Criminal Law

Citation(2007) 8 SAL Ann Rev 196
Date01 December 2007
Published date01 December 2007
Strict liability

11.1 In the case of PP v Han John Han[2007] 1 SLR 1180, Choo Han Teck J made a suggestion that the general defence of unsoundness of mind in s 84 of the Penal Code (Cap 224, 1985 Rev Ed) does not apply to strict liability offences (at [6]). Although it was admitted that this was ‘not a relevant issue before the court’, and therefore not properly argued, the suggestion made is, with respect, misleading.

11.2 The present understanding of what is a strict liability offence is one where the prosecution bears the burden of proving that the accused has committed the actus reus of the offence but it is open to the defence to negate liability by establishing, on a balance of probabilities, that one of the general defences apply in his case (Yeo, Morgan, Chan, Criminal Law in Malaysia and Singapore (LexisNexis, 2007) ch 7). Hence, although the prosecution is relieved of having to prove mens rea for a strict liability offence, the question of fault is still relevant to determining criminal culpability. A person who can fulfil the requirements of the unsoundness of mind defence would not be at fault and hence, not deserving of punishment.

11.3 Perhaps his Honour meant to refer to absolute offences instead of strict liability offences. Absolute offences are those where the defendant is only allowed those defences which affect actus reus such as automatism (eg, PP v Yong Heng Yew[1996] 3 SLR 566 at 568) and not defences such as unsoundness of mind which relate to mens rea. However, it has been suggested that offences of absolute liability are not possible in the scheme of the Penal Code unless these are specifically created by the legislature and, in any case, absolute defences are far too draconian in nature, which the legislature should not resort to: Chan, ‘Requirement of Fault in Strict Liability’(1999) 11 SAcLJ 98.

Mental disorder and unsoundness of mind

11.4 In PP v Han John Han [2007] 1 SLR 1180, Choo Han Teck J also pointed out the gulf between the legal and medical definitions of ‘insanity’ (at [6] and [9]) and the inadequate sentencing powers

available to a court when a person is found to be suffering from mental disorder (at [8]). This is a point which has been made by his Honour in the past (see PP v Dolah bin Omar[2001] 4 SLR 302; PP v Chia Moh Heng[2003] SGHC 108) and by other judges.

11.5 Two recent developments are relevant in this area, but both fail to address the plight of accused persons suffering from mental disorders directly. First, the maximum term of imprisonment for culpable homicide not amounting to murder under s 304(a) of the Penal Code (Cap 224) has now been raised to either life or up to 20 years from either life or up to ten years by the Penal Code (Amendment) Act 2007 (Act No 51 of 2007). Courts have opted for life imprisonment in cases of diminished responsibility in the past because the determinate sentence of ten years (actually just over six and a half years after remission) was seen as too short for public protection: see for example PP v Dolah bin Omar (above); PP v Kwok Teng Soon[2001] 4 SLR 516; PP v Lim Hock Hin[2002] 4 SLR 895; PP v Ong Wee Teck[2001] 3 SLR 479; PP v Chia Moh Heng (above). With the increased flexibility given to the courts to award a term of imprisonment of up to 20 years (or just over 13 years with remission) in appropriate cases, it may be hoped that there will be fewer sentences of life imprisonment since 13 years” imprisonment may be long enough to serve the purposes of public protection.

11.6 Secondly, a new offence of ‘procurement of sexual activity with person with mental disability’ has been created in s 376F by the Penal Code (Amendment) Act 2007 (Act No 51 of 2007). An accused is liable for this new offence if he knows or could reasonably be expected to know that the victim has a mental disability. What is interesting is that mental disability is defined as ‘an impairment of or disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain which impairs the ability to make a proper judgement in the giving of consent to sexual touching’. This is easier to satisfy than unsoundness of mind where the person must be ‘incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law’ (s 84 of the Penal Code (Cap 224)) and diminished responsibility where the cause of the abnormality of mind must be one of the bracketed causes and lead to a ‘substantial’ impairment of mental responsibility for his acts and omissions in causing death (exception 7 to s 300 of the Penal Code (Cap 224)).

11.7 Section 376F of the Penal Code (Cap 224) is, of course, not a defence to criminal liability unlike unsoundness of mind and diminished responsibility (which only applies to a case of murder). However, in view of the fact that the Singapore legislature is willing to grant greater protection to those suffering from mental disorders such that a new offence is created for them, we can be hopeful that greater concessions will also be given if they are charged with committing an

offence. Only legislative intervention can cure the shortcomings in the present defences and provide for additional sentencing regimes appropriate to their case.

Common intent

11.8 Two cases were decided by the High Court in 2007 involving the doctrine of common intention found in s 34 of the Penal Code (Cap 224) which deserve examination. These two cases involved a situation where there was an agreement between the participants to commit one offence such as robbery (the primary...

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