Criminal Law

• Published date: 01 December 2002
• Author: CHAN WING CHEONG MA (Oxon), LLM (Cornell), Barrister (Gray’s Inn), Attorney and Counsellor-at-Law (NY State), Advocate and Solicitor (Singapore), Associate Professor, Faculty of Law, National University of Singapore
• Date: 01 December 2002

Mens rea

Strict liability offences

10.1 In my earlier commentary on Singapore cases decided in the year 2000, I had suggested that a balance between crime control and fairness concerns could be struck by ascribing negligence as the requisite mental state for criminal liability in situations where the criminal statute itself does not stipulate any mental element in the definition of the offence. It was hoped that this would be achieved by being faithful to the structure of the Penal Code (Cap 224, 1985 Ed), particularly its s 40(2) (see Chan, “Criminal Law”(2000) SAL Ann Rev 122 at 124; and also Chan, “Requirement of Fault in Strict Liability”(1999) 11 SAcLJ 98). However, this was not to be. In two separate High Court cases decided in 2002, it was indeed held that negligence was the required fault element for two offences in the Road Traffic Act (Cap 276, 1997 Ed), but this was not by way of implication from the provisions of the Penal Code. The court followed the Canadian approach instead which was first adopted locally in MV Balakrishnan v PP[1998] 1 CLAS News 357.

10.2 In the first case, Tan Cheng Kwee v PP[2002] 3 SLR 390, the appellant was the director of a company which transported containers to and from warehouses and the PSA Container Terminal. On the fateful day, the appellant instructed one of the drivers employed by the company to use its prime mover to transport a container to the PSA Container Terminal. While doing so, the top of the container hit a height restriction gantry and was later wedged beneath a railway bridge which passed over the road. The driver managed to free the vehicle and it subsequently struck a second height restriction gantry while attempting to continue on its journey.

10.3 It was found that the company did not possess the required licence to operate a heavy motor vehicle that had an overall height exceeding four metres. The total height of the prime mover with the container was 4.465 metres. The appellant was charged under s 79(1) of the Road Traffic Act for causing to be driven a vehicle with an overall height exceeding four metres without a licence.

10.4 The learned Chief Justice initially followed the English common law approach by holding that there was a presumption of law that mens rea was a necessary ingredient of any statutory provision that created an offence even though that provision itself may not expressly incorporate any mens rea terms. This presumption may be displaced in situations where the statutory offence dealt with issues of social concern or public safety. In the particular case, the presumption was displaced since the offence dealt with a matter of public safety.

10.5 The learned Chief Justice also dismissed the argument that the mandatory imprisonment terms for the offence (a minimum of one year for a first offence; and a minimum of two years for a second or subsequent offence) indicated that Parliament could not have intended this to be a strict liability offence. It was held (at [19]) that:

“The severity of the penal sanction is but one of the many factors that the court has to take into account in trying to ascertain Parliamentary intent. While a slight penalty may be a factor in favour of construing an offence as one based on strict liability, there is by no means a definitive correlation. Parliament has the power to prescribe severe penalties for strict liability offences in order to achieve its legislative purpose.” [emphasis added]

That, however, is not the end of the story. Where the learned Chief Justice departed from English common law was the recognition of a defence of reasonable care (at [29]):

“In our jurisdiction … it is now recognised that strict liability occupies the position of a halfway-house between absolute liability and true criminal liability, in the sense that strict liability is made out on proof of actus reus but a defence of reasonable care is open to the accused …”

10.6 It is a great advancement for our law to recognise a halfway-house solution considering that this is still not possible in English law unless the statute expressly provides for such a defence (see B v DPP[2000] 2 AC 428 where this solution was rejected). This is also a remarkable turnaround in our understanding of what constitutes a “strict liability offence”. Only a short ten years ago, it was said in the case of Jupiter Shipping Pte Ltd v PP[1993] 2 SLR 69 at 71 that:

“The nature of strict liability offences is such that they may be committed even when all reasonable steps have been taken to ensure that they are not committed.”

10.7 The appellant in the instant case argued that s 79(1) of the Road Traffic Act created a strict liability offence (as it is now understood to mean), which would enable the appellant to escape liability if he could show that he exercised reasonable care in the circumstances. This was accepted by the Chief

Justice but the appellant could not discharge the burden of proof cast on him. He was effectively the managing director of a company whose primary business was the provision of transport services for containerised cargo, and he had some 25 years” experience in the industry. His failure to know the total height of the vehicle and the need for a licence in this case was not reasonable. In fact, some of the points raised by him indicated a lack of awareness of the total height of the vehicle and the need for a licence, rather than a mistake made despite reasonable care as to the height of the vehicle or the need for a licence.

10.8 What would have been the result in this case if the provisions of the Penal Code had been applied? By s 40(2), any one of the defences under Chapter IV of the Penal Code could be relied on by the appellant, and he would not be liable if he could discharge the legal burden cast on him to establish it on a balance of probabilities. The only defence that is relevant to this case is that of s 79, a mistake of fact made in good faith. One could argue that the appellant could not have come within this defence since he was ignorant of the facts rather than having made a mistaken assumption of the facts. However, as I argued in my earlier article, such a fine distinction is not one that is worth pursuing (Chan, “Requirement of Fault in Strict Liability”, supra, at 118), and it is far better to focus on whether the appellant”s behaviour is worthy of moral condemnation or not. Based on the facts, we can conclude that the defence of mistake would not have been made out anyway since the appellant did not show that he had acted with “due care and attention” in the circumstances.

10.9 The second case, Chng Wei Meng v PP[2002] 4 SLR 595, dealt with another provision of the Road Traffic Act, s 43(4), which made it an offence to drive a motor vehicle on the road while disqualified from doing so. The appellant in this case failed to attend a court mention in respect of a Housing and Development Board parking summons. A warrant of arrest was issued and he duly surrendered to the Warrant Enforcement Unit where a warning was issued that if he failed to attend court for the second time, he would be disqualified from driving (there was some dispute as to the exact words of the warning administered but this was held to be of no consequence). The appellant failed to attend court the second time, which led to an order disqualifying him from driving. A second warrant of arrest was issued against him, but he was not informed at any time that an order of disqualification was made against him. He was subsequently involved in a traffic accident, which led to the present charge of driving a motor vehicle while under disqualification.

10.10 Although it was pointed out in the case that it would have been good practice if notices were sent out informing affected motorists that they have

been disqualified from driving, the point for our analysis is whether the appellant could be convicted under s 43(4) of the Road Traffic Act despite absence of knowledge of his disqualification.

10.11 The learned Chief Justice held that the offence in s 43(4) of the Road Traffic Act was a strict liability offence such that there was no necessity to prove knowledge of the disqualification order. This was again despite the common law presumption of mens rea for statutory offences. The presumption was found to have been rebutted for the following reasons: the absence of defences for the offence; the fact that the offence is not truly “criminal” but regulatory in nature; the offence is concerned with the protection and safety of the public; in most cases the person who drives while disqualified will also not be in possession of a valid third-party insurance policy which put innocent victims at risk if injured; and the police are often unable to identify and stop disqualified persons from driving on the roads. If the offence were read as requiring knowledge that one is disqualified from driving, this would not only create difficulties in locating and serving the motorists with a notice of disqualification but also defeat the effectiveness of this tool in compelling the motorist to attend court.

10.12 The maximum sentence of imprisonment for up to three years in this offence was also held not to be a bar to strict liability (at [20]):

“[T]he legislature could reasonably have intended severity to be a significant deterrence and there is nothing inconsistent with imposing severe penalties for offences of strict liability.

The inconsistent use of the criterion of offence-seriousness had gone unnoticed. On the one hand, it was said that the offence was one of strict liability because it was not truly “criminal” in nature; on the other hand, even if it a were grave offence (as shown by the maximum length of imprisonment, or the mandatory minimum imprisonment sentence as in Tan Cheng Kwee above), strict liability was not precluded. English law is admittedly no clearer on this, but the recent cases from the House of Lords...