2. Managing Mens Rea in Singapore - Singapore Academy of Law

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18 SAcLJ 314 Managing Mens Rea in Singapore 329issue when the day comes for those in power to consider the repeal ofs 300(c). 41II.To know or ought to know – that is the question28 While the court cannot be held responsible for the inclusion ofs 300(c) in the Penal Code, they have, in an astounding series of cases indrugs and immigration prosecutions, sought to confuse the mens rea ofknowledge and of negligence. To know something is to be actually awareof its existence – this is normally accepted to be the higher or moreblameworthy form of mens rea. Negligence is the situation where there isno actual knowledge, but the context or circumstances are such that areasonable person ought to have known, or ought to have checked – thisis a lower or less blameworthy form of mens rea, a state of mind which isoccasionally made criminal. It is important to appreciate the differencebetween the two. Courts remind us that there is often little chance ofdirect evidence of knowledge 42 – so in practice knowledge is inferred fromcircumstantial evidence. A large part of the assessment of circumstantialevidence involves the question of whether a reasonable person in theposition of the accused would have known. 43 One might even say that allelse being equal, the same evidence which goes to show negligence willalso go to show knowledge. However, where knowledge is the prescribedmens rea, the fact that a reasonable person ought to have known is only41 There are formidable obstacles in the way of any such notion. Criminal lawlegislation has been almost exclusively “bureaucracy driven” leading to changeswhich maximise the efficiency of the bureaucracy in curbing particular criminalactivity. There is also a prevailing belief that the inherited English common law hadsomehow struck the balance too much in favour of the rights of the accused, asopposed to the interests of the prosecution (and therefore of the “public” behind it)– then Prime Minister Lee Kuan Yew has said, in his speech at the Opening of theSingapore Academy of Law on 31 August 1990, (accessed 30 March 2005) (also published as Lee Kuan Yew,“Address by the Prime Minister, Mr Lee Kuan Yew” (1990) 2 SAcLJ 155 at 155):In English doctrine, the rights of the individual must be the paramountconsideration. We shook ourselves free from the confines of English normswhich did not accord with customs and values of Singapore society. In criminallaw legislation, our priority is the security and well-being of law-abiding citizensrather than the rights of the criminal to be protected from incriminatingevidence.42 This observation needs to be significantly qualified in Singapore where there is notinfrequently the existence of confessions made by the accused to the police in thecourse of police interrogation – see, for example, the extensive use of suchstatements to prove knowledge in the recent drugs case of PP v Nguyen Tuong Van[2004] 2 SLR 328.43 For the reason that the fact that a reasonable person would have known bears on thecredibility of an accused person who has testified that he or she did not know.
330Singapore Academy of Law Journal (2006)part of the inquiry – it is probative, not dispositive, of knowledge. It isquite possible that the facts of a particular case will show that the accuseddid not actually know, although a reasonable person ought to haveknown. 4429 Where the Legislature has clearly prescribed a particular mens reafor an offence, the courts have no legitimate creative function to fashionother forms of mens rea which they feel will do better. Yet in a series ofdrugs and immigration cases, the courts have done just that. 45 The Misuseof Drugs Act (“MDA”) makes it an offence to traffic in a controlled drug,or to possess a controlled drug for the purpose of trafficking. 46 Where thedrug exceeds a certain stipulated amount, the MDA famously imposes amandatory sentence of death. 47The question is whether, to be guilty ofthe offence, the accused must know that the thing trafficked or possessedis a controlled drug. The words “traffic” and “possess” and its cognateexpressions are ambiguous. The precise mens rea of (especially) theelement of possession has been historically problematic both locally andelsewhere. 48 Even so, one might have thought that given the existence of amandatory death penalty, the uncertainty ought to be resolved in favourof the accused and a mens rea of knowledge required by implication.Indeed, the MDA contains a presumption which ought to have settled thematter:44 There could be any number of reasons. For example, the accused may possess certainpersonal characteristics which are not taken into account for the test of thereasonable person, or the accused was simply being less prudent than a reasonableperson would have been.45 Many of the ideas in this section were developed from those first expressed in twoarticles: Michael Hor, “Misuse of Drugs and Aberrations in the Criminal Law”(2001) 13 SAcLJ 54; Michael Hor, “Illegal Immigration: Principle and Pragmatism inthe Criminal Law” (2002) 14 SAcLJ 18.46 Section 5, Misuse of Drugs Act (Cap 185, 2001 Rev Ed).47 MDA, id, Second Schedule.48 An important precedent in the pro-knowledge camp is Toh Ah Loh v R [1949] MLJ54 (“Toh Ah Loh”), which declared, at 54–55:Possession, in order to incriminate a person, must have the followingcharacteristics. The possessor must know the nature of the thing possessed,must have in him a power of disposal over the thing, and lastly must beconscious of his possession of the thing. If these factors are absent, hispossession can raise no presumption of mens rea, without which (except bystatute) possession cannot be criminal.Though widely respected, Toh Ah Loh did not command absolute allegiance: see, forexample, Leow Nghee Lim v R [1956] MLJ 28, and the early but able discussion ofBron McKillop, “Strict Liability Offences in Singapore and Malaysia” (1967) 9 MalLR 118 at 137–144, who concluded rather gloomily, at 144:It seems almost that for every case in which the courts here have opted for mensrea another case on the same or a similar offence can be found in which liabilityhas been held to be strict, and vice-versa.
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