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Re-cap: sudden fight

Sudden fight - paradigm case in the heat of exchanging blows: easy case But when does a fight start? When can A claim sudden fight?
When V threatens to inflict violence on A and A responds with fatal blow When V hits A physically and A responds with fatal blow When V attempts to strike A and A responds with fatal blow

Re-cap: sudden fight

Tan Chee Wee

Having considered these cases, it is our opinion that fight implies mutual provocation and blows on each side. It is not sufficient that there is, in the words of the court in Jusab Usman v State (1983) XXIV Guj LR 1148, at least an offer of violence on both sides. (para. 61) --- must include physical blows? Cannot be just an offer of violence what is an offer of violence? where a person strikes another, then there will only be a fight if the other hits him back or at the very least prepares himself to strike back, even if he ultimately does not strike back because of the lack of opportunity. There cannot be a fight if the victim keeps quiet and does nothing. That is simply a one-sided attack. (para. 62) --- there must at least be an attempt to strike on both sides? it would appear that there was no exchange of blows. At best, there was a single punch followed by the fatal stabbing. (para. 60) --- why not? Isnt this an exchange of physical blows? Or must it be more than a single exchange? Cf. Tan Chun Seng (a single push was enough)

Re-cap: sudden fight

How can we read Tan Chee Wee?

When V threatens to inflict violence (a simple offer of violence) on A and A responds with fatal blow NO this ruled out by Tan Chee Wee When V hits A physically and A responds with fatal blow When V attempts to strike A and A responds with fatal blow A must have killed during more than a single exchange a series of blows exchanged

Recap: sudden fight

Between offers of violence/attempt to strike/physical strike/series of strikes ---- why not choose the broadest interpretation that includes mere offers of violence? Mandatory capital punishment concerns

No mere offers of violence (at the least must be attempt to strike)

Provocation: sudden and grave act by V; EPD: act by V must at least give rise to reasonable apprehension of harm We can understand A killing in response to Vs act that is a grave and sudden provocation, we can understand A killing in response to Vs act that gives rise to reasonable apprehension of harm; can we extend the same understanding to an A who kills just because V offers violence?

Recap: abetment

Inchoate or derivative? What are the arguments for saying it is inchoate?

Look at all the examples, illustrations in the Penal Code text

What are the arguments for saying it should be derivative?

Same punishment as committed offense


Common intention
s. 34 of the Penal Code


34.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.

Who delivered the fatal blow?

Lim Poh Lye

Trial judge was unable to decide which A delivered final blow Cited Bharwad Mepa Dana (Indian case) which stated 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. (para. 62)


A criminal act A common intention Participation in the doing of the act Offence committed in furtherance of the common intention

A criminal act

Series or group of acts of all the participants as a whole, which must include an offence. Barendra Kumar Ghosh

a criminal act means that unity of criminal behavior, which results in something for which an individual would be punishable if it were done by himself alone a single criminal act may involve and give rise to several offences. the expression criminal act in s 34 means the whole of the criminal transaction in which the co-offenders engage themselves by virtue of their common design and not any particular offence or offences that may be committed in the course of such a transaction (para. 136) It is not the offence that they plan or carry out but it is an act or a continuum of acts. In short, it is a criminal design. The offence or offences are committed in the course of their carrying out their criminal design. (para. 137)

Lee Chez Kee


A must participate in commonly intended crime importance of this element of participation Lee Chez Kee

Participation in the criminal act is the main feature of s 34 of the Penal Code and it is this which explains why the persons involved are made to share in the criminal liability for the offence jointly. the mere agreement between a number of persons to commit a certain crime is not enough for the purpose of this section. Such persons could be committing the offence of a criminal conspiracy, but they would not fall foul of s 34. (para. 138)


Nature of participation? (does this include physical presence) Participation in what? (the crime charged? E.g. twin-crime cases participation in the commonly intended crime or the crime charged?)


Participation: nature

Is presence necessary?

Geraldine Andrew: Yes. The very nature of s. 34 demands a closer association with the actual commission of the offence as compared to abetment where the person is punished for aiding or abetting.to hold that an A can be liable under s. 34 despite being absent when the commission of the offence occurred would render much of the abetment provisions in the Penal Code otiose .there must be a requirement that he was physically present when the commission of the offence took place (para. 34)

Constructive presence

Geraldine Andrew: physical presence at the actual commission of the offense, not physical presence at the immediate site when the commission of the offense occurred. Although Geraldine was not in the flat when the stabbing took place, she was at the staircase landing near the flat. It could not be said that she was in a place remote from the actual occurrence of the offenseif she did see anyone coming, she would warn her companionsshe was the one who brought the others to the flatshe was the one who told Mansoor and Nazar what to say in order to get into the flatshe had given glovesshe went into the flat to look for the deceaseds valuables

Participation: nature

Resolved by Lee Chez Kee (para. 147)

Cited Sabarudin bin Non v PP: In our judgment, presence in every case is not necessary for s 34 to apply. In our judgment, s 34 should be interpreted having regard to modern technological advances. The early decisions on the section, admittedly by the Privy Council, that held presence to be essential for s 34 to bite were handed down at a time when modes of communication were not as advanced as today. I respectfully accept the wisdom behind the pronouncement and hold that presence at the scene of the criminal act, primary or collateral, need no longer be rigidly insisted on for s 34 of the Penal Code to apply. I repeat that the crux of the section is participation, and presence may or may not provide evidence of participation; this is a question of fact to be decided in each case.


Participation: in what?

Participation in what? Twin-crime situations

Some cases: need participation in charged collateral offense (Geraldine Andrews, Tan Joo Cheng) Some cases: only need participation in primary offense (Barendra, Ibrahim bin Masod) Hor: 1. When common intent to commit twin crimes ---only participation in primary offense needed; 2. When common intent to commit only primary offense --participation needed in collateral offense YMC: need participation in offense charged with participation is key ingredient for imposing liability under s. 34

Participation: in what?

Lee Chez Kee (para. 148 & 157)

for a long time the Privy Council decision of Barendra Kumar was thought to have settled the matter in favour of the view that participation in the primary criminal act (as opposed to collateral crime) was enough this state of affairs was thrown into doubt by the decision of the High Court in PP v Tan Joo Cheng the High Court in Tan Joo Cheng had evidently found that as the third accused was not present at the scene of Lees murder, nor did he hold up Lee, he did not participate in the said murder. This seems to imply that not only need the secondary offender participate in the primary criminal act constituting robbery, he also needs to participate in the collateral criminal act constituting murder in a classic robbery-murder twin crime situation. wrongly decided that there was a need for participation in the collateral criminal act as well as in the primary criminal act.participation in the collateral criminal act is likely to mean that the common intenders all intended the commission of the collateral criminal act in the first place.

A common intention

Shared purpose

Lee Chez Kee Common intention refers to the common design of two or more persons acting together. It is the reason or object for doing the acts forming the criminal act. This is different from the intention to commit the offence which is the result of the criminal act committed. (para. 158)

Can arise from pre-arranged plan (older case law required this) or on the spot Lee Chez Kee

I would stress that common intention to bring about a particular result may well develop on the spot all of a sudden, and may be established from proof of circumstances showing that after some persons gathered at the scene of occurrence they then developed a sudden consensus of their minds to bring about a particular result. (para. 161)


A common intention

Whether there is common intention to be inferred from facts Lee Chez Kee (para. 161)

Question of fact to be determined from circumstances of the case Cited non-exhaustive list of factors considered by Indian case of Pandurang v State of Hyderabad: common motive or enmity or ill will which is shared by all the accused, or the fact that they all belong to a faction or family which is on terms of rivalry with the faction or family to which the victim belonged; or previous conduct of the assailants immediately before the occurrence, such as, that they had met together and then came in a body to the spot where the incident occurred; or subsequent conduct of the assailants, such as, that they all ran away after the attack in a body or in the same direction, or that they were all absconding after the happening of the incident.

A common intention

Common intention to do what? The crime charged?

Vincent Banka: to commit the crime charged Lee Chez Kee: the clear pattern of the more recent authorities in Singapore that is, the common intention need not be the intention to commit the criminal act constituting the offence actually committed.

Ok, if no need common intention to commit offense charged (e.g. collateral offense in twin-crime situation) - then what is the MR required with respect to the crime charged (any MR needed?) --- In furtherance of the common intention


In furtherance of the common intention

Twin-crime situation: charged collateral offense must be done in furtherance of the common intention what does this mean?

Secondary offender MR: same MR as actual doer Secondary offender MR: must know that collateral offense may be committed Actual doer MR: committed collateral offense with intention to further principal offense Objective foresight test: collateral offense was something ordinarily done in furtherance of common intention Nature of offense: collateral offense causally connected to principal offense


In furtherance of common intention

Secondary offender MR must be the same as actual doer MR: R v Vincent Banka Broader reading then undertaken in Mimi Wong (1972) as long as MR of actual doer consistent with common intention shared with secondary offender

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


In furtherance of common intention

Secondary offender MR: knowledge that collateral offense may be committed

Shaiful Edham

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.

In furtherance of common intention

MR of actual doer: whether actual doer intended to commit collateral offense to further common intention, strict liability
Too Yin Sheong

[The court should focus] on finding out what intention the doer had when he was doing that particular act and whether he had done that act also to further the common intention.

In furtherance of common intention

Objective foresight inquiry: whether the secondary offense was something ordinarily done in furtherance of the common intention PP v Tan Lay Heong

[The collateral criminal act] was not something that was either contemplated or done ordinarily in furtherance of a common intention [to commit the primary crime]. (Emphasis added)


In furtherance of common intention

Objective inquiry: as long as led to or causally connected to collateral crime, strict liability Asogan Ramesh
These actions were the prolonged result of the unified intent of Ds to assault V. This subsequently led to the death of V The [trial] judge was correct in holding that there was a common intention to assault V which led to his death. Accordingly, [the Ds were guilty of murder. To paraphrase: If As had MR for the primary crime (assault), they are also liable for the collateral crime (murder) even if they did not know or could not have reasonably foreseen the criminal act causing death. They are guilty of murder so long as their assault led to or caused the killing. 25

In furtherance of common intention

Current position Lee Chez Kee (para. 236)

the secondary offender must subjectively know that one in his party may likely commit the criminal act constituting the collateral offence in furtherance of the common intention of carrying out the primary offence. In this regard, in connection with the expression criminal act, I do not think it is necessary for the actual method of execution (in murder) to have been known by the secondary offender. The expression criminal act is to be given a wide interpretation and I think that it is sufficient, in the case of murder, that the secondary offender knew that one in his party might inflict a bodily injury which was sufficient in the ordinary course of nature to cause death


In furtherance of common intention

As applied in Lee Chez Kee

Events before robbery (fear of being recognized), after robbery (plan to conceal), during robbery (used knife on V) Coupled with the events before and after the robbery as well as the gratuitous and callous violence inflicted on the deceased, I feel compelled to conclude that the appellant knew further, in that not only did he know that Too (or himself) would have seriously harmed the deceased if the deceased had struggled or retaliated, but he must also have appreciated that the deceased would have to be killed to protect their identities in the light of the harm they had inflicted on him. (para. 262)