Daniel Vijay v PP: Joint Murder Charge & Common Intention in Robbery

Daniel Vijay s/o Katherasan, Christopher Samson s/o Anpalagan, and Nakamuthu Balakrishnan appealed their High Court convictions for murder in Criminal Case No 16 of 2007. The Court of Appeal, with Chan Sek Keong CJ delivering the judgment, allowed the appeals in part for Daniel and Christopher, substituting their murder convictions with convictions for robbery with hurt under Section 394 of the Penal Code read with Section 34. The court affirmed Nakamuthu Balakrishnan's murder conviction. The case involved a robbery of mobile phones where the victim, Wan Cheon Kem, was fatally assaulted. The primary legal issue concerned the scope of Section 34 of the Penal Code regarding common intention and constructive liability in a joint criminal act.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Allowed in Part

1.3 Case Type

Criminal

1.4 Judgment Type

Final Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal clarifies the application of Section 34 of the Penal Code in a joint murder charge during a robbery.

1.7 Decision Date

2 September 2010

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Daniel Vijay s/o Katherasan	Appellant	Individual	Appeal Allowed in Part	Partial	James Bahadur Masih, Amarick Singh Gill
Christopher Samson s/o Anpalagan	Appellant	Individual	Appeal Allowed in Part	Partial	Subhas Anandan, Sunil Sudheesan
Nakamuthu Balakrishnan (alias Bala)	Appellant	Individual	Appeal Dismissed	Lost	Mohamed Muzammil bin Mohamed, Allagarsamy s/o Palaniyappan
Public Prosecutor	Respondent	Government Agency	Partial Loss	Partial	S Jennifer Marie, David Khoo, Ng Yong Kiat Francis, Ong Luan Tze

3. Judges

Judge Name	Title	Delivered Judgment
Chan Sek Keong	Chief Justice	Yes
V K Rajah	Justice of the Court of Appeal	No
Choo Han Teck	Judge	No

4. Counsels

Counsel Name	Organization
James Bahadur Masih	James Masih & Co
Amarick Singh Gill	Amarick Gill & Co
Subhas Anandan	KhattarWong
Sunil Sudheesan	KhattarWong
Mohamed Muzammil bin Mohamed	Muzammil & Co
Allagarsamy s/o Palaniyappan	Allagarsamy & Co
S Jennifer Marie	Attorney-General's Chambers
David Khoo	Attorney-General's Chambers
Ng Yong Kiat Francis	Attorney-General's Chambers
Ong Luan Tze	Attorney-General's Chambers

4. Facts

Daniel and Christopher assisted Bala in a plan to rob a lorry carrying mobile phones.
Bala assaulted the lorry driver, Wan, with a baseball bat, causing fatal injuries.
Daniel and Christopher were present during the assault but did not directly participate in it.
The Appellants had a common intention to rob Wan, but no common intention to cause his death.
Daniel and Christopher knew that violence would be necessary to overpower Wan.
Bala took the baseball bat with him when he alighted from Lorry 9520 and tried to hide it behind his left leg.
Wan died without regaining consciousness on 5 June 2006, about five days after the robbery.

5. Formal Citations

Daniel Vijay s/o Katherasan and others v Public Prosecutor, Criminal Appeal No 1 of 2008, [2010] SGCA 33
Public Prosecutor v Daniel Vijay s/o Katherasan and others, , [2008] SGHC 120

6. Timeline

Date	Event
1872-01-01	Section 34 of the 1871 Penal Code enacted when Singapore was part of the Straits Settlements.
2006-05-01	Ragu and Babu hatch a plan to rob expensive cargo transported by Sterling.
2006-05-29	Babu and the Appellants meet at a coffee shop to discuss the robbery plan.
2006-05-30	Ragu informs Babu that Sterling will be delivering the Cargo that morning.
2006-05-30	Appellants proceed to CAC in a rented lorry, taking with them the baseball bat.
2006-05-30	Appellants see Lorry 815 being driven out of CAC.
2006-05-30	Wan is assaulted by Bala repeatedly on the head with the baseball bat.
2006-05-30	Daniel and Christopher drive Lorry 815 to Pasir Ris Car Park A.
2006-05-30	Daniel and Bala transfer two pallets of the Cargo from Lorry 815 to Lorry 9520.
2006-05-30	Babu arrives at Car Park A, and the remaining eight pallets of the Cargo are transferred to Babu’s lorry.
2006-05-30	A member of the public reports finding a man covered in blood in a lorry.
2006-05-31	Bala is arrested.
2006-06-01	Ragu and Babu are arrested.
2006-06-05	Wan dies without regaining consciousness.
2006-06-05	Daniel and Christopher surrender themselves to the police.
2007-04-24	Ragu is charged with abetment of robbery.
2008-11-13	First hearing of the appeal.
2009-01-15	Daniel informs the court of his decision to proceed with the appeal.
2009-04-09	Second hearing of the appeal.
2010-09-03	Judgment reserved.

7. Legal Issues

Common Intention
- Outcome: The Court of Appeal clarified the application of Section 34 of the Penal Code, emphasizing the need for a common intention to commit the specific criminal act.
- Category: Substantive
- Sub-Issues:
  - Scope of common intention
  - Application of Section 34 of the Penal Code
  - Constructive liability
  - Participation in criminal act
  - Pre-arranged plan
Constructive Liability
- Outcome: The Court of Appeal clarified the requirements for imposing constructive liability under Section 34, emphasizing the need for subjective knowledge of the likelihood of the collateral offense happening.
- Category: Substantive
- Sub-Issues:
  - Extent of liability for secondary offenders
  - Requirement of participation
  - Subjective knowledge of potential offenses

8. Remedies Sought

Appeal against conviction for murder
Acquittal

9. Cause of Actions

Murder
Robbery

10. Practice Areas

Criminal Law
Appeals

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Shaiful Edham bin Adam and another v Public Prosecutor	Court of Appeal	Yes	[1999] 1 SLR(R) 442	Singapore	Cited to highlight the divergent lines of authority on the scope of Section 34 of the Penal Code.
Lee Chez Kee v Public Prosecutor	Court of Appeal	Yes	[2008] 3 SLR(R) 447	Singapore	Cited to show the restriction of the legal principle encapsulated in the accepted line of authority on Section 34.
Wong Mimi and another v Public Prosecutor	Court of Criminal Appeal	Yes	[1971–1973] SLR(R) 412	Singapore	Cited for statements on the scope of Section 34, leading to uncertainty in its application in 'twin crime' cases.
Public Prosecutor v Lim Poh Lye and another	Court of Appeal	Yes	[2005] 4 SLR 582	Singapore	Cited to reaffirm the principles set out by the Supreme Court of India in Virsa Singh apropos the Indian equivalent of s 300(c) of the Penal Code
Virsa Singh v State of Punjab	Supreme Court of India	Yes	AIR 1958 SC 465	India	Cited for the test regarding the requirements for liability for the offence of murder as set out in s 300(c) of the Penal Code.
Too Yin Sheong v Public Prosecutor	Court of Appeal	Yes	[1999] 1 SLR 682	Singapore	Cited to note that the reason why all are deemed guilty in such cases is, the presence of accomplices gives encouragement, support and protection to the person actually committing the act.
Mahbub Shah v King-Emperor	Privy Council	Yes	AIR 1945 PC 118	United Kingdom	Cited to explain that common intention within the meaning of the section implies a pre-arranged plan.
Ike Mohamed Yasin bin Hussin v Public Prosecutor	Court of Criminal Appeal	Yes	[1974–1976] SLR(R) 596	Singapore	Cited to illustrate the requirement of consistency between the criminal act done by the actual doer which gives rise to the offence charged and the criminal act commonly intended by all the above offenders.
Rex v Vincent Banka & Anor	Straits Settlements Court of Criminal Appeal	Yes	[1936] MLJ 53	Malaysia	Cited to show that the court rejected the argument that inasmuch as the fatal wound was inflicted in carrying out a common intention on the part of both accused to rob the victim, it was immaterial which of the two had inflicted the wound.
Regina v Rahman and others	House of Lords	Yes	[2009] 1 AC 129	United Kingdom	Cited to show that a secondary offender would be made constructively liable for a crime committed by the actual doer if the secondary offender had foresight of what the actual doer might do.
R v Mendez and another	English Court of Appeal	Yes	[2010] 3 All ER 231	United Kingdom	Cited to show that in cases where the common purpose is not to kill but to cause serious harm, D is not liable for the murder of V if the direct cause of V’s death was a deliberate act by P which was of a kind (a) unforeseen by D and (b) likely to be altogether more life-threatening than acts of the kind intended or foreseen by D.
Barendra Kumar Ghosh v Emperor	Privy Council	Yes	AIR 1925 PC 1	United Kingdom	Cited to explain the rationale of the amendment effected by s 1 of the 1870 IPC Amendment Act.
Ibra Akanda and others v Emperor	High Court of Calcutta	Yes	AIR (31) 1944 Cal 339	India	Cited to provide a similar explanation of the purpose of the amendment made by s 1 of the 1870 IPC Amendment Act.
Mahbub Shah v Emperor	Privy Council	Yes	AIR (32) 1945 PC 118	United Kingdom	Cited to show that Section 34 lays down a principle of joint liability in the doing of a criminal act.
Rex v Chhui Yi	Straits Settlements Court of Criminal Appeal	Yes	[1936] MLJ 142	Malaysia	Cited to clarify the statement of principle enunciated by Huggard CJ in Vincent Banka.
Bhaba Nanda Sarma and others v The State of Assam	Supreme Court of India	Yes	AIR 1977 SC 2252	India	Cited to show that to attract the application of S. 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all.
Hardev Singh and another v The State of Punjab	Supreme Court of India	Yes	AIR 1975 SC 179	India	Cited to show that the common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention.
Surat Singh and another v State of Punjab	Supreme Court of India	Yes	AIR 1977 SC 705	India	Cited to show that the High Court did not say that the common intention was to cause death or to cause such injuries which on an objective test were found to be sufficient in the ordinary course of nature to cause death.
Dharam Pal and others v State of Haryana	Supreme Court of India	Yes	AIR 1978 SC 1492	India	Cited to show that a criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former.
Munna and Ayyia v State of U P	Supreme Court of India	Yes	AIR 1993 SC 278	India	Cited to show that Ayyia had no idea that Munna would take out the knife and cause the fatal injury to Nafis.
Mithu Singh v State of Punjab	Supreme Court of India	Yes	AIR 2001 SC 1929	India	Cited to show that to substantiate a charge under S. 302 with the aid of S. 34, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both.
Emperor v Mujjaffar Sheikh and another Accused	High Court of Calcutta	Yes	AIR 1941 Cal 106	India	Cited to show that in order to make a person constructively liable with the aid of S. 34, IPC, for an offence not actually committed by him, it must always be shown that the person so sought to be made liable had the intention requisite for the constitution of that particular offence.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Penal Code (Cap 224, 1985 Rev Ed) Section 34	Singapore
Penal Code Section 302	Singapore
Penal Code Section 300	Singapore
Penal Code Section 394	Singapore
Penal Code Section 396	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Common intention
Constructive liability
Section 34 Penal Code
Robbery
Murder
Joint criminal enterprise
Furtherance
Pre-arranged plan
Participation
Subjective knowledge
Criminal act
Collateral offence

15.2 Keywords

Common intention
Section 34
Penal Code
Murder
Robbery
Constructive liability
Joint enterprise

16. Subjects

Criminal Law
Joint Enterprise
Constructive Liability
Common Intention
Statutory Interpretation

17. Areas of Law

Criminal Law
Penal Code
Robbery
Murder
Joint Criminal Enterprise