KNOWING, NOT KNOWING AND ALMOST KNOWING: KNOWLEDGE AND THE DOCTRINE OF MENS REA

Citation(2008) 20 SAcLJ 677
Published date01 December 2008
Date01 December 2008

Certain offences are premised on the existence of certain circumstances, such as the fact that the information a person published is false or that the white powder in the person’s possession is heroin. For such offences, the doctrine of mens rea suggests that the offender should be punished only if he knew or was reckless to the existence of the specified circumstance. This article reviews the current state of our jurisprudence in this area. It begins by looking at the traditional fault elements prescribed for such offences, namely, actual knowledge and reckless knowledge. The important clarification by the Court of Appeal in Tan Kiam Peng v PP concerning the scope of the doctrine of wilful blindness will also be reviewed. After this, we will look at the relatively uncommon fault element of “does not care” which received detailed treatment in the case of PP v Able Wang in the context of s 199(i) of the Securities and Futures Act. Finally, we will look at an attitude-based approach to reckless knowledge as an alternative mens rea for the offence.

I. Introduction

1 Certain types of offences are defined in terms of a person’s awareness of the existence of a certain set of circumstances. For example, the fault element, or mens rea, required for the offence of drug possession is that the offender knew that what he possessed were controlled drugs. An offender who has actual knowledge of a specific set of circumstances but nonetheless carries out the proscribed conduct is said to be blameworthy. As an autonomous individual with free will, he said to have chosen the course of conduct despite having the relevant knowledge. At the other end of the spectrum of positive fault is negligence. The negligent offender does not possess any relevant knowledge; instead, he has fallen short of the standard of foresight, knowledge or capacity expected of the reasonable person in his position.

2 Between the fault requirements of actual knowledge and negligence lie a number of intermediate categories. This article looks at these intermediate categories to determine whether they amount to knowing, not knowing or whether they suffer the problem of indeterminacy and should be given the label of “almost knowing”. Of particular interest is the Court of Appeal’s decision in Tan Kiam Peng v PP2 which deals with the doctrine of wilful blindness and the High Court decision in PP v Wang Ziyi Able3 which deals with the mens rea of “does not care”.

II. Knowledge

3 We begin this essay by looking at the paradigm case of what it means to actually know that a specified circumstance exists. In the High Court case of PP v Koo Pui Fong,4 Yong Pung How CJ made the following observation in relation to the meaning of actual knowledge at [17]:

I think that it would be reasonable to say 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.

4 Actual knowledge comprises two categories, a person who knows for a fact (ie, is conscious or aware) that a set of circumstances exists, and a person who is virtually certain that it exists. The second category is uncontroversial as there is in many things never a hundred percent certainty and a person need not be one hundred percent certain before he can be fairly said to “know” that a particular circumstance exists. Both categories are described by the Court of Appeal in Tan Kiam Peng v PP as “actual knowledge in its purest form”,5 presumably to distinguish it from wilful blindness which is the legal equivalent of actual knowledge.

III. Wilful blindness

5 In many cases, there may be no direct evidence of the accused’s actual state of knowledge. However, when there is evidence that the accused had deliberately shut his eyes to the obvious, the result of which

he does not care to have, he may be said to have been wilfully blind to the truth: Koo Pui Fong v PP.6

6 The doctrine of wilful blindness or blind-eye knowledge (as it is known in English cases) was analysed in detail by the Court of Appeal in Tan Kiam Peng v PP. For the purpose of this article, we will only refer to how the Court of Appeal dealt with the position of wilful blindness along the spectrum of positive fault requirements and its relationship to actual knowledge and recklessness, its closest neighbours.

A. First principle of the doctrine of wilful blindness

7 After a comprehensive review of previous cases that dealt with the doctrine of wilful blindness, the Court of Appeal identified four central principles of which the first three are relevant to the present discussion.7 The first principle is that wilful blindness is equivalent to actual knowledge:8

The first is that wilful blindness is treated, in law, as being the equivalent of actual knowledge (see above at [106] as well as Koo Pui Fong (see at [104] above); Roper (see at [116] above); Leslie George Griffiths ([115] supra at 18); and Westminster City Council ([115] supra at 744)). Indeed, we are of the view that, given that both actual knowledge as well as wilful blindness are, more often than not, inferred from the facts and circumstances of the case, the line, in practice, between the two is a fine one and may, on occasion at least, even be blurred. However, it bears repeating that wilful blindness is not opposed to actual knowledge. [emphasis added by the Court of Appeal]

8 The difficulty with many of the authorities that the Court of Appeal referred to is that they were sometimes not clear whether the decision maker was engaging in the analytical exercise of determining whether, in law, the requirements for a finding of actual knowledge or wilful blindness were satisfied directly by the evidence before it or whether they were undertaking an evidential exercise and making inferences from the evidence in order to come to a finding of actual knowledge or wilful blindness. Therefore, in order to understand the relationship between actual knowledge and wilful blindness, a close reading of the actual judgment of the Court of Appeal is important. The Court of Appeal stated that wilful blindness is the equivalent of actual knowledge and, at the same time, is not opposed to actual knowledge.

9 Given that there is a theoretical distinction between wilful blindness and actual knowledge, in what way is wilful blindness nevertheless the equivalent to actual knowledge? The Court of Appeal appeared to recognise that the relationship between the two may not be easy to define and that “in practice, the distinction between actual knowledge and wilful blindness is fine and on occasion blurred”. Nevertheless, this article will attempt to sketch at least the outline of an answer to this question. As a starting point, it is useful to adopt the analytical framework in English cases on intention which discuss the relationship between foresight of virtual certainty and intention and treating these two concepts as analogues for wilful blindness and actual knowledge.

10 The first approach can be termed the “inference view”.9 Under this view, wilful blindness and actual knowledge are conceptually distinct. Actual knowledge may be inferred from the fact that the accused was wilfully blind to the obvious. The UK Law Commission’s Report on the Mental Element in Crime10 (“Law Commission Report”) adopts this approach:

On the whole, we have come to the conclusion that knowledge should be treated in a similar way to intention and for substantially similar reasons. With regard to the position of the person who is shown deliberately to have shut his eyes to the existence of the relevant circumstances of an offence, and claims that he did not actually know of their existence, we consider that a jury or court would generally infer, and so find as a fact, that he had no substantial doubt that those circumstances existed.11

11 This is similar to the approach taken by the High Court in Koo Pui Fong v PP where Yong CJ stated:12

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.

But this is different from saying that wilful blindness should be automatically equated with knowledge. Hence, if the respondent suspected that PW1 was an illegal immigrant but deliberately shut her

eyes to the circumstances, that in itself is strictly speaking not an alternative to knowing that PW1 had entered the country illegally, although it would be fair and almost irresistible to infer that the respondent had the relevant knowledge. [emphasis added]

12 Yong CJ in Koo Pui Fong v PP found support for this approach in the following passage of Lord Bridge in the House of Lords decision in Westminster City Council v Croyalgrange Ltd:13

[I]t is always open to the tribunal of fact, when knowledge on the part of a defendant is required to be proved, to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed.14

13 The second approach can be termed the “identity view”. Under this view, actual knowledge is defined to include both actual knowledge in its purest form and wilful blindness. Through redefinition, we obviate the necessity of proving a conceptual link between the two. Once wilful blindness is found, the inquiry stops as the requirement of knowledge is satisfied. Support for this approach can be found in the judgment of Devlin J in Roper v Taylor’s Central Garages (Exeter) Ltd,15 where it was stated that: “The case of shutting the eyes is actual knowledge in the eyes of the law.”16

14 An important practical difference between the identity and inference view can be illustrated by constructing a hypothetical case of an accused...

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