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

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18 SAcLJ 314 Managing Mens Rea in Singapore 331Any person who is proved or presumed to have had a controlled drug inhis possession shall, until the contrary is proved, be presumed to haveknown the nature of that drug. [emphasis added]30 Knowledge of the nature of the drug is the mens rea theLegislature had in mind – otherwise it would be pointless to presume itsexistence. But the burden of proof is shifted, where the presumption istriggered, to the accused to prove that there was no such knowledge. Itmust follow that if the accused rebuts the presumption by proving that heor she did not know the nature of the drug, the prosecution must fail. In1979 the unfortunate case of Tan Ah Tee v PP was decided. 49 It was a casewhich was destined to plague our drugs law since. Instead of construingthe MDA on its own terms, the Court of Appeal inexplicably adopted theinterpretation by Lord Pearce in a House of Lords decision 50of theEnglish drugs legislation, a law which did not contain the crucialpresumption of knowledge or the possibility of a death penalty.Lord Pearce was of the view that the offence was established in twosituations where the accused did not actually know that what was inpossession was drugs: 51I think that the term “possession” is satisfied by a knowledge only of theexistence of the thing itself and not its qualities, and that ignorance ormistake as to its qualities is not an excuse. This would comply with thegeneral understanding of the word “possess.” Though I reasonably believethe tablets which I possess to be aspirin, yet if they turn out to be heroin Iam in possession of heroin tablets. …… Thus the prima facie assumption [of mens rea, upon proof ofpossession of a container with drugs in it] is discharged if he proves (orraises a real doubt in the matter) either (a) that he was a servant orbailee who had no right to open it and no reason to suspect that itscontents were illicit or were drugs or (b) that although he was the ownerhe had no knowledge of (including a genuine mistake as to) its actualcontents or of their illicit nature and that he received them innocentlyand also that he had had no reasonable opportunity since receiving thepackage of acquainting himself with its actual contents. For a man takesover a package or suitcase at risk as to its contents being unlawful if hedoes not immediately examine it (if he is entitled to do so).[emphasis added]31 It is obvious that whatever the validity of these pronouncementsunder English law, they cannot apply to the MDA. The first proposition is49 [1978–1979] SLR 211 (“Tan Ah Tee”).50 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (“Warner”).51 Id, at 305–306.
332Singapore Academy of Law Journal (2006)particularly serious: it is strict liability in the strictest sense – it is not evennegligence for reasonable belief does not exonerate. If the Court ofAppeal had been advertent of the presumption of knowledge in the MDA,accused persons do indeed have a good defence if they can prove thatthey did not know, for instance, that the tablets were heroin, whether ornot the belief was reasonable. The second proposition, the position forcontainers, builds on the first and, essentially, fixes the accused withknowledge of the “thing itself” if he or she ought to have known orchecked the contents of the container in possession. It is a negligencestandard upon strict liability. Again, if the Court of Appeal had beenadvertent of the presumption in the MDA, none of this could be the casein Singapore – whether the drug is in the open or in a container, theaccused has a good defence if it is proven that there was no knowledgethat he or she had controlled drugs in possession.32 There is much that is wrong about relying on Lord Pearce tointerpret the MDA, but if reliance there must be, it ought to have been onanother portion of the judgment, which the Court of Appeal, surprisinglyalso quotes: 52… Parliament may have intended what was described as a “halfwayhouse” … By this method the mere physical possession of drugs wouldbe enough to throw on a defendant the onus of establishing hisinnocence, and unless he did so (on a balance of probabilities) he wouldbe convicted. The Explosive Substances Act, 1883, produces this fair andsensible result but it does so by express words … [emphasis added]33 In other words, had there been a presumption such as the onewhich exists in the MDA, Lord Pearce himself would have given effect toit, and that would have been the fair and sensible thing to do. But he felthe could not legislate for Parliament. There can be no doubt that theCourt of Appeal, in adopting Lord Pearce’s conclusions (and not even hisreasoning), was acting per incuriam, because it had been inadvertent of adirectly applicable statutory provision – the express rebuttablepresumption of knowledge under the MDA.34 One would have thought that such a clear error would have beencorrected at the first opportunity but that was not to happen. A swarm ofdecisions since 1979 have quoted Tan Ah Tee with approval. 53 Eventually,of course, the hitherto unnoticed presumption of knowledge did catch52 Id, at 302.53 Notably in the recent case of Shan Kai Weng v PP , infra n 63.
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2. Managing Mens Rea in Singapore - Singapore Academy of Law

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