Criminal Law

AuthorCHAN WING CHEONG MA (Oxford), LLM (Cornell), Barrister (Gray’s Inn), Attorney and Counsellor-at-Law (New York State), Advocate and Solicitor (Singapore), Associate Professor, Faculty of Law, National University of Singapore
Date01 December 2003
Published date01 December 2003
Citation(2003) 4 SAL Ann Rev 178
Mens rea
Strict liability offences

10.1 The case of Comfort Management Pte Ltd v PP[2003] 2 SLR 67 is an important one in the area of criminal law for two reasons. First, it sets out once more the principles to be applied in Singapore in relation to statutory offences which are silent as to the mens rea requirement. This approach may be described as an amalgamation of the English and Canadian approaches (see my earlier commentary on this development in ‘Criminal Law’(2002) 3 SAL Ann Rev 164 at paras 10.1 to 10.18.). The second reason for its importance is that it clarifies whether a mistake of law can be argued by the accused in proving that he had taken due care and attention to avoid the offence.

10.2 The offence itself in this case involved s 5(3) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) which provided that:

No person shall employ a foreign worker otherwise than in accordance with the conditions of the work permit.

There was no difficulty as to the actus reus requirement: the appellant had employed a foreign worker as a building electrician, but was found to have authorised him to drive a company vehicle to transport work equipment as well as to ferry workers between construction sites. At the appeal, the Prosecution argued that s 5(3) was a ‘strict liability’ offence, such that it did not have to prove mens rea on the part of the appellant.

10.3 The learned Chief Justice Yong Pung How noted that s 5(3) was silent as to the requirement of mens rea. He proceeded to apply the well-known criteria found in English law, ieSweet v Parsley[1970] AC 132 and Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong[1985] AC 1, to hold that the presumption of mens rea was rebutted. However, in line with the Canadian approach, the appellant was entitled to an acquittal if it could be shown on a balance of probabilities that it had taken ‘due care and attention’ to ensure that the foreign worker was not employed contrary to the conditions of his work permit. The almost imperceptible shift in the language belies its significance. The earlier cases which adopted the Canadian approach

used the standard of ‘due care’ or ‘reasonable care’ which the accused had to meet (see M V Balakrishnan v PP[1998] SGHC 416; [1998] 1 CLAS News 357; Tan Cheng Kwee v PP[2002] 3 SLR 390; Chng Wei Meng v PP[2002] 4 SLR 595). This led me to query whether it was defensible to import a potentially different standard than the one found in the Penal Code (Cap 224, 1985 Rev Ed) (see Chan Wing Cheong, ‘Requirement of Fault in Strict Liability’(1999) 11 SAcLJ 98). It is not inconceivable for a court to find that the accused had not exercised ‘due care’ if his actions were somehow immoral (see egR v Prince(1875) LR 2 CCR 154 per Bramwell B). Under the Penal Code, the accused can rely on the defence of mistake if his actions were ‘justified by law’. We learnt in Abdullah v R[1954] MLJ 195 that just because something is immoral (but not illegal) does not mean that it is not ‘justified by law’.

10.4 What the present case shows is that what was intended is not the wholesale importation of the Canadian concept of ‘due diligence’ (suggested by the phrases ‘due care’ and ‘reasonable care’), but the application of the defences found in the Penal Code, particularly its s 79 (hence the use of the phrase ‘due care and attention’). This is the approach I had argued for in my earlier article (‘Requirement of Fault in Strict Liability’, supra). The learned Chief Justice makes this clear by stating (at [31]):

[A]n accused is entitled to be acquitted if he can prove on a balance of probabilities that he has taken due care and attention to comply with the statutory requirements. This conclusion is not only just and logical, but also mandated by s 79, read with ss 40(2) and 52 of the Penal Code… [emphasis added]

10.5 As for whether a misinterpretation of the terms of the work permit conditions can amount to a showing that ‘due care and attention’ was exercised, the Chief Justice said (at [33]):

A mistake with respect to the effect or meaning of a work permit condition, like a mistake of law, is not a recognised defence. Otherwise, anyone can escape liability by asserting that [he] is under the delusion that a particular work permit condition does not mean what it is clearly expressed or intended to mean.

10.6 Our present approach towards ‘strict liability’ offences shows how important it is that a person is ‘morally blameworthy’ before he can be subjected to the criminal law. A blanket rejection of mistakes of law sits uneasily with this approach. A person who takes reasonable steps to ascertain the law, and endeavours to conform to it, can hardly be considered as deserving of condemnation if he violates it. Perhaps future cases may yet carve out a role for ‘reasonable reliance on official advice’ as a substantive defence (see PP v Teo Ai Nee[1995] 2 SLR 69; Forward Food Management Pte Ltd v PP[2002] 2 SLR 40; and Kumaralingam Amirthalingam, ‘Ignorance of Law, Criminal Culpability and Moral Innocence: Striking a Balance between Blame

and Excuse’[2002] SJLS 302), but I have doubts how this can be rationalised with the structure of the Penal Code (Chan, ‘Criminal Law’, supra at para 10.88).

Rashness

10.7 The respondent in PP v Poh Teck Huat[2003] 2 SLR 299 was convicted by the trial court for causing death by a rash act under s 304A of the Penal Code. The facts showed that the respondent had failed to stop his car at the junction of Loyang Lane and Loyang Drive as required, and had merely slowed down. He saw no traffic approaching and continued to cross the junction when he suddenly saw a motorcycle coming from his left and collided with it.

10.8 At the appeal, the Prosecution contended that the trial judge had erred in characterising the case as one akin to negligent driving. The learned Chief Justice noted that ‘it is undoubtedly correct to state that criminal rashness and criminal negligence involve two different states of mind’ (at [17]) and that this ‘distinction is further shown by the disjunctive language used in s 304A which demonstrates the contrast that the legislature must have meant to impose between the concepts of rashness and negligence’ (at [18]).

10.9 However, he continues (at [19] and [20]):

[The distinction] loses some of its significance at the sentencing stage. At this stage, the concern is to ensure that the sentence reflects and befits the seriousness of the crime. To do so, the court must look to the moral culpability of the offender.

In examining the moral culpability of an offender, the scale would start with mere negligence and end with gross recklessness. However negligence does not end nicely where rashness begins and there is a certain measure of overlap. As such, it is possible for the moral culpability of an offender who has committed a rash act to be akin to that of a negligent act.

In terms of the mens rea requirement, it is wondered if it can be said that rashness and negligence are truly distinct states of mind when it is also said that ‘negligence does not end nicely where rashness begins’. If the concepts cannot be distinguished neatly, how is the Prosecution to frame the charge? This is a matter of some importance as it was also held in this case that a conviction for causing death by a rash act would generally result in a sentence of imprisonment without any need for aggravating factors unlike causing death by a negligent act.

10.10 In discussing the respondent”s culpability for his acts, the learned Chief Justice said (at [25]):

[B]y slowing down, [the respondent] was clearly aware of the risk that he was taking, yet he had nonetheless chosen to drive on in the hope that an accident would not occur in the mistaken belief that, by slowing down, he had taken sufficient guard against it.

The distinction between a rash act and a negligent act is that in the former, the accused was conscious of the risk that his actions might bring, whereas in the latter, the accused was not conscious of the risk, but he would have been if he had thought about it. If this is so, the respondent should be regarded as being negligent instead of rash as he believed he had...

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