sufficient to prove that there was in existence a
common intention between all the persons who committed the criminal act
and that the act which constituted the offence charged was done in
furtherance of that common intention. In Wong Mimi’s case, Wee Chong
Jin CJ who delivered the judgment of the court explained the effect of s 34
of the Penal Code in the following terms at [23] and [25]:
There is no doubt that for this section to apply there must be in
existence a common intention between all the persons who committed
the criminal act, and that a criminal act be done in furtherance of that
common intention. When these two requirements are proved, each of
such persons would be liable for the entire criminal act in the same
manner as if he had done it alone. …
It is clear from the Privy Council’s [in Barendra Kumar Ghosh]
interpretation of the words ‘criminal act’ that it is the result of a
criminal act which is a criminal offence. It then remains, in any
particular case, to find out the actual offence constituted by the
‘criminal act’. If the nature of the offence depends on a particular
intention the intention of the actual doer of the criminal act has to be
considered. What this intention is will decide the offence committed
by him and then s 34 applies to make the others vicariously or
collectively liable for the same offence. The intention that is an
ingredient of the offence constituted by the criminal act is the intention
of the actual doer and must be distinguished from the common
intention of the doer and his confederates. It may be identical with the
common intention or it may not. Where it is not identical with the
common intention, it must nevertheless be consistent with the carrying
out of the common intention, otherwise the criminal act done by the
actual doer would not be in furtherance of the common intention.
Thus if A and B form a common intention to cause injury to C with a
knife and A holds C while B stabs C deliberately in the region of the
heart and the stab wound is sufficient in the ordinary course of nature
to cause death, B is clearly guilty of murder. Applying s 34 it is also
clear that B’s act in stabbing C is in furtherance of the common
intention to cause injury to C with a knife because B’s act is clearly
consistent with the carrying out of that common intention and as their
‘criminal act’, ie that unity of criminal behaviour, resulted in the
criminal offence of murder punishable under s 302, A is also guilty of
murder.
In Wong Mimi, the first appellant was convicted of the murder of one Mrs
Watanabe (whose husband she was having an affair with). The second
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appellant, the first appellant’s husband, was also convicted of murder under
s 302 read with s 34 of the Penal Code. The facts were that when the first
appellant went to the deceased’s house, she brought with her a knife which
she subsequently used to inflict the fatal injury. So far as the part played by
the second appellant was concerned, the court accepted the findings of the
trial judges (at [14] of the report):
… that the idea of throwing the detergent came from him; that he
brought the Glucolin tin containing the detergent; that he requested
the first appellant to lure the deceased to the bathroom on the pretext
of inspecting the broken washbasin; that he mixed water with the
detergent; that he wrapped a towel round the Glucolin tin to prevent
leaving finger prints on it; that he threw the detergent into the eyes of
the deceased after he saw the first appellant had taken a knife and was
ready to stab the deceased and that he was clearly a party to the
stabbing of the deceased.
One of the arguments advanced on behalf of the second appellant was that
s 34 could only be applied if the common intention of the accused was to
commit the offence with which they were charged. In other words, the
second appellant could not be found guilty of an offence under s 302 of the
Penal Code unless the common intention of the appellants was to cause the
death of the deceased, or was such other intention as is mentioned in s 300
of the Code. The court had no difficulty in rejecting this argument and held
that s 34 had been properly applied vis-à-vis the second appellant. In Neoh
Bean Chye, the first appellant knew that the second appellant had a loaded
revolver and that it would be used, if necessary, during the course of the
robbery. He himself had loaded the gun and handed it to the second
appellant who shot the deceased when he offered resistance during the
robbery. The first appellant’s conviction for murder under s 302 read with
s 34 of the Penal Code was upheld by the court.
57 On this view, all that it is necessary for the Prosecution to prove is that
there was in existence a common intention between all the persons involved
to commit a criminal act and that the act which constituted the offence
charged (the “criminal act” referred to in s 34 of the Penal Code) was
committed in furtherance of that criminal act. The rider to this is that the
participants must have some knowledge that an act may be committed
which is consistent with or would be in furtherance of, the common
intention. Support for this approach may be found in the words of Desai J
in Bashir v State of Allahabad AIR 1953 All 668 at 672:
These words [‘in furtherance of the common intention’] were added by
the legislature in 1870 and must have been added for a purpose. That
purpose could be none other than to make persons, acting in concert,
liable for an act, which is not exactly the act intended by them, but has
been done in furtherance of their common intention. The words would
not have been required at all if the common intention implied an
intention to do the very criminal act done.
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It will be recalled that Lord Sumner had made the same point in Barendra
Kumar Ghosh. Applying this test to Neoh Bean Chye, the offence for which
the appellants were ultimately charged (murder) was done in furtherance of
their common intention to commit a criminal act (robbery); they also knew
that the victim might be shot if he offered any resistance. They were clearly
guilty of an offence under s 302 read with s 34 of the Penal Code.
58 A note of caution must be sounded before we move on to the second
element of s 34. Common intention means a prior meeting of the minds
and must be distinguished from same or similar intention. In Mahbub Shah
([55] supra), the appellant and one Wali Shah were out shooting game
when they heard shouts for help from one Ghulam Quasim Shah who was
being attacked by the deceased, Alla Dad. (Ghulam had tried to get back
from Alla Dad the reeds which the latter had unlawfully taken from the
lands of Ghulam’s uncle.) Wali Shah in trying to rescue Ghulam shot and
killed Alla Dad while the appellant injured one Hamidullah Khan. Both the
appellant and Wali Shah were convicted under s 302 read with s 34. The
Privy Council in allowing the appeal, said that while the appellant and Wali
Shah had the same or similar intention to rescue Ghulam by using their
guns if necessary, there was no evidence that the killing of Alla Dad was in
furtherance of a common intention. Sir Madhavan Nair said at 121 of the
report:
Their Lordships are prepared to accept that the appellant and Wali
Shah had the same intention, viz, the intention to rescue Quasim if
need be by using the guns and that, in carrying out this intention, the
appellant picked out Hamidullah for dealing with him and Wali Shah,
the deceased, but where is the evidence of common intention to
commit the criminal act complained against, in furtherance of such
intention? Their Lordships find none. Evidence falls far short of
showing that the appellant and Wali Shah ever entered into a
premeditated concert to bring about the murder of Alla Dad in
carrying out their intention of rescuing Quasim Shah. Care must be
taken not to confuse same or similar intention with common
intention; the partition which divides their ‘bounds’ is often very thin;
nevertheless, the distinction is real and substantial, and if overlooked
will result in miscarriage of justice. In their Lordships’ view, the
inference of common intention within the meaning of the term in s 34
should never be reached unless it is a necessary inference deducible
from the circumstances of the case.
“In furtherance of the common intention of all”
59 The first point to be made here is that the “criminal act” done by one
of the accused must be “in furtherance of the common intention of all”.
However, as discussed above, this does not mean that there must be a
common intention to commit the criminal act actually committed and for
which the accused is ultimately charged. The learned authors Ratanlal and
Dhirajlal, in their Law of Crimes (1997) at p 122 para 28, divide acts done in
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furtherance of the common intention into three categories. In the first
category are those acts which are directly intended by all the confederates.
In the second are acts which in the circumstances leave no doubt that they
are to be taken as included in the common intention, although they are not
directly intended by all the confederates. And in the third are acts which are
committed by any of the confederates in order to avoid or remove any
obstruction or resistance put up in the way of the proper execution of the
common intention. The third category of acts may cause difficulties as the
individual doer in doing the act or acts may produce results or
consequences not intended by the others.
60 The second and more important point is that the common intention
must precede the criminal act: see, eg Asogan Ramesh s/o Ramachandren v
PP [1997] 3 SLR(R) 201. In this connection, the question is whether or not
there must be found a pre-arranged plan in determining whether the
“criminal act” was done “in furtherance of the common intention”. In
Mahbub Shah, the Privy Council held that common intention implies the
existence of a pre-arranged plan. Sir Madhavan Nair said at 120:
… it is clear to their Lordships that common intention within the
meaning of the section implies a pre-arranged plan, and to convict the
accused of an offence applying the section it should be proved that the
criminal act was done in concert pursuant to the prearranged plan. As
has been often observed, it is difficult if not impossible to procure
direct evidence to prove the intention of an individual; in most cases it
has to be inferred from his act or conduct or other relevant
circumstances of the case.
However, the difficulty of proving a pre-arranged plan was noted by
Baguley J in the Rangoon case of Nga Aung Thein AIR 1955 Ran 89 (FB) 90.
He did not think it was an essential precondition:
It seems that the condition precedent suggested in the question,
namely, a pre-arranged intention to commit murder, a prearrangement which from the nature of things in the vast majority of
cases it would be absolutely impossible to prove, is not essential …
Indeed, the requirement of a pre-arranged plan, if it can be so called, has
been qualified to a large extent. In Bashir, the court clarified Sir Madhavan
Nair’s statement in Mahbub Shah at 671 as follows:
In Mahbub Shah ‘common intention’ was held to imply a ‘prearranged plan’. This does not mean either that there should be
confabulation, discussion and agreement in writing or by word, nor
that the plan should be arranged for a considerable time before the
doing of the criminal act. The Judicial Committee in the case of
Mahbub Shah, did not lay down that a certain interval should elapse
between the formation of a pre-arranged plan and the doing of the
criminal act and did not negative the formation of a pre-arranged plan
just a moment before the doing of the criminal act.
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See also Krishna Govind Patil v State of Maharashtra [1963] 2 Cri LJ 351 at
352 and Namasiyiam v PP [1987] 2 MLJ 336 at 344–345 to the same effect.
Thus pre-arrangement need not exist in the sense of a prior plan. The plan
could develop on the spot. What is required, however, is a meeting of the
minds or acting in concert. Since it would in most cases be virtually
impossible to prove a pre-arranged plan, failure to do so is of no
consequence. Instead, “common intention” is to be inferred from all the
facts and circumstances of the case, including the conduct of the accused.
Thus in Nga Aung Thein, in the context of robbery and murder, Baguley J
said that
… it is sufficient if the court is of opinion that from all the facts proved,
the way in which the robbery was carried out, the weapons with which
the robbers were armed, … the characters of the robbers themselves,
and so on, a legitimate inference can be drawn that the robbers went
out to commit robbery and, if necessary, to kill, and that death resulted
in consequence of what they as a band did.
Similarly, the same sort of considerations applied in Wong Mimi. The
throwing of the detergent in the deceased’s eyes at the critical moment
when the first appellant was about to stab her was to prevent any resistance
on her part, and certainly showed some strategy on the part of the second
appellant which was not inconsistent with the killing. However, Desai J in
Bashir warned that:
common intention should be inferred from the whole conduct of all
the persons concerned and not only from an individual act actually
done. As the criminal act done is not to be assumed to be in
furtherance of the common intention it follows that the common
intention is not to be inferred exclusively from the criminal act done.
The criminal act done will certainly be one of the factors to be taken
into consideration but should not be taken to be the sole factor. Besides
proving that a certain criminal act was done, the prosecution has to
prove the existence of common intention and that the criminal act was
done in furtherance of it, these two are independent facts and one is
not to be assumed or inferred exclusively from the other. …
Therefore all the facts and surrounding circumstances must be taken into
consideration.
Participation in the criminal act
61 Section 34 requires the criminal act to be “done by several persons”.
There must be physical presence at the site of the actual commission of the
offence in question coupled with actual participation, whether active or
passive: PP v Gerardine Andrew [1998] 3 SLR(R) 421 and Too Yin Sheong v
PP [1998] 3 SLR(R) 994. Regarding passive participation, the comment of
Lord Sumner in Barendra Kumar Ghosh ([51] supra) at 6 of the report that
“in crimes as in other things they also serve who only stand and wait”, albeit
merely obiter, is noteworthy.
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62 In Om Prakash v State AIR 1956 All 241, it was held that presence on
the spot for the purpose of facilitating or promoting the offence is itself
tantamount to actual participation in the criminal act. The court cited as an
example a person who is present at the spot as an eye-witness to the offence,
this was to be contrasted with a person who is present as a confederate of
the assailant. The former is not guilty because he is present merely to see the
commission of the crime, whereas the latter is guilty because he is present
for the purpose of seeing that the crime is committed. The following
observations of Mookerjee J in Barendra Kumar Ghosh AIR 1924 Cal 257
were held relevant:
It is the expectation of aid, in case it is necessary to the completion of
the crime and the belief that his associate is near and ready to render it,
which encourage and embolden the chief perpetrator, and incite him
to accomplish the act. By the countenance and assistance which the
accomplice thus renders, he participates in the commission of the
offence.
It is therefore sufficient to hold a party as principal, if it is made to
appear that he acted with another in pursuance of a common design;
that he operated at one and the same time for fulfilment of the same
pre-concerted end, and was so situated as to be able to furnish aid to
his associates with a view to insure success in the accomplishment of
the common enterprise.
In this context, the words “criminal act” in s 34 are to be taken in the
broadest possible sense, as s 33 states that an act includes a series of acts.
Beg J in Om Prakash stated that the words would cover any word, gesture,
deed or conduct of any kind on the part of a person, whether active or
passive, which tends to support the common design.
Whether the appellants shared a common intention to kill the deceased
63 In relation to the first appellant, the trial judge found on the evidence
that he had formed an intention to kill the deceased several days before
11 January 1998. In coming to this finding, the trial judge had considered
the evidence of Mohammed Noor, Kevin Hector, Erickson Pereira, Michael
Gan and the second appellant. Mohammed Noor’s and the second
appellant’s testimony was that the first appellant had spoken to them about
helping him to kill the deceased, and Gan’s was that the first appellant had
asked him about getting a hired killer to assassinate someone. Kevin Hector
and Erickson Pereira testified that Mohammed Noor had told them about
his conversation with the first appellant on the subject. As for the second
appellant, it was not in dispute that the deceased was a complete stranger to
him and that the first time they met was when he was summoned to the
Depot Road flat by the first appellant on the night of 11 January 1998.
Unlike the first appellant, therefore, he could not have formed a prior
intention to kill the deceased. Indeed, the second appellant maintained that
he had no such intention even on that night itself, having left the flat
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wanting nothing more to do with the first appellant’s plan. However, he had
full knowledge of the first appellant’s intentions before he left home to meet
the latter that night. Accepting, as we are prepared to do, that he left the flat
at one stage with the intention of taking no further part in the first
appellant’s plan, the fact still remains that he chose to return, after which he
did nothing to stop the assault on the deceased or even raise an alarm.
Instead, he held his hand over the deceased’s mouth (with the ostensible
purpose of preventing the first appellant from stabbing her again – a
proposition we found nothing short of incredible) and later tried to
suffocate her with a cushion. By his own admission, he also aided the first
appellant by holding onto the deceased’s legs while the latter delivered the
fatal blows to the deceased’s neck. Later he alerted the first appellant to the
fact that the deceased was still alive, after which the first appellant took
further steps to finish her off.
64 In other words, the evidence clearly established that the first appellant
had formulated an elaborate plan to kill the deceased; this included, it will
be recalled, an attempt to ascertain whether she could fit into one of the two
washing machines in the kitchen of the flat so that he could place her body
inside and dispose of the whole thing in the sea: see the second appellant’s
statement given to Insp Lim on 21 January 1998 (P314A). With regard to
the second appellant, however, there was of course no such plan. This was
immaterial as there is no requirement in law that a premeditated design to
kill must be established: however suddenly the intention to kill is formed, if
it is proved to exist, that amounts to murder (see, eg Ismail bin Hussin v PP
(1953) 19 MLJ 48).
65 Could it be said, from the entire sequence of events, that the second
appellant had no intention to kill the deceased? It need hardly be said that
the answer must be in the negative. We have pointed out that a prearranged plan is not essential and that common intention may develop on
the spot without the elapse of any long interval of time between its
formation and the doing of the act commonly intended. On the facts, the
second appellant had formed the requisite intention when he placed his
hand over the deceased’s mouth to stop her from screaming at the earliest,
or when he squatted over her legs in order to secure them whilst the first
appellant chopped her neck at the latest. To put it another way, the
irresistible inference from his participation was that he shared with the first
appellant a common intention to kill the deceased. Indeed, as common
intention is to be inferred from all the surrounding circumstances and not
just the act commonly intended, we would go further and say that common
intention in the present case could also be inferred from the second
appellant’s participation in destroying the evidence in the aftermath of the
murder, namely cleaning up the flat as well as disposing of the deceased’s
body and the bloodstained and other items. In our view, therefore, common
intention had been established beyond a reasonable doubt.
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66 At trial, the second appellant claimed that he had acted as he did
because he was labouring under fear and terror of the first appellant. He
was also in shock when he saw the first appellant inflict the fatal injuries on
the deceased. It was contended that this state of mind negated whatever
common intention he may have shared with the first appellant. We had no
difficulty in rejecting these arguments which were rehashed before us by
counsel. To begin with, the defence did not raise any defence of duress
which, in any event, on a plain interpretation of s 94 of the Penal Code, is
clearly inapplicable where the offence charged is murder. But even if the
defence were applicable, it would not have succeeded on the facts of the
present case. To constitute duress within the meaning of s 94, the threats in
question must be such as to give rise to the apprehension of instant death to
the person compelled by the threats. Moreover the duress must be
“imminent, persistent and extreme”: see, eg Wong Yoke Wah v PP [1995] 3
SLR(R) 776. According to the second appellant, the only threats emanating
from the first appellant were words to the effect that he (ie the second
appellant) was “already involved” and that the first appellant would “drag”
the second appellant “into it”. Even if true, these threats were clearly
insufficient to amount to duress within the meaning of s 94; they were
neither imminent, persistent or extreme, nor was there apprehension of
instant death. At no time did the second appellant verbalise his actual fears
and the cause of his alleged confusion and consequent paralysis, if that be
the case. He did not, for instance, claim that he was in fear for his life or
safety. Nor was there any evidence or suggestion that the first appellant had
said anything to give him cause so to fear. We found it highly implausible,
to put it mildly, that the threats which the first appellant is alleged to have
made had such an impact on the second appellant that he was unable to
think rationally or act voluntarily. We are reinforced in our view by the fact
that the second appellant was told beforehand by the first appellant of the
purpose of their meeting at the Depot Road flat; and by the fact that after he
arrived at the flat and witnessed the assault on the deceased, rendered such
assistance to the first appellant so as to become part and parcel of the
proceedings. He had several opportunities to intervene and stop the first
appellant or leave but did not do so. He could not have been as frightened
or terrified as he claims to have been, or at all. In short, we found no merit
in counsel’s submissions to us on this point.
67 There was also no doubt that the common intention preceded the
commission of the offence. Specifically, it arose, with regard to the second
appellant, either just prior to or during the commission of the offence. As
stated earlier, this would be sufficient to satisfy the requirements of s 34, so
long as there was in fact a prior meeting of the minds.
68 Finally, it was not argued, as indeed it could not be, that the element
of participation was not present on the facts. Both appellants were not only
physically present but had actively participated in the killing. On the first
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appellant’s own evidence, he was the main actor until the second appellant
“took over” and delivered the fatal chops to the deceased’s neck. On the
second appellant’s own evidence, the first appellant was the mastermind
who killed the deceased with his (the second appellant’s) assistance.
69 It was thus immaterial, as the trial judge held, whether it was the
second appellant who inflicted the fatal injuries, as the first appellant
alleged, or whether it was the first appellant who did so, as the second
appellant alleged. Both are liable for the injuries, each by his own evidence.
Section 34 applied to make the acts of one the acts of the other so that both
are liable for the criminal act ultimately committed. This disposed of the
first appellant’s submission that injuries 10, 11 and 12 were inflicted by the
second appellant and not by him. We are fortified in our conclusion by the
decision of the Indian Supreme Court in Bharwad Mepa Dana v State of
Bombay (1960) Cri LJ 424. There 12 persons were tried for murder under
s 302 read with ss 149 and 34 of the Indian Penal Code. Seven were
acquitted and five were convicted. One of the grounds of appeal was that
the court below had made no finding as to who had delivered the fatal
blows. Counsel for the appellants contended that in the absence of such a
finding, the appellants could not be held constructively liable for blows
given by some unknown person or persons. Of this contention, S K Das J,
delivering the judgment of the court, had this to say at 430:
What then is the difficulty in applying s 34, Indian Penal Code?
Learned counsel says: ‘We do not know who gave the fatal blows.’ We
accept the position that we do not know which particular person or
persons gave the fatal blows; but once it is found that a criminal act was
done in furtherance of the common intention of all, each of such
persons is liable for the criminal act as if it were done by him alone.
The section is intended to meet a case in which it may be difficult to
distinguish between the acts of individual members of a party who act
in furtherance of the common intention of all or to prove exactly what
part was taken by each of them. The principle which the section
embodies is participation in some action with the common intention
of committing a crime; once such participation is established, s 34 is at
once attracted. In the circumstances, we fail to see what difficulty there
is in applying s 34, Indian Penal Code in the present case. …
70 Counsel for the first appellant also contended, with some persistence,
that the injury to the front of the deceased’s neck (injury 9) was accidental
and that the trial judge had erred in finding that it was not. We did not
think it necessary to comment further on this point save that that was a
finding of fact which we would hesitate to disturb unless it can be shown
that it was clearly reached against the weight of the evidence: see, eg Ng Soo
Hin v PP [1993] 3 SLR(R) 703 and PP v Hla Win [1995] 2 SLR(R) 104. Such
was not the case here. We would only add that we agree with the trial
judge’s reasons for his finding and that we would adopt them.
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71 The appellants are thus prima facie guilty of the offence with which
they are charged. Did their assertion that they genuinely believed the
deceased to be dead before they threw her into the canal, if true, exonerate
them? Before us, counsel for the first appellant very candidly admitted that
his entire case hinged upon this point. As we have noted, our determination
thereon would also apply to the second appellant, even though his counsel
made no submissions on it. We begin with the authorities.
The mens rea point – the law
72 The legal problem posed by the situation such as that which occurred
in the present case is that there is no coincidence in time of the actus reus
and mens rea of the offence. The Penal Code is silent on the question and
there appear to be no local cases in which the issue has been discussed.
Consequently, decisions from other jurisdictions will be of persuasive
authority.
73 The leading case is the Privy Council decision in Thabo Meli v R
[1954] 1 All ER 373, an appeal from the High Court of Basutoland. The
facts were that the appellants, in accordance with a preconceived plan, took
their victim to a hut and gave him beer so that he became partially
intoxicated. They then struck him over the head with a piece of iron.
Believing him to be dead, they took his body and rolled it over a low cliff,
dressing up the scene to make it look like an accident. In fact, the man was
not then dead, it being established from the medical evidence that the final
cause of his death was exposure when he was left unconscious at the foot of
the cliff. On their trial for murder the appellants contended that the two
acts were separate acts, and that, while the first act was accompanied by
mens rea, it was not the cause of death, but that the second act, while it was
the cause of death, was not accompanied by mens rea, and that, therefore,
they were not guilty of murder. Lord Reid, delivering the judgment of the
Board, dealt with this argument in an oft-quoted passage (at 374 of the
report) as follows:
The point of law which was raised in this case can be simply stated. It is
said that two acts were done: first, the attack in the hut; and, secondly,
the placing of the body outside afterwards – and that they were
separate acts. It is said that, while the first act was accompanied by
mens rea, it was not the cause of death; but that the second act, while it
was the cause of death, was not accompanied by mens rea; and on that
ground, it is said that the accused are not guilty of murder, though they
may have been guilty of culpable homicide. It is said that the mens rea
necessary to establish murder is an intention to kill, and that there
could be no intention to kill when the accused thought that the man
was already dead, so their original intention to kill had ceased before
they did the act which caused the man’s death. It appears to their
Lordships impossible to divide up what was really one series of acts in
this way. There is no doubt that the accused set out to do all these acts in
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order to achieve their plan, and as parts of their plan; and it is much too
refined a ground of judgment to say that because they were under a
misapprehension at one stage and thought that their guilty purpose had
been achieved before, in fact, it was achieved, therefore they are to escape
the penalties of the law. … there can be no separation such as that for
which the accused contend. Their crime is not reduced from murder to
a lesser crime merely because the accused were under some
misapprehension for a time during the completion of their criminal
plot. [emphasis added]
74 Under this approach, a series of distinct acts may in some
circumstances be regarded as forming part of a larger transaction; and it
will suffice if the accused had the necessary mens rea at some point in the
transaction, even if it did not coincide precisely in time with the actus reus,
the act which caused the death. The Thabo Meli approach was approved by
the English Court of Criminal Appeal in R v Church [1966] 1 QB 59.
Church was charged with the murder of a woman whose badly injured body
was found in the River Ouse. According to him, he had taken her to his van
for sexual purposes, was mocked by her for failing to satisfy her, and, in the
ensuing fight, knocked her semi-conscious. He tried to rouse her for about
half an hour and then, thinking that she was dead, was seized by panic and
threw her into the nearby river. The woman died from drowning. Church
was charged with murder but, upon the trial judge’s direction to the jury
that they could not convict him for murder unless it was proved that he
knew that the victim was alive when he threw her into the river, was
convicted of manslaughter and sentenced to 15 years’ imprisonment. The
Court of Criminal Appeal dismissed his appeal against conviction and
sentence. Edmund Davies J remarked of the direction (at 67 of the report,
citing Thabo Meli v R in support) that it was:
unduly benevolent to the appellant and that the jury should have been
told that it was still open to them to convict of murder,
notwithstanding that the appellant may have thought his blows and
attempt at strangulation had actually produced death when he threw
the body into the river, if they regarded the appellant’s behaviour from
the moment he first struck her to the moment he threw her into the
river as a series of acts designed to cause death or grievous bodily harm
[emphasis added]
75 The Indian authorities are conflicting, though many of them, often
predating Thabo Meli (1954), adopt the same reasoning, at least where there
appears to have been a preconceived plan to kill the victim and dispose of
the body. In Kaliappa Goundan v Emperor AIR 1933 Mad 798, the
appellants “decoyed” their victim, the wife of the first appellant, on the
pretext of taking her to see a sick relative. They strangled her on the way
and placed her body on a railway track so that a train might run over it and
obliterate all traces of their crime. She was decapitated by a passing train
and there was evidence that this, rather than the strangulation, might have
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been the cause of death. There was no evidence to show that the appellants
knew or believed that the deceased was dead before they placed her body on
the railway track, nor that they did so in order to screen the murder. The
appellants appealed against their convictions for murder. The Madras High
Court found that the appellants’ intention all along was to kill the deceased
and that she was killed in pursuance of a “deliberately planned transaction”.
It held that the intention with which the appellants strangled the deceased
could not be separated from the intention with which they put her body
across the railway track, and that the two acts were so intimately connected
with each other and the latter act followed so immediately upon the former,
that both acts must be treated as being one transaction, the transaction
being to kill the deceased. The court therefore held that the deceased died as
a result of the appellants’ acts and dismissed their appeal accordingly. The
same result was reached on very similar facts in King-Emperor v Nehal
Mahto (1939) 18 Pat 485 where “the intention of the accused was from the
outset to cause the death of the victim in pursuance of a pre-conceived
plan”: per Rowland J at 497 of the report.
76 The language of a pre-conceived plan tends to obscure the fact that
there may in fact be two plans: first, to kill; and second, to dispose of the
corpse. The cases seem to suggest that the Thabo Meli approach will still
apply in such a situation provided that there is a plan to kill, even if the
decision to dispose of the body in a particular manner is only arrived at
later: see, eg Lingaraj Das v Emperor AIR 1945 Pat 470. In that case, the
appellant was originally charged together with one Bhaskar Dhir (who had
subsequently absconded) with the murder of a prostitute, an offence under
s 302 read with s 34 of the Indian Penal Code. Their plan was to kill the
woman and take her jewellery. Bhaskar Dhir strangled the woman and took
her earrings (which were sold and the proceeds divided between them).
Both of them then took what they thought was her dead body and placed it
on a railway line. In fact, it was established by the medical evidence that,
contrary to their belief, she was not then dead but had only been rendered
unconscious by the strangulation. She died when her body was cut in two
by a passing train. It was argued that the facts of this case were
distinguishable from those of Kaliappa Goundan and Nehal Mahto in that
first, the appellant and Bhaskar Dhir had not planned to place the body on
the railway line, the decision to do so only having been arrived at much
later, and that therefore there were two separate transactions; and that
second, unlike Kaliappa Goundan and Nehal Mahto, the appellant really
thought that the woman was dead when she was moved to the railway line.
These arguments were rejected by the Patna High Court. Das J held (Sinha J
agreeing with him) that there was from the very beginning a clear intention
to cause death, and the mere fact that the earlier assault did not result in
death and that the deceased was killed by a passing train, would make no
difference – the offence was one of murder if death resulted from a series of
acts which constituted one transaction. He said at 474–475 of the report:
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If both the appellant and Bhaskar Dhir had the common intention of
killing the woman then the series of acts by which they assaulted the
woman and then placed her body on the line would be one transaction.
That transaction would be judged by the common intention which
they originally had. If the common intention was to kill, and they gave
effect to their intention by a series of acts, the offence will be clearly
one of murder. … It has been held in the Madras case [Kaliappa
Goundan] that if the intention is to kill and the killing results, the
accused succeed in doing that which they intended to do, and if the
acts follow closely upon one another and are intimately connected with
one another, then the offence of murder has been committed. … If the
intention be to kill, the offence is one of murder even if the killing takes
place by a series of acts in two stages. In the particular case under our
consideration, the intention is clear from the confession itself. The fact
that the appellant accompanied Bhaskar Dhir knowing that the woman
was to be killed on the way for her ornaments, the fact that he removed
the body of the woman to the railway line, the fact that he sold the two
gold earrings to Adikanda Sahu and shared the booty — all these show
that the appellant had the same intention as Bhaskar Dhir, namely to
kill the woman and rob her of her ornaments. The mere fact that the
earlier assault on the woman did not result in her death, but that she
was killed by a passing train would make no difference. In view of the
common intention to kill the woman, the appellant would be clearly
guilty of the offence of murder.
77 The Thabo Meli approach also seems to have been used in some
Indian cases where there was no pre-conceived plan to kill as such but there
was nevertheless a clear intention to cause death. In Re Thavamani AIR
1943 Mad 571, the two accused persons attacked the deceased and caused
three puncture wounds on her head, then threw her body into a well. The
medical evidence showed that the wounds by themselves were not sufficient
to cause death and that the victim might have died from being thrown into
the well, rather than from the earlier assault. It was held that since the
intention to cause death was evident from the beginning, and that such
intention was apparently completely carried into effect though not in fact at
the first stage; and that since the first act was so closely connected in time
and space with the next act of throwing the body into a well, and the result
of the actions taken as a whole was so clearly to carry out the intention to
kill with which intention the accused began to act, that their convictions for
murder were right. King J said at 572 of the report:
In 57 Mad 158 [Kaliappa Goundan], however, and in the present case,
it is clear that there was at the beginning an intention to cause death.
This intention was apparently completely carried into effect but in fact
was not. Even if the intention at the second stage of the transaction had
been merely to dispose of a dead body, as is pointed out in 57 Mad 158,
the two phases of the same transaction are so closely connected in time
and purpose that they must be considered as parts of the same
transaction. The result of the actions of the accused taken as a whole is
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to carry out the intention with which they began to act. It seems to us
that there is no satisfactory reason for distinguishing the facts of the
present case from the ruling in 57 Mad 158, and that the learned
Sessions Judge rightly relied upon that ruling in holding that, even if at
the time when the woman was thrown into the well she was alive, and
even if the [accused] then thought her dead, [they] would be guilty of
murder.
Although the killing might have been in pursuance of a pre-conceived plan,
such language was noticeably absent from the judgment. Instead, the court
stated that the intention to cause death was made out. In a sense, this may
be wider than Thabo Meli since an intention to kill does not requires
premeditation and may be formed on the spur of the moment: Ismail bin
Hussin v PP. However, as we have stated earlier, a pre-conceived or prearranged plan in the sense of a prior plan is not an essential pre-requisite.
The plan may develop on the spot instantaneously or just before the
commission of the offence: Mahbub Shah, Krishna Govind Patil and
Namasiyiam. In this sense, therefore, there is no difference between an
intention to kill and a pre-conceived plan, though it would naturally be
much easier to infer the existence of such intention if there is a preconceived plan.
78 In contrast, the following cases are the main source of the view that
the Indian courts prefer the general principle that the actus reus and mens
rea must coincide to the Thabo Meli approach. The first is Queen-Empress v
Khandu Valad Bhavani (1890) 15 Bom 194. The facts were that the accused
struck his father-in-law three blows on the head with a stick with some
force. The latter fell down senseless on the ground. The accused, thinking
that he was dead, put a box of fir wood under his head and set fire to the hut
in which he was lying, with the intention of removing all evidence of the
crime. The accused admitted that he had dealt the victim the three blows
with the intention of killing him, and that he believed that he had killed him
thereby. The medical evidence was to the effect that death was not caused
by the blows and that the blows were not likely to cause death; they
probably only stunned the deceased. Death was really caused by injuries
from burning when the accused set fire to the hut; and was not merely
accelerated by the burning. The Bombay High Court held by a majority
(Parsons J dissenting) that the accused was guilty of an attempt to murder
under s 307 of the Indian Penal Code. Birdwood J said at 199 of the report:
The accused admits that he struck the deceased with the intention of
killing him. In intention, therefore, he was a murderer. But on the
evidence, such as it is, it must be found that the striking did not
amount to murder. It was, however, an attempt to murder. The
accused must also, I think, be taken to have set fire to the shed in order
to remove evidence of the murder which he thought he had
committed, though he himself does not give any such explanation of
his conduct. By setting fire to the shed, however, he actually caused
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death; and the question in this case, arising with reference to the
definition contained in s 299 of the Indian Penal Code, is whether he
set fire to the shed with the intention of causing death or with the
intention of causing such bodily injury as was likely to cause death or
with the knowledge that death was likely to be caused by the act. As I
am of opinion that the accused thought, when he set fire to the house,
that the deceased was already dead, I cannot hold that the act of setting
fire to the shed by which the death was caused was done with such
intent or knowledge as is contemplated in s 299 of the Indian Penal
Code. It is not as if the accused had intended, by setting fire to the shed,
to make the deceased’s death certain. I do not believe that that was his
intention. If that had been the case, I should have no difficulty in
upholding the conviction.
Sergeant CJ agreed with Birdwood J (at 201 of the report) that:
as the accused undoubtedly believed he had killed his victim, there
would be a difficulty in regarding what occurred from first to last as
one continuous act done with the intention of killing the deceased
Parsons J, however, was of the opinion that the offence of murder had been
committed. He said at 199–200 of the report:
I am unable to agree with my learned colleague [Birdwood J] that the
offence of which the accused is guilty, is only an attempt to murder. In
my opinion it is murder. The accused with the deliberate intention of
causing the death of his father-in-law gave him three blows on the
head. He then took the body, put a … box under its head, and set fire to
the hut in which it was. The result was that the father-in-law, who had
not been killed but only stunned by the blows, was burnt to death. My
learned colleague holds that the accused is not guilty of murder,
because when he set fire to the hut he thought that his father-in-law
was dead, and his object in setting fire to the hut was apparently to
remove evidence of the crime, and not to make the deceased’s death
certain. Assuming that this mistake of fact, if it existed, would be a
valid plea in the defence of the accused, I am of opinion that the
evidence on the record is insufficient to warrant any supposition of
change of intention. It is true that the accused says that, immediately
after he dealt the three blows, his father-in-law died and fell down on
the ground, but he does not say that he in any way satisfied himself that
he was actually dead or even that he thought that he was dead, still less
does he say that his intention in setting fire to the hut was to conceal
his crime. He does not say what his intention was. This being so, I think
the presumption of law is that in all that he did he was actuated
throughout by one and the same intention. There is no evidence or proof
of any change therein. There is then the intention of the accused to cause
death and there are two acts committed by him which together have
caused death — acts so closely following upon and so intimately
connected with each other that they cannot be separated and assigned
the one to one intention and the other to another, but must both be
ascribed to the original intention which prompted the commission of
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those acts and without which neither would have been done. In my
opinion, the accused in committing those acts is guilty of murder.
[emphasis added]
79 The second is Palani Goundan v Emperor (1919) 42 Mad 547 (FB).
The accused struck his wife a violent blow on the head with a ploughshare
which rendered her unconscious. He then, believing her to be dead, and in
order to lay the foundation of a false defence of suicide by hanging, hanged
her on a beam by a rope and thereby caused her death by strangulation. The
medical evidence showed that the blow was not likely to have caused death
but would at most have produced unconsciousness. It was also accepted
that the accused hanged his wife under the impression that she was already
dead intending to create false evidence as to the cause of death and to
conceal his own crime. The Full Bench of the Madras High Court held that
the accused was not guilty of either murder or culpable homicide not
amounting to murder but was guilty of grievous hurt. Wallis CJ said at
557–558 of the report:
In India every offence is defined both as to what must be done and with
what intention it must be done by the section of the Penal Code which
creates it a crime. … the defining s 299 … defines culpable homicide as
the act of causing death with one of three intentions: (a) of causing
death; (b) of causing such bodily injury as is likely to cause death; and
(c) of doing something which the accused knows to be likely to cause
death.… ‘Causing death’ may be paraphrased as putting an end to
human life: and thus all three intentions must be directed either
deliberately to putting an end to human life or to some act which to the
knowledge of the accused is likely to eventuate in the putting an end to
human life. The knowledge must have reference to the particular
circumstances in which the accused is placed. No doubt if a man cuts
the head off from a human body, he does an act which he knows will
put an end to life, if it exists. But we think that the intention demanded
by the section must stand in some relation to a person who either is
alive, or who is believed by the accused to be alive. … The conclusion is
irresistible that the intention of the accused must be judged not in the
light of the actual circumstances, but in the light of what he supposed
to be the circumstances. It follows that a man is not guilty of culpable
homicide if his intention was directed only to what he believed to be a
lifeless body. [emphasis added]
80 The decisions in Palani Goundan and Khandu Valad Bhavani
therefore place significantly more emphasis on the general principle
requiring coincidence of the actus reus and mens rea than on the Thabo
Meli approach of regarding the distinct acts as part of a larger transaction.
Both cases are, however, distinguishable on their facts from Thabo Meli and
from cases like Kaliappa Goundan and Nehal Mahto since they did not,
apparently, involve pre-conceived plans to kill. Indeed, in Kaliappa
Goundan and Nehal Mahto, and even in Thavamani (which involved, it will
be recalled, an intention to kill as opposed to a pre-conceived plan to do so),
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Palani Goundan was distinguished on the ground that “there was never at
any time an intention to cause death; the original intention was only to
cause injury”: per King J in Thavamani at 572 of the report ([77] supra). It
was also pointed out in Kaliappa Goundan and Nehal Mahto that in Palani
Goundan, it was not shown that the blow on the deceased’s head with a
ploughshare was likely to cause death. The courts in Kaliappa Goundan and
Nehal Mahto thus agreed with Parsons J in Khandu Valad Bhavani that the
killing in their respective cases must be regarded as one transaction
composed of two acts committed by the accused which together have
caused death and which must therefore be ascribed to the original
intention, which was to cause death. Beasley CJ said in Kaliappa Goundan
at 802 of the report:
In my view, Parsons J was right. If the intention is to kill and a killing
results, the accused succeed in doing that which they intended to do
and if the acts follow closely upon one another and are intimately
connected with one another such as they were in the Bombay case
[Khandu Valad Bhavani], then in my opinion the offence of murder
has been committed.
See also the judgment of Rowland J in Nehal Mahto at 497 of the report
where his honour said that the law was correctly stated in Kaliappa
Goundan.
81 The statement in Thavamani that in Palani Goundan “there was
never at any time an intention to cause death” and that “the original
intention was only to cause injury”, while a debatable assessment on the
facts of that case, raises an interesting possibility. It suggests that the
applicability of the Thabo Meli approach depends on the particular mens
rea of the accused; it will not apply to all the limbs of s 300 of the Penal
Code but will only apply where there is a direct intention to cause death
under s 300(a). But if the applicability of the Thabo Meli approach depends
upon establishing an intention to kill, Khandu Valad Bhavani may be more
difficult to distinguish since the general principle (that the mens rea and
actus reus must coincide) was applied even though the accused in that case
had intended to kill. Semble, Khandu’s case may be distinguished on the
ground that the finding that there was an intention to kill was based on a
confession and the original injuries were “not likely to cause death”; this
appeared to play a significant part in the reasoning of the majority.
82 We venture to draw the following conclusions from the authorities.
First, where there is a pre-conceived plan not only to kill the deceased but
also to dispose of the body, the Thabo Meli approach should be applied:
Kaliappa Goundan and Nehal Mahto. This would also be the case where
there was a preconceived plan to kill, even though the decision as to the
method of disposal of the body was only arrived at later: Lingaraj Das.
Second, the Thabo Meli approach should also be applied where there is a
clear intention to kill, even if it is formed on the spur of the moment:
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Thavamani. Third, where, however, there is only an intention to inflict
bodily injury under s 299 limb 2 and s 300(c), or knowledge under s 299
limb 3 and s 300(d), it is unclear if the Thabo Meli approach is appropriate.
We would prefer not to express an opinion on this point, it being
unnecessary to the disposal of this appeal, but would content ourselves with
noting that Church suggests a broad application of the Thabo Meli
approach. It may be, however, that it is not as strong an authority as the
Indian cases.
Whether the Thabo Meli approach is applicable on the facts
83 Counsel for the first appellant sought to rely on Palani Goundan. It
was contended that Thabo Meli and Kaliappa Goundan were
distinguishable from the facts of the present case as first, the first appellant
never had any intention to kill the deceased; and second, as he genuinely
thought that she was already dead when he disposed of her body together
with the second appellant. There were thus two separate transactions: the
first, which was done without any intention to cause death and which did
not in the event cause death; and the second, which eventually caused death
but which was done without the requisite intention. The prosecution, on
the other hand, contended that the appellants’ acts – inflicting on the
deceased the injuries which proved fatal, coupled with the subsequent
disposal of her body in the canal – constituted a single transaction which
resulted in the death of the deceased; and that, on the authority of Thabo
Meli and the associated cases which followed it, they had rightly been
convicted of murder.
84 Without wishing to express any view as to the correctness or
otherwise of Palani Goundan, it was the considered opinion of this court
that that case was inapplicable to the present situation. The facts were
clearly distinguishable. First, there was never the slightest hint of doubt in
our minds, and, if we may say so, in the mind of the trial judge, that the
appellants had at all material times the intention to kill the deceased. With
regard to the first appellant, in particular, this intention had been formed at
least several days before the killing took place. From the evidence of
Mohammed Noor, the second appellant, Michael Gan, Kevin Hector and
Erickson Pereira (especially the evidence of the second appellant), it
appears that the first appellant had given the matter some thought and had
formulated a plan to carry out his evil intentions; there was a pre-conceived
plan in every sense of the word. The contention that the first appellant
lacked the requisite mens rea was, therefore, simply untenable. Second, it
was said that the appellants lacked the requisite mens rea when they threw
the deceased’s body into the canal – what counsel termed the penultimate
act which caused death. We are prepared to accept that both appellants
genuinely believed that the deceased was already dead then; indeed it is only
on that assumption that any statable case can be made for them.
Nonetheless, that would not assist them: see Thabo Meli and Lingaraj Das.
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Where it is clear that the intention was from the beginning and at all
material times to kill, and that that intention was in fact carried into effect,
the offence committed is murder even if death results from a series of acts.
To paraphrase Lord Reid in Thabo Meli, there can be no separation such as
that for which the appellants contend: there is no doubt that the appellants
did all these acts which resulted in death in order to achieve their plan, and
as parts of their plan; and it is much too refined a ground of judgment to say
that, because they were under a misapprehension at one stage and thought
that their guilty purpose had been achieved before, in fact, it was achieved,
therefore they are to escape the penalties of the law. To accept the reasoning
of the court in Palani Goundan in a case such as the present would be to
turn the law in this country on its head, and this we decline to do.
85 It was also contended on behalf of the first appellant that this court
should follow the decision of the Federal Supreme Court of Southern
Rhodesia in R v Chiswibo (1961) SR FC 714. Briefly, the facts were that the
accused hit the deceased on the head with the blunt side of an axe. The blow
rendered the latter unconscious and the accused, genuinely and reasonably
believing that the deceased was dead, put the body down an ant-bear hole.
In fact, the blow itself might not have been fatal, and death might have been
caused by the subsequent internment in the hole. A constructive intent to
kill with the axe having been established, the accused was found guilty of
attempted murder by the High Court of Southern Rhodesia. The AttorneyGeneral’s appeal against this decision was dismissed. We did not think that
Chiswibo’s case was applicable here. The basis of the decision, it appears,
was that only a constructive intent to kill had been proved, in contrast to an
actual intent to kill. A “constructive intent to kill” was proved in that “there
was appreciation that there was risk to life in what he [the accused] was
doing coupled with recklessness as to whether or not that risk was fulfilled
in death”: per Clayden CJ at 714 of the report. His Honour explained the
reasoning of the court thus (at 715–716 of the report):
Where an accused person does not actually desire to kill, and he is
shown to have intent to kill by reason of appreciation of the risk to life
in what he does, coupled with recklessness as to whether the risk is
fulfilled in death, the proof of intent is necessarily bound up with what
is done, for the appreciation is of risk in doing that act. The test is
subjective. And a person who is found to have believed that it was a
dead body with which he was dealing cannot also be found to have
appreciated that there was risk to life in what he did. … always in the
case of constructive intent to kill the intent is determined by
consideration of what is done.
Thus, it was held that, because of the accused’s belief that the victim was
dead, there was no appreciation of risk to life in the burying and so no
question of constructive intent to kill in regard to the burying could arise.
In our opinion, Chiswibo was inapplicable here for the simple reason that a
clear and actual intention to kill had been established; and an actual
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intention to kill is distinct from presumed or constructive intention:
Rajwant Singh v State of Kerala AIR 1966 SC 1874.
86 The crux of the appeal was that the appellants clearly intended to kill
the deceased so that the entire series of acts by which they achieved their
object had to be regarded as one transaction. That was a conclusion that
was amply supported by the medical evidence. Prof Chao certified the cause
of death as “multiple incised wounds on the neck and drowning”, as fluid
had been found in the deceased’s pleural cavities. Contrary to what the
appellants may have thought at the time, the deceased was still alive when
they threw her into the canal. However, she was “apparently dead” and was
on the brink of death. Prof Chao’s evidence was that by then, her condition
was such that she would have died even without being thrown in the water.
The neck wounds alone would have caused death from loss of blood
although death would have occurred more slowly, over a prolonged period
of time. In other words, as the prosecution put it, drowning in these
circumstances was an additional cause of death superimposed on the neck
wounds and not an intervening cause of death, as the defence contended.
To adopt the language of causation, the neck wounds were still an operating
cause and a substantial cause, and death can properly be said to have
resulted from them, albeit that some other cause of death (drowning) was
also operating. The neck wounds were not merely the setting in which
another cause operated so that it could be said that death did not result
from them:
Putting it another way, only if the second cause is so overwhelming as
to make the original wound merely part of the history can it be said
that the death does not flow from the wound per Lord Parker CJ in R v
Smith [1959] 2 QB 623 at p 628. That was not the case on the facts.
Conclusion
87 For the foregoing reasons, we dismissed the appeal and confirmed the
mandatory sentences of death accordingly.
Headnoted by Agnes Tan.