Common Intention Under Singapore Criminal Law
The settlement in the former British crown colony on the Strait of Malacca which consists of four trade centres, namely, Penang, Singapore, Malacca and Labuan often referred to as the Straits Settlement which was taken over by the British East Indian Company. The British settlement at Penang was founded in 1786 at Singapore in 1819; it was transferred to the East India Company in 1824, occupied by the British during the Napoleonic Wars. As a crown colony in 1867, the three territories are conventional. Labuan, which in 1907 became part of the Singapore Settlement, was founded in 1912 as a fourth separate settlement.
Criminal law: The Penal Code
The Straits Settlements (including Prince of Wales Island (Penang), Singapore and Malacca) was recognised in these territories for most of the 19th century as that of the United Kingdom, as far as local conditions permit. Nevertheless, the Straits Settlements Penal Code 1871 ratified in 1871 (the Penal Code) due to issues such as questions as to the applicability of Indian Acts. Released on September 16, 1872, the Code is primarily an Indian Penal Code re-enactment.
The Penal Code was amended many times over the years. Sentences for certain crimes increased in 1973, and mandatory minimum sentences imposed for certain offences by the 1984 Penal Code (Amendment) Act, which came into force on 31 August 1984. Though there are changes made over time, the cycle is still going on.
Before 1870, the law on criminal proceedings in effect in Singapore was found mainly in the Indian Criminal Procedure Act 1852, which was valid because the Indian Supreme Court had the power to legislate for the Straits Settlements. After the passage of the Penal Code in 1871, the Ordinance replaced by the Indian act. However, the English system for criminal proceedings continued to adhere to the Penal Code. It was later found unworkable as the Penal Code abolished the classification of crimes into felonies and misdemeanours. Therefore, to remedy the situation, the Criminal Procedure Ordinance 1873 was passed. The Ordinance also eliminated prosecution proceedings instead of charges for all criminal offences. The grand jury and other juries also abolished.
1902 saw the introduction of a new Code of Criminal Procedure which was later adopted by the Singapore Colony Legislative Council on January 28, 1955. Under the Code of Criminal Procedure, all criminal offences under the Penal Code or other statutes are prosecuted and tried. The criminal law of Singapore is classified and primarily included in a penal code passed in 1870. Based on the Indian Penal Code, its rules are not always similar to the English Criminal Law intended to be improved by its drafter, Lord Macaulay.
The Penal Code, Singapore's principal criminal law code, has more than 500 sections and is categorised into 24 subsections.
Section 34 dealing with the “common intention” is the general clarification in Chapter ll. The general-purpose rule on criminal liability was contentious for many years.
Section 34 Of the Criminal Code contains the relevant legal requirement:
“When a criminal act is carried out by several persons, in the pursuit of the common intention of each, all such persons is liable for that act just as if the act were done by him alone.”
Section 34 suggests no specific crime in any way and states the only law of evidence. It only goes to the point of establishing vicarious liability in the perpetuation of popular purpose in certain acts committed by several individuals. Section 34's crux is collective unanimity of the minds of persons involved in criminal proceedings to bring about a specific outcome. On the spot, such consensus can be formed and thus expected by all of them.
In 2008, V.K. Rajah headed the Court of Appeal in Lee Chez Kee v Public Prosecutor, a systematic study of the common purpose rule was conducted. It determined that the correct definition, based on Section 34 legislative history and the most likely harmonisation of cases, was that four conjunctive elements are to be proved:
- Criminal act;
- Involvement in the doing of the act;
- The common intention between the parties; and
- An act done in furtherance of that common intention.
Analysing the ingredients of Section 34:
The criminal act is a broader term used in criminal law. ' The crime ' refers to the ' criminal act, ' meaning the cohesion and peace of criminal behaviour, culminating in something that there would be punishment for a person if it were all done alone in a criminal offence. In some act, each person has to disclose to achieve a common goal, such as death or terrible injury to a person. It should be noted that each person must perform an act, no matter how big or small, in order to complete the entire act of an intended offence.
It is impossible to conceive of two men doing the same act in the same way. It is impossible to do that. Therefore, to have any sense, the word criminal act committed by several individuals’ should conceive of an act that can separate into sections of each part performed by another individual, the whole of the criminal act that was the shared intention of everyone. In other words, the one criminal offence may be deemed to consist of several acts committed by the various conspirators, the consequence of their acts being the criminal act that was their common purpose.
Participating in the act:
There must be several parties involved in carrying out the criminal act. Two presumptions withheld from this are:
- If several people do not commit the criminal act, Section 34 is unreliable.
- The parties must carry out the criminal act, i.e. each party must have engaged in such criminal act.
For Section 34, the mere agreement between parties to commit a specific criminal act would not be appropriate.
Now, what constitutes participation?
Participation may be passive or aggressive in some situations. Moreover, where the mere presence is passive, it suffices. Nevertheless, cases such as PP v Gerardine Andrew propagated the view that presence is not merely an indication of participation but the only possible indication of participation.
There should be no emphasis on the presence at the criminal activity scene, regardless of whether it is a single or a "twin crime" case. The critical issue is whether there has been involvement, not appearance; - participation does not always need to be decided by physical presence. Participation should be a question in every case as to whether the accused person has participated in such a degree that he can be is considered as guilty as the primary offender.
Technology has reached an age where there is a possibility to participate in a crime by not being in the real place of the crime. Therefore, in some instances, being present at the criminal act does not do justice.
Exercise caution when evaluating a party's involvement in which there is no presence. As mentioned in Too Yin Sheong v PP, “the presence of co-conspirators gives encouragement, support and protection for the person committing the act”.
If the criminal act applies to all the acts performed by each person who has engaged in the crime by performing various small acts, then it should also be noted that instead of punishing for doing the individual acts, Section 34 punishes a person for the continuity of the criminal behaviour.
The court instead ruled that Gerardine Andrew had wrongly decided to address both the secondary criminal act and the first criminal act. It held that insisting on involvement in the collateral criminal act was likely to mean that the primary purpose of the common intenders was to sanction the collateral criminal act. Participation in the first criminal act would, therefore, be enough to determine liability.
In the earlier days, one had to show that the illegal act was done in compliance with a pre-arranged scheme to conclude collective will. As the cases grew, it was the opinion that common intention is formed by:
- just a moment before the crime was committed;
- on the spot, or
- during the offence committed.
Wong Mimi v PP, determined that secondary offenders should be held liable by Section 34, there must be no shared motive between the actual perpetrator and the secondary perpetrators to commit the act committed by the actual perpetrator resulting in the offence charged by all the perpetrators; All that is necessary is for the said act to be in support of the criminal act generally expected by all criminals and not incompatible with it.
It is impossible to prove in many situations that there was a prior agreement among the parties. The actions of the participants, weapons used, injuries inflicted, etc., leads to common intention inferences.
Consider the entirety of the current circumstances must assess whether there was a common intention.
Simultaneously, there should not be an inference of common intention unless it is "a valid conclusion excluded from the circumstances of the case."
Eminent Indian publicists have written:
Care must be taken not to mistake with common intention same or similar intention; the partition that divides their boundaries is often very thin, but the difference is real and substantial, and if it is overlooked, the result is a miscarriage of justice. The strategy does not need to be complicated, and there is no need for an extended period. It could unexpectedly emerge. Nevertheless, pre-arrangement and deliberate concert must be in place. A simple example of a scenario where the same or similar intention may occur but where leaders of a mob come together with weapons is not a common intention.
Will leader of the mob will plan to kill, but as necessary, none may have a shared goal as no pre-arranged plan exists. In such a case, “each is separately liable for the injury he … caused but he … cannot be held vicariously liable for the injuries inflicted by the acts of the others”.
Common intention in twin-crime situations
With respect to liability for common purpose in cases of "twin crime," Rex v Vincent Banka, was held, in the first relevant recorded Singapore ruling on liability for common intention, that “there must exist common intention to commit the crime actually committed, and it is not sufficient that there should be merely a common intention to ‘behave criminally’”.
Therefore, in situations of robbery-murder, the general-purpose must not be merely to commit theft, but also murder. Soon afterwards, in Rex v Chhui Yi, it is seen that a defendant could be held liable for the murder committed by his accomplices even if he did not intend the consequences, given he had the requisite mens rea for murder. The precedent set in Wong Mimi followed for a long time. Mimi Wong was a waitress who became intimate with a married Japanese scientist. His wife had arrived in Singapore and was found dead two weeks later. It was later found that Wong stabbed and killed the wife with the help of the scientist who poured detergent on her face. As throwing the detergent was the husband’s idea, he was accused of having a clear intention to kill. The Court of Appeal held that the intention to commit the criminal act that constitutes the offence committed should not be a common intention.
Moreover, as long as the primary offender's motive is compatible with the secondary offender's collective purpose, all will be responsible for the actual criminal act committed. The court provided the following illustration:
… If A and B intend to come together to harm C with a knife and A holds C while B willingly stabs in the area of the heart; the stab wound is adequate to cause C’s death in the ordinary course of nature, thereby, holding B guilty for his murder.
Applying Section 34, it is also clear that the act of B in stabbing C is in the service of the common intention of causing harm to C with a knife because the act of B is explicitly consistent with the execution of that common intention and as its' criminal act,' i.e. the cohesion of criminal behavior has resulted in the criminal offense of murder punishable in accordance with s 302. A is also guilty of murder.
Most cases followed the so-called definition of Section 34 after Mimi Wong's precedent, but the court disagreed with the same argument in Lee Chez Kee. The Court was aware of Prof. Michael Hor's objections against Mimi Wong. His writings include:
It is necessary to read together with Sections 34 and 35 of the Penal Code. The latter provides that only if he held "any knowledge or intention" will the common intender be liable, thus rejecting Mimi Wong v PP.
Furtherance of common intention
The question is remaining for the court to decide when the collateral crime could be said to be in "furthering public purpose." Although it was clear from Mimi Wong (ibid) that secondary victims do not need to have any mens rea in the collateral offence, there was some uncertainty as to the probability that the collateral offence would occur.
Academics recognised that it was not necessary to carry out the collateral offence in "consistent" with the shared purpose of the parties. Besides, based on Mimi Wong, several decisions are made with different positions in the area of shared purpose. Some of them are:-
- Shaiful Edham bin Adam v PP, has taken the "subjective foresight" approach, while participants must have some awareness that an act can be performed that is consistent with, or would be in support of, the common intention.
- PP v Tan Lay Heong argued that collateral crime must be "conceived or ordinarily carried out in support of a common intention" to commit the first crime.
- PP v Too Yin Sheong, mostly followed the strict liability approach, i.e. ' as long as the perpetrator carried out the act in favour of the collective purpose of all of them, the responsibility for that act applies equally to the majority of the secondary offenders.'
- Asogan Ramesh s / o Ramachandran v PP follows a strict liability policy
Ultimately, the court held that the mens rea requested of the secondary offender is that he must subjectively be aware that one of his parties is likely to commit a criminal offence constituting a collateral offence in support of the common intention to carry out the primary offence; there is no need to have known of the actual method of execution in a murder situation.
The Court held in PP v Daniel Vijay S/O Kathirasan, “Section 34 asserts that constructive liability to a secondary offender by allusion to doing of a criminal act by doer in prolongation of a common intention shared by both the actual doer and the secondary perpetrator. It may not be to hold the secondary offender constructively liable for an offence arising from the criminal act of another person (viz, the actual doer) if the secondary offender does not have the intention to do that particular criminal act. It is especially true of serious offences like murder or culpable homicide not amounting to murder.”
The following passage in Daniel Vijay’s precedent,
“In our view, the requirement of common intention is, in principle, a stricter requirement than the “Lee Chez Kee” requirement of subjective expertise for purposes of imposing constructive liability. If A and B have common intention only to rob C but not to physically harm C, and A joins B in robbing C even though he has subjective knowledge that B has a history of using violence, it does not follow—assuming B does indeed use violence against C in the course of carrying out the robbery—that A had a common intention with B to use violence against C; A might simply have been callous about or indifferent to the fate of C. Even if A was aware that B was carrying a knife with him when they set out together to rob C, a court would be more likely to infer merely that A had subjective knowledge that B might likely use the knife to hurt or kill C in the course of carrying out the robbery, as opposed to inferring that A, by going along with B to rob C in those circumstances, spontaneously formed a common intention with B to rob and, if necessary, to use the knife to hurt or kill C so as to carry out the robbery.”
Is in contradiction with the following passage in Lee Chez Kee
“I propose to lay down with this judgement a determinative pronouncement on the new mens rea required of the secondary offender for him to be liable for the collateral offence which was eventually committed…the supplementary mens rea required is that of a subjective knowledge on the part of the secondary offender concerning the collateral offence likely happening. To be more precise, the secondary offender must subjectively know that one in his party may likely commit the criminal act comprising the collateral offence in prolongation of the common intention of carrying out the principle offence. In this regard, in correlation with the representation “criminal act”, I do not think it is essential for the actual method of execution to have been known by the other offender. The phrase “criminal act” is to be granted a broader understanding, and I think that it is sufficient that the secondary offender knew that one in his party might inflict a bodily injury which was enough in the ordinary course of nature to cause death.”
The Singapore Criminal Court looked up the precedent in Mimi Wong v PP for a long time to decide in cases charged with Section 34. Having said that, in addition to a shared motive in twin crime cases, there is no obligation for the secondary perpetrator to have any mens rea to the collateral offence. The Court held that the desire to commit the criminal act that constitutes the crime committed should not be the principal purpose. Instead, as long as the primary offender's intention is consistent with the secondary offender's common intention, everything will be liable for the ultimate criminal act committed. This leads to several cases with a broad understanding of Mimi Wong.
The court made a different precedent in Lee Chez Kee later. The court held that the secondary offender's mens rea is that he should have subjectively recognised that one of his partners may have committed a collateral crime in favour of the common intention of carrying out the primary offence. This enforcement of the secondary offender's condition for personal information would amount to his recklessness. It conveys the message that he turned away visible from his head. It has been said that generally speaking, no suspect should be tried, “for any act or omission or for bringing about any prohibited state of affairs unless he is morally blameworthy”. Moral blameworthiness is conceptualized as the accused's state of mind as opposed to the reasonable person's state of mind. Then came Daniel Vijay's decision, which was basically at odds with the Lee Chez Kee. Following Lee Chez Kee's comprehensive attempts to explain the rule, the Court ruled that "provision of difficulty" remained. The precedent notes that collective purpose is, in theory, a condition more objective than personal information.
To whether Daniel Vijay has replaced Lee Chez Kee or whether Lee Chez Kee is said to be reading in the light of Daniel Vijay remains unclear. Hypothetically let us say X and Y decide to rob a store together. Y starts stabbing the shopkeeper with a knife and X is aware that Y is abusive and is also aware that Y always has a knife on him. X also understood that Y could at any given point use the storekeeper’s knife as well. Lee Chez Kee applied, it would have been held that X would have been “found to have anticipated a possibility that Y was likely to inflict injury sufficient in the normal course of nature to result in death” and that Y would be held for murder under s.302 (of the Penal Code).
The academic believed that this result (i.e., the girl's death sentence) separated the girl's moral blameworthiness and her criminal responsibility. It can be said that under Daniel Vijay this conclusion would likely yield a different result, unless, of course, the girl had real knowledge that the knife would probably have triggered an s.300 (c) injury. The proof that Lee Chez Kee and Daniel Vijay are saying radically different things is thus presented. However, Daniel Vijay has only gone so far as to say that Lee Chez Kee has not fixed s's turmoil, and it did not state categorically that Lee Chez Kee would now be replaced. In reality, in the decision, it used the Lee Chez Kee test many times, which indicates that the Lee Chez Kee test was merely updated.
As Daniel Vijay was pronounced after Lee Chez Kee, it, in essence, replaces Lee Chez Kee although it is specifically mentioned in Daniel Vijay's precedent that the Lee Chez Kee