18 SAcLJ 314 <strong>Manag<strong>in</strong>g</strong> <strong>Mens</strong> <strong>Rea</strong> <strong>in</strong> S<strong>in</strong>gapore 337[The <strong>of</strong>fence <strong>of</strong> harbour<strong>in</strong>g] shall be punished with imprisonment for aterm <strong>of</strong> not less than 6 months and not more than 2 years and shall alsobe liable to a f<strong>in</strong>e not exceed<strong>in</strong>g $6,000 …Where, <strong>in</strong> any proceed<strong>in</strong>gs for an <strong>of</strong>fence [<strong>of</strong> harbour<strong>in</strong>g], it is provedthat the defendant has given shelter to any person who has rema<strong>in</strong>ed <strong>in</strong>S<strong>in</strong>gapore unlawfully for a period exceed<strong>in</strong>g 90 days after the expiration<strong>of</strong> any pass issued to him or who has entered S<strong>in</strong>gapore [unlawfully], itshall be presumed, until the contrary is proved, that the defendant hasharboured him know<strong>in</strong>g him to be a person who has acted <strong>in</strong>contravention <strong>of</strong> the provisions <strong>of</strong> this Act or the regulations.[emphasis added]45 The parallels with the MDA are almost exact. The <strong>of</strong>fence <strong>of</strong>harbour<strong>in</strong>g does not on its face conta<strong>in</strong> any particular mens rea words.However, the existence <strong>of</strong> the presumption <strong>in</strong>dicates clearly that thelegislative <strong>in</strong>tent is that the mens rea is actual knowledge <strong>of</strong> unlawfulstatus <strong>of</strong> the person sheltered. The punishment for harbour<strong>in</strong>g, thoughcerta<strong>in</strong>ly not <strong>of</strong> the same order, <strong>in</strong>volves a mandatory term <strong>of</strong>imprisonment.46 Once aga<strong>in</strong>, there were problems from the start. In PP vVadivelu, 66a decision which has never s<strong>in</strong>ce been doubted, it was heldthat: 67To rebut the presumption <strong>of</strong> knowledge it is not enough for therespondent merely to deny knowledge or the acquisition <strong>of</strong> knowledge.Even if the respondent proves to the satisfaction <strong>of</strong> the court that he <strong>in</strong>fact does not know that these three Indians were overstayers, he is stillnot entitled to be acquitted unless he proves on a balance <strong>of</strong> probabilitiesthat he could not have reasonably known that they were overstayers (seePP v Koo Cheh Yew & Anor). [emphasis added]47 Once aga<strong>in</strong>, despite the clear legislative <strong>in</strong>tent that actualknowledge was the relevant mens rea, albeit with the burden <strong>of</strong> pro<strong>of</strong>reversed, the court <strong>in</strong>sisted on the lower standard <strong>of</strong> negligence. Reliancewas yet aga<strong>in</strong> placed on a foreign decision, this time the Malaysian case <strong>of</strong>PP v Koo Cheh Yew. 68Both the decision <strong>in</strong> Koo Cheh Yew itself, and theresort made to it <strong>in</strong> Vadivelu are riddled with problems, but suffice it to66 [1992] 1 SLR 105 (“Vadivelu”).67 Id, at 115, [79].68 [1980] 2 MLJ 235 (“Koo Cheh Yew”).
338S<strong>in</strong>gapore <strong>Academy</strong> <strong>of</strong> <strong>Law</strong> Journal (2006)say that the Malaysian case came out so oddly only because it was deal<strong>in</strong>gwith what it perceived to be a plea <strong>of</strong> ignorance <strong>of</strong> the law. 6948 Subsequent decisions not only failed to correct the error, butextended it to the companion <strong>of</strong>fence <strong>of</strong> employ<strong>in</strong>g an illegalimmigrant. 70The employment <strong>of</strong>fence, as with harbour<strong>in</strong>g, is governedby a presumption <strong>of</strong> knowledge, 71 which the courts took, on the authority<strong>of</strong> Vadivelu, to be rebuttable not by lack <strong>of</strong> knowledge alone, but by lack<strong>of</strong> negligence as well. In Naranjan S<strong>in</strong>gh s/o Ujagar S<strong>in</strong>gh v PP, 72anunreported employment decision, error was compounded with confusionwhen the court, after quot<strong>in</strong>g Vadivelu with approval, cont<strong>in</strong>ued:[I]n practice the courts have treated [the employment <strong>of</strong>fence] as if itdid impose a strict liability, and have placed a high obligation on thepart <strong>of</strong> an employer <strong>of</strong> foreign workers to establish that they were notillegal immigrants or overstayers before employ<strong>in</strong>g them. To my m<strong>in</strong>dthis strict approach, certa<strong>in</strong>ly as regards s 57(1)(e), must be taken. Toallow an employer to evade the section by do<strong>in</strong>g what would, <strong>in</strong> effect,amount to wilfully shutt<strong>in</strong>g his eyes to [the] immigration oremployment status <strong>of</strong> his foreign employee, would make proper controland enforcement impossible. It cannot be plac<strong>in</strong>g too onerous a dutyupon employers <strong>in</strong> S<strong>in</strong>gapore to require them to screen their foreignworkers before employ<strong>in</strong>g them … [emphasis added]49 No less than three states <strong>of</strong> mens rea are treated <strong>in</strong>terchangeably.First, strict liability, where both knowledge and negligence are not69 Koo Cheh Yew had to deal with a very similarly constructed set <strong>of</strong> customs <strong>of</strong>fences.A list <strong>of</strong> customs <strong>of</strong>fences was followed by a presumption <strong>of</strong> knowledge <strong>in</strong> theseterms: “any dutiable, uncustomed or prohibited goods shall be deemed to bedutiable, uncustomed or prohibited goods, as the case may be, to the knowledge <strong>of</strong>the defendant unless the contrary be proved by such defendant”. The defendant <strong>in</strong>this case had pleaded that he was not aware that pianos from South Africa wereprohibited when he brought them <strong>in</strong>to Malaysia. The majority <strong>in</strong> the Federal Courtseemed to have been distracted by the characterisation that this was a plea <strong>of</strong> mistake<strong>of</strong> law, and ruled that here, as with all cases <strong>in</strong> which mistake <strong>of</strong> law is pleaded, thedefence can succeed only if the defendant “could not have possibly known” <strong>of</strong> theexistence <strong>of</strong> the law concerned. With respect, Suffian LP was clearly right when heheld, <strong>in</strong> dissent, that the existence <strong>of</strong> the presumption <strong>of</strong> knowledge showed theLegislature’s <strong>in</strong>tention that ignorance <strong>of</strong> the law here was <strong>in</strong>deed a defence.Certa<strong>in</strong>ly, if the Legislature desires to create a defence <strong>of</strong> ignorance or mistake <strong>of</strong> law,it is not for the judges to say otherwise. Needless to say, Vadivelu and the S<strong>in</strong>gaporeimmigration <strong>of</strong>fences were not even concerned with a plea <strong>of</strong> ignorance <strong>of</strong> the law.70 Section 57(1)(e), Immigration Act.71 Section 57(8), Immigration Act:Where an immigration <strong>of</strong>fender is found at any premises or place, other thanpremises used solely for residential purposes, the occupier <strong>of</strong> the premises orplace shall be presumed, until the contrary is proved, to have employed himknow<strong>in</strong>g that he is an immigration <strong>of</strong>fender. [emphasis added]72 [1993] SGHC 38.