Criminal Law

Citation(2000) 1 SAL Ann Rev 122
Published date01 December 2000
Date01 December 2000
Mens rea
Developments in strict liability offences

The ambiguity caused by criminal statutes that do not express any mental element in the definition of the offence is well known. The Attorney-General himself has expressed the view that the present state of affairs is not satisfactory and that such statutes should be re-examined and amended (Chan, “Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading the Law and Lawyers into the New Millennium@2020 (2000)).

Until the amendments are made, however, we will have to attempt to ascribe the appropriate degree of mens rea and allocate the burden of proof to the parties in the fairest way possible and in a way which furthers the purposes of the statute. It had been argued that a court confronted with such a statute has a range of alternatives to choose from (see Hor “Strict Liability in Criminal Law: A Re-Examination”[1996] SJLS 312). This may very well be what is happening in effect. In the two cases considered here, the requirement of mens rea was given a strong endorsement in the first case, but a “halfway house” approach was utilised in the second case.

In PP v Ong Phee Hoon James[2000] 3 SLR 293 the appellant was charged with five counts of having haboured illegal immigration offenders under s 57(l)(d), read with s 57(7) of the Immigration Act (Cap 133, 1997 Ed). The facts showed that the appellant leased the premises to a Bangladeshi national and the five immigration offenders were sub-tenants of the premises. Although there was no question that the appellant would have been liable for the offence of harbouring the original tenant as the original tenant was an illegal immigrant himself, the appellant was not charged with this offence. He was charged with harbouring the five subtenants.

The trial judge convicted the appellant based on two alternative grounds. On the first ground, it was found that the appellant did know of the presence of the five illegal immigrants at the premises, or had deliberately shut his eyes to the circumstances. Hence, the appellant had the necessary mens rea for the offence. This ground was upheld on appeal.

The trial judge further held, in the alternative, that even if the original tenant had sub-let the premises to the five illegal immigrants without the knowledge of the appellant, the appellant would still be liable for harbouring the sub-tenants. This second ground was found to be wrongly decided. Yong Pung How CJ commented that at first glance, this concept of vicarious criminal liability may serve to ensure that illegal immigrants do not procure accommodation easily and also deter property owners and landlords from adopting a “lackadaisical” attitude towards activities on their premises. However, it is not acceptable to find an owner guilty of harbouring illegal immigrant sub-tenants when the owner was completely unaware of their presence: “[I]t is a fundamental tenet of criminal law that the mens rea is presumed to be a necessary ingredient of an offence in the absence of clear words to the contrary”.

Support for this view was also found from the offence of harbouring illegal immigrant tenants. The presumptions created by Parliament in s 57 of the Immigration Act allow the mens rea of the accused to be presumed from certain facts, but the requirement of mens rea itself has not been dispensed with.

In the second case, Foo Suing Wah Frederick v PP[2000] 2 SLR 405, the appellant was charged with the offence of hindering the Corrupt Practices Investigation Bureau (“CPIB”) in the execution of its duties under s 26(b) of the Prevention of Corruption Act (Cap 241, 1993 Ed). This section provides that:

“Any person who … hinders [an officer] in the execution of any duty imposed or power conferred by the [Prevention of Corruption] Act … shall be guilty of an offence …”

It can be noted that the section is silent with respect to the required mental element for the offence. The prosecution conceded that the offence is not one of strict liability, and that the mens rea required is that of knowledge. However, the Chief Justice, after reviewing cases from other jurisdictions dealing with similar offences, held (at 426—427) that “a reasonable half-way house would be to require the prosecution to prove that the accused either knew or had reason to believe that the person hindered or obstructed was a police or CPIB officer, whom he also either knew, or had reason to believe, was acting in the execution of his duty”.

Support for this view was also found by comparing this offence with the offence of “obstructing a public servant in the discharge of his public functions” in s 186 of the Penal Code (Cap 224, 1985 Ed) where the mens rea required is ‘voluntarily’. “Voluntarily” is defined as intending a result, or knowing or having reason to believe that the result is likely (s 39 of the Penal Code).

It had been noted that the “halfway house” alternative is a new entrant to the Singapore case law. This possibility was not thought to have been

available under the traditional common law approach (see Chan, “Requirement of Fault in Strict Liability”(1999) 11 SAcLJ 98). One further possibility, which was not considered, is to place the onus on the defendant to show that he had taken reasonable care in the circumstances that his actions were not likely to hinder a police officer in the execution of his duty. This too is a “halfway” solution between construing an offence silent on mens rea as requiring proof of knowledge by the prosecution or as dispensing with such proof.

It remains this author”s opinion that the “halfway” solutions, or ascribing negligence as the minimum mental state for criminal liability, adequately balance crime control and fairness concerns. Moreover, this is in fact the result required by the structure of the Penal Code, particularly its s 40(2). Under this approach, however, the onus is on the defendant to show that he was not negligent. It is hoped that this will be the approach considered in the future.

Definition of “knowledge”

The first point of interest in Sim Yew Thong v Thomas Ng Loy Yam[2000] 2 CLAS News 165 relates to the definition of “knowledge” as a mens rea term. The Chief Justice said (at 173):

“There is no definition of the term ‘knowledge’ in the Penal Code. In my judgment, for the purposes of s 321 of the [Penal Code], the term ‘knowledge’ encompasses both recklessness (where an accused knows he is likely to cause a result) and negligence (when an accused has reason to believe that he is likely to cause a result). I was reinforced in this view by the general definition of the term ‘voluntarily’ in s 39 of the [Penal Code] …”

It is unclear how the definition of “knowledge” was reinforced by the definition of the term “voluntarily” where a person is said to cause an effect “voluntarily” when he intended to cause it, or when he knew or has reason to believe to be likely to cause it. It would appear from the definition of this term that the three mental states (“intention”, “knowledge” and “reason to believe”) are considered as distinct from each other.

It has been said that, as a practical rule, if there is a reason to believe something, it may form a logical basis on which to infer knowledge (see PP v Hla Win[1995] 2 SLR 424 at 438). But it would be an altogether different matter to define, on a conceptual level, “knowledge” as including a reason to believe in something. Knowledge of a certain fact simply means that the individual must be personally aware that it exists or is almost certain that it exists (see PP v Koo Pui Fong[1996] 2 SLR 266).

This submission is also supported by the following review of some of the provisions of the Penal Code. Where the offence may be committed either “knowing or having reason to believe” a certain fact, such as in ss 90,

121D, 136, 154, 183, 411 and 412 of the Penal Code, the latter mens rea will be rendered otiose if it meant the same thing as “knowledge” (see Bridges Christopher v PP[1997] 1 SLR 406 at 418, para 50).

The issue can also be analysed by comparing the offences of culpable homicide not amounting to murder in s 299 and causing death by a rash or negligent act in s 304A. By the third limb of s 299, culpable homicide may be committed by the doer causing death with “the knowledge that he is likely by such act to cause death”. If the state of “knowledge” encompasses “negligence” as well, there will be no distinction between ss 299 and 304A of the Penal Code. It remains to be seen if the above definition of “knowledge” will be repeated in the future.

Coincidence of actus reus and mens rea
Coincidence generally required

A very simple and straightforward proposition was affirmed by the Court of Appeal in Abdul Ra”uf bin Abdul Rahman v PP[2000] 1 SLR 683. The court held, in no uncertain terms, that the appellant must possess the requisite mens rea at the time the actus reus was committed before he can be convicted of the offence.

The case arose in the following way: the appellant was charged under s 7 of the Misuse of Drugs Act (Cap 185. 1997 Ed) for importing into Singapore without authorisation four packets of drugs through the Woodlands checkpoint on 3 March 1999. His defence was that a friend by the name of Razak wanted to take a lift from him in his car when he found out that the appellant was driving to Singapore. He was initially reluctant to allow Razak to place the four packets of drugs in his car, but he relented after Razak”s persistent pleadings and assurance that he will “take responsibility” for the packets.

Razak later alighted from the car before they reached the causeway and the appellant proceeded on his way. The appellant did not deny that he had physically brought the drugs into Singapore, but he raised the defence that as he failed to realise that Razak had not removed the drugs from the boot of the car after he alighted, the appellant did not...

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