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

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18 SAcLJ 314 Managing Mens Rea in Singapore 335reformulation of actual knowledge. It seems to me that it is wholly inkeeping with common sense and the law to say that an accused knew ofcertain facts if he deliberately closed his eyes to the circumstances, hiswilful blindness being evidence from which knowledge may be inferred.[emphasis added]40 The opportunity of getting rid of Tan Ah Tee once and for all wasagain missed, and the peculiar construction of the dissenting judgment ofYong CJ bears with it the potential of subsequent courts thinking that theconcept of wilful blindness somehow justifies Tan Ah Tee and itsintroduction of strict and negligent liability.41 The courts have persistently refused to resolve the matter andappear to be in a state of self-denial. Witness this remarkable synthesis inRamis a/l Muniandy v PP: 60The meaning of “possession” was discussed by Lord Pearce in Warner vMetropolitan Police Comr [1969] 2 AC 256,and followed by this court inthe case of Tan Ah Tee v PP [1978–1979] SLR 211; [1980] 1 MLJ 49. Along line of cases has since followed the ruling in these cases. Essentially,in order to prove possession, the prosecution had to satisfy twoelements: firstly, it had to prove that Ramis had physical control of thecannabis and, secondly, that Ramis knew that what he had under hisphysical control was cannabis … [emphasis added]42 Lord Pearce patently did not require proof that the accused“knew” he had cannabis. Nor are pronouncements in this veinuncommon. 61 Lest it be thought that no harm is done if, notwithstandinga misunderstanding about Warner v Metropolitan Police Commissioner 62and Tan Ah Tee, the requirement of knowledge now prevails, we needlook only at the decision of Yong CJ in a Magistrate’s Appeal in Shan KaiWeng v PP wherein it was held: 63Where a person is in possession of a bag or package which, in fact,contains a controlled drug, it is presumed that he is in possession of and60 [2001] 3 SLR 534 at [22].61 Less self-contradictory are cases like Sim Teck Ho v PP [2000] 4 SLR 39 at [13], whichdescribed the position as follows:Therefore, in order to prove possession, the Prosecution must prove that thereis first, physical control over the controlled drug, and second, knowledge of theexistence of the thing itself, that is the existence of the controlled drug, but notthe name nor nature of the drug. [emphasis added]However, nowhere in judgments such as these is there even an attempt at reconcilingthis with the presumption of knowledge in s 18(2). If this is the position, then itbecomes pointless to presume knowledge of the “nature” of the drug.62 Supra n 50.63 [2004] 1 SLR 57 at [23]–[24] (“Shan Kai Weng”).
336Singapore Academy of Law Journal (2006)knows the nature of the controlled drug. It is open to the accused to rebutthese presumptions: PP v Hla Win … The Court of Appeal in Tan Ah Teev PP … considered the sort of explanation required to rebut thepresumption of knowledge of the nature of the drug under s 18(2)MDA …. The court approved the approach of Lord Pearce in the Houseof Lords decision, R v Warner …, accepting that the word “possession”in the MDA should be construed as Lord Pearce had construed it.…The position under our law, therefore, is that possession is proven oncethe accused knows of the existence of the thing itself. Ignorance ormistake as to its qualities is no excuse. The appellant knew that the tabletwas in his car. He believed it to be a sleeping pill, which, like the aspirinof the hypothetical in Warner and Tan Ah Tee, is a drug. As such, hisignorance as to the qualities of the tablet did not provide him a defenceto the charge of possession …[emphasis added]43 The opposite has happened – instead of Tan Ah Tee being madeto conform to the majority decision in Hla Win, Hla Win has beenconscripted to the cause of Tan Ah Tee. It went totally unnoticed that itdefies any known logic to say, on the one hand, that the accused is opento rebut the presumption that he did not know the nature of the drug,and then to say that even if he does succeed, it is not an excuse. Shan KaiWeng was thankfully not a capital case, 64 but there is every danger that thesame kind of reasoning will prevail even where the death penalty is atstake.44 The confusion between knowledge and negligence permeatesanother set of crimes – the immigration offences. The original provisionsfor the offence of harbouring were simple: 65Any person who … harbours any person who has acted in contraventionof the provisions of this Act or the regulations … shall be guilty of anoffence …64 It was a charge of possession simpliciter for which the death penalty is not theprescribed punishment, but there is no indication in the cases that the meaning ofpossession on a charge of mere possession is any different from the meaning ofpossession for the purpose of trafficking, which is a capital crime. One hopes that ifthe courts insist on adopting Tan Ah Tee and Warner for mere possession, they canat least contemplate a different definition for possession for the purpose oftrafficking.65 Sections 57(1)(d), 57(1)(ii) and 57(7), Immigration Act (Cap 133, 1995 Rev Ed).
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2. Managing Mens Rea in Singapore - Singapore Academy of Law

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