Seminar 20 Common Intention s 34

7/30/2019 Seminar 20 Common Intention s 34

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Re-cap: sudden fight

Sudden fight - paradigm casein the heat ofexchanging 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 withfatal blow

When V attempts to strike A and A responds withfatal blow


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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 thatthere is, in the words of the court in Jusab Usman v State (1983) XXIVGuj 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 theother 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 ofopportunity. There cannot be a fight if the victim keeps quiet and doesnothing. 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) --- whynot? Isnt this an exchange of physical blows? Or must it be more thana single exchange? Cf. Tan Chun Seng (a single push was enough)


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How can we read Tan Chee Wee?

When V threatens to inflict violence (a simpleoffer of violence) on A and A responds with fatal

blowNO 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

exchangea series of blows exchanged


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Recap: sudden fight

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

No mere offers of violence (at the least must be attempt tostrike) 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 andsudden provocation, we can understand A killing in response to Vs actthat gives rise to reasonable apprehension of harm; can we extend the

same understandingto an A who kills just because V offers violence?


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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


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Common intention

s. 34 of the Penal Code


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s.34

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.


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Who delivered the fatal blow?

Lim Poh Lye

Trial judge was unable to decide which Adelivered final blow

CitedBharwad Mepa Dana (Indian case) whichstated The section is intended to meet a case inwhich it may be difficult to distinguish betweenthe acts of individual members of a party who act

in furtherance of the common intention of all or toprove exactly what part was taken by each ofthem. (para. 62)


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Elements

A criminal act

A common intention

Participation in the doing of the act Offence committed in furtherance of the

common intention


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A criminal act

Series or group of acts of all the participants as a whole, whichmust 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 Lee Chez Kee

a single criminal act may involve and give rise to several offences.the expression criminal act in s 34 means the whole of the criminaltransaction in which the co-offenders engage themselves by virtue oftheir common design and not any particular offence or offences thatmay 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 acontinuum of acts. In short, it is a criminal design. The offence oroffences are committed in the course of their carrying out their criminaldesign. (para. 137)


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Participation

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 34of 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 enoughfor 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)


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Participation

Nature of participation? (does this include

physical presence)

Participation in what? (the crime charged? E.g.

twin-crime casesparticipation in the

commonly intended crime or the crime

charged?)


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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 theperson is punished for aiding or abetting.to hold that an A can be liableunder s. 34 despite being absent when the commission of the offence occurredwould render much of the abetment provisions in the Penal Code otiose

.there must be a requirement that he was physically present when thecommission 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 offenseoccurred. 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 shewas in a place remote from the actual occurrence of the offenseif she did seeanyone coming, she would warn her companionsshe was the one whobrought the others to the flatshe was the one who told Mansoor and Nazarwhat to say in order to get into the flatshe had given glovesshe went intothe flat to look for the deceaseds valuables


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Participation: nature

Resolved byLee Chez Kee (para. 147)

Cited Sabarudin bin Non v PP:In our judgment, presence in everycase is not necessary for s 34 to apply. In our judgment, s 34 should beinterpreted having regard to modern technological advances. The earlydecisions on the section, admittedly by the Privy Council, that held

presence to be essential for s 34 to bite were handed down at a timewhen modes of communication were not as advanced as today.

I respectfully accept the wisdom behind the pronouncement and holdthat 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 toapply. I repeat that the crux of the section is participation, and presencemay or may not provide evidence of participation; this is a question offact to be decided in each case.


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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


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Participation: in what? Lee Chez Kee (para. 148 & 157)

for a long time the Privy Council decision ofBarendra Kumarwasthought to have settled the matter in favour of the view that

participation in the primary criminal act (as opposed to collateralcrime) was enough

this state of affairs was thrown into doubt by the decision of the HighCourt inPP v Tan Joo Cheng

the High Court in Tan Joo Chenghad evidently found that as the thirdaccused was not present at the scene of Lees murder, nor did he holdup Lee, he did not participate in the said murder. This seems to implythat not only need the secondary offender participate in the primarycriminal act constituting robbery, he also needs to participate in thecollateral 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 criminalact.participation in the collateral criminal act is likely to mean thatthe common intenders all intended the commission of the collateralcriminal act in the first place.


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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 theacts forming the criminal act. This is different from the intention tocommit the offencewhich 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 resultmay well develop on the spot all of a sudden, and may be establishedfrom proof of circumstances showing that after some persons gatheredat the scene of occurrence they then developed a sudden consensus oftheir minds to bring about a particular result. (para. 161)


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A common intention

Whether there is common intentionto 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 termsof 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 spotwhere the incident occurred; or

subsequent conduct of the assailants, such as, that they all ran awayafter the attack in a body or in the same direction, or that they were allabsconding after the happening of the incident.


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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 tocommit 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 MRneeded?) --- In furtherance of the common intention


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In furtherance of the common intention

Twin-crime situation: charged collateral offense mustbe 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 offensemay be committed

Actual doer MR: committed collateral offense withintention 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


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In furtherance of common intention

Secondary offender MR must be the same as actualdoer MR:R vVincent Banka

Broader reading then undertaken inMimi Wong(1972)as long as MR of actual doer consistentwith common intention shared with secondaryoffender Where it is not identical with the common intention, it

must nevertheless be consistent with the carrying out ofthe common intention, otherwise the criminal act done bythe actual doer would not be in furtherance of thecommon intention


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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.


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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.


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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 acommon intention [to commit the primary crime].

(Emphasis added)


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Objective inquiry: as long as led to or causallyconnected to collateral crime, strict liability

Asogan Ramesh

These actions were the prolonged result of the unifiedintent of Ds to assault V. This subsequently ledto the deathof V The [trial] judge was correct in holding that therewas 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 ifthey did not know or could not have reasonably foreseen thecriminal act causing death. They are guilty of murder so long

as their assault led to or caused the killing.


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Current position

Lee Chez Kee (para. 236)

the secondary offender must subjectively know that one in his party

may likely committhe criminal act constituting the collateral offence infurtherance of the common intention of carrying out the primaryoffence. In this regard, in connection with the expression criminalact, I do not think it is necessary forthe actual method of execution (inmurder) to have been known by the secondary offender. The expressioncriminal 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 thatone in his party might inflict a bodily injury which was sufficient in theordinary course of nature to cause death


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As applied inLee Chez Kee

Events before robbery (fear of being recognized), afterrobbery (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 thedeceased, I feel compelled to conclude that the appellantknewfurther, in that not only did he know that Too (orhimself) would have seriously harmed the deceased if thedeceased had struggled or retaliated, buthe must also haveappreciated that the deceased would have to be killed to

protect their identities in the light of the harm they hadinflicted on him. (para. 262)

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Seminar 20 Common Intention s 34