Criminal Law
| Citation | (2014) 15 SAL Ann Rev 269 |
| Published date | 01 December 2014 |
| Author | CHEAH Wui Ling LLB (Hons), LLM (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York); Assistant Professor, Faculty of Law, National University of Singapore. |
| Date | 01 December 2014 |
13.1 The Singapore Judiciary's Criminal Law Jurisprudence In 2014 Focused On Recent Legislative Amendments And Crimes With Increasingly Complex Factual Permutations. In Doing So, The Courts Did Not Limit Themselves To Deciding The Issues At Hand But Took The Opportunity To Explore Other Relevant Issues And Problems That May Need To Be Addressed In The Future. This Approach Is In Line With The Judiciary's Broader Commitment To Develop Singapore Law And Is One That Is Likely To Continue. In 2014, The Chief Justice Stated That The Courts Were Exploring The Possibility Of Convening Panels Of Five Judges In Court Of Appeal Cases Of jurisprudential Significance: Response By Chief Justice Sundaresh Menon, Opening Of The Legal Year 2014 At Para 31. The Singapore Judiciary Has Also Started Appointing Three-judge Panels To Hear Select Magistrate's Appeals: Response By Chief Justice Sundaresh Menon, Opening Of The Legal Year 2015 At Para 34.
13.2 Singapore judges have proceeded in a cautious manner when engaging in legal exposition. They have been careful to proceed on a case-by-case basis, by delimiting issues on the facts of each case and by emphasising the context underlying their findings. Nevertheless, they have not hesitated to explore issues that, while not arising in the case before them, are necessary for a long-term and holistic development of the criminal law. This obiter dicta is important. It gives lawyers an idea of judicial thinking and highlights what judges may choose to focus on when a case engaging such issues comes before them.
13.3 This review of 2014 criminal law cases has two parts. The first part of the review deals with general concepts, and the second part with specific crimes. Each part is divided into topic-specific sections that start by summarising noteworthy cases and end with an analysis of the cases covered in that section.
13.4 In Muhammad Ridzuan bin Md Ali v Public Prosecutor[2014] 3 SLR 721 (Muhammad Ridzuan bin Md Ali), the Court of Appeal discussed the issue of wilful blindness among others. This case dealt with an appeal against a capital conviction under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA). The appellant (Ridzuan) had asked one Abdul Haleem to sell heroin as partners. On two occasions, they had received drugs from their supplier (Gemuk) twice. It was on the second occasion that they were caught. In both incidents, the appellant was the one who dealt with Gemuk while Abdul Haleem had picked up the drugs. When Ridzuan contacted Gemuk on the second occasion, Gemuk had told Ridzuan that he would be giving Ridzuan more than his share of bundles and that he would arrange for these additional bundles to be picked up later. Abdul Haleem was given an additional seven bundles of heroin when he went to pick up the drugs.
13.5 The court addressed the following questions (at [31]):
(a) First, whether the Judge erred in finding that Ridzuan and Abdul Haleem were trafficking in furtherance of a common intention, ie, s 5(1)(a) read with s 5(2) of the MDA, read with s 34 PC.
(b) Further and/or in the alternative, whether the Judge had erred in finding that the elements of the offence of trafficking against Ridzuan had been made out; in particular that:
(i) Ridzuan was in joint possession of the said drugs with Abdul Haleem pursuant to s 18(4) and/or failed to rebut the presumption of possession arising pursuant to s 18(1)(c) of the MDA;
(ii) Ridzuan had actual knowledge of the nature of the said drugs and/or had failed to rebut the presumption of knowledge arising pursuant to s 18(2) of the MDA; and
(iii) Ridzuan was in possession of the drugs for the purpose of trafficking.
13.6 In answering (a), the court referred to prior precedent and affirmed (at [43]) that the criminal act will be considered to be done in furtherance of the common intention of all the offenders only if that common intention included an intention to commit the very criminal act done by the actual doer [emphasis in original]. The court agreed with the trial judge that the facts showed that Ridzuan had actually known of the nature of the drugs. It then considered whether Ridzuan had known about the quantity of the drugs. While the judges found (at [57]) that both Ridzuan and Abdul Haleem had not addressed their minds to the quantity of drugs handed over by Gemuk, their common intention was to collect any number of bundles of heroin that Gemuk gave them. This common intention therefore encompassed the actual criminal act done by Abdul Haleem. The court held that Ridzuan fell within the scope of s 34.
13.7 The court then considered Ridzuan's liability under (b). It decided (at [65]) that Ridzuan had been in joint possession of the drugs with Abdul Haleem as he had not merely passively acquiesced to Abdul Haleem's possession of bundles from Gemuk. Rather, Ridzuan had played an instrumental role and was the one who had made arrangements with Gemuk: at [65]. Ridzuan's counsel on appeal argued that Ridzuan had not known or consented to the seven additional bundles. The Court of Appeal noted (at [66] and [67]) that this question had not yet been considered in previous cases and that it would be highly artificial to impute knowledge of the drugs' quantity and nature to a person under s 18(4). It must be determined what Ridzuan actually knew and consented to. The court referred to its earlier findings on s 34, finding that Ridzuan knew and consented to Abdul Haleem receiving drugs of whatever nature and quantity: at [68].
13.8 Though the court found that Ridzuan had actual knowledge of the nature of the drugs, it considered the alternative ground of whether Ridzuan's knowledge of the drugs could otherwise be presumed under s 18(2) of the MDA. The judges affirmed (at [74]) the trial judge's finding that actual physical possession was not needed for s 18(2)'s presumption to apply. Ridzuan was found by the court to have not rebutted the presumption of knowledge because he had been wilfully blind: at [83]. As Gemuk had not distinguished Ridzuan's bundle from the other bundles when passing them to Abdul Haleem, the court observed (at [81]) that Ridzuan should have been reasonably suspicious that the other bundles also contained heroin. Yet, Ridzuan had made no checks with Gemuk. The court conceded that it would have been impractical for Ridzuan to check the bundles upon receipt from Gemuk, but he had not even taken the reasonable step of checking with Gemuk on the phone or with Abdul Haleem later: at [82].
13.9 The High Court also considered the question of wilful blindness in Public Prosecutor v Muhammad Farid bin Mohd Yusop[2014] SGHC 125 (Muhammad Farid bin Mohd Yusop). The accused was charged with trafficking methamphetamine, also known as ice. The amount of drugs the accused had received from his supplier (Bapak) was sufficient to attract the mandatory death penalty under the MDA to apply. The accused argued that he had an agreement with Bapak that he should not be provided with not more than 250g of ice, an amount which would not trigger the mandatory death penalty. In the incident in question, Bapak had passed the accused more than the agreed upon amount.
13.10 The High Court judge found (at [27] and [28]) that the accused had rebutted the presumption under s 18(1) since he had an agreement with Bapak and the accused had no reason to suspect that he was given an amount exceeding 250g. The judge recognised (at [42]) that the facts of the case would not have sufficiently aroused the accused's suspicion that Bapak had not complied with their agreement. Even if the accused had considered this possibility, these suspicions were not firmly grounded on specific facts but arose simply by virtue of the risky venture he undertook [emphasis in original]: at [43]. Accordingly, the accused's level of mens rea did not reach the level of wilful blindness. The court therefore convicted the accused of trafficking 249.99g of ice.
13.11 In both Muhammad Ridzuan bin Md Ali (above, para 13.4) and Muhammad Farid bin Mohd Yusop, the Court of Appeal and the High Court emphasised that wilful blindness cannot be equated with negligence or the failure to make inquiries. This has also been the position put forward by academics: see, for example, Chan Wing Cheong, Culpability in the Misuse of Drugs Act: Wilful Blindness, the Reasonable Person and the Duty to Check (2013) 25 SAcLJ 110 (Chan). It is important to distinguish wilful blindness from rashness or recklessness as the accused is being convicted of drug trafficking on the basis of knowledge: Nagaenthran a/l K Dharmalingam v Public Prosecutor[2011] 4 SLR 1156. The Court of Appeal in Muhammad Ridzuan bin Md Ali expressly stated that the doctrine of wilful blindness is the legal equivalent of actual knowledge. It did not treat wilful blindness as evidence of knowledge but as knowledge itself. This is in line with how the common law doctrine on wilful blindness has developed in the UK, though the conditions governing the doctrine's application are not capable of being stated precisely: see A P Simester et al, Simester and Sullivan's Criminal Law (Hart Publishing, 5th Ed, 2013) at p 149.
13.12 Wilful blindness is treated as knowledge is because the accused chose not to make inquiries despite his suspicions to avoid knowledge in order to escape punishment: Chan at 117. In line with this, the accused should not only be suspicious of the fact in question but have a high enough level of suspicion so that his failure to inquire justifies a finding that he knew about the fact in question. It is worth noting that the High Court in Muhammad Farid bin Mohd Yusop, when finding that the accused was not wilfully blind, noted that the facts in that case could not have sufficiently aroused the suspicion of the accused. Even if the accused had some suspicions, the High Court explained that...
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