24 ‘aje"Azdan Saab 3) 11970) not been examined by Enche Suleiman. The leamed 4 The appeal is dismissed. President held the view that this fact by itself did not “Appect dismissed. Point 10 guilt but was a factor to be considered in establishing guilt. That, in my opinion, is the right approach; the icarned pieiden is not gully of an ercor of principle and I certainly do not take the view that his judgment reveals any misapprehension of the effect of the evi- B WILLIAM TAN CHENG ENG v. dence which was called before him. PUBLIC PROSECUTOR It is settled law that mere failure of the appellant i to account for the monies entrusted to him on the Saini cies seaTkcees iat oe Tae dates specified in the three charges might not be a : foundation of his conviction in all cases ‘but where be ISingnpore — Criminal Appeal No. ¥.17 of 1969] was unable to account and render an explanation for his failure, which was not true, an inference of mis- © gq hial, Codes. 300, — Murder 7 Murder by car appropriation with dishonest intent might readily be jn'all probability cause death Failure of trial judge to direct made, In my opinion if there was such subsequent jury om knowledge of consequences of aet'— Conviction set payments then the Singapore office of Malaysia-Singa- aide. pore Airways which did the processing of all daily re- The appellant had been charged with murder, It was turns would have discovered the same. The eared legs hate rine cc along Bedok Road Singapore president found as a fact that the Singapore office di caused the death of an approaching motor cyclist in hot find that the monies were subsequently paid. The D gfcumsanes, that be ‘ew ie pantera ane 20 other aspect of the matter is that since this is within the death or auch bodily injury as was likely to cause death "The Knowledge of the appellant, whose duty it was to pre- al Iidgs in hia, summing Up 10 the fury didnot direct the pate these returns, it was up to him to show the exis- uy on the vital ingredient which the prosecution had to {ence of such fact which is consistent with his innocence. FFEVs, namely that the appellant cosa He has failed to do that. For the purpose of establish- eave . ing dishonest intention, it is not the law in this country, He: (1) it i not sufcent to amount to murder under any more than itis the law in India, that the prosecu- E secon 300 for an,ac tobe so, imminently dangerous that it tion should go further and also prove the actual mode uruer" only "f the person whe commis the act and death ‘of misappropriation or conversion. Once the prosecu- results, Knew when Committing the act, that it was s0. kn tion have proved that the appellant was entrusted with finenlly dangerous ‘that it would. in all probability case money for a specific purpose and that he has failed death or such bodily injury as was likely to cause death; to account for ior has done something which is clearly, 2) seam scales a ted in. isang indicative of his dishonest intention, the charge of dis- _ vp {Be most vital ingredient which, the proserution had honest misappropriation must be held to have been F pic'ys,namely ‘hat the appellant knew the consequences of established unless the appellant shows the existence of (0) on the evidence no reasonable jury could have found some fact or cicumsiance. within his own knowledge 6, H Zegna douhe tat the, Appellant, Bada he which is consistent with his own innocence. It must material time Knowledge that he was driving in a manner be stated here that for the purpose of establishing dis- tha! was imminently dangerous that it must ia all probability honest intention the prosecution is not required to (4) there was therefore no. sufficient evide which, ate all possible defences and circumstances which, ,_(2,tigr® as therefore no, suiient evidence, on, which might exonerate the appellant, or that apart from prov- G murder and the conviction for murder’ Must beset ide and ing. the appellant's possession of the money and his a conviction under section 26 of the Road Traffe Ordinance inability to account for it, it has also to prove the swbatiuted for it exact manner of his disposal of the money in manner COURT OF CRIMINAL APPEAL. ontrary 0 the purpose for which he received ‘David Marshall (N. Ganesan with him) for the The offence of criminal breach of trust has so appellant. polarized the country that we can no longer accept yy Francis T. Seow (Solicitor-General) (Tommy Neo it with the same passivity we have displayed towards © (Deputy Public Prosecutor) with him) for the respon such evil before. Unless the offence is met with sub- dent. stantial sentence adequate deterrence will not be achiev- we Jin CJ At the conclusi Fed MYA A kate exile andl any it agaiad| ibe ecclesia te aera cdc nee e ig of this appeal we set aside the conviction of tence must reflect the gravity of the offence. The murder and substituted a conviction under section 26 present case is one of extreme premeditation. The of the Road Traffic Ordinance. During the course of a appellant whose duty it was to account for all monies {short oral judgment we intimated we would give our entrusted to him, had failed to discharge his respon- sibilities. In my view the sentence of 12 months is not adequate. However, I would not interfere with the sentence. My observation is directed to would-be of- fenders and to those whose duty it would be to hear similiar cases. reasons in writing at a later date, We now proceed to do so. The appellant was charged with the offence of murder in that he, “on or about the 8th day of December 1968, at about 4.45 pam, at Bedok Road near Jalan Bilal, mitted murder by causing the death of one Fe, com: ‘hmad bin2MLI. Witla Tae Cog Eas +, Public Promeutor iin) 245 Yassin.”” The offence of murder is defined in section the second impact the Ford car became unsteady and 300 read with section 299 of the Penal Code and these iwo sections read as follows: — "299, Whoever causes death by doing an act wih the inen- tion of causing death, or wilh the intention of causing. such body injury as is likely to cause death, or with the know. ledge that be is likely by such act to cause death, commits the offence of culpable homicd 300, Exoept inv the cates hereinafter excepted culpable homicide is murder —— Firsly — if the act by which the death is caused is done ‘wih the intention of causing death; or Secondly — if itis done with the intention of causing such bealy injury ‘a the offender Knows to be liksly to caute the death of the person to whom the barm is caused; oF Tardy — is done wih te nentin of sang diy "0. any a intended to inficed. ig sufhcient'in the ‘ordinary “course of mature (0 cause death; or Fourthly — ifthe person committing the act knows that itis fo imminently dangerous that it must in all probability cause eath, oF such bodily injury as is likely to cause death, and commits such act without any excuse Tor incurring the isk of causing death, of such injury as aforesaid.” The case for the prosecution was that the appellant committed murder under the fourth clause of the de- finition in section 300 in that while driving his 1954 model Ford Prefect car along Bedok Road in the direction of the sea he caused the death of an ap- proaching motor cyclist, Ahmad bin Yassin, in such Circumstances that he knew that his manner of driving was so imminently dangerous that it must in all pro- bability cause death, or such bodily injury as was likely to cause death. The facts relied on by the prosecution were these. The appellant while driving his car along Changi Road saw in front of his car and seated in the front passeng- er's seat of a Morris car a gitl, Miss Poh, working in the same office with whom he had been going steady from January 1966 till May 1968. Miss Poh had broken off this steady relationship in May because of hhis possessive nature. She was seated beside a friend, Mr. Say. in his Moris car and they were going back to the city after having been to Changi earlier that Sunday afternoon. The appellant had two male friends with him in hhis car and on seeing Miss Poh, he gave chase and npn tees After ing he slowed jown and stopped his car by the grass verge so abrupt- ly that Say had to apply his brakes to avoid colliding with the Ford car. Miss Poh thea told Mr. Say not to stop and Say overtook the Ford car and proceeded driving fast_along i Road with the Ford car following. Both cars turned left into Bedok Road which isa straight and longish stretch of road. The appellant overtook the Morris car and again slowed down to a speed of about 10 mp.h. whereupon Say in his Morris car overtook the appeliant’s Ford car and drove on at a speed of about 50 m.p.h. An indepen dent prosecution eye-witness said that there was n0 other traffic along Bedok Road. The appellant sub- sequently, and still along Bedok Road, caught up with the Morris car and the evidence was that the Ford car first came into contact with the rear of the Morris car and then came into contact with the front off-side mudguard of the Morris car and as a result of zig-zagged diagonally to the right and came into head- long collision with the deceased who was approaching Con his motor cycle travelling on its proper side of the road. The motor cyclist died almost instantaneously. The prosecution said that on. those facts the pellant by driving his car in an extremely reckless a dangerous manner with utter disregard for, or total in- ference to other users of the road had committed murder within the meaning of the fourth clause of section 300 of the Penal Code, The law is clear. Knowledge on the part of an accused person of the consequences of his act which has resulted in death is an essential ingredient of the offence of murder under the fourth clause of section 300. In order to succeed the prosecution must prove beyond a reasonable doubt that the appellant knew, when be drove his car in such & manner as to come into contact first with the rear and then with the front off-side mudguard of the Morris car, that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death, The trial judge in a long and detailed summing-up to the jury however failed to direct the jury that in order to convict the appellant of murder they must be satisfied beyond a reasonable doubt on the evidence before them that the appellant, in driving as he did, was doing an act which he knew was so imminently dangerous that it must in all probability cause death, ‘or such bodily injury as was likely to cause death. To- wards the end of @ long summing-up the following direction was given: — “So members of the jury, I don't think I need be very much toager wih you exo inat H should ke to remind You, of edicts — I'mean the verdict that ihe pegecalgr ae cre ia, if you ate satisled on the ev as a whole from the Arst word’ of the frst witnes to the {tse word of Mr. Riley, the last wittess for the defence in- cluding the statement by the accused, if you feel satisfied {hat the prosecution has, really, beyond a reasonable. doubt ‘tablished 2 case of murder af propounded by the prosecu fion under clause 4, in that the accused was’ doing’ an act ‘which ‘was so imminently dangerous that it_must most prob- ably, almost. toa certainty, ‘cause death having regaid_ to athe conditions, having Tegard to all the circumstances that took place on that day —~ I mean there was this probability ot a Righ: degree that must cause eiher death or such injury Ss was ikely to cause death — then T think tis Your bounden Guy to find a verdict as charged ‘Again, a little later on the following direction was given: “You know, you will consider those ingredients and 1 you will remember them — that the act was so imminently Gangerous as in all probability, meaning almost a certainty. ‘most probably, you would be very surprised if it didn't cause Seath or injury likely to cause death. Even if. you knock down aman who dit subsequeny — with that iar Tikely {to cause death — that would be enough. You dont have {0 kill a mar instantaneously, but in this case the man was Killed instantaneously.” The two passages we have quoted from the sum- ming-up omitted the most vital ingredient which the prosecution had to prove, namely, that the appellant knew the consequences of his act.’ It is not sufficient to amount to murder under section 300 for an act to bbe so imminently dangerous that it must in all prob-246 ‘Owe Willam Tuy Cheng Hag: Fabie Prosecutor 1970} the person who commits the act, and death results knew, when committing the act, that it was so immin ently dangerous that it would in all probability cause death, or'such bodily injury as was Ukely to cause eat Another ground on which we came to the con- clusion that the murder conviction could not stand was that on the evidence no reasonable jury could bave found beyond a reasonable doubt that the appellant at the material time knew that he was driving in a manner so imminently dangerous that it must in all probability cause death, or such bodily injury as was likely ¢o result in death. The prosecution evidence cof what took place along Bedok Road was given by Miss Poh and Say and the state of the trafhe during the most material time was given by an independent eye- witness, Abdul Rahim, Abdul Rahim said he first saw the two cars approaching him about 400 yards from where he was standing from the direction of Changi Road. There was no other traffic between him and them. The picture then, according to the prosecution evidence, was of an angry, jilted young man, driving 1954 model Ford Prefect along Bedok Rosd, over- ‘taking and then being overtaken and finally overtaking another car in which his former “steady” girl friend was a When overtaking the car on the final occasion, he drove his Ford car in such a manner as to first come into contact with the rear and then with the front off-side mudguard of the Morris car. Having regard to what had happened along Changi Road, but bearing in mind that there was no other traffic at the material time while both cars were proceeding along Bedok Road and that no harm was caused to the passengers or to the Morris car which stopped by the left hand side of the road, the most adverse inference that can be drawn from the appel- Jant’s manner of driving was that he intended to cause hharm to the passengers of the Morris car. In our judgment there was no sufficient evidence on which a reasonable jury could find the appellant guilty of murder under the fourth clause of section 300 of the Penal Code. Conviction for murder set aside and conviction under section 26 of the Road Traffic Ordinance substituted. Solicitors: Osborne-Jones & Co. HIMATSING & CO. y. P.R. JOITARAM ICA. (Wee Chong Jin C5, Tan Ah Tab and (Chea 35.) August 31, 1970] {Singzpore—Civil Appeal No. 16 of 1970] Contract — Breach of commercial contract — Failure to deliver goods in accordance with stipulated term — Time — Whether esence of contract — Mercanile or trade usage ‘among Indian merchants in Singapore. Sale of Goods — Delivery — Time — Essence of con- traci — Waiver — Lock of evidence of — Sale of Goods Act, 1893, 5. 101). ity cause death. Such an act becomes murder only c D G “The plaintiff (expondent) claimed damages against tbe defendant frm (he appellant) for breach of coatrac. The Dlaiuif bad agreed to ell and the defendant firm to purchese Pra sae ‘contract provided” for “shipment: during contrac, Yor “shipment. during June] Jy 19668 and tor “dtvery to buyers nore” Toe lant delvered 24 tons in cicumstanees which Tevuited in a dispute between the parties. Eventually through their respective soli- cltors, the defendant frm agreed to accept delivery of the Ealance of 74 tons “within 3days of the artval at Singapore of the vessel ts, Manoloevere November 8, 1966 "but the did ‘not attempt to deliver the balance to. the nt firm until Novem: ber Zi, 1966" 'when he, brought’ the goods, to” the defen. dant firm's shop. The defendant frm fefosed to accept Ge- ery. Subsequzndy, the plastif sued the defendant Sim for breach of contract, The defence, iter alia, was that twas fn estental term of the contract that delivery be made within S'days of the arrival of the ship at Singapore, and in fespet tine was of the essence of the contract” At the tral the Pitti called a wioes to prove, her alia, # mercantile fo Wade usage among Ws in Singapore relating {o delivery of goods imported by sea into Singspore “that in fany contact for the sale of goods where there is a tem {nthe contract requiring delivery within a spectied time, that doesnot make time tbe essence of the conttact in the abuence Sf pectic term thatthe time for delivery stated in the contract Shall"be of the essence of the. contract. All that that term fpeang ie that delivery must ‘be made within & reasonable “eee ne fom Se of ee oe Perel Lats ne ele oe Pe cee ee ee EL Biay Bas eat tae ag ee Peek RS Se ee Se Parties, . ‘that ro a fer repudiate this con- Besta Meigs Se ee Pia cosa ee natin an Se tiga ta prac Spt tract.” The defendant firm ay a Held, allowing th "The. ship “arrived. on : (1) in most mercantile tran- 0 clit story Sy oem: Ge mt gran cin fen tie cher in i a phe eee ee al plaintiff eens SERS Grated Pease Se Se Sate Epes ter tneoets Saeco Pad she sec rants delivery was the normal stipulation in this kind of trade; es aha” ales ‘ues Me tae canes Se ae Ge fered (Q) Hartley v. Hymans [1920] 3 K.B. 475. COURT OF APPEAL. C. S. Woo for the appellant. J. B. Jeyaretnam for the respondent. Wee Chong Jim C.J. (delivering the judgment of the court): At the conclusion of the hearing we allowed the appeal and intimated we would give our reasons in writing at a later date. We now do so. ‘The plaintiff claimed damages against the defen- dant firm for breach of contract. The plaintiff had agro al andthe detent frm fo Pua en tons of Indian black cardamon (big elcha) at the fice S20 per pol Tbe me peed fe “shipment during June/July, 1966” and “delivery to buyer’s store”. The plaintiff delivered 2¥, tons in