Criminal Law

• Date: 01 December 2006
• Author: Stanley YEO LLB (Hons)(University of Singapore); LLM(Hons)(Wellington); LLM(Hons), PhD, LLD (Sydney); Professor, Faculty of Law, National University of Singapore.
• Citation: (2006) 7 SAL Ann Rev 211
• Published date: 01 December 2006

Knowledge

11.1 The meaning of ‘knowledge’ as a fault element in the criminal law has perplexed judges and commentators alike. While there is no doubt that it comprises a purely subjective mental state, the difficulty lies in there being degrees of knowledge. Compounding the complexity are the other forms of fault recognised by the criminal law such as belief, recklessness and rashness which also contain the element of knowledge. The Singapore High Court case of PP v Tan Kiam Peng[2007] 1 SLR 522 considered at length the question of what constituted knowledge in relation to the offence of importing a controlled drug under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed).

11.2 The accused was apprehended at the Woodlands customs checkpoint with packets of heroin strapped around his waist. He admitted to knowing that he was importing illegal drugs but contended that he did not think that the drugs were of the type which would attract the death penalty (this issue is discussed in para 11.24 below). The issue of what constitutes ‘knowledge’ for the purposes of the offence charged arose because the prosecution contended that it could be satisfied on proof of any of the following five levels of knowledge postulated in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et l”Industrie en France SA[1983] BCLC 325 (‘Baden’) at 407:

(a) actual knowledge;

(b) wilfully shutting one”s eyes to the obvious;

(c) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;

(d) knowledge of the circumstances which would indicate the facts to an honest and reasonable man; and

(e) knowledge of circumstances which would put an honest and reasonable man on inquiry.

11.3 V K Rajah J (as he then was) rejected the prosecution”s contention on the ground that the Baden scale of knowledge had been largely discredited even in the field of constructive trusts in which Baden was decided. Accordingly, his Honour held that the prosecution was wrong to suggest that the presumption of knowledge under s 8(2) of the Misuse of Drugs Act could not be rebutted by a lack of actual knowledge alone, and that the other levels of knowledge had also to be rebutted.

11.4 His Honour then proceeded to consider the specific question of whether ‘wilful blindness’ could constitute the actual knowledge required for the offence of illegal drug importation. He answered this question in the affirmative after referring in considerable detail to the views of two English criminal law commentators and a local commentator (at [24]—[26]). These commentators noted that a person is wilfully blind if he or she had an overwhelmingly strong belief that a prohibited circumstance existed and, despite this belief, chose to refrain from confirming what was obvious. In such a case, although the person does not actually know, his or her mental state is regarded, both morally and legally, as equivalent to actual knowledge.

11.5 Rajah J cautioned that it was important to keep the line distinct between actual knowledge and wilful blindness on the one hand, and recklessness and negligence on the other (at [30]). As for the distinction between actual knowledge and recklessness, he cited Prof Glanville Williams” comment that ‘[t]he word “knowing” in a statute is very strong. To know that a fact exists is not the same as taking a chance whether it exists or not’ (Textbook of Criminal Law (Stevens, 2nd Ed, 1983) at p 126). Clearly, knowing that something may possibly exist (recklessness) is not the same as knowing for a certainty that it exists (actual knowledge) or knowing that there is a high probability that it exists (wilful blindness). As for the distinction between actual knowledge and negligence, it is quite wrong to replace actual knowledge with ‘ought reasonably to know’ (at [23]) since the latter concept involves an objective appraisal of the kind performed for the determination of negligence. With regard to wilful blindness and negligence, Rajah J cited with approval the submission by Prof Michael Hor in ‘Misuse of Drugs and Aberrations in the Criminal Law’(2001) 13 SAcLJ 54 at 74:

Negligent ignorance is of a completely different order of culpability from wilful ignorance. Foolishness or carelessness is one thing, deliberately shutting one”s eyes to the obvious is quite another. [emphasis in original]

Rashness

11.6 Besides ‘knowledge’, another form of fault contained in statutory offences is ‘rashness’. What constitutes rashness has been discussed most frequently in relation to the offence of causing death by a rash act under s 304A of the Penal Code (Cap 224, 1985 Rev Ed). The standard judicial definition of this term is as follows (see Balchandra Waman Pathe v State(1967) 71 Bombay LR 684 and cited with approval in PP v Teo Poh Leng[1992] 1 SLR 15 and PP v Poh Teck Huat[2003] 2 SLR 299):

A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening.

11.7 It is evident from this definition that rashness comprises a purely subjective mental state of knowing of a risk. An unresolved issue is whether ‘rashness’ is exactly the same as ‘recklessness’. This issue arises especially in relation to cases of driving causing death where the prosecution could charge the accused with either causing death by a rash act under s 304A or reckless driving causing death under s 66 of the Road...