Published date01 December 2006
Date01 December 2006
AuthorMichael HOR LLB (National University of Singapore); BCL (Oxford), LLM (Chicago); Advocate & Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore.

This article looks at some of the most important issues surrounding the requirement of mens rea in Singapore criminal law today. The purpose is to measure the state of its health. It concludes that, although not all developments in recent years have been in that direction, the doctrine appears to be in general retreat. It makes a plea that the need for a strong mens rea ought to be respected in practice as it is in rhetoric, and argues that this can be done without any significant adverse impact on crime control.

1 The law reports do not lack for lofty pronouncements of the sanctity and fundamental importance of mens rea as an essential element of a crime.1 The received history is one of civilisation marching from the barbaric punishment of the person who brought about the forbidden harm to the enlightened inquiry of what was in the mind of the perpetrator.2 Knowledge is the mens rea par excellence — harm caused inadvertently should not, ethically, be punishable, and some would say, punishment here would serve no real purpose.3 The primitive dwelt only on causation, the modern on mens rea as well. There emerged alongside

mens rea another icon — the principle that guilt, and therefore mens rea, must be proved by the prosecution beyond reasonable doubt.4 The reality is something else. There are indeed offences for which the prosecution must prove mens rea beyond reasonable doubt.5 There are however a growing number of significant crimes which do not require full knowledge: crimes which need only some lesser form of mens rea like negligence; crimes which apparently require no mens rea at all; crimes which presume knowledge or negligence and require the accused person to disprove it. There cannot be any doubt that influential players in the criminal process — legislators, judges, prosecutors — harbour a distinct belief that both the principle of mens rea and of proof beyond reasonable doubt are undesirable in a great many contexts. Yet it would be wrong to say that either principle has been abandoned entirely. I hope to chart the ebb and flow of allegiance to the principle of mens rea and to discern the forces which push and pull one way or the other.

I. Knowing me, knowing you: The mens rea of murder

2 One of the most enduring thorns in the flesh of the criminal law is s 300(c) of the Penal Code6 which sets out the mens rea required for the only kind of murder that retains any practical relevance. It is necessary to set out all the mens rea limbs of murder in order to appreciate the interpretational difficulties:

culpable homicide is murder —

(a) if the act by which the death is caused is done with the intention of causing death;

(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

[emphasis added]

3 Section 302 demonstrates what is at stake:

Whoever commits murder shall be punished with death.

4 Section 300(c) sticks out like a sore thumb. The other limbs link the mens rea directly to the harm caused — death must be intended or known to be likely. Section 300(c) stops short of that — no doubt the injury must have been intended, but there is no apparent requirement that the likelihood of death must be known or foreseen. This flouts the classic conception of mens rea— if the accused person is to be held accountable for the death, as opposed to just the injury, he or she must be proved to have known that death would be likely to ensue. The gravamen of murder is surely that the accused person chose to embark on a course of conduct, knowing that death (and nothing less) would be the likely result. The chilling s 302 prescribes one, and only one, punishment for murder: death. No sentencing discretion is needed for the crime is of the highest order: the knowing deprivation of human life.

5 It is surprising that there is little evidence that s 300(c) was noticed until relatively recently. For decades after the promulgation of the Penal Code, there seems to have been no consciousness that s 300(c) contained the seeds of a highly subversive idea.7 Prosecutions proceeded

on the assumption that an intention to cause death (and perhaps its close ally knowledge that death was likely) was required.8 Then the dam broke. In 1956 the Supreme Court of India in Virsa Singh v The State of Punjab decided to take s 300(c) at its word:9

Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional … The question is not whether the prisoner intended to inflict a serious injury or a trivial one … Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness.

6 The element of death, thus reduced to an objective inquiry, is banished from the realm of mens rea. It is difficult to imagine how this objective inquiry is different from the causation inquiry of whether the accused had caused death in the first place. If the assailant has caused an injury, and that injury leads to death, it can never be that the injury was not sufficient in the ordinary course of nature to lead to death.10

7 The only question is whether the accused intended to inflict the injury which turned out to be fatal — death may have been far from the mind. It is important to appreciate the difference between s 300(c) and what I have called the classical conception that there must be knowledge of the likelihood of death. Too much is sometimes made of it. It is true that in practical terms a requirement of an intention to cause an objectively fatal injury will often yield the same result as a requirement of

knowledge that death was likely — death is normally the result of serious injuries and it is not an unfair assumption that most people must know what serious injuries are and that they are likely to cause death. Yet the criminal law should not be based entirely on what is normally the case or what most people must know — death sometimes occurs from injuries which are not normally thought of as serious, and many people do not know this. A stab to the heart, administered with significant force will normally satisfy either requirement, unless the accused is able to show that it was accidental, in the sense that the accused intended no injury at all or that another non-fatal injury was intended. But what does one do with an accused who presses a pillow onto the face of a victim in order to silence and not to kill, or an accused who slashes the leg of a victim in order to prevent escape and not to kill? Section 300(c) has the potential to make these situations murder and punishable with death, and it is in cases like these that s 300(c) is subjected to the greatest stress.

8 To the credit of our judges, they have extended a lifeline in a remarkable series of cases. This the courts achieved through the device of subtle distinctions between the injury intended and the injury which finally caused death. Embedded in s 300(c) is an inherent ambiguity: it is murder only if the injury intended was the same as the fatal injury. This uncertainty was anticipated in Virsa Singh:11

In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad based and simple and based on common sense: the kind of enquiry that “twelve good men and true” could readily appreciate and understand.

9 The problem with this kind of instruction is that it does not tell us exactly how particular the intention must be. It is often that injury leads to death in a chain of events — incision, severance of artery, loss of blood, death. Although it seems clear that death need not be

contemplated, it is not clear precisely how far along the chain the intention must extend. The courts have used this device sparingly but spectacularly. In Mohamed Yasin bin Husin v PP,12 the Privy Council surprised the legal community by quashing a murder conviction which had been upheld in the Court of Appeal. In the course of robbery and rape, Yasin had sat on the chest of his 58-year-old victim in order to subdue her. This...

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