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Soosay v Public Prosecutor

COURT OF CRIMINAL APPEAL CRIMINAL APPEAL NO 34 OF 1992
YONG PUNG HOW CJ, GOH JOON SENG AND KARTHIGESU JJ
10 AUGUST 1993

Criminal Law Murder Sudden fight Lack of premeditation Sudden quarrel

Whether accused took undue advantage or acted in cruel or unusual manner Penal
Code (Cap 224) s 300 & 300(c), exception 4
Criminal Law Murder Private defence What has to be proved Apprehension of
danger to accuseds life had ceased Right of private defence exceeded Penal Code
(Cap 224) s 300(c) exception 2

On 25 October 1990 the appellant went with two of his friends, Leo Chin
Hwang (Leo) and Kuppiah Saravanan (Kuppiah), to Johore Road for
drinks. There, Leo befriended one Lim Yeow Chuan (Lim) whose sexual
services he desired. Leo then left with Lim for Lorong 9, Geylang, at which
premises the appellant had the use of two rooms. The appellant and Kuppiah
returned to the same premises later.
When Leo woke up the next morning he found that Lim had gone and
that his gold chain and money were missing. He confronted the appellant
and Kuppiah but they did not know anything about the gold chain and
money. They surmised that Lim must have stolen them. Later that evening,
determined to get his gold chain back, they proceeded to Johore Road in
search of Lim. There, they spotted Lim but the appellant and Kuppiah
persuaded Leo to return home and to leave the recovery of the gold chain to
them. Leo did so.
The appellant and Kuppiah remained at Johore Road drinking. After a
while Kuppiah saw Lim and went to consort with Lim. Kuppiah, on Lims
suggestion, then went to buy some beer. He then called out to the appellant
who was still seated at the table where the two previously were.
The appellant joined Kuppiah and Lim and told Lim they wanted the
return of the gold chain as it was precious to Leo. Lim feigned ignorance
and became abusive. Kuppiah admonished Lim for being abusive and said
that if he did not show respect he would be assaulted. On hearing this Lim
stepped back, opened his handbag, drew out a knife and pointed it at
Kuppiah and threatened as if to go at Kuppiah with the knife. On seeing
this, the appellant kicked him in the stomach. Lim fell and lost hold of both
the knife and his handbag. Kuppiah picked up the handbag and, upon seeing
the appellant engaged with Lim in a fight, ran down Queen Street. The
appellant eventually caught up with Kuppiah and they made off in a taxi.
Lims body was subsequently found at the junction of Queen Street and
Rochore Road. A post-mortem examination showed that he had died from
massive haemorrhage due to stab wounds of the stomach. The appellant was
charged with Lims murder. At the trial, the appellant testified that after
seeing Lim draw out the knife he kicked Lim. Lim fell and lost hold of the
knife. Seeing Lim reach out for the knife, the appellant grabbed hold of it.

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Lim rushed towards the appellant. The appellant parried Lim with his left
hand which caused Lim to turn to the left; at the same time the appellant
thrust the knife at Lims buttock. Lim turned and grabbed the appellants
upper arm whereupon the latter, to free himself, stabbed Lim in his left
back. Lim loosened his grip and the appellant pushed him away but Lim
came charging at the appellant again. The appellant moved to one side and
Lim came into contact with the knife at his abdominal region. At the end of
the trial, the learned judge found the appellant guilty and convicted him
accordingly. The appellant appealed.
Held, allowing the appeal:
(1) The trial judge failed to sufficiently direct his mind to the unchallenged
and uncontradicted evidence of the appellant and hence failed to
sufficiently direct his mind to the question of premeditation and the
statutory exceptions to s 300 on which the appellants defence was
based.
(2) It was plainly evident that there was no premeditation on the part of the
appellant to engage Lim in a fight to recover from him Leos gold
chain. Plainly, Lim was the aggressor despite the fact that it was
Soosay who was armed with the knife, having beaten Lim to it earlier.
(3) It was equally clear that there was a sudden quarrel over Leos gold
chain which immediately resolved itself into a sudden fight and that the
blows were struck in the heat of a fight.
(4) The key question was whether the appellant took undue advantage or
acted in a cruel or unusual manner. In this regard, the trial judge
overlooked a vital aspect of the uncontroverted evidence that Lim kept
coming at the appellant each time he was repulsed and the appellant
was unable to disengage himself from the fight which was in fact
started by Lim drawing the knife from his handbag.
(5) It could not be said that the appellant had taken undue advantage or
acted in a cruel or unusual manner as the injuries were inflicted in a
fight during which Lim could well have taken hold of the fallen knife
before the appellant did or even wrested it from him in which case,
judging from Lims temperament shown earlier, Lim would have used
it on the appellant and Kuppiah with devastating effect. The appellant
had not, on a balance of probabilities, taken undue advantage or acted
in a cruel or unusual manner.
(6) Accordingly, the appeal would be allowed, the conviction of murder
quashed and in its place a conviction for culpable homicide not
amounting to murder under s 304 of the Penal Code substituted.
(7) In order to set up the defence of private defence, the appellant would
have to prove on a balance of probabilities that (a) the right of private
defence had arisen; (b) the right was exercised in good faith; (c) the
death was caused without premeditation; and (d) the death was caused
without any intention of doing more harm than was necessary for the
purpose of such defence.
(8) Although the appellant acted in good faith in defending himself, the
right of private defence ceased the moment the knife was dislodged

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from Lims hold and the appellant had taken possession of it as at that
point in time there was no longer any apprehension of danger to the
appellants life.
(9) In any event, the right of private defence, if at all applicable, was far
exceeded by the appellant and the trial judge was right to have rejected
this defence.
(10) On the facts, it could not be said that the appellant had the intention of
causing Lims death or of causing such bodily injury to him as is likely
to cause death.
(11) The appellant was accordingly sentenced to imprisonment for a term of
nine years under s 304(b) of the Penal Code.
Obiter:
The proposition in Nga Nyi v Emperor5 that exception 4 of s 300 applied
even when a victim had disengaged himself from a fight and the offender
pursued the advantage he had obtained was too wide and inconsistent with
the Privy Council decision in Mohamed Kunjo v PP.3
Cases referred to
1 Kirpal Singh v The State AIR 1951 Punjab 137 (folld)
2 PP v Seow Khoon Kwee [1989] 2 MLJ 100 (folld)
3 Mohamed Kunjo v PP [1978] 1 MLJ 51 (folld)
4 PP v Ramasamy a/l Sebastion [1991] 1 MLJ 75 (folld)
5 Nga Nyi v Emperor (1936) 38 Cr LJ 321 (not folld)

Legislation referred to
Criminal Procedure Code (Cap 68) ss 121(1), 122(6)
Penal Code (Cap 224) ss 96, 97, 99, 100, 102, 300 exceptions 1, 2, 4,
300(c), 304(a), (b)
R Palakrishnan (Palakrishnan & Pnrs) and Roy Monoj Kumar (Hilborne &
Co) for the appellant.
Chua Eng Hui (State Counsel, Attorney Generals Chmabers) for the
respondent.

Cur Adv Vult

Karthigesu J (delivering the judgment of the court): Soosay a/l Sinnappen
(Soosay), a Malaysian, was convicted on 2 November 1992 of the murder of
Lim Yeow Chuan (Lim), a male transvestite, and sentenced to death. The charge
against him was that on 27 October 1990 at about 12.30am he had stabbed Lim to
death at Queen Street, Singapore.
In the main, the facts are not in dispute. Soosay had the use of two rooms at
premises in Lorong 9, Geylang. On 25 October 1990 Soosay and three of his
friends were having a drink at a coffee shop at Geylang Road. One of them, Leo
Chin Hwang (Leo) suggested that they go to Johore Road to continue their
drinking. Soosay, Leo and another friend, Kuppiah Saravanan (Kuppiah) then
proceeded to Johore Road, a place known to them, to be habituated by transvestites,
amongst others. They consumed beer which was the drink they were having at

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Geylang Road. Leo befriended Lim, whose sexual services he desired. Leo then
left with Lim for the premises at Lorong 9, Geylang. Soosay and Kuppiah stayed
drinking at Johore Road and returned to the premises at Lorong 9, sometime past
midnight and after a while, playing a computer game, went to sleep in the vacant
room.
On arrival at Lorong 9, Leo purchased two cans of beer at the request of Lim
before the two of them retired to one of the two rooms Soosay had the use of. It
appears that Leo had passed out after drinking the beer Lim had poured for him
in a glass. When he woke up in the morning he found that Lim had gone and that
his gold chain and money were missing. He confronted Soosay and Kuppiah but
they did not know anything about Leos gold chain and money. However, Soosay
remembered he had seen Leo wandering about the toilet in a stupor when he and
Kuppiah had returned to the premises at Lorong 9 and that he, Soosay, had guided
Leo back to the room he had occupied with Lim. They surmised that Lim had
made away with Leos gold chain and money before they had returned.
The gold chain was a gift from Leos wife when he had married her. He was
determined to get it back. He arranged to meet Soosay and Kuppiah at the coffee
shop in Geylang that evening to discuss how they should go about it. Accordingly
they met that evening, 26 October 1990, at the coffee shop in Geylang. Leo was
distraught at having his gold chain stolen, as he believed, by Lim. After some
discussion during which time they consumed a few beers between them, they
decided to go to Johore Road in search of Lim, although they had no definite plans
how they were going to recover the gold chain from Lim, if it was he who had
stolen it.
They arrived at Johore Road shortly after 9pm. A little after their arrival, Leo
spotted Lim and pointed him out to Soosay and Kuppiah. Leo wanted to approach
Lim but was dissuaded by Soosay and Kuppiah from doing so as they feared Lim
might be frightened away. In fact Soosay and Kuppiah persuaded Leo to return
home and leave the recovery of the gold chain to them. Leo did so.
Soosay and Kuppiah did not straightaway confront Lim. Instead, they stayed at
their table drinking beer entertaining and being entertained by other transvestites.
After a while Kuppiah saw Lim and without alerting Soosay left the table to
consort with Lim. As Kuppiah was about to leave Johore Road with Lim, Lim
suggested that Kuppiah buy a few cans of beer to take with them on their
assignation. Kuppiah walked back to the shop he was with Soosay drinking beer
and bought a can of beer. Whilst he was walking back to where Lim waited for
him at Queen Street, he opened the can of beer. Lim did not approve of this and
scolded Kuppiah for having done so and crossed to the other side of Queen Street.
Kuppiah followed. It was Kuppiahs intention to walk along Queen Street in the
direction of Rochore Road in search of a taxi. However, when Lim scolded him,
he pretended he had left something behind, stopped in his tracks and called out to
Soosay who was still seated at the table he and Kuppiah previously were.
Soosay immediately joined Kuppiah and Lim, and told Lim that he and
Kuppiah were Leos friends from whom Lim had stolen a gold chain and money
the previous night after spiking Leos beer at premises in Lorong 9, Geylang. All
that Soosay and Kuppiah wanted was the return of Leos gold chain as it was
precious to Leo. Lim feigned ignorance and when Soosay persisted in his request
for the return of Leos gold chain became abusive. Kuppiah admonished Lim for

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being abusive and said that if he did not show respect he would be assaulted. On
hearing this Lim stepped back, opened the handbag he was carrying, drew out a
knife and pointed it at Kuppiah and threatened as if to go at Kuppiah with the
knife. On seeing this Soosay kicked him in the stomach. Lim fell to the ground
and lost hold of both the knife and the handbag.
At this juncture we should mention that there is some divergence of opinion of
where the knife came from. At the trial the prosecution made a feeble attempt to
persuade the trial judge that Soosay had armed himself with a knife when he went
to join Kuppiah and Lim. It was said he had taken the knife from a nearby hawker
stall. The basis of this version of the evidence is Soosays 121(1) statement itself.
(However Soosay retracted this portion of his 121(1) statement when he gave
evidence in his defence.) In fact Soosay made a 121(1) and a 122(6) statement.
Both statements were made on the very day Soosay was arrested for this offence,
namely, 30 December 1990. The prosecution sought to admit these two statements
as part of their case. The statements were objected to on the ground that they were
not made voluntarily. After a trial-within-a-trial, the learned trial judge admitted
both statements.
It should also be mentioned that the question of the voluntariness of both these
statements is not in issue in this appeal. Be that so the learned trial judge did not
accept the statement in Soosays 121(1) statement that he had taken the knife from
a nearby hawker stall on his way to join Kuppiah and Lim on being hailed by
Kuppiah. Instead he accepted Kuppiahs evidence (Kuppiah was called as a
prosecution witness) that Lim had taken the knife from his handbag as stated
above. The prosecution no longer seeks to uphold Soosays 121(1) statement on
this point.
Although the learned trial judge does not in his grounds of judgment specifically
make a finding of fact as to the origin of the knife, it is, in our view, tantamount
to a finding of fact since the learned trial judge in his narration of the facts
accepted that the knife was first drawn by Lim which he took out from the
handbag he was carrying. There was no other knife. The significance of this will
be appreciated with greater force later but for the present suffice it to say, that this
shows clearly that there was no premeditation on the part of Soosay to cause the
death of Lim or to do him grievous hurt.
As pointed out earlier, the prosecution depended almost entirely on Soosays
121(1) and 122(6) statements supplemented by the evidence of Kuppiah, the only
prosecution eye witness of fact. However, Kuppiahs evidence is devoid of details
as to what happened after Soosay had kicked Lim in the stomach and Lim had
fallen to the ground and lost hold of the knife and the handbag he was carrying.
All that Kuppiah was able to say was that he started to kick and punch the fallen
Lim and pull at his hair in the process of which he pulled off a gold chain. He then
saw Lims handbag lying on the ground and went to pick it up. When he turned
round after picking up the handbag he saw that Lim was facing him; Soosay was
behind him holding something in his hand and making a poking motion towards
the derriere of Lim. Seeing this he started to run down Queen Street in the
direction of Rochore Road. Shortly after he had started running he heard Soosay
call out to him to hail a taxi. He turned round and saw that Soosay was also
running behind him towards Rochore Road pursued by Lim. Soosay caught up
with him and they made off in a passing taxi which had stopped for them.

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Lims body was found at the junction of Queen Street and Rochore Road, a
distance of approximately 180 yards from where the fracas had taken place. The
body had no vital signs when conveyed to the General Hospital. A post mortem
examination showed that Lim had died from massive haemorrhage due to stab
wounds of the stomach. In all there were found on Lims body five stab wounds;
(i) at the right breast; (ii) at the lower lateral chest wall region; (iii) at the left
lower thoracic back region; (iv) at the sacral back region; and (v) at the right
buttock region. There was also a slash wound at the base of the chin at the floor
of the mouth. The forensic evidence was that wounds (ii) and (iii) were the fatal
wounds, either of which was sufficient to cause death in the ordinary course of
nature. The wounds were consistent with those caused by a knife similar to the
one recovered from near the scene.
Soosay gave evidence in his own defence. It was substantially similar to
Kuppiahs evidence on which we have, as the learned judge did, based our
narration of the facts so far. It is unnecessary to repeat it. We shall confine
ourselves to the crucial events that followed after Kuppiah had kicked and
punched the fallen Lim and had then gone to pick up Lims handbag. The learned
trial judge summarized Soosays evidence as follows:
The transvestite [Lim] recovered and got up. He was trying to reach for the fallen knife
but before he could do so the accused [Soosay] grabbed it. According to the accused,
the deceased then rushed at him. The accused was then holding the knife in his right
hand. When the deceased rushed at him, the accused pushed him by his shoulder with
his left hand. As the deceased turned to his left the accused stabbed him on his right
buttock. The deceased then turned and grabbed the accuseds upper arms. In order to
free himself from the deceased, the accused stabbed the deceased at his left back. When
the deceased momentarily released his grip on the accused the accused pushed him
away. But the deceased who was on his feet was unrelenting and came charging at the
accused again. This time the accused was holding the knife in his right hand at about his
waist level. When the deceased charged at him, the accused moved to the side and it
was at that point of time that the deceased came into contact with the knife resulting in
injuries to the right abdominal region.
The accused said he did not intend to stab the deceased. Further, according to the
accused, the deceased kept coming back at him and when the accused swung the knife,
it made contact with the chin of the deceased. The continued charges by the deceased
resulted in further injuries to the deceased and the accused again stabbed the deceased
at the breast. But when the deceased took a few steps back, the accused turned and
started running down Queen Street. The deceased was chasing him. The accused saw
Kuppiah in front of him and shouted to him to hail a taxi. The taxi Kuppiah managed
to hail took both of them to the Paya Lebar MRT station from where they made their
way to the accuseds room in Geylang.

We accept the above as an accurate summary of Soosays evidence given at the

trial. The learned trial judge, however, does not say in his grounds of judgment
whether he accepted or rejected Soosays evidence. His approach was to deal with
the case, and he was encouraged by the prosecution to do so, as though it were a
case involving s 300(c) of the Penal Code and no more. He considered that the
injuries caused by Soosay to Lim in the fracas described above were neither
accidental nor unintentional but, having regard to the nature of the injuries, were
inflicted wilfully and deliberately and concluded that this case came fairly and
squarely within the much debated provisions of s 300(c) as explained by the cases.

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In doing so he failed to sufficiently direct his mind to the unchallenged and

uncontradicted evidence of Soosay and hence failed sufficiently to direct his mind
to the question of premeditation and the statutory exceptions to s 300 on which
Soosays defence was based. It is right to point out that Soosays oral testimony
in court was not even contradicted by his 121(1) and 122(6) statements except as
to where he got the knife from which the learned trial judge, correctly, in our
view, rejected.
Had he done so he would have realized that the first show of stark violence
came from Lim when he took out the knife from the handbag he was carrying and
pointed it threateningly towards Kuppiah. Admittedly this was in response to
Kuppiahs stern admonition for Lims use of vulgar or obscene language to
Kuppiahs and Soosays request for the return of Leos gold chain. In our view
such admonition even accompanied by a threat of assault is hardly sufficient
reason for drawing a knife. Soosays reaction was instant. It was to disarm Lim.
He aimed a kick at Lim which landed on his stomach. Lim fell to the ground and
lost hold of the knife. Soosay, if his evidence is to be believed and in our view
there is no reason for not believing it as there is no other evidence, did not go for
the fallen knife until he noticed that Lim was reaching out for it. It was then that
he went for it and beat Lim to it. The next step in the sequence of events as one
can discern it from the available evidence is that Lim rushed at Soosay who was
holding the knife he had picked up. When Lim rushed at Soosay he parried Lim
with his left hand which caused Lim to turn to his left; at the same time Soosay
thrust the knife at Lims buttock. Hence wound number (v). The next injury
caused in sequence was wound number (iii) described by the forensic pathologist
as one of the two fatal wounds. This was inflicted when after being parried away
Lim turned and grabbed Soosays upper arm whereupon Soosay to free himself
stabbed Lim at his left back which in the words of the forensic pathologist is the
left lower thoracic back region. Lim loosened his grip and Soosay pushed him
away but in the words of the learned trial judge Lim was unrelenting and came
charging at the accused [Soosay] again. It is best that we quote directly from
Soosays evidence as to what happened.
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A

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What happened to her as you pushed her off? Can you be more specific? What
happened to her?
She was still standing, Your Honour.
She was still standing. What about you? What did you do?
I was holding the knife like this. I was still standing when she attacked.
(His Honour): I was still holding the knife in my hand?
Yes, I was holding the knife in my hand like this.
(His Honour):At the waist level?
Down here, Your Honour. Just like this (witness points).
(His Honour): On the waist level. Pointing towards her?
Yes, pointing towards her.
Now, as you were pointing the knife towards her while standing, what did she do?
She charged towards me, Your Honour.
What happened?
I moved to the side a bit, Your Honour.
(His Honour): You stepped aside?
I just stepped a bit, a little bit just like this. That is when she made contact with the
knife because she charged at me. I turned and she made contact with the knife.

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That was the injury. It was here. It was at the lower abdominal area, somewhere
this side (witness points).

Although it is not very clear, it seems that Soosay was trying to get out of his way.
Anyhow this was the other fatal wound number (ii) described by the forensic
pathologist as at the lower lateral chest wall region. This is not the end of the
story for notwithstanding the two fatal injuries Lim had received he still kept
going at Soosay until he staggered a few steps back when Soosay took that
opportunity to run away towards Queen Street. Lim having regained his balance
pursued him until he collapsed some 180 yards from where all this had taken
place.
It is plainly evident to us from Soosays evidence as summarized by the
learned trial judge and as analyzed by us above and from the whole of the
evidence which we have scrutinized carefully that there was no premeditation on
the part of Soosay to engage Lim in a fight to recover from him Leos gold chain.
Plainly, Lim was the aggressor despite the fact that it was Soosay who was armed
with the knife, having beaten Lim to it earlier.
As was said by Bhandari J in Kirpal Singh v The State1 at p 140, followed by
LP Thean J in PP v Seow Khoon Kwee:2
To constitute a premeditated killing it is necessary that the accused should have
reflected with a view to determine whether he would kill or not; and that he should have
determined to kill as the result of that reflection; that is to say, the killing should be a
pre-determined killing upon consideration and not a sudden killing under the momentary
excitement and impulse of passion upon provocation given at the time or so recently
before as not to allow time for reflection.

The learned trial judge got round the question of whether the fight and the
stabbing of Lim was premeditated or not by dealing with the case under s 300(c).
Whether that be right or not the learned trial judge should have addressed his mind
first, to the question whether on the evidence as a whole there was premeditation
or not on the part of Soosay to engage Lim in a fight as on that question, as will
be seen later, the success or failure of the defence of establishing one or other of
the statutory exceptions relied on, vitally depends. The common factor of the
statutory exceptions to murder of grave and sudden provocation (exception 1 of s
300); the right of private defence (exception 2 of s 300); and sudden fight
(exception 4 of s 300) is that they all depend on there being no premeditation in
causing death or grievous bodily harm which results in death.
At the trial every conceivable statutory exception to murder was raised by way
of defence. Before us, Mr Palakrishnan very properly confined himself to showing
that there was no premeditation on the part of Soosay to cause Lims death or to
cause grievous bodily injury to Lim which would result in death and to the
statutory exceptions of the right of private defence and sudden fight. The statutory
exception of grave and sudden provocation which was relied on quite heavily at
the trial was quite rightly in our view not pursued before us.
We will deal with sudden fight first as that was the order in which counsel dealt
with these two statutory exceptions to murder. The learned trial judge dealt with
this exception sparsely. In his grounds of judgment he said:
Cases on this aspect are legion but the law has been fully dealt with in Mohamed Kunjo
v PP [1978] 1 MLJ 51. One of the principles of law laid down in that case was that the

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accused should not take undue advantage of the victim. Undue advantage was held to
mean unfair advantage. In the case before me, even assuming that there was no
premeditation and that there was sudden fight, the factual matrix of the encounters and
exchange between the accused and the deceased show without doubt that the accused
acted in a cruel and unusual manner. He did not have to resort to the use of a knife or
at least he could have stopped after the first stab on the buttocks of the deceased. In the
circumstances, the defence based on exception 4 also fails.

Exception 4 to s 300 of the Penal Code provides:

Culpable homicide is not murder if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel, and without the offender having
taken undue advantage or acted in a cruel or unusual manner.

We have already concluded that on the evidence there was no premeditation on

the part of Soosay to engage Lim in a fight. It is equally clear from the evidence
that there was a sudden quarrel over the request for the return of Lims gold chain
which immediately resolved itself into a sudden fight and the blows were struck
in the heat of the fight. The sequence of events which we have dealt with in some
detail earlier in this judgment, conceivably, occurred within a matter of seconds.
The key question, however, is whether Soosay took undue advantage or acted in
a cruel or unusual manner. The learned trial judge referred to Mohamed Kunjo v
PP3 where undue advantage was held to mean unfair advantage and concluded
that by not stopping after the first stab on Lims buttocks Soosay had acted in a
cruel or unusual manner. Presumably what the learned trial judge meant was that
the use of a knife by Soosay when Lim was unarmed was an unfair advantage
and the fact that there were four other stab wounds inflicted on Lim after the first
was cruel. In our judgment the learned trial judge has overlooked a vital aspect
of the evidence which was uncontroverted at the trial and that is that Lim kept
coming at Soosay each time he was repulsed and Soosay was unable to disengage
himself from the fight which in fact was started by Lim drawing the knife from his
handbag and threateningly pointing it at Kuppiah. Further in our judgment it
cannot be said that Soosay had taken undue advantage or acted in a cruel or
unusual manner as the injuries he inflicted on Lim were inflicted while he was
involved in a fight with Lim during which Lim could well have taken hold of the
fallen knife before Soosay did or even wrested it from him in which case judging
from Lims temperament shown earlier he would have used it on both Soosay and
Kuppiah with devastating effect; furthermore the tenacity with which Lim kept
charging at Soosay gave Soosay little chance to disengage himself from the fight,
which he ultimately achieved in a momentary lull in the fight. The disengagement
could not be achieved by the fact Soosay was armed and Lim was not. Considerations of doing more harm than is necessary as in the case of exception 2 (right of
private defence) do not arise in sudden fight (exception 4). See the cases of PP v
Seow Khoon Kwee2 and PP v Ramasamy a/l Sebastian4 where exception 4 was
successfully invoked.
We are unable to agree with the learned trial judge that the defence based on
exception 4 fails. On the contrary, in our judgment, and for the reasons given in
this judgment we are of the view that Soosay had not, on a balance of probabilities,
taken undue advantage or had acted in a cruel or unusual manner. Accordingly
exception 4 has been successfully established. The appeal will be allowed, the
conviction of murder quashed and in its place a conviction for culpable homicide

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not amounting to murder under s 304 of the Penal Code substituted. Whether the
sentence to be imposed is to be under para (a) or para (b) will be considered in a
moment.
Before we leave exception 4 we feel compelled to say a word or two on the
Rangoon High Court case of Nga Nyi v Emperor;5 which was referred to us in
argument. The proposition advanced in that case is that if exception 4 is applicable
at the beginning of a fight it cannot be held that the offender has taken an undue
advantage over the victim or has acted in a cruel or unusual manner because the
latter has disengaged himself from the fight, and yet the offender pursues the
advantage he has obtained. In that case the deceased struck the appellant and the
two of them engaged in a fight. The deceased fell and the appellant stabbed him.
The deceased got up, ran for some distance and fell again whereupon the appellant
stabbed him a second time. Dunkley J delivering the judgment of the court said,
(The appellants) submission is that because the appellant stabbed the deceased after the
deceased had been rendered helpless and was lying on the ground, it must be held that
the appellant took undue advantage But, in my opinion when the exception is
applicable at the beginning of a fight, it cannot be held that one of the participants has
taken an undue advantage over the other because the latter has acknowledged defeat
and has turned tail, and thereupon the former combatant pursues the advantage he has
obtained.

Soosay v PP (Karthigesu J)

We do not approve of this decision. In our view it is far too wide and it is
inconsistent with the Privy Councils decision of the appeal from Singapore in
Mohamed Kunjo v PP3 where it was held that exception 4 cannot apply where one
party who has emerged the clear victor in the fight inflicts a fatal injury on the
loser who is attempting to escape. It is a clear situation where there is undue
advantage or cruel or unusual conduct.
The foregoing is sufficient to dispose of this appeal. Since we have been
addressed extensively on the right of private defence, we will deal with that
defence as well. In doing so we will confine ourselves to the particular facts of
this case. Exception 2 of the Penal Code provides:
Culpable homicide is not murder if the offender, in the exercise in good faith of the right
of private defence of person or property, exceeds the power given to him by law, and
causes the death of the person against whom he is exercising such right of defence,
without premeditation and without any intention of doing more harm that is necessary
for the purpose of such defence.

In the context of this case then, Soosay, in order to set up the defence of the right
of private defence has to prove on a balance of probabilities that:
H

(a)
(b)
(c)
(d)

the right of private defence has arisen,

the right was exercised in good faith,
the death was caused without premeditation, and
the death was caused without any intention of doing more harm than was
necessary for the purpose of such defence.

Certainly, when Soosay and Kuppiah were confronted with the knife Lim had
drawn from his handbag and pointed it threateningly at Kuppiah, the right of
private defence had arisen. Soosay was perfectly justified in kicking at Lim. This
was an act in the defence of Kuppiah and himself. The result was that Lim fell to

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the ground and the knife was dislodged from his hand. Lim had been disarmed
and Soosay took possession of the knife. The difficult question we have to answer
is whether in using that knife, whether such use was active (example injuries (i)
and (iii)) or passive (example injury (ii) when Lim rushed at Soosay), Soosay
must have had a reasonable apprehension of danger to his life. This is the very
question the learned trial judge asked himself which he answered in the negative.
The test is obviously an objective one. On an objective inquiry into the facts it
cannot be said that Soosay, who now had possession of the knife and probably had
the knowledge that his friend Kuppiah was still at the scene, could have conceived
of any danger to his life. We are unable to accept the submission of learned
counsel that the evidence at the trial disclosed that Soosay and probably also
Kuppiah, would have been in imminent danger of serious harm, if not death, if
Lim and not Soosay had gained possession of the fallen knife and accordingly that
the right of private defence which had abated momentarily when Lim fell to the
ground and the knife was dislodged from his hold, resumed when Lim attempted
to reach for the knife. But in fact it was Soosay who gained possession of the knife
and not Lim. In our judgment the learned trial judge was right in concluding that
there was no danger or apprehension of any grievous bodily harm to him
[Soosay] after he had kicked the deceased [Lim] and deprived the deceased of the
knife. Section 102 of the Penal Code provides that:
the right of private defence of the body commences as soon as a reasonable apprehension
of danger to the body arises from an attempt or threat to commit an offence, though the
offence may not have been committed: and it continues as long as such apprehension
of danger to the body continues. (Emphasis added.)

In our view any apprehension of danger to Soosay and for that matter to Kuppiah
as well, ceased the moment the knife was dislodged from Lims hold and Soosay
had taken possession of it.
In our view even if the right of private defence had not ceased or had resumed
when Lim charged at Soosay (both of which as we have already determined did
not give Soosay the right of private defence) it is abundantly clear that Soosay had
inflicted more harm than necessary for the purpose of defence. In this connection
it is necessary to refer to four other provisions of the Penal Code.
Section 96 provides:

Nothing is an offence which is done in the exercise of the right of private defence.

Section 97 provides:
Every person has a right, subject to the restrictions contained in section 99, to defend

(a) his own body, and the body of any other person, against any offence affecting the
human body;

Section 99 provides:
(3) There is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.
(4) The right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.

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283

Section 100 provides:

The right of private defence of the body extends, under the restrictions mentioned in
section 99, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right is of any of the following descriptions:

(a) such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault;
(b) such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;

It is inherent in exception 2 that there must be a distinction drawn between a

situation where a right of private defence has arisen but that right has been
exceeded and a situation where the right has not arisen at all. In the absence of any
clear authority it is our view that s 100 determines whether the right of private
defence exists or not. On the facts of this case we have already determined that to
us it was inconceivable that Soosay could have reasonably apprehended that death
or grievous hurt will otherwise be the consequence of Lim charging at him
dispossessed as he was of the knife which was now in the possession of Soosay
(s 100(a) and (b) of Penal Code). The matter should of course end here.
However we would add that in applying s 99(4), when that provision is
applicable, questions of good faith, want of premeditation and want of intention
of doing more harm than is necessary for the purpose of such defence have to be
considered (see exception 2).
We have already determined that Soosay had no premeditation to cause the
death or do grievous harm to Lim. On the requirement of good faith Gour in his
treatise, The Penal Law of India (10th Ed) at 2354 comments:
The question must be whether the offender acted honestly, or whether he used the
opportunity to pursue a private grudge and to inflict injuries which he intended to be
inflicted regardless of his rights.

On the facts of this case there is no evidence that Soosay had any private grudge
against Lim. We are satisfied that Soosay acted in good faith in defending
himself.
Turning now to the crucial question of exceeding the right of private defence,
if the right of private defence is available, we do not feel it necessary to rehearse
once again the evidence. Mr Palakrishnan submitted to us that the learned trial
judge had failed to consider with any degree of care the subjective circumstances
as perceived by Soosay. We agree that here the test is subjective. The submission
is that Lim continued to charge at, attack and struggle with Soosay and that
justified Soosays use of the knife on Lim to repel him. We cannot accept this.
The use of a knife on an enraged but unarmed person, in our view, cannot be
justified when that person can surely be quietened by other means, for example by
a few well-aimed punches or being subdued physically by Soosay and Kuppiah
acting together. There is no evidence of any third persons coming to the help of
Lim to warrant the use of the knife in defence.
In our judgment the right of private defence, if it is at all applicable in this case,
was far exceeded by Soosay and the learned trial judge was right to have rejected
this defence.

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This brings us back to exception 4, sudden fight, which we have held has been
established leaving only the question of sentence for culpable homicide not
amounting to murder to be dealt with. Section 304 has two paragraphs dealing
with the punishment. Paragraph (a) prescribes the punishment where the act by
which death is caused is done with the intention of causing death, or of causing
such bodily injury as is likely to cause death. Paragraph (b) prescribes the
punishment where the act is done with the knowledge that it is likely to cause
death but without any intention to cause death, or to cause such bodily injury as
is likely to cause death.
Our appreciation of the circumstances of the sudden fight and the injuries
caused, particularly the two fatal injuries (iii) and (ii), is that injury (iii) which was
to the left lower thoracic back region was deliberately caused and injury (ii) at the
lower lateral chest wall region as described by Soosay was caused by Lim
charging into the knife which he held at his waist level and although he moved
aside Lim nevertheless ran into the knife. This injury perhaps was not deliberate
although it cannot be ruled out that Soosay must have realized that if Lim made
contact with the knife, the injury would be serious. In a sudden fight most if not
all the blows struck are deliberate but it does not necessary follow that deliberateness
is concomitant with an intention to kill or cause grievous bodily harm. Having
given our best consideration to the evidence, the circumstances of the sudden
fight and the injuries inflicted by Soosay on Lim, we are unable to say that Soosay
had the intention of causing Lims death or of causing such bodily injury to him
as is likely to cause death. Accordingly we will sentence Soosay, the appellant, to
imprisonment for a term of nine years under s 304(b) of the Penal Code.

Appeal allowed.
Reported by Karolyn Gin
F