LAW AND SOCIETY
or knowing that death could result. In PP v Tan Joo Cheng (“Tan Joo Cheng”),12 the Court of Criminal Appeal went so far as to say even an accused intending to inflict only a relatively minor injury, if the injury he in fact inflicted met the requirements of section 300(c), he could be convicted or murder. Similarly, unlawful act manslaughter has the capacity of rendering petty criminals liable for a death caused. In R v Watson,13 a burglar was held liable for the death of the 87-year-old occupant from a coronary heart attack induced by the burglarious entry. The imposition of constructive liability in these cases is problematic for two reasons. Firstly, the chasm between blameworthiness and the offence gives rise to substantial injustice. It labels as murders and killers on individuals who are in truth moderately violent or petty criminals who are otherwise unlikely to kill. This is particularly egregious given the severe social stigmatisation attached to homicide offences. Hence, despite the low sentencing threshold for constructive manslaughter in the UK, constructive liability remains problematic. Section 300(c) of the Singapore Penal Code also constitutes an affront to proportionality, given the conviction for murder, and the accompanying death penalty or life sentence. Secondly, where the consequence of causing death is a distant and unforeseeable consequence of the initial wrongdoing, it is doubtful whether any significant deterrence effect is served. (iii) Conclusion Though the benign forms of constructive liability in homicide law across both jurisdictions are arguably justifiable, the same cannot be said for section 300(c) of the Singapore Penal Code and constructive manslaughter in the UK. Both are affronts to the ideals of autonomy, and the moral content of the law in basing punishment on the blameworthiness of the defendant. In particular, section 300(c) is, in addition to being unjust, also unnecessary, given that the same defendants can generally be caught by section 299(2). In the delineation of the distinct degrees of homicide, it is clear that the content of section 300(c) is much more appropriately categorised culpable homicide rather than murder.
Intention in the Law of Homicide The law of homicide is one where intention takes primacy. In section 300(a)-(c) of the Singapore Penal Code, as well as murder in English law, intention to kill or cause some degree of physical injury is a core constitutive requirement. Yet, there is considerable controversy and uncertainty as to the meaning of intent.
114
12
[1992] 1 SLR(R) 219, [1992] SGCA 12.
13
[1989] 2 ALL ER 865.
At the core, direct intention carries the connotation of purpose or aim. In Bhagwant Appaji v Kedari Kashinath,14 it is said that ‘intent’, by its etymology, seems to have metaphorical allusion to archery, and implies ‘aim’ and thus connotes the one object for which the effort is made. In UK, direct intent is left in its ordinary meaning to the jury,15 with the Law Commission defining it as ‘acting to bring something about’. However, oblique intent, which equates virtually certain foreseeability of a consequence as intent, complicates the picture, and it is the primary focus of this section. (i) Oblique Intention – A Normative Examination Commentators such as Glanville Williams have been ardent proponents of the inclusivity of oblique intention as part of intention in the law, arguing that there should be no legal difference between desiring or intending a consequence and persisting in one’s conduct with knowledge that the consequence will inevitably follow from it, though not desiring that consequence.16 The rationale for this appears to be that oblique intention is sufficiently proximate to the moral wrong of direct intention that any distinction would only be merely conceptual and substantively empty.17 A standard hypothetical is the case of the aeroplane bomber, who plants a bomb on an aeroplane with the intention of carrying out insurance fraud by blowing up his insured goods on the plane, but does not desire the death of the pilot although he foresees it as virtually certain. Here, to not hold that he intended to kill the pilot would seem like an absurdity. However, importantly, the conceptual distinction between foresight and intent is a significant one. John Finnis and Michael Moore18 are proponents for its preservation, arguing that intention is distinct as the most serious kind of mens rea because the actor sought to control and endorse the result, and for that reason side effects are normatively distinct. This is supported by cases of oblique intent where the mental state of a defendant is ostensibly distinct from a common-sensical construction of intent. In the hypothetical of the burning father throwing his baby from the top of a burning building in a last-ditch attempt to save him, despite knowing that it is virtually certain to cause his death, it would be an affront to common sense to hold the father 14
(1901) ILR 25 Bom 202, 206.
15
R v Moloney [1985] AC 905.
16
R v Nedrick [1986] 1 WLR 1025.
17 H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 120 (2nd edn, Oxford Publications 2008). 18 Michael Moore, Placing Blame: A theory of the Criminal Law (Clarendon Press, 1997); John Finnis, ‘Intention and Side-Effects’, in R. Frey and C. Morris (eds), Liability and Responsibility: Essays in Law and Morals (Cambridge University Press, 1991).