What is the difference between murder and culpable homicide not amounting to murder?

In the past week, two people accused of murder had their charges reduced to culpable homicide not amounting to murder.

They are a teenager who allegedly slashed a fellow student to death at River Valley High School, and a father who is accused of strangling his 11-year-old twins to death at a covered canal in Greenridge Crescent.

What is the difference between the two types of offences, and what might lead to a reduction of a murder charge to culpable homicide not amounting to murder?

WHAT IS THE DIFFERENCE BETWEEN THE TWO CHARGES?

"Essentially, all intentional killing is culpable homicide," said managing partner at Lighthouse Law Adrian Wee. "Murder is a subset or species of culpable homicide."

Mr Wee said there is a spectrum of offences dealing with unlawful killing.

"At one end of the spectrum is death that is caused by a rash or negligent act. At the other end is premeditated, intentional killing," he said.

Every offence of murder is an offence of culpable homicide, but not every offence of culpable homicide is an offence of murder, explained lawyer Chooi Jing Yen, partner at Eugene Thuraisingam's law firm.

"This is why the punishment under Section 304 (of the Penal Code) refers to culpable homicide not amounting to murder, that is, it is exclusionary," said Mr Chooi.

He explained that the offence of culpable homicide under Section 299 refers to three different states of mind: Intention to cause death, intention to cause such bodily injury as is likely to cause death, and knowledge that the act done is likely to cause death.

"All three states of mind can, if certain conditions are fulfilled, amount to murder under Section 300," he said.

Partner at Dentons Rodyk and former deputy public prosecutor Navin Naidu said that a set of facts can fall within the definitions of both murder and culpable homicide not amounting to murder.

However, the culpable homicide will not amount to murder if one of several "partial defences" to murder are present.

"The most common ones that we see in Singapore cases are diminished responsibility, and grave and sudden provocation," he said.

These are commonly known as "partial defences" because they do not completely exonerate the charged person, unlike general defences such as private defence – commonly referred to as “self-defence” – and unsoundness of mind.

There is a common misconception that an offence is a murder only if it was done with the intention to kill.

However, the offence of culpable homicide also requires intention or knowledge on the part of the accused, said lawyer Mark Yeo, associate director at Kalco Law and former deputy public prosecutor.

According to Mr Wee, in certain circumstances, where the injury is severe enough to cause death, a murder charge can be made out notwithstanding the lack of a specific intent to kill.

DIFFERENCE IN THE PENALTIES

In practical terms, the main difference between murder and culpable homicide not amounting to murder is the different punishments, said Mr Yeo.

Murder under Section 300 of the Penal Code carries the mandatory death penalty or life imprisonment, depending on what it falls under.

However, culpable homicide not amounting to murder carries a punishment of life imprisonment or a jail term of up to 20 years and caning.

A person under 18 at the time of a murder offence cannot be sentenced to death. So if they are sentenced for murder, they would be given life imprisonment and be liable for caning, said Mr Naidu.

"While the maximum punishment for culpable homicide is also life imprisonment, the court has the sentencing power to impose a sentence not exceeding 20 years and caning," he explained.

"Therefore, practically speaking, a reduction in charge would enable the young person to submit for a term of imprisonment which is lower than life imprisonment, because of the wider sentencing range prescribed for culpable homicide."

OTHER NUANCES

Mr Chooi said that another implication is that the Criminal Procedure Code does not allow an accused person to plead guilty to an offence that carries a death sentence.

"So technically, nobody can plead guilty to an offence of murder. But one can plead guilty to an offence of culpable homicide not amounting to murder, since the maximum punishment is ... life imprisonment," he said.

"This may also be another consideration in terms of saving resources on both sides," he added, referring to the prosecution and the defence.

An accused person facing either charge is generally not granted bail, as bail is not allowed under the Criminal Procedure Code as long as a person faces an offence punishable with death or life imprisonment.

"So this would apply to both murder as well as culpable homicide not amounting to murder, except for culpable homicide not amounting to murder punishable under Section 304(a)(ii) or Section 304(b)," said Mr Chooi.

"Nevertheless the severity of these offences still means that such offenders are almost always in remand pending trial."

Section 304(a)(ii) states a possible penalty for culpable homicide not amounting to murder is imprisonment for up to 20 years and a fine or caning.

Section 304(b) refers to culpable homicide not amounting to murder, where the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or an injury likely to cause death.

The penalty under this section is a jail term of up to 15 years, a fine, caning, or any combination of these punishments.

WHY MIGHT A MURDER CHARGE GET REDUCED?

There are a variety of reasons why the prosecution might choose to reduce a murder charge to culpable homicide not amounting to murder.

"The most common reason is due to the accused suffering from some type of psychiatric illness or disorder at the material time. This is what appears to have happened in both the River Valley case and in (the Greenridge Crescent) case," said Mr Yeo.

"They may also reduce the charge if they do not intend to ask the court to impose the death penalty against the accused, as that is the main difference between the two offences."

Mr Chooi said the prosecution might choose to do so if it considers that the offender has a partial defence entitling him to be sentenced for culpable homicide not amounting to murder, rather than for the offence of murder.

The prosecution might also consider the unique circumstances of the offender – sometimes, there may be "compassionate reasons", he said.

Mr Wee said another reason could be that the prosecution finds that there are challenges in establishing the necessary elements of a murder charge, and offers the offender a reduced charge on the condition of a plea of guilt.

Even if the elements of murder are made out, there might be other compelling reasons such as the age or personal circumstances of the offender for prosecutorial discretion to be exercised in reducing the charge, he said.

Mr Naidu said the prosecution might exercise its discretion to reduce the charge based on other "public interest factors", such as the age of the accused, the relationship between the accused and the deceased, the presence of general psychiatric issues and the likely sentence.

"This tends to be a multifactorial assessment for any given case and no two cases are ever the same," he said.