CLD Case Commentaries, OTG

S 300: Is there a need for change?

January 6, 2021

In light of the recent Penal Code reforms, s 300 on murder still remains virtually the same. However, over the years legal academics have raised riveting points as to how certain provisions of s 300, in particular s 300(c) and s 300(d), are in need of reform due to questions of unfairness and redundancy. This article will aim to shed some light on these arguments and hopefully give its readers a better understanding of potential inconsistencies in the Code.

S 300(c): Is it fair?

As per s 300(c), any voluntary act causing death is murder “if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

The mens reas requirement can be split up into two distinct elements:

1. The accused intended to cause bodily injury. 
2. The bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

The court in Virsa Singh v State of Punjab [1958] SCR 1495 (“Virsa Singh”) added an additional requirement of nexus between the intended injury and the injury actually inflicted which was sufficient in the ordinary course of nature to cause death, which has been subsequently endorsed by Singapore’s courts¹Virsa Singh is accepted as representing the law in Singapore, as well as in India and Malaysia: Wong Mimi v PP [1972-1974] SLR 73; Tan Cheow Bock v PP [1991] SLR 293; PP v Lim Poh Lye [2005] 4 SLR 582; Mohammed Ali bin Johari v PP [2008] SGCA 40, [59]-[62]; PP v AFR [2010] SGHC 82. The court held at [1500] that there must be “an intention to inflict th[e] particular bodily injury” which caused death and that the “the injury of the type just described [must be] sufficient to cause death in the ordinary course of nature”. The court further added at [1501] that the second party of the enquiry “is purely objective and has nothing to do with the intention of the offender”.

According to the principles outlined in Virsa Singh, as long as the bodily injury inflicted which caused the victim’s death is of the same type as the intended bodily injury and the bodily injury inflicted is sufficient to cause death in the ordinary course of nature, then the accused would be guilty of murder under s 300(c) even if he only intended lesser harm and did not contemplate the possibility of death. 

Such an objective approach to s 300(c) raises several issues, the first being that “punishment is thus imposed out of proportion to the degree of culpability of the offender”²V. Ramraj, “Murder without an intention to kill” [2000] SJLS 560 at [572]. As Ramraj explains, given that s 300(c) “expressly directs” the courts to consider “only whether the actual injury was sufficient in the ordinary course of nature to cause death, it is difficult to imagine a situation in which the court would ever conclude that it was not, except on the most unusual facts”. This can lead to an outcome where “a person can be convicted of murder even if he or she intended to inflict only the most trivial of injuries if somehow the injury results in death”. In such a case, the punishment of life imprisonment or discretionary death sentence for s 300(c) seems unfairly excessive and disproportionate when compared to the accused’s established culpability. 

The second issue arising from s 300(c) is that criminal liability would now depend on “moral luck”, in the sense that “it depends on luck or chance and, in any event, on circumstances that are beyond that person’s control as a moral agent”³V. Ramraj, “Murder without an intention to kill” [2000] SJLS 560 at [573]. In explaining his point on “moral luck”, Ramraj referred to the following two hypothetical scenarios:

1. “X cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. But an artery is severed and the medical evidence is that in the ordinary course of nature the injury would prove to be fatal.”
2.  “Y cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. The knife misses an artery by two millimetres and the victim suffers but a minor injury.” 

Assuming that neither X nor Y “has any special knowledge of human anatomy, it is purely a matter of chance that X happens to hit an artery but Y does not”. However, X and Y face “profoundly different penal consequences”, whereas “Y faces a charge of voluntarily causing hurt” and a maximum of imprisonment for three years, X faces the punishment of life imprisonment or discretionary death sentence.  As Rajah put it, the fact that this difference in legal outcomes is a result of something as fickle and unpredictable as moral luck, “is manifestly unfair and inconsistent with a criminal justice system that has any concern for the moral culpability of the offender”.

S 300(d): Is it redundant?

As per s 300(d), any voluntary act causing death is murder “if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

The illustration of s 300(d) provided in the Penal Code is as follows; “A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.” A closer examination of this classic illustration suggests that cases intended by the Penal Code to fall under s 300(d) can actually be subsumed under s 300(a) instead, making s 300(d) somewhat redundant. 

As per s 300(a),  any voluntary act causing death is murder “if the act by which the death is caused is done with the intention of causing death”. Intention can be divided into direct intent and oblique intent. When first introduced in academic literature, oblique intent was defined as “a side effect that you accept as an inevitable or certain accompaniment of your direct intent”⁴Glanville Williams, “Oblique intent” (1987) CLJ 417 at [421]. This idea of virtual certainty of death has been accepted as a subset of intention in Woollin [1999] 1 AC 82 at [96], and a similar test was approved in Ong Beng Leong v PP [2005] 1 SLR(R) 766 at [24], in the context of the Prevention of Corruption Act. Oblique intent is now officially recognised as a definition of intention under the Penal Code in s 26C(2)(b), as of the recent Penal Code reform in 10 February 2020.

Turning back to illustration (d), when A fired a cannon into a crowd his direct intent may not have been to kill anyone. However as long as it can be proven on the facts that he was virtually certain that death would be a side-effect of firing the cannon, he is guilty of a crime under s 300(a). Thus, s 300(d) becomes redundant as cases of foreseen but not intended risks of death intended by the Code’s drafters to fall under s 300(d) can now be dealt with under s 300(a).

Conclusion

As it has been argued, the Code is not without its flaws. There is always room for improvement and we have our legal academics to thank for helping to give their input. It is our hope that future amendments to the Code will continue to strive for consistency and fairness.

Ashna Khatri

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.