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

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18 SAcLJ 314 Managing Mens Rea in Singapore 341when the Legislature uses the term “knowledge”, it might be taken to havemeant negligence as well? Can it also not be plausibly assumed that thestipulation of “recklessness” as the mens rea of an offence might alsoinclude negligence, though perhaps of a grosser kind? One only hopesthat terminological use of mens rea terms in the Immigration Act willeventually be considered to be anomalous and strictly confined.53 The two tales of drugs and immigration have the same theme.Unlike the context of s 300(c) murder where the statutory provision itselfwas problematic, the words in the drugs and immigration legislation werecrystal clear and required actual knowledge. The court remarkably tookmatters into its own hands and interpreted knowledge to includenegligence, and even strict liability, as well. The drugs scene is still in adegree of confusion, but the Legislature does seem to have implicitlyapproved of what the court did in the immigration cases. The increasingofficial disenchantment with the mens rea of knowledge deserves someexploration. It is, perhaps not generally known, of an ancient pedigree.One example will suffice and it is to be found in the existing definition ofthe term “voluntarily” in the Penal Code: 82A person is said to cause an effect “voluntarily” when he causes it bymeans whereby he intended to cause it, or by means which, at the timeof employing those means, he knew or had reason to believe to be likelyto cause it.IllustrationA sets fire, by night, to an inhabited house in a large town, for thepurpose of facilitating a robbery, and thus causes the death of a person.Here A may not have intended to cause death, and may even be sorrythat death has been caused by this act; yet, if he knew that he was likelyto cause death, he has caused death voluntarily.[emphasis added]54 On closer examination, the illustration seems strange. Quiteapart from the fact that the concept of causing death voluntarily nolonger has any particular significance under the Penal Code, 83thedefinition includes the phrase “or had reason to believe”, somethingwhich is not reflected in the illustration at all. The reason is because82 Section 39.83 Macaulay had used the concept of causing death voluntarily to define culpablehomicide and murder. The Indian colonial legislators saw it fit to do otherwise.
342Singapore Academy of Law Journal (2006)Macaulay’s original draft did not have the phrase. 84Why the Indiancolonial authorities included it is perhaps a matter of a degree ofconjecture, but one may speculate that there was a certain loss of faith inthe mens rea of knowledge, and that it was felt that it might be toodifficult for the prosecution to handle. Expressions of such fear are notdifficult to find in the drugs and immigration cases. The court in Vadiveludeclared: 85It is quite clear from the [mandatory] punishments … that thelegislature intends to curb the problems of illegal immigrants,overstayers and employment of illegal immigrants by discouraging theemployment or harbouring of such persons. This would not be achievedif mere negligence and recklessness on the part of the accused toenquire about the status of the illegal immigrant or overstayer, if heknows or has reason to believe that the person is a foreigner, would besufficient to rebut the presumption of knowledge. [emphasis added]55 And of the potential of convicting the innocent, the court in TanAh Tee quoted Lord Pearce as saying: 86It would leave some unfortunate victims of circumstances who moveinnocently but rashly in shady surroundings and who carry packages ortablets for strangers or unreliable friends. But I think even they wouldhave an opportunity of ventilating their story and in some cases, ifinnocent of any knowledge and bad motives obtaining an acquittal.Some of the persons in some of the rather far-fetched circumstances84 A Penal Code Prepared by the Indian Law Commissioners, supra n 34 at p 42. Thefailure to harmonise the amended definition of “voluntarily” with the rest of thedraft Code has also resulted in a clash with the “hurt” provisions. Eg, s 321 says:Whoever does any act with the intention of thereby causing hurt to any person,or with the knowledge that he is likely thereby to cause hurt to any person, anddoes thereby cause hurt to any person, is said “voluntarily to cause hurt”.[emphasis added]This is the original draft and obviously contains no reference to the negligence limbsubsequently added to the definition of “voluntary” in s 39. One does sympathisewith any judge who apparently has to resort to contortions like this one, found inSim Yew Thong v Ng Loy Nam Thomas [2000] 4 SLR 193 at [18]:There is no definition of the term “knowledge” in the Penal Code. In myjudgment, for the purposes of s 321 of the PC, the term “knowledge”encompasses both recklessness (where an accused knows he is likely to cause aresult) and negligence (when an accused has reason to believe that he is likely tocause a result). I was reinforced in this view by the general definition of theterm “voluntarily” in s 39 of the [Penal Code] …One might have expected the court to take the s 321 interpretation for the purpose ofvoluntarily causing hurt, rather than to distort the meaning of “knowledge” in orderto preserve a degree of consistency with s 39, on both the principle that theambiguity ought to be resolved in favour of the accused, and the maxim that thespecific is to be preferred over the general, generalia specialibus non derogant.85 Supra n 66, at 116, [86].86 Supra n 49, at 220, [23].
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