Common Intention in Singapore (after the Azlin case)
Common intention is really a lawyer’s legal problem…
The law of common intention in Singapore is painfully complex and technical. Words cannot describe how discouraged I felt when I was trying to understand it. In fact, its complexity drove me to start drawing law cartoons in the first place.
But in this short post, I hope to tame it. The good news is that the concept of “common intention” is very much a lawyer’s problem, so most people don’t have to deal with its complexities. It does appear quite a lot in local crime news though, so even if you’re not a law person, I hope it may be a meaningful read for you as well.
I’m assisted by the absolute masterpiece of a case which is Azlin. At the time of writing, this case is fresh off the tables of Singapore’s highest court—the Court of Appeal. It is a very sad case, and I’ve avoided using any of its facts. But you’re free to read it yourself here.
So this is the law of common intention in Singapore, as of the Azlin judgment.
(Disclaimer: This is not legal advice. Also, I’m tracking the Azlin judgment quite closely, but note that nothing is truly set in stone—pretty much everything I’m writing can be debated.)
The basics: “Common intention” in group crimes
Let’s start with the fundamentals.
First, we’re talking about crime and the criminal law.
A crime is committed when a guilty act meets a guilty mind (in Latin: actus reus and mens rea).
Here’s a useful example: if I stab someone by accident and they die, it’s quite different from the situation where I purposefully head to their place and stab them to death. The difference between those two situations was my state of mind—the more intentional my acts, the nastier they are. Criminal law is very, very aware of these differences.
Second, we’re talking about group crimes.
If I stab someone to death with my own hands, that’s quite nasty. But if I bring a few buddies with me, the crime takes on a whole new level of nasty—for example, someone could tie up the victim while I stab, and someone could be my getaway driver.
So group crimes are especially nasty, because my buddies can provide me with encouragement, support and protection. The law of common intention represents one of society’s efforts to stop group crimes before they happen (or to “deter” them).
How “common intention” works
We now turn to “common intention” proper—in Singapore, our focus lies on section 34 of the Penal Code. For the first and last time, here is what section 34 says:
“When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in such manner as if the act were done by him alone.”
It reeks of 19th Century drafting. There’s way too many legal technicalities that have arisen from its wording, and that’s a job for the lawyers.
But still, what does section 34 actually mean? Well, let’s illustrate it with an example.
Example 1: My buddies and I thirst for blood (“single crimes”)
We’ll begin with our earlier example: I’m the stabber, Rope Guy is the restrainer, and Car Guy is the getaway driver. We’ve also got a common enemy—let’s just call them Victim.
Let’s say I come together with Rope Guy and Car Guy to discuss a plan to stab Victim. Rope Guy and Car Guy are totally in for it, because they dislike Victim just as much as I do. We decide a date and time for us to go down to Victim’s place, and we plan how we’ll get away.
The plan is simple: Rope Guy and I will knock on Victim’s door, and as Victim opens it, Rope Guy will restrain Victim while I stab them. Then, when the deed is done, Car Guy will be there to bail us out.
We then execute the plan, and it works like a charm.
Now, let’s say the police find out. They arrest my whole gang, and now the question is what crimes we’ve committed.
For me, the answer is easy. I stabbed Victim, based on a plan to stab Victim. So I am a murderer.
For Rope Guy and Car Guy though, it’s a little less straight-forward. Sure, they have a murderer’s guilty mind, because they were in on my plan to stab Victim to death. But they also didn’t commit the guilty act—that is, they weren’t the ones who stabbed Victim to death.
Here’s where the law of common intention comes in. In broad terms, and glossing over all the legal technicalities, the law of common intention would see Rope Guy and Car Guy as murderers too.
Why? Put simply, they were in on the plan, and they played their part in it. The law sees the guilty act as committed by every member of our group—though Rope Guy and Car Guy didn’t commit the actual stabbing themselves, it does not matter.
Just one more thing to add at this juncture: the same analysis applies even if it wasn’t clear who stabbed Victim. The fact is that we planned to stab Victim to death, and indeed, Victim got stabbed to death. The law of common intention views all of us as murderers in this situation.
So these are the easy cases—when there’s a pretty clear plan to do a criminal act, and it is executed accordingly.
Unfortunately, things get a lot more complicated from here. And it starts with the type of situation that has troubled the Singapore courts for about fifty years and counting: the “dual crimes”.
Example 2: My buddies just want money, but I thirst for blood (“dual crimes”)
Let’s vary up our example. Let’s say it’s Rope Guy, Car Guy, and me again. But this time, we don’t plan to murder Victim. Instead, we’re broke, and we just want to rob Victim at knifepoint.
So I come together with Rope Guy and Car Guy, and we hatch a plan to rob Victim. On our specified date and time, Rope Guy and I would knock on Victim’s door. As Victim opens it, Rope Guy will restrain Victim while I hold a knife to their throat and demand money. Then, when the deed is done, Car Guy will be there to bail us out.
Okay, sounds easy enough. Rope Guy and I head down and knock on Victim’s door. Victim opens it, and immediately Rope Guy knocks Victim over and ties them up. Then, it’s my turn to act. I hold the knife at Victim’s throat and say, “Your money or your life”.
So far, so good. But all of a sudden, I realise that I really hate Victim.
So even before Victim gets a chance to respond, I plunge the knife into their throat. Victim dies from this sudden attack.
Rope Guy is spooked. When we get to the getaway vehicle, and I’m covered in blood, Car Guy gets spooked too.
Now, the police get us again, and the courts find that I’m a murderer. Nothing special here, because the murderer’s guilty mind can be formed on the spot.
But how about Rope Guy and Car Guy? If we shared a “common intention” to rob Victim, then should Rope Guy and Car Guy be responsible for the unexpected murder that took place while we were executing the plan?
If we follow how the law of common intention applies in “single crime” scenarios, then it might seem that Rope Guy and Car Guy are murderers as well. But here’s the problem: Rope Guy and Car Guy may have intended to rob Victim, but they weren’t entirely in on the murder part. It was only me who actually developed the intention to kill Victim.
That’s why this is called a “dual crime” or “twin crime” situation: one crime is planned, but another crime actually takes place. The “dual crime” situation has plagued the Singapore courts for ages, and it plagued me for a solid two months as I tried to figure out what was going on. It even drove me to draw my first law cartoon (the revamped version is linked below!):
But in short, the current position is that accomplices to a “dual crime” require an intention to commit the “very criminal act” that was committed. That is, if we had a plan to rob Victim and stab if necessary, then Rope Guy and Car Guy would be murderers too. Or, if Rope Guy developed the same common intention as to stab Victim as I did, they would be a murderer too.
So far, so good—hopefully. I certainly breathed a sigh of relief when I figured out “dual crimes”, because I thought I’d mastered the law of common intention (far from it, by the way).
But nope, it turns out that there’s a third situation. This, in my humble view, is where the genius of the Azlin case lies.
Example 3: When there are many parts to the same nasty plan (the Azlin situation)
So this is when we’ll need to get creative with our example. Same characters: Rope Guy, Car Guy, and I. But this time, it’s much more complicated.
Let’s say that Rope Guy and Car Guy want to head down over many days to extort money from Victim. They want to do so by hurting Victim and demanding money. That’s a pretty nasty plan.
Then I come into the picture, and I want in on the plan. The only thing is, I don’t actually want the money: I want Victim to die a slow and painful death. It’s a pretty grim example, and it’s not even as grim as the Azlin case. But anyway.
So here’s the plan. Rope Guy and I will take turns going down to Victim’s house and hurting them. Rope Guy will tie Victim up and beat them, and I’ll cut Victim in non-lethal areas. Then, Car Guy will get us out every time.
Let’s say Victim goes through two beatings and two stabbings before it’s too much, and they die from the cumulative effect of their injuries.
This gets super complicated. But we’ll keep it simple and just limit the discussion to me—the one with the murderer’s guilty mind.
Now, the prosecutors try to get me for murder. But I have an ace up my sleeve. When confronted, I boldly claim, “I did not commit all the acts which led to Victim’s death!”
The prosecutors look at the records. It’s true. It was Rope Guy who committed two of the beatings.
“Okay then,” the prosecutors say. “The Prosecution argues that you were involved in the two beatings which Rope Guy committed, because of your common intention to beat Victim up!”
Immediately, I object, “That’s not how common intention works!”
We go to court over it—that’s pretty much what the parties in the Azlin case did. And in a brilliantly-written 133-page judgment, the highest court in Singapore found for the Prosecution.
So as of the Azlin case, the law of common intention can be applied to individual acts which form a part of a larger, nastier offence.
Now what?
Congratulations, you’ve made it to the end of this post! Hope it wasn’t too confusing. And if you’re a law person who thought this was pretty easy to digest, you may be comforted to know that this post ignores the greatest source of complexity for the law of common intention—the law of section 300(c) murder. I’ve added some comments in the legalese summary below.
But the Azlin case pretty much represents the law of common intention in Singapore as of August 2022 (technicalities on binding precedent aside). And I hope these illustrations have been helpful. Do take care, and just in case it wasn’t already clear: please don’t egg on your buddies to commit crimes.
Finally, the legalese summary:
Prior to the Azlin case, the Singapore Court of Appeal (“SGCA”) had dealt with a long line of cases involving “dual crimes” where a s 300(c) murder was committed (Azlin [92]-[95]). In the Azlin case, the SGCA re-affirmed the Daniel Vijay approach for how s 34 is to be applied in “dual crime” cases—the secondary offenders must have intended the “very criminal act” which was committed by the primary offender as a collateral offence (Azlin [96(a)]). In s 300(c) cases, this refers to the “very injury” that ordinarily results in death, committed by the primary offender (Azlin [117(b)]). Notably, the amicus curiae and the Prosecution submitted that the Lee Chez Kee standard of subjective knowledge should be re-instated, but the court left this to be decided in an appropriate case (Azlin [119]-[120]).
The SGCA in the Azlin case also engaged in a (fantastic) overview of how s 34 would apply to “single crime” cases. It identified two possible configurations for “single crimes”: (1) multiple offenders are involved in the same criminal venture, but only one commits the offence; and (2) multiple offenders are involved in the same criminal venture, and it is unclear as to whom committed the offence (Azlin [102]-[104]). For both of these situations, the SGCA commented that the mens rea requirement was the same as that of s 300(c) simpliciter—that is, the Virsa Singh standard, expounded upon by Lim Poh Lye and Chia Kee Chen (Azlin at [118], see also [81]-[82]).
However, strictly speaking, the SGCA’s pronouncements with respect to “single crimes” and “dual crimes” are obiter dicta. This is because the court found that the facts of Azlin did not fall neatly within either of the above categories—instead, it represented a “third type of situation” (Azlin [123]). In these situations, a variety of acts is committed by the members of the group, but each set of acts could be seen as distinct offences, as the “intentions with respect to the aggregate of the acts may be different even if [the members] might share in the intention to commit some of the acts” (Azlin [124]). The court also gave some examples involving the Misuse of Drugs Act to illustrate how s 34 might operate in these situations (see Azlin at [125] and [165]). After engaging in a detailed consideration of the authorities, as well as the text and purpose of s 34, the SGCA found that s 34 may be applied to discrete parts of a larger offence (Azlin [133]-[134]), at least on the facts of Azlin.