A decade has passed since Professor Sornarajah of the National University of Singapore published his concerns over the interpretation by our courts of clause (c) to s 300 of the Penal Code (Cap 224).1 His article developed well reasoned arguments drawn from legal history and the experience of the Indian courts which pointed to the correct interpretation to be given to that clause. Six years later, another local academic, Professor Victor Ramraj, saw the need to revisit s 300(c) upon noticing that our judges had not resiled from their interpretation of that clause.2 The result was a lengthy treatise which expanded upon Professor Sornarajah’s arguments in addition to invoking methods of statutory interpretation and criminal jurisprudence to persuade our courts to change their minds about their preferred interpretation of s 300(c).  

No judicial change occurred during the four years since Professor Ramraj’s article was published, until early this year when the Court of Appeal made a complete revision to its view of s 300(c).3 This article seeks to entrench this latest and most welcome judicial ruling on s 300(c) by summarising the arguments in its favour. 

Another function of this article is to issue a plea to our judges to actively engage with the views of academic writers. In contrast, their counterparts on the appellate courts of many jurisdictions including Australia, Canada and England have made references to academic legal commentary a norm, with resulting improvements in the quality of their judgments.  

Subjective Versus Objective Interpretation of Section 300(C)

Section 300, the murder provision of the Penal Code, comprises four clauses each pronouncing a separate type of mens rea for the offence. The first clause stipulates the paradigm form of fault element for murder, namely, an intention to kill which is an entirely subjective mental state. The second clause likewise provides for a purely subjective mental state comprising an intention to cause bodily injury which the accused knows to be likely to cause death. The third clause prescribes a form of mens rea for murder which has a subjective component comprising an intention to injure, coupled with an objective component which assesses whether the type of injury intended was ordinarily sufficient to cause death. The fourth clause is devoid of an intentional component but involves instead subjective knowledge by the accused that her or his conduct involves a high risk of causing death. While each clause is distinct, the Code framers intended them to be comparable with one another in degree of moral blameworthiness, a point which I shall return to later. The subject of this comment is the third clause which reads:  

Culpable homicide is murder (c) if [the act by which the death is caused] 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 controversy created by our judges is to interpret this clause as saying that, once it is proved that the accused intended to cause some bodily injury, the remainder of the inquiry is objective, namely, whether or not the injury in fact inflicted was sufficient to cause death. Indeed, the Court of Appeal has gone so far as to rule that an intention to inflict a minor injury is sufficient to attract a murder conviction if the injury actually inflicted was sufficient in the ordinary course of nature to cause death.4 I shall describe this as the objective interpretation of s 300(c). The opposing view is that the clause requires the prosecution to prove that the accused intended to inflict the particular injury which was in fact inflicted on the victim, which injury was objectively assessed to be sufficient in the ordinary course of nature to cause death. This will be called the subjective interpretation of s 300(c). 

Having presented the competing interpretations, I shall now outline the primary arguments in favour of the subjective interpretation. 

Arguments Favouring a Subjective Interpretation

The following arguments are distillations of those presented at length in the articles by Professors Sornarajah and Ramraj.  

Argument based on legal history

Forming the backdrop to the subjective interpretation to s 300(c) are the changes in penal philosophy occurring in England around the time when the Penal Code was devised.5 Foremost among these changes was the shift away from an objective approach towards criminal liability to a more subjective one. The objective approach imposed criminal responsibility on an accused on the basis of what a reasonable person in the accused’s position would have intended or known and not on what the accused actually intended or knew. When the Code framers drafted s 300 of the Penal Code, this objective approach was rapidly giving way to a subjective approach to criminal liability which emphasised the accused’s actual mental state. That the Commissioners were heavily influenced by this development is evidenced by their decision to incorporate both approaches in s 300, but with a decided emphasis on the subjective approach. Thus, as we have noted previously, the first two clauses involve entirely subjective mental states while the next two clauses contain a mixture of subjective and objective components. Given this historical background to s 300, it is clear that the latter clauses were meant to be read in a way which makes criminal liability for murder dependent foremost on the subjective components, followed thereafter by the satisfaction of certain objective components. Consequently, legal history dictates that the subjective interpretation of s 300(c) has a much stronger claim compared to the objective interpretation. It is therefore incumbent on our judges to interpret s 300(c) in a way which most closely reflects this emphasis on the subjective approach to criminal liability.

Argument based on statutory language

A straight reading of s 300(c) supports the subjective interpretation, as is amply borne out by the phrase ‘the bodily injury intended to be inflicted’.6 Ignoring the unambiguous language of this phrase, our judges have, until very recently, opted for an objective interpretation by ruling that the subject of the inquiry as to whether the injury was sufficient in the ordinary course of nature to cause death, is the injury which the accused ‘in fact inflicted’. On this view, the prosecution need not prove, as an essential prerequisite, that the accused intended to inflict such injury.

It is difficult to imagine why our judges have chosen to interpret s 300(c) in this objective way in the face of the clear language of the clause. Indeed, the wording of the clause caters for an even more subjective interpretation, namely, that the accused must not only have intended to inflict the injury in fact caused but that he or she must also have known that the particular injury would result in death.7 However, the courts have correctly rejected this additional subjective requirement on the ground that it would render s 300(c) otiose in view of s 300(b).8 The point being made here is that the wording of s 300(c) lends itself, if anything, to a more subjective interpretation than a more objective one. 

Argument based on moral blameworthiness

The subjective interpretation of s 300(c) is further supported by the need for the degree of moral blameworthiness envisaged by that clause to be comparable with the moral blameworthiness found in the other three clauses of s 300. That is, the degree of blameworthiness must be such as to sufficiently approximate the paradigm fault element for murder of an intention to kill. The subjective interpretation achieves this by requiring the accused to have intended to cause the injury which was in fact caused and which, objectively assessed, was sufficient in the ordinary course of nature to result in death. Indeed, it has been surmised that s 300(c) was introduced by the Code framers to prevent accused, in cases where it may be difficult to prove an intention to kill, from avoiding a murder conviction.9  

In contrast, the degree of moral blameworthiness attached to s 300(c) by the objective interpretation of that clause, falls greatly short of the paradigm fault element of murder. There is an obvious difference in the moral culpability of a person who intends to kill and one who intends only to inflict a minor injury but happens to cause death. As Professor Ramraj has observed, the objective interpretation essentially creates an offence of constructive murder by assuming that the accused’s intention to inflict some injury is itself sufficient to attract liability for murder, whether or not the accused intended to cause an injury of a kind which could result in death.10 This directly counters the Code framers’ strong opposition to any form of constructive intent comprising the mens rea of murder.11 In sum, the objective interpretation of s 300(c) results in that clause being way out of kilter with the other clauses of the section. It is little wonder that, in practice, the prosecution has chosen to rely almost exclusively on s 300(c).  

Argument based on established judicial precedents

The Indian Supreme Court decision in Virsa Singh v State of Punjab12 is, without doubt, the leading case authority in both India and Singapore on the interpretation of s 300(c). As we shall see shortly, that decision clearly supports the subjective interpretation of the clause. Yet, although our courts frequently refer to the decision with approval, they have actually not followed it. Rather than cite here the oft quoted passage from Virsa Singh,13 I shall use the following pronouncement by the Indian Supreme Court in Rajwant Singh v State of Kerala to reveal the subjective interpretation advocated by Virsa Singh: 

As laid down in Virsa Singh, for the application of this clause it must be first established that an injury is caused; next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.14 

The penultimate sentence paraphrases the statement in Virsa Singh that ‘it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.’15 An examination of Singaporean judgments which have quoted this particular sentence from Virsa Singh reveals a common mistake. It is that, while our judges correctly point to the requirement of clause (c) that the accused must not have accidentally or unintentionally inflicted the bodily injury in question, they leave out entirely the other requirement mentioned in Virsa Singh that the accused must not have intended some other kind of injury. However, it is precisely this other requirement which indicates the Indian Supreme Court’s affirmation of the subjective interpretation. Just why our judges have chosen to ignore this aspect of the ruling in Virsa Singh is unclear.16  

Further confirmation that Virsa Singh supports the subjective interpretation of s 300(c) is to be found in the distinction drawn by the Indian Supreme Court between the ‘precise’ bodily injury on the one hand, and the ‘particular’ bodily injury on the other. The court held that the clause did not require the accused to have intended ‘every last detail [of the injury caused] as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart.’17 What s 300(c) did require was that, for the accused to be convicted of murder under this clause, he or she must have intended the injury in fact caused, the particularity of which should be viewed in a broad-based, simple and common sense way.18 That the Indian Supreme Court took pains to draw this distinction indicates beyond doubt the subjective interpretation it gave to s 300(c). While some of our own judges have quoted at length the passage in Virsa Singh where the distinction between ‘precise’ and ‘particular’ injuries is made, they appear not to have noticed its relevance to the subjective versus objective debate.19 

Judicial Treatment of Section 300(C)

Both Professors Sornarajah and Ramraj have ably critiqued many decisions of our High Court and Court of Appeal which have insisted on applying the objective interpretation to s 300(c).20 Rather than duplicate their efforts, I shall undertake an update by evaluating three of the most recent judgments of the Court of Appeal on the clause. Interestingly, in the last of these, the court appears to have made a sudden turnaround and adopted the subjective interpretation.

The first case is Chan Choon Wai v PP where the court said: 

It is settled law that for a charge under s 300(c) ... all that must be proved is that the accused intended to inflict the particular bodily injury and that injury was sufficient in the ordinary course of nature to cause death: see Virsa Singh v State of Punjab (1958) AIR SC 465 and Tan Joo Cheng v PP [1992] 1 SLR 620.21 

The court’s reference to Virsa Singh suggests its support for the subjective interpretation of s 300(c). Regrettably, the court’s added approval of its earlier decision in Tan Joo Cheng casts serious doubt on this conclusion. That Tan Joo Cheng supports the objective interpretation is clearly shown by the following comment from that decision: 

Even if an accused intended to inflict only a relatively minor injury, if the injury that he in fact inflicted pursuant to that intention was an injury sufficient in the ordinary course of nature to cause death, the provision of clause (c) of s 300 would be attracted.22 

What of the court’s reference in Chan Choon Wai to ‘the particular bodily injury’? On first reading, this might again suggest support for the subjective interpretation to be given to s 300(c). Regrettably, in another part of its judgment, we find the court saying that ‘it is sufficient if [the accused] intended to cause the particular injury (as opposed to an injury accidentally caused) ...’ As noted earlier, the requirement that for s 300(c) murder to be established the injury must not be accidental or unintentional, is only one part of the ruling in Virsa Singh. That part is not critical to the subjective versus objective controversy since all are agreed that the accused must have intended to cause injury — an accidentally or unintentionally caused injury will not suffice. It is the other requirement set down in Virsa Singh that s 300(c) will not apply if ‘some other kind of injury was intended’ by the accused which embodies the subjective interpretation. Consequently, the court’s confinement in Chan Choon Wai of ‘particular injury’ to non-accidental injury suggests an adherence to the objective interpretation of s 300(c).  

Much the same judicial handling of s 300(c) is evident in the second case of Vaithilingam v PP.23 The Court of Appeal described the clause as follows: 

It is trite law that to prove an accused guilty of murder under s 300(c) of the Penal Code, one of the essential elements which must be established is that ‘there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended’: see Virsa Singh v State of Punjab AIR 1958 SC 465 and Tan Cheow Bock v PP [1991] SLR 293.24

The court then proceeded to evaluate the trial judge’s finding that the accused had not accidentally caused the fatal stab wound. Although the above quoted statement includes the part of the ruling in Virsa Singh concerning the intention to cause some other kind of injury, the Court of Appeal ignored it completely when applying the law to the facts before it. According to Virsa Singh, such a lesser intention would have brought the case outside the scope of s 300(c).  

The Court of Appeal’s approval of its earlier decision in Tan Cheow Bock also has the effect of discarding the subjective interpretation pronounced by Virsa Singh. This is evident when it is noted that the court in Tan Cheow Bock had agreed that ‘[i]t is irrelevant and totally unnecessary to enquire what kind of injury the accused intended to inflict.’25 It would be difficult to find a more resounding endorsement of the objective interpretation of s 300(c) than these words. 

In the third and most recent case of Tan Chee Wee v PP, the Court of Appeal made a surprising and complete sea change concerning its interpretation of s 300(c).26 The relevant passage from the judgment reads: 

Section 300(c) ... envisions that the accused subjectively intended to cause a bodily injury that is objectively likely to cause death in the ordinary course of nature. There is no necessity for the accused to have considered whether or not the injury to be inflicted would have such a result. It is in fact irrelevant whether or not the accused did intend to cause death, so long as death ensues from the bodily injury or injuries intentionally caused. This was stated clearly in Tan Joo Cheng [1992] 1 SLR 620 where S Rajendran J delivering the judgment of this court adopted the judgment of Bose J in Virsa Singh v State of Punjab AIR (45) 1958 Supreme Court 465 at [16] that: 

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present ...

...

Whether the wound is serious or otherwise, and if serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. [Italics added for emphasis by the Court of Appeal in Tan Chee Wee but not in Tan Joo Cheng.] 

As such, in examining whether s 300(c) has been made out, the court’s approach to mens rea is only to determine whether the accused intended to cause the injury that resulted in the victim’s death.27 

There is no doubting from this passage that the Court of Appeal was subscribing to the subjective interpretation of
s 300(c). 

Further confirmation of this may be found in the court’s citation and handling of the usual passage from Virsa Singh.28 The court began by noting that the presence of a bodily injury, the nature of that injury and whether it was sufficient in the ordinary course of nature to cause death were all objective inquiries.29 The court then applied its mind to whether, in the present case, the prosecution had proven that the appellant had intended to inflict that particular injury. The court posed this inquiry in terms of ‘whether the appellant had intended to inflict the bodily injury, ie the 18 scalp lacerations and the underlying fractures to the skull’.30 This was the injury which the medical expert had opined was sufficient in the ordinary course of nature to cause death. Based on the evidence, the court concluded that ‘the appellant did intend to inflict the wounds on the deceased.’31 

The Court of Appeal in Tan Chee Wee did not provide any explanation for this sudden turnaround. Indeed, by referring with approval to its earlier decision in Tan Joo Cheng, the court seems to be contending that it was merely subscribing to the interpretation given to s 300(c) in its earlier judgments. Yet, it is plain that Tan Chee Wee was doing nothing of the sort and was actually heralding a new era for s 300 (c) murder in Singapore. I would like to think that the academic criticisms of the court’s previous decisions contributed in some way to this change of view. 

Utilising Legal Academic Discussions in Practice

When all is said and done, the observation remains true that the treatment given by academics to interpreting s 300(c) is starkly different from that given by our judges. While academics have engaged in lengthy discourses about the issue, the judges have disposed of it with a few short lines. Brevity may indeed be a virtue but, sadly and with due respect, this cannot be said of the Court of Appeal’s judgments on s 300(c) to date. As observed earlier, except for the court’s latest decision in Tan Chee Wee, the short passages in the judgments contain irreconcilable inconsistencies. They include purporting to affirm the ruling in Virsa Singh with its subjective interpretation of s 300(c) but, in the same breath, reaffirming the Court of Appeal’s own decisions which have embraced the objective interpretation of the clause.  

If we agree that a judicial practice of referring to academic commentary, including learned journal articles, can but enhance the quality of our court’s decisions, concerted efforts should be taken to promote the practice. I would contend that all the parties to criminal proceedings have a part to play. Hence, as an officer of the court, a public prosecutor ought to bring to the court’s attention any sound legal arguments whether or not they assist the prosecution’s case. With regard to defence counsel, one would have thought that academic commentaries, especially those supporting their client’s case, would be invaluable to their arguments in court. Ultimately, however, the initiative to incorporate academic discourse into judicial decision-making and judgments has to come from the judges themselves. They could do so by demanding that legal counsel cite not only primary but secondary sources of law including academic writings; they could require their law clerks to summarise for them the published arguments of legal academics; and they could expressly refer to those academic writings in their judgments. This last mentioned step is vitally important because it sends a clear message to all concerned — legal practitioners, fellow judges and academics — that the courts acknowledge that academic writings can help to increase the intellectual rigour of their judgments. 

Conclusion

The preceding discussion has dealt with two main themes. The first is that there are strong arguments for contending that the Court of Appeal has, until very recently, been in error in interpreting and applying s 300(c) of the Penal Code. The observation by Professor Sornarajah that the Indian courts are wary of convicting offenders for murder based on this clause bears repeating here.32 Where the Indian courts have done so, they have tended to impose a sentence of life imprisonment rather than the death penalty. In a jurisdiction such as ours where no such sentencing discretion exists for convicted murderers, and where the mandatory penalty is death, it is even more imperative for s 300(c) to be interpreted in the way intended by its framers. Thankfully, the latest pronouncement of the Court of Appeal has set the law right. 

The second theme is concerned with further improving the intellectual rigour of our appellate judgments. This can be achieved by developing a symbiotic relationship between the judges, legal practitioners and academic writers. The last group thrives (indeed, some would say, depends for its survival) on studying and critiquing the judgments of the appellate courts. While judges and legal practitioners may not feel the need to view the work of academics with the same interest and intensity, they owe it to the parties before them, the legal system and themselves to do so. This should especially be the case when there are in existence carefully considered and argued writings on a controversial aspect of the law. The academic writings on the proper interpretation to be given to s 300(c) afford a prime example. Using the work of legal academics in court argument and in judicial decisions, even if only to rebut the views put forward by the academics, can only greatly improve the soundness of legal argument and judicial reasoning in Singapore. In the words of Lord Bingham of Cornhill, uttered in a recent criminal case before the House of Lords: 

A decision is not, of course, to be overruled or departed from simply because it meets with disfavour in the learned journals. But a decision which attracts reasoned and outspoken criticism by leading scholars of the day, respected as authorities in the field, must command attention.33 

Stanley Yeo*