Criminal Law

• Author: CHAN Wing Cheong MA (Oxford), LLM (Cornell); Barrister (Gray‘s Inn), Attorney and Counsellor-at-Law (New York State), Advocate and Solicitor (Singapore); Associate Professor and Amaladass Fellow, Faculty of Law, National University of Singapore.
• Published date: 01 December 2010
• Date: 01 December 2010
• Citation: (2010) 11 SAL Ann Rev 306

General concepts

Wilful blindness

12.1 The case of Public Prosecutor v Lim Boon Hiong [2010] 4 SLR 696 (‘Lim Boon Hiong’) involved two accused persons, Lim and Koay, who were jointly charged with drug trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). It was not disputed that the bundles of diamorphine were in their physical custody since they were hidden inside their car. However, it was argued, inter alia, that they had not known that the bundles contained diamorphine and hence, they were not in ‘possession’ of the drug within the meaning of s 5(2) since ‘possession’ required knowledge of the thing possessed.

12.2 In the earlier case of Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1 (‘Tan Kiam Peng’), the appellant was charged with importing heroin under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). It was argued that while he knew that he was importing illegal drugs, he had not known the precise nature of the drugs he was carrying (ie, he had not known that the drugs contained heroin). However, on the facts of the case, the Court of Appeal held that the appellant had actual knowledge that the drugs he was carrying consisted of heroin, so there was no need to rely on the presumption under s 18(2) of the Misuse of Drugs Act. In the discussion that followed, the Court of Appeal observed that there were two possible interpretations to the meaning of ‘knowledge’ in s 18(2). It could mean mere knowledge that the drug was a controlled drug (the ‘broad’ approach) or it could mean knowledge of the specific nature of the drug, eg, that the drug was diamorphine (the ‘narrow’ approach). Although the Court of Appeal favoured the narrow approach, no definitive conclusion was reached since the issue was not argued in detail by counsel.

12.3 In the present case, the learned judge noted that the observations of the Court of Appeal in Tan Kiam Peng were equally applicable even though it involved a consideration of s 5(2) instead of s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). The narrow

approach favoured in Tan Kiam Peng was adopted here for the same reason given in Tan Kiam Peng: the need to resolve any ambiguities in favour of the accused (Lim Boon Hiong at [62]).

12.4 The learned judge pointed out that in practice there may not be a difference between the narrow and broad approaches anyway, since the requirement of ‘knowledge’ may be satisfied by actual knowledge as well as wilful blindness. The learned judge said (Lim Boon Hiong at [66]):

Taking the Court of Appeal“s example at [129] of Tan Kiam Peng:

Where … an accused is given a wrapped package and is told that it contains counterfeit currency when it actually contains controlled drugs … absent unusual circumstances, the accused should at least ask to actually view what is in the package. Even a query by the accused coupled with a false assurance would … be generally insufficient to obviate a finding of wilful blindness on the part of the accused under such circumstances.

… since the accused knows (whether by actual knowledge simpliciter or by wilful blindness) that the package contains controlled drugs, if he does not take sufficient steps (and it is clear from the Court of Appeal“s observations above that merely asking for, and receiving assurances is not sufficient), he is wilfully blind as to the specific nature of the drug, ie, the narrow approach. The result, therefore, is that once an accused person has a firm or specific suspicion that he is in possession of a controlled drug, and then deliberately refrains from confirming that suspicion, he will not only be held to know, via wilful blindness, that he is in possession of a controlled drug (the broad approach) - he will, ineluctably, also be held to know, via wilful blindness, that he is in possession of the specific drug in question (the narrow approach), since wilful blindness is the legal equivalent of actual knowledge simpliciter.

[emphasis in original]

12.5 As for what would count as ‘sufficient’ inquiries to displace a finding of wilful blindness, it was observed by the learned judge that token inquiries are not sufficient, but the standard should also not be set so high as to require a scientific analysis to determine the nature of the drug. It was opined that, to obviate a finding of wilful blindness, the accused must take ‘reasonable steps to investigate by making further inquiries that were appropriate to the circumstances … and that what is reasonable in the circumstances will vary from case to case’: following Tan Kiam Peng at [129]. Hence, ‘[i]n some cases, it may be sufficient for the accused to inspect the contents of a suspicious package, even if he incorrectly satisfies himself as to the nature of those contents, while in other cases, more may be required’: Lim Boon Hiong at [74].

12.6 On the facts of Lim Boon Hiong, it was held that since Lim knew that he was carrying controlled drugs, he ought to have taken reasonable steps to investigate by making further inquiries such as by opening the packets and satisfying himself that they did not contain heroin. Since he did not take such steps and deliberately refrained from confirming his suspicions, he was wilfully blind that the drugs in his physical custody were diamorphine: Lim Boon Hiong at [84]. As for Koay, he admitted in his statements that he knew that the bundles contained diamorphine which was not contradicted by his alleged poor understanding of the language or his mental state at the time the statements were taken.

12.7 For an example of a situation where wilful blindness cannot be found against an accused person, reference can be made to another drug trafficking case decided in 2010: Public Prosecutor v Azman bin Mohamed Sanwan [2010] SGHC 196. On the facts of that case, two of the accused, Tamil and Bala, were held not liable for the charge of drug trafficking since they did not have actual knowledge nor could they be said to have been wilfully blind to the hidden drugs. They did not intentionally refrain from making inquiries and they did not have an opportunity to examine the bundles found in the car.

12.8 It remains to be seen if the learned judge“s views in Lim Boon Hiong will be accepted such that the gap between the narrow and broad approaches can be easily satisfied in practice by the concept of wilful blindness. It seems like a hollow victory indeed if the narrow approach - adopted to avoid the extreme penalties under the Misuse of Drugs Act in the event of ambiguity - can be so easily overcome.

Defences

Consent

12.9 In Public Prosecutor v Iryan bin Abdul Karim [2010] 2 SLR 15 (‘Iryan’), three accused persons were charged, inter alia, with sexual assault by penetration under s 376 of the Penal Code (Cap 224, 2008 Rev Ed) (‘Penal Code’) by penetrating without consent the victim“s mouth with their penises. The accused persons and the victim were inmates sharing the same cell in Changi Prison at the time.

12.10 As the accused persons did not dispute the fact that the acts of fellatio had been committed, the only issue in contention was whether the victim had consented to the acts. The accused persons argued that the lack of consent was not proven because the victim had ‘willingly’ performed, or had ‘offered’ to perform, fellatio on them.

12.11 The learned judge noted that although s 376 of the Penal Code, which was introduced by the Penal Code (Amendment) Act 2007 (Act No 51 of 2007), was loosely based on s 2 of the Sexual Offences Act 2003 (c 42) (UK) (‘the UK Act’), the definition of ‘consent’ found in s 74 of the UK Act as well as the evidential and conclusive presumptions regarding consent in ss 75 and 76 of the UK Act were not adopted. The only general provision describing the presence of consent is to be found in s 90 of the Penal Code. This provision does not stipulate what consent means, but sets out the circumstances when consent is vitiated instead. Section 90 of the Penal Code states:

A consent is not such a consent as is intended by any section of this Code -

(a) if the consent is given by a person -

(i) under fear of injury or wrongful restraint to the person or to some other person; or

(ii) under a misconception of fact, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;

(b) if the consent is given by a person who, from unsoundness of mind, mental incapacity, intoxication, or the influence of any drug or other substance, is unable to understand the nature and consequence of that to which he gives consent; or

(c) unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.

12.12 In comparison, the UK Act sets out a positive definition of consent in s 74 as follows:

[A] person consents if he agrees by choice, and has the freedom and capacity to make that choice.

12.13 In Iryan, the judge agreed with the comments in Ratanlal & Dhirajlal“s Law of Crimes: A Commentary on the Indian Penal Code 1860 (C K Thakker & M Thakker eds) (Bharat Law House, 26th Ed, 2007) at p 2061 that ‘consent clouded by fear … cannot be deemed to be “consent“ as understood in law’, which principle is embodied in s 90(a)(i) of the Penal Code. The learned judge also agreed with the commentary which notes (Iryan at [123]):

Consent … requires voluntary participation … after having freely exercised a choice between resistance and assent. Submission … under the influence of terror is not consent. … Every consent involves submission but the converse is not true. Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to; it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

12.14 It can be seen that the law in Singapore and the UK regarding the meaning of consent are...