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

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18 SAcLJ 314 Managing Mens Rea in Singapore 337[The offence of harbouring] shall be punished with imprisonment for aterm of not less than 6 months and not more than 2 years and shall alsobe liable to a fine not exceeding $6,000 …Where, in any proceedings for an offence [of harbouring], it is provedthat the defendant has given shelter to any person who has remained inSingapore unlawfully for a period exceeding 90 days after the expirationof any pass issued to him or who has entered Singapore [unlawfully], itshall be presumed, until the contrary is proved, that the defendant hasharboured him knowing him to be a person who has acted incontravention of the provisions of this Act or the regulations.[emphasis added]45 The parallels with the MDA are almost exact. The offence ofharbouring does not on its face contain any particular mens rea words.However, the existence of the presumption indicates clearly that thelegislative intent is that the mens rea is actual knowledge of unlawfulstatus of the person sheltered. The punishment for harbouring, thoughcertainly not of the same order, involves a mandatory term ofimprisonment.46 Once again, there were problems from the start. In PP vVadivelu, 66a decision which has never since been doubted, it was heldthat: 67To rebut the presumption of knowledge it is not enough for therespondent merely to deny knowledge or the acquisition of knowledge.Even if the respondent proves to the satisfaction of the court that he infact does not know that these three Indians were overstayers, he is stillnot entitled to be acquitted unless he proves on a balance of probabilitiesthat he could not have reasonably known that they were overstayers (seePP v Koo Cheh Yew & Anor). [emphasis added]47 Once again, despite the clear legislative intent that actualknowledge was the relevant mens rea, albeit with the burden of proofreversed, the court insisted on the lower standard of negligence. Reliancewas yet again placed on a foreign decision, this time the Malaysian case ofPP v Koo Cheh Yew. 68Both the decision in Koo Cheh Yew itself, and theresort made to it in 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”).
338Singapore Academy of Law Journal (2006)say that the Malaysian case came out so oddly only because it was dealingwith what it perceived to be a plea of ignorance of the law. 6948 Subsequent decisions not only failed to correct the error, butextended it to the companion offence of employing an illegalimmigrant. 70The employment offence, as with harbouring, is governedby a presumption of knowledge, 71 which the courts took, on the authorityof Vadivelu, to be rebuttable not by lack of knowledge alone, but by lackof negligence as well. In Naranjan Singh s/o Ujagar Singh v PP, 72anunreported employment decision, error was compounded with confusionwhen the court, after quoting Vadivelu with approval, continued:[I]n practice the courts have treated [the employment offence] as if itdid impose a strict liability, and have placed a high obligation on thepart of an employer of foreign workers to establish that they were notillegal immigrants or overstayers before employing them. To my mindthis strict approach, certainly as regards s 57(1)(e), must be taken. Toallow an employer to evade the section by doing what would, in effect,amount to wilfully shutting his eyes to [the] immigration oremployment status of his foreign employee, would make proper controland enforcement impossible. It cannot be placing too onerous a dutyupon employers in Singapore to require them to screen their foreignworkers before employing them … [emphasis added]49 No less than three states of mens rea are treated interchangeably.First, strict liability, where both knowledge and negligence are not69 Koo Cheh Yew had to deal with a very similarly constructed set of customs offences.A list of customs offences was followed by a presumption of knowledge in theseterms: “any dutiable, uncustomed or prohibited goods shall be deemed to bedutiable, uncustomed or prohibited goods, as the case may be, to the knowledge ofthe defendant unless the contrary be proved by such defendant”. The defendant inthis case had pleaded that he was not aware that pianos from South Africa wereprohibited when he brought them into Malaysia. The majority in the Federal Courtseemed to have been distracted by the characterisation that this was a plea of mistakeof law, and ruled that here, as with all cases in which mistake of law is pleaded, thedefence can succeed only if the defendant “could not have possibly known” of theexistence of the law concerned. With respect, Suffian LP was clearly right when heheld, in dissent, that the existence of the presumption of knowledge showed theLegislature’s intention that ignorance of the law here was indeed a defence.Certainly, if the Legislature desires to create a defence of ignorance or mistake of law,it is not for the judges to say otherwise. Needless to say, Vadivelu and the Singaporeimmigration offences were not even concerned with a plea of ignorance of the law.70 Section 57(1)(e), Immigration Act.71 Section 57(8), Immigration Act:Where an immigration offender is found at any premises or place, other thanpremises used solely for residential purposes, the occupier of the premises orplace shall be presumed, until the contrary is proved, to have employed himknowing that he is an immigration offender. [emphasis added]72 [1993] SGHC 38.
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