Citation(2013) 25 SAcLJ 110
Date01 December 2013
Published date01 December 2013
AuthorCHAN Wing Cheong MA (Oxford), LLM (Cornell); Associate Professor and Amaladass Fellow, Faculty of Law, National University of Singapore.
Wilful Blindness, the Reasonable Person and a Duty to Check

This article reviews recent developments where knowledge is the required fault element of a criminal offence. In many cases, direct evidence of knowledge is unavailable and inferences must be made. Recent drug trafficking cases concerning the mental state associated with wilful blindness in particular are reviewed, and a call is made for a new offence that more accurately defines what the wilfully blind accused in such cases failed to do.

I. Introduction

1 The difficulty of determining whether an accused possessed the mental state of knowledge as required by an offence is well known. In Public Prosecutor v Koo Pui Fong (“Koo Pui Fong”), it was noted that:1

… we would never have the benefit of going into the mind of another person to ascertain his knowledge and in every case, knowledge is a fact that has to be inferred from the circumstances.

2 Various devices are available to the Legislature if it wishes to extend the scope of criminal liability to those who had a lesser mental state. The alternatives of acting “knowingly or recklessly” have been used in a range of statutes;2 and objective belief (“has reason to believe”) can also be found as an alternative fault element to knowledge.3

3 Furthermore, where the Legislature has not expressly included a fault element for the offence, the Judiciary can take one of two routes. One way is to interpret the offence as one of strict or absolute liability.4 The other approach is to interpret the offence as requiring proof of a subjective fault element, but because it is so difficult to prove actual knowledge, the device of “wilful blindness” can be used to render liable as well those who would have known something if they had not intentionally shut their eyes to avoid such knowledge.5

4 The concept of wilful blindness or shutting one's eyes to the obvious6 has apparently been used by the common law since the mid-19th century7 as a basis to impute8 knowledge to an accused. In the local context, the concept is deployed most often in offences relating to controlled drugs under the Misuse of Drugs Act.9 A typical case involves an accused who is charged with possession or trafficking of a controlled drug that is found in a concealed compartment of a motor vehicle or bag. The accused claims that he did not have actual knowledge of

the contents of the compartment and therefore cannot be convicted of the offence.

5 In Koo Pui Fong, it was explained:10

It seems to me that it is wholly in keeping with common sense and the law to say that an accused knew of certain facts if he deliberately closed his eyes to the circumstances, his wilful blindness being evidence from which knowledge may be inferred.

6 In Chiaw Wai Onn v Public Prosecutor (“Chiaw Wai Onn”), the point was put more strongly:11

[I]f a man says to himself, ‘Despite all that I have seen and heard, I refuse to accept what my brain tells me is obvious’, it is an absurdity to say that he does not have the relevant knowledge simply because he chooses to practise Nelsonian blindness and delude himself.

7 With regard to the Misuse of Drugs Act, two matters may distract one from, and even distort, an accurate appraisal of the doctrine of wilful blindness. The first is the fear that if proof of actual knowledge of the drug is required, the efficacy of the law would be seriously undermined.12

8 Second, owing to the reverse burden of proof provisions, an accused is presumed to have a drug in his possession if, for example, he had control of the motor vehicle in which the drug was hidden, and is also presumed to know the nature of the drug.13 It is up to the accused to rebut these presumptions on a balance of probabilities.14 However, this reversal of burden of proof should not affect our analysis of what must be proved. It only affects which party bears the burden of proof.15

9 This article will, first of all, consider the concept of wilful blindness and how it fits into the “ladder” of fault elements in the criminal law. This is followed by a discussion of whether the reasonable person is relevant in deciding if an accused is wilfully blind. It concludes by suggesting that the law on controlled drugs can be clearer if the duty to inspect for concealed drugs is explicitly stated along the lines of the duty of due diligence found in the Immigration Act.16

II. Intention, knowledge and recklessness

10 In terms of the hierarchy of culpability, the subjective fault elements of acting intentionally, knowingly and recklessly (ie, rashly)17 should be ranked in that order. If support for this statement is needed, one can refer to the offence of homicide in the Penal Code, where the punishment for causing a person's death ranges from the mandatory death penalty for causing death intentionally,18 to ten years' imprisonment for doing an act with the knowledge that it is likely to cause death,19 to five years' imprisonment for causing death by a rash act.20

11 Acting intentionally means acting purposively, with the commission of the physical elements of the offence as the accused's conscious object,21 which explains why this state of mind deserves the highest condemnation. Acting knowingly is next in the scale since the accused has acted with awareness of the physical elements of the offence even though he may not have desired its commission;22 whereas in acting recklessly, the accused acted while consciously disregarding the risk that the physical elements of the offence will be committed. The difference between knowledge and recklessness (or rashness) is brought out in the following passage from Empress of India v Idu Beg:23

[C]riminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences.

12 Some statements made by the Court of Appeal may suggest that wilful blindness is an independent fault element separate from knowledge and recklessness. See, for example, the statement made in Tan Kiam Peng v Public Prosecutor (“Tan Kiam Peng”):24

[W]ilful blindness cannot be equated with virtual certainty for … this would be to equate wilful blindness with actual knowledge … The result would be to erase the doctrine of wilful blindness from the legal landscape altogether. [emphasis in original]

13 Is there enough conceptual space left then for wilful blindness as a separate fault element that is neither knowledge nor recklessness? The law is clear that the mental state of “knowledge” does not mean full or actual awareness of a fact only, but includes an awareness that something is virtually certain to exist or occur. In Koo Pui Fong,25 it was said that “a person ‘knows’ a certain fact if he is aware that it exists or is almost certain that it exists or will exist or occur. Thus knowledge entails a high degree of certainty”.

14 On the other hand, acting recklessly can be satisfied by an awareness of the possibility of the proscribed consequences happening.26 This is unlike the situation in some jurisdictions where the likelihood of the proscribed consequences must reach the level of probability or a substantial risk in order to satisfy the fault element of recklessness.27

Hence, a line can potentially be drawn between the mental states of knowledge (an awareness that something is at least virtually certain to occur) and recklessness (an awareness of the possibility that something will occur). Wilful blindness can potentially fill this space, by proof that the accused was aware of the probability of the proscribed consequences.

15 However, it is submitted that the differences in the fault elements are too fine to be split this way. Furthermore, positioning a substantively new mental state of wilful blindness in this way runs into charges of judicial rewriting of the offence which did not recognise this fault element in the first place. Support for not recognising wilful blindness as an alternative fault element can be found in the following excerpts from selected judgments:

In Koo Pui Fong:28

This concept of wilful blindness does not introduce a new state of mind to that of knowing … It is simply a reformulation of actual knowledge. It seems to me that it is wholly in keeping with common sense and the law to say that an accused knew of certain facts if he deliberately closed his eyes to the circumstances, his wilful blindness being evidence from which knowledge may be inferred.

In Chiaw Wai Onn:29

[W]here the facts obviously point to one result, and the accused must have appreciated it but shuts his eyes to the truth, then together with the other evidence adduced, this can form a very compelling part of the evidence to infer the requisite guilty knowledge.

In Public Prosecutor v Mas Swan bin Adnan (“Mas Swan bin Adnan”):30

Wilful blindness may be the legal equivalent of actual knowledge, but it is not the same as actual knowledge … [Wilful blindness is] an evidential tool towards establishing actual knowledge.

In Nagaenthran a/l K Dharmalingam v Public Prosecutor (“Nagaenthran a/l K Dharmalingam”):31

Wilful blindness … is merely ‘lawyer-speak’ for actualknowledge that is inferred from the circumstances of the case. It is an indirect way to prove actual knowledge; ie, actual knowledge is proved because the inference of knowledge is

irresistible and is the only rational inference available on the facts. [emphases in original]

16 In sum, the better view, based on the above judicial pronouncements, is that wilful blindness is neither an independent fault element nor a “legal equivalent of actual knowledge”,32 but an evidential matter to be taken into account when deciding if the necessary knowledge existed.33

III. Indicia of culpability

17 The more critical issue is when a...

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