Date01 December 2001
Published date01 December 2001
Citation(2001) 13 SAcLJ 54

Courts and lawyers are no strangers to difficult questions of substantive criminal law. Where the stakes are high, as they are under the Misuse of Drugs Act, the resolution of issues which determine the precise ambit of criminal liability is even more agonising. The need to support the Legislature in the “war on drugs” has a great potential to clash with traditional criminal justice values of due process and fairness. This article reviews three borderline situations. Two concern the mens rea of possession and trafficking, where the court has made numerous pronouncements. The remaining has to do with the meaning of complicity in a drug offence, a question which the court has yet to face squarely.

1. The “War on Drugs” and the Substantive Criminal Law

Nowhere is the “war on drugs” waged more savagely than in Singapore. Special provision has been made for almost every stage of the criminal process.1 The law provides for a dedicated enforcement agency with enhanced investigative powers.2 Rules of evidence are radically altered and in many instances it is the accused who must prove his or her innocence.3 The most powerful punishment on the penological menu — the mandatory death penalty — is available.4 It is not the intent of this article to delve into the many fascinating and important issues which arise therefrom: that of the choice between prohibition and controlled access,5 that of the propriety and wisdom of the mandatory death penalty,6 that of tampering with the presumption of innocence.7 But they must form the backdrop of any discussion of that basic question of substantive criminal law (which is the purpose of this article) — how are the drug offences to be defined? Otherwise, things can go sadly wrong. To say

that a regulatory offence punishable with only a fine or a short term of imprisonment is one of strict liability is one thing — to impose strict liability for an offence punishable with mandatory death is quite another. The jurisprudential basis of allowing the penalty to inform or affect the interpretation of the meaning of a criminal offence is controversial. There are those who believe that issues of substantive criminal law should be decided without looking at the punishment involved — I am not one of them. At the end of the day, within the bounds of legitimate statutory interpretation, the courts have to do justice. Justice cannot be done fairly if we do not keep an eye on what is to become of the accused if found guilty.8

It has become fashionable to think that drug offences are exceptional9— akin to emergency powers in times of war and armed insurgency. Due process and the normal criminal law have to be swept aside, it is said, in order to do battle with drug purveyors. We need to think very clearly before we decide to accept the rhetoric. There is perhaps little point in a general discourse — we need to get down to the specifics. Each departure from the normal manner of the establishment and enforcement of criminal norms must be carefully scrutinised. If it is argued that presumptions which make it incumbent on the accused to prove innocence are necessary, we need to ask if indeed it helps legitimate law enforcement, and if the attendant costs of such a measure are outweighed by the advantages. If it is asserted that strict liability is necessary, then that assertion must be unpacked and tested. Thus should all aberrations of the criminal law be treated. Tradition need not be respected simply because it is tradition — but it is often an expression of fundamental values which society held, and still holds.

It would be unfair to say that our courts have completely forsaken traditional due process in waging the “war on drugs”. Indeed, it may be argued that, on occasion, the court has gone beyond its normal role in order to prevent gross injustice. I have chosen 3 areas of drug law to illustrate, first, a situation where some sacrifice to traditional due process has been made; secondly, an occasion where the court seemed to have gone out of its way to prevent an obviously unfair result; and thirdly, a

troublesome issue which has the potential of causing real problems in the future.

2. The Mens Rea of Drug Offences

There is a host of offences in the Misuse of Drugs Act (the MDA), but the two principle ones are that of possession and trafficking. What is the difference between these two core drug offences? As Lord Diplock succinctly put it:10

[T]he evident purpose of the Act is to distinguish between dealers in drugs and the unfortunate addicts who are their victims …Supplying or distributing drugs to others is the evil against which s 3 [now section 5] with its draconian penalties is directed.

The offence of possession of drugs is found in section 8 of the MDA, alongside the offence of consumption.11 It is significantly less serious than trafficking and is perhaps directed principally at “the unfortunate addicts”.12 Notwithstanding the devilish difficulty which has plagued efforts to define possession the world over,13 the MDA, unfortunately, does not define the term.14 One set of issues has to do with whether there can be knowledge (of the existence of the drug) without possession — that we

shall explore later.15 The other issue, which I now deal with is whether there can be possession without knowledge. It is perhaps useful to flesh out the factual scenario in which difficulties normally arise. The accused is arrested and illicit drugs are found in a bag or other container which he or she is holding. The accused is charged with possession, but pleads his or her innocence, arguing ignorance or mistake as to the contents. The actual defence may take a number of forms — the accused mistakenly thought that the bag was empty; the accused mistakenly thought the bag contained something entirely innocent (eg dried prawns16); the accused mistakenly thought that the contents were some other illicit items (eg smuggled gems17); the accused mistakenly thought that the contents were a different kind of illicit drug (eg marijuana instead of heroin18).

It is important to put aside questions of burden of proof. Where no presumptions operate, the prosecution must prove possession beyond reasonable doubt; where presumptions apply, it is the accused who must disprove possession on a balance of probability. These rules do not deal with the issue of substantive law we now confront - quite apart from who has to prove or disprove, what exactly is it that must be proved or disproved.19

(a) The Language

First, we must go to the words of the statute. Section 8 of the MDA says:

[I]t shall be an offence for a person to (a) have in his possession a controlled drug …

“Possession” is not defined. The word itself is opaque — it does not tell us the degree of knowledge the accused must have before he or she can be said to be in “possession”. This is the classic strict liability problem —20 the Legislature is silent or unclear as to the precise mens rea requirement. What is the court to do? There are a range of possible answers — semantically, one can be in possession even if one thought the bag was empty; alternatively, one should be held to be in possession only if there was full knowledge of the existence and nature of what was in the bag. There are, as we shall see, a number of intermediate positions. We must recognise immediately that this is just about as far as linguistic analysis will get us — it is quite futile and ludicrous for anyone to pretend, as a number of judges have tried to do, that it is a matter of interpreting the “words”.21 We are thrown into the cauldron of policy — the question is no longer what the words do mean, but what the words should mean.22 Several years ago, I suggested that the courts should be free to choose from the entire spectrum of mens rea alternatives, from strict liability, to negligence, to knowledge.23 How is this choice to be made in the context of drug possession?

(b) The Morality of Mistakes

There is no doubt that for criminal punishment to be morally permissible the accused must know all the facts which make his or her actions criminal.

Section 79 of the Penal Code contains an expression of this fundamental moral position:

Nothing is an offence which is done by any person … who by reason of a mistake of fact … in good faith believes himself to be justified by law, in doing it.

If the accused did not know there was anything in the bag, then it cannot be criminal or punishable because he or she is to be judged on what he or she believed the situation to be —ie on the basis that the bag was empty. Similarly, if the accused honestly thought that the thing he or she was carrying was entirely innocent (eg dried prawns), then he or she is to be judged on the basis of that belief. Only when the accused knows that what he or she is conveying is an illicit drug does it become morally justifiable to punish — it is this knowledge which makes the behaviour morally wrong.

Although section 79 does, broadly, accord with our moral intuitions, there are two particular aspects of the precise wording which may not. First, it appears that the defence works only if the accused thought that his actions were “justified by law”. Thus if the accused thought that he was carrying something illicit (eg smuggled gems or unlicensed Viagra) but not drugs, section 79 seems to hold him to possession of illicit drugs. It is a kind of constructive or transferred knowledge. Knowledge of anything illicit is a sufficient substitute for knowledge of illicit drugs. This does not make moral sense24— it may not matter much if the penalties were equivalent, but it does matter where there is a vast difference in severity of punishment (as is the case between possession of illicit drugs and possession of smuggled items). In this respect, section 2.04(2) of the Model Penal Code of the American Law Institute (the MPC)25 establishes the correct moral position:

[T]he defense [of...

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