Date01 December 2013
Citation(2013) 25 SAcLJ 801
Published date01 December 2013
AuthorCHAN Wing Cheong MA (Oxford), LLM (Cornell); Barrister (Gray's Inn), Attorney and Counsellor-at-Law (New York State), Advocate and Solicitor (Singapore); Associate Professor and Amaladass Fellow, Faculty of Law, National University of Singapore.
Kindling a Moral Discourse in Singapore Criminal Law

This article argues that serious consideration should be given to the moral foundations of the criminal law in Singapore by lawyers, judges and legislators, in particular the principle of mens rea and the principle of autonomy, in shaping the extent of criminal liability. It is only then that we can achieve a better understanding of when and how the criminal law and criminal penalties should be used.

I. Introduction

1 Although Macaulay, the drafter of the Indian Penal Code (which is the progenitor of the Singapore Penal Code), may have been greatly influenced by utilitarian ideals espoused in 19th century England at the time on criminal law reform,1 it is recognised that the infliction of punishment on the individual in Singapore needs to be justified beyond just balancing the costs and benefits of punishment. Condemnation of wrongful conduct via the criminal law2 and determining the appropriate sentence to be imposed,3 require proof of the offender's moral culpability. Punishment is not imposed regardless of individual fault for the sake of social protection or general deterrence.4 In the case of Tan Kay Beng v Public Prosecutor5 (“Tan Kay Beng”), it was said that: “Deterrence must always be tempered by proportionality in relation to

the severity of the offence committed as well as by the moral and legal culpability of the offender.”6

2 In the case of Tan Chong Koay v Monetary Authority of Singapore7 (“Tan Chong Koay”), the Court of Appeal noted that:8

In the realm of criminal law, it is prima facie objectionable to penalise a person for doing a criminal act which he did not intend to do or did not know would be a criminal act. The criminal law punishes or penalises persons with guilty minds. If the law makes it an offence to do a negligent, rash or reckless act (which causes harm to the interests protected by criminal law, namely, life, liberty and property), it should say so expressly.

3 The statement in Tan Kay Beng recognises an individual's inherent dignity and autonomy not to be punished even if it will have a deterrent effect in preventing further crimes. Deterrent theories may justify use of the criminal law in general, but the principle of autonomy requires proof of individual liability and punishment depends on personal culpability.9

4 The statement in Tan Chong Koay endorses the principle of mens rea accepted in the common law world, which emphasises the importance of treating persons as rational and autonomous individuals.10 Criminal liability is imposed only on those who are aware of what they are doing and the result of their actions such that they can be said to have chosen to act in that way and accept its consequences. Andrew Ashworth and Jeremy Horder note that:11

[S]ome element of mens rea is needed in order to give fair warning, which would be absent if offences could be committed accidentally … [and] the incidence and degree of criminal liability should reflect the choices made by the individual.

5 There are two main arguments in support of this principle of mens rea expressed in the above quotation. The first is the “rule of law” argument that it is wrong to punish anyone who does not intend or know there is a risk of causing a prohibited harm. A fair opportunity must be given for individuals to tailor their conduct to avoid running

foul of the criminal law and the individuals must have the capacity to do so.

6 The second argument is that the criminal law is about expressing the community's condemnation of the wrongdoing. It is therefore intrinsically unjust to censure a person for conduct which was committed without fault. The injustice is particularly glaring if the punishment imposed is harsh.

7 An important illustration of the principle of autonomy is the principle of correspondence:12 namely, that in relation to each conduct element of an offence, there must exist a requirement of fault at the equivalent level. Thus, the offence of “causing hurt” in the Penal Code13 requires the fault element of intention or knowledge that the act will cause hurt and not some other lesser degree of harm.14

8 It is argued that these two core principles of criminal law (the principle of autonomy and the principle of mens rea) are very much part of Singapore criminal law.15 Recognition of these basic principles of the criminal law can be seen in operation in various aspects of the Singapore criminal law, for example:16

  1. (a) Despite the absence of specific statutory provisions in Singapore law, cases have devised ways to avoid punishment for acts which are involuntary.17

  2. (b) A person cannot be punished for infringing a law which he does not have means of finding out what is prohibited.18

  1. (c) The mens rea must coincide with the actus reus for the offence.19

  2. (d) Reluctance to hold a person liable for a result which was unforeseeable.20

  3. (e) The fault element for each offence is generally set out in the definition of the offence itself.21

  4. (f) The general sentencing scheme followed is that those who act intentionally are punished more severely than those who act negligently – reflecting the individual blameworthiness of the conduct and not just the result caused.22

  5. (g) Rejection of the unlawful act-murder rule.23

  6. (h) Absolute liability (in the sense that a person can be punished despite not behaving intentionally, knowingly or negligently with regards to the blameworthy aspect of the offence) is seen with disfavour.24

  7. (i) Persons who do not have the normal capacity to obey the law's requirements are excused from liability, such as persons who are below the age of criminal responsibility,25 unsound in mind26 or acting under duress.27

  8. (j) Liability for group crimes under the doctrine of common intention requires proof of intent to commit the collateral offence.28

  1. (k) “Impossibility” of an attempted crime is generally not a bar to conviction, but the actus reus of the attempt must have proceeded such that the person can be said to have “embarked on the crime proper”.29

9 Even though the principle of autonomy and the principle of mens rea cannot be found explicitly in the local law, it does not mean that they are inapplicable. Implicit principles found within the structure of the criminal law itself can be recognised. For example, despite the fact that a “presumption of innocence” is not expressly found anywhere within Singapore law, it has been said that “[i]t is axiomatic that the presumption of innocence is a central and fundamental moral assumption in criminal law”.30 Another example is the requirement of concurrence between the actus reus and mens rea for an offence to be established. This has been described as a “fundamental principle of criminal law” despite the fact that it is not explicitly stated anywhere in the Penal Code.31

10 It is submitted that greater attention should be given to underlying principles which are in fact already encapsulated in Singapore criminal law. Three areas of the criminal law are selected to illustrate what difference an adherence to the principle of autonomy and the principle of mens rea will make in each of these areas.32 Each of these areas has been considered by courts in other jurisdictions, often basing their decisions on that jurisdiction's entrenched human rights protections in their constitutions. While these precedents emerge from jurisdictions with legal texts and circumstances which might be different from our own, it is hoped that the Legislature and the Judiciary will engage in a wider discourse based on the nature and function of the criminal law as it is commonly understood.

II. Minimum fault required for murder

11 The offence of murder is defined under s 300 of the Penal Code. Of the four subsections to s 300, (a), (b) and (d) require a degree of subjective intent or foresight of the death of the victim. Subsection (c) is

highly unusual33 and this has caused the local legal community much grief in that it does not require the offender to foresee death of the victim, but only an intent to cause a bodily injury which in fact causes death.34 This provision states that an act which causes death can be murder “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”.

12 An argument in support of this approach comes from “moderate constructivism” which points out that by intentionally inflicting the bodily injury, offenders change their normative position such that they may fairly be held liable for more serious consequences that occur, even if they had no subjective awareness that those further consequences may result.35 The crucial question is whether the causing of bodily injury, as a criminal threshold, is morally too distant from the resulting death such that it cannot be fairly imputed to the accused since it violates the principle of autonomy and the principle of mens rea described earlier.

13 The operation of s 300(c) is very similar to the felony-murder rule in English common law where the “malice” required for murder was implied from the commission of a felony at the time when the murder took place.36 Under this rule, a person can be convicted for murder even if he had killed accidentally in the course of committing a felony.

14 A version of the felony-murder rule was codified in the Canadian Criminal Code. In striking the provision down, the Supreme Court of Canada in R v Martineau37 said:38

a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s 213 [of the Canadian Code] is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender … the principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm...

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